Results matching “thomas”

Miriam Rosen of Texas Lawyer reports on a conversation between Justice Thomas and Ted Olson at SMU:

In response to Olson's questions about the value of oral arguments, Thomas said that sometimes they made a difference but rarely did they change votes, and never did they make a difference on a sustained basis. Olson asked if oral arguments should be dispatched with altogether. Thomas said no but that the other court members should let the advocates talk rather than peppering and interrupting them with questions. He said, "I have no idea what they are doing," about his fellow justices who speak more often in oral arguments and speculated that other justices may be seeking "to get a chuckle out of the audience."

Hat tip: SCOTUSblog.

The Sacramento Bee had a four-article opinion-page debate on whether California should have a sentencing commission. Interestingly, neither "pro" author actually defends the proposal that was defeated in the Legislature this summer. Both make the case for a very different proposal. Kara Dansky from Stanford Law School writes in favor:

Here's how sentencing commissions typically work. A state legislature enacts legislation to create a sentencing commission. That law gives the commission the authority to collect sentencing data, promulgate sentencing guidelines, create correctional population models, educate the public, comment on proposed legislation related to sentencing and corrections, and make recommendations regarding the need for further legislation and policy development.

Yes, but that is not what was proposed for California. Sacramento DA Jan Scully notes the difference here:

A sentencing commission would have the ability to reduce sentences for crimes - which some legislators want but cannot get a majority of their colleagues to support. So under the proposal, a commission would be given authority to change punishments, without a legislator having to go on record supporting the reduction. A legislator will be able to say to the public, "I didn't do it, the commission did."

A sentencing commission that researches and advises the Legislature - something the Legislature already has staff to do - might have value, but this proposal does more: It gives the commission authority to rewrite sentencing laws. This non-elected, appointed commission would decide what the sentences should be for crimes, setting one specific sentence for each crime and then establishing "guidelines" - rules dictating if, when and how a judge could give a different sentence.

Illinois Plans to Gather Missing DNA Samples of Released Felons:  Illinois law enforcement agencies say they are going to quickly gather up missing DNA samples from felons already released from prison.  Chicago Tribune writer Megan Twohey reports that law enforcement agencies have pledged to gather DNA samples of released felons in the hopes of linking them to unsolved crimes.  A 2002 Illinois state law requires that all felons in custody must submit a DNA sample, but delays have caused nearly 10,000 inmates to be released without a sample being taken.  The issue of missing DNA samples, came to light due to the case of Wisconsin serial-killer Walter E. Ellis.  Ellis was one of 12,000 inmates released from Wisconsin prisons without giving a DNA sample and this month Ellis has been charged with the murders of seven women over 21 years.  Our news scans from September 8th, found here, and 9th, found here, provide some background on Ellis. The Attorney General's office is unhappy with the proposed plan of gathering DNA samples when felons are rearrested and undergo bond assessment.  Instead, Cara Smith, deputy chief of staff to the office says, " [h]aving already identified hundreds of the most serious offenders released from the Department of Corrections, the office plans to hunt them down with the help of local and county law enforcement."

Killer Takes Back His Request For Death:  Three years ago Shawn Windsor requested a death sentence for killing his estranged wife and child, now he has changed his mind. Local Kentucky station WLKY reports on Windsor's request to the Kentucky Supreme Court to halt his death sentence. In Louisville, KY on December 2003, Windsor beat to death his estranged wife, Betty Jean, and his eight-year-old son, Corey with a dumbbell.  Nine months after the slayings Windsor was caught and he asked to plead guilty to the killings and asked for the death penalty.  Windsor's attorney, David Niehaus, argues that Windsor should have never have been allowed to request the death penalty because of his mental state.  Windsor had attempted suicide on July 7, 2006, and a judge found him competent to make the decision on July 14, 2006.  Assistant Attorney General Hays Lawson does not think that Windsor death sentence should be reversed because "[t]hose crimes are incomprehensible.  There's affront to all that is decent and just in the world."

DNA Links CA Man to Seven Cold Case Murders:  John Floyd Thomas Jr., 73 has been linked to seven cold case killings this year.  Ontario, CA Daily Bulletin writer Will Bigham reports that Thomas was linked to the unsolved murders earlier this year when a DNA sample of the convicted sex offender match DNA collected from decade old crime scenes.  The Los Angeles area killings all took place between 1972 and 1986.   Targeting elderly women who lived alone, Thomas would enter their homes and then rape and strangle them to death.  Then in June of 1986, Thomas killed 56-year-old Adrienne Askew in her Claremont apartment.  In additional to three unsolved rape cases, Thomas is believed to be responsible for two other killings of Claremont women, Isabel Askew and Wilma S. Meyers,  but because of the lack of physical evidence he will not be charged.  

Third Circuit Sixth Amendment Decision:  At Sentencing Law and Policy, Doug Berman posts the opening paragraphs of the Third Circuit's decision in Thomas v. Carroll.  Berman calls the ruling "Notable (and disturbing)..." and appears to agree with concurring Judge Pollak that Thomas is the victim of a "a constitutionally flawed conviction and resultant sentence."  Thomas presents "unique" facts that can lead to very different reactions (be sure to check out comments on the post).  Thomas allegedly punched a corrections officer while he was serving a 35 year sentence.  At his trial for assault he voluntarily and knowingly waived his right to counsel and was permitted to proceed pro se.  When the trial judge refused to order production of all of his witnesses and documents, Thomas refused to participate in his trial.  The trial judge gave Thomas opportunities to return to, and participate in, the proceedings, but he declined to do so.  Ultimately, he was convicted by a jury, sentenced to eight years additional imprisonment, and on direct appeal, the Delaware Supreme Court affirmed.  Thomas alleged his Sixth Amendment rights were violated because the Superior Court conducted the trial without anyone present for the defense.  Thomas filed a petition for habeas corpus under AEDPA and the Third Circuit applied AEDPA's deference standard and affirmed.  

