Results matching “thomas”

The U.S. Supreme Court released one opinion today: Nken v. Holder, an immigration case. The case deals with stays of deportation pending review, an issue somewhat analogous to stays of execution in capital cases. The Immigration Reform and Immigrant Responsibility Act of 1996 has a limitation on injunctions of deportation, but that is not the same thing as a stay of a deportation order, according to CJ Roberts' opinion. Justices Alito and Thomas dissent. Once again, if Congress wants to clip a traditional judicial power, it needs to be very precise in its wording.

Yesterday I asked whether the denial of certiorari in Brendlin, the sequel, "presage[d] that there will be no major change in the law in Arizona v. Gant?" Never mind.

In New York v. Belton, 453 U.S. 454 (1981), presented the question, "When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?" Answer: yes.

Today in Gant, by a 5-4 vote, the Court rejected a "broad" (i.e., straightforward) reading of Belton. The exception to the warrant requirement described in Belton applies only when the arrestee might be able to reach inside the car to obtain a weapon or destroy evidence or "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."

What about stare decisis (the doctrine of adherence to precedent)?

Our dissenting colleagues argue that the doctrine of stare decisis requires adherence to a  broad reading of Belton even though the justifications for searching a vehicle incident to arrest are in most cases absent. The doctrine of stare decisis is of course "essential to the respect accorded to the judgments of the Court and to the stability of the law," but it does not compel us to follow a past decision when its rationale no longer withstands "careful analysis." Lawrence v. Texas, 539 U. S. 558, 577 (2003).

I have no quarrel with that as long as it applies in both directions, not as a ratchet that regards pro-defendant precedents as sacrosanct and pro-prosecution precedents as subject to constant reexamination. Please remember your words, Justice Stevens, the next time the Court is presented with a claim under one of its many pro-defense precedents that is both unjustified as an original matter and a failure in practice. For example, there are the multiple extensions of the rule of Edwards v. Arizona, 451 U.S. 477 (1981). One is at issue in Montejo v. Louisiana this term, previously noted here, and another is at issue in Maryland v. Shatzer, No. 08-680 next term. Then there is the brooding omnipresence of capital punishment law, the disastrous Lockett v. Ohio, 438 U.S. 586 (1978).

The lineup in today's decision, BTW, included Justices Scalia and Thomas voting for the defendant and Justice Breyer voting for the prosecution.

For the second time in two weeks, the U.S. Supreme Court has stayed the mandate of the Florida Supreme Court in a criminal case on the application of the state. Last week's order in Florida v. Rigterink is here. Today's order in Florida v. Powell is here. The Powell opinion, followed in Rigterink, deals with the adequacy of Miranda warnings. According to the Rigterink dissent, it creates a conflict with People v. Wash, 6 Cal.4th 215, 861 P.2d 1107 (1993) and other cases.

Update: Lyle Denniston has this post on the cases at SCOTUSblog. However, his statement that Justice Thomas stayed the Powell case individually is incorrect. The order reads, "The application for stay presented to Justice Thomas and by him referred to the Court is granted...."

The Supreme Court decided Harbison v. Bell this morning. 5-2-2. No surprises.

Is there any good reason why the taxpayers of the country as a whole should pay for a lawyer to make a clemency plea to a state governor on behalf of a murderer set to be executed by a state, after that murderer has already made and lost his case to the federal courts? Putting aside the very rare cases with genuine questions of actual innocence and considering the typical case, I can't think of a single one.

Should a statute that appears to provide such federally funded counsel be enforced as written, despite the lack of a decent policy reason? Yes. The very first substantive section* of the Constitution provides, "All legislative Powers herein granted are vested in a Congress...." The Constitution does not go on to say, "except when they are acting like a bunch of Bozos."

An Attorney is Not Ineffective Because He Has "Nothing to Lose":  At Blog of the Legal Times, Tony Mauro has a post reporting on today's Supreme Court activity.  As noted in Kent's post, the Court decided Knowles v. Mirzayance, rejecting the Ninth Circuit's holding that, in Mirzayance's case, competent counsel would have pursued the insanity defense because counsel had nothing to lose. Justice Thomas' majority opinion stated: "This Court has never established anything akin to the Court of Appeals' 'nothing to lose' standard for evaluating Strickland claims."  Mauro also reports on today's oral arguments in Citizens United v. FEC, a case asking whether the 90-minute anti-Hillary Clinton movie released during the 2008 presidential campaign should be regulated under the McCain-Feingold campaign finance law.

