Results matching “thomas”

Justice Sotomayor joined the Court's 6-3 majority today in Barber v. Thomas, upholding the Bureau of Prisons' method of computing good time credits.  The Bureau uses the actual time the defendant has been in jail; the defendant had wanted the computation based on the inevitably longer period to which he was sentenced.

The case is not a blockbuster, although it is marginally significant for the roughly 200,000 federal inmates.  The principal significance for the rest of us is that Justice Sotomayor voted for the government in a case where an "empathy"-driven judge (see, e.g., Justice Kennedy and his sentiment-laden writings in Graham, Roper and Kennedy v. Lousiana) could easily have gone the other way.

Unsurprisingly, Sotomayor voted as Justice Souter surely would have in Graham.  But today's case is different.  It is difficult to believe that Souter  --  ever looking to eke out a way to boost criminal defendants  --  would have voted with today's majority.  This is the frist criminal case in which I am certain that Sotomayor cast a more "consevative" vote than Souter would have.

Ladies and gentemen, there may yet be hope.

No major action on the criminal law front from the U.S. Supreme Court this morning. Barber v. Thomas upheld the U.S. Bureau of Prisons' method of computing good time credits. The decision is 6-3; opinion by Justice Breyer, dissent by Justice Kennedy joined by Justices Stevens and Ginsburg. We will likely post more on this case later.

In U.S. v. Juvenile Male,* the Court also certified a question to the Montana Supreme Court to help it decide if a case on retroactivity of sex offender registration is moot.

Update: John Elwood at VC has this post on two "relisted" capital cases, Ryan v. Libberton, 09-1208, from Arizona and Sears v. Upton, 09-8854, from Georgia.  Elwood notes that in the Arizona case, both of the State's questions presented begin "Did the Ninth Circuit err ...."

* Come on now, federal courts, surely you can think of a better way to name your juvie cases.

The NYT's "Room for Debate" feature has a short piece by yours truly on Graham v. Florida and two pieces by people on the other side, Marc Mauer and Paul Butler. Here is the final paragraph from my piece:

Chop by chop, judicial activism slowly removes the important decisions of society from the democratic process and carries them off to the marble palace of the unaccountable judiciary. Whether one agrees or disagrees with the sentence in this case or even with the rule made in this case, we have all lost a bit of our constitutional right of self-government today.

Butler makes the case that Senators who believe in justice should be extremely skeptical of anyone nominated to the courts by President Obama, probe deeply their views on criminal law, and not accept evasions or platitudes for answers. That isn't the point he meant to make, of course. He actually wrote this:

This case also sends a message that President Obama knows how to pick justices with his same progressive values. Liberals had some concern about where Justice Sotomayor, the former prosecutor, would be on criminal justice issues, but in this case she signed a separate opinion with the two most liberal members of the court. That opinion basically says "Clarence Thomas, shame on you!"

So maybe Ms. Kagan's liberal critics should chill out some. The president, when he interviews prospective Supreme Court nominees, seems to be doing a fine job of either speaking persuasively or listening deeply.

Hans Bader has this piece on examiner.com focusing on the [mis]use, again, of "international opinion" for the interpretation of the Constitution of the United States.

Numerous news outlets are reporting that President Obama has chosen Solicitor General Elena Kagan, 50, to replace retiring Justice John Paul Stevens.

I don't know that much about Kagan and have never met her.  What little I do know is this:  She is said to have a relatively high regard for executive power (perhaps related to her service in Clinton's White House Counsel's Office); she vociferously opposed military recruitment at Harvard, where she was Dean of the Law School, on the stated grounds that President Clinton's "don't-ask-don't-tell" policy towards gays was unfair; she is regarded by some conservatives as having a relatively open mind and taking law more-or-less seriously; and she has been rumored to be gay herself, a rumor denied by the White House and for which there is no evidence of which I am aware.

Ms. Kagan has no judicial experience and very little courtroom experience of any kind.  She is the first non-judge to be nominated since Richard Nixon nominated Powell and Rehnquist.  She would be the fourth woman on the Court.  There may be significant recusal issues in the early part of her tenure, given her involvement in cases in which the United States is a party.  If she has a view of criminal law, I don't know about it.

Off the seat of my pants, I would guess she'll be a standard-issue, Ivy League liberal no worse, or not much worse, than Justice Stevens.  If she says anything enlightening at her confirmation hearing, I'll be flabbergasted.

My astute friend and former Supreme Court law clerk Ed Whelan has written extensively, and critically, about Ms. Kagan.  See http://by110w.bay110.mail.live.com/default.aspx?wa=wsignin1.0.

UPDATE:  Scott Johnson has more on Kagan here, http://www.powerlineblog.com/archives/2010/05/026264.php.  Scott reminds us that Kagan did sign the amicus brief challenging the Solomon Amendment,  which was designed by Congress to deter universities receiving federal funds from barring military recuiters. The brief's main argument might charitably be characterized as absurd, accountng for its 8-0 rejection by the Supreme Court (Justice Alito did not participate (hat tip to federalist)).  Ordinarily, an amicus brief would be looked upon as being filed in a representative capacity, but it seems clear that this one reflected Kagan's personal beliefs.

Ed Whelan has added thoughts on Kagan, http://bench.nationalreview.com/post/?q=NzlkMzU1ODg0N2VmYWEwN2E0YzFmOTQwNTdkYjY1MjA=.   Particularly noteworthy are Ed's observations that Kagan's nomination is in jarring contrast to the President's populist rhetoric about wanting someone with "experience in everyday life," whatever that might mean.  As a former White House aide and Harvard Dean, Kagan might have many qualities, but being the person next to you in the grocery store line is not one of them.

Second, Ed points out that some of Kagan's little "real world" experience in the law was as a paid adviser to none other than Goldman Sachs.  That would probably make a conservative nominee radioactive, but I doubt it will hurt Kagan.

