Results matching “first”

New York Times reporter Tim Arango reports in today's New York Times that "Death Row Foes See Newsroom Cuts as [a] Blow."  Apparently, lawyers who oppose the death penalty, and are working to exonerate prisoners on death row, feel "hobbled" by the shrinking size of America's newspapers and the declining number of investigative journalists. 

But death penalty opponents aren't worried that the decreasing number of papers will undermine quality journalism or inhibit the proliferation of ideas.  Death penalty opponents are complaining because they are finding it more difficult to enlist reporters as active members of their cause. Entirely aside from manpower questions, there is the question whether reporters ought to be doing that in the first place.

Some news organizations are reluctant to join the effort out of fear of blurring the line between advocate and objective collector of the news. "My feeling always was we should do it on our own," said Maurice Possley, a Pulitzer Prize-winning reporter who wrote many death penalty and wrongful convictions stories while a reporter for The Chicago Tribune.

Mr. Possley, who left The Tribune last year, had discussions with Mr. Scheck about the paper becoming involved as a plaintiff in the Jones case. "I think the more you link up, people will think you have a bias or an agenda," Mr. Possley said.

Right.

Acts of Vengeance:  Joel Jacobsen blogs on Judging Crimes that despite what educated lawyers, including Justice Souter, may think, lawyers and judges cannot stop those "at the bottom of the social ladder" from resorting to private acts of vengeance.  Jacobsen writes that private acts of vengeance are a way of life for tens of millions of Americans, because the alternative - involving the police and court system - doesn't offer justice or protection from retaliation.  Jacobsen blames "the people at the top, such as Souter," for this problem, because they don't adopt judicial practices that will protect the victim.  For example, the system may not protect an abused spouse if she refuses to testify against her husband.  As a result, the victim, who cannot afford private security, must rely on private acts of vengeance for protection.

Executions Go Forward:  At Sentencing Law and Policy, Doug Berman briefly comments on the executions of Dennis Skillicorn and Michael Lynn Riley, in Missouri and Texas.  Berman counts these as the 28th and 29th executions in the United States this year.  He also notes that of the 66 executions that have taken place since the Supreme Court decided Baze v. Rees, he "cannot recall a single report of a botched lethal injection protocol...."  Berman's eyes were most likely trained on Missouri's execution of Skillicorn.  This New York Times article by Monica Davey reported Skillicorn was the first prisoner to be executed in Missouri since a federal judge ordered a stop to executions, and a remaking of the system, in 2006.   

Why is Judge Wood Heading to Washington?:  At Legalities, Jan Crawford Greenburg reports on the curious timing of Judge Wood's trip to Washington, D.C.  Judge Wood is reportedly in D.C. to attend a legal conference at Georgetown, but Greenburg thinks Judge Wood could be in Washington for other reasons.  Apparently, Judge Wood didn't teach her first-year civil procedure class at the University of Chicago Law School yesterday afternoon so that she could attend the conference - even though she is not listed as a panelist or a participant.  Greenburg speculates that Judge Wood has come to town for an interview with President Obama, and believes Judge Wood is a "top contender."  One user comment points out, however, that Judge Wood could just be in town for the American Law Institute's Annual Meeting.  She does serve on its Council.  Wall Street Journal Blog also has this "Scotulbutt" on Obama's pick for the high court, and Jonathan Adler reports on Volokh Conspiracy that we may be losing Legalities at the height of nomination speculation. 

(For background and insight into the words and ideas SCOTUS watchers are debating, check out Stuart Taylor Jr.'s "Background Briefing" at the Ninth Justice.) 

Vetting - Through a Judge's Decisions:  At SCOTUSblog, Tom Goldstein has a lengthy post summarizing Judge Sotomayor's "principal opinions in civil cases."  Goldstein writes that while media commentary may provide insight into the next Supreme Court Justice, a Judge's opinions, "the most accessible and valuable source of information," should also be considered.  Goldstein's post reviews Judge Sotomayor's opinions on First Amendment rights of speech and religion, abortion, civil rights, environmental law, the second amendment, international law, privacy and voting rights.  Goldstein promises that a summary of criminal opinions will follow.  Jonathan Adler has a post at Bench Memos pointing to another good source of information - judge's speeches.  Orin Kerr chimes in at Volokh Conspiracy on one of Judge Sotomayor's speeches. 

The Great Writ Isn't Used Much... At Sentencing Law and Policy, Doug Berman links to a SSRN article by U.S. District Judge Lynn Adelman titled, "The Great Writ Diminished."  The article examines a random sample of 2,384 habeas petitions filed in United States District Courts in 2007 by state prisoners in non-capital cases, and finds relief was only granted in seven cases.  Adelman argues that, based on his own experience of granting relief in 12 cases in 2007, "the Great Writ has been diminished."  Adelman is a United States District Judge for the Eastern District of Wisconsin, and a former Wisconsin legislator.

The fact that a small fraction of petitions for writs of habeas corpus are granted has been known for a long time. As Justice Jackson pointed out in 1953, that is because nearly all of them are meritless. Also, referring to the modern writ of collateral attack as the "Great Writ" is misleading. The historical writ of habeas corpus that earned that name was simply unavailable to collaterally attack a judgment of a court of competent jurisdiction.

