Results matching “thomas”

Court Won't Consider Neb. "Rape" Testimony Issue: According to an article by AP press writer Jean Ortiz, the U.S. Supreme Court has refused to hear an appeal involving a case in which a Nebraska judge banned anyone from saying "rape" in a sexual assault trial. Lawyers for Tory Bowen argued that Lancaster County District Judge Jeffre Cheuvront violated their client's constitutional rights by barring her from using such words as "rape kit" and "victim" during her testimony in the trial. The judge said he banned the language because he was concerned about the accused's right to a fair trial.

Supreme Court To Hear Case On Immigrants' Use Of Fake IDs: LA Times writer David G. Savage reports that the Supreme Court will decide whether the government can use new identity theft laws to send illegal immigrants using fake identification cards to prison, or to force them to leave the country. Kent provided his own thoughts on the case yesterday. Judges are divided over whether immigrants can be punished for "knowingly" stealing the identity of another person whenever they are caught using a Social Security number that is not their own. Often, the immigrants say they thought they had bought phony ID cards, not numbers assigned to real people.

Is High Court Gearing Up to Review Discrimination in Capital Punishment? Dan Slater from the Wall Street Journal Law Blog reports that yesterday, Justices Stevens and Thomas squared off over the Court’s denial of cert in Walker v. Georgia, a capital case. The issue is to what extent must a court, in a capital case, carry out a proportionality review to ensure that arbitrariness and discrimination don’t figure in a sentence of death. The blog states that the justices might be preparing to review whether the death penalty is being applied in a discriminatory way, an issue the court has not taken up for two decades.

200 Sex Assault Cases Miss Prosecution Deadline Due to Untested Rape Kits: LA Times writer Richard Winton reports that according to a city audit released Monday, as many as 200 potential sexual assault cases have gone without prosecution because LA police officials failed to meet legal deadlines to test DNA evidence. The evidence might have identified a suspect. According to the audit by City Controller Laura Chick's office, the LAPD has a backlog of 7,000 sexual assault test kits that have not been examined. Of those cases, 217 are beyond the 10-year statute in which to prosecute the crimes.

The WSJ has this excerpt of Justice Clarence Thomas's lecture to the Manhattan Institute Friday. He notes the fundamental question of judicial review is "what restrains us from imposing our personal views and policy preferences on our fellow citizens under the guise of Constitutional interpretation?"

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Ohio Election Officials Seek To Block Voter Challenging Rule: At SCOTUSblog, Lyle Denniston posts on an application for a stay filed last night in the Supreme Court, asking the Supreme Court to put a hold on a federal judge's order requiring election officials to verify voter registration rolls across the state. Denniston also provides links to the application, Brunner v. Ohio Republican Party, et al., 08A332, and its attached exhibit. The federal court order imposed a Friday deadline for Ohio’s Secretary of State to reprogram a statewide database. Republicans had complained that the state had failed to verify voter data as required by the federal Help America Vote Act. Tuesday, the Sixth Circuit refused to block the order. Rick Hansen at Election Law Blog posts on some thoughts of the en banc opinion. Ohio's application for a stay argues the order requires the Secretary of State's staff, and 88 county election boards to divert their attention from preparing for the Nov. 4 election, to a large undertaking to refashion the statewide voter database. According to Denniston, "Justice Stevens may act without asking state GOP officials to respond, or wait until there is a response. He also has the option of sharing a decision with his Court colleagues, or acting alone."

Last Night's Debate And A Poll On The Role of Supreme Court Judges: Orin Kerr at Volokh Conspiracy blogs that a statement made last night by Barack Obama about the type of Justice he would appoint brought to mind this interesting poll from the Rasmussen Reports. One of the questions in the survey: "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" drew responses reflecting a sharp difference between McCain and Obama supporters. "While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree."

Impeachment Counsel Appointed For Inquiry Into U.S. District Court Judge Thomas Porteous: David Ingram at Blog of the Legal Times has this post about a formidable new foe for Judge Porteous. Ingram reports the House Judiciary Committee has appointed Alan Baron, a partner in the D.C. office of Holland & Knight, for his impeachment inquiry. Baron was the House’s special impeachment counsel when lawmakers voted to impeach then-federal judges Alcee Hastings and Walter Nixon in the late 1980s. Judge Porteous is currently suspended from serving in the eastern district of Louisiana. Accusations against him include soliciting and receiving cash from lawyers with cases pending before him and committing perjury in his personal bankruptcy case. For more on Federal Judges Under Investigation check out Brooks Holland's post at CrimProf Blog discussing U.S. District Judge Samuel Kent's indictment for alleged federal sex crimes. Corey Rayburn Young at SexCrimes also has this post on Judge Kent.

