Results matching “October Arguments”

Twelve days ago, I noted that "the Government won a preliminary skirmish in the Supreme Court in the battle over the Deferred Action for Childhood Arrivals (DACA) program."  Today the Government won a battle, but the war goes on.

In the case of In re United States, et al., No. 17-801, the Government asked the Supreme Court for relief from an order to add to the administrative record a broad array of vaguely described documents.  Today, the high court held:

Under the specific facts of this case, the District Court should have granted respondents' motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is "committed to agency discretion," 5 U. S. C. §701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction). Either of those arguments, if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.

In other words, there is no need to compile a mountain of paper if the case can be resolved without it.  The Supreme Court also wants the Court of Appeals to supervise the District Court more carefully.

Bill notes the introduction of the Mens Rea Reform Act of 2017, S. 1902, by Senators Hatch, Lee, Cruz, Perdue, and Paul.  I agree with Bill and the Senators that congressional attention to mens rea is order.  I also agree that strict liability or a mental state of mere negligence should not be read into any criminal statute.  If Congress wants to create such a crime it must say so expressly.

Regrettably, though, this bill goes too far.  The American Law Institute's Model Penal Code gets it right in § 2.02(3).  The comment to that subdivision says:

Subsection (3) provides that unless the kind of culpability sufficient to establish a material element of an offense has been prescribed by law, it is established that if a purpose acted purposely, knowingly or recklessly with respect thereto.  This accepts as the basic norm what usually is regarded as the common law position.  More importantly, it represents the most convenient norm for drafting purposes.  When purpose or knowledge is required, it is conventional to be explicit.  And since negligence is an exceptional basis of liability, it should be excluded as a basis unless explicitly provided.

In the arguments made for this bill and its predecessor, I have yet to see a reason stated for omitting knowingly and recklessly from the default mental state.  My post last year on the predecessor bill is here.  If there is a good argument, let's hear it.

This is critically important.  I would support this bill if amended to follow the MPC provision.  I strongly oppose it in its present form.

A year ago, the U.S. Supreme Court reversed decisions of the Kansas Supreme Court overturning death sentences in two cases, the infamous Carr brother and Sidney Gleason.  The decision is here.  CJLF's press release is here.  CJLF's brief is here.

Today, Amy Renee Leiker reports for the Wichita Eagle:

A divided Kansas Supreme Court said Friday that it will uphold the death sentence of a man it previously overturned, according to a news release.

The U.S. Supreme Court ordered the Kansas Supreme Court to take a second look at Sidney Gleason's case early last year after hearing oral arguments in it and the cases of killers Jonathan and Reginald Carr in October 2015. A Barton County jury gave Gleason a death sentence for killing Mikiala "Miki" Martinez and her boyfriend, Darren Wornkey, in 2004 to keep her from telling authorities about an armed robbery.

"The decision today affirms the conviction and death sentence based on a Barton County jury's findings and moves this case along one step further. The wheels of justice are turning," Kansas Attorney General Derek Schmidt said in an e-mailed statement after the ruling was announced.

The decision is here.

"October surprise" has come to mean a story damaging to a candidate that is sprung in late October, too late to be effectively refuted with the truth.  "A lie gets half way around the world before the truth can tie its shoelaces," as the saying goes.

This year, with election day on the unusually late date of November 8, we have November surprises.  One of the worst is this op-ed published in the Sacramento Bee under the byline of Linda Klein, this year's President of the American Bar Association.  The article urges people to vote no on Proposition 66.

What does a civil attorney from Georgia know about the California death penalty and the proposal to reform it, you might ask?  Nothing, it would seem.  This article is obviously ghost-written by anti-66 partisans.  It has one of the highest densities of false and misleading statements that I have ever seen in a newspaper opinion piece.

The article begins by touting how wonderful the ABA is.  "Our expertise gives us a unique perspective on some of the likely pitfalls and unintended consequences of Proposition 66."  Wouldn't an assessment of pitfalls and consequences require an objective analysis of what the proposition actually says?  Of course, but the ABA clearly did not bother to get one or to check out the opponents' claims with the proponents.