Because Findings of Innocence Get Appealed...  At Blog of Legal Times, Mike Scarcella reports that the Department of Justice is planning to appeal a certificate of innocence issued by the D.C. federal district court earlier this year.  In 2005, U.S. District Judge Rosemary Collyer overturned the murder convictions against Joseph Eastridge and Joseph Sousa for their alleged roles in the 1974 racially charged stabbing death of Johnnie Battle.  Lawyers for Sousa and Eastridge argued the certificate of innocence was necessary to pursue a wrongful conviction claim against the government in the U.S. Court of Federal Claims. (Previous posts on the grant can be found here.)  In order to obtain a certificate of innocence, 28 U.S.C. §2513 requires the petitioner to prove, among other things, that "He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution..."  The government argued that Sousa and Eastridge could not meet this burden in the initial hearing.  Scarcella does not report on whether the DOJ is arguing the same issue on appeal.

War Crimes:  The President announced today that his administration will oppose the release of photos depicting abuse of detainees held abroad by the U.S. military. Washington Post writers Michael D. Shear and Scott Wilson report that today's announcement reversed last month's statement that the Obama Justice Department's would not oppose the ACLU, which filed suit to have the photos released.  On April 23, the federal court where the suit was filed received a letter from the U.S. Attorney stating that the parties had reached an agreement and the administration would be releasing the photos on May 28.  A lawyer for the ACLU responding to news of today's reversal said, "We expect the government to hold true to their word." 

Florida Killers Get DP:  Two drug dealers have been sentenced to death for murdering a Palm Beach family, including 4 and 3 year old boys, over a drug debt against the father.  The Associated Press story reports that Daniel Troya and Ricardo Sanchez are the first Florida murderers to receive federal death sentences since 1988.  The bodies of Jose Escobedeo, his wife Yessica and their two young sons were found on the side of a Florida highway in October of 2006.  The mother, who had tried to shield her sons in her arms, was shot 11 times.  During the sentencing hearing Troya apologized to the victims and family members, while Sanchez told the court that he was innocent insisting that "they will see when it (his case) comes back on appeal."

Federal Power to Civilly Commit Dangerous Sex Offenders:  At Volokh Conspiracy, Eugene Volokh speculates that the Supreme Court will soon be addressing whether the federal government can civilly commit, in a federal facility, any 'sexually dangerous' person 'in the custody' of the Bureau of Prisons, even after that person has completed his entire prison sentence.  In United States v. Comstock, the Fourth Circuit found Congress action under 18 U.S.C. § 4248 unconstitutional, but, Volokh reports that today, the Eighth Circuit reached the opposite result.  In United States v. Tom, the Eighth Circuit reasoned that without civil commitment under 18 U.S.C. § 4248 "the underlying federal criminal law would be frustrated[,]" as would "the power to prosecute or punish..."  The court reasoned that because the federal government retains a vast amount of power over criminal defendants subject to a term of supervised release, the Commerce Clause and the Necessary and Proper Clause allowed Congress to provide for civil commitment of offenders like Tom.  Tom was decided by a three judge panel, it remains to be seen whether the Eighth Circuit will hear the case en banc.

Investigating Lawyers for the Office of Legal Counsel:  David Ingram reports on Blog of Legal Times that the Senate is debating whether it should "investigate former lawyers with the Justice Department's Office of Legal Counsel over their involvement with memos that authorized harsh interrogation techniques for suspected terrorists."  According to Ingram, Senators at the first congressional hearing on the issue debated whether it could pursue action against the authors of the memos.  Senator Sheldon Whitehouse (D-R.I.) and other Democrats seemed to believe that the authors acted improperly, but Senator Lindsey Graham (R-S.C.) warned that too much scrutiny would "make this country less safe."  Congress does not have authority to sanction the lawyers, but Ingram reports that Democrats have made it clear that they wish to ramp up oversight of what happened in the OLC during the Bush Administration.  James Taranto warns that too much oversight could come "back to bite Speaker Pelosi."

SCOTUS cast on Waddington and Pulido:  The Federalist Society has posted a SCOTUS cast discussing the Supreme Court's decisions in Waddington v. Sarausad and Hedgpeth v. Pulido. Casey, a former adjunct professor at George Mason University School of Law, is now a Partner at Baker Hostetler.  His practice focuses on federal, environmental, constitutional and election law issues.  Casey had previously commented on both the oral arguments in both cases.  Today's post also discusses the opinions. Our brief on Pulido is available here.

Top Ten Supreme Court Contenders:  Stuart Taylor Jr. provides thoughts on the top ten possible Supreme Court nominees for National Journal Online.  He bases his ranking on media reports, online chatter and the opinions of "various experts," but admits his conclusions are "fairly arbitrary."  Ranking #1 is Solicitor General Elena Kagan, and coming in at #10 is Merrick Garland, the only male on Taylor's list.  (Check out the sidebar of Taylor's post for more information on each of the nominees.)

Can Acquitted Conduct Enhance a Sentence?  At Blog of the Legal Times, Mike Scarcella reports on a D.C. Circuit Court case that will determine whether a trial judge can use acquitted conduct to enhance the sentence of a man convicted of drug crimes.  Oruche was acquitted of conspiracy charges for distributing more than 1,000 grams of heroin, but, according to attorneys for Oruche, the trial judge improperly relied on these charges to sentence the man for an additional eight years.  Scarcella reports that trial judge's use of acquitted conduct has caused debate in circuit courts around the country.  The D.C. Circuit has found nothing prohibiting its use.  Stay tuned to see how D.C.'s Chief Judge David Sentelle, Senior Judge A. Raymond Randolph and Judge Douglas Ginsburg resolve the case...

