Being Believed and the Virginia Rape Hoax

| No Comments
University of Virginia Professor and Hoover Institution Fellow James Ceaser has an insightful piece in the Weekly Standard on the disgraceful "journalism" and  -- let's face it  --  copious lying that went on in the Rolling Stone's reporting of a gang rape. It's a rape that, I have come to believe from the available evidence, is a 100% hoax. It is, in that respect, like the Duke lacrosse rape hoax of a few years back: It's not just that the rape did not occur as reported; it's that it never occurred, period.  

Kent noted in this post that rape is a serious, ugly crime, and that its victims deserve justice.  I could scarcely agree more.  

What has happened in this episode shows at least two things are needed to start down the path to justice:  Go to the police instead of Rolling Stone, and tell the truth.

And one more thing.  Going on a date is not rape, getting offended is not rape, and being groped is not rape (although it is a battery).  Intercourse without consent is rape.  Words have meanings, and credibility depends upon respecting this fact.

Confidence in the Police

| No Comments
Kent's last post showed that the police are vastly more trusted than, among others, lawyers.  

Gallup also did a survey about confidence in the police in other wealthy countries around the world. The results demonstrate that the United States is slightly above the middle.  It's just below Norway, Denmark and Sweden, and just ahead of Portugal, the Netherlands, and the United Kingdom.

Specifically, 78% answered "yes" when asked, "In the city or area where you live, do you have confidence in the local police force, or not?" 

The survey is here.
Gallup does an annual survey asking, "Please tell me how you would rate the honesty and ethical standards of people in these different fields -- very high, high, average, or very low?"

Police officers took a bit of a hit this year, dropping six points on their "very high or high" rating, but they didn't change rank, still fourth of eleven.  It would tempting to attribute the drop to the highly publicized cases of late, but pharmacists had a drop nearly as large with no obvious cause.

The public seems a bit more cynical overall, with every occupation surveyed but one moving in the negative direction.  The one, believe it or not, is lawyers, with a small (and statistically insignificant) uptick of 1%.  Lawyers are still pretty low, though, seventh of eleven and only 21% "very high or high."  Frankly, given what some members of my profession do, I can't blame the people for that opinion.

Car salespeople and members of Congress bring up the rear.

And the most trusted of the professions ... ?

News Scan

| No Comments
TX High Court Upholds Death Sentence: The Texas Court of Criminal Appeals has upheld the conviction and death sentence for a man found guilty of murdering two people in 2011.  Paul J. Gately of KWTX News reports that 25-year-old Ricky Cummings appealed his sentence claiming improper jury selection and exclusion of some evidence related to his background.  Cummings' brother was also charged with the murders, but he agreed to a plead guilty in exchange for a 20 year sentence. 

Police Chief Blames Realignment For Crime Increase: A Northern California police chief is blames the state's Realignment law for an 11% increase in violent crime in his city over the past year.  Ian Thompson of the Daily Republic reports that while the level of property crimes was stable, the level of violent crimes such as rape and murder increased significantly.  Suisun City Police Chief Ed Dadisho believes the Governor's Realignment law, which shifted thousands of felons to county jails, has put a strain on local law enforcement and probation officers and contributed to the increased crime.  Dadisho also believes  that recently passed Prop 47, which converts several felonies to misdemeanors, will also increase crime.

DNA Evidence Leads to Cold Case Arrests: Police in Virginia were able to make arrests in three separate cold cases with the help of newly processed DNA evidence.  WFMY News reports that police were able to solve three sexual assaults dating back to the 1980's, and make arrests in each case.  Virginia Beach Police acknowledged that budget cuts to the state's Department of Forensic Science has slowed down the process of analyzing DNA, but they are confident that in time more cold cases will be solved.  

