Wednesday, June 30, 2010

Crime Reporting: Baltimore Under the Microscope

The Baltimore Police Department is in the middle of a firestorm over under reporting sexual assault. Baltimore police deem nearly one-third of rape reports "unfounded," meaning they believe they are false or baseless — more than in any other city in the country, according to a Baltimore Sun investigation.

Under reporting crime in a national problem. New York City, Dallas, Houston and Boston to name a few have come under fire for fudging crime statistics. Politics and honest crime reporting do not always mix. Baltimore has a history of under reporting. According to the Sun, in 2000, police had to reclassify 9,572 reports because they had been wrongly downgraded to lesser offenses, turning a much hyped 10 percent crime drop into a 3.5 percent increase.

The Sun reported that Sheldon F. Greenberg, a former Howard County police officer who now heads a police executive training program at the Johns Hopkins University, said the over-reliance on numbers encourages manipulation.

"Too many police executives around the country are judged by good stats and the absence of problems," Greenberg said. "If you don't upset the apple cart and generate good stats, you're considered in high regard, regardless of whether the community is better."

Greenberg said that cops dismissing and downgrading crime has been going on — and will go on — as long as politicians need the low crime figures to win elections. Cops are so intent on bringing down the numbers that they have no time to do the work required to actually reduce crime, he said.

To read more:,0,1517804.story

Tuesday, June 29, 2010

Supreme Court Smacks Down Chicago Gun Ban

Court Blasts City for Not Protecting Residents of
High Crime Areas

Yesterday, in McDonald v. Chicago, No. 08-1521, the U.S. Supreme Court by a 5-4 vote found Chicago's 28-year-old ban on handgun ownership unconstitutional. The Court ruled that the Constitution gives individuals equal or greater power than states on the issue of possession of certain firearms for self-protection.

"It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as states legislated in an evenhanded manner," wrote Justice Samuel Alito.

Justice Alito further noted that "the plight of Chicagoans living in high-crime areas" was highlighted by legislators, who had compared the number of people murdered in Chicago to the number of soldiers killed in Afghanistan and Iraq, while also noting the majority of victims were minorities.

The ruling went on to state that if the petitioners are correct in asserting that law-abiding citizens feel their safety would be enhanced by having a handgun in their homes, then "the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials."

Chicago officials were incensed by the Supreme Court's portrayal of the city's crime prevention efforts and the seemingly over the top condemnation of the Chicago Police Department and elected public officials.

Roseanna Ander, executive director of the University of Chicago's Crime Lab, told the Chicago Tribune she understood the argument set forth in the opinion — that people in high-crime areas might believe they'd be safer with a gun in their home. But research shows that gun availability leads to more bloodshed, not less, she said.

"I understand the concern about public safety, but that is not going to get you a safer public," Ander said. "That is a solution that doesn't fit the problem. It's putting gasoline on a fire. What we need is more water."

Ander told the Tribune, that rather than put more guns on the street, policies and strategies that "reduce the availability of guns (rather than) increase the availability of guns in these high-crime areas" should be considered.

To read more:,0,4477173.story

To read the Court's opinion:

Monday, June 28, 2010

Texas Judge Schedules Hearing on Execution of Innocents

Texas State District Judge Kevin Fine set a hearing for November 8 to hear evidence on whether there's a substantial risk the state's death penalty law allows for the possible execution of an innocent person. The issue arose during pre-trial proceedings for John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery.

Judge Fine initially granted a defense motion in March, declaring the Texas' death penalty law unconstitutional because he believed it is safe to assume innocent people have been executed. He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality.

According to the Associated Press, the Harris County District Attorney's Office had filed a motion asking to remove Fine from the case, accusing him of being biased against capital punishment. But another judge appointed to review the motion denied the request in May, saying Fine's impartiality could not be reasonably questioned.

The November hearing could last at least two weeks and death penalty experts from around the country are expected to testify, according to Green's attorneys.

To read full article:

Sunday, June 27, 2010

Mentally Ill Inmate Scheduled for Execution

US District Court Judge ruled that there was no categorical prohibition on the execution of people with mental illness

Jonathan Marcus Green is scheduled to be executed after 6 p.m. on Wednesday, June 30, 2010. Green was sentenced to death for the 2000 kidnapping, rape and murder of a 12-year-old girl in Montgomery County, Texas. If the execution is carried out Green will be the 14th person in Texas and the 30th person nationally executed in 2010.

On October 5, 2009, the U.S. Supreme Court denied certiorari review of the district courts dismissal of Green's Writ of Habeas Corpus. He has exhausted his state and federal appeal rights. There is no pending litigation.

The facts leading to Green's conviction are chilling. According to the Texas Attorney General, on the evening of June 21, 2000, 12-year-old Christina Neal disappeared after leaving a friend’s home in the small community of Dobbin, TX.

The girl’s family began looking for her the next day, after determining that she had not stayed overnight at a friend’s house. Christina’s glasses were found along a road near the Neal home. The glasses were “smashed and broken.”

On June 23, the girl’s father, Victor Neal, asked his sister to look for Christina while he was at work. Christina had run away before, so Victor told his sister to report her as a runaway if she could not find her. Later that day, having failed to locate Christina, the sister reported her missing to a Montgomery County Sheriff's deputy. Officers then joined the family in searching for Christina.

On June 26, the FBI joined in the search. Christina's panties were found at the edge of the woods across from the Neal home, and Christina's bracelet and necklace were found along a pathway in the woods.

On June 28, investigators spoke with Jonathan Green, who also lived in Dobbin, because his wallet was discovered in the vicinity of Christina’s disappearance. Green said he had no information concerning Christina's disappearance, and that he was either at home or at his neighbor's house on the night she disappeared. He gave investigators permission to search his home and property, with the condition that he be present. Investigators performed a cursory search of the house and property, but they noticed nothing significant.

On July 19, a man who lived on the property behind Green's, told investigators that Green had an unusually large fire in his burn pile the day after Christina disappeared. A few days later, investigators went to Green's home and asked if they could search his property again, including his burn pile. Green again consented, but insisted that he be present during the search. An FBI agent smelled a distinct odor emanating from a disturbed section of ground which he identified as “some sort of decaying body.” The investigation team then began to dig up the disturbed area. Green, who had been cooperative up to that point, became angry and told the officers to get off his property.

The investigative team returned to Green's property later that night with a search warrant. They discovered that part of the burn pile had been excavated, leaving what appeared to be a shallow grave. They also smelled the “extremely foul, fetid odor” of a “dead body in a decaying state.”

An officer then arrived with a “cadaver dog,” trained to detect human remains. The dog repeatedly went to the side of a recliner in the house. An FBI agent looked behind the recliner and found human remains in a bag that were identified as Christina’s. An autopsy concluded that Christina was sexually assaulted and then strangled.

During the course of the autopsy, various materials were recovered from Christina's body.

DNA testing on black hairs found on Christina’s body indicated a higher probability the hairs came from Green.

A Texas Department of Public Safety crime lab criminalist testified that many of the fibers recovered from Christina's body matched fiber samples seized from Green's property and residence. On the panties that were recovered near the Neal home five days after Christina had disappeared and nearly a month before her body was found, investigators found a fiber that had characteristics identical to carpet in Green's residence.

On July 15, 2002, a jury convicted Jonathan Green of the capital murder of Christina Neal. At the sentencing phase, at which the prosecution presented evidence of previous acts of violence by the defendant, the jury concluded that there was a reasonable probability that Jonathan Green would commit future acts of criminal violence constituting a threat to society, and that there was insufficient mitigating evidence to warrant a life sentence. He was sentenced to death.

In an appeal filed in federal District Court in 2007, Jonathan Green’s lawyers argued that he was suffering from a serious mental disorder and was “actively psychotic”, experiencing a variety of hallucinations as well as paranoia. In February 2008, the US District Court Judge ruled that there was no categorical prohibition on the execution of people with mental illness under, and the claim that Green was incompetent for execution could not be ruled upon until his execution was imminent.

Judge: Death Penalty Not Morally Acceptable

This article was written by New Hampshire Judge Joseph P. Nadeau. The article was published in today's edition of the Nashua Telegram. Judge Nadeau sets forth an intellectually honest personal appraisal of the death penalty and why he believes the penalty should be abolished. In the modern era, death penalty opponents rarely invoke morality. The debate is about age, mental capacity, lethal injection, cost, delay and race to name a few. It is refreshing to hear someone in the criminal justice system argue that the death penalty should be abolished because it is simply morally unacceptable.

It has been my good fortune to serve as a judge in New Hampshire for 37 years. For 13
of those years I was presiding justice of the Durham District Court.

I served as a justice of the Superior Court for 18 years, nine of which I spent as chief justice. And I sat on the Supreme Court for six years before retiring in December of 2005.