State Drops Charges Against Paul House:  At Volokh Conspiracy, Jonathan Adler reports that the Tennessee has dropped charges against Paul House, a man who was convicted of murdering Carolyn Muncey in 1985.  House spent 22 years on death row before the U.S. Supreme Court granted House's petition for a writ of habeas corpus because the availability of new evidence cast doubt on his conviction.  House was scheduled for retrial on June 1, 2009, but prosecutors are dropping the charge because they are not certain whether House acted alone or was an accessory.  Prosecutors remain certain that he had some involvement in the murder.  Doug Berman also links to this AP article on Sentencing Law and Policy.  Kent's 2006 post on House's case can be found here.  Additional press links are in today's News Scan.

First or Second Hispanic Justice?:  Ashby Jones wonders over on Wall Street Journal Blog whether the Supreme Court has "Already Had a Hispanic Justice?"  Apparently, sometime after Wall Street Journal Blog reported on lobbying efforts to appoint a Hispanic judge to the U.S. Supreme Court, one commenter asked, "What about the great one, Justice Cardozo? Wasn't he a [Portuguese] Jew?"  To follow-up with an answer, WSJblog dropped a line to Harvard Law professor Andrew Kaufman, author of the biography "Cardozo."  Kaufman's response neither confirms nor denies the question, but does acknowledge that while Cardozo's family came to the American colonies in the eighteenth century via Holland and England, there is family legend that the Cardozos came from Portugal. 

 

Judicial opinions can be roughly classified into three categories: the good, the bad, and the putrid. One of the latter from the Ninth Circuit will go before the Supreme Court next term. The "top side" amicus briefs, including ours, were filed last week in McDaniel v. Brown, No. 08-559, reviewing the Ninth's decision in Brown v. Farwell, 525 F.3d 787 (2008).

There are typically three reactions one has upon reading an opinion. Most are correct, and the bulk are obviously so. That is why most opinions at the intermediate appellate level are not published. A few strike the reader as wrongly decided, but in most of those there is room for reasonable disagreement. Then there are a few that make you want to throw the opinion against the wall and ask, "What planet are these people living on?!" The 2-1 decision in Brown, written by Judge Kim Wardlaw, is one of those. Judge Diarmuid O'Scannlain dissented.

Spelling Counts: "If you're going buy something with a forged cashier's check, don't misspell 'cashier's' or use an FBI office as your shipping address. Monroe [Louisiana] police said they arrested 44-year-old man after he did both. He was held Friday on two counts of forgery and as a fugitive from justice in Georgia, where he is accused of a similar scheme." AP story here.

Attorney Fees: "The top lawyer for ousted Illinois Gov. Rod Blagojevich reluctantly agreed Friday to be paid far below the rate some lawyers usually charge in return for being allowed to tap his $2.3 million campaign fund," Mike Robinson reports for AP. "In court papers filed Friday morning, attorney Sheldon Sorosky accepted the rate of $110 an hour, which is the legal limit court-appointed lawyers can charge in federal cases.... Federal prosecutors had said they would not object to the defense using the fund if the hourly rate were limited. If attorneys had billed the fund at a high rate, they said, it would soon be exhausted."

Suppressed Memories: "Congressional leaders were briefed in detail about techniques used in the Central Intelligence Agency's interrogation program, according to a new intelligence document," reports Siobhan Gorman in the WSJ. "The document appears to conflict with recent statements from House Speaker Nancy Pelosi, who was then the top Democrat on the House intelligence committee. Ms. Pelosi has said she hadn't been told that the CIA was using the technique known as waterboarding, or simulated drowning. According to the document, Ms. Pelosi was one of the first lawmakers briefed on the interrogations in 2002."

Tomorrow, the California Supreme Court will decide, for the third time, the capital case of Michael Ray Burgener. Burgener received a well deserved sentence of death for the murder of William Arias, a clerk at a 7-Eleven in Riverside, California, in 1980.

The notorious Bird Court wrongly reversed Burgener's sentence the first time in 1986, 41 Cal. 3d 505, because trial counsel honored his client's instructions not to put on mitigating evidence. It is basic legal ethics that the client controls the goal of representation. Eight months later, Bird, Reynoso, and Grodin, JJ., got the well-warranted boot from the people of California.

Burgener received another death sentence, and there was another appeal. In January 2003, 29 Cal. 4th 833, Cal. Supreme sent the case back to the Superior Court to reconsider the automatic motion to modify the penalty verdict. That reconsideration only took the trial court a matter of months. Cal. Supreme then allowed the briefing to drag on for five years, even though all three briefs on this second trip up total only 113 pages.

The conference committee in the Colorado Legislature has reinstated the cynical, cruel, divisive strategy of artificially pitting two groups of murder victims' families against each other, previously noted here. Jessica Fender has this story for the Denver Post.

Update: The story linked above has been updated (1:32 MDT) and is now coauthored by Lynn Bartels.

In his first comments on the bill, Gov. Bill Ritter said today that he thinks the proposal should not have been tied to funding cold cases.

"Those are two separate issues, and I told the sponsor of the bill they were wrong to do that," he said. "You don't get a pure debate about either."

Better late than never.

