Results matching “thomas”

There are several doctrines related to criminal law in which the decision turns not on a federal court's opinion on a point of law as such but rather how clearly that point was established at the time someone else had to make a "judgment call."  Among these are the retroactivity rule of Teague v. Lane, the qualified immunity rule for civil suits against law enforcement officers, and the so-called deference rule for federal habeas review of points decided on the merits in state court, 28 U.S.C. §2254(d).

Do you need Supreme Court precedent to establish a rule with sufficient clarity, or will on-point circuit precedent do?  For §2254(d) there is no doubt.  Congress explicitly said Supreme Court precedent.  For the other two judge-made rules, however, the issue remains unresolved.

In Reichle v. Howards, the Supreme Court today decided one subsidiary question.  Howards claimed that an arrest by Secret Service agents was actionable, despite probable cause, because it was in retaliation for his exercise of First Amendment rights.  He had on-point precedent of the Tenth Circuit (the circuit the case was in) for that proposition.  Easy case, right?

Much of the difficulty conservatives have in presenting their side of the criminal law debate lies in what the popular press elects to cover, and what it elects to ignore. When there is an exoneration from a conviction and sentence (an actual exoneration, that is) we often get a front page story.  But when, for twenty years, the crime rate has been in free fall  -- with, and in significant part because of, increased incarceration  --  there might be an occasional raised eyebrow in the press, but only to note that incarceration is oh, so inhumane  -- and, besides, golly, we can't really know the reasons for so much less crime, except maybe sunspots.

Thomas Sowell reflects on the Trayvon Martin/George Zimmerman case in a piece in National Review Online.  It's short and worth the read, mostly for its reminder of the astonishingly dishonest editing that NBC undertook to attempt to portray Zimmerman as a racist. The edit itself is described here.

Let us talk sense, like adults. Nothing that is done to George Zimmerman -- justly or unjustly -- will unlynch a single black man who was tortured and killed in the Jim Crow South for a crime he didn't commit.

Letting hoodlums get away with hoodlumism today does not undo a single injustice of the past. It is not even a favor to the hoodlums, for many of whom this is just the first step on a path that leads to the penitentiary, and maybe to the execution chamber.

Winston Churchill said, "If the past sits in judgment on the present, the future will be lost." He wasn't talking about racial issues, but what he said applies especially where race is involved.

As noted in today's News Scan, a Kentucky state court judge has ordered that state to consider the single-drug method.  The Arizona execution, also noted in the News Scan, is the third in that state using this method.

When that method was first proposed, some experts were concerned that it might take the inmate a long time to die.  That concern has proven unfounded.  The AP story on the Kemp execution notes, "The one-drug execution took seven minutes, and Kemp's time of death was 10:08 a.m."

Last week, as noted in this post, CJLF filed a petition for writ of mandate to force California's Department of Corrections and Rehabilitation to issue a single-drug protocol for the execution of Michael Morales, who has now evaded justice for 29 years, 6 of them after completion of all reviews of his sentence.  Morales has been allowed more time on the lethal injection issue alone than the D.C. Sniper got for the entire review of his case.

Update:  AP reports that Thomas Kemp shook during the execution, and his lawyer was "very disturbed by that."

We have known all along that involuntary movements were a possible side-effect of the one-drug method and that some witnesses might find that disturbing.  That was the precise purpose of the pancuronium bromide in the three-drug method.  However, the risk of pancuronium outweighs the benefit, which is why states are dropping it.

Shaking does not necessarily mean pain or even consciousness.  A person receiving a big dose of pentobarbital is not going to be in extreme pain, and that is all that matters.  Murderers are not entitled to the most peaceful, painless death possible.  Anyone executed with a single dose of barbiturate will feel less pain in his death than most of us are going to suffer when we die, and that is enough to end the matter.

Execution Carried Out in Arizona Wednesday Morning: Michael Kiefer of The Arizona Republic reports Thomas Kemp was executed by lethal injection this morning in Arizona for robing and killing a man in 1992.  Kemp, an ex-con, and a former prisonmate who had escaped from an honor farm in California, seized 25-year-old college student Hector Juarez, who was out getting a late-night snack. The men made Juarez withdraw money from an ATM, stripped him naked, then shot him twice in the head and dumped his body near the Silverbell Mine. Kemp and his co-conspirator then carjacked a couple and forced them to drive to Colorado, where Kemp sexually assaulted the man. The couple was able to escape and later contact police. At his sentencing, Kemp told the court that Juarez was "beneath my contempt" because he was not an American citizen, and, "If more of them wound up dead, the rest of them would soon learn to stay in Mexico, where they belong." His last words were, "I regret nothing."

Connecticut Death Penalty Repeal Signed Into Law: The Associated Press reports Connecticut Governor Dannel P. Malloy on Wednesday signed a new law that ends the state's death penalty for future crimes, effective immediately. The bill was signed the same day a new Quinnipiac University Poll showed 62 percent of Connecticut registered voters are still in favor of the death penalty for those convicted of murder. The poll also showed 47 percent of voters disapprove of Malloy's handling of the issue, and 51 percent disapprove of the legislature's handling of the issue.