I am proud of our judicial system and the effort of judges in all our courts to treat people fairly and equally, and to protect their individual rights.

While serving as a judge, I rarely expressed my opinion on capital punishment privately, and until now I never expressed my opinion publicly. Nor did I let my personal opinions influence my judicial decisions.

In fact, in 1998 I presided over the capital murder case of Gordon Perry, and on every motion filed on his behalf challenging New Hampshire’s capital punishment statute, I ruled he had not established that the law violated our constitution.

Last week, I appeared before the New Hampshire Commission to Study the Death Penalty, whose members I commend for their willingness to undertake the important and challenging task assigned to them by the legislature.

My purpose in speaking to the commission was not to talk about facts and statistics or trials and cases but to address the moral issue of death as punishment.

The way we have been dealing with the death penalty for years is to talk about enacting laws, adopting procedures, establishing practices and providing mechanisms, as if by creating an elaborate process we could somehow sanitize the death penalty and thereby ignore the moral issues that capital punishment presents. We cannot.

I appeared before the commission to answer one straightforward but complex question: Do I believe the systematic killing of another human being by the state, in my name, is justified?

My answer to that question is: No.

During my tenure as a judge, I met many people with strong opinions about capital punishment. Through most of that period, over two-thirds of those polled in the United States regularly supported the death penalty. Some people I respect still do. So you would think that anyone looking for answers based upon public opinion or strongly held views should have an easy task.

What is the problem, then? In the face of these odds, why do we continue to struggle with the acceptability of death as punishment? I believe one reason we engage in this process is that no matter what some people say publicly about capital punishment, deep inside many are not as certain as they proclaim.

I believe another reason is that our thinking evolves, as people, technology, and societies progress. And what is acceptable at one time in our history may become unwelcome at another. If that is true then, we are encouraged to re-examine our core principles and to consider whether death continues to be an acceptable punishment in New Hampshire.

I have great respect for the offices of the Attorney General and the Public Defender and for the integrity and competence with which the attorneys in those offices handle homicide cases. The primary source of my continuing concern about the death penalty, however, is not New Hampshire’s limited capital murder experience but my own professional exposure to criminal justice issues.

There is no question that people who commit murder must be punished and should be removed from society. Life in prison without parole does both. It is interesting to note that two states, New Hampshire, which has not employed the death penalty since before Pearl Harbor, and North Dakota, which does not condone capital punishment, did not need death to achieve the lowest murder rates in the nation every year of this century.

No legal system is perfect. Human beings make mistakes. That is one reason we accept the notion that occasionally the guilty will go free and the innocent will be convicted. But I do not believe anyone accepts the notion that it is alright for a person to be wrongfully executed.

So with the most respected judicial system in the world, how can we willingly embrace a sentence which cannot be reversed after it is imposed; and how can we continue to believe that it is morally acceptable for the state to take a human life?

My answer is, we cannot.

As most of us, I have never experienced the emotions felt by a murder victim’s loved ones, and I may never know for sure that I could not be persuaded by the desire for personal revenge to seek the death penalty for a person I knew killed someone I love. But for me, neither of these deficiencies makes opposition to the death penalty any less compelling.

I am not a death penalty expert.

I am not a spokesperson for the judiciary.

I am one New Hampshire citizen; one person, who believes it is not necessary to kill to show that killing is wrong.

So after 37 years on the bench; after presiding over hundreds of jury trials; after sitting on numerous criminal cases; after listening to witnesses in scores of sentencing hearings; after considering information in thousands of probation reports; after imposing sentences upon countless convicted defendants; after entertaining the arguments of lawyers at every level of skill; after talking with a host of judges and corrections officials; and after continued personal reflection; this is what I believe about capital punishment:

The threat of its use is not a deterrent to the commission of a homicide, because those who kill do not consider the sentence before they act or do not expect to be caught, or both.

The threat of its use is not necessary to protect the people of New Hampshire for the same reason.

Its abolition does not dishonor those who serve in law enforcement because honor comes from personal pride and earned respect, not from the ability of the state to execute a human being.

Its abolition does not diminish the voice of murder victims because the right of all victims to be heard is intended to come at the time defendants are sentenced not at the time they are charged.

It provides no more justice than life in prison without parole because justice is not measured by the sentences we impose.

To seek and carry out the death penalty costs the state much more in time and taxes than to prosecute and confine a person to prison for life.

To seek and carry out the death penalty consumes inordinate resources of courts, prosecution, defense and law enforcement.

The decision whether to seek the death penalty is too easily swayed by public opinion, political pressure and media attention.

Its potential as a prosecutorial tool is outweighed by its capacity for misuse.

It is too easily subject to selective prosecution.

It is too likely to be imposed upon minorities and the poor.

It is too likely to depend upon the persuasiveness of lawyers.

Its imposition is too readily subject to the emotions of individual jurors.

Its imposition is too clearly dependent upon the composition of the particular jury empanelled for each case.

It inevitably leads to disparate sentences.

It creates the unacceptable risk that a person may be wrongfully executed.

It exalts rage over reason.

It diminishes our character as a people.

And in the end, I believe it serves just one purpose: vengeance.

It is for these reasons, and from a personal abhorrence of the premeditated execution of a human being by the state, that I appeared before the commission to speak in favor of the abolition of the death penalty in New Hampshire.

Saturday, June 26, 2010

Crime Commission Bill Moves Into the House of Representatives

Senator Jim Webb, a Democrat from Virginia, joined members of the House of Representatives recently to announce the introduction of house companion legislation to Webb’s National Criminal Justice Commission Act of 2010.

In January, the Senate Judiciary Committee approved the legislation with 37 bipartisan cosponsors, the legislation has been supported by a broad spectrum of organizations and newspapers.

The National Criminal Justice Commission Act, S. 714, creates a blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the nation’s criminal justice system. The Commission will study all areas of the criminal justice system including federal, state, local and tribal governments’ criminal justice costs, practices, and policies. After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice.

To read the act:

Friday, June 25, 2010

Michigan: Cutting Inmate Meals Could Save $50 Million

How about this idea for cutting state and local budgets--don't feed the prison inmates or at least don't feed them as much. The Detroit Free-Press is reporting that the department of corrections in Michigan has launched a pilot program to cut the cost of furnishing meals to inmates.

The Michigan Department of Corrections cost-saving plan could go statewide as early as this fall. The cost cutting steps include standardizing menus and ordering food in bulk. The department of corrections' pilot programs in some sites have shown a 30-percent savings.

The programs, in part, stem from the Michigan auditor general's 2008 audit of prisoner food services that states the corrections department should consider additional ways to reduce the costs of providing prisoner meals.

The Free-Press further reported that Rana Elmir, communications director with the American Civil Liberties Union of Michigan, said "prisoner food must be in accordance with the Eighth Amendment's ban on cruel and unusual punishment -- for instance, an inmate cannot be forced to eat food that he/she is allergic to or that is contaminated -- and the First Amendment's freedom of religion claim, which demands prisons supply inmates with food following their deeply held religious requirements."

My Take

How much money can be saved by standardizing menus and buying in bulk?

Some estimates suggest that it cost about $7,500 a year to feed a single inmate. Michigan has about 45,000 prisoners in state prison. Although the pilot programs in Michigan have shown a savings of as much as 30-percent, we'll use a more modest 15-percent to figure out the savings. A cut back in meal costs could save Michigan about $50 million a year.

With a $2 billion dollar annual budget and a $46 million budget overrun for this fiscal year, Michigan should waste no time in cutting back on inmate meals. Every state in the country should closely study the results of Michigan's effort in involuntary portion control.

To read more:

Thursday, June 24, 2010

Supreme Court: Honest Services Requires "Bribes and Kickbacks"

The U.S. Supreme Court has found that the "honest services" statute was not appropriate for the prosecution of former Enron CEO Jeffrey Skilling. However, the Court did not overturn the conviction of Skilling.

The Court has remanded the case to the 5th U.S. Circuit Court of Appeals to determine whether the use of the honest services law was harmless error since Skilling was also convicted for violation of other statutes.

Justice Ruth Bader Ginsburg writing for the majority held, "There is no doubt that Congress intended (the statute) to reach at least bribes and kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine."

Skilling was was convicted of neither bribes or kickbacks. However, his case is not over and will not be over for some time.

According to the Houston Chronicle, the honest services law is a broad anti-fraud law that makes it a crime to "deprive another of the intangible right of honest service." The 28-word statute passed in 1988 has been used against many public officials and some corporate officers over the years and various circuit appellate courts have disagreed on what is covered though theft, embezzlement and bribery are generally agreed as coming under the law.