Marilynn Marchione with the AP has this remarkable story of Connie Culp.  Connie is the recipient of the first face transplant in the United States.  She lost her face after her husband shot her in the face with a shotgun.  According to the AP story:

Culp's husband, Thomas, shot her in 2004, then turned the gun on himself. He went to prison for seven years. His wife was left clinging to life. The blast shattered her nose, cheeks, the roof of her mouth and an eye. Hundreds of fragments of shotgun pellet and bone splinters were embedded in her face. She needed a tube into her windpipe to breathe. Only her upper eyelids, forehead, lower lip and chin were left.

What constitutes justice for this sort of crime is sure to vary among different people.  And the story lacks many of the details about the adjudication in this case. Perhaps there were extenuating circumstances not told.  Maybe a plea-bargain was used. But somehow seven years doesn't seem quite right for this horrific crime.

No, friends, not even a sentence of life without parole and confinement in a maximum security prison guarantees a killer will not kill again. AP reports,

Officials say an inmate at Pelican [Bay] State Prison is under investigation for the death of his cellmate.

Dena Potter with the Associated Press has this article discussing the virtues and vices of mental health courts across the United States.  The folks Potter interviews have a range of opinions on the wisdom of these specialty courts: some endorse the idea as necessary and helpful while others remains skeptical of their use.   Indeed, there's a lot to be concerned about in terms of mental health courts, including the diminished role of defense counsel; having judges making clinical treatment decisions; transposing adjudication venues into mental health systems, and the rather anemic outcome studies we have to date. 

But as highlighted in the article, there's also the idea of criminalization of mental illness.  Typically, those who posit this view suggest that the behavior that lands folks with mental illness in jails nowadays would, in the past, have landed them in state psychiatric care.  And there's some truth to that.  Thanks in large measure to the changes in civil commitment statutes and legal precedent, its very difficult to sustain involuntary treatment.  What follows is what every mental health clinician who has worked in the public mental health system knows is painfully true: Life for many people with severe mental illnesses involves an endless revolving door of acute psychiatric admissions, discharge, treatment non-adherence, endemic drug use, contacts with the police and readmission - over and over again.

Yet what remains unclear is how much of the behavior which lands people with mental illnesses in jail is a product of their mental illnesses and how much is just bad behavior.  A few studies have suggested that the risk factors for incarceration among those with mental illnesses are the same as those without mental illnesses. Other studies suggest otherwise, although disentangling substance abuse from the primary mental illness in these populations is notoriously difficult.  These differences matter inasmuch as they support and detract from the criminalization hypothesis.

But what is much more evident is that addressing the root cause entails more than providing additional services.  While there are undoubtedly shortages of public mental health services in some areas, almost all of the studies that have critically examined incarceration among those with severe mental illnesses have noted that treatment adherence is a central, if not, defining issue.  More services might be the clarion call for many advocacy organizations, but those resources are likely to little to solve the problem unless they can maximize participation by those they are designed to help. 

California Execution Procedures have been posted for public review and comment as reported by Carol J. Williams of the Los Angeles Times.  Interested parties have until June 30th to make public statements regarding the procedures.  After comments, the procedures may be modified or adopted by the state Department of Corrections.  While California had its revised lethal injection procedures when the U.S. Supreme Court upheld Kentucky's process in Baze v. Rees, attorneys for Michael Morales, the next murderer scheduled for execution, won a ruling from a Marin County judge, which held the new protocol illegal because the state had not allowed for public comment. The ruling was later upheld by a state appeals panel.  The protocol in question has already been identified as more humane than Kentucky's. In her dissent in Baze, Justice Ginsburg indicates that she (and Justice Souter) preferred California's protocol over Kentucky's, noting that due to "the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentucky's protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 19-23.... In California, a member of the IV team brushes the inmate's eyelashes, speaks to him, and shakes him at the halfway point and, again, at the completion of the sodium thiopental injection. See State of California, San Quentin Operational Procedure No. 0-770, Execution by Lethal Injection, §V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf."   

Juvenile Sentences Challenged:  James Vicini of Reuters reports that next fall the Supreme Court will review appeals to two Florida cases in which juveniles are making Eighth Amendment claims against their sentences of life without possibility of parole (LWOP) for crimes other than murder.  Sullivan v. Florida involves Joe Sullivan, who at age 13, was convicted and sentenced to LWOP for the 1989 rape and burglary of a 72-yer-old Pensacola woman.  In Graham v. Florida, Terrance Graham who, at 16 had pleaded guilty to burglary and armed robbery while free on probation, is contesting the LWOP he received a year later for an armed home-invasion robbery. 

Progressive Vision: Professor Laurence Tribe is advising President Obama to pick someone for the Supreme Court "to build a progressive legal vision for the century ahead," reports Jess Bravin in the WSJ. Tribe's model for the ideal justice is (who else?) William Brennan. We knew that.

ACORN:  "Attorney General Catherine Cortez Masto filed charges Monday alleging the Association of Community Organizations for Reform Now had policies requiring employees in Las Vegas to sign up 20 new voters per day or be fired," reports Ken Ritter for AP. "Nevada Secretary of State Ross Miller and Masto say that's voter registration fraud, and it violates state law banning quotas for registering new voters. A criminal complaint filed in Las Vegas Justice Court accuses ACORN and two former employees of 39 low-level felonies."

