Results matching “first”

Eliminating Counties' Roles in Death Penalty:  At Sentencing Law and Policy, Doug Berman posts a link to a SSRN article, Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty, by Professor Adam Gershowitz.  In his article, Gershowitz argues that the power of local county prosecutors to decide when to seek the death penalty "has proven to be arbitrary and inefficient."  He argues that the discrepancy between large counties with large budgets and trained prosecutors, and small counties with limited budgets and resources, has led to "geographic arbitrariness" in implementing the death penalty.  Gershowitz advocates that all aspects of capital cases (charging, trial, appeal) be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases.  He believes this will minimize the geographic arbitrariness of the death penalty and cut costs.  Berman likes Gershowitz proposal, but believes that the local nature of capital cases will prevent counties from relinquishing control of the death penalty.  This is an accurate statement.  Counties, and those dealing with the lasting effects of a murder, are often the best ones to determine who should receive the ultimate punishment.

Ohio Supreme Court on Apprendi's Prior Conviction Exception:  Doug Berman posts on today's unanimous Ohio ruling that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender's prior convictions that is part of the judicial record.  In Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009), Hunter was charged with felonious assault for attacking a church employee when he was asked to leave the building. In its indictment, the state included an Repeat Violent Offender (RVO) specification based on Hunter's earlier conviction for striking and injuring a corrections officer while he was incarcerated at the Cuyahoga County jail. Hunter moved for separate proceedings on the assault count and RVO specification, and waived a jury trial on the RVO charge.  He was convicted by a jury on the assault count. In a separate hearing before the judge, he was also found guilty on the RVO specification. Hunter was sentenced to eight years in prison for the assault, and two years were added to that term based on the RVO specification.  Ohio held its ruling was consistent with Shepard v. United States, because Shepard allows a trial court to consider "these documents, which are 'judicial record evidence' created in connection with his prior conviction." 

Summer Issue of The Green Bag Released (With 2008 Supreme Court Revue):  At Volokh Conspiracy, John Elwood posts a link to his latest publication,  What Were They Thinking, The Supreme Court in Revue, October 2008.  The article appears in Summer 2009 issue of The Green Bag, and discusses what Elwood believes are "top eight areas of legal development in the Term's decisions."  These include "underperformers" like Northwest Austin Municipal Utility District No. 1 v. Holder, "procedural niceties" such as Aschroft v. Iqbal, as well as criminal law cases, the Fourth Amendment case Safford Unified School District v. Redding, due process issues, the APA, the "big preemption opinion" of Wyeth v. Levine, and the First Amendment case Pleasant Grove City, Utah v. Summum.  Ed Whalen posts excerpts from Elwood's "informative yet irreverent" piece over at NRO's Bench Memos.

Crime, Culpability and Moral Luck: CrimProf Blog provides the abstract and a link to Alec D. Walen's SSRN piece commenting on Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse).  Walen's article discusses his belief that Alexander, Ferzan, and Morse's argument is fundamentally morally misguided.  He argues that by focusing on "outcome luck" the authors fail to hold actors liable for the harms they cause when they have taken less care they should.  Walen argues that "outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b)."
 
Supreme Court Preview of McDaniel v. Brown:  CrimProf's graduate fellow, Peter Stockburger previews another one of our Supreme Court cases, McDaniel v. Brown, over at CrimProf Blog.  Stockburger's preview states the question presented, and then provides paraphrases of the briefs of the parties in order to provide an overview of the cases and the advocates' arguments.  At issue in this case is whether analysis of a sufficiency-of-the-evidence claim pursuant to Jackson v. Virginia permits a federal habeas court to expand the record or consider nonrecord evidence to determine the reliability of testimony and evidence given at trial.  Our brief in Brown is available here.  Kent's most recent post on Brown can be found here. 

Kansas Supreme Court Blog has this post asking "Has the Kansas Supreme Court quietly hobbled Jessica's Law?" In three cases, that court overturned judgments and remanded for a lower "grid" sentence because the jury was not instructed to find that the defendant was over 18, an element of the greater degree of offense. The first of the cases is State v. Bello, No. 99225, July 2, 2009.

What strikes me as odd about Bello is the absence of any harmless error discussion. Cf. Neder v. United States, 527 U.S. 1 (1999); Washington v. Recuenco, 548 U.S. 140 (2006). KSC Blog indicates that one of the defendants was 25. That would seem to be the quintessentially harmless Apprendi error, where the truth of the element was indisputable, and nothing but naked jury nullification could have prevent the finding if the jury had been properly instructed.

Does Kansas have a stricter rule on harmless error? Anyone knowledgeable on this point is cordially invited to comment.

Justice Sotomayor Hires Her Clerks:  Tony Mauro reports on Blog of Legal Times that Justice Sotomayor has hired four clerks for the upcoming term, and two of them are Supreme Court clerk veterans.  Justice Sotomayor has hired Jeremy Marwell, Eloise Pasachoff, Lindsey Powell and Robert Yablon help her through the October 2009 term.  Robert Yablon and Lindsey Powell, former clerks of Justice Ginsburg and Justice Stevens, respectively, will be returning to the Court to serve Justice Sotomayor.  Mauro reports that it is common for new Justices to bring on compatriots former clerks "who already know the Court's intricate and sometimes baffling procedures and quirks."  Jeremy Marwell clerked for D.C. Circuit Judge Stephen Williams and is an alum of the Department of Justice Office of Legal Counsel, and Eloise Pasachoff clerked most recently for Second Circuit Judge Robert Katzmann.  Above the Law Blog broke the news Tuesday. 

SCOTUS Preview of Johnson v. U.S.:  On SCOTUSblog, Natasha Fedder, an Akin Gump Summer Associate, provides a SCOTUS preview of Johnson v. U.S. (08-6925), a case which could decide whether, for purposes of the Armed Career Criminal Act (ACCA), a prior state conviction for battery is in all cases a "violent felony," even when the state's highest court has held that the offense does not include the element the use or threatened use of physical force.  In 2007, Charles Darnell Johnson pleaded guilty to possession of ammunition by a convicted felon.  He had three other violent felony convictions and was sentenced to to 185 months in prison.  He appealed on grounds that federal courts applying the ACCA were bound by the Florida Supreme Court decision State v. Hearns.  Hearns held physical force or violence is not a necessary element of simple battery, and therefore, Johnson argued the crime of battery does not fit the ACCA's definition of "violent" crime as one that "has as an element the use, attempted use, or threatened use of physical force against the person of another."  The Eleventh Circuit rejected the argument. In his brief on the merits, Mr. Johnson frames the issue as whether battery by touching is a violent felony under the ACCA.  He argues the Eleventh Circuit fails to take into account the history of the ACCA, which is rife with testimony indicating that Congress's intent in passing the ACCA was to target the very worst offenders, and not those who commit garden-variety battery by touching.  The government counters with arguments that Florida's definition of battery tracks the common law approach, and finds battery where a person applies force to another person which results in physical injury or offensive touching.  It also argues that the Hearns Court interpreted a state battery statute not at issue in Mr. Johnson's case and materially different from the relevant ACCA provision.  The Court will hear arguments on October 6th.

California's Changes in Felony Murder Doctrine:  At CrimProf Blog, University of San Diego law professor Jean Ramirez discusses two recent California Supreme Court decisions that have limited the reach of the felony murder rule in California.  She writes that in People v. Farley, 46 Cal.4th 1053 (2009), the Court overruled People v. Wilson, 1 Cal.3d 431 (1969), and held that the merger doctrine does not apply to first degree felony murder. The merger doctrine, as this term is used in criminal law, states that lesser included offenses generally merge into the greater offense. Therefore, a person who commits a robbery can not be convicted of both the robbery and the larceny that was part of it.  Wilson had applied the merger doctrine to first degree felony murder based upon a burglary committed with the intent to assault the murder victim. Farley finds Wilson to be in error.  The court reasoned there no ambiguity in Section 189 of the California Penal Code, which defines murder in the course of a burglary as first degree murder.  The court found the language of Section 189 did not support application of the merger doctrine to its terms, and emphasized the legislative prerogative in defining crime and fixing penalties.  Moving on, Professor Ramirez discusses People v. Chun, 45 Cal.4th 1172 (2009), where the court considered the merger doctrine in the context of second degree felony murder and held that a felony merges with the homicide and cannot be the basis of a felony murder instruction when that felony is assaultive in nature.  Chun did not define the felonies that are assaultive in nature, but explained they involve "a threat of immediate violent injury."    

