Results matching “thomas”

Today's Supreme Court opinion in Indiana v. Edwards is available on the Court's website. The case deals with the issue of the marginally competent defendant who is mentally able to stand trial but not to represent himself, yet he insists he wants to do just that, invoking the 1975 decision in Faretta v. California, 422 U.S. 806.

Today's decision recognizes that the Faretta right is not absolute. The "consensus" on which it was based was formed by cases that recognized there were limits, and that mental competence is one of those limits. See slip op. 9-10, CJLF Brief 7-14.

Dahlia Lithwick has this op-ed in the WashPost puzzling over the nonideological lineups this term:

Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees.

Excuse me, Ms. Lithwick, but nobody here at C&C is "dumbfounded" or "baffled" that the simplistic liberal-conservative model has broken down. (And personally, I never did care for the Bee Gees.)

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

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

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

Understatement of the day award goes to Justice Samuel Alito: "There are no generally accepted accounting principles for determining the net income of illegal enterprises...." United States v. Santos, No. 06-1005 (today) (dissent). The splintered opinion involves more interesting issues than I had thought, and we now have an idea why it took a rare nine months from oral argument to opinion. We have the meaning of an ambiguous word in a statute, the rule of lenity, interpretation of splintered opinions, and the practical realities of organized crime prosecution.

Georgia Pardon Board Halts Execution: Lyle Denniston at SCOTUSblog has a post on the Georgia pardon board's decision to halt the execution of Samuel David Crowe, who was scheduled to die at 6pm tonight. Crowe had been sentenced to die for the armed robbery and murder of a lumber store clerk in 1988. The pardon board commuted Crowe's sentence from death to life without parole. Denniston reported yesterday that Crowe had filed a petition and a stay application with the U.S. Supreme Court, to delay his execution. The Court did not act on the application before the Georgia pardon board made its decision.

Shock Over Jury Sentence: Grits for Breakfast posted yesterday on a jury's decision to forgo a death sentence in favor of a sentence of life without the possibility of parole. The post explores why the Texas jury decided to choose a life sentence, when Juan Quintero had been convicted of murdering "one of Houston's finest police officers." The post explores several theories for the verdict, including the defense team's "top notch lawyering", but ultimately settles on the conclusion that the jury did not believe a death sentence was warranted in this case.

Popularity of Supreme Court Justices: Rasmussen Reports released the results of a national telephone survey assessing the approval rating of the U.S. Supreme Court yesterday. 41% of the voters gave the Court good or excellent ratings, and 19% of the voters rated the Court's performance as poor. Over half (52%) of Republicans rate the Supreme Court good or excellent, just 39% of Democrats do the same. Among unaffiliated voters, 35% say the Justices are doing a good or excellent job. And in a separate survey, Republicans stated they found the Supreme Court judicial appointments to be a bigger issue than the War in Iraq.

Effect of Blakely in Ohio: Doug Berman at Sentencing Law and Policy posted on the Ohio Supreme Court's decision in State v. Hairston, No. 2008-Ohio-2338 (Ohio May 21, 2008). The decision upheld a 134 year prison sentence for a man who tied up four people while ransacking their homes. The decision held that the sentence did not violate "the U.S. constitutional ban on cruel and unusual punishment." Berman posted on the decision because of the dicta in the case calls for a reform to the sentencing laws Ohio had implemented in the wake of the U.S. Supreme Court's decision in Blakely v. Washington. Of particular interest, is the concurring opinion of Judge Lanzinger, who writes: "When a defendant is convicted of multiple offenses, the community may now expect maximum and consecutive prison terms as the default sentence. It will take a courageous judge not to “max and stack” every sentence in multiple-count cases...." A 134 year sentence seems like a good policy argument for allowing some judicial discretion in sentencing - until one reads the press report detailing the details of Hairston's offense.

