Results matching “October Arguments”

No Delay for Ohio Execution:  At Sentencing Law and Policy, Doug Berman writes that the Ohio Supreme Court has refused to delay the October 8 execution of Lawrence Reynolds Jr.  Yesterday's News Scan reported that Lawrence Raymond Reynolds Jr. had claimed Ohio's execution protocol was inadequate and had requested a stay.  Today, Alan Johnson of the Columbus Dispatch reported that the Ohio Supreme Court "dismissed the appeal and denied the stay request, both on 6-0 votes."  Berman predicts that the Sixth Circuit will grant a stay.

The Outer Limits of Edwards v. Arizona:  At CrimProf Blog Don Dripps and Yale Kamisar discuss upcoming Supreme Court case Maryland v. Shatzer, a case where the facts "read almost like a question on a law professor's criminal procedure exam."  Shatzer addresses whether the incriminating statements of a child molester, made almost three years after he first invoked his right to an attorney, are inadmissible under Edwards' rule that when a suspect asserts his right to counsel the police cannot re-initiate interrogation. The Maryland trial court ruled that Edwards did not prevent use of the defendant's statements, but the Maryland Court of Appeals reversed. The court of appeals was unable to find any case that relied "solely upon the passage of time factor standing alone" (emphasis in the original) to conclude that the Edwards protection had expired.  Dripps and Kamisar predict that the Supreme Court will overrule the court of appeals' decision.  They believe that "odds are high that the Court will say that no reasonable suspect could possibly believe that the police were pestering him if they had "tried again" 31 months after their first meeting with the suspect."  The Supreme Court will hear arguments on Monday, October 5th.  CJLF's brief in the case is available here.  Orin Kerr has a quick post on Dripps and Kamisar's piece on Volokh Conspiracy.

Pilot Program to Protect Maryland Domestic Abuse Victims:  Jordan Weissman writes for The Blog of Legal Times that courts in Montgomery County, Maryland are launching a new program to safeguard domestic abuse victims.  The program will allow victims to file protective orders without ever setting foot in court.   Instead, they will file protective orders from the Montgomery County Family Justice Center, and have judges hear their requests via a video link to the courthouse.  The program is meant to respond to instances where women were killed by their abusers at or near courthouses in Maryland.  According to Chief Judge Ben Clyburn of the District Court of Maryland the program is patterned after a model used in San Diego, where courts have also adopted video conferencing to protect abuse victims.

Petition for Cert. in Exclusionary Rule Case:  Today, on Volokh Conspiracy, Orin Kerr posts snippets from his petition for certiorari in McCane v. United States.   According to Kerr, McCane addresses "[w]hether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional."  He, and co-counsel William H. Campbell, argue that Court should grant certiorari because this particular exclusionary rule question "is raised every time a court issues a ruling in a defendant's favor that departs unexpectedly from earlier decisions. Criminal defendants with similar cases still in the pipeline will invoke the new ruling in support of suppression. The question is, does the new case apply in full force so that the evidence is suppressed? Or does the good-faith exception to the exclusionary rule apply so that the evidence is admitted?" Kerr's petition, written on behalf of defendant Markice McCane, addresses the Tenth Circuit's conclusion that McKane's conviction for being a felon in possession of a firearm should nevertheless be upheld because the good-faith exception to the exclusionary rule applied.   The search revealing McKane's possession of the gun was conducted before Arizona v. Gant overruled New York v. Belton.

Supreme Court Irrelevant?:  Wall Street Journal Law Blogger Ashby Jones posts on Barry Friedman's New Republic article "Benched. Why the Supreme Court is Irrelevant."  According to Jones, Friedman's main point is that the Supreme Court is becoming irrelevant as it continues to regularly punt "on the big issues of the day."  Friedman faults the Roberts court for looking to avoid trouble by taking fewer hot-button cases and by handing down rulings on relatively narrow grounds on the big cases they have decided to take.  He believes the Court's actions are largely a matter of politics.  A skeptical Friedman writes, "don't expect much in the way of blockbusters from the Roberts Court anytime soon. Stuck between political forces on the left and conservative disarray on the right, the Court will most likely continue to creep rightward with no bold agenda."