"No quick ruling in military trials":  On SCOTUSblog, Lyle Denniston has updated Monday's post on the D.C. Circuit court's decision to delay a ruling on the plea of five detainees to block their trial before a military commission.  Yesterday, the D.C. Circuit court had agreed to delay a ruling, and asked attorneys to keep it informed on what was happening with the military commission at Guantanamo Bay.  Delay appeared necessary to the court because the Obama Administration is considering whether to try the detainees in civilian or military courts.  Today, Denniston reports that the military judge has agreed to delay all military commission proceedings until November 16th while the Obama Administration makes its decision.

Citizens United Oral Argument:  At SCOTUSblog, Lyle Denniston and Kristina Moore post information on today's Supreme Court argument in Citizens United v. Federal Election Commission.  Denniston's post provides his analysis of the argument, while Moore provides links to to the Court's transcript as well as an audio recording from PBS' NewsHour.  Denniston appears to believe that today's oral argument signals the beginning of the end for precedent's set in Austin v. Michigan Chamber of Commerce (1990) and McConnell v. FEC (2003).  He writes that three Justices, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas, seemed to stand firm in their belief that the two precedent's should be overturned, while Justices Ginsburg, Stevens, Breyer and Sotomayor argued for a more narrow ruling.  This made the Chief Justice and Justice Alito the two Justices for supporters of campaign finance laws to convince.  Denniston does not believe they were successful.  He writes that although "supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections.  None of those arguments seemed to appeal to either Roberts or Alito."  Tony Mauro also reports that the "Supreme Court Majority [was] Critical of Campaign Law Precedents" for Blog of Legal Times, and posts pictures, taken after arguments, of the the lawyers who argued Citizen.  Mauro believes that former solicitor general Theodore Olson, and the attorney for Citizen United, may have gained the upper hand with his argument that corporations are entitled to the same protection under the First Amendment as individuals when it comes to participating in elections.  

"Uptick" for Sentences Below Guidelines:  At Sentencing Law and Policy, Doug Berman posts on recent U.S. Sentencing data that shows an increase in below-guideline sentences.  Preliminary Quarterly Data from the U.S. Sentencing Commission shows that of 57,846 cases, 1,034 were above guide-line range and 23,581 were below guideline range.  14,471 of these were government sponsored (meaning "the prosecution initiated, proposed, or stipulated to a sentence outside of the guideline range, either pursuant to a plea agreement or as part of a non-plea negotiation with the defendant") and 9,110 were not.  Berman reports that the data shows "another...uptick in below-guideline sentences imposed by judges," with judges deciding 15.8% of the time to impose a below-guideline sentence.  This is up from the 13.8% below guideline sentencing Berman noticed before President Obama's election.

The Economics of a Border Fence with Mexico:  At Freakonomics Blog, Daniel Hamermesh writes that last week's horrific killings at the Ciudad Juarez drug treatment center demonstrate how "Fewer Drugs in America Means More Problems for Mexico."  The murders, according the Hamermesh, are an example of "what happens in a market when restrictions on supply are imposed in a related market."  Because of increased border enforcement it is harder to ship drugs from Mexico into the United States and Mexico's drug supply has increased.  Increased domestic competition has pushed the price of drugs down in Mexico and caused an increase in Mexican drug addiction and the violence associated with it.  Hamermesh opines "Sadly, I imagine that the new giant border fence will make shipping drugs to the U.S. even more difficult and result in still more addiction -- and violence -- in Mexico."

No Delay For the Detainees:  At SCOTUSblog, Lyle Denniston reports that the D.C. Circuit Court has denied a stay to five Chinese Muslim Uighur prisoners detained at Guantanamo Bay.  Lawyers for the Uighur's requested the stay until after the Supreme Court acted on an appeal they are planning to file.  The D.C. Circuit Court divided 2-1, with Judges Douglas H. Ginsburg and Brett M. Kavanaugh voting to deny the stay, and Judge Thomas B. Griffith voting to grant the stay.  Denniston reports that the Uighur's Supreme Court case, Kiyemba v. Obama (08-1234), involves the issue of whether federal judges have authority to order the transfer of a Guantanamo detainee into the U.S. mainland.  A Petition for Certiorari has been distributed to the Court, and the Court is expected to act on the case when it returns October 5th.

California Prisons and Punting to Activist Judges:  After reading a Los Angeles Daily News opinion piece (posted on Sentencing Law and Policy), Doug Berman writes that the piece is "noteworthy because it recognizes the connection between dysfunctional state politics and so-called activist federal judges."  What does the piece say exactly?  It criticizes "[o]ur dysfunctional state legislators" for postponing action prison costs.  The article states "In the end, Sacramento lawmakers lacked the nerve to do their jobs. Why should they?... Maybe they hope if they stall long enough, the problem will be solved by the federal judges..."  Berman opines that he has little doubt that the federal court would rather have the state law makers decide how to reduce the prison population, "[b]ut, because state lawmakers are unable or unwilling to make hard political choices in the form of reducing prison populations or raising taxes to fund current expenses, these issue necessarily get punted back to federal courts." The problem with both the post and the article is the assumption that large-scale release of prisoners is the right decision and the one that needs to be made. Where the legislature failed to do its job was in implementing the additional capacity it approved two years ago.