Best State High Courts: Hat-tip to Lawrence Solum at Legal Theory Blog for directing us to a Stephen J. Choi , G. Mitu Gulati and Eric A. Posner paper ranking the best and worst high courts in the country. The paper ranks the high courts of the fifty states during the years 1998-2000. The abstract and text of the article can be found at SSRN.

Any attempt to measure objectively an elusive concept such as quality of a court is going to be problematic. This paper has a three-part measure: productivity, defined as published opinions per judge per year, "influence or opinion-quality," defined by citations from other jurisdictions, and "independence." The last factor is intriguingly defined by considering a judge independent if he frequently votes with judges of the other party. Applying this operational definition to the U.S. Supreme Court, for example, would result in Justice Stevens (appointed by Republican Gerald Ford) being rated more "independent" than, say, Justice Thomas because Stevens more often votes with Democrat-appointees Ginsburg and Breyer. The validity of this measure is debatable.

Hillary on the Court?: The Washington Post published a column today by Andrew Miller where Miller proposed that should Obama get the Democratic nomination, a surefire way to appease Clinton supporters would be to place Hillary on the Supreme Court. Matthew Franck over at Bench Memos posted his thoughts on the suggestion. Franck's post hypothesizes that such a deal would be a "gift" to John McCain and the Republican Party in the upcoming election. Franck also points out that a commitment to appoint a Justice this early on would put Obama on the record as treating "the Court [as] just another political institution like any other."

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

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

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

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

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

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

Thomas Sowell has this column on Barack Obama, noting that eagerness to have a black President is not a good reason to elect this particular person as President:

Just the power to nominate federal judges to trial courts and appellate courts across the country, including the Supreme Court, can have an enormous impact for decades to come. There is no point feeling outraged by things done by federal judges, if you vote on the basis of emotion for those who appoint them.

Last Friday, this post at Capital Defense Weekly said, "Monday’s order list will give a better understanding of which challenges may or may not meet the plurality’s standard." Yes, I think so. Over at SCOTUSblog, Lyle Denniston writes, "The Supreme Court, without a specific explanation of why it was doing so, chose a single path on Monday in dealing with" a slew of capital cases. The number of capital cases the Court turned down is reported as 11 by Lyle and by an AP story. However, I count 14, including a rehearing denial. The cases are listed at the end of this post.

Lyle seems surprised that the Court gave no explanation for its actions. I do not find this remarkable. The Court usually does not give a reason for denial of certiorari. Moreover, looking at the lower court opinions, none are obviously "certworthy" in light of the Baze opinion's rejection of most of the defense arguments.

Nearly lost in the hubbub over Baze v. Rees were two federal sentencing decisions handed down by the high court this week. For those who practice mainly in the state courts, the results are less important than the statutory interpretation principles applied. These are likely to have persuasive value in state cases.

Death Penalty Methods. AP writer Joe Milicia reported Tuesday that lethal injections are on hold nationally while the Supreme Court considers a challenge in the case from Kentucky. Dr. Mark Dershwitz testified in a hearing saying the process of execution in Ohio was not inhumane, while Dr. Mark Heath says the method is unfit to euthanize a dog. The major claim is that the inmate could suffer from too much pain if not enough anesthetic is administered or there are mistakes injecting the drugs.

Threat maker Found. After years of searching for the racially motivated threat maker, he has been identified. David Tuason, from Cleveland, is alleged to have targeted black men that dated white women. In one of his letters he threatened to blow up the U.S. Supreme Court. A Supreme Court Spokeswoman confirmed that Justice Clarence Thomas was one of Tuason’s victims. The one trait all had in common: they were black.

Virginia: New DUI law
Register-Herald News reporter Mannix Porterfield writes that a West Virginia new law has tougher penalties on drunken drivers. The law will require anyone with a blood alcohol content (BAC) of .15 or higher to have mandatory jail time of two days to six months. Also, anyone with a BAC lower then .14 will have an alcohol ignition device installed in their car known as the Interlock. National MADD director Glynn Birch says, “The new law would “absolutely” lower the number of accidents involving drunken motorists.”

