CrimProf Blog

Supreme Court Narrows Exclusionary Rule

The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court’s majority came to a conclusion that will most likely please those who complain about criminals going free on “technicalities.”

Mr. Herring had gone to the Coffee County, Ala., sheriff’s department on July 7, 2004, to retrieve something from his truck, which had been impounded. “Herring was no stranger to law enforcement,” as Chief Justice John G. Roberts Jr. observed dryly in his opinion for the court.

And he was no stranger to Mark Anderson, an investigator for the sheriff’s department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional? No, the Supreme Court ruled.

Read full article here. [Brooks Holland]

Incentive program gives prisoners second chance

Some defendants sentenced to imprisonment in the state corrections system now have an opportunity to be paroled early.

Offenders who are eligible for a Recidivism Risk Reduction Incentive program can be released prior to their minimum sentence provided they complete required treatment programs while incarcerated, said Armstrong County President Judge Kenneth Valasek.

A state law passed in November permits the early release for nonviolent offenders sentenced to the state system.

In passing the law, the state legislature is "trying to provide an incentive to state prisoners to successfully complete all the required treatment programs as quickly as possible while they're in prison," Valasek said.

Depending on the length of the minimum sentence, defendants in the incentive program will be eligible for parole at different times.

A defendant whose minimum sentence is three years or less can be paroled in three-fourths of that time, as long as the incentive program requirements have been met, Valasek said. For example, a defendant sentenced to a minimum of 24 months would be eligible for release after 18 months.

Defendants with a minimum sentence of more than three years can be paroled in five-sixths of that time, provided the incentive program requirements are met, Valasek said. For example, a defendant sentenced to a minimum of 48 months will be eligible after 40 months.

There are many eligibility requirements for the incentive program. Defendants being sentenced for the following offenses, among others, would not be eligible for the program: homicide, assault, kidnapping, sex crimes, arson, robbery, homicide by vehicle while driving under the influence, certain drug trafficking offenses and any other crime that results in personal injury. [Mark Godsey]

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Immigration Cases Soar, Represent Half of All Federal Prosecutions

Immigration prosecutions have soared during the Bush administration, representing more than half of all federal prosecutions, up from 18 percent in the first fiscal year of Bush's presidency, according to data from the Transactional Records Access Clearinghouse.

In the most recent available month's numbers, a total of 11,454 immigration prosecutions in September 2008 represents a 700 percent increase from the same month in 2001, the year Bush took office, according to TRAC, which compiles data from the government's own records.

The shift in government enforcement raises the share of immigration cases as a proportion of all federal filings from 18 percent in fiscal year 2001 to 31 percent in 2004, the last year of Bush's first term, to 51 percent by fiscal year 2008, which ended in October.

The numbers bolster concerns expressed by federal judges in border states that their dockets have been inundated with immigration cases. The five federal districts with the largest share of immigration prosecutions in 2008 were the Southern District of Texas in Houston, the District of Arizona in Phoenix, the District of New Mexico in Albuquerque, the Western District of Texas in San Antonio and the Southern District of California in San Diego.

Other regions with high immigration case numbers were the District of Oregon, the Eastern District of Washington and the Western District of Arkansas. By contrast, white-collar crime prosecutions were down by 15 percent from the last year of the Clinton Administration: 8,108 in fiscal year 2008 from 9,532 in fiscal year 2000.

The number of drug case filings has also dropped during the past eight years. The data show, after moderate increases in the early years of the Bush presidency, that drug prosecutions were down by 20 percent to 26,336 in fiscal year 2008 from 32,753 in fiscal year 2001, according to TRAC.

The leading immigration charges include illegal re-entry of a deported alien, harboring illegal aliens and fraud and misuse of visas and work permits. [Mark Godsey]

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A Double Victory for Criminal Defendants

The Supreme Court issued two opinions this morning, both of them striking down lower court opinions that had favored prosecutors. Over at the Sentencing Law and Policy blog, professor Doug Berman is already proclaiming that the decisions offer further proof that theCourt is the "most pro-defendant appellate court in the nation on sentencing issues."

