LWOP for rape committed at age 13

Adam Liptak of the New York Times, writes of a 72-year-old woman who was raped back in 1989. Joe Sullivan, who was 13 at the time, admitted to burglarizing her home, but did not confess to the rape.  Now 33 years old, "Sullivan's lawyers have asked the United States Supreme Court to consider whether the Eighth Amendment's ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing." Taking a look at court decisions since Sullivan was sentenced, "Douglas A. Berman, an authority on sentencing law, said that it is time for the Supreme Court and the legal system to widen its relentless focus on capital cases and to look at other severe sentences as well."

Mississippi Mayor may be too tough on crime, scheduled to go on his third trial

According to a story by Paulo Prada of the Wall Street Journal, Jackson Mayor Frank Melton, who won his 2005 election with over 80% of the vote, is now facing "felony charges related to his hard-line, gun-toting tactics." This is not Mayor Melton's first charge. In May 2006, "Mississippi Attorney General Jim Hood warned Mr. Melton about allegations of his conduct exceeding lawful authority." Later in the same year, Melton was indicted but never convicted of using similar tactics to conduct a home raid. Mr. Melton is receiving mixed responses from the community. "He means well and has a huge heart, but he's not an effective mayor" said Brad "Kamikaze" Franklin, a 35-year old rapper and Jackson developer who once supported Mayor Melton. Also mentioned, "in his zeal to fight crime, many add, he has ignored other city needs and led Jackson government astray." In response to all charges and reactions from the community, "Mr. Melton vows to press ahead. At the moment, he plans to issue an executive order against baggy, hip-hop-style pant." Recently when addressing council members, he said "we have some issues that are much bigger than the Constitution."

Holder confirmed: Eric Holder has been confirmed by the Senate as U.S. Attorney General, 75-21, reports Larry Margasak for AP.

Supreme Court Research:  David Stras  has posted links to two new SSRN papers discussing the Supreme Court.  The first paper, "Modern Departures from the U.S. Supreme Court: Party, Pensions, or Power," is written by Santa Clara University professors Terri Peretti and Alan Rozzi.  According to Stras, Peretti and Rozzi found that Justices do not "strategically retire in order to ensure an ideologically-desirable successor."  The paper's abstract tells us that the study revealed that "an important consideration is their role and influence on the Court, suggesting that, at least when it comes to retirement decisions, Supreme Court justices care more about power than party and policy."  We at CJLF are not too sure that any overall statement can be made. It seems pretty clear that Chief Justice Burger and Justice White timed their retirements with an eye on the President appointing their successors, while Justices Douglas, Brennan, and Marshall did not. The second paper Stras summarizes is on certiorari and Indian law.

Should Nine Years On the Run Lessen Your Sentence?:  At Blog of the Legal Times, Mike Scarcella posts on a defense attorney's argument that Denzil White should receive a reduced sentence for his drug charge because "White had remained out of trouble during the decade he had just spent on the run."  Thankfully, neither the federal prosecutor nor U.S. District Judge Ricardo Urbina bought the argument.  Judge Urbina sentenced White to three years for failing to appear at a sanctions hearing after he violated the terms of his plea deal for marijuana trafficking.

DOJ May Not Change Federal Sentencing Policy Anytime Soon:  At Sentencing Law and Policy, Doug Berman finds little hope for federal sentencing reform in this post discussing New York Time's article "Justice Dept. Under Obama is Preparing for Doctinal Shift in Policies of Bush Years."  While Berman wishes that "the triage plan for change at DOJ" would tackle federal sentencing up front, we're not as upset that it appears the DOJ will start with "terrorism policies and then turns to civil rights issues."

More Commentary on the Exclusionary Rule and Herring:  Amir Efrati, at Wall Street Journal Blog, posts more on Adam Liptak's New York Times article discussing the exclusionary rule.  Kent's weekend post on the article can be found here.  Efrati's WSJ blog post directs to Efrati's Wall Street Journal story discussing the argument that getting rid of the exclusionary rule might lessen the incentive for police officers to lie about how evidence was seized.  

 

This post at SL&P points us to this story at stateline.org with ominous-sounding statistics about corrections spending. A closer look at the numbers tells a different story.

"Prison spending increased 127 percent from 1987 to 2007...." From the Pew Center's "One in 100" Report, page 12, it appears that this figure is adjusted for inflation but not for population growth. So the more relevant figure of inflation-adjusted dollars per capita is an 83% increase. That is still quite a substantial increase, but not as dramatic as more-than-double.

But is it true that the corrections budgets are the dominant factor in state financial woes, as many in the soft-on-crime camp would have us believe? No.

Testing Deterrence:  Doug Berman posted his thoughts at Sentencing Law and Policy today on whether Maryland and Virginia's contrary death penalty stances are the perfect set-up for a case study on death penalty deterrence.  Berman points to a recent piece in the Washington Post by Marc Fisher titled "Maryland & Virginia Go Separate Ways On Death Penalty."  The piece describes the actions of Virginia and Maryland with regards to the death penalty.  According to Fisher, Virgina is making moves to expand its death penalty while the Governor of Maryland is taking steps to end it.  Fisher's article is critical of Virginia, but finishes with the statement "if history is any guide, economic down times will lead to more crime--not exactly the atmosphere in which a repeal of the death penalty is likely to be carried along by a wave of public support."  Look to Kent's comment at the end of Berman's post for statistics on how the murder rate has been affected by the death penalty in Virginia and Maryland.

