Results matching “first”

No, this story is not by Erle Stanley Gardner. It's by Adam Liptak in the NYT.

The Tea Party's favorite part of the Constitution -- the 10th Amendment, which limits federal power -- arrived at the Supreme Court last week. In keeping with the spirit of the times, it came wrapped in the plot of a soap opera.

*                             *                         *

Now the court has decided to consider what to do about a woman hellbent on poisoning her best friend.

The woman, Carol A. Bond of Lansdale, Pa., was at first delighted to learn that her friend was pregnant. Ms. Bond's mood darkened, though, when it emerged that her husband was the father. "I am going to make your life a living hell," she said, according to her now-former friend, Myrlinda Haynes.

Ms. Bond, a microbiologist, certainly tried. On about two dozen occasions, she spread lethal chemicals on her friend's car, mailbox and doorknob.

However, the Question Presented to the U.S. Supreme Court is not whether this crime lies within the power of Congress to prohibit as a federal offense, but only whether Ms. Bond has standing to make that claim. That's a pretty easy question, IMHO.  See prior posts here and here.

Doug Berman has this post at SL&P.

It is always dicey to judge the propriety of a judicial action from newspaper stories, so what I say here is necessarily tentative.  However, it appears that Chief U.S. District Judge Fernando Gaitan in Kansas City may have gone way out of bounds in granting a stay of execution to murderer Roderick Nunley.  Tony Rizzo has this story in the Kansas City Star.  See also yesterday's News Scan.

Nunley, 45, is set to be executed by lethal injection at 12:01 a.m. Wednesday for the 1989 kidnapping, rape and murder of Kansas City teenager Ann Harrison.

[Judge Gaitan] issued the stay order Monday morning after lawyers for Nunley argued that he was entitled to a new sentencing hearing because a judge, not a jury, heard the evidence to determine if he should receive a death sentence.

Does the Justice Department bow to "states' rights" on the question of marijuana?  I guess it depends on which the day of the week you ask.

Months ago, Attorney General Eric Holder said that the Department would not enforce the federal Controlled Substances Act against California's (or other states') "medical" marijuana provisions, deferring instead to the individual state's judgment about when marijuana should be available to its citizens.

Yesterday it was a different story.  The AP reports:

SAN FRANCISCO -- The U.S. government will "vigorously enforce" federal laws against marijuana even if voters next month make California the first state to legalize pot, Attorney General Eric Holder says.

Holder's warning, contained in a letter to ex-federal drug enforcement chiefs, was his most direct statement yet against Proposition 19, and it sets up another showdown with California over marijuana if the measure passes.

With Prop 19 leading in the polls, the letter also raised questions about the extent to which federal drug agents would go into communities across the state to catch small-time users and dealers, or whether they even had the resources to do it.

Of course it's already the case that federal drug agents generally do not go after small-time users and dealers.  What's changed is that Holder, who was ready to kiss goodbye to federal law in this area only a short time ago, now says he'll enforce it.  If the supposed difference is the distinction between "medical" marijuana and "recreational" marijuana (a distinction that as a practical matter barely exists), Holder needs to re-check his premises.  Under the CSA, smoked marijuana is a Schedule I substance, meaning that, under federal law, it has no recognized medical value.

If the Attorney General wants to defer to some muscular version of states' rights we haven't seen since Jim Crow laws, at least he should be consistent.  Well, forget that.  Why would we expect consistency from the man who wants to apply the Miranda rule to captured terrorists, except when he doesn't want to apply it?

The transcript of the Supreme Court argument in Harrington v. Richter is available here.

In this case, the defendant made his ineffective assistance of counsel claim for the first time in state court in a habeas corpus petition filed directly in the California Supreme Court, without going to any lower courts first.  The state high court, as it sometimes does, simply denied the petition without comment.  (If Richter had filed in the Superior Court, the preferred procedure, the Rules of Court would have entitled him to an explanation.)  The Ninth Circuit granted Richter's federal habeas petition.

When this case reached the U.S. Supreme Court, the Court on its own posed the question of whether a summary denial of relief by the state court is a disposition on the merits for the purpose of 28 U.S.C. §2254(d), limiting the authority of a federal court to grant a claim denied on the merits in state court.

There was no argument today on the question in the terms the Supreme Court posed, summary versus explained decisions.  Instead, the discussion was on (1) whether the state court's order was a disposition on the merits at all, as opposed to on procedural default; and (2) the merits of the ineffective assistance claim, with lots of fact-intense discussion about blood pools and high velocity spatter.

It appears possible that the Supreme Court could just go straight to the merits of the underlying claim and say there was effective assistance or no prejudice and leave all the other questions for another day in a cleaner case.

Update: Snarky WaPo columnist Dana Milbank, who does not usually cover the Supreme Court beat, comments on the blood and forenics in the argument here.

Update 2: John Elwood and Douglas Geyser have this recap at SCOTUSblog. They count 5 votes to reject Richter's ineffective assistance claim on the merits even without the AEDPA standard and a sixth to say that the state court determination was on the merits.