To read the Court's opinion:

Troy Davis' Rare Innocense Hearing Continues

Witnesses Recant Testimony

The hearing for Troy Anthony Davis continues today in a Savannah, Georgia courtroom. Davis is on death row. He is presenting evidence concerning his claim of innocence in the murder of a Savannah police officer in 1989.

He was granted extraordinary relief by the U.S. Supreme. Davis filed an original writ of habeas corpus, a request for his release filed directly with the Supreme Court rather than in the lower court, a claim that has been sparingly granted in the last 100 years.

Last year, the Court ruled by a vote of 7 to 2, that the district court was to "receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence," In re Troy Anthony Davis, 557 U.S. ___ (2009),

Yesterday, the Atlanta Journal Constitution reported, four key prosecution witnesses gave markedly different statements than those they gave at trial, either saying they never saw Davis kill a Savannah policeman or never heard him confess to the crime.

Also Wednesday, a 36-year-old prison inmate offered surprise testimony, saying in court for the first time that he witnessed another man shooting and killing off-duty police officer Mark Allen MacPhail as he rushed to help a homeless man being pistol-whipped in a Burger King parking.

The Journal Consitution also reported that the state called several witnesses. State attorneys called three Savannah-Chatham County police officers to the stand at the close of Wednesday's testimony. The officers insisted they did not threaten or coerce any witness into giving false testimony. Lt. Carl Ramey testified that Sapp flagged down police to tell them Davis had told him he killed MacPhail.

"I know why you're here," Sapp told officers patrolling the neighborhood, Ramey testified. "You're here for Troy."

Burton noted the officers conducted interviews just a few hours after the killing, suggesting there was not enough information available at the time to tell a witness what to say, even if the officers were inclined to do such a thing.

To read more:

Wednesday, June 23, 2010

JPI: State Prison Numbers Decline

For Immediate Release:
Justice Policy Institute
June 23, 2010

Overall number of people in state prisons drops for first time since 1972
However, feds and half of states see prison populations continue to climb

For the first time since 1972, the number of people in state prisons fell. According to the U.S. Department of Justice, Bureau of Justice Statistics (BJS), state prison populations decreased by nearly 3,000 people between 2008 and 2009. The Justice Policy Institute (JPI), a non-profit research and policy organization dedicated to reducing society’s reliance on incarceration, believes that while this is a move in the right direction, an overall increase in the number of people in prison over the past year, and the fact that half the states continue to increase their prison populations, means we still have a long way to go.

“The economic downturn has made both policymakers and taxpayers more aware of the financial price of incarceration,” stated Tracy Velázquez, executive director of JPI. “We hope that as the economy improves, we will see states continue to use smart, effective public safety strategies that reduce the unnecessary warehousing of millions of people in prisons and jails.”

JPI’s analysis of the BJS data also revealed that only six states reduced their prison populations since 2000: New York, New Jersey, Maryland, Michigan, Delaware and Illinois. Velázquez noted that a number of these states have been engaged in justice reforms that focus on reducing incarceration rates.

“New York’s revision of the Rockefeller drug laws, New Jersey’s focus on reducing returns to prison for parole violations and its increase in treatment and diversion, Maryland’s improved use of evidence-based practices such as risk assessments and Michigan’s reforms to parole and investments in re-entry all demonstrate that intentional efforts to create smart policy, improve outcomes and reduce incarceration pay off,” stated Velázquez. “These sustained reductions are not a matter of chance.”

Pennsylvania's state prison population increased by 39.6-percent since 2000. Only 6 states have increased there prison population by a greater percentage. There are approximately 51,429 inmates currently house in Pennsylvania prisons.

To read more:

Tuesday, June 22, 2010

Troy Davis' Unprecedented Hearing This Week

Supreme Court Took Extraordinary Step In Ordering Hearing

This week, all eyes will be on Savannah, Georgia, to see whether death row inmate Troy Davis will be granted a new trial.

Last August, for the first time in nearly half a century, and the first time ever in a death-penalty case, the U.S. Supreme Court took a case filed directly to its docket. It accepted Troy Davis' last-ditch plea because Davis had exhausted all his appeals.

The high court ordered a federal judge to convene a hearing and take evidence to determine whether Davis' new claims "clearly establish" his innocence -- a high legal threshold to overcome.

According to the Atlanta Journal Constitution, U.S. District Judge William T. Moore Jr., who will hear the case, is not expected to make an immediate ruling. He has instructed parties that he wants them to file legal briefs after the hearing is over. He also told the lawyers that because he has already read the trial record and the legal pleadings in the case, he expects them to come to his courtroom and "immediately" enter into the presentation of evidence.

Davis was convicted and sentenced to death almost two decades ago for killing an off-duty police officer during a late-night melee in a Burger King parking lot in Savannah.

To read full article:

Sunday, June 20, 2010

Ohio High Court: Police Can Estimate Speed to Issue Ticket

The Ohio Supreme Court issued a surprising ruling this month. In Barberton v. Jenney, Slip Opinion No. 2010-Ohio-2420, the Court ruled that an Ohio motorist could be convicted of speeding by the mere visual estimate of a trained police officer.

As reported by the Cleveland Plain Dealer, the ruling derived from the case of a Summit County man, Mark Jenney, who challenged a ticket he received in 2008 from a Copley Township police officer.

Officer Christopher Santimarino stopped Jenney on Ohio 21 and estimated the motorist was going 73 mph in a 60 mph zone. Santimarino's radar detector clocked the vehicle at 82 or 83. The officer decided to write the ticket for 79 mph, closer to what the radar gun had and not his own estimate.

But when Jenney challenged the ticket in court, Jenney's attorney John Kim was able to get the radar evidence tossed because the officer was unable to prove he had been trained to use the device.

With no radar evidence, the court reverted to Santimarino's visual estimate and eventually elected to reduce the speeding citation to 70 mph. Jenney contended that he was not speeding and that Santimarino stopped the wrong vehicle. The Supreme Court's decision affirmed a state appeals court and lower court decisions.

Justice Maureen O'Connor, who authored the majority opinion wrote, "We hold that a police officer's unaided visual estimation of a vehicle's speed is sufficient evidence to support a conviction for speeding."

The Plain Dealer reported that state Representative Robert Hagan, a Youngstown Democrat, intends to introduce a bill that would require police officers to use radar detectors or other technology to verify a vehicle's speed before issuing a ticket.

To read full opinion:

Saturday, June 19, 2010

Oregon Man Sentenced to Death for the Fourth Time

A jury in Bend, Oregon deliberated for less than six hours this past week before deciding to impose the death penalty, for the fourth time, on a man convicted of two murders in 1987.

Randy Lee Guzek was 18 when he and two accomplices robbed a couple from Terrebonne in Central Oregon. Guzek, under the influence of methamphetamine, ordered one of his accomplices to kill one victim while he chased down and shot the other victim.

The Associated Press reported the tortured history of this case which involved four trials.

Guzek's 1988 murder conviction has never been reversed, but his death sentence spawned a legal drama that has lasted 22 years and reportedly cost the state more than $2 million. The death penalty phase was tried again in 1991, 1997 and the latest trial last week. All resulted in the same verdict--death.

At the beginning of the latest trial, Guzek waived an option that would have given him the chance for life in prison with no opportunity for parole. Jurors were then left with two options: a death sentence or life in prison with possibility of parole when Guzek is 78.

During the three-week trial, jurors were repeatedly told of Guzek's horrific upbringing at the hands of an abusive father. Despite that, not one of the 12 jurors was moved to keep Guzek off death row.

Josh Marquis, former president of the National District Attorneys Association, was the prosecutor in Guzek's 1991 sentencing trial. He later moved from Bend to Oregon's north coast, but returned for the 1997 trial and this one as a special prosecutor to fulfill a promise to the victims' family.

My Take

The death penalty is the most closely scrutinized criminal sanction in America. The U.S. Supreme Court suggested that those accused of first degree murder are being provided "super due process." This case illustrates the thorough review afforded those who are sentenced to death.

The families of murder victims have to deal with pain and agony every time an accused is granted a new trial. In this case, the family of the victims have had this case etched in there psyche for 23 years.

This case is far from over. There will be another round of direct appeals. If those are disposed of in favor of the state, the federal appeals will begin. The requests for stay and the challenges to the method of death will also contribute to delay. Guzek will sit on death row at least another 10 years.

Guzek's death penalty conviction may result in his dying in prison. Oregon has only executed two killers since reimposing the death penalty in 1978. Both men, who were executed more than a decade ago, voluntarily waived their appeals. With Guzek's sentence there are now 34 men and no women on Oregon's death row.