SCOTUScasts on Bell v. Kelly and Melendez-Diaz v. Massachusetts:  The Federalist Society has posted SCOTUScasts on two criminal cases heard by the Court this term.  The first, Bell v. Kelly, is discussed by Ronald Eisenberg, a Deputy District Attorney in the Philadelphia DA's office.  Bell v. Kelly concerned the application of the deference rule in federal habeas review.  Bell had appealed to the Supreme Court, claiming that the deference rule should not apply to a claim based on evidence not heard by a state court.  However, when the Court heard arguments in November it became clear Bell had misstated his claim.  The case was dismissed as improvidently granted.  CJLF's brief can be found here.  The second SCOTUScast, Melendez-Diaz v. Massachusetts, features John Douglass, the Dean at the University of Richmond School of Law.  Melendez-Diaz is a confrontation clause case asking the Supreme Court to address whether crime lab reports constitute the kind of testimonial evidence which implicates the Sixth Amendment's protection of the accused's right "to be confronted with the witnesses against him." 

And For Something a Little Different... Business Method Patents?:  At Blog of the Legal Times, Tony Mauro reports that the "long-anticipated petition appealing Bilski, et al., v. Doll was filed at the Supreme Court today.  The Bilski petition asks the Court to reexamine a decision of the U.S. Court of Appeals for the Federal Circuit that "business methods" are not patentable because they are not tied to a machine, and do not result in a physical transformation.  Mauro reports that while the legal community was shocked by the Federal Circuit's decision, some believed the decision brought the federal circuit more in line with current Supreme Court sentiment against broad interpretation of patent law.  J. Michael Jakes, partner at Finnegan, Henderson, Farabow, Garrett & Dunner, filed the petition.  His petition argues that the Supreme Court should return to broader principles that will allow business methods to be patented.  

As our News Scan earlier reported, the U.S. Supreme Court decided today to take up the Edwards issue one more time in Maryland v. Shatzer.  Hopefully this time it will answer the question of how long a suspect's invocation of the Fifth Amendment right to counsel prevents police from asking for a Miranda waiver. A related question was on the docket in Maryland v. Blake in 2005, which was to address whether a suspect who had previously invoked his right to counsel had re-initiated police interrogation 30 minutes later.  The Court never answered the question and "dismissed as improvidently granted."

Today's grant gives the Court a chance to address a procedural hurdle that has divided lower courts for years - how long does Edward's protection from police interrogation last?  How long can the prohibition on police-initiated contact reasonably endure?  Maryland's high court found the protection to last indefinitely, so long as the suspect remains in continuous custody, and the post-invocation interrogation regards the same underlying crime as the first interrogation.

The interrogations at issue in Maryland v. Shatzer began in August 2003.  Detective Blakenship went to interview Shatzer as part of his investigation into allegations that Shatzer had sexually abused his three year old son.  Shatzer was already in jail for an unrelated sexual abuse offense of a different child.  At first, Shatzer waived his Miranda rights, but once Blakenship explained what he wanted to discuss, Shatzer invoked his Fifth Amendment right an attorney.  Questioning ceased and the investigation was closed.  In February 2006, the investigation was renewed because Shatzer's son was able to make more specific allegations.  A new detective, Detective Hoover, went to the prison to interview Shatzer a second time.  During the second interview, Shatzer was informed that police had begun a new investigation into the previous abuse charges.  While Shatzer was surprised at the new investigation he did not request his attorney, and he signed a Miranda waiver.  Shatzer then agreed to and failed a polygraph test, and then admitted "I didn't force him. I didn't force him."  Shatzer was convicted and sentenced to 15 years with five years suspended.  He appealed, but the Maryland Court of Appeals granted certiorari to specifically address the Edwards issue. 

Another Freed Detainee Rejoins al Qaeda:  A New York Times story by Robert F. Worth reports that Said Ali al-Shihri, a Yemeni militant released from Guantanamo Bay in 2007, has been identified by Yemen's al Qaeda branch as a deputy leader with the terrorist group.  U.S. officials suspect that al-Shihri was involved in a car bombing of the American Embassy in Sana last September that killed 16 people.  The militant reportedly disappeared from his home last year after passing through a Saudi rehabilitation program. Reports of freed detainees rejoining middle eastern terrorsist groups raise questions about how the new administration will deal with detainees after closure of the Guantanamo Bay detention camp.   

Eleventh Circuit Reinstates Death Sentence:  A unanimous three judge panel of the Eleventh Circuit overturned an earlier District Court ruling today in a decision reinstating the death sentence of an Alabama man, according to this AP story.  Habitual criminal Billy Joe Magwood was convicted and sentenced to death in 1981 for gunning down Coffee County Sheriff Neil Grantham two years earlier.  Although evidence of Magwood's guilt was undisputed,  he was able to delay his sentence on collateral review for over twenty years. The decision offers an analysis of the application of the successive petition rule to claims that could have been made after the first sentencing, which petitioner now wishes to make after resentencing.

