Grand Theft Vino

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Kerana Todorov reports for the Napa Valley Register:

Investigators have recovered the bulk of the premium wine bottles stolen from The French Laundry on Christmas Day, according to the Napa County Sheriff's Office. No arrests have been made.
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The wine, with an estimated retail value of about $300,000, was reported missing Dec. 26 after an employee discovered someone had broken into the famed Yountville Michelin-starred restaurant. The suspect - or suspects - broke into the building sometime after 2 p.m. on Christmas Day, Pike said. The alarm system had not been set.
How big a truck do you need to steal 300 grand worth of wine?

The Underpolicing of Black America

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Jill Leovy has this essay in the WSJ:

In predominantly African-American neighborhoods of U.S. cities, far too many killers have gotten away with far too many crimes for far too long, fueling a disastrous murder epidemic. Solving these murders and other serious crimes of violence in black communities should be a top goal for law enforcement--and it deserves to take priority over much more widely discussed issues such as racial profiling and the excessive use of force by police in black neighborhoods, from Ferguson to Staten Island.
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But instead of checking this wave of urban violence, America threw up its hands. Prison terms per unit of crime in the U.S. hit rock bottom in the 1960s and '70s, making the U.S. one of the world's most lenient countries, as William J. Stuntz of Harvard Law School and others have shown. Reformers focused on the rights of defendants, remaining blind to the ravages of under-enforcement.

In the 1980s, a get-tough backlash hit, ushering in the current era of mass incarceration and long sentences. But unsolved homicides still piled up in black neighborhoods. Even as convicts grew old in prison, detectives remained overwhelmed by exploding street violence.

As noted here and here last week, the U.S. Supreme Court declined, 5-4, to issue a stay of execution for Oklahoma murderer Charles Warner, who raped and murdered a baby. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Charles Warner is to be executed tonight. He and three other Oklahoma death row inmates filed a petition for certiorari and an application for stays of their executions, contending that Oklahoma's lethal injection protocol violates the Eighth Amendment. I believe that petitioners have made the showing necessary to obtain a stay, and dissent from the Court's refusal to grant one.
Although it takes five votes to grant a stay, it only takes four to take up a case for full briefing and argument, and the Supreme Court today granted certiorari in the underlying case.  The case is No. 14-7955.  It is now titled Glossip, et al. v. Gross, et al., because Warner's case has reached the point of ultimate mootness.

Mark Sherman has this story for AP; Adam Liptak and Erik Eckholm cover it for the NYT.

Update:  Robert Barnes and Mark Berman have this story in the WaPo.

Last week's execution of Warner, who was put to death for raping and killing an 11-month-old girl, was carried out without much incident, witnesses said, although as the process began, Warner said, "My body is on fire."
"As the process began" is significantly misleading.  As I noted previously, the actual observation by the television reporter was:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."
Big difference.  Warner's statement is not evidence that the drugs being used are painful and cruel.  It is evidence that inmates facing execution are being coached to fake it, and some of them are going along with it.

Race Huckstering at Its Finest

I won't even try to characterize the depth of contempt for America and the extent of the guilt-mongering going on in this article from the Economic Policy Institute.  The title is, "Where Do We Go from Here:  Mass Incarceration and the Struggle for Civil Rights." So far as I can make out, its thesis is that no one, and in particular no African American, is responsible for his criminal behavior, and that it's only Jim Crow Amerika, now and forever, that causes people to be imprisoned:  Prison, you see, is merely the midwife of racist oppression.

If readers think that's an exaggeration, I invite them to read the piece and describe how else it might fairly be characterized.

My reason for posting something like this is to alert those who have a better opinion of the country and of the criminal justice system about what, exactly, we are up against. 

News Scan

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Bill Would Increase Punishment for Violent Crime: A bill introduced by Indiana Senator Brandt Hershman would allow prosecutors to seek the death penalty in cases involving murders committed on college campuses.  The Purdue Exponent reports that Senator Hershman hopes that by adding school shootings to the list of crimes punishable by death, it will deter future tragedies from happening on Indiana school campuses.  The bill may be heard by the states Senate Committee as early as next week.

