Results matching “thomas”

Any Help is Better Than No Help:  CNN writer Amanda Watts reports inmates at California's San Quentin helped rescue two boaters who had fallen and drifted from their boat in the San Francisco Bay early Wednesday.  Prison staffers and ten fire department inmates went into the water around 1 a.m. and rescued the man.  San Rafael Fire Department personnel arrived soon after and helped rescue the female.  A staff member and several prison inmates performed CPR and other life-saving measures on the male, who was later pronounced dead.  The woman was treated at a hospital and released shortly thereafter.  Prison spokesman Lt. Sam Robinson said the inmates in the prison's fire department are trained paramedics who were not convicted of violent or sexual offenses.  This was the first water rescue the inmates had ever responded to.  "Ninety-nine percent of what they do happens inside the facility," Robinson said.

"Military to Pursue First Capital Prosecution Against Terror Suspect":  Military prosecutors have recommended the death penalty for the accused mastermind behind the deadly bombing of the USS Cole in 2000.  After the announcement was made Wednesday, the 46-year-old Saudi native Abd al-Rahim al-Nashiri s now closer to trial before a military commission.  This could very well be the first death penalty trial in the reconfigured military trial system.   Intelligence sources have said Al-Nashiri led al Qaeda operations in the Persian Gulf before he was captured by the U.S. in 2002.  Al-Nashiri is charged with heading the attack on the USS Cole that ultimately killed 17 sailors and left 47 others injured.  The final decision about whether the death penalty will be pursued is up to retired Vice Adm. Bruce McDonald.  The last military execution was in 1961, involving a U.S. Army private who was convicted of rape and attempted murder of an Austrian girl.  CNN has this story.

Lawyers Urge Supreme Court to Extend Graham v. Florida Decision:  Almost a year ago, the Supreme Court ruled that sentencing juvenile offenders to life without the possibility of parole violated the Eighth Amendment, but only for crimes that didn't involve murder.  That decision affected around 130 prisoners convicted of crimes such as rape, armed robbery, and kidnapping.  Lawyers are now petitioning new cases to the Supreme Court involving other prisoners who were 14 when they were committed their murders, urging the justices to extend last year's decision Graham v. Florida to all 13-and 14-year-old offenders.  It should not be long until the justices decide to address the questions posed in the petitions.  If the Graham decision were to be extended to all juvenile offenders, about 2,500 prisoners would be affected.  Our own Kent Scheidegger disagrees with the Graham decision and "extending it to homicides would be wrong squared."  "Sharp cutoffs by age, where a person's legal status changes suddenly on some birthday, are only a crude approximation of correct policy," he added.  New York Times reporters Adam Liptak and Lisa Faye Petak have this story.

Indiana Supreme Court Hears Argument on Convict Voting:  Charles Wilson of the AP reports the Indiana Supreme Court heard argument today in a case challenging the scope of a state law stripping the voting rights of those in jail.  The Indiana constitution allows voting rights to be taken away for convictions of "infamous crimes."  A South Bend man, whose voter registration was canceled after he was sent to jail for misdemeanor battery, claims his crime shouldn't count.  Indiana Solicitor General Thomas Fisher says "infamous crimes" should mean whatever legislators want it to mean.

The lone opinion from the US Supreme Court today is a civil case, Virginia Office for Protection and Advocacy v. Stewart, No. 09-529.

We consider whether Ex parte Young, 209 U. S. 123 (1908), allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same State.

Answer: yes (6-2, Kagan recused).

VOPA is an office set up to advocate for the disabled, but this could easily happen with a criminal defense agency with an overly broad view of its mission.  So Young and the Eleventh Amendment aren't going to kill such a suit.

Justice Kennedy, concurring joined by Justice Thomas, tells us that state law, not federal law, is the way to stop the absurdity of the state suing itself:

First, and most important, state law must authorize an agency or official to sue another arm of the State. If States do not wish to see their internal conflicts aired in federal court, they need not empower their officers or agencies to sue one another in a federal forum. And if state officers are not by state law empowered to sue, they may invoke federal jurisdiction only in their personal capacities. 

Second, to the extent there is some doubt under state law as to an officer's or agency's power to sue, or any other state-law issue that may be dispositive, federal courts should abstain under Railroad Comm'n of Tex. v. Pullman Co., 312 U. S. 496 (1941).

This opinion should have a bit more clout than most concurrences, as Justices Kennedy and Thomas are necessary votes for the majority.  Had they joined the dissent, it would have been a 4-4 affirmance by an equally divided court.

The US Supreme Court has sent the cases of two Arizona murderers, Danny Jones and Edward Schad, back to the Ninth Circuit to do over in light of the Supreme Court's April 5 decision in another Ninth Circuit capital case, Cullen v. Pinholster.  The order list is here.  All three cases involve claims that the defendant's trial lawyer did not do a good enough job in the penalty phase of the case.  Attacks on the guilt determination have been uniformly rejected.

