Results matching “thomas”

The "liberal" Justice Thomas

"Clarence Thomas, Supreme Court liberal?" reads the headline on David Savage's piece in the L.A. Times Sunday. Of course, Justice Thomas is not a "liberal." He is, however, "a steady advocate of limited federal power and respect for states' authority." His all-weather federalism sometimes produces results that please liberals.  Savage recounts the recent drug suit preemption case, Wyeth v. Levine, and the marijuana case of four years ago, Gonzales v. Raich.

The Constitution makes federal power supreme but limits it to those areas designated in the Constitution itself. Everything else is for the people of each State to decide for themselves. Fair-weather federalists cite this principle or abandon it, depending on whether they like the outcome it points to. All-weather federalists remain faithful to the principle, wherever it points.

Blog Scan

Are There More Hate Groups During a Recession?  Wonders an anonymous post over at Freakonomics Blog.  According to the post, the Southern Poverty Law Center has reported that number of hate groups has grown by over 50% since 2000.  Both the report and the media have blamed growth on the "deteriorating economy" and the election of President Obama.  Freakonomics writes that such blame may be misplaced.  The post discusses how "most economic research finds no correlation at all between hate crimes and the economy."  For example, a 1998 study of economic motivations for hate crimes examined statistics in New York between 1987 and 1995 and did not find a significant link between "economic performance and intolerant behavior directed against minorities."  Another study, by Swarthmore economists Philip Jefferson and Frederic Pryor, reached a similar conclusion.  The post also comments that the Southern Poverty Law Center's data does not show 2008 to have been a particularly strong growth year for hate groups, ruling out any conclusion that President Obama's campaign is to blame for the recent growth.  If this is the case, wonders Freakonomics, "what explains this expansion of hate?"  While a good question to ask, a better question for the anonymous blogger to be asking might be "where did the Southern Poverty Law Center get the data to support this 'expansion of hate'?"

Wyeth v. Levine:
State Tort Law and Preemption:  Ashby Jones at Wall Street Journal Blog reports on today's Supreme Court decision in Wyeth v. Levine, a decision that addressed whether federal laws that regulate certain products preempt state tort law.  Jones reports that Levine is the last of three opinions to address this issue. The other two, Riegel v. Medtronic Inc. and Altria Group Inc. v. Good, were decided in 2008. Jones' post also includes a Q&A with Wall Street Journal Supreme Court Reporter Jess Bravin.  The Q&A provides summaries of the majority and dissenting opinions, as well as Justice Thomas' concurring opinion.

Forensic Linguistics at Trial:  Psychology and Crime News posted an interview with John Olsson of the Forensic Linguistics Institute last week about Olson's experience as a forensic linguist with the criminal justice system.  Forensic linguists are often asked to give expert opinions on the authorship of a text.  Olson comments that he has been asked to give opinions about the authorship of suicide notes, hate mail, products contamination cases and the authorship of mobile phone text. 

No Laptop Policy in Law School Class: At Volokh Conspiracy Eugene Volokh has posted the results of a student survey of his "No-Laptop-In-Class Experiment."  Looking at his numbers, the results seem to be generally positive.  Students reported better in-class concentration without their laptops.  

Blog Scan

Supreme Court Clerks:  At Above the Law, David Lat has posted an update on the new Supreme Court clerks for the October Term 2009, and a few new hires joining in October Term 2010.  The post provides the names of each of the clerks, their law schools and graduation dates, as well as previous court experience.  The post also notes that Justice Souter and Justice Thomas have yet to announce their choices.  Lat speculates that Souter's silence could mean he is planning on stepping down. 

Sex Offender Registries Incomplete:
  Corey Rayburn Young posted a report from the Office of the Inspector General at the U.S. Department of Justice on Sex Crimes yesterday.  The DOJ's report, published in December 2008, "found that the registries that make up the national sex offender registration system - the FBI's National Sex Offender Registry (NSOR) and the state public sex offender registries accessed through OJP's National Sex Offender Public Registry Website (NSOPR) - are inaccurate and incomplete." The unfortunate result is that neither the public, nor law enforcement, can rely on these registries to identify sex offenders. Some states have not "entered records on approximately 22 percent of their registered sex offenders into NSOR and have not identified sex offenders who have failed to maintain a current registration." But Michael Doyle's December 2008 article found that "California leads the nation in registered sex offenders, with about 114,000. This is more than twice the number of sex offenders registered in Texas or Florida, and 10 times the number registered in North Carolina."

December 2008 California Law Review Available Online:  The California Law Review, Vol. 96, Issue 6 (December 2008) was posted on Concurring Opinions yesterday.  One article "Mourning Miranda" by Charles D. Weisselberg, discusses how the Supreme Court has "gutted Miranda's safeguards" in the four decades since Miranda was decided.  Weisselberg is a Professor of Law at Berkeley's Boalt Hall.

Apprendi Sprawl Frozen in Ice

When the Supreme Court announced Apprendi v. New Jersey, 530 U.S. 466 (2000) nine years ago, the result seemed sensible. The "sentence enhancement" in that case operated for all practical purpose like a higher degree of offense, and degrees were traditionally decided by the jury and had to be proved beyond a reasonable doubt. Yet in the years that followed, Apprendi spread to other areas. In Ring v. Arizona, 536 U.S. 584 (2002), the Court extended the rule to death penalty eligibility circumstances, an artificial construct with no common law equivalent that states enacted only because the Court itself forced them to. In Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), the Court threw a monkey wrench into sentencing guidelines systems enacted in the 1980s in a bipartisan consensus to reduce the sentencing disparity that arises in discretionary systems, where the luck of the draw on judges may count more than the legitimate factors of the defendant's crime and criminal record. In Cunningham v. California, 549 U.S. 270 (2007), the Court ruled that the state violated the Constitution by imposing a fact-finding requirement for the defendant's benefit, prompting the Legislature to repeal the requirement.