Arizona has the Nation’s toughest drunken driving law
According to the Arizona Republic, DUI first time offenders have an alcohol ignition device installed in their car for a year and when the offender is driving the device will require them to retest. It will cost the offender $75 a month to lease the device. In Arizona a DUI is having a BAC over .08.

Should Sex Offenders’ Home Be Marked?
Today on KPRC News in Houston, Rev. Gilda Black proposed a bill that would identify registered sex offenders by having curbs painted in front of their homes. According to the DPS registry, Black’s neighborhood is home to 32 sex offenders. Some of her neighbors feel that it will bring the value of their property down and it will make sex offenders subject to violence.

Is it right for a repeated sex offender to receive life in prison? Yes, according to this report by KVUE News in Texas. James Ray Ross was sentenced to life on Wednesday for his second conviction for the sexual assault of a 15-year-old girl more than six years ago. Prosecutors say, “He was prosecuted under a special statute for repeat sex offenders that sets an automatic life in prison for the second conviction of sexual abuse of a child.

The Supreme Court issued one opinion today in the political case of Washington State Grange v. Washington State Republican Party, No. 06-713. For criminal law practitioners, the case is primarily of interest for the Court's continuing hostility to "facial" challenges to statutes. In United States v. Salerno, 481 U.S. 739, 745 (1987), the Court set the hurdle for such a challenge almost impossibly high: "that no set of circumstances exists under which the Act would be valid.” The Court has waffled since, but facial challenges remain much more difficult than they were in earlier times, and today the Court rejected a facial challenge to Washington's "blanket" primary, telling the plaintiffs to wait until the law is actually applied and then challenge it as applied.

For Court-watchers, the lineup is interesting. Justice Scalia, the author of Salerno, dissents, claiming that the case meets that standard. Justice Thomas wrote the opinion from which Justice Scalia dissents, further refuting the nonsense that he just follows Scalia. Justice Kennedy, the "swing vote" who was always in the majority last term, is in the dissent again.

Still waiting on Medellin and Boumediene. Maybe tomorrow.

Another Supreme Court decision day and another lone civil case, with no decision in Medellin v. Texas. There remain three undecided cases from the October calendar: Medellin, the Washington political primary case, and the Santos money laundering case. Four Justices have not yet written an opinion from that session, and it is likely that three of them are authors of the three undecided cases: Chief Justice Roberts, Justice Thomas, Justice Breyer, and Justice Alito. I expect that Medellin is a win if any but Justice Breyer is writing it, but why is it taking so long? It could be that there is a fracture on how to get to the result, and the Court is trying to put together a coherent majority opinion.

An Arsonist Turns to Stalking. Today on sfgate.com Gene Johnson, from Associated Press, writes that Allen Parmelee is spending the remainder of his 24-year sentence digging up information on the judges, lawyers and police officers that put him behind bars. Under Washington’s state Public Records Act, anyone has the right to petition records that are public. However, King County Prosecutor, Dan Satterberg is not only trying to deny him access to the records, but have a judge bar him for petitioning any more records.
Parmelee was convicted at his second trial for first-degree arson. His first trial ended in a mistrial because Parmelee had personal information about the jurors. Since his conviction, Parmelee has been gathering more information such as schedules, pay, photos and even addresses about deputies and other criminal justice officials.

Death Penalty: Tom Fahey writes on unionleader.com that Senator Joseph Kenney, R-Wakefield, sponsored SB 344 to expand New Hampshire's death penalty. Current law allows a death penalty for murder during a rape or kidnapping, killing a police officer or judge, murder for hire, a murder during a drug deal or by someone already serving life without parole. Kenney wants to expand the law to apply to multiple murders and attempted multiple killings.
Michel Woodbury shot and killed three men in a robbery July 2007. Jennifer Walker Blake, sister of one of the victims, supports the bill because under current law, her brother's killer cannot be sentenced to death. She says “Victims were murdered because they were in the wrong place at the wrong time”.

