Results matching “first”

Although most of the attention today is on the Kennedy opinion, the case of Giles v. California will have a greater impact on the regular practice of criminal law. The case continues the reworking of the Confrontation Clause begun by Crawford v. Washington, 541 U.S. 36 (2004), looking more at what was admissible back in the common law days and less at what the Court thinks is fair today.

The question is when a defendant can forfeit his right to confront the witness, thus allowing into evidence a prior unconfronted statement, by his own misconduct rendering the witness unavailable. In this case, the misconduct was to murder the witness. Specifically, the issue comes down to what mental state the defendant had for this wrongful act. The majority opinion by Justice Scalia goes for a narrow exception. The statement comes in only if the prosecution can prove (to the judge, the jury hasn't heard any of this yet) that the defendant killed the witness for the purpose of preventing testimony, not for some unrelated reason. The dissent (Breyer, joined by Stevens and Kennedy) would hold that intentional killing with knowledge that preventing testimony is a consequence would suffice.

Hat tip to Doug Berman at Sentencing Law and Policy for the post directing us to today's Supreme Court of Tennessee decision in State v. Allen, No. W2005-0285-SC-R11-CD. The decision, authored by Judge Cornelia Clark, addressed whether Tennessee's consecutive sentencing statute "passes constitutional muster" in light of the U.S. Supreme Court holdings of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). While Tennessee and Oregon sentencing statutes are different, the issue addressed by the Supreme Court of Tennessee is the same as the one before SCOTUS next term in Oregon v. Ice, 07-901. The Supreme Court of Tennessee declined to extend the rules of Apprendi and Blakely to the defendants in Allen. We hope the U.S. Supreme Court makes a similar decision when it issues its opinion in Ice.

CJLF's brief in support of Oregon, can be found here.

Supreme Court Grants 3rd Hearing to TN Death Row Inmate: According to Adam Liptak's article in the New York Times, the US Supreme Court has granted a third hearing to Gary B. Cone, who was sentenced to death for double murder, to determine if he still has an opportunity to argue that prosecutors did not fully disclose evidence that might have helped his defense. Prosecutors are accused of having withheld evidence of drug use, the precise explanation Cone used to excuse his behavior.

Can Court Rule Inmate Too Dangerous for Psychiatric Facility? Ruben Casteneda reports for the Washington Post that a Circuit Court judge has ruled that an inmate is too dangerous to both himself and to others to be allowed outside of Baltimore's Supermax despite his ruling that the inmate was not criminally responsible for his crimes. The judge committed the inmate to the Department of Health and Mental Hygiene based on his ruling, but has now said that the DHMH can provide treatment within the confines of Supermax based the agency's recommendations.

Georgia Sex Offenders Challenge Movement Restrictions: Georgia has the most restrictive laws for registered sex offenders in the country, including bans on living within a certain radius of school bus stops and volunteering at church. Greg Bluestein writes for the Associated Press that, through a human rights group, 5 Georgia sex offenders argue that the restrictions limit their ability to practice their faith under the First Amendment.

L.A. Gang Violence Shuts Down Summer Sanctuaries: Public pools have long been many citizen's only refuge from the sweltering summer heat, but when violence erupted at a Watts public pool, officials shut the pool down indefinitely. John Mitchell details for the LA Times just how gang violence is affecting another aspect of daily life.

Supreme Court Won't Interfere with Border Fence Plans: When the Secretary of Homeland Security invoked the right, granted by Congress, to exempt the border fence from certain environmental regulations, the environmental lobby and some of their sympathetic legislators protested the constitutionality of the exemptions all the way to the Supreme Court. But according to Dave Montgomery's story in the Sacramento Bee, officials have the right to use the legislative exemption for laws passed by Congress. Go figure.

The Remaining Supreme Court Decisions: Tom Goldstein at SCOTUSblog posted his predictions for the 2007-2008 cases that are still unresolved. Based on his SCOTUS sudoku method, Goldstein predicts Justice Scalia is the author of District of Columbia v. Heller, indicating a probably win for the would-be gun owner. He also predicts that Justices Scalia, Kennedy and Alito are the likely authors of opinions for Giles v. California and Kennedy v. Louisiana but concedes these predictions are "wild speculation."