Rape, PTSD, and Being Believed

| No Comments
Abigail Hauslohner, WaPo Cairo bureau chief, has this poignant story of her long-ago victimization and its effects on her.  Along with her personal story, she has this comment on current controversies:

Today, what scares me the most about the debate raging over Rolling Stone's U-Va. rape story, and the magazine's apparent shortcomings in verifying it, is that the next woman who is raped at that school or any other might not come forward. Even if she does, people may be less likely to believe her, as her individual tragedy will probably be conflated with everyone else's opinion about this particular case.

So it pains me to think about how there are other women out there right now making the same "rational" decision that I did. According to the Rape, Abuse and Incest National Network, 97 percent of rapists will never spend a day in jail. That is largely because most rape victims, myself included, don't report the crime to the police to begin with.
I think this backlash effect is a real problem, not only with loose standards of journalism but also with ill-advised policies on college campuses.  Rape is a horrific crime causing long-lasting psychological damage.  At this point, we are in real danger of hurting rape victims by misguided efforts intended to help them.  The road to hell is paved with good intentions.
The Tennessee courts issued this press release earlier this month.

The Tennessee Supreme Court will hear oral arguments on December 18 in Nashville in an appeal by the State opposing the requests of several death row inmates who are seeking the identity of individuals involved in the lethal injection process.

The appeal arises from a challenge to the constitutionality of the Tennessee Department of Correction's execution procedures for lethal injection on various grounds by 11 of the state's death row inmates.


Terrorists Win, Freedom Loses Part II

| 1 Comment
Kyle Smith from the New York Post puts it aptly:

Freedom, you were a nice idea, but anonymous hackers with a strange fondness for North Korea don't like you. So I guess you'll have to go.

After a single random online threat from an anonymous source the Department of Homeland Security finds not particularly credible -- a source that, for all we know, could be a group of basement-dwelling pranksters trying to sound like North Koreans -- Sony pulled "The Interview."

If someone purporting to be from the KKK calls the Weinstein Co. to order it to pull "Django Unchained" from any further distribution, will Harvey say, "Of course. We wouldn't want to offend you nice people"? Can the American Nazi party stop Universal Pictures from airing "The Blues Brothers" on TV by issuing an especially forceful tweet?

As an arts and entertainment company, Sony Pictures has better reason than most to understand the importance of creative freedom, especially when that creation carries a political character. The same is true of the theater chains. Their chicken-hearted response to the threats is a warning to everyone who works in the arts that controversy is best avoided. 

Bill Kristol from the Weekly Standard also makes some excellent points.

A Note on Death Sentence Rates

| 1 Comment
The DPIC report to be released tomorrow, noted in the previous post, will also make a big deal about the number of death sentences per year being much lower than it was at the peak of 1996.  The regular drumbeat from the other side talking about sentencing and incarceration numbers as if they were independent of crime rates continues to both amaze and dismay.  Even worse is that people who should know better take this seriously.

Instead of the irrelevant number of death sentences, we should begin by looking at the number of sentences relative to the number of homicides.  Homicides rates have dropped nearly in half since the mid-90s, due in part to the tough sentencing that our opponents so strenuously opposed.  Using a two-year lag (death sentences over murders of two years earlier), the number of death sentences per 1000 murders this year was 38% of what it was in 1996.  That is a large drop, but not nearly as large as the irrelevant number you get comparing the simple count of sentences.

Why the drop?  Well, we have always said that the death penalty should be reserved for the worst of the worst.  In the early days after the restoration of capital punishment, it was not too unusual to see a death sentence for a simple robbery in which the victim was killed with no other major aggravating circumstances.  That is much less common today.  Prosecutors are more selective in seeking the death penalty, and juries are more selective in imposing it.

The other side has always said that is how it should be.  Now that it increasingly is that way, they cite that change as evidence that America is turning away from the death penalty.

Update:  David Savage has this story in the LA Times.

Update 2:  The Wall Street Journal, disappointingly, completely blows it by uncritically regurgitating the DPIC's spin.  Not a single mention of the drop in the murder rate over the same period.