Tennessee Mass Murderer Convicted:  After only 90 minutes of deliberating, a Tennessee jury found Jessie Dotson guilty yesterday of six counts of first-degree murder and three counts of attempted first-degree murder, reports The Commercial Appeal (TN).  In 2008, shortly after his release from prison for another murder, Dotson fatally shot his brother and three other adults in a Memphis home, and beat and stabbed to death his 2- and 4-year-old nephews.  Three of Dotson's other nephews, including a 2-month-old baby, survived their stab wounds and were found in the home 40 hours after the attack.  Two of those surviving nephews served as the state's key witnesses, identifying Dotson as the killer.  (Surprisingly, the jury didn't buy Dotson's story that he hid under a bed while his family was murdered, left the scene without checking to see if any of them were alive, and was later "coerced" into confessing to his mother and a detective.)  The sentencing phase of trial began today, and prosecutors are seeking the death penalty.

Oral Argument Tomorrow in Death Row DNA Access Case:  The Supreme Court will hear argument tomorrow in the case Skinner v. Switzer, 09-9000, which presents the question of whether an inmate may seek access to DNA testing via a civil rights claim.  (See Kent's previous post on the case here.)  Prosecutors maintain that Skinner doesn't qualify for further DNA testing under the applicable Texas statute, and that Skinner's last minute lawsuit is merely an effort to stall his execution.  The Star-Telegram has this story. 

Mexican Officer Investigating Falcon Lake Disappearance Killed:  The AP reports on the recent death of a Mexican police commander investigating the disappearance of David Hartley, an American tourist who went missing while vacationing at Falcon Lake.  No further details have been released, but U.S. officials report that threats from Mexican drug gangs have hindered the search for Hartley's body.  The Mexican Foreign Ministry claims it is actively investigating the case, but Hartley's family members and Texas Governor Rick Perry are calling on Mexican officials to do more in their search.

Insanity Defense in Psychiatrist's Slaying:  NYDailyNews.com reports that trial is set to begin tomorrow for David Tarloff, accused of murdering Dr. Kathryn Haughey with a cleaver in 2008.  Tarloff admitted to the crime, claiming he killed Haughey in an attempt to rob another doctor in the same office.  Despite this confession, Tarloff's attorney plans to present an insanity defense at trial.  Although Haughey's family members are weary that Tarloff will succeed in showing the jury that he did not know right from wrong at the time of the killing, the article reports that such a defense is unsuccessful 80% of the time.  

Arkansas DNA Collection Law :  Arkansas's "Juli's Law," requiring DNA collection of those arrested for several of the most serious felonies, has failed to increase the state's DNA database as expected, reports the Texarkana Gazette.  Although projected to result in the collection of 1,400 samples per year, only 73 have been submitted since the law went into effect in July 2009.  Little Rock Police Chief Danny Bradley admitted that compliance is expected to be low during the first year of a new law, as law enforcement officers attempt to keep up with the state's frequently-changing criminal laws.

Meth Pipe + Blowtorch + Gunpowder:  Made for a a bad day for John Blanchard, whose approach to meth-smoking caused a storage yard fire earlier this month in San Mateo County, California.  Blanchard used a blowtorch to light a meth pipe, then left the torch near a container of gunpowder that subsequently exploded.  The SF Chronicle has this story.

Husband Found Guilty of Killing Wife After 2nd Trial:  Quincy Norton, 36, whose murder conviction was overturned in 2008 on the grounds that his defense attorney was incompetent, was found guilty yesterday in a retrial of the case in San Mateo County, California (south of SF).  Norton was convicted of first-degree murder and a knife enhancement in the stabbing of his 31-year-old wife Tamika Norton.  The judge who overturned his 2008 conviction was convinced that Norton's attorney in the first trial deprived him of "potentially meritorious defenses" including retesting a knife for DNA evidence that could have implicated someone else.  Norton will face 26 years to life in prison.  Steve Wagstaffe, the chief deputy district attorney says, "He richly deserves to spend the rest of his life locked up in a cage for the evilness of his murdering the mother of his children."  San Francisco Chronicle Staff Writer Henry Lee has more on the story here.

Washington Inmate Voting Case:  Bob Egelko, San Francisco Chronicle Staff Writer, reports on the Ninth Circuit decision upholding a Washington law to prohibit felons from voting, "even if the ban disproportionately harms minorities." See prior post here.  If the court chose not to uphold Washington's law disenfranchising felons, it could have invalidated laws in the eight other states in the circuit, including California, if courts found that a state's system of arresting and prosecuting suspects was racially biased.  But, the 11-judge appeals court panel did uphold the Washington law and concluded that federal civil rights laws do not apply to a state's inmate voting ban.  The minority inmates would have to prove that a state's law or justice system was biased against them.  Attorney Ralph Kasarda of the Pacific Legal Foundation in Sacramento, which filed arguments supporting the Washington law, said the ruling means "states don't have to color-code their criminal justice systems....  [S]tates would have to monitor their criminal justice systems to ensure that the arrests and convictions were racially balanced," if unintentional racial bias was enough to invalidate the inmate voting ban.

Fort Hood Shooter Refuses to Participate in Sanity Review:  CNN reporters, Larry Shaughnessy and Charley Keyes, report that former Army psychiatrist, Maj. Nidal Hasan, accused of killing 13 people last year at Fort Hood, Texas, refused to participate in a psychiatric evaluation yesterday. The request for a sanity review came a week before Hasan's Article 32 hearing next week, an important pre-trial procedure in which the first public testimony is given in the case.  Hasan's lawyer, John Galligan, believes this psychic evaluation is an Army attempt to "distract" him as he prepares for next week's hearing and has instructed his client not to talk to anyone connected with the sanity review. 