House To Vote On Border Security Bill: A bill to secure the U.S. border with Mexico will be voted on by the House early next week.  The Associated Press reports that the bill, which would increase the use of drones, surveillance systems, and other forms of security technology at the border, already passed the House Committee on Homeland Security Wednesday evening by a vote of 18-12.  The bill would also mandate that operational control areas, which are designed to prevent illegal border crossings, be placed at high-traffic border spots within two years and along the entire border within five years.  

Convicted Felon Targeted In Cold Case Killings: An Oregon man, currently serving time behind bars for attempted murder, will  be extradited to California to face murder charges after DNA evidence linked him to two cold case killings.  Veronica Rocha of the Los Angeles Times reports that 66-year-old Rodney Halbower is accused of raping and murdering two women in Northern California nearly 40 years ago.  If found guilty, Halbower faces a minimum sentence of life without the possibility of parole.

News Scan

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Federal Charges Unlikely in Ferguson Case: Lawyers with the U.S. Justice Department are expected to recommend that no civil rights charges be brought against Ferguson, MO police officer Darren Wilson.  Matt Apuzzo and Michael S. Schmidt of the New York Times report that an investigation conducted by the FBI found that there was no evidence to support civil rights charges against Wilson in the shooting death of Michael Brown in August 2014.  Attorney General Eric Holder and his civil rights chief will have the final say on whether or not the Justice Department will close the case against Wilson. 

NY Assembly Speaker Arrested On Corruption Charges: New York Assembly Speaker Sheldon Silver has been taken into custody and will face criminal charges after authorities say he pocketed millions in a corruption scheme.  The New York Daily News reports that Silver, who is facing five counts of corruption, allegedly accepted $4 million in bribes and kickbacks from a variety of firms seeking his political influence in Albany, New York.  Each count against Silver carries a maximum of 20 years behind bars.  

FL Supreme Court Upholds Death Sentence: Florida's highest court has upheld the death sentence for a man convicted of brutally murdering a woman he met on Craigslist in 2010.  Larry Hannan of The Florida Times-Union reports that 23-year-old David Sparre tortured the woman and stabbed her nearly 100 times, admitting to police that he took pleasure in it and killed her for "the rush."  During trial, Sparre instructed his attorney not to present any evidence on his behalf, an issue Sparre's appeals attorney claimed was a violation of his rights.

NY Speaker Arrested for Corruption

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Reid Wilson reports for the WaPo:

Federal agents on Thursday arrested powerful New York Assembly Speaker Sheldon Silver (D) on federal corruption charges, stemming from payments he received from two New York City law firms.
Jennifer Queliz, a spokeswoman for the U.S. Attorney's office in the Southern District of New York, confirmed Silver was in custody Thursday morning. U.S. Attorney Preet Bharara will hold a press conference Thursday afternoon to announce the charges.
There is an interesting federalism question on the constitutional basis for federal prosecution of corrupt state officials.  It generally hinges on some tenuous connection with mail or interstate commerce.  In my view, a corrupt official denies the honest people of the state equal protection of the laws.  The bribe-payor gets special treatment that the honest people do not.  That is, of course, why he pays the bribe.  I haven't gotten any takers for my view yet.

Whatever the basis, prosecuting corrupt state officials is one of the most important functions of federal law enforcement.  Some valiant prosecutors do go after crooks who hold their purse strings, but we cannot expect that as a matter of course.

News Scan

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AK Considers Labeling Human Traffickers As Sex Offenders:  The Arkansas Legislature is considering a bill that would require criminals who engage in human trafficking or those who engage in sex with a human trafficking victim to register as sex offenders. Elicia Dover of KATV reports that the bill's author, Senator Jim Woods, believes that that the requirement would help law enforcement keep track of criminals convicted of these crimes.  

The Risks Cops Take:  Many who are demanding body cameras on police officers in the wake of the Michael Brown shooting may not like the idea so much when those cameras show the danger that officers face while trying to protect the public.  Case in point: Matt Pearce of The Los Angeles Times reports on the body camera video of a suspect shooting and killing a young Flagstaff, AZ police officer during routine questioning.  Like existing dashcams and DNA evidence, bodycams are going to help convict 99% of the suspects police officers confront, while reminding the rest of us how dangerous it is to be a cop.
I noted in my last post that President Obama erred in suggesting that crime and incarceration had both decreased for the first time in forty years.  The statistics are not yet in for 2014, and if the President was meaning to refer to 2013 (or any other year of his Presidency, for that matter), he was mistaken.