No Guns for the Mentally Ill. According to the Psychiatric News, the federal government may fund the tracking of those who have been to a psychiatric hospital to prevent them from purchasing guns. The sponsor of the new law Rep. Carolyn McCarthy (D-N.Y.) has also been the victim of the mentally ill gunman who killed her husband on a commute train 14 years ago. Advocates believe that the new law could have prevented the 32 deaths last year at Virginia Tech if it was passed sooner. However, the bill will not require background checks at private sales and at gun shows. In the article, Paul Appelbaum, M.D, chair of the APA states that people with mental illness only contribute to 3-5 percent of gun crimes. Also, mental health advocates are concerned about the privacy rights of patients. The National Instant Criminal Background Check System (NICS) Improvement Amendment Act of 2007 is also related to the new gun law.

PornoCop: The Ninth Circuit today denied rehearing in the case of Dible v. City of Chandler, No. 05-16577. The court held that the city of Chandler, Arizona can decide that operating a hard-core pornographic web site is incompatible with being a police officer.

The public expects officers to behave with a high level of propriety, and, unsurprisingly, is outraged when they do not do so. The law and their own safety demands that they be given a degree of respect, and the sleazy activities of Ronald and Megan Dible could not help but undermine that respect. Nor is this mere speculation. Almost as soon as Ronald Dible’s indecent public activities became widely known, officers in the department began suffering denigration from members of the public, and potential recruits questioned officers about the Dibles’ website.

Update Jan. 31 at 3:55PST: The Supreme Court has granted a stay pending filing and disposition of a certiorari petition. AP story is here. SCOTUSblog post here.
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The Eleventh Circuit vacated a stay of execution granted on an injection claim in McNair v. Allen. The court found that the § 1983 claim was barred by the statute of limitations. There are two plaintiffs in the case. The one with an imminent execution date (tomorrow) is James Callahan.

The full details of Callahan’s crime are set forth in Callahan v. Campbell, 427 F.3d 897, 903-10 (11th Cir. 2005). In short, on February 3, 1982, Callahan abducted 26-year-old Rebecca Suzanne Howell from a laundromat in Jacksonville, Alabama. He murdered her, then dumped her body in a creek, where it was discovered two weeks later.

Footnote 1: Although Callahan was not charged with rape, forensic evidence suggested Howell was sexually assaulted prior to her death.

The decision is correct based on pre-Baze precedent on a ground not at issue in Baze. There would seem to be no reason for the Supreme Court to grant a stay. However, after the Supreme Court granted certiorari in Baze, which does not involve a default issue, it did grant stays in other cases involving defaulted claims. At this point, the justices probably know what their decision is going to be in Baze, and it will be interesting to see if they grant a stay in this case. If I had to bet, I'd put my money on a grant. AP story is here. Lyle Denniston has this post at SCOTUSblog, and Doug Berman has this one at SL&P.

Next door, the inmates in the Florida injection cases, Ian Lightbourne and Mark Schwab, have asked Justice Thomas for an extra two months to file their cert. petitions here and here. Extension requests are typically decided by the circuit justice (unlike stays of execution, which the circuit justice almost always refers to the full court), so it matters that Florida is in Thomas Country.

The Supreme Court today issued an orders list and one opinion. The opinion in Ali v. Federal Bureau of Prisons is an exercise in statutory interpretation on the federal government's waiver of sovereign immunity in 28 U.S.C. § 1346(b)(1) and an exception to that waiver in 28 U.S.C. § 2680(c). The interpretation question had split the Courts of Appeals 6-5, and today it split the Supreme Court 5-4. The lineup was a little unusual, with Justice Kennedy in the dissent and Justice Ginsburg joining Justice Thomas's majority opinion. The bottom line is that the government does not waive sovereign immunity for a claim arising out of detention of property by any federal law enforcement officer, not just those enforcing customs and excise laws. There is an administrative remedy for prisoner Ali's claim, but it was decided against him.

