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Archive for October 11th, 2016

The Supreme Court, Police Shootings and Black Lives Matter

By Ross Parker
ticklethewire.com

Have the frenzied media coverage of incidents involving police shootings of African Americans and the protests of Black Lives Matter activists affected the Supreme Court?  The Court has not addressed a case involving race and the criminal justice system in some time, but two such cases are scheduled for oral argument this month.

Coincidence or a legitimate attempt to weigh in on a crisis jeopardizing law enforcement lives and the faith of minority Americans in the fairness of the criminal process?

US_Supreme_Court

The Court exercises discretion in at least three ways: what cases to accept for hearing (only about 1% are heard), the timing of oral argument (these cases were set for the first month of the 2016-2017 term), and in the individual votes and opinions of the Justices). The first two seem to demonstrate a special sensitivity to this subject which is embroiling race relations in America.

However, the other related question is whether the open seat on the Court from the death of Justice Scalia will affect the Court’s ability to decide these cases and to resolve conflicts in the lower courts. A 4-4 vote will mean that the lower court decision will stand. In these two cases the lower courts both rejected the petitions of minority defendants on racial issues.

The first of the two cases is Buck v. Davis, a death penalty appeal which has bounced around the Texas state courts, the federal district court in Houston and the 5th Circuit since Buck’s sentence of death in 1996. Buck was convicted of capital murder of his ex-girlfriend and a man at her house in a jealousy-fueled shooting spree. During the penalty hearing his defense attorney, who had a notoriously bad record in capital cases, called a psychologist to testify on the subject of Buck’s likelihood of posing a danger in the future.

In Texas the jury must unanimously conclude that the defendant poses a danger of violence to warrant the verdict of death. The defense psychologist testified that the fact that he was Black made him statistically more likely to be dangerous. Ultimately, however, the psychologist was of the opinion that he was at a lower probability of being dangerous. His report, which included the race analysis, was admitted as a defense exhibit. The prosecutor reiterated this race opinion in cross-examination and the witness’s conclusion in his closing argument.

On the most recent appeal, the 5th Circuit concluded that, although racial appeals had long been unconstitutional in criminal trials, the defendant had not met the standard of a substantial showing of prejudice to justify a Certificate of Appeal. There had been no proof that the result would have been different without the expert’s testimony in view of the defendant’s callous actions and his lack of remorse. The defense showing on appeal was not extraordinary and the prejudice de minimis.

This particular psychologist had repeated this race-based statistical opinion in six other capital cases, and the Texas Attorney General announced in a press conference that it would not oppose re-sentencing in all of those cases. However, a new Attorney General reneged on this promise as to Buck’s case.

In addition to the race-based issue, the case illustrates the tension in capital cases between two important principles. In cases involving the death penalty errors in the trial are painstakingly reviewed and appellate opinions often reach to achieve due process. On the other hand, there is a need for finality in the resolution of criminal cases. The length of time capital defendants sit on death row today is considered by some to be a failure of finality in the system.

Read more »

Parker: The Supreme Court, Police Shootings and Black Lives Matter

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

Have the frenzied media coverage of incidents involving police shootings of African Americans and the protests of Black Lives Matter activists affected the Supreme Court?  The Court has not addressed a case involving race and the criminal justice system in some time, but two such cases are scheduled for oral argument this month.

Coincidence or a legitimate attempt to weigh in on a crisis jeopardizing law enforcement lives and the faith of minority Americans in the fairness of the criminal process?

US_Supreme_Court

The Court exercises discretion in at least three ways: what cases to accept for hearing (only about 1% are heard), the timing of oral argument (these cases were set for the first month of the 2016-2017 term), and in the individual votes and opinions of the Justices). The first two seem to demonstrate a special sensitivity to this subject which is embroiling race relations in America.

However, the other related question is whether the open seat on the Court from the death of Justice Scalia will affect the Court’s ability to decide these cases and to resolve conflicts in the lower courts. A 4-4 vote will mean that the lower court decision will stand. In these two cases the lower courts both rejected the petitions of minority defendants on racial issues.

The first of the two cases is Buck v. Davis, a death penalty appeal which has bounced around the Texas state courts, the federal district court in Houston and the 5th Circuit since Buck’s sentence of death in 1996. Buck was convicted of capital murder of his ex-girlfriend and a man at her house in a jealousy-fueled shooting spree. During the penalty hearing his defense attorney, who had a notoriously bad record in capital cases, called a psychologist to testify on the subject of Buck’s likelihood of posing a danger in the future.

In Texas the jury must unanimously conclude that the defendant poses a danger of violence to warrant the verdict of death. The defense psychologist testified that the fact that he was Black made him statistically more likely to be dangerous. Ultimately, however, the psychologist was of the opinion that he was at a lower probability of being dangerous. His report, which included the race analysis, was admitted as a defense exhibit. The prosecutor reiterated this race opinion in cross-examination and the witness’s conclusion in his closing argument.