Al-Marri Pleads Not Guilty:  New York Times reporter John Schwartz writes that accused Al Qaeda sleeper agent Ali Saleh Kahlah al-Marri pleaded "not guilty" on Monday to charges that he provided aid to terrorists.  Al-Marri, one of the first enemy combatants to be tried in a civilian legal system, has been in custody for almost six years.  While he was initially arrested financial fraud and other charges, the government believes he is a sleeper agent pledged to come to the United States as part of a broader attack plan to follow Sept. 11.  The Supreme Court agreed to hear his case in December 2008, but in February President Obama ordered Mr. Marri's transfer from the military back to the Justice Department. He is being tried in Peoria, Illinois where he was indicted on two counts related to providing material support and resources to a terrorist organization.  (Hattip to Howard Bashman at How Appealing for the link.)

"Does the criminal justice system have anything to do with public health?" wonders Joel Jacobson at Judging Crimes.  In a Monday post, Jacobson discusses a possible relationship between CQ Press's release of Crime State Rankings 2009.  While CQ Press's rankings remain controversial, Jacobson sees similarities between the most dangerous states and the unhealthiest states. He also sees some similarities in the number of heart disease and stroke death rates in an area. The relationship between the three is interesting - especially considering Jacobson's promise to further discuss studies describing what violence does to people .

Update: Follow up post on Knowles v. Mirzayance is here.

The U.S. Supreme Court unanimously reversed the Ninth Circuit yet again in another habeas case. As we have noted before, it is not the much-debated "reversal rate" that demonstrates how far out of the mainstream the Ninth is. Rather, it is the number of cases where that court's judgment does not draw even a single affirming vote from the nine jurists of diverse viewpoints on the high court.

In this noncapital murder case, Alexandre Mirzayance did not deny that he stabbed his 19-year-old cousin nine times and shot her four times. The only defense was mental. In the guilt phase, the prosecution had the burden of proving beyond a reasonable doubt that the killing was "willful, deliberate, and premeditated." (Cal. Penal Code § 189.) Mirzayance's psychiatric testimony failed to convince the jury there was even a reasonable doubt of that. So what are the chances that largely the same evidence is going to convince the same jury by a preponderance of the evidence that he "was incapable of knowing or understanding the nature and quality of his ... act and of distinguishing right from wrong at the time of commission of the offense" (Penal Code § 25(b))? Vanishingly small.

Does counsel have an obligation to go for that infinitesimal chance? The Ninth Circuit said yes. The Supreme Court unanimously said no. 

Obama Administration Has New Drug Policy:  Ashby Jones posts on Wall Street Journal Blog that the Obama administration does not plan to prosecute marijuana dispensaries in California unless the dispensary violates a federal law.  Jones reports that in a "sit-down" with reporters, Attorney General Eric Holder announced that the Justice Department will be targeting "outlets operating in violation of both federal and state law, such as those being used as fronts for drug dealers."  The Obama administration's new policy is different from the policy implemented by the Bush administration.  The Bush administration approved raids of medical marijuana distributors that violated federal statutes even if the dispensaries appeared to be complying with state laws.  Josh Meyer and Scott Glover have an article on the announcement in today's LA Times, and David Johnston and Neil A. Lewis have a piece in the New York Times. 

ABA President Comments on Its Reintroduction to Judicial Nominations: Tony Mauro posts his interview with ABA President, H. Thomas Wells Jr., on Blog of the Legal Times today.  The post reports on the ABA's return to the judicial nomination process, and gives Wells' account of how the Obama administration brought the ABA "back into the fold."  Wells also addressed recent media reports that the ABA's ratings of nominees skew toward liberals and give conservative nominees generally lower rankings.  Wells, who has not seen the research, does not believe the ABA is biased.  He claims the nominations committee is insulated from ABA policies and confines its assessment of nominees to issues of integrity, competence, and temperament -- not ideology or politics.

