Results matching “first”

The Neuroskeptic begins this great post on the spat of recent studies claiming antidepressants are of little value in treating depressive disorders:

Imagine there was a nasty disease that affected 1 in 100 people. And imagine that someone invented a drug which treated it reasonably well. Good work, surely.

Now imagine that, for some reason, people decided that 10% of the population need to be taking this drug, instead of 1%. So sales of the drug sky-rocket. Eventually some clever person comes along and asks "This is one of the biggest selling drugs in the world - but does it work?" They look into it, and find that it doesn't work very well at all. For about 9 out of 10 people, it's completely useless! What a crap drug.

Neuroskeptic points out two important points behind these findings.  First, the growth of diagnostic labeling and its effects on efficacy studies; second, the limitations of commonly used psychiatric assessment tools such as the Hamilton Rating Scale for Depression. 

But one other point is worth mentioning.  All of these studies utilize a statistical method known as meta-analysis.  In layman's terms, this technique uses mathematical formulas to quantify the overall effect of numerous studies conducted over time.  The key is that the author's of these studies posses enormous discretion in deciding which studies are included and which are excluded.  True, they must provide a rationale for their decision-trees, but even with explicit and rational reasons, the result can be a study which examines six studies while excluding over 2,000-  while nevertheless claiming to pass judgment on them all.

We occasionally hear that those inclined to criminal activity might more often refrain if they had greater respect for the law.  Building that respect, we are told, depends on the criminal wannabee's view of its fairness and equity. 

If that is true, then the tone of President Obama's reaction to today's decision in Citizens United is unfortunate to say the least.  In a statement that was disrespectful if not snarling, the President said:

"With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington--while undermining the influence of average Americans who make small contributions to support their preferred candidates."

One might wonder whether a more fitting reaction by the President of the United States  --  one better designed to build respect for law  --  would have been:  "While I disagree with today's opinion, I of course do not doubt the Court's authority to decide First Amendment issues, and I understand that reasonable minds can differ on questions about campaign finance.  I shall work with Congress to craft new legislation to rein in excessive spending by private interests in a way consistent with free speech rights and the Court's ruling."

One might also wonder what the volcanic reaction would have been if President Bush had given anything approaching Obama's angry slap when the Court handed down its opinion in Boumediene.

 

Sotomayor Writes First Capital Punishment Opinion: Washington Post Staff Writer Robert Barnes reports on Wednesday's Supreme Court decision to uphold the death penalty for an Alabama inmate.  The 7 to 2 ruling was notable because it was written by Justice Sonia Sotomayor, and is her first full opinion on capital punishment since she joined the court.  Sotomayor's extensive record as a judge is scant on capital punishment, but after this opinion hopefully we can look forward to Sotomayor taking a larger role in capital cases before the high court.

Deadline Passes for Closing Gitmo: Associated Press writer Devlin Barrett reports on the closing of Guantanamo Bay as the deadline to close the detention facility arrives tomorrow.  There is still more than a year left of work to do.  Unless Obama decides to change course, Gitmo's closing still depends on support in Congress to pay for a super-secure prison in Illinois for some of the detainees.  Obama must also requisition millions in order to put some suspects, including Ghailani, on trial in federal courts.  The high-security military prison, the administration argues, actually weakens national security because it serves as a recruiting tool for terrorists and undermines the United States' moral authority in combatting such killers.  Critics of the closure plan say bringing detainees to the U.S. to face trial or shipping them overseas only increases the risk of attacks.  Others are urging the president to try new tactics, such as creating a new type of court proceeding combining civillian trials and military commissions.

Supreme Court Upholds Holly Wood's Death Sentence: The Associated Press reports on today's Supreme Court's decision to uphold the death sentence of an Alabama man who killed his former lover.  A UPI report is available here.  In Wood v. Allen, the court, in a 7-2 vote, refused to overturn the death sentence of Holly Wood, who was convicted in the shooting death of his former girlfriend, Ruby Lois Gosha, in 1993.  She was killed by a shotgun blast to her head as she slept.  A federal judge had tossed out the death sentence on the basis of the poor performance of one of Wood's lawyer in the sentencing phase of his trial.  The lawyer, the youngest of the three attorneys representing Wood, did not introduce a mental evaluation that showed Wood had an IQ of less than 70 and stated Wood was "functioning in the borderline range of intellect." The 11th Circuit Court reinstated the death sentence, ruling that Wood had failed to how that the lawyer was constitutionally ineffective.  The Supreme Court agreed.  "Even if it is debatable, it is not unreasonable to conclude that ... counsel made a strategic decision not inquire further into the information contained in the report about Wood's mental deficiencies and not present to the jury such information," Justice Sonia Sotomayor said in her first written opinion in a capital case.  CJLF has issued a press release that can be found here.

Mumia Denied New Hearing: Philidelphia Daily News writer Michael Hinkelman reports on yesterday's Supreme Court ruling that tossed out the 3rd Circuit's 2008 ruling that death-row inmate Mumia Abu-Jamal deserved a new sentencing hearing.  Abu-Jamal has been on Pennsylvania's death row since his 1982 conviction in the killing of Philadelphia Police Officer Daniel Faulkner.  The Supreme Court decided to send the case back to the appeals court "for further consideration" in light of a ruling last week in Smith v. Spisak regarding similar sentencing issues that were cited by the 3rd Circuit in Abu-Jamal's case.  If the 3rd Circuit were to find that Abu-Jamal's circumstances are the same as Spisak's, it could reinstate the death penalty for Abu-Jamal.  Kent's blog on Abu-Jamal's case being vacated and remanded can be found here.

Justice Sotomayor's first full opinion in a capital case is a win for the state, upholding the sentence. Wood v. Allen involves a well-deserved death sentence for a man who had a habit of trying to murder his ex-girlfriends, succeeding on the third attempt. His attorneys decided not to use a mental defense in mitigation. The state court found that was a strategic decision, of the kind that is close to unreviewable under Strickland v. Washington. That factual determination was reasonable under 28 U.S.C. §2254(d)(2). The vote was 7-2 with Justices Stevens and Kennedy dissenting.

The opinion is quite short, with 8 pages of windup and 4 of pitch. The question of the interrelation of AEDPA's two provisions on state court findings of fact, §§2254(d)(2) and (e)(1), remains unresolved. If the state court decision is based on findings that are reasonable, given the evidence before the state court, and that court reasonably applies those facts to established Supreme Court precedent under (d)(1), nothing further needs to be decided. But we already knew that. See Rice v. Collins, 546 U.S. 333 (2006). For further information on this, see CJLF's brief in the case at pages 5 and 10-14 (mentioned in footnote 2 of the opinion).

A Citizens United Decision Tomorrow?:  At SCOTUSblog, Tom Goldstein predicts that tomorrow could be the day that the Court hands down its highly anticipated decision in Citizens United v. FEC.  He writes that tomorrow, and Monday, January 25th, are the last two scheduled opinion days the Court has until Tuesday, February 23rd.  He believes that Citizens United is a likely candidate for a decision because "[t]he Court is also well aware of the public interest in having the campaign finance case decided, as illustrated by the fact that it held oral argument in late summer, outside the usual argument calendar."