Judge Says Kentucky Must Consider One-Drug Protocol: Brett Barrouquere of the Associated Press reports Franklin Circuit Judge Phillip Shepherd in Kentucky on Wednesday directed the state to consider using one drug instead of three to execution inmates by lethal injection now that other states have been successful using a single drug method. Shepherd halted all executions in Kentucky 20 months ago over inmates' challenges to whether the state's lethal injection rules prohibited the use of a single drug and if there were adequate protections against executing the mentally ill. Kentucky has 90 days to consider the changes. Shepherd said the challenge by inmates will be allowed to go to trial if the state stays with the three-drug method.

U.S. Supreme Court Hears Arizona Immigration Law: Mark Sherman of the Associated Press reports the U.S. Supreme Court on Wednesday heard arguments for Arizona's immigration law signed by Governor Jan Brewer two years ago. Justices suggested they would allow the state to enforce part of the law that requires police officers to check the immigration status of those they suspect are in the country illegally. Justices reacted skeptically to the argument by the Obama administration that that the state exceeded its authority when it created the law. Chief Justice John Roberts said the state simply wants to notify federal authorities that they have someone in their custody who may be in the country illegally. "It seems to me that the federal government just doesn't want to know who's here illegally and who's not," Roberts said. A decision in the case is expected in late June.

Maryland Court Blocks Police Collection of DNA at Arrest: Yvonne Wenger of The Baltimore Sun reports the Court of Appeals in Maryland ruled 5-2 that the state law which allows the collection of DNA evidence from arrestees violated the rights of Alonzo Jay King Jr.  King was arrested months after the law was adopted for assault and his DNA was later used to convict him of a six-year-old rape case. The court said collecting Kings DNA at arrest violated protections against unreasonable searches without a warrant. The state can still collect DNA after convictions, and law enforcement agencies can still use DNA samples to verify the person they arrested is the correct suspect. Since the law took effect in January 2009, the state has collected nearly 16,000 DNA samples, and used that evidence to gain 58 convictions that include 34 burglaries and 8 rapes. "The concept is simple: When we increase the library of DNA samples in our state, we solve more crimes," Maryland Governor Martin O'Malley said in a statement. "We take more criminals off the streets more quickly and put them in jail for a longer period of time so that they cannot murder, rape or harm other citizens among us."

The Costs of Leniency: Theodore Dalrymple has this piece in City Journal highlighting the laxity of the British criminal justice system, using the case of Gordon Thompson as an example. Thompson was recently sentenced to 11 and a half years for arson, in which he set fire to a family-owned furniture store that quickly spread to nearby houses during the London riots last summer. Thompson claims he was upset about the recent break up of his marriage, but it turns out Thompson had 20 previous convictions. Dalrymple questions what Thompson was doing at liberty, and says the cause of the riots in London was because of the laxity in such cases.

Grandma Fires Back at Robbery Suspects: CBS Atlanta and the Associated Press report a Georgia grandmother thwarted a robbery attempt by two armed suspects by getting into a shootout with them. Two men attempted to rob Lulu Campbell outside of her car Saturday morning. When one of the men fired at her and missed, Campbell fired back and struck him in the chest. Campbell owns convenience stores and gas stations and is always armed. "I thought that the only way to protect myself was to run him down," she said. "Otherwise, he would have gotten away." Police say Brenton Lance Spencer has been hospitalized and charged with aggravated assault and attempted armed robbery. Dantre Shivers, the other suspect, remains at large. 

The US Supreme Court today decided in Wood v. Milyard that the Court of Appeals for the Tenth Circuit abused its discretion in raising on its own a statute of limitations defense that the state knew about but declined to raise.  No big surprise.  The opinion is by Justice Ginsburg, 7-2-0.

Justices Thomas and Scalia concur in the judgment but not the opinion on grounds more favorable to habeas petitioners generally.  They would hold that the state forfeits its statute of limitations defense in a habeas case by not raising it, and the court has no discretion to raise it on its own. An earlier case gave such discretion to the District Court, but they would decline to extend a precedent they regard as erroneous to the Court of Appeals.

AP reports from Norway:

A citizen judge in the trial of confessed mass killer Anders Behring Breivik was dismissed Tuesday for saying online that the anti-Muslim extremist deserves the death penalty for killing 77 people in a bomb-and-shooting massacre.

Lawyers on all sides requested that lay judge Thomas Indreboe be dismissed for his comments online the day after the July 22 attacks.

It's not clear from the story whether he was removed for prejudging the case or for favoring the death penalty.  The former would be valid.

Connecticut Senate to Vote on Death Penalty Repeal: Shannon Young of the Associated Press reports the Connecticut Senate will vote Wednesday on a bill to abolish the death penalty in the state. The legislation will only affect future cases, and the sentences of the 11 inmates currently on Connecticut's death row will remain intact. But opponents predict death row inmates will use the repeal as the basis for numerous legal appeals. A Quinnipiac University poll last month showed 62 percent of Connecticut residents do not support the repeal.