In Oregon v. Ice, the Supreme Court of Oregon carried the "no good deed goes unpunished" principle of Cunningham one step further. Today, the U.S. Supreme Court decided that was one step too far in a 5-4 decision that scrambles the usual ideological lines.

News Scan

Governor Calls for Mexican Death Penalty:  Coahuila state Governor Humberto Moreira is asking the legislature to adopt a recommendation that Mexico's Congress restore the death penalty for kidnappers who murder their victims.  An Associated Press story reports that a 2/3 majority of the Congress would be required to undo the 2005 Constitutional amendment that abolished capital punishment.

Fired Public Defender Sues:  A former Santa Clara County Deputy Public Defender, fired five years ago for refusing to answer questions during a disciplinary hearing, will have his claim that his rights were violated heard by the California Supreme Court tomorrow.  A story in the San Jose Mercury News by Howard Mintz reports that Thomas Spielbauer "invoked his Fifth Amendment rights" when his bosses began to investigate allegations that he lied to a judge while representing a criminal defendant.  

DNA Links Accused Rapist to Anchorwoman's Murder:  An affidavit filed today indicates that police identified the man charged with with October 20 beating death of Little Rock news anchor Anne Pressly with a DNA match.  The Associated Press reports that while the police believe that Pressly was killed when she intrupted a robbery, her parents believe that she may have been sexually assaulted.  Murder suspect Curtis Lavelle Vance is also accused of raping a school teacher last April and of committing several burglaries in eastern Arkansas.  Early reports suggest that the victim died from a massive stroke caused by blunt force trauma.  Every bone in her face had been broken and her hand was broken in the attack.   
   






News Scan

Prosecutors To Seek Death Penalty In Cleveland's East 87th Street Fire: According to an article by the News Net 5, prosecutors will seek the death penalty against 24-year-old Antun Lewis. Lewis was indicted in federal court last month. Lewis will not go on trial until the death penalty request is resolved. Federal prosecutors said Lewis broke into the East 87th Street home three years ago, doused it with gas and set it on fire, killing a woman and eight children inside.

Voters Oppose Prop. 5, Prop. 6, Support Prop. 9: Demian Bulwa, Chronicle staff writer reports that California voters opposed Prop 5 and Prop 6, while supporting Prop 9. Prop 5 would expand programs to divert drug addicts and nonviolent offenders from prison to rehabilitation. Opponents said the program was ripe for abuse. Prop 6 would require spending at least $965 million a year on programs for police, prosecutors, jails and juvenile lockups - a $365 million increase from current spending, according to the state's legislative analyst. Prop 9, however, backed by crime victims, held a significant lead. It would allow victims to speak at bail hearings and limit a defendant's ability to gain evidence from a victim before trial. The measure would also limit the release of inmates due to crowding. That could cost hundreds of millions of dollars a year, the legislative analyst said. Kent's post on the Propositions links you to the Cal SecState results.

Death Penalty For Ex-Con Who Killed Witness: An AP story reports that LA jurors have recommended the death penalty for an ex-con who murdered his former girlfriend after she accused him of raping her. The Superior Court jury returned its verdict Tuesday for 44-year-old Ruben Becerrada. Becerrada was convicted Sept. 29 of first-degree murder and kidnapping for the March 4, 2000, killing of Maria Arevalo. A prosecutor says Becerrada stabbed and strangled Arevalo because she was the only witness in a rape case against him.

Murder Suspect's Brother Tried Jail Break-In: An AP story reports that police say the brother of a murder suspect tried to break into jail when he refused to listen to jail guards who told him there were no visiting hours for prisoners on Monday. Thomas Walsh pleaded not guilty to trespassing and other charges Tuesday and was ordered held in lieu of $6,000 bail. Last week, Walsh's brother, William, was arrested on murder charges. Police said William killed his wife during a fight and then concocted an elaborate ruse to make it appear as though she were the victim of random roadside violence. William is due back in court today.

News Scan

Crime in Large Cities: A review of crime rates and economic conditions in large U.S. cities has determined, at least over the short term, unemployment and wages do not have an effect on the rate of violent crime. An AP story by Cheryl Wittenauer discusses the study, conducted for the Federal Reserve Bank by economist Thomas Garrett. The study did suggest that non-violent crimes do appear to follow economic conditions.

Crimes by Girls: A research bulletin from the U.S. Department of Justice reports that violent crimes committed by girls are not increasing. The Department's Office of Justice Programs created a Girls Study Group after a sharp increase in arrests of female juveniles in the 1990s to address the problem. The first report by the group is here.

Conviction Upheld for Rapist/Murderer:
The Iowa Supreme Court has upheld the conviction and LWOP sentence for Roger Bentley according to this AP story by Melanie Welte. Bentley was convicted in 2006 of kidnapping ten-year-old Jetseta Gage from her bedroom then taking her to a mobile home where she was raped before being beaten and finally suffocated to death. Although Bentley claimed that there was insufficient evidence to identify him as the kidnapper, the Court's decision describes the overwhelming evidence of guilt in this case. Iowa does not have a death penalty.