In the Jones case, Judge Sidney Thomas adds annoyance to error by consistently referring to the murderer as "Danny."  His precious "Danny" murdered three people including an elderly woman and a 7-year-old girl.  Judge Thomas refers to the elderly woman, Katherine Gumina, as "Gumina," not Mrs. Gumina or even Ms. Gumina, but the murderer is "Danny."

The only case taken up for full briefing and argument today is a crime-related immigration case, Judulang v. Holder.

Opinion is here.  Opinion by Justice Thomas.  Splits all over, but the opinion is a majority in its entirety.  I'll have more shortly.

In Graham v. Florida, decided a year ago next month, five Justices of the Supreme Court took the view that it is always cruel and unusual punishment to impose LWOP on a person under eighteen years of age for a non-homicide offense, no matter what it is.  Chief Justice Roberts believed that the punishment in Graham's particular case was cruel and unusual, but would not have established a per se rule.  Justices Scalia, Thomas and Alitio dissented.

I noted here that the decision had some ominous language for the death penalty.  Today, MSNBC brings us the news of a fellow, said to be 14 (although he doesn't look 14 to me) who brings his own perspective to the Jusitces' paean to teenage criminality.

The problem in Graham, as in other instances of high-minded judicial meandering, is that it sleepwalks its way past the fact that future victims are no less real, and no less deserving of the law's protection, than today's hoodlum, juvenile though he may be. 

 

The Supreme Court today gave the prosecution a big win in Connick v. Thompson, described below in the Heritage Foundation summary:

In a 5-4 decision by Thomas, the Court held that a district attorney's office cannot be held liable under section 1983 for failure to train its prosecutors based on a single BRADY violation. 

Thompson was convicted of armed robbery, and later, capital murder.  He chose not to testify at his murder trial because of his prior robbery conviction.  A month before Thompson was to be executed, an exculpatory crime lab report was discovered relating to the armed robbery.  The execution was stayed, and his robbery conviction was overturned.  A Louisiana appellate court reversed Thompson's murder conviction, and he was acquitted when retried. 

Thompson sued the district attorney's office under section 1983, claiming they had violated BRADY by failing to disclose the crime lab report.  The equally divided Fifth Circuit court affirmed a liability finding on the theory that the violation was caused by the office's unconstitutional policy and its deliberate indifference to an obvious need to train its prosecutors on BRADY. 

In reversing the Fifth Circuit, the Court noted that a pattern of similar constitutional violations is "ordinarily necessary" to demonstrate deliberate indifference.  Thompson did not prove a pattern of BRADY violations, and mistakenly relied on the "single incident" theory of liability hypothesized in CANTON.  Deliberate indifference in this context requires proof that city policymakers disregarded the "known or obvious consequence" that a particular omission in training would cause the violation.  Here, failure to train prosecutors in their BRADY obligations did not fall under CANTON; the attorneys are trained in the law, understood constitutional limits, engage in continuing education, and must satisfy licensing and ethical obligations.  Failing to train prosecutors in the grey areas of BRADY does not amount to "a decision by the city itself to violate the constitution." 

Ginsburg filed a dissent, joined by Breyer, Sotomayor, and Kagan.  Scalia (with Alito) joined the Court's opinion but also filed a concurrence addressing the dissent.

Of course this sort of issue should never arise.  Criminal litigation is not a game.  Those who insist on putting the truth first and ending all the clever maneuvering will never have discovery issues.  When I was an AUSA, although the law and Departmental regs did not require open file discovery, I provided it in every case (except where witness safety was an issue).  It shouldn't take Brady or any office training.  It should take only the conscience that brought you into the prosecutor's office to begin with.

Defendants ordinarily have much to fear from the truth, because it tends to send them to jail.  Those on the prosecution side should welcome the truth and let the chips fall where they may.

 

 

I have been critical of Linda Greenhouse's NYT writings on the Supreme Court from time to time, but this article with the above title is well worth reading.  She begins:

Among common impressions of the current Supreme Court are that Justices Antonin Scalia and Clarence Thomas are joined at the hip and that the majority tilts reflexively in favor of corporations and employers.

The surprise is that neither of those impressions is true.  It's not a surprise to me or to regular readers of this blog, but I'm glad to see Greenhouse conveying that to readers of the NYT.

In decisions that have split the court in any direction, Justices Scalia and Thomas have voted on opposite sides more often than they voted together. They differed in all three of the non-unanimous criminal-law cases that the court has decided so far.

She also plays the SCOTUS sudoku game and notes that Justice Thomas is the only Justice not to author a majority opinion this term and that Connick v. Thompson, on suing DAs offices for Brady violations, is the only October calendar case undecided.  So it is likely Justice Thomas has the assignment, and there is some reason the opinion is unusually difficult to get out.  Perhaps there is an unstable majority, or maybe the dissent is taking a long time.

SCOTUSblog's "Petitions to Watch" list for tomorrow's US Supreme Court conference is here.  Among the cases listed is the very interesting Stoval v. Miller, 10-851.

Under 28 U.S.C. §2254(d)(1), a federal court can overturn a state court decision on habeas corpus if it is "contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the Supreme Court ...."