To read more:

Friday, June 18, 2010

Utah Killer Executed by Firing Squad

29th Execution of 2010

As reported by, at exactly midnight, Ronnie Lee Gardner, who spent more than half his life behind bars was awakened from a nap for his execution. He appeared calm as he was escorted to the execution chamber at a state prison in Draper, Utah. Gardner was strapped to a metallic, winged execution chair; his arms and legs, his head and torso secured tightly. He wore a dark prison jumpsuit and no shoes.The chair was raised on a small black platform, like a stage.

A team of five anonymous marksmen armed with .30-caliber Winchester rifles, standing just 25 feet away behind a brick wall cut with a gun port, aimed their weapons at a white circular target pinned over Gardner's heart. One rifle was loaded with a blank so no one knew who fired the fatal shots.

Asked if he wanted to say anything moments before the shooting, Gardner responded, "I do not, no."

Witnesses said Gardner rubbed his left thumb and forefinger moments before the shooting. At 12:15 a.m., the rifles exploded; four bullets perforated his heart and lungs. The straps held his head up. A metal tray beneath the chair collected his blood. After the shots were fired, he could be seen clenching his left fist.

Gardner was pronounced dead at 12:17 a.m.

To read more about Gardner's execution:

Thursday, June 17, 2010

Poor Economy Taking a Toll on Policing

The Crime Report recently reported that persistently poor economic conditions are likely to “fundamentally change the delivery of police services.” Bernard Melekian, director of the Justice Department’s Office of Community Oriented Policing (COPS) and former police chief in Pasadena, Ca., noted that it is “extraordinarily inefficient” to send out a police car for each service call. He said police might take more reports via the Internet, video conferencing, or Skype calls. Melekian, who spoke yesterday at the annual National Institute of Justice conference near Washington, D.C., said he was not making a formal prediction on behalf of the Justice Department.

Many police departments around the U.S. have laid off officers, frozen hiring, or sought federal aid to hire more cops–a program administered by the COPS office. Melekian believes that the best-case scenario is that police-agency budgets overall will hold steady in the next few years. He said another budget-saving measure may be for police departments in a region to specialize in certain functions, to avoid duplications. University of Maryland criminologist Charles Wellford, who co-chairs the International Association of Chiefs of Police’s research advisory committee, suggested at the conference that criminal-justice agencies could conserve money for law enforcement by spending less on incarceration, which he said does little to cut crime.

To read more:

Wednesday, June 16, 2010

OK Governor Delays Execution

According to the Daily Oklahoman, Oklahoma Governor Brad Henry has delayed the execution of an Oklahoma death row inmate so officials can review evidence in his case.

Jeffrey David Matthews was to be executed by lethal injection on June 17th. A new execution date of July 20th has been set for Matthews. He was convicted of murder in 1994. Late Monday, defense attorneys requested a delay to examine fingerprint evidence related to the case.

Henry, who is out of the state on vacation, agreed to grant a brief stay and the execution has been rescheduled. Lt. Gov. Jari Askins signed paperwork today granting the stay. Matthews execution would have been the 2nd in Oklahoma and the 29th carried out nationwide in 2010.

To read more:

Supreme Court Permits Tolling Under AEDPA

The U.S. Supreme Court acknowledged that under some circumstances a death row inmate may be entitled to a tolling of the one-year statute of limitations established by the Antiterrrorism and Effective Death Penalty Act (AEDPA).

In Holland V. Florida, No. 09-5327, Justice Stephen G. Breyer, writing for a 7-2 majority, held that the Congress did not intend for the AEDPA to "close courthouse doors that a strong equitable claim would ordinarily keep open."

Holland's case has been sent back to the Eleventh Circuit Court of Appeals to determine if his lawyer's conduct was so egregious that he should be permitted to file a federal appeal even though the time limit to file such an appeal has expired.

Holland was convicted of killing a Pompano, Florida police officer in 1997. Holland's attorney failed to respond to repeated correspondence and failed to file a federal habeas corpus petition in a timely manner.

To read the full opinion:

Tuesday, June 15, 2010

Cop Killer Executed 32 Years After Murder

28th Execution of 2010

Associated Press
Huntsville, Texas
June 15, 2010

David Lee Powell, a former drug dealer convicted of using an assault rifle to kill an Austin police officer during a traffic stop 32 years ago, received lethal injection about 30 minutes after the U.S. Supreme Court refused to grant a stay of execution.

Powell’s attorneys had argued, unsuccessfully, that his exemplary behavior on death row over the past three decades should result in a commutation of his death sentence. Powell's lawyers suggested that jurors were wrong when they decided he would be a continuing danger and should die for killing 26-year-old Police Officer Ralph Ablanedo.

Asked by a warden if he had a final statement, Powell gave no response.

As the drugs began flowing into his arms, he gasped slightly, began snoring quietly, then showed no movement. Nine minutes later, at 6:19 p.m. CDT, he was pronounced dead.

He is the 13th offender in Texas and the 28th nationally to be executed this year.

Man to be Executed Tonight for 32-year-old Killing

The longest serving death row inmate is scheduled for execution tonight in Texas. David Lee Powell was sentenced to death thirty-two years ago for the murder of an Austin police officer. Powell has served longer than any other Texas death row inmate and only one executed killer served more time on death row.

According to the Houston Chronicle, in May 1978, Officer Ralph Ablanedo pulled over a car driven by Powell's girlfriend because it had no rear license plate. A background check showed Powell, riding in the passenger seat, was wanted for theft and passing bad checks. Powell shot Ablanedo 10 times with a Soviet-made AK-47.

Powell was sentenced to death following three different trials, most recently in 1999. The U.S. Supreme Court overturned his original conviction from 1978, and the Texas Court of Criminal Appeals threw out his death sentence from a 1991 retrial.

Powell is hoping on a last minute reprieve from the U.S. Supreme Court. All other state and federal appeals have been exhausted. There have been 12 executions carried out this year in Texas.

To read more:

Utah Execution by Firing Squad Set for Friday

Ronnie Lee Gardner is scheduled for execution this Friday, June 18th, in Utah. If executions scheduled in Texas and Oklahoma are carried out this week, Gardner will be the 28th person executed in the United States this year. At that pace, there will be a more than 10-percent increase in executions over 2009.

Why would Gardner's execution be any more noteworthy than other executions this year?

Gardner has requested execution by firing squad. Thirty-five states have the death penalty. Utah is the only state to use the firing squad in the modern era of the death penalty. Oklahoma is the only other state where the firing squad is an option. Lethal injection is used in nearly all states, although Virginia executed a convicted murderer by electric chair this year.

Two men have died by firing squad in Utah since the reinstatement of the death penalty in 1976. Gary Gilmore, on Jan. 17, 1977 and John Albert Taylor on Jan. 26, 1996.

Recently, the Utah Board of Pardons and Parole denied Gardner's request for commutation, and the Utah Supreme Court late Monday turned down his request that his sentence be reduced to life imprisonment or that he be granted a new sentencing hearing. There will no doubt be a last-minute appeal to the U.S. Supreme Court.

Gardner is far from a sympathetic figure. In 1985, he murdered his lawyer during an attempted escape from the Salt Lake City Courthouse. He was there for a hearing on his prior murder conviction. His girlfriend slipped him a handgun while he was being escorted to the courthouse.

Some have suggested that the use of execution by firing squad exposes the barbaric nature of the death penalty. However, it doesn't appear that support for the death penalty is waning. A recent CBS News poll shows 63% of Americans favor the death penalty, a number that’s remained fairly consistent over the past 20 years. The number of executions thsi year is on track to increase for the second year in a row.

Sunday, June 13, 2010

After False Confession an Arrest in Riley Fox Muder

Police have made an arrest in the murder of Riley Fox. In 2004, the three-year-old Fox was abducted, raped and murdered in Joilet, Illinois a suburb of Chicago. The case made national news when here father was arrested for her murder and later released by police.

Police arrested Scott Wayne Eby when his DNA matched DNA found at the scene of Riley's murder. He was in prison serving a 14-year sentence for criminal sexual assault.

Eby lived about a mile from the Foxes when Riley was killed. At the time, the divorced, unemployed Eby was on parole for a DuPage County burglary conviction. He has additional burglary convictions out of Cook County and a forgery conviction from Kane County.

After Riley's body was discovered her father, Kevin Fox, said he and his wife, Melissa, drove hand-in-hand to the detectives' Joliet offices to learn who killed Riley.

Instead, Fox said he felt as if detectives "ripped my heart out of my chest" when they began accusing him, according to the Beacon-News.

He remained resolute, the father said, for several hours. But his anger turned to despair. He failed a lie-detector test. Fox said he was falsely told that his family, including Melissa, believed in his guilt.

Kevin Fox said a sheriff's detective taunted him with threats that he'd be repeatedly raped while in prison for murder. He said they ignored his requests for an attorney, showed him crime-scene photos of his slain daughter, beat on the interrogation table with handcuffs while shouting in his face -- hour after hour after hour.