Six Supreme Court Justices attended the SOTU, including Justice Ruth Bader Ginsburg.  The tradition is that Justices do not react during the speech, lest they be thought to be expressing either approval or dissent from what the head of the Executive Branch is saying. (Although sometimes the temptation is too much for a truth-insistent Justice to resist).

Justice Ginsburg did a first-rate job of keeping faith with that tradition.

Fact Checking Obama on Crime and Incarceration

President Obama said in his State of the Union address:

Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.

Only one problem:  If the President is talking about 2013, which he certainly seems to be (as 2014 statistics on crime and incarceration rates are not yet available), his point is misleading.  The crime rate did indeed fall in 2013 (for the first time in three years), but incarceration increased.  As Obama's own Justice Department reported four months ago:

  • U.S. state and federal correctional facilities held an estimated 1,574,700 prisoners on December 31, 2013, an increase of 4,300 prisoners from year end 2012.

  • The 3-year decline in the prison population stopped in 2013 due to an increase of 6,300 inmates (0.5%) in the state prison population.

  • The federal prison population decreased in size for the first time since 1980, with 1,900 fewer prisoners in 2013 than in 2012.

  • The number of prisoners sentenced to more than a year in state or federal prison increased by 5,400 persons from year end 2012 to year end 2013.

  • The number of persons admitted to state or federal prison during 2013 increased by 4%, from 608,400 in 2012 to 631,200 in 2013.
For the last eight years, and until just a few days ago, Sen. Patrick Leahy of Vermont was Chairman of the Senate Judiciary Committee, an extremely powerful position.  In this piece from the Marshall Project, Sen. Leahy tells us what the President should say tonight about criminal justice reform:

The biggest issue facing our justice system today is our mass incarceration problem. The president has said before that we should enact laws that ensure "our crime policy is not only tough, but also smart."  But tonight, while he has the attention of every member of Congress and the American people, I want to hear the president say that he supports an end to all mandatory minimum sentences, as I do.  Mandatory minimums are costly, unfair, and do not make our country safer.  For too long they have served as an easy way to score cheap political points: Want to prove you're tough on crime? Just add another mandatory minimum to the law. No need to bother with evidence that they do not make us safer; they make a nice talking point. That policy fallacy is one of the reasons we have the largest prison population in the world. And why $7 billion - nearly a third of the Justice Department's budget - goes to the Bureau of Prisons instead of to community policing, victims services, or prison diversion programs that would make us safer and save taxpayers money.

I have made my position clear on mandatory minimums  --  they are a needed restraint on foolish and ideological judges. Congress was wise to pass them and wise to keep them.

Thus I wish to note here only that Sen. Leahy, for all his present indignation, did not so much as bring up for a vote, in the years he easily could have, legislation (the Justice Safety Valve Act) he co-sponsored, which would have done exactly what he says the political branches have been so remiss for failing to do.

P.S.  Sen. Leahy to the contrary, the biggest issue facing our justice system today is that we have almost 10,000,000 serious crimes a year, not counting trafficking in hard drugs.  That is well over four times the number of inmates.

(Hat tip to Doug Berman at SL&P).

Arguing One's Own Screw-Ups

One of the problems with allowing convicts to argue that their lawyers were ineffective, not just at trial but at every step of the review process, is that every time such a claim is raised we will hear an argument that a new lawyer must be appointed.  After all, we can't expect a lawyer to argue his own incompetence or dereliction of duty, can we?  But where does this end, if cases can be reopened without limit based on a claim the prior lawyer screwed it up?

Today in Christeson v. Roper, No. 14-6873, the Supreme Court holds summarily that the Federal District Court in Missouri should have appointed new lawyers to argue for relief after the first set blew the deadline.  The Court does not hold that relief should actually be granted.  Justices Alito and Thomas dissent from the Court's summary treatment, believing "plenary review would have been more appropriate in this case."

Under Coleman v. Thompson (1991), the tailspin of each lawyer asking for a new review by accusing the one before was dealt with by cutting off the right to effective assistance after the first appeal.  That protective mechanism is now going down the tubes, and we need a new one.