What happens if (1) an intermediate state appellate court correctly applies US Supreme Court precedent, then (2) the US Supreme Court overrules that precedent and substitutes an entirely different rule, and then (3) the state supreme court denies discretionary review?  Neither state court decision can be fairly said to be contrary to US Supreme Court precedent at the time of the decision.  Appellate courts are not expected to be clairvoyant, and state high courts are not required to grant discretionary review for error correction.  Still, the change occurred while the case was still in the state court system.  The pre-AEDPA Teague doctrine would have applied the new rule in this circumstance.

The underlying substantive question is what constitutes a "testimonial" statement for the purpose of Crawford v. Washington's revamped version of the Confrontation Clause.  How about the suicide note of the defendant's co-conspirator and triggerman?  I'll bet Justice Scalia will say yes, and Justice Thomas will say no.  Not sure about the others.

Also on the list are two petitions by cause celebre Troy Davis, whose "actual innocence" case is now significantly handicapped by a District Court finding of fact that "Mr. Davis is not innocent."

There are further developments on the much-confused issue of when detained terror suspects have to be "Mirandized."  Evan Perez reports in the WSJ:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court's 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

Today the Supreme Court denied certiorari in a substantive Fourth Amendment case, Huber v. New Jersey Department of Environmental Protection, No. 10-388.  There is no dissent, but Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Thomas, fired a warning shot across the bow of officials who seek to extend too far the "limited exception to the Fourth Amendment's warrant requirement for searches of businesses in 'closely regulated industries.' "

"In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber's backyard."  It's a "wetland," you see, and that makes it the equivalent of pawnshop for warrantless searches?

Today the US Supreme Court decided to take up the case of Maples v. Thomas (not Maples v. Maples, as the orders list erroneously says it's fixed), No. 10-63.  The Court limited the grant of certiorari to Question 2.  As drafted by counsel for petitioner, that question reads:

Whether the Eleventh Circuit properly held--in conflict with the decisions of this Court and other courts--that there was no "cause" to excuse any procedural default where petitioner was blameless for the default, the State's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.

This phrasing of the question commits the fallacy of assuming the conclusion.  Of course it would not be proper for the Eleventh Circuit to hold in conflict with Supreme Court precedent, but that is precisely the question in dispute.  The Supreme Court precedent closest in its facts is Coleman v. Thompson.  In that case, the Court held that ineffective assistance of state habeas counsel in blowing a deadline to appeal denial of habeas in the state trial court is not "cause" for a procedural default opening the claim up to federal habeas review.

AP reports from Knoxville, Tennessee:

Prosecutors say a Tennessee man has been sentenced to six months in federal prison for burning a wooden cross at the Anderson County home of an interracial couple.

U.S. District Judge Thomas W. Phillips handed down the sentence to 50-year-old Steven D. Archer of Heiskell, Tenn., on Friday after his conviction last July of willfully interfering with the couple's federal housing rights because of their race. The couple lived in a home on his family's property.

In a pair of cases decided in 2003, the US Supreme Court held that cross-burning was protected "speech" when a cross was burned at a Klan rally, not directed at anyone in particular, but it can be proscribed and punished when it is a threat.  The opinion in Virginia v. Black is here.  CJLF's brief in that case (mainly on the joined Elliott/O'Mara case) is here.

Illinois Repeal of Capital Punishment:  Following up on yesterday's post, Illinois Gov. Pat Quinn signed legislation yesterday putting an end to capital punishment in the state, making it the third state to abolish the punishment since 2007.  Quinn commuted the sentences of the state's remaining death row inmates to life in prison without parole.  The law becomes effective July 1, 2011.  State Senator William Haine, one of several Democrats to oppose repeal, said Quinn should have pushed for a statewide debate and a referendum on whether to keep capital punishment.  "This removes a remedy of the people of Illinois for great and evil acts of a unique kind: wanton cruelty, terrorism, rape and murder, the butchery of small children, mass murder," said Haine. "It removes a remedy for the community to seek the penalty of death in which someone forfeits one's life for these great wrongs committed to innocent people."  Matt Smith of CNN has this story.

Federal Prosecutors to use "Silent Witness" Procedure in Leak Trial:  Josh Gerstein of Politico reports on a courtroom tactic federal prosecutors are seeking to use to keep secret evidence from the public in the trial of a former senior National Security official, Thomas Drake, who's accused of illegally keeping classified documents at his home, lying to FBI agents investigating the case, and destroying evidence.  The "silent witness" procedure, allows courtroom to be kept open but sensitive evidence is referred to in a code only the judge, lawyers, defendant, and jury can understand.  "The evidence is presented in a public courtroom, but none of the participants are able to talk about what they're reading out loud or show the evidence, yet it's taking place in a so-called open court proceeding," said Jay Ward Brown, a media lawyer in Washington.  The last time the procedure was permitted at trial was in 2005 in the case of an Al Qaeda operative accused of plotting to kill President George W. Bush.  In this case the Judge Richard has yet to rule on allowing it.