In Friday's orders list, the Supreme Court granted the motion of the US SG to participate in oral argument in McDaniel v. Brown, No. 08-651. Nothing remarkable there; the SG almost never gets turned down. Now, on the very next business day, the Court has taken Brown off the calendar.

As we noted here, counsel for Brown apparently decided while writing their merits brief that the sufficiency of the evidence argument that they had been making the whole time and that was the basis of the Ninth Circuit's opinion is simply indefensible. Further discussion of what a stinker the Ninth's opinion in this case is can be found in the previous post.

So what will the high court do next? Will they appoint an amicus to defend the judgment below on its terms? Maybe. Will they just vacate the decision to allow the Ninth to consider the alternative ground of ineffective assistance decided by the District Court but not by the Court of Appeals? That's my guess. Stay tuned.

New Article on "Race, Death and Disproportionality":  At Sentencing Law and Policy, Doug Berman posts this link to Scott Howe's SSRN article discussing "racial bias in capital selection."  Howe, of Chapman University School of Law, argues that the Eighth Amendment requires examination of "[s]tatistical studies showing unconscious racial bias in capital selection[.]"  He seeks to show "why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to 'cruel and unusual punishments.'"  He seeks to show how these studies will influence the Supreme Court's death penalty decisions in the future.  Howe's article does not appear as though it will give much insight into what the Supreme Court will do with these studies.  The Baldus study was rejected as grounds for overturning Georgia's death penalty in McCleskey v. Kemp because McCleskey had failed to show Georgia acted improperly, and with a discriminatory purpose, in his case.

Criticism of Sex Offender Article:  On Sex Crimes yesterday, Corey Rayburn Yung posted a link to Wendy Murphy's opinion piece "Sex Offender Laws Flawed But Critical."  In her op-ed, Murphy criticizes the Economist article, "America's Unjust Sex Laws," as a "puff piece about how sex offenders are treated unfairly and sex offender registries are barbaric."  She writes that the Economist article did not reveal all of the relevant facts and "misse[d] the most important point of all - that the American legal system has historically perpetuated sexual violence by disproportionately failing to redress violence against women and children...." Yung agrees with Murphy that the American legal system has failed and continues to fail women and children in regards to sexual violence, but counters that because the problems in the the system are at the law enforcement and trial phases of criminal justice, increasing collateral restrictions on sex offenders does nothing to correct those deficiencies.  In another, somewhat related post on sex offender registries, CrimProf Blog posts the lead-in to a New York Times article by Monica Davey on how the case of Phil Garrido, "Shows Limits of Sex Offender Alert Programs."

Supreme Court Retirement Speculation:  At Blog of Legal Times, Tony Mauro reports on an Associated Press story that has bloggers wondering whether Justice Stevens will be retiring next year.  Apparently, Justice Stevens has hired only one clerk for the October 2010 term, which contradicts his custom of hiring his full complement of four clerks for the term that begins a year hence.  Mauro states that such speculation is often "inaccurate," but those who have clerked for the Justice in the past believe the move is telling, particularly since Justice Stevens will be 90 next year.  Doug Berman also posts on the story at Sentencing Law and Policy, as does Jan Crawford Greenburg at Legalities.  Greenburg points out that the reporter who broke the story, Mark Sherman, is the same reporter who let us know in April that Justice Souter hadn't hired any new clerks for the October 2009 term.       

Off topic News Article on Unlikely Amicus Bedfellows:  On Saturday New York Times writer Adam Liptak reported on the Supreme Court's decision to hear a new argument in the First Amendment case, Citizens United v. Federal Election Commission.  Arguments are scheduled for September 9th.   The case centers around "Hillary: The Movie," a documentary prepared by a conservative advocacy group called Citizens United.  The issue is whether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers.  Liptak reports that the court's order calling for re-argument "has generated more than 40 friend-of-the-court briefs," and has the ACLU aligned - surprisingly - with the National Rifle Association.  The ACLU's usual allies have taken a different stance, arguing that allowing corporate money to flood the airwaves would pollute and corrupt political discourse.  According to Liptak, the strange ACLU-NRA alliance comes from the ACLU's long supported position that regulation of corporate campaign spending may violate the First Amendment.  He reports several others in the civil rights community disagree with this position. 