My last observation for now is that, in one way, the White House played this beautifully.  They leaked this on Friday, in all likelihood by way of a trial balloon to see if any skeletons in the closet would emerge over the weekend.  Apparently none did.  Second, the White House had previously leaked lists mentioning somewhat edgier candidates like Sidney Thomas, Harold Koh and Deval Patrick.  I suspect this was designed to make moderates and conservatives breathe a "sigh of relief" that it is "only" Elena Kagan, thus deflating the potential intensity of resistance to her. 

Jess Bravin has this informative but depressing story regarding how judges get on the Supreme Court shortlist. Having former clerks in key places in the Administration is a significant factor.

"It's not what you know; it's who you know," cynics have long maintained. The depressing reality is that there is a lot of truth in that statement.

I was genuinely astonished when the news broke that Ninth Circuit Judge Sidney Thomas was under consideration. I could not think of a single good reason why. "Geographical diversity" has been mentioned, but a very large number of judges fit that bill. Thomas's travesty of an opinion in the Summerlin case, discussed here, makes him an easy political target and makes untenable any claim that he is a great intellect. So how did he make it to the very select list of persons to be personally interviewed by the President? According to Bravin, "Yet although he is a lifelong Montanan, he has his own connection on Pennsylvania Avenue: Former clerk Ian Bassin now works in the White House counsel's office."

The influence of former clerks in this process is undesirable for multiple reasons. First, it gives an advantage to federal appellate judges as opposed to other candidates, especially state supreme court judges. Many states wisely have their appellate judges assisted by career staff research attorneys rather than wet-behind-the-ears recent graduates. Even for those that do emulate the federal system, the state clerkship is less prestigious and thus its alumni are less likely to land the Administration positions from which they can lobby for their former bosses. The Supreme Court presently has too many former federal judges (9) and too few former state judges (0), and it doesn't look like this is going to get better any time soon.

Second, even among federal circuit judges, the fact that one judge's clerk rather than another's landed the key administration spot is irrelevant to merit. It simply ought not be a factor. But apparently it is.

Ben Feller reports for AP:

President Barack Obama on Thursday interviewed federal appeals court Judge Sidney Thomas of Montana for an opening on the Supreme Court, a person familiar with the conversation told The Associated Press.

The roughly hour-long session at the White House was the first known formal interview that Obama has conducted for the upcoming vacancy on the high court. It is not clear whether Obama has interviewed other candidates in person.

Now that's depressing. The White House should be aware by now that Thomas's opinion in the Summerlin case is both ludicrously wrong and pro-murderer, making an easy target for Republicans to attack and a virtually impossible one for Democrats to defend. (See prior post.)

Do they not know, or do they not care?

Feller refers to Thomas as "well respected within legal circles." I  do not know a single prosecutor or victims' advocate within the Ninth Circuit who would agree with that. I guess he must be talking with other "circles."

When a judge on a multi-judge court believes the court has no jurisdiction but the majority decides otherwise, what should that judge say about the merits? One school of thought is that he should say nothing, having concluded that the court has no authority to render a decision on the merits. That is the path taken by Justices Scalia and Thomas in today's memorial cross case, Salazar v. Buono.

I appreciate the virtues of consistency, but in this instance I think consistency needs to yield to the institutional function of the court. The primary reason why the Constitution provides for "one supreme court" is have definitive answers to legal questions. Splintered opinions that fail to provide such answers constitute a failure of the institution. Many times judges must accept decisions they believe to be incorrect. Lower court judges must accept the decisions of higher courts. Federal courts must accept the interpretation of state law by the state high court.

The correct course, in my view, is to dissent from the jurisdictional holding but then acknowledge that the decision of the majority is now the law on the jurisdictional point and proceed to the merits. In this case, in my view, Justices Scalia and Thomas should have dissented from part II but then gone on to say whether they concur in part III. If they concurred, part III would be the "opinion of the Court," and there is some good stuff in it.

"Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality." I plan to quote that in future briefs. Alas, I will have to follow the cite with "(plurality opinion)."

Overall, the case is a smackdown of a District Court judge who (1) failed to understand the difference between his injunction and the actual requirements of the Constitution, and (2) failed to modify the injunction when a subsequent enactment (arguably) conflicted with the injunction but not with the Constitution. The case is reminiscent of the recent Ninth Circuit Valdivia case on California parole revocation procedures, except that the Ninth got that one right. (See prior post.) It did strike me as odd, though, that today's opinion lashed the district judge and said almost nothing about the Court of Appeals opinion affirming his order.

When Sonia Sotomayor was nominated for the Supreme Court, I did an analysis of her habeas corpus cases. I focused on those because (1) it is the area I know the most about; and (2) it is an area where federal judges very often chafe at the governing act of Congress, so a propensity to evade a law one dislikes is likely to show up there. (It was a positive review, BTW.)

With the mention of Judge Ann Claire Williams as a possibility, I decided to take a preliminary look at her habeas cases. I will do a more thorough analysis if she is, in fact, the nominee.

There are a large number of noncapital habeas petitions denied on the merits with no oral argument and only a memorandum opinion. This is to be expected. Justice Jackson noted over half a century ago that the Supreme Court "has sanctioned progressive trivialization of the writ until floods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own.  Judged by our own disposition of habeas corpus matters, they have, as a class, become peculiarly undeserving." The situation has only gotten worse since then. I haven't been through this pile of Judge Williams' cases, and I expect it would tell us little if I did.

Capital cases, most of which are habeas cases, are also a good place to look, as no other area of criminal law generates so much judicial activism. I haven't been all the way through the stack yet, but about halfway through I haven't found any howlers. Nothing like, e.g., Judge Sidney Thomas's opinion in the Summerlin case, noted here.

There seems to be a fairly high number of reversals, but some of these cases involve truly ugly facts. See, e.g., Bracy v. Schomig, 286 F.3d 406 (CA7 2002) (en banc) (judge taking bribes in other cases). Judge Williams does not resolve every issue the way I would, but I have not yet found anything that causes real concern. Stay tuned.

