Recently in Victims' Rights Category

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.
In Ninth Circuit today refused to order restitution for victims of child pornography, finding an insufficient causal connection between the defendant's conduct, possession and transporting kiddie porn, and the injury to the victims.  Today's decision is Amy & Vicky v. USDC, No. 12-73414.  The prior decision on the perpetrator's appeal is United States v. Kennedy, 643 F.3d 1251 (2011).

In today's case, Paul Cassell, representing the victims, asked the Ninth Circuit to reconsider its prior decision based on a contrary decision by the Fifth Circuit on October 1.  The three-judge panel cannot do that, and the request will have to go to the Court of Appeals en banc or the Supreme Court.

Burglary and South Africa Crime Survey

South Africa is a country with a huge crime problem.  Today, the government released its 2012 Victims of Crime Survey.  An interesting question asked the households which crimes they feared most, with multiple responses permitted.  Housebreaking/burglary was first, followed by home robbery, street robbery, and murder.  See also this story on

An persistent error of the soft-on-crime crowd is to underestimate the severity of burglary, classifying it as "only a property crime."  That is because they see things from the criminal's viewpoint.  A criminal who break into a home and steals the television wants property and has not applied violence to any person, so it's a property crime.

From the victim's viewpoint, burglary is crime of psychological violence.  It is an invasion of our inner sanctum.  Some people can't live in their homes any more and have to move.  Replacing the television and fixing the door are trivial in comparison to the psychological injury.

In the previous attempt to amend California's Three Strikes law by initiative, the dummies proposed to take residential burglary off the "serious" felony list.  Big mistake.  I was on a panel at a Three Strikes symposium a while back and Tom Hayden, of all people, denounced what a mistake undervaluing burglary was.  I was pleasantly surprised.
Today marks a substantial step forward in the effort to restart executions in California and stop the foot-dragging that has held up executions for six years.

As noted in my prior post, the District Attorney of Los Angeles has asked the Superior Court there to order that two murderers, Mitchell Sims and Tiequon Cox, be executed using the single-drug method.  The federal district court hearing the lethal injection litigation has twice determined that California can go ahead if it simply adopts the single-drug method (now in use in Ohio, Washington, and Arizona).  The Administrative Procedure Act does not permit enforcement of the underlying law to be held up by APA litigation.  If the implementing regulation is not valid under the APA, courts must go ahead and direct enforcement.  See Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal. 4th 557, 577 (1996).

Today, the Superior Court issued an order to show cause to CDCR to proceed or show cause why it cannot.

In other action, the LA DA has also moved to intervene in the federal lawsuit of Morales v. Cate, asking the court to modify its previous order to clarify that only three-drug executions are enjoined.
The Criminal Justice Legal Foundation today filed a petition for writ of mandate on behalf of Bradley Winchell, the brother of Terri Winchell, to order the California Department of Corrections and Rehabilitation to take the steps necessary to restart executions in California.  Michael Angelo Morales murdered Terri Winchell in 1981 and was sentenced to death in 1983.  The 23 years of appeals and habeas review were bad enough, but the execution of Morales has been delayed another 6 years, and counting, by litigation over lethal injection and CDCR's failure to take the steps necessary to end it.

This suit is the first of its type to invoke the standing given to victims by Proposition 9 of 2008, the Victims' Bill of Rights Act of 2008: Marsy's Law.  Former California Governors George Deukmejian and Pete Wilson are co-counsel on the petition.

In the federal litigation initiated by Morales, the federal court has ruled three times that California could proceed with executions if it simply replaced its three-drug method with a single-drug method.  Although Ohio, Washington, and Arizona have successfully adopted this method, CDCR stubbornly refuses to do, leaving in force an injunction against Morales's execution that it could have lifted six years ago.

CDCR has further allowed litigation under the Administrative Procedure Act to block executions, despite California Supreme Court precedent to the contrary and despite the existence of multiple available exceptions to that Act.

The action was announced this morning at a press conference at CJLF's office.  The press release is here.

The Stand-Your-Ground Law

There is presently a lot of discussion over the shooting of Trayvon Martin by George Zimmerman in Sanford, Florida on February 26.  CNN has this story.  Perhaps the most sensible comment is the one by, of all people, Jeffrey Toobin.

"Clearly, the question at the heart of the case is whether Zimmerman reasonably felt threatened," Toobin said. "On this issue, the evidence currently seems murky."

Never wanting to waste a good crisis, though, some people are using this controversy to attack "stand your ground" laws.  These laws say that if you are unlawfully attacked, you can resist.  You are not required to retreat from a place where you have a right to be.

These laws do not give a person a right to be the aggressor and certainly not to be a vigilante, which is the charge being made against Zimmerman.

Overall, the law tends to be too restrictive of the right of self-defense, not too lax.  If the other guy is the aggressor, you should be allowed to use as much force as you need to defend yourself, and if he is hurt or killed, that's what he gets for attacking you in the first place.  The same is true of anyone who breaks into your home.  The possibility that someone may be home and shoot a burglar dead is an occupational hazard of burglary.  To avoid that hazard, don't break into homes.  Easy enough.

Government cannot provide us with sufficient protection.  In California, especially, our government is in the process of putting criminals on the street who should be in prison because it cannot afford the inflated price of our prisons.  If government is not going to protect us from them, the least it can do is allow us to protect ourselves.

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