Eliminating Counties' Roles in Death Penalty:  At Sentencing Law and Policy, Doug Berman posts a link to a SSRN article, Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty, by Professor Adam Gershowitz.  In his article, Gershowitz argues that the power of local county prosecutors to decide when to seek the death penalty "has proven to be arbitrary and inefficient."  He argues that the discrepancy between large counties with large budgets and trained prosecutors, and small counties with limited budgets and resources, has led to "geographic arbitrariness" in implementing the death penalty.  Gershowitz advocates that all aspects of capital cases (charging, trial, appeal) be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases.  He believes this will minimize the geographic arbitrariness of the death penalty and cut costs.  Berman likes Gershowitz proposal, but believes that the local nature of capital cases will prevent counties from relinquishing control of the death penalty.  This is an accurate statement.  Counties, and those dealing with the lasting effects of a murder, are often the best ones to determine who should receive the ultimate punishment.

Ohio Supreme Court on Apprendi's Prior Conviction Exception:  Doug Berman posts on today's unanimous Ohio ruling that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender's prior convictions that is part of the judicial record.  In Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009), Hunter was charged with felonious assault for attacking a church employee when he was asked to leave the building. In its indictment, the state included an Repeat Violent Offender (RVO) specification based on Hunter's earlier conviction for striking and injuring a corrections officer while he was incarcerated at the Cuyahoga County jail. Hunter moved for separate proceedings on the assault count and RVO specification, and waived a jury trial on the RVO charge.  He was convicted by a jury on the assault count. In a separate hearing before the judge, he was also found guilty on the RVO specification. Hunter was sentenced to eight years in prison for the assault, and two years were added to that term based on the RVO specification.  Ohio held its ruling was consistent with Shepard v. United States, because Shepard allows a trial court to consider "these documents, which are 'judicial record evidence' created in connection with his prior conviction." 

Summer Issue of The Green Bag Released (With 2008 Supreme Court Revue):  At Volokh Conspiracy, John Elwood posts a link to his latest publication,  What Were They Thinking, The Supreme Court in Revue, October 2008.  The article appears in Summer 2009 issue of The Green Bag, and discusses what Elwood believes are "top eight areas of legal development in the Term's decisions."  These include "underperformers" like Northwest Austin Municipal Utility District No. 1 v. Holder, "procedural niceties" such as Aschroft v. Iqbal, as well as criminal law cases, the Fourth Amendment case Safford Unified School District v. Redding, due process issues, the APA, the "big preemption opinion" of Wyeth v. Levine, and the First Amendment case Pleasant Grove City, Utah v. Summum.  Ed Whalen posts excerpts from Elwood's "informative yet irreverent" piece over at NRO's Bench Memos.

Crime, Culpability and Moral Luck: CrimProf Blog provides the abstract and a link to Alec D. Walen's SSRN piece commenting on Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse).  Walen's article discusses his belief that Alexander, Ferzan, and Morse's argument is fundamentally morally misguided.  He argues that by focusing on "outcome luck" the authors fail to hold actors liable for the harms they cause when they have taken less care they should.  Walen argues that "outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b)."
 
Supreme Court Preview of McDaniel v. Brown:  CrimProf's graduate fellow, Peter Stockburger previews another one of our Supreme Court cases, McDaniel v. Brown, over at CrimProf Blog.  Stockburger's preview states the question presented, and then provides paraphrases of the briefs of the parties in order to provide an overview of the cases and the advocates' arguments.  At issue in this case is whether analysis of a sufficiency-of-the-evidence claim pursuant to Jackson v. Virginia permits a federal habeas court to expand the record or consider nonrecord evidence to determine the reliability of testimony and evidence given at trial.  Our brief in Brown is available here.  Kent's most recent post on Brown can be found here. 