U.S. Department of Justice Seeks Death Penalty for Local Murder:  Doug Berman comments on a story by Daniel Barlow, of the Vermont Press Bureau, reporting that the federal government will seek the death penalty for Michael Jacques, for the "especially heinous, cruel [and] depraved"  rape and murder of his young niece, Brooke Bennett.  Berman recognizes that he does not know much about case, but wonders why the federal government is involved "other than the fact that the feds can seek the death penalty while state prosecutors cannot."  He also restates his belief that "that states should rarely (if ever) bother to pursue capital cases and should instead simply request that federal authorities assume primary responsibility for pursuing the death penalty in the most horrific murder cases." Our position is quite the opposite, that murder is rarely a federal issue.

Arguing For An End to "Death-Qualification" of Jurors:  CrimProf Blog posts the abstract and a link to G. Ben Cohen and Robert J. Smith's SSRN article The Death of Death Qualification.  Cohen, of The Capital Appeals Project, and Smith of The Charles Hamilton Houston Institute for Race and Justice, argue that as the Framers understood it, 'jury review' power provided the people with a 'check' against the government's judicial function.  They argue that this idea has diminished over time and the Framer's understanding is no longer consistent with a modern jury, particularly in cases involving the "death-qualification" of jurors.  They believe that "a proper historical understanding of the Sixth Amendment right to a jury trial requires that [death-qualification] be put to rest."  Given the affiliations of both authors, their argument hardly comes as a surprise...
 
PACER Under Review:  Jordan Weissmann reports on Blog of Legal Times that the Administrative Office of the United States Courts is beginning a year long review Public Access to Court Electronic Records system (PACER).  The office is asking users for input and wants to know if it should continue charging for its services.  Its spokesman Richard Carelli would not comment directly on whether the review was related to the emergence of a free PACER alternative, RECAP.  

Humanitarian Law Project v. U.S. Treasury Dept., USCA 9, No. 07-55893, today:

We are asked to invalidate the President's authority to designate terrorist organizations when there is an extraordinary threat to national security, as well as the Secretary of the Treasury's authorization to designate further organizations; and to declare that a ban on providing "services" to, or for the benefit of, such organizations, is unconstitutionally vague and overbroad.

*                        *                       *

Justice Sotomayor Hires Her Clerks:  Tony Mauro reports on Blog of Legal Times that Justice Sotomayor has hired four clerks for the upcoming term, and two of them are Supreme Court clerk veterans.  Justice Sotomayor has hired Jeremy Marwell, Eloise Pasachoff, Lindsey Powell and Robert Yablon help her through the October 2009 term.  Robert Yablon and Lindsey Powell, former clerks of Justice Ginsburg and Justice Stevens, respectively, will be returning to the Court to serve Justice Sotomayor.  Mauro reports that it is common for new Justices to bring on compatriots former clerks "who already know the Court's intricate and sometimes baffling procedures and quirks."  Jeremy Marwell clerked for D.C. Circuit Judge Stephen Williams and is an alum of the Department of Justice Office of Legal Counsel, and Eloise Pasachoff clerked most recently for Second Circuit Judge Robert Katzmann.  Above the Law Blog broke the news Tuesday. 

SCOTUS Preview of Johnson v. U.S.:  On SCOTUSblog, Natasha Fedder, an Akin Gump Summer Associate, provides a SCOTUS preview of Johnson v. U.S. (08-6925), a case which could decide whether, for purposes of the Armed Career Criminal Act (ACCA), a prior state conviction for battery is in all cases a "violent felony," even when the state's highest court has held that the offense does not include the element the use or threatened use of physical force.  In 2007, Charles Darnell Johnson pleaded guilty to possession of ammunition by a convicted felon.  He had three other violent felony convictions and was sentenced to to 185 months in prison.  He appealed on grounds that federal courts applying the ACCA were bound by the Florida Supreme Court decision State v. Hearns.  Hearns held physical force or violence is not a necessary element of simple battery, and therefore, Johnson argued the crime of battery does not fit the ACCA's definition of "violent" crime as one that "has as an element the use, attempted use, or threatened use of physical force against the person of another."  The Eleventh Circuit rejected the argument. In his brief on the merits, Mr. Johnson frames the issue as whether battery by touching is a violent felony under the ACCA.  He argues the Eleventh Circuit fails to take into account the history of the ACCA, which is rife with testimony indicating that Congress's intent in passing the ACCA was to target the very worst offenders, and not those who commit garden-variety battery by touching.  The government counters with arguments that Florida's definition of battery tracks the common law approach, and finds battery where a person applies force to another person which results in physical injury or offensive touching.  It also argues that the Hearns Court interpreted a state battery statute not at issue in Mr. Johnson's case and materially different from the relevant ACCA provision.  The Court will hear arguments on October 6th.

California's Changes in Felony Murder Doctrine:  At CrimProf Blog, University of San Diego law professor Jean Ramirez discusses two recent California Supreme Court decisions that have limited the reach of the felony murder rule in California.  She writes that in People v. Farley, 46 Cal.4th 1053 (2009), the Court overruled People v. Wilson, 1 Cal.3d 431 (1969), and held that the merger doctrine does not apply to first degree felony murder. The merger doctrine, as this term is used in criminal law, states that lesser included offenses generally merge into the greater offense. Therefore, a person who commits a robbery can not be convicted of both the robbery and the larceny that was part of it.  Wilson had applied the merger doctrine to first degree felony murder based upon a burglary committed with the intent to assault the murder victim. Farley finds Wilson to be in error.  The court reasoned there no ambiguity in Section 189 of the California Penal Code, which defines murder in the course of a burglary as first degree murder.  The court found the language of Section 189 did not support application of the merger doctrine to its terms, and emphasized the legislative prerogative in defining crime and fixing penalties.  Moving on, Professor Ramirez discusses People v. Chun, 45 Cal.4th 1172 (2009), where the court considered the merger doctrine in the context of second degree felony murder and held that a felony merges with the homicide and cannot be the basis of a felony murder instruction when that felony is assaultive in nature.  Chun did not define the felonies that are assaultive in nature, but explained they involve "a threat of immediate violent injury."    

