Results matching “first”

UPDATE Italy Convicts 23 in CIA Trials:  New York Times writer Rachel Donadio reports on the recent convictions of twenty-three Americans for the seizing of a Muslim cleric from the streets of Milan more than six years ago.  While three of the high-ranking American defendants were given diplomatic immunity, CIA station chief in Milan, Robert Seldon Lady, received an 8-year-term for his part in the seizure.  The other twenty-two Americans each received five years.  All were tried in absentia and it is unlikely that any will serve.  This was the first time American agents were tried in a foreign country for kidnapping and rendition.

Ohio Begins Setting New Execution Dates:  Associated Press writer Andrew Welsh-Huggins reports that after Gov. Ted Strickland's unprecendented halt of an execution, and grant of five-months reprieve to death row inmates, the Ohio Supreme Court has set two new execution dates.  These two dates are scheduled for May 13th and June 10th, even as the state develops new policies for lethal injection following the two hour failed attempt to execute inmate Rommel Broom.

Marijuana Statement Release by White House:  In a statement by Office of National Drug Control Policy Director R. Gil Kerlikowske, Kerlikowske is quick to point out that the Department of Justice's guidelines on marijuana usage are not meant as a Federal government approval of medical marijuana.  Marijuana legalization is something that is not on the agenda for the Obama administration.  Legalization is being sold as a cure-all for ending violence in Mexico, a cure to state budget problems, and a cure for health problems, Kerlikowske states, but American's should be skeptical of anyone selling one sultion as a cure for every single problem.  The taxes collected on legal drugs, alcohol and tobacco, substances pale in comparison to the social and health care costs related to their widespread use.

Stifling Prosecutors Worries Courts:  Associated Press writer Jesse J. Holland reports on a Supreme Court case in which two prosecutors were sued by the men they had convicted of first-degree murder.  The convictions were thrown out and the men sued the prosecutors. The lawyers unsuccessfully argued in the civil rights suits against them that they had absolute immunity because they were doing their jobs as prosecutors.  The case was argued before the Supreme Court this morning, several justices are worried about the effects such a ruling would have on prosecutors, where suspects would be able to sue prosecutors simply because they didn't like the verdict.  An earlier blog scan on the case can be found here. The argument transcript in Pottawattamie County v. McGhee is here.

One year ago, things looked grim for the forces of justice. A great deal of progress had been made in the previous 20 years, but a real danger of seeing it all undone was there. It was not just that the White House and both houses of Congress were in the hands of the Democratic Party. That had been the case in much of the post-WWII era. The danger was that the Democratic Party itself was in the hands of its further left (or "lefter") wing. From VJ Day through 2004, every time the Dems nominated their lefter candidate, they lost the general election. Now a disciple of Saul Alinsky (author of Rules for Radicals) was in the White House, and Nancy Pelosi (D-Wackoville) remained Speaker of the House. Although crime had been a nonissue in the election, friends of criminals were ascendant. What would happen next? Would the Supreme Court be filled with younger versions of Judge Reinhardt? Would the habeas reforms of AEDPA be repealed? It was not out of the question.

It didn't happen in the first year. I don't doubt that they would have liked to do these things, but they were not high on the agenda. In Supreme Court nominations, an unnamed White House official told the press "on background" that Democrats are always afraid of being pegged as "soft on crime," and Justice Sotomayor's prosecutor background and moderate-to-tough record in criminal cases as a judge were therefore considered pluses. We dodged a bullet (I think) because politics trumped ideology. On the legislative side, there apparently just wasn't room on their very full plate for rolling back the habeas reforms of AEDPA.

And what will the next year hold? Well, if they were scared of the "soft on crime" tag before, they should be terrified now. The off-year election is one year away. That is a point in the cycle in which the White House party historically loses seats, and it will be one year after Republicans won decisively in a state Mr. Obama carried and, more significantly, also won in a very heavily Democratic state. It will be an election in which war and the economy will likely be reduced as issues below what they were in 2008, raising the possibility that crime will resurface as an issue.

Let us suppose, hypothetically, that a Supreme Court Justice retires this June, five months before the election. Will this White House nominate one of the many Court of Appeals judges who delights in letting murderers off death row? Not likely. Will Pelosi, Reid, and Co. ask their members to pass pro-murderer legislation? Not likely. If they do, will members in genuinely contested seats vote for it? Not a snowball's chance in hell.

There is good reason to hope that the change already achieved will be maintained for the foreseeable future. Nothing good legislatively will come out of Nancy Pelosi's Congress, but they probably will not do much harm in the criminal law. Further positive change is quite likely in the judicial arena, and good legislation is a possibility in the next Congress. If the Republicans gain a substantial number of seats they might take control, but even if they do not the Democrats might see the light and dump their present leadership for people closer to the American median. It is not too much to hope that the 112th Congress will be in the control of persons of sense, and that would be a most welcome change.

Some precedents are so obnoxious that seeing them overruled becomes something of a mission in itself. Among my career targets have been Fay v. Noia, 372 U.S. 391 (1963), overruled in Coleman v. Thompson, 501 U.S. 722 (1991) and Brown v. Allen, 344 U.S. 443 (1953), abrogated by Congress in AEDPA as recognized in Williams v. Taylor, 529 U.S. 362 (2000).

In Sullivan v. Little Hunting Park, 396 U.S. 229, 234 (1969), Justice William O. Douglas wrote for the Court that the U.S. Supreme Court had jurisdiction to review a federal question despite a state court ruling that the plaintiff had defaulted the claim under state law, for no reason other than that the rule "was more properly deemed discretionary than jurisdictional...." This is quintessential Douglas. If he researched the precedents on this question at all, the opinion shows no sign of it. His Imperial Majesty just issued his decree, and that was that. The odd thing was that four of his colleagues, some of whom usually had more sense than that, went along with it.

There actually was a good reason for holding the state ground inadequate, and Justice Harlan explained it in five pages of the dissent (242-247).  But "the majority's loose use of the word 'discretionary'" would cause problems for many years to come. See also 16B Wright, Miller, & Cooper, Federal Practice and Procedure, § 4026, pp. 385-386 (2d ed. 1996). One recent instance was Kindler v. Horn, 542 F.3d 70, 80 (CA3 2008), where the Third Circuit said,

When Kindler escaped in 1984, Galloway [a state court precedent on the fugitive dismissal rule] had not been overruled. Accordingly, the state trial court still had discretion to reinstate his post-verdict motions. Accordingly, we conclude that, under Doctor [a Third Circuit precedent on the "adequacy" of Pennsylvania's rule], Pennsylvania's fugitive waiver law did not preclude the district court from reviewing the merits of the claims raised in Kindler's habeas petition.

Ouch. The state court having discretion is enough to brush aside the state rule, and no more needs to be said?  The case was argued today in the Supreme Court as Beard v. Kindler. I feel confident in saying that Sullivan is down for the count. Justice Breyer says on page 38, "everybody agrees that the simple existence of discretion does not make a State ground inadequate...."

