The Jury Talks Back


California magnet schools can consider race

Filed under: California Politics — aunursa @ 5:18 am

A three-judge panel ruled that, despite the election of Barack Obama, Americans are still not entitled to enter a post-racial society.

Okay, that wasn’t the actual court statement. The state appelate court panel ruled that the Los Angeles Unified School District could use race as a factor in admissions to magnet schools, contrary to the Proposition 209 ban.  Magnet schools use academics or specialized curricula (such as a specific focus on science or mathematics) to draw students from outside the normal school boundary.  California Proposition 209, passed by voters in 1996, prohibits state and local schools and employers from considering race, sex, or ethnicity in admissions.  The Pacific Legal Foundation, which argued the case, is considering an appeal.

ACLU attorney Catherine Lhamon was delighted.  “It’s an unequivocal victory for students in this district and terrific news for students statewide,” she said.

Catherine, it’s not a victory for those students who will continue to face discrimination based on their race.


Whose Justice?

Filed under: Uncategorized — JRM @ 1:23 pm

This is the final (for a while, anyway) in a series of posts on how the criminal law system ought to work.

Here’s our situation:

Meg, Beth, and Amy are all 22-year-old seniors in college; all live off campus, and all are five miles away from the Drunken Collegian bar, Meg to the East, Beth to the West, and Amy to the South. Each drives to the bar to meet and drink. None has any criminal record or traffic tickets.

Each enjoys cheery conversation and frilly rum drinks until closing time, when each take their respective cars to try to drive home. All have reached a blood alcohol level of 0.22%, which is techincally referred to as “blitzed.”

Meg drives home on the relatively vacant street toward her house. About a mile down, she sees a car stopped at a stop sign too late, and veers hard right to avoid it; she has no idea where she’s heading before she slams the wheel right. She ends up (appropriately) with her car through a the store window of Ubiquitous Liquors. The police come and arrest her.

Beth and Amy both drive separately to their respective homes on their respectively relatively vacant streets. Each sees a car stopped at a stop sign too late; each veers hard right onto the sidewalk, and each strikes and kills a 25-year-old woman before stopping just short of an entry to a Ubiquitious Liquors.

Beth’s victim is a married homeless advocate with two children, whose family wants nothing bad to happen to Beth. “One life has been destroyed, and we are confident that Beth can live an upright, upstanding life and has learned her lesson. Further harm to society is unnecessary, and we do not want her to serve any time. We believe 120 hours of community service would be the right thing.”

Amy’s victim is a single insurance adjuster. Amy’s victim’s parents want Amy prosecuted for murder (a highly unrealistic outcome.) Amy’s victim’s family want Amy incarcerated for as long as possible; they want her in for as long as their daughter is dead. “My daughter deserves to be alive. This woman had no mercy when she got in the car, and she deserves nothing but eons of prison.”


1. Assume that the fact that a person was or wasn’t there in these scenarios is entirely luck. Should the friends be treated differently due to the different result? Why, or why not?

2. Should Amy and Beth be treated identically? Why, or why not?

If you’d like to discuss specific sentences, each faces a hefty fine. Meg’s exposure is two days to 120 days actual time, though she will likely be eligible for an alternate work program or other non-jail jail. Beth and Amy face up to five years actual time in prison. As with the others, feel free to ignore the actual California law to discuss whatever sentence you think is just.

Thanks for participating everyone! If there are any other criminal law subjects you’d like hit, let me know in the comments.


The Zodiac Killings – 40 Years Later

Filed under: Uncategorized — Justin Levine @ 1:37 am

[by Justin Levine]

This weekend marks the 40th anniversary of the start of the Zodiac killings – one of the most confounding, unsolved serial killer cases in the annals of American crime.

The San Francisco Chronicle has a great page dedicated to the case, and all of their original news coverage of it through the years.

Fascinating stuff – check it out.   Also check out the movie, which I think remains a masterpiece, even though it largely concentrates on a suspect who may not have been guilty of the murders in actuality.

What Crimes These Were

Filed under: Uncategorized — JRM @ 12:12 am

In my post a couple of days ago, I asked about two situations and asked whether they should be crimes.

The first was a situation where a stoned lookout got his burglarizing buddy killed by not paying attention.

