Tony Mauro interviews Howard Bashman at NLJ (registration required).

Stay of Execution Issued for Arizona Inmate: Michael Kiefer of Arizona Republic News reports the Arizona Supreme Court late on Tuesday stayed today's scheduled execution of Samuel Lopez, who was sentenced to death in 1987. Lopez was convicted of first-degree murder, kidnapping, two counts of sexual assault, and burglary in the 1986 killing of 59-year-old Estefana Holmes. The victim was found gagged and blindfolded in her apartment. She had been raped, sodomized, and stabbed more than 20 times before Lopez slit her throat. A new execution date was set for June 27 to allow issues raised about recent appointments to the state's clemency board to be worked out. 

Gang Member Convicted of Murder After DNA Match: Richard Winton of the Los Angeles Times reports Kevin Bernard Smith Jr., 36, a Rolling 20s gang member whose moniker is "Jazzy," was convicted this week in the 1994 murder of a man and attempted murder of the man's wife after DNA linked him to the crime scene. Smith was convicted of first-degree murder with the special circumstance allegations that the murder was committed during the course of a burglary and robbery in the 1994 killing of 73-year-old Rupert "Rudy" Thompson. Smith was also convicted of the premeditated attempted murder of Thompson's wife. Two bloodstains from the crime scene were matched to Smith through the state DNA database. At the time, Smith was serving a prison sentence in Mississippi on an unrelated drug sales charge.

Judge Grants Class Action Status to NY Frisk Suit: Larry Neumeister of the Associated Press reports U.S. District Judge Shira Scheindlin in Manhattan on Wednesday granted class action status to a 2008 lawsuit that accuses the NYPD of discriminating against blacks and Hispanics with its stop-and-frisk policies. The lawsuit claims the police department purposefully concentrated its stop-and-frisk activity on black and Hispanic neighborhoods based on their racial composition, and that officers are pressured to meet quotas as part of the program. Mayor Michael Bloomberg said, "Nobody should ask [Police Commissioner] Ray Kelly to apologize -- he's not going to and neither am I -- for saving 5,600 lives. And I think it's fair to say that stop, question and frisk has been an essential part of the NYPD's work; it's taken more than 6,000 guns off the streets in the last eight years, and this year we are on pace to have the lowest number of murders in recorded history. ... We're not going to do anything that undermines that trend and threatens public safety."

When a high profile defendant is arrested in some scandal and, after a lifetime of craving and getting publicity, won't say beans to the media, what do we hear from defense counsel?

Now here's something different.  California Governor Jerry Brown comes up with a plan to save the state money, and people who actually understand how things work are horrified and say it will be a disaster.  Okay, nothing new there.  What's different this time is that Brown actually listened and backed down.

Some years back, California had a huge number of juveniles in the state Department of Juvenile Justice.  That number has been dramatically reduced, sending most of them to local facilities instead.  But what do you do with the very worst?

Karen de Sa reports in the San Jose Mercury-News that in the Governor's original budget, he proposed closing the DJJ entirely.  It is now wrong-sized for the number of wards it has, with a staggering cost of $200,000 each. Most of the usual suspects applauded, but persons of sense were horrified.

Counties, already struggling with an influx of adult prisoners shifted to their watch under other state budget reforms, simply couldn't handle these most-difficult youths, they argued. Prosecutors warned that without state-run youth lockups, more juveniles would be sent to adult prisons.

"Often the ones going to DJJ are the most significant risk to public safety," said Karen Pank, executive director of the Chief Probation Officers of California.

In the "May revise" of the budget, the governor has backed off.

CJLF's single-subject suit against the death penalty repeal initiative got some press coverage.  Howard Mintz has this story for the San Jose Mercury News.  David Siders has this post at the SacBee.  AP has this story.

The initiative supporters, naturally, are adamant that their initiative has only one subject, but they don't seem to have coordinated with each other before talking with the press.

From the Bee:  "Former San Quentin Warden Jeanne Woodford said in a prepared statement that the ballot measure is 'about one thing and one thing only: ensuring that those who commit the most serious crimes in our state are caught and held accountable. Every aspect of the initiative is connected to that goal.' "

From AP:  "Backers of the proposition say the measure is solely about abolishing the death penalty."

Q.E.D.

Repeat Offender Sentenced to 6 Years Serves 81 Days: KGET TV 17 News reports Israel Iglesias, a six-time DUI offender, was sentenced to 6 years in jail in Kern County, but was released after serving just 81 days. "It's a break I guess, and I'm taking full advantage of that," said Iglesias. Chief Deputy Kevin Zimmerman of the Kern County Sheriff's Department said they try to save beds for the most serious offenders, and Iglesias was released early because he is considered a non-violent, non-serious, and non-sexual offender. "Since my 18th birthday I've been in and out of prison every single year for one thing or another," Iglesias said. The Kern County Superior Court website shows Iglesias has had 23 different criminal cases, and has been through at least three substance abuse programs in the last four years.