According to the Beacon-News, police offered Fox a deal -- confess that it was an accident and be freed on lesser involuntary manslaughter charges. So, Fox told jurors, he took the deal.

Fox confessed in the Oct. 27, 2004, videotaped statement that he accidentally bumped Riley's head on the bathroom door but panicked and tried to make it look like an abduction.

"I felt alone, beaten down," he said. "I knew it would be checked out and that I'd be cleared."

He remained jailed for eight months until a DNA analysis of saliva evidence excluded his genetic profile< according to the Beacon-News.

Fox and his wife sued Will County, the State's Attorney and five sheriffs deputies. He won a mutli-million dollar verdict.

Saturday, June 12, 2010

Three, Including Woman, Face Death Penalty in Greensburg

The death penalty will be sought against two men and a woman for the brutal kidnapping, torture and murder of a woman in Westmoreland County, Pennsylvania. District Attorney John Peck announced his decision to pursue the death penalty based on the fact that the murder was committed in the commission of another felony, presumably kidnapping, and the existence of the aggravating circumstance of torture.

Peck filed notice last week that he will seek the death penalty for Ricky V. Smyrnes, 24; Melvin L. Knight, 20; and Amber C. Meidinger, 20. The death penalty must be imposed by a jury after a guilty verdict of first degree murder. The jury is then reconvened to hear evidence during the penalty phase hearing. If a jury finds more aggravating circumstances than mitigating it can impose the penalty of death. In Pennsylvania, execution is by lethal injection.

Three other co-defendants were also charged with murder, but will not face the death penalty. The others are Peggy Darlene Miller, 27; Robert Loren Masters, 36; and Angela Marinucci, 17. Marinucci will not face the death penalty because she is a juvenile.

According to the Pittsburgh Tribune-Review, the six are charged with first- and second-degree homicide in the stabbing death of Jennifer Daugherty, 30, in a Greensburg apartment the defendants shared. Daugherty’s head was shaved, and she was bound with Christmas decorations and clothing. She was beaten with several items – according to the affidavit, a crutch, a vacuum cleaner hose, and a towel rack. She was also forced to consume urine, detergent, and a medicine cocktail. In her final hours, she was allegedly forced to write a suicide note, stabbed multiple times, and then left in a trash can in a middle school parking lot.

Attorneys for Smyrnes and Knight say their clients suffer from mental deficiencies that make them ineligible for the death penalty under a ruling by the U.S. Supreme Court that prohibits the death penalty for someone who is mentally disabled. Atkins v. Virginia, 536 U.S. 304 (2002), outlawed the death penalty for the mentally retarded.

The case brings to the forefront another U.S. Supreme Court cases Roper v. Simmons, 543 U.S. 551(2005). Roper outlawed the death penalty for juveniles and is the reason Marinucci is not facing the death penalty.

The Tribune-Review added that capital punishment was reinstated in Pennsylvania in the late 1970s. Since then the death penalty has been imposed twice in Westmoreland County. John Lesko, 52, of Pittsburgh, and Michael Travaglia, 51, of Washington Township, were sentenced to death for killing Apollo police Officer Leonard Miller in 1980. Travaglia is on death row. Lesko is awaiting a new trial after his conviction was overturned several years ago.

According to the state Department of Corrections, as of June 1, there were 221 people on death row. Five are women. Only three men have been executed in Pennsylvania since the reinstatement of the death penalty.

To read more:

Friday, June 11, 2010

Study: Cut Non-Violent Prisoners by Half, Save $15 Billion

For Immediate Release
Center for Economic and Policy Research

Washington, D.C. - As state and local governments grapple with record budget shortfalls, a new study from the Center for Economic and Policy Research (CEPR) finds that the high rate of incarceration in the U.S. is a significant factor in these budgetary strains.

The report, “The High Budgetary Costs of Incarceration,” estimates that cutting the incarceration rate for non-violent offenders would reduce state and local budgets by almost $15 billion per year, about one-fourth of their annual corrections budgets.

The study finds that the rate of incarceration in 2008 — 753 per 100,000 people — was about 240 percent higher than it was in 1980. According to the report, the United States has the highest incarceration rate in the world, a rate that is seven times higher than the average for other rich countries.

"State and local governments are under tremendous fiscal pressure,” said John Schmitt, a senior economist at CEPR and lead author of the report. “Shifting just half of the non-violent offenders from prison and jail to probation and parole could save state and local governments $15 billion per year."

The study points out that some of the main causes of the rise in incarceration rates are policies such as "mandatory minimums" and "three strikes" laws that often lead to long prison terms for non-violent offenders. Earlier research on the connection between crime and incarceration suggests that state and local governments could shift non-violent offenders from jail and prison to probation and parole with little or no deterioration in public safety.

Among the key findings are:

•In 2008, one of every 48 working-age men were in prison or jail
•Non-violent offenders make up over 60 percent of the prison and jail population; non-violent drug offenders account for one-fourth of all offenders behind bars
•The total number of violent crimes in the United States was only about three percent higher in 2008 than it was in 1980. Over the same period, the U.S. population increased by 33 percent while the prison and jail population skyrocketed by more than 350 percent.
"Looking back on the last 30 years, the idea of 'locking people up and throwing away the key' has done very little to combat crime, but it has created a tremendous burden for state and local governments." Schmitt said.

To read the full report:

Oregon Budget Shortfall May Result in Prison Closures

Oregon may close three prisons and release at least 1,000 inmates as a result of a budget shortfall emergency, reported the Oregonian.

Governor Ted Kulongoski announced a 9-percent budget cut across the board for all government agencies. The cut would cost the Department of Corrections about $52 million. Max Williams the Secretary of Corrections said he would rather close prisons and release inmates than pull programs.

Williams indicated that inmate services like job skill training, education, drug and alcohol treatment and mental health services should not be cut. Williams told the Oregonian program cuts, "would save less than half the money and cause problems in prison."

My Take

This appears to be more a matter of a shot across the bow-than a real plan to balance the budget. If Secretary Williams would have said programming cuts will cost the state in the long run with higher recidivism rates, more victimization and additional law enforcement and court costs, then he might have been more credible.

Instead he said program cuts will cause problems in prison. He is using fear to maintain his budget levels. The fear that 1,000 inmates will soon be walking the street and that idle prisoners will soon be rioting in Oregon's prisons.

Thursday, June 10, 2010

South Carolina Gets Smart on Crime

South Carolina Governor Mark Sanford signed into law a new way of dealing with criminals that judges, victims' advocates, crime and justice experts, and Republicans and Democrats all have signed off on, according to The Post and Courier.

The new law is intended to:

--Make sure there is space for high-risk, violent offenders in prison while saving the state an estimated $350 million, the cost of building a new prison.

--Help inmates transition from prison life back to society and increase supervision of former inmates in the community.

--Provide incentives for probationers and parolees to stay drug- and crime-free in order to go from being tax burdens to being taxpayers.

The lengthy new law also redefines 22 crimes as violent, providing longer sentences for some offenders. The new sentences would apply to people who commit crimes beginning on Wednesday.

Sanford said the law was "smart on crime," a sentiment echoed by many Wednesday. The governor said it strikes the right balance and it's good for the taxpayers. Experts from the Public Safety Performance Project of the Pew Center on the States helped the state develop the new law.

According to The Post and Courier, the prison population 25 years ago stood at about 9,000 inmates and is today at 24,000. As the population grew, so did the cost of running the Corrections Department.

In the mid-1980s the prisons ran on $63 million a year. Today it costs $394 million, Sanford said. In another five years the cost is projected to increase by another $141 million, as the prison population grows by another 3,200 inmates.

The some, the new legislation will take effect immediately, others will be phased in over time.

To read more:

Wednesday, June 9, 2010

DA Refuses Immunity, Judge Dismisses Murder Charge

Allegheny County Senior Judge John K. Reilly Jr. dismissed a homicide charge against Kevin Doolin. He was charged in the March 12, 2009, shooting death of Albert Kolano, following a fight at the Longview Lounge outside of Pittsburgh.

The district attorney's office refused to grant immunity to a witness who the defense argued would provide exculpatory evidence. The witness's statement came to light following a drug investigation of a motorcycle gang by the state attorney generals office.

The DA argued that the witness was not credible and intended to commit perjury. The DA's office said, "This office can have no stronger interest than to prevent perjured testimony."

Judge Reilly did not agree. In unusual and dramatic fashion, Judge Reilly dismissed the charges against Doolin. According to the Pittsburgh Post-Gazette, the Judge held that the defense has a right to allow a jury to decide if the witness is credible. The circumstances of the case were "so fundamentally unjust," he wrote, that the dismissal was necessary.