The second was when a rapist ineffectively attempted a rape and got shot for his troubles, despite an easy avenue of escape by the victim.

I got a lot of great, thoughtful comments.

In each case, the law differs in different jurisdictions. What the law should be is contested.

I’ll talk about California and other U.S. law, then talk about my own feelings. Let’s start with the first one:

What the law is: California’s law on this is a little messy. Felony-murder has been partially codified in Penal Code section 189. First degree felony murder is statutory; second degree felony murder is a judicial creation. (I don’t make the laws. I just enforce ’em.)

The basic rule of felony murder is that if you’re committing a crime, and something you or your accomplice does causes a death during that crime, you’re on the hook for murder. When you’re the getaway driver in the bank robbery, when the guard ends up dead, you’re on the hook.

California does not distinguish between whether the decedent is an innocent victim or an accomplice, but does distinguish based on how the death was caused. I believe that this would not be murder in California, as the victim was the shooter. (However, in an arson case where one of the arsonists lit himself on fire and burned death, his fellow arsonists went down for felony murder.)

State laws are widely different on this issue. In some states, dead accomplices are free all the time. In others (like Illinois, according to commenter nk) you’re good for deaths when the victim is the shooter and the accomplice is the decedent.

Side note: Commenter and law student aphrael left some comments that sent me down a path which (I hope) caused this analysis to be better than it otherwise would have. I am also away from my legal research tools, so if someone thinks I am wrong, let me know. I despise being wrong, but I especially hate continuing to be wrong.

My view: I think this is a very difficult area. The felony murder rule has been widely criticized generally, but I think that criticism is mostly unjustified. If you hang around with guys who like guns, you’re unlucky to go down for murder – but the guy who choked to death on his own blood was one hell of a lot unluckier.

I think that accomplice deaths of this sort should be manslaughter. If you help make dead people, you ought to be responsible, but accomplice lives should not receive the same protection as victim’s lives. I believe that my proposed compromise rule is not the law anywhere.

Case two is of the very sad potential rapist.

I tried to make the facts as clean as possible that the victim, Marie, had a full retreat available and was faced with lethal force.

What the law is: California imposes no duty to retreat, so if you’re in lethal danger, you can use lethal force, even if you can back off safely. Like almost all states, once a prima facie case of self-defense is made, the prosecution must prove it wasn’t self-defense beyond a reasonable doubt. Last I checked, Ohio and South Carolina were the only states that required the defendant to prove it was self-defense by a preponderance of the evidence.

If there’s no duty to retreat, Marie’s off the hook. If there is a duty to retreat, she’s guilty of a crime.

My view: I’m very comfortable with my conclusion that there should be no duty to retreat. Creating a duty to retreat places prosecutors in terrible positions: Do you really prosecute Marie? Really?

Once someone attacks you without provocation with lethal force, they’re on their own dime. If you require people to make showings that they could not retreat, that strikes me as an unnecessary further challenge to the victim. I don’t think we want to be in a position to second-guess a straight-up victim in this kind of situation.

This also serves as a mild further deterrent to the bad guys. That’s a good thing.

Tremendous comments once again; I may have a third (and probably last for a while) in this series on what criminal law should be, if I get it done before packing the stuff for the trip to the ‘rents.



Comments on Comments – Take 2

Filed under: Blogging Matters — Justin Levine @ 3:16 pm

[by Justin Levine]

I previously posted my arguments for not allowing comments here, which generated a response here.

A few more points worth noting:

While comments can be read by many people, their substance is only directed towards one person (unlike blog posts). Since it takes just as long to think of your argument and type it out in the comments section than it does in a blog post, it remains a very ineffective form of communication (hence my argument that phone conversations are better for one-on-one discussions. Less time, more civility, same substance.).

“Amphipolis” is right when he/she states:  “The constant pattern of make a statement, defend against the straw man, defend against the next straw man, and again, and again, until the “debate” ends with ad hominems is very frustrating.” Some people treat blogs as a full time hobby, so they don’t mind taking the time in their lives to go through the process. That’s not the case with me. I don’t enjoy blogging in and of itself, I only enjoy stimulating discussions. The time ratio of responding to straw men arguments and simple opinions without further facts or analysis versus actual stimulating discussins doesn’t make comments worth it to me.