I received an email from Curt Levey of the Committee for Justice who wishes to clarify a comment he made about the Goodwin Liu nomination. Here is the full quote:

Everybody expected Obama to nominate liberals to the federal courts, and that's what he's done, but Goodwin Liu is not your typical liberal. He's very far out on the left wing, even in academia. He is an unabashed defender, really advocate, of judicial activism, and add on top of that, the fact that I think everyone knows that Obama would love to groom him for a spot on the Supreme Court. Obama would love to, you know, be able to say that he nominated the first Asian to the Supreme Court. As you know, it's been almost forty years since somebody who was not a judge was appointed to the Supreme Court. So I think you could think of Liu as the Democratic Clarence Thomas. I think everyone knows that he's being groomed to be on the Supreme Court, and you know, that scares people because he's to the left of even Justice Ginsburg.

And here is the NPR version:

"Goodwin Liu is not your typical liberal," says Curt Levey, director of the conservative Committee for Justice. "He's very far out on the left wing, even in academia. So I think you could think of Liu as the Democratic Clarence Thomas."

In the original, Levey compares Liu with Thomas in the sense of being groomed for a Supreme Court appointment down the line. In the NPR version, it appears that he is comparing the two in the sense of being off on one ideological fringe.

Update: If you are going to quote two sentences together that were not together in the original, as an absolute minimum you must indicate that material was deleted with "...".  As of 2:40 p.m. PDT April 20, well over a day after Levey pointed out the misleading nature of the quote, the NPR site has not corrected it.

As noted in Bill's post, the Supreme Court in United States v. Stevens struck down 18 U.S.C. §48. Like everyone else with sense, I have nothing but contempt for both the producers and the consumers of "crush videos." Unfortunately, this is a seriously incompetent bit of legislative drafting. Congress needs to reenact this statute and do it right this time.

Here is what Congress intended to ban, from House Report 106-397:

At a hearing on the bill before the committee's Subcommittee on Crime, a California State prosecutor and a police officer described how they came to learn about a growing market in videotapes and still photographs depicting insects and small animals being slowly crushed to death. While most of this material featured torture to mice, hamsters, and other small animals, their investigation did find depictions of cats, dogs, and even monkeys being tortured. Much of the material featured women inflicting the torture with their bare feet or while wearing high heeled shoes. In some video depictions, the woman's voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.

No dispute there. Unfortunately, Congress defined "animal cruelty" in a way far broader than any sensible definition of that term. Any wounding or killing of an animal that is illegal in the place where the depiction is possessed, even if perfectly legal where it takes place, is included in the definition of animal cruelty. So possessing Field and Stream becomes a crime in D.C., where all hunting is illegal? How about if you take a trip to Spain, go to a bullfight with your video camera, and bring your home video back into the U.S.?

The statute does have an exception for "serious religious, political, scientific, educational, journalistic, historical, or artistic value." Such exceptions make the legality of conduct dependent on a prosecutor's or judge's post hoc determination of what is "serious."  That is passing the buck, and it makes the law vague.

Be careful when you write criminal laws, legislators.  And be particularly careful with those definitions. The legislative definition of a word needs to be reasonably congruent with the general understanding of that word. Sometimes it needs to be somewhat broader to avoid vagueness problems, but it shouldn't be so broad as to include vast swaths of conduct far beyond the normal meaning. And passing the buck to prosecutors and judges is not an adequate solution.

Bill Mears at CNN reports that "government sources close to the selection process ... expect President Obama to make a decision by early May."

Mears' short-listers include the usual three (Kagan, Garland, Wood), plus USCA9 Judge Sidney Thomas, noted previously here and here, Cal. Justice Carlos Moreno, noted last time around here and here, and former Ga. CJ Leah Ward Sears.

Mears notes that Sears has aroused "some unease among liberals." She has been involved with the Institute of American Values, and (horrors!) she is a friend of Clarence Thomas.

The White House's trial balloon of USCA9 Judge Sidney Thomas as a possible successor to Justice Stevens lost a little more helium yesterday with this blog post by SF Chronicle reporter Bob Egelko on the Chron's Politics Blog. He discusses Thomas's "juicy record."

The Constitution Project, an anti-death-penalty organization, has organized a letter with 27 signers to supposedly refute the charge of Ninth Circuit nominee Goodwin Liu's anti-death-penalty leanings. The press release with a link to the letter is here.

If anyone doubts that the Constitution Project is anti-death-penalty, see this debate between their president, Virginia Sloan, and yours truly on the PBS NewsHour site.

The very fact that the Constitution Project is so keen on seeing Liu confirmed says much more than their letter or the signatures on it.

As with other attempts to refute the letters of CJLF and of 42 district attorneys, this letter demonstrates either an inability to read between the lines or, more likely, a willful blindness to what so clearly lies between the lines.

The letter states, as if it were significant, that in the Alito confirmation controversy Professor Liu did not "state that he is opposed to the use of capital punishment or that he would not uphold death sentences as required by law." Of course not. No one who has ambitions for appointment would state that explicitly in public. For anyone who has been involved in this debate, though, the anti-death-penalty position comes through loud and clear in the paper as a whole. On every point on which an argument in favor of the defendant could plausibly be made, Liu makes it. Out of a total of ten cases, he is only willing to concede one was correctly decided in favor of the state.  And this is from a sample of cases already affirmed by the Pennsylvania or Delaware Supreme Court, so the clearly erroneous judgments had already been culled.

We infer attitudes from what people say and do, not simply what they admit. The inference that Liu would continue and even extend the Ninth Circuit's practice of stretching every rule of law to its conceivable limit or even beyond to overturn death sentences is unmistakably clear from his paper to anyone who has been actively involved in this fight over the years.

In their usual faux-neutral style, the Constitution Project claims that "the signatories to the letter includ[e] both supporters and opponents of capital punishment," but I do not see on the letter a single person I recognize as having been active on our side of this fight.  (If anybody sees an actual death penalty supporter, please let me know in the comments or by email.)