Stay of Execution Issued in Texas: Michael Graczyk of the Associated Press reports the Texas Court of Criminal Appeals on Monday gave a reprieve to Steven Staley, who was scheduled to be executed by lethal injection Wednesday for the 1989 shooting death of a restaurant manager during a botched robbery. Staley, who escaped from a halfway house in Denver, had implicated himself in the slaying in a written statement. In his appeal to the court, Staley's attorney said he was only deemed competent for execution because a state judge had ordered Staley be given drugs to make him competent. In its 8-1 ruling, the court said it had determined that Staley's execution should be halted "pending further order by this court," and gave no other reason.

Mississippi Requests 3 Executions on Consecutive Days: The Associated Press reports Mississippi Attorney General Jim Hood's office on Monday asked the state Supreme Court to set execution dates for three men on consecutive days in June after the U.S. Supreme Court refused to hear the appeals of Henry Curtis Jackson Jr., Gary Carl Simmons Jr. and Jan Michael Brawner. Tara Booth, a spokeswoman for the Mississippi Department of Corrections, said the department is capable of conducting three consecutive executions. Mississippi state law says that the state Supreme Court must set an execution date within 30 days after appeals are exhausted. 

One of the most persistent errors of people who set out to reform criminal law is the idea that the people who have committed the most horrible crimes are just like us down deep.  The Quakers created the "penitentiary" way back in the late eighteenth century believing that criminals, if confined, would be penitent and reflect deeply and remorsefully on what they had done.  After all, that is what the good Quakers would do if they had deeply sinned.

Well, they aren't like us, and they don't reflect deeply and repent.  John Christoffersen has this story for AP from Connecticut:

The Connecticut killer who once called himself one of the most hated men in America said in a death row interview that he tries not to think about the murder of a suburban mother and her two daughters, suffers no nightmares and has nothing to say to the only survivor of the brutal 2007 attack.

Joshua Komisarjevsky told The Associated Press in his first interview since he was convicted that there isn't anything he could say to Dr. William Petit "that will restore the lives lost."

He also declined an opportunity to express remorse for the killings.

"I guess my reaction is not the reaction society expected," Komisarjevsky said.

It's exactly the reaction I expected.

Crime Down Under New York Frisk Policy:  The widely criticized "stop, question and frisk" policy which has been implemented in New York over the past several months has been credited for increasing the confiscation of illegal guns by 31%  and contributing to a 21% drop in the homicide rate so far this year.  A CNN story reports that everyone is not happy with the policy.  A spokesperson for the New York Civil Liberties Union called the practice "unlawful and racially biased."  This in response to police figures showing that of those stopped and frisked, 93% were males, 54% were African American, 33% Hispanics, 9% while and 3% were Asian.  The Police Commissioner noted that 90% of murder victims last year were African American or Hispanic. 

Mexican Drug Gangs Continue Bloody War:  Luis Ochoa of Reuters reports that the brutal Mexican drug gang Zetas is claiming responsibility of 49 headless corpses discovered Sunday along a highway outside of Monterrey, the country's most affluent city.  The hands and feet of the victims has also been cut off presumably to make identification more difficult.  Last week 18 decapitated bodies were found near Guadalajara, Mexico's second largest city.  A week earlier the bodies of 9 people were found hanging from a bridge and 14 others found dismembered in Nuevo Laredo, just across the border from Laredo, Texas.  Security analyst Alberto Islas credits much of the recent violence to a fight between two drug gangs over control of cocaine from South America.  "They're fighting across the whole country with complete impunity," he said. 

CJLF has filed a challenge to the "Savings, Accountability, and Full Enforcement for California Act" initiative.

What is that, you ask?  Given the title, you will probably be surprised to learn it is the initiative to repeal the death penalty.  And that is a prominent feature of our argument.

The California Constitution provides, "An initiative measure embracing more than one subject may not be submitted to the electors...."  This initiative combines death penalty repeal with an unrelated provision to transfer $100M from the state general fund to a special fund under the control of the Attorney General.  Neither the proponents nor the Attorney General have been able to come up with a title that embraces both provisions, a strong indication they are separate subjects within the meaning of the constitutional provision.

The lead petitioner is Phyllis Loya.  Her son, Officer Larry Lasater, was murdered in the line of duty in 2005.  One of the perpetrators is on death row.

