Monthly Archive: November 2022

Judicial Override, the Sixth Amendment, and Retroactivity

by · Nov 16, 2022 9:55 am

Sentencing a murderer to death generally requires three decisions in the United States today: (1) a factual finding that the defendant is guilty of the highest degree of murder; (2) a further factual finding that an additional aggravating factor is true;* and (3) a discretionary decision that death is the appropriate punishment for this murder and this murderer, considering both aggravating and mitigating factors.

The first decision must be made by a jury under the Sixth Amendment, unless the defendant waives that right. In Ring v. Arizona, the Supreme Court held that the second decision must also be made by a jury, though it previously held the opposite multiple times. The third decision may be vested in a judge (or panel of judges) or a jury by state law. Only Nebraska currently vests the decision in judges.

If a state can vest the decision in the judge entirely, can it also have a jury make a recommendation but still leave the final decision with the judge no matter what the jury recommends? Of course. If a state has such a system but decides to change it and make the jury’s life-sentence recommendation binding, does the U.S. Constitution require that it make that change retroactive, overturning final judgments entered under the old system? Of course not.

Yet that question is before the Supreme Court today in the case of hired hit man Kenneth Eugene Smith. [Update: Stay denied without comment or dissent.] Continue reading . . .

Is Crime in San Francisco Worse Than NYC?

by · Nov 14, 2022 11:42 am

Responding to MSNBC interviewer’s statement that New York City residents “don’t feel safe in this town,” and are “worried we could become San Francisco,” the state’s newly-elected Governor Kathy Hochul said NYC “will never be San Francisco.”  Mallory Monench of the San Francisco Chronicle reports that Hochul went on to say that the Big Apple was successfully fighting crime, with homicides and shootings down dramatically from last year.  While the two cities have vastly different populations, on overall crime they are generally comparable.   Homicides are tracking down 14% in New York City compared to last year while they are up in San Francisco by .43%.  But NYC saw dramatic increases in 2020 and 2021, while San Francisco homicides increased only slightly.  Both cities have unacceptable rates of violent crime.  When it comes to property crime Hochul is correct about San Francisco.  The numbers for 2020 show almost three times the rate of property crimes in San Francisco than in New York.  The reporter admits something that most of the media and liberal think tanks ignore, “The number is almost certainly higher in reality since many people don’t report property crime to the police because of the perception that doing so won’t make a difference.”

Continue reading . . .

Juries Less Than 12

by · Nov 14, 2022 11:38 am

In its 2020 decision in Ramos v. Louisiana, the Supreme Court held that nonunanimous juries are unconstitutional in the guilt phase of criminal trials, and no doubt to the finding of sentencing factors to which the right of jury trial extends under the Apprendi rule. The high court did so despite the heavy reliance of two states on its contrary decision on the precise point nearly a half century earlier.

Last week, two Justices fired a shot across the bow of the six states that still allow juries of less than twelve people. Those states would be well advised to get rid of their small juries—prospectively only—immediately, before the Supreme Court does so retroactively. Continue reading . . .

Supreme Court Takes Up Medicaid Fraud Case

by · Nov 14, 2022 10:36 am

The U.S. Supreme Court has taken up for full briefing and argument a case regarding Medicaid fraud and the Identity Theft Penalty Enhancement Act, Dubin v. United States, No. 22-10.  What is the question presented? Here is the petitioner’s version:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

And here is the respondent’s (i.e., the Government’s):

Whether sufficient evidence supported the jury’s finding that petitioner “use[d]” the means of identification of another person to commit fraud, in violation of 18 U.S.C. 1028A(a)(1), by submitting a Medicaid claim invoking a specific patient’s right to reimbursement for a fictitious three-hour examination by a licensed psychologist on a date when that patient would have been eligible for the reimbursement.

Are these people talking about the same case? Continue reading . . .

2022 Ig Nobel Prizes

by · Nov 10, 2022 9:40 am

A bit late on this report. The 2022 Ig Nobel Prizes were awarded in September. The winners list is here. The prize in literature went to Eric Martínez, Francis Mollica, and Edward Gibson for their research on why legal documents are hard to understand: “Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language.” I pretty much knew that, but it’s nice to see it confirmed in published research. Continue reading . . .

