Recently in Notorious Cases Category

Prof. Dan Markel was a popular teacher at Florida State Law School and an active legal blogger.  I met him only once that I remember, but we had a number of mutual friends.

He was assassinated at his home, in broad daylight, on July 18, 2014.  Until today, his murder was unsolved.  This morning, 34 year-old Sigfredo Garcia was arrested for the killing. As I suspected, it seems to have been a hit  --  i.e., a murder-for-hire.

What I was not suspecting was the killer's rap sheet, summarized as follows in Tallahassee Democrat (emphasis added):

Garcia has been arrested at least 22 times in Florida. His first arrest, for vehicle theft, happened in Miami on April 30, 1997, just three days after his 15th birthday.....

He was arrested several other times as a teenager, on charges including assault on a law enforcement officer, car burglary, making or attempting to make an explosive device, possession of marijuana and trafficking in amphetamines, according to FDLE documents.

As an adult, he was arrested on charges including aggravated assault with a weapon, criminal mischief, possession of cocaine and marijuana and strong arm robbery.

It wasn't immediately clear how many times he was convicted or how much time he's spent in county jail. He has no history of incarceration in Florida state prisons.

Translation:  Garcia had spent virtually his entire life proving that he was an unrepentant violent criminal and that he could not live peacefully in civil society. Yet he served not one day in state prison.

We are often lectured that America over-incarcerates.  What Dan Markel's murder shows, to the exact contrary, is that America gives too many morally oblivious second chances.  Prof. Markel will not be the last to pay the price.

Harvard Law Professor Alan Dershowitz is not someone we agree with often, but his comments on Megyn Kelly's show last night are notable.  The video is here.  The transcript is here and copied, with edits, after the break.

[Editors Note:  Unknown to either of us, Bill and I were posting on the same subject at the same time.  That's okay.  I will leave them both up.  There is overlap, but also some differences in the posts.]
In my post here, I went after the Freddie Gray prosecutor, State's Attorney Marilyn Mosby. As usual, my remarks did not suffer from excess subtlety:

Freddie Gray died as a result of injuries sustained in police custody, and there remain more than a few questions to be answered about that.  But the way to answer them is not with a "cops-are-Nazis" festival, which  --  thanks to an immature, political and grandstanding State's Attorney  --  is what the Freddie Gray prosecutions have become. Not for nothing did she lose today's case, just as she fumbled away (in a mistrial) the one before.

I was struck to see how much my take on it resembles that of liberal but independent-minded Harvard Law Prof. Alan Dershowitz, who said in an interview on Fox News:

On Tuesday night's The Kelly File, Harvard Law professor Alan Dershowitz says Baltimore's state's attorney Marilyn Mosby, the Freddie Gray prosecutor, acted irresponsibly, politically.

"These are officers who, you know, may have made a mistake but they are not guilty of criminal conduct," Dershowitz said of Officer Edward Nero being found not guilty in Baltimore. "What she tried to do is stop the mob [of rioters and arsonists]. I understand that, but you don't use the criminal justice system to solve racial problems."

"She's a symptom of a larger problem," Dershowitz said of Mosby. "Black Lives Matter is endangering the fairness of our legal system. Because they're rooting for outcomes based on race."
The  full text transcript of Judge Barry Williams's ruling in the trial of Baltimore police officer Edward Nero is available here.

Infected Prosecutions Get Tanked

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I live near Washington, DC.  The big criminal law news here today consists of two cases. One is the SCOTUS reversal of the conviction of a black Georgia murderer on grounds that the government engaged in racially biased jury strikes.  Kent has his typically thoughtful and analytic description here.  While, as Kent notes, there are grounds to question the procedural setting of the case, the Chief Justice's opinion documents disturbing reasons to think the defendant's claims of racial bias were true.

The other news item is the acquittal on all counts of a white Baltimore policeman in the Freddie Gray case.  He had been charged, along with five other officers (two other whites and three blacks) with helping cause Gray's death in police custody. The case was brought by a radical black prosecutor who, after announcing the filing of charges, held an outdoor, campaign-style news conference to congratulate herself, then attended a rock concert (not a typo) ostensibly to laud some sort of "why-can't-we-all-get-along" theme, but actually designed, so it certainly seemed, to further inflame racial passions against the accused.  I discussed the prosecutor, Marilyn Mosby, and her antics several times, e.g., here.