Oral Argument Summaries: At SCOTUSblog Kevin Russell posts his analysis of the oral arguments in Arizona v. Gant, 07-542 and Herring v. United States, 07-513 . The two cases address different questions involving the Fourth Amendment. Herring asks whether the exclusionary rule should be applied to bar evidence obtained through the search of a defendant whom the police believed had an outstanding warrant but who actually didn’t, while Gant addressed the meaning of the Fourth Amendment itself. Russell states that oral argument was "particularly interesting because the Government and the defendant were called upon to take different sides of the debate in the two cases: in Herring, the defendant argued the virtue of simplicity and clarity, while in Gant it was the Government that was insisting on the need for a bright-line rule." Orin Kerr at Volokh Conspiracy ponders whether Gant is the "sleeper crim pro case of the term?" His post is brief, as he was heading on vacation, but he does urge readers to read the oral argument transcript and notes the potential for future blogs on the case. In another post on yesterday's Gant oral argument, Washington Briefs blogger Lawrence Hurley discusses Justice Scalia's attempt to track the Fourth Amendment back to the founding era and Thomas Jefferson. Apparently, Justice Scalia asked "If you stopped Thomas Jefferson's carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you, could you then go and search his carriage?" According to Hurley, "Jefferson, who died in 1826, could not be reached for comment."

The Cost of Calculating Loss Under Sentencing Guidelines: Doug Berman at Sentencing Law and Policy has a post linking to a new article by Robert G. Morvillo and Robert J. Anello in the New York Law Journal. The article argues that "[l]oss calculation often artificially inflates the guidelines to unrealistic proportions." According to the authors, this is because loss calculation is an "amorphous concept" "that equates jail time with often-inflated assessments of loss caused by the crime." According to the article's authors, courts have recently begun to recognize the complexity of loss calculation and attempted to temper its consequences. The article discusses two recent decisions from the second circuit, United States v. Confredo and United States v. Rutkoske, to illustrate this point.

In 28 U.S.C. § 2254(d), the cornerstone reform of the Antiterrorism and Effective Death Penalty Act of 1996, Congress provided that a federal court cannot grant relief on a claim denied on the merits by a state court unless certain conditions are met, essentially unless the state court decision was outside the bounds of reasonable disagreement. This measure was a compromise between those who favored giving the state court decision as much respect as federal court decisions and those who favored the status quo ante of giving them no weight at all on questions of federal law.

But what exactly is a "claim"? That question is now before the Supreme Court in Bell v. Kelly, No. 07-1223, which just may be the "sleeper" case of this term. It hasn't received much attention yet, but the potential ramifications are large, especially for capital cases.

The Georgia Parole Board issued this press release Monday on the Troy Davis case. The full text is also quoted after the jump, in case they remove the page linked here.

It's good that they made an exception to their "no comment" policy, but they did not go far enough. In capital cases with claims of actual innocence, an explanation should be the rule, not the exception. Further, the explanation should go into detail as to why the board does not believe the inmate is actually innocent. The right way to do it was illustrated by Gov. Pete Wilson of California in the Thomas Thompson case. We appended this explanation to our brief in Calderon v. Thompson, 523 U.S. 538 (1998), and the Supreme Court noted it. See id., at 547-548, 552, 556.

The Georgia Board should do the same, as should the clemency authority in any case of this type. There aren't enough of them that this would be a significant burden, and it is very bad for public confidence in the system to have one side saturating the media with claims he is innocent while the people who properly decided that question are virtually mum on their reasons for rejecting it.

UPDATE. The CJLF brief in Calderon v. Thompson is available here.

October Oral Arguments: Lyle Denniston at SCOTUSblog reports the Supreme Court has released a new calendar for oral arguments in October. The new calendar can be found here. The revised sitting schedule has the Supreme Court hearing oral arguments in Oregon v. Ice on October 14th at 1 p.m. The old calendar scheduled Ice for the following day. The case involves whether a judge's decision to implement consecutive sentences for separate crimes violated the defendant's right to a jury trial. CJLF wrote a brief in support of Oregon.

