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Archive for August 20th, 2015

Supreme Court to Decide Three Thorny Capital Cases

By Ross Parker
ticklethewire.com

The U.S. Supreme Court will begin its 2015-2016 term with oral arguments in October on three tough cases on capital punishment from the minority of states which still maintain a de facto death penalty.

Screen Shot 2015-08-20 at 11.44.20 AM

In Kansas v. Carr, Gleason, the issues presented involve the trial judge’s instruction to the jury and the question of joinder and severance for two defendants during the sentencing proceeding. Carr and Gleason were brothers who were convicted of a series of brutal rapes and murders during a crime spree in Wichita, Kansas in 2000. There was little doubt as to the result of the guilt phase of the trial.

During the death penalty hearing the judge denied the defendants’ request for severance of their cases. The defendants’ case of mitigation was in the words of the Kansas Supreme Court, “so weak it would not pull the skin off of rice pudding.” Although the evidence was not openly antagonistic between the two defendants, the appellate court later speculated that some of the evidence may not have been admitted against both defendants if there had been separate proceedings. The jury’s verdict was death.

The Kansas Supreme Court affirmed the convictions but reversed the sentences as a violation of the 8th Amendment prohibition against cruel and unusual punishment. The joint proceeding deprived the defendants of an individualized sentence determination. The court went on to hold that the trial judge should have instructed the jury that the defendant need not prove mitigating circumstances beyond a reasonable doubt. Instead, the judge had instructed that each juror should assess and weigh the mitigating circumstances.

Predicting the Court’s decisions in the emotion-packed morass of death penalty cases is never easy but not as difficult as divining the rationales of each Justice to support her/his vote. Separating the ultimate result from the nuance of the legal issue without distorting the evolution of the case law in non-capital cases has been a tortured exercise for decades. The defendants point to little concrete harm that resulted from the joinder, but this seems the better issue for them. The instruction issue seems less persuasive.

Hurst v Florida

The following week, October 13th, the Court will hear the case of Hurst v. Florida on whether its previous case of Ring v. Arizona should be extended to void the Florida practice of making the jury’s sentence verdict as only advisory to the trial judge, who makes the decision on a penalty of death, as well as issues on how the jury goes about deciding the advisory verdict.

Timothy Lee Hurst was convicted of the brutal murder of a co-worker in a Popeye’s Fried Chicken restaurant in Escambia County Florida in 1998. The psychologists testified that Hurst’s IQ was between 69 and 78 and therefore not ineligible for the death penalty as being “retarded.”

The jury’s advisory verdict to the trial judge did not identify which “aggravators” they found or whether a majority agreed on a single theory. They voted 7-5 to recommend death. This procedure leaves open the possibility that less than a majority agreed on a single aggravating circumstance, which would justify the jury’s recommendation. The trial judge conducted his own hearing on the issue and ultimately sentenced Hurst to death.

The Supreme Court in Ring held that whether the State has proven beyond a reasonable doubt the necessary aggravating circumstance warranting a death verdict is an issue of fact finding for the jury to determine. It did not spell out whether that decision had to be binding on the sentencing judge or how the jury was to go about the process. The case left some knotty issues: whether the jury’s role could be in the form of an advisory opinion to the trial judge; whether individual jurors could use different theories of aggravation; and whether the vote of a majority of the jury was a constitutionally adequate verdict.

Florida death penalty litigation has been a fertile ground for death penalty opponents. The state may want to allow Texas to devise the statutory system since Texas has been so much more efficient and successful at imposing and upholding its death verdicts and administering the fatal drug combination.

It is hard to believe that the Supreme Court will uphold a system in which all three of the potential issues left over from Ring have coalesced. Justice Breyer has already made clear his own views that only juries can decide to impose a death verdict. Both he and Justice Ginsburg have called for the Court to accept a case on the issue of the constitutionality of the death penalty itself.

Montgomery v Louisiana 

The third capital sentencing case for October, Montgomery v. Louisiana, did not ultimately result in a death penalty but life without parole imposed on a juvenile. Henry Montgomery was a 17 year old African American 11th grader with an IQ in the 70s who shot and killed a white Sheriff Deputy in East Baton Rouge, Louisiana in 1963. With crosses burning in the neighborhoods and the KKK actively promoting racial tension, Montgomery was convicted and sentenced to death without any opportunity to present mitigating circumstances during a sentencing proceeding.