Exoneration Inflation, Continued

| No Comments
Of all the propaganda efforts of the anti-death-penalty movement, the most successful has been the notorious "innocence list," which can be found on the website of the Death Penalty Information Center.  Six years ago, Ward Campbell published in the IACJ Journal (Institute for the Advancement of Criminal Justice) an article titled Exoneration Inflation noting the various ways that people have been included on the list even though they had not been determined to be actually innocent or if their cases were simply irrelevant to the debate over the present system because they were sentenced under a different, since-abandoned system.

Surprisingly, three of the latter made it on to the notorious list just this year.  Three men convicted in Ohio for a 1975 killing and removed from death row just a couple of years later when the statutes were struck down have now been released altogether.  It is indeed regrettable that they spent so much time unjustly in prison, but the cases have nothing to do with the current death penalty debate.  They were not sent to death row under a law anything like any law now in effect in the United States or that has been in effect for 36 years.

In a report to be released tomorrow the DPIC will crow about a "record" number of "exonerations" of "former death row inmates," but the fact that these three were briefly on death row under a long-ago abandoned system has no relevance to our current capital sentencing system.

News Scan

| No Comments
Accused Killer was on Probation: Authorities report that the Alabama man accused of killing an Auburn University football player over the weekend had a lengthy criminal history, and was on active probation at the time of the murder.  Jay Reeves of the Associated Press reports that 22-year-old Markale Hart is accused of murdering the college athlete after an argument broke out at a party.  Hart pled guilty in 2012 to a second-degree burglary charge and was originally sentenced to six years in jail, but under his plea agreement, he spent just six months behind bars with three years of probation.

Hundreds of Americans Kidnapped in Mexico in 2014: According to the FBI, nearly 200 Americans were kidnapped in Mexico in 2014, a figure that is alarming tourists and residents in several border towns.  Ildefonso Ortiz of Breitbart reports that according to a study conducted by the National Citizens Observatory, a kidnapping takes place every six hours in Mexico.  American citizens are often targeted for ransom paid by relatives in the states.  The U.S. State Department has issued a travel warning to Americans traveling to Mexico to avoid using highways at night.

OH High Court Upholds Death Sentence: The Ohio Supreme Court has upheld the death sentence for a man convicted of killing his ex-girlfriend and two young children in 2010.  Kathleen Maloney of Court News Ohio reports that Mark Pickens appealed his conviction and death sentence based on the claim that jurors were improperly questioned and that there was prosecutorial misconduct.  Pickens broke into his ex-girlfriend's home and killed her, her 9-month-old son, and a 3-year-old child she was babysitting.  Police report that the day prior to the killings, the woman accused Pickens of raping and beating her. 

Advance Directive

| No Comments
How bad are relations between New York City's top officials and its police officers?  The Patrolmen's Benevolent Association is distributing a unique advance directive for its members to sign:

Don't Insult My Sacrifice

I, _____________________, as a New York City police officer, request that Mayor Bill de Blasio and City Council Speaker Melissa Mark-Viverito refrain from attending my funeral services in the event that I am killed in the line of duty. Due to Mayor de Blasio and Speaker Mark-Viverito's consistent refusal to show police officers the support and respect they deserve, I  believe that their attendance at the funeral of a fallen New York City police officer is an insult to that officer's memory and sacrifice.

Tara Palmeri had this story Dec. 12 in the New York Post.

Terrorists Win, Freedom Loses

| 8 Comments
One thing we heard from people on the liberal side was that the country should be leery about becoming too security conscious in the wake of the 9-11 attacks.  The refrain became familiar:  Those who give up freedom for security will get neither.

I always thought that was an oversimplified and somewhat sloganeering approach to the dangers and complications of the post-9-11 world.  It has been given significant and ominous new meaning, however, by today's announcement by several large theater chains. As the WSJ puts it in a news release within the hour:

The largest theater chains in the U.S. have decided not to play Sony Pictures' controversial comedy "The Interview" on its planned Dec. 25 opening, said two people with knowledge of the matter.