Texas Murderer Executed: Gregory Wright, a homeless vagrant who stabbed to death a woman who helped him, was executed by lethal injection in Huntsville, Texas yesterday. An Associated Press story by Michael Graczyk reports that Wright proclaimed his innocence and blamed the murder on another homeless man, before being pronounced dead in a process that took nine minutes.

News Scan

Death-Penalty Issue Surfaces In Chief Justice Race: According to a story by AP writer Katie Oyan, the politically charged issue of the death penalty has surfaced in the nonpartisan race for chief justice of the Montana Supreme Court, with one candidate acknowledging he would have to remove himself from certain cases due to his opposition to capital punishment. Helena attorney Ron Waterman has no qualms about sharing his anti-death penalty views. Montana Attorney General Mike McGrath, however, said it would be inappropriate for a potential justice to take sides on issues that could come before the court. Waterman has said that he would disqualify himself from hearing death penalty cases if he is elected.

S.F. Gang Injunction Zone Controversial: A story by Chronicle staff writer Demian Bulwa reports that 29 of the 32 men named in City Attorney Dennis Herrera's "safety zone" civil injunction are complaining. The 29 men claim they can't be seen with other suspected Norteño gang members in the zone, even if they are cousins or brothers. Nor can they wear red, the color claimed by Norteños, or hang out on the street after 10 p.m. The civil action against the Norteños was by far the broadest, extending over 60 square blocks in the Mission District. Herrera faced criticism from defense attorneys, including Public Defender Jeff Adachi, and gang outreach groups. They said the city attorney took advantage of some features of civil court - such as the lack of a right to an attorney at no cost - and gave police too much power. Chronicle writer Bulwa co-wrote this story last June about the then-proposed expansion of the 60 block injunction.

Murder Suspect Will Defend Himself At Death Penalty Trial: Stefano Esposito from the Chicago Sun-Times reports that the man accused of killing pharmaceutical rep Nailah Franklin last year will be allowed to represent himself at trial in a case in which prosecutors plan to seek the death penalty. Cook County Judge Thomas V. Gainer Jr. granted Reginald Potts' request Friday, but only after repeatedly warning Potts he was making a big mistake. Nailah Franklin, 28, disappeared in September 2007. Her partly decomposed body was found 10 days later in a wooded area of Calumet City. The State is seeking the death penalty because the murder was "cold and calculated" and occurred while Potts was committing other felonies against Franklin.

Blog Scan

Uighurs Denied en banc review: SCOTUSblog has been keeping us updated on the legal battle surrounding District Judge Ricardo M. Urbina’s Oct. 7 ruling that the 17 Chinese Muslim Uighurs be brought to the U.S. and temporarily released into the country. Today, Lyle Denniston posts that the en banc D.C. Circuit Court refused to review a three-judge panel’s order postponing their transfer. The order denied rehearing en banc without an opinion. Judges Janice Rogers Brown and Judith Rogers would have granted rehearing. As it currently stands, District Judge Urbina's order will be reviewed in November, with oral argument set for November 24th. The Justice Department also filed its merits brief in the case. Denniston reports the Government has argued "its agreement not to send the 17 Uighurs back to China, where they fear torture or death, did not bar it 'from exercising its sovereign power' to deny them entry into the U.S. mainland."

Justice Thomas Says It's The Brief, and Not Oral Argument That Wins A Case: At Wall Street Journal Blog, Dan Slater posted: "Justice Thomas to Judges: Shut Up and Listen." Yesterday, Justice Thomas participated in a panel discussion on professionalism at the 11th Circuit Appellate Practice Institute. There he stated, “I believe quite strongly we, as judges, need to take the approach we’re here to solve difficult problems, not debate with lawyers." Justice Thomas also told his audience that it is the brief, and not the oral argument, that will win a case. Another piece of worthy information -- keep it short. Clint Williams of the Fulton County Daily Report had this story.

Sixth Circuit Rules On Sufficient Probable Cause In Child Pornography Case: At Volokh Conspiracy Orin Kerr has a post on United States v. Hodson, a Sixth Circuit decision from September 2008. Kerr's post provides a summary of the case - its facts and its holding - and then gives some commentary on whether the Sixth Circuit correctly held police had not established probable cause to search the defendant's home for child pornography. Apparently, an undercover agent had been using internet messaging to communicate with a man who "favored young boys, liked looking at his nine- and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew." When the officers obtained a search warrant, officers asked to search his home for child pornography. Child pornography was uncovered and the defendant was convicted. The Sixth Circuit reversed, holding that even though the detective had established probable cause for one crime (child molestation), he had not established probable cause for possession of child pornography. Kerr's commentary provides his thoughts on why he isn't sure the holding is correct.

Blog Scan

Analyzing Justice Thomas' Thoughts On Originalism: Yesterday we had a post on Justice Clarence Thomas' lecture to the Manhattan Institute. Jack Balkin, at Balkinzation, posted the same excerpt from the Wall Street Journal, and offered his thoughts on whether Justice Thomas was embracing "originalism based on original intentions rather than one based on original meaning." Balkin would find a move surprising, since many have assumed Justice Thomas to be "a devotee of original meaning originalism." Balkin's post discusses the difference between original meaning originalist and an original intentions originalist (say that five times fast) as well as the significance of the distinction.