First, it would require attorneys with no death penalty experience to represent prisoners in their first appeal if qualified lawyers are not available. Imagine being required to visit a dermatologist after you have been diagnosed with lung cancer because no oncologist is available.

The implication that an attorney who is highly experienced in felony appeals but has not previously handled a capital case is unqualified in the same sense as a doctor from a completely different specialty is absurd.  The basic requirement under the present rule requires four years practice of law and seven completed felony appeals for the defense, including at least one murder case.  (Rule 8.605(d)(1)&(2).)  Proposition 66 does not change the qualification standards except to direct that prosecution-side experience be counted.  (Initiative § 18, amended  Govt. Code § 68665(b).)  The provision on requiring lawyers to step up when there is a backlog of appointments is specifically limited to those who "meet the qualifications for capital appeals."  (Initiative § 5, new  Penal Code § 1239.1(b).)  In addition, the California Supreme Court contracts with the California Appellate Project to provide advice to appointed lawyers in capital cases, and nothing in Proposition 66 changes that.

But if the present rule promulgated by the California Judicial Council is not enough to establish that prior capital experience is not essential for a lawyer to be qualified, there is another source that also says so.

The U.S. Supreme Court has a one-day argument week next week.  Normal argument weeks are Monday through Wednesday.  Next week, Monday is a legal holiday, Columbus Day.  No arguments are scheduled for Wednesday, which is Yom Kippur.

So it's all about Tuesday.  The main action, for our purposes, is Peña-Rodriguez v. Colorado, asking whether the Constitution requires an exception to the time-honored rule that you can't impeach a jury verdict by calling the jurors to testify as to what was said during deliberations.  CJLF's brief, written by Kym Stapleton, is here.  Our press release is here.

Manrique v. United States is a technical question about restitution.  The Question Presented, as drafted by counsel for defendant, occupies an entire page and is a fine example of how not to write a Question Presented.   However, the fact that the Court took it anyway is an example of why that may not matter as much as some of us think.

CA County to Begin its First Death Penalty Trial in Years:  Jury selection is in its third week in Contra Costa County's first death penalty trial in years.  Nate Gartrell of the San Jose Mercury News reports that Darnell Washington has been charged with murder in the death of Susie Ko, 55, who was found murdered in her Hercules, Calif., home in October 2012.  He also faces charges of carjacking, burglary and robbery.  Two months prior to Ko's murder, Washington broke out of a San Bernardino jail with the help of his wife, Tania Washington, before going on a months-long crime spree that ended when the couple was arrested in Washington state days after murdering Ko.  Tania Washington pleaded no contest to manslaughter for her role in the crime and was sentenced to 23 years.  Darnell Washington's trial is estimated to begin in early July.

Synthetic Marijuana Use Reaches Epidemic Levels in NY:  A Brooklyn intersection has a new reputation for being one of the worst spots in the city for synthetic marijuana use, reaching "epidemic" levels.  Sarah Wallace of NBC New York reports that despite it being illegal to sell in the state of New York, synthetic marijuana -- known as K2 --  are still being dealt by stores near Broadway and Myrtle, an area now regarded as the best place to find the drug.  K2 is a new chemical concoction that is more potent than synthetic marijuana, often causing users to hallucinate, experience rapid heartbeats and seizures, and can even be deadly.  In Spring 2015, synthetic marijuana sent 160 people in New York City to hospitals in a little over a week, and thousands more were hospitalized across the state.

ID Officer Wounded, Suspect Dead:  A shooting on Tuesday night left one Boise police officer wounded, the suspect dead and a male victim suffering from life-threatening injuries. KTVB reports that the officer was shot in the chest after he and other officers were confronted outside of a residence when they responded to a 911 call.  The male suspect died at the scene after officers returned fire, though it is unclear whether he was struck from one of the officer's bullets or if he shot himself.  The wounded officer was wearing a ballistic vest and his injuries are not considered to be life-threatening.  The identities of the involved parties are yet to be released.