Courts Cannot Hear Challenges to Conditions of Detainee Confinement or Challenges to Transfers: Lyle Denniston also has a post on today's decision from Senior U.S. District Judge Thomas F. Hogan. Judge Hogan has been responsible for overseeing some 200 Guantanamo Bay detainee cases. In today's decision he found that the Military Commissions Act of 2006 removed federal court authority to hear challenges to the“transfer, treatment, trial, or conditions of confinement” of any captive found by the government to be an “enemy combatant.” He reasoned that because Boumediene v. Bush did not nullify that provision of the statute, federal courts “have no jurisdiction” over a detainee’s challenge to a transfer, or the conditions of his confinement. According to Judge Hogan, Boumediene only gave detainees the right to challenge their detention through federal habeas petitions.

Data in Law Review Articles: Eugene Volokh at Volokh Conspiracy posted today on the Tulane Law Review controversy. We mentioned the controversy in our Blog Scan last Thursday. Volokh's post supports a law review practice that would include the raw data supporting an article's assertions in an Appendix. He states "That way, law reviews would be reminded of their responsibility to check the data, and readers will find it more consistently accessible." We agree. This type of practice would give researches easy access to data, and put pressure on law review editors to check the data. Both are incredibly important to policy makers and scholars who rely on the data in formatting opinions.

Tracking Terrorists: New guidelines for identifying terrorists within the United States, which would give the FBI tools currently used against organized crime, were proposed today according to this AP story by Larry Hargasak. If adopted, the guidelines would allow agents to conduct physical surveillance, recruit snitches and conduct pretext interviews to uncover information about possible terrorists. The proposals were immediately criticized by the ACLU and some Democratic lawmakers for allowing a suspect's ethnic background to be among the criteria for initiating an investigation. A Justice Department spokesman noted that ethnicity is often an essential marker in criminal investigations, pointing out that the investigation of members of La Cosa Nostra required a focus on Italians and tracking Hezbollah meant looking primarily at Lebanese.

Drug Lord Needs Bigger Cell: Ramirez Abadia, who is being held on federal charges for heading a cartel that smuggled an estimated $10 billion worth of cocaine into the U.S. between 1990 and 2003, is claustrophobic in his New York maximum security cell. The Associate Press reports that his lawyer is asking a federal judge to move Abadia to a Detention Center in Brooklyn where he will be more comfortable.

Death Sentence Upheld: Twenty-seven years after receiving a death sentence for stalking and shooting two 12-year-old girls, one fatally, a Ninth Circuit panel has upheld the death sentence of Thomas Edwards. A story in today's Orange County Register by Larry Wellborn reports how in 1981, at a Southern California campground, Edwards spotted best friends Venessa Iberri and Kelly Cartier walking to a picnic. After following the two girls to a remote spot, he pulled up to them in his pickup and shot them both in the head. His conviction and death sentence in 1986 began a series of appeals and delays described by one judge as reminiscent of "Dickens' Bleak House." The federal appeals process alone has taken 17 years, not including the possibility of an en banc review by the Ninth Circuit.

Geographic Disparity: The Baltimore Sun has this letter to the editor in which the author disputes the notion that variation among counties is a problem that needs to be fixed. The writer reacts to an Abell Foundation study showing differences between Baltimore City jury verdicts and those in surrounding counties. "The study not only identified differences in verdicts but went on to the make the shocking proposal that we should consider a regional jury pool. But differences don't necessarily indicate problems; distinct approaches more often than not lead to the right answer." Here is the twist: the letter writer is an Assistant Public Defender in Baltimore.

Execution Delayed: Dan Slater at the Wall Street Journal Law Blog posted this morning on the postponed execution of Charles Dean Hood. Our News Scan has the link to the AP story. Yesterday, the Texas Court of Criminal Appeals granted Hood a stay so that it could reconsider its previous dismissal of Hood's appeal challenging jury instructions. Last Friday, we blogged that the execution might not occur as scheduled because of allegations that the trial judge and a former district attorney had an affair during Hood's 1989 murder trial. Slater's post reports the two admitted, under oath, that they carried on a secret affair for years. When allegations first arose, the Texas AG supported inquiry into whether the affair took place. However, the affair was not the reason for the stay. Yesterday, the Texas Court of Criminal Appeals dismissed claims that Hood had been denied a fair trial because of the alleged affair.

