We have been informed that California Attorney General Kamala Harris has chosen Gerald Engler as the Chief Assistant Attorney General for the Criminal Division, succeeding Dane Gillette (retired).

Outstanding choice.

Federalist Society Convention

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The annual National Lawyers Convention of the Federalist Society is November 13-15 at (as always) the Mayflower Hotel in Washington.  The FedSoc website has the highlights and the full schedule.

Justice Scalia will deliver the opening address.  Justice Alito will speak at the black-tie dinner. 

The annual Rosenkranz debate will be on collection of phone records and the Fourth Amendment with former Attorney General Michael Mukasey against former ACLU President Nadine Strossen.

Mr. Mukasey will also be on the panel put on by the Criminal Law Practice Group (of which I am a executive committee member and former chairman).  He will be partnered with the notorious Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center (and sometime blogger).  John Malcolm of Heritage Foundation and Marc Levin from Texas Public Policy Foundation are also on the panel, with Judge William Pryor moderating.

The Civil Rights Practice Group's panel also has a criminal-law related theme, sexual assault on campus, and unfortunately it is scheduled at the same time.  I would especially like to hear Heather MacDonald.  (Pardon me if I duck out, Bill.)

Former Senator and D.C. Circuit Judge James Buckley will close out the event.

Memo to burglars:  My home will be occupied in my absence, and the occupants are armed.

News Scan

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Cold-Case Murder Suspect Found Guilty: An Ohio man named as the prime suspect in a 1990 cold-case rape and murder has been found guilty of the crime and sentenced to life in prison.  WLWT News reports that 57-year-old Timothy Sellers was linked to the murder through DNA evidence in 2002, but a series of errors prevented police from launching a full investigation until 2010.  Sellers will have a chance at being paroled after serving 20 years behind bars.

OK Sets Execution Date for Convicted Killer: An Oklahoma man sentenced to death for the murder of  a 9-month-old baby in 2002 is scheduled to be executed March 5, 2015.  Glenn Puit of CNHI News Service reports that Robert Cole Jr. told authorities that he killed his infant daughter because her crying was interrupting his video game playing.  The coroner revealed that the infant's back was broken and her heart ruptured after Cole intentionally bent the child backwards and in half.  Cole has exhausted all of his appeals and a request for a stay of execution has yet to be filed. 

Convicted Murderer Arrested by Border Patrol: Border Patrol agents in Texas have arrested a convicted murderer who had entered the U.S. illegally after being deported in 2009.  Kristin Tate of Breitbart reports that Francisco Rodriguez-Garcia was convicted of second-degree murder in North Carolina in 1997, he served 12 years for the killing and was deported immediately following his release.  So far in 2014, Border Patrol agents have arrested dozens of convicted felons who have entered the U.S. illegally after being deported.

Yet? What's With the Yet?

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Rocco Parascandola and Thomas Tracy have this story in the New York Daily News:

Arrests for minor crimes across the city have skyrocketed over the last three decades, a report conducted by John Jay College of Criminal Justice shows.

"Crime is down to historic lows," John Jay President Jeremy Travis said about the study. "Felony arrests have dropped in half, yet the rate of misdemeanor arrests has tripled."
Yet?  Would anyone say, "Major house fires have dropped sharply in newly constructed housing, yet building codes now require sprinkler systems."

It's speculated that many of the arrests are a product of the broken windows theory to policing, which was first mentioned in 1982.
That wins the Well, Duh! Award for the day.  Speculated?

Thomas Reppetto, a NYPD historian, said "broken windows" was "designed for a different era," when drug dealers controlled neighborhoods and violent crime was rampant.
It is indeed a different era, and "broken windows" policing is a major part of why.

SCOTUS Stays Missouri Execution

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Last night the U.S. Supreme Court acted on two petitions from Missouri rapist and triple murderer Mark Christeson.  See description of the crime here.  There is no doubt about the justice in this case.  Guilt is conclusively proved by DNA, and the crime clearly warrants the penalty.  The Court is apparently satisfied that the lawyers purporting to represent Christeson actually do.  See prior post here.

In Supreme Court case 14-6878, the Supreme Court denied review of Eighth Circuit case 14-2220.  That case has to do with disclosure and compounded pentobarbital.

In Supreme Court case 14-6873, the Supreme Court granted a stay to allow it to decide whether to review Christeson's habeas petition, denied as untimely by the district court.  The Eighth Circuit denied a stay in case 14-3389. 

