Monthly Archive: January 2021

California DAs Association Rebukes Gascón

by · Jan 12, 2021 11:22 am

In California, as in most states, trial court prosecutors are elected locally, giving the people of a county some degree of local control over how prosecutorial discretion is exercised. Discretion is not unlimited, though, and there are state laws that cannot properly be brushed aside in the name of local policy.

The California District Attorneys Association today released an open letter to the (Los Angeles) Association of Deputy District Attorneys expressing concerns that the policy directives of new LA DA George Gascón go beyond the limits of policy and place deputies in the position of being ordered to violate their legal and ethical obligations. Continue reading . . .

Supreme Court Orders Friday and Today

by · Jan 11, 2021 2:32 pm

The U.S. Supreme Court held a conference Friday, resulting in a short orders list the same day and a longer one today. Some criminal cases were taken up, but no blockbuster ones.

Among cases we are following, the Marathon Bomber Case was relisted for this coming Friday, as expected. A grant on the second listing is a good possibility for this high-profile case.

In Poole v. Florida, the Court turned down a request to say that it didn’t really mean what it said in McKinney v. Arizona (see this post), i.e., that the Sixth Amendment has nothing to say about whether the weighing of the aggravating versus mitigating circumstances in capital cases, and hence the sentencing decision, must be done by a jury or a judge. Yes, it really did mean that. Continue reading . . .

Recalling the Los Angeles District Attorney

by · Jan 11, 2021 11:01 am

By Charles H. Bell, Jr., Senior Partner, Bell, McAndrews & Hiltachk, LLP

The Los Angeles County Charter specifies that the recall procedure for county elected officials is governed by State law.  (L.A. County Charter, § 50.)  Thus, the process described in the Elections Code (§ 11000 et seq.) applies to the recall of the District Attorney.

The recall of the District Attorney may not begin until more than 90 days after he was sworn into office. (Elec. Code, § 11007.)  George Gascón was sworn into office on December 7, 2020; thus, no recall can be commenced until March 8, 2021, at the earliest. Continue reading . . .

Will Liberals Now Awaken to the Legitimacy of Police Display, and Use, of Force?

by · Jan 9, 2021 12:13 pm

This last week’s invasion of the Capitol by a mob seeking to prevent Vice President Pence from counting the electoral votes and certifying the election result leaves us with very few positives.  The country is rightly shocked that a mob would think it has the right to take the law into its own hands, and that this belief extended even to the most fundamental aspect of democratic self-rule (the peaceful transfer of power through legal process). At least one police officer and at least one rioter were killed in the melee.

There may be one silver lining, however.  Liberals (and not a few libertarians) may have awakened to the previously Neanderthals-only idea that we need police with sufficient numbers, weapons, confidence and authority forcibly to keep the peace against those who threaten it.

Continue reading . . .

An Easy Retroactivity Case Made Difficult — Part III, Teague‘s Phantom Exception

by · Jan 7, 2021 4:34 pm

This post concludes the series on the U.S. Supreme Court case of Edwards v. Vannoy, No. 19-5807, argued December 2. The question presented is whether the Court’s decision last term in Ramos v. Louisiana is retroactive to overturn judgments that were already final on direct appeal when the decision came down. On the well-established body of law under Teague v. Lane, the answer is very clearly no, yet the Court seemed to have a surprising amount of difficulty with it during the argument.

The previous two posts (see index at the end) demonstrated that the conditions for the Teague rule to come into play were met. Ramos is certainly a “new rule” within the meaning of the Teague cases. It is a rule of procedure and not substantive law. The remaining question is whether it qualifies for an exception that no new rule in the three decades since Teague has qualified for. The answer, again, is clearly no. Continue reading . . .

Time to End Tolerance of Political Violence

by · Jan 7, 2021 9:22 am

President-elect Biden said this yesterday:

“Let me be very clear. The scenes of chaos at the Capitol do not reflect a true America, do not represent who we are. What we’re seeing are a small number of extremists dedicated to lawlessness. This is not dissent. It’s disorder. It’s chaos. It borders on sedition, and it must end now.”

That is entirely correct. It is high time that we came to a consensus as a people that in the United States in the twenty-first century violence, destruction of property, and occupation of any place belonging to the public or another person for political ends are never justified, never excusable, and should never be tolerated. Those who engage in such actions are criminals and should be treated as such. Continue reading . . .

Acting AG Rosen Must Bring the Full Weight of the Law Against Today’s Violence at the Capitol

by · Jan 6, 2021 1:14 pm

Numerous reports say that pro-Trump protesters have invaded the Capitol to make it impossible for Vice President Pence (who has been evacuated) to count the electoral votes.  One woman has been shot, although the specific circumstances are unclear at this hour.

This is intolerable.  If the rule of law means anything, it means that we forswear violence and intimidation in favor of peaceful persuasion and legal process.  I understand that many on Trump’s side feel urgently, and not entirely without basis, that the election was infected with fraud.  But adherence to law is so hard precisely because its value is so great:  It demands that we restrain even our most urgent feelings in favor of peaceful (though often maddening) process.  The alternative to the rule of law is the rule of the jungle.

The upshot is that Acting AG Rosen must see to it that the full weight of the law be brought against the Capitol invaders.  If intimidation and force are not acceptable for BLM and Antifa  —  and they aren’t  —  they are not acceptable for anyone else, either.  Let the prosecutions begin.

Merrick Garland to Become Attorney General

by · Jan 6, 2021 11:13 am

Joe Biden has chosen Judge Merrick Garland of the DC Circuit to be the new Attorney General, numerous reports say.  Among those being mentioned (Sen. Doug Jones, former Acting AG Sally Yates, and former Massachusetts Gov. Deval Patrick), Garland is easily the best choice.  He’s liberal  —  make no mistake  —  but he believes in law, and believes there is a difference between law and politics.  He is a gracious person and a man of integrity.  He also has considerable experience as a prosecutor, having, among other things, led the capital prosecution of Timothy McVeigh as Principal Deputy AG in the Clinton years.  Biden deserves credit for this choice.  Now that the Senate will be controlled by his party, he could have gotten away with a lot worse.

The country will miss the determined and law-driven leadership of Bill Barr, who left a millionaire’s practice to put up with a boatload of headaches from his superior and an even bigger boatload of brickbats from his grossly partisan critics.  Many thanks are due him for his focused and courageous service.

Full USCA-DC Rejects Rehearing For Notorious Murderer

by · Jan 5, 2021 11:53 am

On New Year’s Day, a panel of the U.S. Court of Appeals for the D.C. Circuit vacated the stay of execution for notorious murderer Lisa Montgomery. Today, the full court turned down her rehearing petition. Matthew Schwartz had this story for NPR Saturday:

Lisa Marie Montgomery said she was interested in purchasing a puppy. But once the Kansas woman arrived at Bobbie Jo Stinnett’s Missouri home in 2004, she attacked the pregnant 23-year-old, using a rope to strangle her until she lost consciousness.

With a kitchen knife, Montgomery cut the 8-month-old fetus out of Stinnett’s womb, taking it to raise as her own. Stinnett was found later by her mother, dead in a pool of blood. Continue reading . . .