I do see on the letter Joseph Grodin, formerly of the California Supreme Court, falsely listed as "retired." He didn't retire; he was booted off by the people, precisely because of his participation in that court's blockade of the enforcement of a law its members disagreed with.

Jan Crawford has this post at CBS on the SCOTUS watch. She thinks the actual short list is still Kagan, Garland, and Wood, and that "some of the people are on the list as a courtesy or as a nod to one group or another and are not likely to be selected."

As to Sidney Thomas, Crawford writes, "fairly or not, he would be a disappointment to those inside the White House who want a 'sure bet' --- a justice who has a track record as a sparkling intellectual who could go toe to toe with Roberts and Antonin Scalia."

The latest buzz from Washington is that no, Hillary Clinton is not on the short list for SCOTUS. (See Bill's post here.) But wait, there's more. Sheryl Gay Stolberg reports on the NYT's political blog, "an administration official said that Judge Sidney Thomas of the federal appeals court in Montana is under consideration."

What are they smoking in the White House?

Sidney Thomas is the author of what is quite possibly the worst opinion ever to issue from the Ninth Circuit, and that is saying quite a lot.  The opinion is Summerlin v. Stewart, 341 F.3d 1082 (CA9 2003) (en banc), reversed sub nom. Schriro v. Summerlin, 542 U.S. 348 (2004). It is a case study in twisting the law to achieve a desired result.

Among the many news stories on Justice Stevens' retirement is this one by Adam Liptak in the NYT. Liptak writes, "He [Stevens] grew disillusioned with the death penalty over the years, announcing in 2008 his conclusion that the death penalty violates the Eighth Amendment."

There is more than a little irony in that. If there is one person in this country who bears greater responsibility than any other for the present state of capital punishment law, it is John Paul Stevens. But Dr. Frankenstein is disillusioned with his monster.

Opposing The Client's Wishes:  Hartford Courant writer Alane Griffin reports on the dilemma facing veteran defense attorneys Patrick J. Culligan and Thomas J. Ullmann, both "vehement" death penalty opponents.  At a competency hearing last Thursday, their client, Steven Hayes, announced his intention to plead guilty to the brutal Cheshire home invasion murders of Jennifer Hawke-Petit and her daughters, 17-year-old Hayley and 11-year-old Michaela. This story by CBS News reporter Sammy Rose Saltzman provides details of the 2007 crime.   At a hearing on Tuesday, Culligan and Ullmann will argue against the court accepting Hayes' guilty plea, although they have already conceded that he was mentally competent to do so.     

Update:   According to this Associated Press report, Steven Hayes' moment of contrition has passed.  After further consultation with his legal team, Hayes has changed his mind and will continue with his plea of not guilty to participation in the Cheshire home invasion murders. 


California AG Race Heats Up:  With just two months to go until the state's June 8th primary, the Democrat front runner, San Francisco DA Kamala Harris, is beginning to face some tough questions about her policies, according to this story by SF Chronicle reporter Marisa Lagos.  Harris' recent decision to drop hundreds of drug cases due to the discovery last month that a crime lab technician may have been stealing and using drug evidence has sparked criticism from one of  the six other Democrats vying for the party's nomination.  Harris' opposition to the death penalty, a plus in San Francisco, "will be a major handicap in the general election against a strong Republican," according to one Democratic consultant. 

Nevada Death Row Delays: "Why is he still alive after 30 years? He still is on death row. Time to go." So asks the son of murder victim George Monahan, in this story by Ed Vogel for the Las Vegas Review-Journal. Unfortunately, the story does not explain that the primary hold-up has been in the federal courts.

Notable Supreme Court Petition:  On SCOTUSblog, Erin Miller posts details on "two noteworthy" Petitions for Certiorari to the U.S. Supreme Court.  The first case, Wong v. Smith (09-1031) asks whether habeas relief is available under 28 U.S.C. § 2254(d) when petitioner claims that a state judge unconstitutionally "coerced" jurors to return a guilty verdict by identifying specific evidence in the case as important and instructing them to consider it.  The case involves the conviction of Anthony Smith for burglarizing the home of an aging couple in Sacramento, CA, robbing them, and forcing oral copulation on the wife.  Smith had a co-defendant, James Hinex, and at the conclusion of their joint trial, the jury was deadlocked over the identity of who committed the sex offense.  The judge brought to the jurors' attention the previously-admitted tape-recordings of defendants' post-arrest statements, and advised them to "consider and discuss how this comparison affects your finding" on the question of identity."  Smith was convicted of the sex offense, and the California Court of Appeal concluded the judge had not coerced the jury.  The Ninth Circuit disagreed, and granted Smith habeas relief. 

Sentencing Cases in the Court:  At Sentencing Law and Policy, Doug Berman reports that today, the Court heard oral argument on two fascinating and important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201).  SCOTUSblog has posted transcripts here. Dillon addresses whether, when considering a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), the district court is bound by Sentencing Guidelines policy statements purporting to limit the availability of relief under Section 3582(c)(2).  Barber, on the other hand, addresses what a single phrase within 18 U.S.C. § 3624(b)(1) means when used by the Bureau of Prisons to calculate "good time" sentence reductions for federal inmates.

Three Sixth Circuit Habeas Reversals This Term:  Jonathan Adler notes on Volokh Conspiracy that the "Sixth Circuit is 0-3 in Habeas Cases This Term."  With today's unanimous decision in Berghuis v. Smith, the Court held that the Sixth Circuit had again erroneously concluded that the lower court's decision involved an unreasonable application of clearly established federal law.  This is the third reversal of a Sixth Circuit decision granting a criminal defendant's habeas petition this term.  The first two were Smith v. Spisak and Bobby v. Van Hook.  With the exception of Justice Stevens' opinion concurring with part of Spisak's judgment, Van Hook and Spisak were also unanimous.  In his post, Adler adds that the Court has yet to rule on two cases where the Sixth Circuit granted habeas relief, Renico v. Lett and Berghuis v. Thompkins.  CJLF's Thompkins' brief can be found here.   