Bill Proposed in Connecticut to Collect DNA From Felony Arrestees:  Debra Bogstie of NBC Connecticut reports Jayann Sepich, the mother of a murdered New Mexico woman, is urging Connecticut state lawmakers to pass a bill requiring DNA to be collected from suspects arrested for serious felonies.  As of now, Connecticut requires DNA samples to be taken only from convicted felons.  Sepich's daughter Katie was 22 when she was beaten, raped, and strangled in New Mexico.  The case went unsolved for three-and-a-half years until the suspect was convicted of another crime and was forced to submit a DNA sample that ended up matching Katie's case.  Sepich says that if the sample had been collected upon arrest, the case would have been solved three months after her daughter's death and would have saved police about $200,000 in investigatory costs.  If the bill is passed, Connecticut would be the 25th state to collect DNA samples after serious felony arrests. 

Rhode Island Town Fights the Early Release of Child Killer: Abby Goodnough and Katie Zezima of The New York Times report on the possible early release of Michael Woodmansee, who was convicted of killing a 5-year-old Rhode Island boy in 1975. Woodmansee lured the boy into his home and stabbed him to death. The boy's bones were later discovered in Woodmansee's house. Woodmansee was also charged with the attempted murder of a 14-year-old paperboy. South Kingstown police chief Vincent Vespia, who has read Woodmansee's journal detailing his crimes, says that the shortening of his sentence is "mind-boggling." See prior post here. John Foreman, Jason's father, has threatened to kill Woodmansee if he is released. Locals have planned a rally at the Rhode Island Statehouse in protest to the "earned-time law."

Ohio Carries Out Nation's First Pentobarbital-Only Execution: Jim Provance of The Toledo Blade reports Johnny Roy Baston was pronounced dead at 10:30am this morning, becoming the first inmate in the U.S. to be executed solely by a dose of pentobarbital, a powerful anesthetic. See Kent's post here. Baston was convicted of murdering Chong-Hoon Mah, a former South Korean journalist who emigrated to the U.S. and owned a local shop in downtown Toledo. For 17 years Baston admitted only to the robbery of Mr. Mah and maintained that another man had killed him. But on Friday, the Ohio Department of Rehabilitation and Correction said that Baston had confessed to the slaying after his legal team and family arranged for him to have a polygraph test. Governor John Kasich denied Baston's petition for clemency, after the Ohio Parole Board unanimously recommended against it.

Two California Death Row Inmates Die in One Week:  The Associated Press reports California death row inmate Richard Ray Parson, 67, died last week from natural causes while awaiting execution.  Parson was sentenced to death for the 1994 murder of Theresa Schmiedt, the mother of an inmate Parson met in prison.  Parson beat her to death with a claw hammer and stole her purse and bank cards.  The Associated Press also reports a second California death row inmate, James Van Pelt, 54, died over the weekend of natural causes while awaiting execution for the 1985 torture and murder of Frank Aguilar, whom Van Pelt mistakenly thought had killed one of his friends.  54 inmates have died on California's death row since the state reinstated the death penalty in 1978.  13 have been executed.

Convicted Murderer Charged with Cold Case Slayings:  Meghan Barr of the Associated Press reports that convicted murderer Joseph Harwell, 50, of Ohio was charged today with two additional cold case murders.  A DNA hit linked Harwell, currently serving time for a 1997 murder, to the body of Mary Thomas, who was discovered raped and beaten to death in an abandoned building in 1989.  DNA also linked Harwell to the rape and murder of Tondilear Harge, found in an empty lot in 1996.  Cuyahoga County Prosecutor Bill Mason states this is the second serial murderer being investigated in Cleveland's east side, after the bodies of 11 slain women were found in the home of Anthony Sowell in 2009.   

Investigators to Search for More Victims of East Coast Rapist:  John Christoffersen and Matthew Barakat of the Associated Press report  that 39-year-old Aaron Thomas, the suspected "East Coast Rapist," made his first court appearance in a Connecticut courtroom on Monday on charges of raping a woman in front of her baby in 2007.  Investigators say DNA from a discarded cigarette butt links Thomas to rapes in at least four states along the east coast, and possibly additional unreported attacks.  Prosecutor David Strollo also alleges Thomas asked police "Why haven't you picked me up sooner? and "What took you so long to get me?"  Investigators claim Thomas could have been caught years ago if Virginia permitted "familial DNA" testing, used to identify a suspect from a family member's DNA sample, because Thomas had a family member with a sample in a police database.  Familial DNA testing is barred in most states, though Virginia is now moving closer to allowing it.

Jurors Speak About Life Sentence for Cop Killer:  Jeremy Kohler of STL Today reports on two jurors who claim the life or death decision for convicted murderer Todd Shepard was roughly split early on in deliberations.  Shepard was convicted of shooting to death Missouri police Sergeant Michael King.  On the witness stand, Shepard told jurors he had no remorse for the killing and that he and some friends had talked for years about killing an officer to spark an anti-government revolution.  The jurors report that on Friday, they went home with a 10-2 vote in favor of a life term.  On Saturday, the two voters for a death sentence returned to court to vote for a life sentence, with one of the voters allegedly in tears as she switched.  In Missouri, if the jury cannot reach a unanimous sentencing verdict, the decision goes to the judge. 