This case presents issues of representation of prisoners.  The Supreme Court opened a can of worms in its Martinez and Trevino decisions when it said that ineffectiveness of state collateral review counsel can be "good cause" for a federal court to consider a claim defaulted in state court.  If the same lawyer represents the prisoner in both proceedings, can he be expected to argue his own ineffectiveness?  But how many new lawyers are we going to appoint for one defendant?  We already say that trial counsel can't continue into habeas for this reason.  Is every defendant going to get another new lawyer for federal habeas, and will justice be delayed and denied in every capital case while that lawyer gets up to speed?  That could be some time, given how complex capital cases can be.

Note that this problem is not entirely limited to capital cases.  Martinez was not a capital case.  The problem of justice being delayed while the case is litigated is limited to capital cases, but the underlying conflict issues are not.

The Christeson case involves the related issue of appointed counsel missing the deadline to file the federal habeas petition, as distinguished from the state-court procedural defaults in Martinez and Trevino.
Kimberly Kindy reports in the WaPo:

A forensic pathologist quoted in a St. Louis Post-Dispatch story about the shooting death of Michael Brown said some of her statements concerning the autopsy were taken out of context.

Judy Melinek was quoted about the volatile case in which Brown -- black, 18 and unarmed -- was fatally shot Aug. 9 by Darren Wilson, a white Ferguson, Mo., police officer.

Last week's Post-Dispatch report, which focused on St. Louis County's official autopsy of Brown and an accompanying toxicology report, relied on unidentified sources with knowledge of the county's investigation of the shooting, leaked autopsy documents, and quotes from Melinek and others. The Post-Dispatch has said it stands by its reporting, including Melinek's comments.

But Melinek said she did not assert that a gunshot wound on Brown's hand definitively showed that he was reaching for Wilson's gun during a struggle while the officer was in a police SUV and Brown was standing at the driver's widow, as the Post-Dispatch reported.

"He sat in a room, and he lied to me"

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In practical terms, the most important outcome for the cause of justice next week is control of the U.S. Senate, but in terms of "just deserts," the outcome I most want to see is for the people of Colorado to toss their profoundly dishonest Governor John Hickenlooper out on his ear.  Dennis O'Connor, whose 17-year-old daughter was one of four people murdered by Nathan Dunlap, explains why in this 30-second ad now being run on television by the Republican Governors Association.

A longer version for the internet is here.

Guy Benson has this article at Town Hall.

Texas Execution

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AP reports:

The U.S. Supreme Court denied the last-chance appeal of a former gang member scheduled for execution Tuesday evening after his defense attorneys argued that the man, who was convicted of killing three rivals 14 years ago in San Antonio, is mentally impaired.
The court denied a stay for Miguel Paredes in a brief order released Tuesday. Paredes, 32, was convicted along with two other men in the September 2000 shooting deaths of three people with ties to the Mexican Mafia. The victims' bodies were rolled up in a carpet, driven about 50 miles southwest, dumped and set on fire. A farmer investigating a grass fire found the remains.
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Paredes' attorney, David Dow, said the execution should be stopped because Paredes had "a significant mental disease" that may have affected his judgment when he told his previous lawyer 10 years ago not to investigate his family background. Dow also told the Supreme Court that Paredes' previous lawyer was deficient for not investigating the inmate's medical history.

In a response filed Tuesday morning, state lawyers said Paredes "presented no evidence that he is or ever has been mentally ill or incompetent," and that his earlier attorney couldn't be considered deficient when he "abided by Paredes' explicit instructions." Lower courts have sided with the state, which also noted that the latest appeal was filed after a deadline.
Unfortunately, the news story does not say what this "significant mental disease" is.  Update:  The Fifth Circuit's opinion indicates it is Dysthymic Disorder, which is kind of junior varsity depression.  Sorry, that is nowhere near severe enough to warrant reopening proceedings at this late stage.

Justice Breyer was recused from the case.  No dissent is noted.

Update 2:  Michael Graczyk reports for AP that the execution has been completed.

Another Unauthorized Filing?

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Here we go again.  Mark Christeson has a well deserved date with the Missouri execution team tomorrow.  See description of the crime here.  The usual last minute applications have been filed with the Supreme Court, but do the lawyers filing them really represent Christeson?  Justice Alito, the assigned Circuit Justice for the Eighth Circuit, including Missouri, wants to know.

