Results matching “first”

What happens when Gitmo detainees are released?  Those enraptured with process over consequences will tell you that "the finest traditions of American law have been honored."

Here's what they don't tell you (courtesy of Fox News):

Obama Administration Gets Its First Gitmo Recidivist

A former Guantanamo detainee transferred from the detention facility to Afghanistan on Dec. 19, 2009, has already returned to the Taliban's ranks, according to multiple intelligence officials contacted by the Long War Journal. The former detainee was identified in documents produced at Guantanamo as Abdul Hafiz (as well as an alternative name, Abdul Qawi) and given an internment serial number of 1030.
 
During the more than six years he was held at Guantanamo, Hafiz was repeatedly identified as "a suspect in the murder of an International Red Cross worker in Afghanistan." Memos produced at Guantanamo also alleged that Hafiz participated in the jihad against the Soviets, ran madrassas and recruited young men to fight for the Taliban, was "responsible for maintaining contacts with Mullah Mohammed Omar," and fought in a 40-man militia comprised of fighters from the Taliban and Gulbuddin Hekmatyar's insurgency group. [For a profile of Hafiz, see LWJ report: "Gitmo detainee implicated in Red Cross murder transferred to Afghanistan."]
 
Despite the fact that Hafiz was implicated in the murder of an ICRC worker, and alleged to have substantial ties to senior Taliban officials, he was transferred to Afghanistan. Shortly thereafter, Hafiz rejoined the Taliban.

Battle Over Liu Begins to Brew:  On How Appealing, Howard Bashman posts a link to Ariane de Vogue's ABC News article discussing the confirmation hearings of Berkeley law professor Goodwin Liu to the Ninth Circuit Court of Appeals.  Tomorrow, the Senate Judiciary Committee will consider Liu's nomination, and de Vogue writes that "[t]he hearing is expected to be contentious."  American University Professor Stephen I. Vladeck believes Liu's confirmation "is a test case[,]" because "[m]ost of the early Obama nominees were tried-and-true moderate judges with extensive experience on district courts. While Liu is not the first non-judge to be nominated by the president, he is probably the most prominent liberal academic."  Liu's opinions on several "hot button" issues support Vladeck's claim.  Liu sits on the board of the liberal American Constitution Society, and opposed the nominations of both Chief Justice John G. Roberts and Justice Samuel Alito. In an op-ed, Liu wrote that the nomination of Roberts "is a seismic event that threatens to deepen the nation's red-blue divide."  A post from Deborah O'Malley on The Foundry explains why Liu as "Obama's Most Radical Judicial Nominee."

SCOTUScast on Johnson v. United States:  Today, the Federalist Society posted its post-decision SCOTUScast for Johnson v. United States, a decision holding that a a prior Florida conviction for battery did not qualify as a "violent felony" for enhanced sentencing purpose under the Armed Career Criminal Act.  In the SCOTUScast, Kevin H. Govern, an Assistant Professor at Ave Maria Law School, recaps the 7-2 decision delivered by Justice Scalia.  Govern comments that after Johnson in order to qualify for sentence enhancement under the "violent felony" section of the Armed Career Criminal Act a person must engage in "force capable of causing physical pain or injury to another person."  To reach this conclusion, the Court rejected the government's argument that force under the Act was a legal term of art that described the common law form of battery - which included even the slightest offensive touching.  Govern states that after Johnson, the Armed Career Criminal Act, physical force is used to define the statutory category of violent felony - of causing pain or injury to another person.

Convicted Murderer Challenges Conviction Forty Years Later:  Wall Street Journal's Law Blog writer, Ashby Jones, reports that yesterday, the Fourth Circuit heard arguments on Jeffrey MacDonald's motion for a new trial.  MacDonald was convicted for the slaying of his wife Colette and daughters Kimberley, 5, and Kristen, 2, in 1970.  The 4th Circuit tossed the convictions on speedy trial grounds, and he returned to work at the California hospital. But within two years, the U.S. Supreme Court reinstated the convictions, and MacDonald returned to prison.  Now, according to an AP article by Larry O'Dell, MacDonald claims he has new evidence, including DNA tests and sworn statements by people maintaining his innocence.  Throughout his trial, MacDonald had claimed that a bunch of drug-crazed hippies broke into his Ft. Bragg, N.C., home and killed his family.  The case was the subject of the book Fatal Vision, by Joe McGinniss, and was turned into a 1984 movie starring Karl Malden, Eva Marie Saint, and Andy Griffith.  

Packing the Court:  At SCOTUSblog, Erin Miller posts Part II of her interview with Jeff Shesol, the author of Supreme Power: Franklin Roosevelt vs. the Supreme Court. In his interview, Shesol comments that if President Franklin had honestly relayed his motivation for packing the Court to the public, his effort to increase the Court's membership would have succeeded.  

"In Wake of Garrido Arrest, California Tightens Monitoring of Sex Offenders":  Sam Stanton, reported in Sacramento Bee on Saturday that California corrections officials are being scrutinized after the state failed to monitor Phillip Garrido, a paroled sex offender now accused of kidnapping Jaycee Lee Dugard.  A policy took effect this past Thursday requiring parole agents to regularly check records of GPS tracking for offenders who are on "passive" monitoring.  Under the new policy, "passive" offenders will have two consecutive days of movements randomly checked twice a month to ensure that offenders know they're being monitored.  Paroled sex offenders who pose a greater-risk are tracked through active monitoring, meaning their movements for each previous day are checked daily.  As of March 1, there were 2,219 offenders on passive monitoring in California and 4,779 on active monitoring.

"Cold Hit" Spurs Rape Suspect's Arrest:  Larry Hertz of New York's Poughkeepsie Journal reports on the first crime in Dutchess County to be solved by cold-hit DNA evidence.  Back in 2003, two women were raped at gunpoint in the city of Poughkeepsie, NY.  More than six years later, DNA evidence allowed police to charge Jason Freeman with the rapes.  Last fall, Freeman was arrested on robbery charges in another county, and under New York law was required to give a DNA sample to police.  His sample was sent to the state police forensic lab in Albany, and test results revealed that Freeman's sample matched DNA evidence taken from the rape victims and a gun that was recovered after the second rape.  Senior Assistant District Attorney Marjorie Smith stated, "A few years ago, we didn't have the technology to give us a cold hit.  This guy probably would have gotten away."

A 36-Year-Old Mystery, Solved by DNA:  Alisha Wyman, a Napa Valley Register staff writer, reports that a 36-year-old mystery in Napa, CA, has been solved with DNA evidence.  Anita Andrews was killed in 1974 in Fagiani's Cocktail Lounge.  DNA that was found at the crime scene was preserved, and was recently matched to Roy Melanson, 73, who is currently in prison for murder in Colorado.  Melanson still has not been charged in the Napa case.  This year officials began collecting DNA samples from people arrested for any felony, as well as misdemeanor offenses.  Jill Spriggs, the bureau chief for the California Bureau of Forensic Services in Sacramento -- which tested the evidence in Andrews case -- says the bureau makes about 300 matches a month - either connecting an offender to a case or two cases to each other.