Interrogation and the Law

| No Comments
Former Attorney General Michael Mukasey has this op-ed in the WSJ:

Considering that the now-abolished Central Intelligence Agency interrogation program adopted in the wake of 9/11 was intended to protect the U.S. from another deadly attack, it is stunning to hear those now criticizing the program issue the solemn reminder that "we are a nation of laws"--while devoting little attention to what was actually in those laws. Odder still, among the critics those who wrote the laws seem to devote the least attention to them.

Take, for example, Sen. Dianne Feinstein, the prime mover behind last week's release of a more than 500-page " Executive Summary " of the report by Democrats on the Senate Select Committee on Intelligence. She attaches her own six-page foreword, beginning with the dutiful assurance on the first page that the "horror" of the television footage of the 9/11 attacks "will remain with me for the rest of my life." Thus credentialed, Sen. Feinstein proceeds to the task at hand: CIA personnel "decided to initiate a program" of "brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values." Setting aside for a moment the reference to "our values," that statement is demonstrably false.
The statement is false, he goes on to demonstrate, because the enhanced interrogation techniques used were not torture as defined in the law.

Terror Around the Globe

| No Comments
It's a grim day in the news today.  Here are several articles from the WSJ:

Qasim Nauman, Safdar Dawar, and Saeed Shah report on the horrifying story of the Taliban in Pakistan taking over a school and methodically shooting schoolchildren in the head, killing 141 people.  That anyone with any political or religious cause, however fanatical, could deliberately and specifically target children for mass murder staggers the imagination.

Rebecca Thurlow and Lucy Cramer report from Sydney on the rememberance of the deceased hostages Katrina Dawson and Tori Johnson.  Mr. Johnson, the cafe manager, grabbed the perpetrator's gun when he saw an opportunity, beginning the termination of the siege and the freeing of all but himself and Ms. Dawson.  There is also a report that "Ms. Dawson was shielding her pregnant friend from gunfire."

Sony Pictures has received threats of terrorist attacks on showings of its comedy film "The Interview," which paints an unflattering portrait of North Korea's leader (who does such a good job of self-parody, he really doesn't need any help from Sony).  Ben Fritz, Danny Yadron, and Erich Schwartzel have this story.  Although the threats are "viewed as far-fetched by U.S. officials," they can't be taken lightly given the Aurora massacre.
Remember Edward Dorsey?  He was the defendant in Dorsey v. United States, in which the Supreme Court, 5-4, walked past the federal Savings Statute, 1 USC 109, to find that the Crack Pushers Bonanza Bill Fair Sentencing Act applied retroactively for the benefit of those convicted on or after the day it was signed into law, regardless of its effective date.

What happens when we make lighter drug sentencing retroactive?  Easy  --  the druggie gets out earlier.  And what happens then? Easy again  --  he gets back in business.  Why would he do anything else when he sees that we've lost our nerve?

The Sentencing Commission, in its rush to give breaks to drug dealers, has danced and pranced around their actual recidivism rate.  In fact, although the Commission understandably seems a bit reluctant to say so out loud, the drug recidivism rate is a staggering 77%.

With that in mind, I bring you today's news in the form of a press release from the United States Attorney's Office for the Central District of Illinois, home of our friend, Mr. "We Know He'll Go Straight From Now On" Edward Dorsey (emphasis added):

A New Forensic Tool for Rape Cases?

| No Comments
Rachel Feltman reports in the WaPo:

A new study suggests that the microbes present on pubic hair -- which vary from person to person -- could be used as evidence in sexual assault cases. This particular research is in its early stages, so you probably won't hear about genital microbes in a courtroom anytime soon. But the study is just one example of the effort to turn the incredible diversity of the bacteria that live on human beings into a high-tech forensic toolkit.
*                                      *                                   *
The researchers, led by Silvana Tridico from Murdoch University, took scalp and pubic hair samples from seven individuals (three male and four female, with one co-habitating couple in the mix). While hair from the head had around 50 kinds of bacteria a pop, and seemed to be influenced by the environment, pubic hairs had over 70 kinds of bacteria each, which were highly individualized. That's in line with previous studies on the vaginal microbiome, which has shown an unexpected diversity distinguishing one individual from another.