Justice Department Threatens to Sue Arizona Sheriff: Sari Horwitz of The Washington Post reports the Justice Department threatened to sue Maricopa County Sheriff Joe Arpaio Tuesday when negotiations fell through in the case where Justice officials have accused Arpaio of discriminating against Hispanics. Arpaio refused to agree to one of the Justice Department's requirements, an independent monitor to oversee changes in his department. Thomas E. Perez, assistant attorney general for civil rights, said they hope to resolve the issues, "but we will not hesitate to take appropriate legal action if the [Maricopa County Sheriff's Office] chooses a different course of action." This is one of 17 probes the Justice Department's Civil Rights Division is conducting of sheriff and police departments, which is the most in its 54-year history.

Appeals Court Hears Case in Surrendering of Rhode Island Murderer: Laura Crimaldi of the Associated Press reports a five-judge panel of the 1st U.S. Circuit Court of Appeals on Wednesday heard arguments in the case of Jason Pleau, who Rhode Island Governor Lincoln Chafee is refusing to surrender to federal authorities because he could face the death penalty if prosecuted in federal court. Rhode Island does not have the death penalty. Pleau is accused of fatally shooting a gas station manager outside of a bank in 2010 and making off with a bank deposit bag with more than $12,000 inside. Pleau is serving an 18-year-sentence in state prison for a probation violation in another case.

Will James of the Wall Street Journal reported today that the organizations that administer the SAT and ACT college entrance exams are implementing security measures to prevent impersonators from taking the test on behalf of students.  Among these will be a requirement that all students planning to take the tests sign up in advance and upload or mail a photo of themselves which will be printed on a ticket, which will be checked against a student's photo ID on the day of the test.  When, one might ask, is the Justice Department going to seek an injunction to block this requirement which blatantly discriminates against every poor and minority high school student in America who lacks a photo ID?  We know a photo ID requirement is discrimination because Eric Holder told us so.  In December, after the Justice Department blocked a South Carolina law that required voters to show a photo ID, Attorney General Eric Holder said it is discriminatory because black voters in South Carolina are 20 percent more likely than white voters to lack a driver's license or state photo ID card.  Earlier this month the Justice Department blocked a similar law in Texas.  "Even using the data most favorable to the state, Hispanics disproportionately lack either a driver's license or a personal identification card," Thomas Perez, head of the Justice Department's civil rights division.  Does anyone other than me wonder which political party receives the votes of illegal aliens, felons, cartoon characters and the dead folks that voter ID laws would exclude?  

Execution in Mississippi Yesterday: Jesse Bass of Hattiesburg American reports Larry Matthew Puckett, 35, was executed by lethal injection Tuesday at the Mississippi State Penitentiary. Puckett was convicted of the 1995 murder and sexual battery of Rhonda Hatten Griffis, his former boss' wife and mother of two. She was found by her husband in a large pool of blood in their living room, bleeding with several gashes on her head, back, chest, and neck. She had several defensive wounds on her hands, arms, and elbows. "Today we witnessed the result of a choice made by Matt Puckett," said Nancy Hatten, the victim's mother, following the execution. "If he had chosen to live as a law-abiding citizen rather than choosing to murder our daughter - our only child - who was a wife and mother, we would not be here today."

ACLU Releases Report on Realignment: Tracey Kaplan of San Jose Mercury News reports the ACLU of Northern California released a new report Tuesday reviewing the implementation of realignment. The report was especially critical of the amount of inmates kept in jail while awaiting trial, increased spending on jails, and the lack of state involvement in helping counties successfully implement realignment. Many sheriff's criticized the report, saying the ACLU doesn't have a realistic grasp on the situation. "I'm already letting out the best of the worst,'' said Sheriff Adam Christianson of Stanislaus County.

Supreme Court Ruling Prompts Petition in Texas: Brandi Grissom of The Texas Tribune reports Brad Levenson, director of the Texas Office of Capital Writs, filed a petition with the Texas Court of Criminal Appeals on Tuesday afternoon on behalf of condemned inmate Jesse Joe Hernandez, arguing that his March 28 execution should be stayed, in part, because of the U.S. Supreme Court's ruling Tuesday in the Martinez v. Ryan case. Hernandez killed a 10-month-old boy in Dallas in 2001. Levenson argues Hernandez's trial lawyers and initial appeals lawyers were ineffective for failing to investigate further why the child died. Levenson said although the ruling applies to federal court,  the same principle ought to apply for state courts. "We're saying the state courts should also take a look at these claims for the same reason the Supreme Court would take a look at them," he said.

Arizona Supreme Court Approves Two Executions: The Associated Press reports the Arizona Supreme Court on Tuesday approved the upcoming executions of Thomas Arnold Kemp, 63, and Samuel Villegas Lopez, 49. Kemp is scheduled to be executed on April 26, and Lopez is scheduled to be executed May 16. Kemp was sentenced to death for the 1992 kidnapping and murder of a 25-year-old man. Kemp and his accomplice held the victim at gunpoint and used his debit card to withdraw $200 before taking him into a desert area, where they forced him to undress and shot him twice in the head. The two men then kidnapped a married couple and made them drive to Colorado, where Kemp raped the man. The couple later escaped. During his sentencing trial, Kemp said his victim was "beneath my contempt." "I spit on the law and all those who serve it," he said. Lopez was sentenced to death for robbing, raping, and stabbing to death a 59-year-old woman in her apartment in 1986. She was found half-naked with three major stab wounds to her head, one on her face, and 23 in her left breast and upper chest. She had been blindfolded and gagged with her own clothing, and her throat was slit. Semen on her body was matched to Lopez's after he was arrested for a different rape less than a week later.