The Louisiana Supreme Court reversed, he was re-tried, convicted and automatically sentenced to life imprisonment without possibility of parole. Montgomery is now 69 years old and has been in prison for 52 years.

In 2012 the Supreme Court in Miller v. Alabama held that sentences of mandatory life without parole for defendants under the age of 18 violated the 8th Amendment. But the Court has never decided whether Miller should be applied retroactively.

Retroactivity in criminal procedure cases is determined by a 1989 Supreme Court case called Teague v. Lane, whose rule requires the finding either that the decision involves a new substantive rule of criminal constitutional procedure or, if procedural rather than substantive, whether the case implicates fundamental fairness and accuracy of the criminal proceeding.

These are slippery concepts and there are those who think that the Justices first decide the end result of the case from a policy perspective and then apply the Teague rule accordingly. The equities of the Montgomery case weigh on both sides of the balance. A law enforcement officer was killed, but a half century has passed since the defendant killed him. For my money, once you decide to make the sentence unavailable for minors (whether you agree with this policy or not), to make it not applicable to cases after 50 plus years seems fundamentally unfair.

Three cases with thorny legal issues to be decided under the rule of law as part of a larger agonizing debate about whether we should have two systems of punishment in this country, one by the vast majority of states which have concluded for various principled and practical reasons to abolish the death penalty, and the other in a handful of states which have concluded that the ultimate penalty of death is necessary for their system of criminal justice. Anomalies will always exist in a federal system but few seem so profoundly perplexing.

Parker: Supreme Court to Decide Three Thorny Capital Cases

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office

By Ross Parker
ticklethewire.com

The U.S. Supreme Court will begin its 2015-2016 term with oral arguments in October on three tough cases on capital punishment from the minority of states which still maintain a de facto death penalty.

Ross Parker

Ross Parker

In Kansas v. Carr, Gleason, the issues presented involve the trial judge’s instruction to the jury and the question of joinder and severance for two defendants during the sentencing proceeding. Carr and Gleason were brothers who were convicted of a series of brutal rapes and murders during a crime spree in Wichita, Kansas in 2000. There was little doubt as to the result of the guilt phase of the trial.

During the death penalty hearing the judge denied the defendants’ request for severance of their cases. The defendants’ case of mitigation was in the words of the Kansas Supreme Court, “so weak it would not pull the skin off of rice pudding.” Although the evidence was not openly antagonistic between the two defendants, the appellate court later speculated that some of the evidence may not have been admitted against both defendants if there had been separate proceedings. The jury’s verdict was death.

The Kansas Supreme Court affirmed the convictions but reversed the sentences as a violation of the 8th Amendment prohibition against cruel and unusual punishment. The joint proceeding deprived the defendants of an individualized sentence determination. The court went on to hold that the trial judge should have instructed the jury that the defendant need not prove mitigating circumstances beyond a reasonable doubt. Instead, the judge had instructed that each juror should assess and weigh the mitigating circumstances.

Predicting the Court’s decisions in the emotion-packed morass of death penalty cases is never easy but not as difficult as divining the rationales of each Justice to support her/his vote. Separating the ultimate result from the nuance of the legal issue without distorting the evolution of the case law in non-capital cases has been a tortured exercise for decades. The defendants point to little concrete harm that resulted from the joinder, but this seems the better issue for them. The instruction issue seems less persuasive.

Hurst v Florida

The following week, October 13th, the Court will hear the case of Hurst v. Florida on whether its previous case of Ring v. Arizona should be extended to void the Florida practice of making the jury’s sentence verdict as only advisory to the trial judge, who makes the decision on a penalty of death, as well as issues on how the jury goes about deciding the advisory verdict.

Timothy Lee Hurst was convicted of the brutal murder of a co-worker in a Popeye’s Fried Chicken restaurant in Escambia County Florida in 1998. The psychologists testified that Hurst’s IQ was between 69 and 78 and therefore not ineligible for the death penalty as being “retarded.”