"The advent of DNA profiling has resulted in an increase of sexual offenders using condoms, which they take away, post-assault," Tridico said in a statement. "The implication of this present study is that the transfer of bacteria between victim and offender, in rape cases, may provide a new way of linking the offender to the victim, in instances in which no human DNA is transferred."

Facebook Presidential Announcement

| No Comments
Former Florida Governor Jeb Bush announced he will "actively explore" running for President in an unusual way today -- by posting on Facebook.

Laura Meckler has this article in the WSJ on Bush's record as governor.

On crime, he backed a mandatory sentencing law for offenders using guns and enhanced the state's concealed carry law. He also signed the "stand your ground" law giving people the right to use deadly force when threatened, which later played a role in the debate over the shooting of unarmed black teenager Trayvon Martin. Mr. Bush has said he didn't think the law applied in that case.
Nope, it didn't, as we have noted on this blog many times.  The article's description of the law is not correct.  People have a right to use deadly force when threatened with death or great bodily injury in every state.  A "stand your ground" law abrogates the exception existing in some states that one has a duty to retreat rather than use force even if he has the legal right to be where he is.  When one person has another pinned on the ground, "duty to retreat" is a moot point.  The Zimmerman case was a standard self-defense case and would have come out the same way if the bill in question had never passed.

Also in the WSJ, Beth Reinhard and Patrick O'Connor have this story on the launch.  They note the question that everyone wonders about:

The broader question is whether the Bush family name is an asset or a liability. "I can't see the country electing another Bush," said Sen. Tom Coburn (R., Okla.) "There's still hard feelings about George W. So you start out with a negative because you've got the wrong last name. If he didn't have that last name, he'd be a pretty good candidate."
If life were fair, the family name would not matter either way.  In the famous words of President Kennedy, "Who ever said life was fair?"  Even so, I think he's a "pretty good candidate" anyway.
Kent noted, here and here, the pendency in the en banc First Circuit of a case in which a district court ordered the Commonwealth of Massachusetts to pay the massive costs of sex re-assignment surgery for a convicted murder in its custody. The lower court had ordered Massachusetts to foot the bill, and a divided panel of the appellate court affirmed.

Today, the en banc court reversed, 3-2.  Its opinion, which I just found and have not yet read, is here.

With all the modesty due from someone in my unschooled position, I must say I'm relieved. We hear again and again that prison costs are out of control.  If the Eighth Amendment requires the taxpayers to foot the bill for exotic procedures like this, then the idea of getting them under control has all but vanished. 

I don't doubt, or at least I will assume arguendo, that a person who feels he or she was born into the "wrong" sex has a medically serious problem.  But there has to be some rational limit on what the taxpayers are required to do for a person whose own violent criminal choices have put him in the state's custody, 

The Abbottabad Letters

| No Comments
Here's an interesting development in the case of United States v. Khaled Al Fawwaz and Anas Al Liby in U.S. District Court in Manhattan. The court entered a scheduling order on motions regarding admissibility at trial of "documents recovered during the May 2, 2011 raid of Usama bin Laden's Abbottabad, Pakistan compound."  The text of the order follows the break.