Court Opens Up Jury Selection:  Lyle Denniston writes on SCOTUSblog that today's decision in Presley v. Georgia (09-5270) opened up the process of selecting a jury in a criminal case to the general public.  According to Denniston, the 7-2 unsigned opinion found that the Sixth Amendment's guarantee of a public trial gives the public the right to attend jury selection.  The dissenters, Justices Thomas and Scalia, argued that Presley summarily disposed of two important questions that it had left unanswered 25 years ago in Waller v. Georgia and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. In the dissent, Justice Thomas wrote that he was unwilling to decide these questions "without the benefit of full briefing and argument."  On Blog of Legal Times, Tony Mauro comments on Presley and the rest of today's Court action.  Mauro's post quickly recaps the Court's decisions in Beard v. Abu-Jamal (08-652) and Wisconsin, Michigan and New York v. Illinois, and reports that the Supreme Court cited "its own First and Sixth Amendment precedents, [to support its ruling that] the trial judge is required to consider alternatives to closure."  How Appealing's Howard Bashman also collects media coverage of the Court's other ruling in Wellons v. Hall, here and here.

U. S. Sentencing Guidelines May Allow Probation for Federal Drug Offenders:  Marcia Coyle reports on Blog of Legal Times that the U. S. Sentencing Commission has opened its proposed sentencing guidelines to public comment, and that one guideline would allow federal judges to sentence federal drug offenders to probation if they participate in a substance abuse treatment program. Coyle writes, "To receive the probation alternative, the commission said the offender must be a willing participant in the treatment program and must have committed the offense while addicted to a controlled substance. The offender also must have committed a lower-level offense."  The Commission's Notice of Proposed Amendments is available here.      

At the top of today's orders list is this order in the appeal of Schwarzenegger v. Plata and a companion case:

The appeals are dismissed for want of jurisdiction. The Court takes note that a further order has been entered in this case, but that order is not the subject of these appeals. It is also noted that the district court has stayed its further order pending review by this Court.

Understanding what the Court did and did not decide (mostly the latter) takes a bit of background.

HOPE - A Probation Model at Work:  Over the weekend at Sentencing Law and Policy, Doug Berman posted a link to a National Institute of Justice and Pew Center study on the impact Hawaii's Opportunity with Probation Enforcement Program (HOPE).  The study, conducted by Angela Hawken of Pepperdine University and UCLA's Mark Kleiman, takes a look at HOPE, which "relies on mandate to abstain from illicit drugs, backed by swift and certain sanctions and preceded by a clear and direct warning[,]" and its probationers.  According to the Pew Center, the research shows that HOPE probationers were significantly less likely to be arrested for a new crime, to use drugs and to have their probation revoked.  The results of the study sound promising, and other states may want to take a look at Hawaii's model - though Delaware may want to use a different acronym.

Ninth Circuit Panel Rules on Use of False Confessions:  On Saturday, CrimProf Blog posted on a three-judge panel's ruling in the civil case, Crowe v. City of San Diego, that a coerced statement may be used as the basis for a civil rights claim if it is used in pretrial proceedings.  The panel then defined pretrial proceedings to include juvenile hearings and grand jury indictments.  Crowe arose from the investigation and prosecution of three innocent teenagers for the murder of Michael Crowe's 12-year-old sister Stephanie Crowe.  According to Jose Luis Jiménez and Greg Moran's article in the San Diego Union Tribune, "[t]he criminal case against the youths disintegrated just before trial, when DNA tests showed the 12-year-old girl's blood on the T-shirt of a transient, Richard Tuite."   

First One in Line:  At Volokh Conspiracy, Randy Barnett posts on an enterprising Georgetown Law student's attempts to be the "First One @ One First."  According to Barnett, and Georgetown Law student Mike Sacks, "First One @ One First" will follow Mike Sacks' attempts to be the first one in general admission line "[f]or every politically salient case" being argued before the U. S. Supreme Court.  This won't be an easy feat.  Sacks writes that he was the first one in line for oral arguments in Citizens United v. FEC only because he camped outside the U. S. Supreme Court the night before oral arguments. 

Orders and Opinions:  SCOTUSblog's Erin Miller posts that today, the Supreme Court granted certiorari in five cases.  The orders list is available here.  All five of the cases involve civil claims, but one case, John Doe #1 v. Reed (09-559), involves a first amendment privacy claim similar to one that could be raised by the supporters of California's Prop. 8.  Lyle Denniston has a post discussing the case on SCOTUSblog, and Tony Mauro has this post on Blog of Legal Times.  Denniston also reports that the Court is expected to issue one or more decisions next Wednesday.  More orders from today's private conference are expected on Tuesday.

"Sexting" Case Arrives in Third Circuit:  At Sentencing Law and Policy, Doug Berman posts that today, the case Miller v. Skumanick, became the first federal circuit court case to take up the issue of "sexting."  According to an article by Shannon P. Duffy in The Legal Intelligencer, Skumanick addresses several teenagers claims that former District Attorney George Skumanick Jr., violated their First Amendment rights when he threatened a child pornography prosecution if they did not take a class he had designed to educate youths about the dangers of sexting.  Based on Duffy's article, and Berman's comments, Skumanick may center around freedom of speech, but it also raises some interesting issues regarding prosecutorial discretion.  The attorney for former-District Attorney Skumanick argues it was not incorrect for Skumanick "[i]n his prosecutorial discretion ... to address the situation with an informal adjustment under which the girls and boys who had participated in the creation and dissemination of the photographs could attend a rehabilitative class where they could be educated to understand that such actions were illegal, inappropriate and extremely dangerous."

UK Parliament Justice Committee Urges Reduction in Prison Population:  Yesterday, CrimProf Blog posted a link to Sarah Miley's Jurist report that the UK Parliament Justice Committee's reinvenstment report urged that prison populations in England and Wales be reduced by a third.  The Committee apparently found that incarceration is a relatively ineffective way to reduce crime - except for serious offenders - and rehabilitation programs would be more effective for repeat offenders.  According to Miley, the Committee admitted that its proposal would not be easy to implement, but believed reduction was necessary to address problems of overcrowding. 

Totally off-topic.

California Ordered to Cut Inmate Numbers: SF Gate writer Bob Egelko reports on the state of the California prison system.  Yesterday, a federal court panel ordered the Schwarzenegger administration to lower California's prison population by more than 40,000 within two years to lessen overcrowding and improve health care.  The three-judge panel said its order, the first to require the administration to meet a deadline, was compelled by the state's "long-standing failure to provide constitutionally adequate medical and mental health care." The panel noted that the administration had already proposed to meet the goal by sending fewer minor offenders to prison.  Schwarzenegger's spokesman, Aaron McLear, however, had this to say: "We will fight any decision that orders early release and endangers public safety." McLear said the state expects the Supreme Court to hear its appeal and decide whether judges can issue orders that compel prisoner release.  The Supreme Court will consider on Friday, January 15th, whether to accept the appeal and set the case for full briefing and argument.

Ohio Executions Challenged Again: New York Times writer Ian Urbina reports on several court filings against the state contending that Ohio prison officials have shown a consistent disregard for their own rules in carrying out executions.  These include failing to ensure that execution staff members attend required rehearsals and training.  Lawyers for other death row inmates said they hoped to stop all executions in Ohio until the state's execution protocols were brought up to constitutional standards and there were better guarantees that those protocols would be followed.  In a 2008 ruling upholding the three-drug cocktail Kentucky used in executions, the Supreme Court rejected the claim that it posed an unconstitutional risk of a condemned inmate's suffering acute yet undetectable pain.  Allen L. Bohnert, a death row lawyer in Ohio, said the decision by the Supreme Court on the method's constitutionality was based on the faulty assumption that states followed protocol, when in Ohio, he said, that was proving not to be true.