Victim Fights for Right to Prosecute: Jordan Weissman reports on National Law Journal that tomorrow, the U.S. Supreme Court will hear oral arguments in Robertson v. U.S. ex rel Watson, "a little-noticed U.S. Supreme Court case that they say could make it much harder for battered women and men to enforce restraining orders against their abusers."  In Washington D.C., victims may bring criminal contempt charges when abusers infringe on a court order.   Petitioner John Robertson seeks to change the rule, and overturn his conviction for violating a restraining order taken out by his ex-girlfriend, Watson.  Robertson's lawyers argue that defendants have a "right to be prosecuted by the government," grounded in the Fifth Amendment's due process clause. Watson's lawyers disagree, they contend there's never been "an established common law requirement -- let alone a constitutional requirement -- that [this type of proceeding] be brought in name of the sovereign."

In a unanimous opinion by Justice Ginsburg, the Supreme Court has reversed a decision of the Sixth Circuit that came close to imposing racial quotas on local procedures for summoning juries. The case of Berghuis v. Smith was decided under the "fair cross-section requirement" of the Sixth Amendment, invented by the Court in 1975.

The local courts had a race-neutral selection system. However, practices such as generous excusals for people with child care or transportation problems had a "disparate impact" reducing the number of black jurors below their proportion in the general population. How would you "fix" that, if you considered it a problem? Must we force people to serve despite their difficulties? Should we "oversample" (i.e., summon more often than random) black persons, thus discriminating against them and imposing a heavier burden on them solely on the basis of their race?

Justice Thomas added a brief concurrence noting that there simply is no such requirement in the Sixth Amendment. The prohibition on racial discrimination in jury selection comes mainly from the Equal Protection Clause, perhaps with some Due Process Clause in the mix. But since no party asked the Court to overrule Taylor v. Louisiana, he would not address that point further. That is one of the downsides to being a nonparty.

Justice Department Requests Public Release of Detainee Decision:  At Blog of Legal Times, Marcia Coyle reports that the Justice Department has asked the U.S. Court of Appeals for the D.C. Circuit to unseal its January decision in Djamel Ameziane v. Barack Obama, et al.  Yesterday, a three judge panel rejected the government's motion.  Two of the judges, Judges Thomas Griffith and Janice Rogers Brown, voted to deny the government's motion, and Judge Douglas Ginsburg voted to publish a redacted version.  Since the D.C. Court of Appeals' decision is under seal, the facts of Ameziane are few and far between.  Coyle was able to piece together some information from a press release prepared by The Center for Constitutional Rights, which has filed briefs on Ameziane's behalf.  That release states  Mr. Ameziane has never been alleged by the U.S. government to have engaged in any acts of terrorism or hostilities," even though he has been at Guantánamo since 2002.

Due Process for Victims:  At CrimProf Blog, Kevin Cole reports that on June 10 and 11th, the National Crime Victim Law Institute will hold its Ninth Annual conference on due process for victims in Portland, Oregon.  The conference program indicates that the conference will include several sessions addressing a victim's right to be heard.  These include: a roundtable discussion on a victim's rights during plea bargaining; A Victim's Right to Be Heard: A Legal and Psychological Analysis of this Critical Right; and How Victim Voice Can Impact the System.  One example of how a victim (or potential victims') voice can impact the system can be found in Kathryn Casey's Women in Crime Ink post, which asks readers to help stop a convicted rapist from receiving parole. 
 

Yesterday, the U.S. Supreme Court heard oral argument in Magwood v. Patterson (09-158), to address whether a 1997 habeas claim brought by a convicted murderer was a "second or successive petition" under 28 U.S.C. §2244(b), when he could have raised the claim in his first habeas petition in 1985. 

In 1979, Magwood lay in wait to shoot and kill Sheriff Grantham in the parking lot of the Coffee County, Alabama, Jail.  He shot Sheriff Grantham three times, once each in the head, face, and chest. He then fled.  As Magwood sped away, he exchanged gunfire with Deputy Thomas Weeks, who witnessed the murder.  Magwood is not challenging his conviction for the murder.  Since 1997, Magwood has been challenging whether he was correctly resentenced to death under Alabama law.  Today's News Scan provides some more details on the procedural history of Magwood's case. 

Tom Goldstein has this piece at the Huffington Post arguing that Goodwin Liu is not so far out of the mainstream that he should not be confirmed.

The truth is that we should not fear the appointment of brilliant and conscientious lawyers like Goodwin Liu, whether those nominees tare on the ideological left or right. Instead, we should encourage them to take these critical appointments. There is a vibrant disagreement in the courts over how to interpret the Constitution, with no consensus on the correct answer. The jurists participating in that debate are not outside of the "mainstream." Nor is Goodwin Liu.

However, there is an elephant in the living room that Tom does not address. Exactly the opposite position was taken before the Senate Judiciary Committee four years ago by none other than Goodwin Liu.

Liu's testimony was precisely that Samuel Alito was too far from the mainstream to be confirmed despite his acknowledged intellectual ability. If we measure in-or-out of the mainstream as absolute value of variance from the American political median, it is beyond reasonable disagreement that Alito is closer to the median than Liu.

The only way to make the contrary argument is to measure from someplace other than the overall American center. If you measure from the median of American academia, then of course Liu would be closer to that center. But that would be a very wrong benchmark to use, and the Senators know it.

"Violence Prompts Debate Over Medical Marijuana":  William Yardley of The New York Times reports on a recent shooting and deadly beating linked to medical marijuana in Washington.  The incidents have prompted law enforcement officials and marijuana advocates to call for changes to its regulations of the drug.  In the past week, a man in Orting, Washington, died after being beaten while confronting people stealing marijuana plants from his property.  This past Monday, a marijuana plant grower shot an armed man who is accused of breaking into his home.  Washington legalized medical marijuana in 1998, and increased violent crimes underscore the conflicts in state policy.  Washington's laws do not require the state to play a formal role in regulating and distributing the drug.  The majority of medical marijuana is distributed through private homes or small offices.  As a result, robberies have become more common in Washington, and tend to be under-reported.  State Senator Jeanne Kohl-Welles, a Democrat from Seattle, said she and another lawmaker would introduce legislation next year to protect access to medical marijuana and protect those who grow it.  It should only protect those who obey the law.  The medical marijuana grower that was involved in the recent shooting, was not in compliance.  He and his girlfriend were entitled to have 50 plants each in the house they shared, but investigators found baked, frozen, and chocolate goods laced with marijuana along with a total of 385 plants in his home.