WI Woman Added to FBI's Most Wanted List:  A Milwaukee woman who fled after fatally shooting a pregnant woman three months ago has been added to the Ten Most Wanted Fugitives List, the FBI announced Tuesday.  Fox 6 Milwaukee reports that Shanika Minor shot Tamecca Perry, 23, in the chest on March 6 over an arguments regarding loud music.  Minor told her mother shortly before the incident that she felt Perry had disrespected her.  Perry was nine months pregnant with her third child, who was due five days after the shooting.  Her two other children were present when she was killed, but were unharmed.  Perry's unborn child did not survive the shooting.

Obama Politicizes Gun Control Again:  In comments Thursday following the mass shooting that claimed nine lives at a rural community college in Oregon, President Obama used the tragedy as a platform to call for stricter gun control laws.  Susan Jones of CNS News reports that the president blasted "those who oppose any kind of common-sense gun legislation," as well as the National Rifle Association. Fox News' Bill O'Reilly, on his Thursday night program, directly criticized Obama for politicizing high-profile mass shootings while ignoring the bloodshed taking place in his hometown of Chicago.  On Thursday morning, 26-year-old Christopher Harper Mercer, described as an angry man with disdain for organized religion and seeking notoriety, opened fire on the quiet Umpqua Community College Campus in Roseburg, killing nine and injuring seven.  According to witnesses, he was allegedly targeting Christians before he was shot and killed during a gunfire exchange with police.  The former president of the college says that the school has only one unarmed security guard on duty at a time.

Two Found Guilty in Border Patrol Agent's Murder:  Two men were found guilty Thursday of murdering, with guns supplied by the U.S. government, a U.S. Border Patrol agent, whose death exposed the bungled gun-running Fast and Furious operation.  Aalia Shaheed of Fox News reports that Ivan Soto-Barraza and Jesus Sanchez-Meza, who were part of a five-man cartel rip crew patrolling the Arizona desert targeting drug smugglers to rob at gunpoint, were found guilty on nine charges, including first-degree murder and attempted armed robbery in the death of agent Brian Terry in 2010.  Terry's death revealed the botched Fast and Furious operation in which agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed criminals to purchase guns with the intention of tracking them.  However, the agency lost track of many of the guns, including two AK47-style weapons discovered at the scene of Terry's death.  The two men face life sentences at their next court appearance in December.

UCR Omits Border Crimes, Paints Skewed Picture:  The FBI released its annual Uniform Crime Report (UCR) this week, summarizing violent crime statistics across the county in 2014, but omitted kidnapping and drug- or cartel-related crimes in their assessment, painting a misleading picture of the U.S.-Mexico border.  Sylvia Longmire of Breitbart reports that UCR data does not track crimes that are unique to the border, fooling the average reader into thinking that border communities, specifically in Texas, are "quiet with little criminal activity."  Data used to generate the UCR is voluntarily submitted by thousands of law enforcement agencies and no standards exist for how each agency classifies a particular crime, nor is there an audit process to ensure data uniformity.  Even if there were such standards and processes, the UCR still precludes kidnapping and drug-trafficking related crimes, which are common along the southern border.  Also, the UCR relies on crimes reported to the police and therefore, drug smugglers and illegal immigrants who are targets of border violence are far less likely to report crimes to law enforcement for fear of arrest and deportation.  Longmire notes that crime statistics are merely a starting point in crime analysis and "can be skewed many ways to prove a point or further an agenda."

Two CJLF Cases to be Heard by Supreme Court this Fall:  The U.S. Supreme Court begins its new term - which runs from October through July - on Monday, with arguments being heard on Monday, Tuesday and Wednesday of the first two weeks of the month.  Legal Director Kent S. Scheidegger has this article on The Federalist Society outlining the criminal cases on the high court's docket, two of which CJLF filed amicus briefs in support of the states,  Kansas v. Carr and Montgomery v. Lousiana.  Carr will be heard on Wednesday, October 7 and Montgomery will be heard on Tuesday, October 13.