Our petition in Loya v. Bowen, C071040, is here.

The US Supreme Court issued only one opinion today, in a tax/bankruptcy case, Hall v. United States.

The orders list had one vacate and remand "in light of the position asserted by the Solicitor General" in Garcia v. United States, 11-8728.  The Fifth Circuit's unpublished memorandum opinion is here.  The issue has to do with giving a defendant a longer sentence for the purpose of rehabilitating him, related to the issue in Tapia v. United States, 131 S. Ct. 2382 (2011).

No other grants of certiorari.  All of the cases listed as capital on the Cert Pool's list were denied.

This blog is not about social issues, and I'm not going to touch with the proverbial ten foot pole the swirling controversy about gay marriage and President Obama's recent change of position.  But issues related to homosexuality are much in the news, from gay bullying in middle school to the notorious case of a Rutgers student, Dharun Ravi, who was convicted on 24 (of 35) counts of secretly recording his roommate erotically kissing another male.  Ravi thereafter had a "viewing party," inviting a few buddies over to laugh at his lovelorn roommate.  The roommate, Tyler Clementi, didn't take it so well.  Overcome by the shame and humiliation Ravi intended to produce, he killed himself.

Christopher Glazek has this piece over at n+1 that makes this astounding claim:

Crime has not fallen in the United States--it's been shifted. Just as Wall Street connived with regulators to transfer financial risk from spendthrift banks to careless home buyers, so have federal, state, and local legislatures succeeded in rerouting criminal risk away from urban centers and concentrating it in a proliferating web of hyperhells. The statistics touting the country's crime-reduction miracle, when juxtaposed with those documenting the quantity of rape and assault that takes place each year within the correctional system, are exposed as not merely a lie, or even a damn lie--but as the single most shameful lie in American life.

Now if Mr. Glazek is willing to limit his claim to the prevalence of sexual assault, it might be credible.  It is easily conceivable that sexual assault is both frequent and under-reported in correctional facilities.  But his claim is broader:  Crime has not fallen despite large increases in incarceration - rather it's merely been transferred to the world of "hyperhell" prison cells.

But the data simply does not support this assertion.

In 1991, there were 24,703 homicides in the United States.  In 1999, there were 15,522 - a decline of 9,181 (pdf).  In 2009 there were 23 homicides in the nation's jails and 55 in the nation's state prisons for a grand total of 78 (pdf).  Additionally, the Bureau of Justice Statistics reports that between 2001 and 2007 the jail inmate mortality rate declined by 13%.  

No serious person could deny that crime - including violent crime - occurs in correctional facilities and that it is wrong and abhorrent.  But the notion that the crime rate has not fallen in the United States is simply false and the data backs that assertion up quite easily. 

Rudy Giuliani has this article in the City Journal.

Wilson's idea [Broken Windows, with George Kelling] was a revelation and a reversal of the conventional wisdom up to that point. The dominant liberal theories told us that if we provided more social services to the poor, perhaps crime would get better. But Wilson suggested that instead we turn our attention to providing a better and cleaner place to live, raising the expectations of the community by improving the quality of life--and that then crime would decline.

And it did.

Human Trafficking and Sex Offender Initiative Qualifies for CA Ballot: Torey Van Oot of The Sacramento Bee reports a California initiative titled "Human Trafficking. Penalties. Sex Offender Registration." has qualified for the November ballot. The initiative increases penalties for human trafficking violations, and requires sex offenders, which includes those convicted of human trafficking crimes, to report information about their online accounts. The full text of the initiative is here.

DNA Links Serial Killer to 5 More Deaths: Tom Hallman Jr. of The Oregonian reports Randy Woodfield, dubbed the I-5 Killer, has been linked for five more murders - three in the Portland area and two in Shasta County in California. Woodfield preyed on people in towns along a 500-mile stretch of Interstate 5 in the late 1970s and early 1980s. He was sentenced to life in prison in Oregon in 1981 for the execution-style murder of one woman and the attempted murder of another. In 2001, Woodfield's DNA was linked to the 1980 murder of a 29-year-old woman. New DNA technology used by the Oregon State Police Crime Lab called Magnetic Bead Extraction linked Woodfield to two more Portland murders in 2009. Woodfield was also linked to the murder of a teenager in Oregon, and the slaying of a mother and her 14-year-old daughter in Shasta County. However, a joint decision was made among multiple district attorney's offices to not prosecute Woodfield. Rod Underhill, a senior deputy at the Multnomah County District Attorney's Office, said it made no sense to spend resources prosecuting a man already sentenced to life in prison.