I have the government's motion but not al Fawwaz's motion.  That is probably one of the many sealed documents not available to the public.  The government's motion says,

The Abbottabad Letters--including two authored by the defendant, himself--reflect his continued active participation in al Qaeda following eight years of incarceration in Iran. The Letters constitute powerful, direct, proof of al Qaeda's conspiracies to bomb and kill Americans, as well as Anas al Liby's knowing and intentional participation in them. Indeed, one can scarcely conceive of more powerful uncharged-acts proof than recent correspondence among bin Laden, his chief deputy, and the defendant about the defendant's continued participation in al Qaeda--including a 2010 letter from the defendant to bin Laden in which the defendant "ask[s] God to reunite me with you soon under the banner of Islam and the Islamic state and the banner of jihad." That is particularly true where, as here, the defendant's state of mind will be a central issue in dispute.
The legal argument relates to admissibility of "other acts" evidence under Federal Rule of Evidence 404(b).  The background paragraph begins with this statement:

On May 2, 2011, U.S. forces conducted an operation that resulted in the death of al Qaeda leader, and (formerly) charged co-defendant, Usama bin Laden.
I like that "(formerly)."  This is technically known in the trade as "mootness."

News Scan

| No Comments
Prop 47 May Jeopardize California Drug Courts: California drug courts may soon become a thing of the past due to the recent adoption 47, which transformed numerous felonies, including drug possession and gun theft, into misdemeanors.  Marisa Gerber of the Los Angeles Times reports that drug courts provide judges with a cheaper and more effective alternative to sending addicts to prison, however, what holds drug court participants accountable is the fact that they will face a felony sentence if they drop out of the program.  With that threat gone due to Prop 47, experts believe addicts have no incentive to participate in rehab. 

Murderer Mistakenly Released: A California man who murdered his wife before killing himself Sunday afternoon had been mistakenly released from jail by a substitute judge.  Tim Daly of News 10 reports that 46-year-old Roberto Ceja-Martinez was arrested in late November for being a felon in possession of a firearm, marijuana cultivation, and violating a restraining order. He was in county jail for a week before a retired and substitute judge released him on his own recognizance.  Police say that Ceja-Martinez beat his wife to death Sunday morning before setting her body on fire.

Family of Executed Ohio Murderer Sues: The family of executed murderer Dennis McGuire has filed a lawsuit against a former expert witness on lethal injection claiming that he should have known McGuire would suffer during the execution.  The Associated Press reports that in addition to suing Dr. Mark Dershwitz, the family has also filed a lawsuit against the company responsible for distributing the drugs, claiming that they should have known the drugs would cause unnecessary and extreme pain if used during an execution.  McGuire was executed in January 2014 for the 1989 rape and murder of a pregnant Ohio woman.


Academia, Stark Raving Mad

| 4 Comments
I am seldom left speechless by the incantation of brain-dead platitudes by our friends on the Left  --  having grown accustomed to them  --  but this letter from a Harvard Law student has done me in. 

The gist of the letter is that law student demands for a postponement of exams to give them time to "recover" from the "trauma" of the events in Ferguson and Staten Island, and the grand juries' decisions not to indict the police officers involved, is not a sign of weakness but of strength.

If I attempted to paraphrase this mishmash of psychobabble and Marxism, I would be accused of trying to make its author look bad.  And it's not that I wouldn't be tempted, let me tell you; it's that I lack the ability.  On the other hand, I doubt anyone has the ability.

The NPR Broadcast and Sentencing Reform

| 2 Comments
I want to thank NPR once more for giving me the chance to chime in about why "sentencing reform" (translation: meat-axe lowering of sentences) is a bad idea.  

As the show was presented this morning (transcript here), my principal adversaries turned out to be Judge John Gleeson of the EDNY, and Prof. (and Sentencing Commissioner) Rachel Barkow of NYU Law School.

Each made an important point, and both are dead wrong.
In a free country, peaceful protesters get to say what they want, see Snyder v. Phelps.*  While I think people who wallow in belligerent grievance are all wrong, in both doctrine and temperament, they have the right to speak what is in their minds and hearts.  Indeed, sometimes, I'm grateful they do, so that the rest of us can hear it without a filter.