After the jump is an excerpt from the Holder confirmation hearings, with questions by Sen. Jon Kyl of Arizona. The whole thing is interesting, but we at CJLF are most keenly interested in the second question, on AEDPA. My comments follow the excerpt.

The Holder Memorandum is the subject of this Wall Street Journal op-ed by Senator Arlen Specter and Edwin Meese, III. The memo was issued by Deputy Attorney General Eric Holder near the end of the Clinton Administration.  It allowed federal prosecutors to pressure businesses under federal investigation to provide the government with incriminating evidence about their employees.  This led employers to threaten termination of employees who would not give statements to investigators, compromising their constitutional right to counsel. In one case, a federal district judge ruled that federal prosecutors, following Justice Department policies, forced an accounting firm to cut off payment of legal fees for 13 of its employees.   

Summary Justice: "Four teenagers say police in a northern Mexican town spray-painted their hair, shoes and buttocks to teach them not to paint graffiti on public property," according to this AP story. "Guadelupe's police department says several officers have been suspended while the matter is being investigated. The youths were fined more than $200 before being released on Tuesday. Guadelupe is outside the city of Monterrey."

Uncharged Misconduct. "A man charged with setting an arson wildfire that killed five U.S. Forest Service firefighters in 2006 started nearly two dozen additional blazes for which he hasn't been charged, the district attorney alleges in court papers," AP reports. "Raymond Lee Oyler, 38, has pleaded not guilty to five counts of first-degree murder, 17 counts of using an incendiary device and 23 counts of arson. Jury selection in the death penalty case began Monday and a panel could be seated by next week."

Jeremy Jaynes is a spammer. He was convicted of violating Virginia's anti-spam law by spamming AOL subscribers (AOL is in Virginia) and was sentenced to a total of nine years in the slam for three slices of spam.

In 2006, the Virginia Court of Appeals rejected Jaynes's constitutional attack on the statute and affirmed. Last February, the Virginia Supreme Court affirmed on the patently erroneous ground that Jaynes did not have standing to attack the statute as overbroad due to its application to noncommercial spammers, given that his spam was commercial. The whole point of the "overbreadth" doctrine is to let people challenge laws as applied to others, but the requirement of substantial overbreadth means that such attacks should fail when the invalid applications are minor. Realizing its error, the Virginia Supreme Court granted rehearing and proceeded to err even more badly in the opposite direction. The AG filed a certiorari petition in Virginia v. Jaynes, No. 08-765, and the amicus briefs supporting certiorari are in the mail.

The U.S. Supreme Court today decided the Fourth Amendment exclusionary rule case of Herring v. United States. At SCOTUSblog, Tom Goldstein's "preliminary reaction is that we will at some point soon regard today's Herring decision as one of the most important rulings in that field in the last quarter century." Meanwhile, back at the Volokh Conspiracy, Orin Kerr "thought it might be worth explaining why I disagree and why I think Herring is a minor case."

I think Tom is basically right, with one large caveat. Herring is a 5-4 decision, and it is a good bet that any new Justices appointed in the next several years will be likely to side with the dissenters. If President Obama appoints a successor to any of the 5, then Herring could be overruled or it could be relegated to the minor category of Supreme Court precedents that are never overruled and continue to control on their unusual facts but are never extended to their logical conclusion. If he does not, then the Holy Grail may be within grasping distance.

This is shaping up to be a strange term for habeas corpus cases. In today's argument in Knowles v. Mirzayance, for the third time, much of the discussion was on a question other than the official Question Presented, and the discussion also wandered to another case on the docket this term.

When the Court took up the case, it appeared to be a routine "Ninth Circuit wrongly overturns another murder conviction" case. Such cases are to the Supreme Court's docket what "dog bites man" is to journalism generally -- not news. In this case, the trial lawyer was castigated for abandoning an insanity defense he had concluded was hopeless. Stanford student Ruthie Zemel has this well-written summary of the case and arguments on SCOTUSblog.

Right out of the gate, Justice Kennedy and DAG Steve Mercer get into a discussion of the relationship between the federal court evidentiary hearing and the rule of 28 U.S.C. § 2254(d), which says that habeas relief cannot be granted unless the state court decision was contrary to Supreme Court precedent, an unreasonable application of it, or an unreasonable determination of the facts based on the evidence presented to the state court. How can evidence presented for the first time in federal court have any relevance to that question? That was an issue in Bell v. Kelly, argued November 12 and dumped November 17. It is not one of the questions presented in this case.

Crime Went Down over the first half of last year according to this report by the FBI.  The largest drop was for violent crime, which decreased by 3.5 percent nationally. Property crime declined by 2.5 percent. The data indicates that violent crime has fallen for a second straight year. The report was also covered by this AP story.  The story states crime rates began to rise in 2005 and 2006, after the "historic lows during the Clinton administration and continued into President Bush's first years in the White House."  This might lead some to believe that the Clinton administration's law enforcement polices had something to do with the reduced crime rate.  However, there is strong evidence that state and federal enforcement of tough habitual criminal laws is the primary reason. 

