Recently in Notorious Cases Category

Mixing politics and the power to prosecute is the fast road to tyranny.  That is one reason I have been unstinting in my criticism both of Eric Holder's politicization of DOJ and of the reckless grandstanding by Baltimore State's Attorney Marilyn Mosby in the Freddie Gray case, see here, here, and here.

Even Ms. Mosby, however, looks good by comparison to the federal prosecutors whose jaw-dropping unethical behavior resulted in well deserved judicial rebukes from both the federal district court and, now, the Fifth Circuit (opinion here).

It's impossible to summarize in a single sentence the extent or the sleaze of the prosecutors' stunts, but let me start by saying that they essentially tried a prominent federal case against seven New Orleans police officers  --  four of them black or Hispanic  --  by tweet, then repeatedly lied about it.

Sal Perricone, a high-ranking prosecutor in the U.S. Attorney's Office, using a fake name, posted commentary on Nola.com, the website of the Times-Picayune, that (in the words of the Court of Appeals) "castigated the defendants and their lawyers and repeatedly chastised the New Orleans Police Department as a fish 'rotten from the head down.'"

Perricone was joined in this outrageous misconduct by Jan Mann, the first assistant to the U.S. attorney.

Meanwhile, back in Washington, Karla Dobinski, a veteran of Holder's Civil Rights Division, also posted inflammatory commentary under at least one assumed name. Ironically -- appallingly -- Dobinsky was part of the DOJ "taint team" in this case. As such, she was assigned to protect the civil rights of the indicted defendants. 

The whole appalling story is here.



On the evening of June 17 of this year, white supremacist Dylann Roof, after sitting in a black church for about an hour, pulled out a Glock .41 handgun with hollow-point bullets and murdered nine black people who had been in a prayer and Bible study group. No sane person doubts either that he did it, that he knew what he was doing, that he thought about his actions, or that the motive was anything other than racial hate. It was a 21st Century mass lynching, there is no other honest name for it.

South Carolina, like the great majority of states, has the death penalty.  Even if it should be abolished in the future because of the risk of executing the innocent, or because it is (or is said to be) employed  discriminatorily against African Americans, or because it takes a long time and costs a lot, will any abolitionists come off their "facts-never-matter" stance to support its use in this utterly clear and grotesque case?

They've done it before.  In the Oklahoma City bombing, a USA Today/CNN/Gallup poll found that a majority of those typically against capital punishment on principle supported it for Timothy McVeigh.  The crime was just too much of an assault on the basics of civilized life.

Isn't that also true here?  Have we not reached the point in America where we are going to say no to lynching  --  to say no and mean it? To understand that the country has passed a turning point toward ensuring dignity regardless of race? To understand that even if in the case of the "ordinary" mass murder we should accept a prison term, we have come too far and paid too much to do that here?

As a general matter, tolerance, understood as a generous turn of mind, is a good thing. But it depends on what we are being asked to tolerate.  There should be no tolerance for Dylann Roof's attempt to drag America back to a hideous past.  I will be looking for abolitionists to do some of the critical, reflective thinking they say they value and, in this case, support the death penalty.


The Lies at the Base of "Black Lives Matter"

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The "Black Lives Matter" Movement took root a little more than a year ago in Ferguson, Mo.  A white policeman, Darren Wilson, shot a blameless and unarmed black teenager, Michael Brown, as Brown had his hands up, trying to surrender (hence the Movement's first slogan, "Hands Up, Don't Shoot").  Thereafter, Wilson walked up to Brown, now prone, and, as noted in stories briefly recounted in this New Yorker article, shot him in the back.

Or so is the fable.  It's a pack of lies, and was from the day it started. The point of BLM was never to tell the truth, so when the truth came out  --  as it did in two grand jury investigations, including one by Eric Holder's Justice Department  --  it was dismissed. The point was always something different:  To intimidate the police and thus benefit criminals.

There's evidence that it's worked.  Police work has become more fraught.  Some cops say they're pulling back.  When the State's Attorney indicts the police and the city's mayor says rioters must be given "space to destroy," what were we expecting?  We should have been expecting, e.g., Baltimore, and a spike in murders coast-to-coast, which is what we got and are getting.

The wretched irony in this is, of course, that black lives do matter, and that blacks, who disproportionately bear the brunt of poverty, depend more than better-off whites for the basic protection policing provides.  In part for that reason, I repeat the following entry on PowerLine, a bitterly humorous tribute to the insidious deceit and tragic carnage of "Black Lives Matter."
Sadie Gurman reports for AP:

Colorado theater shooter James Holmes will be sentenced to life in prison without parole after a jury failed to agree Friday on whether he should get the death penalty for his murderous attack on a packed movie premiere.