Ninth Circuit Nominee is "Test Case for Obama Judicial Picks":  Washington Post staff writer, Robert Barnes, reports that the battle over the nomination of Goodwin Liu "could tell much about the Obama administration's willingness to appoint controversial nominees to the bench, including the Supreme Court."  Liu has already been recognized by Senator Sessions as "an individual" whose constitutional views are "far outside the mainstream of American jurisprudence," and many conservative legal groups are opposing the nomination.  Back in February, Kent wrote on our blog, "[t]his calls for pull-out-the-stops opposition."   

Philippines May Move to Reimpose Capital Punishment:  The Manila Bulletin reported yesterday that President Arroyo has approved the Free Legal Assistance Act of 2010, which will give anti-crime advocates a new and strong argument to seek revival of capital punishment.

Now here is something refreshingly different. First, a Ninth Circuit panel issues a very wrong decision, taking a U.S. Supreme Court precedent vastly further in the defendant's favor than its language warrants. Nothing unusual to this point.

Next, the Ninth Circuit grants rehearing en banc. At one point, the Ninth so rarely granted en banc to correct pro-defendant errors that some AG offices had largely given up asking and went straight to a certiorari petition to U.S. Supreme. More recently, though, the Ninth has taken up a few rogue pro-defendant decisions.

Now here is the unique part. The 11-judge pseudo en banc panel decides contrary to the original 3-judge panel unanimously. Wow.

CA Murder Suspect Frequent Parole Violator:  An Associated Press story reports  that sex offender John Albert Gardner, currently facing charges for murdering a 17-year-old San Diego girl, had been cited at least eight times for drug and traffic offenses since his 2005 release from prison.  Gardner was on parole during four of the incidents, including a drug offense. The Associated Press could not confirm whether Gardner, convicted in 2000 of beating and molesting a 13-year-old girl, could have had his parole revoked for repeatedly breaking the law.

Unfortunately, institutional pressure not to revoke parole has been part of California's culture for almost a decade.  That, and a relaxing of supervision, of even violent criminals on parole, has kept the newspapers busy reporting numerous murderers, rapes and other violent crimes by people who either should have still been serving time or been carefully supervised on parole.  The Governor, legislative leaders, and even a panel of federal judges, have told us that the state can not afford to send parole violators back to prison and besides, putting them in community rehab programs will help them straighten out their lives.  This happy talk did not keep habitual felon Charles Samuel, who avoided jail because he was a "low risk" offender, from kidnapping 17-year-old Lily Burk on Wilshire Boulevard in broad daylight last July.  Samuel has been charged with the girl's murder.  Supervised parole did not keep violent felon Lovelle Mixon from acquiring several illegal weapons and killing four Oakland police officers last March as reported here.  Mixon was also linked to a rape.     

Bragging Murderer Executed:  Richmond Times-Dispatch reporter Frank Green reports that condemned Virginia murderer Paul Warner Powell was electrocuted last night.  In 1999, Powell stabbed 16 year-old Stacie Reed to death with a survival knife during an attempted rape, and then waited for her 14 year-old sister to come home from school.  Powell raped Reed's sister, cut her throat, and left her for dead.  She survived and testified against him.  After Powell's first capital-murder conviction was thrown out on appeal for lack of a special circumstance, Powell wrote Prince William County Commonwealth's Attorney Paul B. Ebert an abusive letter boasting about the crimes and admitting his attempt to rape Stacie before killing her. The letter provided the special circumstance prosecutors needed to try Powell again for capital murder.  Following his conviction and sentence, Powell chose to die in Virginia's electric chair.  Commenting about Powell's execution to Washington Post reporter Josh White, the murder victim's sister Kristie said, "I was totally against the death penalty before this happened, and I didn't know why people would want to do it. But those people haven't been through what we've been through. Now I'm totally for it. He definitely deserves to die. He needs to die for what he did to Stacie."

Holder Endangered? WaPo columnist Michael Gerson thinks "Holder is the most endangered member of the Obama Cabinet.... Just about everything he has touched has backfired."

Ninth Circuit Denies Rehearing in al-Kidd v. Ashcroft:  Yesterday, the New York Times reported that the Ninth Circuit will not reconsider its ruling that former Attorney General John Ashcroft can be held personally responsible for misuse of the material witness statute after the 9/11 attacks. Orin Kerr followed up with this post on Volokh Conspiracy.  Last September, a panel for the Ninth Circuit held that the post-9/11 practice of using the material witness statute to detain suspected terrorists is not only unconstitutional, but clearly unconstitutional, and that former AG Ashcroft can be personally sued for his role in it.  Yesterday, the same judges denied rehearing.  Judges O'Scannlain, Kozinski, Kleinfeld, Gould, Tallman, Callahan, Bea (the panel dissenter), and Ikuta dissented from denial of rehearing en banc.  Kerr "think[s] there's a good chance the Supreme Court would agree to hear this case."

Anticipate Supreme Court Decisions on Tuesday:  On SCOTUSblog, Lyle Denniston reports that the Court is expected to announce opinions next Tuesday, "but probably not Wednesday."  On Monday, the Court will issue orders, and hear oral arguments in two cases.  The times of the two cases, Hamilton v. Lanning and Levin v. Commerce Energy, Inc., have been changed.  The Court had originally scheduled to hear Levin at 10a.m., but, according to the Court's new calendar, Hamilton will now be argued first. 

Federal Prison Population Debated by House:  At Sentencing Law and Policy, Doug Berman writes that "the size and nature of the national (and federal) prison population was a topic of discussion during a House hearing yesterday."  According to a piece by Nick Wilson in the Courthouse News Service, members of the House are concerned about the growing numbers of inmates in federal prison.  Yesterday, Federal Bureau of Prisons Director Harley Lappin testified that the prison population is expected to grow by an additional 7,000 members next year, and attributed growth to a variety of factors, including the exponential growth in women prisoners.  Lappin also noted that the United States has seen a 45% increase in the last two years of people booked for immigration crimes, and countries like Vietnam and Cuba refuse to take back their convicted citizens.  Right now, 55,000 prisoners are non-citizens.  That is more than one quarter of the federal inmate population.  Lappin's testimony was a part of the Commerce, Justice, Science and Related Agencies Subcommittee's review of the the Federal Prison Bureau's request to increase its fiscal year 2011 budget to $6.1 billion dollars.  This is roughly $6 million more than this year's budget.