The US Supreme Court's Monday orders list is here.

One civil case was taken up: Golan v. Holder, regarding copyrights.  Kind of odd for the AG to be the respondent in a copyright case.  The second respondent is the head of the Copyright Office, which makes more sense.

Cases turned down:

Idaho v. Shackelford, No. 10-589, involving a state supreme court's stretch of Ring v. Arizona, was turned down.  That's not terribly surprising, as the decision was intertwined with state law.

Missouri v. Garcia, 10-718, involving fugitives and speedy trial.

Brown v. Valdivia, No. 10-848, on parole hearings and confrontation.  Not at issue in this petition was another point on consent decrees and changes in state law.  The state prevailed in the Ninth Circuit on that point, with some help from CJLF's amicus brief.

Three cases on bribery:  Rast v. United States, Pugh v. United States, and McNair v. United States.

No action (apparently relisted):

Maples v. Thomas (formerly Allen), on procedural default and lawyers who don't notify the court of change of address.

Felkner v. Jackson, on Batson peremptory challenge issues.

And last but not least:

It is ordered that Christine Luchok Fallon be appointed Reporter of Decisions of this Court to succeed Frank D. Wagner, effective March 3, 2011, and she is charged with the duty of reporting the decisions of the present Term which have not been reported prior to March 3, 2011.

Congratulations to Ms. Fallon.

Update:  John Elwood discusses the relists at SCOTUSblog and Volokh Conspiracy.  He opines the Felkner "may be under consideration for summary reversal."

The Supreme Court today allowed the use of civil rights actions under 42 U.S.C. §1983 for postconviction DNA testing.  The opinion in Skinner v. Switzer, No. 09-9000, is here (6-3: Ginsburg, Roberts, Scalia, Breyer, Sotomayor, Kagan; dissent Thomas, Kennedy, Alito).

In-prison drug abuse programs are something that many people think we need more of.  However, given prisoners' propensity to file lawsuits over every microscopic detail of life within prison, does having a program include not only the cost of the program but also the cost of litigating every prisoner gripe about it?  Maybe not, even in the Ninth Circuit.  Today, that court held in Reeb v. Thomas,

This case requires us to decide whether a district court has subject matter jurisdiction to review the Bureau of Prisons' ("BOP") individualized residential drug abuse program ("RDAP") determinations, a question of first impression in this Circuit....  Because we hold that 18 U.S.C. § 3625 precludes judicial review under the Administrative Procedure Act ("APA") of the BOP's individualized RDAP determinations made pursuant to 18 U.S.C. § 3621, we vacate and remand to the district court.

Reeb's specific gripe, BTW, was, "After exhibiting disruptive behavior in group counseling sessions on several occasions, Reeb was expelled from RDAP on April 2, 2008."

This is only a panel decision, though, so the en banc Ninth Circuit can still impose a litigation burden on the program.

Seven years ago, the Supreme Court revamped the jurisprudence of the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004).  No longer would the admissibility of a hearsay statement of an unavailable witness depend on its reliability.  Instead, the statement would be excluded if it was "testimonial" in nature.  If not, its admissibility is a matter for the jurisdiction's hearsay rule.  What the heck does "testimonial" mean?  They would work that out later.

Today in Michigan v. Bryant, the high court addressed whether on-the-scene statements from a wounded and dying shooting victim are "testimonial."  The answer is "it depends," and it depends on quite a lot.  The test is whether the "primary purpose" of the question is to deal with the emergency as opposed to gathering evidence for prosecution of the perpetrator.  As in Fourth Amendment law, the circumstances to be examined are objective, not probing the subjective intent of police officers. 

Justice Sotomayor, for the majority of five, wrote a long and fact-intense opinion explaining why this case passed the test.  Justice Thomas, splitting with Justice Scalia on this point, wrote a brief concurrence in the judgment with a simpler test.  The on-the-scene questioning bears no resemblance to formal testimony or a deposition or affidavit.  "This interrogation bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate."

Justices Scalia and Ginsburg dissent.  So much for predictable "liberal v. conservative" labeling.

Justice Kagan was recused, having appeared as amicus in support of the state while SG.  See docket.

Congrats to the Wayne County (Detroit) Prosecuting Attorney's Office.

The title of this post is the title of a commentary in NLJ's Supreme Court Insider.  Unfortunately, it's behind the paywall.  The title is certainly correct.

David Savage in the LA Times notes the reason Justice Thomas rarely participates in the verbal banter.  In his view, cases are decided on the briefs, and oral argument is mostly for show.  Savage reports, "On occasion, the [other] justices say, the answers they hear persuade them to change their decision."  Perhaps, but I think that is very rare.

In any case, on a nine-member court very little, if anything, is lost by one member not peppering the lawyers with questions.  Eight is enough, and probably too many.

Linton Weeks has this interesting story at NPR on Quiet People, including, inter alia, Justice Thomas, George Harrison, and of course President Coolidge.