But just saying that and sending the case back, as some seemed to want to do, would provide insufficient guidance, Justice Breyer goes on. Discretionary rules will always have some degree of inconsistency in application. Doesn't the Court need to explain how to answer the inevitable follow-up question of how much is too much?

In CJLF's brief, we urge the Court (not for the first time) to adopt the late Charles Alan Wright's approach of reasonable notice and opportunity to make the claim. The state agrees. I don't know if the Court will go that far, but the law after Kindler should be in better shape than it was before. And Sullivan will finally be dead and buried.

Update: Erin Miller at SCOTUSblog has a different take on the argument.

Juvenile Convictions Thrown Out Because of Corrupt Judge:  Associated Press writer Michael Rubinkam reports that corruption charges against Judge Mark Ciavarella has led the Pennsylvania Supreme Court to dismiss thousands of juvenile convictions.  The Court doesn't believe they received a fair hearing. Order found here.   Judge Ciavarella, along with Luzerne County Judge Michael Conahan, is being charged with accepting millions of dollars in kickbacks for sending youths to private detention centers.  The state Supreme Court said, "Ciavarella's admission that he received these payments, and that he failed to disclose his financial interests arising from the development of the juvenile facilities, thoroughly undermines the integrity of all juvenile proceedings before Ciavarella."  Both Ciavarella and Conahan are awaiting trial after being indicting by a federal grand jury on 48-counts of racketeering.  Berks County Senior Judge Arthur Grim is in charge of reviewing cases handled by Ciavarella, and will recommend to the the state court any cases he feels should be retried.  Marsha Levick, legal director of the Philadelphia-based Juvenile Law Center, says that the Ciavarella case "[is] the most serious judicial corruption scandal in our history and the court took an extraordinary step in addressing it."   

Defendant Wants to Receive the Death Penalty:  Tulsa World writer Bill Braun reports on the competency hearing ordered for confessed murderer Joshua Muller because he has asked his attorneys not to present mitigating factors during the sentencing phase if his trial.  He does not want to be spared from the death penalty.  On Sept. 23, Muller pleaded guilty to two counts of first-degree murder for fatally shooting Leah Harris-Fuqua, 12, and Derrick Ross, 16.  Muller has also pleaded guilty to a count of shooting with an intent to kill for wounding Sheridan Rand, then 12.  The mitigating evidence Muller's attorneys were planning on introducing included his "long standing history" of child abuse and his "severe mental health issues."  But Muller says that he "just want[s] to get this done with." He told Tulsa County Judge Clancy Smith that he wants to "get to the finish line."  Because of his request, Judge Smith order a mental competency evaluation for Muller.  The evaluation is scheduled for Nov 23. 

Authorities Attempt to Snag Sex Offenders:  CNN writer Jim Spellman reports on a four-day sweep by authorities rounding up sex offenders in Colorado.  The sweep is being called Operation Shepard, and according to the US Marshals Service, it has lead to the arrests of a 106 sex offender fugitives.  The sex offenders who were captured are charged with crimes including, failure to register as a sex offender, sexual assault against children, incest and child prostitution.  Some captures came easy, like the capture of a man convicted in 1990 of a sex offense, on the run since 2006.  In his case, prison records of his ex-wife's visits led authorities to her home, and his where abouts.  But some efforts end up leading nowhere, and the fugitive eludes capture.  Deputy US Marshal Eric Helsing is not deterred by investigations that do not produce an arrest because he "believe[s] that the community is safer.  [And] that's all that matters." 

Supreme Court Petitions to Watch:  SCTOUSBlog's Erin Miller has posted a list of "Petitions to Watch" for the Supreme Court conference tomorrow.  Kent noted in his earlier post that Wong v Belmontes (08-1263) and Bobby v. Van Hook (09-144) have been relisted.  Another crime-related case up for consideration is Manning v. United States (08-1595).  Manning asks the Court to address whether a judgment on Federal Tort Claims Act claims bars a judgment on Bivens claims when the claims were brought together in the same lawsuit. We blogged about Manning last October, when the Seventh Circuit upheld a lower court decision that Manning could not collect his jury award.  Manning was given the death penalty on a murder conviction in Illinois and a life sentence for a kidnapping in Missouri.  When both convictions were overturned he filed suit against the FBI, saying he was framed.

LWOP in California:  Thanks to posts from How Appealing's Howard Bashman and Sentencing Law and Policy's Doug Berman we have a link to Lawrence Hurley's Daily Journal article U.S. Supreme Court Considers Life Sentences for Juveniles.  The article discusses how the Supreme Court's decisions in Graham and Sullivan could effect juveniles sentenced to life without parole in California.  The article also quotes CJLF's Kent Scheidegger.  CJLF is concerned that Graham and Sullivan could add fodder to defense-side arguments for softer punishments, just as they immediately tried to use Roper outside its capital punishment context.  

Guilt First, Sentencing Second - The Structure of a Verdict:  CrimProf Blog has posted a link to Talia Fisher's SSRN article, Rethinking the Bipolar Structure of the Criminal Verdicts.  In her article, Fisher argues against assumptions that the decision making processes during guilt and sentencing phases can be separated.  According to the paper's abstract, she claims she will demonstrate that our sentencing structure has created "a de facto correlation between certainty of guilt and severity of punishment."  She also seeks to show that when reasonable doubt as to guilt is not an issue, "correlating the size of the punishment with the certainty of guilt is preferable to uniform punishment."  She also believes that "when the certitude level as to the defendant's guilt does not reach the beyond reasonable doubt standard of proof, the imposition of partial punishment...can lead to better outcomes than the existing alternative of full acquittal and no punishment." 

The American Law Institute recently adopted a compromise position on the death penalty. The background is in a report available here. The Model Penal Code section on the death penalty was withdrawn, a move many supporters of capital punishment, including CJLF, agree was proper. The proposal for ALI to take a stand against the death penalty was decisively rejected.

Innocence Project Report on Willingham: At Homicide Survivors, Dudley Sharp refutes multiple misstatements in the Innocence Project's report on the Willingham case.

Wood v. Allen Argument Preview: At SCOTUSblog, Tiffany Cartwright, a 3L at Stanford Law School, previews Wood v. Allen.  The case addresses how a federal court should review the state court's finding of facts under the Antiterrorism and Effective Death Penalty Act (AEDPA).  Wood was convicted for murdering his ex-girlfriend and sentenced to death.  On direct appeal, the state courts rejected his petition for postconviction relief, in which he alleged that his trial counsel's failure to investigate and present evidence of his mental impairments during sentencing constituted ineffective assistance.  He filed a habeas petition and the district court granted relief because it believed the "finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record."  The Eleventh Circuit reversed. Now that the Supreme Court has agreed to hear the case, Cartwright notes that Wood's first argument is different from the question presented in his cert. petition, i.e., that relief may be granted because the state court decision was an unreasonable application of the Court's decisions in Strickland v. Washington and Wiggins v. Smith.  Alabama's brief urges the Court to disregard this argument because because it is not the question presented, and it is also without merit.  CJLF also filed a brief in Wood.  It can be found here, along with Kent's other posts on the case (here, here and here). The Supreme Court is scheduled to hear oral arguments next Wednesday, November 4th.  