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

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

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

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

Supreme Court Preview: Maryland v. Shatzer: On SCOTUSblog, Georgetown Law student Diana Gillis previews the U.S. Supreme Court case Maryland v. Shatzer (08-680).  The Court is scheduled to hear oral arguments in the case on Monday, October 5th.  As reported earlier, Shatzer takes up the issue of whether Edwards v. Arizona requires police to cease interrogation indefinitely, once a suspect asserts his right to counsel.  In Shatzer's case, the Maryland Court of Appeals held that Edwards did, and found inadmissible the incriminating statements Shatzer made almost three years after he first asserted his right to counsel.  In her case preview, Gillis nicely sums up the facts of the case and gives brief synopsis of Maryland and Shatzer's briefs.  The Maryland brief argues that Edwards' protection should lift when there has been a break in custody or a substantial lapse of time.  These arguments are similar to those that John Roberts made before the U.S. Supreme Court in United States v. Green.  Green was dismissed without decision.  In response, Shatzer argues that a break in custody limit would undermine Edwards' goal of protecting suspects from coercion.  He also argues that any "lapse in time" rule is arbitrary.  He especially doesn't like the position taken in our brief that Edwards' presumption should expire after 30 days.

"Becoming belligerent with a police officer is almost never a good idea."  That's the advice that James Taranto gives as he recaps the Henry Louis Gates saga on Wall Street Journal's Best of the Web.  Taranto's advice is based on a personal experience with police officers.  One day in the mid-1990s Taranto was a house guest and  a neighbor mistook for a suspicious man roaming the area.  The officers arrived, Taranto kept his cool, and the officers left.  For those unfamiliar with Gates' story this AP story gives some quick details.  Apparently, Gates, director of Harvard's W.E.B. Du Bois Institute for African and African American Research, was locked out of his Cambridge, MA, house one afternoon. A woman called police and "reported seeing a man try to pry open the front door."  When an officer arrived, he asked for Gates identification.  The Boston Globe reports that Gates showed his driver's license and Harvard identification card.  The problem began when Gates accused the officer of being a racist.  He was booked for "exhibiting loud and tumultuous behavior," although charges were later dropped.

Virginia to Address Melendez-Diaz:  At Blog of Legal Times, Tony Mauro reports that Virginia's Governor, Tim Kaine, has called a special session of the state General Assembly on Aug. 19 to respond to Melendez-Diaz v. Massachusetts.  The Supreme Court's decision requires lab technicians to appear at trial if the prosecution introduces at trial written reports or certificates prepared by the technician.  Virginia has a special interest in this decision since the Supreme Court recently granted certiorari in Briscoe v. Virginia, a case that will examine Virginia's rule regarding this type of evidence.  We've blogged about Briscoe before, and as Mauro correctly states, "Virginia may be able to make relatively minor adjustments to its laws to accommodate Melendez-Diaz."  We hope Virginia doesn't make these adjustments too quickly.  Briscoe is a good case to place some limits on Melendez-Diaz's potential impact.

Supreme Court Justice News:  Also on Blog of Legal Times, Tony Mauro posts on "The Bush Judicial Legacy, By the Numbers."  The post links to the latest issue of Judicature which states "[Bush's] judicial legacy may well be Bush's most enduring accomplishment[.]"  On The Ninth Justice, Amy Harder reports that Senator Graham will endorse Judge Sotomayor, and Senator Kyl will not.  According to Jan Crawford Greenburg at Legalities, Senator Kyl will not endorse Judge Sotomayor because her testimony was "evasive, lacking in substance and, in several instances, incredibly misleading[.]"

The Power of an Amicus:  On Volokh Conspiracy, Eugene Volokh has been offering up a series of posts on amicus curiae briefs.  Today's offering tells us that less is more in amicus briefs.  Previous posts include "Amicus Briefs -- Why File Them?" and "Amicus Briefs Supporting Petitions for Discretionary Review."  All of the posts include excerpts from Mayer Brown LLP's treatise on Federal Appellate Practice.      