A number of thoughts come to mind from today's stories.
In Oklahoma, a grand jury has released its report on the problems with executions by lethal injection in that state and the substitution of potassium acetate for potassium chloride.  There are numerous procedural errors detailed in the report, and opponents of the death penalty are having a field day with them.  However, this should not obscure the "bottom line" finding on the execution of Charles Warner (emphasis added):

Warner's death was intentionally inflicted by correctional officers acting pursuant to a Death Warrant issued by the District Court in State of Oklahoma v. Charles Fredrick Warner, Oklahoma County Case No. CF-1997-5249.  The execution, which involved the administration of midazolam, rocuronium bromide, and potassium acetate, was completed in a manner consistent with the Death Warrant and statutory authority. The intravenous administration of the three-drug cocktail to Warner resulted in his humane death within eighteen minutes of the commencement of the sequential administration of these drugs. There is no evidence the manner of the execution caused Warner any needless pain. Nevertheless, his execution was not administered in compliance with the Department's Protocol or in a manner allowing Warner to challenge the procedure prior to his death.

Going forward, the grand jury recommended further research on the use of nitrogen, recently authorized by the legislature:

AP reports:

COLORADO SPRINGS, Colo. -- A man who acknowledged killing three people at a Colorado Planned Parenthood clinic is too mentally incompetent to continue with his criminal case, a judge ruled Wednesday.

The decision by Judge Gilbert Martinez puts the case against Robert Dear, 57, on hold until his mental competency can be restored through treatment. He will be sent to the state psychiatric hospital, and his mental health will be reviewed in August.

As he was led out of the courtroom, Dear yelled at the judge: "That's called prejudiced, filthy animal!"

The case will resume when Dear is found to be mentally capable of understanding the court proceedings and able to assist in his defense. He is charged with 179 counts, including murder and attempted murder, stemming from the Nov. 27 shooting at the Colorado Springs clinic that also left nine injured.
A:  It's not the death penalty.

The notion that a prison term, whatever its length, is proportionate justice for crimes like this is absurd  --  not that absurdity ever stopped the pro-criminal lobby.

The case dates back to October 2013, when prosecutors said several of the defendants plotted to kill a member believed to be cooperating with police.
...gang members killed Nelson Omar Quintanilla Trujillo, who was suspected of alerting police to the failed murder plot, prosecutors said. After luring Trujillo into Holmes Run Park in Fairfax County, they stabbed him to death, dismembered him and buried him in the woods. Several months later, they stabbed and decapitated Gerson Adoni Martinez Aguilar, an MS-13 recruit who was accused of stealing gang money and having sex with an incarcerated member's girlfriend. They buried him in the same park.
The third murder took place in June 2014, when Chavez and two other gang members shot and killed Julio Urrutia in Alexandria, mistaking him for a rival gang member, according to the prosecutors.

Three murders, stabbing, dismemberment, decapitation  --  hey, look, these are merely "justice involved" youth in need of counseling.

Ben Mathis-Lilley reports for Slate:

Unrepentant mass killer Anders Breivik's isolated confinement in a three-room prison suite furnished with a treadmill, a refrigerator, a DVD player, a Sony PlayStation, a desk, a television, and a radio constitutes "inhuman or degrading treatment" under the European Convention on Human Rights, an Oslo court has ruled. The court instructed Norwegian authorities in nonspecific terms to relax the restrictions imposed on Breivik and ordered the government to pay his legal fees, which total about $50,000.
Some people argue that we should emulate Europe in our treatment of criminals.  In my view, Europe is a contrarian indicator.  If Europe does X, that makes X somewhat more likely to be a bad idea.

Thanks for the tip to our frequent commenter "notablogger," who notes, "I wish this were a story in the Onion.  Alas, it is not."
Phil Helsel reports for NBC:

A former death-row inmate has been charged with keeping a woman captive and sexually assaulting her for months in Colorado, officials said Thursday.

"She's been through hell and back," Mesa County Sheriff's Office Sgt. Henry Stoffel told NBC station KUSA.
Claude Lee Wilkerson, 61, was arrested in February and charged Monday with 10 counts in all, including first-degree kidnapping, false imprisonment, sexual assault and harboring a minor, according to court documents.
But Wilkerson was once sentenced to death for a prior murder.  He never should have hurt anyone again.  How did he get off?  His confession was thrown out, and his conviction was reversed, not because the confession was involuntary in violation of the real Fifth Amendment actually in the Constitution, but only because its taking did not comply with the Miranda rule invented by the Supreme Court out of whole cloth in 1966.