More Death Penalty Delay in Ohio: Doug Berman reports on Sentencing Law and Policy that Ohio is having a hard time finding doctors to help revise its lethal injection protocol.  Berman links to an Associated Press article by Andrew Welsh-Huggins that reports ethical and professional rules are deterring doctors and nurses from speaking publicly or privately about alternatives to the state's lethal injection process.  Attorney General Richard Cordray has said that it has been difficult to identify qualified medical personnel willing and able to provide advice to the state regarding lethal injection.  This is nothing new, North Carolina has had to address similar issues in the past.  There is one fairly recent factual development (although relatively old-hat request) mentioned in the article.  According to Welsh-Huggins, last Friday the European Union asked Ohio's governor not to execute Broom and to temporarily halt all executions in Ohio.  

Less Punishment = Less Crime?: Over the weekend Volokh Conspiracy opened up its blog to UCLA Public Policy Professor Mark Kleiman, so that he could present his thoughts on How to Have Less Crime and Less Punishment.  In his post, Kleiman argues that "brute force" has not helped America control crime, and believes that now is the time for Americans to start thinking about new ways to control our crime rate.  In Kleiman's view, "[p]unishment should be swift and certain rather than severe; those subject to it should know precisely what actions will lead to punishment; efforts should be concentrated, rather than dispersed, to enjoy the benefit of the positive-feedback process in which reduced offending leads to increased deterrence." The argument is typical of the claim that better enforcement and sufficient punishment are somehow opposed, and we must choose between them. It is a false dilemma. We would need to cut one to boost the other only if everything else government does is higher priority than public safety, and there is nowhere else in the entire budget to cut. We all know that is not true.

Issues Added to Kiyemba v. Obama:  At SCOTUSblog, Lyle Denniston reports that Chief Justice Roberts has allowed the counsel for Kiyemba detainees' counsel to add a new case to the Supreme Court docket.  In what Denniston calls Kiyemba II, the Supreme Court will address a D.C. Circuit Court opinion which held that district courts may not "ba[r] the transfer of a Guantanamo detainee on the ground that he is likely to be tortured or subject to further prosecution or detention in the recipient country."  This issue was not included in the detainees' first petition.  Apparently, after the Court granted cert in Kiyemba I, counsel for the detainees filed an application to extend their petition for a writ of certiorari.  Chief Justice Roberts granted the petition today, and extended the time to file until November 10, 2009. 

Mandatory Minimums in Hate Crime Legislation:  Sentencing Law and Policy blogger, Doug Berman, links to the New York Times coverage of the new hate crime bill.  In the article, David Stout, reports that the Senate approved measure will "broaden[] the definition of federal hate crimes to include those committed because of a victim's gender or gender identity, or sexual orientation."  According to Berman, the bill also "includes a provision that requires the US Sentencing Commission to produce a new study on the impact of mandatory minimum sentences."  Berman's post also links to a statement from New York Senator Patrick Leahy.  In his statement, Leahy provides some background on the bill, and gives his reaction to its provision that attacks against service members will be subject to a mandatory minimum sentence. Leahy also states, "I am also glad that we were able to pass this bill without adding a new Federal death penalty, which would have needlessly inserted a divisive issue into this legislation." Exactly how Senator Leahy defines a "divisive" issue is unclear. Hate crime laws do have their opponents, as noted in the next item.

Constitutional Questions Surrounding Hate Crime Legislation:  At Wall Street Journal's Law Blog, Ashby Jones wonders, "Does the Hate Crime Bill Have 14th Amendment Problems?"  According to Jones, Nat Hentoff, a political columnist, has recently questioned whether the bill runs afoul of the Fourteenth Amendment. Hentoff's article, in Real Clear Politics, describes his concerns.  Hentoff believes there is a violation because it "set[s] up a special collective class of victims whose assailants, when convicted, will be given extra punishment for crimes perceived to be based on gender identity, sexual orientation or disability, among other biases. Those who attack the elderly, police or those of the poor who are not among the 'protected classes' would not get lengthier 'hate' sentences than the law provides for the act itself."  (Technically, for a federal statute, the constitutional doctrine in question is  the "equal protection component" of the Fifth Amendment Due Process Clause.) Others, like College of Charleston mathematics professor Herb Silverman have articulated similar concerns. He wrote: "Suppose three murders occur: one for money, another out of jealousy, and a third because the victim is a black, gay Wiccan. If the first two murderers are sentenced to 20 years in prison and the third is sentenced to 30 years, would the families of the victims in the first two cases feel they had received equal justice under the law?"       

 

The O'Malley Stall in Maryland: Barry Rascovar, an opinion writer from the Maryland Gazette discusses the controversy surrounding Governor Martin O'Malley's effort to block enforcement of the death penalty for his state's worst murders. Rascovar suggests that because he has been unable to get the votes to abolish the death penalty, Governor O'Malley has taken other steps to prevent executions, including dragging out the process for approving lethal injection procedures.  Rascovar speculates that Governor O'Malley can continue the delay tactics until after his re-election next year he can officially announce a death penalty moratorium as he presses for abolition for another four years.

New Hampshire Creates DP Panel: Margot Sanger-Katz from the Concord Monitor reports that the New Hampshire state senate has appointed a panel to study the death penalty.  This action follows last year's vote in the state's lower house to abolish capital punishment.  The Senate tabled the bill and passed legislation to establish a committee to determine whether the death penalty serves a "legitimate public interest," whether it is fairly applied, whether it encompasses the right types of murders and whether it is a cost-effective use of resources, among other questions. Sound familiar?  The committee has twenty-two members and is chaired by a former Chief Justice of the state supreme court.  They will be meeting monthly and will report their findings by the end of 2010.

DNA May Link Death Row Inmate to 25-Year old Crime: Greg Morrison from CNN.com reports on San Quentin prisoner Richard Ramirez, who was known as the Night Stalker, and the DNA now linking him to the unsolved murder of a 9 year-old girl.  Police are seeking Ramirez's DNA in connection with the 25 year old murder case, but have not yet charged him for the brutal killing of 9 year-old Mei Lung.  Ramirez is already facing the death penalty for the series of the murders of 13 people and attempted murder of five others between 1984-1985.  Ramirez was also convicted of 14 burglaries and 11 sexual assaults.  For more background information on Ramirez, as well as a summary of recent coverage, check out Ashby Jones' post on Wall Street Journal's Law Blog. 

Nevada Man Avoids Death Penalty After Two Sentences: Sandra Cherb from the Mercury News reports on the case of a man charged with the murder of a cabdriver in 1990.  Frederick Paine has been tried and sentenced to death twice for murdering Kenneth Marcom and robbing him of 45 dollars.  Both convictions have been overturned.  The first time, a panel judge fell asleep during the hearing making the vote invalid.  The second time, the panel imposed the death penalty, but the Nevada Supreme Court determined the aggravators used to sentence Paine were invalid, once again voiding his death sentence.  Paine will be re-sentenced to what will likely be life in prison. 