Occupy Protesters' Tweets Used Against Them: Tamer El-Ghobashy of the Wall Street Journal reports Manhattan prosecutors are using social media such as Twitter, one of the Occupy movement's principal organizing tools, to prosecute hundreds of Occupy protesters on lower-level charges like disorderly conduct. Twitter's published policy says it doesn't release users' private information "except as lawfully required by appropriate legal process such as subpoena, court order, or other valid legal process." While the subpoenas may be legal, protesters say they are an attack on free speech. "The lesson is, if you're speaking publicly and leaving a record as to who you are, that's information the government can legally access," said Orin Kerr, a professor of law at George Washington University.

The Ninth Circuit issued three opinions in Arizona capital cases yesterday: Towery v. Ryan, Moormann v. Schriro, and Towery v. Brewer.

When the US Supreme Court first took up Maples v. Thomas, I was worried that if Maples won lawyers for capital inmates would start routinely shoehorning their garden-variety criticisms of the effectiveness of prior habeas counsel into "abandonment" claims and that some courts might actually buy that.  The first part of that concern has indeed come to pass.  The second hasn't, yet.  In Towery v. Ryan, Towery's prior counsel abandoned on habeas a weak claim that had been rejected by the Arizona Supreme Court.  That is entirely proper.  The US Supreme Court has expressly held in a capital case that winnowing out weak claims to focus on the stronger ones is not only permitted, it is quality advocacy.  The Ninth Circuit does not mention the latter point, but it does hold that leaving out the weak claim is not abandonment, which is sufficient to distinguish Maples.  Moormann v. Schriro is similar on the abandonment issue.  Moormann further claimed that he is retarded now, even though he wasn't before.  The Ninth correctly rejects the claim, noting that onset before 18 is a standard condition for a retardation diagnosis, and Arizona is well within its rights to insist on that criterion.

Even though the abandonment claims were rejected, a lot of unnecessary time and resources went into rejecting them.  Congress's strict, and mostly successful, toughening of the successive petition rule is endangered by the creation of new issues to litigate.

I will address the lethal injection claim in the next post.

Moormann was executed 10:23 to 10:33 MST, Michael Kiefer reports for the Arizona Republic.

Here is an interesting little tidbit for SCOTUS-watchers.  The high court decided four criminal or crime-related cases this week.  In all four, six Justices joined the majority opinion in full, ruling for the law enforcement side, and three Justices dissented all or in part.  However, the lineup varied.  Of the four Justices mostly dissenting in these cases, we see different ones joining the majority in individual cases.

In all four cases, Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito are in the majority.  In all four, Justice Ginsburg dissents, at least in part.  Then the vote varies:

Howes v. Fields:  Justice Kagan joins the majority on the Miranda merits question.  (The decision was unanimous on the AEDPA deference question.)

Kawashima v. Holder:  Justice Sotomayor joins the majority on the interpretation of Congress's badly written definition of "aggravated felony" for deportation purposes.

Wetzel v. Lambert:  Justice Sotomayor joins the majority on deference to the state court holding supported by more than one independent ground.

Messerschmidt v. Millender:  Justice Breyer joins the majority in full on a search warrant shielding officers from civil liability for a search.  (Justice Kagan concurred in part and dissented in part.)

These are all relatively minor cases, as Supreme Court precedents go.  The fact that they are all 6-3 or better is encouraging, though.  Nothing is hanging by a one-vote thread.

Joe Palazzolo has this post at WSJ Law Blog, titled, "Hating on the Ninth Circuit: Funny But a Little Depressing."  The topic is criticism of the Notorious Ninth by presidential candidates, the candidates' proposals, and some reaction from judges.

Some of the statements by candidates are indeed off the wall.  Newt Gingrich's idea about issuing subpoenas to judges to appear before Congress is typical Newt half-baked.  Chief Judge Kozinski says, "They don't need a subpoena. All they need to do is ask."

Two other judges comment without being named.  This comment is all too typical:

Other Ninth Circuit judges told Law Blog they were amused by all the attention the court was getting, but they said the animosity toward judges reflected a deep misunderstanding of how the federal courts operate, which they attributed to a lack of civics education.

Ah, yes.  Once again, it is the ignorant Great Unwashed who fail to understand that the judges of the Ninth Circuit are simply doing their jobs and showing "loyalty to the Constitution" when they hand down all these controversial rulings.  However, given the number of unanimous reversals of the Ninth by the Supreme Court, as we have noted many times on this blog, the lack of understanding may well be at the Ninth itself.

"And what about abolishing the court altogether?" the post asks.  The appeals do, indeed, have to go somewhere.  A "nuclear option" would be to abolish the Ninth, ousting its judges Thomas Jefferson style, and creating one or two new courts with newly appointed judges to take the appeals instead.  That would be an extreme measure, to be avoided except as a last resort. 