Political Leanings of the Court:  At Volokh Conspiracy, Orin Kerr posts the results of a new Rasmussen poll surveying the voting public's opinion of the Supreme Court.  The poll asked 1,000 voters whether "...the Supreme Court too liberal, too conservative, or about right?" 32% said too liberal, 33% said about right, 23% said too conservative, and 11% weren't sure.  Kerr comments that if the numbers are "accurate, it's fascinating to see such a gap between public opinion and portrayals of the Court in the media."  Jim Lindgren discusses results of another Rasmussen poll here.

One of the main sources of reversal of judgments in capital cases has been the inability of the U.S. Supreme Court to agree with itself from one year to the next what the Constitution requires and what it forbids. Cases tried correctly under the law in effect at the time of the trial can be reversed years or even decades later after the rules have changed.

Since 1989, the case of Teague v. Lane has been important in limiting the damage from what Justice Scalia called this "annually improvised" body of jurisprudence, at least in federal court. However, in the 2008 case of Danforth v. Minnesota, the high court clarified that states could give new rules broader retroactive effect if they wished. (As an all-weather federalist, I think Danforth is correct, even though it may lead to unwarranted results.) The Idaho Supreme Court today decided to stick with Teague.

Raising Old Claims in New Habeas Petition:  At SCOTUSblog, Harvard Law School student Jay Rapaport previews Magwood v. Patterson (09-158), a case that will be argued before the U.S. Supreme Court next Wednesday.  The case will address whether a prisoner who had been re-sentenced after having obtained federal habeas relief from an earlier sentence, may challenge his re-sentencing on grounds that were available but not raised in the petition that vacated his original sentence.  Billy Joe Magwood has twice been sentenced to death for his premeditated murder of Sheriff Grantham in 1979.  Over the years, Magwood's lawyers challenged his sentence on several grounds, but it was not until 1997 that they raised the question of whether his was actually a capital crime under Alabama law. In the meantime, a federal judge, acting on other grounds, ordered Magwood resentenced in 1985. He was again sentenced to death the next year.  Now Magwood would like to challenge his 1986 re-sentencing on a ground he could have raised the first time. The state opposes Magwood's challenge, arguing that AEDPA is a "claim-focused" statute, and allowing Magwood to proceed would open the door to wasteful, repetitive litigation that AEDPA sought to prevent.

Attorney General Weighs in on Osama and KSM:  At Wall Street Journal's Law Blog, Ashby Jones writes that yesterday, during exchanges with Republicans on the a House budget subcommittee, Attorney General Holder stated that if ever captured, "we will be reading Miranda rights to the corpse of Osama bin Laden."  A Washington Post story by Devlin Barrett reports that Holder's remarks drew some criticism from members of the committee.  Representative John Culberson (R-TX), was upset that Holder compared the rights of terrorists to those of convicted murderer Charles Manson.  He said it showed the Obama administration doesn't understand the American public's desire to treat terrorists as wartime enemies, not criminal defendants.  David Ingram at Blog of Legal Times also reports on Holder's remarks. 

Discretion in Sentencing:  Yesterday, at Sentencing Law and Policy, Doug Berman had two posts highlighting the debate over mandatory and discretionary sentencing practices.  In his first post, Berman directs readers to Sixth Circuit Judge McKeague's partial dissent in U. S. v. Wallace, a case addressing the procedural reasonableness of the sentence imposed for conspiracy to possess with intent to distribute OxyContin. The Sixth Circuit found Gall error, and vacated Wallace's sentence.  Judge McKeague agreed that the conviction must be affirmed, but remained "unpersuaded that the sentencing court's procedural error, in failing to adequately explain its sentencing decision, either affected defendant's substantial rights or affected the fairness, integrity, or public reputation of the judicial proceedings."  Berman's second post links to Craig D. Rust's SSRN article, When 'Reasonableness' is Not so Reasonable:  The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough.

Is it a crime for the Clerk and Speaker of the House of Representatives to sign an enrolled bill that has not, in fact, been approved by a vote of the House?

According to this CRS Report,

The official engrossed copies are prepared by staff in the Office of the Clerk of the House (under the supervision of the House Oversight Committee) and the Office of the Secretary of the Senate. The signature of the clerk or the secretary attests to the passage of the measure and certifies the accuracy of the engrossed text.... An enrolled bill is the final version of a measure agreed to by both chambers. Enrolled bills are printed on parchment and then signed first by the Speaker of the House and secondly by the President of the Senate, or the formally designated Senate presiding officer.

What if the bill has not, in fact, been passed by a vote of the House but is merely "deemed" to have passed by a rule?  18 U.S.C. §1018 provides,

Whoever, being a public officer or other person authorized by any law of the United States to make or give a certificate or other writing, knowingly makes and delivers as true such a certificate or writing, containing any statement which he knows to be false, in a case where the punishment thereof is not elsewhere expressly provided by law, shall be fined under this title or imprisoned not more than one year, or both.

Regarding the Eric Holder brief kerfuffle, I have obtained and uploaded the briefs and other documents for your perusal. They are listed after the jump.

Last Friday, David Savage had this article in the LA Times saying, among other things, "The six briefs to the Supreme Court were not Holder's work alone. In every instance, he was one of a group of prominent lawyers or ex-judges who signed a friend-of-the-court brief."

I expect that is an understatement. It would not surprise me if Holder did not write a single word of any of the briefs. He has been part of an irksome trend toward filing group amicus briefs filed for the purpose of assembling a bunch of names that some people might find impressive, often on a brief that contributes little of substance beyond the arguments submitted by the parties. I doubt such name-dropping has much impact on the Court.

Along with the Padilla briefs that have gotten most of the press, Holder also signed on to a brief arguing that taking the vote away from people who have committed felonies is a violation of the Voting Rights Act of 1965, because it is supposedly racial discrimination. This view turns the notion of racial prejudice completely on its head. "Prejudice" means pre-judging people. It means forming a judgment about someone's character before you have individualized information, based on a group characteristic such as race. A judgment made and consequence imposed after the person's individual behavior has been proved (in criminal cases, beyond a reasonable doubt) is the antithesis of prejudice. To say that we should refrain from letting people bear the consequences of their individual, voluntary acts because of how racial numbers break down is the opposite of the color-blind ideal of judging according to the content of one's character rather than the color of his skin.

A National DNA Database:  New York Times Op-ed contributor, Michael Seringhaus writes that President Obama has made clear that we need a stronger DNA database that is readily available to law enforcement in every state, in order to "continue to tighten the grip around folks who have perpetrated these crimes."  But critics claim there is a racial bias while sampling of arrestees.  Seringhaus believes there is a better solution: keep every American's DNA profile on file.  According to Seringhuas, a national DNA database with profiles of every person is more likely discover the source of a crime-scene sample, and would eliminate any racial bias.  It would also be a much stronger tool for law enforcement.  It would deter first-time offenders, and would enable police to quickly apprehend repeat criminals.  Seringhaus claims a universal DNA collection is quite easy: "it could be done alongside blood tests on newborns, or through painless cheek swabs as a prerequisite to obtaining a driver's license or Social Security card."  He believes that as long as "our privacy remains secure, there is no excuse not to use every bit of science we can in the fight against crime."