Attorneys For Uighurs Seek en banc Review: For those following the legal battles of the Uighurs, 17 Chinese Muslim Guantanamo Bay detainees, Lyle Denniston provides an update on the latest filing. Today, attorneys for the Uighurs requested en banc review so the D.C. Circuit Court could lift yesterday's ban on the detainee's release. The petition also suggested the Court review on the merits without waiting for further action before the panel. At Blog of the Legal Times, Tony Mauro has this post summarizing yesterday's order. Two judges, over the dissent of Judge Rogers, granted the Government’s motion to stay the release pending appeal and set oral argument for November 24. Attorneys for the Uighurs argued in today's petition that although the three-judge panel ordered expedited review, en banc review was likely and should begin without further delay.

Societal Cost of Leniency for Drunk Driving:
At Sentencing Law and Policy, Doug Berman posts on an article in the Milwaukee Journal Sentinel that "reinforces [Berman's] concerns about the harmful consequences and costs of undue sentencing leniency being shown to repeat drunk drivers." Both his post and the article lay out the details of a man who had been convicted of drunk driving "at least" nine times before he received a tougher sentence for his tenth offense. The Sentinel estimated the man's drinking and driving has cost nearly $365,000, with nearly $240,000 coming from tax dollars of insurance payouts. The article, and Berman's post, provide a graphic documenting how the Sentinel calculated the economic cost. In addition, Berman's post provides links to his thoughts on how we should punish drunk driving.

News Scan

Court Won't Consider Neb. "Rape" Testimony Issue: According to an article by AP press writer Jean Ortiz, the U.S. Supreme Court has refused to hear an appeal involving a case in which a Nebraska judge banned anyone from saying "rape" in a sexual assault trial. Lawyers for Tory Bowen argued that Lancaster County District Judge Jeffre Cheuvront violated their client's constitutional rights by barring her from using such words as "rape kit" and "victim" during her testimony in the trial. The judge said he banned the language because he was concerned about the accused's right to a fair trial.

Supreme Court To Hear Case On Immigrants' Use Of Fake IDs: LA Times writer David G. Savage reports that the Supreme Court will decide whether the government can use new identity theft laws to send illegal immigrants using fake identification cards to prison, or to force them to leave the country. Kent provided his own thoughts on the case yesterday. Judges are divided over whether immigrants can be punished for "knowingly" stealing the identity of another person whenever they are caught using a Social Security number that is not their own. Often, the immigrants say they thought they had bought phony ID cards, not numbers assigned to real people.

Is High Court Gearing Up to Review Discrimination in Capital Punishment? Dan Slater from the Wall Street Journal Law Blog reports that yesterday, Justices Stevens and Thomas squared off over the Court’s denial of cert in Walker v. Georgia, a capital case. The issue is to what extent must a court, in a capital case, carry out a proportionality review to ensure that arbitrariness and discrimination don’t figure in a sentence of death. The blog states that the justices might be preparing to review whether the death penalty is being applied in a discriminatory way, an issue the court has not taken up for two decades.

200 Sex Assault Cases Miss Prosecution Deadline Due to Untested Rape Kits: LA Times writer Richard Winton reports that according to a city audit released Monday, as many as 200 potential sexual assault cases have gone without prosecution because LA police officials failed to meet legal deadlines to test DNA evidence. The evidence might have identified a suspect. According to the audit by City Controller Laura Chick's office, the LAPD has a backlog of 7,000 sexual assault test kits that have not been examined. Of those cases, 217 are beyond the 10-year statute in which to prosecute the crimes.

How to Read the Constitution

The WSJ has this excerpt of Justice Clarence Thomas's lecture to the Manhattan Institute Friday. He notes the fundamental question of judicial review is "what restrains us from imposing our personal views and policy preferences on our fellow citizens under the guise of Constitutional interpretation?"

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Blog Scan

Ohio Election Officials Seek To Block Voter Challenging Rule: At SCOTUSblog, Lyle Denniston posts on an application for a stay filed last night in the Supreme Court, asking the Supreme Court to put a hold on a federal judge's order requiring election officials to verify voter registration rolls across the state. Denniston also provides links to the application, Brunner v. Ohio Republican Party, et al., 08A332, and its attached exhibit. The federal court order imposed a Friday deadline for Ohio’s Secretary of State to reprogram a statewide database. Republicans had complained that the state had failed to verify voter data as required by the federal Help America Vote Act. Tuesday, the Sixth Circuit refused to block the order. Rick Hansen at Election Law Blog posts on some thoughts of the en banc opinion. Ohio's application for a stay argues the order requires the Secretary of State's staff, and 88 county election boards to divert their attention from preparing for the Nov. 4 election, to a large undertaking to refashion the statewide voter database. According to Denniston, "Justice Stevens may act without asking state GOP officials to respond, or wait until there is a response. He also has the option of sharing a decision with his Court colleagues, or acting alone."

Last Night's Debate And A Poll On The Role of Supreme Court Judges:
Orin Kerr at Volokh Conspiracy blogs that a statement made last night by Barack Obama about the type of Justice he would appoint brought to mind this interesting poll from the Rasmussen Reports. One of the questions in the survey: "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" drew responses reflecting a sharp difference between McCain and Obama supporters. "While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree."