Chief Justice of the Supreme Court: For those interested in a little Supreme Court history, Eugene Volokh has a post on a N.Y. Times correction that claimed "there is no such title as chief justice of the Supreme Court." Volokh's feisty post takes us on a quick trip of the historical use of the title "Chief Justice of the Supreme Court of the United States." Apparently, George Washington used it, Thomas Jefferson used it, and so did St. George Tucker in the 1803 Appendix to Blackstone's Commentaries. So if you use the term "Chief Justice of Supreme Court," Volokh doesn't think you need to apologize.

Courts and the Media: Tony Mauro at Blog of the LegalTimes has been posting on Justice Breyer's talks at the University of Arizona's Rogers College of Law recently. Tuesday's post discussed Justice Breyer's new book, and today's post discusses the important interaction between courts and the media. According to Mauro, the judges on the panel "seemed to embrace" the idea that informing the public in judicial decisions was "now part of their job description." In fact, many courts are already taking it on themselves to put "court documents, streamed audio of hearings, everything except what the judge ate for lunch" on the Internet. Mauro states that with the popularity of internet coverage, the media is going to need to step up its own coverage of the courts. If not, "the courts — not usually viewed as cutting-edge in terms of technology — might find their own ways of bypassing the media and communicating directly with the public." Mauro also promises more posts on this topic.

No Action in Kennedy v. Louisiana: Lyle Denniston at SCOTUSblog reports that while the Supreme Court issued its final round of summer recess orders today, there was "no action announced" on whether it would reconsider Kennedy v. Louisiana. The State of Louisiana had asked the Court to consider the effect, if any, of the Court's failure to address the federal military law that allows the death sentence for child rape. The Justice Department then asked the Court to allow it to join Louisiana in its plea for rehearing. Today's orders did not mention either request.

More On Today's Orders: Tony Mauro at The BLT has this post on the Supreme Court's decision to deny the SG's request for time to argue in Locke v. Karass. The case will address the dispute over the use of mandatory union dues. According to Mauro, the Justice Department had filed a brief supporting neither side in the case and had requested a total of 10 minutes, 5 minutes for each side, during oral argument. The Supreme Court denied the request without explanation.

Executions Next Week in Texas: Grits for Breakfast has a post on the two executions scheduled next week in Texas. In his post, Scott Henson wonders if either will go through. The first execution, of Gregory Wright, has been reported to be postponed, to allow testing of DNA evidence. The second, of Charles Dean Hood, may not occur because of allegations that the trial judge and the prosecutor were having an affair during his trial. As Kent noted this morning, the Texas AG has supported inquiry into whether the alleged affair took place.

Third Circuit Rules on Searches of Cruise Ship Cabins: Orin Kerr, at Volokh Conspiracy, posted today on a Third Circuit decision that held the search of a cruise ship cabin requires reasonable suspicion. The decision, United States v. Whitted, addressed "whether the Fourth Amendment requires any level of suspicion to justify a border search of a passenger cabin aboard a cruise liner arriving in the United States from a foreign port." The Third Circuit ruled yesterday that it does. The case involved the search of a cruise ship cabin that had been docked in St. Maarten and then in St. Thomas. After the ship was docked in St. Thomas, United States Customs and Border Protection boarded the boat and searched the cabins of suspects the officers had reason to believe were bringing narcotics into the United States. The defendant wasn't present when the officers searched her room. They uncovered heroin stuffed in perfume and shaving containers. The Fourth Amendment issue in this case is interesting because it treats the search of a cruise ship cabin as a non-routine border search, which requires reasonable suspicion, instead of a routine border search, which does not. As Kerr notes, "[s]o far, the only kinds of searches that courts have found to be non-routine searches are invasive searches of the person." Kerr's post notes the "fish[iness]" of this decision in light of precedent, and then addresses how narrow the decision really is. Once the same suspects disembark at the border those perfume bottles and shaving containers can be searched without suspicion.

Former Virginia ACLU President Disbarred: Yesterday, the BLT had this post on the D.C. Court of Appeals decision to disbar former VA ACLU President Charles Rust-Tierney. On July 1, 2007, Rust-Tierney pleaded guilty to charges of receiving child pornography through his home computer. He was sentenced to serve seven years in federal prison in September 2007. Apparently Rust-Tierney consented to disbarment. That means the details of the ethical violations filed against him by the Board on Professional Responsibility remain sealed.