Nail Scrapings Tie Killer to Third Murder: Helen Freund and C.J. Sullivan of the New York Post report James David Martin was arraigned this week in Bronx Criminal Court on murder, rape, and sodomy charges for the strangling of a 14-year-old girl in 1998. Martin is currently serving a prison sentence for strangling his live-in girlfriend and leaving her body in a shopping-center dumpster. Fifteen years before, at age 17, he choked to death a 15-year-old boy at his high school to steal the victim's shoes. DNA collected from the victim's nail scrapings retrieved from evidence storage linked Martin to the crime. "He just turned 40," the victim's foster mom said of Martin. "And he already has killed three people. They need to bring the electric chair back and fry him."

Justice Department Sues Arpaio: Walter Berry of the Associated Press reports the U.S. Justice Department filed a lawsuit Thursday against Arizona Sheriff Joe Arpaio and his Maricopa County office over allegations of civil rights violations and racial profiling. Federal officials said in the 18-year history of the DOJ's police reform efforts, only once before has the agency filed a lawsuit against a police department that they failed to reach an agreement with. The lawsuit means a federal judge will now rule on the matter.

Condemned California Serial Killer to Face Murder Charges in New York: Jennifer Peltz of the Associated Press reports the California Supreme Court on Wednesday cleared the way for death row inmate Rodney Alcala to be extradited to New York to face charges in two 1970s killings. Alcala was sentenced to death for strangling four women and a 12-year-old girl in Southern California - killings that prosecutors say were accompanied by sexual abuse and torture. The Manhattan district attorney has charged Alcala with murdering two 23-year-old women. A conviction in New York wouldn't affect Alcala's death sentence in California, but a conviction would be insurance in case Alcala won an appeal in his death sentence case.

Never one to abjure taxpayer financed grandstanding, Gov. Lincoln Chafee apparently plans to seek Supreme Court review of the First Circuit's en banc decision that Rhode Island must hand over to federal authorities Jason Pleau, the fellow accused of gunning down a gas station manager in 2010.  Chafee had previously refused to do so on the theory, I guess, that Rhode Island's "states rights" ought to be used to make the state over into a sanctuary for murder.  (The federal prosecutor may seek the death penalty, which is not available in Rhode Island). 

Rachel Weiner has this post at the WaPo's political blog.  It was so wild I had to double-check to make sure I wasn't actually reading The Onion.

Keith Judd, who is serving a 17 1/2-year prison sentence for extortion at the Federal Correctional Institution in Texarkana, Texas, took 41 percent of the vote in West Virginia's Democratic primary Tuesday night -- 72,000 votes to Obama's 106,000. He would qualify for convention delegates, if anyone had signed up to be a Judd delegate. (No one did.)

Twitter Fights Prosecutors' Attempt to Access Occupy Protester's Tweets: The Associated Press reports Twitter filed court papers Monday asking a judge to dismiss a subpoena in which the Manhattan district attorney ordered the company to produce now-deleted tweets posted by Malcolm Harris, who was arrested during an Occupy Wall Street protest last fall. Prosecutors say the tweets might show whether Harris was aware that police had ordered protesters not to march across the Brooklyn Bridge. The argument is whether Twitter or Harris owns the posted tweets.

Appeals Court Rules Illegal Immigrants Can't Have Guns: The Associated Press reports the 10th U.S. Circuit Court of Appeals ruled Monday that illegal immigrants don't have a right to own firearms, and have only limited protection, under the U.S. Constitution. The ruling came in the case of Emmanuel Huitron-Guizar of Wyoming, who pleaded guilty to being an illegal immigrant in possession of firearms and was ordered held by immigration authorities. An attorney for Huitron-Guizar appealed the case, saying illegal immigrants should have the same rights to buy a gun for hunting and protection as U.S. citizens, and that illegal immigrants were not specifically excluded from possessing firearms like felons and those who are mentally ill. Huitron-Guizar's says he plans to appeal to the U.S. Supreme Court.

Changes to Canadian Prison Policies Announced: Carys Mills of The Globe and Mail reports Canada's Public Safety Minister, Vic Toews, announced on Wednesday new prison measures that he says will save a total of $10 million a year. Among the changes are charging some inmates more for their stay in prison, eliminating "incentive pay" for meeting production quotas for certain inmate jobs, and ensuring offenders pay for their phone calls.

Sheriff Says Realignment is Straining Santa Barbara County: Lara Cooper of Noozhawk reports Santa Barbara County Sheriff Bill Brown and Probation Chief Beverly Taylor told their Board of Supervisors Tuesday the county has seen 24 percent more state prisoners than originally expected, and the department is continuously releasing offenders early due to lack of space in the county's jail. With AB109, "we end up getting people that cannot be released," Brown said. "We're running out of people who are good bets to push out early." In March, one man was given a sentence of 23 years to be served in the Santa Barbara County Jail.  