Impeachment Counsel Appointed For Inquiry Into U.S. District Court Judge Thomas Porteous:
David Ingram at Blog of the Legal Times has this post about a formidable new foe for Judge Porteous. Ingram reports the House Judiciary Committee has appointed Alan Baron, a partner in the D.C. office of Holland & Knight, for his impeachment inquiry. Baron was the House’s special impeachment counsel when lawmakers voted to impeach then-federal judges Alcee Hastings and Walter Nixon in the late 1980s. Judge Porteous is currently suspended from serving in the eastern district of Louisiana. Accusations against him include soliciting and receiving cash from lawyers with cases pending before him and committing perjury in his personal bankruptcy case. For more on Federal Judges Under Investigation check out Brooks Holland's post at CrimProf Blog discussing U.S. District Judge Samuel Kent's indictment for alleged federal sex crimes. Corey Rayburn Young at SexCrimes also has this post on Judge Kent.

Blog Scan

Oral Argument Summaries: At SCOTUSblog Kevin Russell posts his analysis of the oral arguments in Arizona v. Gant, 07-542 and Herring v. United States, 07-513 . The two cases address different questions involving the Fourth Amendment. Herring asks whether the exclusionary rule should be applied to bar evidence obtained through the search of a defendant whom the police believed had an outstanding warrant but who actually didn’t, while Gant addressed the meaning of the Fourth Amendment itself. Russell states that oral argument was "particularly interesting because the Government and the defendant were called upon to take different sides of the debate in the two cases: in Herring, the defendant argued the virtue of simplicity and clarity, while in Gant it was the Government that was insisting on the need for a bright-line rule." Orin Kerr at Volokh Conspiracy ponders whether Gant is the "sleeper crim pro case of the term?" His post is brief, as he was heading on vacation, but he does urge readers to read the oral argument transcript and notes the potential for future blogs on the case. In another post on yesterday's Gant oral argument, Washington Briefs blogger Lawrence Hurley discusses Justice Scalia's attempt to track the Fourth Amendment back to the founding era and Thomas Jefferson. Apparently, Justice Scalia asked "If you stopped Thomas Jefferson's carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you, could you then go and search his carriage?" According to Hurley, "Jefferson, who died in 1826, could not be reached for comment."

The Cost of Calculating Loss Under Sentencing Guidelines:
Doug Berman at Sentencing Law and Policy has a post linking to a new article by Robert G. Morvillo and Robert J. Anello in the New York Law Journal. The article argues that "[l]oss calculation often artificially inflates the guidelines to unrealistic proportions." According to the authors, this is because loss calculation is an "amorphous concept" "that equates jail time with often-inflated assessments of loss caused by the crime." According to the article's authors, courts have recently begun to recognize the complexity of loss calculation and attempted to temper its consequences. The article discusses two recent decisions from the second circuit, United States v. Confredo and United States v. Rutkoske, to illustrate this point.

Bell v. Kelly: What is a "Claim"?

In 28 U.S.C. § 2254(d), the cornerstone reform of the Antiterrorism and Effective Death Penalty Act of 1996, Congress provided that a federal court cannot grant relief on a claim denied on the merits by a state court unless certain conditions are met, essentially unless the state court decision was outside the bounds of reasonable disagreement. This measure was a compromise between those who favored giving the state court decision as much respect as federal court decisions and those who favored the status quo ante of giving them no weight at all on questions of federal law.

But what exactly is a "claim"? That question is now before the Supreme Court in Bell v. Kelly, No. 07-1223, which just may be the "sleeper" case of this term. It hasn't received much attention yet, but the potential ramifications are large, especially for capital cases.

Troy Davis and the Georgia Parole Board

The Georgia Parole Board issued this press release Monday on the Troy Davis case. The full text is also quoted after the jump, in case they remove the page linked here.

It's good that they made an exception to their "no comment" policy, but they did not go far enough. In capital cases with claims of actual innocence, an explanation should be the rule, not the exception. Further, the explanation should go into detail as to why the board does not believe the inmate is actually innocent. The right way to do it was illustrated by Gov. Pete Wilson of California in the Thomas Thompson case. We appended this explanation to our brief in Calderon v. Thompson, 523 U.S. 538 (1998), and the Supreme Court noted it. See id., at 547-548, 552, 556.

The Georgia Board should do the same, as should the clemency authority in any case of this type. There aren't enough of them that this would be a significant burden, and it is very bad for public confidence in the system to have one side saturating the media with claims he is innocent while the people who properly decided that question are virtually mum on their reasons for rejecting it.

UPDATE. The CJLF brief in Calderon v. Thompson is available here.

Blog Scan

October Oral Arguments: Lyle Denniston at SCOTUSblog reports the Supreme Court has released a new calendar for oral arguments in October. The new calendar can be found here. The revised sitting schedule has the Supreme Court hearing oral arguments in Oregon v. Ice on October 14th at 1 p.m. The old calendar scheduled Ice for the following day. The case involves whether a judge's decision to implement consecutive sentences for separate crimes violated the defendant's right to a jury trial. CJLF wrote a brief in support of Oregon.

Courts Cannot Hear Challenges to Conditions of Detainee Confinement or Challenges to Transfers:
Lyle Denniston also has a post on today's decision from Senior U.S. District Judge Thomas F. Hogan. Judge Hogan has been responsible for overseeing some 200 Guantanamo Bay detainee cases. In today's decision he found that the Military Commissions Act of 2006 removed federal court authority to hear challenges to the“transfer, treatment, trial, or conditions of confinement” of any captive found by the government to be an “enemy combatant.” He reasoned that because Boumediene v. Bush did not nullify that provision of the statute, federal courts “have no jurisdiction” over a detainee’s challenge to a transfer, or the conditions of his confinement. According to Judge Hogan, Boumediene only gave detainees the right to challenge their detention through federal habeas petitions.