Prosecutor Immunity in Pottawattamie County:  In today's Thursday Round-up, SCOTUSblog's Anna Christensen has posted a link to the ABA Journal's coverage of Pottawattamie County v. McGhee (08-1065).  In this month's ABA Journal, John Gibeaut describes the case, which could determine the extent to which prosecutors are liable under 42 USC §1983.  The case involves the murder of former Iowa police Captain John Schweer in 1977.  He was found, killed by a 12-gauge shotgun wound to the chest, near a car dealership where he worked as a night security guard.  The accused, Curtis W. McGhee Jr. and Terry J. Harrington, claim that during the investigation local prosecutors conspired with police officers to frame them, and then relied on the same evidence to convict them of first-degree murder.  Local prosecutors, however, maintain that using the challenged evidence at trial immunizes them from a lawsuit, even though they helped police develop the evidence.  The Eighth Circuit held that prosecutors could be civilly liable for falsifying evidence used at trial.  The Supreme Court will hear arguments on November 4th, and may give clues as to whether it agrees. 

No Surprise, "Judges Reject California Plan to Cut Prison Crowding":  CrimProf Blog and How Appealing both provide links to an L.A. Times article describing the three Judge panel's rejection of the Schwarzenegger's approved plan to cut prison crowding.  Michael Rothfeld reports for the Times that the panel is now threatening to impose their own plan within three weeks.  The panel had ordered the administration to devise a plan would cut the number of state prisoners by 40,000 within two years.  The plan submitted by the Governor would have cut the prison population by about 18,000 after two years, less than half of what had been ordered.  The state has three weeks to comply with the court's order.  Spokeswoman for the Governor, Rachel Arrezola, said the state would respond by its November 12 deadline. She said the administration is continuing to appeal to the U.S. Supreme Court the judges' "arbitrary" reduction order.  Howard Basham's How Appealing post links to coverage from other sources. 

DOJ Goes After Gangs - More on La Familia, and Fraudulent Billing:  To follow-up on today's News Scan, read Mike Scarcella's Blog of the Legal Times post on the Justice Department's strike against one of the "newest" Mexican drug cartels. Scarcella writes that today, Attorney General Eric Holder, Jr. announced that federal authorities have seized more than $32 million during the 44-month investigation of the cartel, which has been operating since 2006.  According to Scarcella, the DOJ arrested more than 300 members of the cartel, and yesterday charges were unsealed in state and federal courts in California, Massachusetts, New York, Texas, Tennessee, Missouri, Georgia and Minnesota.  Mike Scarcella also covered yesterday's charges against members of Los Angeles' Lil Brook street gang for a fraudulent health care billing scheme.    

Officer Questioning During Traffic Stop:  At Volokh Conspiracy, Orin Kerr posts on "an interesting (and to my mind troubling) recent example of" Fourth Amendment limits on police conducting traffic stops.  Kerr's post covers the First Circuit's recent decision, United States v. Chaney, where the court upheld an officer's extended questioning after a traffic stop.  Apparently, the officer pulled the car over because a headlight was out.  He then proceeded to ask both the passenger and the driver for their IDs.  When the passenger said he didn't have his, and the officer was unable to get a positive ID on him, the officer asked the driver to get out of the car so he could ask the driver more questions about the passenger.  The officer became suspicious, shined a light on the passenger and saw a bulge in his jacket.  This turned out be a gun, and Chaney was arrested for being a felon in possession of a handgun.  Kerr is uncomfortable with the First Circuit's conclusion that this was a "de minimus" stop that "did not unreasonably extend the duration of the traffic stop," because it "gives the police a few minutes to question anyone in the car on whatever topic the officers like, even absent any reasonable suspicion or identifiable threat to officer safety..."  But, in this case, it only took the officer two minutes to develop reasonable suspicion, and the passenger turned out to be a felon in possession of a handgun.  Getting him off the street isn't all that "troubling."

U.S. Sentencing Commission District Hearings in Denver:  Doug Berman has been posting on the U.S. Sentencing Commission's Denver hearings on his Sentencing Law and Policy Blog.  This morning, he posted a link a Denver Post article describing yesterday's hearings.  The article, by Felisa Cardona, describes the testimony given by U.S. District Senior District Judge John L. Kane and Colorado U.S. Attorney David Gaouette.  According to Cardona, Judge Kane would like more clarity on why the federal sentencing guidelines are set to certain terms for various offenses.  He does not like lawyers and probation officers telling him he must set a certain sentence "because the guidelines say so."  Gaouette, on the other hand, is concerned that judges are inconsistently following the commission's sentencing guidelines, and favoring their own discretion when sentencing.  It will be interesting to see how the Commission resolves that debate...

Is the Suppression Hearing the Exclusionary Rule's Unsung Hero?  That's what Scott E. Sunby concludes in his SSRN paper, Mapp v. Ohio's Unsung Hero: Suppression Hearings as Morality Play.  Sunby's paper takes a look at recent speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions.  Sunby believes that the future of the exclusionary rule will depend on whether the "benefit" of deterring police misbehavior outweighs the "cost" of lost evidence and convictions.  Sunby thinks this misses one of the key benefits of the exclusionary rule - suppression hearings. He writes that these hearings inform law enforcement of proper conduct, and create transparency in the criminal justice process. (Thanks to CrimProf Blog for posting the link)  

On SCOTUSblog, but not on DoJ's own web site as far as I can determine, is a statement by spokesman Dean Boyd regarding the Kiyemba Guantanamo detainee case, in which the Supreme Court granted certiorari today:

When a habeas petitioner has multiple claims against the judgment in his case, what should a federal district judge do when he finds one of them entitles the petitioner to relief? If he passes on the others, what should the court of appeals do when it reverses on that one? Whose obligation is it to bring all this to the court of appeals's attention?

In Corcoran v. Buss, 483 F.Supp.2d 709 (N.D. Ind. 2007), the federal judge found that one claim entitled the petitioner to relief from his death sentence, so he didn't rule on the remaining penalty phase claims. The claim decided was that an offer by the prosecution to forego the death penalty in return for a waiver of jury trial violated the Sixth Amendment, even though plea bargains to waive that penalty in return for waiving trial altogether, i.e., pleading guilty, are perfectly valid. The judge also held that Corcoran was competent to waive his state postconviction proceeding, which had the effect of defaulting the guilt phase claims.

The state appealed the grant of relief on penalty, and the petitioner cross-appealed on the competency issue. The Seventh Circuit reversed on penalty, affirmed on guilt, and remanded "with instructions to deny the writ...." Corcoran v. Buss, 551 F.3d 703, 714 (CA7 2008). On petition for rehearing, Corcoran claimed for the first time that the appropriate disposition was not to remand with instructions to deny the writ but rather with instructions to consider the previously undecided penalty phase claims. The court denied rehearing.

Today the US Supreme Court vacated and remanded in a brief and somewhat cryptic opinion.