Monday is Columbus Day, a government holiday, so the orders list from today's conference will be issued Tuesday.  Today the Court issued a single order lifting a stay in one of the same-sex marriage cases, presumably from the conference though not on the list.  Cert Pool has the list.  SCOTUSblog has its list of Petitions to Watch.  More on that after the break.

Tuesday's arguments feature an "original jurisdiction" case, one of the few that the Constitution allows to be filed directly in SCOTUS, not appealed from a lower court.  Yep, states suing each other over rivers again.  Also a case about state regulators and antitrust.

Wednesday's calendar has a civil case about appellate courts reviewing district court factual findings.  That might have something of interest for those who do federal habeas cases, which are technically civil.

The case most relevant to this blog, also Wednesday, is Jennings v. Stephens.  It has to do with the procedural requirements for a habeas petitioner who prevails on one issue but loses on the others, and who wants the court of appeals to review the others when the state appeals on the one it lost.  Does he need to cross-appeal?  Does he need a certificate of appealability? 

If he needs a COA for rejected claims, how finely do we parse the claims?  If the petitioner says his lawyer was ineffective for reasons A, B, and C, and the district court says A and B were fine but C was ineffective, does he need a COA for A and B?

CJLF has filed one of its very few briefs disagreeing, in part, with the prosecution.  We take the position (disagreeing with the petitioner) that he does indeed need a COA for rejected claims, but we also believe (disagreeing with the state) that ineffective assistance is one claim for each phase of the trial.

Tougher Sentencing for Sex Offenders Considered:  The proposed discharge of a serial rapist from the Minnesota Sex Offender Program has prompted public officials to call for longer prison terms for sex offenders.  Chris Serres of the Star Tribune reports that Thomas Duvall was convicted of separate violent sexual assaults on three teenaged girls after he was released from prison.  Legislators and law enforcement officials asking whether public safety would be better served if violent sex offenders were treated while in prison, rather than being committed to a treatment center.   A three-judge panel will hear arguments today over whether to hold an in-depth hearing to discuss Duvall's release.  If released, he will be only the second individual discharged from the center in 20 years.

Alleged Murderer Violated Parole Multiple Times:  A New York man suspected of torturing and killing his former roommate was released from prison one month before the crime occurred with no supervision, despite violating his parole twice in three years.  Matt Porter of WBNG reports that spokeswoman for the Department of Corrections and Community Supervision asserts that the law required Nigel Saunders to be released without further supervision because he had served "every possible day under parole supervision in accordance with the law."  Saunders and another suspect broke into the home of Saunders' former roommate on October 4, tied him and his pregnant fiancee up in their basement, stabbed them, doused them with lighter fluid, and set them on fire, killing the roommate.  The fiancee managed to escape during the attack, and her and her unborn child are expected to survive.

Lifetime Registration for Juvenile Sex Offenders Deemed Unconstitutional:  A Pennsylvania law that imposed lifetime registration requirements on juvenile sex offenders has been ruled unconstitutional by a York County judge.  The ruling held that the law fails to acknowledge the unique attributes and considerations of juvenile offenders. The judge noted that the law did not take into account studies showing that juvenile sex offenders have a greater capacity to reform than adults. Matt Miller of Penn Live reports that the Sexual Offender Registration and Notification Act, was passed in 2011 to comply with federal law and prevent the loss of federal funding.  The judge's decision is being reviewed by the county prosecutor for a possible appeal to the Supreme Court. 

Howard Mintz has this story in the San Jose Mercury-News:

With California voters readying to consider whether to retain the death penalty, two prominent district attorneys, including San Mateo County's, are mounting a rebel legal campaign to kick-start executions in San Quentin's long-dormant death chamber.

Los Angeles District Attorney Steve Cooley has been heading the charge, moving in recent months to sidestep legal obstacles that have put executions on hold for nearly seven years and secure execution dates for condemned killers Mitchell Sims and Tiequon Cox.