Obama's Ninth Circuit Judicial Nominee:  Mark Sherman of the Associated Press reports on Obama's choice of judicial nominee, Goodwin Liu, for the 9th U.S. Circuit Court of Appeals in San Francisco.  Obama's nominee has drawn strong criticism from conservatives.  Liu is a 39-year old liberal legal scholar who is currently the assistant dean and law professor at the University of California, Berkeley.  If confirmed, he could become a force on the federal appeals court for decades.  Senator Jeff Sessions, the senior Republican on the Senate Judiciary Committee, described Liu as "far outside of the mainstream of American jurisprudence."  Only six of Obama's 15 appeals court nominees have been confirmed.  But Liu's place on the Ninth Circuit may not be the only  issue.  According to Curt Levey of the Committee for Justice, "[t]he bigger concern is that he'll wind up on the Supreme Court." 

"Holder Did Not Disclose Briefs On 'Enemy Combatant'":  Charlie Savage and Bernie Becker of the New York Times, reported last Thursday, that during his confirmation hearings Attorney General, Eric H. Holder Jr. did not notify the Senate that he signed several briefs urging courts to reject President George W. Bush's claim that he had the power to imprison Jose Padilla as an "enemy combatant."  "The briefs should have been disclosed as part of the confirmation process," said Mathew Miller, a Justice Department spokesman.  Republicans have made it clear that they are likely to attack Holder for joining the briefs, and failing to list them, along with other public documents, when he testifies before them later this month.  Republican Senator of Alabama, Jeff Sessions, said the opinions in the briefs "go to the heart of his responsibilities in matters of national security."  "This is an extremely serious matter," he said, "and the attorney general will have to address it."  Bill Otis posted his thoughts on the Attorney General's omission last Friday. 

Body-Armor For Felons?: San Francisco Gate writer Bob Egelko reports on the California Attorney General's appeal to at the California Supreme Court to examine a ruling throwing out a state law that bans anyone who has been convicted of a violent felony from owning body-armor.  The law, passed in 1998, was intended to protect police against flak-jacketed criminals.  The law makes it a crime, punishable by up to three years in prison, for felons with violent offenses on their record to possess or wear body armor.  State regulations define body armor as apparel that provides "ballistic resistance to the penetration of the test ammunition" for certain types of guns, a standard also used to certify armor for police.  In December 2009, a state appeals court in Los Angeles ruled that the law was unconstitutional because its terms were so vague that the average person wouldn't know when he or she was violating it.  "Allowing criminals and gang members to arm themselves with body armor makes no sense, and I'm confident the [California] Supreme Court will reverse this wrong-headed decision," Attorney General Jerry Brown said Wednesday.  No hearing date has been set for the case.

White Supremacist Blogger Receives Second Mistrial: New York Law Journal writer Mark Fass reports on the second mistrial of blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges.  Turner was arrested last June after posting blog entries stating that the three federal judges "deserve to be killed" for their decision upholding handgun bans in Chicago and Oak Park, Illinois.  At the end of their deliberations Wednesday, the jurors sent a note to the judge stating that another day of deliberations would be useless.  This was the third time they had stated that they believed a unanimous verdict was impossible.  The mistrial constitutes a serious defeat for the U.S. Attorney's Office for the Northern District of Illinois, which prosecuted the case.  Following the first mistrial in January, in which the threatened judges, Judges Richard Posner, William Bauer and Frank Easterbrook, did not appear as witnesses, a juror told the reporters the jury deadlocked due to a lack of testimony.  This time, all three judges flew to New York and took the witness stand.  Out Blog Scan reported on Judge Easterbrook's testimony and can be found here.  After this second mistrial, an attorney for Turner called the case a "victory." Another article on the story by the Associated Press can be found here.

Kent's piece, "Shoddy and Dangerous," introduces us to a controversy swirling around two enormously important questions:  Who should serve in the Department of Justice, and to what extent can lawyers properly be held to account for positions they took in a representative capacity in their prior, private practice.

These questions were first raised by the organizaion Keep America Safe, which asked the Justice Department to identify lawyers it has employed who previously represented persons accused of supporting al Qaeda terrorism.  Initially, it is my understanding, the Department refused, but since has provided seven names.  Keep America Safe now designates these as "the al Qaeda Seven."  For the reasons that follow, I think that designation is unfair on the present record  --  but that doesn't mean raising the issue was unfair.

The Supreme Judicial Court of Massachusetts upheld the state's gun locking requirement today in Commonwealth v. Runyan, SJC-10480, distinguishing D.C. v. Heller on two grounds.

First, the Massachusetts court holds that the Second Amendment does not apply to the states. That issue is presently before the Supreme Court in McDonald v. Chicago.

Second, the court distinguishes the Massachusetts law from the more restrictive D.C. law.

The latter holding would make a simple "vacate and remand" inappropriate in the event the Supreme Court decides in favor of incorporation in McDonald.

Denise LaVoie has this story for AP.

Business Leaders Take On Prison Reform:  On Sentencing Law and Policy, Doug Berman posts an editorial from the Detroit Free Press describing the Detroit Regional Chamber's plan to reduce corrections costs as part of an overall effort to restructure state government.  The Chamber wants to reduce Michigan's prison spending by $500 million and has made seven recommendations for cutting costs.  First, the Chamber would like to make the parole board a body of professional civil servants replacing the current board of political appointees, charged with enacting and enforcing parole guidelines which are score all inmates for parole and respect the proper role of the sentencing judge.  The Chamber also proposes re-creating a "good time" system that replaces disciplinary credits with credits for accomplishments that increase the likelihood of success upon release, and opening up food service to competition by allowing competitive bidding from the private sector.

No Hearing Day Set for Ninth Circuit Nominee:  At Blog of Legal Times, David Ingram reports that the debate is heating up over Ninth Circuit nominee Goodwin Liu, and that a hearing date for Liu has not been announced, even though a hearing date has been set for Judge Robert Chatigny, nominated on the same day as Liu.  Ingram's post describes the efforts of Liu's critics and supporters, including the efforts of one of Liu's law students to gather material in support of Liu's nomination.  Ingram writes that the debate could heat up further now that Liu's answers to a Senate questionnaire have been published. 

Should President Obama Consider a Protestant?  Today, Washington Post staff writer Robert Barnes wonders whether President Obama's next Supreme Court nominee needs to be a Protestant.  Barnes reports that if Justice Stevens does retire at the end of this term, the Supreme Court would for the first time in its history be without a justice belonging to America's largest religious affiliations.  Catholics have held a majority on the nine-member court since 2006 and the confirmation of Justice Samuel A. Alito Jr. Justice Sonia Sotomayor made it six last summer.  Justices Breyer and Ginsburg are Jewish.  While religion may not play a role in the President's decision, one former Justice has express her views on the issue.  Last fall, when Justice O'Connor was asked about the need for geographic diversity on the court she stated, "I don't think they should all be of one faith, and I don't think they should all be from one state."