The U.S. Supreme Court has published its argument calendar for the beginning of the new term in October. The first case out of the box on the First Monday in October is an "original jurisdiction" case which, as usual, is a state suing another state, South Carolina v. North Carolina. (Yawn.)

Next up is Maryland v. Shatzer, on whether the don't-ask-again interrogation rule of Edwards v. Arizona has any time or place limits. CJLF's brief in that case is here.

The next day is federal criminal case day: US v. Stevens, Johnson v. US, and Bloate v. US.

The following Tuesday, October 13, features three state criminal cases (two of them on federal habeas): McDaniel v. Brown, Padilla v. Kentucky, and Smith v. Spisak.

Brown involves an exceptionally bad (even for the Ninth Circuit) sufficiency of the evidence decision, discussed here. Spisak involves an exceptionally bad (even for the Sixth Circuit) extension of existing precedent to overturn a reasonable state court decision, discussed here. Nineteen years after Teague and 12 after AEDPA, they still didn't get it. Padilla involves ineffective assistance of counsel, guilty pleas, and advising of immigration consequences.

Probable Cause to Conduct Thermal Search in the Eighth Circuit: At Volokh Conspiracy, Orin Kerr discusses the en banc opinion of the Eighth Circuit in United States v. Kattaria.  Kerr criticized the panel decision in October of 2007, which held the police only needed reasonable suspicion to obtain a "warrant" to conduct thermal imaging monitoring of a home.  Kerr reports that the en banc decision allows the evidence without reaching the reasonable suspicion issue.  In his post Kerr takes issue with Judge Loken's concurrence in the decision.  Kerr does not like Loken's assertion that a warrant can be based on "enough particularized suspicion to justify the minimal intrusion caused by the exterior thermal imaging of heat emissions, without regard to whether there is probable cause to issue a warrant to conduct a full physical search."  Kerr believes this is too far removed from the requirement that probable cause to issue a warrant to conduct a full physical search means there is probable cause to believe that a full physical search would provide the evidence described in the warrant.
 
Kansas v. Ventris Oral Argument Summary:  At SCOTUSblog Scott Noveck, a Stanford Student, provides a recap of January 21st's oral argument in Kansas v. Ventris.  The question before the U.S. Supreme Court in Ventris is whether the Sixth Amendment prevents a confession to a jailhouse informant from coming in for impeachment purposes.  Noveck's summary indicates that Justice Ginsburg was concerned with whether  police could have a cellmate "affirmatively elicit" statements from the defendant, or if the police may only listen for information without actively soliciting it.  Kansas Solicitor General Stephen R. McCallister correctly responded that cellmates can listen, but cannot "affirmatively elicit." (Our amicus brief for Kansas v. Ventris discusses this issue and can be found here.)   Assistant to the Solicitor General Nicole A. Saharsky then took the podium to face questions from the Chief Justice on whether exclusion would truly achieve any meaningful deterrence. Assistant appellate defender Matthew J. Edge was also questioned by Chief Justice Roberts on this issue.  He argued that permitting the use of uncounseled statements, even just for impeachment, would fail to offer any deterrence against the constitutional violation at issue here.  The transcripts of the argument is available here.   

The Effect of Bush's Nominees on the Federal Bench:   Jonathan Adler posts at Bench Memos on a Washington Post story that discusses how President Bush's nominees have altered the make-up of the Federal Bench.  The Washington Post story highlights divisions on the Sixth Circuit.  Adler's more detailed analysis of the article can be found at Volokh Conspiracy. Near the end of his Volokh post Adler points out that after eight years with a GOP president, most of the circuit judges came from Republican Presidents.  In the grand scheme, we can contribute this to Republican control of the White House for 28 of the past 20 years.  Ashby Jones also has this post on the story at Wall Street Journal Blog. 

South Carolina Is Last Execution of 2008:  On Sentencing Law and Policy, Doug Berman posted his thoughts on South Carolina's execution of Joseph Gardner.  A story by Glenn Smith of Charleston's Post and Courier can be found here.  According to Berman, Gardner's execution was the last scheduled execution of 2008.  This puts the number of executions in 2008 at 37, the lowest number since 1994.  Of course, the big reason for the lower number of executions this year was the Supreme Court case of Baze v. Rees.  The litigation in the case prevented any executions between October 2007 and April 2008.

