Results matching “thomas”

Yesterday, the U.S. Supreme Court heard oral argument in Magwood v. Patterson (09-158), to address whether a 1997 habeas claim brought by a convicted murderer was a "second or successive petition" under 28 U.S.C. §2244(b), when he could have raised the claim in his first habeas petition in 1985. 

In 1979, Magwood lay in wait to shoot and kill Sheriff Grantham in the parking lot of the Coffee County, Alabama, Jail.  He shot Sheriff Grantham three times, once each in the head, face, and chest. He then fled.  As Magwood sped away, he exchanged gunfire with Deputy Thomas Weeks, who witnessed the murder.  Magwood is not challenging his conviction for the murder.  Since 1997, Magwood has been challenging whether he was correctly resentenced to death under Alabama law.  Today's News Scan provides some more details on the procedural history of Magwood's case. 

Tom Goldstein has this piece at the Huffington Post arguing that Goodwin Liu is not so far out of the mainstream that he should not be confirmed.

The truth is that we should not fear the appointment of brilliant and conscientious lawyers like Goodwin Liu, whether those nominees tare on the ideological left or right. Instead, we should encourage them to take these critical appointments. There is a vibrant disagreement in the courts over how to interpret the Constitution, with no consensus on the correct answer. The jurists participating in that debate are not outside of the "mainstream." Nor is Goodwin Liu.

However, there is an elephant in the living room that Tom does not address. Exactly the opposite position was taken before the Senate Judiciary Committee four years ago by none other than Goodwin Liu.

Liu's testimony was precisely that Samuel Alito was too far from the mainstream to be confirmed despite his acknowledged intellectual ability. If we measure in-or-out of the mainstream as absolute value of variance from the American political median, it is beyond reasonable disagreement that Alito is closer to the median than Liu.

The only way to make the contrary argument is to measure from someplace other than the overall American center. If you measure from the median of American academia, then of course Liu would be closer to that center. But that would be a very wrong benchmark to use, and the Senators know it.

"Violence Prompts Debate Over Medical Marijuana":  William Yardley of The New York Times reports on a recent shooting and deadly beating linked to medical marijuana in Washington.  The incidents have prompted law enforcement officials and marijuana advocates to call for changes to its regulations of the drug.  In the past week, a man in Orting, Washington, died after being beaten while confronting people stealing marijuana plants from his property.  This past Monday, a marijuana plant grower shot an armed man who is accused of breaking into his home.  Washington legalized medical marijuana in 1998, and increased violent crimes underscore the conflicts in state policy.  Washington's laws do not require the state to play a formal role in regulating and distributing the drug.  The majority of medical marijuana is distributed through private homes or small offices.  As a result, robberies have become more common in Washington, and tend to be under-reported.  State Senator Jeanne Kohl-Welles, a Democrat from Seattle, said she and another lawmaker would introduce legislation next year to protect access to medical marijuana and protect those who grow it.  It should only protect those who obey the law.  The medical marijuana grower that was involved in the recent shooting, was not in compliance.  He and his girlfriend were entitled to have 50 plants each in the house they shared, but investigators found baked, frozen, and chocolate goods laced with marijuana along with a total of 385 plants in his home.

Off-Topic, But in Honor of St. Patty's Day:  In The New York Times, Thomas Cahill has an op-ed celebrating the Irish, in "Turning Green With Literacy."

Turning 90, and Considering Retirement:  At SCOTUSblog Lyle Denniston reports that on April 20th, Justice Stevens will celebrate his 90th birthday, and become the second oldest Justice ever to have served on the Court.  According to Denniston, April may also be the month that Justice Stevens announces his retirement.  Whether he will or not remains up in the air.  Denniston reports that in a March 8th interview with Jeffery Toobin, Justice Stevens stated that he would make up his mind in about a month.  Denniston believes that if Justice Stevens does desire to retire, he will announce his decision after the Court has completed hearing oral arguments on April 28th.  Justice Stevens may still decided to stay another year.  He reportedly told Toobin, "...I still have my options open...When I decided to just hire one clerk, three of my four clerks last year said they'd work for me next year if I wanted them to.  So I have my options still.  And then I'll have to decide soon."  Denniston also has this post on SCOTUSblog, with more details on Justice Stevens' interview with Toobin.

A History of Presidential Pardon Power:  Sentencing Law and Policy's Doug Berman links to an article by former-U. S. Pardon Attorney Margaret Colgate Love, describing the decline of the pardon power and its hopeful revival.  In her piece, The Twilight of the Pardon Power, Colgate Love examines the pardoning practices in the 19th and early 20th centuries, and discusses how it changed in 1930 to become a tool for restoring the rights of citizenship.  She then examines the reasons for its decline and eventual collapse during the Clinton Administration.  She closes by arguing that President Obama should revive the power, and offers suggestions for how he might do so.