Critiquing Epstein's take on Boumediene: Ed Whalen at Bench Memos critiques a point made by Richard Epstein in an Op-ed Epstein wrote for Saturday's New York Times. Whalen's post points to Epstein's comment "Nothing in the suspension clause distinguishes citizens from aliens.”, and discusses how irrelevant this statement is when "The Suspension Clause doesn’t purport to define the scope of the privilege of habeas corpus; it merely governs suspension of the privilege." Whalen is critical of Epstein's failure to address the originalist argument made in Scalia's dissent, as well as Epstein's failure to recognize no precedent exists "for recognizing in aliens abroad the same constitutional rights of “persons” that U.S. citizens abroad..." Whalen then notes that Andrew McBride got Boumediene right in Saturday's Wall Street Journal.

Sixth Amendment After Rothgery: Orin Kerr has a post at the Volkh Conspiracy pondering when the right to counsel attaches after today's decision in Rothgery v. Gillespe County. Kerr confesses he is not a Sixth Amendment expert, so he asks readers to help resolve some of the questions he has after reading today's decision. One question that Kerr poses, and offers up for comment, is: "If it means there must be counsel before the detention hearing, how is Rothgery consistent with the Sixth Amendment discussion in Gerstein v. Pugh, where the Court indicated that "pretrial custody may affect to some extent the defendant's ability to assist in preparation of his defense," but that a probable cause hearing did not trigger a critical stage requiring a constitutional right to counsel?"

Psychology and Crime News has a couple of interesting research items. First, Behavioral Science and the Law has a special issue on videoconferencing and the law. Another post gives a summary of an article on "The limited role of neuroimaging in determining criminal liability." (Probably not limited enough.)

Understatement of the day award goes to Justice David Souter, writing for the Court in Rothgery v. Gillespie County, Texas, No. 07-440. "Our holding is narrow." Indeed, the holding decides an easy technical question but resolves nothing of consequence. If the holding were any narrower, it would disappear altogether.

Predictions of Kennedy v. Louisiana: Yesterday, Corey Rayburn Yung posted his prediction for the Supreme Court's decision in Kennedy v. Louisiana. In his post, Yung states that while he had earlier predicted that the Court might strike down Louisiana's law allowing the death penalty for child rape by "narrowing the class of defendants", Yung now predicts the Court's decision will focus on whether the death penalty for child rape is "cruel and unusual." Yung predicts the Court will "fudge" rather than "overrule" Coker. (We at CJLF do not think that either fudging or overruling is required, as Coker quite clearly left the present question open.) Yung predicts the Court will issue a 5-4 decision in favor of the state, with Kennedy as the swing vote. We could know Monday if his prediction is right...

Military Commission Review: Lyle Denniston at SCOTUSblog reports on today's D.C. Circuit decision that it does not have authority to hear detainee Omar Ahmed Khadr's challenges to the authority of a "military commission" to try him on terrorism charges. A three judge panel for the D.C. Circuit ruled it could not decide the issue before Khadr had been tried by the military commission. The D.C. Circuit rejected Kadhr's arguments that both the Military Commissions Act of 2006, and the collateral order doctrine, gave the court subject matter jurisdiction over his claim. Denniston reports this is the first time the D.C. Circuit Court has "spelled out" the authority that Congress gave it to review the findings of the military commission trials.

DOJ Recommends Habeas Proceedings: Lyle Denniston at SCOTUSblog has a post on the Justice Department's recommendation to the D.C. Circuit to put the appeals of 190 detainees on hold, so that the detainees may go forward with their habeas claims in district court. The government's motion can be found here. According to Denniston, today's DOJ filing covers two types of appeals in the D.C. Circuit Court. The first appeals, "in abeyance," are from 190 detainees challenging their status as enemy combatants. The second type of appeal belongs to about 100 detainees who are challenging the denial of earlier habeas actions, as well as "challenging orders not to move detainees, or orders to give detainees’ lawyers notice before a prisoner is sent away from Guantanamo, plus some disputes over classified materials."

The Boumediene Decision and Supreme Court Appointees: Ed Whalen at Bench Memos has a post criticizing Washington Post columnist Ruth Marcus' article "The Court McCain Wants." Whalen's post criticizes Marcus' article on grounds that "Marcus grossly misestimates how a well-informed public would assess the relative prospects of McCain and Obama appointees to the Court." To illustrate his point Whalen points to the column's discussion of: (1) Roe v. Wade, (2) how the Supreme Court is at a "tipping point on issues that range from the scope of presidential power to the separation of church and state to the future of affirmative action.”, and (3) the fact that Marcus has "ignored" "lots of other issues that Stuart Taylor has identified on which Supreme Court picks by Obama would present a real threat (in Taylor’s words) of further 'displacing democratic choices with made-up constitutional law'." This afternoon, Jonathan Adler at Volokh Conspiracy also weighed in on Whalen's critique.