Commentary on Oregon v. Ice:  At the Federalist Society, Former White House Counsel William Otis provides commentary on Oregon v. Ice and the Supreme Court oral arguments in the case.  CJLF's amicus brief can be found here.   

SCOTUScast on Herring v. United States: At The Federalist Society website, Luke Milligan, an Assistant Professor of Law at the University of Louisville provides commentary on the October 7, 2008 oral arguments for Herring v. United States. Herring is an exclusionary rule case that asks the Supreme Court to decide whether the Fourth Amendment requires the exclusion of evidence seized incident to an arrest conducted on the basis of credible, but ultimately erroneous, information negligently provided by another law enforcement agent. The post also has a brief discussion of the relevant facts.

Seventh Circuit Rules on Mental Health Experts During Sentencing: Doug Berman at Sentencing Law and Policy has a quick post on a Seventh Circuit's decision in U.S. v. Anderson. According to Berman, Judge Posner upheld a district court's denial of a motion to appoint a mental health expert before sentencing. Posner wrote: "A judge is not required to appoint a mental health expert without a showing that the appointment would have some (not necessarily a great) likelihood of resulting in a reduced sentence." "That showing has not been made."

The Blogs Are Alive With The Sound of Opening Arguments: With the first Monday in October came opening arguments at the United States Supreme Court, as well as several blog posts reporting on its activities. SCOTUSblog has a post reporting on today's activities at the Court, along with a link to today's transcripts and an analysis of oral arguments in Altria Group, et al., v. Good, et al. (07-562). Denniston also provided a post discussing today's Orders from the Court, and how the Court did not address Troy Anthony Davis’ appeal today. Dan Slater at Wall Street Journal Blog posted on the Altria argument, as well as Justice attendance an the annual Red Mass. And over at NRO, Jonathan Adler provides a preview of cases the Court will hear this term. At the end of his post Adler notes the Court has only accepted 53 cases for the term. According to Adler, the Court is likely to accept "at least a dozen or two more in the coming weeks." Without a lot of high profile cases on this year's docket, Adler reports this "is likely to be a relatively quiet year on the Court."

The Pace of Executions Post-Baze: Doug Berman has a post discussing the Death Penalty Information Center's (DPIC) report on executions in the United States after last term's decision in Baze v. Rees. Berman finds it "remarkable" that post-Baze states have executed prisoners at an average rate of about four executions per month, and "that we have not seen any post-Baze increase in executions even though the Baze case led to a halt of all executions for over six months." Berman's post also states that the DPIC report shows only Texas and Ohio with more than one upcoming set execution date.

Free Access to Sage Journals: Psychology and Crime News reports that Sage Journals will provide free access to all of its online journals through October 31st. All a reader needs to do is register first. Psychology and Crime News recommends that readers take a look at the newest issue of Criminal Justice and Behavior a special on “Pseudoscientific Policing Practices and Beliefs" for articles on criminal profiling, as well as a "critique of the FBI’s programme to introduce Critical Incident Stress Debriefing for its agents."

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.

Guantanamo Detainees Seek to Attend Hearing: Lyle Denniston reports at SCOTUSblog that lawyers for the Uighurs - the Chinese Muslims being held at Guantanamo - have filed a motion requesting that four of the 17 detainees be flown to Washington, D.C. for the hearing on their plea. The motion also requests that the remaining 13 be allowed to listen live from Guantanamo via telephone. Denniston reports the Justice Department is likely to oppose the plea even though the Pentagon has indicated that five of the Uighurs will no longer be treated as “enemy combatants.” The opposition is consistent with Justice Department's policy of opposing any detainee being brought to the U.S. mainland for any purpose. U.S. District Judge Ricardo M. Urbina, who is scheduled to hold the hearing on October 7th, has not indicated whether he would allow a detainee to brought into his court. District Judge Richard J. Leon, another District judge handling the hearings, has indicated he would only allow detainee participation through telephone hook-up.