The 45-year-old proposal of Judge Henry Friendly is looking better and better.  Every defendant, no matter how clearly guilty, is entitled to a trial and an appeal, with a right of effective counsel for both.  After that, no more reviews unless he has a colorable claim of actual innocence.  I suppose at this point we would have to add ineligibility for the penalty.  In capital cases, one could also argue that the defendant is a minor, intellectually disabled, or a minor accomplice swept up in the felony murder rule, or that none of the circumstances that legally make a case capital are true.  That would be all.  In all other cases, i.e. most cases, we just wouldn't hear the claim.

If Judge Friendly's proposal is not politically palatable for the first habeas review, as he proposed it, surely we could at least apply it to all reviews after the first.  That would include an initial federal review following a state collateral proceeding.  In this case, the deadline missed was for federal review.  Christeson already had a full review of his claims in state court.

I've copied the facts of the case from that state supreme court opinion on direct appeal after the break.
Today the U.S. Supreme Court decided Holt v. Hobbs, No. 13-6827, regarding a prisoner's right to have a religiously mandated beard under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).  The Court decided unanimously that a 1/2 inch beard posed no threat to an institutional need that outweighed the prisoner's right to free exercise of religion.  The state had not articulated a good reason for not allowing it.

The result in this case doesn't bother me too much.  I am more concerned about the more extravagant applications of RLUIPA, such as the worshippers of Odin and their Annual Pork Feast.  No, I'm not making this up.

News Scan

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No Charges Filed In Shooting Of OK Police Chief: The Oklahoma man accused of shooting a police chief multiple times during an attempted arrest last week likely will not face any criminal charges.  CBS News reports that a man claiming to be Dallas Horton called 911 Thursday morning to report a bomb threat at a local elementary school.  When officers responded to his home, Horton fired several shots-hitting the police chief three times in the chest and once in the arm.  Horton claims that he didn't know that the police had entered his home and that he was unable to hear them identify themselves.

TX Set to Execute Triple-Murderer: A Texas man sentenced to death for a triple-murder more than two decades ago set to be executed by lethal injection Wednesday evening.  Michelle Casady of My San Antonio reports that 41-year-old Arnold Prieto was convicted of robbing and stabbing to death three elderly people in 1993.  Two of the victims happened to be his great uncle and great aunt.  Another man charged in the killings was 17-years-old at the time of the crime and was ordered to spend the rest of his life behind bars.

Supreme Court Sides With Bearded Muslim Inmate: In a unanimous ruling, the U.S. Supreme Court ruled in favor of allowing a Muslim prisoner incarcerated in Arkansas to grow a short beard for religious purposes.  The Associated Press reports that the court decided that Gregory Holt, who is serving a life sentence for brutally attacking his girlfriend, will be allowed to maintain a half-inch beard while incarcerated.  Prior to the ruling, Arkansas prison officials had prevented Holt from growing a beard citing security concerns.  

More dallying in death penalty review, and more potential for game-playing, are likely to be the results of today's per curiam Supreme Court opinion, as reported by the Heritage Foundation:

In ordinary civil litigation, if a plaintiff fails to file a complaint on time, the plaintiff cannot do so later; he loses. In habeas corpus cases, however, the filing period can be tolled for equitable reasons. In this case, the original lawyers for Christeson, a condemned state prisoner, did not file a habeas petition on his behalf before the filing time had elapsed. Different lawyers later sought to be substituted as counsel for Christeson so that they could argue that his earlier lawyers had abandoned him, a claim that Christeson's original lawyers could not advance without damaging their own professional interests. The district court refused to allow the new lawyers to become Christeson's counsel, however, and the Eighth Circuit dismissed the appeal for lack of jurisdiction, apparently reasoning that Christeson's new counsel were not authorized to file an appeal on his behalf. In a per curiam opinion for seven Justices, the Supreme Court reversed and held that only new lawyers could adequately raise the claim that there was a conflict of interest between Christeson and his original counsel, a claim that, if accepted, would excuse Christeson from not having filed his habeas petition on time. Alito filed a dissenting opinion, joined by Thomas, concluding that the Court ought not to have decided the case without full briefing and oral argument.  

The opinion is  CHRISTESON v. ROPER, No. 14-6873. 