Among the cases turned down by the U.S. Supreme Court is Bowling v. Kentucky, No. 09-6673. The defendant in this case is Ronnie Bowling, not to be confused with Thomas Bowling, co-petitioner in Baze v. Rees, or James Bowling, the trial judge who denied his new trial motion. (There seem to be a lot of Bowlings in Kentucky.)

The Kentucky Supreme Court opinion is here, case 2006-SC-000034-MR. Evidence at Bowling's trial included comparative bullet lead analysis, a technique since discredited. Fortunately, there was lots of other evidence. Bowling robbed three gas stations, killing people at the first two. Fortunately, the third victim was able to take cover and call police. A 30-mile car chase followed, during which Bowling threw his gloves out the window. The gun, matched by ballistics to all three crimes, was also found on the chase route. The surviving victim identified Bowling. Given the unlikelihood the verdict would have been different without the bullet analysis, the trial court was within its discretion to deny a new trial. Three justices dissented.

In another argument that can charitably be described as "creative," defendant claimed a Brady violation on the ground that the prosecutor might have asked the expert if there was a possible innocent explanation for the bullet match. The court patiently explains that nothing in Brady requires the prosecution to cross-examine its own witnesses, and defense counsel could just have easily asked the same question. No dissent on this point.

The Court also turned down Alameida v. Phelps, No. 09-519, a habeas case where the opinion below is unusually whiny, even for Judge Reinhardt.

Following up on the theme of yesterday's post, guess who wrote this about the failed Christmas plane bomber:

Did the administration's quick pivot to criminal charges -- they were filed the next day -- interfere with investigators' ability to obtain maximum information from Abdulmutallab? What if other operatives had been deployed with similar devices? Wouldn't it have been better to thoroughly interrogate Abdulmutallab -- without offering Miranda warnings against self-incrimination, and without providing a lawyer whose first instruction was, no doubt, to stop talking?

Such questioning would not preempt criminal charges from being filed later. It would simply prevent prosecutors from using such statements, and information derived from them, in the criminal proceedings. If prosecutors can safely pursue a criminal case against alleged Sept. 11 mastermind Khalid Sheik Mohammed after 183 waterboardings, there's not much risk in questioning Abdulmutallab. Given the available proof -- the explosives he was carrying and the planeload of eyewitnesses -- any first-year law student could win this case.

Is that Rivkin and Casey? Nope. Charles Krauthammer? Guess again.

Briscoe Preview: Lyle Denniston at SCOTUSblog has this extensive preview of Briscoe v. Virginia, a Confrontation Clause case to be argued Monday.

Three Successful Executions Yesterday:  Doug Berman writes on Sentencing Law and Policy that yesterday may have "mark[ed] a record for the modern administration of the death penalty in the US" with three successful executions in three different states.  Yesterday, Louisiana executed its first inmate since 2002, Ohio successfully implemented its one-drug lethal injection protocol, and Texas executed cop killer Kenneth Mosely.  Well, not quite a record. According to Berman, and commenter federalist, the Death Penalty Information Center's execution database contains only one day with more executions.  On December 9, 1999 Indiana, Oklahoma, Virginia and Texas carried out four executions. 

Nominations Sent Back to Senate: At Blog of Legal Times, David Ingram posts that President Obama is expected to renominate six people whose names the Senate returned to the White House last month.  According to a White House Official President Obama intends to renominate Dawn Johnsen for the Justice Department's Office of Legal Counsel.  Ingram reports that most Senate Republicans had opposed Johnsen's nomination because her views were too extreme to lead the Office of Legal Counsel.  Two other Justice Department nominees, and two nominees for district court seats are also expected to be renominated.  New York Times writer Charlie Savage also reported on the renominations, and American Constitution Society Blog collected renomination coverage from other sources on Wednesday.
     
The Supreme Court Returns with Orders and Opinions:  Today, Lyle Denniston has two posts on SCOTUSblog discussing action in the Supreme Court.  The Court has returned from its holiday recess and held a private Conference today.  After the Conference, the Court issued orders and granted certiorari in Dolan v. United States (09-367).  Denniston reports that the Court may issue more orders on Monday and is expected to hand down opinions on Tuesday and Wednesday of next week.

An Interesting SSRN Article on Juvenile Justice:  CrimProf Blog posts a link to Christopher Slobogin and Mark R. Fondacaro's law review article, Juvenile Justice: The Fourth Option.  The abstract argues that the "punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it[,]" but acknowledges that "claim[ing] that developmental differences between adolescents and adults make the former less blameworthy" is misguided.  They argue these claims are misguided because they "de-emphasize crime-reducing interventions, overstate the degree to which adolescent responsibility is diminished, and play into the hands of those who would abolish the juvenile justice system..."  As to overstating the diminished responsibility, CJLF made a similar point in its brief for the juvenile LWOP cases, Graham v. Florida and Sullivan v. Florida. 

Many Early Released Inmates are Back in Custody:  Associated Press writer John O'Connor reports that 56 inmates released by Illinois Governor Pat Quinn's secret early release program are back in behind bars.  At least 17 of those inmates are alleged to have committed violent crimes, including attempted murder, armed robbery, and domestic battery.  The program that gave the inmates early release was called "MGT Push".  This program, now halted, secretly changed a Corrections policy that required inmates to stay a minimum of 61 days.  Some inmates were given six months good time credit when they first arrived.  This made inmates eligible for release in as little as three weeks.  A document released Thursday shows 13 offenders went back to prison after going AWOL from parole or failing to comply with parole requirements, and 14 offenders spent little time of any on the street because they had no place to live.

Gunman Kills 3 and Himself at St. Louis Power Plant: New York Times writer Liz Robbins reports that Timothy Hendron, armed with a rifle, shotgun and handgun went on a shooting rampage at the ABB Power plant in North St. Louis.  Before taking his own life, Hendron killed three co-workers and injured five others.  Hendron use to work at the plant.  Recently, Hendron was named lead plaintiff in a class action lawsuit filed against ABB because of a dispute over the management of the company's pension fund.  The reason for the shooting remains unknown.

A Review of Courthouse Security:  Las Vegas Review Journal writer Ed Vogel reports that judges throughout Nevada will conduct studies to determine if local and state courthouse security is adequate, and if additional security is necessary.  The security concerns come after Johnny Lee Wicks, 66, opened fire in a U.S. Courthouse in Las Vegas, killing Stan Cooper, 72, and wounding U.S. marshal Richard Gardner, 48.  Supreme Court Chief Justice Ron Parraguirre said, "We have seen what can occur, and we need to be sure we can protect our judges, court staff and citizens."  Federal authorities have already started a nationwide review of federal courthouse security. 