The Senate has confirmed District Judge Jacqueline Nguyen of Los Angeles for elevation to the Court of Appeals for the Ninth Circuit.  Todd Ruger has this post at BLT.

Because the Ninth Circuit's dismal record on habeas corpus, especially in capital cases, is a major problem, we at CJLF are particularly interested in a nominee's views on this subject.  I checked Judge Nguyen's decisions in the area when she was first nominated.  They all appeared to be routine denials of meritless claims.  Not terribly enlightening, but not a cause for concern either.

The Ninth is better than it used to be.  The judges appointed by President Clinton have -- on average with notable exceptions -- been better than those appointed by President Carter.  President Bush made generally good appointments though not uniformly so.  It's too early to say anything about President Obama's appointments as a whole.  Let us hope that we make further progress toward bringing this court out of the wilderness and back to the mainstream.

Border Patrol Announces New National Strategy: Elliot Spagat of the Associated Press reports the U.S. Border Patrol agency announced on Tuesday its new strategy to target repeat border crossers. The new strategy, which took more than two years to develop and is the agency's first in eight years, focuses on ending the revolving-door policy of sending people back to Mexico with no other punishment. Border Patrol will begin imposing more serious consequences on most people it catches. Chief Mike Fisher also said the agency is moving towards more mobile surveillance, like unmanned aerial vehicles and helicopters. The new strategy also makes identifying corrupt agents a top priority.

CA Judge Talks About Reality of Early Releases: Tim Daly of News10/KXTV reports Judge Richard Guiliani of San Joaquin County said due to realignment and a court order that limits the number of people allowed in the San Joaquin County jail system, he has to decide every day whether to keep or release those on technical parole violations and those who have committed new crimes. Guiliani also said that parole violators have figured out how to get back onto the streets quicker. If they ask for a full hearing before a judge they are kept in jail during that process, but if they accept the maximum sentence, their stay in jail will actually turn out to be much shorter. "Everybody knows if they accept 150 days, that means they're out immediately, almost," said Guiliani.

Federal Appeals Court Rules Rhode Island Inmate to Face Federal Prosecution: Laura Crimaldi of the Associated Press reports the U.S. 1st Circuit Court of Appeals ruled Monday Rhode Island Governor Lincoln Chafee must surrender Jason Pleau to federal authorities so he can stand trial in federal court. Rhode Island does not have the death penalty, and Chafee said prosecutors want to try Pleau federally so a death sentence could be possible. Pleau is accused of fatally shooting a gas station manager outside of a bank in 2010. Chafee refused a request to surrender Pleau to federal authorities in June, 2011. Pleau is currently serving an 18-year sentence in state prison in Rhode Island for violating his probation in another case.

CDCR Asks for Prison Medical Care Oversight to End in 30 Days: Julie Small of KPCC reports attorneys for California Corrections officials on Monday filed a 43-page plan to end the federal oversight of prison medical care. They asked U.S. District Judge Thelton Henderson, who seized control of the state's prison healthcare system nearly a decade ago, to relinquish control in 30 days. The press release from the CDCR, which includes a link to a copy of the report, is here.

San Bernardino County DA Speaks Out Against Death Penalty Initiative: Mike Cruz of the San Bernardino Sun reports San Bernardino County, CA  District Attorney Michael Ramos says fighting a ballot initiative that would end the death penalty in California is his priority right now. Ramos said the title of the SAFE California Act is misleading and proponents are taking advantage of the tough economic times California is experiencing. He pointed out that the nonprofit RAND Corp. found no objective data regarding the true cost of the death penalty. Ramos said statewide, 41 death row inmates killed police officers, 141 killed children and 135 sexually assaulted and raped their victims. He does think the death penalty system needs to be fixed to prevent appeals just for the purpose of delay, and believes a single injection method should be used. "It's a humane way," he said. "It basically puts them to sleep. I will tell you this, our victims didn't have that choice. They didn't get to say goodbye to family members."

Litigating for Terrorists: John Yoo had an opinion piece last week in The Wall Street Journal with the same title about being sued by a convicted American al Qaeda operative. A San Francisco trial judge had ruled José Padilla, who was convicted and sentenced in 2007 for running U.S. terrorist cells, had the right to sue Yoo for his legal advice that the Constitution allows Americans who join al Qaeda to be detained. When Yoo decided to go forward with an appeal, the Justice Department withdrew as his legal counsel. A three-judge panel of the Ninth Circuit Court of Appeals unanimously agreed last week that Padilla could not sue Yoo, who discusses the nation's future of fighting against enemies in a post-9/11 world.  "If we are to prevail in this unprecedented war, those elected and appointed to office must show that they will protect those who fight. Worrying about future lawsuits will distort official decision-making, which should balance the costs and benefits to the national interest and not worry about personal liability. No one will ever sue a government official for doing nothing, even as dangers loom," he wrote. The case is Padilla v. Yoo.   