More Rehnquist Papers Released:  Last November, we blogged on the release of a few of Justice Rehnquist papers at the Hoover Institution Archives at Stanford University.  Today, Tony Mauro reports that a second batch - including an extensive compilation of Rehnquist's correspondence with justices and with others as recently as 2005 - has been released.  He has several posts on the papers today, including one on Justice Thomas' oath-taking ceremony, and the former-Chief Justice's correspondence with D.C. Circuit Judge Malcolm Wilkey.   

One of the many cynical strategies against the death penalty is for opponents to first claim that medically qualified people must participate in lethal injections to avoid the possibility of the inmate being insufficiently anesthetized and then turn around and claim they must not participate due to medical ethics requirements.

This strategy has succeeded in keeping doctors and nurses out of the procedure in most states, but emergency medical technicians and not subject to the boards that regulate doctors and nurses. In Ohio, there is an EMS board, and the Catch-22 effort there suffered a setback yesterday.

Harriet Goes Back to Washington:  At Blog of Legal Times, Mike Scarcella reports that Harriet Miers is taking another shot at the Supreme Court.  Only this time, she wants to argue before the Supremes.  On May 22, 2009, former White House Counsel Miers filed a certiorari petition in a dispute about whether state and local governments have authority to tax natural gas held temporarily in storage in an interstate pipeline system.  Miers, now in private practice at Locke Lord Bissell & Liddell, filed the petition on behalf of Missouri Gas Energy to challenge taxes that officials in Wood County, Oklahoma levied on natural gas in an underground storage facility.  The company does not sell gas in Oklahoma, but the Oklahoma Supreme Court upheld the tax in an opinion last year.  The Supreme Court has called for a response from Woods County by September 3rd.  Ashby Jones also writes about Miers petition on Wall Street Journal's Law Blog.   

Oklahoma Considers Death Penalty for Repeat Sex Offenders:  Doug Berman posts at Sentencing Law and Policy on an "Oklahoma legislator pushing the death penalty for a repeat sex offender."  According to a story from ABC's Tulsa affiliate, KTUL, Oklahoma State Representative Rex Duncan wants to create legislation would set the penalty for a first-time sex offender at life without parole. Prosecutors would be able to seek the death penalty for a second conviction.  A similar bill was passed in 2006, but was shot down by the Supreme Court.  Duncan believes the new bill is more specific and will be upheld.  Duncan's move comes after repeat a twice-convicted sex offender Marcus Berry was arrested for allegedly abducting a two-year-old girl from her front yard.  Police found Berry in his truck, with his pants down, with the partially dressed two-year-old girl.  He has previously been convicted for two acts of sex abuse, but had served less than 13 years of a 30-year sentence before being released.  Doug Berman's post wonders whether the Supreme Court's decision in Kennedy v. Louisiana would prevent Rex Duncan's proposed law.  As he reads it, Kennedy suggests the death penalty is always disproportionate for non-murder personal crimes, but, "other Eighth Amendment rulings clearly support the concept that a punishment which would be unconstitutional for a first offender might be permissible for a repeat offender."

Helpful Guide to Last Terms Criminal Supreme Court Opinions:  At CrimProf Blog, graduate fellow Peter Stockburger has compiled the reporter's syllabi from last term's U.S. Supreme Court criminal law and procedure opinions.  The syllabi give the facts and procedural history of each case and then discuss the Supreme Court's holdings.

What's Going On With Briscoe v. Virginia:  CrimProf Guest Blogger James J. Duane blogged about the "Extraordinary Mystery of Briscoe v. Virginia" yesterday.  Duane's post gives his thoughts behind why the Supreme Court voted to hear Briscoe so quickly after it had decided Melendez-Diaz v. Massachusetts. Duane believes that the four dissenters, Roberts, Alito, Kennedy and Breyer, voted to grant certiorari at a time when they all knew that Justice Souter was leaving. He speculates that their hope was that Briscoe would give them a chance to persuade Justice Sotomayor to reverse Melendez-Diaz.  When asked why the Melendez-Diaz majority did not put together a majority in favor of a summary disposition in Briscoe that would vacate and remand the decision of the lower court for reconsideration in light of Melendez-Diaz, Duane responds with less certainty.  His best guess is that Justice Souter "found himself in the middle of a surprisingly tense four-day standoff and perhaps even a four-four split between his colleagues, and decided that he would rather not supply the fifth vote to decide a matter that had become so contentious... [he] opted instead for the alternative of passing the buck to his replacement."  

Here is another readable opinion from Chief Judge Kozinski in an otherwise mundane criminal appeal. Liza, where the devil are my slippers?

During the debate over the nomination of Sonia Sotomayor to the Supreme Court, we reviewed her AEPDA opinions and noted them to be generally thoughtful and balanced. However, we cautioned that she had nearly zero record on the death penalty as a judge, and that her signature on a repugnant PRLDEF memo was a concern.

Right out of the gate, Justice Sotomayor joined the dissent when the Supreme Court denied a stay to Jason Getsy. This is not good. Unlike the Troy Davis case, which got the headlines recently, there is no doubt that Getsy is guilty as sin of murder for hire. There is no good reason to stay his execution. The claim that there is something unconstitutional about the fact that the man who hired him got off for less -- as a result of Confrontation Clause limits on evidence in the latter's trial -- should not make any person of sense even pause. Ohio's lethal injection procedure is as good as the one upheld in Baze v. Rees. (Maybe better -- the Ohio team has had more practice.)

Curiously, while four justices dissent from the denial of a stay, no dissent is noted from the denial of certiorari. Under the "rule of four," the four stay-dissenters could have granted certiorari, and one of the others probably would then have provided the fifth vote for a stay. Kind of odd, but no explanation is given.

David Savage has this article in the LA Times. Jesse Holland reports for AP.

Update: Long-overdue justice in this case was finally carried out at 10:29 EDT. AP story is here. 

Update 2: This follow-up AP story by Andrew Welsh-Huggins describes the execution, noting that a check for consciousness and rechecking the shunts after the first drug is part of the protocol.  The absence of those checks from the Kentucky protocol was the primary basis of Justice Ginsburg's dissent in Baze v. Rees: "Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs."

And now, for something completely different...

The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus -- "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial.

It was settled early, in a case related to the Aaron Burr plot, that the Supreme Court can issue such writs despite the Marbury limitation if the writ is appellate in practice even though original in form. That is, if the petitioner seeks a de facto review of a decision of a court, as opposed to the unilateral decision of the executive to lock him up, then he doesn't have to fit within the very limited category of cases where the Constitution gives the Court original jurisdiction.

The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first. Term after term, every Monday orders list has had one-liner denials of original habeas petitions.

Only once in the time I have been doing Supreme Court work (since 1987) has the Court seriously considered an original habeas petition and written an opinion. That was in Felker v. Turpin, 518 U.S. 651 (1996), the first case on the constitutionality of the then-brand-new Antiterrorism and Effective Death Penalty Act of 1996. The Court did not resolve whether original writs in the Supreme Court would be subject to the same restrictions Congress placed on the usual district-court application, but it said it would be guided by them nonetheless. It denied Felker's petition, and he was executed shortly thereafter.

Another issue the Court has never resolved is whether a free-standing claim of actual innocence, unconnected to any constitutional violation at the trial, states a claim for relief in federal habeas corpus. The Court considered the question in Herrera v. Collins, 506 U.S. 390 (1993), but once it took a good, hard look at the facts, it realized that Herrera's innocence claim was such complete garbage that it would have been denied under any conceivable standard.

And now comes Troy Davis.

Time to Focus on Appellate Court Nominations:  Yesterday, The Legal Intelligencer featured a piece urging the Obama Administration to start filling the vacancies in the appellate courts. The piece, by How Appealing blogger Howard Bashman, reports that during Obama's first seven-plus months in office he has only nominated 16 people to fill 88 vacancies in the district and appellate courts, and has left 72 seats without nominees. Bashman asserts that if President Obama wants to take advantage of the "unusually easy path toward achieving the confirmation of individuals nominated to serve on the courts of appeals and the district courts[,]" he should act now.  The Senate's Democratic majority could change in November 2010, "since history shows that the political party that does not hold the presidency usually gains seats in a midterm election."  If Bashman's correct, we're content with the President' current rate of nominations.  There's no need to rush "to shape the direction... of the federal judiciary..."