The news and blogs are ablaze with reports that Justice Souter will retire this summer. During his tenure, Justice Souter has been one of those justices who usually goes for the defense on issues where the Court is divided, but who occasionally could be won over with a good enough argument. His dissent in Stringer v. Black, 503 U.S. 222 (1992) remains one of my favorite opinions, though it may no longer be one of his favorites. See Beard v. Banks, 542 U.S. 406, 425, n. * (2004) (Souter, J., dissenting).

The danger now is that a President with roots in radicalism and a filibuster-proof Senate will appoint someone vastly worse, e.g., a reincarnated William Brennan to plague America for another three decades. Let us hope for best, audaciously, but prepare for the worst.

Today, the New York Times ran an op-ed by Nicholas Kristof discussing how rape victims can often wait "a year or more" for the results of their "rape kit."  In his article, Kristof mentions a recent report from Human Rights Watch that found that at least 12,669 rape kits were sitting in police storage facilities in Los Angeles County.  450 of them had been there for over 10 years.  In these cases, the statute of limitations had expired. 

Tests weren't conducted much faster in Northern California.  Kristof's op-ed relates the story of Detective Tim Marcia's quest to rush results on a "rape kit" he had collected for a particularly devastating rape.  Detective Marcia feared that the perpetrator would strike again, so he asked the crime lab to rush results. When he was told he could expect results from the L.A. crime lab in about a year he personally drove the kit 350 miles to deliver it to Sacramento.  Sacramento told him he may have to wait four months.  While the kit sat on the shelf, the perpetrator had the chance to strike two more times.  Police say he broke into the house of a pregnant woman and a 17-year-old girl and sexually assaulted them.

On his blog, Kristof opines that rape kits may not receive the prompt attention they deserve because of "a deeply embedded skepticism among many veteran police officers about many rape cases..."  This isn't entirely true.  Back in October 2008, LA Times writer Richard Winton reported that officials blamed the backlog on insufficient funds.  The problem isn't that police don't want to solve crimes, it is that we're not providing them with the funds to keep our streets safe. When it comes to heinous crimes -like rape- our first priority should be catching the perpetrator.  We ask police officers to do this, but we don't give them the resources to do it quickly and safely. 

Hopefully, Kristof's article will spur some action in this area, so that crime labs may receive the funding they need to process the evidence.  More evidence will allow prosecutors to go after the right person, and will place the victim one step closer to seeing justice prevail. 

Second Appeal for SD Murderer:  AP writer Chet Brokaw reports that the South Dakota Supreme Court heard a second round of oral argument yesterday from defense lawyers representing condemned murderer Briley Piper.  Piper was convicted and sentenced to die for kidnapping, robbing and murdering 19-year-old Chester Allan Poage.  One of Piper's accomplices in the murder, Elijah Page, who voluntarily ended appeals challenging to his death sentence, was executed in 2007.  It was the state's first execution in 60 years.  In his second appeal, Piper's lawyers argue that when he and his trial counsel agreed to plead guilty, he did not validly waive the right to be sentenced by a jury.  An Assistant AG responded that Piper and his lawyers made an informed decision to avoid having a jury sentence him after hearing of the "pure horror" of the crime.    

Transgender Inmates a Problem in CA:  The California Assembly is considering adoption of  legislation requiring that sexual preferences and gender identity be a focus of decisions on where to house prison inmates.  A story by AP writer Don Thompson reports that the bill, which is supported by gay rights groups, was introduced in response to studies showing that homosexual, bisexual and transgender inmates are more vulnerable to abuse and assault.  A U.C. Irvine study released this week found that nearly 60% of male inmates who dress and present themselves as women reported being sexually assaulted by other inmates.  In spite of this, nearly 60% of transgenders opposed being housed in women's prisons.  "They like to be around men," said the study's author.  And apparently bad boys in particular. 

The Crack Ratio: "The Obama administration joined a federal judge Wednesday in urging Congress to end a racial disparity by equalizing prison sentences for dealing and using crack versus powdered cocaine," reports Larry Margasak for AP. So is the disparity to be eliminated by lowering the sentence for crack, raising it for powder, or making them meet somewhere in the middle? The story doesn't say, and apparently the Administration hasn't said. Couldn't find anything on the DoJ website. Don't you think that's important, folks?

The Supreme Court today decided the case of Kansas v. Ventris. The issue was whether a statement of the defendant is admissible for impeachment of the defendant's trial testimony when it is excluded from the prosecution's case in chief under the rule of Massiah v. United States, 377 U.S. 201 (1964). The Court continued its three-decade practice of limiting the damage caused by anti-truth Warren Court precedents without overruling them, in particular by allowing supposedly "tainted" evidence to impeach the defendant when he gets on the stand and tells a story different from a statement he made voluntarily but contrary to some court-created rule.

In its 1964 decision in the case of that oddly named thug, the Warren Court decided that when a jailhouse informant asks questions of a cellmate after formal charges have been filed, that is a violation of the Sixth Amendment right to counsel, even though the same procedure is perfectly legal if (1) the D.A. just holds off filing the formal charges, or (2) the informant just listens and doesn't ask. So the difference between perfectly legal investigation and a violation of our fundamental law turns on the splitting of hairs.