The orders list, as expected, consists of "vacate and remand in light of..." orders and denials of certiorari. The grants for full briefing and argument were announced Friday. Among the denials are Jones v. Jennings, No. 07-654, on excessive force on a resisting arrestee and Gilmer v. Mississippi, No. 07-183, on that state's "video voyeurism" statute.

On the March argument calendar, the most important case for general criminal law practice is Indiana v. Edwards, No. 07-208, scheduled for Wednesday, March 26. In this case, the Supreme Court will finally answer the question raised 33 years ago when it constitutionalized the right of the defendant to represent himself in Faretta v. California, 422 U.S. 806 (1975). Many states have interpreted this case to extend that right to anyone mentally capable of making an intelligent waiver of counsel, even if he is not capable of making a coherent defense. This view of Faretta produced the circus in Panetti v. Quarterman, decided last June. See CJLF Panetti brief here. CJLF will file a brief in Edwards asking the Court to clean up this mess of its own making.

Also on the calendar are the D.C. gun case March 18, Rothgery v. Gillespie County on when the Sixth Amendment right to counsel attaches on March 17, two federal sentencing cases on March 24 and 25, and a pair of citizen detainee cases on March 25.

We are still waiting for a decision in Medellin v. Texas, argued October 10. (Briefs are here; argument transcript here.) This is the case on the Vienna Convention on Consular Relations and the International Court of Justice decision on the cases of 50+ Mexican nationals on death row in the United States.

The Court picked some low-hanging fruit today. In New York State Bd. of Elections v. Lopez Torres, the Court answered the question of whether the federal constitution requires primaries in state judicial elections. (Answer, without dissent: of course not.) The opinion is by Justice Scalia, and the case was argued October 3. There is also an eyes-glaze-over tax case, Knight v. Commissioner. This is a unanimous opinion by Chief Justice Roberts in a case argued a mere 7 weeks ago.

At this point, we can start playing the SCOTUS-watchers' favorite parlor game, guessing the outcome of the remaining October cases by guessing which justice they are assigned to. There were nine cases on the initial calendar, but one of them was one-lined per curiam when Justice Kennedy was recused and the others split 4-4. Opinions from that session have been written by Stevens (Gall), Souter (Watson), Ginsburg (Kimbrough), Kennedy (Stoneridge), and Scalia (today's New York case). Assuming the opinions are spread among the justices, as they generally are, this leaves four justices (Roberts, Thomas, Breyer, and Alito) and three cases. In addition to Medellin, there is Washington State Grange, on that state's primary election law, and United States v. Santos, on money laundering.

I expect that Roberts, Thomas, and Alito will all vote for the State in this case. If so, Medellin would win only if Breyer is writing the opinion, and he would be doing that only if Stevens assigned it to him. I'm inclined to think that Stevens would have kept a blockbuster case on presidential power and international court relations for himself if he were making the assignment, but that is admittedly just speculation at this point. Stayed tuned.

Death Penalty: A Second Circuit ruling last Friday upheld the federal convictions and life sentences of two New York murderers, rejecting their claim that the trial judge's dismissal for cause of potential jurors opposed to the death penalty, based only on their written answers on a questionnaire rather than through direct examination, was unconstitutional. This AP story discusses the case. In fact, these two defendants lucked out. In a new trial, the prosecution might have been able to seek the death penalty again with a new jury.

Gangs: An Associated Press story by Thomas Watkins reports how the Los Angeles-based Latino street gang F13 has targeted blacks caught in the neighborhood marked as their "turf" for murder in order to keep rival black gangs at bay. This information comes from a joint federal and state effort to prosecute 102 members in the largest federal case involving a single gang. For years, groups which sympathize with criminal defendants have claimed that the criminal justice system is biased against minorities, citing the fact that mostly blacks and Hispanics are arrested for drug dealing and violent crimes in many large cities. The inconvenient truth is that the dominant urban gangs that traffic in drugs, racketeering, and violence are either black or Hispanic.

