So Long to the False Arrest Charges

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Apparently the Baltimore State's Attorney reads Crime and Consequences before she meets with the grand jury. It might be better, though, if she had read it before her earlier, court-house-steps carnival announcing charges against six police officers.  

Although she originally made a point of the supposed illegality of Freddie's Gray's arrest, we now see that false imprisonment charges against the arresting officers have disappeared.  The prosecutor gives no explanation. But this Reason article does:

Of the criminal charges proposed by Marilyn Mosby, the state's attorney for Baltimore, in connection with the death of Freddie Gray, three are notably missing from the indictments approved by a grand jury today. The Washington Post reports that "charges of false imprisonment against three of the officers are no longer part of the case." That change presumably reflects the dispute over whether the knife Gray was carrying, which was the official justification for his arrest, qualified as an illegal switchblade.

Judging from the way police described Gray's knife ("a spring-assisted, one-hand-operated knife"), it did not fit the state's definition of a switchblade (as Mosby noted) and probably did not fit the city's definition either. But the latter point--which Mosby did not publicly address, even though Gray was charged with violating the city ordinance--is open to debate, which suggests that the officers who arrested him might reasonably have believed the knife was illegal. If so, they could not be convicted of false imprisonment, since to arrest Gray they needed only probable cause to believe he had broken the law.

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Police Officer Killed Hours Before Maternity Leave:  An Omaha police officer was shot and killed by a fugitive on Wednesday, just hours before she was to go on maternity leave.  Fox News reports that 29-year-old Kerrie Orozco was part of the city's fugitive taskforce and had closed in on 26-year-old Marcus Wheeler, a fugitive with a felony arrest warrant who then opened fire at Orozco and other officers.  Orozco had given birth to a premature baby girl in February, postponing her maternity leave until the baby's release from the hospital, which was the day after she was killed.  The shooting suspect was also fatally shot.

Transgender Inmate's Surgery Delayed:  Hours after a California panel recommended parole for convicted killer Michelle-Lael Norsworthy, a federal appeals court delayed her sex reassignment surgery, making it unlikely that she will receive prison-funded surgery before her release.  Don Thompson of the AP reports that the state contested a lower court judge's ruling that Norsworthy receive the surgery as soon as possible, but now it could be delayed for months while the appellate court considers the case.  Corrections officials are "pleased that the delay will let the appeals court review the merits of the state's appeal."  Norsworthy's attorneys argue that the denial of her surgery amounts to cruel and unusual punishment.

Six Baltimore Officers Indicted:  A grand jury decided to indict all six Baltimore police officers charged in the death of Freddie Gray, allowing the criminal prosecution to proceed.  The AP reports that the officers' attorneys believe that Baltimore State's Attorney Marilyn Mosby should be replaced with an independent prosecutor, arguing the current prosecution as "overzealous."

Two ISIS Recruits Arrested in LA:  Two men were arrested by the FBI in Southern California yesterday, one at the Los Angeles International Airport, on suspicion of terrorism related charges.  Andrew Blankstein of NBC News reports that Muhanad Badawi and Nader Elhuzayel of Anaheim were allegedly planning to travel abroad and join the Islamic State terrorist group, known as ISIS.  Two search warrants were also served in relation to the charges.

Suspect In DC Homicide Charged:  Daron Dylon Wint, suspected of murdering a Washington businessman, his family, and their housekeeper last week and setting their mansion on fire in an extortion scheme, has been arrested and charged with first-degree murder.  Greg Botelho, Mary Kay Mallonee, and Ed Payne of CNN report that Wint was apprehended Thursday while traveling from a Maryland hotel to Washington D.C. in a car with two women alongside a box truck driven by his brother and two other men.  At least $10,000 was discovered during the arrest.  The other five individuals were arrested but have not been charged.  Wint is set to make his first court appearance on Friday afternoon.

This is what happens:

WASHINGTON (WUSA9) -- New, horrifying details are surfacing about what happened inside the Savopoulos mansion near Vice President Joe Biden's house before the murders.

A law enforcement source tell WUSA9's Bruce Leshan that detectives now believe the killers tortured the 10-year-old boy, Phillip Savopoulos, in the effort to get money out of his father.

Police believe the killers were in the house for about 10 hours, and that they successfully forced the Savopoulos family to get them tens of thousands of dollars. Someone may have actually had to go out and get the cash while the rest of the family and their housekeeper were held hostage.

The prime suspect in this grotesque crime is one Daron Dylan Wint.

Was Wint a stranger to the criminal justice system?  Not exactly.