Boumediene Backlash: Over at Bench Memos, Ed Whalen offers a critique of Washington Post writer, George F. Will's attack of McCain's comment that Boumediene was "one of the worst decisions in the history of this country.” Whalen's post discusses the shortcomings of Will's article, while wondering whether Will himself has read, and understood, the Boumediene decision.

New Way to Look at "Going Postal": Over at Volokh Conspiracy guest blogger Anuj Desai has a post submitting that the origins of certain constitutional doctrines can be traced to eighteenth-century postal policy. In particular, Desai argues the doctrines of 1) First Amendment restrictions on government subsidies for speech ); (2) the First Amendment “right to receive” ideas; and (3) the Fourth Amendment principle of communications privacy, may all be traced to early congressional policy decisions, that embedded as attributes of the postal institution, and then were applied to other areas of constitutional law. In today's post Desai connects the early policy decision to subsidize postal delivery of newspapers with the "unconstitutional conditions" doctrine.

Two Executions Today: Hattip to Sentencing Law and Policy for its report on the executions scheduled in Oklahoma and Texas today. In his post, Berman reports that although this will be the first execution in Oklahoma in nearly a year, the Texas execution is getting more press because of an alleged affair between the prosecutor an the judge.

Misconduct Probe of Alex Kozinski: The L.A. Times reported today that the U.S. Third Circuit had appointed a panel of federal judges to oversee a misconduct probe of Ninth Circuit Judge Alex Kozinski. U.S. Chief Justice John G. Roberts Jr. transferred the matter to the 3rd Circuit Court in Philadelphia, and the chief judge there appointed a special committee to investigate. The probe comes a week after the L.A. Times reported Kozinski was posting sexually explicit material on a personal, but publicly accessible website. As a result of the story, Judge Kozinski declared a mistrial in the obscenity case over which he was presiding. Ironically, the obscenity trial involved the prosecution of Hollywood filmmaker Ira Isaacs, who had been accused, under federal obscenity laws, of distributing hard-core pornographic films.

The U.S. Court of Appeals for the Ninth Circuit has demonstrated once again why it simply cannot be trusted to decide capital cases fairly.

The Supreme Court reversed the Ninth Circuit in the case of Ayers v. Belmontes in 2006 and remanded the case. Today, the Ninth Circuit overturned the death sentence again, finding that trial counsel had provided ineffective assistance in the penalty phase. The truth is that trial counsel had pulled off a major coup for the defendant in the penalty phase.

Habeas Rights After Boumediene and Al Odah: As expected, the blogosphere was saturated with posts and comments on today's Boumediene and Al Odah decision. Lyle Denniston has a post on SCOTUSblog analyzing detainee rights now that they have been granted the right to habeas corpus. Denniston notes that the Supreme Court's decision does not foreclose Congress', or the President's, authority to create another method of review for the detainees. The decision did not say there could never be substitutes for habeas. The decision also left alone the Combatant Status Review Tribunals (CSRTs). Detainees at Guantanamo Bay will not be able to file with the federal court until after they have been determined to be "enemy combatants" by the CSRTs. Because detainees must go through the CSRTs first, Denniston wonders what exactly the majority of the Court meant when it said detainees were entitled to a "prompt" habeas hearing. Denniston then lists six rights he believes the Supreme Court requires a detainee to be afforded when he seeks review under habeas corpus.

Reaction to Boumediene: For our readers interested in the reaction to today's decision Tony Mauro at the BLT has a post on the "dramatic" reaction to Justice Kennedy's opinion, as it was announced by the Court this morning. The Volokh Conspiracy also has several posts from Orin Kerr, Jonathan Adler and Ilya Somin giving their thoughts on today's decision.

The Boumediene Dissents: Much was made of the majority opinion, so Ed Whalen at Bench Memos helpfully offers some excerpts from Chief Justice Roberts' and Justice Scalia's dissents.

Irizarry and Sentencing: And if you've had enough of Boumediene for today, Douglas Berman at Sentencing Law and Policy has two posts on his thoughts on today's Irizarry decision. Berman states he is "not sure upon first read whether the ruling is very important or just a review of matters established by modern Booker progeny like Gall and Kimbrough."

Habeas Corpus Extends to Military Prisoners?: Despite CJLF's research that the Great Writ did not extend to military prisoners under common law, the Supreme Court ruled today that Guantanamo detainees have the right to challenge their detention in civilian court. This Associated Press article in the LA Times has details on counsels' arguments and the final decision released by the Court.

Texas Killer Executed, First Since National Pause: Michael Graczyk for the Associated Press writes that Texas has executed convicted killer Karl Chamberlain, 17 years after he murdered a 30-year-old woman who lived in his apartment building. The victim's family wondered why it had taken so long for justice to be served.

