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Another Hidden Cost of Crime

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Unfortunately, some people on the conservative side of the political aisle have jumped on the "let-em-out" bandwagon because they see that as a way to reduce government budgets.  Looking at costs to government alone, however, is not the correct way to measure costs of alternative courses of action to society as a whole.  When government fails in its fundamental obligation to protect people from crime, it imposes costs on the victims, a kind of "crime tax" that falls heavily, partly at random, but disproportionately on people of modest means.  Quantifying the cost of crime to victims is a tricky business in many ways, and one of the ways is that much of the cost is hidden.  Science Daily has this article on a hidden cost that has been overlooked to this point:

In a recent paper published in the Journal of Development Economics, researchers Professor Marco Manacorda (Queen Mary University of London) and Dr Martin Foureaux Koppensteiner (University of Leicester) focused on evidence from the exposure of day-to-day violence in Brazil by analysing the birth outcomes of children whose mothers were exposed to local violence, as measured by homicide rates in small Brazilian municipalities and the neighbourhoods of the city of Fortaleza.

The team estimated the effect of violence on birth outcomes by comparing mothers who were exposed to a homicide during pregnancy to otherwise similar mothers residing in the same area, who happened not to be exposed to homicides.

The study found that birthweight falls significantly among newborns exposed to a homicide during pregnancy and the number of children classified as being low birthweight increases -- and that the effects are concentrated on the first trimester of pregnancy, which is consistent with claims that stress-induced events matter most when occurring early in pregnancy.
A few post-settlement developments in the California lethal injection suit, Winchell & Alexander v. Beard, last noted here.

Yesterday, June 3, Judge Chang signed the stipulated judgment.  Applications to intervene in the case were set for hearing tomorrow, June 5.  The applicants were Mitchell Sims, the "slice of murder" killer sentenced to death in two states, represented at taxpayer expense by the Habeas Corpus Resource Center, and Michael Morales and Tiequon Cox, the men who murdered my clients' family members, represented by David Senior and, curiously, Jenner & Block, contra bono publico.  Today, the court entered an order that the applications were moot in light of the settlement and cancelling the hearing.
We continue to make small gains in the ability of victims of crime to have their voices heard in cases affecting the criminal justice system.  On March 12, I noted that the California Court of Appeal had rejected the attempt of the California Department of Corrections to throw out the suit of two victims' families to force it to adopt a lethal injection protocol.

Meanwhile, back in federal court, the fight continues over the attempt to squelch the federal "fast track" on capital habeas cases, the never-implemented major reform of the Antiterrorism and Effective Death Penalty Act of 1996.  Since USDoJ is not interested in fighting this as vigorously or expeditiously as is needed, I moved to intervene on behalf of Marc Klaas, the father of a murdered little girl.  Unsurprisingly, the other side's favorite district judge rejected the intervention motion, so I filed an appeal from that order plus a protective appeal from the injunction on the merits of the case. 

The capital defense lawyers, being represented contra bono publico* by the Orrick firm, moved to have the merits appeal dismissed before briefing.  Today the appellate commissioner denied that motion.  On its face, the denial is "without prejudice to renewing the arguments in the briefs," but since the whole point is to preclude the briefing, that is a win for the good guys.
On January 30 we had a hearing in our suit against the Secretary of the California Department of Corrections and Rehabilitation to force him to adopt a usable execution protocol.  See my post after the hearing.

Judge Chang has issued a final ruling.  It is dated Friday, February 6, although it was not available until late Monday.  The final ruling is a reprint of the tentative ruling with a few paragraphs added at the end making the tentative ruling final and addressing the AG's arguments at the hearing.

This is only a preliminary step, rejecting the AG's attempt to have the case thrown out at the threshold.  That attempt is called a demurrer in California and other states that follow the old procedure.  In federal courts and states that follow the federal model, it would be a Rule 12(b)(6) motion.  Although preliminary, it does settle two very important points:

1.  Victims have standing to bring this case, both as parties with an interest over and above that of the public generally and "public interest" standing to enforce a public duty.  The latter wouldn't be allowed in federal court, but we are not in federal court.