Electing presidents who want to fix the Ninth and put some priority on the appointments is a far better method, albeit much slower.  President Bush, disappointingly, did not put a high enough priority on the problem.  A vacancy was left unfilled for years, and some of the appointments that were made were ill-advised.  President Obama, of course, does not want to fix the Ninth.  Let's hope for change -- that the next president does better.

If police attach a GPS tracking device to someone's car and use it to track his movements over a substantial period of time, it that a "search" within the meaning of the Fourth Amendment?  Yes, said all 9 Justices of the Supreme Court today in United States v. Jones.  The Court split 5-4 on the rationale, though.  Justice Scalia for the majority (with Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor) looked to the word "effects" in the Fourth Amendment and the trespass-based approach used before Katz v. United States in 1967.  Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, reaches the same result with the "reasonable expectation of privacy" rationale that the Court has used, for the most part, since Katz.

The US Supreme Court decided the decidedly odd procedural default case of Maples v. Thomas this morning.  "The sole question this Court has taken up is whether, on the extraordinary facts of Maples' case, there is 'cause' to excuse his procedural default."  As noted in my post of July 13, the essential facts are:

Maples is a double murderer who was represented by the big-name New York law firm of Sullivan & Cromwell for his state collateral review petition.  However, the big shots blew the deadline to appeal because (1) they didn't bother to inform the state court of a change in the attorneys handling the case; (2) the firm had a strange policy of not letting the attorneys use the firm name in their appearance -- even though the firm touts the work on its web site; and (3) when notices of decision addressed to the individual, departed attorneys arrived at the firm's mail room, the mail room sent them back to the court.

On "the extraordinary facts," it is not too surprising that the Court answered the question "yes."  See my post after the oral argument.  As predicted, the resulting precedent is narrow, at least for the time being.  One aspect of the opinion that I find particularly disappointing is what it does and does not say regarding who is to blame for the mess.

First, and most importantly, is the narrowness of the opinion.  The Court does not back off from Coleman v. Thompson.  Attorney error in habeas is not "cause" for default, even something as basic as blowing an appeal deadline.  "We do not disturb that general rule."  Abandonment is distinguished from error.  Look for petitioners' briefs to push an ever-expanding definition of abandonment from this point onward.  Hopefully, the courts won't go for it and not much damage will be caused.

Executions Scheduled in Nebraska and Oklahoma: Joe Duggan of the Omaha World Herald reports the Nebraska Supreme Court has set a March 6, 2012 execution date for cult leader Michael Ryan. Ryan ordered one of his followers to undergo torture that included sodomy, the shooting of his fingertips, and partial skinning by a knife, and was convicted of his first-degree murder. He was also convicted of second-degree murder in the killing of a 5-year-old boy who was the son of a cult member. The last execution in Nebraska was in 1997 by electric chair. Ryan would be the first inmate executed in Nebraska by lethal injection. Rachel Petersen of McAlester News (OK) reports the Oklahoma Court of Criminal Appeals set February 16, 2012 as the execution date for Garry Thomas Allen, who murdered his wife in 1986.

CA Serial Killer Found Dead: Mike TeSelle of KCRA (Sacramento) reports triple-murderer Loren Herzog was pronounced dead from an apparent suicide. He had been living in a trailer outside the front gate of the High Desert State Prison in Susanville, CA since his release in September 2010. Herzog was originally sentenced to 78 years to life in prison, but pleaded down to voluntary manslaughter after his conviction was overturned on appeal when it was ruled that his statements were illegally coerced. Herzog served 11 years in prison. His co-defendant, Wesley Shermantine, is currently on death row in California. A news release from the Lassen County Sheriff said "an official determination related to the cause of death won't be made until after the investigation and an autopsy are completed."

What CA Prison Realignment Has Wrought So Far: Brik McDill, a senior supervising psychologist at the California Correctional Institution in Tehachapi, has this opinion piece in the Bakersfield Californian about the effects so far of Governor Brown's inmate realignment law (AB109), which went into effect last October. He says at this point there are many foreseeable problems and few solutions.

In 1971, the Supreme Court created a constitutional tort remedy against federal agents who violate constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389.  Subsequent cases created qualified immunity for actions where the legality of the agent's actions were fairly debatable at the time.

How about federal prisons operated by private contractors?  No need to expand Bivens, the Court said today in Minneci v. Pollard, No. 10-1104.  Just sue the privately employed guards in a state tort action like you would any other employee of a private business who violates your rights. 

For one thing, the potential existence of an adequate "alternative, existing process" differs dramatically in the two sets of cases. Prisoners ordinarily cannot bring state law tort actions against employees of the Federal Government....  But prisoners ordinarily can bring state-law tort actions against employees of a private firm.

The discussion makes clear that the Court is going to be very reluctant to expand Bivens into any new territory.  Bivens won't be expanded if there is another remedy, and maybe not even then.

Justices Scalia and Thomas concur.  They go further and say that "Bivens and its two follow-on cases" should be limited "to the precise circumstances that they involved."  Justice Ginsburg dissents alone.