Independent Report on Juvenile Escape May Prevent Future Incidents: Following the February escape of a 17-year-old charged as an adult for murder, an independent audit has detailed the factors that allowed for the escape from San Mateo County's juvenile facility. John Coté of the San Francisco Chronicle reports that officials hope the investigation will prevent future incidents.

As noted in yesterday’s Blog Scan, there is much discussion about which of the cases where Justice O’Connor cast the deciding vote might be overruled following her replacement by a more “conservative” justice. I put “conservative” in quotes because such labels are an oversimplification, as described here.

The following list is the criminal and related cases from Marty Lederman’s most recent post, with some comments as to which ones really are candidates for overruling by justices who are “conservative” not only in their ideological leanings but also in their respect for precedent.

Lederman describes his list as “cases decided in the decade between 1995 and 2005 in which Justice O'Connor's was the decisive vote or opinion, and as to which a more conservative Justice such as Justice Alito might well vote to overrule the governing precedent (assuming, in each case, that Chief Justice Roberts would vote in accord with Chief Justice Rehnquist).” The description following each case is Lederman’s, and the paragraph that follows is my comment.

O'Connor's Supreme Court Precedents: Marty Lederman has a post at Balkinization discussing the "five high-profile constitutional areas" where O'Connor's precedents are vulnerable to being overruled by the current U.S. Supreme Court. The five areas include abortion, "race conscious assignments and affirmative action", campaign finance regulation, the establishment clause, and Congress's power to remedy discrimination under the Reformation Amendments. Lederman points out that in the areas of abortion, race conscious assignments, and campaign finance regulation, the Court has already taken "big bites" out of the rules established by O'Connor's opinions. The post also gives a helpful list of cases between 1995 and 2005, where O'Connor's vote was the decisive vote, or where she authored the opinion.

Mootness, and the Relevance of Munsingwear: Pattie Millet at SCOTUSblog has a post giving practioner's points on mootness. The post discusses the 58 year-old precedent of United States v. Munsingwear, Inc., 340 U.S. 36 (1950), that established, as paraphrased by Millet, "where intervening mootness prevents appellate review of the underlying decision, the decision below ordinarily should be vacated." The most helpful aspects of the post are Millet's pointers on the caveats to the Munsingwear rule. These caveats include: (1) the party seeking Supreme Court review cannot be responsible for the mootness; and (2) because vacatur is a discretionary exercise, a motion for vacatur must persuade the Supreme Court "not only that equitable relief is appropriate, but also that the Supreme Court’s time and intervention are warranted."

Texas Executions: Grits for Breakfast has a post on a Texas Court of Criminal Appeals decision released yesterday that approved Texas lethal injection procedures. The first few paragraphs of the post address the dissenting opinions of Judge Price and Judge Johnson, but the end of the post discusses the majority opinion by Judge Hervey. The majority of the court "characterized the lethal injection procedures analyzed in Baze as 'materially indistinguishable from Texas' lethal-injection protocol.'"

James Q. Wilson has been guest blogging at the Volokh Conspiracy on crime and punishment. His most recent post, as of this writing, with links to the earlier ones is here. Our good friend and advisor appears to be a bit surprised that the comments section of VC is pretty much a food fight.

Increasing Prison Population: Doug Berman at Sentencing Law and Policy has a post clarifying an ABC News Report that the "U.S. Prison Population Hits All-Time High". Berman clarifies the ABC story by linking to the the Justice Department's official press release, which actually reports on slower growth in the nation's prison and jail populations. The report states that according the Bureau of Justice Statistics, "[t]he growth in the number of prisoners under state or federal jurisdiction slowed during the first six months of 2007[.]" "The number of prisoners rose 1.6 percent, which was lower than the 2.0 percent growth during the same period in 2006."

Q&A With Justice Scalia: Above The Law has a post on Justice Scalia's Q&A session at a Federalist Society event promoting his recent book "Making Your Case: The Art of Persuading Judges". During the Q&A session Scalia answered questions regarding his thoughts on the Court confirmation process, what drew him to administrative law, and urged law students to take classes in comparative law. The post also contains some interesting commentary on why Justice Scalia may have turned down an invitation to sit on the Seventh Circuit. Earlier posts have addressed Scalia's other public appearances for his new book.