2.  CDCR has a duty to establish a protocol.  They do have discretion on the details, but not on whether they do or don't establish one.  The bureaucracy cannot place a de facto moratorium on capital punishment, as they did in Maryland and as they have in California so far, simply by sitting on their hands and not establishing the protocol.

These are the primary questions of law in this case.  Actually issuing a writ of mandate will require resolution of further details, but this is a big gain for the cause of justice.

CJLF's press release is here.

Update:  Maura Dolan has this story for the LA Times.  Jennie Rodriguez-Moore has this story for the Stockton Record.

Hearing on Lethal Injection Suit

In November, CJLF filed suit against the Secretary of California's Department of Corrections and Rehabilitation demanding that he stop dragging his feet and establish an execution protocol that the state can actually use, given the constraints imposed by existing injunctions.  The suit is on behalf of two family members of murder victims, Bradley Winchell and Kermit Alexander.

The California Attorney General, representing the Secretary, filed a document called a demurrer.  That is, in essence, an attempt to get the suit thrown out at the threshold, saying that even if every fact we allege is true, we still don't have a case.  The hearing was last Friday.  The day before, Judge Shellyanne Chang issued a tentative ruling, favorable to us on all the major points.  After the hearing, she took the matter under advisement, but I saw no indication that anything in the oral argument changed her mind.

The California Attorney General is an advocate representing a client, but also a public official representing the public.  She has, at times, declined to advocate positions she considered contrary to the public good, even if legally supportable.  What I find particularly offensive here is the argument that victims of crime have no standing, as if they were complete strangers to the underlying criminal cases.  The people enacted Proposition 9 in 2008 to refute that notion, and nationwide victims of crime are gaining recognition as people with real, legitimate interests in seeing justice done.

KOVR, the local CBS affiliate on channel 13, sent a cameraman to record the hearing and to interview us on the courthouse steps afterward.  Update:  There was a brief segment on the 6:00 Friday newscast.  Some still shots of the interviews are posted after the break.

Canada's Fairness for Victims Act

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Our northern neighbor's House of Commons commendably passed the Fairness for Victims Act, which among other things allows the parole board to set reconsideration intervals up to five years rather than the current two.  When a rapist or murderer is eligible for parole and the victim or victim's family is opposed, they must go to the hearing and relive the horror.  They ought not have to do that more often than necessary.

In an amazing screw-up, though, the wrong version of the bill was sent to the Senate and referred to committee there, Sean Fine reports in the Globe and Mail.


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The US Supreme Court today decided a rather narrow victim restitution issue in a mortgage fraud case, Robers v. United States.  Ronald Mann has this analysis on SCOTUSblog.

The high court also summarily reversed a summary judgment for the police officer in an excessive force case, Tolan v. Cotton.  There were sufficient disputed facts to go to trial.  Justice Alito agrees with the result but questions why this one case was plucked out the stream of cases.  It seems to be the exemplar of the kind of case SCOTUS passes up regardless of whether the lower court's decision is right or wrong.  That is, it is the application of settled law to particular facts with little potential to blaze any new legal trail or settle any disagreement between lower courts on a recurring question.

Also on today's orders list is Beard v. Aguilar, No. 13-677, California's petition seeking review of a Ninth Circuit decision overturning a murder conviction.  The underlying issue is the reliability of dog alerts as evidence and disclosure of previous false hits.  The Ninth Circuit said the California Court of Appeal's rejection of the claim was an unreasonable application of Brady v. Maryland.  Justice Alito, joined by Justice Scalia, dissents from denial of certiorari with only a cite to his Tolan concurrence, described above.  I gather he means to point out that the Court took Tolan even while letting other wrong decisions pass by.

Town of Greece v. Galloway is yet another case on opening public proceedings with prayers.  FWIW, SCOTUS opens its own sessions with "God save this honorable court."

In the orders list, the court took up for full briefing and argument two civil cases. Ryan v. Hurles is relisted yet again.

Some Crime Victims Count...

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...and some don't.

President Obama met at the White House with the families of the victims of the Newtown, Conn. school massacre.  Nothing wrong with that; it was a shocking national tragedy.  I have some misgivings that the meeting was enlisted in a political cause, but that's how it goes with this Administration.