Neuroimaging and Competency to be Executed:  CrimProf Blog editor Kevin Cole posts a link and the abstract to New York Law Professor, Michael L. Perlin's new SSRN article Neuroimaging and Competency to Be Executed after Panetti.  In the abstract, Perlin writes that scholars are questioning the impact of neuroimaging evidence on capital punishment trials, wondering whether reliance on such testimony can actually make "sentencing more rational and humane."  He writes that after Panetti v. Quarterman recognized a constitutional right to make a showing that a defendant's mental illness "obstruct[ed] a rational understanding of the State's reason for his execution," competency-to-be-executed hearings may have to become more sophisticated.  Perlin then explores what impact neuroimaging testimony will have on future Panetti hearings.   

California has started releasing criminals early because, so it is said, the state is out of money to fund the prison system.  Only now it turns out that the same force that has driven the state to near-bankruptcy  --  the free spending legislature  --  is considering a bill that would allocate taxpayer dollars to track animal abusers.

I swear I'm not making this up.  Here are the first few paragraphs of the story, as reported by Fox News:

The California state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

Animal abusers would be tracked like sex offenders if California lawmakers have their way. 

The state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

The registry, which under the law would be posted on the Internet, wouldn't just include names. The bill calls for photographs, home addresses, physical descriptions, criminal histories, known aliases and other details to be made public. 

Animal abuse is a sick, heart-wrenching and disgusting crime, as anyone will agree who has a dog at home (I have the world's most pig-headed Basset hound).  But to propose new and significant spending on an animal abuse registry while releasing criminals on grounds of insolvency sounds like something that could only happen in.............California.

It dares not speak its name, that is, because its name is murder.

That is the demonstrated cost of prison sentences that are too short to persuade, or force, offenders to refrain from returning to crime.  The case in point, and in the news, is that of Chelsea King, a high school student who was raped and murdered this week.  A fellow named John Gardner has been arrested for the crime.  At present, there appears to be little realistic doubt of his guilt.

The twist in the case is that Gardner pleaded guilty in 2000 to molesting a 13 year-old girl.  Instead of being required to serve the eleven years to which he could have been sentenced, he was given a six year sentence, of which he served five.

The case illuminates two long-running and active themes the defense bar has been pushing. One is that we should substantially reduce prison sentences to save money. The other is that sex offenders are treated too harshly (forced to sleep under a bridge in Miami, etc.), apparently because the country consists of high-handed and puritanical morons.

 

Registered Sex Offender Linked to Body:  Associated Press Writer Elliot Spagat reports today on the scheduled arraignment set for this afternoon on charges against John Albert Gardner.  Gardner was arrested for the rape and murder of the San Diego high school student, Chelsea King.  In 2000, Gardner, a 30-year-old ex-con, was facing 11 years in prison for molesting a 13-year-old female, but after a plea agreement he served only five. He was then released on parole for three years until September 2008.  Gardner had been previously linked to an assault on a 22-year-old woman.  Five days after King's disappearance, a body was found buried in a grave on the south shore of Lake Hodges.  San Diego County Sheriff William Gore said there is a "strong likelihood" the body found is Chelsea's.  Dr. Matthew Carroll, a psychiatrist who interviewed Gardner years ago, believed Gardner ought to have served a longer sentence: he was a "continued danger to underage girls in the community."

Convict Found Guilty of Attempted Murder and Mayhem:  Jaxon Van Derbeken of the San Francisco Chronicle reports on yesterday's conviction of 29-year-old Scott Thomas for the attempted murder and mayhem charges in a stabbing attack at a bakery that nearly killed a 15-year-old San Francisco girl in 2007.  A second phase of the trial is set to begin tomorrow to determine if Thomas was sane at the time of the attack.  If Thomas is found sane, he will face life in prison.  Prosecutor Scot Clark argues that the attack was premeditated and Thomas intended to decapitate the 15-year-old.  The case stirred up public outrage after it was revealed Thomas was let out of prison by mistake without supervision the day before the crime. Linda Schaller, the mother of the victim, said Thomas has portrayed himself as a "poor boy": "He's not a poor boy; he's a monster."

Death Sentence Long Overdue for Self-Avowed Racist:  Darci Marchese of the Associated Press reports  that attorneys for rapist/murderer Paul Powell are asking Virginia Governor Bob McDonnell to commute his death sentence.  Powell, a self-avowed racist, is scheduled to be executed on March 18.  In 2000 Powell was sentenced to death for killing an acquaintance, 16-year-old Stacie Reed and raping her 14-year-old sister.  The Virgina Supreme Court overturned his death penalty because no special circumstances to the murder was proven at trial.  No longer facing the death penalty, Powell wrote a note to his attorney detailing Stacie's slaying.  In the letter, Powell described confronting Stacie at her home about dating a black man and threatened to rape her.  When she fought back Powell stabbed her in the heart.  He then took a break to have a smoke and iced tea, while he waited for Stacie's sister to come home.  He eventually raped the sister, who managed to escape before he could kill her.  Armed with Powell's letter, Prince William County Commonwealth's Attorney, Paul Ebert, dropped the first indictment and prosecuted Powell for the attempted rape and murder of Stacie.  In 2003,  Powell was convicted again and sentence to death.  Last July, Powell's execution was stayed by the U.S. Supreme Court, but the Court denied cert last month. 

Will the Supreme Court Extend the Second Amendment to States?  Lyle Denniston thinks so.  At SCOTUSblog, Denniston reports that after today's oral arguments in McDonald, et al., v. Chicago, et al. (08-1521), the Court seems likely to extend the Second Amendment beyond the federal level, based on the Due Process Clause of the 14th Amendment.  This was the position argued by the N.R.A's attorney, former Solicitor General Paul D. Clement, who argued the Court should allow a "carryover" into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment's scope.  This argument was different than the one advanced by the Petitioner's attorney, Alan Gura.  During his time at the podium, Gura argued that the 14th Amendment's Privileges or Immunities Clause was intended to incorporate the Second Amendment to apply to the states.  According to Denniston, Gura had barely finished his opening comments before Chief Justice Roberts noted that the Court had laid that argument to rest in the SlaughterHouse Cases in 1873.  Gura's argument left Justice Scalia, the author of District of Columbia v. Heller, wondering why Gura was "asking us to overrule 140 years of prior law....unless you are bucking for a place on some law school faculty."  Clark Neily, one of the attorneys in Heller, explains why Gura's theory is correct at NRO'S Bench Memos.  Tony Mauro's Blog of Legal Times post on the McDonald argument is available here, while Mike Sacks of First One @ One First reports on the long line for McDonald's oral arguments.   