I am confident when I say that by forcing Amphipolis to respond in an actual separate blog post, he/she ended up writing a more thorough and well thought out response than would have taken place if he/she had simply been allowed to place a comment underneath it. So I feel that this only goes to prove my point.

If I could enforce my own policies regarding banning commenters or force commenters to register for this site and have access to the information, then I would certainly reconsider. But since I am only a guest blogger here, that is obviously not the case.

I am not at all convinced by the response that “Anonymity can encourage abuse, but it can also lead to more openness.”  As I’ve stated, anonymity can certainly be valid – but only when there are substantive reasons for it (i.e., legitimately fearing workplace retaliations or consequences for your comments, as was the case with Patterico and Jack Dunphy). Trust me on this, putting your real name to every one of your arguments makes you have better discussions with people. It also makes you more honest. I feel that there are an awful lot of morons who comment on this site, which in turn attracts other trolls and morons (thus proving the Broken Windows theory of blogging correct). Using my real name convinces me that I would have the guts to say it to their faces if I ever met them in person and discovered their true identities. I suspect that comment sections wouldn’t be so problematic if everyone were forced to reveal their identities.

Still don’t believe me?  Then I challenge every poster on this site to take this test:  Post your real name and the city you live in. Then try blogging for two or three weeks and see if you notice a difference. Afterwards, you can go back to your pseudonyms if you still want to (or different pseudonyms if you feel that your ‘cover’ would then be blown). If you use a pseudonym for legitimate reasons, try to explain what those reasons are.

Obviously a name doesn’t change the substance of any given argument, but it still gives you a moral legitimacy that has great value (even if it is somewhat intangible).  Consider some the leading figures of the blogosphere (Glenn Reynolds, Andrew Sullivan, the collective posters at Volokh who all use their real names) – would they get the continued and sustained attention that they do if they remained anonymous with names like “QST598’s Whipshaw”? I doubt it. They have brand names that command attention because people know who they are and know that they have nothing to hide in their arguments. It’s hard to argue that they aren’t “open” with their thoughts or arguments (even when you consider the fact that neither Reynolds nor Sullivan allow direct commenting either).

It should also be noted that Hugh Hewitt has now decided to stop allowing open comments on his blog.  He still allows feedback through Twitter and via e-mail, and claims that he will allow direct comments in the future once he has stricter registration requirements to allow him easier moderating abilities. I think this is good. By forcing people to go through Twitter or e-mail, it will confine feedback to those with substantive responses. I want feedback too — but only substantive feedback. Forcing responses in other actual blog posts helps with this goal. It seems that in shutting off his comments, he also managed to delete the comments from all his previous posts that he wrote before he made this decision. This seems to be a pity. Even if I think comments aren’t worth it in the end, I don’t think that previous comments should necessarily be erased.

What’s also interesting however, is that the website reprints all posts from those associated with it (including Hewitt), and allows comments on it. People are obviously upset with Hugh Hewitt just as they have been upset with me.

I’m sure that at least part of the reason for Hugh’s decision is that he got tried of people telling him that he is a Republican sycophant who often puts fidelity to the party over substantive ideas, so I don’t blame him in shutting off comments (even though these views about Hewitt are true, in my opinion). It won’t shield him from such criticism, but it will make sure that those who say it really want to take the time to say it, instead wasting everyone’s time with off-the-cuff remarks. If I get upset enough with Hewitt to want to tell him that he is being a partisan ass who looks unfairly down on legal commentators who don’t happen to have a law degree, it is far better for me to do it in a blog post than in a comment on his site.

This is an important topic, so I may have even more to say on this in the future. But for now, I still encourage feedback via other posts or methods that help to encourage substantive responses.

So says I, Justin Levine.


Oh that poor, poor woman…

Filed under: Uncategorized — Scott Jacobs @ 10:08 pm

Via the lovely DRJ, I have found the feel-good story of the year

By “feel good”, of course, I mean “deliciously ironic”.

An Ohio agency director resigned Wednesday in the wake of a finding that she improperly used state computers to access personal information on the man who became known as “Joe the Plumber” during the presidential campaign.