Ever since loose cannon Texas Judge Charlie Baird was reported to be holding a court of inquiry on the Willingham case, the discussion among persons of sense was what remedy was available.  The law is crystal clear, as we noted Monday, that the first judge has no authority beyond asking the presiding judge to appoint a different judge to conduct the court of inquiry.  But what if Judge Baird (the Innocence Project's cherry picked judge and recipient of an award from a Texas anti-death-penalty group) ignores the law and goes ahead himself, as he has apparently done once before?

The District Attorney of Navarro County has filed this motion to recuse Judge Baird.  According to Texas Rules of Civil Procedure 18a(c), a judge presented with a recusal motion must either recuse himself or ask the presiding judge to assign another judge to hear the motion.

Also, the Texas Legislature passed two statutes in 1995 in reaction to abuses of the court of inquiry and lack of remedies. Chapter 318 § 65 amended the court of inquiry law (Code of Crim. Proc. Art. 52.01) to add, among other provisions, the requirement that the initiating judge ask the presiding judge to appoint a judge to conduct the court of inquiry, and it disqualified the initiating judge from receiving that appointment.  The purpose is to prevent exactly the kind of judge shopping that is happening in this case.  Chapter 839 gave the court of appeals authority to restrain a rogue judge by writ of mandamus, amending Government Code § 22.221(b).

So at this point it appears (1) that the DA is fully engaged and ready to battle; and (2) that there is a remedy by writ of mandamus from the court of appeals if Judge Baird decides to plow ahead on his own in defiance of the law.

Judge Baird, BTW, is not running for reelection, so he will soon be ex-Judge Baird for the second time, to the betterment of justice in the Lone Star State.

Hearing photos by Jay Janner of the Austin American-Statesman are here.

A few more "re-listed" criminal cases for a second consideration by the Supreme Court.

Ryan v. Doody
Docket:  09-1443
Brief Summary:  A 17-year-old confessed to participating in the murders of nine people inside a Buddhist temple.  At issue is whether the Miranda warnings administered by the police were adequate and whether the teen's confession was voluntary.  The Ninth Circuit answered both in the negative.

DePierre v. United States
Docket:  09-1533
Brief Summary:  DePierre was convicted of distributing 50 grams or more of cocaine base, a federal crime under 21 U.S.C. §841(b)(1)(A)(iii) that carries a ten-year minimum sentence.  DePierre claims the "cocaine base" contemplated by the statute is limited to crack cocaine.  Although some Circuits agree, the First Circuit held otherwise.

Allen v. Lawhorn
Docket:  10-24 
Brief Summary:  During the penalty phase of a capital murder trial, Lawhorn's defense attorney waived closing argument.  The Eleventh Circuit determined this waiver amounted to ineffective assistance of counsel entitling Lawhorn to a new sentencing hearing, which the state argues is a misapplication of AEDPA.

Wilson v. Corcoran
Docket:  10-91
Brief Summary:  Corcoran was convicted of murdering four people and sentenced to death in Indiana state court.  The Seventh Circuit reversed the sentence after finding that the court improperly applied Indiana sentencing law.  The state argues the Seventh Circuit erred in granting federal habeas relief based solely on a violation of state law.  

The first of the two defendants in the Connecticut home invasion/arson/rape/triple murder case was convicted this morning.  His sentence has yet to be determined.  The prosecutors, to their credit, turned down an offer to plead guilty in exchange for a life sentence.

The story is here.

I'm not going into the facts of the case because many readers will already know them.  You have to read it to believe that someone could be this sadistic and cruel to another human being.

I hope the abolitionists will have the courage of their convictions and start in on why a prison sentence represents justice in this case.  What's more likely is that they'll hunker down, as they did in the McVeigh case, or sulk among themselves on the Huffington Post or TalkLeft or whatever it is they tune into.  Of course I'm under no illusion that sulking is going to be their only response.  I'm sure we'll see the usual batch of, "This is a tragedy, but our real focus should be on..........," followed by pages roughly reading, "America stinks, and thus has no standing to execute anyone."  The actual facts of the case will be left, as ever, on the editing room floor.

"Golden Flute" Murder Trial Ends in Conviction:  A bizarre murder trial in Contra Costa County, California concluded yesterday when a jury found Alejandro Rivera guilty of murdering 66-year-old Theodore Neff in 2008.  At the time, Rivera was living with his wife and young son, while also secretly prostituting himself to men and women on Craigslist.  Neff had been enlisting Rivera's services for about six months when Rivera strangled Neff, set fire to his home, and fled with his prized golden flute valued at over $20,000.  The golden flute took centerstage at trial, with the state's first witness (Neff's music teacher) even playing the instrument for the jury.  Rivera will be sentenced at the end of the month, and faces 28 years to life.  Milaika Fraley of the Contra Costa Times has this story.

Times Square Bomber Receives Six Life Sentences:  FoxNews reports Faisal Shahzad, who pleaded guilty to the attempted car bombing of Times Square, was sentenced today to six consecutive life sentences.  In a five minute statement before the sentence was handed down, Shahzad pledged his allegiance to Allah and spewed anti-American sentiments.  Shahzad became a naturalized U.S. citizen last year, which he explained to the sentencing judge was a "false oath."

New Hampshire Parole Board Angry Over New Law:  The AP reports that members of the New Hampshire Parole Board are outraged about the state's amended parole law, which limits the scope of the board's revocation powers to a 90-day sanction no matter what the triggering offense.  As a result, the board is limited to a 90-day penalty for convicted child sex offender Frederick Owens, a parolee recently charged with stalking a 16-year-old boy.  Under the previous law, the board could have returned Owens to prison for the remainder of his sentence (six years).