More Rehnquist Papers Released:  Last November, we blogged on the release of a few of Justice Rehnquist papers at the Hoover Institution Archives at Stanford University.  Today, Tony Mauro reports that a second batch - including an extensive compilation of Rehnquist's correspondence with justices and with others as recently as 2005 - has been released.  He has several posts on the papers today, including one on Justice Thomas' oath-taking ceremony, and the former-Chief Justice's correspondence with D.C. Circuit Judge Malcolm Wilkey.   

The amendment to the Federal Sentencing Guidelines lowering the penalty for crack cocaine doesn't help a defendant who remains subject to the statutory mandatory minimum. In United States v. Jackson, USCA9 08-30231, Aug. 14, the defendant hit the trifecta for his appellate panel, B. Fletcher, Tashima, and Thomas, but still did not get a sentence reduction.

The Republican Vote Against Sotomayor:  At The Ninth Justice, Steven Shepard reports that a majority of Republican up for re-election voted against Judge Sotomayor's confirmation. Shepard reports that four of the nine Republicans who voted to confirm Judge Sotomayor are likely to retire in 2010.  This could be because a majority of Republicans opposed Judge Sotomayor's nomination.  Research polls showed that 27% said she should be confirmed, and 58% said she should not.  And, of the states represented by Republicans whose 2008 electorate was more than 9 percent Hispanic - Arizona (16 percent), Florida (14 percent), Nevada (15 percent) and Texas (20 percent) - only Senator Mel Martinez (R- FL) voted for her confirmation.  Senator John Ensign of Nevada, Senator Jon Kyl of Arizona, Senator John Cornyn of Texas, Senator Kay Bailey Hutchinson  of Texas and Senator John McCain of Arizona, all voted against.  Chris Cillizza at Washington Post's The Fix similarly reports that of the Republicans running for the Senate in 2010, only House Representative Pat Toomey (PA) came out in support of Sotomayor's confirmation.

Federal Judge Asks President Obama to Reduce Cocaine Dealer's Sentence:  Doug Berman posts on Sentencing Law and Policy that U.S. District Court Judge for the District of Columbia is asking President Obama to reduce the 27-year sentence of Byron Lamont McDade.  McDade was convicted of conspiring to distribute five kilograms or more of a mixture containing cocaine.  Judge Friedman sentenced McDade in 2002, at a time when federal sentencing guidelines required the 324-month term. Those guidelines became advisory as the result of a Supreme Court decision in 2005, and Judge Friedman believes he has no authority to re-open the sentence.  Both Berman and Josh Gerstein at Politico write that this could reveal the President's stance on executive clemency.  Berman believes that "President Obama's failure to grant even a single clemency through now his second 100 days in office should keep McDade from expecting too much in response to Judge Friedman's call for presidential action."  Berman also provides a link to U.S. v. McDade.  

Cameras in the Supreme Court:  Tony Mauro reports on Blog of Legal Times that for the first time, cameras will be allowed in the Supreme Court to televise Judge Sotomayor's oath-taking on Saturday, August 8th.  C-SPAN will air the proceedings beginning at 11a.m.  Only Justice Thomas' oath-taking ceremony has been televised, and that proceeding took place at the White House, and not the Supreme Court.  Mauro writes this will give viewers a "rare live glimpse of the East Conference Room, where Chief Justice John Roberts Jr. will administer the judicial oath to Sotomayor."

More on Hate-Crime Laws:  As a follow-up to Wednesday's News Scan, Jonathan Adler at Volokh Conspiracy, has a post briefly discussing The Cato Institute's David Rittgers article on the new federal hate-crime statute.  Rittgers' reports that the statute "greatly expands the federal government's jurisdiction to prosecute cases that properly belong in a state court."  It does this by allowing "federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim."  Adler opines "the bill simultaneously expands federal jurisdiction to cover yet more criminal offenses traditionally handled at the state and local level and encourages reprosecution if a state verdict is insufficiently harsh to satisfy federal prosecutors."

Clearing California's Prisons:  Ashby Jones wonders on Wall Street Journal's Law Blog how California is going to clear its prisons of 40,000 prisoners now that a three judge panel has ordered the state had to reduce its prison rolls by about 40,000 inmates.  According to Jones, a Wall Street Journal article by Bobby White and Ryan Knutson reports state officials have announced they will appeal the decision, but "[a]t the same time, cash-strapped local governments in places such as Los Angeles and Fresno are grappling with how to monitor and support thousands of released inmates at a time of scaled-down police forces and underfunded social-services programs."  The current plan will not release all 40,000 prisoners at once, and is proposing deportation of illegal-immigrant inmates and allowing some low-level offenders to serve the final year of their sentences under house arrest.  "The state may also change sentencing guidelines so offenders charged with crimes such as drug possession would be prosecuted for misdemeanors instead of felonies. If convicted, inmates would be sentenced to county jails rather than state prisons." 

In the latest installment of the Federalist Society's online debate on the Sotomayor nomination, Louis Michael Seidman wanders off the topic to take a gratuitous swipe at Justice Thomas with the well-worn lie that "Thomas swore under oath to the preposterous claim that he had never in his life talked with anyone about Roe v. Wade." Wendy Long then nails him on it, and Seidman curiously replies by quoting the portion of the transcript that definitively proves Seidman's statement was a lie.

In the transcript, Thomas does not say that he never talked about Roe. He says he discussed it only in the most general terms and wasn't involved in the debates that were going around. That statement is entirely credible. Hard as it is for the combatants in the abortion debate to believe, there are many people who do not feel strongly about it either way and don't get into the debates.