My only problem is that the <insert rude word for a female of your choice> wasn’t freaking fired.  Seriously, why the hell wasn’t she?

Department of Job and Family Services Director Helen Jones-Kelley said in a statement accompanying her resignation that she won’t allow her reputation to be disparaged and that she is concerned for her family’s safety.

So, wait…  It’s ok to dig hard and heavy into the personal life of a random, non-public servant – the definition of “private citizen” – and to release piles and piles of personal info, but god forbid her reputation be disparaged.  That just isn’t acceptable.

And I would love to know the exact reason she feels worried for her family’s safety.  If it’s because the news folks stop by (are they camping there?), then lady needs to cowboy the fuck up.  She chose to do something of – at best – questionable ethical and legal value, while Joe made the grave mistake of asking a farking question when some guy walked up and said “hi” with a bunch of news people in tow.

Further proof I would utterly fail at politics.  People like that would clear the sidewalk before landing, as I booted them out of office.

(H/T Flopping Aces by way of DRJ)

Obama’s Science Advisor Choice

Filed under: Uncategorized — Amphipolis @ 12:49 pm

Yuval Levin at NRO’s The Corner has a post on Obama’s choice for Science Advisor, Harvard’s John P. Holdren. On the one hand, Levin seems to unfairly characterize Holdren’s statement on overpopulation from a 2006 speech –

My favorite part of that speech is his call for ending population growth

He didn’t call for the end of population growth. He merely listed it as a driving force behind shortfalls in the pursuit of sustainable well-being. A footnote in the Science reprint of the speech refers to Paul Ehrlich’s discredited The Population Bomb, but it did not endorse the book, it only sites this one key insight – that population growth interferes with sustainability.

But, on the other hand, what of this key insight? For one thing, the population explosion myth was based on fertility rates from the 1960s. This was before the startling decline in the fertility of much of the world (Russia, Japan, Italy, and Spain are already seeing net decreases), China’s one-child policy, and AIDS. World population is beginning to level off, with peaks expected in another generation or two – albeit at 9 billion or so. Holdren does not seem to be appraised of this.

What of the wider assumption? Will a lack of population growth really help sustain human well-being? He has defined the pillars of human well-being to be:

Economic conditions and processes, such as production, employment, income, wealth, markets, trade, and the technologies that facilitate all of these;
Sociopolitical conditions and processes, such as national and personal security, liberty, justice, the rule of law, education, health care, the pursuit of science and the arts, and other aspects of civil society and culture; and
Environmental conditions and processes, including our planet’s air, water, soils, mineral resources, biota, and climate, and all of the natural and anthropogenic processes that affect them.

Historically the well-being of a society was proven by population growth. While I would of course agree that exponential population growth as erroneously predicted by the book Holdren cites could be disasterous, so could population death spirals such as now being experienced in Russia. None of the above pillars are sustainable without the social and economic necessity of population growth.

I hope that outdated overpopulation hysteria doesn’t bring about more catastrophic population drops, and I hope that the new administration’s science advisor learns about the devastating impact underpopulation can have on human well-being.


What Sort of Crime is This?

Filed under: Uncategorized — JRM @ 9:18 pm

Let’s do another exercise:

Here are the rules: You don’t have to worry about the actual law. You get to decide.

You do get to worry about how this ruling affects all other rulings.

Scenario One: Redline.

Joco likes marijuana, and watches TV. TV is funny. Joco is 22 and does not work. Joco’s stupid mom stopped giving him money, but his friend Larry has a plan: Joco will drive Larry over to Collector Dave’s house. Larry will bag up all the stuff while Joco is lookout, then Larry will call Joco so they can carry the large amount of antique guns, baseball cards, stamps, and gold coins believed to be in Collector Dave’s house. They’ll run into the car, drive away, and Joco will get 30% of the proceeds, which should be several thousand dollars.

So, Joco drives over Larry. It’s very stressful to be lookout, so Joco smokes a few relaxing joints and dreams of wealth. Sadly, this dream is shattered by many large, angry, yelling officers telling him to get out of the car. Joco does.