The New York Post carries this opinion piece on the nature and benefits of "broken windows" policing in New York City.  It's written by George Kelling, co-author of the original "Broken Windows" strategy and the leading authority in the field. Surprisingly, it has good news for both those of us serious about stanching crime, and those viewing themselves as friends of sentencing "reform:"

[I]ndiscriminately attributing all of the ills displayed in recent events in cities to Broken Windows risks taking us back decades in our attempts to improve public safety and quality of life for all citizens....

There's every reason to believe de-policing high-crime minority neighborhoods would be a disaster. We tried it in the past, and it's taken decades for us to regain control of public spaces, and even now some neighborhoods remain under threat.

No surprise there, but this was eye-opening:

[W]hile some have argued that Broken-Windows policing results in higher incarceration rates, research indicates that police crime-prevention methods, including Broken Windows, have actually reduced mass incarceration.

In New York City, both prison commitments and jailings declined substantially between 1992 and 2013 -- prison by 69 percent; jailing by 45 percent.

A:  You had to ask?

The Daily Beast has the story, direct from Baltimore.  The numbers tell a sorry tale:

Baltimore logged its 100th murder of the year on Thursday morning, hitting the milestone after recording more than a murder per day in the month following Freddie Gray's death.

The massive increase in homicide, shootings, and violent crime comes as arrests have plummeted to their lowest levels all year. In the week before Gray died, 682 people were arrested. In the last week of available data, 339 people were arrested.

The Western District, where Gray was arrested, is the center of the crime boom. Homicides are up 200 percent compared to this time last year; non-fatal shootings have risen 800 percent; robberies of varying types 100 to 300 percent.

Despite more crime, there are far fewer arrests in the district. In fact, at least three days in May saw no arrests.

Forbes ranked Baltimore the seventh most dangerous city in the country. My strong guess is that, this year, it will be moving "up."

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NE Bill Abolishing Death Penalty Approved:  A bill abolishing the death penalty was approved on Wednesday by Nebraska's legislature with a 32 to 15 vote.  The AP reports that Governor Pete Ricketts promises to veto the bill, although there may be enough votes in favor of the bill to possibly override a veto.  

Parolee Found Guilty of Investigator's Murder:  Paroled sex offender Randy Alana was convicted Wednesday of murder, second-degree robbery, auto theft and grand theft for the 2013 killing of Sandra Coke, a federal defense investigator from Oakland.  Henry K. Lee of SF Gate reports that the jury deliberated for less than three hours before finding Alana guilty.  Alana, who had previously dated the victim and was the father of her teenage daughter, was out on parole and being tracked by authorities with a GPS anklet in August 2013 when he strangled Coke and dumped her body in Vacaville, because she called his parole agent.

Man Who Landed Gyrocopter At Capitol Faces Nine Years:  The man who landed his one-man gyrocopter on the lawn of the U.S. Capitol last month to protest campaign finance could face over nine years in prison.  Warner Todd Huston of Breitbart reports that Douglas Hughes, a mail carrier from Florida, flew through restricted airspace on April 15 before landing on the west lawn of the Capitol building, and was arrested immediately.  He has been indicted on six charges by a federal grand jury, including violation of national defense airspace and violation of aircraft registration requirements.

Bill that Loosens Execution Restrictions Passes House:  A North Carolina bill, which passed the House and is under consideration in the Senate, would permit other medical professionals to oversee executions, not just licensed physicians.  The Daily Tar Heel reports that House Bill 774 was created in response to physicians' growing unwillingness since 2007 to participate in executions, when the North Carolina Medical Board banned providers from giving lethal injections.  Although the state Supreme Court ruled in 2009 that the board could not revoke physicians' licenses, physicians in the state have still been hesitant.  The bill would extend execution participation to physician assistants, registered nurses, nurse practitioners and emergency medical technicians, but a licensed physician would still be required to pronounce an inmate dead.

Suspect Named In Quadruple Murder:  Police have identified a suspect in last week's quadruple homicide of a wealthy couple, their 10-year-old son, and their housekeeper that occurred in one of Washington D.C.'s poshest neighborhoods, just down the street from the Vice President's residence.  Fox News reports that Daron Dylon Wint, a career criminal whose DNA was found on pizza crust left at the crime scene, is believed to have held the family hostage on the evening of May 13 while coordinating the delivery of $40,000 in cash, then killed them and set their mansion ablaze before fleeing in the couple's Porsche, which was also torched.  Law enforcement believes Wint is hiding out in Brooklyn and have expanded their manhunt.

George Will has a column in today's Washington Post titled, "Capital Punishment's Slow Death."  In it, Will makes three arguments against the death penalty.  All of them are wrong.

Here's how he puts it:

The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. 

Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence....

Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay.

Let's start from the beginning.

