Results matching “first”

Update: Jennifer Dobner has this story for AP.

As Utah prepares to dispatch murderer Ronnie Lee Gardner "old school," we find support of sorts for the firing squad in unexpected places. Margot Sanger-Katz writes in Slate, "This may sound gory, but the limited body of research on death penalty methods suggests that the firing squad is actually a pretty good way to go....  Deborah Denno, a professor at Fordham Law School who has studied execution methods for nearly two decades, said she'd pick the firing squad if offered Gardner's choice between the two methods."

"All of which raises the question: Why did the states drop firing squads in the first place? Death penalty scholars say that legislators tend to like lethal injection because it appears dignified and medical."

Huh? What scholar said that? Legislatures "preferred" lethal injection because, at the time, it was the way to shut down the distracting, delaying method-of-execution controversy and litigation. Justice Stevens wrote in his dissent in the Robert Alton Harris case that the gas chamber's pain was unnecessary because all the experts said lethal injection was so much better.  Okay, said death penalty supporters in the legislature. If that's what it takes to shut down the litigation, we will do that.

It worked. For a while.

More recently, opponents have claimed that the three-drug method creates an unnecessary risk of pain -- unnecessary because the one-drug method is so much better. Ohio said okay, we'll use the one-drug method. The "nonpartisan" DPIC immediately started screeching that Ohio was experimenting with untested methods on humans. This is the Roseanne Roseannadanna method of attacking the death penalty.

Here is one from the Cases You Have to Look Up Just for the Name file.

Allah has filed an original habeas corpus petition in the U.S. Supreme Court, In re Allah, No. 09-11321. Allah is appearing pro se and gives his address as Coyote Ridge Correctional Center in the State of Washington.

The first question that strikes me is whether Allah has a "corpus" that one can have custody of. If so, why does He need the assistance of mere mortals to obtain His liberty?  Also, Allah has moved for leave to appear in forma pauperis. Does that mean Allah is indigent? I did not think so.

The Supreme Court today granted certiorari in the California death penalty case of Cullen v. Pinholster, No. 09-1088. AP story is here. The Ninth Circuit en banc opinion is here. The first three paragraphs of Chief Judge Kozinski's dissent are after the jump.

On the Supreme Court's orders list for today is this order in Schwarzenegger v. Plata, No. 09-1233:

Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.

Lyle Denniston at SCOTUSblog interprets this order as meaning that "the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order."

I do not agree. [Update: Lyle has revised his post.] I think the jurisdictional question that the Court deferred is whether the Supreme Court has jurisdiction to review the order of a single-judge district court calling for the three-judge court to be convened. The Governator tried to appeal that order to the Ninth Circuit when it was issued, and the prisoners moved to dismiss on the ground the Ninth did not have jurisdiction.  The Ninth's docket in case 07-16361 says (emphasis added):

Order filed: The motions to exceed the page limit for aples' opposition and aplts' reply are granted. Aples' opposed motion to dismiss these appeals for lack of jurisdiction is granted....CITE. The district court orders from which aplts seek to appeal can be effectively reviewed following the entry of a final order by the three−judge district court. All other pending motions are denied as moot. DISMISSED.

The appeal referred to in the italicized language is the appeal now before the Supreme Court. In other words, the Ninth Circuit ruled that the Supreme Court would have jurisdiction on the motion of the very people now denying the Court has jurisdiction.

Counsel for appellees win the chutzpah award of the week.

One of the myths of pot legalization (first for so-called medical purposes, then for any purpose) is that life gets better after it's done.

Well, not exactly.  Thus today's story from the Associated Press:

HELENA, Mont. (AP) -- Montana Gov. Brian Schweitzer says legalization of medical marijuana has not worked out as voters planned, and agrees the state needs a legislative fix.

Schweitzer says he is watching proposals as they come forward and expects lawmakers, convening in January, will have a lot of options. The governor says one of his agencies may pitch its own plan.

Schweitzer says one part of the solution could be to require genetic branding of medical marijuana, which would allow police to trace illegal pot to see if it originated from a caregiver selling medical marijuana.

The medical marijuana law has become one of the hottest topics facing lawmakers as the state deals with an explosion in the number of patients, caregivers and growers.

Santa Clara Law Dean Gerald Uelmen and I rarely agree, but I do recommend his article in the current issue of California Lawyer.

The full title of the article is "The Wit, Wisdom, and Worthlessness of Law Reviews," but I did not see any evidence of the first two in the article.