See this post regarding the Ballard case in Pennsylvania last August.

News Scan

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Convicted Felons Arrested for Child's Murder: Police in Florida have arrested the two men they believe to be responsible for this month's drive by killing of a five-year-old boy.  Barry Miller of Fox 4 reports that the two men, both convicted felons, have been booked into jail dozens of times for crimes such as homicide, being a felon in possession of a handgun, battery of a law enforcement officer, and vehicle theft.  Both men have been charged with second degree murder.

Inmates set to be Executed in Texas, Missouri: Two U.S. death row inmates, one in Texas and the other in Missouri, are set to be executed within the next 24 hours.  Jon Herskovitz of Reuters reports that the Texas inmate, 32-year-old Miguel Paredes, was convicted in 2000 of murdering three people and is scheduled to be executed Tuesday evening.  The Missouri inmate, 35-year-old Mark Christeson, was convicted of killing a woman and her two children nearly two decades ago, he is scheduled to die by lethal injection early Wednesday morning.

Convicted Cop Killer Sentenced to Life: A Florida man convicted of murdering an off-duty police officer in 2008 has been sentenced to life in prison for his crime.  Andrea Torres of Local 10 News reports that 28-year-old Andrew Rolle shot the officer after mistakenly identifying him as a rival gang member.  Rolle was already serving a 50-year prison sentence after being found guilty in two separate armed robberies.

Yes, Voter Fraud Is Real

Hans von Spakovsky has this op-ed in the WSJ:

In the past few months, a former police chief in Pennsylvania pleaded guilty to voter fraud in a town-council election. That fraud had flipped the outcome of a primary election. Former Connecticut legislator Christina Ayala has been indicted on 19 charges of voter fraud, including voting in districts where she didn't reside. (She hasn't entered a plea.) A Mississippi grand jury indicted seven individuals for voter fraud in the 2013 Hattiesburg mayoral contest, which featured voting by ineligible felons and impersonation fraud. A woman in Polk County, Tenn., was indicted on a charge of vote-buying--a practice that the local district attorney said had too long "been accepted as part of life" there.

News Scan

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Accused Cop Killer Had Been Deported Twice: Federal immigration authorities report that the man believed to be responsible for last week's crime spree in Northern California that left two police officers dead and another wounded was in the U.S. illegally, and had been deported back to Mexico twice before.   Andreas Preuss and Michael Martinez of CNN report that 34-year-old Marcelo Marquez and his wife led police on an hours-long chase through Sacramento and the Sierra foothills Friday afternoon.  When arrested in Auburn, in addition to murdering the  two police officers and wounding a third, they had attempted three separate carjackings, and shot a civilian in the head.  Marquez had been deported from the U.S. in 1997 after a narcotics conviction and was deported again just four years later.  Marquez and his wife are currently being held in county jail without bond. 

Convicted Killer Denied Clemency:   An Oklahoma man convicted of murdering his boss more than a decade ago has been denied clemency by the state's Pardon and Parole Board.  Graham Lee Brewer of The Oklahoman reports that 51-year-old Richard Glossip feared that he was going to be fired from his job and devised a plan to have the owner of the hotel he worked at killed.   He enlisted the help of the hotel's maintenance man who ultimately killed the owner and testified against Glossip in exchange for a sentence of life without parole.  Glossip is scheduled to be executed on January 29, 2015.

DUI Driver that Killed Teen had Suspended License: The California man believed to be responsible for killing a teen in this weekend's chain-reaction DUI crash in Santa Ana was driving on a suspended license because of a prior DUI conviction.  Tracy Bloom and Lynette Romero of KTLA News reports that 23-year-old Herbert Calderon ran a red light Saturday evening and caused a three-car crash that left five people injured and a popular high school student dead.  Calderon is facing charges of vehicular manslaughter and DUI and is currently being held in county jail without bond.  

Unexplained Orders

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Adam Liptak has this column in the NYT:

People used to complain that Supreme Court decisions were too long and tangled. Those were the days.

In recent weeks, the court has addressed cases on the great issues of the day without favoring the nation with even a whisper of explanation. In terse orders, the court expanded the availability of same-sex marriage, let a dozen abortion clinics in Texas reopen, and made it harder to vote in three states and easier in one.