Debra Saunders has this column in Sunday's San Francisco Chronicle on the Albert Brown execution debacle and the gubernatorial candidates' statements on the death penalty in last week's debate.  Interestingly, on the Chron's site (sfgate.com), the piece is headlined "We need an injection of common sense," but elsewhere on the Web (e.g., here) it is titled "California Death Penalty Once Again Thwarted by Thug Huggers."  Different editors attached different headlines in various venues.  I'm partial to the "thug hugger" one.

Saunders notes that AG Brown is quite wrong when he says, " 'under the Constitution, these men who are condemned have a right to first-class representation.' (Actually, [Chief Justice] George told me, 'The operative word is effective representation, not first-class.') "  She quotes this post for the proposition that "He seems to have swallowed the defense spin on the issue, hook, line, and sinker." Saunders is also critical of Whitman's emphasis on the financial aspects of the problem.

This isn't an issue of prison construction costs. The anti-death-penalty lobby is committed to burning through so much time and taxpayer money that voters cry uncle and give up on the death penalty because they're sick of bankrolling frivolous appeals that successfully thwart capital punishment even though the U.S. and California supreme courts have ruled it to be constitutional.

When they've won on the death penalty, they'll start trying to shave time from life-without-parole sentences, which they also consider to be inhumane - on your dime as well.

The next governor needs to understand these forces and not give in to the siren song of inertia. But I don't think either Jerry Brown or Meg Whitman understands what is at stake.

Mark Sherman has this story for AP previewing Snyder v. Phelps, No. 09-751, the military funeral protest case to be argued Wednesday, October 6.

One thing Al Snyder wants to make clear: His boy fought and died for freedom in Iraq, but not for the right of some "wackos" to spew hate at soldiers' funerals under the protection of the Constitution.

"It's an insult to myself, my family and the veterans to say this is what our military men and women died for," Snyder says, barely concealing his anger.

Yet more than four years after the death of his only son, Matthew, Snyder is in the middle of a Supreme Court case that raises almost precisely that issue.

This is a civil torts case, not a criminal case.  However, if the Court brings restriction of these kinds of protests under the "time, place, and manner" umbrella, as I think it should, it would clear the way for the application of disorderly conduct statutes as well.

And there is one more criminal law hook, at the end of the story:

But he also struck a more ominous tone. "It has to be stopped," Snyder said. "If the courts don't stop it, believe me, someone is going to."

One of the reasons we have government in the first place is to protect people through an ordered legal system. If that system fails, some will resort to protecting themselves.  I think Mr. Snyder's predicition is correct. 

The right of free expression is certainly important, but it is also subject to reasonable limits, and the Phelps group is way beyond any reasonable limit.

Here is my rule of thumb for First Amendment challenges to legal restrictions. If I were an autocrat bent on stifling dissent, how useful and effective would this restriction be for that purpose? Would it seriously crimp the ability of those who disagree with my policies to get their message out, or would getting around it be trivially easy?  If the latter, it's probably not a First Amendment violation.

The Phelpsians can simply take it somewhere else.

Scott Smith reports for the Stockton Record:

COALINGA - A state parole board this week declined to release murderer Steven John Burns, who has served 31 years in state prison for shooting a woman at University of the Pacific because she rejected his love.

Burns, 49, was convicted of second-degree murder and sentenced to spend 17 years to life in prison for killing Catina Rose Salarno on Sept. 3, 1979. In Tuesday's hearing - his eighth chance at parole - Burns said he wanted to go home to care for his elderly parents.

Opposing his release, Salarno's two sisters and parents traveled to Pleasant Valley State Prison, a remote Central Valley institution surrounded by scrub brush. They sat in a cramped room, listening to him plead with officials to let him live again in his boyhood home in San Francisco.

AP reports:

The attorney general's office said in a court filing Wednesday that it can no longer try to proceed with the lethal injection of Albert Greenwood Brown this week. It would've been California's first since 2006.

How about next week?

Without another gubernatorial reprieve, passage of the execution date means the people must return to Superior Court for a new date, so even if the awareness dawns that "expiration date" of the drugs is no big deal, it would still be a month or two.

Update: USCA9 voluntary dismissal order is here.

Kent has posted over the last couple of days about the flurry of litigation concerning the forthcoming  --  or, now, probably not so forthcoming  --  Brown execution. 

I will not attempt to summarize how things got to where they are, first because Kent has done a better job than I could, and second, because it's just too annoying.

The law should speak with authority and confidence.  It should do so all the more in a case, like this one, where there is no doubt of factual guilt, the crime is horrendous, and the defendant has had years to appeal every issue under the sun.  A system that interminably questions itself to the point of paralysis is not living up to "America's highest values," or whatever the Leftist catch-phrase is.  It's making a joke of itself.

Two things in particular should be borne in mind.  One is that in supposedly barbaric America, all this comes about out of a humanitarian, but now run amok, desire to seek the most pain-free method of execution.  Actual barbarism should be made of sterner stuff (and is).  Second, the very people most responsible for creating a system that endlessly hashes out every detail, no matter how niggling, will be the first to say that the current episode vindicates their view of the death-penalty-as-circus.  And, though I hate to say it, they'll have a point, because the rest of us failed to take the action needed to prevent it from degenerating to this point.