The DEA is controversial mostly because the war on drugs is controversial, particularly among libertarians.  Very occasionally, DEA earns the heat it gets.  In one recent shocking case, it left a young man in a holding cell for five days without food, water or access to a toilet.  Fortunately he survived, and the DEA is going to take a fully justified hit. 

The prescription painkiller business was booming in 2009, making millionaires of Chris and Jeff George, twin brothers who operated several pain clinics in South Florida. Unfortunately for them, their customers had a tendency to die, and not always in a subtle fashion.

In November of that year, three customers were on their way to a George brothers' clinic when the driver tried to weave her Toyota Camry through the lowered arms of a train crossing. The car was struck by commuter train going 79 mph. The driver and a passenger were ejected from the vehicle and died at the scene. The third occupant died six months later.

An associate of the Georges who read about the accident in the paper called Chris George to break the news. "Did it say they were pain clinic people?" George asked.

*********************************

South Florida -- and the Georges, in particular -- were the vanguard of what the Centers for Disease Control and Prevention calls an "epidemic" of oxycodone addiction and death -- one that had attacked America more suddenly than any drug has before.

In 2008, prescription painkiller overdoses killed 14,800 Americans. In 2009, when the George clinics were at their peak, opioid abuse propelled a ghastly rise in the number of drug-related deaths nationwide. That year, 37,485 Americans died from narcotics overdoses -- a figure that for the first time surpassed the number of deaths from car accidents.

CA Bill Would Allow Offenders to be Housed in Contiguous County: John Ellis of the Fresno Bee reports Assembly Member Henry T. Perea introduced a bill, AB 1393, encouraged by Fresno police, that would change state law, allowing police to book suspects in counties other than the county in which they were arrested. While the bill would apply to any county in the state, Perea is not certain if any other counties besides Fresno and Madera counties would be affected by the bill. According to Fresno police Chief Jerry Dyer, between 2009 and 2011, over 30,600 inmates have been released from jail early due to overcrowding. The current concern is who would pay for the incarceration if the bill passed. A full copy of AB 1393 can be found here.

Sex Offender's Failure to Report Change of Address OK'd as 3rd Strike: Bob Egelko of the San Francisco Chronicle reports the Ninth U.S. Circuit Court of Appeals in San Francisco decided Friday, in the case of Courtney Crosby, that failure by a sex offender to report a change of address to police within 5 working days justifies a life sentence under the California three-strikes law. By contrast, a federal appeals court in 2008 ruled failure by a sex offender to report to police once a year was only a technical violation and too minor to justify a life sentence under the state's three-strikes law.

Smell of Marijuana Not Enough for Police to Enter Without Warrant: Bob Egelko of the San Francisco Chronicle reports the CA Second District Court of Appeals ruled 3-0 Wednesday that merely smelling marijuana is not enough for police to enter a residence without a warrant. While there are some circumstances when an emergency warrantless search is appropriate,   possession of marijuana is not a serious enough offense to make it allowable. The justices stated smelling marijuana only enabled police to discern that someone in the room was burning marijuana.  However, the justices failed to mention the U.S. Supreme Court's decision in Kentucky v. King in 2011. In  that case, the court ruled 8-1 that police who smelled marijuana outside of a residence were justified in forcibly entering a residence without a warrant to prevent the destruction of evidence. In this case, the Supreme Court did not mention any distinction between crimes which were punishable by imprisonment in contrast to a fine. Kentucky v. King is not expected to affect the California Second District Court of Appeal's decision. The California attorney general's office is currently reviewing the ruling. The full ruling can be found here.

Ex-Death Row Inmate Going Back to Prison for Threatening Judge: The Associated Press reports Ken Richey, an ex-death row inmate from Scotland, was sentenced Monday to the maximum sentence of three years after pleading guilty to a retaliation charge. Richey left a threatening voice mail for Putnam County Judge Randall Basinger, who prosecuted Richey's original case, saying he was "coming to get him." Judge Basinger said Richey made many threats against him, as well as others. Richey was released four years ago after a federal court ruled his lawyers mishandled his case and overturned his conviction of starting a fire that killed a 2-year-old girl in 1986. Richey was ordered to stay away from the northwest Ohio county and anyone involved in the case, Basinger included. Judge Basinger said Richey "has never taken responsibility for any of his actions, has blamed others for the crimes that he commits, and consistently misrepresents the events of his criminal activity."