The main problem is too much theory and not enough practice.

And when [Cal. Supreme supervising staff attorney Jake] Dear did find a useful article, it was just as likely to be authored by a student as by a law professor. This left him with the distinct impression that "many law professors do not deign to write anything of practical use, but instead leave such pedestrian matters for students."

Is there dynamite in Elena Kagan's papers from the Clinton White House? The timing of the release suggests there is. Julie Hirschfeld Davis reports for AP (emphasis added):

Supreme Court nominee Elena Kagan's paper trail is about to get a lot longer.

The William J. Clinton Presidential Library is scheduled Friday afternoon to release the first batch of a 160,000-page trove of records from Kagan's service in the former president's White House. The National Archives announced it would post 46,500 pages on the library's website.

As everyone who has been around politics any length of time knows, Friday afternoon is when you release damaging information that you can't spike altogether. The information is reported in the weekend papers, when most people are out fishing or whatever and not really paying attention to politics. By Monday, it is old news, and old news is no news.

We do have Ms. Kagan's earlier work as a clerk for Thurgood Marshall. I will link to that in a separate post.

Anyone conversant with the Supreme Court's death penalty jurisprudence is familiar  --  too familiar  --  with the phrase, "evolving standards of decency."  It first appeared in a 1958 citizenship case, Trop v. Dulles, written by Chief Justice Earl Warren.  Justice Brennan, being no dummy, quickly saw its potential as a way of equating "decency" with "abolition of capital punishment," and, more broadly, of equating fidelity to the written Constitution with primitivism.

 

George Will now delves more deeply into the origin of this sort of thinking.  He links "evolving standards of decency" to the broader theme of Wilsonian progressivism.  I had thought that invoking the word "progressivism" was merely a tool to allow our opponents to call themselves anything other than "liberal," a term the public has figured out means bad news for the country.  Either that, or a tool the Left fashioned to simply expropriate the idea that they represent "progress," and everybody else is a troglodyte.

 

Will has a deeper understanding.  As he explains, "The name 'progressivism' implies criticism of the Founding, which we leave behind as we make progress. And the name is tautological: History is progressive because progress is defined as whatever History produces. History guarantees what the Supreme Court has called "evolving standards of decency that mark the progress of a maturing society."  

Will's essay is short and very much worth the read.

Jill Zeman Bleed reports for AP: "Researchers at the William J. Clinton Presidential Library are working overtime to produce more than 160,000 pages of documents -- some of them possibly holding clues to the record of Supreme Court nominee Elena Kagan.... The nation's top archivist has said he hopes to start releasing documents by June 4."

We at CJLF are particularly interested in knowing whether Ms. Kagan had anything to say on the habeas reform portion Antiterrorism and Effective Death Penalty Act of 1996. More particularly, what was her input, if any, on President Clinton's preposterous signing statement to the effect that the deference standard did not really change anything and would be unconstitutional if it did. The first of these two propositions has been expressly rejected by the Supreme Court, and the second has been implicitly rejected, but a nominee who actually believed the second would be quite dangerous.

Non sequitur of the day award goes to Senator Patrick Leahy, regarding the schedule:

Committee Chairman Patrick Leahy, D-Vt., pointed out when he set the hearing schedule that the Senate had reviewed Kagan's credentials a year earlier when it confirmed her as solicitor general, the government's top lawyer in arguments before the Supreme Court.

"There is no reason to unduly delay consideration of this nomination," said Leahy.

As the distinguished gentleman from Vermont knows very well, there is a world of difference between the "at will" office of SG and a lifetime appointment to the Supreme Court.

Ben Doherty reports for the Guardian (London) from Bangkok:

A Briton facing jail, or even the possibility of a death sentence, for his alleged part in redshirt rioting in Bangkok last week, broke down in tears in court today, saying his incarceration is distressing his elderly mother.

Yesterday, the Supreme Court granted certiorari in the postconviction DNA testing case of Skinner v. Switzer. Mrs. Switzer is the DA for the 31st Judicial District in the Texas Panhandle. ConnectAmarillo.com has this article with a letter from counsel for Mrs. Switzer. It is copied in full after the jump.

In Graham v. Florida, the Supreme Court was not satisfied with the information provided by the parties regarding how many persons are in prison around the country for life-without-parole sentences imposed for nonhomicide crimes. "Florida further criticizes this study because the authors were unable to obtain complete information on some States and because the study was not peer reviewed. See Brief for Respondent 40. The State does not, however, provide any data of its own. Although in the first instance it is for the litigants to provide data to aid the Court, we have been able to supplement the study's findings."