Lester Jackson, PhD Comments on Death Penalty Abolitionists:  At Homicide Survivors, Dudley Sharp posts a copy of Jackson's article, "The Sinister Secrets of Abolitionists."  In his newest piece, Jackson, a frequent commenter on the Death Penalty, writes "[t]he sinister secret of so-called 'abolitionists' is that they actually support capital punishment. The only way to deny this is to disclaim any responsibility for a premeditated government policy of extensively sacrificing the safety and lives of myriad law-abiding individuals on behalf of convicted felons, including murderers. Clearly, state policy fostering repeat crime, including murder, should be seen as capital punishment of the innocent."

States'  Law Enforcement Allocation Can Guide the Feds:  On Sentencing Law and Policy, Doug Berman posts a link and the abstract for NYU Professor Rachel E. Barkow's new article, Federalism and Criminal Law: What the Feds Can Learn from the States.  The abstract states that an enduring question of criminal law is how authority should be allocated between local, state, and federal prosecutors.  Barkow believes that the answer to solving this question may be found in examining how the states allocate law enforcement power.  Her study found that "states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation." 

An editorial in today's Los Angeles Times comments, "[w]e'd prefer a longer break" than the 14-day "break in custody" rule established by last week's Supreme Court decision in Maryland v. Shatzer.  While the editorial commends the Court for drawing a bright line rule that police may reinterrogate a suspect 14 days after the suspect's first interrogation, it also finds it disturbing that between Shatzer's first interrogation in 2003, and his second in 2006, Shatzer remained in prison.  The editorial comments that "[i]mprisonment is not 'normal life,'" and takes issue with the Court's conclusion that Shatzer, who had remained in prison, had returned to "normal life" for some time before the second interrogation.  The editorial writes, "[t]he court would have been truer to Miranda if it had recognized that, in this case, there was no gap in custody."

The problem with this argument is that Shatzer didn't really address Miranda, it addressed Edwards v. Arizona, and whether there could be an exception to Edwards' rule that once a suspect invokes his right to counsel police cannot reinterrogate the suspect unless he initiates further communication.  Edwards was intended to prevent police from holding suspects in jail and using coercive measures to badger them into giving confessions. 

Last week's decision in Shatzer acknowledged that badgering and police coercion are far less likely when a suspect has been released from the interrogation room "and returned to his normal life for some time before the later reinterrogation."  The decision acknowledged that when a suspect has been released and returns to his daily routines "there is little reason to think that [a suspect's] change of heart regarding interrogation without counsel has been coerced."  The suspect in Edwards had not been released, and had been held overnight and questioned until he confessed.  Edwards sought to reinforce Miranda by ending this type of practice, and the exception to Edwards recognized in Shatzer does not undermine the Fifth Amendment's protection from compelled self-incrimination.  Miranda warnings must be read to suspects and interrogation cannot continue until a suspect waives his rights.  Shatzer simply recognized that a suspect could have a "change of heart" and might voluntarily answer police questions 14 days after his first interrogation.  

LWOP and the Death Penalty:  Yesterday, Doug Berman posted two articles addressing the relationship between the death penalty and LWOP on his website Sentencing Law and Policy.  The first post, Second chance for killer kids?, discusses Michigan's attempts to prohibit life without the possibility of parole sentences for juveniles.  The story, by L.L. Brasier, is featured in today's News Scan.  In his post, Berman acknowledges that the two states with largest number of mandatory life sentences for juvenile offenders are Michigan and Pennsylvania, and notes that neither has a functioning death penalty.  He compares the two states to Texas, which has eliminated mandatory life for juveniles, but will readily sentence individuals to death.  Berman believes the policies demonstrate an "inverse relationship between use of the death penalty for the worst murderers and use of other extreme punishments for less culpable offenders."  In his second post, Berman links to Mike Farrell's piece in the Huffington Post.  On Saturday, Farrell, a death penalty abolitionist, argued that "The Death Penalty is Dying."  Berman posts an excerpt from the piece, and comments on some of the inconsistencies in Farrell's argument.

No Kiyemba This Term:  Tony Mauro writes on Blog of Legal Times that today, the Supreme Court removed a a key Guantanamo detainee case from March's oral arguments calendar and sent it back  to the U.S. Court of Appeals for the D.C. Circuit.  About a month ago, the Supreme Court asked for new briefing when the Department of Justice's merit's brief demonstrated that the Obama administration had found homes outside the United States for the Uighur detainees, eliminating "the factual premise" that "petitioners have no possibility of leaving Guantanamo Bay except by being released in the United States."  Today, the Supreme Court vacated the D.C. Circuit ruling and asked that court to determine what further proceedings are needed for the "full and prompt disposition" of the case.  Lyle Denniston's post on SCOTUSblog provides more information on Kiyemba, et. al. v. Obama, et al. Howard Bashman posts media coverage of the Court's decision on his blog, How Appealing.

A Senator Reacts to Liu's Nomination:  At Wall Street Journal's Law Blog, Ashby Jones posts on Senator Jeff Sessions (R-AL) reaction to President Obama's nomination of Berkeley law professor Goodwin Liu.  In a press release Senator Sessions stated that he is "very disappointed by President Obama's nomination of Professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit..."  Senator Sessions stated that the Ninth Circuit is "already an activist court," and he "fear[s] that Professor Liu will be an activist judge in this same mold."  Sessions will withhold his vote until he examines Professor Liu's record, but his initial reaction is that Liu's  "judicial philosophy does not respect the American ideal of judges as neutral arbiters of the law."

In today's orders list, the U.S. Supreme Court declined to grant certiorari to Edward Jerome Harbison, a Tennessee inmate challenging state implementation of its lethal injection protocol.  In his petition in Harbison v. Little (09-7777), Harbison asked the Court to rule that lower courts should not uphold the state's lethal injection procedures by declaring that the state's lethal injection protocol was "substantially similar" to the protocol approved by the Supreme Court in Baze v. Rees.  If the Court had granted certiorari and ruled for Harbison, lower courts would be forced to conduct detailed examination of a state's injection protocol in order to determine whether the procedure causes unnecessary pain before death occurs.

In 1983, Harbison broke into the home of Edith Russell, and when she came home unexpectedly he beat her to death with a heavy, marble vase.  He stole various items of value belonging to her. A jury convicted him of first-degree murder, second-degree burglary, and grand larceny, and sentenced him to death for the murder.  Last April, the Supreme Court ruled on his claim for appointment of federal counsel during clemency proceedings, and last July, the Sixth Circuit ruled on Harbison's lethal injection claims. 