The White Collar Crime Prof Blog has this entry, from the Ninth Circuit of all things:

The case is United States v. Dibe. Claudio Dibe pled guilty, without a plea agreement, to wire fraud and received a below Guidelines sentence. He complained on appeal that his sentence would have been lower if the sentencing court had considered his counsel's ineffective assistance in failing to adequately explain the benefits of the government's initial plea offer. The Ninth Circuit held that ineffective assistance of counsel cannot be considered as a mitigating under 18 U.S.C. Section 3553(a). Distinguishing the U.S. Supreme Court's opinion in Pepper v. United States, 131 S.Ct. 1229 (2011), the Ninth Circuit noted that counsel's alleged ineffective assistance "has nothing to do with [Dibe's] own conduct."

News Scan

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FL Governor Sets Execution Date: A Florida man convicted of murdering four people will be executed late next month after spending 30 years on death row.  Gal Tziperman Lotan of the Orlando Sentinel reports that 59-year-old Jerry Correll was found guilty in 1985 for the stabbing deaths of his ex-wife, five-year-old daughter, mother-in-law, and sister-in-law.  Correll exhausted all of his appeals in February 2014, he is scheduled to be executed February 26.

Law Allows Killers To Escape Prosecution: Police in New Mexico are urging reform on the state's 6 year statute of limitations for second degree murder, which one state legislator hopes to change later this year.  Emily Younger of KRQE News reports that under current New Mexico law, the 6 year limit has allowed admitted killers to get away with murder.  The issue has been brought to state legislators twice before, and both times, proposed legislation died in a Senate committee hearing.  New Mexico is the only state in the union that has a statute of limitation for second-degree murder.

OK Bill Targets Inmate Behavior: Oklahoma Senator Wayne Shaw has introduced legislation to improving inmate behavior in state correctional facilities and possibly reduce the prison population.  Barbara Hoberock of Tulsa World reports that the bill would allow inmates convicted of crimes requiring them to serve at least 85% of their sentence to start earning early release credits at the beginning of their sentence rather than the end.  Shaw believes this incentive will encourage better behavior from the start of a criminal's sentence.  Under current state law, offenders required to serve a minimum of 85% of their sentence include those convicted of murder, child pornography, human trafficking, and rape.

Sarcasm at SCOTUS

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Adam Liptak has this article at the NYT.  He reports on research on sarcasm in Supreme Court opinions by Professor Richard Hasen at UC Irvine, who concludes that Justice Scalia is the most frequently sarcastic of the justices.

When I first read the blurb on this story in my NYT alert email, my first thought was that the research would qualify for the Well, Duh Award for Research Confirming the Obvious.  After reading the article and the description of Prof. Hasen's methodology, though, I conclude that the more appropriate citation is the Even A Stopped Clock Is Right Twice A Day Award for research with incredibly bad methodology that happens to hit the correct answer.

New SCOTUS Cases

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The U.S. Supreme Court has taken up a number of new cases for full briefing and argument.  All the buzz is about the same-sex marriage cases, off-topic for this blog.  There is one actual criminal case, McFadden v. United States, No. 14-378.  The question presented is:

Whether, to convict a defendant of distribution of a controlled substance analogue - a substance with a chemical structure that is "substantially similar" to a schedule I or II drug and has a "substantially similar" effect on the user (or is believed or represented by the defendant to have such a similar effect) - the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.
Kind of an interesting "mental state" question, but not a big case.

News Scan

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DNA Evidence Leads to Cold Case Arrest: Authorities in Texas have revealed that recently tested DNA evidence has resulted in the arrest of a suspect in a double-murder that occurred more than 30 years ago.  The Associated Press reports that the suspect, 57-year-old Edmond Degan, is accused of sexually assaulting and murdering two adult sisters in Houston in 1984.  Degan has a lengthy criminal past and has been convicted of a variety of felonies including aggravated robbery, assault, and making terrorist threats.    

NJ Bill Would Improve Megan's Law: A New Jersey assemblyman is sponsoring a bill to strengthen Megan's Law.  Kevin McArdle of New Jersey 1015 reports that the bill would add a sex offender's employment address and information about their school enrollment.  The bill also requires public notification whenever an offender can not be located or has violated registration requirements.  Additionally, information about all registered sex offenders would be available online.  Currently, only information about high and moderate-risk offenders is available to the public.   