The supplemental information is letters from correctional authorities in response to requests from the Court's librarians. In the opinion, they are designated "available in Clerk of Court's case file." Well, they really should be on the Internet. The Clerk has graciously provided them to CJLF, and here they are.

When the case of United States v. Marcus was before the Second Circuit, Judge Sotomayor wrote in a concurring opinion:

Judge Wesley and I concur with the per curiam opinion because its conclusions are compelled by the current law of this circuit. We write separately because we believe this Court's precedent with regard to plain-error review of ex post facto violations does not fully align with the principles inhering in the Supreme Court's recent applications of plain-error review.

Right, said the Supreme Court today, 7-1 (Stevens dissenting, Sotomayor recused).

"Marcus was convicted of engaging in forced labor and sex trafficking between January 1999 and October 2001. On appeal, he pointed out for the first time that the federal statutes he violated did not become law until October 2000." (Emphasis added.)

Not exactly a great moment in lawyering on the part of defense counsel. Of course, if counsel had pointed this out before trial, it likely would have been easy for the prosecution to get a conviction anyway by limiting its evidence to post-10/00 acts. So, should defendant get the windfall of a reversal for a problem that is as much his fault as the prosecution's?

The Second Circuit's "any possibility, no matter how unlikely" standard, however, would require finding a "plain error" in a case where the evidence supporting a conviction consisted of, say, a few days of preenactment conduct along with several continuous years of identical postenactment conduct. Given the tiny risk that the jury would have based its conviction upon those few preenactment days alone, a refusal to recognize such an error as a "plain error" (and to set aside the verdict) is most unlikely to cast serious doubt on the "fairness," "integrity," or "public reputation" of the judicial system.

The disposition is another do-over.

The Supreme Court dismissed as improvidently granted the case of Robertson v. United States ex rel. Watson, the case on the victim being able to prosecute criminally a violation of a domestic violence restraining order. When the case first came up, CJLF decided not to file an amicus brief because quirks in the case led us to believe it would not be as significant as it first appeared. Apparently the Court belatedly came to the same conclusion.

Chief Justice Roberts, joined by Justices Scalia, Kennedy, and Sotomayor, dissent. I do not expect to see that lineup very often.

Update: More on this case here.

Today's News Scan notes this article by Rick Cleveland in the Jackson, Mississippi Clarion-Ledger regarding the execution of Paul Woodward in Mississippi. The whole article is well worth reading. Here is how it ends:

I have repeatedly criticized our terrorism policy as incoherent, see e.g.,  here,  here, and here.  I must now confess error.  It's not so much incoherent as flat-out chaotic.

This afternoon we learn that the Director of National Intelligence, Dennis Blair, is, after a very brief stay on the job, on the way out, probably in 24 hours. MSNBC says:

Blair's tenure as the overseer of the nation's intelligence agencies was marked by turf battles with CIA  Director Leon Panetta and controversial public comments in the wake of the Christmas Day airliner bombing attempt.

Blair's resignation comes in the wake of a scathing Senate Intelligence Committee report regarding intelligence failures and the Christmas Day bombing attempt.  That report was highly critical of the DNI's National Counterrorism Center.

The evidence of chaos is everywhere.  This is not going to end happily.

The title of this post is the caption for a George Will article in my daily WaPo opinion email. On the WaPo website, the article is titled, "Slow learners at the 9th Circuit."

The 9th U.S. Circuit Court of Appeals is a stimulus package for the Supreme Court, which would rather not have one. The 9th Circuit, often in error but never in doubt, provides the Supreme Court with steady work: Over the past half-century, the 9th has been reversed almost 11 times per Supreme Court term, more than any other circuit court. This week, the Supreme Court should spank it again and ask: Is it too much to ask that you pay some attention to our precedents?

The case that draws Will's ire has to do with school choice, but the general point is even more valid as applied to criminal law. So, the first priority in dealing with this rogue court is to fill vacancies with people who will bring it back toward the center.

President Obama apparently didn't get the memo. Nor did any of the Democrats on the Senate Judiciary Committee.