Supreme Court Petition to Watch:  On SCOTUSblog, Kristina Moore posted "Petitions to Watch" for next week's private Supreme Court conference. On the list of cases up for consideration is Virginia v. Jaynes.  Virginia v. Jaynes asks whether a court, when presented with a claim that a statute is overbroad, is required to compare the statute's constitutional applications with the statute's actual unconstitutional application.  CJLF's brief in support of certiorari can be found here. 

Gov. O'Malley is urging delegates to "abandon their effort to repeal the death penalty and instead adopt an alternative that limits capital cases" writes Julie Bykowicz, of the Baltimore Sun. Colleagues of the governor have voiced their disappointment for not seeking a full repeal. But so far, the proposed plan is to "allow capital punishment only in murder cases where DNA evidence, a video recording of the crime or a voluntary, videotaped confession by the killer." Baltimore County State's Attorney, Scott D. Shellenberger points out, "if it [does] become [the] law, Maryland would have one of the narrowest capital punishment statutes in the country [and] it would severely limit prosecutors' ability to seek capital punishment."

Will Canadian on death row be granted clemency?: A story by CBS News writes that "a Canadian man on death row in a Montana State Prison says he believes he may get clemency now that lawmakers in the state legislature are voting next month on whether to end the death penalty." Ronald Allen Smith is on death row for murdering two young aboriginal men while hitchhiking back in 1982. Smith claims he is remorseful, "I realize-just through the interactions with my family-I realize what I've done to the families of the two victims." So what? Smith may be feeling bad, but that will not replace both families loss. "I wouldn't have to think about it every day. Everyday, I get up, I sit and drink a cup of coffee, and I look at my son's picture and...think about it...It's just like it happened yesterday. There's no change'" said Thomas Running Rabbit Sr.

Judge Posner Gives Two Opinions of Prosecutors' Behaviors:  At Sentencing Law and Policy, Doug Berman posts parts of two Seventh Circuit decisions on two very different issues.  Berman finds them noteworthy though because both opinions, written by Judge Posner, comment on the behavior of federal prosecutors.  The first case, U.S. v. Farinella, criticizes the prosecutor's improper statements during her closing arguments, as well as her "additional improprieties."  Judge Posner comments that while the government's attorney argued on appeal that an appropriate sanction might be a "talking-to" from her superior, the panel was "not impressed by the suggestion."  In the second case, U.S. v. Richardson, the Seventh Circuit refused to upset the federal prosecutor's decision not to move for a reduced a sentence unless the defendant dropped his appeal.  In Richardson, the defendant was sentenced to 140 months in prison and then helped the government in an unrelated prosecution.  At the time, the government offered to ask the judge to reduce his sentence based on his cooperation, but only if Richardson withdrew his appeal.  While this tactic might seem improper, the Seventh Circuit found the prosecutor's action to be reasonable.

Justice Thomas Gives Rare Appearance:  Eric Barendsen of Blog of the Legal Times posts on Justice Thomas' talk at Howard University School of Law yesterday.  His appearance was a part of the James M. Nabrit Jr. Lecture Series which has previously featured some of his fellow Justices.  According to Barendsen, the talk focused primarily on Justice Thomas' 2007 book, My Grandfather's Son, but later Justice Thomas gave a summation of his experience during his "brutal" 1991 confirmation hearings.  Justice Thomas stated that the process "was very hard," and he thought about giving up "thousands of times," but he did not.  In other words, Justice Thomas wanted to impart the message that students should not give up.  As Justice Thomas recalled his grandfather saying: "Old man 'can't' is dead. I helped bury him." 

Monday there was a rather testy exchange among Justices Stevens, Thomas, and Breyer over the claim that long delays in execution are themselves cruel, though hardly unusual. The three opinions "relating to" denial of certiorari in Thompson v. McNeil, No. 08-7369, are available at this page.

Warren Richey has this article on the case for tomorrow's Christian Science Monitor.

"Clarence Thomas, Supreme Court liberal?" reads the headline on David Savage's piece in the L.A. Times Sunday. Of course, Justice Thomas is not a "liberal." He is, however, "a steady advocate of limited federal power and respect for states' authority." His all-weather federalism sometimes produces results that please liberals.  Savage recounts the recent drug suit preemption case, Wyeth v. Levine, and the marijuana case of four years ago, Gonzales v. Raich.