The WaPo has this editorial with some refreshing evenhandedness regarding Supreme Court Justices appearing at events with their expenses paid by the organization.  They note that Justices Scalia and Thomas have been criticized for such events at conservative organization but Justices Breyer, Ginsburg, and Sotomayor have done the same at events sponsored by liberal organizations.

The WaPo's bottom line is that they think there is some appearance of impropriety in this and suggest that the taxpayers pay the expenses.  On that point I disagree.  There is nothing at all wrong with inviting someone to speak and just reimbursing expenses with no net profit to the speaker.  I have been a guest speaker at such events, and it is definitely not a vacation or a benefit to the speaker.  Preparing for the event, traveling to the event, and speaking at the event is work, and the travel expenses paid by the organization are rarely greater than the value of the speaker's time.  Only once in my experience, for an overseas trip, has the value of the trip even been close to the value of the time.

In nearly all cases, it is clearly a matter of the speaker doing a favor for the organization, not the organization trying to curry favor with the speaker.  This is much ado about nothing.

I have previously noted that some people are so far off to one side ideologically that they lose the ability to see where the center is.  For example, there is Goodwin Liu claiming that Samuel Alito is too far out of the mainstream to be confirmed and then putting himself up for confirmation.

With this thought in mind, we read with interest this Flagpole interview with Dahlia Lithwick, who covers the Supreme Court for Slate.  The interview eliminates any doubt, if indeed any remained.  Ms. Lithwick has absolutely no concept where the middle of the road is.  Regarding judicial nominations, she says (emphasis added):

It goes to [the idea that] the center has moved. I mean, the center has moved so far to the right that anybody who's... marginally to the left of Stephen Breyer is, you know, a radical. You see that in Obama's judicial picks: one person he put up who was moderately liberal was Goodwin Liu in California, who was perfectly analogous to most of the people on the Right that Bush put up. But he's been blocked, and excoriated; his hearing was just a disaster... he's been sort of painted as [being] to the left of Thurgood Marshall: a pot-smoking, hemp-wearing hippie. And, you know, he's a renowned academic... So, I think it's that ability to say, anyone who isn't in the center--even though the center isn't even in the center--is a radical and a socialist who doesn't love this country is just another really effective way of moving the conversation to the right.

But of course the center is the center by definition.  The survey marker of the center is the median American voter, the one who had a hard time choosing between Bush and Gore in 2000.  To be "renowned" in academia when the median academic is at least one standard deviation to the left of the American center, maybe two, is not any kind of indication of mainstreamness. 

While Glenn Beck et al. do get overheated with their rhetoric, it is absurd to suggest that comes exclusively from one side.  (Has anyone on Fox News referred to a female pundit of opposing views as a "bag of meat"?  An MSNBC commentator did.)  It is absurd to suggest that attacks on judicial nominees of the present Administration are worse than the savage attacks on Clarence Thomas, Miguel Estrada, or other Republican nominees.  Indeed, it is absurd to say that attacks on Liu are even as bad as Liu's own attack on Alito, much less to say they are worse.

BTW, I haven't heard anyone call Goodwin Liu "a pot-smoking, hemp-wearing hippie."  I have heard people say he is way out of the mainstream, not moderate, mainly because that is true.  The suggestion that he is no further off center than the typical Bush appointee is preposterous.

But the real howler comes with her discussion of the Supreme Court press corps.

I mean, is it a good thing or a bad thing that we still cover the Court in the voice of Linda Greenhouse? That is, dispassionate and neutral.

Neutral?  Linda Greenhouse? That isn't just funny.  That is laugh until your sides ache with tears rolling down your cheeks funny. That is turning blue because you are laughing so hard you can't inhale funny.

Ms. Lithwick lives in an ideological Bizarro World and doesn't know it.  It is one thing to be out on the fringe and well aware you are on the fringe.  It is quite another to be unaware of your position.

Conservative Justice Clarence Thomas was, as he famously said at his confirmation hearing, the target of a "high tech lynching."  Tagging along with the lynching party was liberal hero Sen. Ted Kennedy, who watched in amusement as his colleagues grilled Thomas about his supposed harrassment of an attractive young woman, Anita Hill.  As I recall, Kennedy himself said little or nothing  --  a wise decision,  given that his own most famous encounter with an attractive young woman was to drown her.

As a recent gathering of progressives has now reminded us, a "high tech" lynching is not the only kind.  After gushing for more than a week about how "civility" is urgently needed in the wake of the grievous wounding of Rep. Giffords and the assassination of Chief Judge Roll, progressives gathered in California to protest a meeting of conservative business leaders.  Civility was not really their thing; shouting obscenities was.  A provocateur from Fox News started asking, among other things, what they would like to see done about Justice Thomas.

The answer, from the "civility" crowd, was "string him up."

Don't believe it?  I don't blame you, but see for yourself. 

Hat tip to John Hinderaker at Powerline. 

Sarah Avery reports for McClatchy Newspapers, "A toddler's inability to exert self-control appears to predict trouble later in life with substance abuse, crime and money mismanagement, reports a team of researchers that include Duke University psychologists."