"Holder Hasn't Read Arizona Law he Criticized":  Stephen Dinan of The Washington Times, reports that Attorney General Eric H. Holder Jr. admitted he had not read Arizona's new immigration law he criticized last weekend, and was only going by what by what he read in newspapers and saw on television.  "I've just expressed concerns on the basis of what I've heard about the law.  But I'm not in position to say at this point, not having read the law, not having the chance to interact with people are doing the review, exactly what my position is," Holder told the House Judiciary Committee.  This past weekend Holder told NBC's "Meet the Press" that the Arizona law "has the possibility of leading to racial profiling" and is "unfortunate."  He also questioned whether the law was unconstitutional because it tried to assume powers that are reserved for the federal government.  Texas Republican, Ted Poe, told the attorney general, "It's hard for me to understand how you would have concerns about something being unconstitutional if you haven't even read the law."  At President Obama's request, Holder is conducting a review of the law to see if the federal government should challenge it in court.  He plans to have read the law by the time his staff briefs him on their conclusions.

Modifying Miranda for Terrorists:  Charles Krauthammer, has a Washington Post editorial, suggesting that the 1984 "public safety" exception to issuing Miranda warnings (New York v. Quarles) be modified for terrorists such as confessed Times Square bomber Faisal Shahzad.  Krauthammer stresses the importance of not Mirandizing terrorists until an interrogation is complete. Surprisingly, Attorney General Eric Holder is embracing the anti-terrorism measure.  Holder said this on ABC: "If we are going to have a system that is capable of dealing in a public safety context with this new threat (international terrorism), I think we have to give serious consideration to at least modifying that public safety exception."  Holder further explains that the public safety exception was originally based on a robbery back in '80s, but now we're dealing with international terrorists, which is why we need to be "perhaps modifying the rules that interrogators have" to be "more consistent with the threat that we now face."  Krauthammer insists that terrorists be treated as enemy combatants, rather than as ordinary criminals, and the only way to do that is by modifying Miranda.

Court Claim's Governor Distorted Evidence in Parole Case:    SF Chronicle writer Bob Egelko reports on a state appeals court ruling claiming Gov. Arnold Schwarzenegger distorted the evidence to justify his decision to deny the parole of a San Francisco murderer Joseph Calderon, who killed a Mission District security guard in 1993.  Wednesday's ruling by the First District Court of Appeals in San  Francisco reinstated the Board of Parole Hearings' June 2008 decision granting parole to Calderon.  The parole board's 2008 decision parole was based on acceptance of responsibility for his crimes, good behaved  in prison, participation in treatment, and favorable mental health evaluations.  The board also noted that Calderon dropped out his gang many years ago.  The court alleged that Governor Schwarzenegger lacked evidence to support his denial of parole.  In 2008, the governor overturned board grants of parole nearly 60% of the time, and in 2009, more than 70% of the time.  The Governor based his decision on Calderon's lack of "full insight" into his crimes, a sporadic participation in rehabilitation programs and continued criminal behavior in prison. The Governor can appeal the District Court's ruling to the California Supreme Court.

Yesterday I argued that recent events have brought into focus what we should have known before:  Miranda is a period piece.  It was in step with the liberal excesses of the 1960's, but has become an anachronism, and a dangerous one at that.  Over the past 44 years, its benefits in curbing the sometimes abusive police behavior of its time have dimmed, while its costs, in inviting dangerous suspects to stonewall, have increased.  Nowhere is this more obvious than in our current conundrums about when or whether terror suspects like the Times Square bomber should be given the famous warnings or, if not, how long the warnings should be delayed.

Today former Attorney General Michael Mukasey chimes in.  Here are the first paragraphs of his piece this morning in the Wall Street Journal:

 

Some good news from the attempted car bombing in Times Square on May 1 is that--at the relatively small cost of disappointment to Broadway theater-goers--it teaches valuable lessons to help deal with Islamist terrorism. The bad news is that those lessons should already have been learned.

One such lesson has to do with intelligence gathering. Because our enemies in this struggle do not occupy a particular country or location, intelligence is our only tool for frustrating their plans and locating and targeting their leaders. But as was the case with Umar Faruk Abdulmutallab, who tried to detonate a bomb aboard an airplane over Detroit last Christmas Day, principal emphasis was placed on assuring that any statements Faisal Shahzad made could be used against him rather than simply designating him an unlawful enemy combatant and assuring that we obtained and exploited any information he had.

On Sunday, Attorney General Eric Holder said that in regard to terrorism investigations he supports "modifying" the Miranda law that requires law enforcement officials to inform suspects of their rights to silence and counsel. But his approach--extension of the "public safety exemption" to terror investigations--is both parsimonious and problematic. The public safety exemption allows a delay in Miranda warnings until an imminent threat to public safety--e.g., a loaded gun somewhere in a public place that might be found by a child--has been neutralized. In terror cases it is impossible to determine when all necessary intelligence, which in any event might not relate to an imminent threat, has been learned.