The Department of Justice Defaults to "Openness" :   At Blog of Legal Times, Mike Scarcella reports that today, Attorney General Eric Holder Jr. stated that the Department of Justice has increased the rate of disclosure, and reversed what he called a "disturbing" trend.  The Attorney General stated the department remains committed to the principle that "we make openness the default, not the exception" when it comes to public interest in government records.  At each of the Federal departments, Chief FOIA officers are supposed to submit a finalized report today to the DOJ Office of Information Policy.  DOJ officials said the public will have access to the reports via a DOJ website.  Tony Mauro reports on other D.C. events that will commemorate Sunshine Week, a week aimed at spotlighting and promoting government openness.

The Political Ambitions of a Judge's Wife:  Yesterday, on Volokh Conspiracy, Eugene Volokh commented on the "prominent political role[s]" of Virginia Thomas and Ramona Ripston, the wives of Supreme Court Justice Thomas and Ninth Circuit Judge Reinhardt, respectively.  According to Volokh, Virginia Thomas just founded Liberty Central Inc., a conservative activist group, and Ramona Ripston just stepped down from being head of the Southern California ACLU.  Volokh's comments are a response to Kathleen Hennessey's March 14th article in the Los Angeles Times.  Hennessey reports that some experts believe the political ambitions of wives could give rise to judicial conflicts of interest, but Volokh disagrees. He writes that these prominent political roles are not "particularly pernicious or dangerous:  Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups." 

Chelsea King Killer Violated Parole but Avoided Prison:  At Sentencing Law and Policy, Doug Berman posts a link to a Los Angeles Times article describing how the man accused of killing Chelsea King violated his parole, but avoided being sent back to jail.  In his article, Richard Marosi explains that John Albert Gardner III violated parole in 2007 by living close to a school, but was not sent back to prison because he complied with relocation orders.  The California Department of Corrections and Rehabilitation released a statement yesterday explaining that while Gardner had several minor potential parole violations, the violation of the residency rule could have led to a hearing process with parole officials.  Todd Spitzer, a prosecutor, said the department has eased up on parole violators because of prison constraints. "They were ignoring public safety with one goal in mind: They were trying to solve the prison overcrowding."

Notable Criminal Petitions to Watch:  On SCOTUSblog, Erin Miller has posted its Petitions to Watch for the Supreme Court's March 19 Conference.  Miller provides links to seven cases that Tom Goldstein has deemed to have a reasonable chance of being granted, and three of them address areas of criminal law.  Moran v. United States (09-392) asks the Court to decide whether a Federal Rule of Criminal Procedure, which permits a defendant to comment on "matters relating to an appropriate sentence," entitles a defendant to be notified prior to the pronouncement of sentence that sex offender special conditions of supervised release are contemplated; Kentucky v. Cardine and Curry (09-419) addresses whether the Double Jeopardy Clause bars the retrial of a defendant after the trial court sua sponte declares a mistrial absent manifest necessity and the defendant does not object prior to the actual discharge of the jury; and Beard v. Thomas (09-527), an AEDPA capital case, asks whether Thomas was prejudiced by the absence of supposedly mitigating evidence, when the mitigating nature of that evidence is disputed and he refused to allow any mitigation evidence.

Some Comments on Justice Thomas's Silence:  February 22, 2006, marked the last time Thomas asked a question during oral argument, and on February 22, 2010, Tony Mauro wrote an article on those criticizing Justice Thomas's silence.  Yesterday, Linda Greenhouse joined their ranks with her opinion piece on New York Times' Opinionator blog.  Mauro's post discusses a recent Florida Law Review article, Why Justice Thomas Should Speak at Oral Argument, by David Karp, that argues "[b]y removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court."  Mauro goes on to explain that Justice Thomas may remain silent out of respect for the advocates, and to give them a chance to talk.  Steffen Johnson of Winston & Strawn in Washington, an advocate who appeared before the Court in Holmes v. South Carolina, said Justice Thomas' style "reflects humility on his part."

Revised Supreme Court Rules:  Yesterday, SCOTUSblog writer Adam Schlossman reported that on February 16, 2010, the Supreme Court enacted its revised Rules of the Supreme Court.  The updated rules reduce the number of words allowed in a merits reply brief from 7,500 to 6,000, and change Rules 26 and 34.1 to clarify what must be included on the cover of the Joint Appendix.  The new rules also require the counsel of record to include an e-mail address on the cover of every document filed.  The Court also made changes to Rule 37, clarifying that only an attorney admitted to practice before the Court is permitted to file an amicus curiae brief and that extensions of time for amicus curiae briefs at the merits stage will not be entertained. Other minor changes can be found in the Court's official memorandum.