KUSA has this video report on the overturning of the prior conviction.

The rules of law that set criminals free despite solid evidence of guilt tend to be taught in abstract, antiseptic terms in law school.  Most law students go along with their pro-defendant professors and endorse these rules.  I have known students and lawyers to react in horror at the very idea that anyone would challenge Miranda v. Arizona and Mapp v. Ohio.  Many are completely incapable of grasping the distinction between these entirely court-created doctrines and the actual Bill of Rights.

Yet these rules have real, human costs.  They have costs when victims and their families see perpetrators walk.  They have even greater costs when those perpetrators commit new crimes.

A Risible Prosecution Gets Tossed

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Prosecutors must and do have wide discretion in deciding what charges to bring and against whom.  Most of the bellyaching against them is just PR work done by the defense bar.  Better to paint the prosecutor as Satan than come to terms with the fact that your client is a hood.

Occasionally, however, criminal defense lawyers are the heroes they claim to be, and prosecutors need to be stepped back by the judicial branch.  Thus I was happy to see the prosecution reproached by the highest criminal court in Texas for perhaps the most blatantly political, and absurd, prosecution I have ever seen:  A bunch of leftist prosecutors indicted then-Gov. Rick Perry for "threatening" to use his constitutional power to veto funding legislation.  Good grief.

The Duke rape hoax indictment, together with this case, show that the deference due prosecutors, while broad, cannot be unlimited.

The story is here.
I previously noted the Anthony Porter / Alstory Simon story here, here, and here

Now Showtime has a documentary on the case, titled A Murder in the Park.  I haven't seen it and probably won't, as I don't get Showtime.  But my friend Josh Marquis recommends it, and that's more than good enough to note it here.

The Black Lives That Didn't Matter

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The National Association of Assistant US Attorneys has produced a short video (a little over a minute) about the murders of three African Americans, a mother and her two daughters, by Wendell Callahan.  Callahan had a violent past, and had been sentenced to federal prison for trafficking in hard drugs (crack cocaine). Nonetheless, he was released early courtesy of Congress's 2010 version of "sentencing reform." But for his early release, his three victims would be alive today.

When one black man, Michael Brown of Ferguson, MO  --  a fellow who was 6'4" and weighed 292 pounds  --  was shot by a policeman in legal self-defense, the story was the subject of hundreds of outraged national headlines.  When the three defenseless black people in Columbus, OH got their throats slit by a man who earned his way to prison, but then was released early as a "low level, low-risk" prospect, not a single component of the national media has written a news story about it.

Lesson of the day:  Black lives matter plenty when they service the liberal criminal justice narrative that Amerika stinks. Otherwise...well, hey, look, chill out.

The video is here.

Jailbreak: A Love Story?

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The search is over.  Three California inmates who managed to escape a Santa Ana jail are back in custody.  The prison teacher arrested last Thursday for allegedly aiding in their escape, however, is being released due to insufficient evidence, for now at least.

Since the daring January 22 escape, word has circulated that the English-as-a-second-language teacher, Nooshafarin Ravaghi, and one of the escapees, Hossein Nayeri, had a relationship that was "close" and "personal," highly atypical for a prison teacher and an inmate, not to mention inappropriate and completely banned.  It is believed that Ravaghi provided Nayeri and two other inmates, Bac Duong and Jonathan Tieu, with a printed photograph from Google Earth to help them escape from the maximum-security facility.  Authorities believe she may have helped them on the outside as well.
Every now and again, a single case crystalizes an argument so powerfully that there's not much left to say.  Recently, I wrote about one such case, the triple murder (of a mother and her two daughters, aged 10 and 7) by a crack dealer with a violent history who was out on early release because of Congress's 2010 version of "sentencing reform."  Had he remained in jail for his original sentence, the mother and the two kids would be alive today.

We all know that errors in sentencing are inevitable, because errors in human judgment are inevitable.  Accordingly, we know that some inmates will be incarcerated too long, and others, not long enough.  

The only adult question, then, is this:  Who should bear the risks and costs of inevitable error  --  the criminal, who made his own choice and assumed his own risks, or the future victim, who never had a chance?

The question answers itself.

So does the question posed by Judge Jack Weinstein's most recent adventure in judicial defiance:  Does a felony-level child pornographer deserve a prison sentence of zero?

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