Will the DOJ Address the Crack Disparity Tomorrow?:  At Sentencing Law and Policy, Doug Berman speculates that tomorrow, President Obama's 100th day in office, could be the day that the DOJ decides to tackle the "100-to-1crack/powder" federal sentencing disparity.  Tomorrow, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs is scheduled to hold a hearing on "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity."  Berman cautions that change is unlikely, but, he does note that in the past both Vice President Biden and President Obama have advocated legislation to end harsher sentencing for crack vs. powder cocaine.

Upholding the Government's Ban on "Fleeting Expletives":  Tony Mauro reports for Blog of Legal Times on the Supreme Court's decision in FCC v. Fox Television Stations, et al.(07-582).  The case involved a challenge to the FCC's decision to ban the "fleeting expletives" uttered by celebrities on two of Fox's television shows.  Following comments by Cher and Nicole Richie on live Fox award's shows, the FCC decided to switch its policy from accepting "dirty words" to a near-ban on "fleeting expletives."  Justice Scalia wrote the majority opinion, which found found that the FCC had acted reasonably in tightening up its policy on indecent language over the airwaves to cover fleeting expletives.  The Court did not rule on Fox's First Amendment claim.  Lyle Denniston has this post on SCOTUSblog.   Eugene Volokh also comments on Justice Thomas' concurring opinion over on Volokh Conspiracy. 

A "Frothy" Plaintiff:  [Off-topic but interesting] At Wall Street Journal Blog, Ashby Jones posts on a legal battle between Larry Bell, the founder of Bell's Brewery Inc., and one of his distributors in Michigan state court.  Bell has sued his distributor to try to block it from selling the rights to market his products to an Anheuser-Busch InBev distributor.  Jones reports that Bell's lawsuit is one of many recent legal spats between small craft brewers and distributors, as craft brewers challenge the state laws that typically favor the distributor.  Jones calls these laws "part of a complex regulatory architecture erected after the repeal of Prohibition." 

Traffic enforcement cuts crime rate:  A traffic enforcement effort in Omaha is cutting crime as well as traffic accidents. KETV.com's news story quotes Maj Tom Schwarten of the Nebraska State Patrol, '"To put it simply, where there are a significant number of crashes, there are, at times, significant numbers of criminal activities.'" How successful has the initiative been? "'We found, in every category, that crime went down,' said University of Nebraska-Omaha professor John Crank."

NH senate panel recommended killing the bill that sought to repeal the state's death penalty law writes John Distaso of the Union Leader. While the story calls it a "3-2, party-line vote," in fact all 5 members voted to remove the death penalty repeal language. The three Democrats replaced the repeal with a study, while the two Republicans would have simply deleted the language.

Oakland transit crime finds refugee victim: Matt O'Brien of the Contra Costa Times writes this story of a man named Khalid, whose last name has been omitted for safety reason. Khalid is a immigrant from Iraq who escaped Saddam Hussein's dictatorship six months ago and recently had his first brush with violent crime in Oakland. "A mob attacked and robbed [him] on his way home from work through East Oakland three weeks ago." Don Climent, the regional director of the International Rescue Committee, indicated that an increased number of incidents have been reported throughout the past six months. Law enforcement is creating a presence on the transit ways, hoping to deter potential offenders.

Downside to over protecting our youth: This week marked the 10th anniversary of the Columbine High School murders. Caitlin Flanagan mentions the two young gunmen in her Wall Street Journal op-ed when she stresses the cost to society for "a nation of laws and an ever-evolving sense of sympathy for children and teenagers." Flanagan also gives her reasoning for why the system is ineffective in handling juvenile offenders.

ACLU has lost its way says Wendy Kaminer, a former member of the board who left the organization in 2006, writes John Leo of the Wall Street Journal. In her book "Worst Instincts: Cowardice, Conformity, and the ACLU" Kaminer shares several frustrations, the majority stemming from her disagreements with Anthony Romero, President of the board. In one situation, Kaminer claims Romero signed an agreement to forfeit free speech in exchange for grant money. "'The ACLU is becoming just another liberal human-rights, social-justice advocate that reliably defends the rights of liberal speakers,' said Kaminer."

  On Monday, April 27th, the Supreme Court will hear oral argument in Bobby v. Bies (08-598), a case which addresses whether holding a state-post conviction hearing to determine the mental capacity of a defendant whose death sentence was affirmed before Atkins v. Virginia (2002), violated the Double Jeopardy clause.
 
  As Kent wrote back in January, the Double Jeopardy clause comes into play only if a person is "for the same offence ... twice put in jeopardy of life or limb..."  Bies has only been tried for murder once.
 

Proposing New Drug Sentences in the U.K.:  Doug Berman reports on a new proposal for drug offense sentencing in the United Kingdom.  Berman's report links to an article by Guardian writer Alan Travis summarizing the Sentencing Advisory Panel's consultation paper for sentencing drug offenses. The Panel proposes reducing the sentences of drug barons from 14 years to 12 years, while placing "heavier sentences" on "dealers who focus on psychiatric hospitals, drug treatment centres and bail hostels, or who try to smuggle drugs into prisons."  It also advised shorter sentences for drug mules or couriers, because of their minimal role in criminal organizations. 