The psychologists recommend early intervention to improve a child's self-control.

In a simpler age, that was called disciplining your kids.

BTW, the lead researcher is Terrie Moffitt, whose work is cited extensively in CJLF's brief in Graham v. Florida.  Moffitt's work shows that juvenile offenders should not be lumped together in one mass.  Some offend briefly in adolescence and then desist.  Others are life-course offenders.  The Court majority chose to ignore this work, although it is mentioned in Justice Thomas's dissent.

The full article is here.

Lee Ross of FoxNews has this story on the uncertain attendance of the Supreme Court Justices at tomorrow's State of the Union Address.  As of Friday, a court spokeswoman couldn't confirm attendance plans for any of the nine, but several Justices have made clear their feelings on the issue:

Chief Justice Roberts: "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there."

Justice Alito:  "For many years the more senior members of the Supreme Court, Justice [John Paul] Stevens before he retired, Justice [Antonin] Scalia, stopped the practice of attending State of the Union addresses because they have become very political events and very awkward for the justices. . . We have to sit there like the proverbial potted plant most of the time.  And we're not allowed to applaud--and those of us who are more disciplined refrain from manifesting any emotion or opinion whatsoever."

Justice Thomas:  "I don't go because it has become so partisan. . . And it's very uncomfortable for a judge to sit there.  There's a lot that you don't hear on TV: the catcalls, the whooping and hollering and under-the-breath comments.  One of the consequences is now the court becomes part of the conversation, if you want to call it that, in the speeches.  It's just an example of why I don't go.

Justice Scalia:  "It is a juvenile spectacle, and I resent being called upon to give it dignity. . . It's really not appropriate for the justices to be there."

Justice Breyer:  "I think it's very, very, very important -- very important -- for us to show up at that State of the Union, because people today, as you know, are more and more visual. . . I'd like them to read, but they are visual.  And what they see in front of them in that State of the Union is the federal government, every part -- the president, the Congress, the cabinet, the military, and I would like them to see the judges, too, because federal judges are also part of that government.  And I want to be there."

The US Supreme Court decided a crime-related civil procedure case involving qualified immunity in Ortiz v. Jordan, No. 09-737.  Lawyers for officers need to appeal denial of summary judgment before trial, not after.  After trial, they need to ask for judgment as a matter of law under FRCP 50(b) to take that issue up on appeal.  Opinion by Justice Ginsburg 6-3-0.  Justices Thomas, Scalia, and Kennedy do not think the Rule 50 question is properly presented.

The Court granted certiorari in two criminal cases:

The Michigan SG continues on a roll with Howes v. Fields, No. 10-680 addressing Miranda questions left hanging in Maryland v. Shatzer last term.  When a prisoner is in prison or jail for an unrelated offense, under what circumstances is he in "custody" for Miranda purposes when he is brought out from the general population and questioned by police officers?  When Miranda was still new, Mathis v. United States, 391 U.S. 1 (1968), a characteristically terse Hugo Black opinion, arguably decided that custody is custody.  Justice White thought that was a "cavalier" conclusion.  Subsequent decisions, including Shatzer, cast some doubt on Mathis, but the Sixth Circuit in Fields thought the state court opinion was an unreasonable application of it.

Reynolds v. United States, No. 10-6549, is a challenge to the Sex Offender Registration and Notification Act (SORNA), including a federalism challenge that Congress exceeded the bounds of its enumerated powers.  Third Circuit opinion rejecting the challenge is here.

Philly Abortion Doctor Ran "House of Horrors:  The Philadelphia Inquirer has this disturbing story on this morning's arrest of former Doctor Kermit Gosnell, charged with the murders of a 41-year-old woman and seven babies.  Prosecutors alleged Gosnell ran a late-term abortion clinic out of his Philadelphia medical clinic, permitting untrained and unsupervised workers (including a 15-year-old girl) to administer sedatives to patients.  41-year-old Karnamaya Mongar allegedly died from an anesthetic overdose prescribed by Gosnell.  Prosecutors also allege Gosnell delivered the seven infants live, then severed their spinal cords with scissors.  In what is being described as a "house of horrors," police officers discovered bags and bottles of aborted fetuses scattered throughout Gosnell's office. 

Victim's Family to Sue Over Commuted Sentence:  The family of victim of Luis Dos Santos is expected to file suit against former Governor Schwarzenegger, reports The Sacramento Bee.  The lawsuit stems from the Schwarzenegger's eleventh hour prison sentence commutation of Santos's convicted killer Esteban Nunez, the son of a former Assembly speaker.  (Prior post here.)  Santos's family claims the former governor violated their constitutional rights under "Marsy's Law," a voter-approved constitutional amendment mandating that crime victims and their family members receive advance notice of parole hearings.

New Forensics:  The BBC has this article on a new method to help catch sex offenders by detecting condom lubricant on crime scene fingerprints.  Dr. Simona Francese of Sheffield Hallam University stated: "Offenders are increasingly aware of forensic issues and it is common now for condoms to be used and removed from the scene of a sexual assault. . . If condom lubricant can be detected in fingermarks it would improve the evidence for the prosecution by establishing the assailant's presence at the scene and, crucially, having had contact with a condom."