The President has refused to meet, however, with the families of the victims of  another mass shooting, even though (unlike the case with Newtown), he was  the Commander-in-Chief of the people ambushed, and even though they were killed, not by a lunatic, but by a "soldier" of the same Jihad that has attacked America before.

What difference does it make, really, whether the federal government has some paltry financial interest in pretending, absurdly, that the Ft. Hood massacre five years ago was just "workplace violence" instead of a terrorist attack?  For my money, what compels the President to meet with Major Hasan's victims does not depend on how they are categorized.  What compels it is basic decency. 
When I read or listen to the anti-death-penalty crusaders, I often wonder how the victims enter into their mental schema.  Death penalty attorney Andrew Love has this candid article on the SF Chron's website (not sure if it was in the hard copy paper).  The first sentence is quoted in the title. The topic is the murder of Sandra Coke, an investigator for the federal public defender's office in Sacramento.
The Oregon Supreme Court on July 25 rejected an attack on that State's rape victim shield law in State v. Macbale, No. S060079:

This is an original proceeding in mandamus. The issue presented is  whether the state or federal constitution requires that a hearing to determine the admissibility of a rape victim's past sexual conduct be open to the public, notwithstanding that a statute mandates that that hearing be held outside the presence of the public.

Relator is the defendant in a criminal action in which he has been charged with various sex crimes. Defendant claims that the alleged victim made false allegations against him so that she can later bring a civil action against him for money damages. He seeks to offer evidence at his criminal trial that the alleged victim falsely accused men of raping her on two previous occasions and that she did so for the purpose of financial or other gain....

For the reasons set forth below, we hold that the exclusion of the public from hearings under OEC 412(4) to determine the admissibility of evidence of a sex crime victim's past sexual behavior under OEC 412(2) does not violate Article I, section 10 or 11, of the Oregon Constitution or the First or Sixth Amendment to the United States Constitution.

Liberals Discover Victims

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There is a whole bunch to say about the Zimmerman-Martin case, but one of the most notable, if least commented upon, is the new appreciation liberals seem (suddenly) to have developed for homicide victims.

Up to now, it has been hard to squeeze in a word edgewise about victims; liberals seem to just walk past them as inconvenient artifacts in murder cases.  The corpse gets hidden in the legal fog, while months or years of tax-payer financed investigation goes into plumbing every last detail about the psyche, childhood, schooling, brain lesions, Twinkie consumption, etc., etc., of the killer.

Not now.  Trayvon Martin has become all but a folk hero, while no one seems even a little interested in George Zimmerman's travails in elementary school.  My goodness!

This is not to disrespect Martin.  It is, to the contrary, to hope that liberals will remember, in the thousands of more conventional and no less tragic homicide cases to come, that a real, live human being has been wiped out, and that he deserves a place in our thoughts and in our law no less than the guy who did it.

Child Pornography Restitution

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This morning, the Ninth Circuit denied a petition for writ of mandamus by two child pornography victims in Amy & Vicky v. U.S. District Court, No. 13-71486. The victims challenged the award of $17,307.44 and $2,881.05 as inadequate.  The panel declined to overrule United States v. Kennedy, 643 F.3d 1251 (9th Cir. 2011).  (No surprise there.  You have to go to the en banc court to overrule a circuit precedent.)

Amy and Vicky are represented by our good friend, Professor Paul Cassell.  I expect he will take the case further.

Sometimes Dead Men Do Tell Tales

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Jack Leonard reports in the LA Times:

Opening a new frontier for solving cold cases, California prosecutors are hunting for DNA from killers, rapists and other prison inmates who died before authorities obtained their genetic profiles.

Prosecutors from Sacramento, Los Angeles and Orange counties are sifting through old court exhibits and examining long-since forgotten crime-scene evidence in search of blood, saliva and other material that can be tested for DNA. Once obtained, the DNA is compared with the genetic profiles from unsolved cases that have DNA from unidentified perpetrators.
Of course, there is no case to prosecute where the perp is dead.  However, knowing that the case is solved and the perp is indeed dead is a great service to the victim or the victim's family.