In Pennsylvania, the district attorney has the exclusive right to determine what witnesses are entitled to immunity, 42 P.S. 5947. A witness who invokes his right against self-incrimination, may be compelled to testify in spite of the Fifth Amendment, if he is provided immunity from prosecution.

Judge Reilly acknowledged in his opinion that he has no authority to grant immunity to a witness. He also found that there was no reason why the Allegheny County District Attorney's office was withholding immunity, according to the Post-Gazette.

The issue of immunity for a witness goes to the fundamental constitutional question of separation of powers. Some who practice in the criminal courts complain that the issue of admission of evidence is a judicial function, yet immunity issues are left to prosecutors who derive their power from the executive branch of government.

There are some situations that raise an eyebrow when it comes to fairness and the issue of immunity. Take this example, Brady v. Maryland, 373 U.S. 83(1963)held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment." The holding required that the prosecution turn over all favorable information to the defense. Lets say the DA learns of a witness who could provide favorable testimony to the defense. The DA complies with Brady and turns the witness over to the defense(starting to sound familiar). The witness invokes his Fifth Amendment right not to testify. The DA refuses to provide immunity. The DA turned over exculpatory information that they then prevented from being used at trial.

There is also a federal immunity statute, 18 U.S.C. 6000. However, some Federal Circuits have created some exceptions that permit court intervention in witness immunity. The Third Circuit Court of Appeals has probably the most liberal exception to immunity. In Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980), the Court upheld judicial immunity for defense witness where the witness is available, testimony is clearly exculpatory and essential, and the government does not have a strong countervailing interest against granting immunity.

Other Federal Circuits have addressed the issue only if prosecutorial misconduct is present,Carter v. United States, 684 A.2d 331 (D.C. 1996); United States v. Chitty, 760 F.2d 425 (2d Cir. 1985).

To read more:

Tuesday, June 8, 2010

Supreme Court Sides with Government on Prison "Good Time"

The National Law Journal reported, that the U.S. Supreme Court by a 6-3 vote endorsed a long-standing Bureau of Prisons method of calculating good time credit based on the length of time actually served, not the length of the term imposed by the sentencing judge.

As Justice Stephen Breyer described it in his majority opinion in the case, Barber v. Thomas, No. 09-5201, the formula preferred by the Court would result in 470 days of credit for a well-behaved prisoner serving a 10-year sentence, while the method urged by defendants would result in 540 days of credit.

Justice Anthony M. Kennedy dissented suggesting that the formula adopted by the majority will collectively add ten of thousands of years to federal sentences and cost taxpayers countless millions of dollars.

The issue was raised by a group of Oregon prisoners who challenged the way that "good time" was calculated by the Bureau of Prisons.

To read more:

Monday, June 7, 2010

A Separation of Courts?

Pennsylvania Law Weekly
June 7, 2010

The U.S. Supreme Court has agreed to hear another post-conviction DNA case, less than a year after having ruled that "constitutionalizing" access to DNA testing would be a mistake.

Henry Skinner is on Texas' death row. In March, he had his last meal and was awaiting execution when the U.S. Supreme Court granted him a stay. The court will now review his claim, presented in Skinner v. Switzer , that he was denied access to evidence that "could," through DNA testing, exonerate him.

In 1995, Skinner was convicted of the brutal strangulation and beating death of his girlfriend and the stabbing deaths of her two adult sons. Skinner asserts that he was intoxicated to the point that he could not have possibly carried out the murders. On the evening of the murders he showed up at a former girlfriend's house in bloody clothing and with a knife wound.

The former girlfriend testified that Skinner said he may have just killed one of the victims and threatened to kill her and her children if she contacted the police.

Skinner contends the murderer may have been the victim's uncle, now deceased, who made inappropriate sexual remarks to the victim the night she was killed. Skinner's attorneys have requested, for DNA analysis, a rape kit performed post-mortem on the victim, fingernail clippings, two knives, and some clothing.

The Texas courts denied the request.

Skinner also filed federal habeas corpus requests, which were also denied, and later sought relief through the federal civil court. He requested the items through a civil rights claim pursuant to 42 U.S.C. 1983.

In 1994, the U.S. Supreme Court established the Heck doctrine. Roy Heck was convicted, in Indiana, of voluntary manslaughter for the killing of his wife. He sought compensation through a 1983 claim for alleged unlawful conduct by the police.

The court ruled in Heck v. Humphrey that a prisoner in state custody may not sue under 1983 to challenge the fact or duration of his confinement. A state offender may only pursue a challenge to his conviction through habeas corpus.

Heck has been the law for nearly 16 years. Last year, the U.S. Supreme Court was faced with a similar issue in District Attorney's Office v. Osborne .

William G. Osborne was convicted of kidnapping and sexual assault in Alaska. He raped, beat and shot a woman near the Anchorage airport. After his conviction, Osborne sought a more conclusive DNA test to challenge evidence used to convict him. Prior to trial, he requested a method of testing that would only "not eliminate" him as a suspect. He apparently wanted some wiggle room to argue that he was not responsible for the harm inflicted upon the victim.

At the time, only four states — Alaska, Alabama, Massachusetts and Oklahoma — did not have laws dealing with post-conviction DNA testing.

Pennsylvania has a statute providing for post-conviction DNA testing. The statute, 42 P.S. 9543.1, requires that the applicant assert "actual innocence" of the crime for which he or she was convicted. The statute does not require that the evidence be discovered after conviction.

The 9th U.S. Circuit Court of Appeals ordered Alaska to turn over the evidence requested by Osborne. The matter was appealed to the U.S. Supreme Court. The court never got to the issue of Heck and the right to challenge a conviction through a 1983 claim.

Instead, the court focused on Osborne's contention that, pursuant to the due process clause of the 14th Amendment, he was entitled to retest DNA through a new method at his own expense. The court refused to recognize a free-standing due process right to DNA evidence, separate from a claim seeking vindication.

Chief Justice John G. Roberts wrote for the majority: "Moreover to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by congress and the states."

Skinner now brings before the court the same issue that the court failed to address last year — can a convicted prisoner seek DNA testing through 42 U.S.C. 1983 or only through habeas corpus?

In 1997, Skinner's murder conviction was upheld by the Texas Court of Criminal Appeals. The following year his writ of habeas corpus was denied by a state appellate court. In 2002, a second habeas corpus petition was dismissed. He filed a federal habeas corpus petition requesting DNA testing. A federal district court denied his petition and the 5th U.S. Circuit Court of Appeals affirmed the district court decision. The U. S. Supreme Court refused to hear the habeas corpus claim.

Skinner then filed the 1983 suit. The district court dismissed the claim, the 5h Circuit affirmed the dismissal and, last week, the U.S. Supreme Court granted certiorari.

Counsel for the respondent in Skinner's suit, prosecutor Lynn Switzer, argued that the law is clear — Section 1983 is not the vehicle to challenge a conviction. Switzer's counsel has also argued that even if the items were tested for DNA, "the evidence at trial overwhelmingly showed Skinner's guilt."

It is interesting that the Supreme Court would agree to hear the case in light of the court's recent reluctance in Osborne to acknowledge DNA testing as a constitutional right and avoiding the Heck issue altogether.

Everyone is harmed when an innocent person is wrongfully convicted. Even with that in mind, opening the civil courts to convicted offenders for them to challenge convictions that have not been vindicated in criminal court is a dangerous proposition.

The prospect of offenders simultaneously pursing relief in both civil and criminal court, with different burdens of proof, could cause enormous problems of inconsistency and inequity. The issues of justice and finality are not inconsistent. Habeas corpus, with its clearly defined and refined procedure, is more than adequate to address post-conviction issues, including DNA testing.

However, the court has not backed away from claims of actual innocence.

Last year, less than two months after the ruling in Osborne , the court decided In re Troy Anthony Davis . By a vote of 7 to 2, the Supreme Court instructed the district court to "receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence."

The court's decision was extremely unusual. Davis filed an original writ of habeas corpus, a request for his release filed directly with the Supreme Court rather than in the lower court, a claim that has been sparingly granted in the last 100 years.

Will the court move closer to acknowledging greater rights for claims of actual innocence or will it reaffirm the court's position foreclosing civil rights claims as a means to challenge criminal convictions? The answer may begin to define the legacy of the Roberts Court.

Sunday, June 6, 2010

Canadian on Death Row Will Seek Support of Prime Minister

Greg Jackson the lawyer for Ronald Smith the only Canadian on death row in the United States says the Canadian National Government's support will carry a lot of weight if his client has to ask for clemency.

Jackson says Canada's opinion will matter if Smith has to plead his case for clemency, which could happen as early as next year. Smith was convicted in Montana, in 1983, of murdering two cousins, Harvey Madman Jr. and Thomas Running Rabbit, while he was high on drugs and alcohol.