A Study on "Last Words":  In June 2009, Justice Quarterly published Of Guilt, Defiance, and Repentance: Evidence from the Texas Death Chamber, an empirical article statistically examining what an inmate says right before he is executed.  The study, conducted by Stephen K. Rice, Danielle Dirks and Julie J. Exline, examined inmates' final statements for the period between December 1982 and early June 2005.  The authors found that before January 12, 1996, 14% of the last statements admitted responsibility and 6% expressed sorrow or sought forgiveness from the victim's family.  Only 10% of the last statements were coded as criticizing the legitimacy of the death penalty.  On January 12, 1996, Texas began allowing family and friends of homicide victims to attend executions.  After that date, 43% of inmates admitted guilt during their last statements 41% expressed repentance and a desire for forgiveness. (h/t Ian Ayers' post on New York Times' Freakonomics Blog)

House Impeaches Federal Judge Porteous:  At Wall Street Journal's Law Blog, Ashby Jones reports that the House of Representatives has unanimously voted to impeach New Orleans federal judge Thomas Porteous.  Porteous had been accused of of soliciting money from lawyers who appeared before him.  According to a Times-Picayune article by Bruce Alpert, Porteous is the 15th judge found to have committed "high crimes and misdemeanors," the Constitution's criteria for impeachment.  Representative Adam Schiff (D-Calif.) stated, "Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years."  On Volokh Conspiracy, Eugene Volokh posted the articles of impeachment.

Data From the Sentencing Commissions Quarterly Update:  At Sentencing Law and Policy, Doug Berman sees a "slow migration away from guidelines" in the U.S. Sentencing Commissions 2009 Final FY09 Quarterly Update.  Berman reports that in FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases.  In 2% of all the cases, judges ordered an above-guideline sentence and initiated a below-guideline sentence in nearly 16% of all cases.  The Sentencing Commissions data from FY 2008 wasn't too different.  In 2008, prosecutors sponsored a below-range sentence in approximately 25% of its cases and judges initiated a below-range sentence 13.4% of the time.

Practical to Keep Two Options for Terror Trials: New York Times writers Charlie Savage and Scott Shane report on the idea to retain two separate systems for trying foreign terrorism suspects: military commission and civilian courts.  While politicians argue for one over another, former counter-terrorism officials are warning that the political debate has lost touch with the pragmatic advantages of keeping both the civilian and military systems available.  There are problems with a commissions-only policy: some nations will not extradite terrorism suspects or provide evidence to the United States except for civilian trials; federal courts offer a greater variety of charges for use in pressuring a defendant to cooperate; military commission rules do not authorize a judge to accept a guilty plea from a defendant in a capital case; and the military system is legally untested, so any guilty verdict is vulnerable to being overturned on appeal.  Those in favor of military commissions argue that critics are exaggerating any problems with commissions and overlooking their advantages.  Congress overhauled military commissions last year to increase defendant's rights, and the United States may be able to persuade foreign countries to extradite suspects to military tribunals.  There might be value to keeping both systems.  Juan C. Zuarte, former deputy national security adviser for combating terrorism stated, "We shouldn't inadvertently handcuff ourselves by taking [civilian terrorism trials] completely out of our tool kit."

Getting the Last Word: New York Times writer Adam Liptak reports on the growing frequency of oral dissents being delivered from the Supreme Court bench.  "Dissenting from the bench," a new study to be published in Justice System Journal, contends that dissenting is a sort of nuclear option that "may indicate that bargaining and accommodation have broken down irreparably." There is, of course, an element of stagecraft to oral dissents.  If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.  Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.  "In 15 years on the bench," he said, "I have never read a dissent from the bench, but today's decision requires that I do so." Justice Thomas had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

Federal Background Probes Come Into Question: San Francisco Gate writer Bob Egelko reports on the Supreme Court's decision to hear NASA v. Nelson, and decide how far the government can go in looking into the background of NASA scientists and engineers.  The court granted the Obama administration's request to hear an appeal of a lower-court ruling that barred NASA from conducting far-reaching inquiries into the lives of 28 workers at the Jet Propulsion Laboratory in Pasadena.  They passed routine background checks when they were hired, but were ordered to undergo further reviews under a 2004 homeland security directive by President George W. Bush.  28 employees refused to submit to checks and were fired.  The Ninth Circuit Court intervened in October 2007, blocked the firing and ruled that the inquiries were too intrusive and unrelated to national security.  "The decision prevents the routine background checks of many government contract employees and it casts a constitutional cloud over the background-check process the government has used for federal civil service employees for over 50 years," Justice Department lawyers said in seeking Supreme Court review.  The Justices will hear the case in the term that starts in October, with a ruling due by June 2011.