Congress is presently debating whether and to what extent to re-authorize bulk collection of telephone records, a key provision set forth in Section 215 of the Patriot Act.  My friend Rachel Brand, a former Assistant Attorney General for the Office of Legal Policy, writes an informative piece about it in the Christian Science Monitor. She notes, among other things:

[T]he question before Congress is not whether to reauthorize or prohibit the bulk telephone records program that has garnered so much attention. It is whether to reauthorize Section 215 itself. This authority was enacted after 9/11 to remedy the problem that officers conducting foreign intelligence investigations of international terrorism and espionage did not have a basic investigative tool available even in ordinary criminal investigations. The telephone records program conducted by the NSA is only one application of that authority. If Congress allows Section 215 to expire, it will not just eliminate that program; it will do away entirely with an essential investigative tool.

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Police Oppose Obama's Military Equipment Ban:  Law enforcement agencies nationwide will no longer be provided with certain military equipment by the federal government under President Obama's executive order.  Genny McLaren of Fox 40 reports that Sacramento County Sheriff Scott Jones calls the ban the president's "latest missive," reinforcing the administration's attitude that "local police and sheriff's departments are incapable of effectively and fairly providing public safety."  The equipment ban includes tracked armored vehicles and a lot of stuff police don't use like 50 caliber weapons and ammunition, certain camouflage clothing, bayonets, weaponized aircraft and grenade launchers.

Report Links Auto Thefts To Realignment:  The Public Policy Institute of California released a report on Tuesday suggesting  the state's AB 109 Realignment law, which released thousands of felons from prison, resulted in increased auto thefts but had no impact on violent crime.  The report, which relies on 2013 data, left out 2014 data reported by the LA Times showing the state prison population increasing due to increased convictions for violent and serious felonies, and also missed the Los Angeles Police Chief's March 24, 2015 statement that violent crime has increased 26% in his city so far this year.

Trove Of Bin Laden Documents Released:  A trove of documents recovered during the raid on Osama bin Laden's compound in 2011 have been released to the public by U.S. Intelligence, revealing Al Qaeda's operations.  Fox News reports that included among the documents are letters, accounting information, and application forms from prospective members.  One document in particular warned that the "motives that led to 9/11 are still there."  The Office of the Director of National Intelligence says they will review hundreds more documents for possible declassification and release.

Development Of San Quentin's Land Debated:  The $18 million project to demolish and rebuild San Quentin State Prison's boiler house, which is non-compliant with the Bay Area's air emissions regulations, is reigniting the debate over whether the aging prison should stay or go.  KTVU reports that a global property strategist says that the land occupied by the prison could sell for "at least a billion," and transform the facility into a revenue generator rather than an economic drain.  Inmates are against the relocation, however, citing their proximity to the courts and tech companies who send in volunteers as their reasons for wanting to stay put.

Bandidos Biker Gang Allied With Drug Cartel:  The Bandidos, one of the biker gangs involved in the shootout at a Texas restaurant Sunday, has been identified by the FBI as a longtime affiliate of the violent Mexican cartel Los Zetas.  Ildefonso Ortiz of Breitbart reports that the Bandidos coordinate drug smuggling operations with international drug-trafficking organizations such as Los Zetas, in which they manufacture, transport, and distribute marijuana, cocaine and methamphetamine.  The gang's ties to the cartels provide them with a steady flow of drugs that "make up the majority of the gangs profits."

Rehab for This Non-Violent Offense?

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Sentencing "reformers" have finally admitted explicitly that their largesse would extend to violent as well as non-violent offenders.  Still, and for obvious PR reasons, they continue to push the line that "reform" (i.e., early release or no incarceration to begin with) is intended principally for "low-level, non-violent" offenders.  Their argument is that (1) we simply can't afford the present level of incarceration, (2) we're overly punitive in any event, certainly compared to Western Europe, and (3) we can use the money saved to focus on "truly dangerous" criminals.

Today brought news of a "non-violent" offense that very likely cost individual victims no more than $50 or $100 each.  Certainly that's a "low-level" sort of thing for which "reformers" would be scandalized that Puritanical nags (like me) would even contemplate prison.  But I am contemplating it indeed, even though to date only civil charges have been filed.  To boot, I think a sentence of ten or twenty years would be just fine.

The WSJ has the story.
At SL&P, Doug Berman extensively quotes a NYT editorial about sentencing "reform" (i.e. letting felons out earlier to do it again, which the great majority will). The quotation starts with this paragraph (emphasis added):

It has been getting easier by the day for politicians to talk about fixing the nation's broken criminal justice system. But when states in the Deep South, which have long had some of the country's harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Here are a few statistics about how "broken" the criminal justice system is:  

The last time we had a number of serious crimes this low was 1973, or 42 years ago. The last time we had a murder rate this low was 1963, or 52 years ago. The last time we had a violent crime rate this low was 45 years ago.  The last time we had a property crime rate this low was 49 years ago. The last time the auto theft rate was this low was 51 years ago.  In 2013, the most recent year for which figures are available, we had 5,077,242 fewer serious crimes than in the peak crime year at the dawn of the Nineties.  That is more than five million fewer crime victims.