The Constitution makes federal power supreme but limits it to those areas designated in the Constitution itself. Everything else is for the people of each State to decide for themselves. Fair-weather federalists cite this principle or abandon it, depending on whether they like the outcome it points to. All-weather federalists remain faithful to the principle, wherever it points.

Are There More Hate Groups During a Recession?  Wonders an anonymous post over at Freakonomics Blog.  According to the post, the Southern Poverty Law Center has reported that number of hate groups has grown by over 50% since 2000.  Both the report and the media have blamed growth on the "deteriorating economy" and the election of President Obama.  Freakonomics writes that such blame may be misplaced.  The post discusses how "most economic research finds no correlation at all between hate crimes and the economy."  For example, a 1998 study of economic motivations for hate crimes examined statistics in New York between 1987 and 1995 and did not find a significant link between "economic performance and intolerant behavior directed against minorities."  Another study, by Swarthmore economists Philip Jefferson and Frederic Pryor, reached a similar conclusion.  The post also comments that the Southern Poverty Law Center's data does not show 2008 to have been a particularly strong growth year for hate groups, ruling out any conclusion that President Obama's campaign is to blame for the recent growth.  If this is the case, wonders Freakonomics, "what explains this expansion of hate?"  While a good question to ask, a better question for the anonymous blogger to be asking might be "where did the Southern Poverty Law Center get the data to support this 'expansion of hate'?"

Wyeth v. Levine: State Tort Law and Preemption:  Ashby Jones at Wall Street Journal Blog reports on today's Supreme Court decision in Wyeth v. Levine, a decision that addressed whether federal laws that regulate certain products preempt state tort law.  Jones reports that Levine is the last of three opinions to address this issue. The other two, Riegel v. Medtronic Inc. and Altria Group Inc. v. Good, were decided in 2008. Jones' post also includes a Q&A with Wall Street Journal Supreme Court Reporter Jess Bravin.  The Q&A provides summaries of the majority and dissenting opinions, as well as Justice Thomas' concurring opinion.

Forensic Linguistics at Trial:  Psychology and Crime News posted an interview with John Olsson of the Forensic Linguistics Institute last week about Olson's experience as a forensic linguist with the criminal justice system.  Forensic linguists are often asked to give expert opinions on the authorship of a text.  Olson comments that he has been asked to give opinions about the authorship of suicide notes, hate mail, products contamination cases and the authorship of mobile phone text. 

No Laptop Policy in Law School Class: At Volokh Conspiracy Eugene Volokh has posted the results of a student survey of his "No-Laptop-In-Class Experiment."  Looking at his numbers, the results seem to be generally positive.  Students reported better in-class concentration without their laptops.  

Supreme Court Clerks:  At Above the Law, David Lat has posted an update on the new Supreme Court clerks for the October Term 2009, and a few new hires joining in October Term 2010.  The post provides the names of each of the clerks, their law schools and graduation dates, as well as previous court experience.  The post also notes that Justice Souter and Justice Thomas have yet to announce their choices.  Lat speculates that Souter's silence could mean he is planning on stepping down. 

Sex Offender Registries Incomplete:  Corey Rayburn Young posted a report from the Office of the Inspector General at the U.S. Department of Justice on Sex Crimes yesterday.  The DOJ's report, published in December 2008, "found that the registries that make up the national sex offender registration system - the FBI's National Sex Offender Registry (NSOR) and the state public sex offender registries accessed through OJP's National Sex Offender Public Registry Website (NSOPR) - are inaccurate and incomplete." The unfortunate result is that neither the public, nor law enforcement, can rely on these registries to identify sex offenders. Some states have not "entered records on approximately 22 percent of their registered sex offenders into NSOR and have not identified sex offenders who have failed to maintain a current registration." But Michael Doyle's December 2008 article found that "California leads the nation in registered sex offenders, with about 114,000. This is more than twice the number of sex offenders registered in Texas or Florida, and 10 times the number registered in North Carolina."

December 2008 California Law Review Available Online:  The California Law Review, Vol. 96, Issue 6 (December 2008) was posted on Concurring Opinions yesterday.  One article "Mourning Miranda" by Charles D. Weisselberg, discusses how the Supreme Court has "gutted Miranda's safeguards" in the four decades since Miranda was decided.  Weisselberg is a Professor of Law at Berkeley's Boalt Hall.