The Washington Post features an article describing defense counsels' antics at the military commission trial of Khalid Sheik Mohammed and his confederates for plotting 9-11.  The story thus far is, perhaps not surprisingly once you think about it, somewhat standard fare:  Counsel want to talk about everything except what their clients were up to.  That's routine stuff for criminal defense.  For all you could tell from counsels' interviews with the press, they might as well be talking about knocking over the gas station.  The enhanced opportunities for street theater are not that far off, however.

[Defense lawyer Cheryl] Bormann also asked in court that a female member of the prosecution team dress more modestly, saying her clothing was a distraction for the defendants and might cause them to "commit a sin" by looking at her. Three women on the prosecution side wore knee-length skirts.

The Citizens United case has riled the Left at least since President Obama gave his on-high, if not particularly accurate, scolding to the Supreme Court  -- or at least those members of the Court having the misjudgment to think they could attend the State of the Union speech without being lectured like a bunch of misbehaving first graders.

The Supreme Court recently heard oral argument in the Dorsey case, in which it will resolve a 3-3 circuit split on whether the Fair Sentencing Act, known in some parts (to wit, my files) as the Crack Dealers Bonanza Act, will apply retroactively to those who committed their offenses before the Act was signed in August 2010, but were sentenced thereafter.

The courts and Congress alike will use the Court's decision in this case as a guide in determining the retroactivity of future ameliorative legislation. The government has acknowledged the FSA contains no explicit directive to impose its more lenient penalties retroactively. The interpretative question in this case, and for others to come, is how greatly a court must strain to find implicit support for retroactive application of an ameliorative statute.

If the Court reads any of the possible indicia of implicit support for retroactive application of the FSA § 8, § 10, the legislative history, or public policy as grounds to interpret the FSA as petitioners suggest, future courts will likely be more amenable to finding implicit support for retroactivity in the legislative history of ameliorative legislation. Conversely, if the Court affirms the Seventh Circuit decision, it will set an expectation of clearly expressed intent for both Congress to articulate in drafting and courts to consider in interpreting ameliorative statutes.

Adam Liptak has this story with the above title in the NYT.  Oral arguments are the visible part of the Supreme Court's decision process, so they get the most attention.  But are they the most important?  No, not by a long shot.

"Oral arguments are in any event far less important than the written briefs."

The story is prompted by the oral argument in the health care case, in which the advocate for the "liberal" side got beaten up while the advocate for the "conservative" side had a smooth trip.  The basic principle, though, has long been known.

Years ago, Tony Mauro began his end-of-term summary with a statement to the effect that the term had shown us some stunningly bad oral arguments and how stunningly little that matters.  The lawyer called on carpet by C.J. Rehnquist won his case, as did another who had had a very rough time.

Ohio Senate Approves Parole Notification Law: Rebecca McKinsey of The Colombus Dispatch reports the Ohio Senate voted unanimously on Thursday to approve Roberta's Law, which would create a mandatory notification system to victims and their families when the offender in their case is being released or having a parole hearing. The law is named after Robert Francis' daughter Rebecca, who was 15-years-old when she was raped and beaten to death by Paul Raymond Saultz in 1974. Saultz had just been released from a state mental hospital for molesting a 12-year-old girl. He was paroled after serving 30 years for his crime against Rebecca, and two years later he molested another girl. Francis did not know Saultz had been paroled until he read about it in the newspaper. Current law allows victims and families to voluntarily enroll in a notification system. Roberta's Law would automatically inform victims and families unless they opt out of the system. The measure would apply to offenses punishable by a life-imprisonment sentence.

Oklahoma in Need of Execution Drugs: Andrew Knittle of the Oklahoman reports the Oklahoma Corrections Department has only a single cocktail of drugs left in stock for executing inmates. Corrections Department officials and the state attorney general's office say there is no firm plan in place if pentobarbital or a suitable replacement cannot be found, but options are being explored. There are currently no more executions scheduled in the state for the rest of the year.

Significant Questions Arise Over DNA Sampling Laws: Lyle Denniston of SCOTUSblog has this piece about Maryland officials preparing to appeal to the Supreme Court regarding the right to collect DNA samples from those who have been arrested but not yet convicted of a crime, if the state's highest court does not reconsider its decision partially banning that procedure. Denniston points out six of the most significant constitutional issues that have arisen over similar DNA sampling laws. Maryland's attorney general said the decision by the Court of Appeals could affect the use of evidence that could help solve "190 unsolved cases."