It may well be that, for the drug pushers, child rapists, con artists, thugs, hoodlums, rioters and others who earned the sentences we finally had enough sense to give them, the criminal justice system looks "broken." But on the theory that the NYT had a broader audience in mind, labeling the system "broken" is nonsense bordering on insanity.
Punishment for crime involves both judicial and executive discretion.  The sentence in years (or life) is imposed by the trial court, but where the convict actually is in those years is typically an executive decision.  That may involve which prison he is sent to, whether he is inside or outside prison (i.e., parole), or even which country he is in.

Khalid Al Fawwaz was sentenced today for his part in the 1998 Embassy Bombing plot.  He received three life sentences and a ten-year sentence, concurrent.  And Judge Kaplan added this:

The Court makes the following recommendation to the Department of Justice: The Court is mindful of the fact that defendant may have the ability to apply to the U.S. Department of Justice under the international prisoner transfer program to be allowed to serve some or all of his sentence in another nation. Although a decision on any such application, if one is made, would be up to the Department of Justice, the Court strongly recommends that any such application be denied. The defendant has been convicted of very serious crimes against American citizens. His punishment ought to be served in, and more particularly, always remain under the control of the United States of America.
Now that's refreshing to hear from a federal judge.

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State Supreme Court Overturns Assailant's Sentence:  On Monday, the California Supreme Court struck down the five-year prison sentence of a Sacramento man who beat his children's mother because a trial judge failed to advise the defendant that admitting to a prior conviction could result in a harsher penalty.  Denny Walsh of the Sacramento Bee reports on the high court's decision in People v. Joshua Cross that overturned defendant Cross' sentence.  A week before the court's determination, Cross, released after serving the previous sentence, pleaded no contest to misdemeanor battery and was sentenced to three years of informal probation.

Legal Immigrants Take Back Seat To Illegals:  As the numbers of illegal immigrants seeking legal status under Obama's executive actions increase significantly, the waiting list to enter the U.S. legally is growing longer by the day, with illegal aliens prioritized over immigrants that entered the country legally.  William La Jeunesse of Fox News reports that the waiting list for individuals trying to enter the U.S. legally has reached 4.4 million, exceeding last year's numbers by 100,000.  Some, such as American born Jimmy Gugliotta, who lives in Chile with his Argentinean wife and their children, has been waiting almost two years for his family's visas while illegal immigrants continue to cut in line.

Baltimore Surges with Murders, Shootings:  Following the riots last month, Baltimore has experienced a "dramatic increase in violence," leaving many residents concerned that police officers are hesitant to aggressively respond to the spike in crime.  Christie Ileto of CBS Baltimore reports that 96 homicides have occurred in the city this year, up almost one-third from last year.  A Baltimore police officer said the Freddie Gray case "impacted policing," adding that he could understand why some officers may not want to be proactive during these rocky times.

Judge Alcee Hastings, Living in Sackcloth

In his ten years (1979-1989) as a federal District Judge, Alcee Hastings did "sentencing reform" the old-fashioned way:  He accepted bribes for lower sentences. This is the story in a nutshell:

In 1981, Hastings was charged with accepting a $150,000 bribe in exchange for a lenient sentence and a return of seized assets for 21 counts of racketeering by Frank and Thomas Romano, and of perjury in his testimony about the case. In 1983, he was acquitted by a jury after his alleged co-conspirator, William Borders, refused to testify in court (resulting in a jail sentence for Borders).

In 1988, the Democratic-controlled U.S. House of Representatives took up the case, and Hastings was impeached for bribery and perjury by a vote of 413-3. He was then convicted in 1989 by the United States Senate (also controlled by the Democrats), becoming the sixth federal judge in the history of the United States to be removed from office by the Senate.

But Judge Hastings is a superb politician, and got himself elected to Congress in 1992.  He's still there  --  but as he tells us, just getting by.

Jessica Gresko and Ben Nuckols report for AP:

People in the nation's capital no longer have to show a good reason to get a permit to carry concealed handguns outside their homes and businesses.

The District of Columbia's police chief said Tuesday that she's dropping this requirement, a centerpiece of the city's handgun-control legislation, after a federal judge issued a preliminary injunction against it.

How about being in a jurisdiction where the murder rate is many times higher than the national average and among the highest of all American cities?  Doesn't everyone in the District have a "good reason"?

Mitigating in whose opinion?