Too Much Pot In Washington: Licensed marijuana growers in Washington state have too much pot and not enough buyers.  Dispensary owners are worried they may be put out of business.  Gene Johnson of the Associated Press reports that the majority of the state's marijuana users prefer buying untaxed pot sold from black market dealers or unregulated marijuana dispensaries.  The state estimates that less than 20% of the 31,000 pounds of marijuana harvested last year was sold in regulated pot shops, leaving dispensaries with too much marijuana and not enough revenue to keep the shops running.

Execution Follow-Up

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Yesterday, Justice Sotomayor's dissent in the Oklahoma case credited the murderer's experts that the procedure risked extreme pain if the midazolam did not sufficiently anesthetize the inmate before the second and third drugs were administered.  Do the statements of baby-rapist-murderer Charles Warner -- "It feels like acid" and "My body is on fire" -- confirm her fears?

Nope.  One of the witnesses was Abby Broyles of Oklahoma City television station KFOR:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."
Before?  What's up with that? 

A year ago, an inmate about to be executed told guards that his lawyer urged him "to fake symptoms of suffocation" during his execution.  See this post. He reportedly told the lawyer no way.  Did Warner receive similar urging and go along with it, but get the timing wrong?  We will never know, but that seems to be the most likely explanation.

Broyles said it did not appear Warner was in pain. He never raised his head off the gurney and did not convulse the way Lockett did last April.

Sean Murphy with the Associated Press said afterwards, "It appeared the sedative worked."

A Letter to AG Holder

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Snopes confirms that a much discussed, scathing open letter by retired FBI Agent K. Dee McCown to Attorney General Holder is genuine.
The two executions noted in today's News Scan have been carried out.  In the Oklahoma case, the Supreme Court voted 5-4 to deny a stay on the murderer's claim regarding the use of midazolam as the first drug of the three-drug protocol.  Justice Sotomayor wrote a dissent.

The only reason any state uses midazolam is that pentobarbital, the drug veterinarians use every day for euthanasia, is unavailable.   It is made in the United States but its manufacturer, Akorn, places resale restrictions on its distributors.  Akorn does that because the agreement by which it acquired the rights to the drug from Lundbeck, a European company, requires it to.  Lundbeck was pressured into restricting sale by anti-death-penalty forces in Europe.

So here we are with a domestic policy choice that is ours to make and none of Europe's damn business being impacted by Europe, with the perverse result that there is some possibility that murderers may suffer more pain in execution as a result, if the concerns noted in Justice Sotomayor's opinion have any validity.

The solution is simple.  Congress can and should declare resale restrictions on pentobarbital void as restraints on trade and against public policy.

News Scan

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CA High Court Denies Killer's Appeal: The California Supreme Court has refused to hear the appeal of a man convicted of murdering a woman during a botched robbery attempt in 2009.  City News Service reports that attorneys for convicted killer Michael Bonfiglio appealed their client's life sentence based on the claim that there wasn't enough evidence to support the special circumstance allegation that the victim was killed during a robbery-which in California, results in an automatic life sentence.  Bonfiglio, along with two other men, shot the young woman to death in order to steal her laptop.  All three men were sentenced to life in prison without the possibility of parole. 

Prop 47 to Blame for Recent Crime Increase: Law enforcement officials in Fresno, CA believe that the recent increase in crime in their county is a direct response to last November's passage of Proposition 47, which reclassified several property and drug crimes from felonies to misdemeanors.  John Ellis of the Fresno Bee reports that prior to the passage of Prop 47, auto theft was down 26% in Fresno County, it has since increased by 7.8% in November and 9.8% in December, a trend that is worrisome to law enforcement officials.  Along with auto theft, rates of burglary and other property crime in Fresno County have also seen a recent increase.

FL, OK set to Execute Convicted Killers: Two condemned killers, one in Florida and the other in Oklahoma, are scheduled for  execution this evening after spending decades on death row.  Jon Herskovitz and Bill Cotterell of Reuters report that Florida inmate, 42-year-old Johnny Kormondy, was sentenced to death in 1993 for murdering a banker and sexually assaulting the man's wife during a home invasion.  Oklahoma's death row inmate, Charles Warner, will be executed for the rape and murder of a young child.