Off-Topic, But in Honor of St. Patty's Day:  In The New York Times, Thomas Cahill has an op-ed celebrating the Irish, in "Turning Green With Literacy."

Turning 90, and Considering Retirement:  At SCOTUSblog Lyle Denniston reports that on April 20th, Justice Stevens will celebrate his 90th birthday, and become the second oldest Justice ever to have served on the Court.  According to Denniston, April may also be the month that Justice Stevens announces his retirement.  Whether he will or not remains up in the air.  Denniston reports that in a March 8th interview with Jeffery Toobin, Justice Stevens stated that he would make up his mind in about a month.  Denniston believes that if Justice Stevens does desire to retire, he will announce his decision after the Court has completed hearing oral arguments on April 28th.  Justice Stevens may still decided to stay another year.  He reportedly told Toobin, "...I still have my options open...When I decided to just hire one clerk, three of my four clerks last year said they'd work for me next year if I wanted them to.  So I have my options still.  And then I'll have to decide soon."  Denniston also has this post on SCOTUSblog, with more details on Justice Stevens' interview with Toobin.

A History of Presidential Pardon Power:  Sentencing Law and Policy's Doug Berman links to an article by former-U. S. Pardon Attorney Margaret Colgate Love, describing the decline of the pardon power and its hopeful revival.  In her piece, The Twilight of the Pardon Power, Colgate Love examines the pardoning practices in the 19th and early 20th centuries, and discusses how it changed in 1930 to become a tool for restoring the rights of citizenship.  She then examines the reasons for its decline and eventual collapse during the Clinton Administration.  She closes by arguing that President Obama should revive the power, and offers suggestions for how he might do so.

The Department of Justice Defaults to "Openness" :   At Blog of Legal Times, Mike Scarcella reports that today, Attorney General Eric Holder Jr. stated that the Department of Justice has increased the rate of disclosure, and reversed what he called a "disturbing" trend.  The Attorney General stated the department remains committed to the principle that "we make openness the default, not the exception" when it comes to public interest in government records.  At each of the Federal departments, Chief FOIA officers are supposed to submit a finalized report today to the DOJ Office of Information Policy.  DOJ officials said the public will have access to the reports via a DOJ website.  Tony Mauro reports on other D.C. events that will commemorate Sunshine Week, a week aimed at spotlighting and promoting government openness.

The Political Ambitions of a Judge's Wife:  Yesterday, on Volokh Conspiracy, Eugene Volokh commented on the "prominent political role[s]" of Virginia Thomas and Ramona Ripston, the wives of Supreme Court Justice Thomas and Ninth Circuit Judge Reinhardt, respectively.  According to Volokh, Virginia Thomas just founded Liberty Central Inc., a conservative activist group, and Ramona Ripston just stepped down from being head of the Southern California ACLU.  Volokh's comments are a response to Kathleen Hennessey's March 14th article in the Los Angeles Times.  Hennessey reports that some experts believe the political ambitions of wives could give rise to judicial conflicts of interest, but Volokh disagrees. He writes that these prominent political roles are not "particularly pernicious or dangerous:  Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups." 

Chelsea King Killer Violated Parole but Avoided Prison:  At Sentencing Law and Policy, Doug Berman posts a link to a Los Angeles Times article describing how the man accused of killing Chelsea King violated his parole, but avoided being sent back to jail.  In his article, Richard Marosi explains that John Albert Gardner III violated parole in 2007 by living close to a school, but was not sent back to prison because he complied with relocation orders.  The California Department of Corrections and Rehabilitation released a statement yesterday explaining that while Gardner had several minor potential parole violations, the violation of the residency rule could have led to a hearing process with parole officials.  Todd Spitzer, a prosecutor, said the department has eased up on parole violators because of prison constraints. "They were ignoring public safety with one goal in mind: They were trying to solve the prison overcrowding."

Notable Criminal Petitions to Watch:  On SCOTUSblog, Erin Miller has posted its Petitions to Watch for the Supreme Court's March 19 Conference.  Miller provides links to seven cases that Tom Goldstein has deemed to have a reasonable chance of being granted, and three of them address areas of criminal law.  Moran v. United States (09-392) asks the Court to decide whether a Federal Rule of Criminal Procedure, which permits a defendant to comment on "matters relating to an appropriate sentence," entitles a defendant to be notified prior to the pronouncement of sentence that sex offender special conditions of supervised release are contemplated; Kentucky v. Cardine and Curry (09-419) addresses whether the Double Jeopardy Clause bars the retrial of a defendant after the trial court sua sponte declares a mistrial absent manifest necessity and the defendant does not object prior to the actual discharge of the jury; and Beard v. Thomas (09-527), an AEDPA capital case, asks whether Thomas was prejudiced by the absence of supposedly mitigating evidence, when the mitigating nature of that evidence is disputed and he refused to allow any mitigation evidence.

Some Comments on Justice Thomas's Silence:  February 22, 2006, marked the last time Thomas asked a question during oral argument, and on February 22, 2010, Tony Mauro wrote an article on those criticizing Justice Thomas's silence.  Yesterday, Linda Greenhouse joined their ranks with her opinion piece on New York Times' Opinionator blog.  Mauro's post discusses a recent Florida Law Review article, Why Justice Thomas Should Speak at Oral Argument, by David Karp, that argues "[b]y removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court."  Mauro goes on to explain that Justice Thomas may remain silent out of respect for the advocates, and to give them a chance to talk.  Steffen Johnson of Winston & Strawn in Washington, an advocate who appeared before the Court in Holmes v. South Carolina, said Justice Thomas' style "reflects humility on his part."