Federalism Discussed at the AALS Mid-Year Meeting: Jonathan Adler at Volokh Conspiracy has a post on his participation at the AALS Mid-Year meeting. Adler reports that he led a session on “Federalism and the Roberts Court.” According to Adler, the session discussed the different approaches of the Roberts Court and the Rehnquist Court towards "judicial safeguards of federalism". Adler reports that while the Rehnquist Court sought to advance state sovereignty and enumerated powers, the Roberts Court has shifted its focus toward the issues preemption and the dormant commerce clause. Adler also reports on two other papers addressing federalism at the conference: “Federalism, the Rehnquist Court, and the Modern Republican Party,” by Bradley Joondeph (Santa Clara), and “The Populist Safeguards of Federalism,” by Robert Mikos (UCDavis).

Virginia Spam: The Virginia Supreme Court reheard the First Amendment issues in the case of prolific spammer Jeremy Jaynes, reports Larry O'Dell for AP. Prior opinion here; rehearing order here.

Guantanamo Is a Model Prison (Really): Admiral Mark Buzby refutes myths about Gitmo in this WSJ op-ed.

Rezko: "A prominent political fundraiser for Sen. Barack Obama and Illinois Gov. Rod Blagojevich has been found guilty of fraud and money laundering," reports Mike Robinson for AP.

Civics online: Retired US Supreme Court Justice "Sandra Day O'Connor is developing a free interactive Web program for middle schoolers on the U.S. court system," reports Associated Press.

Military Commissions to try terrorists were defended by AG Mukasey at a federal judges conference. Matt Apuzzo has this story for AP.

Fingerprint Breakthrough? "Forensic scientists at the University of Leicester, working with Northamptonshire Police, have announced a major breakthrough in crime detection which could lead to hundreds of cold cases being reopened," reports Science Daily. "Dr John Bond, Honorary Fellow at the University of Leicester and Scientific Support Manager at Northamptonshire Police said: 'For the first time we can get prints from people who handled a cartridge before it was fired.'" Could be huge, if it pans out.

CSI: Cost Effective? Australian researchers plan to go beyond the anecdotal and look quantitatively into how effective forensic science is. How many crimes does it solve, and at what cost? Liz Porter reports for The Age.

Crime and Prison: Doug Berman at SL&P and DoJ's Weekly Accessions List both point us to Spelman, Specifying the Relationship Between Crime and Prisons, Journal of Quantitative Criminology, 24(2), June 2008, pp. 149-178. However, the two sources give us different abstracts for the same article. The one at SL&P is extremely math- and jargon-heavy. The one at the Weekly Accessions List is considerably less so. It is copied after the jump.

The Federalist Society has a SCOTUS podcast on the U.S. Supreme Court's May 19, 2008 decision in United States v. Williams. The SCOTUScast features commentary by Elizabeth Harmer Dionne, the John M. Olin Fellow in Law at Harvard Law School. Dionne specializes First Amendment issues, particularly freedom of religion and obscenity law.

The Williams case addressed section 2252A(a)(3)(B) of Title 18 U.S.C., which Congress passed after the Supreme Court's decision in Ashcroft v. Free Speech Coalition. Section 2252A(a)(3)(B), the "Protect Act", prohibits knowingly advertising, promoting, presenting, distributing or soliciting material in a manner that reflects the belief, or is intended to cause another to believe, that the material is illegal child pornography. Williams challenged the provision as violating his First Amendment rights. The District Court rejected his claim, but the Eleventh Circuit reversed, finding the statute both overbroad and impermissibly vague under the Due Process Clause. In an opinion authored by Justice Scalia, the U.S. Supreme Court reversed. Justices Souter and Ginsburg dissented.

Dionne's commentary reviews the Supreme Court's decision and addresses the First Amendment implications of the "Protect Act". She also suggests that because pornography advocates have successfully classified child pornography as speech, placing it within the protections of the First Amendment, we must continue to question whether any child pornography qualifies as speech. There will certainly be more court cases addressing this issue.

Jerry Markon at the Washington Post has this up to date story on Virginia's execution of Kevin Green. Green was scheduled to be executed by lethal injection last night at 9 p.m. EDT in Virginia. He was pronounced dead at 10:05p.m. Local coverage from The Richmond Times Dispatch story can be found here. Green was the first inmate executed by Virginia since 2006.

The U.S. Supreme Court declined Green's request for a stay yesterday. The Court also denied review of Green's new appeal (Green v. Johnson, 07-10988). Justices Stevens and Ginsburg dissented from the Court's denial. The denial and dissent can be found here. The dissent, authored by Justice Stevens and joined by Ginsburg, articulates Justice Stevens' belief that instead of denying the stay, the Court should have reviewed the merits of Green's claim "in the interest of avoiding irreversible error in capital cases." In Green's new appeal, he argued his trial lawyers improperly failed to appeal the robbery portions of his guilty verdict. On appeal, Green claimed that although his trial lawyers had won him a new trial on the murder convictions, they acted improperly by allowing the jury to learn about the robbery conviction. He claimed this information increased the chances of his being sentenced to death.