UPDATE - Judges Consider Habeas Beyond Guantanamo:  SCOTUSblog's Lyle Denniston follows up on yesterday's post on al-Maqaleh, et al., v. Gates, et al. (Circuit docket 09-5265), and whether a D.C. Circuit Court panel will rule that Boumediene v. Bush applies to a military prison in Afghanistan.  Denniston reports that two judges "went searching" for a way for terrorism suspects to challenge detention when they are held overseas by the U. S. military, while Deputy U. S. Solicitor General Neal K. Katyal resisted at every turn.  Based on Denniston's report, Katyal's resistance could carry the day.  During argument, the detainees' counsel, Tina M. Foster, argued Boumediene was not limited to Guantanamo because the core issue is whether the government can hold any detainee for years, without any criminal charges, and never have to justify the captivity to a court.  Judges Tatel and Edwards did not appear to agree with this sweeping argument, and Foster's arguments did not appear to sway any judges.  Chief Judge Sentelle plainly told her that if habeas does not apply at Bagram, "you lose."  Mike Scarcella also reports on oral arguments at Blog of Legal Times, reporter Pete Yost covers the arguments for the Associated Press.   

Death Penalty Deters Texas Homicides:  At Sentencing Law and Policy, Doug Berman posts a link to an AP story reporting on a study that says the Texas death penalty deters homicides.  The article, by Michael Gracyzk, reports on a study of death penalty deterrence by researchers from Sam Houston State University and Duke University.  The study concluded that a monthly decline (between 0.5 to 2.5) of homicides in Texas follows each execution.  Criminologist Raymond Teske at Sam Houston in Huntsville and Duke sociologists, Kenneth Land and Hui Zheng, focused on Texas because the number of executions -- 447 since capital punishment resumed in 1982 -- is statistically significant enough "to make possible relatively stable estimates of the homicide response to executions."  Kent blogged on the study back in November, commenting that whatever monthly or "short-term deterrence this study finds is in addition to whatever long-term effect may exist."

Former Bush Lawyer Charged With Attempted Murder:  At Blog of Legal Times, David Ingram reports that John Michael Farren, "a onetime top official in both Bush presidencies," has been accused of attempting to kill his wife, Mary Margaret Farren.  According to the report by Ashby Jones on Wall Street Journal's Law Blog, Farren was arraigned today for last night's attack on his wife in their New Canaan, Connecticut home.  Both report that Mary Margaret Farren is in stable condition. 

Proposition 8 Hearings to be Broadcast on YouTube:  Today, on NRO's Bench Memos, Ed Whalen has a series of posts reporting on San Francisco federal judge Vaughn Walker's approval of a limited form of broadcasting for the Proposition 8 trial.  Whalen's three posts (here, here, and here) explain Whalen's belief that Judge Walker's order "should be overturned forthwith."  

Unrelated, But Fun, Baseball Story:  On Wall Street Journal's Law Blog, Ashby Jones reports that "Philly and NY Lawyers Tie For First in Oddest Bet Competition." 

"Nigerian Indicted in Terrorist Plot": New York Times writer Charlie Savage reports that the indictment of the Nigerian man who attempted to blow up a plane on Christmas day has rekindled the debate over whether terrorism suspects should be treated as criminals or enemy detainees.  In a six-count indictment, a federal grand jury in Michigan charged the man, Umar Farouk Abdulmutallab, with attempted murder on a plane, attempted use of a weapon of mass destruction and related offenses.  In a statement, Attorney General Eric H. Holder Jr. said that Mr. Abdulmutallab could face life in prison.  Christopher S. Bond (R.- Missouri), said on Wednesday that the indictment was a mistake. "We have learned the hard way that trying terrorists in federal court comes at a high price, from losing out on potentially lifesaving intelligence to compromising our sources and methods.  We must treat these terrorists as what they are, not common criminals, but enemy combatants in a war."

Focus for Governor Schwarzenegger Shifts From Prison to Schools: New York Times writer Jennifer Steinhauer reports on Governor Schwarzenegger's proposal to greatly reduce the amount of money California spends on its prisons and funnel that sum to the state's higher education system.  Yesterday, the governor also stated that he would push for a constitutional amendment prohibiting the percentage of the state budget earmarked for prisons from exceeding what is set aside for its public university system.  While the governor provided few details of his plan, much of the prison cost savings he envisions would come through privatizing services or prisons themselves.  Steinhauer writes this will be difficult to pass because the union for corrections officers holds political sway with lawmakers.

Ohio Uses Single Drug Execution for Second Time:  Columbus Dispatch writer James Nash reports on today's execution of a Toledo man.  This is the second man in the U.S. to be put to death using a single drug.  Vernon Smith was pronounced dead after prison staff administered a fatal dose of thiopental sodium, a powerful anesthetic.  Ohio's second use of the one-drug execution method met with much less critical acclaim than their first successful one-drug execution.

Militant Activity Begins Again for Former Gitmo Detainees:  LA Times writers Julian E. Barnes and Christi Parsons report that a report from the Pentagon states that one-fifth of the detainees who have been released from the U.S. military prison at Guantanamo Bay, Cuba, have resumed extremist activity.  The report follows the announcement by the Obama administration that it would halt Guantanamo transfers to Yemen.  Republicans are pushing for a more expanisive moratorium, in particular, demanding that the U.S. stop sending detainees to Saudi Arabia.  Charles Stimson, a scholar at the Heritage Foundation, criticized the Pentagon's report saying, "I have every reason to believe it is a very conservative [estimate] and the actual number is substantially higher than 20%."

Handling of Abdulmutallab:  Today's Wall Street Journal features an opinion piece by former US Attorney General Michael B. Mukasey criticizing the administration's reaction to the bombing attempt on Northwest Airlines flight 253.  Mukasey believes that the President fell short when he acknowledged that the plot had been hatched in Yemen, but then added "the misleading statement that Yemen faces 'crushing poverty and deadly insurgencies.'" For Mukasey "crushing poverty" is irrelevant because, as millionaire Osama bin Laden has shown, poverty does not beget terrorists.  The former Attorney General also writes that "[h]olding Abdulmutallab for a time in military custody...would have been entirely lawful" because the current administration will hold dangerous detainees for even a lengthy period in the U.S.  Mukasey closes his argument, stating there is much to worry about if the administration thinks that the principle challenge of the day is detecting bombs at the airport.  He believes the administration should be actively searching out, finding and neutralizing terrorists before they get there.

Heather MacDonald of the Manhattan Institute has this op-ed, with the above headline, in the WSJ.

The recession of 2008-09 has undercut one of the most destructive social theories that came out of the 1960s: the idea that the root cause of crime lies in income inequality and social injustice. As the economy started shedding jobs in 2008, criminologists and pundits predicted that crime would shoot up, since poverty, as the "root causes" theory holds, begets criminals. Instead, the opposite happened. Over seven million lost jobs later, crime has plummeted to its lowest level since the early 1960s. The consequences of this drop for how we think about social order are significant.

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The recession crime free fall continues a trend of declining national crime rates that began in the 1990s, during a very different economy. The causes of that long-term drop are hotly disputed, but an increase in the number of people incarcerated had a large effect on crime in the last decade and continues to affect crime rates today, however much anti-incarceration activists deny it. The number of state and federal prisoners grew fivefold between 1977 and 2008, from 300,000 to 1.6 million.