News Scan

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GA Executes Murderer: A Georgia man who was sentenced to death for the murder of a police officer in 1998 was executed for his crime Tuesday evening.  The Associated Press reports that 66-year-old Andrew Brannan shot and killed the sheriff's deputy after he was pulled over for speeding on a Georgia interstate, video of the incident shows Brannan engaging in a physical confrontation with the officer before shooting him nearly a dozen times.  Brannan's attorneys argued that their client suffers from mental illness due to his service in the military, but the state's high court upheld his conviction and denied a stay of execution.

MS Cops Questioning Length of Sentencing: The recent arrest of a shooting suspect, who happens to have a lengthy criminal history, has some law enforcement officers in Mississippi questioning if inmates are being released from prison too early.  Jonathan Brannan of WLOX News reports that a law that went into effect last July reduced the minimum time violent offenders spend behind bars to half of their sentence, and allows non-violent offenders to serve just a quarter of their sentences.  The law, adopted to make the state justice system more efficient and less expensive, has allowed the early release of dozens of serious criminals to commit more crime.  

TX Death Row Inmate Loses Appeal: A Texas man on death row for the murders of two police officers in 2007 has lost his most recent appeal to the U.S. Supreme Court, bringing him one step closer to execution.  Reagan Roy of KETK News reports that Randall Mays challenged his death sentence and impending execution based on the claim that he is mentally handicapped, making him ineligible for execution.  Mays is scheduled to be executed March 18, 2015.

Ed Lee at iSCOTUSnow has been predicting the outcome of U.S. Supreme Court cases based on the number of questions asked each side during oral argument.  "Studies have shown that the advocate who receives more questions during oral argument is more likely to lose."  It's a strong correlation as these things go, but correlation is not certainty.  Here is the October 15 prediction in Jennings v. Stephens:

My prediction is that the Court will side with the Respondent Stephens' position (i.e., that the Fifth Circuit correctly decided the case). This case is easier to predict [than a civil case argued the same day]. The Petitioner Jennings received 14 more questions than the Respondent Stephens, which is a fairly large differential in questioning that suggests a win for Stephens (the Director of the Texas Department of Criminal Justice, Correctional Institutions Division).

Even so, the predictions are well worth watching, and the record is quite strong overall this term.

Habeas Appeals and Alternate Grounds

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Today the U.S. Supreme Court decided Jennings v. Stephens, No. 13-7211, regarding the issues a habeas petitioner can raise on appeal when the district court accepts some of his claims but rejects others and the state appeals.

Congress long ago placed a limitation on appeals by habeas petitioners, recognizing that the vast majority of petitions are meritless.  In 1996, Congress bolstered the filter for appeals by adding a requirement that a certificate of appealability specify the issues will potential merit and limiting the appellate court's jurisdiction to the identified issues.

How does this requirement apply to a case where the petitioner actually wins on one of his issues, and the state is the party appealing the decision?  For the most part, it doesn't, the Court held 6-3.  The court applied the standard rule for appeals in other kinds of cases, that the party prevailing in the trial court can raise the issues rejected by that court as long as he does not seek different or greater relief than he obtained in that court.

I do not think this result is consistent with the purpose of the issue-specification requirement, although it is not contrary to any language in the statute.  I very much doubt that anyone in Congress even thought about this particular wrinkle as the legislation was moving through.  It will present a practical problem for the courts of appeals in cases where petitioners file hundreds of claims, most of them frivolous, as is increasingly common in capital cases.

This is a loss, but not a big one in overall scheme of things.

The real goal of CJLF's brief in this case was to get the Supreme Court to finally define what is a "claim" for the purpose of habeas corpus.  That question was squarely presented six terms ago in Bell v. Kelly (CJLF brief here), but the Court dumped the case.  The manner in which the Court resolved the appeal issue in Jennings made it unnecessary to decide that question today.  We will keep on keeping on.

A Safer Country, Credibly Reported by the NYT

I have not been shy about criticizing editorial stands in the New York Times, most recently its decision to label as "self-pitying" the NYPD's attitude of disgust with the dalliance between Mayor de Blasio and vitriolic enemies of the police, including but hardly limited to Al Sharpton.  The Times used the adjective "self-pitying" to describe the NYPD before the second murdered officer, Wenjian Liu, was even buried.  At that time and under those circumstances, I considered, and still consider, applying the label "self-pitying" to Liu's brothers on the force somewhere between callous and vile.