Arizona Sheriff Targeted By Justice Department:  An editorial from Investor's Business Daily says Arizona Sheriff Joe Arpaio is being targeted by the Justice Department in a report accusing the sheriff of violating federal law and the Constitution in his department's handling of Hispanics. Assistant Attorney General Thomas E. Perez, head of the department's Civil Rights Division, said a three-year civil investigation found that the sheriff and his deputies engaged in unconstitutional conduct and violations of federal law that jeopardized Arpaio's "commitment to fair and effective" law enforcement. The name Thomas Perez may sound familiar, as he was heavily involved in the decision to drop the voter intimidation case against members of the New Black Panther Party. Nine months before the DOJ first informed Apaio of its investigation, Immigration and Customs Enforcement (ICE) conducted its own investigation of Apaio's office and procedures and did not find anything inappropriate or illegal. The story is here.

Violent Crime Decreasing, FBI reports: Nedra Pickler of the Associated Press reports the Federal Bureau of Investigation released its Preliminary Semiannual Uniform Crime Report Monday for January to June, 2011. As a whole, law enforcement agencies throughout the U.S. reported a decrease of 6.4% in the number of violent crimes when compared with figures reported for the same time period in 2010. The number of property crimes from January to June of 2011 decreased 3.7% in the U.S. when compared with data from the same time period in 2010. The preliminary report is here. However, the National Law Enforcement Officers Memorial Fund reported this summer that for the first half of 2011, the number of law enforcement fatalities increased 14% from the same time period in 2010, with a 33% increase in the number of officers killed by gunfire. 40 officers were killed by gunfire in the first half of 2011, the highest number in two decades.

U.S. Supreme Court Schedules 3 Days of Arguments on New Federal Health Care Law: Jesse J. Holland of the Associated Press reports the U.S. Supreme Court announced Monday that it will hear arguments for three days in March over the Patient Protection and Affordable Care Act, Obama's health care overhaul. Arguments are scheduled for March 26th, 27th, and 28th, with nothing else on the court calendar for that week. The justices will be hearing more than five hours of arguments.

Study Says Brain Scan Isn't Crime Predictor: Maria Cheng of the Associated Press reports the Royal Society, the world's oldest scientific academy, examined how neuroscience is being used in some court cases, and says criminal behavior can't be blamed on how someone's brain is wired, at least not yet. "Having a psychotic brain is not a general defense against a criminal charge, said Nicholas Mackintosh, emeritus professor of experimental psychology at the University of Cambridge, and who led the group that produced the report. "There's no such thing as a gene for violence," he said. The Royal Society concluded it's too soon for the law to be swayed by scientists' understanding of the brain. The scientists said that while some criminals like psychopaths have unique brain structures, these differences are not enough to release them from being legally responsible for their crimes. The report is here.

The US Supreme Court denied a stay of execution to Ohio triple murderer Reginald Brooks.  Four times.  Orders are here, here, here, and here.  No dissents are noted.

Kantele Franko reports for AP that the execution proceeded. There is no question of identity of the perpetrator in this case.  Brooks "fatally shot his three sons while they slept in 1982, shortly after his wife filed for divorce."

Prosecutors acknowledged Brooks was mentally ill but disputed the notions that it caused the murders or made him incompetent. They said he planned merciless killings, bought a revolver two weeks in advance, confirmed he'd be home alone with the boys, targeted them when they wouldn't resist and fled on a bus with a suitcase containing a birth certificate and personal items that could help him start a new life.

The Court also denied a stay to Florida triple murderer Oba Chandler.  Matthew Hendley has this post at the Broward-Palm Beach New Times.  The post incorrectly says the stay was denied by Justice Thomas.  Standard procedure is for stay applications to be submitted to the Justice assigned to the circuit, who then regularly refers the application to the full Court for decision, except in emergencies.  That is what happened in this case.

Update:  Alan Johnson reports in the Columbus Dispatch, "Those witnessing the execution behind glass about 10 feet away gasped but said nothing as Brooks first glared at and 'flipped off' his ex-wife, the mother of the three children he murdered nearly 30 years ago after she filed for divorce."

Karla Adam reports in the WaPo:

WikiLeaks founder Julian Assange lost his battle against extradition Wednesday when Britain's High Court ruled that he should be sent to Sweden to face questioning over allegations of sexual misconduct.

The judgment was handed down by High Court judges John Thomas and Duncan Ouseley with Assange in attendance, wearing a dark suit and a Remembrance Day poppy.

*                                        *                                      *

Lawyers for the 40-year-old Australian are expected to seek permission to appeal the decision to the Supreme Court, the highest court in the land. The legal team must lodge an application within the next two weeks, and make a case that a "point of law of general importance" is at stake.

How nice.  The man who facilitated the murder of people cooperating with us in the war against Islamofascism wears a Rememberance Day poppy.  He appears to be rather selective in which antifascist fighters he chooses to remember.

There is also this hopeful note:  "Last month, Assange said WikiLeaks faced an 'existential' crisis and could close as early as January if it was unable to boost its financial reserves."

