Author: Kent Scheidegger

Supreme Court Invalidates Bump Stock Regulation

by · Jun 14, 2024 8:38 am

In October 2017, a horrific crime was committed in Las Vegas, Nevada. As stated in today’s Supreme Court opinion in Garland v. Cargill, “a gunman fired on a crowd attending an outdoor music festival in Las Vegas, killing 58 people and wounding over 500 more. The gunman equipped his weapons with bump stocks, which allowed him to fire hundreds of rounds in a matter of minutes.”

Machine guns (fully automatic guns) are illegal. Should bump stocks, which enable a semiautomatic to fire a similarly rapid series of rounds, be illegal for the same reason? Of course. Who has the authority to make that law, Congress by statute or the the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) by regulation? Continue reading . . .

No Crim. Law Decisions from SCOTUS Today

by · Jun 6, 2024 7:30 am

The U.S. Supreme Court issued three decisions today. All are in civil cases with no law enforcement connection. The next regularly scheduled opinion day is next Thursday, June 13, but in June the high court sometimes releases opinion on other days as well.

We are still waiting on important decisions on crime labs and expert witness testimony and local governments’ ability to cope with illegal encampments. Stay tuned.

Is Murder a Violent Offense?

by · Jun 3, 2024 2:33 pm

To anyone with common sense, the title of this post seems to be a contender for the most absurd question that can possibly be asked. Yet, believe it or not, the U. S. Supreme Court today took up a case that asks that question, Delligatti v. United States, No. 23-825.

According to the government brief on the question of whether to take the case up, defendant Salvatore Delligatti was “an associate in the Genovese Crime Family,” who was hired to murder someone and then subcontracted the job. The plot failed when the police were alerted and arrested the subs. Among other crimes, Delligatti was charged with gang-related attempted murder in violation of the Violent Crimes in Aid of Racketeering Act, 18 U.S.C. § 1959, and “carrying a firearm during and in relation to any crime of violence,” 18 U.S.C. § 924(c)(1)(A).

Delligatti was convicted on all counts and sentenced to 25 years in prison, of which 5 years were for the § 924 gun charge. He argued in the trial court and on appeal that murder as defined in New York is not a “crime of violence” within the definition of § 924(c) because that definition requires physical force, and it is possible to commit murder in New York by failure to act when one has a duty to act, which does not involve physical force. Continue reading . . .

Unconnected Mitigation Evidence in Capital Cases

by · May 30, 2024 4:35 pm

Today the U.S. Supreme Court reversed a decision of the Ninth Circuit in a capital case, Thornell v. Jones. All but one of the Justices agreed that the panel decision was wrong. The Ninth Circuit itself refused to rehear this rogue decision over the dissents of ten of its judges. This is such a common occurrence it is hardly even news. The most newsworthy aspect of the case is that a solid majority of the Supreme Court is finally showing skepticism about the value of “background” mitigating evidence that has nothing to do with the crime. This is a most welcome development, even if over 40 years late.

Claims of ineffective assistance of counsel are the weapon of choice for capital defense lawyers who want to retry their state-court cases in federal court. The most common line of attack is to find something about the defendant’s background that the trial lawyer did not present, proclaim it to be critical evidence that would have turned the whole case around, and denounce the trial lawyer as incompetent because he did not present it. The evidence need not have any substantial weight if the murderer wins the judge selection lottery and draws judges who approach every capital case as an exercise in searching for an excuse to overturn the sentence. Continue reading . . .

A SCOTUS Warning Shot on Small Juries

by · May 28, 2024 11:03 am

Historically, trial juries were twelve people. Is this number constitutionally required? The Supreme Court said no 54 years ago in Williams v. Florida. The decision was 7-1, with Justice Marshall dissenting alone on this point.

However, the Supreme Court’s views on such matters have changed, and four years ago the high court dumped a precedent approving nonunanimous juries, despite the reliance of states on that precedent. See Ramos v. Louisiana. Today the Supreme Court declined to take up a Florida case challenging the Williams precedent, Cunningham v. Florida, but Justice Gorsuch fired a warning shot across the bow of states that allow juries of less than 12 in criminal cases. Continue reading . . .

The Consequences of Early Release

by · May 28, 2024 9:58 am

Leniency to the guilty is cruelty to the innocent far too often. CWB Chicago reports yet another example. Zebedee Thomas has been charged in Cook County with rape and other crimes committed last August. A DNA match confirms identity. Thomas previously pleaded guilty to a sexual assault on a 7-year-old committed while a juvenile. In 2022, he was sentenced to four years for unlawful imprisonment in Kentucky.

Why was a repeating violent criminal who had been sentenced to four years in prison back on the street the very next year to commit yet another horrific crime? Continue reading . . .

Memorial Day 2024

by · May 27, 2024 11:53 am

Let us take a moment today to remember those who gave the last full measure of devotion in the service of our country and the cause of liberty.

Portland Follow-Up

by · May 23, 2024 1:16 pm

Following up on Tuesday’s post on the Multnomah County District Attorney election, the Oregonian has called the race for challenger Nathan Vasquez over the Soros-backed incumbent Mike Schmidt. Vasquez’s margin is 8% on partial returns Wednesday afternoon and projected to be 5% in the final tally. “The Oregonian/OregonLive determined Schmidt has no statistical path to victory.” Continue reading . . .

SCOTUS Unties ACCA Hemp Knot

by · May 23, 2024 11:19 am

In the Armed Career Criminal Act (ACCA), Congress prescribed severe punishment for people with extensive criminal records who violate federal gun laws. The priors are generally state offenses, so there is a problem matching up criminal laws from different jurisdictions. Under the “categorical” approach the Supreme Court has developed, mismatches often spring loose criminals whose actual conduct meets the definition of the crime that Congress sought to include, frustrating the intent of the law. The Supreme Court has had to decide many cases on this topic, and today’s decision in Brown v. United States is the latest installment.

This decision involves two cases, one from Florida and one from Pennsylvania. In both cases, the drug dealers in question dealt in drugs that remain illegal under federal law. Between the times of their state drug-dealing crimes and their federal weapons sentencing, though, the federal government narrowed its definitions of controlled substances so that the state and federal laws were no longer a perfect match. Should that get them off? Three justices voted for that undeserved escape on a technicality, but the majority of six did not. Continue reading . . .

Pound Cake at 20 Years

by · May 17, 2024 11:03 am

Twenty years ago today, at an NAACP event commemorating the golden anniversary of Brown v. Board of Education, Bill Cosby gave a speech that has come to be known as the Pound Cake Speech. Cosby was a towering figure at the time, a major star in the entertainment industry. He triggered an earthquake by delivering a message that a great many people did not want to hear.

Looking at the incarcerated, these are not political criminals. These are people going around stealing Coca Cola. People getting shot in the back of the head over a piece of pound cake! Then we all run out and are outraged: “The cops shouldn’t have shot him.” What the hell was he doing with the pound cake in his hand? I wanted a piece of pound cake just as bad as anybody else. And I looked at it and I had no money. And something called parenting said if you get caught with it you’re going to embarrass your mother.” Not, “You’re going to get your butt kicked.” No. “You’re going to embarrass your mother.” “You’re going to embarrass your family.”

Cosby turned out to be a horribly inappropriate messenger, but his message was spot on then and remains true today. His downfall was fully justified, but a tragic side-effect was that no one with the stature that he had then has picked up the baton. Continue reading . . .