Strip Searches Ruled Unconstitutional: In a divided ruling announced last Friday, the federal Ninth Circuit Court of Appeals held San Francisco's policy of strip searching all arrestees to be housed in the jail's general population unconstitutional. The lead opinion In Bull v. San Francisco by Judge Sidney Thomas addresses a class action § 1983 lawsuit brought by several plaintiffs who were strip searched at the jail before the policy was abandoned in January of 2004. In a reluctant concurring opinion, Judge Sandra Ikuta found herself bound by Ninth Circuit precedent "in tension with Supreme Court precedent". A dissent by Judge Richard Tallman was more direct, suggesting that Ninth Circuit decisions on this issue suffer from an "inherent defect in basic logic."

Judiciary Committee Member, and former Chairman, Joe Biden adds heft to Senator Obama's ticket according to this piece in this morning's Wall Street Journal.

Nevada's Sex Offender Law is being challenged in federal court, as reported in this AP story by Ken Ritter. Lawyers representing 27 unnamed plaintiffs in a federal civil rights lawsuit claim that a law which creates an internet accessible state registry of 4,941 people convicted of sex crimes since 1956 in unconstitutional. The plaintiffs argue that minor offenders such as those convicted of theft of pornographic magazines would be unfairly included.

Obama on Thomas: At a religious forum last weekend, attended by presidential candidates Barack Obama and John McCain, the moderator asked which Supreme Court Justices they would not nominate. McCain replied that he would not have chosen any of the four more liberal justices, because of their judicial philosophy. Obama initially focused on Justice Clarence Thomas, saying that he is not a "strong enough jurist or legal thinker," and then took the typical liberal tack of implying that any black with a conservative judicial philosophy must be stupid. A piece in today's The Wall Street Journal discusses this approach.

Helping immigrant felons: "A San Francisco city commission has taken a defiant stand against Mayor Gavin Newsom's directive on young immigrant felons by urging officials to permit the offenders to remain in the city and help pay for their housing, job placement services and immigration lawyers," reports Jason Van Derbeken in the SF Chron.

Justice Department Seeks to Limit District Court Authority to Transfer Detainees: At SCOTUSblog, Lyle Denniston posts that the Justice Department has filed two appeals seeking resolution of whether District Court Judges have the authority to issue orders that regulate the potential transfer of detainees out of Guantanamo Bay. The first appeal was filed on July 25, 2008 and asked the D.C. Circuit Court to rule on Senior District Court Judge Thomas F. Hogan's authority to require the government to give thirty days notice to a detainee's lawyer before the detainee is transferred from Guantanamo. The second appeal, filed today, questions District Judge Rosemary M. Collyer's authority to temporarily bar transfer of a detainee to his home country because he fears torture there. Both appeals argue Congress removed this power from district judges in 2006, and Boumediene v. Bush did not disturb this limit on district court judge authority. The appeals also argued that even without the law, district courts do not have the authority to interfere with Executive control of detainee affairs - aside from examining the basis of detention.

And Can Federal Judges Police Themselves?: Ironically, the Justice Department's second appeal was filed the same day Dan Slater, at Wall Street Journal's Law Blog, asked whether "the System" can "Deal with Incorrigible Judges?" The post discusses Nathan Koppel's article on U.S. District Judge Manuel Real. Judge Real is a federal judge in Los Angeles who was ordered removed from a patent-infringement case against Microsoft because he improperly ignored evidence and failed to state reasons for his decision. Both Slater's post, and Koppel's article, criticize life tenure for judges like Real. Slater writes that "any public shaming appears to have left Judge Real undeterred." Slater also quotes Charles Geyh, a judicial ethics professor at Indiana University, as stating the federal system is not well equipped to deal with incorrigible judges when their behavior does not rise to the level of impeachment.