Seidman says he quotes the transcript to "leave to people to decide for themselves whether [Thomas's testimony] is credible." Say you don't believe his testimony if you like Professor, but your statement that he "swore under oath to the preposterous claim that he had never in his life talked with anyone about Roe v. Wade" is beyond question a lie. Lying is bad in any situation, but to lie while calling someone else a liar is hypocrisy of lowest order.

Update: See the comments regarding whether Seidman's initial post was an intentional lie or reckless disregard of the truth.

Norwood v. Vance, decided by the Ninth Circuit last Thursday and noted in Friday's Blog Scan, is a prisoner suit involving denial of outdoor exercise. The trial judge denied a jury instruction regarding deference to prison officials because "deference" was not defined. The panel majority (Kozinski, Callahan), noted that the word "deference" is a common English word, not Urdu or Klingon. The dissent (Thomas) disagreed with the holding but further noted that there is no Klingon word for "deference."

I have often wondered why many federal judges have such difficulty with the "deference" standard of AEDPA, 28 U.S.C. § 2254(d), desperately clinging on to the 1953-1996 de novo review standard. See, e.g., our prior posts on Irons v. Carey, here and here. Maybe this helps explain it.

Serial hat tips to Eugene Volokh and VC commenter Dave N.

There is a lot of discussion in the press and blogosphere today about the 5-4 decisions of the Supreme Court term just ended and whether the Court is tilting right. The following table is shamelessly pirated from SCOTUSblog's StatPack. For criminal and related cases I have highlighted the law enforcement wins in blue and the defense wins in green.

Number of cases (entirely 5-4 or 5-4 on a major issue)		23
Five to Four Cases: Alignments		5-4 Cases:
Roberts, Scalia, Kennedy, Thomas, Alito	11	14 Penn, Ashcroft, Bartlett, District Attorney's Office, FCC, Gross, Herring, Horne, Montejo
Ginsburg, Stevens, Souter, Breyer, Kennedy	5	Altria, Caperton, Corley, Haywood, Denedo
Ginsburg, Stevens, Souter, Breyer, Scalia	2	Spears, Cuomo
Ginsburg, Stevens, Souter, Scalia, Thomas	2	Arizona v. Gant, Melendez-Diaz
Ginsburg, Stevens, Souter, Breyer, Thomas	1	Atlantic Sounding
Ginsburg, Stevens, Breyer, Kennedy, Alito	1	Oregon v. Ice
Ginsburg, Souter, Kennedy, Scalia, Thomas	1	Vaden

Spears is actually more of a 5-1-3, so its presence in the table is debatable.

Judge Sotomayor, An "Activist" Justice?:  In a recent post on CQ Politics, Seth Stern reports that Senator Sam Brownback (R-KS) will not be voting to confirm Judge Sotomayor.  Senator Brownback voiced his concern that Judge Sotomayor will not be an "impartial umpire" in a speech made on the Senate floor yesterday, where he announced "Judge Sotomayor has indicated through past rulings and in her writings that she believes the judiciary should take an activist role and make laws, instead of upholding the law."  At Sentencing Law and Policy, Doug Berman also wondered if Judge Sotomayor would make "activists" comments about the Second and Eighth Amendments during her confirmation hearings.  His post points to a New York Times article which may provide insight to Sotomayor's views on the death penalty, and a Los Angeles Times article that discusses her views on the Second Amendment.  Berman delights in reading these two stories side by side because "they help highlight how justified and unjustified judicial "activism" is in the (always biased?) eye of the beholder."

Criminal Law Decisions from the Supreme Court:  As Doug Berman pointed out on Sentencing Law and Policy, the U.S. Supreme Court decided the last two criminal justice cases of the term today.  Berman provides a quick summary of Melendez-Diaz v. Massachusetts and Safford United School Dist. #1 v. Redding, while Tony Mauro provides a full report of the Safford decision at Blog of Legal Times.  Mauro writes that in one of his final decisions, Justice Souter "ruled for a divided Court . . .that the intrusive strip search of an Arizona middle-school girl in pursuit of drugs was a violation of her Fourth Amendment rights."  However, because the scope of her Fourth Amendment right was not clear at the time of her search, the assistant principal who ordered the search was entitled to qualified immunity.  Thirteen-year-old Savana Redding had been accused of possessing prescription-strength ibuprofen pills and was ordered to strip down to her underwear so that the school nurse could search her for the drugs.  None were found and Savana's mother sued the school district claiming a Fourth Amendment violation.  Justice Souter said that under the Court's precedent on student searches in the 1985 case New Jersey v. T.L.O, the school was justified in conducting a limited search of the girl's backpack and outer clothing, but requiring her to strip to her underwear and partly expose herself was excessive.  Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer and Samuel Alito Jr. joined the majority.  Justices Ginsburg and Stevens agreed there had been a constitutional violation, but dissented on the issue of qualified immunity.  Justice Thomas did not believe the search violated the Fourth Amendment in the first place.

Judges Posner, Easterbrook and Bauer Threatened, Radio Talk-Show Host Arrested:  At Wall Street Journal's Law Blog, Ashby Jones reports that blogger and radio talk-show host Hal Turner has been arrested for a June 2nd blog post stating "[t]hese judges need to be killed."  Federal authorities in New Jersey arrested Turner for comments that the FBI calls "a threat to assault or murder a United States judge," despite the lack of evidence that anyone had taken steps to carry out the threat.  But Turner certainly made it easy for anyone who intended to carry out his threat.  According to Jones, Turner allegedly posted the work addresses of the judges as well as their photos, and a map of Chicago's federal courthouse highlighting its "anti-truck-bomb" pylons.  He included a note that the Judges home addresses would follow.  Seventh Circuit Judges Posner, Easterbrook and Bauer apparently incited Turner's anger by upholding two handgun bans in Chicago.  This New York Times article, by Eric Lichtblau, discusses the arrest.  