Judges and lawyers who used to have to try to make sense of endless, opaque opinions now have to divine what the Supreme Court's silence means.
The orders in question are temporary.  Eventually, we can expect, the issues in these cases, and possibly the cases themselves, will be decided by the Supreme Court in full-length opinions.  Yet temporary orders can have very long-lasting effects. 
One of the major themes of abolitionism is that because the death penalty unavoidably risks killing the innocent  --  and that sooner or later this is bound to happen  --  it must end.

The premise is right.  The conclusion is wrong.  It rests on the tacit view that the government's killing the innocent is an unacceptable price to pay, no matter how just the cause otherwise might be.

There are two problems.  One is that this view is false.  The other is that, not unrelatedly, almost no one believes it.

This was brought home to me graphically this weekend, when I read this article in the New York Review of Books.  As a nation, we killed thousands of innocents because, though it was a mind-bending moral price, it was worth it, given the stakes.

Monica Still Yacking, WaPo Still Spinning

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Kent wrote this post about how the Washington Post (WaPo) published a blatantly biased story about this week's Gallup poll  --  the one that shows continuing overwhelming public support for the death penalty.

I was peaceably eating lunch today when I saw this WaPo story about how Monica Lewinsky was "mistreated" by the FBI when they first interviewed her. The story starts:

When onetime White House intern Monica S. Lewinsky broke her silence with a major speech this week, one subject brought her nearly to tears.

Lewinsky's voice cracked as she recalled the moment in January 1998 when she was first confronted by FBI agents and lawyers working for Kenneth W. Starr's Office of Independent Counsel, who threatened her and her mother with criminal prosecution if she did not agree to wear a wire against President Bill Clinton.

Lewinsky, now 41, has long felt that she was mistreated by authorities in the 12-hour marathon session, which began as an ambush at the food court at the Pentagon City mall and then moved to a hotel room at the mall's adjoining Ritz-Carlton hotel.

Sounds  pretty bad, right?  I mean, this behavior has to be a gross violation of Ms. Lewinsky's constitutional rights.

Well, ummmmm.......

Scratch One From the AG Short List

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Carol Lee reports in the WSJ:

Former White House counsel Kathryn Ruemmler has withdrawn her name from consideration as President Barack Obama 's nominee for attorney general, a White House official said Friday.

Mr. Obama had asked Ms. Ruemmler to consider succeeding Eric Holder, who announced last month he would step down as attorney general when a replacement is confirmed. But Ms. Ruemmler, who was at the center of every legal decision made by the White House in Mr. Obama's second term, concluded her closeness with the president would make Senate confirmation difficult and create a bitter partisan fight, the White House official said.

Ms. Ruemmler spoke directly with Mr. Obama on Wednesday to inform him of her decision, after speaking earlier in the week with senior White House officials about her concerns, a person familiar with the discussions said.

Mr. Obama is expected to name a nominee after the Nov. 4 election.

Other potential picks for the attorney general post include Solicitor General Donald Verrilli, Labor Secretary Tom Perez and Brooklyn U.S. Attorney Loretta Lynch.

Of course, if the President actually wants a "bitter partisan fight," he can nominate Perez.  I don't know why he would, but why else is he waiting until after the election?

Wouldn't it be a nice boost to Democratic candidates in close Senate races if the President nominated a solid, accomplished person, highly respected across the board in the law enforcement community?  Sure, the candidates could stand up proudly before the swing voters and say "yes, that's the kind of nominee I will gladly support."  If that were the kind of person he wanted to nominate, he would have done so already.

News Scan

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Convicted Sex Offender Accused of Rape: Authorities in Texas have arrested a convicted sex offender who is accused of raping two young girls and infecting them with HIV and other sexually transmitted diseases.  Mike Glenn of the Houston Chronicle reports that 33-year-old David Wilson is believed to have sexually assaulted his niece, who was just under 2-years-old at the time, and his ex-girlfriend's 14-year-old daughter.  Wilson was sentenced to four years in prison in 2004 after being found guilty of sexually assaulting another 14-year-old girl, he is currently being held in county jail without bond.

Parolee Charged in Cold Case Killing: An Illinois parolee with a lengthy criminal past has been charged with first-degree murder for a 2002 cold case killing.  Fox Chicago reports that 40-year-old Steven Podkulski was paroled on Wednesday after serving just five years of a 10-year sentence for a burglary conviction, police arrested him for the murder immediately after he was released from custody.  Podkulski is currently in county jail facing one count of first-degree murder and is being held on a $3 million bond.