The jury’s advisory verdict to the trial judge did not identify which “aggravators” they found or whether a majority agreed on a single theory. They voted 7-5 to recommend death. This procedure leaves open the possibility that less than a majority agreed on a single aggravating circumstance, which would justify the jury’s recommendation. The trial judge conducted his own hearing on the issue and ultimately sentenced Hurst to death.

Read more »

FBI Launches Investigation into Pennsylvania Attorney General

Kathleen G. Kane/Twitter

Kathleen G. Kane/Twitter

By Steve Neavling
ticklethewire.com

Pennsylvania Attorney General Kathleen G. Kane has found herself on the other side of the law.

After state authorities began investigating her over an allegedly shady deal with a union and trip to Haiti, the FBI is making its own inquiry, The Philadelphia Inquiry reports. 

Kane is under investigation following allegations that she offered a better contract to union officials in her office if they supported her embattled chief of staff. Investigators also are looking into how she paid for a trip to Haiti last year.

She also is accused of leaking information to embarrass a critic and then lied under oath about it.

It wasn’t immediately clear how involved the FBI was, and a spokesman for the FBI office in Philadelphia declined to comment.

Border Patrol Veteran of 29 Years Takes Over Office in Maine

Daniel Hiebert/CBT

Daniel Hiebert/CBT

By Steve Neavling
ticklethewire.com

Border Patrol in Maine has a new chief.

Daniel Hiebert, a 29-year veteran of Border Patrol, will head up the Houlton Sector, which covers the state of Maine, Bangor Daily News reports. 

Hiebert began his Border Patrol career in 1986 in Texas.

“This is the culmination of a long career. I still have quite a ways to go,” said Hiebert after taking his oath of office at the Army National Guard Regional Training Institute in Bangor. “I’m looking forward to getting involved with the state of Maine and Houlton Sector and doing what we can do to make sure the people of Maine feel safe knowing that their borders are protected.”

Hiebert is replacing acting Chief Patrol Agent Alfredo Casillas, who will return to his position of deputy chief patrol agent.

FBI Arrests Man Accused of Threatening to Blow Up Statue of Liberty

Statue of Liberty/Wikipedia

Statue of Liberty/Wikipedia

By Steve Neavling
ticklethewire.com

It was no joking matter to law enforcement or the thousands of people who were visiting the Statue of Liberty.

A 42-year-old man is accused of claiming to be a well-known terrorist and calling in a threat to blow up the Statue of Liberty, The Hill reports. 

The FBI and other law enforcement arrested Jason Smith, who is accused of calling 911 on April 24 and saying he was Abdul Yasin, the lone suspect in the 1993 World Trade Center bombing.

Authorities took the threat serious, sending in police dogs and evacuating more than 3,200 people.

Authorities said Smith used his iPad to call in the threat.

Fogle Friend: Subway Spokesman Often Boasted About Sex with Underage Girls

jared fogleBy Steve Neavling
ticklethewire.com

A Sarasota woman said the FBI knew for years about allegations that now-former Subway spokesman Jared Fogle was interested in underage girls.

Rochelle Herman said she notified the FBI about Fogle after the pair vacationed together in Sarasota and he made inappropriate comments about middle school girls, CBS Miami reports.  

For four years, she said, she worked with the FBI and recorded conversations with Fogle.

She said Fogle also told her he went to Thailand to meet underage girls.

Prosecutors allege Fogle had sex acts with minors in New York City.

He pleaded guilty Wednesday to child pornography charges.

FBI: Reputed Klansman Planned to Attack Muslims with Mobile, Radiation-Spewing Weapon

courtroomBy Steve Neavling
ticklethewire.com

A reputed Klansman from Saratoga County in New York believed he was capable of making a mobile device that would decimate Muslim towns with radiation.

Unbeknownst to him, he unraveled his plans to FBI agents and a KKK leader who was working with the bureau, The Times Union reports. 

The details were released Wednesday during a federal trial.

The case is expected to go to the jury as early as this week.

Crawford was arrested June 18, 2013. A co-defendant has already pleaded guilty.

Speaking to agents, Crawford bragged about the weapon’s capabilities.

“This could kill whole cities in a night — silently,” Crawford told the agents. “It would be weeks before anybody would have any inkling that anything was wrong and they’d probably drop dead in their beds.”

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