Justice Department Pledges to Step Up Crime Fighting in Indian Country:  At Blog of Legal Times, Mike Scarcella reports that the Department of Justice plans to partner with tribal leaders to improve law enforcement in tribal communities. At the National Congress on American Indians in New York, Associate Attorney General Thomas Perrelli stated that $225 million in the American Recovery and Reinvestment Act is dedicated to improving and building correctional facilities on Indian land with an additional $20 million in the 2009 omnibus appropriations bill designated to provide equipment, technology and training to law enforcement officers.

Federal Judge Allows Padilla v. Yoo to Go Forward:  Ashby Jones reports at Wall Street Journal's Law Blog that Judge Jeffrey White of San Francisco ruled that convicted terrorist Jose Padilla can sue John Yoo for drafting legal theories that led to his alleged torture.  Reasoning that Yoo went beyond the normal role of an attorney when he helped write the Bush administration's detention and torture policies and drafted legal opinions to justify those policies, Judge White stated that "government lawyers are responsible for the foreseeable consequences of their conduct."  Jones reports that the ruling rejected government's arguments that the courts are barred from examining top-level administration decisions in wartime

Papers and Studies of the Supreme Court:  On Sunday David Stras posted an "Academic Roundup" on SCOTUSblog, and reviewed two academic articles discussing the Supreme Court.  The first, Remaking the United States Supreme Court in the Courts' of Appeals Image, proposes that the United States Supreme Court be modeled after the U.S. Courts of Appeals.  Its authors, Tracey George and Chris Guthrie believe increasing the number of Justices, and having them sit in panels of three, could increase the decision-making capacity of the Court.  They believe this would ultimately improve the consistency and clarity of the law.  The second article, Ducking Trouble: Congressionally-Induced Selection Bias in the Supreme Court's Agenda, addresses whether the Court is influenced by Congressional preferences, and concludes that between 1987 and 2001, the Rehnquist Court behaved differently when there was a Democratic Congress rather than a Republican one.  The studies authors, Barry Friedman and Anna L. Harvey wrote "[t]he Court is significantly less likely to review statutes when there are large congressionally-induced deviations between what the Court would like to do, and what is can do in its final rulings."

The Next Pick. Amy Harder at The Ninth Justice speculates on who the next Supreme Court nominee will be in the event of another vacancy. "Should another vacancy open up in the near future, with Obama busy tackling issues like health care and the economy, he would be unlikely to nominate a crusading liberal justice in the mold of William Brennan or Thurgood Marshall despite calls from the left, [UC's Geoffrey] Stone said." We certainly hope so.

Congressmen Bobby Scott and John Conyers have introduced legislation to sentence victims of the most horrible crimes and their families to a lifetime of returning again and again to oppose the perpetrator's parole if he happened to be a day or more short of his 18th birthday.

The notice for tomorrow's hearing on H.R. 2289 is here. The text is here.

The bill would force states, on pain of losing their law enforcement grants, to consider people who committed murder or other grave offenses before their 18th birthday to be considered for parole "not less than once during the first 15 years of incarceration, and not less than once every 3 years of incarceration thereafter...." The bill dishonestly refers to perpetrators 17 years, 364 days old and younger as "child offenders," even though very, very few of the perpetrators in question are "children" as that term is commonly used and understood.

Along with being bad policy, this is the most egregious breach of the principles of federalism to come along in a long time. (Hat tip: SL&P)

WA Lawsuit Over DP Cocktail:  Attorneys representing three murderers on Washington's death row argued yesterday that only one drug should be used to execute the state's murderers.  A story by Jennifer Sullivan in The Seattle Times reports that while the plaintiffs have raised several claims against Washington's protocol, the major focus is on the use of three drugs in Washington's lethal-injection cocktail.  The lead plaintiff, Darold Stenson, who killed his wife and business partner in 1993, testified that his veins are difficult to locate due to health problems, which may prevent the initial painkiller administered in the protocol to take effect.  

Connecticut Senate Votes to Abolish Capital Punishment in the face of an expected veto by Governor M. Jodi Rell.  "The Day" writer Ted Mann reports that the 19-17 vote this morning followed House approval of the bill, which will make the state's most severe sentence for murder life in prison without the possibility of parole.  Connecticut currently has ten murderers on its death row and has only carried out one execution over the past 48 years.

Big LA Gang Sweep:  In what U.S. Attorney Thomas O'Brien called "the largest gang takedown in United States History,"  over 1,400 law enforcement officers were involved in a sweep in Los Angeles County Thursday, arresting  88 members and associates of the Varrio Hawaiian Gardens gang according to this story from Reuters.  An AP story by Thomas Watkins reports that state and federal officers siezed dozens of firearms including assault rifles and over $1 million in drugs during the sweep.  The gang, in addition to its other criminal activities, has conducted an ongoing campaign of violence against blacks to drive them out of the small Los Angeles County city of Hawaiian Gardens.   The 2005 murder of LA County Sheriff's Deputy Luis Otiz by a member of the gang sparked the investigation leading to Thursday's sweep.       

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

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

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

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

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

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

The AP reports, "The Supreme Court has thrown out a death sentence for a Tennessee death row inmate who was deprived of key evidence at his trial."* Actually, the high court remanded the case of Cone v. Bell to a lower court to decide whether to throw out the death sentence, and whether the evidence is "key" remains disputed and undecided. The opinion is available here.

Chief Justice Roberts, concurring in the judgment, notes:

The Court's decision is grounded in unusual facts that necessarily limit its reach....  If [a] claim has been waived under state rules, that waiver typically precludes federal review. If the claim has been decided in the state system, federal review is restricted in light of the state court's legal and factual conclusions. The unique procedural posture of this case presents a Brady claim neither barred under state rules for failure to raise it nor decided in the state system.