Civilian Courts Are Not the Place to Try Terrorists:  Wall Street Journal writer, and former United States Attorney General, Michael Mukasey opines on the Obama administration's plan to try several of the prisoners now detained at Guantanamo Bay in United States civilian courts.  The Justice Department claims that civilian courts are well suited to the task.  Mukasey, U.S. Attorney General from 2007-09, believes that civilian courts are ill-suited for trying terrorists and states the matter should be left to the military.  Mukasey cites as an example Ahmed Ghailani's transfer from Guantanamo.  In a civilian terrorist trial, to maintain the security of the courthouse and the jail, deputy U.S. marshals must be brought in to escort the defendant, jurors, and judge to and from the courthouse.  Prosecuting a terrorist in civilian court also creates problems for the intelligence gathering community by disclosing evidence about means and methods of evidence collection that have nothing to do with the case for the public's knowledge.  By trying terrorists before a military commission where the permissibility of evidence is based on relevance and apparent reliability, the circumstances of their capture on the battlefield can be described by affidavit, without bringing to court the particular soldier or unit that effected the capture.

A Study on Why States Can't Afford Death Penalty:  CNN writer Bill Mears reports on the cost of the death penalty in the U.S.  At 678, California has the nation's largest death row population, yet the state has not executed anyone in four years.  The state still spends $130 million a year on its capital punishment system, housing and prosecuting inmates while they cope with an appellate system that has kept some convicted killers waiting for an execution date since the late 1970's.  Many death penalty supporters say part of the problem is that states have added unnecessary, time consuming delays because of a reluctance to carry out the death penalties their own legislatures have enacted.  Kent Scheidegger, Legal Director of the Sacramento, California based Criminal Justice Legal Foundation, states that by building support for the death sentence and imposing it more regularly where it is warranted, states can have a powerful incentive for plea bargaining, and could also provide states with large savings in trial and incarceration costs.

First Woman Given Federal Death Sentence Appeals:  The Associated Press reports that Angela Johnson, the first woman given a federal death sentence after it's reinstatement has challenged her conviction and sentence.  Johnson was convicted in federal court in 2005 for the 1993 drug-related slayings of three adults and two children in northern Iowa.  She was sentenced to death for four of the killings and given a life sentence for the fifth.  Johnson's attorneys argue that not only did her past attorneys not adequately investigate the facts of the case, but Johnson was tried while incompetent, in violation of her constitutional rights.  They say she suffered from brain damage, bipolar disorder, post-traumatic stress disorder and methamphetamine addiction. 

Today was a conference day at the US Supreme Court. That is when the Justices decide which of the cases from lower courts they are going to review. (They only take about 1 in a 100.) Up for a third consideration are two dubious decisions in capital cases from circuits divisible by 3: Wong v. Belmontes, No. 08-1263 from California and Bobby (Anderson?) v. Van Hook, No. 09-144 from Ohio. An orders list with the results of today's conference is expected at 10:00 am ET tomorrow (Tuesday).

The fact that each of these cases has been put on the conference list three times is an indication (but not a guarantee) that the Court is considering something more than just the usual binary choice of "yes, we will take it" or "no, we won't." That something may be a summary reversal, an action reserved for opinions so obviously wrong that full briefing and argument is unnecessary.

Update, Tuesday morning: The orders list is here, and neither of the above cases is on it. Presumably, they will be "relisted" for a fourth consideration. The Court took a Gitmo detainee case and a commercial case involving shipping, described at SCOTUSblog.

The Court denied review of a Virginia case on stopping drivers based on a tip that they are drunk, over a dissent by Chief Justice Roberts. Virginia v. Harris, No. 08-1385 is here.

The first opinion of the term is a summary reversal in an Indiana capital habeas case, Corcoran v. Levenhagen, which I will describe in a separate post.

Update 2: The Texas capital case of Mosley v. Thaler, previously noted here and here, was among those denied today. Mosley contended, and the state denied, that the case was similar to the pending Alabama case of Wood v. Allen, set for argument November 4. (CJLF brief here.) Is the denial of certiorari a harbinger of an Alabama win in Wood, or did the Court accept Texas's argument that the cases are not really similar? Any answer to that question is pure speculation.

Oral Argument Recap in Speedy Trial Act Case:  At SCOTUSblog, Anna Christensen recaps last Tuesday's oral arguments in Bloate v. United States.  According to Christensen, last week's arguments could have left spectators "believ[ing] that several of the justices were acting as legislators."  She points to the fact that several Justices appeared concerned over the Speedy Trial Act's failure to set a set time for courts responding to pretrial motions.  Justices were concerned that Act allows different districts allocate different times for responding to pretrial motions.  Christensen appears disappointed by the course of the arguments.  She notes that the more interesting issue raised in Bloate - how to address "dueling policies" that public interest prevents a defendant from prospectively waiving his right to a speedy trial, and Congress' intent of furthering the criminal defendant's constitutional right to receive a speedy trial - was hardly addressed.  She hopes that the decision focuses on more important issues than those raised during argument.

Does the Eighth Amendment Only Prohibit Cruel and Unusual Punishment?  That's what Professor Meghan J. Ryan wants to find out in her new SSRN article which will be published in the Washington University Law Review.  Doug Berman posts the link and the abstract to her article at Sentencing Law and Policy.  In her article, Professor Ryan, traces the history of the Eighth Amendment and analyzes the Court's early interpretations of the prohibition on "cruel and unusual punishments," to conclude that the Eighth Amendment  "prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed."  Meghan Ryan is a visiting professor at University of Minnesota's School of Law.  Last year she published an article in the North Carolina Law Review asking whether stare decisis applied in the Eighth Amendment context.  

Federalist Society SCOTUScast:  At the Federalist Society's website, Jacob Loshin, reviews the Supreme Court's October 6th arguments in United States v. Stevens.  The case reviews the constitutionality of a federal statute that criminalizes the creation for sale of depictions of animal cruelty.  Loshin's SCOTUScast describes the arguments made by each party, including the government's position that animal cruelty videos are not protected by the First Amendment.  Loshin categorizes this position as "ambitious," since the Court has traditionally taken a narrow view of what constitutes unprotected speech.  Loshin is an associate in Winston & Strawn's Washington, D.C. office, and filed a brief on the behalf of Respondent, Stevens, for the CATO Institute.  More information on Stevens can be found in last week's News Scan. 

Now here is a hopeful sign. On Tuesday, the US Supreme Court heard oral argument in the Ohio capital case of Smith v. Spisak, No. 08-724. The question, once again, is whether the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...." 28 U.S.C. §2254(d)(1). The precedent at issue in Question 1 is the dubious 5-4 decision in Mills v. Maryland, 486 U.S. 367 (1988), the source of many needless reversals.

Right out of the gate, Justice Sotomayor asks if everyone has been asking the wrong question. Does it make sense to ask if the Ohio Supreme Court's decision of April 13, 1988 is contrary to or an unreasonable application of a US Supreme Court decision issued two months later? Does it matter that the US Supreme Court denied certiorari the following year, after Mills? It appears that Justice Sotomayor raised the issue on her own. I did not see it in Ohio's brief or in the amicus brief for Pennsylvania and other states.