Convicted Felon Shoots at CA Police Officer: A California man is behind bars and facing a possible life sentence after shooting at a police officer earlier this week.  Andrea Castillo of the Fresno Bee reports that 34-year-old Patrick Hall, who already has two prior felony 'strikes' against him, fired his gun while the officer held onto the barrel during an arrest attempt, the officer was taken to the hospital and is recovering after sustaining a severe burn to the palm of his hand.  If convicted, this will be Hall's third felony strike and he will face a possible life sentence.

FedSoc Event on Prop. 47

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The Federalist Society has a debate Monday evening in San Francisco on the "defining criminality down" ballot measure, Proposition 47.  SF Public Defender Jeff Adachi will speak for the measure, and San Mateo DA Steve Wagstaffe will speak against it.  Announcement is here.

More on the Gallup Death Penalty Poll

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Yesterday we noted on this blog that the Gallup Poll found little change in Americans' views on the death penalty.  Well, "little change" isn't news.  It's dog bites man.  So Mark Berman in the WaPo has this story emphasizing the supposedly "botched" executions, plural, in the last year, and implying a sense of wonderment that this didn't change anything.  (Only one actually qualifies as "botched," IMHO.)

Well, why should it?  Do we change our views on any major issue because of isolated problems?  Do air bag recalls make us stop driving cars?  The problems with lethal injection are, for the most part, caused by the opponents of capital punishment, and our response should be to fix the problems, not to abandon a punishment that the vast majority of the American people believe to be the fundamentally right one for the worst murders.

Far worse than this, though, is a link at the bottom of the page, which takes the reader to a May 1 article titled "Everything you need to know about executions in the United States."  I hadn't seen this before.  Turns out that "everything" is the anti-death-penalty crowd's talking points straight down the line.  One misleading half-truth after another. Seriously, if anti-DP propagandist Richard Dieter had written this article himself, this is pretty much how he would write it.  Dieter is quoted twice in the article, without identifying him as an advocate for one side.  Ditto Denno.

It is disappointing to see such shamelessly one-sided coverage in the WaPo, which has generally been more balanced than certain other major newspapers.

Debating the Death Penalty

Kent noted that it's next to impossible to change someone's mind about the death penalty, because the most basic and controlling views are dug deeper than the place argument can reach.

I've had much that same experience.  In all the time I've been thinking about this issue, I have changed only two minds.  One belonged to my mother-in-law, a pretty much down the line liberal, but with an independent streak (she ran away from home as a teenager to join the Israeli army in its earliest days.  She was an ambulance driver on the battlefield).

She held the conventional wisdom in Upper East Side Manhattan, where she lived. We got to talking one day about capital punishment, and I brought up the question what we're supposed to do with a previously convicted, angry and unrepentant multiple killer serving LWOP, who then does it again in prison, and vows this won't be his last.

That stumped her.  (She's not the only one, of course).  So she came around.

She was very into Jewish causes (the Holocaust Museum among them).  I'm sure she knew that Israel had kidnapped and executed Adolph Eichmann, and thought that was the right thing to do.  I believe that set the stage for her having the sort of open mind that, while rare, is the essential precondition for coming around. 
Earlier today, I noted Gallup's most recent poll on people's attitudes on the death penalty.  That post was updated later with some further data.

Structured questions in polls can give useful numbers, but open-ended questions can tell us some interesting things also.  Art Swift of Gallup reported separately on an open-ended question that asked people for the reason behind their position on the main question.
I was intending to make my next entry about the danger our country faces from the kind of murderous episode we saw yesterday in Ottawa, when this comic relief piece in the ABA Law Journal caught me eye.  The title is, "Judge Accused of Courthouse Sex Was 'Seduced and Taken Advantage Of,' Her Lawyer Says." It states (emphasis added):

A West Virginia judge accused of a sexual relationship with a community corrections director was "seduced and taken advantage of," her lawyer argued in her ethics case before the state supreme court.


[Jaymie] Wilfong, a Randolph County circuit judge, had a two-year romantic relationship with North Central Community Corrections Director William Travis Carter that included in-chambers trysts between court proceedings...