Trial Starts in Deadly Ohio Arson Case:  Thomas J. Sheeran of the AP reports jury selection began today in the case against Antun Lewis, accused of setting a 2005 house fire that killed nine people, including eight children, at a birthday sleepover.  The case is being heard in federal court, after prosecutors argued the house set ablaze was involved in interstate commerce via a federal rent subsidy.  Lewis faces a life sentence if convicted, but is ineligible for the death penalty as a judge already deemed him mentally disabled.

Staff writer Robert Barnes has this piece in The Washington Post, discussing a recent study on laughter in the U.S. Supreme Court.  Building on a previous study, Texas litigation consultant Ryan Malphurs analyzed the "laughters" during oral argument in the 2006-2007 term, determining Justice Scalia to be the comedian of the bench, with Justice Breyer a far second.  Justice Ginsberg, Justice Alito, and Justice Thomas (who does not speak during oral argument) finished last.  In his published results " 'People Did Sometimes Stick Things in My Underwear': The Function of Laughter at the U.S. Supreme Court," (so named after a notable question from Justice Breyer), Malphurs writes:

Because the Courtroom is a site of significant debate and argument, we would expect the justices' laughter to challenge the position of advocates or each other, functioning as control and resistance. However, after considering the four areas of interaction, readers will recognize that the justices do not use laughter to reinforce control or resistance within the Courtroom; instead the justices' laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.

Hat tip to How Appealing.

Leroy White was executed by the State of Alabama yesterday.  He killed his estranged wife, Ruby White, with a shotgun in 1988.  Keith Clines of the Huntsville Times has this report.

As is common in last-minute capital appeals, White had two petitions to the Supreme Court.  White v. Culliver, Warden, No. 10-8367 sought review of the decision of a lower federal court, and White v. Alabama, No. 10-8382 sought review of the decision of the state high court.

The statute on stays pending Supreme Court review, 28 U.S.C. §2101(f) gives the power to grant a stay to individual Justices, but it was settled in 1807* that a power given by law to individual Justices may be exercised by the full Court.  In capital cases, the individual Justice assigned to the circuit regularly refers the application to the full Court whenever there is time.

In this case, the execution was held up when Justice Thomas, the Justice assigned to the Eleventh Circuit, granted a stay individually, apparently to allow time for the full Court to consider the application.  The claim involved ineffective assistance in plea bargaining, an issue the Court is actively considering in other cases.  The Court subsequently denied the stay and certiorari petition, without dissent, and lifted the stay previously issued.  The execution went forward about 3 hours later than scheduled.

The case also illustrates one reason why the death penalty is less often imposed in domestic violence cases.  The victim's daughter is also the perpetrator's daughter, and she was opposed to the execution. 

* Ex parte Bollman, 8 U.S. 75 (1807), a case arising out of the Aaron Burr conspiracy.

In the federal system, who has the authority to decide whether and under what circumstances persons previously convicted of crimes will be allowed to possess guns, bullet-proof vests, and similar items that can be used to commit crimes or to defend against them?

Today, in Alderman v. United States, the U.S. Supreme Court declined to review a decision of the Ninth Circuit upholding a federal statute which forbids persons previously convicted of crimes of violence to possess "body armor."  Justice Thomas, joined by Justice Scalia, dissented, arguing the Court should take the case.  The federal law is supposed to come within the power to regulate interstate commerce because it requires that the body armor have moved in interstate commerce at some point.  That is a very tenuous hook, under some relatively recent* Supreme Court precedents, Lopez and Morrison.  See this prior post.

I have long contended that enumerated powers and not the Second Amendment was the way to go after Congress's more extreme limitations on firearm ownership (e.g., a lifetime ban for a single misdemeanor conviction of domestic violence).  The fact that only one other Justice joined the opinion is somewhat surprising, but a Justice's decision not to join an opinion such as this does not necessarily indicate disagreement on the underlying point.

Particularly in light of the tragedy in Tucson, let me make clear that I am not taking a broad stand against restrictions on firearm ownership.  Some restrictions are needed, obviously.  However, I do believe that these decisions come within the state's authority in our federal structure.

The Ninth Circuit today put some reasonable limits on the use of equitable tolling to extend the reach of its now-discredited precedent on late-filed federal habeas petitions.

State prisoners have one year to file their federal habeas petitions after their state direct appeals are denied, but the time is tolled during the pendency of any "properly filed" state-court collateral reviews.  Is a state collateral petition "properly filed" if it is untimely under state rules?  The Ninth said yes in Dictado v. Ducharme, 244 F.3d 724 (2001), effectively allowing every inmate to give himself extensions of time by filing untimely state petitions, extending his federal deadline by the length of time the state court takes to get around to dismissing.  The Supreme Court decided otherwise in Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Do inmates get "equitable tolling" claiming they were relying on Dictado before its demise?  Up to a point.