Registered Sex Offender Linked to Body:  Associated Press Writer Elliot Spagat reports today on the scheduled arraignment set for this afternoon on charges against John Albert Gardner.  Gardner was arrested for the rape and murder of the San Diego high school student, Chelsea King.  In 2000, Gardner, a 30-year-old ex-con, was facing 11 years in prison for molesting a 13-year-old female, but after a plea agreement he served only five. He was then released on parole for three years until September 2008.  Gardner had been previously linked to an assault on a 22-year-old woman.  Five days after King's disappearance, a body was found buried in a grave on the south shore of Lake Hodges.  San Diego County Sheriff William Gore said there is a "strong likelihood" the body found is Chelsea's.  Dr. Matthew Carroll, a psychiatrist who interviewed Gardner years ago, believed Gardner ought to have served a longer sentence: he was a "continued danger to underage girls in the community."

Convict Found Guilty of Attempted Murder and Mayhem:  Jaxon Van Derbeken of the San Francisco Chronicle reports on yesterday's conviction of 29-year-old Scott Thomas for the attempted murder and mayhem charges in a stabbing attack at a bakery that nearly killed a 15-year-old San Francisco girl in 2007.  A second phase of the trial is set to begin tomorrow to determine if Thomas was sane at the time of the attack.  If Thomas is found sane, he will face life in prison.  Prosecutor Scot Clark argues that the attack was premeditated and Thomas intended to decapitate the 15-year-old.  The case stirred up public outrage after it was revealed Thomas was let out of prison by mistake without supervision the day before the crime. Linda Schaller, the mother of the victim, said Thomas has portrayed himself as a "poor boy": "He's not a poor boy; he's a monster."

Death Sentence Long Overdue for Self-Avowed Racist:  Darci Marchese of the Associated Press reports  that attorneys for rapist/murderer Paul Powell are asking Virginia Governor Bob McDonnell to commute his death sentence.  Powell, a self-avowed racist, is scheduled to be executed on March 18.  In 2000 Powell was sentenced to death for killing an acquaintance, 16-year-old Stacie Reed and raping her 14-year-old sister.  The Virgina Supreme Court overturned his death penalty because no special circumstances to the murder was proven at trial.  No longer facing the death penalty, Powell wrote a note to his attorney detailing Stacie's slaying.  In the letter, Powell described confronting Stacie at her home about dating a black man and threatened to rape her.  When she fought back Powell stabbed her in the heart.  He then took a break to have a smoke and iced tea, while he waited for Stacie's sister to come home.  He eventually raped the sister, who managed to escape before he could kill her.  Armed with Powell's letter, Prince William County Commonwealth's Attorney, Paul Ebert, dropped the first indictment and prosecuted Powell for the attempted rape and murder of Stacie.  In 2003,  Powell was convicted again and sentence to death.  Last July, Powell's execution was stayed by the U.S. Supreme Court, but the Court denied cert last month. 

Today, the U.S. Supreme Court announced three opinions for cases argued this term: Johnson v. United States (08-6925); Reed Elsevier v. Muchnick (08-103); and Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service (08-240; 08-372).  At SCOTUSblog, Erin Miller posts brief descriptions of each of the opinions. 

Reed Elsevier and Mac's Shell address areas copyright and franchise law, but today's decision in Johnson held that in the context of  the Armed Career Criminal Act's definition of "violent felony," the phrase "physical force" means violent force.  This means that in order to qualify for enhanced sentencing under "violent felony" section of the Armed Career Criminal Act, a person must have engaged in "force capable of causing physical pain or injury to another person."  The individual could not be sentenced for a violent felony if the person had been convicted for "unwanted touching." 

In 2007, Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony.  This violated 18 U.S.C. §922(g)(1).  Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2003 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.

In today's 7-2 decision, Justice Scalia wrote that Johnson's 2003 "conviction was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes 'physical force' within the meaning of §924(e)(2)(B)(i)."  When the Court ruled that it was not, it reversed the judgment of the Eleventh Circuit, set aside Johnson's sentence, and remanded the case for further proceedings.  Justice Alito wrote a dissent, which Justice Thomas joined. 

An Attempt to Clarify Prisoners:  Marisa Lagos of the San Francisco Chronicle reports today on California Assemblyman, Alberto Torrico's proposed legislation to limit the early release of nonviolent offenders to state prisons.  Prompted by confusion at the local level and several lawsuits, Torrico wants to clarify that a recently enacted law granting early release of nonviolent offenders is meant only to alleviate overcrowding in prisons and not in county jails.  "It's not meant to apply to local inmates, period," Torrico said.  "We are dealing with a state crisis."  The law took effect January 25 of this year, but it has confused many counties because sheriffs interpreted the law differently.  Under the new law, Sacramento county has released hundreds on jail inmates, while San Francisco released "only a handful."  Assembly member Torrico's Bill 1395 is available here.