Adam Liptak and Michael Shear have this article in the NYT about the federal judiciary as an issue in the presidential campaign.

Denunciation of judicial overreach is, of course, a grand tradition in the Grand Old Party.*  The party's very first successful presidential candidate made attack on a Supreme Court decision a major theme of his campaign.  Denouncing that decision was controversial at the time, but nearly everyone today agrees he was correct.

Liptak and Shear report:

Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a "rogue" court that is "consistently radical."

The Left is furious with Clarence Thomas for his temerity in refusing to be chained on its plantation.  Kent has noted and responded to this fury here, here and here.  My friend Professor John Yoo of Berkeley, a former Thomas clerk, notes Justice Thomas's signal contributions to the law in his WSJ piece this weekend.

Justice Thomas has not always cast votes favorable to my view of criminal law, as, for example, in the disastrous case of Apprendi and some of its progeny.  But as a man of insight and principle, and as a friend to the Constitution as written rather than as re-rigged on the fly to suit the personal tastes of judges, he is nothing short of heroic.  As Prof. Yoo notes:

Justice Thomas's two decades on the bench show the simple power of ideas over the pettiness of our politics. Media and academic elites have spent the last 20 years trying to marginalize him by drawing a portrait of a man stung by his confirmation, angry at his rejection by the civil rights community, and a blind follower of fellow conservatives. But Justice Thomas has broken through this partisan fog to convince the court to adopt many of his positions, and to become a beacon to the grass-roots movement to restrain government spending and reduce the size of the welfare state.

Justice Thomas now celebrates his twentieth year on the Court.  Thanks to my former boss, President George H. W. Bush, for appointing him, and thanks and gratitude to Justice Thomas for his uncompromising defense of the Constitution.

Kent noted that confirmation nastiness has spread outside Washington, DC.  But it certainly had its origin there.  The origin, specifically, was the Ted Kennedy-led, gutter-level attack on Robert Bork.

Twenty four years ago tomorrow, Bork was voted down simply because he was a conservative.  He was, however, superbly qualified for the Court.  He was a law professor at Yale, a  former Solicitor General, and a judge on the US Court of Appeals for the DC Circuit.  It was to prove to be a preview of the even more appalling "high tech lynching" of Clarence Thomas  --  although, quite fortunately, that one failed.

The New York Times, of all things, has an op-ed spelling out, in straightforward terms, just how ruthless and unprincipled the attack on Bork was.  If a Republican wins the Presidency next year, and there is a Supreme Court vacany during his term, the scandalous nature of the attack on Bork is, I fear, something we will all have to remember  --  and be prepared to fight.

Christopher Thomas Johnson, a killer discussed here, was executed tonight in Alabama.

His crime was that, in order to get revenge on his wife and to avoid having to pay child support, he killed his six month-old son by beating and suffocating him.  The evidence showed that he struck the child not fewer than 85 times.

The sheer evil of something like this is beyond my capacity to describe.  I notice that the crowd that was raising the roof about Troy Davis  --  to make the case that the death penalty should never be imposed  -- is notably quiet tonight.  I  would like to ascribe this  to an embryonic sense of decency, but more likely it's just because they're shrewd enough to shut up. 

Alabama Set to Execute Man for Murder of Infant Son: Kelli Dugan of Reuters reports Christopher Thomas Johnson, 39, is scheduled to die by lethal injection at 6 p.m. local time at the Holman Correctional Facility in Atmore, Alabama for the 2005 murder of his 6-month-old son. Suffocation and head trauma were cited as the causes of death of Johnson's son, and the forensic pathologist who performed the autopsy testified at trial that the infant suffered at least 85 separate injuries. Johnson represented himself at trial and plead guilty. He was sentenced to death in February 2007. Johnson's stay on death row could possibly be one of the shortest on record in the U.S., says one law professor. Johnson will be the sixth inmate executed this year in Alabama, and the 38th nationwide.  See also prior post here.

Record Number of Illegal Immigrants Deported: The Associated Press reports U.S. Immigration and Customs Enforcement said it deported almost 400,000 people, the largest number in the agency's history, in the fiscal year that ended in September. ICE Director John Morton said about 55% of those deported had misdemeanor or felony convictions. Of the 396,906 people deported, more than 1,000 were convicted of homicide; 5,800 were sexual offenders; and about 80,000 were convicted of drug related crimes or of driving under the influence.

Death Warrant Issued for Idaho Killer: Sven Berg of the Idaho Falls Post Register reports Bonneville County Judge Jon Shindurling issued a death warrant for Paul Ezra Rhoades in Idaho yesterday for murdering two women in 1987. Rhoades also received two life sentences for the second-degree murder of a convenience store clerk around the same time. Rhoades has filed a lawsuit against the state, saying that Idaho's method of lethal injection amounts to cruel and unusual punishment. The state has asked that the court throw out the lawsuit. Rhoades' execution is scheduled for November 18. It would be the first execution in Idaho since 1994, and the second since 1957. 