Penn. DP: Emilie Lounsberry has this story in the Philadelphia Inquirer on efforts to have the death penalty carried out in Pennsylvania. The state high court has affirmed four death penalties in five days.

Candidates' Views: The Pew Forum on Religion and Public Life has this summary of where the presidential candidates stand on the death penalty. Notably, not a single candidate with the proverbial snowball's chance is in favor of abolition of the penalty. (Nonfactors Dennis Kucinich and Ron Paul are the only ones.) If the country really were turning away from the death penalty, as opponents claim, one would think that at least one major candidate would be trying to ride that wave.

More Candidate Views, this time on the International Criminal Court, reported by Bob Egelko in the SF Chron.

Timmendequas's Law is set for a vote tomorrow in the New Jersey Assembly, to change New Jersey's abolition of the death penalty from de facto to de jure. Tom Hester has this report for AP. Google News has comments by Robert Blecker and Richard Dieter.

GPS Tracking provided a quick partial solution to drive-by murder of Nelly Vergara in Los Angeles Monday, Thomas Watkins reports for AP. Police cross-checked the time and place of the murder with the tracking devices worn by some parolees and arrested MS-13 gang member John Garcia. "We are not dealing with the brightest bulbs in the circuit," said Chief Bratton. "This character has to be one of the stupidest people in the city of Los Angeles." Although GPS shows Garcia's presence at the scene, witnesses are still needed.

"She wanted to save money and buy her first home and because of these people that shot at her, her dreams are not a reality any longer," Vergara's mother Mireya Robles said in Spanish through heavy tears as she asked for witnesses to come forward. "I can't even begin to tell you my pain."

The Kimbrough and Gall cases are the subjects of copious commentary, but this one by Frank Bowman at SCOTUSblog is particularly good.

Curtis Dean Anderson, a notorious sexual predator, died in prison of unspecified medical problems, Marisa Lagos reports in the SF Chron. Anderson kidnapped and raped two young girls in Vallejo, northeast of San Francisco, and murdered one of them, Xiana Fairchild.

Here is some coverage of the Federalist Society convention: Fred Lucas of CNS News on Justice Thomas's talk Thursday; Robert Barnes of the Washington Post, on the Thursday night dinner with remarks by President Bush and by Justices Scalia, Thomas, and Alito; and Blog of the Legal Times on today's Barbara Olson Memorial Lecture by Chief Justice Roberts.

None of the press coverage I have seen picked up on what I thought was the most interesting remark in Justice Thomas's talk. An audience question began with the premise of his "commitment to natural law." He rejected the premise. He said natural law was an important concept in the philosophy that went into the Constitution, so one needs to understand it to understand the document, but he has never made natural law itself a basis for judging. That was very good to hear. When "natural law" is used as a basis for judicial review of statutes, it carries the danger of greasing the already slippery slope to judicial activism.

Also on today's program was a debate between Judge Reinhardt and Judge Kozinski of the Ninth Circuit on property rights. In the middle of a property rights debate, Judge Reinhardt managed to get in a swipe at the Antiterrorism and Effective Death Penalty Act of 1996's limitations on habeas corpus. Really.

The U.S. Supreme Court released its orders list from Friday's conference this morning. No criminal cases were granted. One of the Confrontation Clause cases we were following, Cage v. California, was denied. Prior post on Cage is here.

Daily Writ tallies humor in oral argument here. They count the number of times "(Laughter)" appears in the transcript following a justice's question or statement. In order: Scalia, Roberts, Stevens, Breyer, Souter, Kennedy, and Alito. Goose eggs for Thomas and Ginsburg.