 

Read Mukasey's entire essay here.

Heritage Foundation has this post on the Kagan nomination, including this statement by former Attorney General (and CJLF advisor) Edwin Meese:

First and foremost, any nominee to a lifetime appointment to the United States Supreme Court must demonstrate a thorough fidelity to apply the Constitution as it was written, rather than as they would like to re-write it. Given Solicitor General Kagan's complete lack of judicial experience, and, for that matter, very limited litigation experience, Senators must not be rushed in their deliberative process. Because they have no prior judicial opinions to look to, Senators must conduct a more searching inquiry to determine if Kagan will decide cases based upon what is required by the Constitution as it is actually written, or whether she will rule based upon her own policy preferences.

Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the "despised and disadvantaged." The problem with this view--which sounds remarkably similar to President Obama's frequent appeals to judges ruling on grounds other than law-is that it allows judges to favor whichever particular client they view as "despised and disadvantaged." The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.

Our national debate now features the clash between two urgent forces.  One is the need to obtain timely intelligence to prevent mass murder at the hands of terrorists.  Three times in President Obama's brief tenure, there have been terrorist strikes on American soil: the Hassan massacre at Ft. Hood, the Christmas Day airline bomber in Detroit, and the Times Square bomber.  In the first of these, 13 people met their fate.  In the latter two, we got lucky.  But luck is no substitute for a national security policy.  And luck doesn't hold forever.

The second force, which we created, is the force of legal precedent that essentially invites captured killers and would-be killers  --  terrorists and others  --  to clam up.  This is the 1966 Miranda decision.  Miranda requires the police to tell suspects in custody that they have the right to remain silent and to the services of an attorney during questioning.  This is a virtual invitation to stonewall.  Every now and again, the suspect will decide to talk anyway.  But banking on that serendipity is foolhardy.  If the authorities violate Miranda, the suspect's statement is automatically suppressed, even if voluntarily given, seriously complicating the chances of obtaining a deserved conviction.

In recent days, the Attorney General has pointed out that there is an "emergency exception" to the Miranda rule, one that allows the police to question a suspect when public safety is in immediate danger.   Apparently, the roughly three hour-long unMirandized questioning of the Times Square bomber was undertaken in the hope that the courts will see fit to apply this exception.  Maybe they will, but it's hardly a sure thing.  In the case in which the exception was created, New York v. Quarles, 467 U.S. 649 (1984),  the unMirandized questioning lasted less than a minute.  Again, the Administration appears to be banking on a combination of (1) hope and (2) the good sense of people more serious than it is.

That is irresponsible as a matter of security policy and mistaken as a matter of Constitutional law.  Following the break, I describe what needs to be done. 

Numerous news outlets are reporting that President Obama has chosen Solicitor General Elena Kagan, 50, to replace retiring Justice John Paul Stevens.

I don't know that much about Kagan and have never met her.  What little I do know is this:  She is said to have a relatively high regard for executive power (perhaps related to her service in Clinton's White House Counsel's Office); she vociferously opposed military recruitment at Harvard, where she was Dean of the Law School, on the stated grounds that President Clinton's "don't-ask-don't-tell" policy towards gays was unfair; she is regarded by some conservatives as having a relatively open mind and taking law more-or-less seriously; and she has been rumored to be gay herself, a rumor denied by the White House and for which there is no evidence of which I am aware.

Ms. Kagan has no judicial experience and very little courtroom experience of any kind.  She is the first non-judge to be nominated since Richard Nixon nominated Powell and Rehnquist.  She would be the fourth woman on the Court.  There may be significant recusal issues in the early part of her tenure, given her involvement in cases in which the United States is a party.  If she has a view of criminal law, I don't know about it.

Off the seat of my pants, I would guess she'll be a standard-issue, Ivy League liberal no worse, or not much worse, than Justice Stevens.  If she says anything enlightening at her confirmation hearing, I'll be flabbergasted.

My astute friend and former Supreme Court law clerk Ed Whelan has written extensively, and critically, about Ms. Kagan.  See http://by110w.bay110.mail.live.com/default.aspx?wa=wsignin1.0.