Data in Law Review Articles: Eugene Volokh at Volokh Conspiracy posted today on the Tulane Law Review controversy. We mentioned the controversy in our Blog Scan last Thursday. Volokh's post supports a law review practice that would include the raw data supporting an article's assertions in an Appendix. He states "That way, law reviews would be reminded of their responsibility to check the data, and readers will find it more consistently accessible." We agree. This type of practice would give researches easy access to data, and put pressure on law review editors to check the data. Both are incredibly important to policy makers and scholars who rely on the data in formatting opinions.

News Scan

Tracking Terrorists: New guidelines for identifying terrorists within the United States, which would give the FBI tools currently used against organized crime, were proposed today according to this AP story by Larry Hargasak. If adopted, the guidelines would allow agents to conduct physical surveillance, recruit snitches and conduct pretext interviews to uncover information about possible terrorists. The proposals were immediately criticized by the ACLU and some Democratic lawmakers for allowing a suspect's ethnic background to be among the criteria for initiating an investigation. A Justice Department spokesman noted that ethnicity is often an essential marker in criminal investigations, pointing out that the investigation of members of La Cosa Nostra required a focus on Italians and tracking Hezbollah meant looking primarily at Lebanese.

Drug Lord Needs Bigger Cell: Ramirez Abadia, who is being held on federal charges for heading a cartel that smuggled an estimated $10 billion worth of cocaine into the U.S. between 1990 and 2003, is claustrophobic in his New York maximum security cell. The Associate Press reports that his lawyer is asking a federal judge to move Abadia to a Detention Center in Brooklyn where he will be more comfortable.

Death Sentence Upheld: Twenty-seven years after receiving a death sentence for stalking and shooting two 12-year-old girls, one fatally, a Ninth Circuit panel has upheld the death sentence of Thomas Edwards. A story in today's Orange County Register by Larry Wellborn reports how in 1981, at a Southern California campground, Edwards spotted best friends Venessa Iberri and Kelly Cartier walking to a picnic. After following the two girls to a remote spot, he pulled up to them in his pickup and shot them both in the head. His conviction and death sentence in 1986 began a series of appeals and delays described by one judge as reminiscent of "Dickens' Bleak House." The federal appeals process alone has taken 17 years, not including the possibility of an en banc review by the Ninth Circuit.

Geographic Disparity: The Baltimore Sun has this letter to the editor in which the author disputes the notion that variation among counties is a problem that needs to be fixed. The writer reacts to an Abell Foundation study showing differences between Baltimore City jury verdicts and those in surrounding counties. "The study not only identified differences in verdicts but went on to the make the shocking proposal that we should consider a regional jury pool. But differences don't necessarily indicate problems; distinct approaches more often than not lead to the right answer." Here is the twist: the letter writer is an Assistant Public Defender in Baltimore.

Blog Scan

Execution Delayed: Dan Slater at the Wall Street Journal Law Blog posted this morning on the postponed execution of Charles Dean Hood. Our News Scan has the link to the AP story. Yesterday, the Texas Court of Criminal Appeals granted Hood a stay so that it could reconsider its previous dismissal of Hood's appeal challenging jury instructions. Last Friday, we blogged that the execution might not occur as scheduled because of allegations that the trial judge and a former district attorney had an affair during Hood's 1989 murder trial. Slater's post reports the two admitted, under oath, that they carried on a secret affair for years. When allegations first arose, the Texas AG supported inquiry into whether the affair took place. However, the affair was not the reason for the stay. Yesterday, the Texas Court of Criminal Appeals dismissed claims that Hood had been denied a fair trial because of the alleged affair.

Chief Justice of the Supreme Court: For those interested in a little Supreme Court history, Eugene Volokh has a post on a N.Y. Times correction that claimed "there is no such title as chief justice of the Supreme Court." Volokh's feisty post takes us on a quick trip of the historical use of the title "Chief Justice of the Supreme Court of the United States." Apparently, George Washington used it, Thomas Jefferson used it, and so did St. George Tucker in the 1803 Appendix to Blackstone's Commentaries. So if you use the term "Chief Justice of Supreme Court," Volokh doesn't think you need to apologize.

Courts and the Media: Tony Mauro at Blog of the LegalTimes has been posting on Justice Breyer's talks at the University of Arizona's Rogers College of Law recently. Tuesday's post discussed Justice Breyer's new book, and today's post discusses the important interaction between courts and the media. According to Mauro, the judges on the panel "seemed to embrace" the idea that informing the public in judicial decisions was "now part of their job description." In fact, many courts are already taking it on themselves to put "court documents, streamed audio of hearings, everything except what the judge ate for lunch" on the Internet. Mauro states that with the popularity of internet coverage, the media is going to need to step up its own coverage of the courts. If not, "the courts — not usually viewed as cutting-edge in terms of technology — might find their own ways of bypassing the media and communicating directly with the public." Mauro also promises more posts on this topic.

Blog Scan

No Action in Kennedy v. Louisiana: Lyle Denniston at SCOTUSblog reports that while the Supreme Court issued its final round of summer recess orders today, there was "no action announced" on whether it would reconsider Kennedy v. Louisiana. The State of Louisiana had asked the Court to consider the effect, if any, of the Court's failure to address the federal military law that allows the death sentence for child rape. The Justice Department then asked the Court to allow it to join Louisiana in its plea for rehearing. Today's orders did not mention either request.