When the Supreme Court announced Apprendi v. New Jersey, 530 U.S. 466 (2000) nine years ago, the result seemed sensible. The "sentence enhancement" in that case operated for all practical purpose like a higher degree of offense, and degrees were traditionally decided by the jury and had to be proved beyond a reasonable doubt. Yet in the years that followed, Apprendi spread to other areas. In Ring v. Arizona, 536 U.S. 584 (2002), the Court extended the rule to death penalty eligibility circumstances, an artificial construct with no common law equivalent that states enacted only because the Court itself forced them to. In Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), the Court threw a monkey wrench into sentencing guidelines systems enacted in the 1980s in a bipartisan consensus to reduce the sentencing disparity that arises in discretionary systems, where the luck of the draw on judges may count more than the legitimate factors of the defendant's crime and criminal record. In Cunningham v. California, 549 U.S. 270 (2007), the Court ruled that the state violated the Constitution by imposing a fact-finding requirement for the defendant's benefit, prompting the Legislature to repeal the requirement.

In Oregon v. Ice, the Supreme Court of Oregon carried the "no good deed goes unpunished" principle of Cunningham one step further. Today, the U.S. Supreme Court decided that was one step too far in a 5-4 decision that scrambles the usual ideological lines.

Governor Calls for Mexican Death Penalty:  Coahuila state Governor Humberto Moreira is asking the legislature to adopt a recommendation that Mexico's Congress restore the death penalty for kidnappers who murder their victims.  An Associated Press story reports that a 2/3 majority of the Congress would be required to undo the 2005 Constitutional amendment that abolished capital punishment.

Fired Public Defender Sues:  A former Santa Clara County Deputy Public Defender, fired five years ago for refusing to answer questions during a disciplinary hearing, will have his claim that his rights were violated heard by the California Supreme Court tomorrow.  A story in the San Jose Mercury News by Howard Mintz reports that Thomas Spielbauer "invoked his Fifth Amendment rights" when his bosses began to investigate allegations that he lied to a judge while representing a criminal defendant.  

DNA Links Accused Rapist to Anchorwoman's Murder:  An affidavit filed today indicates that police identified the man charged with with October 20 beating death of Little Rock news anchor Anne Pressly with a DNA match.  The Associated Press reports that while the police believe that Pressly was killed when she intrupted a robbery, her parents believe that she may have been sexually assaulted.  Murder suspect Curtis Lavelle Vance is also accused of raping a school teacher last April and of committing several burglaries in eastern Arkansas.  Early reports suggest that the victim died from a massive stroke caused by blunt force trauma.  Every bone in her face had been broken and her hand was broken in the attack.   
   

Prosecutors To Seek Death Penalty In Cleveland's East 87th Street Fire: According to an article by the News Net 5, prosecutors will seek the death penalty against 24-year-old Antun Lewis. Lewis was indicted in federal court last month. Lewis will not go on trial until the death penalty request is resolved. Federal prosecutors said Lewis broke into the East 87th Street home three years ago, doused it with gas and set it on fire, killing a woman and eight children inside.

Voters Oppose Prop. 5, Prop. 6, Support Prop. 9: Demian Bulwa, Chronicle staff writer reports that California voters opposed Prop 5 and Prop 6, while supporting Prop 9. Prop 5 would expand programs to divert drug addicts and nonviolent offenders from prison to rehabilitation. Opponents said the program was ripe for abuse. Prop 6 would require spending at least $965 million a year on programs for police, prosecutors, jails and juvenile lockups - a $365 million increase from current spending, according to the state's legislative analyst. Prop 9, however, backed by crime victims, held a significant lead. It would allow victims to speak at bail hearings and limit a defendant's ability to gain evidence from a victim before trial. The measure would also limit the release of inmates due to crowding. That could cost hundreds of millions of dollars a year, the legislative analyst said. Kent's post on the Propositions links you to the Cal SecState results.

Death Penalty For Ex-Con Who Killed Witness: An AP story reports that LA jurors have recommended the death penalty for an ex-con who murdered his former girlfriend after she accused him of raping her. The Superior Court jury returned its verdict Tuesday for 44-year-old Ruben Becerrada. Becerrada was convicted Sept. 29 of first-degree murder and kidnapping for the March 4, 2000, killing of Maria Arevalo. A prosecutor says Becerrada stabbed and strangled Arevalo because she was the only witness in a rape case against him.