The Winning Brief: David Zaring has this post at Conglomerate Blog asking "How much of a Supreme Court opinion is lifted from the winning brief?" The post discusses a paper written by Pamela Corley, a faculty member at Vanderbilt University, which examines the relationship between the briefs filed and the resulting Court opinion. According to Zaring, results of the study show that during the 2002, 2003, and 2004 terms, "[t]he average overlap between opinion and winning party brief then was roughly 10%." The study also apparently shows "Rehnquist and O'Connor were the justices most likely to borrow from the briefs." Rehnquist reportedly relied on the content of the briefs 14% of the time, and O'Connor 11.5%, during 2002, 2003, and 2004. The study is in an upcoming issue of Political Research Quarterly. Zaring has a link to the gated version here.

Timid Defense Attorney: Nathan Koppel has a post on Wall Street Journal Blog discussing the Ninth Circuit's rejection of a defense counsel's claim that Judge Manuel Real "should be replaced in a criminal case because defense lawyers were allegedly afraid of the judge." The defendant's lawyer claimed that because of "'“a generalized pattern of cowering by attorneys who appear in this district court[,]'" Judge Real should be dismissed. The Ninth found the allegation was not supported by the record. The Ninth Circuit said the allegation was not supported by the record. “We note that neither [the defendant’s] attorney nor the government’s attorney faltered in the least bit in their arguments or retreated from their positions at the sentencing and restitution hearings[.]" Apparently, the attorney told the Daily Journal in Los Angeles (link unavailable, but click here for a blog post from the ABA Journal), “I’m very timid in front of him, and my clients don’t get my best efforts" Of course, it wasn't all good news for Judge Real. Koppel reports the Ninth Circuit found the Judge erred in sentencing and remanded the case back to the judge.

Here are the criminal and related cases for the October, November, and December calendars of the U.S. Supreme Court. The link in the case number for each case is to the docket, which in turn has a link to the "question presented" page. Note that in most cases the question presented is drafted by the attorney for the party who lost in the lower court, not by the Supreme Court, and the QP is often phrased in a slanted way.

In an effort to decide more cases early in the term and fewer in June, the Supreme Court will hear three cases a day, rather than two, during the October and November argument sessions. Chief Justice Roberts acknowledged that this will cause additional work for the Solicitor General's Office, reports Daniel Lovering for AP. "Also saddled with extra work, Roberts noted, will be journalists who cover the court's arguments. 'After careful reflection, I decided I didn't care,' he joked."

But seriously, folks, I expect that spreading the decisions out will make the press corps' job easier. They will have something to write about on more days.

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.

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.

Cooper Argument. The notorious Kevin Cooper case was argued in the Ninth Circuit yesterday. David Kravets reports for AP; Heny Weinstein for LA Times.

Death Penalty. The South Dakota legislature plans to revise the state's execution protocol in light of legal challenges to lethal injection, according to an Associated Press story in today's Sioux City Journal. Responding to the suggestion that anti-death penalty advocates might use the opportunity to pass a bill abolishing capital punishment, one newly elected Democrat said "It's something people want, reserved for heinous crimes. I don't see much support for getting rid of it."

Retardation: Allen "Bridgers, sentenced to lethal injection for the 1997 capital murder of 53-year-old Mary Amie in Tyler, [Texas] told his apparent girlfriend on New Year's Day that he knew he was not mentally retarded but that claiming it would buy him a 'couple more years.'" Casey Knaupp reports in the Tyler Morning Telegraph.

Cunningham: SCOTUS-watcher Aaron Streett of Baker Botts informs us that Cunningham v. California, the California Blakely case, is one of only two undecided cases from the October arguments and that Justices Breyer and Ginsburg are the only Justices who have not yet authored opinions from that session. It is arguably a ray of hope for California if none of the Justices who have been leading the charge on Apprendi issues is writing the opinion, but it's very speculative.