UPDATE: Senators Schumer and Feinstein declared their support for AG nominee Mukasey, making his confirmation "virtually assured," report Richard Cowan and Thomas Ferraro of Reuters.

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Sen. Charles Schumer, who had recommended AG nominee Michael Mukasey, finds himself in a tough spot as fellow Democrats turn against the nomination over waterboarding. The Washington Post has an article by Dan Eggen and Paul Kane today. Memo to Senators: Have you forgotten you are the legislative branch? Just pass a law. Instead of grilling Judge Mukasey about whether he thinks waterboarding is legal, specify in a statute whether it is or not.

In the constitutional system of checks and balances, the separation of powers is not total. The President exercises legislative power in the veto. The Senate exercises executive power in its advice and consent function. There are a few other examples. These checks on other branches' powers are important, but they should be used sparingly. The President should sign almost every bill Congress sends him, and historically he has. Similarly, the Senate should confirm the vast majority of nominees, and historically it has. Using the advice and consent function to grill nominees regarding their interpretation of what the statutes presently allow is a misuse of that function. Instead of asking whether the nominee thinks that general law X allows specific practice Y, Congress can and should pass a statute specifically governing Y. If the members concerned about Y can't pass the statute because they can't convince a majority of their colleagues of their position, then the nominee's views are not so far outside the mainstream as to justify not confirming him.

Death Penalty: Senior Ninth Circuit judge Arthur Alarcon, who supports capital punishment says the delays in executions, averaging over 17 years, are the result of the California legislature's unwillingness to fund the system, as reported by Henry Weinstein in yesterday's Los Angeles Times. The judge said that legislators "may be comfortable with a de facto abolition of capital punishment."

Fugitive Caught: A man sought by both state and federal police for the videotaped rape of a 3-year-old girl has been arrested in Henderson, Nevada according to this AP story by Ken Ritter. Habitual criminal Chester Stiles was identified and arrested by police after he was pulled over late Monday for not having a license plate.

Justice Thomas is the subject of this favorable Los Angeles Times editorial by James Kirchick, which addresses criticism of his views on affirmative action. He cites liberal Thomas bashers for being guilty of "blatant intellectual inconsistency" and hypocrisy.

Patriot Act: A federal district judge in Oregon has ruled two key provisions of the Patriot Act unconstitutional as reported in this Associated Press story by William McCall. The opinion by District Judge Ann Aiken held the search and wire-taping provisions of the Act "extra constitutional". Orin Kerr has an analysis at the Volokh Conspiracy.

Mistrial: The judge in the Phil Spector murder case has declared a mistrial according to an Associated Press story by Linda Deutsch. The judge issued the ruling after learning that the jury was deadlocked 10-2 in favor of conviction. A juror in the majority said that the holdouts wanted psychiatric evidence that the victim, Lana Clarkson was not suicidal. The District Attorney is expected to announce the intention retry Spector at a hearing on October 3.

DeLay Dismissal Affirmed: The Texas Court of Criminal Appeals has rejected a request to reconsider a trial judge's ruling dismissing election-law conspiracy charges against former House Majority Leader Tom DeLay as reported in this story by AP writer Kelley Shannon.

Alabama Stay: Gov. Riley stayed the execution of Thomas Arthur for 45 days. Statement here. “The evidence is overwhelming that Thomas Arthur is guilty and he will be executed for his crime. The decision to grant a brief stay is being made only because the state is changing its lethal injection protocol, and this will allow sufficient time for the Department of Corrections to make that change,” Governor Riley said.

"Capital punishment is exclusively for people without capital," is one of the anti side's favorite lines. The well-heeled and the politically connected never receive death sentences, they will tell you. One minor problem: it's not true. Yesterday, the California Supreme Court upheld the death sentence of Enrique Zambrano.