UPDATE:  Scott Johnson has more on Kagan here, http://www.powerlineblog.com/archives/2010/05/026264.php.  Scott reminds us that Kagan did sign the amicus brief challenging the Solomon Amendment,  which was designed by Congress to deter universities receiving federal funds from barring military recuiters. The brief's main argument might charitably be characterized as absurd, accountng for its 8-0 rejection by the Supreme Court (Justice Alito did not participate (hat tip to federalist)).  Ordinarily, an amicus brief would be looked upon as being filed in a representative capacity, but it seems clear that this one reflected Kagan's personal beliefs.

Ed Whelan has added thoughts on Kagan, http://bench.nationalreview.com/post/?q=NzlkMzU1ODg0N2VmYWEwN2E0YzFmOTQwNTdkYjY1MjA=.   Particularly noteworthy are Ed's observations that Kagan's nomination is in jarring contrast to the President's populist rhetoric about wanting someone with "experience in everyday life," whatever that might mean.  As a former White House aide and Harvard Dean, Kagan might have many qualities, but being the person next to you in the grocery store line is not one of them.

Second, Ed points out that some of Kagan's little "real world" experience in the law was as a paid adviser to none other than Goldman Sachs.  That would probably make a conservative nominee radioactive, but I doubt it will hurt Kagan.

My last observation for now is that, in one way, the White House played this beautifully.  They leaked this on Friday, in all likelihood by way of a trial balloon to see if any skeletons in the closet would emerge over the weekend.  Apparently none did.  Second, the White House had previously leaked lists mentioning somewhat edgier candidates like Sidney Thomas, Harold Koh and Deval Patrick.  I suspect this was designed to make moderates and conservatives breathe a "sigh of relief" that it is "only" Elena Kagan, thus deflating the potential intensity of resistance to her. 

Readers here generally are not fooled by the ideological chant (see, e.g., any three days' worth of comments on Sentencing Law and Policy), that prosecutions take root in the desire to scourge the lower class, and/or are driven by racism, hate and revenge.

We also see the occasional charge that this prosecution or that was brought for political reasons.  Usually, this is so much defense lawyer baloney.  Honesty compels me to acknowledge, however, that  every now and again, the charge is true, e.g., the Duke non-rape scandal.

Thus I bring you the following from an Associated Press story on April 21,  http://www.chicagobreakingnews.com/blog/

 

BAGHDAD -- Opening arguments began today in the court-martial of a Navy SEAL from Blue Island who is accused in the abuse of an Iraqi prisoner suspected of masterminding the killings in 2004 of four U.S. private security contractors.

Petty Officer 1st Class Julio Huertas, wearing his blue Navy uniform, appeared in a military courtroom at the Victory Base Camp outside Baghdad to answer charges of dereliction of duty and impeding an official investigation. He has pleaded not guilty.

Huertas, 28, is the first of three Navy SEALs to go on trial in connection with the alleged assault of the Iraqi prisoner, Ahmed Hashim Abed.

Abed was arrested last September on charges of masterminding the grisly killings of four Blackwater security guards whose burned corpses were dragged through the Iraqi city of Fallujah west of Baghdad. Two of the guards' bodies were hung from a bridge over the Euphrates River in the insurgent attack.

 

Jess Bravin has this informative but depressing story regarding how judges get on the Supreme Court shortlist. Having former clerks in key places in the Administration is a significant factor.

"It's not what you know; it's who you know," cynics have long maintained. The depressing reality is that there is a lot of truth in that statement.

I was genuinely astonished when the news broke that Ninth Circuit Judge Sidney Thomas was under consideration. I could not think of a single good reason why. "Geographical diversity" has been mentioned, but a very large number of judges fit that bill. Thomas's travesty of an opinion in the Summerlin case, discussed here, makes him an easy political target and makes untenable any claim that he is a great intellect. So how did he make it to the very select list of persons to be personally interviewed by the President? According to Bravin, "Yet although he is a lifelong Montanan, he has his own connection on Pennsylvania Avenue: Former clerk Ian Bassin now works in the White House counsel's office."

The influence of former clerks in this process is undesirable for multiple reasons. First, it gives an advantage to federal appellate judges as opposed to other candidates, especially state supreme court judges. Many states wisely have their appellate judges assisted by career staff research attorneys rather than wet-behind-the-ears recent graduates. Even for those that do emulate the federal system, the state clerkship is less prestigious and thus its alumni are less likely to land the Administration positions from which they can lobby for their former bosses. The Supreme Court presently has too many former federal judges (9) and too few former state judges (0), and it doesn't look like this is going to get better any time soon.