Dissents in Death Penalty Cases:  Doug Berman has a post on Sentencing Law and Policy briefly discussing today's New York Time's article, "More Judges Dissent in Death Penalty Cases."  The article, written by John Schwartz, discusses the increasing occurrence of judicial dissent from decisions upholding the death penalty.  One case, the Ninth Circuit's denial of Kevin Cooper's appeal, contained a 101-page dissent by Judge William Fletcher. The article contributes many of the dissents to the "ire" that many judges feel toward the Antiterrorism and Effective Death Penalty Act of 1996.  One commenter, Eric M. Freedman, a critic of the death penalty, belives judges dissent because they have little patience "for being hogtied by legalistic mumbo-jumbo."  He believes this "mumbo jumbo" prevents fair results.  In the long, drawn out case of Kevin Cooper, however, Kent correctly states that the defendant has been given ample opportunity to exonerate himself.  AEDPA's legalistic "mumbo jumbo" has led to a result that is fair for all parties involved.

Tenth Circuit Splits on Gun Ban for Misdemeanants:  At Volokh Conspiracy, David Kopel blogs on a split 10th Circuit ruling on the constitutionality of banning guns for persons who have been convicted of a domestic violence misdemeanor.  In the case of In re United States, federal prosecutors petitioned for a Writ of Mandamus to stop a Utah district judge from employing a jury instruction which the prosecutors did not want.  Back in June, the district judge had ruled in U.S. v. Engstrum that the Second Amendment allowed someonebeing prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor to present an affirmative defense "that he posed no prospective risk of violence."  Federal prosecutors didn't like the decision, and apparently neither did a majority of the panel. Late yesterday, federal Judges Hartz and Kelly voted to issue the Writ of Mandamus.   Judge Murphy dissented.  Both Kopel, and Doug Berman at Sentencing Law and Policy, believe that Judge Murphy presents a strong argument for setting the issue for briefing.  Berman's post remarks that in light of District of Columbia v. Heller, mandamus relief seems "inappropriate" when Heller could be of consequence "for an array of broad and severe federal gun possession crimes."  

   

FOIA During Wartime:  At SCOTUSblog, Lyle Denniston has a post on an Obama Administration petition asking the Supreme Court "to put a strict new limit on public disclosure of evidence -- including photos -- of torture or abuse of wartime captives by U.S. military personnel."  The petition, U.S. Defense Department, et al. v. American Civil Liberties Union, et al.  (09-160), asks the Court to examine the Second Circuit's conclusion that the Freedom of Information Act (FOIA) requires disclosure of the photos.  Section 7 of FOIA exempts certain government records, including any law enforcement files, from general disclosure requirements, if their release "could reasonably be expected to endanger the life or physical safety of any individual."  The Second Circuit held that the government could use that exemption only if it offered evidence of a threat to an identified individual, and general U.S. forces were not included in the exemption.  While the Supreme Court is asked to interpret only two words in FOIA ("any individual"), Denniston believes the issue is whether the government can prevent the public disclosure of unclassified evidence of military misconduct during wartime, based on a generalized claim that release will threaten harm to U.S. military forces in the field.

Celebration at the White House:  Tony Mauro reports on Blog of Legal Times that, today, President Obama hosted a "festive and emotional reception" for new Supreme Court Justice Sotomayor.  Obama said Sotomayor's presence on the Court represents "yet another step closer to the more perfect union we all seek."  Mauro reports that the President did not speak on "empathy" today, but did quote the late Justice William Brennan Jr. who said government officials need to understand the "pulse of life" behind the events they deal with.  Justice Sotomayor gave brief remarks of gratitude and said she was "deeply humbled by the sacred responsibility of upholding our laws and safeguarding the rights and freedoms set forth in our Constitution. I ask not just my family and friends, but I ask all Americans, to wish me divine guidance and wisdom in administering my new office."

Don't Go After Judges, Their Contemporaries Set Your Bail:  Ashby Jones reports on Wall Street Journal's Law Blog that, yesterday, federal judge Martin Ashman denied Hal Turner bail, ruling that Turner was still a danger to the community.  Turner made headlines back in June when he made threats against three Seventh Circuit Judges - Richard Posner, Frank Easterbrook and William Bauer - on a blog.  The three had just upheld handgun bans in Chicago, and an angry Turner wrote, "Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions."  The ruling surprised some, since Turner was once an FBI informant, but Judge Ashman gave greater sway to the fact that, from his prison cell, Turner managed to record and post on the Internet a telephone conversation that included the names of his arresting FBI agents.

Sentencing Post-Booker:  Doug Berman posts a link to an SSRN paper on Sentencing Law and Policy.  "In Search of the Booker Revolution," by Ryan Scott, presents new data, suggesting a modest increase, in the District of Massachusetts, in inter-judge disparity since Booker.  The paper reports "[t]he strength of the relationship between the identity of the sentencing judge and sentence length has increased, by some measures 60-80% above pre-Booker levels.  The identity of the judge also has become a stronger predictor of sentencing relative to the Guidelines...."

The Republican Vote Against Sotomayor:  At The Ninth Justice, Steven Shepard reports that a majority of Republican up for re-election voted against Judge Sotomayor's confirmation. Shepard reports that four of the nine Republicans who voted to confirm Judge Sotomayor are likely to retire in 2010.  This could be because a majority of Republicans opposed Judge Sotomayor's nomination.  Research polls showed that 27% said she should be confirmed, and 58% said she should not.  And, of the states represented by Republicans whose 2008 electorate was more than 9 percent Hispanic - Arizona (16 percent), Florida (14 percent), Nevada (15 percent) and Texas (20 percent) - only Senator Mel Martinez (R- FL) voted for her confirmation.  Senator John Ensign of Nevada, Senator Jon Kyl of Arizona, Senator John Cornyn of Texas, Senator Kay Bailey Hutchinson  of Texas and Senator John McCain of Arizona, all voted against.  Chris Cillizza at Washington Post's The Fix similarly reports that of the Republicans running for the Senate in 2010, only House Representative Pat Toomey (PA) came out in support of Sotomayor's confirmation.

Federal Judge Asks President Obama to Reduce Cocaine Dealer's Sentence:  Doug Berman posts on Sentencing Law and Policy that U.S. District Court Judge for the District of Columbia is asking President Obama to reduce the 27-year sentence of Byron Lamont McDade.  McDade was convicted of conspiring to distribute five kilograms or more of a mixture containing cocaine.  Judge Friedman sentenced McDade in 2002, at a time when federal sentencing guidelines required the 324-month term. Those guidelines became advisory as the result of a Supreme Court decision in 2005, and Judge Friedman believes he has no authority to re-open the sentence.  Both Berman and Josh Gerstein at Politico write that this could reveal the President's stance on executive clemency.  Berman believes that "President Obama's failure to grant even a single clemency through now his second 100 days in office should keep McDade from expecting too much in response to Judge Friedman's call for presidential action."  Berman also provides a link to U.S. v. McDade.  

Cameras in the Supreme Court:  Tony Mauro reports on Blog of Legal Times that for the first time, cameras will be allowed in the Supreme Court to televise Judge Sotomayor's oath-taking on Saturday, August 8th.  C-SPAN will air the proceedings beginning at 11a.m.  Only Justice Thomas' oath-taking ceremony has been televised, and that proceeding took place at the White House, and not the Supreme Court.  Mauro writes this will give viewers a "rare live glimpse of the East Conference Room, where Chief Justice John Roberts Jr. will administer the judicial oath to Sotomayor."

More on Hate-Crime Laws:  As a follow-up to Wednesday's News Scan, Jonathan Adler at Volokh Conspiracy, has a post briefly discussing The Cato Institute's David Rittgers article on the new federal hate-crime statute.  Rittgers' reports that the statute "greatly expands the federal government's jurisdiction to prosecute cases that properly belong in a state court."  It does this by allowing "federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim."  Adler opines "the bill simultaneously expands federal jurisdiction to cover yet more criminal offenses traditionally handled at the state and local level and encourages reprosecution if a state verdict is insufficiently harsh to satisfy federal prosecutors."