In Chambers v. United States, with Justice Stephen Breyer writing for a unanimous Court, the justices agreed that a conviction on the charge of "failure to report" to prison is not the kind of prior "violent felony" conviction that triggers a 15-year mandatory prison sentence for someone found guilty of illegal possession of a firearm.

"Conceptually speaking, the crime amounts to a form of inaction, a far cry from the purposeful, violent and aggressive conduct" associated with violent crimes under the Armed Career Criminal Act, Breyer wrote. The Justice Department had argued that "failure to report" should be treated the same way a prison escape would be.

Justice Samuel Alito Jr., joined by Justice Clarence Thomas, wrote a concurrence urging Congress to reduce confusion about the law by amending it with addition of a list of specific crimes that trigger an enhanced sentence.

The other decision, Jimenez v. Quarterman, is a Texas case authored by Justice Thomas for a unanimous Court. Thomas ruled that because Texas allows defendants to file untimely appeals of state convictions, the clock for the one-year deadline for filing a federal habeas appeal under Antiterrorism and Effective Death Penalty Act should not start ticking until after that out-of-time appeal is completed. [Mark Godsey]

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Court again rebukes Portage County judge

An Ohio appeals court has upbraided a controversial Portage County judge for a second time in as many weeks " this time for finding a young public defender in contempt.

The 11th Ohio District Court of Appeals found Wednesday that Municipal Judge John Plough "abused his discretion" when he fined attorney Brian Jones for refusing to proceed with trial in 2007.

Jones was just four months out of law school and had been assigned the case only the day before. Jones said he had a duty to his client to be able to prepare. Plough ordered the young attorney held and later fined him.

"I'm glad I've been exonerated," Jones said Friday in a telephone interview.

.

Ian Friedman, president of the Ohio Association of Criminal Defense Lawyers and counsel for Jones in the contempt case, said, "This opinion reinforces the longstanding right to be afforded all individuals accused of a crime; the right to a fair trial and due process should be absolute and not be pushed aside for any reason like clearing a court's schedule."

Attorneys and legal associations from around the country rallied in support of Jones.

John Wesley Hall, an Arkansas lawyer who leads the National As-

sociation of Criminal Defense Lawyers, testified on Jones' behalf. "I don't know that I would have had the ability to have stood up like that, at that age," he said Friday.

Wednesday's appellate opinion, written by Judge Colleen Mary O'Toole, noted that "abuse of discretion" implies that a court's attitude "is unreasonable, arbitrary and unconscionable."

Jones had asked for a continuance so he could review the case before trial and interview witnesses. [Mark Godsey]

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Rejected juror figures in bid for new trial

In September 1997, an overweight black woman was excluded from a criminal trial jury in Binghamton because of a prosecutor’s claim that fat people tend to take sides with the defense.

Now, the black man who was convicted of gun and drug charges in that case may get a new trial.

Seth Dolphy, 32, a state prison inmate, claims the prosecutor used his opinion about the woman’s weight only as a pretext for keeping an African-American off the jury.

A federal appeals court that heard legal arguments on the case in Buffalo last fall has ordered a federal district judge to take a second look at the case of Dolphy, who was convicted in the case by a Broome County jury.

Dolphy, who is from Binghamton, claims he should receive a new trial because his constitutional right to a jury of his peers was violated. He was convicted by an all-white jury and sentenced to a prison term of at least 14 years.

The decision of the Second U. S. Circuit Court of Appeals to order a new look at the case was applauded by Dolphy’s attorney, Robert A. Culp of Garrison.

The claim that overweight people make unfair jurors makes no sense, Culp told The Buffalo News on Monday.

“I don’t claim to have made a study of this, but to me, you don’t look at somebody’s skin color, their weight or their appearance to determine how good a juror they will make,” Culp said. “I thought we were past that kind of thing in our society.”

The highly unusual case was argued in Buffalo’s federal court in October, with Buffalo’s chief federal judge, Richard J. Arcara, temporarily sitting on the appeals court.

In a 1986 case called Batson v. Kentucky, the U. S. Supreme Court ruled that a person cannot be kept off a jury because of race. The high court ruled that a lawyer must have a race-neutral reason for asking that someone be excluded from a jury.

According to court papers, the prosecutor in the Dolphy case — who was not identified by name — told a judge that he wanted a black woman kept off the jury because she was obese.

“I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, heavyset people tend to be very sympathetic toward any defendant,” the prosecutor said. [Mark Godsey]

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The BART shooting: Are violent protests the answer?

What is it people used to say about urban centers during the civil rights protests of the '60s? Tinderbox.

No question that Oakland is a full-on bonfire, soaked in gasoline and just waiting for a match or two. Chronicle columnist Chip Johnson and reporter Henry Lee have provided readers a long running and deep image of a city off its moorings, from hapless (or absent or corrupt) government leaders to rampant homicide.

So is it the fuming frustrations of Oakland that provided the tinder for riotous, violent protest Wednesday night, and the shooting of Oscar Grant in a BART station the flame?

.

This doesn't make it right, as several thousand SFGate commenters made clear in a fugue of response, a sizable piece of it pulled as abusive. The damage to downtown property didn't help anyone, didn't solve any mysteries, didn't make anyone's life better, authorities more accountable or Oakland more liveable. It's like holding yourself hostage.

I get that it's complicated. But neither does that make it right and saying so doesn't make me guilty, as one commenter accused other comments, of "racism, classism, and general kneejerk bigotry."

A number of the comments that did make it on SFGate had the tint of a racial lens. It wasn't explicit but implicit in some of the references to both the protestors and Mr. Grant as "thugs" with criminal histories and intent.

While the grainy video images of the fatal BART incident appeared to be a kind of Rodney-King, black/white showdown, the Oakland PD has come some distance from the Riders days; the Mayor, if you can find him, is African-American with a long history of activism and, in what would have been a shock to all citizens back in the 60s, a black man is about to assume the presidency of the United States.

So it's not clear whether race was actually another match to the pyre, rather than just an easy outlet and excuse for action and comment. [Mark Godsey]

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Speedy Trial Case Before Supreme Court This Week

After he was charged with hitting his girlfriend in the face, career criminal Michael Brillon sat in jail without bail for nearly three years, going through six public defenders before being tried for assault.

The delays paid off -- for Brillon, anyway: A Vermont court threw out his conviction and freed him from prison last spring, saying his Sixth Amendment right to a speedy trial had been violated.

Now, the U.S. Supreme Court is taking up the case, trying to decide whether delays caused by public defenders can deprive a criminal defendant of that right. In particular: Whether governments can be blamed for such delays because they're the ones who assign and pay the lawyers for indigent defendants.

Forty states and 15 organizations -- state governments, county governments, the U.S. Conference of Mayors, a victim's rights' group -- are backing the Vermont prosecutor's appeal of the ruling, worried that if it stands, criminal suspects will try to game the system and get the result Brillon did.

"You're greasing that slippery slope," said David Parkhurst, an attorney with the National Governors Association, which filed a friend-of-the-court brief in support of the prosecutor's appeal. "That's the big concern here."

Brillon, a 46-year-old construction worker whose criminal past includes convictions for sexual assault on a minor, felony obstruction of justice and cocaine possession, was charged with aggravated domestic assault over the 2001 incident with his girlfriend, who is the mother of his child.

Held without bail, his case inched along as lawyer after lawyer asked for postponements and eventually withdrew or were replaced at Brillon's request.

Read full article here. [Brooks Holland]

Obstruction of justice charge 'upped the ante' against Kent

The government raised the stakes in the criminal case against U.S. District Judge Sam Kent, now accusing a man who swore to protect the system with thwarting it instead, legal experts said Wednesday.

They said the obstruction of justice charge added with sexual abuse allegations against Kent this week boosts the government's overall case in several ways. That new charge may be the easiest to prove and carries a hefty 20-year sentence. It also takes the matter beyond the "he said/she said" standoff of the sexual charges.

"This has significantly upped the ante," said Arthur Hellman, a federal judicial disciplinary expert and professor at the University of Pittsburgh law school.

"Certainly the sexual charges are very serious. But obstruction of justice is a particularly serious charge when the accused is a federal judge," Hellman said. "If proved, his career — not just as a judge, but as a lawyer — would be over."

Kent, a jurist based in Galveston for most of his career, pleaded not guilty Wednesday to all six federal criminal charges against him. The judge, who still handles only certain civil cases out of a Houston office, has vociferously denied any wrongdoing.

He was indicted in August on three counts of abusive sexual contact or aggravated sexual abuse against a former case manager. [Mark Godsey]

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Colorado Judge Allows Twitter In Courtroom

The courtroom now includes Twitter.

What?  Twitter inside the courtroom?

Yes, it’s true.  A Colorado judge recently approved the use of Twitter, and blogs, inside the courtroom to cover an infant-abuse trial.

Wichita Eagle (Kansas) reporter, Ron Sylvester, pushed for the court to allow the use of Twitter for his courtroom reporting.

Sylvester argued courts are open to the public and the process of reporting with Twitter is similar to writing a story for a newspaper.  However, the major difference in the two mediums is the speed at which the information would be released (Twitter being more immediate).

This was not the first time Sylvester has reported via Twitter from inside the courtroom.  In fact, Sylvester’s Twitter page seems to indicate he frequently reports from inside the courtroom using Twitter.

Lawyers should learn more about these new social media technologies because they are finding ways inside the courtroom.  Judges are now, at least in Colorado, allowing reporters to use Twitter to report live. [Mark Godsey]

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Growing old behind bars

The number of older prisoners in Virginia has more than doubled in the past 10 years, creating new issues for the state's prison system.

CAPRON Winter sunshine slices through a narrow security window and falls on Aloysius Joseph Beyrer's white hair, slight shoulders and the linen covering his fractured hip.

Like the rest of the country, Virginia is coping with a growing number of aging inmates. Beyrer, 84, is the state's oldest and his home, the Deerfield Correctional Center, focuses on geriatric inmates.

In 1999, Virginia had 2,015 prisoners 50 or older. Today, there are almost 4,700, and by 2011, state officials expect there to be 5,057.

A drop in the number of paroles granted to inmates who remain eligible is a factor in Virginia's increasing number of older inmates. Truth-in-sentencing reforms that in 1995 led to stiffer, no-parole sentences for violent crimes are expected to contribute to Virginia's aging prison population in coming years.

At Deerfield, wheelchairs and walkers line aisles in the secured assisted-living dormitory, where it would be easy to confuse the frail residents with those in nursing homes. But it would be a mistake to do so.

Beyrer, a veteran of prisons in Virginia and elsewhere, thinks Deerfield, "is pretty good," though security comes first there, even for octogenarians like Beyrer, who is serving 100 years for sex crimes. The prison's goal is to provide older inmates care and some dignity, not freedom.

The warden, Keith W. Davis, who has a master's degree in social work, makes it clear he is not running a spa for the golden years. "This is not a perfect world. We do not have unlimited resources," he said.

Even with a blank check to meet all their medical and mental-health needs, Davis said no one wants to grow old or die in a prison. "That's a big challenge for the staff. . . . We do what we can do, but we can't cure oldness," he said.

"Offenders are like the rest of us. We get old, we get ill, we die," he said. Deerfield provides a continuing-care community, he said, "so they can reach what we believe is their fullest potential -- body, mind and soul."

. . .

Experts say substance abuse, little or no health care before imprisonment and the stress of living behind bars can leave a 50-year-old inmate physiologically 10 to 15 years older than his chronological age.

In general, older inmates require more supervision and medical and mental-health care, as well as special diets, mobility aids and special housing.

Deerfield, Virginia's only prison dedicated to geriatric inmates and inmates with special medical needs, accommodates 1,080 inmates, 90 of them in wheelchairs and 65 percent over the age of 50.

Other older inmates and older female inmates are in prisons such as the Fluvanna Correctional Center for Women and the Greensville and Powhatan correctional centers.

Critics point out that many older inmates are far less likely to commit new crimes and could be released at great savings. Prison officials, however, believe their care would largely be at public expense in or out of prison.

And though older people are less likely to commit crimes, some still do. Beyrer was 67 when he was convicted in Virginia Beach of statutory rape, aggravated sexual battery and forcible sodomy.

Deerfield's head nurse, Bonita Badgett, said 800 of the inmates there have at least one chronic medical condition such as diabetes, high blood pressure or asthma. The prison psychiatrist, Dr. Amit Shah, said the major problem he treats is depression. [Mark Godsey]

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Kidnappings in Mexico Send Shivers Across Border

Four hooded men smashed in the door to the adobe home of an 80-year-old farmer here in November, handcuffing his frail wrists and driving him to a makeshift jail. They released him after relatives and friends paid a $9,000 ransom, which included his life savings.

The kidnapping was a dismal story of cruelty and heartbreak, familiar all across Mexico, but with a new twist: the daughter of this victim lived in the United States and was able to wire money to help assemble his ransom, the farmer, who insisted that he not be identified by name, said in an interview.

A string of similar kidnappings, singling out people with children or spouses in the United States, so panicked this village in the state of Zacatecas that many people boarded up their homes and headed north, some legally and some not, seeking havens with relatives in California and other American states.

“The relatives of Mexicans in the United States have become a new profit center for Mexico’s crime industry,” said Rodolfo García Zamora, a professor at the Autonomous University of Zacatecas who studies migration trends. “Hundreds of families are emigrating out of fear of kidnap or extortion, and Mexicans in the U.S. are doing everything they can to avoid returning. Instead, they’re getting their relatives out.”

The reported rush into the United States by people from the state of Zacatecas is another sign that Mexico’s growing lawlessness is a volatile new factor affecting the flow of migrant workers across America’s border. The violence is adding a new layer of uncertainty to the always fraught issue of Mexican emigration, already in flux because of the economic downturn in the United States. [Mark Godsey]

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'Justified homicides' more than doubled

One hour after revelers welcomed the new year in 2008, a motorist at a Northwest Side intersection fired three shots into 24-year-old Tomas Garza, moments after authorities said Garza threatened the motorist with a baseball bat in an apparent road-rage incident.

The killing, the first of 137 recorded in San Antonio last year, was an act of self-defense, police later determined, and was classified by department officials as a justified homicide.

While the total number of killings in San Antonio barely budged in 2008 — up only slightly from the 134 recorded the prior year — detectives noted an upswing in cases in which the shooter was found to be within his rights, from instances of apparent self-defense to protecting one's home and family.

According to Police Department statistics, justified homicides in 2008 rose significantly, from seven in 2007 to 17 mirroring a nationwide trend. Of the 17, city and other area police officers were involved in seven.

“Nationally, it appears that justifiable homicides have increased,” criminologist James Alan Fox said. “The reasons could be many. We seem to be sending a message that it's acceptable to (use deadly force) even if there is a chance of fleeing.”

Fox said less-stringent gun laws — and a tendency to treat people like heroes if they use violent means to defend themselves — could have contributed to what he said is a more general acceptance of deadly force.

“There's always been a self-defense element in law,” he said, “but what we've been telling people more and more is don't flee, and if you are afraid you can defend yourself.” [Mark Godsey]

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Groups sue Bush over last-minute rule changes

The Brady Campaign to Prevent Gun Violence sued the Bush administration yesterday in hopes of stopping a new policy that would allow people to carry concealed, loaded guns in most national parks and wildlife refuges.

"The Bush administration's last-minute gift to the gun lobby, allowing concealed semiautomatic weapons in national parks, jeopardizes the safety of park visitors in violation of federal law," said Paul Helmke, the group's president. "We should not be making it easier for dangerous people to carry concealed firearms in our parks."

An Interior Department spokeswoman refused to comment on the lawsuit, saying the department does not discuss pending litigation.

It's not the only lawsuit over last-minute regulatory changes that the Bush administration wants to achieve.

Yesterday, California Attorney General Jerry Brown announced that his state is suing the Bush administration to block changes in regulations that are intended to reduce input from federal scientists.

"Unfortunately, the Bush administration has had an antipathy to using sound science," Brown said. "This is the latest assault as Bush goes out the door. It's intolerable."

The lawsuit was filed late Monday in U.S. District Court in San Francisco.

The Interior Department issued the revised rules this month. They allow federal agencies to issue permits for mining, logging and similar activities without a review from federal biologists if the agencies' research shows that the project will not affect plants and animals.

The changes also block agencies from using the Endangered Species Act to consider the effects of greenhouse-gas emissions on ecosystems when reviewing projects such as new roads or coal plants on federal land.

Brown is asking the court to block the new rules, which could give the incoming administration of President-elect Barack Obama time to review them.

The Brady Campaign sued the Interior Department and its secretary, Dirk Kempthorne, as well as the leaders of the U.S. Fish and Wildlife Service and the National Park Service in U.S. District Court. The group wants a federal judge to issue an injunction stopping the elimination of the 25-year-old federal rule that severely restricts loaded guns in national parks.

The Interior Department rule overturns a Reagan-era regulation that has restricted loaded guns in parks and wildlife refuges. That regulation required that firearms be unloaded and placed somewhere not easily accessible, such as in a car trunk. [Mark Godsey]

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'Lethal Warriors' in Iraq, linked to string of crimes back home

Reporting from Orange County and Colorado Springs -- They nicknamed themselves the Lethal Warriors, and during two tours in Iraq, the soldiers of the Army's 2nd Battalion, 12th Infantry regiment confronted some of the war's cruelest fighting, hunting insurgents through the warrens of Baghdad and Tikrit amid roadside bombs, mortar fire and close-quarters firefights. By June 2007, in what one field commander called the "heart of darkness," the unit was losing a soldier a day in a body bag or on a stretcher. Over two tours, 33 of them had died.

On Nov. 30, 2007, Kenneth Eastridge, a wiry, heavily tattooed survivor of the fighting, found himself at a rough Colorado Springs bar called the Rum Bay, not far from the unit's Ft. Carson base. Eastridge, a high school dropout from the projects of Louisville, Ky., had joined the Army to escape what seemed the dead-end prospects of civilian life, only to run repeatedly afoul of Army rules and face a court-martial.

So on that cold night just two days after his discharge, Eastridge was at loose ends again, in the company of two other war-coarsened vets from his unit, Louis Bressler and Bruce Bastien.

Police say the trio plotted a robbery in the company of an Army private, leaving Bressler worried that the private would divulge their plot. Later that night, police say, Bressler shot the soldier to death with a .38-caliber revolver.

Now Eastridge, 25, sits behind bars in a Colorado prison, having agreed to a 10-year sentence in exchange for his testimony.

The Army was quick to downplay any link between what he and the other soldiers saw in Iraq and the allegations against them.

"Anybody that does crimes of that nature, it goes deeper and farther back than anything in the U.S. Army," said Lt. Col. Brian Pearl, the 2-12's commanding officer. "Nothing here has trained them to do what they are charged with."

Yet there is a larger story of those who fought with the 700-soldier unit: a string of alleged robberies, domestic violence and senseless murder. [Mark Godsey]

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Judges rule three-strikes sentence unconstitutional

California's three-strikes sentencing law suffered a blow Tuesday when a federal appeals court struck down as unconstitutional a 28-years-to-life sentence for a sex offender who failed to register with local police at the correct time of year.

The U.S. 9th Circuit Court of Appeals sent the case of Cecilio Gonzalez back to federal district court in Los Angeles for resentencing after finding his 2001 penalty constituted cruel and unusual punishment, which is prohibited by the 8th Amendment.

Gonzalez's harsh sentence was grossly disproportionate to his "entirely passive, harmless and technical violation of the registration law," the appeals court said.

The California Penal Code requires a sex offender to register whereabouts annually within five working days of an ex-convict's birthday. Gonzalez had registered in Los Angeles County in May 2000 and confirmed his address a year later, meeting the yearly requirement but violating the deadline of his Feb. 24 birthday.

"This is not a case where my client failed to register. He failed to update his address information that was still good," said Gia Kim, the federal public defender who argued Gonzalez's case to the appeals court.