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I have downloaded the Tsarnaev jury verdict form from PACER and uploaded it here. There are several interesting things about this form, but one that I particularly want to note is the deficiency in what the jurors are asked to find about "catchall" mitigating factors.

The Supreme Court has mandated since 1978 that the defendant can proffer to the jury any aspect of his character, background, or record that he wants to argue as mitigating.  When he does, there are actually three decisions to be made.  (1) Is the factor factually true?  (2) If so, is it actually mitigating? (3) If so, how much weight should it be given?

It seems to me that there is not enough attention given to the second step.  Supposedly mitigating factor 16 on page 18, for example is, "Dzhokhar Tsarnaev's mother facilitated his brother Tamerlan's radicalization."  Ten jurors found that factually true.  How many considered it mitigating?  Did all 10 understand they could find it true and still say "So what?  That's not mitigating."

These kinds of failures to make clear to the jury the nature of what they are supposed to be deciding were held to be unconstitutional when they ran against the defendant many years ago.  But ambiguities and omissions that run in the defendant's favor apparently go uncorrected.

The jurors probably get to the right end result in any case.  In the weighing process, jurors may find that a true factor gets zero weight if it is not mitigating.  Still, I would like to see this cleaned up.

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Revenge Attacks Feared After Biker Gang Shootout:  Following a violent brawl between five rival biker gangs at a restaurant in Waco, Texas that left nine dead, 18 wounded and nearly 200 arrested, police are concerned about retaliatory attacks.  Lisa Maria Garza of Reuters reports that the Twin Peaks Sports Bar and Grill erupted in violence on Sunday afternoon, with rival gang members attacking each other with guns, knives, brass knuckles, clubs and motorcycle chains.  The restaurant, which has been a meeting place for biker gangs, has been closed for at least seven days.  No bystanders or police were injured in the incident.

Immigration Court Backlog Reaches All-Time High:  Last summer's surge of illegal immigrants from Central America has culminated to a record high backlog for federal immigration courts at more than 445,000 pending cases.  Molly Hennessy-Fiske of the Washington Post reports that the backlog has increased by 30 percent since the last fiscal year began, overwhelming immigration courts.  The backlog of juvenile cases alone is 68 percent larger than it was before the flood of immigrants occurred last June.

Change US Park Police Mass Arrest Policies:  A proposed $2.2 million settlement of a class-action lawsuit involving the 2002 arrests of hundreds of protestors would change the way U.S. Park Police handle mass protests.  The AP reports that 400 protestors were arrested at the 2002 International Monetary Fund and World Bank meetings in Washington D.C. by the U.S. Park Police, who are responsible for areas in front of the White House and other key security sites.  A group representing protesters called the settlement "a victory for First Amendment Rights."  The changes outlined in the settlement would prevent police from encircling protestors, require particularized probable cause for any protestor arrest, and fair notice before an arrest.

Is Fatal Asthma Attack Murder?:  A Boston jury will decide if Michael Stallings is responsible for the 2012 death of Kelvin Rowell, who died of an asthma attack after fleeing from gunshots fired by Stallings.  Fox News reports that Rowell's asthma attack was so severe that it rendered him comatose for six weeks before he died.  In order to convict Stallings of murder, the jury will have to find that he "acted with premeditation or with extreme atrocity or cruelty."

Felons May Sell Or Transfer Possession of Guns:  A unanimous ruling by the U.S. Supreme Court on Monday held that a convicted felon may request a court to transfer his guns to a third party instead of surrendering them to the government.  Stephanie Condon of CBS News reports that Justice Elena Kagan wrote in the opinion holding that a court is allowed to transfer a felon's weapons to a third party, "as long as the court is satisfied that the recipient will not let the felon use the weapons or direct their use."  The decision in Henderson v. United States could have far-reaching impact on Americans  convicted of felonies.

Opponents of the death penalty have been crowing in recent years about a supposed turn away from it, citing repeals in a few states, including New Jersey.  But those repeals represent failures of representative democracy, as legislatures act contrary to the views of the majority of the people.  They have gotten away with it because crime has not been high on the political radar screen while wars, terrorism, financial crises, and the revamp of the health care system dominated the political scene.

Yet, nine years after repeal, "if Garden State voters have their say, the death penalty will be here to stay," according this press release from the PublicMind Poll at Fairleigh Dickinson University.  "The most recent survey from Fairleigh Dickinson University's PublicMind finds support for the death penalty virtually unchanged from when the same question was asked in 2006."

The release contains this odd statement:  "There is considerably less support among Democrats, people of color, women, and Millennials -- all of whom oppose the death penalty in numbers almost reaching or exceeding a majority."  The "less support" is correct, but the "all of whom oppose" is odd.  A majority of women and a plurality of persons 18-34 are in favor.  A majority of black people are opposed, but no number is given for "people of color," which is not the same thing, especially on this issue.