Death Penalty Among the standard claims in any debate about capital punishment is that it is biased against blacks. Gregory Kane addresses this issue with an illuminating commentary on BlackAmericaWeb. It would be interesting to hear from someone who can refute his logic.

Lethal Injection The Florida Supreme Court has agreed to hear a second appeal from confessed murderer Danny Rolling after a judge ruled that his arguments against the state's lethal injection process were without merit. Rolling, who's execution is set for October 25, pled guilty to the brutal 1990 murders of five college students according to an Associated Press story

Judicial Education. Ed Whelan has this article at National Review Online on the criticism of judges attending expense-paid seminars. He contends that Senator Leahy's bill is not viewpoint-neutral but rather is "gerrymandered" to prevent judges from attending seminars sponsored by George Mason U. but allow them to attend those of the Soros-funded Aspen Institute.

The Supreme Court formally opened its October 2006 term today. There were no arguments, today being the first day of Yom Kippur. Mark Sherman of the Associated Press reports on the first day here. The headline story in the San Francisco Chronicle is Bob Egelko's piece on the "pivotal" term. Not for criminal law, though. The only criminal case mentioned is Cunningham v. California, at the very end.

As expected there were no grants of certiorari for argument in today's orders list. The grants from the "long conference" were announced last Tuesday, and today's list consisted of denials, routine orders, and "vacate and remand in light of ..." orders. Denial of certiorari in the case of Mississippi murderer Bobby Wilcher automatically terminates the stay granted July 11 over the dissent of Chief Justice Roberts, Justice Scalia, and Justice Alito, noted here.

Of the ten criminal and crime-related cases from Tom Goldstein's "reasonable chance" list, previously reported here, two were granted last Tuesday, and the remaining eight were denied today.

Below are the criminal and law-enforcement-related civil cases to be argued in the United States Supreme Court in the second session of the Term, October 30 through November 8. Links to the docket are provided and to the lower court decision in some cases. The docket includes a link to the Questions Presented (QP) page. Bear in mind that the QP is generally drafted by an advocate for one party (the one who lost in the court below) and not by the Court.

Monday, October 30: Jones v. Bock, No. 05-7058, and Williams v. Overton, No. 05-7142. The Court returns once again to the requirement of the Prison Litigation Reform Act that prisoners exhaust their administrative remedies before filing a federal civil rights lawsuit. The questions include whether a "mixed" petition with both exhausted and unexhausted claims must be dismissed and two questions on pleading requirements.

Tuesday, October 31: Lawrence v. Florida, No. 05-8820. The AEDPA statute of limitations, 28 U.S.C. § 2244(d), is tolled while an "application for State post-conviction ... review ... is pending...." Does that include the time when a certiorari petition seeking U.S. Supreme Court review of the denial of the application is pending or could have been filed? If not, does equitable tolling apply to this statute and in the circumstances of this case? USCA11 said no.

Wednesday, November 1: Whorton v. Bockting, No. 05-595. Does Crawford v. Washington's rewrite of the Court's Confrontation Clause jurisprudence apply retroactively to overturn a final conviction correctly decided by the state supreme court under the rule in effect at the time? USCA9 said yes, 2-1.

Tuesday, November 7: James v. United States, No. 04-9264. Does a prior conviction of attempted burglary qualify as a "violent felony" within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e)? USCA 11 said yes.

   Burton v. Waddington, No. 05-9222. Does Blakely v. Washington's expansion of the kinds of sentencing factors that must be proved to a jury beyond a reasonable doubt apply retroactively to cases already final on appeal when that case was decided? USCA9 said no in an unpublished opinion, based on its 2005 precedent in Schardt v. Payne.

Here are some scheduled events and some predictions for the Supreme Court's opening in the fall.

Tuesday, September 26: Look for an orders list from the conference of the day before, with grants of certiorari.

Monday, October 2: The traditional opening day of the First Monday in October coincides with Yom Kippur, which caused a bit of a flap a few years back. The Great Compromise, which we see again this year, is that the Court formally opens its term and will probably announce an orders list, but will hear no arguments. There will likely be a long list of cert. denials and no grants, the grants having been announced the week before.