Patterico's Pontifications


Aldrete-Davila Pleads Guilty to Drug Smuggling

Filed under: Crime,Immigration,Law — DRJ @ 9:23 pm

[Guest post by DRJ]

My first post here (or anywhere) concerned the Ramos-Compean trial in El Paso. The prosecution’s chief witness was Osvaldo Aldrete-Davila who admitted he had smuggled drugs into the US in February 2005. It was during that incident that Aldrete-Davila was shot by Border Patrol agent Ignacio Ramos.

As detailed in this post, Aldrete-Davila was arrested in November 2007 for drug smuggling offenses that allegedly occurred in September and October 2005. Aldrete-Davila has now plead guilty to those charges and will be sentenced in July.

Prosecutor and US Attorney Johnny Sutton issued the following press release (emphasis supplied):

“United States Attorney Johnny Sutton announced today that in Federal court in El Paso, 27-year-old Osvaldo Aldrete-Davila pleaded guilty to federal drug smuggling charges. Aldrete gained notoriety for being the unarmed drug smuggler who was shot in the buttocks by former Border Patrol Agents Jose Compean and Ignacio Ramos as he fled from them. The Agents then covered up the shooting and filed a false report of the encounter.

“I have repeatedly said that if we obtained sufficient competent and admissible evidence against Aldrete, we would prosecute him. I fulfilled that promise when the DEA arrested Aldrete on an indictment charging him with federal drug smuggling. Today, Aldrete pleaded guilty to that indictment. Just as Aldrete’s illegal conduct did not excuse the crimes committed by Compean and Ramos, likewise, their crimes did not excuse his. Compean and Ramos had their day in court and an El Paso jury convicted them after a two and half week long jury trial. Now, Aldrete has had his day in court and will soon be paying for his crimes,” stated United States Attorney Johnny Sutton.

Appearing before United States District Judge Kathleen Cardone this afternoon, the defendant pleaded guilty to all of the charges contained in the indictment against him, namely, two counts of possession with the intent to distribute a controlled substance, one count of conspiracy to import a controlled substance and one count of conspiracy to possess a controlled substance with intent to distribute.

By pleading guilty, Aldrete-Davila admitted that beginning on or about June 1, 2005, through November 30, 2005, he conspired with others to import and to possess with the intent to distribute more than 100 kilograms of marijuana. Additionally, on September 24, 2005, and then again on October 22 and 23, 2005, Aldrete-Davila admitted to possessing with the intent to distribute more than 100 kilograms of marijuana. Aldrete-Davila remains in federal custody pending sentencing. Sentencing is scheduled for July 16, 2008.”

Judge Kathleen Cardone is the same Judge that presided over the Ramos-Compean trial. That would have been an interesting — one might even say a surreal — guilty plea to sit in on.

Of course, it’s not correct to imply that Aldrete-Davila was punished for his smuggling in February 2005 since this guilty plea is for subsequent offenses.


FLDS Child Custody Testimony: Day 1

Filed under: Civil Liberties,Current Events,Law — DRJ @ 7:06 pm

[Guest post by DRJ]

This post deals with the first day of testimony in the FLDS temporary child custody hearing. It is based on the live-blog posted by the following reporters with the San Angelo Standard Times:

“Standard-Times reporter Matt Phinney updates the FLDS child custody proceedings in the 51st District Court from the remote location at the City Auditorium, while reporter Sandy Rojas reports from outside the courthouse, and reporter Trish Choate is reporting at large. Jayna Boyle is reporting from Schleicher County.”

The reporters have done an excellent job but there are limitations to what they can do. For instance, this is obviously not based on an official transcript, it has interruptions when a reporter has to leave the area (so parts of the hearing may have been missed), and I don’t believe the reporters are attorneys so his/her summary may not grasp all the legal issues.

Absent an official transcript, the best source is to click the link and read the entire summary for yourself. However, because the website is undoubtedly getting a lot of hits and has been difficult to load and/or was down some of the time, I’ll include the highlights after the fold.

I won’t make any comments below the fold in this post so everything you see past “More” will be from the San Angelo Standard Times’ blog.

Also note that the children have apparently been divided into three or more color-coded groups and the attorneys are also grouped based on those groups. I’m not sure but I think the three groups are young children, teens, and pregnant minors.


Art and Life at Yale (Updated)

Filed under: Abortion,Education — DRJ @ 12:52 pm

[Guest post by DRJ]

Yale Art major Aliza Shvarts will do anything for her art:

“Art major Aliza Shvarts ’08 wants to make a statement.