SCOTUS Opinions

The U.S. Supreme Court issued six opinions this morning.  No Elonis yet, unfortunately.  Here are the criminal and related ones:

Henderson v. United States, No. 13-1487:  When the defendant has been convicted of a felony and can no longer legally possess firearms, and his guns have been seized by the government, "a court may approve the transfer of a felon's guns consistently with §922(g) if, but only if, the recipient will not grant the felon control over those weapons." Unanimous opinion by Justice Kagan, reversing USCA11.

San Francisco v. Sheehan, No. 13-1412:  The case involves police use of force against a mentally ill person who "began acting erratically and threatened to kill her social worker."  A question about the applicability of the Americans with Disabilities Act was dismissed as improvidently granted when the City shifted its position between the certiorari petition (request to take up the case) and the briefing on the merits.  On the Fourth Amendment question, the individual police officers were granted qualified immunity. 

Justice Alito wrote the opinion for six Justices, reversing the Ninth Circuit (and reinstating the decision of District Judge Charles Breyer) in part.  Justices Scalia and Kagan would dump the whole case because they are seriously ticked off at San Francisco for its bait-and-switch on the question presented.  Justice Breyer recused himself.

Coleman v. Tollefson, No. 13-1333:  Indigent plaintiffs can generally file civil suits without paying the filing fee (in forma pauperis), but this privilege is so commonly abused by prisoners that Congress created a "three strikes" rule against IFP status for prisoners who have had three suits dismissed as frivolous.  Is a suit that has been dismissed but has an appeal pending a strike?  Yes.  Justice Breyer wrote the unanimous opinion affirming USCA6.  "The vast majority of the other Courts of Appeals" are wrong.  So much for the "majority view."

Likely next opinion day is the day after Memorial Day.

Academia, Still Stark Raving Mad

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Law eventually will go where elite academia goes, which is why I do occasional entries on the latter. The following story about academia is a classic, so to speak. It's titled, "Columbia Students Claim Greek Mythology Needs a Trigger Warning":

The Greek myth [the Rape of Persephone] has been recounted for thousands of years in hundreds of languages, scores of countries and countless works of art. It's considered a cultural touchstone for Western civilization: a parable about power, lust and grief.

Now, however, it could be getting a treatment it's never had before: a trigger warning.

In an op-ed in the student newspaper, four Columbia University undergrads have called on the school to implement trigger warnings -- alerts about potentially distressing material -- even for classics like Greek mythology or Roman poetry.

"Ovid's 'Metamorphoses' is a fixture of Lit Hum, but like so many texts in the Western canon, it contains triggering and offensive material that marginalizes student identities in the classroom," wrote the four students, who are members of Columbia's Multicultural Affairs Advisory Board. "These texts, wrought with histories and narratives of exclusion and oppression, can be difficult to read and discuss as a survivor, a person of color, or a student from a low-income background."

And no, I am not making this up.  I couldn't make it up.

Former AUSA to Head DEA

I've been so busy with the Tsarnaev death sentence and the Baltimore police prosecution that I am remiss in having failed to report a happy development for the DEA.

The President last week appointed Chuck Rosenberg to be DEA Administrator.  It's a superb choice.  Chuck and I were AUSA's together in the Eastern District of Virginia for several years.  He went on to become US Attorney there (and in Texas).  His most recent post was as chief of staff to another former colleague of mine from EDVA, now-FBI Director Jim Comey.

Like Comey, Chuck is non-ideological and non-political.  I have no idea whether he's a Republican or a Democrat.  He was a tough and fair prosecutor, a straight shooter and a gentleman.  When he was appointed US Attorney, the confirmation vote was unanimous.

I understand from the linked USA Today article that the drugs-are-wonderful lobby is "holding its breath" to see whether Chuck will be an "improvement" on outgoing DEA had Michele Leonhart (also a friend and once a colleague of mine).

I have no doubt Chuck will be an excellent leader for the DEA, just not in the way the drug lobby is hoping for.
I read the WSJ every day, and today's editorial about Dzhokhar Tsarnaev's death sentence illustrates why.  It gets right to the point:

Had Boston Marathon bomber Dzhokhar Tsarnaev been sentenced to life at a federal Supermax prison, his remaining years would have been spent in a tiny concrete cell, 23 hours a day, constantly alone, with barely a sight of the sky and none of the country. As punishment for crime goes, that might have been enough.

But more than punishment was at stake in the case of Tsarnaev...The bombing was no mere criminal act carried out on an especially large scale. Tsarnaev and his brother Tamerlan...carried out an act of war aimed at the institutions and values of American civic life.