S.F. Surveillance Cameras Don't Reduce Violence according to a study reported on in today's Chronicle by Robert Selna and Demian Bulwa.  The study, conducted by the UC Center for Information Technology Research in the Interest of Society, found that while property crime dropped by 24% in areas near the cameras, the cameras had no impact on violent crime.  While speculating that the failure might be because violent criminals are often irrational, the study noted several significant flaws in San Francisco's use of the cameras.  Among these are local restrictions on monitoring the cameras in real time.  To protect a suspect's privacy, inspectors must order footage from the cameras after a crime has beebn reported.  Additional problems found by the study included: the very slow frames-per-second speed, due to the city's inadequate data storage; multiple agencies involved in managing the surveillance program; and untrained personnel assigned to monitor the cameras.

High Court to Review Speedy Trial Ruling:  The Supreme Court will hear oral argument in Vermont v. Michael Brillon tomorrow to consider if delays caused by public defenders can be the basis for overturning a conviction.  Associated Press writer John Curran reports that Brillon, a habitual felon who was finally convicted in 2004 for the 2001 assault of his girlfriend, was released by a Vermont court in 2008.  The court reasoned that delays caused by six different public defenders assigned to represent him violated his right to a speedy trial.  Two of the lawyers were fired by Brillon, and another quit after Brillon allegedly threatened his life.  The Vermont Supreme Court overturned the conviction stating the delays were the fault of the state. Forty states and over a dozen organizations are backing the state's appeal of that ruling.  The ACLU and National Association of Criminal Defense Lawyers are supporting Brillon.

Theodore Kaczynski, a.k.a. the Unabomber, escaped the death penalty when the US Attorney in Sacramento decided that his schizophrenia was a sufficient mitigating circumstance to forgo seeking that penalty. But Kaczynski is not too crazy to litigate pro se from his prison cell, causing further distress to his victims. The Ninth Circuit wrote another chapter in this seemingly unending saga today.

Harvard Law Dean Elena Kagan has been nominated to be the new Solicitor General. Sasha Issenberg has this story in the Boston Globe.

Given that she comes from academia, I was curious to see what she has written to shed some light on what direction the office may be headed. The list is on the HLS website. The substantive law articles are all on the First Amendment. Interestingly, she has written three articles, out of a total of nine, on or largely on a single case: R.A.V. v. St. Paul, 505 U.S. 377 (1992).

Press coverage notes that she has not argued a Supreme Court case and that she clerked for Justice Marshall, neither of which should be considered disqualifying, IMHO. I expect we will learn more about her shortly.

From AP comes this brief story of an unfortunate incident on the day after Christmas in Salinas, California.

A man is under arrest on suspicion of murder after police say he pushed a panhandler away from his car at a gas station, resulting in a fatal head injury.

The Sept-Oct 2008 issue of Journal of Criminal Justice has an article by Bijou Yang and David Lester titled "The deterrent effect of executions: A meta-analysis thirty years after Ehrlich." Here is the abstract:

In 1975, Ehrlich published a seminal paper in American Economic Review which argued that executions prevent murders in America. Subsequent empirical studies varied in their methodology and the time-period/region/country covered, and therefore it is difficult to draw a clear conclusion about the deterrent effect of executions. This article applies a meta-analysis to combine the results from refereed studies in order to summarize objectively the findings. The overall results of the meta-analysis supported the deterrent effect of executions, but the evidence for a deterrent effect depended on the type of study carried out (time-series and panel data versus cross-sectional data and the effects of publicity).

One of the hottest topics for the new Congress is a proposal to unionize a workplace if 50% + 1 of the workers sign a card under the watchful eyes of the soliciting union organizers. Whether the billy clubs and brass knuckles will be openly displayed or merely suggestive bulges beneath overcoats is not clear at this point. The other 50% - 1 of the workers will be compelled to pay dues to and be represented by an organization they never approved of without any chance to vote on it at all, secret or open.

In today's WSJ, Richard Epstein of U. Chicago Law has this op-ed, arguing that this bill is not only astonishingly bad policy and unconscionably unfair but also unconstitutional.

Oh, by the way, the official title of the bill is the Employee Free Choice Act. Really.

I suggest an amendment to the bill. In the 2010 election for the House of Representatives, the party opposing the incumbent may collect cards favoring its candidate signed by registered voters of the district. If they get such cards signed by 50% + 1 of such voters, there will be no election on the first Tuesday in November in that district, and the challenger will be deemed the winner.

Maryland DP Commission:  The Maryland Commission on Capital Punishment, in which most of the members were death penalty opponents, recently released its majority report.  They were mostly against it.  As we learned from similar efforts in New Jersey, Illinois and California, when a commission of mostly death penalty opponents is appointed to study the death penalty, the majority report reflects the opinion of the majority.  A story by Dilip Paliath on examiner.com presents the perspective of Delegate Bill Frank, a member of commission's minority. 