Beginning next Tuesday, Shvarts will be displaying her senior art project, a documentation of a nine-month process during which she artificially inseminated herself “as often as possible” while periodically taking abortifacient drugs to induce miscarriages. Her exhibition will feature video recordings of these forced miscarriages as well as preserved collections of the blood from the process.

The goal in creating the art exhibition, Shvarts said, was to spark conversation and debate on the relationship between art and the human body. But her project has already provoked more than just debate, inciting, for instance, outcry at a forum for fellow senior art majors held last week. And when told about Shvarts’ project, students on both ends of the abortion debate have expressed shock . saying the project does everything from violate moral code to trivialize abortion.

But Shvarts insists her concept was not designed for “shock value.”

“I hope it inspires some sort of discourse,” Shvarts said. “Sure, some people will be upset with the message and will not agree with it, but it’s not the intention of the piece to scandalize anyone.”

The “fabricators,” or donors, of the sperm were not paid for their services, but Shvarts required them to periodically take tests for sexually transmitted diseases. She said she was not concerned about any medical effects the forced miscarriages may have had on her body. The abortifacient drugs she took were legal and herbal, she said, and she did not feel the need to consult a doctor about her repeated miscarriages.

Shvarts declined to specify the number of sperm donors she used, as well as the number of times she inseminated herself.”

Reaction to her project has been mixed.

UPDATE – The Yale Office of Public Affairs has posted this statement at its website:

“Statement by Helaine S. Klasky — Yale University, Spokesperson
New Haven, Conn. — April 17, 2008

Ms. Shvarts is engaged in performance art. Her art project includes visual representations, a press release and other narrative materials. She stated to three senior Yale University officials today, including two deans, that she did not impregnate herself and that she did not induce any miscarriages. The entire project is an art piece, a creative fiction designed to draw attention to the ambiguity surrounding form and function of a woman’s body.

She is an artist and has the right to express herself through performance art.

Had these acts been real, they would have violated basic ethical standards and raised serious mental and physical health concerns.”

I may be wrong, but I picture Aliza as the poster child for precocious, creative, free-spirited children of parents who never said “No.”

H/T Anonymous Yale Student.


FLDS Child Custody Hearings Begin …

Filed under: Civil Liberties,Current Events,Law — DRJ @ 12:00 pm

[Guest post by DRJ]

… and they’re off to a rocky start due to a “flurry of objections” from attorneys for the children, parents and the FLDS sect. Most parties want separate hearings for each child, something I think they should have.

The San Angelo Standard Times has reporters live-blogging the event. It’s difficult for the reporters to get a handle on the legal issues but it’s such an unusual proceeding that it’s hard for everyone. However, the reporters are doing a good job reporting on the burgeoning service industry of food carts (chili pie!) and other vendors in the area, as well as conveying the controlled chaos and carnival atmosphere that seems to have taken hold.

I’m reluctant to tell people how to run their business, especially judges, but I’m surprised this judge hasn’t requested assistance from other district judges. After all, they’ve brought in scores of volunteer attorneys, clerks, law enforcement, CPS agents, consultants, and more. They need judges to provide individual hearings. It seems so obvious that I must be missing something.

In any event, I have gainful employment matters to work on this afternoon so I’ll leave you with this open thread.

In addition to the San Angelo Standard Times’ link, other good resources to check for updates are the Deseret News, the Salt Lake Tribune, and the Houston Chronicle. (The Chronicle’s reporters usually do a good job understanding legal issues.) Not to mention the big cable outlets that are apparently out in force.

NOTE: There’s an excellent article in the Houston Chronicle on Schleicher County Sheriff David Doran’s role in this case.


What Now For California’s Death Penalty?

Filed under: Constitutional Law,Court Decisions,General,Judiciary — Justin Levine @ 4:01 am

[posted by Justin Levine]

In the coverage of the Supreme Court’s decision of Baze v. Rees, virtually all California news outlets have managed to ignore the importance of Justice Alito’s concurring opinion, and what it specifically means for the future of California’s death penalty.

But let’s recap a few things first.

Michael Morales was scheduled to be executed in February 2006 for raping, bludgeoning and stabbing 17-year-old Terri Winchell near Lodi in January 1981.

Just hours before his scheduled execution, U.S. District Judge Jeremy Fogel ruled that in order for the execution to proceed, the California would need to find a licensed medical professional to administer the lethal injection drugs properly. Ethical restrictions prevented medical professionals from participating in state executions. The end result was that the execution of Morales had to be postponed indefinitely.