Linda Greenhouse has this article in Friday's New York Times, asking, "Where have all the 5-to-4 decisions gone?" Her approach is to look at the court entirely on a simple, one-dimensional liberal v. conservative scale, as if there is nothing else to consider. She looks at the lethal injection case, Baze v. Rees, the voter ID case, Crawford v. Marion Co. Elec. Bd., and United States v. Williams, the child pornography case, saying that it is not surprising that the government won all three but that it is surprising that none was 5-4. She also notes that Justice Kennedy is casting the deciding vote much less often than last term.

And what is the reason for the dearth of 5-4 decisions this term? Ms. Greenhouse hypothesizes that the "liberals" on the court are gaining concessions from the "conservatives," getting narrower decisions in return for broader agreement. The thought apparently never enters her head that the legal world is not as simple as liberal v. conservative, that simplistic labels do not fully describe people's views, and that the mix of cases may affect how well or how poorly those labels predict actual votes.

Update: Berry was executed at 6:15 p.m. CDT, AP reports. That is 20 years and 6 months after he kidnapped Mary Bounds and beat her to death, far too long.

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The Supreme Court has denied stays in the two petitions filed by Mississippi murderer Earl Wesley Berry. No dissents are indicated. As noted in yesterday's blog scan, Lyle Denniston has this post at SCOTUSblog on the filings in the case. The original post merely summarized the allegations of Berry's lawyers. If one knew neither the facts nor the law, one would think after reading the post that this case involves the state proceeding with the execution of a person who is clearly retarded and doing so via a procedure that is arbitrary. One would be wrong on both counts. Lyle writes,

Potentially more significant, however, is the core issue he raises in both the new state case and the original habeas plea over the question of a death-row inmate’s right to a hearing — which Berry’s lawyers say he has never had in state court — on a claim of mental retardation.

Ed Whalen Comments on Ronald Dworkin's New Book: Over at Bench Memos, Ed Whalen has this post commenting on the first few chapters of Ronald Dworkin's new book, The Supreme Court Phalanx: The Court’s New Right-Wing Bloc. The book republishes the essays Dworkin wrote for the New York Review of Books from 2005 through 2007. Whalen's post smartly points out that Dworkin's main thesis - that Chief Justice Rehnquist, Justice Scalia, and Justice Thomas always took the "most conservative positions possible" is "patently false", especially when considering that Rehnquist, Scalia and Thomas have taken the middle-of-the-constitutional-road position that the Constitution does not prohibit abortion, as well as the position that in the area of race, the Constitution requires the government to be color blind.

Constitutional Rights of Sex Offenders: Doug Berman at Sentencing Law and Policy speculates on when the United States Supreme Court will choose to address the constitutionality of sex offender residency restrictions. Berman's post notes that recent decisions in Ohio and Indiana create the possibility that the opportunity will come through the state court system. He also notes the differing constitutional issues presented by the cases - ex post facto punishment claims, and due process or takings claims - don't give us a clear indication of the exact right the Supreme Court might address.

Steven Erickson at Sex Crimes Blog: Our blogger Steven Erickson will be guest blogging at Sex Crimes as well. Those of you who have been following and enjoying Erickson's posts on our blog will be able to get a double dose of Erickson's comments at Sex Crimes.

Monday's Decisions from the Ninth Circuit: Jon Sands at Ninth Circuit Blog posted a summary of the Ninth Circuit's decisions in U.S. v. Caruto, Woods v. Carey, and Miller v. Blackletter. Defendant's rights appeared to be the theme of the day. U.S. v. Caruto addressed whether a prosecutor could argue the omissions in a defendant's post-arrest statement before invoking her Miranda rights. The Ninth Circuit held the prosecutor could not. Miller v. Blackletter involved the denial of a defendant's request for a trial extension to search for another attorney. Yesterday's Ninth Circuit decision held the state court did not abuse its discretion in balancing the right to counsel against concerns of fairness and scheduling as set forth by Gonzalez-Lopez. Woods v. Carey addressed whether a second federal habeas petition filed while the first was still pending, should be treated as a "second or successive" petition, or a motion to amend the first petition. The district court had treated it as a "second or successive" petition, and dismissed it. The Ninth Circuit held that because the petition was filed pro se, the petition should be treated as as a motion to amend the pending petition.