Cop Killer Sentenced to Death:  For the first time in 49 years, a New Hampshire jury has sentenced a murderer to death.  AP writer Beth LaMontagne Hall reports that Michael Addison was on a week-long crime spree when Officer Michael Briggs confronted him in a Manchester alley.  Addison turned and shot Briggs in the head.  Briggs left a wife and two young sons.  Governor John Lynch, who said the death penalty was appropriate in this case,  promised to veto any attempt to repeal or scale back the state's death penalty law   

The Third Circuit, Animal Cruelty, the First Amendment and (maybe) the Supreme Court:  At Volokh Conspiracy Jonathan Adler predicts that the Third Circuit's en banc decision in United States v. Stevens, could get a chance to be heard before the U.S. Supreme Court.  Adler reports that the Third Circuit had found that depictions of animal cruelty are protected by the First Amendment and struck down  federal law 18 U.S.C. § 48, prohibiting the production, sale, and possession of depictions of "animal cruelty."  Monday, the Solicitor General filed a petition for certiorari in the case.  Adler predicts that because "the Court usually agrees to review decisions striking down federal statutes... the chances for certiorari are pretty good."

California Appellate Court Rejects Second Amendment Challenge:  At Sentencing Law and Policy Doug Berman provides a link to today's decision in People v. Yarbrough, No. A120721 (Cal. App. 1st Dist. Dec. 17, 2008). The defendant in the case was convicted of carrying a concealed firearm (Pen. ‎Code, § ‎‎12025, subd. (a)(2)), and carrying a loaded firearm in a public place (Pen. Code, ‎‎§ 12031, subd. ‎‎(a)(1)).‎  In his appeal he claimed, among other things, that his conviction of possession of a concealed ‎weapon ‎violated the Second Amendment.  The court decided today to uphold the judgment, concluding "that the conviction of ‎possession of a concealed ‎weapon does not contravene defendant's Second Amendment ‎rights as interpreted in the United ‎States Supreme Court's decision in District of ‎Columbia v. Heller..."  

Senate Judiciary Committee: David Ingram at BLT has this post on how the Minnesota recount and the filling of Pres-elect Obama's seat may affect the composition of the Senate Judiciary Committee. "A bigger committee margin potentially gives a majority party a greater ability to limit difficult questions from the opposition, as well as some wiggle room in the case of controversial nominees."

Cone v. Bell: A different take on the oral argument in this case is available on SCOTUSblog, written by Josh Friedman, a Stanford law student who worked on the brief for the petitioner. Our previous post, by Kent Scheidegger, who wrote an amicus brief supporting the respondent, is here.

The Right to Bear Yagers: Eugene Volokh has this post on an 1869 Oregon gun rights statute.

Yesterday the 10th Circuit issued its per curiam opinion in Young v. Sirmons (#07-5150 2008) affirming the District Court's dismissal of Young's habeas petition.  Young, who was convicted and sentenced to death for the murders of his girlfriend's daughter and her 6 year-old granddaughter, presented a Strickland claim of ineffective assistance of counsel.  The opinion is an interesting read as it finds Young's counsel violated the first prong of Strickland, but nevertheless found no prejudice.  There's also an interesting discussion of the state's Landrigan claim, which the court ultimately rejects. 

Yet the decision is also remarkable as it pertains Young's roster of mitigation experts.  Among them is Wanda Draper, Ph.D., a "developmental epistemologist" who apparently conducted a qualitative analysis of Young's history was prepared to testify:

 

"Young suffered cumulative emotional trauma as a result of the loss of four close family members [maternal grandmother and grandfather, brother, and son] during a seven year period in his adulthood" which, in Draper's opinion, caused him "to experience a breakdown of his compulsively ordered life." Id. at 10. More specifically, Draper opined that "[t]he emotional impact of these losses produced a severe stress and trauma psychologically," and "his thought processes obscured reality and he suppressed his deepest feelings of loss." Id. According to Draper, "[w]hen ... Young was threatened with another loss, that of rejection by his girlfriend, one could expect that he would experience severe emotional trauma as he began to, again, lose control." Id. That is, "[w]hen he faced losing his most recent emotional connection to his love, Joyslon, it was beyond the scope of his ability to adapt." Id. at 12-13. Thus, Draper opined, "it is conceivable that he acted in concert with a deep subconscious need to protect his ego and thereby move outside the realm of his conscious awareness of moral justice." Id. at 13. "From a neurological perspective, it is [Draper's] opinion that on a conscious level, he would not be aware of what he had done." Id. In Draper's opinion, the murders "could have been the result of distortion in his rational thinking" "set into action by the combination of severe emotional trauma and use of alcohol which dulled the inhibitions" (at 37-38).

 

Incredible.

Today at the Supreme Court:  At SCOTUSblog Lyle Denniston posted this summary on today's orders and opinions.  First, the Court announced its decision in Altria Group Inc., et al., v. Good, et al. (07-562).  The 5-4 opinion, authored by Justice Stevens, allows smokers to challenge the deceptive marketing of cigarettes as "light" and "low in tar and nicotine."  Ashby Jones also has a post at Wall Street Journal blog discussing what the decision could mean for future "federal preemption" cases.  Second, the Court remanded Rasul, et al., v. Myers, et al. (08-235) to the D.C. Circuit Court so that the court could reconsider its rejection of claims of torture and religious bias against Guantanamo Bay detainees. The D.C. Circuit Court had made the previous decision five months before the U.S. Supreme Court decided Boumediene v. Bush (06-1195).  The D.C. Circuit must now take that opinion into consideration.  Hopefully the D.C. Circuit will not take this opportunity to afford detainees constitutional rights under the Eighth Amendment, as Denniston appears to suggest.