I'll be the first to confess that I have no sure-fire suggestion for preventing the sort of thing we have seen unfold in this case.  The willingness of courts to accommodate every indulgence, and of legislatures to let them, seems to be buried deep in the culture.  We are reminded, now and for not the first time, that we had best dig it out.  

At the end of today's orders list is the "allotment order" specifying the justices assigned as circuit justice for the various circuits.  That assignment means a lot less than it did in the old days, when the circuit justice actually presided over the circuit court.  (E.g., Chief Justice Marshall presiding in the Aaron Burr trial.)  Now it pretty much means ruling on the extension of time and stay requests for cases from the circuit.  Even the more important stay requests, such as capital cases, are routinely referred to the full court for decision.

Anyhow, bad news for Texas defense lawyers -- the extension-stingy Justice Scalia still has the Fifth Circuit.  Former Circuit Judges Roberts, Breyer, Ginsburg, Alito, and Kennedy have the circuits from whence they came (D.C., First, Second, Third, and Ninth, respectively). The Chief also gets the Fourth and Federal, and Justice Alito also gets the Eighth.

Justice Thomas gets the Eleventh, which includes his native Georgia.  Justice Sotomayor gets the Tenth.  The rookie gets the Midwest (Sixth and Seventh).

Think you got short deadlines? "A federal judge on Tuesday gave lawyers six hours to file written arguments on whether California's first execution in nearly five years should go forward," Paul Elias reports for AP.  I noted here that I did not think Judge Fogel's "choice" order was valid. The Ninth Circuit panel didn't think so either and kicked it back to him. The panel is Judges Kleinfeld, McKeown, and Fisher, not the panel I expected.

The panel says, "Timing is everything and the district court should take the time necessary to address the State's newly revised protocol in accord with Supreme Court authority."  The Supreme Court authority on point says (emphasis added):

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

It should not take much time to decide that California's new protocol is better than the Kentucky procedure at issue in Baze v. Rees, and, therefore, "a stay of execution may not be granted...."

Meanwhile, back at the ranch, the Attorney General wants the California Supreme Court to make the Court of Appeal decision lifting the Superior Court's stay final forthwith. The Court wants the opposition by noon today and the reply by 3:00 p.m. The case is California Dept. of Corrections and Rehabilitation v. Superior Court (Morales), S186751.

The Governator granted a one-day reprieve to allow Cal. Supreme to consider the case. Under California's unusual execution-date-setting mechanism, missing the date due to a court stay means you have to go back to Superior Court and get a new date set. However, missing the date due to a Governor's reprieve means "the execution shall be carried out on the day immediately after the period of the stay or reprieve without further judicial proceedings."  Cal. Penal Code § 1227.5. So there is a reverse Brer Rabbit effect here.  A reprieve nominally benefits the condemned inmate, but he may not actually want it.

The U.S. Supreme Court has taken up the issue of lab techs and the Confrontation Clause again in Bullcoming v. New Mexico, No. 09-10876.  The opinion of the New Mexico Supreme Court begins:

Defendant, Donald Bullcoming, appeals his conviction of aggravated DWI, a fourth-degree felony, contrary to NMSA 1978, Section 66-8-102 (2005, prior to amendments through 2008). Of the three issues that Defendant raises, the main question presented in this appeal is whether a laboratory report of Defendant's blood draw results is testimonial evidence subject to the Confrontation Clause. We first addressed this issue in State v. Dedman, 2004-NMSC-037, ¶¶ 30, 45-46, 136 N.M. 561,102 P.3d 628, and followed the United States Supreme Court case in Crawford v. Washington, 541 U.S. 36 (2004), to hold that (1) blood alcohol reports are public records and (2) they are non-testimonial under Crawford because public records are not "investigative or prosecutorial" in nature. We reverse our holding in Dedman in light of the recent United States Supreme Court case of Melendez-Diaz v. Massachusetts, which held that the certificates reporting the results of forensic analysis were "quite plainly affidavits" and thus "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause. 557 U.S. ___, ___, 129 S. Ct. 2527, 2532 (2009) (5-4 decision) (quoting Crawford, 541 U.S. at 51). Although the blood alcohol report was testimonial, we conclude that its admission did not violate the  Confrontation Clause, because the analyst who prepared the report was a mere scrivener who simply transcribed the results generated by a gas chromatograph machine and, therefore, the live, in-court testimony of another qualified analyst was sufficient to satisfy Defendant's right to confrontation.

Should the analyst be relieved he doesn't have to go testify or insulted he is called a "mere scrivener"?

Also granted is the defendant's petition in Freeman v. United States, No. 09-10245.  This case has to do with crack, retroactivity of more lenient sentencing guidelines, and guilty pleas. Sixth Circuit opinion is here.

Also granted is the defendant's petition in Sykes v. United States, No. 09-11311. This case asks whether "resisting law enforcement" is a "violent felony" for the purpose of the Armed Career Criminal Act.  Seventh Circuit opinion is here; modification order is here. The actual question is whether Sykes has two violent priors or three. The other two priors are robbery, as is the present offense. Three robberies should be sufficient to throw away the key, regardless of the answer to the question in this case, IMHO.

The Supreme Court has taken up the question of exigent circumstances to justify entry of an apartment without a warrant in Kentucky v. King, No. 09-1272. The opinion of the Kentucky Supreme Court summarizes the case:

At issue in this case is whether exigent circumstances existed, which justified the warrantless entry of the apartment occupied by Appellant Hollis Deshaun King. We hold that police were not in hot pursuit of a fleeing suspect, and that, with regard to the imminent destruction of evidence, any exigency was police-created. We also note that no "good faith" exception to the exclusionary rule applies in this case.