Trouble Finding an Unbiased Jury:  Adam Liptak of The New York Times reports on today's Supreme Court oral argument regarding, former Enron CEO, Jeffrey K. Skilling's  request that the Court overturn his verdict because he did not receive a change of venue. The Supreme Court has not considered a change of venue in two decades.  Modern media has made it difficult to determine whether one can receive a fair trial even if there is a change of venue.  Little can be done to control the intensity of news coverage, so a change of venue is less likely to solve the problem.  In its merits brief Solicitor General Elena Kagan told the Court, "media coverage carried on national networks, cable stations and the Internet is not confined to the venue in which the crime is committed."  Many judges and experts in jury behavior and selection agree but say it is not too difficult to find unbiased and uninformed jurors.

National Debate: Mandatory Life Sentences for Juveniles:  Free Press staff writer L.L. Braiser reported Sunday on  juveniles serving mandatory life sentences.  Dontez Tillman and Thomas McCloud, two 14-year olds, were tried as adults and sentenced to life in prison in Michigan for the first-degree murders in the beating deaths of two homeless men over a period of three days.  Michigan currently has 352 prisoners serving life sentences for crimes committed while they were juveniles.  It is one of 12  states which have introduced legislation that would ban mandatory life sentences to juveniles, or at least give judges some discretion.  Michigan Senator, Liz Brater introduced a package of bills to accomplish this last year.  The measures are currently under review.  Some experts believe that certain kids are too dangerous and should never be released.  Our own Kent Scheidegger was quoted on the issue: "It is our position that for some juveniles, a life sentence is appropriate."  The Supreme Court is currently considering the issue in the cases of Graham/Sullivan v. Florida.  Our brief in these cases us here.  

The U.S. Supreme Court announced its decision in Maryland v. Shatzer (08-680) today.  The opinion is available here.  Our brief in the case is available here. 

The decision recognizes an exception to the requirement in Edwards v. Arizona that an officer must cease interrogation once a suspect invoked his right to counsel, and established that a "break in custody" permits the police to resume questioning a suspect who had previously asked for a lawyer.  Seven members of the Court agreed that if the "break in custody" lasts more than 14 days between interrogations, Edwards did not require suppression of the confession.  Justices Thomas and Stevens did not join the 14-day rule.

Update: Tony Mauro has this story for the NLJ: "'Miranda' dealt one-two punch by high court"

One thing you can't deny about defense counsel is their creativity.  In that respect, they far surpass humdrum prosecutors.  Thus today's gem of an AP story:

 

Ex-player:  I killed coach because I thought he was the Devil

 

A tearful former football player told Iowa police that he repeatedly shot his high school coach because he believed him to be a devil who turned students "into dead people," according to an interview with the murder suspect recorded just hours after Ed Thomas' death.

The scratchy, muddled audio recording of 24-year-old Mark Becker's confession was played to a packed Butler County courtroom on the second day of his trial for first-degree murder. Becker has pleaded not guilty by reason of insanity.

Prosecutors say Becker calmly walked into the weight room at Aplington-Parkersburg High School on the morning of June 24 and killed Thomas in front of a group of teenage students.

"I put one in his head, then I put two more in his head, then I put one in the knee," Becker said in the recording of his interview with Division of Criminal Investigation agent Chris Callaway less than two hours after Thomas was shot dead. "I emptied the clip and left it empty."

No 3d Strike for Cheese: Hudson Sangree reports in the Sacramento Bee, "Yolo County prosecutors are dropping their bid for a life sentence for a man who put cheese down his pants at a Woodland market. A new psychological evaluation convinced prosecutors that Robert Preston Ferguson's most recent convictions for petty theft did not warrant a life sentence under the state's three-strikes law, said Jonathan Raven, Yolo County's assistant chief deputy district attorney." SL&P previously had this post on the case.

Nebraska Lethal Injection Rules: Martha Stoddard reports for the Omaha World-Herald, "Starting Monday, Nebraska will again have an approved method of executing people on death row.That's when rules and regulations for carrying out lethal injections will go into effect.The regulations carry out a law passed last year changing the state's method of execution from electrocution to lethal injection." As usual, opponents threaten to bog down the process with "years of litigation" at the same time they are saying the death penalty costs too much.

"Right to Free Speech Collides With Fight Against Terror":  New York Times writer Adam Liptak reports on Ralph D. Fertig's challenge to a law that pits First Amendment freedoms against the government's efforts to combat terrorism.  Fertig, a 79-year-old lawyer, says he would like to help a militant Kurdish group in Turkey find peaceful ways to achieve its goals.  But he fears prosecution under a law banning even benign assistance to groups said to engage in terrorism.  The case represents the court's first encounter with the free speech and association rights of American citizens in the context of terrorism since the Sept. 11th attacks, and is the first chance to test the constitutionality of a provision of the USA Patriot Act.  Opponents of the law, which bans providing "material support" to terrorist organizations, say it violates American values.  The government defends the law, under which it has secured many of its terrorism convictions in the last decade, as an important tool that takes account of the slippery nature of the nation's modern enemy.  The law takes a comprehensive approach to its ban on aid to terrorist groups, prohibiting not only providing cash, weapons and the like but also four more ambiguous sorts of help - "training, personnel, expert advice or assistance, and service." Fertig, in an interview at his Los Angeles home stated, "My mission would be to work with them on peaceful resolutions of their conflicts, to try to convince them to use nonviolent means of protest on the model of Mahatma Gandhi and Martin Luther King." The Supreme Court will hear arguments on February 23rd.