Contempt Vote Against Holder Scheduled: Sharyl Attkisson of CBS News reports Rep. Darrell Issa (R, CA) announced Monday the House Oversight Committee will vote Wednesday, June 20, on whether to hold Attorney General Eric Holder in contempt of Congress. The contempt action stems from Holder's failure to hand over documents subpoenaed on October 12, 2011 related to the Fast and Furious "gunwalking" investigation. Issa says the contempt process can be stopped at any time by the Justice Department turning over the subpoenaed documents. A full House vote will likely be scheduled in the matter if the House Oversight Committee approves the contempt citation.

FBI Says Reported Crime Down: Pete Yost of the Associated Press reports the number of reported violent crimes across the U.S. fell 4 percent in comparison to 2010. The FBI also said the number of reported property crimes went down 0.8 percent. This is the fifth straight year of declines for violent crimes and ninth straight year of declines for property crimes, according to preliminary FBI data. The decline in crime was more significant in the first half of 2011 than the second half of the year. The FBI gathered information from 14,009 law enforcement agencies around the country.

9th Circuit Rules in Favor of News Groups for Execution Viewing: Jessie L. Bonner of the Associated Press reports the 9th U.S. Circuit Court of Appeals on Friday ruled that witnesses, including reporters, should be allowed full viewing access to Idaho's upcoming execution. The decision came a day after the court heard arguments in a lawsuit from the Associated Press and 16 other news organizations seeking to change Idaho's protocol, which prevents witness from viewing executions until after catheters have been inserted into the veins of the inmate.

Florida Sued Over Voter Roll Purge: Gary Fineout of the Associated Press reports a Hispanic civic organization and two naturalized citizens filed a lawsuit on Friday, asking a federal court to stop Florida from continuing its purge of ineligible voters from the state's voter rolls. On May 31, the U.S. Department of Justice sent a letter to Florida saying the purge violates federal law. Last week, the state said it disagreed with federal authorities.

Yesterday, the US Supreme Court denied a stay of execution to Texas murderer Keith Thurmond, and Thurmond was executed.  No dissent is noted.  (Order here.  Docket here.)  Allan Turner has this story in the Houston Chronicle.

The high court's decision to let this execution proceed bodes well for the State of Arizona's position in the pending case on ineffective assistance of counsel on state collateral review, Martinez v. Ryan.  That case was argued on the second day of the term in October and remains undecided.  Martinez, like Thurmond, claims that the supposedly ineffective assistance of his state collateral review lawyer should furnish "cause" to let him raise in federal habeas corpus claims that he defaulted in state proceedings.

Supreme Court precedent is squarely to the contrary.  The constitutional right to counsel ends at direct appeal.  Ineffective assistance is not "cause" for default where there is no constitutional right to counsel at all.  CJLF's brief in Martinez is here.  The Fifth Circuit's opinion in Thurmond is here.

If the Court were going to overrule that precedent in Martinez would it have let the execution of Thurmond proceed?  I don't think so.

Speaking of Arizona, the Court also denied a stay in the Towery case, noted here and here.  No dissents.  The Arizona Republic has this pre-execution story.

The Supreme Court's argument calendar for the November session (which actually begins Oct. 31) is here.

Monday, October 31:  Lafler v. Cooper, No. 10-209 and Missouri v. Frye, No. 10-444.  Both cases involve claims of ineffective assistance in plea bargaining.  Cooper went to trial, while Frye accepted a later, less favorable plea bargain.  CJLF filed a single amicus brief for both cases, here.

Wednesday, November 2:

Perry v. New Hampshire, No. 10-8974, on the extent to which allegedly unreliable identifications raise a federal constitutional question.

Gonzalez v. Thaler, No. 10-895, on timing questions relating to AEDPA's statute of limitations for federal habeas cases.


Monday, November 7:  Kawashima v. Holder, No. 10-577, on tax fraud and deportation.*

Tuesday, November 8:

United States v. Jones, No. 10-1259, on tracking suspects' cars with GPS.

Smith v. Cain, No. 10-8145, another Brady case from Nawlins.

Also, on the last day, the Court hears the slaughterhouse cases, which I thought had been decided some time back.