The orders list with the certiorari-granted cases from yesterday's "long conference" is here. The much longer list of certiorari-denied cases should be out on the day of the Court's official term opening, the first Monday in October.  Cases that were scheduled for the conference but are on neither list have likely been "relisted" for a second look at a later conference.

Also granted is the Solicitor General's petition in United States v. Tinklenberg, No. 09-1498, on the federal Speedy Trial Act.  This one will be decided by 8 Justices.

The Sacramento Bee has this page with video of its editorial board's interview with California Attorney General and candidate for Governor Jerry Brown.  They have conveniently broken up the video by topic, so you can watch the death penalty portion separately from the others.  For those who like to have a transcript for more convenient reference, I have transcribed it as best I can given the technical issues.  The transcript follows the jump.  I will have some comments in another post.

I was a career Justice Department attorney for many years.  I almost always took pride in the Department's work.  I was proud in particular of its use of federal power to overwhelm and defeat Jim Crow.  States rights stop where intimidation, not to mention murder, begin.

That was then.

Today we hear from Politico  --  not exactly a conservative mouthpiece  --  news that the Civil Rights Division at DOJ has given up the fight for equal justice in favor of giving the go-ahead to black racism.  The first two paragraphs in the Politico story state:

A Justice Department prosecutor defied his superiors by testifying at a U.S. Civil Rights Commission hearing Friday, where he leveled an explosive allegation: top officials in the department gutted a voter intimidation case against a fringe African American militant group because the suspects were black and their alleged victims were white.

The prosecutor, Christopher Coates, also said the downgrading of the case against the New Black Panther Party was evidence of a Justice Department culture which discouraged "race neutral" enforcement of civil rights laws, frowned on prosecuting minority perpetrators and folded under pressure from black and Latino rights groups. After President Barack Obama and Attorney General Eric Holder took office, the culture intensified, Coates told the panel, ultimately leading to his departure as chief of the voting rights section early this year.

Hat tip to my friends at Powerline, which carries the story here. The Politico piece is here.   The Washington Post also carries the story. The New York Times, however, can't find anything to write about.  Imagine that.

"California Home Health Care Program Hires Felons":  Felons convicted of violent crimes, such as rape and assault with a deadly weapon, have been hired by California's home health care program to look after elderly residents.  Investigators believe there are at least 210 unsuitable workers and applicants in the program, but background checks haven't been completed because the program rules currently allow felons to work as home care aides.  Applicants are disqualified only if they have a history of child/elder abuse or of defrauding public assistance programs.  Because of privacy laws, the elderly and disabled residents are not warned if their caregivers are felons.  The San Francisco Chronicle has the story here.

"Arizona Death Row Inmate to be Executed in October":  AP writer Paul Davenport reports on a warrant of execution issued by the Arizona Supreme Court, setting an October 26th date of execution for Jeffrey Landrigan.  If carried out, Landrigan would be the first person executed in the state since 2007.  A month after escaping from an Oklahoma prison, where he was serving time for a 1982 murder and 1986 prison stabbing, Landrigan stabbed and strangled to death Chester Dyer.  He was linked to the murder by DNA evidence.  The defense is requesting a delay in the execution because of a shortage of at least one of the three drugs Arizona uses for lethal injections.

California County Jail Limits Inmate Mail:  Beginning October 4th, Ventura County jail will ban most letters to and from inmates, except for postcards.  The Sheriff's Department claims the restriction is for security reasons, because inmates are able to receive contraband and coded gang and crime information in letters.  The postcards have strict limitations: they must be under a certain size and cannot contain paint, stickers, nudity, etc.  Inmates will still be allowed to send and receive letters from their attorneys.  Counties in other states such as Colorado, Florida, and Arizona have implemented similar letter bans.  The Mercury News has the story here.

San Diego Judge Accused of Taping Court Proceedings for TV Tryout:  Debra Cassens Weiss of the ABA Journal reports on an ethics complaint filed against Judge DeAnn Salcido for taping courtroom proceedings for a TV tryout, during which she made improper remarks and encouraged spectator participation.  The judge is accused of warning a defendant that if he commits another crime he "will definitely be screwed and we don't offer Vaseline for that," and asking courtroom spectators for a "woo, woo, woo" after learning a defendant had tested positive for marijuana.  Judge Salcido has defended her behavior, stating: "I have found the use of humor and a 'tough love' approach to be very successful in getting through to the criminal defendants and helping them see the benefits of cleaning up their lives."

At Least He'll Die in Prison:  A Philippine court earlier this month sentenced a man to 14,400 years for raping his daughter nearly every day for a year.  The man was originally sentenced to death after being convicted of 360 counts of rape, but had his sentence reduced after the country repealed the death penalty in 2006.  Read the AP's story here.

Sentence Upheld for California Boy Convicted of Murdering his Father:  The San Francisco Chronicle reports on the First District Court of Appeals' decision yesterday to uphold the sentence of a boy convicted of murdering his father in Berkeley at the age of 15.  The court ruled the judge was correct in sentencing the boy to 50 years to life back in June 2008.  In the 3-0 ruling, the court rejected the defense's argument that confinement wouldn't help the boy.  Because he was tried as a juvenile, he will be released at the age of 25.  