Second, even among federal circuit judges, the fact that one judge's clerk rather than another's landed the key administration spot is irrelevant to merit. It simply ought not be a factor. But apparently it is.

NYC Bomb Suspect Nearly Escapes for Dubai:  Scott Shane of The New York Times reported on the security lapses that allowed the Times Square terrorist suspect, Faisal Shahzad, to board a plane for Dubai nearly 24 hours after investigators learned that he might be connected to the attempted bombing.  Though Shahzad was apprehended before he could escape, the government and the Emirates airline had two significant lapses in their security response.  First, an FBI surveillance team lost track of Shahzad, which allowed him to get to the airport.  Second, workers at Emirates failed to act on an electronic message notifying all carriers to check the no-fly list for Shahzad's name and passport number.  Ultimately Shahzad was able to make a flight reservation and pay for his ticket in cash several hours before his departure.  This raised concerns and questions about why and how this suspect was allowed to board the plane.  Officials say changes in security procedures may limit the chances of a repeat failure to check an updated no-fly list.  The TSA is taking control over checking passenger manifests against the no-fly list under its Secure Flight Program.  Mayor Michael Bloomberg was reluctant to criticize those in charge of airport security, added: "Clearly the guy wasn't on the plane and shouldn't have been.  We got lucky."

Who is this NYC Terrorist Suspect?:  The New York Times published an article by Mark Mazzetti, Sabrina Tavernise, and William Rashbaum that provided an inside look at Faisal Shahzad, Times Square suspected terrorist.  Shahzad, 30-year-old naturalized U.S. citizen from Pakistan, lived in Bridgeport Connecticut.  He was charged Tuesday with several terrorism related crimes, including attempted use of WMD.  Also, 7-8 people have been arrested in Pakistan that may have been connected to the bomb plot or Shahzad.  Shahzad has provided investigators with valuable intelligence.  He's admitted to driving the car bomb into Times Square and receiving bomb-making training in Pakistan.  Shahzad spent five months last year in Pakistan and returned early February of this year.  Investigators are looking into possible connections with the Pakistani Taliban, although Shahzad has admitted to acting alone.  Shahzad has waived his right to a speedy arraignment which suggests he is continuing to provide valuable information to investigators.  

Reader federalist sent me this story, which has now made its way to Sentencing Law and Policy.  Here are the first two paragraphs, and I swear I'm not making this up:

By the time the trumpets sound, the candles have been lit and the salmon platters garnished. Harald V, King of Norway, enters the room, and 200 guests stand to greet him. Then a chorus of 30 men and women, each wearing a blue police uniform, launches into a spirited rendition of "We Are the World." This isn't cabaret night at Oslo's Royal Palace. It's a gala to inaugurate Halden Fengsel, Norway's newest prison.

Ten years and 1.5 billion Norwegian kroner ($252 million) in the making, Halden is spread over 75 acres (30 hectares) of gently sloping forest in southeastern Norway. The facility boasts amenities like a sound studio, jogging trails and a freestanding two-bedroom house where inmates can host their families during overnight visits. Unlike many American prisons, the air isn't tinged with the smell of sweat and urine. Instead, the scent of orange sorbet emanates from the "kitchen laboratory" where inmates take cooking courses. "In the Norwegian prison system, there's a focus on human rights and respect," says Are Hoidal, the prison's governor. "We don't see any of this as unusual."

All I can say is, if orange sorbet is a human right, can chocolate mousse be far behind?

A University of Virginia hockey player was killed by her ex-boyfriend in a fit of rage.  The AP story, carried here, relates this:

CHARLOTTESVILLE, Va. - Describing a scene of violent rage, the Virginia lacrosse player accused of killing a member of the women's team told police he kicked in her bedroom door, shook her, and her head repeatedly hit the wall, according to a court document....

An affidavit for a search warrant said two people found Love, of Cockeysville, Md., face down in her bedroom early Monday morning, with a pool of blood on her pillow. There was a large bruise on her face and one eye was swollen shut, police said, and she was pronounced dead at the scene after attempts to revive her.

 The suspect, 22-year-old George Huguely, of Chevy Chase, Md., has been arrested and charged with first-degree murder in the death of Yeardly Love, also 22.

The article includes this paragraph describing the response of Mr. Huguely's lawyer:

Huguely...appeared via videoconference from Albemarle-Charlottesville Regional Jail, wearing a gray-striped uniform. Afterward, his lawyer, Francis Lawrence, told reporters that Love's "death was not intended, but an accident with a tragic outcome."