Canadian on Death Row: Doug Berman at SL&P has this post on failed negotiations to commute the sentence of a Canadian on death row in Montana. "Some Canadian bloggers are apparently upset that weakened Canadian opposition to the death penalty led to this back-room clemency deal falling through. I am more troubled to hear that a state governor seriously considered a back-room clemency deal along these terms for a brutal double-killer that Montanta's state prosecutors and judges and juries thought should be executed for his crimes. (The press article notes that Smith 'brutally executed two Blackfeet Indian men — Thomas Running Rabbit and Harvey Mad Man — during a drunken road trip to Montana in 1982.')"

Ohio AG: WSJ Law Blog has this post on the status of the "Marc Dann mess."

No decision yet in the Guantanamo detainee case, Boumediene v. Bush. Be sure to tune in next week, same time, same channel.

The Court decided Gonzalez v. United States on the (yawn) question of whether consent to having the jury voir dire in a federal criminal trial be done by a magistrate judge instead of a full-fledged district judge requires the personal waiver of the defendant as opposed to simple consent by counsel. No, 7-1-1.

The lone new cert. grant is Bell v. Kelly, No. 07-1223, a capital habeas case on the extent of deference to state court decisions under 28 U.S.C. § 2254.

Bismullah To Get Status Review: Lyle Denniston at SCOTUSblog reported today that the Pentagon intends to review the status of Bismullah, an Afghan national detained at Guantanamo Bay. Bismullah's lawyers have argued for months that he has been detained by mistake, and his case is currently awaiting a decision from the United States Supreme Court in Gates v. Bismullah (07-1054). Denniston reports that the U.S. Supreme Court has avoided action in Bismullah until it decides Boumediene v. Bush and Al Odah v. U.S. The Pentagon's review will include a new “Combatant Status Review Tribunal” based on new evidence. This news comes at the same time as the Justice Department's announcement that the second "Combatant Status Review Tribunal" for detainee Al Ginco, based on new evidence submitted by Al Ginco's counsel, resulted in classification as an "enemy combatant".

Baze Backlash: Over at Sentencing Law and Policy Doug Berman reports and comments on Elisabeth Semel's piece in the The National Law Journal. The article is called "Fearing Too Much Justice" and argues that death penalty states should be using Baze as the standard by which to review each of the state's lethal injection protocols. Berman's comments on the article are the best part of the post:

"Actually, I think that what some members of the current Supreme Court truly fear is what Semel and other death penalty opponents often seem eager to seek: the de facto elimination of the death penalty through persistent constitutional litigation rather than de jure reform through the democratic process. The fear is not of too much justice, but of too much persistent effort by death penalty abolitionists to achieve through the courts what they have not been achieve through the ballot box."

Obama's Position on the Courts: Orin Kerr at Volokh Conspiracy had two posts today on comments Senator Obama has made to the press about the type of Justice he would appoint. The first post reports on Obama's interview with Wolf Blitzer where he states he will seek Justices who will be able to use their own experiences and morals to protect "those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly." Kerr opines that Blitzer fell short when he failed to ask Obama for examples of what type of Justice he would appoint - as this would give us a better idea of what exactly Obama has in mind when he describes his ideal Justice. The second post reports on Obama's July 2007 speech at Planned Parenthood Action Fund. There, Obama stated he did not support judges that took the view that the Constitution in a" cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society."

Marco Allen Chapman, a death row inmate in Kentucky, may soon get his wish: to die. Chapman will be the first person executed in Kentucky since 1999. Brett Barrouquere, from the San Francisco Chronicle, reports Chapman has waited more than three years for the courts to consider an appeal he never wanted. He was convicted for stabbing two children after a two-day crack binge. “I did something that was immoral and wrong. I want to pay the price for it.” confessed Chapman. He says because of his Christian upbringing he’d rather the state kill him so he’s not committing suicide. He is scheduled to be executed June 3.

High School to Blame for Student's Murder Public defender, William Quest, holds E.O. Green Junior High partly responsible for Oxnard student Lawrence King’s death as reported by Catherine Saillant in the L.A. Times. The defendant, 14-year-old Brandon McInerney, was arraigned yesterday for murdering King with a handgun, allegedly because the victim had been flirting with him. Quest suggests that school administrators were so caught up trying to make King comfortable with his sexuality that they overlooked the chaos his behavior was causing. Ventura County prosecutors intend to try McInerney as an adult.