The nine women and three men said they could not reach a unanimous verdict on each of the murder counts. That automatically eliminates the death penalty for the failed neuroscientist, who blamed his calculated murders of 12 people on mental illness.

A rule of law that says the opinion of one juror can trump the opinion of the other eleven borders on insane.  We would never consent to such a rule for the guilt verdict.  In no state of the union does a jury hung 11-1 for conviction produce an acquittal.  Why does any state have such a rule for the penalty phase?

States that have this crazy rule need to get rid of it.  A hung jury on penalty should trigger a retrial with a new jury, as it does in California and Arizona.

Last Wednesday was the 20th anniversary of the murders of two toddlers, Michael and Alex Smith, by their mother, Susan Smith.  Ms. Smith was having an affair and hoped to run off with a man who didn't want to be burdened with kids  --  who can, after all, be quite a load at that age.  She dealt with this by strapping them in seat belts in her car, which she then rolled into a lake.  

In one of the more spectacular miscarriages of justice I can remember, the jury rejected a death sentence and gave her life.

She is taking full advantage.  This story, from ABC news, is chock full of lessons for those of us interested in criminal law, and capital cases in particular. 

Pollard Release Imminent?

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Devlin Barrett reports for the WSJ:

The Obama administration is preparing to release convicted Israeli spy Jonathan Pollard from prison, according to U.S. officials, some of whom hope the move will smooth relations with Israel in the wake of the Iran nuclear deal.

Such a decision would end a decadeslong fight over Mr. Pollard, who was arrested on charges of spying for Israel in 1985 and later sentenced to life in prison. The case has long been a source of tension between the U.S. and Israel, which has argued that a life sentence for spying on behalf of a close U.S. partner is too harsh. Israel has for years sought Mr. Pollard's early release, only to be rejected by the U.S.

Now, some U.S. officials are pushing for Mr. Pollard's release in a matter of weeks. Others expect it could take months, possibly until his parole consideration date in November.
Such a deal for Israel.  First we sign the most toothless agreement since Neville Chamberlain came back from Munich in 1938 waving a document and claiming "peace in our time," an agreement that practically guarantees that a country determined to wipe Israel off the map will acquire nuclear weapons.  But not to worry, we will make it up by releasing one spy.
The Supreme Court established the basic framework of capital sentencing in the mid-1970s and then tinkered with it for some years thereafter.  Under this framework, a state cannot make all murderers eligible to even be considered for the death penalty.  There must be some additional factor beyond the basic requirements of murder.  It has to be a reasonably objective one.  "Especially heinous, atrocious, and cruel" won't do.

The methods vary by state.  Texas defined a higher degree of murder called "capital murder."  Most states have a designated list of "aggravating circumstances."  California calls its list "special circumstances" because we just have to be different.

In some states the plus factors are found concurrently with guilt.  In others they are decided along with the decision on penalty.  Colorado apparently "trifurcates" its capital trials, sandwiching an "aggravating factor" phase between the guilt and penalty phases.  (California does that with the prior murder circumstance only.  All the rest are decided concurrently with guilt.)

Are the following factors true in the case of the Aurora shooting?

• Intentionally killing a child under the age of 12.

• Killing more than two people during the same criminal act

• Creating a grave risk of death to people other than the 12 victims.

• Committing the murders in an especially heinous, cruel or depraved manner.

• Ambushing the victims.

The jury did not find the first one, apparently not satisfied on the specific intent requirement.  What's that fourth one?  Hopefully the jury got a "narrowing" instruction to define that more precisely.

Jordan Steffen and John Ingold have this story in the Denver Post.  Maria LaGanga has this story in the LA Times.

Partial Reversal for Blagojevich

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Rod Blagojevich, former governor of the state where about as many former governors are felons as not, won a partial reversal from the Seventh Circuit today.  From United States v. Blagojevich, USCA 7, No. 11-3853:

Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich's own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution's evidence and to find that Blagojevich acted with the knowledge required for conviction.

But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich's proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President‑elect for a private‑sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.

Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir. 2014), with Griffin v. United States, 502 U.S. 46 (1991). (Perhaps because the jury deadlocked at the first trial, the United States does not seriously contend that any error was harmless; a one‑line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60-62 (2008) (an error of this kind is not "structural").)