It turns out that Joco hasn’t done well as lookout. Collector Dave got home walked through his garage into his house, walked through the hallway and saw Larry bagging his stuff. Larry told him to “stay the fuck there or get hurt, old man.” Dave, a friendly ad salesman and former front-line Vietnam veteran grabbed a gun from the closet and shot Larry four times. Larry is dead.

1. Assume Joco is guilty of residential burglary, and will be punished for that.

2. Should Joco be punished for Larry’s death? To what extent?

Scenario Two: Self-defense?

Fat Tony, 32, likes attractive athletic women like Marie, 36, who runs by his apartment every day. She wears her Ipod and literally won’t give him the time of day. She also has a cell phone holster and some other pieces of electronic equipment, but no time for him. Once, she brushed by him when he tried to talk to her.

Fat Tony couldn’t keep up with her for fifty yards to maintain a conversation anyway.

So, Fat Tony figures out a different romantic move: Knifepoint rape.

Tony knows her route and figures to drag her into an alley. He waits near the alley, steps in front of her, waves his knife, and says, “You’re coming with me, bitch.”

This is not a well-thought out plan; Marie could easily run either down the alley or the other way. Two hundred yards down is a restaurant. Fat Tony might be able to chuck the knife at her, but his chance of really hurting her in a retreat is negligible, and his chance of catching her is nil.

However, Marie’s holster actually contains a two-shot Derringer. She takes one step back and shoots him. As she explains to the cops, she wanted to stop him from advancing, and his girth vs. the relatively underpowered Derringer might mean an ineffective shot.

Her shot was effective. It takes off Tony’s left testicle. Marie said she was afraid of being raped or knifed if she didn’t retreat, that she knew she had a safe route of escape, but that she wasn’t taking anything off anyone and she was perfectly pleased with the result. And now was time to complete her run.

Question: Should Marie be punished for shooting Tony? Why or why not?

What say you?

What it’s Worth

Filed under: Uncategorized — JRM @ 8:51 pm

Yesterday morning I wrote a post asking what should happen to two criminals; one who never gave up on doping and stealing but wasn’t violent, and one who was a 19-year-old driver on a series of street robberies.

The conditions were that you could sentence each to anything you want. I got a lot of great answers; the response was beyond my hope. The explanations below are kind of long, but worthy. There’s a synopsis at the end.

First, the legal analysis of the first case..

Steven the recidivist, who stole some cold medicine probably for some other criminal’s meth-making purposes (called smurfing, in the parlance) had six strike priors, the residential burglaries. This makes any new felony a 25-life sentence, plus his prison priors for 30-life or so. Such a person gets two days for every four served in local custody as good and work time, but no good and work time once sent to prison.

However, a judge or the prosecutor can strike strikes to get to lower sentences. The early plea and the acceptance of responsibility are a factor, but the bigger factors are the nature of this crime (minor) the nature of the defendant’s priors (for strikes, non-violent) the length of time free of crime (none) and the overall view of the defendant’s prior record (a non-stop one-man crime spree.)

Jurisdictions in California range on what they do with new non-violent felonies. I think there’s a lot of reason for different counties to behave differently, but I view an automatic rejection of Three Strikes for new non-violent felonies as an abdication of duties. My jurisdiction tends to grant relief for non-violent new crimes unless the old crimes are really terrible or numerous. I sent a guy away for life for his fourth DUI in seven years because he had 15 strike priors, including rape and kidnapping.

If all but one strike are stricken, then the defendant would get 20% credits in prison and therefore serve about 83% of his sentence (though he’d get extra credits for his pre-prison time.)

My view: I note here that I do not speak for my office. I haven’t identified myself, and I’m sure there’s no way anyone could figure out who I am, unless they owned a computer, but my views are my own.

We can surmise that this guy will keep committing crimes as long as he can, but he didn’t burglarize a house this time. I’d not give him a life sentence, instead choosing a nine-year sentence, of which he’d serve a little under eight. I think the contrary view of sending him off forever is entirely reasonable. I do not think a program is reasonable, because he’s old enough to assume learning is not an option.

It’s warehousing. I have some hope that at 60, his crime rate will continue to slow. I am not too worried about making corpses.