Erosion of Mens Rea Requirement?:  At Sentencing Law and Policy Doug Berman posts on a Legal Opinion Letter from the Washington Legal Foundation.  The article, "Mens Rea Requirement: A Critical Casualty Of Overcriminalization," argues that by passing statutes that criminalize innocent or merely negligent behavior has "significantly eroded the traditional mens rea requirement for criminal conviction."  Berman posts that while he is "not as troubled" with  the use of criminal law to achieve regulatory ends, he does object to serious criminal punishments without evidence of culpability.   He cautions against construing these statutes to allow prosecutors a huge amount of (unregulated) discretionary authority in their charging and bargaining and sentencing practices. 

A Year Without the Death Penalty In a State That Has Not Executed Since 1982:  Howard Bashman at How Appealing provided the link to an article in New Jersey's Newark Star-Journal.  The article, by Rudy Larini, reports that a year after New Jersey became the first state to repeal the death penalty through legislation, prosecutors and defense lawyers agree that there has been no change in the way would-be capital cases are prosecuted in New Jersey.  The lack of change could be due to the fact that New Jersey had no death penalty in reality prior to the repeal of its nominal death penalty law. This does not mean that the repeal has managed to escape controversy.  Larini reports that in State v. Fortin, the New Jersey Supreme Court is considering whether or not a convicted defendant can get the maximum sentence of life-without-parole if the jurors have not considered that sentence in separate deliberations.  It looks as though the "penalty phase" of death penalty law is migrating over to life-without-parole cases in New Jersey.   

Have you ever heard this in a courtroom (or even a TV courtroom)? "The jury is deadlocked at 11 for conviction and 1 for acquittal. The defendant is acquitted and free to go."

Of course not. No jurisdiction has such a rule for the guilt verdict. That would be crazy. So why do so many states have exactly that rule in the penalty phase of capital cases?

Greg Bluestein of AP has this story on the miscarriage of justice in the trial of Brian Nichols, the notorious Atlanta courthouse gunman. The jury deadlocked at 9-3, with the three reportedly refusing to deliberate. This is becoming increasingly common as more jurors become aware that they have the power to veto the death penalty just by holding out.

Cold Case Files  DNA Tags "Nonviolent" Criminal for Murder:  California's DNA database helped San Francisco police identify a suspect in the 1991 rape and murder of a Richmond woman.  Jaxon Van Derbeken of the SF Chronicle reports that the DNA sample taken from habitual burglar Otis Hughes after his October release from prison linked him to the brutal murder of 39-year-old Karen Wong.  The victim was found hog-tied and stabbed to death with a kitchen knife.  Hughes' wife said that while her husband committed burglaries because he needed money, he had never been violent.  A rape/murder conviction would make Hughes eligible for a death sentence, except in San Francisco where, as a matter of policy, DA Kamala Harris does not seek it. 

Ninth Circuit Overturns Murder Conviction:  In a ruling announced Tuesday, the Ninth U.S. Circuit Court of Appeals has overturned the 1994 conviction of Roger Chambers for the first degree murder of a man in a Reno motel. The Court's divided opinion rejects Nevada's exhaustion rule argument, and holds that a flawed jury instruction prejudiced Chambers' case.  The court also held that based upon its assessment of the facts Chambers should have been convicted of second degree murder. A brief Associated Press story on the case is here.    

Defendant Judge Wants Polygraph Evidence: In a trial in federal district court in Texas, U.S. District Judge Samuel Kent is the defendant, charged with abusive sexual contact of a court employee. He wants to admit polygraph evidence, which is generally considered inadmissible. In United States v. Scheffer, 523 U.S. 303 (1998), a military case where there was a categorical rule of exclusion, the Supreme Court rejected the argument that there is a constitutional right to introduce this evidence. CJLF filed an amicus brief supporting the rule. "U.S. Senior Judge Roger Vinson of Florida, who is overseeing the case, said he believes a properly conducted polygraph examination could be presented to a jury with the instruction that it is merely a tool. But Vinson ruled in Houston today that there are deficiencies in the Kent polygraphs," reports Mary Flood in the Houston Chronicle.

Sixth Circuit Denies Habeas to First Woman Sentenced to Death in Tennessee:  Jonathan Adler has a post at Volokh Conspiracy discussing the Sixth Circuit's divided denial of a habeas appeal in Owens v. Guida.  As Ken Whitehouse of the Nashville Post reports, this places Gaile K. Owens "one step closer to the death chamber."  Gaile Owens was convicted and sentenced to death for hiring a man to kill her husband in 1985.  The man who killed her husband, Sidney Porterfield, was also sentenced to death. The court apparently divided over whether Owens received ineffective assistance of counsel because she failed to cooperate fully in her own defense and her her attorney neglected to pursue her mitigation defense that her husband was so cruel and sadistic that, to quote Adler, "he just needed killing."  Adler's post provides breakouts of the majority and dissenting opinions to illustrate the split. 

