December 2008 Archives

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Jim Galloway, live-blogging the Georgia Senate runoff for the Atlanta Journal-Constitution, reports, "The Associated Press has just declared Republican incumbent Saxby Chambliss the victor in the U.S. Senate race in Georgia. The Democrats have fallen short of their 60-seat majority."

We can breathe a little easier. The Republicans may be able to block drastic pro-criminal legislation, such as repeal of AEDPA.

Back in June, Doug Berman and Stephanos Bibas published their final version of "Engaging Capital Emotions" in Northwestern University Law Review Colloquy.  I found the article while I was cleaning out my desk today, and a re-read (and Kent's post yesterday) inspired me to blog about it. 

The article expresses Berman and Bibas' views on the role emotions play in death penalty litigation while focusing particularly on cases of child rape.  Their theory is that human emotion drives many of our criminal law practices, and is particularly relevant in the area of capital punishment.

As predicted here and here, Hedgpeth v. Pulido was decided quickly and per curiam by the U. S. Supreme Court. The Court was unanimous that the Ninth Circuit's determination that the jury instruction in this case was "structural error" was erroneous. The majority decided that the case needed to go back to the Ninth for application of the correct harmless-error standard of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The dissent (Stevens, Souter, Ginsburg) would affirm on the ground that the lower courts had effectively determined that Pulido should get habeas relief under the Brecht standard, and there is no need to drag this particular case out for one more round of review.

The AP story on the case is here: "The Supreme Court took aim at one of its favorite targets Tuesday, criticizing a California-based federal appeals court for its ruling in favor of a criminal defendant."

While today's news focuses on the current Archives of General Psychiatry article reporting 1 in 5 college aged students has a personality disorder, another article just released in the American Journal of Psychiatry deserves as much attention - probably more.

The article by Jacques Baillargeon and colleagues titled Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door examines the link between mental illness and risk of multiple incarcerations.  Of note, the authors narrowly construe their definition of mental illness to include only four categories:  major depression, bipolar disorder, schizophrenia, and non-schizophrenic psychotic disorder.  Thus, they wisely excluded substance abuse disorders in their calculations which have greatly inflated the results of similar previous studies. The study included 79,211 inmates who began serving a sentence between September 1, 2006, and August 31, 2007.

The tables and graphs tell the story. Contrary to the prevailing wisdom of many advocacy groups, the study adds the emerging yet growing body of literature which suggests severe mental illnesses do indeed seem to be  associated with crime and violence.

 

 

Lauren's Blog Scan today notes the discussion over victim impact videos and all the whining on the defense side that these are somehow "unfair." The rejoinder in the WaPo story is:

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.

*                           *                        *

"I can see why these videos drive defense lawyers crazy because they actually balance things out," [Orange Co. DDA Matt] Murphy said.

That balance is the key point.

With the party committed to identity politics headed back the White House, there is naturally much discussion of the ethnicity of the next Supreme Court nominee. Tony Mauro has this article in the Legal Times on the pressure on the President-Elect to name a Hispanic Justice. Among the possibilities listed is California Supreme Court Justice Carlos Moreno. I'll hoist a cerveza to that.

Over At The Supreme Court:  At SCOTUSblog today, Lyle Denniston has posted his thoughts on the "State of the Docket" as of December 1, 2008.  He predicts that the Court will grant review to approximately 11 new cases this term, and five new cases will be announced after Court conferences on December 5th and 12th.  Most of his post discusses the scheduling of oral arguments, but, at the end, Denniston does note that the Court is unlikely to issue grants in cases that will produce "blockbuster rulings."  He states that this term "there are not many cases of significant broader public interest."  He believes that could change if the Court agrees to hear NAMUDNO v. Mukasey or Al-Marri  v. United States.  Tom Goldstein also provides a link to his merits reply breif in Cone v. Bell in his SCOTUSblog post today.  Our Amicus breif in support of Respondent, Bell, can be found here.  

Amendments to Federal Rules of Criminal Procedure:  Thanks to Orin Kerr at Volokh Conspiracy for this little reminder that the latest round of amendments to the Federal Rules of Criminal Procedure go into effect today. The amendments can be found here, and an excerpt explaining the amendments is here.

A Response to a Claim That This is the "Most Conservative Court Since the Mid-1930s":   Also at Volokh Conspiracy, Jonathan Adler has posted his thoughts on Dean Erwin Chemerinsky's essay  "The Roberts Court at Age Three."  Apparently, Chemerinsky believes the Roberts Court to be the most conservative court since the mid-1930s.  Adler disagrees with this position, and offers up his response: "Getting the Roberts Court Right: A Response to Chemerinsky," as well as the argument that the "Roberts Court is moderately more conservative than some of its recent predecessors on some issues, but it remains quite 'liberal' on others. Particularly because Justice Kennedy is the swing vote on so-many ideologically charged cases..."

