Amy and Vicky are represented by our good friend, Professor Paul Cassell. I expect he will take the case further.
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Amy and Vicky are represented by our good friend, Professor Paul Cassell. I expect he will take the case further.
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.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.
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.
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.
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.
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 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.
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.
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.
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.
"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.
I won't comment on the specific cases he discusses, but it certainly is true that the right of self-defense is too narrowly construed in many jurisdictions, and too many people are prosecuted for actions that should be legal or even praiseworthy. Here CJLF sometimes splits from our usual allies on the prosecution side of the aisle. We have filed only three briefs supporting defendants since I have been legal director, and two of them were in allegedly excessive use of force cases.
Also preposterous are civil suits by burglars against property owners for injuries suffered while attempting a felony. Back when we had more sense, criminal entry onto the property was an absolute defense to such a suit. Now the insurance company settles.
One of the more depressing things about these [London] riots is the way that the only thing that the Police can think of to say to us non-looters and non-arsonists is: "Don't join in" and "Let us handle it." If the bad guys start to torch your house, let them get on with it. If they attack your next door neighbour, don't join in on his side. Run away. Let the barbarians occupy and trash whatever territory they pick on and steal or destroy whatever property they want to.
There was a fascinating impromptu TV interview with some young citizens of Clapham last night, not "experts," just regular citizens, one of whom stated the opposite policy. Law abiding persons should get out of their houses, he said, en masse, and be ready to defend them.
The trouble with "letting the Police do their job" is that in the precise spot in which you happen to live, or used to live, their job probably won't start, if it ever does start, for about a week. In the meantime, letting the Police do their job means letting the damn looters and arsonists do their job, without anyone laying a finger on them, laying a finger on them being illegal. This is a doomed policy. If most people are compelled by law to be only neutral bystanders in a war between themselves and barbarism, barbarism wins. The right to, at the very least, forceful self defence must now be insisted upon.
The entire report can be viewed from the NIJ's website, but here are a few of the interesting issues discussed.
- Outsourcing - Some law enforcement agencies, including Los Angeles, opt to outsource some testing to private labs because of backlogs and staffing difficulties. While alleviating some pressure on public labs, outsourcing presents additional costs and burdens. Public labs must conduct a technical or "peer" review of analyses performed in private labs, which has led to what some refer to as a "new backlog." Also, under the Supreme Court's decision in Melendez-Diaz v. Massachusetts, jurisdictions must pay for private lab scientists to testify in court in criminal cases if the testing is outsourced.
- Victim Notification - Most agree that victims deserve to know if and when their untested SAKs are discovered, tested, or matched to a suspect, but the best procedure is debated. One city mails an official-looking letter asking the victim to call regarding an unspecified matter. Another city composes a team of four, including a victim advocate and former detective, to conduct in-person notifications. In any event, the situation must be handled delicately. Some victims may find peace upon learning their attacker from 20 years ago has been identified, but others may have moved on completely and are unwilling to revisit the crime.
- Statute of Limitations - The statutes of limitation for sexual assault charges have changed over the years, including recent changes in some jurisdictions that stop the clock if a DNA profile is obtained from the SAK. But what about the thousands of untested SAKs that are discovered where the statute of limitations has clearly expired? Testing of these SAKs may initially appear to be of lower priority, but victims' advocates argue testing may link the attacker to other unsolved crimes and provide closure to victims.