Murderer Challenges Cold Hit: Dennis Nelson was identified by a cold DNA hit as the person who raped and murdered a 19 year old Sacramento girl in 1976. He is asking the California Supreme Court to overturn his conviction because so much time had passed since the crime occurred, he claims he could not present an adequate defense. The Los Angeles times story by Maura Dolan reports on yesterday's oral argument where Nelson's attorney lamented that presenting a adequate defense was impossible because over the years evidence had been lost and memories have faded. That's kinda what happens when a federal judge overturns a conviction or sentence over some procedural error two decades after the trial. The DA is unable to retry the case and the defendant gets on the DPIC innocence list.

Takings Clause and Foreigners: Thanks to Eugene Volokh at Volokh Conspiracy for his post on the Federal Circuit opinion dismissing a claim that the Fifth Amendment's Takings Clause applied to foreign nationals with no relationship to the United States. While the Takings Clause does not normally arouse our interest, the Federal Circuit's discussion of the Bill of Rights as it applies to foreigners is of interest - especially in light of pending U.S. Supreme Court decisions pending in Boumediene and Al Odah.

More breaking news on the possible first post-Baze execution. Lyle Denniston at SCOTUSblog has this post, with the pleadings, on Georgia murderer William Lynd's certiorari petition and request for stay to the U.S. Supreme Court.

The state's opposition notes that the Georgia Supreme Court's decision rests on the independent state ground that Lynd has already had a state habeas petition and is not entitled to another one. Lynd's reply says that the mere fact that the state court requested merits briefing means its decision was on the merits, not procedural default, and the Supreme Court therefore has jurisdiction. Nope. We slew that dragon 17 years ago. See Coleman v. Thompson, 501 U.S. 722, 744 (1991).

Update: Lyle reports that the Court denied the stay and certiorari at 7:01 ET.

Update 2: "William Earl Lynd was pronounced dead at 7:51 p.m. EDT, Georgia Department of Corrections spokeswoman Mallie McCord told The Associated Press," Shannon McCaffrey reports.

Georgia Murderer Faces Execution: William Earl Lynd, sentenced to death 18 years ago for the kidnap and murder of his ex-girlfriend, is scheduled for execution tonight as reported in this story by AP writer Shannon McCaffrey. Lynd will be the first murderer executed since last September, when the U.S. Supreme Court agreed to review the lethal injection process in the Kentucky case of Baze v. Rees, decided on April 16.

Update: The Georgia Supreme Court unanimously denied a stay this afternoon. Atlanta Journal-Constitution story here.

DC Sniper: AP reports that John Allen Muhammad has written a letter to prosecutors saying that he wants to drop his appeals, and he asks for their help against the efforts of his lawyers. They claim he is brain damaged.

Do capital defense lawyers oppose every attempt to "volunteer" and claim mental incapacity every time? It seems to happen with great regularity.

The Supreme Court reminded us in Crawford of the importance of cross-examination as an engine for the discovery of the truth. No, I'm not referring to Crawford v. Washington, 541 U.S. 36 (2004) but to today's decision in the voter ID case, Crawford v. Marion County Election Bd., No 07-21. Footnote 20 on page 19 of the lead opinion says, "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication." So take that, all you Google-infatuated clerks.

In a fractured opinion, by the way, the Court rejected a facial attack on Indiana's voter ID law. Such laws have a disparate impact on persons of decomposition and are vehemently opposed by the Democratic Party, which apparently believes this demographic will skew their way. I guess they would know.

Other than that, it's pretty quiet at 1 First Street, NE. No Boumediene. No new cert. grants. Bell v. Kelly, No. 07-1223, the only criminal case on SCOTUSblog's petition to watch list for Friday's conference, has apparently been relisted.

Update: Rick Hasen, who doesn't like the Crawford decision at all, has this guest post at SCOTUSblog. "In a nutshell ... a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong." Sounds like Batson.

U.S. Sentencing Commission On Retroactivity of Crack Amendment: Thanks to Douglas Berman at Sentencing Law and Policy for his post on the U.S. Sentencing Commission's release of data on the retroactive application of the crack amendment. The Commission's data, found here, compiles the preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). The data compiles cases that were received by the Commission before April 14, 2008. Berman notes that he hopes the data is frequently updated.
Lara Jakes Jordan at the Associated Press also had this story on the Commission's findings.

Vienna Convention Post-Medellin: Howard Bashman at How Appealing provided this post, and a link, to the Second Circuit's decision that failure to inform detained aliens of the prospect of consular notification, as required by Article 36 of the Vienna Convention, cannot be vindicated by a private action for damages. While Article 36 has been addressed by courts in a variety of contexts, the U.S. Supreme Court's decision in Medellin v. Texas did not directly address this issue. Instead, the Medellin decision assumed, without deciding, that Article 36 creates the judicially enforceable right to request that consular officers be notified of their detention.