This is one of those times.  Listen for yourself.

*  N.B.  This does not apply on college campuses.

Good Tidings of Great Joy

| No Comments
OK, that's an overstatement, but here's some welcome news, courtesy of Ed Whelan at NRO:

In January, the Senate Judiciary Committee will swing from a 10-8 Democrat-to-Republican advantage to an 11-9 Republican to Democrat advantage. Here are the eleven Republicans:

Chuck Grassley, Iowa (presumptive chairman)

Orrin Hatch, Utah

Jeff Sessions, Alabama

Lindsey Graham, South Carolina

John Cornyn, Texas

Mike Lee, Utah

Ted Cruz, Texas

Jeff Flake, Arizona

David Vitter, Louisiana

David Perdue, Georgia

Thom Tillis, North Carolina


Vitter, Perdue and Tillis are new to the committee (and Perdue and Tillis are new to the Senate). 

I am informed that NPR, on its "Morning Edition" tomorrow, December 16, will air a program about sentencing reform and, in particular, the politics surrounding that issue.  NPR was gracious enough to solicit my views, which are decidedly in the minority when stacked up against academics and Inside-the-Beltway interest groups. 

The show will be at 6 a.m., and then again at 8 a.m., EST.  It will also be available thereafter at www.npr.org.

I've said a bit  --  actually, a whole lot  --  about this subject, see, e.g., here, so I won't belabor readers with any long preview.  I will say one thing for now, however: While I might be a lonely voice among the well-financed pro-inmate groups, I sincerely doubt that I'm lonely at all among the public.  

Consider what the answer would be if the public were asked this:  "Which comes closer to your view of the major problem with our criminal justice system  --  that we have too many people in prison for too long, or that we still have too much crime?"

Then consider one more thing.  Do you think there's a reason those self-same interest groups never commission a poll asking that question?


"Hands Up," for Real This Time

| No Comments
Those eager to tar the police as racist thugs made full use of the "Hands Up" meme in the Ferguson episode, pushing the idea that Officer Darren Wilson shot and killed Michael Brown as Brown had his hands up in submission, trying to surrender.

Forensic and credible eyewitness accounts showed this story was fabricated. Brown, who moments earlier had undertaken the strong-arm robbery of a convenience store, did not have his hands up.  Instead, after having scuffled with the officer and attempting to wrest control of his revolver, Brown came at the officer again.  It was at that point that Wilson shot him.

The truth most fortunately persuaded the grand jury, but is simply irrelevant to the race hustlers and police haters who have never given up their fake slogan and, indeed, used it all over the country in demonstrations this weekend

News Scan

| No Comments
CA to Grant Inmate Laborers Early Release: In an effort to combat severe overcrowding, California prison officials have agreed to make thousands of inmate laborers eligible for early release.  The Associated Press reports that roughly 4,300 inmates who work as janitors, cooks, and groundskeepers in prisons across the state will start earning two days off their sentence for every day they spend behind bars with 'good behavior.' A group of federal judges will need to approve the proposal before any inmates are made eligible for early release.

Mexican Man Charged in Recent Texas Killing: A Mexican man is in custody and facing murder charges after authorities say he kidnapped and murdered a mechanic over an alleged debt.  Ildefonso Ortiz of Breitbart reports that police believe 38-year-old Juan Miguel Miranda, along with a group of other men, kidnapped the victim from his home and shot him to death on the side of a rural road in a Texas city near the Mexican border.  Police believe the kidnapping may be in response to a debt over drugs, human smuggling, or illicit activity.  This is the third kidnapping murder in the area since October.

Texas Legislature Looks to Expand Gun Rights
: Lawmakers in Texas have proposed several bills which would expand the rights of gun owners.  Fox News reports that one of the proposed bills would allow residents to openly carry handguns in public.  Current law permits the public display of long guns such as rifles and shotguns, but not handguns.  Texas adopted laws permitting concealed weapons in 1995.  Since then, more than 800,000 people have obtained their concealed handgun license.  