Revised Supreme Court Rules:  Yesterday, SCOTUSblog writer Adam Schlossman reported that on February 16, 2010, the Supreme Court enacted its revised Rules of the Supreme Court.  The updated rules reduce the number of words allowed in a merits reply brief from 7,500 to 6,000, and change Rules 26 and 34.1 to clarify what must be included on the cover of the Joint Appendix.  The new rules also require the counsel of record to include an e-mail address on the cover of every document filed.  The Court also made changes to Rule 37, clarifying that only an attorney admitted to practice before the Court is permitted to file an amicus curiae brief and that extensions of time for amicus curiae briefs at the merits stage will not be entertained. Other minor changes can be found in the Court's official memorandum.

A Study on "Last Words":  In June 2009, Justice Quarterly published Of Guilt, Defiance, and Repentance: Evidence from the Texas Death Chamber, an empirical article statistically examining what an inmate says right before he is executed.  The study, conducted by Stephen K. Rice, Danielle Dirks and Julie J. Exline, examined inmates' final statements for the period between December 1982 and early June 2005.  The authors found that before January 12, 1996, 14% of the last statements admitted responsibility and 6% expressed sorrow or sought forgiveness from the victim's family.  Only 10% of the last statements were coded as criticizing the legitimacy of the death penalty.  On January 12, 1996, Texas began allowing family and friends of homicide victims to attend executions.  After that date, 43% of inmates admitted guilt during their last statements 41% expressed repentance and a desire for forgiveness. (h/t Ian Ayers' post on New York Times' Freakonomics Blog)

House Impeaches Federal Judge Porteous:  At Wall Street Journal's Law Blog, Ashby Jones reports that the House of Representatives has unanimously voted to impeach New Orleans federal judge Thomas Porteous.  Porteous had been accused of of soliciting money from lawyers who appeared before him.  According to a Times-Picayune article by Bruce Alpert, Porteous is the 15th judge found to have committed "high crimes and misdemeanors," the Constitution's criteria for impeachment.  Representative Adam Schiff (D-Calif.) stated, "Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years."  On Volokh Conspiracy, Eugene Volokh posted the articles of impeachment.

Data From the Sentencing Commissions Quarterly Update:  At Sentencing Law and Policy, Doug Berman sees a "slow migration away from guidelines" in the U.S. Sentencing Commissions 2009 Final FY09 Quarterly Update.  Berman reports that in FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases.  In 2% of all the cases, judges ordered an above-guideline sentence and initiated a below-guideline sentence in nearly 16% of all cases.  The Sentencing Commissions data from FY 2008 wasn't too different.  In 2008, prosecutors sponsored a below-range sentence in approximately 25% of its cases and judges initiated a below-range sentence 13.4% of the time.

Practical to Keep Two Options for Terror Trials: New York Times writers Charlie Savage and Scott Shane report on the idea to retain two separate systems for trying foreign terrorism suspects: military commission and civilian courts.  While politicians argue for one over another, former counter-terrorism officials are warning that the political debate has lost touch with the pragmatic advantages of keeping both the civilian and military systems available.  There are problems with a commissions-only policy: some nations will not extradite terrorism suspects or provide evidence to the United States except for civilian trials; federal courts offer a greater variety of charges for use in pressuring a defendant to cooperate; military commission rules do not authorize a judge to accept a guilty plea from a defendant in a capital case; and the military system is legally untested, so any guilty verdict is vulnerable to being overturned on appeal.  Those in favor of military commissions argue that critics are exaggerating any problems with commissions and overlooking their advantages.  Congress overhauled military commissions last year to increase defendant's rights, and the United States may be able to persuade foreign countries to extradite suspects to military tribunals.  There might be value to keeping both systems.  Juan C. Zuarte, former deputy national security adviser for combating terrorism stated, "We shouldn't inadvertently handcuff ourselves by taking [civilian terrorism trials] completely out of our tool kit."

Getting the Last Word: New York Times writer Adam Liptak reports on the growing frequency of oral dissents being delivered from the Supreme Court bench.  "Dissenting from the bench," a new study to be published in Justice System Journal, contends that dissenting is a sort of nuclear option that "may indicate that bargaining and accommodation have broken down irreparably." There is, of course, an element of stagecraft to oral dissents.  If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.  Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.  "In 15 years on the bench," he said, "I have never read a dissent from the bench, but today's decision requires that I do so." Justice Thomas had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

Federal Background Probes Come Into Question: San Francisco Gate writer Bob Egelko reports on the Supreme Court's decision to hear NASA v. Nelson, and decide how far the government can go in looking into the background of NASA scientists and engineers.  The court granted the Obama administration's request to hear an appeal of a lower-court ruling that barred NASA from conducting far-reaching inquiries into the lives of 28 workers at the Jet Propulsion Laboratory in Pasadena.  They passed routine background checks when they were hired, but were ordered to undergo further reviews under a 2004 homeland security directive by President George W. Bush.  28 employees refused to submit to checks and were fired.  The Ninth Circuit Court intervened in October 2007, blocked the firing and ruled that the inquiries were too intrusive and unrelated to national security.  "The decision prevents the routine background checks of many government contract employees and it casts a constitutional cloud over the background-check process the government has used for federal civil service employees for over 50 years," Justice Department lawyers said in seeking Supreme Court review.  The Justices will hear the case in the term that starts in October, with a ruling due by June 2011.

Registered Sex Offender Linked to Body:  Associated Press Writer Elliot Spagat reports today on the scheduled arraignment set for this afternoon on charges against John Albert Gardner.  Gardner was arrested for the rape and murder of the San Diego high school student, Chelsea King.  In 2000, Gardner, a 30-year-old ex-con, was facing 11 years in prison for molesting a 13-year-old female, but after a plea agreement he served only five. He was then released on parole for three years until September 2008.  Gardner had been previously linked to an assault on a 22-year-old woman.  Five days after King's disappearance, a body was found buried in a grave on the south shore of Lake Hodges.  San Diego County Sheriff William Gore said there is a "strong likelihood" the body found is Chelsea's.  Dr. Matthew Carroll, a psychiatrist who interviewed Gardner years ago, believed Gardner ought to have served a longer sentence: he was a "continued danger to underage girls in the community."