The U.S. Supreme Court released one opinion today: Nken v. Holder, an immigration case. The case deals with stays of deportation pending review, an issue somewhat analogous to stays of execution in capital cases. The Immigration Reform and Immigrant Responsibility Act of 1996 has a limitation on injunctions of deportation, but that is not the same thing as a stay of a deportation order, according to CJ Roberts' opinion. Justices Alito and Thomas dissent. Once again, if Congress wants to clip a traditional judicial power, it needs to be very precise in its wording.

Yesterday I asked whether the denial of certiorari in Brendlin, the sequel, "presage[d] that there will be no major change in the law in Arizona v. Gant?" Never mind.

In New York v. Belton, 453 U.S. 454 (1981), presented the question, "When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?" Answer: yes.

Today in Gant, by a 5-4 vote, the Court rejected a "broad" (i.e., straightforward) reading of Belton. The exception to the warrant requirement described in Belton applies only when the arrestee might be able to reach inside the car to obtain a weapon or destroy evidence or "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."

What about stare decisis (the doctrine of adherence to precedent)?

Our dissenting colleagues argue that the doctrine of stare decisis requires adherence to a  broad reading of Belton even though the justifications for searching a vehicle incident to arrest are in most cases absent. The doctrine of stare decisis is of course "essential to the respect accorded to the judgments of the Court and to the stability of the law," but it does not compel us to follow a past decision when its rationale no longer withstands "careful analysis." Lawrence v. Texas, 539 U. S. 558, 577 (2003).

I have no quarrel with that as long as it applies in both directions, not as a ratchet that regards pro-defendant precedents as sacrosanct and pro-prosecution precedents as subject to constant reexamination. Please remember your words, Justice Stevens, the next time the Court is presented with a claim under one of its many pro-defense precedents that is both unjustified as an original matter and a failure in practice. For example, there are the multiple extensions of the rule of Edwards v. Arizona, 451 U.S. 477 (1981). One is at issue in Montejo v. Louisiana this term, previously noted here, and another is at issue in Maryland v. Shatzer, No. 08-680 next term. Then there is the brooding omnipresence of capital punishment law, the disastrous Lockett v. Ohio, 438 U.S. 586 (1978).

The lineup in today's decision, BTW, included Justices Scalia and Thomas voting for the defendant and Justice Breyer voting for the prosecution.

For the second time in two weeks, the U.S. Supreme Court has stayed the mandate of the Florida Supreme Court in a criminal case on the application of the state. Last week's order in Florida v. Rigterink is here. Today's order in Florida v. Powell is here. The Powell opinion, followed in Rigterink, deals with the adequacy of Miranda warnings. According to the Rigterink dissent, it creates a conflict with People v. Wash, 6 Cal.4th 215, 861 P.2d 1107 (1993) and other cases.

Update: Lyle Denniston has this post on the cases at SCOTUSblog. However, his statement that Justice Thomas stayed the Powell case individually is incorrect. The order reads, "The application for stay presented to Justice Thomas and by him referred to the Court is granted...."

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

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

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

An Attorney is Not Ineffective Because He Has "Nothing to Lose":  At Blog of the Legal Times, Tony Mauro has a post reporting on today's Supreme Court activity.  As noted in Kent's post, the Court decided Knowles v. Mirzayance, rejecting the Ninth Circuit's holding that, in Mirzayance's case, competent counsel would have pursued the insanity defense because counsel had nothing to lose. Justice Thomas' majority opinion stated: "This Court has never established anything akin to the Court of Appeals' 'nothing to lose' standard for evaluating Strickland claims."  Mauro also reports on today's oral arguments in Citizens United v. FEC, a case asking whether the 90-minute anti-Hillary Clinton movie released during the 2008 presidential campaign should be regulated under the McCain-Feingold campaign finance law.

Al-Marri Pleads Not Guilty:  New York Times reporter John Schwartz writes that accused Al Qaeda sleeper agent Ali Saleh Kahlah al-Marri pleaded "not guilty" on Monday to charges that he provided aid to terrorists.  Al-Marri, one of the first enemy combatants to be tried in a civilian legal system, has been in custody for almost six years.  While he was initially arrested financial fraud and other charges, the government believes he is a sleeper agent pledged to come to the United States as part of a broader attack plan to follow Sept. 11.  The Supreme Court agreed to hear his case in December 2008, but in February President Obama ordered Mr. Marri's transfer from the military back to the Justice Department. He is being tried in Peoria, Illinois where he was indicted on two counts related to providing material support and resources to a terrorist organization.  (Hattip to Howard Bashman at How Appealing for the link.)

"Does the criminal justice system have anything to do with public health?" wonders Joel Jacobson at Judging Crimes.  In a Monday post, Jacobson discusses a possible relationship between CQ Press's release of Crime State Rankings 2009.  While CQ Press's rankings remain controversial, Jacobson sees similarities between the most dangerous states and the unhealthiest states. He also sees some similarities in the number of heart disease and stroke death rates in an area. The relationship between the three is interesting - especially considering Jacobson's promise to further discuss studies describing what violence does to people .

Update: Follow up post on Knowles v. Mirzayance is here.

The U.S. Supreme Court unanimously reversed the Ninth Circuit yet again in another habeas case. As we have noted before, it is not the much-debated "reversal rate" that demonstrates how far out of the mainstream the Ninth is. Rather, it is the number of cases where that court's judgment does not draw even a single affirming vote from the nine jurists of diverse viewpoints on the high court.