Debating a "Federalism Amendment":  Ilya Somin has a post on Volokh Conspiracy discussing Randy Barnett's op-ed in today's Wall Street Journal.  Barnett's article "The Case for a Federalism Amendment" calls for a Constitutional amendment, enacted through a convention of the states, that will severely limit Congress' power.  Briefly summarized, Barnett's proposed amendment would: allow Congress to regulate or prohibit any activity between one state and another, or with foreign nations; would prohibit Congress from regulating or prohibiting any activity that takes place wholly within a single state; limit Congress' power to appropriate funds to specific federal activities; repeal the 16th Amendment (authorizing federal income tax); and give the judiciary the authority to nullify any "prohibition or unreasonable regulation of a rightful exercise of liberty."  Somin's post discusses why he favors the substantive provisions of the amendment, but, does not agree with Barnett's proposal to abolish the 16th Amendment, or Barnett's belief that Congress can be stopped from regulating activity if it takes place "wholly within a single state."  Kent also has this comment on Section V of Barnett's proposed amendment.   
Another Reason to Wish Justice Stevens a Happy Birthday:  At NRO's Bench Memos, Matthew J. Franck posts his hopes that Justice Stevens will go the distance and break the record of our longest serving Supreme Court justice, Justice William O. Douglas.  Franck's post offers mixed motives for this hope.  First, he hopes Justice Stevens serves until mid-July 2012, and breaks Justice Douglas' record, because "he likes to see records fall."  The second reason?  Well, if Justice Stevens serves until mid-summer of 2012 "the chances improve that Stevens will be replaced by a Republican challenger who defeats Barack Obama that fall."

Missouri sets execution date: The Missouri Supreme Court has set a May 20 execution date, writes the Associated Press. Dennis Skillicorn, who was convicted of killing a Missouri man 15 years ago, will be the first execution since 2005. Skillicorn's attorneys are seeking a stay until federal matters can be resolved. Attorney Jennifer Merrigan is claiming "Gov. Jay Nixon blocked her access to Department of Corrections staff witnesses in her previous clemency attempt," and therefore should not be allowed to make a decision in the matter.

Desperate for diapers: The Associated Press writes this story about a couple so desperate for $18 worth of diapers that the security guard who tried to stop them got punched. Spokane County Sheriff's Sgt. Dave Reagan said the man did yell "sorry" before punching him. Reagan was unable to stop them as they fled to their SUV and drove off.

Animal rights activists are indicted in CA: The Associated Press writes that "Linda Faith Greene, 61, and Kevin Richard Olliff, 22, pleaded not guilty to the charges during their arraignment in Superior Court." Both are suspected of conspiracy, stalking, and other crimes committed against researchers at University of California, Los Angeles and executives of POM juice company. "Greene, Olliff, and others conducted demonstrations at the professor's home and on the UCLA campus, during which they chanted threats through a bullhorn and disputed law enforcement claims that the wrong house was targeted." Greene is currently being held on $450,000 bail and Olliff, on $460,000. The pretrial hearing is scheduled for May 20, 2009. Animal rights activist Jerry "Vlasak said the activists targeted POM because they believe the company was using animal experiments to support claims that pomegranate juice could improve erectile function in men with mild impotence problems."

President Obama and the American Bar Association will be restoring the Association's "pre-eminence in federal judicial vetting--a privilege it lost under President Bush," writes The Wall Street Journal. Obama's recent announcement is concerning to many, considering "a study out of three universities in Georgia says the ABA's vetting is predisposed toward more generous ratings of liberal nominees than of conservatives." More specifically, according to Richard Vining of the University of Georgia, Amy Steigerwalt of Georgia State University, and Susan Smelcer at Emory University, federal appellate nominees between 1985 and 2008 favored the liberal nominees, who had a 62.3% chance of receiving a "'well qualified'" rating from the ABA.

The U.S. Supreme Court took up three new cases this morning, to be briefed over the next several months and argued about November or so. The orders list is here. There is one minor federal criminal procedure case, one First Amendment case, and one on civil suits against prosecutors. The Court turned down cases on Bible-reading jurors and animal cruelty movies, as well as the return of the Brendlin case, a search case whether possible implications for the pending Arizona v. Gant.

Considering Self-Defense:  At Volokh Conspiracy this morning, Eugene Volokh posted his thoughts on what he calls "Self-Defense Blindness."  Volokh describes "self-defense blindness" as "complete failure to even consider self-defense as one of the functions of a gun or other weapon. Either the speaker doesn't even think of self-defense, or at least he assumes that the listener can be persuaded not to think of self-defense."  Volokh writes that this curious phenomenon doesn't occur much, but he has found in it Attorney General Opinions and court decisions.  The problem with these examples is that "they seem to be part of a broader blindness to self-defense," and a weapon's role in self-defense.  This is interesting since, as Volokh points out, every U.S. state "legally allow[s] self-defense."

With Money Tight, Should Criminal Justice Be the First Thing We Cut?:  At Sentencing Law and Policy, Doug Berman stretches logic to imply that yesterday's Tea Party protests against "giant government programs" indicate it might be time to cut criminal justice programs "that 'create huge economic burdens' in the course of seeking to execute certain murderers, chasing lots of drug users and dealers, and locking up many thousands of individuals."  But when money is tight, personal safety should be the one thing that people can expect from their government.  The rest of our freedoms don't mean much if we don't feel safe.