Canadian Consul General Dale Eisler told Montana Governor Brian Schweitzer earlier this week that if the case comes to him, he should spare Smith the death penalty.
Smith will still file an appeal to the U.S. Supreme Court and will seek clemency from the governor only if his appeal fails.

Jackson said if clemency is the only option he would solicit the intervention of Canadian Prime Minister Stephen Harper. He said a phone call from the prime minister would be very persuasive.

To read more:

Ohio Governor Grants Rare Death Sentence Commutation

WKSU'S (Kent State University) M.L. Schultze reported that Ohio Governor Ted Strickland has commuted the death sentence of a man the state planned to execute next week.

Strickland followed the recommendation of the Ohio Parole Board in sparing the life of Richard Nields of Cincinnati. He strangled his girlfriend during an argument in 1997. But courts and the parole board raised big questions over expert testimony -- and whether the case fits the definition of a death penalty crime in Ohio. Among those raising the questions was Ohio Supreme Court Justice Paul Pfeifer, who helped write Ohio's death penalty law.

Nields will remain in prison with no chance for parole.

Ohio has executed 14 men since Strickland became governor in 2007. The parole board has recommended clemency three times. Strickland agreed twice.

To read article:

Supreme Court rolls out rulings that favor police

Youngstown Vindicator
Sunday, June 6, 2010

In 1966, the Supreme Court of the United States decided Miranda v. Arizona. The Court ruled that all persons held by the police for purposes of interrogation must be informed of certain rights. Those rights, now simply referred to as Miranda, are arguably the best known words from any court case in American history, “You have the right to remain silent, anything you say can and will be used against you, you have the right to an attorney, if you can’t afford one, one will be appointed for you.”

Last week, the Supreme Court handed down its third ruling this year interpreting the nuances of Miranda. Last week’s opinion, Berghuis v. Thompkins, held that, “A suspect who has received and understood the Miranda warnings, and has not invoked the Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.”

Van Chester Thompkins was a suspect in a murder that occurred outside a Southfield, Mich., strip mall. When the police brought him in for questioning he was advised of his right to remain silent and his right to legal counsel. He remained mostly silent for nearly three hours. As a result he failed to articulate with precision that he did not want to talk to the police.

The police continued to question Thompkins. After three hours he was asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered, “Yes.” The statement was used against him at trial.

Justice Anthony M. Kennedy wrote on behalf of a 5 to 4 majority, “If Thompkins wanted to remain silent, he could have said nothing in response to [the] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation.”

The Court made it clear that anything short of an unequivocal response either waiving or invoking the right to silence, or counsel, will not be sufficient. Silence itself is not enough to claim the right to remain silent.

Justice Sonia Sotomayor, wrote a dissenting opinion taking issue with the majority, “Criminal suspects must now unambiguously invoke their right to remain silent, which, counterintuitively, requires them to speak.”


Thompkins is the third government-friendly Miranda decision by the Supreme Court in 2010. In Florida v. Powell, decided in February, Kevin Powell was taken into custody during a robbery investigation. A gun was later found in his girlfriend’s apartment. Powell was prohibited from possessing a firearm due to his history of felony convictions. After he was told by police that he had, “The right to a lawyer before answering any of our questions,” he confessed, without counsel, to having the gun.

Powell’s confession was suppressed by the trial court because the police were not precise in administering the Miranda warnings. The appellant court agreed. The U.S. Supreme Court disagreed. In an opinion written for a 7-2 majority, Justice Ruth Bader Ginsburg wrote, “The four warnings Miranda requires are invariable, but this court has not dictated the words in which the essential information must be conveyed.” Essentially, Miranda warnings need not be precise.

In Maryland v. Shatzer, decided a day before Powell, Michael Shatzer was in prison when the police questioned him about the sexual assault of his son. After being read his Miranda warnings he invoked his right to legal counsel and the interrogation was terminated. Thirty-months later the police returned to interview him. Shatzer was, again, Mirandized and confessed to assaulting his son. Shatzer’s confession was used to convict him of sexual assault.

Justice Antonin Scalia wrote in Shatzer, there should not be an “eternal” bar against further police questioning after a suspect requested an attorney. The 30-month break in custody was enough. However, Scalia went further. Those suspects, who have been released from custodial interrogation for at least 14 days, could be returned to custody and if they did not again invoke counsel, could be interrogated and any incriminating statement could be used at trial.

In four months, the U.S. Supreme Court has held that an accused must be precise; the police need not use precision and an accused, once precise, may indeed need to be precise once more. Police officers and prosecutors must be tickled by the evolution of a 45-year-old ruling touted as one of the 20th century’s most significant criminal justice decisions.

Saturday, June 5, 2010

What Would You Pay to be Free From Crime?

According to the Atlanta Journal Constitution, some southern states, traditionally known for their tough law and order vigor, are looking for ways to balance shrinking state budgets by reducing prison population. Many states face the same difficult decision. Regardless of the choice, many people are going to suffer. The question is how will they suffer?

Here, according to the Journal Constitution, is what some states are doing:

Mississippi lawmakers decided in 2008 to cut prison costs by allowing all nonviolent offenders to be considered for parole after serving 25 percent of a sentence instead of 85 percent.

Texas began a bipartisan effort in 2007 that avoided $2 billion in costs to build and operate new prisons by spending $241 million on alternatives: stepped-up probation and parole programs, new halfway houses and specialty courts devoted to offenders with drug issues and mental health problems.

North Carolina announced in April a bipartisan initiative to develop a new research-driven approach to public safety that is expected to reduce prison costs by investing in alternatives that are more effective.

South Carolina’s Legislature last week approved a landmark sentencing reform package designed to save the state $400 million over the next five years by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism.

Georgia, according to James E. Donald, a member of the State Board of Pardons and Paroles, began looking for alternatives for nonviolent prisoners. The state is considering a movement to create a state network of “day reporting centers,” a community-based option for errant probationers who pose little threat but who would otherwise take up prison space.

According to the Journal Constitution, plenty of states beyond the South — traditionally the leading tough-on-crime region — are also adjusting their approach to punishment.

My Take

For many states it is a Hobson's choice. How many reductions in child care, education or health care are citizens willing to put up with to fund jails and prisons. As the Journal Constitution recently pointed out in Georgia, "Lawmakers will likely face a difficult choice in the 2011 session: Opt for more teacher layoffs, higher college tuition bills and less money for transportation, or make changes to lower Georgia’s prison population."

However, crime rates are at historic lows. According to the FBI, violent crime fell by 5.5-percent in 2009. All four violent crime offenses—murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault—declined nationwide in 2009 when compared with 2008 data. Robbery dropped 8.1 percent, murder decreased 7.2 percent, aggravated assault declined 4.2 percent, and forcible rape decreased 3.1 percent. Property crimes fell by 4.9 during the same period.

Declining crime has been a trend in this country for the last decade. How much can be attributed to record incarceration rates? One in every 100 Americans is behind bars. While prisons and jails have recently decreased in size, the size of prisons have increased at least five-fold since 1985.

Will a decrease in prison population cause increased crime? There is no question that incarceration has had an impact on crime. A study by economist Steven Levitt found filling prisons reduces crime.

The question is, would states be looking for alternatives to incarceration if the economy had not turned sour and state revenues dried up? If the answer is no, then we must conclude that public safety is being compromised to balance state and local budgets.

The cost of an up-tick in robbery or rape or murder may not be that significant to the state or federal government. What is the cost to the victim? The 5.5-percent reduction in violent crime in 2009 represents more than just some numbers on a statistician's spreadsheet--those numbers represent thousands and thousands of men, woman and children who were not victims. Those statistics represent the growing number of Americans who were not robbed, beaten, raped and murdered.

What are you willing to pay in taxes, or not receive in government services, to be one of the unknown nonvictims of violent crime?

Friday, June 4, 2010

Texas Prosecutes Students as Young as 6

The police in Texas are writing criminal citations to students, some as young as 6-years-old, for disruptive behavior in schools. The Texas Tribune reported that 160 school districts in Texas have their own police departments.

According to the Tribune, Dallas Independent School District’s police department,issued criminal citations to 92 10-year-olds in the 2006-07 school year, the latest year for which such data is available. Alief (Houston)School's police officers issued 163 tickets to elementary school students in 2007. Several districts ticketed a 6-year-old at least once in the last five years, according to a recent presentation to the state Senate’s Criminal Justice Committee by Texas Appleseed, a nonprofit research and advocacy group focusing on social and economic justice.