Parole Denied For Women Who Cooked Husband: Gosia Wozniacka of the AP reports that Omaima Nelson, a California woman serving a life sentence for the killing, chopping, and cooking of her husband during Thanksgiving 1991, was denied her second bid for parole Wednesday. Nelson argued that she should be paroled because she was a changed person, claiming to be sorry and claiming that she killed in self-defense. Due to her long criminal history, lack of responsibility, and failure to complete educational and vocational programs, the two-person panel of the state Board of Parole found that Nelson continued to be a danger to society. Parole commissioners said Nelson will not be eligible to seek parole again for 15 years -- the maximum period she can be held without another hearing.

Judge Allows Alleged Murderer's Road-trip: Gene Johnson of AP reports that in an oral ruling Monday, Washington Judge Micheal Moynihan decided to allow accused murderer Peggy Sue Thomas to take a two-week, five-state road trip so she can attend her half-sister's memorial service, receive dental care, and attend to a few other chores. Thomas is charged with killing a man in 2003.  Despite protests from Island County Prosecutor Greg Banks, Thomas is free on $500,000 bail, and had her arraignment delayed a week to Oct. 31 to accommodate the trip. While Thomas will be on a GPS monitoring device, there will be various non-signal points along the trip that might not immediately report if she flees the country. Banks stated: "That's the first time I've ever seen anything like that. We're sure hoping she comes back."

Alabama Immigration Law Leaves Police Uncertain: After a meeting on Thursday with the Department of Homeland Security, Mobile Police Chief Micheal T. Williams announced there are too many gray areas to begin enforcement of the Alabama's new Immigration law, which continues to be disputed by the U.S. Justice and Department and civil rights groups. The law expressly prohibits profiling but states that an officer can make an arrest when "reasonable suspicion exists that the person is an alien who is unlawfully present in the United States." Police are also prohibited from raiding job sites where illegal immigrants might be working and must consult the federal government when determining if someone is illegal or not. Due to the confusion, John Jenkins, the state's Deputy Director of Homeland Security, told the group of 50 officers from across Mobile and Baldwin counties to consult with their city attorneys for clarification. David Ferrara of the Press-Register reports.  

Kent discussed here the efforts to attack Justice Clarence Thomas.  It's hard to decide whether the attacks are more unprincipled or more hypocritical.*  For its humor value if nothing else, it's worth remembering that they were led by, among others, that renowned authority on ethics, Rep. Anthony "Have you seen my latest crotch shot?" Wiener.

My friend Ed Whelan deconstructs the latest in high-tech lynchings here.  One item Ed points out that made me laugh out loud is that the letter demanding Thomas's prosecution for his supposed ethical wrongdoing is signed by the ranking member of the House Judiciary Committee  --  a gentleman whose wife is currently serving a 37 month sentence in federal prison for taking bribes while serving on the Detroit City Council.

Ed' article is short and worth the read. 

* I decline to launch the shopworn if ubiquitous charge that they're racist.  Although it's  true that a prominent conservative black man is the special target of liberal seething, I don't think it's directly because of race.  I think it's because of the general intolerance a segment of the Left bears towards dissent by anyone from its pious claim to The Only Received Wisdom.

SCOTUSblog's new forum is operational, with its heavily moderated, use-your-real-name comments.  Today's topic is Maples v. Thomas, but the actual questions range into habeas more generally.

It's good to see another legal blog where one can discuss serious issues without putting up with the juvenile twits who have nothing substantive to add, sling insults and profanity, and call everyone who disagrees with them a Nazi.

Transcripts are available for the oral arguments in Maples v. Thomas and Martinez v. Ryan.

In the Maples argument, both attorneys took a lot of flak, and the argument bogged down in the peculiar facts of the case.  There were a lot of "I don't know" type responses.  The reason for the sparse record on these questions is that Maples's claim morphed on its journey to the Supreme Court, so a lot of questions about whether he was "abandoned" by his attorneys did not get answered in the District Court.  Hard to predict how the case will come out.  A remand for more fact-finding is a possibility.  But I expect it will set a relatively narrow precedent.

In Martinez, I think it is more clear that counsel for petitioner will not get the rule he wants.  He argues for a broad extension of the Douglas v. California right to counsel on the first appeal to cover claims on collateral review that could not have been brought earlier.  The corollary is that when counsel is constitutionally required, ineffectiveness of that counsel is cause for a procedural default of a claim, allowing it to be raised in federal habeas.

At page 17, Justice Kennedy asks, "Can I leave this argument with the judgment that you have offered me no limiting principle on how many proceedings there must be ... before there's an end to the argument that previous counsel were inadequate?"  Not a good sign for the defense side.

Earlier, at page 11, Justice Sotomayor asks about "a huge reliance interest that has developed since Finley and its progeny...."  See CJLF Brief at 20.

[Some of Justice Ginsburg's questions, as transcribed, don't make sense.  I suspect she was speaking softly and the stenographer had trouble understanding her.]

I expect the Finley rule, that there is no right to counsel in collateral review, will survive.

In a pre-argument post at SL&P Doug Berman noted, "The Maples case seems likely to generate the most media attention, in large part because it is a capital case.  But I think the Martinez case in the most important and potentially the most consequential of this trio."  The first statement was correct.  I think the second is also.