Clearing California's Prisons:  Ashby Jones wonders on Wall Street Journal's Law Blog how California is going to clear its prisons of 40,000 prisoners now that a three judge panel has ordered the state had to reduce its prison rolls by about 40,000 inmates.  According to Jones, a Wall Street Journal article by Bobby White and Ryan Knutson reports state officials have announced they will appeal the decision, but "[a]t the same time, cash-strapped local governments in places such as Los Angeles and Fresno are grappling with how to monitor and support thousands of released inmates at a time of scaled-down police forces and underfunded social-services programs."  The current plan will not release all 40,000 prisoners at once, and is proposing deportation of illegal-immigrant inmates and allowing some low-level offenders to serve the final year of their sentences under house arrest.  "The state may also change sentencing guidelines so offenders charged with crimes such as drug possession would be prosecuted for misdemeanors instead of felonies. If convicted, inmates would be sentenced to county jails rather than state prisons." 

New Justice on August 8:  Our News Scan reported earlier today that Judge Sotomayor has been confirmed 68 to 31.  As a follow-up, SCOTUSblog's Kristina Moore has posted that Judge Sotomayor will be sworn in by Chief Justice Roberts this Saturday, August 8.  The formal investiture ceremony will take place one month later, on Tuesday, September 8 at a special sitting of the Court in the courtroom.  Tony Mauro, at Blog of Legal Times, also reports on Sotomayor's swear-in ceremony on Saturday.  He writes that the ceremony at the Court "represents something of a concession to the wishes of justices who have complained that the oath-taking has become an inappropriately political event." 

Judge Sotomayor's "Use" of Foreign Law:  At The Ninth Justice, Stuart Taylor Jr. discusses soon-to-be Justice Sotomayor's position on how much weight foreign law should be given when interpreting the United States Constitution.  During Committee testimony, Judge Sotomayor said "I will not use foreign law to interpret the Constitution."  When asked to clarify what she meant by "use" in post-testimony, off-camera answers, she responded, "My answer was based on my own understanding of what it means for a court to 'use' foreign law to decide a case. In my view, American courts should not rely on decisions of foreign courts as binding or controlling precedent...."  Taylor compares her response to a pitcher who promises not to "use" knuckleballs to win a game, "when all he means is that he won't rely exclusively on knuckleballs, but rather will throw some fastballs and curveballs too."  In her own words, Sotomayor has said she has no objection to using foreign law "as a source of ideas" to "inform[] our understanding of our own constitutional rights."  Taylor writes that she has "cited with approval" Roper v. Simmons, a case that relied on foreign law when it forbid imposition of a death sentence on those under 18.  She has also endorsed Justice Ginsburg's view, "that, unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world." He worries that "the Ginsburg-Sotomayor advocacy of citing foreign precedents to avoid losing influence in the world ... comes perilously close to suggesting the Court should act to alleviate the embarrassment of some justices and judges -- especially when they attend glittering international conferences...."

Speaking of Foreign Law...  Doug Berman has a post on Japan's new jury sentencing system on Sentencing Law and Policy.  The new system, reported on by the BBC News, allows six men and women working with three judges to convict and sentence criminal defendants.  The system, tested in the country's first jury trial in more than 60 years, resulted with a man in his 70s being sentenced to 15 years in prison.  This was one year less than the prosecution asked for because the stabbing was premeditated.  Under the new policy, the jurors "must have the agreement of at least one of three professional judges for their decision to stand."  Berman appears to like Japan's reliance on juror involvement during sentencing. He writes, "the Apprendi-Blakely line of cases justify greater jury involvement in both capital and noncapital sentencing proceedings." Heavy juror involvement in sentencing might be easier to implement in Japan than in the United States, since Japan has a 99% conviction rate. 

Cal. Prisoner Litigation: "Atty. Gen. Jerry Brown has denounced a court order to release more than one out of every four state prisoners in California as counterproductive interference by judicial activists, and said state officials were still deliberating Wednesday whether to appeal to the U.S. Supreme Court," reports Carol Williams in the LA Times. Doesn't seem like a hard call to us.

Once a Thief: Gregory Luhn was disbarred after embezzling $300K from his law firm. He got another job preparing tax returns for a new employer, and, well, you know. Martha Neil has this story for ABA Journal. Luhn's former partner calls it "sad, but predictable." Poor employment prospects for released felons are one of the big reentry problems, but there are no easy answers when employers need to protect themselves and past behavior is the best indicator of future behavior. (The story doesn't say Luhn was convicted of a crime in the prior theft, but the incident illustrates the repeater problem nonetheless.)

Cold Cash: "Former congressman William J. Jefferson was convicted of corruption charges Wednesday in a case made famous by the $90,000 in bribe money stuffed into his freezer...," report Jerry Markon and Brigid Schulte in the WaPo.  Update: On top of the conviction, he doesn't even get to keep the money.  "A federal jury has ruled that [Jefferson] must forfeit roughly $470,000 in bribery receipts," reports Matthew Barakat for AP.

The Death Penalty Racial Quota Act, mislabeled the Racial Justice Act even though its purpose is to block justice, has passed the North Carolina General Assembly and gone to the governor. James Romoser has this story in the Winston-Salem Journal. No doubt the expense of litigation under this act will now be counted as a cost of the death penalty and used as an argument for abolition.

Virginia Pardons: "Virginia Gov. Tim Kaine on Thursday ordered freedom for three of four former sailors convicted of raping and killing another sailor's wife in 1997," report Dena Potter and Larry O'Dell for AP. Novelist John Grisham was among those pushing for clemency. Victim Michelle "Moore-Bosko's dismayed parents said Kaine bowed to political pressure.... 'Obviously, Mr. Grisham's wealth and influence are far more important to Governor Kaine's political aspirations and public image than truth or justice,' Moore and her husband John said in an e-mailed statement."

Sotomayor confirmation final vote was 68-31. Julie Hirshfield Davis has this story for AP. Complaints of partisanship from the Democratic side of the aisle have some truth to them, but let us not forget who poisoned the soup in the first place. The WSJ has this editorial.

More on Massachusetts' Felon Disenfranchisement Law:  At Election Law Blog, Rick Hasen wonders whether Simmons v. Galvin (briefly discussed here yesterday) could be headed to the Supreme Court.  In his post, Hasen correctly notes that dissenting Judge Torruella's position on the meaning of section 2 of the Voting Rights Act is very much like that expressed by Judge Sotomayor in Hayden v. Pataki.  Hasen predicts that Simmons could make its way before the U.S. Supreme Court.  With Judge Sotomayor's confirmation almost assured, Simmons would give Judge Sotomayor a chance to reexamine her belief that the Voting Rights Act "applies to all 'voting qualifications,' " and the state law discriminates because it "disqualifies a group of people from voting."

AG Holder Discusses Incarceration:  At Sentencing Law and Policy, Doug Berman reports on yesterday's speech by Attorney General Eric Holder before the ABA House of Delegates.  Berman reports that the speech outlined the Department of Justice's latest vision and priorities for reform of the nation's criminal justice systems.  A portion of Holder's speech (text available here) focused on sentencing and prison policy.  Holder pointed out that the nation's violent crime rate had dropped 40% since 1991.  He contributed the drop, in part, to "incarceration of offenders[,]" but stated that the DOJ would not rely on imprisonment alone to enforce criminal laws.  In light of the states' efforts to trim budgets, and the increasing cost of incarceration, Holder proposed that states adopt alternative policies to address their criminal problems.  He advocated for states "to consider what happens to those people after they leave prison and reenter society...."  Holder's proposal will not solve every budget crisis.  States must still pay for prisoner reentry programs, in addition to the trial costs of those who re-offend.

Most Liberal Nominee Since Justice Marshall?:  This was a question asked on The Ninth Justice yesterday.  Jonathan Adler wonders over at Volokh Conspiracy whether it is true.  According to Segal-Cover rankings, which evaluate the perceived ideology of judicial nominees by examining how newspaper editorials evaluate their qualifications and ideology, Judge Sotomayor has earned a score of 0.79 on ideology, with 0 being conservative, and 1 being liberal.  Adler points out that while this may be true, there have only been two Democratic nominees to the Supreme Court since Thurgood Marshall - Justices Ginsburg and Breyer - so "it's possible that Sotomayor could be the 'most liberal' nominee without concluding that she's that much more liberal than current justices, at least at the time of nomination."  Jeffrey Segal, who helped develop the ranking system, contributes part of her score to the media's focus on the Ricci case.  He also says the scores reflect what is "current, not necessarily what the court would see."

On July 31st, a three judge panel upheld Massachusetts' felon disenfranchisement law against challenges that Massachusetts disenfranchisement law, violated the Voting Rights Act § 2, 42 U.S.C. § 1973, "because the percentage of imprisoned felons who are Hispanic or African-American is higher than the percentages of those groups in the population of the state."  The First Circuit's decision closely mirrors the argument made by an amicus brief for the Criminal Justice Legal Foundation and others, in Muntaqim v. Coombe.  The brief is available here. The Second Circuit's decision deciding the issue in a companion case, Hayden v. Pataki, is available here.   

Oregon v. Ice Trumps Defendant's Habeas Claim:  Doug Berman posts over on Sentencing Law and Policy that the Sixth Circuit ruled in the habeas case, Evans v. Hudson, No. 08-3717 (6th Cir. Aug. 3, 2009), that the Supreme Court's decision in Oregon v. Ice "undercuts" a Blakely claim that was valid at the time of direct appeal.  Glen Evans was convicted on one count aggravated murder, two counts kidnapping, with fire arm specifications on all counts.  The judge sentenced Evans to serve consecutive sentences.  On appeal to the Ohio Supreme Court, Evans argued the trial judge had erred by imposing consecutive sentences without making statutorily required findings of proportionality.  The Ohio court dismissed the appeal.  The district court then granted habeas relief, because the "statute that the sentencing judge relied upon in imposing Evans's sentence... violated Blakely because...'an Ohio defendant could not be sentenced to consecutive sentences without additional judicial fact-findings.'"  The state appealed, and the Sixth Circuit determined that after Oregon v. Ice, Evans' claim resembled a question addressed by the Supreme Court in Lockhart v. Fretwell.  Fretwell directed a court not to "consider the effect of an objection it knows to be wholly meritless under current governing law, even if the objection might have been considered meritorious at the time of its omission."  Since Ice had determined "that the Sixth Amendment does not exclude" the practice of requiring a judge to find certain facts before she can sentence a defendant to consecutive terms, Evans' Blakely argument was meritless. CJLF's brief in Ice is available here. 

Aggravation of Victim Suffering:  Over the weekend, Doug Berman posted some snippets from an article by John Christofferson that reported that death penalty cases were harder on survivors than life sentences.  Berman's Sentencing Law and Policy post wondered whether this meant that the death penalty "aggravate[d]" victim suffering.  While it may be true that "[c]ommissions in New Jersey and Maryland in recent years found that death-penalty cases are more harmful to the families of victims than cases that end with life sentences[,]" Berman's question prompted one blogger to comment that victim suffering "is the the new anti death penalty mantra."  As several pointed out, "[t]he death penalty is a just punishment for the taking of an innocent life" and many victims, including one quoted in Christofferson's article, are willing to suffer to obtain justice.

Retired Justice Moves Out of Farmhouse to Accommodate His Library:  At SCOTUSblog, Tony Mauro reports that retired Justice Souter will be moving out of his family homestead in Weare, New Hampshire to a newer home in nearby Hopkinton.  The former Justice apparently purchased the home because it would better hold his book collection.  This article, in the Union Leader, reports that Souter told a neighbor that he decided to move when he learned the farmhouse was not structurally sound enough to hold Souter's thousands of books.  Mauro reports that the farmhouse became famous when Souter was first nominated, because it "seemed to symbolize Souter's almost hermit-like private persona for the media hordes that descended on Weare."  Now that the media is focused on Judge Sotomayor, the retired Justice appears to be embracing a more modern home.

House Demos Refuse to Subpoena Mortgage Records from Countrywide Financial which may implicate additional government officials in the lender's VIP program.  Committees in both Houses are currently reviewing evidence that Countrywide gave special loan packages to top ranking Democrat Senators Chris Dodd and Kent Conrad.  In an update to his story last Tuesday, Associated Press writer Larry Margasak reports that Congressman Darryl Issa, the ranking Republican on the House committee investigating whether the sweetheart deals given to Dodd and Conrad violated Congressional rules, has repeatedly asked the Chairman to order that the records be subpoenaed.  Responding to the request, House Oversight and Government Reform Committee Chairman Edolphus Todd D-N-Y, has refused, saying he has other work to do on the financial crisis.  The Senate Ethics Committee, which is also investigating the matter, does not have jurisdiction beyond the Senate.  House Republicans seeking to have the records opened, say that they are willing to risk the possible exposure of some of their GOP colleagues who may have also received preferential treatment by Countrywide.   

Justice Relaxes Security on Shoe Bomber:  Last month the Justice Department announced its decision not to renew the Special Administrative Measures (SAMs) governing the detention of Richard Reid aka the "Shoe Bomber".  Reid was convicted on charges of terrorism and is serving a life sentence for a 2001 attempt to blow up American Airlines flight 63 from Paris to Miami, with what prosecutors later determined was enough plastic explosive in his shoe to blow a hole in the plane's fuselage and kill all of the 197 passengers and crew on board.  In a federal lawsuit Reid claims that the SAMs, which are security directives restricting the communications, correspondence and contacts of particularly dangerous inmates, violate his First Amendment rights.  In an OpEd piece in today's Wall Street Journal, attorney Debra Burlingame makes the case that Reid remains a very dangerous character who should continue to be confined under maximum security.  She characterizes Justice's decision in this case as an administration effort to "appease political constituencies both here and abroad...on the false premise that giving more civil liberties to religious fanatics bent on destroying Western Civilization will make a difference in the Muslim world." 

Judge Sotomayor's Republican Support:  Today on SCOTUSblog, Kristina Moore reports that Senator Charles Grassley (R-Iowa) has announced he will vote against Judge Sotomayor's confirmation.  Senator Grassley was one of the last Senate Judiciary Republicans to announce his vote, and unless Senator Tom Coburn (R-OK) votes to confirm Judge Sotomayor, Senator Lindsey Graham (R-SC) may be the only Republican backing President Obama's pick for the seat.  Earlier today, Senator Jeffrey Sessions (R-AL) also announced he would vote against Judge Sotomayor's confirmation.  Both Senators Sessions and Grassley credited their fear that Judge Sotomayor would allow personal beliefs to influence her decisions as a reason for their "No" vote.  Sessions also stated "I don't believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism. She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent."  David Ingram also has this report on Judge Sotomayor's dwindling GOP support on Blog of Legal Times. 

Federal Habeas Article:  Thanks to Doug Berman at Sentencing Law and Policy for linking to "Rethinking the Federal Role in State Criminal Justice," an essay by Professors Joseph L. Hoffman and Nancy J. King in NYU Law Review.  The essay argues that federal habeas review of state criminal cases is broken and "squanders judicial resources."  The authors look to King's 2007 empirical study and "the Supreme Court's most recent decision applying the Suspension Clause," and conclude that Congress should "eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences."  The authors propose that the money saved by eliminating such review could be used to fund state defense services.  When Hoffman and King advocate habeas review of death sentences, they advocate review only if (a) petitioner's "death sentence was imposed in violation of the Constitution or laws or treaties of the United States or (b) he is legally ineligible to be executed."  In this article, the authors "defer to another forum a discussion of the proper scope of habeas in capital cases, including the appropriate standard of review and the application of doctrines such as procedural default that currently limit habeas relief."  Footnote #105 tells us they plan to write a book addressing the proper scope of habeas corpus in capital cases.  For now, Hoffman and King just propose keeping habeas review of capital cases separate, instead of attempting a "misguided effort to develop "onesize-fits-all" habeas rule[]..." We are inclined to think that federal review of issues going only to the sentence imposed on a death-eligible murderer should be the first item to go on the scrap heap.

A Plea for Action in D.C. Murder Case.: Today, on Wall Street Journal Blog, Ashby Jones writes about "the tragic story of Robert Wone."  Three years ago, Wone was murdered while he was visiting friends in Washington, D.C.  To date, no one has been charged with his murder.  Police have charged three men of conspiracy, obstruction of justice and crime-scene tampering.  Robert Wone's murder has spawned a website, and today, the Washington Post allowed its editors, David Greer and Craig Brownstein, to write an opinion piece discussing Wone's murder.  The piece details problems with solving a homicide in D.C. and concludes, "Many want to see justice in the scores of unsolved cases, but this one example has revealed a chilling fact: Being a homicide victim in the District may be a great equalizer; position guarantees you nothing. If the slain former colleague of the U.S. attorney general gets lethargic and sloppy treatment from authorities, then what hope do the rest of us have?"     

Stop the presses. The American Bar Association's Criminal Justice Section is not entirely without redeeming social value. They have actually proposed something positive. More than that, they forwarded a proposal to the House of Delegates over the opposition of NACDL.

The legal profession sometimes inflicts public relations wounds on itself by continuing to use old terms to express concepts that have been expanded far beyond the commonly understood meaning of those terms. Among the worst examples is "prosecutor misconduct." It was originally "misconduct" to "suppress" evidence favorable to the defendant, but that concept has been expanded to failure to disclose information in the files of any police agency associated with the case, even if the prosecutor is completely unaware of the information. In Strickler v. Greene, 527 U.S. 263, 275, n. 12 (1999), for example, the information was in a police file in another county, unknown to the attorneys on either side.

The other side loves to exploit this term in debates, such as those over the death penalty, noting in grave tones how many judgments have been reversed for "prosecutor misconduct." Regular folks hearing that term, not knowing how broadly it has been expanded, get the (usually false) impression of some dastardly conspiracy to railroad the defendant. Now the Criminal Justice Section wants the ABA to go on record asking courts to distinguish between "attorney misconduct" and "attorney error." The recommendation and the reasons for it are on pages 67-68 of this PDF document.

Tracking Life Sentences:  With the Supreme Court scheduled to review life sentences without parole for juveniles in Graham v. Florida and Sullivan v. Florida, Doug Berman provides some timely links to a new report, No Exit: The Expanding Use of Life Sentences in America, by the left-leaning Sentencing Project.  Berman's first post provides details of the report.  For example, according to Berman's post, "140,610 individuals are now serving life sentences in state and federal prisons, 6,807 of whom were juveniles at the time of the crime."   Berman's second post links to stories discussing the report in the New York Times, USA Today, Birmingham News, and Daily Record.  The report also focuses on the "overwhelming racial and ethnic disparities [found] in the allocation of life sentences." We've seen these revelations before, particularly when it came to the death penalty.  In one of Kent's past posts, he discusses a study that looked for discrimination when handing out the death penalty.  Researchers in that National Institute of Justice Study found it "difficult to determine definitively whether there is any meaningful association between race or ethnicity and prosecutor recommendations and decisions to seek or not to seek the death penalty in federal capital cases." 

Partisanship and Judicial Review:  At The Ninth Justice, Stuart Taylor Jr. discusses how political leanings can impact how Justices view judicial review and the Constitution.  In discussing the "bumper-sticker" liberal and conservative views of constitutional interpretation, Taylor opines that easy to categorize, simplistic views of constitutional interpretation aren't realistic.  The reality is that there would not be so many 5-4 decisions if the hardest questions could be solved by applying the Constitution to the facts.  Taylor points to ambiguous phrases in the Constitution, like "due process" and "equal protection," and admits "[t]he starting point for honest constitutional analysis is the recognition that most of us...care less about neutral principles of constitutional law than about the political results of the courts' rulings on big issues...."  Some Justices, like William Brennan, adhere to a liberal view of constitutional interpretation that often creates policy that clashes with the Constitution.  Justices that adhere to the "original meaning" of the Constitution, like Justice Scalia, interpret the Constitution to achieve results that would not "horrif[y] the framers."  Each method has its own agenda, and Taylor promises to follow up on the debate surrounding the results of each agenda in his next post.

A Bill to Change the Pleading Standard:  David Ingram reports for Blog of Legal Times that Senator Spector (D-Pa.) filed a bill yesterday that would change the pleading standard for civil lawsuits.  The Supreme Court recently raised the pleading standard, in Ashcroft v. Iqbal, to a level that has garnered several complaints.  Adam Liptak's Sidebar in Tuesday's New York Times relates the impact, and some complaints, surrounding the Iqbal decision.   Specter echoed these complaints when he introduced his bill.  His bill directs federal courts to back away from the fact-specific approach established in Iqbal and interpret the pleading rules as the Supreme Court did in a much earlier decision, Conley v. Gibson.

Amicus Posts Reach Their Conclusion:  Eugene Volokh writes on Volokh Conspiracy that blogger interest has inspired him to post one last post on amicus briefs before he concludes his Federal Appellate Practice treatise series "with two more posts on oral argument."  Today's post covers "Judicial Attitudes Toward Amicus Briefs."  There are some judges, like Judge Posner of the Seventh Circuit, that favor "a narrow view of the circumstances in which leave to file an amicus brief should be granted."  Other judges, like former Third Circuit Judge Alito, believe amicus may provide "important assistance to the court."  

Supreme Court Preview: Maryland v. Shatzer: On SCOTUSblog, Georgetown Law student Diana Gillis previews the U.S. Supreme Court case Maryland v. Shatzer (08-680).  The Court is scheduled to hear oral arguments in the case on Monday, October 5th.  As reported earlier, Shatzer takes up the issue of whether Edwards v. Arizona requires police to cease interrogation indefinitely, once a suspect asserts his right to counsel.  In Shatzer's case, the Maryland Court of Appeals held that Edwards did, and found inadmissible the incriminating statements Shatzer made almost three years after he first asserted his right to counsel.  In her case preview, Gillis nicely sums up the facts of the case and gives brief synopsis of Maryland and Shatzer's briefs.  The Maryland brief argues that Edwards' protection should lift when there has been a break in custody or a substantial lapse of time.  These arguments are similar to those that John Roberts made before the U.S. Supreme Court in United States v. Green.  Green was dismissed without decision.  In response, Shatzer argues that a break in custody limit would undermine Edwards' goal of protecting suspects from coercion.  He also argues that any "lapse in time" rule is arbitrary.  He especially doesn't like the position taken in our brief that Edwards' presumption should expire after 30 days.

"Becoming belligerent with a police officer is almost never a good idea."  That's the advice that James Taranto gives as he recaps the Henry Louis Gates saga on Wall Street Journal's Best of the Web.  Taranto's advice is based on a personal experience with police officers.  One day in the mid-1990s Taranto was a house guest and  a neighbor mistook for a suspicious man roaming the area.  The officers arrived, Taranto kept his cool, and the officers left.  For those unfamiliar with Gates' story this AP story gives some quick details.  Apparently, Gates, director of Harvard's W.E.B. Du Bois Institute for African and African American Research, was locked out of his Cambridge, MA, house one afternoon. A woman called police and "reported seeing a man try to pry open the front door."  When an officer arrived, he asked for Gates identification.  The Boston Globe reports that Gates showed his driver's license and Harvard identification card.  The problem began when Gates accused the officer of being a racist.  He was booked for "exhibiting loud and tumultuous behavior," although charges were later dropped.

Virginia to Address Melendez-Diaz:  At Blog of Legal Times, Tony Mauro reports that Virginia's Governor, Tim Kaine, has called a special session of the state General Assembly on Aug. 19 to respond to Melendez-Diaz v. Massachusetts.  The Supreme Court's decision requires lab technicians to appear at trial if the prosecution introduces at trial written reports or certificates prepared by the technician.  Virginia has a special interest in this decision since the Supreme Court recently granted certiorari in Briscoe v. Virginia, a case that will examine Virginia's rule regarding this type of evidence.  We've blogged about Briscoe before, and as Mauro correctly states, "Virginia may be able to make relatively minor adjustments to its laws to accommodate Melendez-Diaz."  We hope Virginia doesn't make these adjustments too quickly.  Briscoe is a good case to place some limits on Melendez-Diaz's potential impact.

Supreme Court Justice News:  Also on Blog of Legal Times, Tony Mauro posts on "The Bush Judicial Legacy, By the Numbers."  The post links to the latest issue of Judicature which states "[Bush's] judicial legacy may well be Bush's most enduring accomplishment[.]"  On The Ninth Justice, Amy Harder reports that Senator Graham will endorse Judge Sotomayor, and Senator Kyl will not.  According to Jan Crawford Greenburg at Legalities, Senator Kyl will not endorse Judge Sotomayor because her testimony was "evasive, lacking in substance and, in several instances, incredibly misleading[.]"

The Power of an Amicus:  On Volokh Conspiracy, Eugene Volokh has been offering up a series of posts on amicus curiae briefs.  Today's offering tells us that less is more in amicus briefs.  Previous posts include "Amicus Briefs -- Why File Them?" and "Amicus Briefs Supporting Petitions for Discretionary Review."  All of the posts include excerpts from Mayer Brown LLP's treatise on Federal Appellate Practice.      

For the second time in two terms, a habeas petitioner who prevailed in the Ninth Circuit has abandoned that court's opinion when the merits of the case reached the U.S. Supreme Court. Previous posts on last term's Hedgpeth v. Pulido are here, here, and here.

This term we have McDaniel v. Brown. I previously noted what a stinker the Ninth Circuit's opinion was. Was it really that bad, you might ask. No, it was worse. Counsel for Brown filed their merits brief Friday. As noted in the prior post, the Ninth used Jackson v. Virginia to decide that the evidence in Brown's trial was insufficient after first deciding it would ignore the prosecution's key evidence, DNA, that it considered unreliable on the basis of an affidavit presented for the first time on federal habeas. Friday's brief for Brown concedes, "The purpose of a Jackson analysis is to determine whether the jury acted in a rational manner in returning a guilty verdict based on the evidence before it, not whether improper evidence violated due process," which the state has been saying the whole time. The brief then goes on to try to salvage the case with the sweeping assertion that there is a general due process protection against unreliable identification evidence, an argument complicated by the fact that the Supreme Court rejected a very similar argument just 3 months ago in Kansas v. Ventris, slip op. at 7, n. *. See CJLF Brief at 26-27.

There is something seriously amiss with a court that repeatedly issues opinions so wrong that even the prevailing party can't defend them. In every crop there will be some outliers, but the en banc review process is supposed to cull them out. The state petitioned for rehearing en banc in both Pulido and Brown, and the Ninth Circuit denied both petitions. You need to look at these petitions more carefully, Ninth Circuit judges. The reputation your circuit has is not a bum rap. Cases such these illustrate that it is thoroughly deserved.

Second Amendment Cases Challenge Slaughterhouse Cases:  At SCOTUSblog, Lyle Denniston wonders whether the Slaughterhouse cases could be overruled.  The Slaughterhouse cases narrowly interpreted the Fourteenth Amendment's Privileges and Immunities Clause to restrict state laws affecting the rights of national citizenship, but not state citizenship.  Denniston reports that this longstanding rule could be challenged by the Second Amendment cases up for review by the Supreme Court this fall.  In Maloney v. Rice (08-1592),  National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521) the Court will determine whether the Second Amendment's personal right to have a gun for self-defense restricts state and local government laws, and not just those at the federal level.  Denniston believes that "there are only three ways that the Court could interpret the Second Amendment as applying to the states."  He writes that the Constitution rules out one, Slaughterhouse the second, and the third, "'incorporation' of the Second Amendment into the Fourteenth Amendment so that it reaches states - is not an attractive option to constitutional conservatives."  The NRA's petition argues the Second Amendment should apply to the states through "incorporation" and through the Privileges and Immunities Clause.  McDonald suggests overruling Slaughterhouse as "wrong the day it was decided and today stands indefensible."

Was "Repudiating" Obama's Judicial Philosophy Part of the Plan?:  At The Ninth Justice Stuart Taylor Jr. writes that Judge Sotomayor's repudiation of President Obama's "empathy" criteria, as well her step back from the "wise Latina" comments could have been done at the advice of White House lawyers prepping Judge Sotomayor for the hearings.  He wonders if she was advised to reject the liberal judicial philosophy that pervades the President's speeches in order to get "out of a tight spot."  Taylor speculates that the White House knew that the real ammunition against Judge Sotomayor existed in her speeches, and not her judicial record, and suggested that she resort to what Taylor calls "implausible disclaimers."  So were the disclaimers a smokescreen?  Maureen Dowd wrote in The New York Times, "as any clever job applicant knows, you must obscure as well as reveal, so she sidestepped the dreaded empathy questions -- even though that's why the president wants her." 

Reported Decrease in Violent Crime Rates:  On Sentencing Law and Policy Doug Berman posts on a reported decrease in violent crime rates in major cities across the country.  According to a Washington Post story, by Allison Klein, Washington D.C, Los Angeles and New York have all reported fewer killings this year than any other year in at least four decades.  The District and Prince George's County, MD have seen homicides drop 17 percent.  As Chuck Wexler, executive director of the Washington-based Police Executive Research Forum, noted this trend is significant because "summer is when you see the most significant increase in street violence. Departments have had to be more strategic in terms of gangs and hot spots."  Berman has some interesting "not-quite-absurd" theories on why crime is decreasing in these major cities.  His first theory is that that after Heller more people are packing their own heat, and this has led to a decrease in crime.  The second theory is that the election of President Obama has given hope to people and deterred them from committing crime.  It could also be that police are doing are more strategically seeking out gangs in these cities, or that we are handing out tough sentences to the worst offenders.   

Cameras in the UK's Supreme Court:  Tony Mauro posts on Blog of Legal Times that the newly formed Supreme Court of the United Kingdom will allow the media to request broadcasts of its proceedings.  According to a BBC report by Dominic Casciani, the broadcasts are a first for England and Wales.  They could be part of a reform to connect the the justice system to the public that it serves.  Casciani reports "that alongside the decision on filming sessions, the new Supreme Court building had been designed to be as open to the public as possible."  Justice minister Lord Bach claims the new building will allow the public to observe what is happening, which is important to prevent "a disconnect between the justice system and the people it's meant to serve." Back on Blog of Legal Times, Mauro notes that the Justices of the United States Supreme Court may want to take notice.  Judge Sotomayor appears open to the idea of cameras in the Supreme Court, and many of our Justices will be attending the UK's Court opening in October. 

How Did the Confirmation Hearings Go?:  Today, The Ninth Justice has two posts, with comments from SCOTUS watching experts, weighing in on how the hearings went for Judge Sotomayor and other key players.  The first post polls legal experts like Tony Mauro, Tom Goldstein, Doug Kendall, Dahlia Lithwick and Wendy Long, and asks them to grade the performance of each player.  Senator's Leahy and Specter received low marks - C+, while Senators Sessions and Graham each received a B-.  Judge Sotomayor and Senator Al Franken " each got B averages."  Judge Sotomayor receive a B+ from one commenter because, "Her calm, painstaking demeanor took the sting out of the whole affair, leaving Republicans frustrated that they could not draw blood. But her self-portrayal as a judge who follows the law and precedent unquestioningly is hard to believe."  Also available on The Ninth Justice is Amy Harder's interview with Stuart Taylor Jr. discussing this week's hearings.

Was it Justice?:  Doug Berman reports over at Sentencing Law and Policy on Former Pennsylvania Senator Vincent Fumo's prison sentence.  Berman's first post points us to an article from the Patriot-News, reporting that Fumo "should consider himself lucky that he was convicted of misusing more than $2.4 million in taxpayers' money and not of selling crack cocaine."  Apparently, with credit for good behavior Fumo could walk out of prison in 2013.  His sentence is more lenient than Joseph J. Moore, arrested for being "in a car with three men who tried to buy $6,000 worth of crack cocaine from a police informant."  Moore will be serving 20 years in federal prison for his offense. Members of the defense bar were up in arms over this discrepancy, and, it turns out Federal Prosecutors are going to appeal the Fumo's sentence.  Berman's second post points to Maryclaire Dale's article on Philly.com which reports that Federal Prosecutors believe Fumo's sentence is "unduly lenient and unreasonable" and plan to ask the Justice Department to sign off on an appeal. 

The U.S. Supreme Court has published its argument calendar for the beginning of the new term in October. The first case out of the box on the First Monday in October is an "original jurisdiction" case which, as usual, is a state suing another state, South Carolina v. North Carolina. (Yawn.)

Next up is Maryland v. Shatzer, on whether the don't-ask-again interrogation rule of Edwards v. Arizona has any time or place limits. CJLF's brief in that case is here.

The next day is federal criminal case day: US v. Stevens, Johnson v. US, and Bloate v. US.

The following Tuesday, October 13, features three state criminal cases (two of them on federal habeas): McDaniel v. Brown, Padilla v. Kentucky, and Smith v. Spisak.

Brown involves an exceptionally bad (even for the Ninth Circuit) sufficiency of the evidence decision, discussed here. Spisak involves an exceptionally bad (even for the Sixth Circuit) extension of existing precedent to overturn a reasonable state court decision, discussed here. Nineteen years after Teague and 12 after AEDPA, they still didn't get it. Padilla involves ineffective assistance of counsel, guilty pleas, and advising of immigration consequences.

This exchange between Senator Graham and Judge Sotomayor has raised some hackles:

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendment. It is a process -- an amendment process that is set forth in the document.

It doesn't live other than to be timeless by the expression of what it says. What changes is society. What changes is what facts a judge may get presented...

I would fully expect that ivory tower folks would have a conniption fit over that response, but I was surprised to read this scathing comment from Jan Crawford Greenburg, generally one of the most astute and evenhanded of the Court commentators.

That's nonsensical. Obviously, the name of the game is confirmation, but if you have 60 votes, why not explain your views on the role of the courts and liberal judicial philosophy? Justice Breyer wrote an entire book on this! He and Scalia have gone on the road to debate whether the Constitution is living or dead (I moderated one of their debates and just tried to stay out of the way). This is an easy one! It shouldn't be that difficult to knock it out of the park.

I disagree. The statement makes perfect sense, and she did hit it out of the park. She just didn't hit it in the direction many expected. The answer responds directly to the question, and it is a clear, unequivocal repudiation of the "living Constitution" nonsense. It appears that Judge Sotomayor recognizes a truth that has escaped many judges and nearly all law professors.

The LA Times has transcripts of the hearing. From part 5, here are the portions about the death penalty, after the jump. Prior post on this portion of the hearing is here.

Polls Show More than 80% Support for the Death Penalty:  At Homicide Survivors, Dudley Sharp posts that "[w]hen polls correctly ask about true capital, death penalty eligible murders, support" remains high for the death penalty.  Sharp points out that the polls which correctly ask whether the respondent supports a death sentence for capital murder demonstrate that support remains very high.  In other polls, where respondents have been asked whether they support the death penalty for murder, positive responses are only 60-75% of the time.  Sharp dismisses these as "irrelevant" because they asked the wrong question.  He believes that the "error rate" (80% vs. 65%) is due to several factors, such as reluctance to voice support unless specific details of the murderer and the crime is provided.  A good example?  In a 2001 Gallup poll concerning Timothy McVeigh's execution "57% of those who say they oppose the death penalty, generally, actually do support it for McVeigh's execution (81% supported the execution of McVeigh, 16% opposed (Gallup 5/02/01)), while 65% offer general support for executions for "murder," with 28% opposed (Gallup, 6/10/01)."

Sotomayor Hearings - Where Will GOP Focus?:  Amy Harder writes at the Ninth Justice that after polling ten Supreme Court watchers, the NationalJournal.com has found that the GOP is most likely probe Judge Sotomayor on her decisions in Ricci v. Destafano and Maloney v. Cuomo.  The ten respondents were given seven choices, ranging from Judge Sotomayor's role in Didden v. Village of Port Chester (property rights case) to her views on abortion, and asked to rank the choices.  Each respondent had to give reason for his or her ranking.  For one expert, Ricci ranked first because "Ricci is the worst, and the most unpopular with voters, and she is the most vulnerable on that, in part for the sweep-it-under-the-rug approach and recent Supreme Court rebuff."  To find out if these Supreme Court watchers were right, take Crawford Greenburg's advice on Legalities and check out ABCNews.com livestream of the hearings next Monday, 10a.m.ET.

Split Ninth Circuit Decides When Prison Officials Are Liable for Depriving Outdoor Exercise:  Doug Berman has a quick post at Sentencing Law and Policy on Norwood v. Vance, a Ninth Circuit decision granting qualified immunity to prison officials who denied prison inmates outdoor exercise during four separate lockdowns after serious inmate assaults on staff.  Gregory Norwood was incarcerated at a maximum security prison near Sacramento, CA, during a two-year period of exceptional violence against prison staff and other inmates. Norwood brought a §1983 action, claiming the officials had violated his Eighth Amendment right to outdoor exercise.  Judge Kozinski's ruling on the merits states that in qualified immunity cases, and under Saucier v. Katz, "[t]he relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."  For two of the three Judges on the panel, it would be "particularly odd to hold that liability attaches in this case, where hindsight validates defendants' decisions."  Eugene Volokh also has a post on Norwood, which focuses on the majority and the dissent's understanding of the word "deference" when discussing a jury instruction. 

Federalist Society Debate on Judge Sotomayor:  Both Eugene Volokh and Edward Whalen have posts linking the Federalist Society's Online debate on Judge Sotomayor's nomination.  Volokh's post is available here on Volokh Conspiracy, and Whalen's is available on NRO's Bench Memos.  Whalen is actually taking part in the debate, along with Tom Goldstein, Louis Michael Seidman, David Stras, and Wendy Long.  

A recent decision out of New York holds the Static-99, a common actuarial measure of sex offender recidivism, as inadmissible under Frye. In State v. Rosado, 2009 NY Slip Op 29290 , Judge Riviezzo holds:

In the immediate case, respondent's STATIC-99 score of "4" is considered to be a medium-high risk of reoffending. Under the "new" norms, assuming future admission under Frye, that risk percentage varies from 8.2 % to 27.3% over 10 years. Interestingly, respondent's score of "4" - clearly not low, however not squarely high - provides the perfect example of the pitfalls of admitting the STATIC-99 at a jury trial. The testimony could arguably benefit respondent if, for example, the jury believed that the risk was in fact closer to 8%, but could be greatly prejudicial to respondent if the jury accepted testimony that the risk was in fact closer to 27%. However as discussed above the score of "4" has at best marginal relevance to the issue of whether respondent has a mental abnormality in the first instance, since the score only means that respondent shares certain characteristics of a group found to reoffend at a certain rate without telling the jury anything about respondent's volitional capacity. Given the tenuous connection between a STATIC-99 score and volitional capacity, a jury could easily be confused by the evidence and give it undue significance in either direction. In this case, a jury, believing this score to be low, might wrongfully conclude that respondent has no mental abnormality when in fact one might exist, even if ultimately confinement might not be required due to his "lower" risk of reoffending.  

There's lots of interesting issues discussed in this case, including NY's unique bifurcated commitment statute and whether recidivism tools such as the Static-99 can be used to establish a mental abnormality.    Interestingly, it was the state which argued for exclusion of the evidence. 

But the case is noteworthy for its extended discussion of the Static-99 tool itself.  To be fair, the disparate range of recidivism rates that the court seems concerned about center on the fact that recidivism rates generally go up over time.  The instrument itself provides different recidivism rates depending on the length of follow-up. 

Tony Mauro at NLJ and Bob Egelko at the SF Chron have SCOTUS term wrap-up articles with similar themes. Cases in which the "conservative" position prevailed this term were not blockbusters; they were decided on narrower grounds than they might have been. Yet both stories imply this may be part of a strategy to build toward blockbuster decisions in the future.

Egelko: "Still, for the court's conservatives, 'it was a term pregnant with possibilities for the future,' said Erwin Chemerinsky, a liberal scholar and dean of the UC Irvine law school."

Mauro's piece carries the subhead, "Decisions suggest chief justice may be slow-playing Court's march to the right." "Slow-playing" is a poker term for betting a powerful hand passively, with calls or small raises rather than large raises, to bait more players in and build the pot before dropping the hammer.

Are major changes in the offing for criminal law? Maybe. Justice Kennedy is hard to predict. Justice-to-be Sotomayor may be more favorable to the prosecution in criminal matters than Justice Souter was, but it is hard to predict whether and in what direction she may drift. Justice White had a generally pro-prosecution orientation from the beginning of his long tenure to the end, while Justice Souter seemed that way at first and then drifted. We'll have to wait and see.

Update: James Taranto weighs in at the WSJ:

Still, it is fair to say that the Roberts court is only as conservative as Justice Kennedy will allow it to be. On subjects like abortion and the exclusionary rule as well as on race, that is only very modestly conservative....

By declining to resolve major constitutional questions now, the justices leave open the possibility that a future majority, more liberal and less scrupulous about constraining its power, will decide them. Such is the hazard of judicial restraint.

In other words, the "slow-play" metaphor doesn't work, because Roberts' hand isn't really strong.