The three-judge panel for the Sixth Circuit vacated the district court's judgment that Tennessee's lethal injection protocol violated the Eighth Amendment.  The district court had found Tennessee's lethal injection protocol inadequate for four reasons.  First, it found the protocol deficient because it did not provide a proper procedure for ensuring that the inmate was unconscious before administering the second drug.  Second, it believed the protocol did not provide for the adequate training of officer.  Third, it did not believe the protocol adequately monitored the administration of drugs.  The district court also faulted Tennessee for failing to adopt a "one-drug" protocol or alternative procedures. 

The Sixth Circuit relied on Baze -- which upheld Kentucky's protocol and held that a substantially similar protocol would not violate the Eighth Amendment -- and concluded that Tennessee's "substantially similar" three-drug protocol also did not violate the Eighth Amendment.  The same four complaints raised by the district court had been addressed by the Supreme Court in Baze, and each time, the Court concluded that the alleged risks rise to the level of a constitutional violation.  Baze's discussion and ultimate rejection of these concerns allowed the Sixth Circuit to uphold Tennessee's protocol. 

A dissent, written by Judge Clay, would have remanded the case for an evidentiary hearing to allow the district court to rule on whether Harbison can meet the Baze standard, but the majority declined to fashion such a remedy when neither party had requested it at oral argument. 

Lyle Denniston also has a post on SCOTUSblog discussing the Supreme Court's denial.

An Attempt to Clarify Prisoners:  Marisa Lagos of the San Francisco Chronicle reports today on California Assemblyman, Alberto Torrico's proposed legislation to limit the early release of nonviolent offenders to state prisons.  Prompted by confusion at the local level and several lawsuits, Torrico wants to clarify that a recently enacted law granting early release of nonviolent offenders is meant only to alleviate overcrowding in prisons and not in county jails.  "It's not meant to apply to local inmates, period," Torrico said.  "We are dealing with a state crisis."  The law took effect January 25 of this year, but it has confused many counties because sheriffs interpreted the law differently.  Under the new law, Sacramento county has released hundreds on jail inmates, while San Francisco released "only a handful."  Assembly member Torrico's Bill 1395 is available here.

Trouble Finding an Unbiased Jury:  Adam Liptak of The New York Times reports on today's Supreme Court oral argument regarding, former Enron CEO, Jeffrey K. Skilling's  request that the Court overturn his verdict because he did not receive a change of venue. The Supreme Court has not considered a change of venue in two decades.  Modern media has made it difficult to determine whether one can receive a fair trial even if there is a change of venue.  Little can be done to control the intensity of news coverage, so a change of venue is less likely to solve the problem.  In its merits brief Solicitor General Elena Kagan told the Court, "media coverage carried on national networks, cable stations and the Internet is not confined to the venue in which the crime is committed."  Many judges and experts in jury behavior and selection agree but say it is not too difficult to find unbiased and uninformed jurors.

National Debate: Mandatory Life Sentences for Juveniles:  Free Press staff writer L.L. Braiser reported Sunday on  juveniles serving mandatory life sentences.  Dontez Tillman and Thomas McCloud, two 14-year olds, were tried as adults and sentenced to life in prison in Michigan for the first-degree murders in the beating deaths of two homeless men over a period of three days.  Michigan currently has 352 prisoners serving life sentences for crimes committed while they were juveniles.  It is one of 12  states which have introduced legislation that would ban mandatory life sentences to juveniles, or at least give judges some discretion.  Michigan Senator, Liz Brater introduced a package of bills to accomplish this last year.  The measures are currently under review.  Some experts believe that certain kids are too dangerous and should never be released.  Our own Kent Scheidegger was quoted on the issue: "It is our position that for some juveniles, a life sentence is appropriate."  The Supreme Court is currently considering the issue in the cases of Graham/Sullivan v. Florida.  Our brief in these cases us here.  

Origins of Shatzer's 14-day Clause:  At SCOTUSblog and Volokh Conspiracy, Orin Kerr takes a look at how yesterday's decision in Maryland v. Shatzer created a new rule of criminal procedure.  Kerr writes that yesterday's decision in Shatzer addressed whether the Supreme Court's ruling in Edwards v. Arizona (that police cannot question a suspect after he has requested a lawyer) still applies "if the suspect has been released from police custody and is then rearrested."  According to the Court it does not, and, according to Kerr, the Court's decision created a "clear rule" that police may re-interrogate a suspect 14 days after his first interrogation.  So where did this 14-day rule come from?  Kerr isn't sure.  His guess is that "14 days was chosen [because]... it's easy to remember and seemed in the right ballpark."

Justice Stevens May Set Another Milestone:  At Blog of Legal Times, Tony Mauro "Track[s] Justice Stevens' Milestones[,]" and writes that in about three months Justice Stevens "will pass 'the great chief justice' John Marshall in terms of length of service, and a month after that he'll pass Justice Stephen Field's length of tenure as well, lagging behind only William O. Douglas."  Justice Stevens would need to serve two more years to reach Douglas' record, who interestingly, Justice Stevens succeeded to the Court.  Mauro also writes that statistics posted on the Oyez Project demonstrate that Justice Stevens "is also bumping up to a record held by Justice Oliver Wendell Holmes Jr. as the oldest justice to serve on the Court."

Ninth Circuit Rules on Miranda and "Involuntary" Confession:  Earlier today a Blog commenter linked to a "freshly minted" Miranda case from the Ninth Circuit.  This afternoon, How Appealing's Howard Bashman linked to Judge Rawlinson's opinion and an AP news story by Amanda Lee Myers.  The case, Doody v. Schriro, involves the 1991 murder of six priests, a nun and two helpers during a robbery at a Buddhist temple west of Phoenix.  The bodies at the temple were found arranged in a circle, and all had been shot in the head.  Today, the Ninth Circuit ruled that Doody's confession was involuntary partly because he wasn't properly read his rights by the officers interrogating him.  The court reversed the lower court's decision and remanded the case to the district court to grant Doody's habeas petition. 

Supreme Court Relaxes Miranda: Los Angeles Times writer David G. Savage reports on Wednesday's Supreme Court decision, Maryland v. Shatzer, to allow a suspect to be questioned for a second time 14 days after first invoking his Miranda "right to remain silent".  A 7-2 majority overturned a strict rule set in 1981 that barred police from questioning a suspect after he had asked to remain silent and speak with a lawyer.  Known as the "Edwards rule," it was intended to prevent investigators from "badgering" a suspect who was held in jail after he had invoked his Miranda rights.  "In a country that harbors a large number of repeat offenders, the consequence" of the no-further questioning rule "is disastrous," said Justice Antonin Scalia.  Lauren's blog on the decision can be found here.  Our brief in the case can be found here.