In this noncapital murder case, Alexandre Mirzayance did not deny that he stabbed his 19-year-old cousin nine times and shot her four times. The only defense was mental. In the guilt phase, the prosecution had the burden of proving beyond a reasonable doubt that the killing was "willful, deliberate, and premeditated." (Cal. Penal Code § 189.) Mirzayance's psychiatric testimony failed to convince the jury there was even a reasonable doubt of that. So what are the chances that largely the same evidence is going to convince the same jury by a preponderance of the evidence that he "was incapable of knowing or understanding the nature and quality of his ... act and of distinguishing right from wrong at the time of commission of the offense" (Penal Code § 25(b))? Vanishingly small.

Does counsel have an obligation to go for that infinitesimal chance? The Ninth Circuit said yes. The Supreme Court unanimously said no. 

Obama Administration Has New Drug Policy:  Ashby Jones posts on Wall Street Journal Blog that the Obama administration does not plan to prosecute marijuana dispensaries in California unless the dispensary violates a federal law.  Jones reports that in a "sit-down" with reporters, Attorney General Eric Holder announced that the Justice Department will be targeting "outlets operating in violation of both federal and state law, such as those being used as fronts for drug dealers."  The Obama administration's new policy is different from the policy implemented by the Bush administration.  The Bush administration approved raids of medical marijuana distributors that violated federal statutes even if the dispensaries appeared to be complying with state laws.  Josh Meyer and Scott Glover have an article on the announcement in today's LA Times, and David Johnston and Neil A. Lewis have a piece in the New York Times. 

ABA President Comments on Its Reintroduction to Judicial Nominations: Tony Mauro posts his interview with ABA President, H. Thomas Wells Jr., on Blog of the Legal Times today.  The post reports on the ABA's return to the judicial nomination process, and gives Wells' account of how the Obama administration brought the ABA "back into the fold."  Wells also addressed recent media reports that the ABA's ratings of nominees skew toward liberals and give conservative nominees generally lower rankings.  Wells, who has not seen the research, does not believe the ABA is biased.  He claims the nominations committee is insulated from ABA policies and confines its assessment of nominees to issues of integrity, competence, and temperament -- not ideology or politics.

Supreme Court Petition to Watch:  On SCOTUSblog, Kristina Moore posted "Petitions to Watch" for next week's private Supreme Court conference. On the list of cases up for consideration is Virginia v. Jaynes.  Virginia v. Jaynes asks whether a court, when presented with a claim that a statute is overbroad, is required to compare the statute's constitutional applications with the statute's actual unconstitutional application.  CJLF's brief in support of certiorari can be found here. 

Gov. O'Malley is urging delegates to "abandon their effort to repeal the death penalty and instead adopt an alternative that limits capital cases" writes Julie Bykowicz, of the Baltimore Sun. Colleagues of the governor have voiced their disappointment for not seeking a full repeal. But so far, the proposed plan is to "allow capital punishment only in murder cases where DNA evidence, a video recording of the crime or a voluntary, videotaped confession by the killer." Baltimore County State's Attorney, Scott D. Shellenberger points out, "if it [does] become [the] law, Maryland would have one of the narrowest capital punishment statutes in the country [and] it would severely limit prosecutors' ability to seek capital punishment."

Will Canadian on death row be granted clemency?: A story by CBS News writes that "a Canadian man on death row in a Montana State Prison says he believes he may get clemency now that lawmakers in the state legislature are voting next month on whether to end the death penalty." Ronald Allen Smith is on death row for murdering two young aboriginal men while hitchhiking back in 1982. Smith claims he is remorseful, "I realize-just through the interactions with my family-I realize what I've done to the families of the two victims." So what? Smith may be feeling bad, but that will not replace both families loss. "I wouldn't have to think about it every day. Everyday, I get up, I sit and drink a cup of coffee, and I look at my son's picture and...think about it...It's just like it happened yesterday. There's no change'" said Thomas Running Rabbit Sr.

Judge Posner Gives Two Opinions of Prosecutors' Behaviors:  At Sentencing Law and Policy, Doug Berman posts parts of two Seventh Circuit decisions on two very different issues.  Berman finds them noteworthy though because both opinions, written by Judge Posner, comment on the behavior of federal prosecutors.  The first case, U.S. v. Farinella, criticizes the prosecutor's improper statements during her closing arguments, as well as her "additional improprieties."  Judge Posner comments that while the government's attorney argued on appeal that an appropriate sanction might be a "talking-to" from her superior, the panel was "not impressed by the suggestion."  In the second case, U.S. v. Richardson, the Seventh Circuit refused to upset the federal prosecutor's decision not to move for a reduced a sentence unless the defendant dropped his appeal.  In Richardson, the defendant was sentenced to 140 months in prison and then helped the government in an unrelated prosecution.  At the time, the government offered to ask the judge to reduce his sentence based on his cooperation, but only if Richardson withdrew his appeal.  While this tactic might seem improper, the Seventh Circuit found the prosecutor's action to be reasonable.

Justice Thomas Gives Rare Appearance:  Eric Barendsen of Blog of the Legal Times posts on Justice Thomas' talk at Howard University School of Law yesterday.  His appearance was a part of the James M. Nabrit Jr. Lecture Series which has previously featured some of his fellow Justices.  According to Barendsen, the talk focused primarily on Justice Thomas' 2007 book, My Grandfather's Son, but later Justice Thomas gave a summation of his experience during his "brutal" 1991 confirmation hearings.  Justice Thomas stated that the process "was very hard," and he thought about giving up "thousands of times," but he did not.  In other words, Justice Thomas wanted to impart the message that students should not give up.  As Justice Thomas recalled his grandfather saying: "Old man 'can't' is dead. I helped bury him." 

Monday there was a rather testy exchange among Justices Stevens, Thomas, and Breyer over the claim that long delays in execution are themselves cruel, though hardly unusual. The three opinions "relating to" denial of certiorari in Thompson v. McNeil, No. 08-7369, are available at this page.

Warren Richey has this article on the case for tomorrow's Christian Science Monitor.