A:  Not a whole lot.

The country seems to have figured out that the adult answer to the moral questions about aggressive interrogation is that, when thousands of innocent lives are at risk from an enemy who has shown he regards snuffing them out as the pathway to heaven, you do what you need to.  As today's Washington Post reports:

A new poll from the Pew Research Center is the first to gauge reactions to last week's big CIA report on "enhanced interrogation techniques" -- what agency critics call torture.

And the reaction is pretty muted.

The poll shows people says 51-29 percent than the CIA's methods were justified and 56-28 percent that the information gleaned helped prevent terror attacks.

Earlier this morning, Bill noted that the U.S. Supreme Court decided Heien v. North Carolina, No. 13-604, and copied an accurate summary of the decision from the Heritage Foundation. I want to explore a little further the important distinction between the substantive scope of the Fourth Amendment and the judge-made rule of exclusion of evidence found to have been obtained in violation of that amendment.

Today's decision answers a question that does not arise that often.  Is a search "unreasonable" within the substantive scope of the Fourth Amendment if the police officer acts on an interpretation of the law that is reasonable (and not contrary to any precedent existing at the time) but that a court subsequently finds to be incorrect?  The Supreme Court says no, 8-1, but both the majority and the concurrence note that this is a more demanding standard than the generous one provided for qualified immunity for civil liability.  As Justice Kagan puts it in the concurring opinion,

If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a "really difficult" or "very hard question of statutory interpretation." 
I look forward to citing the "really difficult standard" in a brief.  Justice Kagan goes on to say these cases will be "exceedingly rare."  That is perhaps a tad of an overstatement, but I do not expect them to be common.

This case got to the Supreme Court with this question because, as Justice Sotomayor notes in the dissent, "unlike most States, North Carolina does not provide a good-faith exception as a matter of state law."  An exception, that is, to the rule that once a Fourth Amendment violation is found the evidence must be suppressed.  States can, if they wish, have broader exclusionary rules than federal law requires, so they do not have to follow the various good-faith exceptions that the U.S. Supreme Court has recognized.    This is why CJLF passed on the case and did not file an amicus brief.  Our interest is in the broader exclusionary rule question, not the interesting but rarely occurring substantive Fourth Amendment issue decided today.

So here is the bombshell question not answered today but reserved for a future case:  Should the U.S. Supreme Court stop carving out individual good-faith "exceptions" to an overall rule of suppression of evidence and instead make "bad faith" a required element of a defendant's motion to suppress evidence?
The Supreme Court today decided Heien v. North Carolina, No. 13-604, involving the propriety under the Fourth Amendment of a police search.  The Heritage Foundation aptly describes the decision this way:

The Fourth Amendment prohibits (inter alia) "unreasonable" searches and seizures.  For the past 50 years, the Supreme Court has crafted rules for law enforcement officers to follow, in order to make it easier for the police to know what is and is not reasonable.  Additionally, the Court has construed that term to allow the police to make reasonable mistakes of fact, reasoning that the "probable cause" necessary to effect a search or seizure does not require an officer to be absolutely right, just "reasonable."

Today, Roberts, writing for an 8-1 Court, ruled that the term "reasonable" includes reasonable mistakes of fact and law.  An officer, who mistakenly but reasonably believed that the driver of a vehicle had violated a state traffic law by having only one working brake light, stopped the vehicle and ultimately found cocaine, which was used to convict the driver and passenger.  Because the officer's interpretation of the traffic law was reasonable, Roberts concluded, there was no Fourth Amendment violation.  Kagan wrote a separate opinion, joined by Ginsburg, to emphasize the narrowness of the Court's opinion.  Sotomayor dissented on the ground that, regardless of how the exclusionary rule should be applied, there is no "mistake of law" exception to the Fourth Amendment.

Monthly Archives