Prisoners Become Bigger Players in Census: Associted Press writer Hope Yen reports on a change in federal policy governing how prisoners are to be counted in Census.  Prison populations have historically been included in national headcounts, but now Census officials will make data on inmate populations available to states earlier than in the past.  This change will allow states to decide whether to count inmates for purposes of redistricting, a move that could reshape the political map.  The federal government relies on the Census not only to learn about Americans and their lives but also to parcel out federal dollars, as well as determine the number of US House seats representing each state.

A Look into California Sentencing:  At Sentencing Law and Policy today, Doug Berman posts links to two California News stories reporting on sentences being requested by prosecutors.  In his first post, Berman links to Amina Khan's LA Times piece detailing a prosecutor's decision to seek a 27-month sentence for Michael David Barrett, who pled guilty to stalking ESPN reporter Erin Andrews, and is accused of filming her through the peephole of her hotel room and posting pictures on the Internet.  Berman comments that 27-months "seems pretty low," given the harm caused by the defendant's actions.  In his second post, Berman links to a Sacramento Bee story by Hudson Sangree. This story reports on a prosecutor's decision to request a life sentence for a man who earned his third strike by stealing a bag of shredded cheese from a grocery store.  The defendant, Robert Preston Ferguson, has a lengthy criminal history that dates back 35 years, including six first-degree burglary convictions.  He had served 22 years in prison before being convicted for his final offense. 

Examining Remarks Made by Justice Thomas:  Today, on FindLaw.com, Mike Dorf comments on recent remarks made by Justice Thomas at the University of Florida Law School.  Dorf writes that after viewing the Justice's speech, he believes that "Clarence Thomas is an original thinker whose ideas deserve to be taken seriously."  Dorf then goes on to examine Justice Thomas' remark that critics should refrain from "undermining" the Court, which, as an "institution should be respected and preserved." (hat tip Orin Kerr at Volokh Conspiracy)

Will the Ninth Circuit's Strip Search Case Goes to SCOTUS?  That's what Eugene Volokh starts to wonder over at Volokh Conspiracy as he discusses yesterday's ruling in Bull v. City & County of San Francisco (en banc).  The case, (discussed by Kent here, and Volokh here) upheld San Francisco's policy of strip-searching everyone booked into the jail.  Volokh finds this noteworthy, because as Kent noted yesterday, if the case goes to SCOTUS, Justice Breyer can be expected to recuse.  Apparently, Justice Breyer has made it a practice to recuse in cases that were handled by his brother Charles, and Judge Charles Breyer was the district court judge that initially decided against San Francisco's policy.  Volokh writes that to prevail, plaintiffs need five votes and with Justice Breyer recusing, that requires at least two votes from the Court's conservative wing.  He doesn't think this is very likely.   

This Case is Tricky, We Need to "CVSG":  At SCOTUSblog, Lisa McElroy explains why a Supreme Court case calling for a CVSG "may well be some of the most interesting cases of the Term."  She writes that these cases (the most recent of which can be found here) are cases that Call for the Views of the Solicitor General.  According to McElroy, the Court will CVSG a case when the government is not a party to the action, but the Court is interested in knowing the Solicitor General's view anyway.  These cases are most likely to arise when a lower court's interpretation of a federal law has been called into question and the Supreme Court must decide whether to step in.  One crime related case on the CVSG list?  Robertson v. U. S. ex rel. Watson (08-6261), which will address whether a D.C. law authorizing a victim of domestic abuse to enforce violation of a civil protection order, via criminal contempt, violates due process.

The Ninth Circuit en banc today upheld San Francisco's policy of strip-searching everyone booked into the jail, superseding a prior 2-1 decision of a 3-judge panel and reversing the decision of District Judge Charles Breyer.*

The decision was 6-1-4. Judge Ikuta wrote the opinion, joined by Judges Kozinski, Rymer, Gould, Clifton, and R. Smith. Judge Graber concurred in the judgment on qualified immunity grounds while agreeing with the dissent on the substantive Fourth Amendment question. Judge Thomas wrote the dissent, joined by Judges Wardlaw, Berzon, and Rawlinson.

An excerpt of the majority opinion follows the jump.

Federal officials are considering charging Scott Roeder with violating the federal Freedom of Access to Clinic Entrances Act (FACE), reports Judy Thomas for the Kansas City Star. This is despite the fact that Roeder has already been convicted of murder in state court for killing abortion doctor George Tiller.