Rehearing Set for Mumia Abu-Jamal:  Per an order from SCOTUS, a U.S. Court of Appeals will again review the death sentence of infamous death row inmate Mumia Abu-Jamal.  Abu-Jama was sentenced to death for the 1981 murder of a Philadelphia police officer, but was granted a new hearing by the Third Circuit based on an improper jury form.  The court will revisit the issue, however, in light of this year's SCOTUS case Smith v. Spisak.  Read the AP's story here.

San Quentin Completes New Execution Center, One Week Ahead of Planned Execution:  San Francisco Chronicle Staff Writer Kevin Fagan reports on San Quentin's new lethal injection center, which cost $853,000 to build.  The center has three witness viewing rooms, from which every angle of the execution can be observed - providing much better visibility than was possible with the old poorly lighted gas chamber room.  The new execution center was completed yesterday, one week ahead of a planned execution.  Pictures of the center are available from the CA Department of Corrections here.  Albert Greenwood Brown is scheduled to die on September 29th, California's first execution in four years.  Brown was convicted of the rape and killing of a 15-year-old Riverside girl in 1980.

ACLU Sues Pittsburgh Police:  The Wall Street Journal reports the ACLU filed a 42-page lawsuit today against the Pittsburgh Police Department, alleging that police wrongly arrested 25 people at an anti-police brutality protest after last year's Group of 20 protest.  Referring to the incident as one of a "totalitarian regime," the ACLU's legal director likened the officers' conduct to incidents in Iran or Russia.  The lawsuit seeks, among other things, damages for "emotional distress." 

Low Security Expected for First Gitmo Detainee Trial:  The NYPD has not requested federal financial assistance for security in the upcoming terrorism trial against Ahmed Khalfan Ghailani, reports the Wall Street Journal.  While city police claim there will be some additional behind-the-scene measures taken and federal officials plan to beef up security in and around the federal courthouse, there will be no street closures or extra officers assigned to the area.  This stands in stark contrast to the $200 million a year NYPD requested for the proposed trial of Khalid Sheik Mohammed, who was at one point also set to be tried in the federal courthouse in NYC.  While counterterrorism officials have deemed Ghailani as one of the most dangerous terrorists in U.S. custody, an NYPD spokesman attributed the discrepancy in security costs to the fact that Ghailani "does not nearly have as high a profile as Khalid Sheik Mohammed and does not require the same security measures."

Georgia Execution Delayed:  The Georgia Supreme Court delayed tonight's scheduled execution of Brandon Rhode after he tried to kill himself in his cell.  Rhode's attorneys brought a new competency challenge, claiming the attempted suicide clearly proves Rhode is mentally incompetent and cannot constitutionally be executed.  Prison officials have re-scheduled the execution for this Friday.  The AP has this story.

SCOTUS Won't Block Execution of Virginia Woman:  The AP reports that in an order issued today, SCOTUS declined to halt the execution of Teresa Lewis, who is scheduled to die by lethal injection on Thursday.  Justices Ginsburg and Sotomayor voted to block the execution. Update: The order is here.

Just in from the California Court of Appeal, First District (which includes Marin Co. and the Big Q):

In accordance with our notification to the parties that we might do so, we will direct issuance of a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at pp. 177-180.) Petitioners' right to relief is obvious, a temporal urgency exists warranting acceleration of the normal process, and no useful purpose would be served by issuance of an alternative writ, further briefing and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241; see also Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240-1244.) Let a peremptory writ of mandate issue directing respondent superior court to vacate its August 31, 2010 order granting real party Sims's motion to enforce the injunction and ordering the CDCR to refrain from carrying out any lethal injections unless and until the court dissolves its permanent injunction, and to issue a new and different order denying real party Sims's motion to enforce the injunction and related requests. This decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(3).) The parties shall bear their own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B), (2).) * Before Simons, Acting P.J., Needham, J. and Bruiniers, J.

California Department of Corrections and Rehabilitation et al. v. The Superior Court of Marin County, A129540.  The unpublished opinion is here.

Plain English translation: (1) California can proceed with execution by the new lethal injection protocol; (2) the Superior Court judge who tried to block it has been chastised.

This doesn't resolve the federal case, of course, but no stay is in effect in that case, and the Supreme Court said in Baze v. Rees that it is error to grant a stay if the protocol is at least as good as the Kentucky protocol before the Court in that case, which California's clearly is.

Seventh Time's a Charm?:  The murder trial against Alan Ruff is set to begin today in Florida for the seventh time, reports the Sun Sentinel (FL).  Ruff is charged with killing his ex-girlfriend Traci Cooper, whom he allegedly stabbed 49 times on a Sunday morning in 2001.  The first and fourth trials were declared mistrials before the case reached jurors, and the second, third, and fifth ended in hung juries.  The state's sixth attempt was successful, and Ruff was convicted of first degree murder and sentenced to life.  That conviction was overturned, however, by an appellate court's ruling that the prosecutor improperly presented Ruff's ex-wife as a witness.  The prosecutor in the case remains confident that this seventh trial will result in a conviction, but Cooper's family members are frustrated with their difficulties in finding closure.

Georgia Death Row Inmate to be Executed Tomorrow:  A parole board last week denied clemency to Georgia death row inmate Brandon Rhode, who is scheduled to be executed tomorrow evening.  Rhode was convicted of the murders of 11-year-old Bryan Moss, 15-year-old Kristin Moss, and 37-year-old Steven Moss, whom he killed during a home burglary in 1998.  The Jones County News (GA) has this story.