When Budget Gets Tight New Hampshire Gets Soft on Prisoners:  At Sentencing Law and Policy, Doug Berman has a post on a story from New Hampshire's Union Leader reporting on Corrections Commissioner William Wrenn's decision to use his power to intercede when an inmate wants to ask for a sentence suspension for those prisoners who wish to pursue higher education.  The announcement comes at a time when Wrenn has been placed under orders to cut his budgets for the next two years, and he hopes the policy will help the department save money.  New Hampshire state law allows an inmate to ask the judge who imposed his sentence to suspend part of it after he has served the greater of four years, or two-thirds of the minimum term.  Commissioner Wrenn has stated he will forward the petition to the judge when he believes suspension is justified, particularly if the inmate is pursuing a high school or college degree. Wrenn's policy will set stricter standards for those petitioners convicted of violent crimes, and excludes repeat offenders, sex offenders, and those convicted of capital crimes. 

  At 10am EST the U.S. Supreme Court heard oral arguments in Arizona v. Johnson (07-1122), a case testing a police officer's authority to pat-down a passenger for weapons as he emerged from a car that had been stopped for a traffic violation.  Coincidentally, late last night an Arizona county sheriff was shot in the abdomen when he stopped along a rural road in Thatcher, AZ to help a driver who had pulled over to the side.  The tragic shooting of Graham County Sheriff Frank Hughes serves as a good reminder of why it is important for cases like Johnson to debate exactly what and who the law should protect.

  Arizona v. Johnson involved a lawful routine traffic stop of a car in a Tucson neighborhood noted for gang activity.  While one police officer questioned the driver about his car insurance, Officer Trevizo directed her attention to the passenger in the back seat of the car - a man wearing Crips gang colors and carrying a police scanner in his jacket pocket.  When she asked him to step out of the car so she could ask him about gang activity, he voluntarily stepped out of the car, and then Officer Trevizo frisked him for weapons.  She found a gun and marijuanna.  The Arizona Court of Appeals found the search to violate Fourth Amendment rights, the Supreme Court of Arizona denied discretionary review and the state of Arizona appealed to the U.S. Supreme Court.  CJLF wrote a brief supporting Arizona, which can be found here.

  While the important issue at stake in the case -whether an officer confronted with a potentially "armed and dangerous" individual during a lawful stop may frisk the individual for weapons - was placed front and center by both Arizona and the federal government, the issue that seemed most troubling to the Justices was: when does a stop end, or is it possible for a lawful stop to become consensual?   
 

For the second time in less than a month, the U.S. Supreme Court heard argument in a habeas petition by a death-row inmate and immediately questioned why it took the case at all. Previously, as noted here, the Court dumped the case of Bell v. Kelly, deciding it shouldn't have taken it.

The case of Cone v. Bell came before the high court for the third time. See Bell v. Cone, 535 U.S. 685 (2002); Bell v. Cone, 543 U.S. 447 (2005). This time, the case involves a claim that the prosecution failed to disclose evidence in its possession at the time of trial tending to confirm the defendant's claim that he was on drugs. The rule of Brady v. Maryland, 373 U.S. 83 (1963), requires the prosecution to disclose material exculpatory information, whether on guilt or penalty, but deciding what is material has always been slippery.

Tom Goldstein, for the petitioner, began by noting "two things I think are uncontested." Chief Justice Roberts immediately pounced.

There is also a third thing that's uncontested, which is there is no Brady claim on the merits. That's not at all included in your question presented. The district court and the court of appeals concluded that there was no Brady violation on the merits. I don't know what would happen if we sent this case back. They would conclude it again.

Compare CJLF Brief at 30.

Of all the slow-changing institutions of the Mother Country, the House of Lords is one of the slowest, and the duration of the people's tolerance for it has been a source of puzzlement to many Americans. They actually had hereditary seats in the upper house of their legislature into the twenty-first century. Their court of last resort has, up to now, been effectively a committee of that house. That will soon change, and in 2009 there will finally be a Supreme Court of the United Kingdom. Joshua Rozenberg has this article in the Telegraph on the transition. Among the unresolved questions: "And how should we refer to the new judges when reporting their rulings? Justice Hale? Deputy President Hope? President Phillips? It all sounds a bit American." Horrors. (Hat tip: How Appealing)

A First Amendment Conversation Between Nixon and Justice Burger:  At Blog of the Legal Times Tony Mauro has a post relating the details of a taped conversation between Warren Burger and then-President Nixon.  Mauro reports that the conversation begins with Nixon asking Burger a casual question about how the Court will decide the then pending First Amendment case of Miller v. California.  The most interesting part of the conversation comes when Nixon discusses the First Amendment standard for obscenity with Justice Burger and what it could mean for the Miller decision.  Mauro also provides this link for audio files of the conversation. 

What Could Happen with al-Marri:  Kent beat me to the punch with his update the the Kerr post earlier today, but, more details can be found at Volokh Conspiracy where Orin Kerr offers up his thoughts on what might happen to the U.S. Supreme Court case of al-Marri v. Pucciarelli if the Obama Administration decides to detain al-Marri on some ground other than "enemy combatant."  Kerr believes that if the Administration can drum up some other criminal charge against al-Marri then the Court is likely to dismiss the case.  He thinks this is the likely move for the Administration as it will "reinforce to the Justices that there's a new Executive Sheriff in town; it would look good to the world; it would make civil libertarians happy; it would keep Al Marri off the streets; and it would avoid litigation a battleground that the new administration didn't choose and presumably would rather have avoided in the first place."  Kerr also believes the Court may have granted certiorari today to signal to the Obama Administration that when it comes to al-Marri, the Administration had better act soon. 