But credit must be given where due.  Yesterday, Erik Eckholm published a piece in that self-same NY Times noting that, with crime down so much over the last generation, some prominent people in both parties have started to think about reducing prison costs. Not surprisingly, the piece gives most of its attention to those who favor incarceration and sentencing reforms.  Still, when Mr. Eckholm spoke with me in preparing the story, I found him fair and patient, and he correctly quotes me in the article as saying, "When people are incarcerated, they're not out on the street to ransack your home or sell drugs to your high school kid."  I thought that was an apt quotation, summarizing the intuitive reason most people understand that more incarceration means less crime  -- something that has been reliably true for at least the last 50 years.

One quite useful item in the article is a sidebar graph showing the staggering crime decreases since the peak year, 1991.  It was, of course, the early Nineties when the determinate (and tougher) federal sentencing system of the Reagan era  --  copied in many states  --  started to kick in.  More criminals stayed in jail longer.

For those who want to believe that there's only an ineffably mysterious relationship between the amount of crime we get on the street and the number of criminals we take off the street  --  hey, go for it.  There is nothing I'll be able to do to change your mind.

News Scan

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Cop Killer's Appeal Before NH Supreme Court: New Hampshire's highest court will hear argument in the case of a man sentenced to death for the 2006 murder of a officer Michael Briggs.  Lynne Tuohy of the Associated Press reports that for the first time, the state's Supreme Court will be examining whether or not the death sentence was fair compared to similar cases around the country.   Defendant Michael Addison is black and officer Briggs was white, a factor Addison believes contributed to his death sentence.   

MI To Collect DNA Samples Of Arrested Felons: Michigan Governor Rick Snyder has signed legislation that will allow police to collect a DNA sample at the time of arrest for all felonies.  WNDU News reports that the legislation will improve public by helping to identify repeat violent criminals earlier on in the investigation process.  DNA samples will only be sent in for testing where the individual is being arraigned, 28 other states have similar legislation that allows for DNA to be taken from felony suspects upon arrest.

Mexican Drug Cartels Flood U.S. With Heroin, Meth: According to recent drug seizure statistics, Mexican drug cartels are now smuggling increased amounts of heroin and methamphetamine across the U.S. border, a problem experts believe in large part is due to states which have decriminalized marijuana.  Nick Miroff of the Washington Post reports that with many states now selling legalized marijuana, the demand for lower quality marijuana smuggled into the US has fallen. In response drug cartels are switching to smuggling cheap heroin and meth.  The Drug Enforcement Agency estimates that 90% of the meth in the U.S. today was cooked in Mexico-where the chemicals to make it are far easier to obtain.   

A:  He didn't.  It wasn't an oversight.  His absence was a deliberated decision.  Byron York in the Washington Examiner explains why, and I'll get to that, but I want to say just a word first about how the White House has handled this.

Essentially, there has been no explanation.  The press secretary said it was a mistake, and has kind-of-sort-of suggested that arranging security quickly would have been a problem.  But to say it was a mistake is not to explain why it happened, and the notion that security could not have been arranged is preposterous (which the traveling press corps knows, accounting for the fact that it isn't really being pushed).

So why did Obama stay put while the heads of state and prime ministers from 40 other countries took part?  As York writes:

The administration no-shows were not a failure of optics, or a diplomatic misstep, but were instead the logical result of the president's years-long effort to downgrade the threat of terrorism and move on to other things.

"The analogy we use around [the White House] sometimes, and I think is accurate, is if a JV team puts on Lakers uniforms, that doesn't make them Kobe Bryant," Obama told the New Yorker magazine in a January 2014 interview. The president was referring to the Islamic State of Iraq and Syria but was also suggesting in a broader sense that a number of post-9/11 offshoot terrorist organizations aren't worth the sort of war-footing mobilization that took place in the George W. Bush years.


Fast forward to January 2015. The attackers at Charlie Hebdo magazine and the Hyper Cacher kosher market in Paris would undoubtedly qualify as JV-level terrorists under Obama's new classification. But their work was enough to shock Europe and motivate more than a million people to gather behind dozens of heads of state at the unity rally Sunday. 

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