Constitutionally, the "dual sovereignty" doctrine permits the federal government to prosecute after a conviction or acquittal in state court for the same crime. As a matter of policy, though, it is rarely done. It is justified, in my opinion, when an acquittal or a grossly inadequate sentence is the result of some major malfunction of the state court system. That occurred in cases of violence against civil rights workers in the early 60s, for example. I see no reason for it here. Roeder was convicted of the highest degree of offense available under Kansas law, first-degree murder. (The crime is not capital under either Kansas or federal law.)  A 51-year-old man who is ineligible for parole for 50 years is not going to see the outside of the prison wall again.

The other justification given in the article is to investigate whether others were involved in a conspiracy. I think other tools are more appropriate for that.

Generally speaking, crimes by one person against another should be matters of state criminal law. Federal law enforcement should be used for inherently federal issues such as national security, smuggling, or counterfeiting, large organized crimes rings that cross state lines and are beyond the capacity of any one state to prosecute, and malfunctions of the state system itself.

Examining Guantanamo Bay Policy:  In a post titled The Gitmo Rebellion, Volokh Conspiracy blogger, Kenneth Anderson, expresses his thoughts on Nick Baumann's Mother Jones article by the same name.  Baumann's article details recent efforts by Senators Jim Webb (D-Va.) and Blanche Lincoln (D-Ark.) to block funding to the Obama Administration's efforts to try 9/11 co-conspirators in civilian courts. Anderson offers these thoughts in response:  (1) the big question is whether the trial of KSM and potentially others will be tried as civilians, in the Federal courts, or by military commission; (2) the Senators' efforts may mean "that Congress might at last be getting involved in something that it has wanted to avoid getting involved with for years and years[;]" and finally, could changes proposed by Congress cause the administration's attorneys working on detainee policy to leave when things don't change? 

Justice Kennedy Addresses Pepperdine School of Law:  At Southern California Appellate News, Ben Shatz reports in on Justice Kennedy's 75 minute address to attendees of the William French Smith Memorial Lecture.  Shatz reports that during the question and answer session, Justice Kennedy expressed his views on international law, sentencing, effective  advocacy, and how he approaches the Constitution.  With regard to sentencing, Shatz quotes the Justice as saying "I'm against mandatory sentences. They take away judicial discretion to serve the four goals of sentencing. American sentences are 8 times longer than their equivalents in Europe. California's 3-strikes law emanated from the electorate, and the sponsor of the initiative was the correctional officers association -- 'and that is sick.'"

Justice Thomas' Law School Speaking Tour:  At Blog of Legal Times, Tony Mauro reports on speeches made by the Justice at Stetson University College of Law in Gulfport, Florida and the University of Florida Levin College of Law in Gainesville.  Mauro reports that both speeches demonstrate "yet again that [Justice Thomas] is incapable of giving a dull speech."

Two New Supreme Court Judges?  Yesterday, Doug Berman posted on Sentencing Law and Policy that the Supreme Court may be ready for two new Supreme Court Justices.  Berman links to an ABC News article by Ariane deVogue suggesting that both Justices Stevens and Ginsburg could leave the Court this year.  Vogue gives the usual explanations for why each Justice may retire, and then suggests possible candidates. The list contains the usual suspects - Solicitor General Elena Kagan, Seventh Circuit Judge Diane Wood, Homeland Security Secretary Janet Napolitano - and then mentions some less obvious candidates - Cass Sunstein, Justice Leah Ward Sears, and Judge Merrick Garland.  Berman does not appear to believe that Justice Ginsburg will leave this year.  Ed Whalen at NRO's Bench Memos agrees.  Jonathan Adler comments on Volokh Conspiracy that the specter of two Supreme Court vacancies "could help explain the Administration's tardiness in making other judicial nominations." 

How Oyezed Opened Up the Court:  At SCOTUSblog, Matt Sundquist posts a Q&A from his interview with Jerry Goldman, the creator of the Oyez Project and a Political Science Professor at Northwestern University.  In the post, Goldman explains why he became interested in digitizing oral arguments from the U. S. Supreme Court, and how he went about creating a publicly-accessible archive of Supreme Court oral arguments dating back to 1955.  

Senator Specter Files in Supreme Court Torture Case:  On Blog of Legal Times, Tony Mauro reports that Senator Arlen Specter (D-Pa.) has filed an amicus curiae brief in the case Samantar v. Yousuf.  Yousuf is a human rights case addressing whether torture victims can seek damages in U.S. courts for torture conducted in a foreign state by a foreign official.  Mauro writes that Senator Specter's brief argues that when Congress passed the Torture Victim Protection Act of 1991 it intended "to provide redress for egregious acts that infringe human rights and are an affront to human dignity."