Montana Board Hears Mercy Case for Canadian on Death Row: David Murray of the Great Falls Tribune reports convicted murderer Ronald Smith, who has admitted to being the gunman in two 1982 murders, had his clemency hearing before the Montana Board of Pardons and Parole Wednesday, asking to have his death sentence commuted to life without the possibility of parole. In August of 1982, Smith and two friends illegally crossed into the U.S. from Canada, armed with a sawed-off .22 caliber rifle. After befriending two Blackfeet men, they marched the men a few hundred yards off the side of a highway, and shot them in the head at point blank range. During court proceedings in 1983, Smith said he had wanted to feel "what it would feel like to kill someone." He rejected a plea agreement and requested the death penalty, and was sentenced to death in 1983. But Smith changed his mind a few weeks after sentencing, and has been challenging his death sentence since. "It is not our intent here today to in any way minimize the significance or severity of the crimes committed by Mr. Smith," said attorney Ron Waterman. "Simply, it is a request for mercy." Relatives of the victims said the murders have forever scarred their families, and the dragging on of the case continues to cause them anxiety. A decision will be made within 30 days.

Missouri Legislature Approves Changes to Probation Policies: Virginia Young of the St. Louis Post-Dispatch reports the Missouri Legislature on Wednesday passed a measure with the goal of saving the state money by reducing its prison population and increasing community supervision. Probation officers can sentence offenders to short jail stays for minor violations, such as failing a drug test, as long as the county jail has space. The state will pay counties $30 a day to house these types of inmates. More serious violations could result in a 120-day sentence in state prison, an option judges would be required to try before revoking probation. Also, for every 30 days of compliance, an offender will have their supervision period shortened by 30 days. These new policies will only apply to those convicted of certain drug offenses and lower-level C and D felonies. Those convicted of certain felonies such as aggravated stalking and sexual assault are excluded.

Case for a Citation Against Holder Distributed to Committee: CBS News reports a briefing paper and 48-page draft citation, laying out the case for declaring Attorney General Eric Holder in contempt over the Fast and Furious "gunwalking" operation, were distributed to members of the House Oversight Committee Thursday. The documents allege the Justice Department has issued "false denials, given answers intended to misdirect investigators, sought to intimidate witnesses, unlawfully withheld subpoenaed documents, and waited to be confronted with indisputable evidence before acknowledging uncomfortable facts."

Manure Used to Stop Protests at Santa Monica College: KTLA News reports students from Santa Monica College are accusing school officials of laying fresh manure on the grass and then watering the campus lawns to prevent protesters from gathering. Students had planned to camp out on campus Monday night. The school's director of facilities, J.C. Saunders-Keurjian, said the manure was a "coincidence." Santa Monica College spokesman Bruce Smith said the manure was a non-issue anyway, since the city of Santa Monica prohibits camping on public property.   

The Los Angeles District Attorney has filed a motion in LA Superior Court to set execution dates for two murderers -- Mitchell Sims and Tiequon Cox -- and to direct that the execution be carried out with a single-drug protocol.  The DA's press release is here.

The legal theory in this motion is, in part, the same as in CJLF's petition for writ of mandate, noted in this post.  The California Department of Corrections and Rehabilitation has a duty to execute these sentences.  While that department has broad discretion on the specifics, continuing to litigate the enjoined three-drug protocol for years after the federal court has given the go-ahead to resume executions with a one-drug protocol is an abuse of that discretion.

The other problem is the Administrative Procedure Act.  California Supreme Court precedent is clear that APA litigation cannot be used to block enforcement of the underlying law.  Even if the implementing regulation is invalid, the court can and should enforce the underlying statute, even if the court's decision is the same as the APA-noncompliant regulation.  Judicial action is not subject to the APA.

There are 14 California murderers who have completed all the normal reviews of their cases.  The crimes and cases are described in this document.

Update:  Dan Whitcomb of Reuters has this article on the motion.  He quotes Richard Dieter of the Death Penalty Half-Truth Center expressing skepticism and saying, "It's not as simple as just changing to one drug."  Of course it's not as simple.  There is the Administrative Procedure Act question, but the motion addresses that.  I suspect Dieter was reacting to a one-line summary without reading the actual motion, tempting but always dangerous.

The US Supreme Court today denied a stay of execution to Anthony Bartee, who murdered David Cook in San Antonio 15 years ago just because he wanted Cook's Harley.  No dissent is noted.  Michael Graczyk has this earlier story for AP.  Update:  Michele Mondo at the San Antonio Express-News has this story on a last-minute stay by a federal district judge for yet more DNA testing.  Update 2:  Michael Graczyk has this follow-up story for AP.

Over at the loony lefty Daily Kos, a blogger by the handle of laserhaas writes: