Of particular interest is the court's discussion of Kennedy's concurrence in United States v. Verdugo-Uriquidez, 494 U.S. 259 (1990). In this Fourth Amendment case, Kennedy "first noted the importance, in cases involving the extraterritorial application of the Constitution, of the distinction between citizens and aliens", because the Constitution does not create a judicial relationship with noncitizens "beyond United States territory." Verdugo-Uriquidez, 494 U.S. at 275 (Kennedy, J., concurring).

Relying on this precedent, the Federal Circuit rejects the petitioner's claim that the Takings Clause gives her a right to just compensation even though she has not established any relationship with the United States. The Federal Circuit rejected petitioner's claims that prior cases, such as Turney v. United States, 115 F. Supp. 457, 464 (Ct. Cl. 1953), created such a right, and reasoned establishing such a right for a noncitizen "would be far broader than any rule previously adopted by the Supreme Court for extraterritorial application of any Constitutional provision."

It will be interesting to see if this same logic is used by the United States Supreme Court when it announces its decision in Boumediene and Al Odah. Boumediene and Al Odah have claimed Fifth Amendment rights to habeas corpus. CJLF wrote an Amicus brief in support of the United States Government. CJLF argued the constitutional “privilege of the writ of habeas corpus” does not extend to an alien captured abroad by the military as an enemy, with no other connection to the United States.

Is European Law Enforcement Biased Against Muslims? A Washington Post story by Molly Moore reports that while only 3 percent of all Briton's are Muslim, they make up 11 percent of its prison inmates. In the Netherlands 20 percent of adult inmates and 26 percent of juvenile inmates are Muslims although only 5.5 of the population share that faith. It gets worse, 2% of those living in Belgium are Muslim but they represent 16% of the prison inmates. France beats them all with Muslims making up 12% of the population but an estimated 60-70% of all inmates. Sociologists opine that this represents a failure to integrate Muslim immigrants. But maybe it's a cultural problem. Maybe some immigrants don't want to integrate. Hummm.

The state's opposition notes that the Georgia Supreme Court's decision rests on the independent state ground that Lynd has already had a state habeas petition and is not entitled to another one. Lynd's reply says that the mere fact that the state court requested merits briefing means its decision was on the merits, not procedural default, and the Supreme Court therefore has jurisdiction. Nope. We slew that dragon 17 years ago. See Coleman v. Thompson, 501 U.S. 722, 744 (1991).

Update: Lyle reports that the Court denied the stay and certiorari at 7:01 ET.

Update 2: "William Earl Lynd was pronounced dead at 7:51 p.m. EDT, Georgia Department of Corrections spokeswoman Mallie McCord told The Associated Press," Shannon McCaffrey reports.

It's good to see McCain articulate his policy on judicial appointments. Based on his history with the "Gang of 14" and his tough stance on campaign-finance reform, there was some speculation that as President McCain might not appoint judicial conservatives. Back in February, Steven Calabresi and John McGinnis had this op-ed at the Wall Street Journal addressing that very issue. However after today's speech it seems clear that McCain will take care to appoint justices who view the Constitution, and the law, as contracts between the people and their government, as understood at the time of the law's enactment, and not based on a Justice's personal perspective of how the world should work.

Update: The Georgia Supreme Court unanimously denied a stay this afternoon. Atlanta Journal-Constitution story here.

DC Sniper: AP reports that John Allen Muhammad has written a letter to prosecutors saying that he wants to drop his appeals, and he asks for their help against the efforts of his lawyers. They claim he is brain damaged.

Do capital defense lawyers oppose every attempt to "volunteer" and claim mental incapacity every time? It seems to happen with great regularity.

Predicting Lethal Injection Review Post-Baze: Lyle Denniston at SCOTUSblog has this post on proceedings in the Fourth Circuit on the question of whether Virginia's lethal injection protocol satisfies the constitutional standards articulated in Baze v. Rees. Virginia filed its petition with the Fourth Circuit last Friday, its brief can be found here. Denniston reports that Virginia's brief focuses heavily on the argument that the district court anticipated the U.S. Supreme Court's decision in Baze, and applied the same constitutional standards to uphold Virginia's method. This brief is in response to Christopher Scott Emmett's April 16th petition to the Fourth Circuit urging the Fourth Circuit to send the case back to the district court to determine if Virginia's protocol adequately resembles the lethal injection upheld in Baze v. Rees. Emmett's petition can be found here. Denniston's post notes that the Fourth Circuit's decision could lead the way by setting an example for other courts to follow when reviewing state lethal injection protocols.

Media Coverage on Execution's Post-Baze: Over at Sentencing Law and Policy Douglas Berman also has this comment on the news stories that have reported on scheduled executions in the wake of Baze v. Rees. Based on the media coverage, and politician silence after the Baze decision, Berman predicts we will not see a "serious change in capital" punishment "even if we see a few executions every week for the rest of 2008."

Editorial Supports Victims' Rights: In a rare break from sympathizing with criminal defendants, the LA Times editorial page is defending introduction at trial of the statements of a murder victim in the Supreme Court case of Giles v. California.

Blinded by Reality. Apparently unaware of multiple studies showing that keeping habitual criminals and drug dealers behind bars is far cheaper than releasing them back into society, Washington Post writers Keith Richburg and Ashley Surdin report as fact, the decades-old claim by the Sentencing Project (read Reduce Sentencing Project) that the opposite is true. The story quotes the groups executive director: “Do you want to build prisons or do you want to build more colleges." ...... Hello?.. open the prison doors and any supposed savings will be spent building more morgues, rape crisis centers and drug clinics.

Texas Sets Date for Medellin: Michael Graczyk of AP reports, that Texas has set an execution date of August 5 for murderer Jose Medellin. CJLF has been involved in Medellin's case since 2005 and filed a brief on behalf of one of his victim's families in Medellin v. Texas, decided last March.

Six murders over a video game WWSB ABC News reports, that the Florida Supreme Court heard arguments today challenging the conviction of three defendants for the 2004 massacre of six people in a Deltona home. The defense attorney argues that the three defendants should have received separate trials. One defendant was convicted and sentenced to LWOP. The other two received death sentences. A fourth accomplice pleaded guilty and received LWOP. The victims were killed over the theft of an X Box video game.

The district attorney's press release is here. It turns out the witness recantation is only in an affidavit prepared by defense counsel. That is the weakest of all forms of evidence. It is not unusual for a person to sign a statement under pressure from a persistent lawyer or investigator only to say something quite different when speaking in his or her own words on neutral ground. But in this case, the witness won't speak to anyone from law enforcement. The DA believes she has been intimidated by the defendant. Two other witnesses in the case are dead.

What does it mean to be "exonerated"? The Oxford online dictionary says, "1 officially absolve from blame. 2 (exonerate from) release (someone) from (a duty or obligation)." If a person is released and the charges are dropped, the person is "exonerated" in the second sense. He has no remaining duty or obligation. He is not, however, absolved from blame in the sense of having been affirmatively shown to be blameless.

This is a vitally important distinction when the policy implications of cases such as this are considered. The requirement of proof beyond a reasonable doubt, along with other protections for the defendant, means that we tolerate a lot of guilty people going free. That happens on initial trials, such as O.J. Simpson, and it happens when convictions are set aside and cases are sent back for retrial. The fact that a few cases cannot be successfully reprosecuted a decade or two after the crime does not mean that the defendants were innocent. A few are, but not all or even most.

Just the power to nominate federal judges to trial courts and appellate courts across the country, including the Supreme Court, can have an enormous impact for decades to come. There is no point feeling outraged by things done by federal judges, if you vote on the basis of emotion for those who appoint them.

Although Senator Obama has presented himself as the candidate of new things — using the mantra of "change" endlessly — the cold fact is that virtually everything has says about domestic policy is straight out of the 1960s and virtually everything he says about foreign policy is straight out of the 1930s.

Protecting criminals, attacking business, increasing government spending, promoting a sense of envy and grievance, raising taxes on people who are productive and subsidizing those who are not — all this is a re-run of the 1960s.

We paid a terrible price for such 1960s notions in the years that followed, in the form of soaring crime rates, double-digit inflation and double-digit unemployment. During the 1960s, ghettoes across the countries were ravaged by riots from which many have not fully recovered to this day.

Indeed, in terms of judicial appointments, America is paying the price to this day for a dismal mistake we made in 1976. Post-Vietnam and post-Watergate, the country was so anxious to change the party in the White House that the voters dumped the steady, reliable Gerald Ford for the little-known quantity from Georgia, Jimmy Carter. Carter's judicial appointments were catastrophic. He single-handedly transformed the Ninth Circuit Court of Appeals, which covers the Far West, from a respected court to a disgrace. Today, California's prison system is in the hands of a panel of three judges that is quite possibly the most anti-law-enforcement panel ever assembled in the history of American law. The three judges and the chief judge who named them to the panel were all appointed by Jimmy Carter.

By analogy, if you buy a lottery ticket for a drawing, the chances that your ticket will win are extremely small. However, the chances that somebody will win from that drawing are often pretty good. If the chance that a person would match a profile if selected at random are one in a million and the database searched for that profile has millions of people, then there is a decent chance that an innocent person will be a random match. Of course, with fresh samples and modern techniques, the random match probability is 1/quadrillions, not millions, so the chance of random false positive remains very small. With old, degraded samples and only a few markers available, though, the chance of a false positive match is significant.

Is this story accurate? I would be interested in hearing from DNA experts.

The Takings Clause and the Fourth Amendment: Orin Kerr at Volokh Conspiracy posted his reaction to Ilya Somin's textualist reading of the Fifth and Fourth Amendments and their possible interplay. Kerr disagrees with Somin's argument that there is significance in the fact that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. He also specifically addresses Somin's point that the Framers didn't experience seizures of property owned by innocent third parties.

Intelligent Life at a College Newspaper
An editorial in San Diego State University's paper, The Daily Aztec, suggests that "America's tough and distinct approach to crime and punishment" has driven crime rates down. Columnist Holly Wells also notes that when comparing the cost of incarceration with the cost of leaving criminals on the streets, "prison is a bargain." She also compares U. S. sentencing policies with those in England, concluding that "when America got tough...crime rates dropped. When England got soft on crime, rates increased."

Hispanics lead in cocaine convictions: An AP story reports that according to government data, Hispanics now make up the overwhelming majority--60%--of federal offenders facing powder-cocaine charges. Part of the reason is that most of the powder-cocaine entering the U.S. has been coming through Mexico since federal law enforcement cracked down on trafficking through Florida. Another factor is the dramatic shift in focus from users to suppliers. The story notes that cocaine possession represented less than 4% of federal convictions in 2007, while 96% involved drug traffickers, manufacturers and distributors. No Virginia, the prisons are not full of non-violent folks caught using drugs.