Background on Noriega v. Pastrana:  At Volokh Conspiracy, Kenneth Anderson gives an insiders perspective on the Court's denial of certiorari in Noriega v. Pastrana.  Anderson writes that he "was involved in the Noriega saga on the front end," during his time with Human Rights Watch.  He even drafted an amicus brief for Human Rights Watch submitted in the original dispute over POW status and convicted felon sentencing.  Anderson's experience with the case allows him to elaborate on why Justice Thomas may have been correct to argue "that the questions presented by the United States' only POW would indeed have bearing on the status of the Geneva Conventions in US courts in its detainee litigation."  To support his conclusion, Anderson turns to the 1992 district court opinion declaring Noriega to be both a convicted felon and a POW.  He writes that Judge Hoeveler's decision reflects "contemporary" concerns over Article 5 status hearing tribunals and when a court or an executive should decide a prisoner's status.

Recent Supreme Court Action "In Plain English":  Today, Lisa McElroy posts another installment of her "Plain English" series on SCOTUSblog. Today's post focuses on the Court's opinions in Briscoe v. Virginia and Hemi Group, LLC v. City of New York.  McElroy writes that the "G...VR" of Briscoe on Monday was "unexpected...to some of us, the timing of it at least." She then comments on two aspects of the Supreme Court's decision in Hemi.  McElroy believes that Chief Justice Roberts' opinion in Hemi is unique because it is a plurality that did not explain what parts of the opinion commanded a majority and which parts were only joined by a plurality.  She also finds it noteworthy that Justice Sotomayor did not participate in the decision.  

Ohio District Court Advises Judges to Review Images Before Sentencing:  On Sentencing Law and Policy, Doug Berman posts excerpts of a "[t]horough and thoughtful district court defense of child porn guidelines." 

John Doe DNA Warrants OK'd by State Supreme Court: Los Angeles Times writer Maura Dolan reports on a California Supreme Court ruling allowing for prosecutors to file arrest warrants based on DNA left at the scene of the crime.  The warrant would allow prosecutors to get around legal deadlines.  The 5-2 ruling, written by Justice Ming W. Chin, upheld the conviction of Paul Eugene Robertson for sexual offenses even though prosecutors obtained a DNA "match" after Robertson's DNA had been illegally placed in the state's DNA database.  Sacramento prosecutors filed an arrest warrant for "John Doe, unknown male," on Aug. 21, 2000, four days before the legal deadline, or statute of limitations, for filing charges would run.  Prosecutors attached a DNA profile to the warrant from evidence left at the crime.  "We conclude that, when there is no more particular, accurate or reliable means of identification available to law enforcement, an arrest warrant or a complaint that describes the person to be arrested by a fictitious name and his unique DNA profile...satisfies the particularity requirements" of law, Chin wrote.  Kent's post can be found here.

"Supreme Court Refuses Noriega Case and Disposes of Another": New York Times writer Adam Liptak reports on Monday's Supreme Court decision to block the extradition to France of Manuel Antonio Noriega, the deposed Panamanian dictator.  The Court provided no reasoning for its decision not to hear Noriega's appeal, while Justice Thomas, joined by Justice Scalia, dissented from the decision not to hear the case.  They stated that the Court had missed an important opportunity to clarify how federal courts should treat claims from prisoners of war.  Justice Thomas said the case would have provided "much needed guidance" to the other two branches "without the unnecessary delay and other complications that could burden a decision on these questions in Guantanamo or other detainee litigation arising out of the conflct with Al Qaeda."

The Court's decision to send the crime lab case, Briscoe v. Virginia, back to the lower courts meant that it would not cut back on or clarify a major ruling from last June requiring lab technicians, and other forensic specialists, to be available to testify at trials.  That ruling barred prosecutors from presenting crime lab reports without testimony from the analysts who prepared them.  State prosecutors told the court that the decision from June, Melendez-Diaz v. Massachusetts, was imposing a major and unwarranted burden and "is already proving unworkable."  Lauren's post can be found here regarding the issue.

As SCOTUSblog's Lyle Denniston reports, with its denial of certiorari in Noriega v.Pastrana (09-35) the U.S. Supreme Court "refused... to clarify whether individuals in custody by the U.S. government may rely on protections of the Geneva Conventions for prisoners of war..." on the same day that the Court summarily decided Briscoe v. Virginia.  The importance of the criminal law questions posed in both petitions raises questions about why the U.S. Supreme Court schedules some cases for oral argument and briefing, and declines to address others.  The Court may have declined to hear Noriega's case because, as Denniston reports, denial of cert. could clear the way for Noriega's deportation to France for trial on illegal drug charges, but denial leaves unanswered whether Congress had taken away the right of anyone to pursue a habeas or other civil claim under the Geneva Convention.

The Court's refusal to address important questions raised by Noriega's petition - like the extent to which provisions of the Military Commissions Act of 2006 affect the power to grant a writ of habeas corpus under 28 U.S.C. §2241 - raise a question as to what would have made the case cert-worthy.