Convict Found Guilty of Attempted Murder and Mayhem:  Jaxon Van Derbeken of the San Francisco Chronicle reports on yesterday's conviction of 29-year-old Scott Thomas for the attempted murder and mayhem charges in a stabbing attack at a bakery that nearly killed a 15-year-old San Francisco girl in 2007.  A second phase of the trial is set to begin tomorrow to determine if Thomas was sane at the time of the attack.  If Thomas is found sane, he will face life in prison.  Prosecutor Scot Clark argues that the attack was premeditated and Thomas intended to decapitate the 15-year-old.  The case stirred up public outrage after it was revealed Thomas was let out of prison by mistake without supervision the day before the crime. Linda Schaller, the mother of the victim, said Thomas has portrayed himself as a "poor boy": "He's not a poor boy; he's a monster."

Death Sentence Long Overdue for Self-Avowed Racist:  Darci Marchese of the Associated Press reports  that attorneys for rapist/murderer Paul Powell are asking Virginia Governor Bob McDonnell to commute his death sentence.  Powell, a self-avowed racist, is scheduled to be executed on March 18.  In 2000 Powell was sentenced to death for killing an acquaintance, 16-year-old Stacie Reed and raping her 14-year-old sister.  The Virgina Supreme Court overturned his death penalty because no special circumstances to the murder was proven at trial.  No longer facing the death penalty, Powell wrote a note to his attorney detailing Stacie's slaying.  In the letter, Powell described confronting Stacie at her home about dating a black man and threatened to rape her.  When she fought back Powell stabbed her in the heart.  He then took a break to have a smoke and iced tea, while he waited for Stacie's sister to come home.  He eventually raped the sister, who managed to escape before he could kill her.  Armed with Powell's letter, Prince William County Commonwealth's Attorney, Paul Ebert, dropped the first indictment and prosecuted Powell for the attempted rape and murder of Stacie.  In 2003,  Powell was convicted again and sentence to death.  Last July, Powell's execution was stayed by the U.S. Supreme Court, but the Court denied cert last month. 

Today, the U.S. Supreme Court announced three opinions for cases argued this term: Johnson v. United States (08-6925); Reed Elsevier v. Muchnick (08-103); and Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service (08-240; 08-372).  At SCOTUSblog, Erin Miller posts brief descriptions of each of the opinions. 

Reed Elsevier and Mac's Shell address areas copyright and franchise law, but today's decision in Johnson held that in the context of  the Armed Career Criminal Act's definition of "violent felony," the phrase "physical force" means violent force.  This means that in order to qualify for enhanced sentencing under "violent felony" section of the Armed Career Criminal Act, a person must have engaged in "force capable of causing physical pain or injury to another person."  The individual could not be sentenced for a violent felony if the person had been convicted for "unwanted touching." 

In 2007, Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony.  This violated 18 U.S.C. §922(g)(1).  Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2003 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.

In today's 7-2 decision, Justice Scalia wrote that Johnson's 2003 "conviction was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes 'physical force' within the meaning of §924(e)(2)(B)(i)."  When the Court ruled that it was not, it reversed the judgment of the Eleventh Circuit, set aside Johnson's sentence, and remanded the case for further proceedings.  Justice Alito wrote a dissent, which Justice Thomas joined. 

An Attempt to Clarify Prisoners:  Marisa Lagos of the San Francisco Chronicle reports today on California Assemblyman, Alberto Torrico's proposed legislation to limit the early release of nonviolent offenders to state prisons.  Prompted by confusion at the local level and several lawsuits, Torrico wants to clarify that a recently enacted law granting early release of nonviolent offenders is meant only to alleviate overcrowding in prisons and not in county jails.  "It's not meant to apply to local inmates, period," Torrico said.  "We are dealing with a state crisis."  The law took effect January 25 of this year, but it has confused many counties because sheriffs interpreted the law differently.  Under the new law, Sacramento county has released hundreds on jail inmates, while San Francisco released "only a handful."  Assembly member Torrico's Bill 1395 is available here.

Trouble Finding an Unbiased Jury:  Adam Liptak of The New York Times reports on today's Supreme Court oral argument regarding, former Enron CEO, Jeffrey K. Skilling's  request that the Court overturn his verdict because he did not receive a change of venue. The Supreme Court has not considered a change of venue in two decades.  Modern media has made it difficult to determine whether one can receive a fair trial even if there is a change of venue.  Little can be done to control the intensity of news coverage, so a change of venue is less likely to solve the problem.  In its merits brief Solicitor General Elena Kagan told the Court, "media coverage carried on national networks, cable stations and the Internet is not confined to the venue in which the crime is committed."  Many judges and experts in jury behavior and selection agree but say it is not too difficult to find unbiased and uninformed jurors.

National Debate: Mandatory Life Sentences for Juveniles:  Free Press staff writer L.L. Braiser reported Sunday on  juveniles serving mandatory life sentences.  Dontez Tillman and Thomas McCloud, two 14-year olds, were tried as adults and sentenced to life in prison in Michigan for the first-degree murders in the beating deaths of two homeless men over a period of three days.  Michigan currently has 352 prisoners serving life sentences for crimes committed while they were juveniles.  It is one of 12  states which have introduced legislation that would ban mandatory life sentences to juveniles, or at least give judges some discretion.  Michigan Senator, Liz Brater introduced a package of bills to accomplish this last year.  The measures are currently under review.  Some experts believe that certain kids are too dangerous and should never be released.  Our own Kent Scheidegger was quoted on the issue: "It is our position that for some juveniles, a life sentence is appropriate."  The Supreme Court is currently considering the issue in the cases of Graham/Sullivan v. Florida.  Our brief in these cases us here.