More On Today's Orders: Tony Mauro at The BLT has this post on the Supreme Court's decision to deny the SG's request for time to argue in Locke v. Karass. The case will address the dispute over the use of mandatory union dues. According to Mauro, the Justice Department had filed a brief supporting neither side in the case and had requested a total of 10 minutes, 5 minutes for each side, during oral argument. The Supreme Court denied the request without explanation.

Executions Next Week in Texas: Grits for Breakfast has a post on the two executions scheduled next week in Texas. In his post, Scott Henson wonders if either will go through. The first execution, of Gregory Wright, has been reported to be postponed, to allow testing of DNA evidence. The second, of Charles Dean Hood, may not occur because of allegations that the trial judge and the prosecutor were having an affair during his trial. As Kent noted this morning, the Texas AG has supported inquiry into whether the alleged affair took place.

Third Circuit Rules on Searches of Cruise Ship Cabins:
Orin Kerr, at Volokh Conspiracy, posted today on a Third Circuit decision that held the search of a cruise ship cabin requires reasonable suspicion. The decision, United States v. Whitted, addressed "whether the Fourth Amendment requires any level of suspicion to justify a border search of a passenger cabin aboard a cruise liner arriving in the United States from a foreign port." The Third Circuit ruled yesterday that it does. The case involved the search of a cruise ship cabin that had been docked in St. Maarten and then in St. Thomas. After the ship was docked in St. Thomas, United States Customs and Border Protection boarded the boat and searched the cabins of suspects the officers had reason to believe were bringing narcotics into the United States. The defendant wasn't present when the officers searched her room. They uncovered heroin stuffed in perfume and shaving containers. The Fourth Amendment issue in this case is interesting because it treats the search of a cruise ship cabin as a non-routine border search, which requires reasonable suspicion, instead of a routine border search, which does not. As Kerr notes, "[s]o far, the only kinds of searches that courts have found to be non-routine searches are invasive searches of the person." Kerr's post notes the "fish[iness]" of this decision in light of precedent, and then addresses how narrow the decision really is. Once the same suspects disembark at the border those perfume bottles and shaving containers can be searched without suspicion.

Former Virginia ACLU President Disbarred:
Yesterday, the BLT had this post on the D.C. Court of Appeals decision to disbar former VA ACLU President Charles Rust-Tierney. On July 1, 2007, Rust-Tierney pleaded guilty to charges of receiving child pornography through his home computer. He was sentenced to serve seven years in federal prison in September 2007. Apparently Rust-Tierney consented to disbarment. That means the details of the ethical violations filed against him by the Board on Professional Responsibility remain sealed.

News Scan

Strip Searches Ruled Unconstitutional: In a divided ruling announced last Friday, the federal Ninth Circuit Court of Appeals held San Francisco's policy of strip searching all arrestees to be housed in the jail's general population unconstitutional. The lead opinion In Bull v. San Francisco by Judge Sidney Thomas addresses a class action § 1983 lawsuit brought by several plaintiffs who were strip searched at the jail before the policy was abandoned in January of 2004. In a reluctant concurring opinion, Judge Sandra Ikuta found herself bound by Ninth Circuit precedent "in tension with Supreme Court precedent". A dissent by Judge Richard Tallman was more direct, suggesting that Ninth Circuit decisions on this issue suffer from an "inherent defect in basic logic."

Judiciary Committee Member, and former Chairman, Joe Biden adds heft to Senator Obama's ticket according to this piece in this morning's Wall Street Journal.

News Scan

Nevada's Sex Offender Law is being challenged in federal court, as reported in this AP story by Ken Ritter. Lawyers representing 27 unnamed plaintiffs in a federal civil rights lawsuit claim that a law which creates an internet accessible state registry of 4,941 people convicted of sex crimes since 1956 in unconstitutional. The plaintiffs argue that minor offenders such as those convicted of theft of pornographic magazines would be unfairly included.

Obama on Thomas: At a religious forum last weekend, attended by presidential candidates Barack Obama and John McCain, the moderator asked which Supreme Court Justices they would not nominate. McCain replied that he would not have chosen any of the four more liberal justices, because of their judicial philosophy. Obama initially focused on Justice Clarence Thomas, saying that he is not a "strong enough jurist or legal thinker," and then took the typical liberal tack of implying that any black with a conservative judicial philosophy must be stupid. A piece in today's The Wall Street Journal discusses this approach.

Helping immigrant felons: "A San Francisco city commission has taken a defiant stand against Mayor Gavin Newsom's directive on young immigrant felons by urging officials to permit the offenders to remain in the city and help pay for their housing, job placement services and immigration lawyers," reports Jason Van Derbeken in the SF Chron.

Blog Scan

Justice Department Seeks to Limit District Court Authority to Transfer Detainees: At SCOTUSblog, Lyle Denniston posts that the Justice Department has filed two appeals seeking resolution of whether District Court Judges have the authority to issue orders that regulate the potential transfer of detainees out of Guantanamo Bay. The first appeal was filed on July 25, 2008 and asked the D.C. Circuit Court to rule on Senior District Court Judge Thomas F. Hogan's authority to require the government to give thirty days notice to a detainee's lawyer before the detainee is transferred from Guantanamo. The second appeal, filed today, questions District Judge Rosemary M. Collyer's authority to temporarily bar transfer of a detainee to his home country because he fears torture there. Both appeals argue Congress removed this power from district judges in 2006, and Boumediene v. Bush did not disturb this limit on district court judge authority. The appeals also argued that even without the law, district courts do not have the authority to interfere with Executive control of detainee affairs - aside from examining the basis of detention.