Senator Graham on KSM:  The Blog of LegalTimes reports on Senator Lindsey Graham's (R-SC) promise to do "anything in [his] power to make sure Khlid Sheikh Mohammed never sees the inside of a federal court."  Senator Graham claims that after the November elections, he will introduce new legislation to boost antiterrorism efforts, including a statutory national security exception to the Miranda rule and an official procedure for holding suspected terrorists indefinitely.  

Military Judge Rejects Request to Keep Fort Hood Trial Closed:  Col. James Pohl, a military judge acting as the investigating officer in the case against Nidal Hasan, determined earlier today that Hasan's Article 32 hearing (the military equivalent of a grand jury hearing) will remain open to the public.  Hasan's attorneys sought to keep the hearing closed, claiming that allowing the public to hear testimony from the nearly three dozen expected witnesses will create even more pretrial hostility against their client.  Col. Pohl rejected the argument, stating that the public and the family of the 13 murder victims have a right to hear the testimony.  The AP has this story.  

Marijuana is Gateway Drug According to Government Report:  CBS News reports on a government report showing an increase in illegal drug use in 2009 as compared to 2008.  The survey reports that over 20% of young adults experimented with illegal drugs last year, "driven in large part by the use of marijuana."  "Drug czar" Gil Kerlikowske attributes this figure in part to the mixed messages the population is receiving about the harmless or medicinal effects of the drug - for the first time since 2002, less than half of young adults believe that marijuana is harmful.

Kentucky Execution Put on Hold:   The execution of Kentucky death row inmate Gregory Wilson will not take place tonight as planned, reports the Lexington Herald-Leader (KY).  Wilson was sentenced to death for the 1987 murder of Debbie Pooley, whom he kidnapped, raped, and strangled.  A state court judge put the execution on hold last week, based on concerns with the state's lethal-injection process and the possibility that Wilson is mentally retarded.  Prosecutors appealed to the state supreme court to lift the stay.  The story says, the injunction stays in place because defense attorneys did not respond. That seems odd.  In most states a higher court can act on a motion to lift a stay in these circumstances without a response if the defendant chooses not to file one.   

Tomorrow, September 17, is the anniversary of the day in 1787 when the Constitutional Convention officially submitted its proposed constitution to the people of the United States. The Constitution was a huge step forward from the state of government up to that point. Its division of power between the states and the federal government and between the branches of the federal government was a structure that would provide a government both robust enough to meet the legitimate needs yet with enough built-in checks and balances to reduce abuse of power to a lower level than any other method tried before or since.

Yet for all the rhapsodizing one hears about the "perfect Constitution," it was far from perfect.  The Constitution was the product of political compromise.  Many of its original defects have been corrected by subsequent amendments, but some remain.

The limitation of Congress to enumerated powers does not have enough teeth.  In today's WSJ, Randy Barnett and William Howell propose a "repeal amendment" to allow 2/3 of the states to repeal an Act of Congress by resolution, an idea harkening back to the Virginia and Kentucky Resolutions drafted by Madison and Jefferson in reaction to the Alien and Sedition Acts of the Adams Administration.

Another defect, and in my view the more dangerous one, is the lack of an effective check against the Supreme Court "amend[ing] the Constitution by interpretation," as Justice Black put it. The Framers correctly required a very high degree of national consensus to affirmatively change the supreme law by constitutional amendment under Article V.  It takes 2/3 of both houses of Congress and 3/4 of the states. Yet five people can amend the Constitution to mean something it never meant before, and then we need that overwhelming consensus to adopt an amendment simply to put the Constitution back the way it was.

I suggest that whenever (1) a statute and a provision of the Constitution have both been on the books for 10 years or more, (2) within the first 10 years after the enactment of the later of the two, no appellate court in a published decision has held them to be in conflict, and (3) the Supreme Court then finds a conflict or denies review of a lower court decision so holding, the executive may appeal that decision to the Senate. By majority vote, the Senate may decide that the correct interpretation of the constitutional provision does not conflict with the statute and return the case to the court for a decision consistent with that interpretation.

This procedure would have little impact on legitimate judicial review of statutes.  If a statute is indeed in conflict with a constitutional provision, the conflict will be apparent right off the bat.  It would dampen the rewriting of long-ago adopted constitutional provisions to strike down long-standing statutes with interpretations that did not occur to the people who wrote and ratified the constitutional provisions. In Graham v. Florida, the Supreme Court discovered that punishments authorized by statutes of the federal government and 37 states now violate a 219-year-old constitutional amendment that they never violated before.  We need to have someplace to appeal such decisions.

Many of you will know Professor Doug Berman of Sentencing Law and Policy.  I had the opportunity to debate Doug this week on the issue of drug legalization.  The debate occurred at Ohio State Law School, where Doug is the William B. Saxbe Professor of Law and  --  no less  --  has his picture at the front entrance of the auditorium where the debate was held.  The event is posted at the site below.  Since both Doug and I like to talk, the debate, including audience questions, went on for over an hour.  It is presented in six segments, starting with this one.

Doug went first.  I show up in the first segment at about 13:20.  You can see for yourself, but I found Doug to be a friendly and gracious man and an innovative thinker.  He's a liberal and I'm a conservative, but I believe both of us came off as reasonably thoughtful.  He certainly did, I'm sure of that.

Thanks to the Ohio State Federalist Society and its President, Aman Sharma, for hosting the event.