Deitzler [her defense attorney at ethics proceedings] told the state supreme court there were only two instances of sexual conduct at the courthouse, and the affair didn't affect the judge's impartiality. He also said the judge was seduced.

"I'm not using it as an excuse," Deitzler said. "The perception unquestionably is she was seduced and taken advantage of."

You have to love the, er, creativity of an attorney who says, "I'm not using it as an excuse," and then, a full ten words later, says she was "taken advantage of."

News Scan

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Teen Convicted in Brutal Double-Murder: A Colorado teen convicted of murdering a soldier and his pregnant wife has been sentenced to two back-to-back life sentences.  KRDO News reports that Mayco January, who was 17-years-old at the time of the murders, killed the couple after they walked in on him burglarizing their home.  January will be eligible for parole after serving a minimum of 80 years behind bars.  Under Colorado law, January was not subject to a third murder charge for killing the unborn child.

Prosecutors to Seek Death Penalty for Accused Killer: Prosecutors in Kentucky have announced plans to seek the death penalty for a man accused in a brutal kidnapping and murder.  WLKY News reports that 24-year-old Octavio Correa and a female companion kidnapped a man from his home earlier this year, shot him in the head, and left his body in the trunk of his car.  Co-defendant Tiffany Hodges is also in custody for the murder, but prosecutors have yet to announce whether they will pursue a possible death sentence for her as well.   

Convicted Killer Sentenced to Life in Prison Plus 202 Years: A Michigan man has been sentenced to life in prison plus an additional 202 years after being found guilty of raping three women and killing a fourth woman who tried to intervene.  Heidi Fenton of M Live reports that Duncan Willis broke into the home of one of the victim's under the false assumption that she had called Child Protective Services on him earlier that week. Willis proceeded to rape that woman along with two others over a 10-hour period until a fourth woman showed up and intervened.  The judge presiding over the case called this crime the 'most heinous cowardly act' he had ever heard of, and commented that the sentence handed down would ensure that Willis would remain behind bars for the rest of his life. 

Michael Brown Autopsy Report

Christine Byers reports for the St. Louis Post-Dispatch:

The official autopsy on Michael Brown shows that he was shot in the hand at close range, according to an analysis of the findings by two experts not involved directly in the case.
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Gallup has this report by Jeffrey Jones, with the above headline, on its last poll on the death penalty.

On the standard question, asked since the 30s and best used for trends over time, support is 63%, about where it's been for the last decade.  There is a strong difference by political party, but even among Democrats, the "yes" vote is a plurality, just shy of a majority.

On the very badly worded question that effectively asks people to specify a single punishment for all murders regardless of degree or circumstances, respondents chose the death penalty over life without parole by 50-45.  This is up in the last few years.  The LWOP choice was briefly a tick ahead, 48-47, in 2006.

The actual public policy question to be decided -- what punishment to impose on the very worst murderers -- was once again not asked.

My criticisms of poll wording on this topic are noted in this post last February.

Update:  Not mentioned in the report linked above, but found in the linked data report, is a better question, "In your opinion, is the death penalty imposed -- [ROTATED: too often, about the right amount, or not often enough]?"  This question is better because, unlike the other two, it at least partially addresses the fact that were are talking about a (small) subset of murders, not all murders.  The result is 40% Not Enough, 28% About Right, 24% Too Often, and 9% No Opinion. 

Support for capital punishment in its present scope or tougher is the sum of Not Enough and About Right, which comes to 68%.  That's down somewhat from the historical average ("only" 2/3, rather than 3/4), but it still swamps the Too Often vote by well over 2-to-1.
Kimberly Kindy and Sari Horwitz have this article in the WaPo with the above headline:

Ferguson, Mo., police officer Darren Wilson and Michael Brown fought for control of the officer's gun, and Wilson fatally shot the unarmed teenager after he moved toward the officer as they faced off in the street, according to interviews, news accounts and the full report of the St. Louis County autopsy of Brown's body.

Because Wilson is white and Brown was black, the case has ignited intense debate over how police interact with African American men. But more than a half-dozen unnamed black witnesses have provided testimony to a St. Louis County grand jury that largely supports Wilson's account of events of Aug. 9, according to several people familiar with the investigation who spoke with The Washington Post.