The victims were unsuspecting and defenseless, and the damage done will be felt for decades. Think of the Richard family: Bill Richard, the father, eardrums blown and wounded with shrapnel; his wife Denise, who lost an eye; daughter Jane, who lost a leg; son Henry, unwounded but traumatized; son Martin, murdered at the age of eight.

No society serious about its self-defense and preservation can tolerate this.

One of the typical moves for a defense attorney in the sentencing phase of a capital case is to call some of the defendant's family.  This has the effect both of "humanizing" the defendant, and showing the jury the suffering it will cause if it orders his execution.

Some have wondered why Judy Clarke did not call any of her client's family.  The reason is provided in spades by this Time article.  You don't have to read far to see that, as ever, Ms. Clarke knew what she was doing:

Like many observers of the case in Russia, the Tsarnaev family has claimed -- without providing any meaningful evidence -- that the bombing was part of a U.S. government conspiracy intended to test the American public's reaction to a terrorist threat and the imposition of martial law in a U.S. city. "This was all fabricated by the American special services," Said-Hussein Tsarnaev, the convicted bomber's uncle, tells TIME.

No wonder little Dzhokhar is such a piece of work.

Abolitionism Runs Out of Steam

What is left of the moral force of abolitionism  --  the idea that there is never, ever a case where the jury should be able to impose capital punishment  --  in light of the Boston Marathon bombing verdict?

Nothing, as far as I can see.

The major objections to the death penalty were never in the case to begin with: Guilt was certain, race was absent, mental competence not even in question.  It had honest and professional prosecutors, top-flight defense counsel, a seasoned and balanced judge, and ample resources for all.

So what's left of the moral case for abolitionism?

Three arguments I'm able to think of.  None of them works.

Mr. Tsarnaev, Tear Down These Appeals

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One of the arguments against the death penalty for the Boston Marathon bomber was that it would result in years of appeals and collateral review, renewing the anguish of survivors and the families of the dead.

Of course there is an obvious way to avert this problem:  Tsarnaev could waive further review and accept what he earned.

I note that the adverse coverage of the sentence, for example, here and here, never so much as mentions this possibility.  The abolitionist assumption is what it always is: The problem is not the killer.  The problem is us.  He's not the sadist. We are.  Years of review are needed to advance the admittedly tiny hope that our racist, brutish, wahoo, etc., country will come to its senses.

As Kent has noted, it is anything but a foregone conclusion that review will take its usual length.  This is the feds.  McVeigh was executed less than four years after he was sentenced.

And then there's the fact that no one has cited a ghost of a plausible reason to believe the results of the trial or sentencing will be overturned.

Ronald Reagan famously said, "Mr. Gorbachev, tear down this wall."  Perhaps, in the unlikely event those upset with the prospect of further victim suffering are sincere, they will join me in saying, "Mr. Tsarnaev, tear down these appeals."

For once in his young life, perhaps Tsarnaev could show an ounce of decency. 

News Scan

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Jury Condemns Boston Bomber to Death:  The jury in the trial against Boston Bomber Dzhokhar Tsaenaev has handed down a sentence of death for his role in the 2013 bombings at the Boston Marathon, which killed three and wounded hundreds.  Tsarnaev also killed a police officer days after the attacks.  The AP reports that the jury deliberated for 14 hours over a three-day period before reaching a unanimous verdict.  Tsarnaev reportedly showed no emotion while his fate was read aloud in court.

Amtrak Engineer's Phone Records To Be Searched:  Investigators probing Tuesday's fatal Amtrak derailment have obtained a search warrant for cell phone records of the train's engineer, to determine whether he was distracted in the moments that led to the crash that killed eight and wounded dozens more in Philadelphia.  Fox News reports that there are conflicting stories regarding 32-year-old Brandon Bostian's cooperation with investigators.  The engineer's attorney claims that Bostian spoke with police for five hours before he arrived.  Investigators say that they barely spoke with him.  Bostian may face charges as early as Wednesday if Philadelphia's DA's office has sufficient evidence.

Immigration Language Stripped From Defense Bill:  House conservatives voted down a provision outlined in Congress' annual defense policy bill which aimed to help young illegal immigrants enlist in the military.  The AP reports that the issue sparked a heated partisan debate, with Democrats denouncing Republicans for discrimination.  Several Republicans argued that the provision should have never been included in the defense bill in the first place.

Overcrowded Jail Leaves Criminals On The Streets:  Overcrowding in Utah's largest county jail means that fewer criminals are being held and those that are spend very little time inside.  Scott McKane of Fox 13 Now reports that the Salt Lake City Sheriff predicts that the situation is about to get worse, noting that by summer, those who have committed certain offenses will not be booked into his jail at all.  The mayor believes he has a solution and wants to implement a program called Pay for Success, which aims to divert individuals with drug and mental health issues away from jail and into treatment.  Under this plan the provider of treatment is compensated only when the offender has completed the program.