Last school year, police in Houston, with an enrollment of about 200,000, wrote 5,763 tickets to students, its department reported to the Tribune. The number of tickets in Houston has ranged between 4,000 and 6,000 since 2005, according to district data. Dallas, with about 150,000 students, the police wrote nearly about 4,400 tickets in 2006-07.

My Take

Apparently, school officials in Texas have capitulated their discipline authority to law enforcement. A shoving match in the hallway of a Texas School is a criminal offense. The class clown who gets disruptive in class may end up in front of a judge instead of the principal.

The way things are going in Texas, chewing gum in school may result in wholesale extractions. Is it possible that a 6-year-old could get so incorrigible that the police need to intervene or is the teacher pushing his or her responsibility on to some other entity. What ever the reason it can't be healthy for students in Texas to wonder if their conduct will land them in court rather than detention.

To read more:

Thursday, June 3, 2010

Jail Population Down 2.3%


WASHINGTON – As of midyear 2009, 767,620 inmates were held in custody of county and city jail authorities, the Bureau of Justice Statistics (BJS) in the Office of Justice Programs, U.S. Department of Justice, announced today. During the 12-month period ending June 30, 2009, the local jail population declined by 2.3 percent (down 17,936 inmates). This is the first decline in the U.S. jail population since BJS implemented the Annual Survey of Jails in 1982. The number of male inmates decreased 1.7 percent (down nearly 12,000) and female inmates decreased 6 percent (down more than 5,900).

Local jails, unlike prisons, are confinement facilities usually operated by a local law enforcement agency. In 2009 approximately 62 percent of jail inmates were unconvicted and being held pending arraignment, awaiting trial, or conviction. The remainder (38 percent) had been convicted and awaiting sentencing, had been sentenced to serve time in jail or were awaiting transfer to serve time in state or federal prisons. At midyear 2009, jail authorities were also responsible for supervising more than 70,000 offenders outside of the jail facilities, including 11,800 under electronic monitoring, 11,200 in weekend programs, 17,700 in community service programs, and 12,400 in other pretrial release programs.

The total rated capacity for all jails nationwide reached 849,544 beds at midyear 2009, up from an estimated 828,413 beds at midyear 2008 (an increase of 2.6 percent) The percent of capacity occupied at midyear 2009 (90.4 percent) was the lowest since 2001 (90.0 percent).

Jail population declines were mostly concentrated in large jails. Among the 171 jail jurisdictions with 1,000 or more inmates on an average day, two-thirds reported a decline. Seven jurisdictions reported a drop of more than 500 inmates (accounting for 29 percent of the decline nationwide). Miami-Dade County, Fla., with a drop of 1,090, and Orange County, Fla., with a drop of 944, led the nation in overall decline in their inmate population.

Local jails admitted an estimated 12.8 million persons during the 12 months ending June 30, 2009, or about 17 times the size of the midyear inmate population (767,620 inmates). More than four in 10 (42 percent) admissions during the last week of June 2009 were to the largest jail jurisdictions with an average daily jail population of 1,000 or more inmates. Small jail jurisdictions holding fewer than 50 inmates accounted for 6.0 percent of all jail admissions, but they admitted about 35 times the size of their inmate population.

The full report can be found at:


The Office of Justice Programs (OJP), headed by Assistant Attorney General Laurie O. Robinson, provides federal leadership in developing the nation’s capacity to prevent and control crime, administer justice, and assist victims. OJP has seven components: the Bureau of Justice Assistance; the Bureau of Justice Statistics; the National Institute of Justice; the Office of Juvenile Justice and Delinquency Prevention; the Office for Victims of Crime; the Community Capacity Development Office, and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. More information about OJP can be found at

Reality Crime Drama on Trial

Rough and tumble crime investigation reality television comes with a price. Last month a 7-year-old girl was killed by police in Detroit while the cameras were rolling for A&E's, The First 48.

The police contend that the house was was raided by an "elite" special response team that was looking for a suspect in the murder of a 17-year-old boy outside a Detroit store.

A member of the "elite" team ran into the child's grandmother while entering the home and the officer's gun discharged killing the 7-year-old. According to the the Washington Post, the slain girls family has hired Attorney Geoffrey Fieger. He claims to have watched a portion of a video tape of the incident and said it contradicts the police version of the girls death.

The Detroit Free Press has suggested that the police may have been playing to the A&E cameras. The police used a flash bomb before entering the residence. A flash bomb is used to divert attention and create confusion when a police special tactics team is entering a structure where they believe there is a special threat to their safety.

The Free Press quoted several experienced defense attorneys who believe the use of a flash bomb with children present is unprecedented in Detroit. Fieger told the Post he saw an officer tossing a flash bomb and then shooting into the house from the front porch.

Mayor Dave Bing, a former NBA star, has suspended all camera crews from accompanying police. "we don't think it's in the best interest of police procedure," said the mayor's spokesperson.

The matter is now in the hands of the Michigan State Police. Police Chief Warren Evans told the Associated Press, "Whatever our findings, they won't be pretty. There is no way they can be under these circumstances. They won't be pretty, but they will be honest," he said.

Chief Evans apologized and even offered the services of department chaplains to people in the community.

"I want to say to the entire Jones family, Aiyana's loved ones and friends, how terribly sorry I am for your loss," Evans said in his statement. "I have children and grandchildren and cannot comprehend losing one of them, especially under such painful circumstances. I will never be able to put myself in your shoes," said Evans.

Wednesday, June 2, 2010

Arizona Ignores Facts, Attacks Immigration

The right wing leaders in Arizona, like Governor Jan Brewer, talk about an “illegal-alien crime wave,” as a reason for the startling new immigration law in that state. Politicians have pounded away at illegal aliens and their direct influence on crime.

According to Newsweek, Governor Brewer told Fox News, “We’ve been inundated with criminal activity. It’s just—it’s been outrageous.” Arizona’s Sen. John McCain said last month that the failure to secure the border with Mexico “has led to violence—the worst I have ever seen.” The president of the Arizona Association of Sheriffs, Paul Babeu of Pinal County, claims, “Crime is off the chart in this state.”

Newsweek did a little fact checking and exposed what the FBI data actually shows. The incidence of violent crime in Arizona declined dramatically in the last two years. After a spike in 2006 and 2007, the number in Phoenix dropped to 10,465 in 2008 and to 8,730 in 2009, which is lower than it was six years ago. Murders, which hit a high of 234 in 2006, dropped to 167 in 2008 and 122 in 2009. (Some lesser crimes may go unreported, especially if people are scared to talk to the cops, but police statistics only rarely miss a murder.)

A little basic research would have shown Arizona leaders that big cities with large immigrant populations are safer places to live.

Again, according to Newsweek, this is not just a matter of random correlation being mistaken for causation. A new study by sociologist Tim Wadsworth of the University of Colorado at Boulder carefully evaluates the various factors behind the statistics that show a massive drop in crime during the 1990s at a time when immigration rose dramatically. In a peer-reviewed paper appearing in the June 2010 issue of Social Science Quarterly, Wadsworth argues not only that “cities with the largest increases in immigration between 1990 and 2000 experienced the largest decreases in homicide and robbery,” which we knew, but that after considering all the other explanations, rising immigration “was partially responsible.”

As Newsweek suggests:

To deny that reality and ignore its implications is likely to make life more dangerous all over America, diverting resources away from the fight against violent crime and breaking down the hard-won trust between cops and the communities where they work.

To read more:

Tuesday, June 1, 2010

ALERT: SCOTUS Rules on Miranda, Again

Today, the U.S. Supreme Court handed down its third ruling this year interpreting the nuances of Miranda v. Arizona, 384 U.S. 436 (1966). In Berghuis v. Thompkins, 560 U.S. ___ (2010), the Court held that, “A suspect who has received and understood the Miranda warnings, and has not invoked the Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.”

Van Chester Thompkins was a suspect in the murder of Samuel Morris outside a strip mall in Southfield, Mich. When the police brought him in for questioning he was advised of his right to remain silent and his right to legal counsel. He remained mostly silent for nearly three hours. As a result of his silence he failure to acknowledge that he was willing to talk or that he wanted to end the interrogation.

The police continued to interview Thompkins. After three hours he was asked, "Do you pray to God to forgive you for shooting that boy down?" Thompkins answered, "Yes." The statement was used against him at trial.

Justice Anthony M. Kennedy wrote on behalf of a 5 to 4 majority, "If Thompkins wanted to remain silent, he could have said nothing in response to [the detective's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation."

The Court made it clear that anything short of an unequivocal response either waiving or invoking the right to silence or counsel will not be sufficient. Silence itself is not enough to claim the right to remain silent.

Justice Sonia Sotomayor, wrote a dissenting opinion taking issue with the majority opinion, "Criminal suspects must now unambiguously invoke their right to remain silent, which, counterintuitively, requires them to speak."

The full opinion: