All Quiet on the Confirmation Front:  At SCOTUSblog, Tom Goldstein explains why he believes that Senate confirmation hearings for Judge Sotomayor will be a "non-event."  First, Goldstein reasons that with 60 Democrats in the Senate, "absent a bombshell," Judge Sotomayor will be confirmed.  But aside from that, Goldstein believes that there are political disadvantages to drawing attention to Judge Sotomayor's hearings.  He writes that the public "seemingly likes her and thinks she should be confirmed."  This could be because, according to Goldstein, she is well-qualified, has a compelling life story, and is the first Latina nominee to the Court.  While Goldstein does not predict any public attacks during the hearings, he does believe that the hearings could be a venue the Obama Administration "to use a popular nominee to further define the President."  Goldstein writes: "Though the general public does not care much about the Court, the perception of a nominee in a high-profile nomination process does translate to some extent onto the President that made the appointment.  If she is regarded as a radical liberal, for example, that will say a good deal about the President who picked her." We still think the hearings are important to get some answers to unanswered questions, especially on the death penalty.

Alliance for Justice Defends Judge Sotomayor's "Controversial" Cases:  At The Ninth Justice, Amy Harder reports that shortly after the U.S. Supreme Court struck down the Second Circuit's decision in Ricci v.DeStefano, the left-leaning Alliance for Justice issued its final report on Judge Sotomayor's opinions. Harder reports, that "[w]hile the group doesn't officially take positions on nominations, the Alliance's legal experts were quick to come to Sotomayor's defense on Ricci."  William Yeomans, the group's legal director, explained that since Ricci announced a new standard for interpreting Title XII of the Civil Rights Act of 1964 there was no way Sotomayor could have applied it as an appellate judge at the time she heard the case.  The report also reviews Maloney v. Cuomo, a Second Amendment case where Judge Sotomayor joined a panel in affirming a lower court's ruling that the Second Amendment doesn't apply to the states.  In addition the report tackles Judge Sotomayor's views on abortion, which the group said show "a real sensitivity to privacy rights and family planning rights."   Considering the source, we have to take all this with a grain of salt.

Wonders never cease. Just when I thought the California Legislature was completely hopeless, the Assembly Public Safety Committee actually lived up to its name and defeated SB 399. This is the Yee/Romero bill to recall the sentences of 16 and 17-year-olds sentenced to life-without-parole for first-degree murder with special circumstances (e.g., committing rape and then killing the victim).  The bill, and others like it, have been promoted through an extensive, misleading campaign referring to "children" sentenced to life without parole. Are 16 and 17-year-olds "children"? Try standing up in front of a class of high school juniors and saying, "Good morning, children," and see what reaction you get.

Under Penal Code § 190.5(b), the judge already has the discretion to sentence a 16 or 17-year-old special-circumstance murderer to 25-to-life instead of LWOP. So, the ones in prison for LWOP are only the ones whom a judge determined at the time of sentencing shouldn't be eligible for parole. The families of the victims should not have that finality taken away.

Congrats to Maggie Elvey, who worked very hard to defeat this ill-considered bill.

Will Melendez-Diaz Affect Parole in Texas?: Scott Henson writes at Grits for Breakfast that a post  by R.J. MacReady at Texas Court of Criminal Appeals blog has him wondering if Melendez-Diaz v. Massachusetts could change how Texas courts view confrontation in cases involving business records and parole revocation certificates.  MacReady's post focuses on Justice Scalia's ruling that "business records that satisfy the hearsay definition of a business record aren't necessarily immune from a Confrontation Clause objection[.]"  This is a problem, because earlier this year, Smith v. Texas held that business records are not "testimonial" under Crawford v. Washington, because, in MacReady's words, they "contained sterile recitations of the fact of revocation rather than a detailed description of the cause."  MacReady and Henson both believe that the decision in Smith is suspect now that Justice Scalia has stated business records may be considered "testimonial" if they were prepared specifically for use in court.

Supreme Court Yet to Rule on Troy Davis:  Wall Street Journal Law Blogger, Ashby Jones, reports that the U.S. Supreme Court has "kicked the can" on the cert petition of death-row inmate Troy Davis.  In other words, the U.S. Supreme Court, went on summer recess without deciding whether it will consider Davis' appeal for a new trial.  The U.S. Supreme Court stayed Davis' execution last September, denied his appeal, and sent the case back to the Eleventh Circuit.  The Eleventh Circuit eventually rejected Davis' request for a new trial.  Jones reports that the Supreme Court will reconsider the appeal next fall.

Ricci May Indicate Larger Battles Ahead:  At NRO Bench Memos, Ed Whalen comments on  Stuart Taylor Jr.'s post on The Ninth Justice.  Both Whalen and Taylor believe that the Supreme Court's unanimous rejection of the Sotomayor-endorsed Second Circuit position (that disparate racial results alone justified New Haven's decision to dump the promotional exam), and the different stances taken by the Ricci's dissenters and the Second Circuit, are "important and revealing."  (Whalen's post is available here). Taylor, in particular, focuses on the different stances taken by Justice Ginsburg's dissent and the Second Circuit panel.  He writes that while both "risk converting disparate-impact law into an engine of overt discrimination against high-scoring groups across the country," Justice Ginsburg "at least required the city to produce some evidence that the test was invalid."  The Sotomayor panel did not even require that.  Taylor worries that if the Second Circuit's panel decision had been adopted by any of the Justices, the logic would "provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores."

When It Comes to Sentence Enhancement, Who is a Fraud Victim?:  At Sentencing Law and Policy Doug Berman provides a link to a National Law Journal article addressing the circuit courts' failure to consistently answer that very question. In the article Sheri Qualters reports that last Friday, the First Circuit held that judges should count people who are reimbursed for financial losses from criminal schemes as victims when deciding whether to increase a defendant's sentence.  The Eleventh Circuit has reached a similar conclusion.  Apparently, however, other circuit courts have decided the issue the other way.  Berman believes that the U.S. Sentencing Commission should resolve these discrepancies.  He does not believe it is necessary for the U.S. Supreme Court to take up the issue.  

Supreme Court Term Summary: Kristina Moore at SCOTUSblog posts Akin Gump annual term summary memo. The memo analyzes voting patterns of the Justices.  No surprise: Justice Kennedy cast the deciding vote in 18 of the 23 5-4 decisions.

Some more fallout from the U.S. Supreme Court's decision in Medellin v. Texas fell today from the California Supreme Court. The case is In re Martinez, S141480.

In its Avena decision, the International Court of Justice said that all that was required was a judicial determination of whether the defendant had suffered any prejudice from failure to notify the consulate upon arrest. Very few have, I believe. CJLF argued to the U.S. Supreme Court that Medellin had already received a (negative) judicial determination of prejudice, although the state court decision on that point was less than crystal clear. The Supreme Court decided not to rule on that basis, but noted the issue in a footnote.

In the California case, it is clear. Martinez raised the Vienna Convention claim in his first state habeas petition, and that petition was unambiguously denied on the merits, not procedural default. He has already received the determination the Avena decision says he should receive. President Bush's memorandum saying the state courts should implement Avena would entitle him to no more, even if it were binding on the states, and Medellin holds it is not. Game over, says Cal. Supreme, in a unanimous decision by Justice Moreno.

DNA Solves Colorado Murder:  A habitual criminal has received a sentence of life in prison without the possibility of parole for the 1997 kidnap, sexual assault and murder of 23-year-old University of Colorado co-ed as reported in this AP story, and this one from the Denver Post.  The case went unsolved for ten years until a DNA sample taken from Chilean national Diego Olmos Alcalde, while he was in a Wyoming prison for attacking another woman in 2000, was matched to DNA evidence in Susannah Chase's murder case.  The evidence was taken by Colorado police from Chase's body after she was found in an alley.  Chase had been beaten with a baseball bat before she was raped and dumped in the alley.  She died in the hospital the next day. 

More such cases would be solved, and more crimes prevented, if we tested everyone arrested for a felony, writes Gerald Bailey, commissioner of the Florida Department of Law Enforcement, in this Miami Herald op-ed.

Chicago Logs Six Murders in 24 Hours:  The first summer weekend in Chicago was marked with six killings, and several other hospitalizations, from gunshots or stabbings according to this story from CBS.  The killing began at 8:20 pm Friday when an armed group approached  two young men standing in the street talking and shot them both, leaving one dead.  Most of the victims were young men, between the ages of 18 and 25, but the last victim was Willie Short, 38.  Short was shot and killed while he was out driving on Saturday night.  Those injured over the same period include a 9-year-old boy shot while walking with his family, a 19-year-old man shot while allegedly pointing a gun at police, and two females who were stabbed by their boyfriends. 
 

Judge Sotomayor, An "Activist" Justice?:  In a recent post on CQ Politics, Seth Stern reports that Senator Sam Brownback (R-KS) will not be voting to confirm Judge Sotomayor.  Senator Brownback voiced his concern that Judge Sotomayor will not be an "impartial umpire" in a speech made on the Senate floor yesterday, where he announced "Judge Sotomayor has indicated through past rulings and in her writings that she believes the judiciary should take an activist role and make laws, instead of upholding the law."  At Sentencing Law and Policy, Doug Berman also wondered if Judge Sotomayor would make "activists" comments about the Second and Eighth Amendments during her confirmation hearings.  His post points to a New York Times article which may provide insight to Sotomayor's views on the death penalty, and a Los Angeles Times article that discusses her views on the Second Amendment.  Berman delights in reading these two stories side by side because "they help highlight how justified and unjustified judicial "activism" is in the (always biased?) eye of the beholder."

Criminal Law Decisions from the Supreme Court:  As Doug Berman pointed out on Sentencing Law and Policy, the U.S. Supreme Court decided the last two criminal justice cases of the term today.  Berman provides a quick summary of Melendez-Diaz v. Massachusetts and Safford United School Dist. #1 v. Redding, while Tony Mauro provides a full report of the Safford decision at Blog of Legal Times.  Mauro writes that in one of his final decisions, Justice Souter "ruled for a divided Court . . .that the intrusive strip search of an Arizona middle-school girl in pursuit of drugs was a violation of her Fourth Amendment rights."  However, because the scope of her Fourth Amendment right was not clear at the time of her search, the assistant principal who ordered the search was entitled to qualified immunity.  Thirteen-year-old Savana Redding had been accused of possessing prescription-strength ibuprofen pills and was ordered to strip down to her underwear so that the school nurse could search her for the drugs.  None were found and Savana's mother sued the school district claiming a Fourth Amendment violation.  Justice Souter said that under the Court's precedent on student searches in the 1985 case New Jersey v. T.L.O, the school was justified in conducting a limited search of the girl's backpack and outer clothing, but requiring her to strip to her underwear and partly expose herself was excessive.  Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer and Samuel Alito Jr. joined the majority.  Justices Ginsburg and Stevens agreed there had been a constitutional violation, but dissented on the issue of qualified immunity.  Justice Thomas did not believe the search violated the Fourth Amendment in the first place.

Judges Posner, Easterbrook and Bauer Threatened, Radio Talk-Show Host Arrested:  At Wall Street Journal's Law Blog, Ashby Jones reports that blogger and radio talk-show host Hal Turner has been arrested for a June 2nd blog post stating "[t]hese judges need to be killed."  Federal authorities in New Jersey arrested Turner for comments that the FBI calls "a threat to assault or murder a United States judge," despite the lack of evidence that anyone had taken steps to carry out the threat.  But Turner certainly made it easy for anyone who intended to carry out his threat.  According to Jones, Turner allegedly posted the work addresses of the judges as well as their photos, and a map of Chicago's federal courthouse highlighting its "anti-truck-bomb" pylons.  He included a note that the Judges home addresses would follow.  Seventh Circuit Judges Posner, Easterbrook and Bauer apparently incited Turner's anger by upholding two handgun bans in Chicago.  This New York Times article, by Eric Lichtblau, discusses the arrest.  

The Ninth Circuit en banc has struck down the City of Seattle's attempts to restrain obnoxious street performers from hassling people (including each other) at the Seattle Center. The case is Berger v. City of Seattle, No. 05-35752. Chief Judge Kozinski dissents in his characteristic style with a hypothetical:

Mr. Nez, who lives in Pasadena, wants to hold a parade celebrating the Festival of Noses. And he wants to follow the route that is followed every year by another parade with a very similar name --starting north on Orange Grove Avenue near California, then turning east on Colorado for about 5 miles. Unfortunately for Mr. Nez, no one else shares his enthusiasm, so he decides to hold a one-man parade, carrying a giant paper mache replica of Jimmy Durante's head. Having read the majority's opinion, he believes that he needs no parade permit since he is, after all, a single performer. So, about 9 a.m. on January 2, he dons a top hat and tails, holds high the effigy of The Schnozz and starts walking north on Orange Grove straddling the double yellow line. My guess is that the Pasadena police would pick him up and give him a jaywalking ticket (or worse) long before he got to Colorado. His First Amendment defense would get about as far as his parade.

This one is certworthy, Seattle. Go for it.

Physician Participation in Executions:  Doug Berman provides this helpful link to an SSRN article by Ty Alper over at Sentencing Law and Policy.  The article, "The Truth About Physician Participation in Lethal Injection Executions," attempts to "expose two myths that have come to dominate the capital punishment discourse: first, that requiring physician participation would grind the administration of the death penalty to a halt; and second, that advocacy for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument."  Alper says his research shows that doctors are willing to participate in executions, but States have "strategically emphasized" and "exaggerated" the positions of national medical associations in order to prove that doctors are unwilling to participate in executions.  Alper is a law professor at Berkeley Law and participates in the school's Death Penalty Clinic.  The Clinic submitted this brief in the landmark case Baze v. Rees.   CJLF's brief in that case is here. Alper takes issue with our position that opponents are deliberately trying to set up a Catch-22. See n. 34 in the paper and accompanying text. We stand by it.

Prison Rape Study Released:  Jordan Weissmann reports on Blog of Legal Times that a congressional commission on prison rape, headed by Judge Reggie Walton, has released its final recommendations for how prisons may control the sexual abuse of prison inmates. Weismann reports that the eight member panel recommended improvements in guard training, the method of reporting rapes, procedures used for investigations, as well as different disciplinary measures.  The commission was created by the Prison Rape Elimination Act of 2003.  Former-President George W. Bush appointed its members.  Judge Walton said that he planned to work with Attorney General Eric Holder Jr. to assure that the commission's standards are adopted at the federal and state level.  

Enviable Summer Schedules:  At Blog of Legal Times, Tony Mauro reports that the Supreme Court Justices are getting ready for a summer of lecturing and traveling.  According to Mauro, Justice Breyer and former Justice Sandra Day O'Connor will be speaking at the Aspen Ideas Festival in Aspen, Colorado while Justices Alito, Kennedy, Ginsburg, and Roberts are all scheduled to teach summer law courses in Europe.  Interestingly, almost all of the Justices will be lecturing in cooler, mountain climates.  With destinations like Aspen, Innsbruck and Salzburg, I'd be eager to escape the D.C. heat too.

Colorado Supermax Prison Getting Lots of Press:  Yesterday, Doug Berman's Sentencing Law and Policy featured a link to a 60 minutes story on ADX Florence, the Supermax federal prison in Colorado. Today, at Wall Street Journal Law Blog, Ashby Jones reports that one of the prisons most famous inmates, Terry Nichols, is unhappy with prison conditions at the Supermax facility.  Jones reports that Nichols has asked for a lawyer to help him in a lawsuit against the prison over the quality of the food.  An AP story reports that Nichols requested an attorney because he can't afford an attorney, has limited legal knowledge, and that his case is complex and requires "significant research."

DNA Testing Cut in Los Angeles County as Sheriff Lee Baca deals with a budget shortfall caused by the state's worsening economy.  An AP story reports that the Sheriff told the LA County Board of Supervisors last week that his department had suspended shipping rape kits, and other DNA samples, to crime labs last month due to a shortage of cash and staff.  Last November, it was reported that a ten year backlog of over 4,000 rape kits sat untested in county storage.

AG Holder Could Cut Funding to State Prisons if he accepts the standards presented in a report from the National Prison Rape Elimination Commission according to a story by AP writer Jennifer C. Kerr.  The report requires states to adopt standards to reduce rape in prisons and jails, or lose 5% of their federal funding for prisons. Among the Commission's key findings was that inmates who were short, gay or female were more likely to be victimized than other inmates.  This finding overlooks transgender inmates.  A UC Irvine study we reported on last April found that nearly 60% of male inmates who dress and present themselves as women in California prisons reported being sexually assaulted by other inmates.  Unfortunately, the study also found that the same 60% of transgender inmates opposed being segregated in women's prisons.  

Federal Death Penalty. Josh Gerstein at Politico had this story on Sunday regarding the federal death penalty. He says President Obama may be faced with execution decisions in the next few months. Unlike the two previous presidents, who were former governors, this will be a first for him.

Narrow Ruling on Voting Rights Act:  At Blog of Legal Times, Tony Mauro reports that the Court's "much-awaited" decision in Northwest Austin Municipal Utility District Number One v. Holder did not strike down Section 5 of the Voting Rights Act.  Instead, Chief Justice Roberts' majority opinion avoided the constitutional question and found an alternative way to resolve the case.  Mauro reports that by granting the Texas Utility District a "bailout" from Section 5, an 8-1 majority found that today was not the day to strike down Section 5 of the Act.  At SCOTUSblog, Tom Goldstein writes that although the Court did not strike down the law today, the Northwest Austin decision "unambiguously served notice that the Justices are prepared to invalidate the statute as it stands."  Goldstein believes that Congress is now "on the clock" to change the statute before the Court gets the opportunity to invalidate the statute in a follow-up case.  Goldstein's post expresses his respect for the Chief Justice's majority opinion which serves as a "model for his philosophy of judicial minimalism" by instructing Congress that the ball is in its court, brings eight Justices together on a result to which they can agree, and still allows the Utility District to "bailout" of Section 5 requirements.  Also, check out Ashby Jones' Q&A with "election-law specialist and Loyola Law School professor" Rick Hasen on today's decision at Wall Street Journal Blog. 

Judge Sotomayor's Mentor/"Foil":  Ed Whalen writes on NRO's Bench Memos that David D. Kirkpatrick's New York Times article about Judge Sotomayor and her mentor José A. Cabranes is "oddly" written in a way that repeatedly "denigrates Cabranes and favors Sotomayor."  Whalen appears to find it strange that in comparing the two Judges, Kirkpatrick continuously refers to Cabranes' decisions as "expansive" while choosing to define Judge Sotomayor's decisions as "studiously narrow."  Judge Cabranes and Judge Sotomayor first crossed paths when Cabranes was Yale University's General Counsel and Sotomayor was a student.  Judge Cabranes then went on to serve as her mentor and eventually swore her in as a Judge on the Second Circuit Court of Appeals.

Is Budgeting for Prison Really the Problem:  Doug Berman posts at Sentencing Law and Policy a commentary from Mike Krause of the Colorado Daily, which states "prison spending..., and the sentencing polices [sic] that drive that spending, [have] been constraining state spending for decades...."  In his commentary, Krause complains that as Colorado has increased the maximum penalties for felonies, and Colorado's inmate population has doubled, the state has increased spending on prisons, when it could have been spending on higher education and health care.  Berman believes this is just one more reason why "anyone concerned about government growth and excessive government spending needs to be focusing on sentencing reform."

A Very Interesting Case:  At Volokh Conspiracy, Eugene Volokh briefly notes that the U.S. Supreme Court has agreed to hear arguments in United States v. Comstock, a federal powers case that will address whether the federal government can civilly commit a "sexually dangerous" person even after that person has completed his sentence.  Volokh had blogged on the case when the Fourth Circuit unanimously held that the federal government did not have this sort of power.  In today's post, Volokh predicts that the Supreme Court will reverse the Fourth Circuit decision, "chiefly for the reasons I mentioned in my initial post[,]" where he was "tentatively skeptical of the panel's reasoning."  

Two Criminal Law Decisions for U.S. Supremes: At SCOTUSblog, Lyle Denniston briefly summarizes today's U.S. Supreme Court decisions.  Of the four, two involved issues relating to criminal law.  Tony Mauro also provides a quick summary at Blog of Legal Times. The first case, District Attorney's Office v. Osborne (No. 08-6), held that an individual whose criminal conviction has become final does not have a constitutional right to to obtain post-conviction access to the State's DNA evidence for testing to prove his innocence.  A 5-4 majority found that the task of writing rules to control access to DNA evidence "belongs primarily" to the legislature. Denniston reports that two members of the majority, Justices Alito and Kennedy, also wrote that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.  Kent's post on Chief Justice Robert's majority opinion can be found here.  Ed Whalen also has two posts discussing Osborne's "debate" over the proper role of the Court at Bench Memos.  The first post features Roberts' majority opinion, while the second offers an excerpt from Justice Stevens' dissent.  Yeager v. U.S. (No. 08-67), the other criminal law case decided today, held that if a jury finds an individual not guilty on some counts, but can't agree on the others, prosecutors may not try that individual again on the "hung" counts if they had a common element with those on which the jury acquitted.  In a 6-3 decision, Justice Stevens wrote that Yeager could not be retried on charges if a jury verdict on other charges had resolved an essential element of those crimes.  The other two cases decided today, Gross v. FBL Financial Services (No. 08-441) and Travelers Indemnity, et al., v. Bailey, et al. (No. 08-295), discussed workplace discrimination and a bankruptcy court's power to block lawsuits following a settlement.

Random Drug Test Policy Violates State's Protection Against Unreasonable Search and Seizure:  Eugene Volokh writes at Volokh Conspiracy that the North Carolina Court of Appeals has struck down a County Board of Education's random drug test policy for all public school employees.  The decision, Jones v. Graham County Bd. of Educ. (N.C. Ct. App. June 2, 2009) found that because public school employees do not have a reduced expectation of privacy "by virtue of their employment in a public school system," and because the record was devoid of evidence that the Board's prior policy -- requiring all applicants to pass a drug or alcohol test, and requiring employees to pass a test if supervisor found reasonable cause -- was in any way insufficient to satisfy the Board's needs, "the employees' acknowledged privacy interests outweigh the Board's interest in conducting random, suspicionless testing."

Which City is the "Murder Capital" of the United States?:  Wall Street Journal's Law Blog writer, Ashby Jones, reports that while recent FBI data found Baltimore to have the highest homicide rate in the United States, a story in today's Detroit News found that the Detroit police "routinely underreport homicides" and an "actual" total makes Detroit the homicide capital of the nation.  The article, by Charlie LeDuff and Santiago Esparza, reports that rather than following medical examiner reports to determine if it is a homicide, Detroit takes a "wait and see" approach on killings that may have been accidents, suicides, or acts of self-defense.  Detroit News found that Detroit's actual homicide rate in 2008 -- 40.7 per 100,000 -- was higher than Baltimore's homicide rate of 37 per 100,000.   
  

Tom Goldstein has this op-ed in the NYT, regarding claims of bias being made against Supreme Court nominee Sonia Sotomayor. Here are the first and last paragraphs:

LONG past the Civil War, and a generation after the formative civil rights struggle, many of us remain incapable of having a conversation about ethnicity that does not devolve into charges of racism....

The public debate ought to be about what the law should command in these kinds of difficult cases. Unsubstantiated charges of racism distract us from these questions and demeans our justice system.

Tom is quite correct, but we should note that 99%+ of the unsubstantiated charges of racism emanate from the political left. Will they take Tom's words to heart and desist? I would bet my bottom dollar against it and give 100:1 odds, if I could find anyone fool enough to take the bet.

Speaking of unsubstantiated charges of racism, one such charge was contained in the 1981 death penalty memo signed by Sonia Sotomayor, noted here. We are still waiting for her statement on whether she still believes this.

Justice Department Pledges to Step Up Crime Fighting in Indian Country:  At Blog of Legal Times, Mike Scarcella reports that the Department of Justice plans to partner with tribal leaders to improve law enforcement in tribal communities. At the National Congress on American Indians in New York, Associate Attorney General Thomas Perrelli stated that $225 million in the American Recovery and Reinvestment Act is dedicated to improving and building correctional facilities on Indian land with an additional $20 million in the 2009 omnibus appropriations bill designated to provide equipment, technology and training to law enforcement officers.

Federal Judge Allows Padilla v. Yoo to Go Forward:  Ashby Jones reports at Wall Street Journal's Law Blog that Judge Jeffrey White of San Francisco ruled that convicted terrorist Jose Padilla can sue John Yoo for drafting legal theories that led to his alleged torture.  Reasoning that Yoo went beyond the normal role of an attorney when he helped write the Bush administration's detention and torture policies and drafted legal opinions to justify those policies, Judge White stated that "government lawyers are responsible for the foreseeable consequences of their conduct."  Jones reports that the ruling rejected government's arguments that the courts are barred from examining top-level administration decisions in wartime

Papers and Studies of the Supreme Court:  On Sunday David Stras posted an "Academic Roundup" on SCOTUSblog, and reviewed two academic articles discussing the Supreme Court.  The first, Remaking the United States Supreme Court in the Courts' of Appeals Image, proposes that the United States Supreme Court be modeled after the U.S. Courts of Appeals.  Its authors, Tracey George and Chris Guthrie believe increasing the number of Justices, and having them sit in panels of three, could increase the decision-making capacity of the Court.  They believe this would ultimately improve the consistency and clarity of the law.  The second article, Ducking Trouble: Congressionally-Induced Selection Bias in the Supreme Court's Agenda, addresses whether the Court is influenced by Congressional preferences, and concludes that between 1987 and 2001, the Rehnquist Court behaved differently when there was a Democratic Congress rather than a Republican one.  The studies authors, Barry Friedman and Anna L. Harvey wrote "[t]he Court is significantly less likely to review statutes when there are large congressionally-induced deviations between what the Court would like to do, and what is can do in its final rulings."

The Next Pick. Amy Harder at The Ninth Justice speculates on who the next Supreme Court nominee will be in the event of another vacancy. "Should another vacancy open up in the near future, with Obama busy tackling issues like health care and the economy, he would be unlikely to nominate a crusading liberal justice in the mold of William Brennan or Thurgood Marshall despite calls from the left, [UC's Geoffrey] Stone said." We certainly hope so.

Thin gruel from the high court for criminal law practitioners today. The orders list has four grants of certiorari and one CVSG*, but all in civil cases. There are two opinions, one in a crim-related immigration case. Nijhawan v. Holder, No. 08-495, involves 8 U.S.C. §1227(a)(2)(A)(iii), which provides for deportation of an alien who commits an "aggravated felony." All well and good, but the definition of "aggravated felony" has proven problematic. One variation, §1101(a)(43)(M)(ii),** includes frauds over $10K.

Now, when legislatures impose sentence enhancements or collateral consequences based on convictions or prior convictions, it often happens that the criteria don't match up with the elements of the offense, so there may be no jury verdict on whether a particular criterion is actually true. That raises the issue of a "categorical" approach, in which we look only at the adjudicated elements in the prior proceeding, versus a "circumstance-specific" approach, in which we look at the particular circumstances of the case.

In this case, amount of loss was not an element in the criminal case, but Nijhawan stipulated during sentencing the loss exceeded $100M, ten thousand times the threshold to make it an "aggravated felony." Sort of reminds me of the classic case of Parker v. Levy, 417 U.S. 733 (1974). This statute may be problematic is some cases, Mr. Nijhawan, but it most certainly is not in yours.

Anyhow, Justice Breyer, writing for a unanimous court, rejects the categorical approach and goes circumstance-specific.

Last December, in Hedgpeth v. Pulido, the Supreme Court reversed a decision of the Ninth Circuit, which had declared a garden-variety instructional error to be "structural error" and hence immune from "harmless error" review. This holding was so wrong that not even defense counsel defended it. Three justices dissented, not because the Ninth was right in its approach but because they thought that court had "substantially" applied the correct Kotteakos/Brecht standard even while mangling the terminology. The District Court decision the Ninth was reviewing had applied that standard.

On March 20, the Ninth Circuit remanded the case to the District Court "for further proceedings in accordance with the Supreme Court's determination that the appropriate standard of review in a case under the Antiterrorism and Effective Death Penalty Act of 1996 is harmless error, rather than structural error, when a jury is instructed on alternative theories of guilt." Um, what further proceedings? The Supreme Court decided that the District Court had applied the correct standard the first time. The only remaining dispute is whether it applied that standard correctly. That is why the Supreme Court "remand[ed] to the Court of Appeals for application of Brecht in the first instance." (Slip op. at 5.)

Today, the Ninth Circuit unremanded the case and directed more briefing on the question the Supreme Court directed it to decide. All of this would have been unnecessary if a Ninth Circuit precedent, Lara v. Ryan, 455 F. 3d 1080, 1086 (CA9 2006) (by Judge Betty Fletcher), hadn't mucked it up in the first place.

Fortunately, this is not a capital case, so Pulido continues serving his well-deserved sentence while all this goes on.

Congressmen Bobby Scott and John Conyers have introduced legislation to sentence victims of the most horrible crimes and their families to a lifetime of returning again and again to oppose the perpetrator's parole if he happened to be a day or more short of his 18th birthday.

The notice for tomorrow's hearing on H.R. 2289 is here. The text is here.

The bill would force states, on pain of losing their law enforcement grants, to consider people who committed murder or other grave offenses before their 18th birthday to be considered for parole "not less than once during the first 15 years of incarceration, and not less than once every 3 years of incarceration thereafter...." The bill dishonestly refers to perpetrators 17 years, 364 days old and younger as "child offenders," even though very, very few of the perpetrators in question are "children" as that term is commonly used and understood.

Along with being bad policy, this is the most egregious breach of the principles of federalism to come along in a long time. (Hat tip: SL&P)

Busy Day in Washington:  Since 10am EST SCOTUSblog has been reporting on the Supreme Court's actions.  First, the Court released orders from the Justice's private conference last Thursday.  The Court granted certiorari in non-criminal cases Hertz Corporation v. Friend (08-1107) and Milavetz, Gallop, & Milavetz, P.A., et al.  v. United States ; United States v. Milavetz, Gallop, & Milavetz, P.A., et al. (08-1119) and (08-12245).  The Court then announced opinions in Boyle v. United States, U.S. ex rel Eisenstein v. City of New York, Caperton v. A.T. Massey Coal Company Inc., et al., United States v. Denedo, and Republic of Iraq v. Beaty, et al.; Republic of Iraq, et al, v. Robert Simon, et al.  SCOTUSblog also provided a brief summary of the Court's decisions, including Justice Kennedy's 5-4 opinion in Caperton.  According to Lyle Denniston, the Court held that based on Caperton's facts it was unconstitutional for a state supreme court justice to sit on a case involving the financial interests of a major donor to the judge's election campaign.  Tony Mauro at Blog of Legal Times reports that after Caperton was announced judicial reformers began "celebrating the decision."  And finally, SCOTUSblog informs us that today, just moments before a 4pm deadline, Justice Ginsburg put a temporary hold on the deal to sell Chrysler to save it from collapse.  Denniston reports the order has no significant legal consequence, it just gives the full Court time to decide whether the sale should be delayed any longer.  Ashby Jones also posts on Justice Ginsburg's order at Wall Street Journal's Law Blog.

Rove, Epstein, and Judicial Activism:  At Bench Memos, Matthew J. Franck comments on University of Chicago Law Professor Richard Epstein's criticism of Karl Rove's argument against judicical activism in the Wall Street Journal.  Franck takes issue with Epstein's unwritten argument that because the Founders "understood the risk of faction" they would have approved of what Franck calls a "broad-ranging judicial power as a check on the depredations of winners against losers in the process of majority rule."  Franck does not believe that Epstein's view of judicial power is consistent with the Founders' intent, and he finds Epstein's criticism of Rove to be "woefully underdeveloped."

Pricey Habitual Offenders Laws:  Doug Berman posts on an article discussing the cost of North Carolina's habitual offender law at Sentencing Law and Policy.  In an article titled "Low-level felons add millions to spending," Joseph Neff reports that a study by The News & Observer of Raleigh shows that longer sentences add an average $195,000 in prison costs for each habitual felon.  He reports that since the habitual offender law took effect in 1994, taxpayers have paid an additional $1.5 billion to house habitual felons and $264 million to build prisons.  Neff's argues that a change in North Carolina's habitual felon law could help the state ease its $4.5 billion budget shortfall.  He argues that "[i]f the state stopped sentencing people to eight to 10 years for low-level offenses, it would save roughly $5 million in the first year."  Thankfully changing the habitual felon law isn't the only thing Neff reports on that could fix the budget.  He reports that the state still spends $8 million a year so that booster clubs can pay discounted in-state tuition rates for out-of-state athletes and $100million a year to pave little-used dirt roads. Are the costs offset by the savings in crimes not committed by the habitual criminals? Neff cites some simplistic cross-jurisdictional comparisons to argue they are not, but we know those don't mean much.

Now this requires explanation: thorough, no-waffling, no-evasion explanation.

First, a bit of background on where we are coming from. CJLF has not jumped on the bandwagon of either the opponents or supporters of the nomination of Sonia Sotomayor. We believe that a calm and fair examination is in order, and we have sought to contribute to that process with what we believe to be a balanced review of her decisions in the area we know the most about, available here. We have criticized both opponents and supporters when we thought they were out of line, and we will continue to do so.

As we noted here, in 1981 Sonia Sotomayor was a member of a three-person committee of the Puerto Rican Legal Defense and Education Fund regarding a bill to restore the death penalty in New York. The committee wrote a memo to the Board, recommending that the organization ask Gov. Hugh Carey to veto the bill. The organization subsequently sent a letter to the governor congratulating him after he vetoed the bill. As noted in our previous post, the New York Times had the memo and had mentioned it in a story published May 28. The full text is finally available to the public, and it raises some serious concerns.

Alleged-Doctor Killer Not Death Penalty Eligible:  At Wall Street Journal Blog, Amir Efrati posts on why Scott Roeder, the man charged with killing late-term abortion provider George Tiller, is not death penalty eligible.  Efrati reports that under Kansas law, an alleged murder has to fit into one of eight aggravating criteria to qualify for the death penalty.  In Kansas, this includes murders that are especially "heinous" or "cruel," murders committed for financial gain or killings committed in connection with another felony, etc.  Efrati writes that because Roeder engaged in premeditated murder for political reasons he is not death penalty eligible under the current statute.  Our previous post on the case is here.
  
Petitions to Watch:  SCOTUSblog has posted its "Petitions to Watch" for the Supreme Court's June 11th private conference.  Of the five cases listed, two involve criminal issues.  The first Mabry v. United States (08-763) asks whether Roe v. Flores-Ortega is applicable in a habeas case where the defendant has entered into a plea agreement that includes a waiver of the right to take an appeal or to collaterally attack the sentence.  Judge Rendell, of the Third Circuit, affirmed the district court's denial of Mabry's habeas petition in which he claimed counsel had been ineffective in failing to file an appeal.  In the second case, Campa v. United States (08-987 ) five agents of the Cuban Directorate of Intelligence, and members of The Red Avispa, challenge their convictions for espionage and treason against the United States military.  Their petition asks the Court to address whether the Eleventh Circuit erred when it held that petitioners did not establish a right to change venue. The petition also raises a Batson issue.

"Survey Says?":  Tom Madigan reports on The Ninth Justice that top political bloggers and members of Congress believe Judge Sotomayor's nomination is a benefit for Democrats and "something of a problem for Republicans."  A survey conducted by National Journal Online of members of Congress and political bloggers found that approximately 2/3 of left-leaning bloggers and congressmen thought Sotomayor's nomination would be a major benefit for their party. 1/3 thought it would be a minor benefit.  On the right, 33% of GOP Insiders, and 25% of right-leaning bloggers said Sotomayor would be a minor benefit to them, while 41% of GOP congressmen, and 58% of right-leaning bloggers said the nomination would do them minor harm.  In the realm of criminal law, neither party may have much to fear.  Jess Bravin and Nathan Koppel reported in the Wall Street Journal today that Judge Sotomayor's "Criminal Rulings Tilt Right of Souter." (HT: SL&P)  Kent's investigations into her record on AEDPA is consistent with this conclusion, but the death penalty remains a big question mark.

Suspect Complies with Court Order After Being Tased:  At Volokh Conspiracy, Orin Kerr posts on a very interesting New York state court decision that found use of a taser was reasonable to carry out a court order for a DNA sample, given the unique circumstances of the case.  In People v. Smith, the government obtained an Order to Show Cause (OSC) ordering the suspect to appear and show why he should not be ordered to submit to a buccal swab DNA test. When the suspect did not respond to the OSC, the government sought and obtained an order, apparently based on a probable cause affidavit, requiring the suspect to submit to the DNA test. The suspect complied, but then the government accidentally sent the DNA sample to the wrong lab, where the sample was compromised.  The government then obtained a second order, and the suspect refused to comply.  The police then called a prosecutor, who told the officers they could use force, but to use as little as possible.  Based on the suspect's history  of violence, the officers decided to inform the suspect they would taser him, on the lowest setting, if he did not comply with the order.  The suspect refused, received a two second jolt from the taser, and then complied.  In Smith, the court reasoned that force was permissible because the court order was essentially a Fourth Amendment warrant, and that the police have the power to use reasonable force to execute a warrant.  Kerr's post focuses on the Fourth Amendment issue before the court - and not the officer's conduct.  Kerr writes that the Fourth Amendment does allow police to use reasonable force to execute a warrant, so, "[i]f the order did in fact give the police the authority to obtain the swab, then they had the right to use reasonable force to get the target to comply."

Sotomayor's DA years: WaPo reporters Joe Stephens and Del Quentin Wilber have this story on Sonia Sotomayor's years as an NYADA. "'I had more problems during my first year in the office with the low-grade crimes -- the shoplifting, the prostitution, the minor assault cases,' she told a writer for the New York Times in 1983. 'In large measure, in those cases you were dealing with socioeconomic crimes, crimes that could be the product of the environment and of poverty. Once I started doing felonies, it became less hard. No matter how liberal I am, I'm still outraged by crimes of violence.'" Let's hope she still is.

Judge Sotomayor's Senate Interviews:  At Wall Street Journal Blog, Ashby Jones reports that during interviews with Senators Leahy and Sessions, Judge Sotomayor stated she would "ultimately and completely" follow the law once she is confirmed. David Ingram also wrote about Judge Sotomayor's new "catch phrase" at Blog of the Legal Times yesterday.  According to both reporters, the interviews went well for Sotomayor.  Although, Jones also reports that Senator Sessions did not feel he had adequately addressed his concerns that she might be a judicial activist. 
 
Comments On A Profile of the Chief Justice:  In mid-May we posted a link to Kashmir Hill's post on Jeffrey Toobin's New Yorker article on Chief Justice John Roberts.  On May 23, Joel Jacobsen posted his thoughts on his website Judging Crimes.  And today, Jonathan Adler writes on Volokh Conspiracy that the article is "infected with a subtle spin that results in a distorted picture of the Chief Justice and the Court."  Adler's thoughts echo Jacobsen's comment that Toobin's piece reveals more about Toobin than it does about the Chief Justice.  Jacobsen is critical of Toobin's take on Chief Justice Roberts, and writes that judges, as government actors, are meant to reinforce existing power relationships.  Adler's post goes further and points out that the Chief Justice has not always sided with "existing power relationships."  One example?  Heller v. District of Columbia.   

Death Penalty Prevents "Legislative Backlash":  At Sentencing Law and Policy, Doug Berman posts a guest post by W. David Ball, a Fellow at the Stanford Criminal Justice Center.  Ball's guest post wonders whether there was something behind Herbert Wechsler's belief that the death penalty "had utilitarian value for criminal law, if for no other reason then as a prophylactic against legislative backlash."  Wechsler was the Reporter of the first Model Penal Code, and according to W. David Ball, a utilitarian.  Wechsler apparently believed that after a particularly heinous crime, the availability of the death penalty created a kind of safety valve for popular outrage because it allowed the public to turn against the criminal, and not the legislature.  Ball wonders if California Supreme Court's decision to affirm the death sentence of Richard Allen Davis - the man who inspired "California's 'three strikes law" - disproves Wechsler's theory.   

Supreme Court to Overhaul Website: Yesterday, in the New York Times, Katharine Q. Seelye reported that the Supreme Court has requested $800,000 from Congress to rework its website.  The current website is fairly basic, and Seelye reports that the Court has asked Congress for funds so that it is more user friendly, and so that the Court may post opinions "within five minutes of their announcement in court."  One organization, the Sunlight Foundation, has proposed to re-design the website as part of a "redesigning the government" series.  According to Seelye, the organization believes the website "must strive to make the Court's proceedings transparent, incorporate modern design principles, and meet the higher expectations of today's web user."

In the revamping of the Confrontation Clause, one case that fell through the cracks was that of Jeremy Sheets in Nebraska. He was convicted of the murder of Kenyatta Bush on the declaration against penal interest of a participant in the crime, who then committed suicide before trial. Sheets' conviction and death sentence were reversed on appeal, and he walked.

Reversals have consequences. Todd Cooper reports for the Omaha World-Herald:

We have received some inquires regarding whether the federal government could impose the death penalty for the murder of abortion doctor George Tiller. Doesn't look like it. (See AP story here.) The federal death penalty law, 18 U.S.C. §3591 et seq., provides procedures for a death sentence in cases of espionage, treason, and "any other offense for which a sentence of death is provided...." So we first have to go to the statute defining and punishing the crime.

The statute on point is 18 U.S.C. §248. It is captioned "Freedom of access to clinic entrances," but it covers much more than that. Injuring a person because that person has provided "reproductive health services" is a violation under subd. (a)(1). The penalty is provided in subd. (b)(2): "if death results, it shall be for any term of years or for life."  So it appears that Congress considered the precise question and decided there would be no death penalty. Conceivably, it might be possible to charge another statute where the death penalty is available, but I don't see one offhand.

By the way, §248 was amended in the same statute that enacted §3591, Pub. L. 103-322 (1994).

Kansas has the death penalty, but none of its eligibility circumstances appear to apply.

Update: Scott Roeder has been charged with murder in Kansas state court, according to this NYT article by Joe Stumpe and Monica Davey. Kansas's death penalty eligibility circumstances are described on page 2 of this briefing paper, and none of them appear to apply.

"Most grave among the Sixth Circuit's misunderstandings. . . ." That is judicial-voice-speak* for, "You really botched this one, dummies." Today's unanimous opinion by Justice Ginsburg in Bobby v. Bies gives the Sixth a well-deserved spanking.

As noted in yesterday's post, Supreme Court nominee Sonia Sotomayor has almost no record on the death penalty. (Update: AP article by Mark Sherman is here.) She has had little or no involvement in the few Second Circuit capital cases, some pretrial rulings in one potentially capital case in the District Court, and some unclear but potentially disturbing involvement with an activist Puerto Rican legal group a long time ago. This last item and the lack of any other significant record calls for careful and thorough exploration of the issue during the confirmation process.

Spector Gets 19-to Life:  A Los Angeles judge has sentenced famed 60s music producer Phil Spector to a 15 years to life for the second-degree murder of former actress Lana Clarkson, plus four years for personal use of a gun.  A story by AP writer Linda Deutsch reports that, in addition to circumstantial evidence, the case hinged on the testimony of five women previously involved with Spector who said that he had threatened them with a gun when they attempted to leave him.  Following the sentencing, Spector's son was quoted saying "I'm torn about this. I'm losing my father who is going to spend his life in jail.  At the same time, justice is served."