Aurora Verdict

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Sadie Gurman reports for AP:

CENTENNIAL, Colo. (AP) -- Jurors convicted Colorado theater shooter James Holmes on Thursday in the chilling 2012 attack on defenseless moviegoers at a midnight Batman premiere, rejecting defense arguments that the former graduate student was insane and driven to murder by delusions.

The 27-year-old Holmes, who had been working toward his Ph.D. in neuroscience, could get the death penalty for the massacre that left 12 people dead and dozens of others wounded.

Jurors took about 12 hours over a day and a half to review all 165 charges. The same panel must now decide whether Holmes should pay with his life.


How Dylann Roof Got the Murder Weapon

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Scott Johnson reports:

After Dylann Roof murdered nine pastors and churchgoers in the course of Bible study in Charleston, President Obama couldn't wait to use the occasion for his narrow political purposes. "Let's be clear," he said with urgency in his voice. "At some point we as a country will have to reckon with the fact that this type of mass violence ... doesn't happen in other places with this kind of frequency. And it is in our power to do something about it." The implication, of course, was that additional gun control legislation was required but that his political opponents refused to see the light.

Now we learn in whose power it was to do something about it, and it wasn't anyone Obama was talking about. The Washington Post reports: "Dylann Roof, who is accused of killing nine people at a church in South Carolina three weeks ago, was only able to purchase the gun used in the attack because of breakdowns in the FBI's background-check system, FBI Director James B. Comey said Friday." The White House, of course, declines to comment.

I said at the time of his nomination that Jim Comey was a man of integrity.  I feel vindicated today.  As to his boss, I have as much comment as the White House.

Stars and Bars Update

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Only marginally on topic, I know, but ...

The storm of racially-charged controversy surrounding the Charleston Massacre at the Emanuel AME Church in South Carolina last month continues to steal news headlines and remain at the center of heated debate. Addressing the topic of race and racism in the aftermath of this heinous crime is both foreseeable and reasonable, due to the fact that the shooter, Dylann Roof, is white and the nine victims he gunned down were black.  But during tense times when many Americans perceive the country as teetering on the brink of a race war, the liberal agenda injected into the discussion regarding the Charleston Massacre is not so much of a discussion, but rather, pure drivel that only serves to drive a deeper wedge between Americans of different races and promote the sentiment that we are living in a racist America.  Heather MacDonald fires back in this National Review piece titled "The Shameful Liberal Exploitation of the Charleston Massacre" to - as she always does - clear the air for those that refuse to recognize the truth through the media fog.  In response to President Obama's eulogy of Emanuel AME's pastor, the Reverend Clementa C. Pinckney, MacDonald notes:

1 Down, 1 To Go

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William Rashbaum and Benjamin Mueller report for the NYT:

Richard W. Matt, one of the convicted murderers who staged an elaborate escape from New York's largest prison nearly three weeks ago, was shot and killed on Friday by a federal agent, two people with knowledge of the situation said.

The authorities encountered Mr. Matt after the inmate, who was on foot, tried to carjack a camper vehicle near Malone, N.Y., a third person with knowledge of the situation said. The driver sped away and called 911, and law enforcement officers responded.

There was a report of a second episode of gunfire as officers pursued David Sweat, the other inmate. The officers did not see Mr. Sweat, but they heard him running. His whereabouts was unclear.

Boston Marathon Bomber "Apologizes"

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Dzhokhar Tsarnaev apologized to his victims today, at least those (being quite a few) who are still alive to be able to hear it. CNN has the story.

I have probably heard less convincing apologies in my years as a litigator, but I can't recall one offhand.  From the story, few of the victims were convinced either.

The taxpayers will now spend hundreds of thousands or millions pursuing appeals and habeas remedies that knowledgeable people regard as ranging from dubious to absurd.  None will be absurd enough, however, to contest his factual guilt.  If we need to save money in the criminal justice system, this would be a good place to start.

There is not a whole lot left to say about this awful case.  The best capital defense lawyer in the country could not convince a single juror sitting in Boston, of all places, to vote for LWOP.

A sensible system would execute Mr. Tsarnaev promptly and move on to the next abolitionist poster boy, Dylann Roof.  But a sensible system would not tolerate the delay and expense already built in.

The Stars and Bars, Again

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The horrific shooting in Charleston has prompted the Governor of South Carolina to call for removal of the Confederate battle flag from the statehouse grounds, Josh Dawsey reports for the WSJ.

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