Registration infractions carry a maximum three-year sentence in California, and Gonzalez's oversight wouldn't even qualify as a crime in at least 11 states, wrote Circuit Judge Jay S. Bybee, one of the court's more conservative judges.

Bybee also pointed out that Gonzalez, who has already been in prison for more than seven years for this third felony conviction, was facing substantially more severe punishment than that imposed in California for far more serious crimes, such as second-degree murder.

It was unclear how much significance Tuesday's ruling would have for others sentenced to long terms for minor third offenses. [Mark Godsey]

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Emotions tested in a year of crime

The criminal landscape of 2008 reminded all of us how fragile — and strange — life can be.

It was a tragic year for police officers, with the Houston Police Department losing three to violent circumstances. As a result, Texas again led the nation for officer deaths in the line of duty.

2008 also was a tragic year for young children who apparently suffered at the hands of their parents — including a 3-month-old boy found stomped to death in a roadside ditch in Galveston and two Pasadena siblings whose burned bodies were found a week after they disappeared on Father's Day.

And it was a year that will be remembered for the bizarre and the downright ghoulish. Two decapitations grabbed the public's attention — that of a beloved deer housed in a wildlife sanctuary at a west Harris County park, the other of a corpse buried in a Humble cemetery in 1921 whose skull was allegedly used by Kingwood teens as a "bong" device to smoke marijuana.

Few police officers are shocked by anything that people might do. But some agree the emotional lows brought on by this year's crimes will be a tough pill to swallow.

"There's no doubt that 2008, in that regard, were some very emotionally bitter times," said Mark Clark, executive director of the Houston Police Officers' Union. "Everybody gets emotionally scarred by this kind of stuff."

Statistically speaking, crime has not changed all that much. Homicides declined in Houston in 2008, dropping by 15 percent from the year before, based on preliminary numbers provided by the Houston Police Department.

As of Tuesday, HPD had investigated 294 homicides, down from 348 homicides reported during the same period in 2007. The statistics are unofficial since they have not yet been reported to the FBI for inclusion in the annual Uniform Crime Report.

In the unincorporated areas of Harris County, homicides increased slightly this year, with the Sheriff's Office investigating the deaths of 71 people killed in 2008 — up from 63 in 2007.

And violent crimes as a whole — homicides, rapes, robberies and aggravated assaults — appeared to hold steady in the unincorporated areas of the county, with the numbers hardly budging from 2007 to 2008, said sheriff's Lt. John Legg.

But statistics don't mean much when officers face unexpected tragedies, such as the violent loss of one of their own. [Mark Godsey]

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Feds consider searches of terrorism blogs

Homeland Security Department may soon start scouring the Internet to find blogs and message boards that terrorists use to plan attacks in the USA.

The effort comes as researchers are seeing terrorists increasingly use the Internet to plan bombings, recruit members and spread propaganda. "Blogging and message boards have played a substantial role in allowing communication among those who would do the United States harm," the department said in a recent notice.

Homeland Security officials are looking for companies to search the Internet for postings "in near to real-time which precede" an attack, particularly a bombing. Bombings are "of great concern" because terrorists can easily get materials and make an improvised-explosive device (IED), the department said.

"There is a lot of IED information generated by terrorists everywhere — websites, forums, people telling you where to buy fertilizer and how to plant IEDs," said Hsinchun Chen, director of the University of Arizona's Artificial Intelligence Lab. Chen's "Dark Web" research project has found 500,000,000 terrorist pages and postings, including tens of thousands that discuss IEDs.

Chen and others aren't sure how helpful blogs and message boards will be in uncovering planned attacks.

"I just can't envision a scenario where somebody posts to a message board, 'I'm getting ready to launch an IED at this location,' and the government will find that," said terrorism analyst Matt Devost. A lot of postings about attacks are "fantasy, almost role-playing," Devost said.

Internet searches are used routinely by government agencies, such as the Defense Department, in gathering intelligence, said Chip Ellis of the Memorial Institute for the Prevention of Terrorism.

The searches use methods similar to a Google query and can be helpful in uncovering the latest IED technology, Ellis said.