And Can Federal Judges Police Themselves?: Ironically, the Justice Department's second appeal was filed the same day Dan Slater, at Wall Street Journal's Law Blog, asked whether "the System" can "Deal with Incorrigible Judges?" The post discusses Nathan Koppel's article on U.S. District Judge Manuel Real. Judge Real is a federal judge in Los Angeles who was ordered removed from a patent-infringement case against Microsoft because he improperly ignored evidence and failed to state reasons for his decision. Both Slater's post, and Koppel's article, criticize life tenure for judges like Real. Slater writes that "any public shaming appears to have left Judge Real undeterred." Slater also quotes Charles Geyh, a judicial ethics professor at Indiana University, as stating the federal system is not well equipped to deal with incorrigible judges when their behavior does not rise to the level of impeachment.

California Begins to Desegregate Prisons:
Bert Deixler, guest blogging at Sentencing Law and Policy, reports that the State of California Department of Corrections and Rehabilitation (CDCR) has finally taken tentative steps toward integrating its prisons. The Supreme Court ruled California's practice to be unconstitutional in Johnson v. California, 543 U.S. 499 (2005). Deixler represented the plaintiff. According to Deixler, "Sierra Conservation Center and Mule Creek State Prison are the first California institutions to integrate, and there are plans for integration to spread statewise by January. It is anticipated that all 30 of California’s prisons will make the transition by 2010." He further states, "California will surely benefit when its prisons are de-segregated.... In short, all sound penalogic policies will be advanced by getting California out of the practice of racially segregating its prisoners." Commenter "Large County Prosecutor" opines that this is "One of the most truly naive statements ever to appear on this site."

News Scan

DC Guns: David Kopel and Robert Levy have this op-ed in the WSJ calling on Congress to fix DC's latest gun law. A bill called the District of Columbia Personal Protection Act, H.R. 1399 and S. 1001, is available on Thomas.

Prisons Desegregating in CA: As discussed in Lauren's blog scan, California prisons, where discipline is dictated by race-based prison gangs, is beginning to comply with the Supreme Court's 2005 Johnson v. California ruling, which turned state policies that segregate prison inmates into toast. The problem with this feel-good holding by Justices O'Connor, Kennedy, Souter, Breyer and Ginsburg is that it may result in a bloodbath. A story by NPR reporter Frank Stoltze quotes inmates saying "if some guys up there at Level Three or Level Four found out that you bunked with another (race), I mean, who knows, you could get stabbed up." An Aryan Brotherhood enforcer told the reporter "I don't live with them on the streets. I'm not going to bunk with them here."

News Scan

Inmate Confesses to Murder, Halts Execution: Thomas Arthur received his third stay of execution on Wednesday after Bobby Ray Gilbert, in prison for murder, signed a sworn statement that he committed the murder for which Arthur was convicted. Judy Wicker, the victim's wife, served ten years for hiring the killer and maintains that she hired Arthur, not Gilbert. The AP reports that defense attorneys will be examining DNA and witness testimony in light of the new development.

New CA Law Targets Taggers: California's new law will require those convicted graffiti vandalism to clean up their 'art', and may be required to keep the surface clear for up to one year. According to the SF Chronicle's story, the judge will have the discretion to forgo the requirement if the defendant would be at risk of injury during cleaning, such as a highway overpass.

From my stack of post-SCOTUS-term catch-up reading comes this executive summary of a study titled "Assessing Consistency and Fairness in Sentencing: A Comparative Study in Three States." It was released May 22 by the National Center for State Courts. I was not able to find the full study on the web site. (Update: The full study is not online but is available from NCSC.)

Movements to curb discretion in sentencing came into vogue in the 1970s and 1980s due to a suspicion that too much discretion was contributing to discrimination on the basis of impermissible factors, especially race. That concern was a large factor in the Supreme Court's decision tossing out unbridled discretion in capital sentencing in Furman v. Georgia, 408 U.S. 238 (1972), as Justice Thomas explained in his great concurrence in Graham v. Collins, 506 U.S. 461 (1993).*

In noncapital sentencing, the same concerns brought about a political consensus that resulted in the enactment of guidelines systems. In federal sentencing, the Sentencing Reform Act creating the guidelines system was sponsored by the strange bedfellows of Ted Kennedy and Strom Thurmond. But do sentencing guidelines really minimize discrimination? The NCSC study supports the claim that they do.

The Spam King

Doug Berman at SL&P solicited comments regarding what sentence is appropriate for the "Spam King." He has gotten a lot of comments, 60 as of this writing.

What is fascinating to me is that the commenters on this blog, who overall tend to lean toward a more lenient sentencing policy, as the host does, have absolutely no mercy for this guy. Why not? In part, I suspect it's because his crime is one that every user of the Internet (and hence all the commenters) has personally been a victim of. People tend to be more lenient when we have not been victims ourselves. But we shouldn't.

Confrontation and the Murdered Witness

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

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

GVR on Collateral Review Waivers

In two cases today, the Supreme Court issued grant-vacate-and-remand orders (GVR), directing the Seventh Circuit to take another look based on a new position by the Solicitor General regarding the scope of review waivers in plea agreements. The cases are Nunez v. United States, No. 07-818, and Stephenson v. United States, No. 07-9267. Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, dissents in both cases. His position is that the Court lacks authority to vacate the decision of another court unless it finds or the prevailing party concedes that the judgment is erroneous, as distinguished from a correct judgment for a wrong reason.

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

  1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19  

Monthly Archives