*                                *                              *

The spread of data-driven policing has also contributed to the 2000s' crime drop. At the start of the recession, the two police chiefs who confidently announced that their cities' crime rates would remain recession-proof were Los Angeles Police Chief William Bratton and New York Police Commissioner Ray Kelly. As New York Police Commissioner in the mid-1990s, Mr. Bratton pioneered the intensive use of crime data to determine policing strategies and to hold precinct commanders accountable--a process known as Compstat. Commissioner Kelly has continued Mr. Bratton's revolutionary policies, leading to New York's stunning 16-year 77% crime drop. The two police leaders were true to their word. In 2009, the city of L.A. saw a 17% drop in homicides, an 8% drop in property crimes, and a 10% drop in violent crimes. In New York, homicides fell 19%, to their lowest level since reliable records were first kept in 1963.

Low Violent Crime Rate Does Not Allow Us to Become Complacent:  Over the weekend Doug Berman posted a link to a Washington Post editorial, "Why are violent crime rates falling?", on his website Sentencing Law and Policy.  Berman quotes the piece "at great length" and compliments the editorial board for providing "the proper context and critical questions for considering crime and punishment policies as we head into a new decade."  Berman and the Washington Post both believe that the time has come to devote some energy to researching why violent crime decreased during the first 10 years of the 21st century. Neither the Post, nor Berman, can point to a specific reason for the decrease, but both believe tougher sentencing took some of the criminals off of the streets.  Berman also warns that now is not the time to become complacent in light of our modern success.

More Attacks on Federal Judges and Prosecutors...  At Blog of Legal Times, Mike Scarcella reports on a Justice Department report that found that threats and inappropriate communications to federal judges, U. S. Attorneys and Assistant U. S. Attorneys have increased from 592 in fiscal year 2003 to 1,278 in fiscal 2008.  The report also found that although threats continue, judges and prosecutors do not consistently and promptly report threats.  This hinders the ability of the U. S. Marshals Service to investigate and protect them.  The report comes amid news that a court security officer was killed and a deputy U. S. marshal was wounded today in a shooting at the federal courthouse in downtown Las Vegas. The shooter reportedly died shortly after being taken into custody.

Yet Federal Courts "Operating Soundly:"  Ashby Jones writes on Wall Street Journal's Law Blog that on New Years Eve, Chief Justice Roberts issued a traditional end of the year report, proclaiming, "[t]he courts are operating soundly, and the nation's dedicated federal judges are conscientiously discharging their duties."  Jones reports that instead of calling for judicial pay raises, like he did last year, the Chief Justice noted 2009's economic downturn, reporting that "filings of cases involving consumer credit, such as those filed under the Fair Credit Reporting Act, increased 53% (up 2,143 cases)..."  On Blog of the Legal Times, Tony Mauro wonders if Chief Justice Roberts' decision to focus on statistics was "A Missed Opportunity".  Mauro writes that today there was "some grumbling" that Roberts' report missed the opportunity to educate the public about the number of federal vacancies in the judicial branch, and should have highlighted improvements that could be made in courtroom security.   

Supreme Court Announces March Schedule:  At SCOTUSblog, Lyle Denniston posts that the Supreme Court has announced its schedule for oral arguments beginning March 22, 2010.  The Court will hear oral argument in the detainee case, Kiyemba v. Obama (08-1234) on Tuesday, March 23, and will review a state prisoner's right to challenge new sentence in federal habeas after winning a new sentencing in Magwood v. Culliver (09-158) on Wednesday, March 24.  The Court has scheduled several criminal cases for the following week.  It will hear Renico v. Lett (09-338) on Monday, March 29, Dillon v. U. S. (09-6338) and Barber v. Thomas (09-5201) on Tuesday, March 30, and Robertson v. U. S. ex rel. Watson (08-6261) on Wednesday, March 31.  Tom Goldstein wrote a helpful "Criminal Law Docket in Plain English" post over the holiday weekend to provide some background on the cases being argued in the Court this term. 

Prosecutor Immunity Case Settled: Lyle Denniston at SCOTUSblog reports that the parties to the prosecutor immunity case before the Supreme Court, Pottawattamie County v. McGhee, have requested dismissal under Rule 4.

Is Kyllo Still Good Law? Orin Kerr at VC has this post asking whether technology has already overtaken the Supreme Court's decision in the thermal imaging case decided just nine years ago, Kyllo v. United States, 533 U.S. 27 (2001).

9/11 Judgment Affirmed: The Fourth Circuit today upheld the conviction and sentence of the "20th hijacker," Zacarias Moussaoui. AP story here. Opinion here.

Fighting Crime With Technology and Strategy: Baltimore Sun writer Justin Fenton reports that London may influence the use of the closed-circuit television cameras (CCTV) in Baltimore.  Baltimore put up a CCTV system five years ago, and the city claims success, but some believe that the way the city implements the system is ineffective.  London officials have advised the city that it could improve the CCTV.  Rob McAlister, the Westminster city coordination manager, says that "It's not the CCTV that makes the crime go.  Without an overall plan, what you end up with is very expensive recording equipment."  In Baltimore the cameras were put in areas with high crime rates.  This pushed crime to different areas where cameras are not located.  City officials admit that they are not using the cameras to their full potential and are looking to places like London, Jerusalem, and Chicago to see how that full potential can be reached.   

Virginia Likely to Change Death Penalty:  Associated Press writer Dena Potter reports that there could be changes in Virginia's death penalty laws with the change of administration.  A similar article was on our News Scan Dec 11.   

Improving the Handling of Runaway Cases:  New York Times writer Ian Urbina reports that state and federal lawmakers are examining the way runaway cases are handled and how improvements can be made.  In recent months, at least 10 states have proposed or passed bills that focus on runaways and the way their cases are treated.  Federal law requires police to enter a missing persons report into the National Crime Information Center with in two hours of receiving them.  But this is not always done.  NY Representative Carolyn Maloney and NJ Representative Christopher H. Smith are proposing a law that will require law enforcement comply with the law and enter a runaways into the system during the allotted time frame.  Maloney is outraged by the failures of the reporting system and says, "It's absolutely inappropriate that many runaway children are missing not only from their homes, but also from the very database meant to help law enforcement officers find them."

Justice Scalia's Dislike of the Word Choate:  New York Times writer Ben Zimmer reports on Justice Anthony Scalia's dislike of the word choate.  Scalia has twice scolded lawyers for using the word.  The first time was in December 1992 during oral arguments for I.R.S. v. McDermott, saying "You know that there is no such word as choate."  The second time occurred last November when Randolph Barnhouse used the word during his oral argument.  Again, Justice Scalia reminded the Court of his dislike of the word by stating "there is no such adjective.  I know we have used it, but there is no such adjective as choate."  The misuse of the word choate came about because people mistakenly believed that the "in-" of inchoate was a negative prefix.  The word is still a fixture in property law and found in many dictionaries.

Fighting Gangs with Injunctions:  San Francisco Chronicle writer Demian Bulwa reports that Oakland plans to tame street gangs with civil gang injunctions.  With 116 killings in 2008, Oakland has the state's highest per capita homicide rates.  Deputy City Attorney Rocio Fierro says that gang injunctions are a way for cities to hold criminals accountable.  California has been using gang injunctions since the 1980s.  In 1997, the Supreme Court upheld their use.  Opponents of gang injunctions say that they are unfair and ineffective.  Proponents believe that injunctions will help gang plagued areas.  Community leader Bob Jackson, says, "They're not so notorious and bad when they're by themselves.  I would rather try something like that rather than continue the way we're going right now."