Discretionary Releases Not Tracked By DHS:  The Homeland Security Department's inspector general has released a new report which says that the Department of Homeland Security failed to keep track of the number of times it used prosecutorial discretion to justify releasing illegal immigrants from custody.  Taylor Tyler of HNGN reports that the department's failure to collect and analyze this data means that government funds were likely used inefficiently and national security was compromised.  The report found that at least one agency in DHS, the U.S. Immigration and Customs Enforcement, did collect data regarding prosecutorial discretion, revealing that in FY 2014, the agency recorded 12,757 instances in which ICE officers exercised discretion to release illegal immigrants.

Parolee Found Guilty Murder:  An Atlanta parolee, who strangled his roommate and stole his vehicle to flee to Florida to avoid returning to prison on a parole violation, has been found guilty of murder.  Tyler Estep of the Atlanta Journal-Constitution reports that Tony Mitchell, a four-time convicted felon on parole for robbery, beat and strangled Randy Lewis, whose body was discovered four days later by other roommates.  Mitchell was apprehended 10 days after the crime when he was caught shoplifting at a store in Florida.

No, they do not.  As noted in this post, Timothy McVeigh as executed less than four years after sentence.  He voluntarily gave up one of the many steps, appeal from the denial of collateral relief, but the case went through all the other steps.

Congress has made clear that review of capital cases should be handled expeditiously.  In 18 U.S.C. §3595(a), Congress provided that an appeal from a death sentence "shall have priority over all other cases."

From the date of affirmance of the direct appeal through the Supreme Court, the inmate has one year to file a collateral review motion under 28 U.S.C. §2255.  Again, Congress has provided, "The ... adjudication of any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters."

The federal government has an advantage over states in that there is normally only one round of collateral review, not two.

We need the Department of Justice, if it is going to live up to its name, to insist on prompt completion of these cases and to start frequently taking up writs if these statutes are ignored.
The Boston Herald reports:

U.S. Attorney Loretta Lynch said today in a statement that "Tsarnaev coldly and callously perpetrated a terrorist attack" in Boston.

"We know all too well that no verdict can heal the souls of those who lost loved ones, nor the minds and bodies of those who suffered life-changing injuries from this cowardly attack," Lynch said. "But the ultimate penalty is a fitting punishment for this horrific crime and we hope that the completion of this prosecution will bring some measure of closure to the victims and their families.  We thank the jurors for their service, the people of Boston for their vigilance, resilience and support and the law enforcement community in Boston and throughout the country for their important work."

I also thought this item in the Herald's story was noteworthy:

Only three of the 12 jurors bought into the defense argument that Tsarnaev was influenced by his older brother Tamerlan. The jurors unanimously agreed that Tsarnaev showed no remorse and they unanimously voted to put him to death.

I said at the time that it would backfire to try what Kent aptly called "remorse-by-proxy."  

Just so.

No Remorse, No Escape

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Once the prosecution pulled back the curtain on the hideousness of the Boston Marathon bombing, I thought Tsarnaev was probably headed for a death sentence. I wrote three weeks ago that his best chance to avoid it lay in taking a big risk  -- get on the stand and say you're sorry:

At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand.  Now, I have my doubts.  The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.

I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse.  If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.

The defense apparently decided against it; one way or the other, Tsarnaev sat in silence the entire trial, looking (I glean from press reports) mostly indifferent. The best it could do was call a transparent abolitionist zealot, Sister Helen Prejean, to testify that Tsarnaev was, so she claimed, remorseful.

She was effectively impeached on cross-examination, making today's sentence less than a surprise.  There's not much to be happy about in this horrible case, but one thing at least to be satisfied about is that the jury wasn't taken in by the Sister Prejean Show.

Judy Clarke, Not Quite Invincible

I have met Judy Clarke, Tsarnaev's lead counsel, only once.  I thought she was mild-mannered and pleasant.  It was not in a setting where I could assess her abilities as an attorney.

Ms. Clarke has a strong reputation for avoiding the death penalty for the worst of clients; she has done so more than once.  Her reputation is such that, at the time she came into the Boston Marathon bombing case, there was at least one prediction that the prosecution would get scared off and cave in:

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

I have often said that what counts in litigation is less the lawyers, whether good or bad, than the evidence.  It is no fault of Ms. Clarke that, even in a jurisdiction notably hostile to the death penalty, her client received it after all.  The hateful, calculated and grotesque manner of these murders was too much to overcome.

What Tsarnaev needed was not a lawyer but a magician.  

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