Judge Fogel later ruled [PDF] in December 2006 that California’s lethal injection protocol created an ‘unnecessary risk’ of being ‘cruel and unusual’ and thus violated the 8th Amendment to the Constitution. [UPDATE BY PATTERICO: Actually, Fogel merely threatened to do this, in a highly flawed “Memorandum of Intended Decision.”]

In response to Fogel’s ruling, California agreed to reform its procedures for administering lethal injections. It devised a new plan that included upgrades in staff selection and training, and a new death chamber. However, after California submitted its new plan with the hopes of overcoming the objections of Federal Judge Fogel, California Superior Court Judge Lynn O’Malley Taylor ruled that the state’s new procedures for lethal injections were invalid because the public never got the chance to comment on them. That decision is now before the California Court of Appeals.

So with that important background in mind, lets now turn to Justice Alito’s concurring opinion in Baze.

Alito wrote is opinion in response to Justice Thomas’s compelling argument that the plurality opinion had set an unworkable standard that would only encourage more litigation over death penalty cases, rather than providing the clear guidance that is needed.

Alito tries to argue that if the main plurality decision by Chief Justice Roberts is “properly understood,” there should be no concern about “never-ending litigation.”

Alito explains that the legal standard articulated by the decision holds that a method of execution can be considered to be “cruel and unusual” if a state “’without a legitimate penological justification,’ rejects an alternative method that is ‘feasible’ and ‘readily’ available and that would ‘significantly reduce a substantial risk of severe pain.'”

Put simply, according to Alito’s reasoning, if it is not practically “feasible” for a state to adopt certain procedures in its execution methods, then it need not worry about having to adopt it for purposes of passing Constitutional muster.

Alito then gives a critical example of what he would consider to be an unfeasible request for a state to fulfill in its proposed method of execution: the participation of licensed medical staff. Alito admits that if “medical professionals who participate in [surgeries] also participated in the anesthetization of prisoners facing execution by lethal injection, the risk of pain would be minimized.” However, Alito also points out that “the ethics rules of medical professionals—for reasons that I certainly do not question here—prohibit their participation in executions.”

Of all the prisoners on death row in the 30+ states that use similar methods of lethal injection to execute prisoners, Alito points to just one case in particular to illustrate his point:

Recent litigation in California has demonstrated the effect of such ethics rules. Michael Morales, who was convicted and sentenced to death for a 1981 murder, filed a federal civil rights action challenging California’s lethal injection protocol, which, like Kentucky’s, calls for the sequential administration of three drugs: sodium pentothal, pancuronium bromide, and potassium chloride. The District Court enjoined the State from proceeding with the execution unless it either (1) used only sodium pentothal or another barbiturate or (2) ensured that an anesthesiologist was present to ensure that Morales remained unconscious throughout the process. Morales v. Hickman, 415 F. Supp. 2d 1037, 1047 (ND Cal. 2006). The Ninth Circuit affirmed the District Court’s order, Morales v. Hickman, 438 F. 3d 926, 931 (2006), and the State arranged for two anesthesiologists to be present for the execution. However, they subsequently concluded that “they could not proceed for reasons of medical ethics,” Morales v. Tilton, 465 F. Supp. 2d 972, 976 (ND Cal. 2006), and neither Morales nor any other prisoner in California has since been executed, see Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49 (2007).

Alito concludes that if professional ethics prevent medical personnel from participating in executions, then it cannot be “feasible” for the states to use them. Thus, a state cannot be required to have medical personnel at executions as part of a Constitutional requirement.

In other words: Even though California’s Morales case was not specifically before the Supreme Court, Alito’s concurring opinion subtly conveys the message that Judge Jeremy Fogel is clearly in error regarding his December 2006 [PDF] opinion.

Alito’s opinion is a direct shot across the bow of Fogel’s court, but none of the California papers managed to pick up on it.

So here is the ultimate irony: California ended up needlessly devising new death penalty procedures based on a ruling that is almost certainly in error. But now that it has done so, a state court has likely delayed executions even further because it declared that the (unnecessary) revisions on executions were not submitted for public comments. Can there be a better illustration of what a farce the courts have made of our death penalty system?

This only goes to prove that Thomas has the best argument, and that Chief Justice Robert’s plurality opinion will still likely end up encouraging more litigation resulting in a further delay of executions. All the same, it will be interesting to see if Alito’s concurrence will be cited in Judge Fogel’s next hearing on the death penalty in California.

[Justin Levine]

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