Steven Aftergood, an intelligence expert at the Federation of American Scientists, praised Homeland Security for "trying to develop innovative approaches" and said its effort would not jeopardize privacy because the department would be scanning public websites. [Mark Godsey]

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How To Prosecute a Shoe-Thrower

Muntadar al-Zaida, the Iraqi journalist who threw his shoes at George W. Bush, will stand trial Dec. 31, the BBC reported Monday. He's being charged with "aggression against a foreign head of state," which carries a prison term of between five and 15 years. If a reporter here in the United States flung his footwear at, say, Iraqi President Jalal Talabani, would he do time?

This editorial page has been uncompromising in its criticism of the Bush administration's flouting of international and domestic law. The administration was wrong to evade courts in seeking warrantless surveillance of Americans, wrong to establish the Guantanamo Bay detention center, heinous in its acceptance of torture. But we are wary of either the criminal prosecution of administration officials or some South-Africa-style process.

The former model is reminiscent of the Watergate scandal, in which several officials -- including President Nixon -- broke identifiable criminal statutes by obstructing the investigation of a burglary motivated by partisan politics. From there, of course, Watergate expanded into a web of criminal violations, from break-ins to the use of the IRS to punish political enemies of the Nixon White House. It's conceivable that individuals in the Bush administration violated criminal law. But if they did so as part of a post- 9/11 response to terrorism, it would be all but impossible to prosecute them successfully.

Besides, the scandal of the Bush administration wasn't a matter of individual, politically motivated violations of law. Rather, it was a systemic failure to take seriously the spirit as well as the letter of this country's commitment to the humane treatment of prisoners or the privacy rights of Americans secured by the Foreign Intelligence Surveillance Act, or FISA.

That's a failure in which Congress must share culpability with the administration. It was the administration that, with the help of compliant legal counsel, rationalized the use of "enhanced" interrogation techniques such as waterboarding, sleep deprivation, humiliation and the use of dogs to intimidate prisoners of war and suspected terrorists. But, as the vice president argued recently, Congress at first either acquiesced in, or offered muted objections to, the administration's policies. That the failures were collective rather than individual makes them no less appalling, but it does suggest that a criminal prosecution will not remedy them. [Mark Godsey]

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Jewish group leader complains about Rubashkin treatment

A leader of one of the country’s most prominent Jewish groups complained to the U.S. attorney general Wednesday about the treatment of a former Iowa meatpacking executive.

The complaint centers on the government’s decision to deny bail to Sholom Rubashkin, the longtime leader of the Agriprocessors plant in Postville, Ia.

Abraham Foxman, national director of the Anti-Defamation League, wrote a letter about the case Wednesday to Attorney General Michael Mukasey. Foxman complained about prosecutors’ successful argument that Rubashkin should be denied bail, partly because as a Jew, he is eligible for Israeli citizenship.

Prosecutors have noted that Israel has a “Law of Return,” which allows Jews from around the world to settle there.

Rubashkin is facing federal charges of bank fraud and conspiring to hire undocumented workers at the plant. Foxman stressed that his organization has no position on the facts of that case. But he asked Mukasey to “set clear policy” for federal prosecutors, saying that they should not use the Law of Return as a reason to deny bail to Jews.

“The Law of Return is not ‘de facto’ citizenship for Jews in Israel, and it should not be used to hold Jewish defendants who do not exhibit some credible threat of flight to Israel,” Foxman wrote. “It is unconstitutional to argue in this – and in future cases – that Jewish defendants are to be held to a different standard of detention than non-Jewish defendants.”

Foxman said people of Irish or Indian ancestry also could seek citizenship in their families’ homelands. He said that fact should not be held against them, either.

Justice Department spokespeople were not available for comment Wednesday afternoon. Federal prosecutors have denied that their argument is unconstitutional.

They say they have legitimate reasons to fear Rubashkin could flee to Israel if released from jail. They note that two other former Agriprocessors managers, one of whom is Jewish, are believed to have done so.

Federal Magistrate Jon Scoles agreed with prosecutors and has ordered Rubashkin jailed until his trial, which is set for September. [Mark Godsey]

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