Post-Heller Challenge to Federal Regulation of Machine Guns:  At Sentencing Law and Policy, Doug Berman posts on Hamblen v. United States.  In Hamblen, the Sixth Circuit ruled that "the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns," and affirmed the district court's denial of Richard Hamblen's claims that his convictions for possession of machine guns and possession of unregistered firearms are unconstitutional.  Berman notes that Hamblen is one of the few post-Heller decisions addressing machine guns, and points out that the Sixth Circuit did not find it relevant that Hamblen may have personally manufactured his machine guns in order to better serve as a member of the Tennessee State Guard.  With regard to the nine unregistered machine guns possessed by Hamblen, the Sixth Circuit wrote, "whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use."

A "More Interesting" Second Half:  Orin Kerr posts on Volokh Conspiracy that more interesting cases will be heard and decided during the second half of the Supreme Court's term.  Kerr's post follows up on Michael Doyle's McClatchy Newspaper article (mentioned in yesterday's blog scan) with Kerr's own thoughts on why the Supreme Court occasionally engages in "backloading."  He speculates that the Justices may get more selective toward the end of the term and take more important cases to be heard at the end of the term.  He also believes that law clerks may have a greater incentive to recommend more interesting cases for the spring term, and before their clerkship expires in the fall.   

Some Supreme Court Justice Speculation:  On Monday, Jonathan Adler wondered how the terrorist attempt to blow up a passenger jet on Christmas Day would affect Janet Naplitano's chances of making the SCOTUS shortlist.  A New York Times piece by Peter Baker provides some insight into why she may no longer be one of the President's top choices - like she was in May.  

Freakanomics Blog Takes a Look at How Justice Kennedy Could Vote:  On the New York Times' Freakanomics Blog Ian Ayers wondered whether prediction markets or super crunching of numeric data would better predict how Justice Kennedy would vote.  Ayers compared Josh Blackman's SCOTUS fantasy league, a traditional "wisdom of the crowds" predictor, with a statistical algorithm developed by four professors.  The comparison inspired Ayers to create his own Justice Kennedy Prediction Tool that allows users to plug in answers for six questions (such as "the ideological direction of lower court decision") and receive predictions of whether Kennedy will affirm or reverse the lower court opinion.  Josh Blackmun used the predictor to see if Kennedy would vote to affirm the lower court in Maryland v. Shatzer (CJLF brief available here) and found that Kennedy would vote to affirm.  Only 43% of FantasySCOTUS.net members agreed.  For more on Justice Kennedy and his judicial philosophy check out Lyle Denniston's book review of Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty by Frank J. Colucci. 

Terrorist Attempt Demonstrates It's Time We Started "Getting Serious About Terrorism":  Umar Farouk Abdulmutallab's bombing attempt has inspired Volokh Conspiracy blogger David Bernstein to comment that "[e]ver since 9/11, I've had the feeling that the U.S.'s domestic counter-terrorism efforts, including the Patriot Act, various airport security measures, and the like, have not been especially serious."  He believes "the U.S. could take some obvious counter-terror measures that don't even seem to have been seriously considered."

Saving the Tough Cases for Last:  On How Appealing, Howard Bashman posts a link to Michael Doyle's McClatchy Newspapers article "Supreme Court has saved toughest cases for second half." Doyle writes that when the Court returns for oral arguments on January 11, 2010, it will have decided only four cases "none dealing with the cases for which the term is likely to be remembered."  Left undecided are questions about whether the government violates the First Amendment when it bans corporations from spending their own money on political campaigns, and whether states violate the Second Amendment when they ban gun possession.  He writes that as these issues are decided, we are sure to learn more about the Supreme Court itself.  For example, will Justice Stevens retire in 2010?  And, how will Justice Sotomayor embrace her role as the newest Supreme Court Justice?

Second Murder Conviction Overturned Because of Prosecutor Error:  At Wall Street Journal's Law Blog, Amir Efrati reports that Zachary Wilson had his second murder conviction overturned by the Third Circuit.  Efrati reports that the Third Circuit, in an opinion authored by Judge Jane R. Roth, said prosecutors had violated Wilson's constitutional rights by failing to disclose facts about three of the government's key witnesses.   According to a Legal Intelligencer article by Shannon P. Duffy, Wilson's first murder conviction was overturned in 2005 on grounds that prosecutors improperly struck blacks from the jury.  Wilson had been convicted for shooting of David Smith following a dispute over a game of craps in 1982.  His second conviction, for the August 1981 gangland-style slaying of Jamie Lamb in a North Philadelphia bar, was overturned because the prosecutor had improperly withheld information that would have been considered important to the defense for its value in impeaching the witnesses.

Supreme Selection:  At Sentencing Law and Policy Doug Berman has posted a link to Judge J. Harvie Wilkinson III's essay on the docket and case selection process of the Supreme Court.  The essay, "If It Ain't Broke...", tackles reformers' complaints that the Supreme Court should decide more cases and that the mechanism used to select cases ought to be changed.  Berman writes that he does not agree with everything that Judge Wilkinson III says, but that he does agree that dramatic modification of the case selection process could do more harm than good.   For example, Judge Wilkinson III believes that dramatic change will lead to more litigation, lead to further politicization of the judicial process, and warns "Congressional reform of Supreme Court structure sets a dangerous precedent that can be used to undermine judicial independence and the separation of powers in the future." 

An "Unorganized Militia" to Fight Terror:  At Volokh Conspiracy Randy Barnett blogged over the weekend that Umar Farouk Abdulmutallab's failed attempt to bomb Northwest flight #253 "highlights the importance of the unorganized militia in asymetric warfare."  Barnett believes that an unorganized militia - those not in the National Guard or Naval Militia - may be the "only self defense available when domestic or foreign terrorists chose their next moment for murder."  He is quick to point out that he is not advocating the arming of passengers on airplanes, but rather believes there is a need for a militia "in a world of hyper-lethal armies" engaged in asymetric warfare.  Barnett believes that Congress could achieve a well-regulated militia through voluntary training programs that make "people feel empowered to defend themselves... and conscious of their responsibilities as militia members to act when an emergency arises..."
 
Sacramento Joins the McDonald v. Chicago Debate:  Today, on How Appealing, Howard Bashman posted a link to Loretta Kalb's Sacramento Bee report that the Sacramento City Council has voted to join other cities in supporting Chicago in the Second Amendment case, McDonald v. Chicago.  According to Kalb, the amicus brief submitted on behalf of Sacramento and other cities is expected to argue that state and local governments are exercising one of their core police powers by regulating possession and use of firearms.  Sacramento currently regulates handguns and ammunition by requiring handgun owners to report a lost or stolen firearm or be charged with a misdemeanor, and requiring firearms dealers to thumb-print and electronically report the names and addresses of those who buy ammunition.  Nathan Koppel covers the Sacramento City Council's decision on Wall Street Journal's Law Blog. 

There's a whole lot of shakin' goin' on among the heads of criminologists, as FBI figures show a drop in crime despite tough economic times. This AP article by Devlin Barrett is most remarkable for the factor that the experts he interviewed did not dare to mention -- the "elephant in the living room."

Preliminary FBI crime figures for the first half of 2009 show crime falling across the country, even at a time of high unemployment, foreclosures and layoffs. Most surprisingly, murder and manslaughter fell 10 percent for the first half of the year.