DOJ Promises Not to Prosecute for Harsh Interrogation Practices:  According to Joe Palazzolo at Blog of the Legal Times, Attorney General Eric Holder, Jr. has announced that CIA officials who used harsh interrogation tactics on suspected terrorist will not face federal prosecution.  Holder also announced that the government will provide free legal assistance to any official who is sued for participating in the now-banned program.  The government has also promised to indemnify "to the extent permissible under federal law" the officials for any money judgment imposed against them, and to represent them in any congressional investigation.  These remarks followed the announcement that the Obama Administration will release four torture memos "issued by the Office of Legal Counsel between 2002 and 2005..."

When Barack Obama was elected President, a major concern for those of us who believe in actually enforcing the criminal law was how much "change" we would see in the Department of Justice generally and in the Solicitor General's advocacy in the Supreme Court particularly. Our experience with the Clinton Administration (see below) combined with the fact that Obama is considerably further left than Clinton raised concerns that the SG's office would change from a consistent defender of law and order into a voice for further inflation of already bloated protections for criminal defendants.

Yesterday, we saw with some relief that the new SG is willing to call a spade a spade and denounce one of the more pointless and unjustified rules requiring exclusion of valid evidence. In Michigan v. Jackson, 475 U.S. 625 (1986), the Court handed down one of those maddening rules where it extrapolates its own precedents to unjustified lengths, creating new restrictions far removed from any realistic view of what the real Constitution actually requires.

San Fran Chrontrarian Debra Saunders comments on the denial of certiorari in Abu-Jamal v. Beard, noted here, and takes a few well-deserved shots at the apparently shrinking "Free Mumia" crowd.

Perhaps there were tears shed in Paris, where he is an honorary citizen and where the suburb of St. Denis named a one-way street "Rue Mumia Abu-Jamal" in 2006. But I see it as a sign of healthy change that in America the ruling went largely unprotested.

Update: The "Free Mumia" crowd is not entirely silent, as reported by Susan Snyder in the Philly Inquirer (h/t How Appealing). It seems that "about 50 people, led by MOVE member Pam Africa, began signing a petition to present to Attorney General Eric H. Holder Jr...," and they are also going to "take their plea to President Obama and his wife, Michelle, both lawyers."

"Africa at first expressed concern about seeking a presidential pardon, wondering if it would imply guilt." No, Ms. Africa, it would imply that you are so completely clueless about America's federated government that you think the President can issue a pardon for a state offense.

Governor Bill Richardson Vetoes Teen Sentencing Bill:  Doug Berman posts a link at Sentencing Law and Policy to a Silver City Sun-News article reporting on the New Mexico Governor's decision to veto a teen sentencing bill.  The bill, Senate Bill 7, would have allowed judges more discretion than they already have when sentencing convicted first-degree murderers, aged 15-17, as juveniles.  Under the bill, these offenders could be sentenced to less than the mandatory term for an adult.  When he vetoed the bill, Richardson stated, "signature of Senate Bill 7 would, in essence, allow courts to treat serious youthful offenders who commit the most heinous of crimes in the same manner as youthful offenders who commit minor offenses; hence, any deterrence that the enhanced penalty might cause would be taken away." 

Defining Rights of Terrorist Suspects Held Abroad:  Hat tip to Howard Bashman at How Appealing for the link to today's LA Times editorial calling for a concrete articulation of the rights of suspected terrorists held at Bagram Air Force Base in Afghanistan.  The editorial follows last week's decision by U.S. District Judge Bates that three suspected terrorists held at Bagram could challenge their detentions in U.S. courts.  Last week's decision goes beyond what the U.S. Supreme Court stated in Boumediene v. Bush.  To reach his conclusion Judge Bates likened Bagram to Guantanamo Bay, and said that the three men held at the base were "virtually identical" to Guantanamo detainees because they're foreign nationals who have been transported to a foreign country, imprisoned indefinitely and denied a fair chance to dispute their designation as enemy combatants.  The editorial asks the Obama administration to "quickly" institute new procedures defining the rights of the detainees held at Bagram.

"Your dishonor":  At Judging Crimes, Joel Jacobsen comments on the Supreme Court's recent decision, and rejection of the Ninth Circuit's decision, in Knowles v. Mirzayance.  Mirzayance addressed sufficiency of counsel during conviction and sentencing of a first-degree murderer.  During post-conviction proceedings, Mirzayance alleged his counsel had been ineffective under Strickland v. Washington, because counsel had advised Mirzayance to abandon his "Not Guilty By Reason of Insanity" claim, and because Mirzayance's parents had surprised counsel by refusing to testify.  A three-judge panel for the Ninth Circuit found counsel incompetent for failing to put the parents on the stand.  The Supreme Court disagreed with this finding, calling it "misleading."  Jacobsen uses some stronger words to describe the Ninth Circuits errors.     

The table of contents for the "February" issue of Journal of Law and Economics arrived in my mailbox this morning. Here is the crim. law stuff, after the jump:

The Supreme Court decided Harbison v. Bell this morning. 5-2-2. No surprises.

Is there any good reason why the taxpayers of the country as a whole should pay for a lawyer to make a clemency plea to a state governor on behalf of a murderer set to be executed by a state, after that murderer has already made and lost his case to the federal courts? Putting aside the very rare cases with genuine questions of actual innocence and considering the typical case, I can't think of a single one.

Should a statute that appears to provide such federally funded counsel be enforced as written, despite the lack of a decent policy reason? Yes. The very first substantive section* of the Constitution provides, "All legislative Powers herein granted are vested in a Congress...." The Constitution does not go on to say, "except when they are acting like a bunch of Bozos."