* Kawashima is an immigration case rather than a criminal case.  However, defense lawyers have always needed to understand the immigration consequences of convictions, and since Padilla prosecutors should be aware as well.  A consequence nobody knows about could result in getting the case back.

The US Supreme Court argument calendar for October, the beginning of the new term, is now available.  The criminal and related cases are:

Monday, October 3:  Reynolds v. United States, standing to challenge rules under the Sex Offender Registration and Notification Act (SORNA).

Tuesday, October 4:  Three habeas cases:

Maples v. Thomas:  Ineffective assistance of counsel on state collateral review as cause for a procedural default.

Martinez v. Ryan: Similar to Maples.  Also whether the constitutional right to counsel extends to the first collateral review.

Howes v. Fields:  When a prisoner incarcerated for another crime is "in custody" for the purpose of Miranda.

Tuesday, October 11:  Greene v. Fisher:  As of what time does a federal court ask whether the law was "clearly established" as contrary to a state court decision for the purpose of federal habeas review.

Wednesday, October 12:  Florence v. Board of Chosen Freeholders:  Strip searches in jail.

The US Supreme Court has concluded its scheduled arguments for this term.  From now through about mid-June, they will be releasing opinions in cases already argued, grants of certiorari petitions for argument next term (beginning in October), and some summary dispositions without oral argument.

Expect most of the opinions to be released on Mondays (or the Tuesday after Memorial Day), with possibly a few on Thursdays in June.

The U.S. Supreme Court issued this press release yesterday:

Beginning with October Term 2010, the audio recordings of all oral arguments heard by the Supreme Court of the United States will be available free to the public on the Court's Web site, www.supremecourt.gov, at the end of each argument week.  The audio recordings will be posted on Fridays after Conference.

 

The public may either download the audio files or listen to the recordings on the Court's Web site.  The MP3 files of the audio recordings may be accessed by clicking on the "Oral Arguments" prompt on the home page, and selecting "Argument Audio."  The audio recordings will be listed by case name, docket number, and the date of oral argument.  The recordings will also be accessible by clicking on "What's New" on the site's home page.

 

The Court began audio recording oral arguments in 1955.  The recordings are maintained at The National Archives and Records Administration.  Prior to the 2010 Term, the recordings from one Term of Court were not available until the beginning of the next Term.  The Archives will continue to serve as the official repository for the Court's audio recordings. 

SCOTUSblog has the U.S. Supreme Court calendar for the October session, although it is not on the Court's own site as of this writing. The criminal and related cases are as follows:

Monday, October 4: Abbott v. US & Gould v. US -- federal gun enhancements.

Tuesday, October 5: Michigan v. Bryant -- Confrontation Clause, Crawford, and questioning of wounded victim at the scene.

Los Angeles Co. v. Humphries -- civil liability of county for erroneous placement on child abuser list

Tuesday, October 12 (the big day for CJLF):

Harrington v. Richter:  This is a noncapital habeas murder case involving an ineffective assistance of counsel claim. The Court added the question of whether the "deference" standard of AEDPA, 28 USC §2554(d), applies when the state court decision is a summary disposition. CJLF's brief is here.

Premo v. Moore:  This is also a noncapital habeas murder case involving an ineffective assistance claim. The claim is that the attorney advised the defendant to take a plea rather than move to suppress his confession. The motion was of dubious merit, the prosecution had sufficient other evidence to convict Moore without it, and rejection of the deal would have exposed Moore to a possible conviction of a higher degree of murder and a more severe sentence.  The questions presented involve the standards for judging ineffective assistance claims in the guilty-plea context. CJLF's brief is here.

Connick v. Thompson: No singing; it's Harry, Sr. The case involves civil liability of DA offices for Brady nondisclosure violations.

Wednesday, October 13: Skinner v. Switzer: Postconviction DNA testing.

Privacy cases are also worth keeping an eye on, as the precedents set may work their way into suppression motions in criminal cases.  On Tuesday, October 5, the Court will hear NASA v. Nelson. The case involves property rights in the contents of Aladdin's lamps found during space missions privacy rights of government contractor employees during background investigations. Eugene Volokh has this post on the case and its implications.