Druggist Arrested for Killing Robber:  AP writer Tim Talley reports that an Oklahoma pharmacist has been charged with first degree murder for the May 19, killing of one of two armed teenagers who had attempted to hold up the drugstore where he worked. The incident was caught on the store's security camera which shows that when the robbers confronted pharmacist Jerome Ersland, who was behind the counter, he pulled a gun and shot one in the head.  After chasing the other robber away, Ersland grabbed another gun and pumped five more bullets into the wounded robber laying on the floor.  Public support in Oklahoma seems to favor Erlsland, who's $100,000 bail was payed by an anonymous donor.  The state gives citizens statutory authority to defend themselves with its "Make My Day" law allowing deadly force to protect one's home and a "Stand Your Ground" law which extends that right to any place someone is lawfully allowed to be.  

Deal Announced to Settle CA Prison Healthcare Suit:  California's Secretary of Corrections, and the court-appointed receiver charged with fixing the state's alleged inadequate inmate healthcare system, have agreed to a settlement which calls for construction of two prison hospitals able to house 3,400 inmates at a cost of $1.9 billion.  AP writer Don Thompson reports that the receiver's original demand that the state build seven medical centers, was rescinded after critics pointed out that the $6 billion cost included indoor basketball and handball courts, electronic bingo boards, along with stress reduction, yoga and music therapy rooms at a time when the state is facing a $24.3 billion deficit. 

Most of the discussion regarding Supreme Court nominee Sonia Sotomayor has been over her civil case opinions and some speeches she has made. To get a better feel for her handling of the criminal cases, and especially the habeas cases, that are of primary interest to CJLF, I did a Lexis search for opinions written by her containing the word "AEDPA," the acronym for the Antiterrorism and Effective Death Penalty Act of 1996. A summary of the cases is here.

I decided to focus on this statute for several reasons. Decisions by federal judges under this law involve important questions of federalism. The Supreme Court's docket has been heavy with AEDPA cases ever since it was enacted.

The law is bitterly resented by many federal judges precisely because it was enacted to curtail their ability to lord it over state courts and because it rejected the notion that their judgments are inherently superior. Many, many federal judges have attempted to evade it, and a few have gone so far as to declare it unconstitutional. All of the latter have been reversed. Reversing the evasions has been a major part of the Supreme Court's workload, although, as one judge boasted, they can't reverse them all.

A number of years back, opponents of judicial activism talked about interpreting the Constitution in accordance with its "original intent." This rather imprecise language was interpreted by many to focus on the intent of the people who drafted the United States Constitution in a secret meeting in Philadelphia. But that was the wrong focus. That convention could only propose, not adopt. The piece of paper they produced was nothing more than paper until the people adopted it as the supreme law of the land. The original understanding of the words of the document among populace at time is therefore the correct focus, and that is the term that has been used more recently.

A variation of this debate with regard to the Alaska Constitution popped up today in Wilson v. State, Court of Appeals No. A-9786 on the right a felon to possess a firearm and Article I § 19 of the Alaska Constitution. (Hat tip: Eugene Volokh)

Pew Center Report on "Evidence Based Sentencing":  At Sentencing Law and Policy, Doug Berman provides a link to a new policy brief from the Pew Public Safety Performance Project, titled "Arming the Courts with Research: 10 Evidence-Based Sentencing Initiatives to Control Crime and Reduce Costs."  Evidence-based sentencing is aimed toward reducing recidivism, and the policy brief's author, Roger Warren, advocates flexible sentencing options that will encourage recidivism based on the risks and needs of the offender.  The policy brief cites a study conducted in Washington state, and published in 2006, that concluded "some evidence-based programs can reduce crime, but others cannot."

More Sotomayor Opinions:  As part of its Judge Sotomayor opinion series SCOTUSblog offers up summaries of a few decisions by Judge Sotomayor.  These cases are notable because they provoked dissents or concurrences from other panel members.  They are also noteworthy because address mostly criminal issues, from application of the Sentencing Guidelines to habeas corpus petitions.  One case, United States v. Santa, actually involved the same question considered by the Supreme Court in Herring v. United States - whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information?  Judge Sotomayor held the evidence should not be suppressed under the exclusionary rule.  The Supreme Court reached a similar conclusion in Herring.

Judge Wood Interviewed:  Jeff Zeleny at New York Times The Caucus confirms that Judge Wood was in Washington for a SCOTUS interview with President Obama.  Yesterday, an official confirmed that President Obama had interviewed the first prospective Supreme Court candidate, while she was in town for a law conference at Georgetown University.  The meeting has prompted Stuart Taylor, Jr., to rework his SCOTUS rankings.  Judge Wood has replaced Elena Kagan at the top of his list.  All of the speculation surrounding Judge Wood also prompted a post describing Judge Wood's judicial philosophy on SCOTUSblog.  Kristina Moore's informative post provides transcripts of Judge Wood's nomination hearing to the Seventh Circuit, as well as summaries of some of her decisions.   

For those who place great weight on the opinions of other countries regarding America's death penalty, James Dao's story in yesterday's NYT may provide some food for thought. Former Army private Steven Green is on trial for raping an Iraqi girl and then murdering her and her entire family.

Several major issues are at stake in their verdict. Iraqis have been demanding the death penalty for the former soldier, Steven D. Green, a private first class with the 101st Airborne Division at the time of the killings. Only death will prove the fairness of the American judicial system and bring a measure of solace to the victims' relatives, many Iraqis say. The only other possible sentence, life without parole, could set off protests.

But of course the American judicial system is not fair to the victims, especially in capital cases. The worst feature of the federal system, due to the Supreme Court's dubious interpretation of a poorly drafted statute, is that a single juror can veto a death penalty that the other 11 consider the only just punishment for a particularly heinous murder. (Alternatives are to require the jury to deliberate to unanimity one way or the other, as in California, or to allow a nonunanimous jury to make a recommendation to the judge, as in Florida.)

So, we should not be surprised to shortly see people in another country protesting the unfairness of America's system of capital punishment. Unlike the usual protests, though, (1) it actually is their business, as the crime was committed in their country against their countrymen, and (2) the system actually is unfair in this respect.

Update: As predicted, and as yankalp notes in the comments, the single-juror-veto rule has resulted in a life sentence for this atrocity, and the Iraqis are justifiably furious. Habib al-Zubaidy has this story for Reuters. We don't know what the jury vote was, but that information will probably come out later.

What are the chances of Congress fixing the rule? Zero in the present Congress. Even when persons of sense were in control, I was not able to raise any interest in it.