Ross Parker

Ross Parker

On the most recent appeal, the 5th Circuit concluded that, although racial appeals had long been unconstitutional in criminal trials, the defendant had not met the standard of a substantial showing of prejudice to justify a Certificate of Appeal. There had been no proof that the result would have been different without the expert’s testimony in view of the defendant’s callous actions and his lack of remorse. The defense showing on appeal was not extraordinary and the prejudice de minimis.

This particular psychologist had repeated this race-based statistical opinion in six other capital cases, and the Texas Attorney General announced in a press conference that it would not oppose re-sentencing in all of those cases. However, a new Attorney General reneged on this promise as to Buck’s case.

In addition to the race-based issue, the case illustrates the tension in capital cases between two important principles. In cases involving the death penalty errors in the trial are painstakingly reviewed and appellate opinions often reach to achieve due process. On the other hand, there is a need for finality in the resolution of criminal cases. The length of time capital defendants sit on death row today is considered by some to be a failure of finality in the system.

Read more »

Ex-Secret Service Agents Give Kim Kardashian Protection Worthy of a President

Kim Kardashian, via Wikipedia

Kim Kardashian, via Wikipedia

By Steve Neavling
ticklethewire.com

Former members of the Secret Service are protecting reality star Kim Kardashian after she was robbed in Paris, a source told TMZ. 

Kardashian isn’t playing around after she was tied up and gagged at her Paris residence.

Former members of the Secret Service will join her security team, and they will be armed. She also will be transported in an “armored” car.

TMZ also reports that she met with former CIA agents and special force members of the Israeli army.

Kardashian also is planning to hire security for her daughters, but it’s unclear whether former Secret Service agents will be part of that detail.

Justice Department to Investigate Conditions at Prisons in Alabama

jail2photoBy Steve Neavling
ticklethewire.com

The Justice Department plans to investigate conditions at Alabama’s prisons for men following a work strike by guards.

“The investigation will focus on whether prisoners are adequately protected from physical harm and sexual abuse at the hands of other prisoners; whether prisoners are adequately protected from use of excessive force and staff sexual abuse by correctional officers; and whether the prisons provide sanitary, secure and safe living conditions,” the DOJ said in its statement.

A week ago, guards at W.C. Holman Correctional Facility staged a work strike to call attention to prison overcrowding and safety issues, the Root reports. http://www.theroot.com/articles/news/2016/10/justice-department-investigates-alabama-prison-conditions/

Robert Council, a 42-year-old serving life without parole at Holman, said prisoners are almost always on lockdown and not allowed out of their cells for months.

“The Constitution requires that prisons provide humane conditions of confinement,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division.  “We hope to work cooperatively with the state of Alabama in conducting our inquiry and ensuring that the state’s facilities keep prisoners safe from harm.”

Authorities Investigating Arson of DEA Vehicle in Wichita, Kan.

fire via pixabayBy Steve Neavling
ticklethewire.com

Investigators are trying to determine who set fire to a DEA vehicle in Wichita, Kan.

The SUV was in the parking lot of a building that houses DEA offices, KSNW reports. 

The Wichita Police Department said the fire broke out around 1:50 a.m. on Oct. 6.

Two people were spotted in a surveillance video approaching the vehicle before it was set on fire.

The surveillance wasn’t released, but investigators are trying to determine the identity of the two people.

The DEA, Wichita Police Department and ATF are investigating.

New Details Emerge of Border Patrol Agent Accused of Helping Mexican Cartel

Border Patrol Agent Joel Luna

Border Patrol Agent Joel Luna

By Steve Neavling
ticklethewire.com

When authorities found a headless body floating near South Padre island in Texas, the investigation led them to a Border Patrol agent accused of helping a Mexican cartel smuggle drugs and weapons across the border.

Agent John Luna is accused of helping his brothers.

New details have emerged, including that investigators said they have found a “treasure trove” of evidence at Luna’s mother-in-law’s house, the Associated Press reports. 

Discovered in a safe at the home were nearly $90,000 in cash and a kilo of cocaine.

Luna, a 31-year-old Iraq War veteran, is accused of capital murder in the death of a mean that was considered a possible snitch.

His attorney, Carlos A. Garcia, claims Luna had nothing to do with the scheme.

“This is a clear-cut case of guilt by association,” Garcia said.

Prosecutors declined to discuss details of the case, but said the safe contained Luna’s Border Patrol badge.

“Drug use and abuse in America is fueling the Mexican cartels, and because of the money and the weapons that go south, we get all the violence,” Garza said. “This case represents that.”

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