NY Subway Bomb Plotters Say "Not Guilty": Associated Press writer Adam Goldman reports on the guilty pleas of two high school classmates of admitted terrorist plotter Najibullah Zazi for a foiled plot to bomb New York City subways in the days after the eighth anniversary of the September 11th attacks.  Zarein Ahmedzay and Adis Medunjanin were indicted with conspiracy to use weapons of mass destruction, conspiracy to commit murder in a foreign country and providing material support to the al-Qaida terrorist network.  After Zazi pleaded guilty last week (News Scan coverage available here) Attorney General Eric Holder stated that, "The facts alleged in this indictment shed further light on the scope of this attempted attack and underscore the importance of using every tool we have available to both disrupt plots against our nations and hold suspected tterrorists accountable." Both Ahmedzay and Medunjanin had travelled to Pakistan with Zazi in 2008.  Medunjanin's attorney did not know if Zazi had told prosecutors anything about his client.

UPDATE "Death Penalty Thrown Out in Texas Murders": New York Times writer John Schwartz reports on Wednesday's Texas Court of Appeals' decision to throw out the death sentence of a man whose double murder conviction gained international attention because of revelations that the judge and prosecutor had had an extramarital affair.  The Court of Appeals, however, did not mention the affair, instead focusing on whether jurors had been blocked from getting information that mght have helped them deliver a less severe sentence.  The court's decision will give convicted murderer, Charles Hood, a new hearing on the question of punishment.  The Criminal Justice Legal Foundation's Kent Scheidegger stated that now that the death penalty has been removed from the table, it is unlikely the Supreme Court will agree to hear the petitions for appeal.

Jeffrey Skilling was convicted for, among numerous other things, conspiracy to violate the federal "honest services statute," 18 USC § 1346, for his role in the collapse of Enron.  He was sentenced to 24 years.  His case will be argued next week in the Supreme Court.  The focus will be on whether the statute is too vague to pass muster under the Constitution -- in other words, whether a person of normal intelligence could figure out what behavior is forbidden.

My own view is that the need for honest dealing is beyond the law's capacity to establish; it's a cultural problem, and in this culture the problem has become severe.  Still, the Skilling case might have something to say about it.  My analysis of what will happen, and what should happen, follows the break.  To give a hint:  I think Skilling should prevail, but not for the reasons that have become the conventional wisdom among Court watchers.

First Amendment vs Aid to Terrorists:  Adam Liptak of the New York Times reports on the Supreme Court hearing on Tuesday regarding a complicated dispute over free speech and lending aid to terrorists.  In Tuesday's arguments in Holder v. Humanitarian Law Project, Solicitor General Elena Kagan defended 18 U.S.C. §2339B(a)(1), a 1996 law designed to combat terrorism, as "a vital weapon in this nation's continuing struggle against international terrorism."  Lawyer, David D. Cole, representing the Humanitarian Law Project, challenged the law claiming it is unconstitutional with respect to speech that furthers lawful, nonviolent activities of proscribed organizations.  His clients claim they want to provide support for the legal, nonviolent activities of a Kurdish political party and a Tamil group, both of which have been designated as terrorist organizations by the State Department.  According to Kagan, even this benign help is prohibited, stating that, "What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs."  Justice Anthony M. Kennedy, the Court's most popular defender of First Amendment freedoms admits this is "a complicated issue".  "Support of any kind", says Kennedy, "will ultimately inure to the benefit of a terrorist organization, and we have a governmental interest in not allowing that." Lauren's blog on the oral argument can be found here.

Lauren notes the NYT article on the Charles Dean Hood case. The first sentence of the article is:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case.

Only those readers who make it halfway down the article find out that the affair ended three years before the trial. Readers never do find out that the jury, not the judge, is the primary decision-maker on capital-case sentencing in Texas. Simply saying that Hood was sentenced to death by the judge leaves a reader with the impression that she made the discretionary sentencing judgment call in the case, which is not true.

That is not to defend what happened in this case, but there is no reason to make it sound worse than it really was.

Over at SCOTUSblog, Tom Goldstein has this long post on Supreme Court nomination prospects. "John Paul Stevens very likely will retire.  Ruth Bader Ginsburg definitely will not."

So who gets the Stevens seat? Tom emphasizes the political calculations, which I believe is correct for the Obama/Emanuel White House. Appointing a judicial activist is not as high on this President's agenda as boosting his political capital at a time when the yellow gas tank light is on. As Tom puts it,

Unfortunately for progressives who want the Administration to invest its political capital in a nomination, this summer is likely to be a profoundly difficult time in political terms.  It is hard to overstate the Administration's view of the significance of the loss of the sixtieth Democratic Senate seat.  The point isn't actually that there is a realistic chance that a Supreme Court nominee would be filibustered....

Instead, the effect of the vote is to reduce the Administration's political capital and maneuvering room at a time when both are in short supply.

What is "unfortunate[] for progressives" might be very fortunate for the people's right to govern themselves through the democratic process and not be ruled by philosopher kings with the power to propose and ratify their own constitutional amendments. Or it might not.

Florida's Miranda Warnings Pass Supreme Court Scrutiny: Associated Press writer Jesse J. Holland reports on today's Supreme Court decision approving Florida's version of the Miranda rights warnings.  The court's 7-2 decision in Florida v. Powell restored Kevin Dwayne Powell's conviction in the first of three Miranda rights cases heard this year.  The decision clarified what the long-established Miranda rights require police to do. Powell was convicted of illegally possessing a firearm after telling police he bought the weapon "off the street" for personal protection.  Before his confession, Powell signed a Miranda statement that included the words, "You have the right to talk to a lawyer before answering any of our questions.  If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.  You have the right to use any of these rights at any time you want during this interview."  The Florida Supreme Court overturned Powell's conviction, saying police did not explicitly tell him he had a right to a lawyer during his interrogation.  "Nothing in the words used indicated that counsel's presence would be restricted after the after the questioning commenced," Justice Ruth Bader Ginsburg said, writing for the majority. "Instead, the warning communicated that the right to counsel carried forward to and through the interrogation." The Court has two more Miranda rights cases pending, including whether officers can interrogate a suspect who said he understood his rights but did not invoke them, and whether a request for a lawyer during interrogation can expire after a lengthy period of time.  The Foundation has entered both of these cases.  Our brief addressing the invocation issue in Berghuis v. Thompkins is available here.  The brief for the second case, Maryland v. Shatzer, is available here.  Lauren's post on the issue can be found here.

"NYC bomb plotter deal might help broaden case":  Associated Press writers Adam Goldman and Tom Hays report on a plea deal prosecutors are making with a NYC bomb plotter, Najibullah Zazi.  Zazi, who once worked as a Colorado airport shuttle driver, admitted to being persuaded by al-Qaida and to work for the Taliban.  "I had discussions with al-Qaida leaders, including target locations, such as New York City subways," Zazi confessed.  Zazi pleaded guilty in Brooklyn federal court and is facing LWOP.  Now, Zazi has been presented with a plea deal, and has begun to release information regarding Al-Qaida.  Prosecutors hope that with Zazi's cooperation, other suspects will come to light.