News Scan

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Cop Killer Sentenced to Life Without Parole: A California man convicted of killing a police officer nearly a decade ago has been re-sentenced to life without parole (LWOP).  Gary Peterson of the Contra Costa Times reports that this is the third time in six years that Andrew Moffett has been sentenced to LWOP  for the killing, which he committed when he was a few days shy of his 18th birthday.  The state Supreme Court ordered the re-sentencing earlier this year after modifying the interpretation of the state's sentencing law for under-18 murderers and then upholding the law, as modified, as consistent with the U.S. Supreme Court's 2012 decision in Miller v. Alabama.  CJLF filed a brief in the case on behalf of Officer Lasater's family.

Rapist to Spend Over 100 Years Behind Bars: An Arizona man convicted of nearly a dozen sexual assaults has been sentenced to more than 113 years in prison.  The Associated Press reports that 23-year-old Gregory Woody Jr. was found guilty of multiple felonies including aggravated sexual assault and kidnapping.  Police say he raped, beat, and choked two women last year, and DNA was finally able to link him to the crimes.

Supreme Court to Hear CA Death Penalty Case: The U.S. Supreme Court has agreed to hear California's appeal of the decades-old death sentence given Hector Ayala for the murders of three people in 1985.  Deb Welsh of KPBS reports that Ayala's original death sentence was vacated after a the U.S. Ninth Circuit Court of Appeals court ruled that he was denied a fair trial. California has not carried out an execution since 2006 and currently has 745 inmates on death row.   Oral argument in the case will be held this winter.

Modifying Opinions

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Nobody is perfect, and even the nation's highest courts sometimes make mistakes in their opinions.  When the California Supreme Court makes a mistake and needs to modify an opinion, it issues a modification order like this.

Not so at the U.S. Supreme Court.  Opinions come out in four forms.  There is the bench opinion used to announce the decision live in court.  That one has a shorter life span than a fruit fly.  Almost immediately we get the slip opinion.  That one is posted on the Court's website, and it is the one we link to on this blog for same-day commentary. 

After the slip opinion, unofficial versions are printed by the West Publishing Company (S.Ct.) and Lexis Law Publishing (L.Ed.2d), but the Court is not involved in these.

The slip opinion remains the official opinion until publication of the preliminary print, currently running about four years after the opinion date.  Why so long?  Beats me.  After another year or so we get the bound volume, which will be the final, official word on the shelf of the law library forevermore.  The BVs are also available in PDF form on Court's website, with the caveat that the dead-tree version and not the digital one is official, if there is any difference.

Sometimes there are changes between these versions, but there is generally not a public announcement.  Adam Liptak reports at the NYT:

Earth to Academia Re: Jones Certiorari Denial

The defense bar is hopping mad about the denial of cert in the Jones case.  There, the Court declined to hear a challenge to the use of acquitted conduct in fashioning the sentence.  Kent discussed it here, and I did here.

There has been a good deal of fussing about it, as you might expect.  There have also been guesses galore about why the Court denied review.  The most remarkable I have seen is this one by University of Illinois law Professor Margareth Etienne (quoted in the National Journal):

Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.

With all respect to Prof. Etienne, a Yale Law graduate, her analysis is wildly and transparently incorrect.

News Scan

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Delaware Sets Execution Date for Murderer: A Delaware man convicted of raping and murdering a college student in 2005 is set to be executed for his crime December 4, 2014.  The Associated Press reports that 43-year-old James Cooke had his original conviction overturned in 2007 due to an error made by his public defender, he was then re-tried, convicted and sentenced to death again in 2012.  Cooke's most recent appeal to the state Supreme Court was denied in July 2014.

Teen Sentenced to Life in Prison: A Florida teen convicted of killing a security guard at an apartment complex in 2012 has been sentenced to life in prison with a possibility of parole.  WFTV News reports that Terrance Anthony was 16-years-old when he shot and killed the security officer.  Police reported that the victim had previously confronted Anthony because the teen did not live at the complex.  Anthony will be eligible for parole after his case is reviewed by a judge in 25 years.    

Murderer Challenges Prison Porn Ban: A Connecticut man convicted of murder and sentenced to more than 50 years behind bars is suing the state for his right to look at pornography in prison.  Pat Eaton-Robb of the Associated Press reports that 44-year-old Dwight Pink Jr. claims that the porn ban violates his constitutional rights, and that guards are using it as a way to deny him access to an art book that uses nude models to teach readers how to 'draw the human form.' The state maintains that Pink has not been harmed by the ban and that none of his rights have been violated.

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