Microphone Malfunction During Supreme Court Oral Arguments:  At Blog of the Legal Times, Tony Mauro has a post explaining the "banging sound" that crept into transcripts from oral arguments in Fitzgerald v. Barnstable School Committee.  The banging occurred during Charles Rothfeld's argument for the Petitioners after Justice Ginsburg asked him to raise the microphone on his podium.  Apparently, when Rothfeld cranked up the podium, he inadvertently stretched a wire to one of the microphones on the podium to the near-breaking point.  The result: a loud banging sound "as if someone was swatting one of the microphones."  Luckily, Rothfeld kept his cool and finished his argument without further banging.  This serves as one more example of what not to let fluster you when appearing before the Supreme Court.

Alito Speaks on Originalist Interpretation at the Supreme Court:  Robert VerBruggen has a post on Bench Memos discussing Alito's keynote address at The American Spectator's annual Robert L. Bartley Gala last night.  For VerBruggen, Alito's "most interesting remarks had to do with how the Supreme Court is increasingly returning to Blackstone's 'text first' method of interpreting laws..."  While Alito used D.C. v. Heller to illustrate the Supreme Court's use of originalist intent.  He then cited  the interesting statistic that recently, judges have used dictionary definitions more often than they have through the entire history of the court.  As a follow-up, Kathryn Jean Lopez provides a post that exemplifies how Justice Alito used his quick wit to poke fun at Vice President-elect, Joe Biden.

Can Emoticons Become Entrapment?:  This is the question posed by Dionne Searcey at Wall Street Journal Blog today.  In her post Searcey discusses a case before the Nebraska Supreme Court involving "those little smiley faces created by various punctuation that teenagers -- and some Law Bloggers -- use in text messages and emails. :)"  The case revolves around a 31-year-old, James Pischel, who was sent to prison for using his computer to entice a 15-year-old girl who turned out to be a police investigator.  According to Pischel's attorney the state investigator played on Pischel's emotions and continued to chat with him after Pischel had said she was too young to pursue.  Although it seems hard to believe that little punctuation marks could entice someone to do something they wouldn't ordinarily do, Nebraska's Supreme Court will get the chance to review the issue and Pischel's sentence.  For more information on the oral argument check out Lori Pilger's article in the Lincoln Journal-Star.   

In the current issue of the American Journal of Bioethics is an interesting article by Dr. Michael Keane of the Monash Medical Centre, Victoria, Australia. Keane's thesis is that the effect on the family of the murder victim, "co-victims" as he calls them, must also be considered in debating the role that physicians play.

Ralph Baze, who was the appellant in the recent Supreme Court case (Supreme Court of the United States. 2008), was convicted for killing two police officers. Earlier in the year and in response to this Supreme Court challenge the local media reported on one Baze's co-victims: '"It makes me sick," said Carl Briscoe, as he talks about how the man who shot his brother in the back of the head is today sitting comfortably in a cell in Eddyville (Louisville Courier-Journal 2008). But is not "healing" the sick a part of the AMA code of ethics discussed previously? Surely making someone sick is not ethical. Whether or not it was justified, and this article does not address the overall question of the appropriateness of the death penalty, it is inescapable that those physicians who supported Baze's appeal contributed to making Mr. Briscoe "sick".

There are multiple "Open Peer Commentary" articles following Dr. Keane's article, and their tone and content will not surprise anyone familiar with the nature of death penalty debate. Lee Black and Hilary Fairbrother of the AMA chime in with this observation, among others: "It is likely that the United States Supreme Court will eventually address the constitutionality of capital punishment itself, rather than just a particular method." Breaking news from 1976, as James Taranto of the WSJ would say. They have addressed it. See Gregg v. Georgia, 428 U.S. 153.

Courtenay Bruce, identified as a J.D. with the Cleveland Clinic, opines, "It also is conceptually and practically difficult to extend the physicians' obligation to do no harm to the co-victims. Indeed, the physician should do no harm to the patient (the felon, in this context) and society as a whole, but it is unclear why this obligation should be narrowly tailored to the co-victims." (Emphasis added.) Bruce gives no justification for the assertion that the felon is the patient in this context, and none is apparent. Neither physicians participating in executions nor those engaged in advocacy to prevent executions are engaged in treating the felon for any medical condition. What makes the murderer a "patient"? Bruce goes on, "The interests of society in assuring that justice has been done, and the interests of the felon in exhausting his appeal mechanisms, seem to outweigh any harm incurred by the co-victims in having to delay the execution." Baloney. Absent any genuine question of actual innocence (and there was none in the Baze case and in most capital cases), "the interests of society in assuring that justice has been done" are precisely aligned with, not opposed to, the interests that Keane notes.

The full texts of the article and comments are, unfortunately, not available online to the general public without a stiff fee. Citation and abstract follow the jump.