Counsel's Misadvice Has Its Day In Court:  At SCOTUSblog, Anna Christensen summarizes yesterday's oral arguments in Padilla v. Commonwealth of Kentucky, a case addressing whether the Sixth Amendment provides a remedy to defendants who have been misadvised as to immigration consequences by their attorneys.  Christensen writes that Padilla's attorney, Stephen Kinnaird, took the stance that Padilla should get relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability.  She writes that Supreme Court Justices expressed concern such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea.  Michael Dreeben, Deputy Solicitor General, argued in favor of affirming Kentucky's holding.  He argued that the Sixth Amendment does not entitle a defendant to advice regarding potential immigration consequences in the first place.  Christensen also reports that Kentucky's attorney, Wm. Robert Long, spent much of his time "respond[ing[to a series of questions concerning the 'professional norms' governing attorney conduct."  He argued that Strickland v. Washington treats "professional norms" as guidelines, and not as hard, and fast rules.  Adam Liptak also reports on yesterday's oral arguments in the New York Times. He believes the Justices were "sympathetic," but "uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system." Yesterday's News Scan provides some background on Padilla's claim. 

Death Penalty Support Remains Strong:  Yesterday, Gallup released the results of its annual Crime Survey and found "that 65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it..."  Today, on Sentencing Law and Policy, Doug Berman posts some of his highlights from the report.  According to Berman, "Gallup's death-penalty data stretch back more than seven decades," and as early as 1936, "59% of Americans supported the use of the death penalty in cases of murder, compared to 38% who opposed it[,]" -- numbers that aren't too far off recent results.  Another interesting finding is that 49% of Americans say the death penalty is not imposed often enough, 24% say it is imposed "the right amount," while 20% say it is imposed too often.  

Federal Forfeiture Argument at the Supreme Court:  At Wall Street Journal's Law Blog, Jennifer Forsyth writes that today, the Supreme Court tackled the issue of whether owners of assets that have been seized are entitled to a more prompt hearing to make a case that they should get their property back.  The case, Alvarez v. Smith, arose from the Seventh Circuit's holding that the Constitution requires owners to get a more timely chance to reclaim their property.  In other words, evidence seized as part of a drug bust should not be held for three years before someone gets their car back.  Forsyth notes that this Seventh Circuit decision "features an interesting Sonia Sotomayor twist."  Apparently, Justice Sotomayor struck down New York City's forfeiture system when she sat as a Second Circuit judge.

A Familiar Death Penalty Challenge from 1983:  At Bench Memos, Ed Whalen's "This Day in Liberal Judicial Activism" reports on the 1983 D.C. Circuit court finding that a state [that] carries out capital punishment by lethal injection, must have the drugs deemed "safe and effective" for that use by the Food and Drug Administration.  Then-Judge Scalia dissented from the decision, and the the Supreme Court unanimously reversed the holding to rule that the FDA's decision not to institute enforcement proceedings was not judicially reviewable.  

CIA Trial Lawyer Challenges Credibility of Identification:  Associated Press writer Colleen Barry reports that court appointed lawyer Arianna Barbazza, one of the attorneys the American defendants charged with kidnapping an Egyptian cleric, argued that her clients have never been positively identified and should be found innocent.  All but one of the 26 Americans on trial are believed to be CIA agents and are accused of kidnapping Osama Moustafa Hassa Nasr as part of the CIA's extraordinary rendition program.  Prosecutors say Nasr was taken in broad daylight from Milan and flown into Egypt, where he was allegedly tortured.  Human rights advocates say renditions were the CIA's way of outsourcing the torture of suspected terrorists to countries where it was practiced.  Barbazza argued that the evidence used to identify her clients, "poor quality passport photographs" and cell phone records, is not sufficient to identify defendants charged with kidnapping.  The CIA has yet to comment on the case.  It is the first time a country has scrutinized extraordinary renditions.  Another report on the topic can be found here.

D.C. Sniper Seeks to Dodge Death Penalty:  CNN reports that D.C. Sniper, John Allen Muhammad, will seek clemency from Virginia Governor Tim Kaine on October 22.  Kaine, however, spoke on WTOP Radio stating that he could not imagine a circumstance under which he would grant clemency.  Muhammad's attorney is also appealing to the U.S. Supreme Court.

The Supreme Court has granted certiorari in four new cases. SCOTUSblog has posted the orders list, and Lyle Denniston provides a brief summary of the four cases. 

Two of the four cases involve issues of criminal law.  The first, United States v. Marcus (08-1341), addresses the scope of federal appeals courts' authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred. Justice Sotomayor has recused herself from this case.  The second criminal case, Holland v. Florida (09-5327), asks whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client.   

New CSPAN Programs on the Supreme Court:  Thanks to Anna Christensen at SCOTUSblog for posting this link to CSPAN's Supreme Court website, and for informing on the new "Supreme Court Week" programs available at the site.  CSPAN's offerings include: an interview with Joan Biskupic and SCOTUSblog's Lyle Denniston on the role of journalists at the Court; an interview with the Supreme Court's Clerk, William Suter, on the traditions of the Court, the process people must go through to get the Court to hear their cases, and his job during Oral Argument in the Supreme Court Chamber; and beginning sometime this evening, interviews with the Supreme Court Justices.  Orin Kerr posted his reaction to the CSPAN coverage early this morning.  Howard Bashman has also posted a link to the University of Michigan Law School's video of "A Conversation with Chief Justice John G. Roberts."

Interesting Article on "Semi-Voluntary Acts":  At Sentencing Law and Policy, Doug Berman posts a link to Deborah Denno's upcoming article, "Consciousness and Culpability in American Criminal Law," and asks "[h]ow might we punish semi-voluntary acts?"  Berman's question comes from reading the article's abstract, which proposes to that criminal law recognize a third category of "semi-voluntary acts."  Denno, a Fordham University professor (whose writings on lethal injections were used in Baze v. Rees), explains that our criminal law currently recognizes voluntary or involuntary acts.  If a crime is voluntary, the defendant is criminally liable; if involuntary (like murder while sleepwalking), then he may be acquitted.  Her article discusses research showing "that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive."  She proposes that criminal law recognize "semi-voluntary" acts so that individuals who commit crimes while sleepwalking will be less likely to be acquitted.  That could be the result, or "semi-involuntary" could become a new way to argue insanity.

International Comparisons of Juvenile LWOP:  CrimProg Blog posts a link to Bernard E. Harcourt's Balkinization blog post "The Supreme Court and Juveniles: International Comparisons."  Harcourt felt compelled to research the National Organization of Victims of "Juvenile Lifers" challenges to the claim that the United States is the only jurisdiction to sentence minors to life imprisonment without parole.  Harcourt unearthed information on international comparisons at the Center for Law and Global Justice at the University of San Francisco, and concluded that the United States is the only country to sentence juveniles to life without parole.  Harcourt reaches this conclusion, and comments, "this naturally raises the next question: whether international norms should inform the Supreme Court's consideration of domestic constitutional values."  He believes "this is a bit of a scholastic debate that seems to (overly) preoccupy some legal academics, a couple of Supreme Court justices, and most right-wing talk show hosts[,]" but still thinks it is "telling" that the U.S. is alone in sentencing juveniles to LWOP.  Harcourt appears happy "just let the Scholastics debate this one..."

Al Qaeda Terrorist Wont Face Death: A New York Daily News editorial chastised the Obama Administration for their treatment of Al Qaeda murder suspect Ahmed Khalfan Ghailani, who they decided will not be tried by a military tribunal nor face the death penalty.  Ghailani is accused of killing 224 people and participating in the bombing of a U.S. embassy in Tanzania.  Ghailani is the first detainee to be removed from Guantanamo and will be tried in a Manhattan Federal Court where Attorney General Eric Holder has barred the Manhattan US attorney from seeking the death penalty.  The reason for barring the death penalty is unclear, but a Justice Department spokesman did refer to an agreement with foreign governments that extradited earlier embassy bombing defendants to the United States.

Children Exposed to Violence: Associated Press writer Devlin Barrett reports that the Justice Department has found that more than 60 percent of children surveyed were exposed directly or indirectly to violence within the past year.  According to the report, found here, nearly half of the children surveyed were assaulted at least once in the past year, and about 6 percent were victimized sexually.  The survey consisted of 4,549 children and adolescents, aged 17 and younger being, interviewed on the telephone.  Leading criminologists warn that the the survey may be lumping serious and minor incidents together.  James Alan Fox, criminal justice professor at Northwestern University, says, "[w]hat concerns me when you hear numbers like that is that in their attempt to be inclusive, which is commendable, the definition of violence becomes so broad that the results lack real meaning."  The beating death of Derrion Albert has sparked the public's interest in youth violence around the country.  While in Chicago to meet with officials to discuss Albert's death, Attorney General Eric Holder said that "those numbers are astonishing, and they are unacceptable."  The tragic circumstances of Albert's death has caused a lot of talk about reform in Chicago.  Yesterday's news scan discusses a proposal to cut down on violence in Chicago's public schools. 

New Hampshire is Reevaluating the Death Penalty:  Portsmouth Herald writer Beth LaMontagne Hall reports that New Hampshire's Death Penalty Task Force Study Commission is meeting Oct 21, to examine the state's death penalty law.  The public outcry over the recent murder of Kimberly Cates could cause some Commission members to take a serious look at expanding the current law.   Cates was killed Sunday morning in her home while her husband was away on a business trip.  Her 11-year-old daughter was also attacked, but is expected to live.  Four teens are being charged in connection with the incident.  Steven Spader, 17, and Christopher Gribble, 19, are being charged with first-degree murder, conspiracy to commit murder and attempted murder.  William Marks 18, and Quinn Glover, 17, are charged with burglary, conspiracy to commit burglary, and robbery.  Under the current law, Cates' murderers are not eligible to receive the death penalty.  State Representative Robert Cushing says, "I don't know  if any one particular murder will have an influence.  I think people there are still people who support the death penalty but who have concerns how it's administered and who selects it."

The Supreme Court to Consider Whether Dog Fighting Videos are Protected by Free Speech:  New York Times writer Adam Liptak reports that the Supreme Court is questioning the constitutionality of a 1999 federal law banning commercial trafficking in depictions of animal cruelty.  The case, United States v. Stevens, deals with the conviction of a Virginia man for selling dog fighting videos.  The conviction is being fought on the First Amendment freedom of speech grounds.  As reported in yesterday's Blog Scan, during yesterday's oral arguments the justices asked how the law would apply to many hypotheticals.  Justice Stevens asked, "what about hunting with a bow and arrow out of season?"  Justice Scalia asked, "what if I am an aficionado of bullfights, and I think, contrary to the animal cruelty people, they ennoble both beast and man?"  All the questions suggests that the Court believes the law is too broadly written.  The aim of the law was to eliminate crush videos.  These videos show women in high heels stepping on small animals to satisfy a sexual fetish.  Justice Breyer wanted to "ask congress to write a statute that actually aims at those frightful things it was trying to prohibit."

A Plan to Protect Those Likely to Be a Victim of Crime:  New York Times writer Susan Saulny reports on a plan by Ron Humberman, the new chief officer of the public schools in Chicago, to stop the killings of Chicago public school students.  A cellphone video capturing the beating death of high school student Derrion Albert brought to light the problem of students encountering violence on their way to and from school.  To find a solution Huberman first examined a study of 500 shootings that show statistically some students are at higher risk of violence than others.  His new plan gives those students who are most vulnerable to violence a lot of adult attention, including a paid job and local advocate.  Huberman realizes that his plan has its limitations.  For instance, Albert would not have been on the high risk list - his perpetrators would have been, but Huberman remains hopeful that the plan "will give us a fighting chance to identify those that are most in trouble."  Other cities will be watching this plan to see if it helps to solve the problem of youth violence.

DNA Backlog Prevents Capture of Repeat Offender:  Boston Herald writer Robert Napper reports that federal authorities had a DNA sample from Delmer Smith III, during the months he attacked numerous women in their homes, but were unable to process it for months due to DNA backlog.  Smith's DNA was collected when he was placed in a federal prison for a 1995 bank robbery.  The FBI received Smith's DNA sample on March 3, 2008, but the being one of the 295,000 samples backlogged, the sample was not entered into the database before his September 2008 release.  Police believe that Smith committed as many as 11 home invasion attacks in two Florida counties, Sarasota County and Manatee County.  On September 24, the DNA left in four of the cases was tested against Smith's sample, now in the database, and found to be a match.  Smith is being charged with armed home invasion, false imprisonment, and sexual battery. The FBI has implemented an automated system that will increase the processing capabilities, but the backlog remains a major problem.  

Los Angeles Makes Eliminating the DNA Backlog a Priority:  Los Angeles Times writer Joel Rubin reports that according to police figures the Los Angeles Police Department (LAPD) has cut its backlog of untested DNA from rapes and sexual assault cases in half.  In 2008, the LAPD had a backlog of nearly 7,500 untested kits collected from rape and sexual assaults.  That number has fallen to 3,157 because of the formation of a task force of police and outside experts that oversee the effort.  According to LAPD Chief William J. Bratton and Deputy Chief Charlie Beck, if the current pace of testing is kept, the backlog will by gone by the summer of 2011.  The 2011 date can only be reached if city officials continue to commit funds.  This task could prove difficult with LA's $400 million budget shortfall.  So far the DNA backlogs that have been tested matched the profiles of 405 men in the state's databases.

Supreme Court to Decide What is Cruel and Unusual Punishment for Minors: Wall Street Journal writer Jess Bravin reports that on Nov. 9th the Supreme Court will hear arguments on whether sentencing a minor to life in prison is cruel and unusual punishment.  Two cases dealing with the Eighth Amendment issue will be argued on the same day.  One case involves Joe Sullivan's sentence to life in prison, for breaking into a Pensacola, FL  home, stealing jewelry and coins, and raping the 72-year-old woman who lived there.  Sullivan had 17 prior offenses before being sentenced for the Pensacola crime.  More on Sullivan v. Florida found here.  The second case involves the armed burglary of a Jackson, FL barbecue restaurant with masks, and Graham bludgeoned the restaurant manger with a steel bar.  More on Graham v. Florida found here.  The Court is hearing the two cases separately, suggesting that it could distinguish the two cases based on their ages.  The Court is expected to rule before July.   CJLF's brief is here.

Sotomayor Proves She Is Not Shy:  Los Angeles Times writer David G. Savage reports on Justice Sonia Sotomayor's first day on the Supreme Court.  Justices of the past have chosen to slowly ease there way into the Court arguments by listening a few days before joining in.  However, Justice Sotomayor jumped right into the arguments.  Within the first hour she had asked 36 questions, keeping up with Justices Scalia and Ginsburg.  Her first day as a Supreme Court Justice, Sotomayor has maintained her image as a strong assertive judge.

18 U.S.C. § 922(x)(2) bans the simple possession of a handgun by any juvenile. Does Congress have this authority? The First Circuit said yes yesterday in U.S. v. Rene E., No. 08-1974. The court rejected a Heller-based Second Amendment attack and also reaffirmed its earlier rejection of a Lopez-based challenge that this law does not come within the power of Congress under the Commerce Clause. Personally, I'd like to see the Commerce Clause challenge go up to the Supreme Court. The peoples of Arkansas and Massachusetts should be able to come to different conclusions regarding whether 17-year-olds can possess handguns.

Perhaps we should also have a limit on the length of statutes so that none will ever need a subdivision (x).

Denials of Certiorari on Opening Day:  SCOTUSblog has been busy reporting on the Supreme Court's opening day.  Kent noted earlier that the Court had denied certiorari in Ryan v. Styers, and SCOTUSblog's Anna Christensen has rounded-up other reports on cases in which the Court denied certiorari.  Most of the cases address First Amendment and civil law issues.  Kent's post contains information on the death penalty cases that the Supreme Court has not yet addressed, but Christensen posts information on the criminal cases Holmes v. Louisiana, involving an appeal from a death row inmate who has claimed that developmental disabilities caused by fetal alcohol syndrome make her ineligible for execution; and Mikos v. United States, which covers the Court's denial of an appeal of the conviction of a doctor who allegedly shot a nurse to prevent her from testifying against him in a Medicare fraud case, when the defense claimed prosecutors encouraged the jury to focus on the doctor's failure to testify on his own behalf.

How Does the Supreme Court "Decid[e] a case"?:  Perhaps in anticipation of opening day at the Supreme Court, Joel Jacobsen posted on Judging Crimes on a New York Times article discussing the number of cases "decided" by the U.S Supreme Court.  Jacobsen's post critiques "the assumption on which the article rested: that 'deciding a case' is a fixed and meaningful category, and therefore a rational way to analyze the court's output."  According to Jacobsen, in recent years the Supreme Court has not been "deciding cases" so much as utilizing a new way to make law.  Jacobsen looks to the length of Supreme Court opinions to prove his point.  He points out that in most recent volumes of the U.S. Supreme Court reporter, the Court has authored opinions that exceed 80 pages.  He argues that the lengthy opinions are a departure from the common law practice of judicial law making (where judges would decide cases and then retrospectively abstracting doctrine from the decisions), and is now doing the opposite: announcing new abstract doctrine and then applying it to the particular case that provided the excuse for announcing the doctrine.

A Hold Executions in Ohio:  At Sentencing Law Policy, Doug Berman has posted a report on the Sixth Circuit's grant of a stay for the October 8 execution of Lawrence Reynolds, as well as a post on Ohio Governor Ted Strickland's decision to "halt to all executions in the state until at least 2010." The post is ambiguous on whether Governor Strickland also intended to delay the execution of Kenneth Biros, who is scheduled for execution on December 8, 2009.  The Governor's statement only issues reprieves to Lawrence Reynolds and Daryl Durr until 2010, still no word on Biros.

New Justice on the Bench:  Tony Mauro writes on The Blog of Legal Times that "Justice Sonia Sotomayor lived up to her billing as a forceful questioner today as the Supreme Court opened its fall term..."  He reports, that unlike some new justices, Justice Sotomayor was a "frequent interrogator, often formulating her queries as a prosecutor or trial lawyer might: declarative statements about an aspect of the case, followed by the question, 'Correct?'"  Mauro also reported that the new seating arrangements gave both Justices Thomas and Breyer new perspectives on the courtroom.  Mauro writes that both spent "several minutes during arguments peering at the marble friezes of lawgivers on the walls of the Court high above them..."  Jonathan Adler also has a post on Volokh Conspiracy reporting on a Washington Post article asking legal experts to comment on what they expect from Justice Sotomayor during her first term.

The classic example for the fundamental principle that correlation does not prove causation is the ice cream/crime connection. Daily spikes in the rates for aggravated assault are correlated with spikes in sales of ice cream. Therefore, ice cream causes crime and we should ban it, right? Wrong. Hot weather causes people prone to assault to commit more assaults and people who like ice cream to buy more ice cream.

The reason the example is classic is that the hypothesized direct causal connection (that ice cream causes crime) strikes us as so patently absurd (in jargon, lacking facial validity) that the students instantly know something is amiss. Where the causal connection is plausible, though, we see exactly the same fallacy put forth and accepted by too many too often. The correlation between poverty and crime "proves" that poverty is the root cause of crime, for example. Too many people see no need to probe further.

Now we see a serious proposal that comes close to the classic example. Does candy cause crime? Jennifer Thomas reports in USN&WR:

Children fed candy and sweets on a daily basis are more likely to be convicted of violent crimes as adults, a new study finds.

As Kent noted earlier today, the U.S. Supreme Court heard oral arguments in Maryland v. Shatzer first thing this morning.  The transcript is available here. Today's arguments over the Edwards' rule - that police must cannot initiate questioning of a custodial suspect once he requests an attorney - provide an interesting discussion of just how far Edwards' rule must reach. The arguments also provided some interesting debate over what exactly Miranda was meant to protect.  

The US Supreme Court's official opening-of-the-term orders list is here. You can expect slow response time during the first hour or so.

"They can't reverse them all," the unofficial motto of the Ninth Circuit, is confirmed once again, as the Supreme Court denied certiorari of the Ninth's patently wrong reversal of yet another death sentence in Ryan v. Styers. CJLF's amicus brief in that case is here. Twenty years ago this December, James Styers told 5-year-old Christopher Milke, his girlfriend's son, that he would take him to a shopping mall to see Santa Claus. Instead, he took little Christopher out into the Arizona desert and put three bullets in the back of his head.

On the brighter side, the Ninth's equally erroneous decision in the Belmontes case, a case in which its judgments have already been vacated twice by the Supreme Court (cites here), is not out of the woods yet. Belmontes was on the conference list but is not on the orders list. That means (1) the state's petition will be considered again at another conference; or (2) the Court is preparing a summary reversal opinion.

In arguments today, Maryland's AG Gansler is personally arguing Maryland v. Shatzer, on the question of whether the Edwards v. Arizona "don't ask again" rule for invocation of the Miranda right to counsel is perpetual. Tricia Bishop has this story in the Baltimore Sun. Lauren's brief for CJLF as amicus is here.

AP has this brief story on denial of certiorari in Holmes v. Louisiana, No. 08-1359, a broad challenge to the death penalty in that state.

More on not (yet) denied capital cases after the jump.