The ACLU isn't quite as exercised about the privacy rights of dead people.  Even so, they are warning about getting samples from exhumations or medical samples.
As noted in yesterday's post, the Texas Attorney General filed a writ of mandamus under the Crime Victims' Rights Act to get a federal district judge to decide a long-delayed successive habeas petition in a capital case.  The statute requires the Court of Appeals to decide within 72 hours.  Given that deadline falls during the weekend, it would be pushed back to the next business day, which is Tuesday.

Today, the district judge decided the case, mooting the petition.  The opinion is here.  Ladd is not retarded.  Petition denied.

In footnote 1, the judge notes defensively, "The court acknowledges the Director's complaint about the court's delay in deciding this case. However, because of the court's caseload, the undersigned judge must often choose between thoroughness and timeliness. In order to be thorough and careful, the court may, on occasion, set aside complex matters for an extended period due to the weight of the court's caseload."

The caseload excuse doesn't cut it.  A case where justice is being delayed for the very worst kind of murder is priority one.  All or nearly all of the other cases are lower priority.

Nonetheless, I know there is a caseload issue in federal district courts.  So here is a case management tip for federal judges.  If you have too much to do, stop doing things Congress and the Supreme Court have told you that you shouldn't be doing.  Like misusing habeas to retry state criminal cases.  Your job is only make sure there hasn't been a major malfunction of the state court system, not to pick at specks and not to overturn any result you would have decided differently had it been your case in the first instance.  It isn't.

Cullen v. Pinholster merely confirmed what should have been obvious on the face of the statute.  You apply §2254(d) at the threshold on the state court record.  Did the state court resolve the petitioner's claim on the merits?  If so, did it completely botch it, rendering a decision so obviously wrong that it is beyond serious dispute.  If so, it won't take much time to decide.  A decision that wrong practically screams off the page.  If not, deny that claim. 

If all claims are denied this way, procedurally defaulted, or just plain garbage (not exclusive categories, BTW), deny the petition.  Even in capital cases, state-prisoner habeas petitions needing discovery and evidentiary hearings should be the exception, not the rule.  Most should be denied on the pleadings within months, not years, of filing.
Opponents of reform of the process for reviewing capital cases often claim that long, intensive reviews are needed to prevent injustice in these cases.  Putting aside whether that is generally true and whether the delay itself causes injustice, there are undeniably some judges who simply sit on cases, sometimes for years.

For federal courts, Congress has provided that victims of crime have "The right to proceedings free from unreasonable delay."  18 U.S.C. §3771(a)(7).  Congress amended the statute in 2006 in the Adam Walsh Act to include habeas corpus proceedings as well as federal criminal prosecutions.  §3771(b)(2).

The statute further provides that when the victim or the government on behalf of the victim makes a motion for relief, "The district court shall take up and decide [the motion] forthwith."  §3771(d)(3) (emphasis added).

Robert Ladd murdered Vicki Ann Garner in Tyler, Texas over 16 years ago.  His standard appeal, state habeas, and federal habeas reviews were completed 10 years ago.  He has been allowed a second federal habeas review to hear a claim that he is retarded and thus exempted from the death penalty by Atkins v. Virginia, which established a retroactive new rule.  Okay, the statute on successive petitions permits that.  See 28 U.S.C. §2244(b)(2)(A).

But the evidentiary hearing and post-hearing briefing were completed over seven years ago, and U.S. District Judge Richard Schell has been sitting on the case ever since.  In June of last year, the state made a motion to rule on the petition, and Judge Schell has been sitting on that for over seven months.

When courts issue writs of mandamus to executive officers, they wax eloquent about the need for government officials to respect and obey the law.  Nobody is above the law, etc., etc.  But too often it is the judges who simply ignore laws they don't like.  Clearly, the right of the victim to proceedings free from unreasonable delay has been violated here.  By no stretch of the imagination is seven months "forthwith."

The state and the victim's sister have filed a petition for writ of mandamus in the Fifth Circuit. Let us hope respect for the law reaches a higher level there.

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