Murder Suspect's Brother Tried Jail Break-In: An AP story reports that police say the brother of a murder suspect tried to break into jail when he refused to listen to jail guards who told him there were no visiting hours for prisoners on Monday. Thomas Walsh pleaded not guilty to trespassing and other charges Tuesday and was ordered held in lieu of $6,000 bail. Last week, Walsh's brother, William, was arrested on murder charges. Police said William killed his wife during a fight and then concocted an elaborate ruse to make it appear as though she were the victim of random roadside violence. William is due back in court today.

Crime in Large Cities: A review of crime rates and economic conditions in large U.S. cities has determined, at least over the short term, unemployment and wages do not have an effect on the rate of violent crime. An AP story by Cheryl Wittenauer discusses the study, conducted for the Federal Reserve Bank by economist Thomas Garrett. The study did suggest that non-violent crimes do appear to follow economic conditions.

Crimes by Girls: A research bulletin from the U.S. Department of Justice reports that violent crimes committed by girls are not increasing. The Department's Office of Justice Programs created a Girls Study Group after a sharp increase in arrests of female juveniles in the 1990s to address the problem. The first report by the group is here.

Conviction Upheld for Rapist/Murderer:
The Iowa Supreme Court has upheld the conviction and LWOP sentence for Roger Bentley according to this AP story by Melanie Welte. Bentley was convicted in 2006 of kidnapping ten-year-old Jetseta Gage from her bedroom then taking her to a mobile home where she was raped before being beaten and finally suffocated to death. Although Bentley claimed that there was insufficient evidence to identify him as the kidnapper, the Court's decision describes the overwhelming evidence of guilt in this case. Iowa does not have a death penalty.

Texas Murderer Executed: Gregory Wright, a homeless vagrant who stabbed to death a woman who helped him, was executed by lethal injection in Huntsville, Texas yesterday. An Associated Press story by Michael Graczyk reports that Wright proclaimed his innocence and blamed the murder on another homeless man, before being pronounced dead in a process that took nine minutes.

Death-Penalty Issue Surfaces In Chief Justice Race: According to a story by AP writer Katie Oyan, the politically charged issue of the death penalty has surfaced in the nonpartisan race for chief justice of the Montana Supreme Court, with one candidate acknowledging he would have to remove himself from certain cases due to his opposition to capital punishment. Helena attorney Ron Waterman has no qualms about sharing his anti-death penalty views. Montana Attorney General Mike McGrath, however, said it would be inappropriate for a potential justice to take sides on issues that could come before the court. Waterman has said that he would disqualify himself from hearing death penalty cases if he is elected.

S.F. Gang Injunction Zone Controversial: A story by Chronicle staff writer Demian Bulwa reports that 29 of the 32 men named in City Attorney Dennis Herrera's "safety zone" civil injunction are complaining. The 29 men claim they can't be seen with other suspected Norteño gang members in the zone, even if they are cousins or brothers. Nor can they wear red, the color claimed by Norteños, or hang out on the street after 10 p.m. The civil action against the Norteños was by far the broadest, extending over 60 square blocks in the Mission District. Herrera faced criticism from defense attorneys, including Public Defender Jeff Adachi, and gang outreach groups. They said the city attorney took advantage of some features of civil court - such as the lack of a right to an attorney at no cost - and gave police too much power. Chronicle writer Bulwa co-wrote this story last June about the then-proposed expansion of the 60 block injunction.

Murder Suspect Will Defend Himself At Death Penalty Trial: Stefano Esposito from the Chicago Sun-Times reports that the man accused of killing pharmaceutical rep Nailah Franklin last year will be allowed to represent himself at trial in a case in which prosecutors plan to seek the death penalty. Cook County Judge Thomas V. Gainer Jr. granted Reginald Potts' request Friday, but only after repeatedly warning Potts he was making a big mistake. Nailah Franklin, 28, disappeared in September 2007. Her partly decomposed body was found 10 days later in a wooded area of Calumet City. The State is seeking the death penalty because the murder was "cold and calculated" and occurred while Potts was committing other felonies against Franklin.