"That's a remarkable decline, given the economic conditions," said Richard Rosenfeld, a sociologist at the University of Missouri-St. Louis who has studied crime trends.

A drop in property crimes may be unexpected during a recession, as there is some correlation between unemployment and property crimes. However, a drop in violent crimes in such a period should not surprise anyone, as there is no significant correlation to begin with. People do not commit rape and murder because they are in financial need; they do it because they are evil.

Man Wants to Claim Necessity Defense in Abortion Case: A CBS/AP story reports that Scott Roeder is seeking ways to use the necessity defense for his trial for the murder of abortion provider Dr. George Tiller.  Roeder is charged with one count of premeditated murder in Tiller's death and two counts of aggravated assault for allegedly threatening two ushers during the May 31 melee in the foyer of the doctor's Wichita church.  Roeder wants to argue at trial that the killing was justified to save the lives of unborn children.  The necessity defense has been sought before, yet rarely been successful in abortion cases.  District Judge Warren Wilbert will rule later today on whether Roeder can use the necessity defense.  Update:  the AP reports that the judge has rejected Roeder's request, ruling that the necessity is not viable under Kansas law.

Experts Puzzled Over Low Crime During Recession: Contra Costa Times writer Stacia Glenn and the Associated Press report that experts are wondering why the crime rate has not increased as the national recession leaves more people unemployed.  Preliminary figures gathered by the FBI show that for the first six months of 2009, crime has fallen in cities like Fontana and Victorvile.  Nationwide, violent crime fell by 4.4 percent and property crimes dropped by 6.1 percent.  For decades, the conventional wisdom among progressives is that unemployment is one of the root causes of crime, which led to the belief that the 2009 job losses would cause crime to soar.  Interestingly enough, the crime rate has not been this low since the 1960s.

Oakland Police Focus on Guns, Gangs, and Drugs:  San Francisco Chronicle writer Chip Johnson reports that the Oakland Police Department has a new focus on what they call the "Big Three"- guns, gangs, and drugs.  Chief Anthony Batts wants a chance to be the leader that helps decrease the crime rate in Oakland.  Others have attempted this task, like former Mayor Jerry Brown and current Mayor Ron Dellums, but their efforts failed.  Batts wants to use technology to aid intelligence gathering, which can lead to better deployment of the city's understaffed police department.  Instead of blanket suppression, Chief Batts is targeting specific offenders who cause most crime, a process he knows will not be an easy one.  The only thing Batts needs now is the support of local elected officials.

State Budget Problems Halt Development of Sex-Offender Facility:  The Associated Press reports that construction of a Connecticut treatment center for sex offenders on parole or probation has been put on hold due to the state's budget problems.  Now, sex offenders let out of prison have nowhere to go.  Ransome Lee Moody was ordered by a judge to report to the facility, approved by the state legislature last year, as a condition of his probation.  Now, he will be monitored with a GPS device and be required to report seven days a week to a program for training in life skills.  Moody is considered so dangerous and untreatable that requests to eight other states to place him in one of their residential facilities have been denied.  State Rep. Micheal P. Lawlor said, "I realize that tough decisions have to be made but if I was governor, I would put a secure facility up and running for (Moody) and others like him who could potentially be a threat to public safety."

Guantanamo Bay Detainees Begin New York Hearing:  New York Daily News writers John Marzulli and Bill Hutchinson report that a federal grand jury in Manhattan has begun hearing evidence against alleged 9/11 mastermind Khalid Shaikh Mohammed and four of his Al Qaeda henchmen.  The jurors are expected to hear testimony and be presented with evidence that the men plotted the 2001 attacks that killed nearly 3,000 people.  The controversial decision move the men to New York and begin their trial sparked protests from the families of 9/11 victims.  The panel was seated in recent days and could take several weeks to hand down an indictment.

Ohio's New Execution Method Unlikely to Gain Traction in CA:  LA Times writer Carol J. Williams reports on this Tuesday's execution in Ohio, where a murderer was put to death with the nation's first single-drug lethal injection.  This marks the first time the execution method, some analysts consider more humane than the three-drug procedure used in California, was used.  California, and several other states that have the death penalty on hold, are reviewing their three-drug procedures to address claims that they might be inflicting cruel and usual punishment on the inmates.  The first drug, used in Kenneth Biros' execution Tuesday, is supposed to render the prisoner unconscious before paralysis is induced by the second drug.  Cardiac arrest is induced by the third drug.  California could change its method, but it is unlikely.  The State's Administrative Procedures Act requires authorities to seek public comment on any change in official practice.  Capital punishment supporters say opponents abuse the law to delay executions.  "Opponents of the death penalty then intentionally make that process more expensive and time-consuming than necessary by spamming [correction officials] with a flood of irrelevant comments decrying the death penalty generally," said Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.  Currently, the legal rights of capital prisoners contribute to an average 25-year period between sentencing and execution.  Only six of California's 685 death row inmates have exhausted all appeals and would be subject to execution.

Judge Comments on Ohio Inmate's Execution Appeal:  Associated Press writer Andrew Welsh-Huggins reports on a federal judge's statement that Ohio inmate, Romell Broom, may no longer have a valid pain and suffering claim to stay his execution.  U.S. District Judge Gregory Frost did not make a ruling but said Wednesday that developments in Kenneth Biros' execution could limit what killer Romell Broom may argue.  Frost says the Sixth Circuit's ruling appears to limit Broom to another argument over whether the state has the right to carry out a second execution attempt.

Finding an Attorney for Khalid Sheik Mohammed:  At Wall Street Journal's Law Blog, Ashby Jones reports that the attorney for Khalid Sheik Mohammed could be chosen from New York's "death list" - a group of 20 veteran defense lawyers with broad experience in death penalty and other complex criminal cases.  According to a New York Times story by Benjamin Weiser, the "death list" has at least two lawyers, Avraham C. Moskowitz and Joshua L. Dratel, who have some connection with terrorist attacks on the World Trade Center. Moskowitz even told Weiser, "I could not take that case, my background, my politics, my very essence would create the appearance of a conflict."  Whoever is chosen is up for a tough fight, particularly when a majority of Americans support the death penalty if KSM is found guilty.

A First for Justice Sotomayor:  Tony Mauro reports on Blog of Legal Times that Justice Sotomayor delivered her first opinion as a Supreme Court Justice today.  The opinion, Mohawk Industries v. Carpenter, held that disclosure orders adverse to attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine.  Mauro reports that it is customary for first opinions to be unanimous and that the Carpenter opinion was unanimous.  Justice Thomas authored a concurring opinion.  Jonathan H. Adler also notes "Sotomayor's First" on Volokh Conspiracy.

Commentary on Michigan v. Fisher:  Yesterday, on Volokh Conspiracy, Orin Kerr posted his thoughts on the Court's decision in Michigan v. Fisher.  Kerr notes that the facts of Fisher are "pretty similar" to Brigham City v. Stuart, and is surprised that the Court decided to take the case.  He believes the Court may have taken the case as a form of "error-correction just to make sure the state Supreme Courts are paying attention."  Kerr also appears surprised by Justice Stevens' dissent from the opinion.  Kerr discusses the Justice's argument that "the Court is justified in micromanaging the day-to-day business of state tribunals," and wonders why Justice Stevens, who "isn't known for his passion for federalism," took this opportunity "to raise federalism concerns."