Blogging on Victim-Impact Videos:  At Sentencing Law and Policy, Doug Berman, a self-proclaimed "strong believer in victims' rights at sentencing," has a post discussing Saturday's Washington Post article by Jerry Markon.  The article discusses the use of victim videos during sentencing, and reports that the Supreme Court has recently declined to hear challenges to the use of two such videos.  This could mean that we will see an increase in the use of such "technology-aided victim impact statements" during trial and sentencing.  To counter his own bias, Berman offers a link to a defense view of victim videos from ChrisT at Talk Left.

Monday: Very little of interest to criminal law practitioners is happening today. The orders list contained no new grants of certiorari. That is normal when the grants are announced on conference day, as they were last week. Several crim. pro. cases involving cars were denied, as described by Lyle Denniston at SCOTUSblog. Oral arguments are a couple of real snoozers. Kansas and Colorado sally forth into the second century of their battle over the Arkansas River. Shades of Bleak House. The other case involves arbitration and labor contracts.

Tuesday: Opinions are possible. I'm expecting Hedgpeth v. Pulido to be among the early opinions this term. Arguments are two civil cases of no particular interest.

Wednesday: The arguments are two civil cases. However, they involve federalism issues that touch on criminal law.

Philip Morris USA v. Williams involves the question of when an independent state procedural ground of decision is "adequate" to block consideration of a federal question. This issue comes up very often in habeas cases. The Supreme Court's jurisprudence on this topic is a mess. The unwritten rule in the Ninth Circuit is that all California grounds are per se inadequate. CJLF filed this brief supporting neither party, asking the Court to clean up this "untidy area of our law."

Haywood v. Drown is a prison litigation case asking whether the state legislature can kick 42 USC § 1983 actions out of state courts.

Governor Calls for Mexican Death Penalty:  Coahuila state Governor Humberto Moreira is asking the legislature to adopt a recommendation that Mexico's Congress restore the death penalty for kidnappers who murder their victims.  An Associated Press story reports that a 2/3 majority of the Congress would be required to undo the 2005 Constitutional amendment that abolished capital punishment.

Fired Public Defender Sues:  A former Santa Clara County Deputy Public Defender, fired five years ago for refusing to answer questions during a disciplinary hearing, will have his claim that his rights were violated heard by the California Supreme Court tomorrow.  A story in the San Jose Mercury News by Howard Mintz reports that Thomas Spielbauer "invoked his Fifth Amendment rights" when his bosses began to investigate allegations that he lied to a judge while representing a criminal defendant.  

DNA Links Accused Rapist to Anchorwoman's Murder:  An affidavit filed today indicates that police identified the man charged with with October 20 beating death of Little Rock news anchor Anne Pressly with a DNA match.  The Associated Press reports that while the police believe that Pressly was killed when she intrupted a robbery, her parents believe that she may have been sexually assaulted.  Murder suspect Curtis Lavelle Vance is also accused of raping a school teacher last April and of committing several burglaries in eastern Arkansas.  Early reports suggest that the victim died from a massive stroke caused by blunt force trauma.  Every bone in her face had been broken and her hand was broken in the attack.   
   

At a time when many municipalities are cutting services, comes this notable story by Gabriel Kahn from the Wall Street Journal:

"Shrinking budgets are forcing such cities as Phoenix, Portland, Ore., and San Diego to make deep cuts, including to police. But Los Angeles Police Chief William Bratton has grown his department with a persuasive argument about the financial costs of crime.

The city is adding 1,000 police officers, pushing its force levels in the Los Angeles Police Department to above 10,000 for the first time. Even as the city faces a more than $400 million shortfall for this fiscal year and next, the police budget -- the city's most costly department -- is emerging largely unscathed."

The article also notes the significant decline in crime in L.A. during the past six years which coincides with a sizable increase in the number of police officers.  While crime is surely a multifaceted problem, perhaps one of the answers is straightforward: more police results in less crime.  As Harvard law professor Bill Stuntz discusses, putting more "boots on the ground" likely is part of the answer to reducing crime in neighborhoods which are often seriously underpoliced.  The LA statistics seem to support this assertion. 

Interesting, Police Chief Bratton also argues that more police results in a fiscal savings for the city:

"Mr. Bratton said he thinks of Los Angeles's crime reduction as money in the bank. "The cost of a homicide to the city is $1 million," he said, citing an estimate based on a study by the National Institute of Justice that takes into account such costs as criminal trials and police salaries. 'We've reduced the homicide rate by nearly 300 in six years," he said. "That's a $300 million annual benefit to the city.'"