The prosecution’s evidence indicated that defendant, a member of the Berkeley Waterfront Commission, bludgeoned the Mishells, a University of California professor and his wife, because he believed they had made anonymous telephone calls exposing his extramarital affair. The evidence further indicated that defendant then fatally shot Reyna, a fellow waterfront commissioner, to prevent Reyna from testifying against him in the Mishell matter.

Defendant admitted attacking the Mishells, but claimed provocation. He asserted that Reyna’s death was an accident. Defendant admitted that, to cover up the homicide, he decapitated, dismembered, and scattered Reyna’s body, then fled to Mexico with his girlfriend.

Henry Lee has this story in the SF Chron. There are other examples, such as the Thomas Capano case in Delaware. They are not common simply because the well-heeled rarely commit capital murder, but they are frequent enough to disprove the exaggerated claims we often hear.

Justice Thomas's jurisprudence is the subject of this article by Brent Kendall in the LA Daily Journal, available through How Appealing.

Grayson Execution
From The Montgomery Advisor an AP story, reports that Darrell Grayson was executed Thursday evening by lethal injection for the murder of 86-year-old widow Annie Laura Orr and pronounced dead at 6:16 p.m.. The 46-year old Grayson had been adopted by activists as an example of the need for a state law mandating DNA testing for Death Row inmates. The Innocence Project, a New York-based nonprofit that represents the condemned, had argued that DNA tests not available at the time of Grayson's trial might have proved him innocent. The victim’s granddaughter, who witnessed the execution, wiped away tears and in a statement said, “The Orr family has seen the final chapter of a 27-year struggle.” More on this in yesterday’s News Scan.

Home Invasion Suspects on Parole Hit Other Homes, Prosecutors seeking the Death Penalty
The AP reported Thursday that Joshua Komisarjevsky and Steven Hayes, both on parole for non-violent crimes, could face the death penalty if convicted of killing Dr. William Petit’s wife and two daughters, then setting the house on fire. The Houston Chronicle has story today about the two suspects possibly being involved in two other burglaries in the area the night before. Two other homeowners who spoke with police said the suspects had burglarized them while they were sleeping. “We were within 24 hours of being that family,” said one of the victims of the burglaries.

CA Supreme Court overturns Inmates Death Sentence
The California Supreme Court, in a rare ruling, withdrew an inmate from death row after concluding that a new penalty phase is needed because there is now “substantial doubt” that he was the actual killer. The LA Times reports that the prosecution alleged that James Edward Hardy was hired by Mark Reilly (also convicted in 1983) to murder Reilly's wife and 8-year old son to collect insurance money. Hardy's lawyers presented evidence that a third man was the actual killer. The Supreme Court agreed that the evidence proved Hardy wasn't the actual killer but still guilty of murder for his active participation in planning it. In an opinion written by Justice Kathryn Mickle Werdegar, she said that the new evidence "so undermines our confidence in the penalty verdict that a different, more favorable result was reasonably probable had this evidence been presented to the jury."

It's been clear for some time that Congress overreacted to the crack "epidemic" in the mid-1980s by providing the same sentence for 5 grams of crack cocaine as for 500 grams of powder. Stated another way, a major pusher with 499 grams of powder cocaine gets a lower sentence than a smaller fish with 5 grams of crack. Though it is generally agreed something needs to be done, there has been deadlock on exactly what to do.

Senators Sessions, Pryor, Cornyn, and Salazar have introduced S. 1383, available through Thomas. This bill reduces the powder threshold for the mandatory minimum from 5kg to 4kg and increases that for crack from 5g to 20g, leaving a 20/1 ratio. The bill also seeks to increase the sentencing spread between leaders and minor followers in drug enterprises, directing the Sentencing Commission to increase the former and decrease the latter.

Senator Biden has introduced S. 1711 (hat tip, SL&P). The text isn't on Thomas yet, but his introductory remarks are in the Congressional Record at S8614-S8615. One historical nugget in his remarks: The Reagan Administration proposed a 20/1 ratio. It was Sens. Biden, Byrd, and Dole who upped it to 100.