So your girlfriend breaks up with you, your response is to kick down her door and bash her head in, and this is "an accident."

Seriously, could someone here tell me how defense lawyers manage this stuff?

"17 Caught in Search for Arizona Deputy's Attackers": Bob Christie of AP reports on the search for drug smugglers who shot and wounded an Arizona sheriff's deputy in a remote desert area south of Phoenix.  Authorities captured 17 suspected illegal immigrants Saturday, including three who may have been involved in the shooting.  Deputy Louie Puroll, 53, was patrolling near Interstate 8 when he discovered a stash of marijuana bales and five suspected smugglers.  At least 30 shots were exchanged between the deputy and the suspected drug smugglers in an area that is a well-known smuggling corridor for drugs and illegal immigrants.  The shooting came amid a growing national debate over Arizona's new law on illegal immigrants.  Arizona recently passed the immigration law due to increasing concerns about violence, drug smugglers and illegal immigration drop houses.  "The unsecured border poses a real threat and immediate danger," said U.S. Rep., Ann Kirkpatrick, a Democrat whose district includes part of the county where the recent shooting occurred. "The stakes are higher," sheriff's Lt. Tamatha Villar said.  "As the violence increases on the border, as cartels continue to fight over land, and ownership of rights of land to move their drugs and people through, we're going to continue to see these and we're going to continue to see the violence escalate if we don't take swift action."

"California Loses Fight to End Prison Oversight":  AP has this article regarding the legal battle to end federal oversight of California's prison health care system.  The Schwarzenegger administration lost the fight on Friday after a three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled that a federal judge can persist with a court-appointed receiver to improve inmate medical care, saying it was the least intrusive way to ensure prisoners' rights.  The appeals court also denied the administration's request to stop the receiver's construction plans to increase the number of medical beds by 10,000, costing about $6 billion.  Because of the increased costs, California has sought to end federal oversight of the state's prison system.  The receiver has since responded with a new proposal to build two prison hospitals to house 3,400 inmates at a cost of $1.9 billion.  Rachel Arrezola, a spokeswoman for Gov. Arnold Schwarzenegger, said the state will appeal the ruling to a larger panel of the appeals court in San Francisco.

Group to Punish Anesthesiologists who Play Role in Lethal Injections:  Washington Post Staff Writer Bob Stein reports on the American Board of Anesthesiologists' decision to revoke the certification of any member who participates in executing a murderer by lethal injection.  Revocation of certification would prevent an anesthesiologist from working in most hospitals.  The American Medical Association has long opposed doctor involvement, but the anesthesiologists' group is the first to harshly penalize a health-care worker for abetting lethal injections.  So far, no doctors have been disciplined, but the announcement will undoubtedly have a chilling effect.  Many argue that doctors are not needed during the procedures, prison administrators should be allowed to administer the lethal injection themselves.  "Some think it's an effective argument to say you need a doctor to do this," said Michael Rushford, President of the CJLF.  "You don't need a doctor to do this.  It's a counterfeit argument." For a contrary opinion on the medical ethics issue, see the article by Michael Keane, discussed here.

The First Circuit felon voting case, Simmons v. Galvin, was on the conference list for Friday. On Wednesday, the Ninth Circuit undercut the certiorari petition by taking its own felon voting case en banc, thereby eliminating (at least for now) the "circuit split" that was the best argument for the Supreme Court to take up the issue. See prior post.

In today's orders list, the Court asked for the views of the Solicitor General on the question. That kicks the can down the road for the Court, but it puts SG Kagan in a tight spot. If she is the nominee to succeed Justice Stevens, will she be submitting her opinion on this political hot potato right in the middle of her confirmation hearings? Ouch.

Ben Feller reports for AP:

President Barack Obama on Thursday interviewed federal appeals court Judge Sidney Thomas of Montana for an opening on the Supreme Court, a person familiar with the conversation told The Associated Press.

The roughly hour-long session at the White House was the first known formal interview that Obama has conducted for the upcoming vacancy on the high court. It is not clear whether Obama has interviewed other candidates in person.

Now that's depressing. The White House should be aware by now that Thomas's opinion in the Summerlin case is both ludicrously wrong and pro-murderer, making an easy target for Republicans to attack and a virtually impossible one for Democrats to defend. (See prior post.)

Do they not know, or do they not care?

Feller refers to Thomas as "well respected within legal circles." I  do not know a single prosecutor or victims' advocate within the Ninth Circuit who would agree with that. I guess he must be talking with other "circles."