Court Denies Resentencing of Two So-Cal Murderers

by · Nov 7, 2022 1:06 pm

Progressive Los Angeles District Attorney George Gascon’s effort to reduce the sentences of every murderer in the county received a setback last week courtesy of the state’s Second District Court of Appeal.  In the case of People v. Machado a unanimous panel held that a trial judge has the discretion to refuse a sentence reduction even if both the district attorney and the defense attorney request it.  The City News Service reports that convicted murderer Ernest Machado appealed a trial judge’s refusal to reduce his 25-years-to-life sentence for a 1982 conviction for first-degree felony murder.  He claimed that SB 1437, a 2018 sentencing reform law eliminating most murder convictions for accomplices, invalidated his conviction.  In this case, the evidence indicated that both Machado and his accomplice participated in the murder and robbery, allowing both to be convicted under the felony murder rule.  Machado also claimed that Gascon’s 2020 directive ordering his deputies not to oppose a murderer’s request for a reduced sentence, required the judge to grant it.

Continue reading . . .

Paul Pelosi Attacker is an Illegal Alien

by · Nov 3, 2022 1:26 pm

The man who attacked House Speaker Nancy Pelosi ‘s husband in their San Francisco home last week is an illegal alien who has been living in the U.S. since 2008, according to CNBC.  David DePape, a Canadian, crossed the southern border as a temporary visitor, which allowed him to stay in the U.S. for six months.  For the past several years he has been living in a converted bus in Berkeley.   The New York Post reports that his ex-girlfriend, who is currently in prison, said that DePape has been mentally ill for years.  The Department of Homeland Security has sent a detainer request to the San Francisco Police Department asking that they hold him for deportation after his trial.  De Pape has been charged with attempted murder and multiple other crimes related to his October 28 hammer assault on 82-year-old Paul Pelosi. Under California law, attempted murder is punishable  by 5 to 9 years in prison.  Unfortunately, because California is a sanctuary state, if and when De Pape completes his sentence, he will not be turned over to ICE for deportation.

A Severity-Weighted Index of Violent Crime

by · Nov 2, 2022 2:19 pm

In debates over criminal justice policy, people are constantly referring to crime indexes for the question of whether crime is up or down and by how much. But there are problems with the official indexes. One of them is that indexes tend to be dominated by the least serious crime chosen for inclusion in the particular index. Crimes are simply counted, and because the frequency of crimes tends to be inversely related to their severity, the less serious crimes dominate.

For example, the FBI’s index of violent crime includes murder (and voluntary manslaughter), rape, robbery, and aggravated assault. Murder is the most serious, followed by rape, but the other two are much more common. As a result, the violent crime index is largely a measure of robbery and aggravated assault, and it relatively insensitive to changes in the rates of murder and rape.

One alternative is an index with crimes weighted according to their severity. I have seen such indexes in other countries and for some jurisdictions within the United States, but none for the United States as a whole. Here is a first cut at a severity-weighted index of violent crime in the United States. Continue reading . . .

CA Arsonist Sets New Fires After Early Release

by · Nov 1, 2022 11:49 am

A Southern California man convicted on 16 counts of arson in 2021 and sentenced to five years in prison, has been rearrested for setting at least eight fires in North Hollywood last Wednesday.  Eric Leonard of NBC Los Angeles reports that 35 year-old David Rivas was released from prison on October 7 after serving 1/3 (18 months) of his sentence.  Arson is considered a serious crime under California law, but sentencing reforms, including Governor Jerry Brown’s Proposition 57, have given the Department of Corrections and Rehabilitation the authority to grant early release of criminals, even those with priors for rape and murder.  Rivas is being held without bail, and faces trial on seven counts of arson.   Anybody confused about why there is so much crime in major California cities?

Jones v. Hendrix Argument

by · Nov 1, 2022 8:44 am

The U.S. Supreme Court has concluded its oral argument in Jones v. Hendrix.  The question is whether federal prisoners who have already had an appeal and one or more collateral reviews of their convictions can use the “saving clause” of 28 U.S.C. §2255(e) to bring habeas corpus petitions in certain cases in which Congress has forbidden a successive 2255 petition.

The claim is that 2255(e) preserves claims that were traditionally cognizable in habeas despite the 1996 amendment that limited successive petitions. It is difficult to make a prediction from argument. Several of the justices said little or nothing. However, I was encouraged that some justices questioned what point in habeas history we should be looking at. The availability of habeas corpus has varied widely throughout history. The kind of claim at issue in this case would not have been cognizable in early America, as documented in our brief in this case. Continue reading . . .