Uighurs Denied en banc review: SCOTUSblog has been keeping us updated on the legal battle surrounding District Judge Ricardo M. Urbina’s Oct. 7 ruling that the 17 Chinese Muslim Uighurs be brought to the U.S. and temporarily released into the country. Today, Lyle Denniston posts that the en banc D.C. Circuit Court refused to review a three-judge panel’s order postponing their transfer. The order denied rehearing en banc without an opinion. Judges Janice Rogers Brown and Judith Rogers would have granted rehearing. As it currently stands, District Judge Urbina's order will be reviewed in November, with oral argument set for November 24th. The Justice Department also filed its merits brief in the case. Denniston reports the Government has argued "its agreement not to send the 17 Uighurs back to China, where they fear torture or death, did not bar it 'from exercising its sovereign power' to deny them entry into the U.S. mainland."

Justice Thomas Says It's The Brief, and Not Oral Argument That Wins A Case: At Wall Street Journal Blog, Dan Slater posted: "Justice Thomas to Judges: Shut Up and Listen." Yesterday, Justice Thomas participated in a panel discussion on professionalism at the 11th Circuit Appellate Practice Institute. There he stated, “I believe quite strongly we, as judges, need to take the approach we’re here to solve difficult problems, not debate with lawyers." Justice Thomas also told his audience that it is the brief, and not the oral argument, that will win a case. Another piece of worthy information -- keep it short. Clint Williams of the Fulton County Daily Report had this story.

Sixth Circuit Rules On Sufficient Probable Cause In Child Pornography Case: At Volokh Conspiracy Orin Kerr has a post on United States v. Hodson, a Sixth Circuit decision from September 2008. Kerr's post provides a summary of the case - its facts and its holding - and then gives some commentary on whether the Sixth Circuit correctly held police had not established probable cause to search the defendant's home for child pornography. Apparently, an undercover agent had been using internet messaging to communicate with a man who "favored young boys, liked looking at his nine- and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew." When the officers obtained a search warrant, officers asked to search his home for child pornography. Child pornography was uncovered and the defendant was convicted. The Sixth Circuit reversed, holding that even though the detective had established probable cause for one crime (child molestation), he had not established probable cause for possession of child pornography. Kerr's commentary provides his thoughts on why he isn't sure the holding is correct.

Analyzing Justice Thomas' Thoughts On Originalism: Yesterday we had a post on Justice Clarence Thomas' lecture to the Manhattan Institute. Jack Balkin, at Balkinzation, posted the same excerpt from the Wall Street Journal, and offered his thoughts on whether Justice Thomas was embracing "originalism based on original intentions rather than one based on original meaning." Balkin would find a move surprising, since many have assumed Justice Thomas to be "a devotee of original meaning originalism." Balkin's post discusses the difference between original meaning originalist and an original intentions originalist (say that five times fast) as well as the significance of the distinction.

Attorneys For Uighurs Seek en banc Review: For those following the legal battles of the Uighurs, 17 Chinese Muslim Guantanamo Bay detainees, Lyle Denniston provides an update on the latest filing. Today, attorneys for the Uighurs requested en banc review so the D.C. Circuit Court could lift yesterday's ban on the detainee's release. The petition also suggested the Court review on the merits without waiting for further action before the panel. At Blog of the Legal Times, Tony Mauro has this post summarizing yesterday's order. Two judges, over the dissent of Judge Rogers, granted the Government’s motion to stay the release pending appeal and set oral argument for November 24. Attorneys for the Uighurs argued in today's petition that although the three-judge panel ordered expedited review, en banc review was likely and should begin without further delay.

Societal Cost of Leniency for Drunk Driving: At Sentencing Law and Policy, Doug Berman posts on an article in the Milwaukee Journal Sentinel that "reinforces [Berman's] concerns about the harmful consequences and costs of undue sentencing leniency being shown to repeat drunk drivers." Both his post and the article lay out the details of a man who had been convicted of drunk driving "at least" nine times before he received a tougher sentence for his tenth offense. The Sentinel estimated the man's drinking and driving has cost nearly $365,000, with nearly $240,000 coming from tax dollars of insurance payouts. The article, and Berman's post, provide a graphic documenting how the Sentinel calculated the economic cost. In addition, Berman's post provides links to his thoughts on how we should punish drunk driving.