The legal analysis of the youthful four-time robber Marcus is this:

Robbery carries a 2-3-5 triad (those are the year options.) Successive robberies without a gun would be one year consecutive, maximum. The actual guy armed with the gun gets a 10-year enhancement. Our man gets a one-year enhancement for vicarious arming on the first arming, and four months per robbery on successive robberies.

The actual robberies, then, are three, four, or six years for the first robbery, and either concurrent time or one year, four months for the successive robberies. He would get 15% credits on all time (local and prison) and would therefore serve about 87% of his time, which is referred to as “85%” by everyone in the criminal justice system, because the lawyers who can do sixth-grade math all became patent attorneys.

I could see a court giving anywhere between four years and seven years on these facts, of which the defendant would serve most of it. The court would be hard-pressed to give less under California law.

My view: California’s 10-year enhancement for personally armed robbers has done something which ought to be unsurprising: Robbers often use fake guns. There’s a particular manufacturer whose fake guns get their muzzles painted black (they start orange or green) and those suckers look real. But no one gets killed by pellet guns.

Our hero in this case went along with his armed compatriots. That was not just stupid; he could have been a murder defendant if his friend’s gun was less persuasive than intended.

So there are two issues: What’s the balance in having Marcus having a productive life vs. protecting society from Marcus? The second primary issue is, how do we deter the next idiot from driving around armed robbers?

Marcus has to go to the joint. If he comes to me, willing to flip on his co-D’s (even if I have them cold) and willing to take an early deal, I’d be looking at four or five years, depending on how much credible documentary evidence could be had on his non-felon good activities.

Short version: The first guy could get life in California, and might. It does not offend me that this is so, but I would be comfortable with a reasonably long non-life sentence.

Armed robbery participants go to prison, period. They get a break if they haven’t done it a lot. I probably most agree with commenter Juan , FWIW.

The fact that I’m in the business doesn’t mean I’m right, though. Some other answer might be better for society – but I’m trying to get to the right answers, within the legislative dictates.

Bonus: I’m really, truly gratified by the quality and quantity of the responses. I’ve got at least one more post in this field, and it’s on whether certain actions should be crimes. Might be up soon. Or not.


Reqiescat in Pace, Majel…

Filed under: Uncategorized — Scott Jacobs @ 1:19 pm

The First Lady of Star Trek, Majel Barrett Roddenberry, has died of leukemia.

She was always one of my favorites, and frankly…

I always though she was kinda hot.

Why do we sell bonds only after a project is near completion?

Filed under: California Politics — aphrael @ 12:15 pm

As a result of California’s deteriorating budget situation, the Pooled Money Investment Board has apparently voted to stop funding infrastructure projects; the projects in question are ones which are supposed to be funded by the sale of voter-approved infrastructure bonds.

Apparently, while a naive citizen like myself would assume that the projects are actually paid for from money raised by the bonds, this is not the case. The state’s General Fund loans out money to pay for the projects, and then once the projects are underway and nearing completion, the state sells the bonds, and the bond money is used to repay the General Fund. Since the General Fund is about to run out of money, the PMIB said, it can’t loan money to the projects at this time.

To me, this seems like a bizarre way to do things. But, according to one of the guests on This morning’s Forum, it’s required by federal law.

I’m having a hard time believing this is true. Does anyone know what federal law it is that requires states to only sell bonds after the projects the bonds are paying for are almost complete? And does the policy decision embedded in such a law make sense to anyone? (Because, whether it’s required by federal law or not, the state of California is doing it; and while i hesitate to think that they are doing something with no rationale, it really seems like a boneheaded policy to me.)


Engaged to future victim #5

Filed under: Uncategorized — Scott Jacobs @ 12:09 pm

Drew Peterson, the Chicago-area man suspected in the disappearance of his 4th wife (and frankly, I would like to talk to the first three) is now apparently engaged to a 23-year old, or so says his publicist…

His publicist…  I don’t care if you have never done anything bad in your life, but the moment you start speaking though a publicist, you need to go to jail.

Anyways, this 23-year old idiot apparently can’t read, nor owns a TV.  This is what we call “Forced Darwinian Action”, the culling of the herd.

In a few years, we’ll be wondering where SHE is, too.

This was my favorite part, though…

Peterson said today that media attention tends to sabotage his relationships.

Really?  I think that killing them would put a damper on a romance…

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