Releasing an "Unrepentant" Pedophile:  At Sentencing Law and Policy, Doug Berman links to a story describing that the "oldest sex offender" is about to be released in Upstate, New York.  The Buffalo News story, by Lou Michel, explains that twice convicted sex offender, Theodore A. Sypnier, is about to be released from prison even though the former District Attorney believes Sypnier "remains a threat."  Sypnier, a 100 year-old pedophile, remains "unrepentant," and claims he is the victim of a colossal miscarriage of justice.  The current Erie County District Attorney Frank A. Sedita III believes that Sypnier "can't be cured....He's evil."  Michel reports that Synpier was ruled ineligible for a lifetime of civil commitment, and that authorities plan to monitor him closely upon release.  He will be monitored until 2012, but New York's Division of Parole told Michel that "[a]fter 2012, we will no longer be supervising him."

Another Side to Lethal Injection Arguments:  At Homicide Survivors, Dudley Sharp dissects three arguments made against lethal injection in the United States.  First, Sharp tackles the argument that the murderer will experience pain during the procedure. He writes that although select research has suggested that the amount of sodium thiopental in the murderer's system may indicate that the executed was conscious, the authors of the often cited Lancet Study were "speculating."  Sharp's post offers up evidence from Michael Ross' execution to counter the speculation.  He then moves on to tackle the anti-death penalty argument that there is an ethical conflict for participation in the lethal injection process, because medical professionals have a requirement to "do no harm."  Sharp dispenses with the argument by pointing out that "ethical codes pertain to the medical profession, only, and to patients, only. Judicial execution is not part of the medical profession and death row inmates are not patients."  Sharp's third point addresses the argument that prison officials are not properly trained for IV application of drugs.  He notes that there are few errors in lethal injection that can be attributed to personal error, and states he is "unaware of evidence that shows criminal justice professionals are more likely to commit critical errors in the lethal injection process than are medical professionals in IV application.

Padilla Post-Argument SCOTUScast:  The Federalist Society's SCOTUScast series posted commentary from the United States Military Academy at West Point's Department of Law Professor Margaret D. Stock, on Padilla v. Commonwealth of Kentucky.  Padilla examines the claim an attorney was ineffective for failing to advise his client of the deportation consequences of pleading guilty.  Stock is well known in the area of immigration and citizenship law, and has testified as an expert before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, & International Law.  She finds the implications for immigrants "significant."  She believes that Padilla's case can have wide ranging effects for immigrants who plead guilty to relatively minor offenses.  She says that in many states judges in a criminal case will actually advise the defendant of the consequences of his guilty plea. In describing oral arguments Stock notes that Justice Scalia was concerned that the Supreme Court would be creating an undue burden if it were to create a Sixth Amendment right to counsel for all sorts of legal issues that a defense attorney might not be capable of management.  Stock believes that this could mean that the Court could limit its decision to apply only to the cases like Padilla's.  Transcripts from the October 13 argument are available here.

"Lincoln and Habeas:"  On Saturday, How Appealing's Howard Bashman linked to John Yoo's SSRN essay, "Lincoln and Habeas: Of Merryman, Milligan and McCardle."  According to the Abstract, the essay "examines the costs of judicial intervention in wartime policy through the lens of three Civil War cases - Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle."  He writes, "The Court's attachment to judicial supremacy in wartime ultimately provoked outright presidential defiance and the only clear example of congressional jurisdiction-stripping in the Court's history." 

Cert Granted in Law School Case:  At Blog of Legal Times, Tony Mauro writes that today, the Supreme Court agreed to hear Christian Legal Society v. Martinez, a case addressing University of California, Hastings College of the Law's denial of official recognition to the student group because it does not conform to the school's requirement that membership and leadership positions be open to all.  According to Mauro, the Ninth Circuit, in a brief unpublished opinion, said the law school's action was "viewpoint neutral and reasonable." The Christian Legal Society petitioned for cert., asserting that the Ninth Circuit's decision is in clear conflict with a Seventh Circuit decision involving the same organization, Christian Legal Society v. Walker.  University of Hastings predictably denied conflict among the lower courts, and sought to distinguish Walker.  The Court must not have agreed, and granted certiorari to determine whether a public university law school may deny school funding and other benefits to the student organization.  Eugene Volokh comments on Volokh Conspiracy that the Court's decision could extend beyond schools and "apply to tax exemptions and various other such schemes." 

As noted in Friday's Blog Scan, the Sixth Circuit on that day denied rehearing en banc to the challenge to Ohio's since-abandoned three-drug method of execution. That controversy is moot, and the court noted that the new one-drug method was not before it.

The day before, murderer Kenneth Biros had filed in the District Court a curiously titled "Emergency Motion of Intervenor-Plaintiff Kenneth Biros for a Temporary Restraining Order, or, at the very Least, for an Order under the All Writs Act Staying his Execution by Defendants and the State of Ohio." That motion was denied this morning in a grumbling 191-page opinion and order by District Judge Frost.

Biros's attorneys have asked the Sixth Circuit for a stay, Andrew Welsh-Huggins reports for AP. Also, Alan Johnson has this story in the Columbus Dispatch.

Legal Battle over Ohio's Lethal Injection Protocol:  Doug Berman reports on Sentencing Law and Policy that the Sixth Circuit has officially denied en banc review of a panel's ruling that Kenneth Biros challenge to Ohio's old three-drug lethal injection execution protocol is moot.  Berman recommends downloading the opinion just to read the concurring and dissenting opinions of Judge Sutton and Moore.  He notes that Judge Sutton's concurrence "suggests that Ohio's adoption of a new one-drug lethal injection protocol largely solves the asserted constitutional problems with Ohio's execution method."  Judge Moore sees things differently.  She believes that the Sixth Circuit erred in construing Biros' complaint as solely a challenge to Ohio's three-drug protocol, and still finds merit in the argument that "the old procedure and the new one share a common problem: poor training by the State of the relevant medical staff and the use of EMTs in implementing the protocol."  As Berman notes, this still does not resolve Biros' separate challenge to Ohio's single drug protocol, but it does increase the odds that he will be executed next week. 

Regarding Recusals:  Both David Ingram and Tony Mauro report on recent activity surrounding the issue of judicial recusals.  In his post, Blog of Legal Times reporter, Tony Mauro, discusses Justice Stevens' Wednesday recusal in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection.  Mauro reports the recusal may have been triggered by information about Stevens' Ft. Lauderdale property provided last week by the Cato Institute.  The Cato Institute filed a brief in the case and reports that last week one of its fans sent it public documents indicating that Justice Stevens' condominium is within a renourishment zone similar to the property at issue in the case.  In a related Blog of Legal Times post, David Ingram writes that the House Judiciary will hold hearings on judicial recusal on Thursday, December 10th.  Ingram writes that lawmakers plan to examine the process that federal judges use to decide recusal motions.  The hearings will mark the first time Congress has addressed recusals in a significant way since 2004.

Court Advocate Gets T.V. Show:  Ashby Jones writes on Wall Street Journal's Law Blog that NBC is developing a show around Akin Gump attorney, and Supreme Court practitioner, Tom Goldstein.  Variety's Michael Schneider was first to break the news.  He reported that NBC is planning to call the show "Tommy Supreme," and base it off of Goldstein's early days as an attorney who worked from home as he looked for cases likely to make it to the high court, volunteering to represent litigants for free.