California Begins to Desegregate Prisons: Bert Deixler, guest blogging at Sentencing Law and Policy, reports that the State of California Department of Corrections and Rehabilitation (CDCR) has finally taken tentative steps toward integrating its prisons. The Supreme Court ruled California's practice to be unconstitutional in Johnson v. California, 543 U.S. 499 (2005). Deixler represented the plaintiff. According to Deixler, "Sierra Conservation Center and Mule Creek State Prison are the first California institutions to integrate, and there are plans for integration to spread statewise by January. It is anticipated that all 30 of California’s prisons will make the transition by 2010." He further states, "California will surely benefit when its prisons are de-segregated.... In short, all sound penalogic policies will be advanced by getting California out of the practice of racially segregating its prisoners." Commenter "Large County Prosecutor" opines that this is "One of the most truly naive statements ever to appear on this site."

DC Guns: David Kopel and Robert Levy have this op-ed in the WSJ calling on Congress to fix DC's latest gun law. A bill called the District of Columbia Personal Protection Act, H.R. 1399 and S. 1001, is available on Thomas.

Prisons Desegregating in CA: As discussed in Lauren's blog scan, California prisons, where discipline is dictated by race-based prison gangs, is beginning to comply with the Supreme Court's 2005 Johnson v. California ruling, which turned state policies that segregate prison inmates into toast. The problem with this feel-good holding by Justices O'Connor, Kennedy, Souter, Breyer and Ginsburg is that it may result in a bloodbath. A story by NPR reporter Frank Stoltze quotes inmates saying "if some guys up there at Level Three or Level Four found out that you bunked with another (race), I mean, who knows, you could get stabbed up." An Aryan Brotherhood enforcer told the reporter "I don't live with them on the streets. I'm not going to bunk with them here."

Inmate Confesses to Murder, Halts Execution: Thomas Arthur received his third stay of execution on Wednesday after Bobby Ray Gilbert, in prison for murder, signed a sworn statement that he committed the murder for which Arthur was convicted. Judy Wicker, the victim's wife, served ten years for hiring the killer and maintains that she hired Arthur, not Gilbert. The AP reports that defense attorneys will be examining DNA and witness testimony in light of the new development.

New CA Law Targets Taggers: California's new law will require those convicted graffiti vandalism to clean up their 'art', and may be required to keep the surface clear for up to one year. According to the SF Chronicle's story, the judge will have the discretion to forgo the requirement if the defendant would be at risk of injury during cleaning, such as a highway overpass.

From my stack of post-SCOTUS-term catch-up reading comes this executive summary of a study titled "Assessing Consistency and Fairness in Sentencing: A Comparative Study in Three States." It was released May 22 by the National Center for State Courts. I was not able to find the full study on the web site. (Update: The full study is not online but is available from NCSC.)

Movements to curb discretion in sentencing came into vogue in the 1970s and 1980s due to a suspicion that too much discretion was contributing to discrimination on the basis of impermissible factors, especially race. That concern was a large factor in the Supreme Court's decision tossing out unbridled discretion in capital sentencing in Furman v. Georgia, 408 U.S. 238 (1972), as Justice Thomas explained in his great concurrence in Graham v. Collins, 506 U.S. 461 (1993).*

In noncapital sentencing, the same concerns brought about a political consensus that resulted in the enactment of guidelines systems. In federal sentencing, the Sentencing Reform Act creating the guidelines system was sponsored by the strange bedfellows of Ted Kennedy and Strom Thurmond. But do sentencing guidelines really minimize discrimination? The NCSC study supports the claim that they do.

Doug Berman at SL&P solicited comments regarding what sentence is appropriate for the "Spam King." He has gotten a lot of comments, 60 as of this writing.

What is fascinating to me is that the commenters on this blog, who overall tend to lean toward a more lenient sentencing policy, as the host does, have absolutely no mercy for this guy. Why not? In part, I suspect it's because his crime is one that every user of the Internet (and hence all the commenters) has personally been a victim of. People tend to be more lenient when we have not been victims ourselves. But we shouldn't.

Although most of the attention today is on the Kennedy opinion, the case of Giles v. California will have a greater impact on the regular practice of criminal law. The case continues the reworking of the Confrontation Clause begun by Crawford v. Washington, 541 U.S. 36 (2004), looking more at what was admissible back in the common law days and less at what the Court thinks is fair today.

The question is when a defendant can forfeit his right to confront the witness, thus allowing into evidence a prior unconfronted statement, by his own misconduct rendering the witness unavailable. In this case, the misconduct was to murder the witness. Specifically, the issue comes down to what mental state the defendant had for this wrongful act. The majority opinion by Justice Scalia goes for a narrow exception. The statement comes in only if the prosecution can prove (to the judge, the jury hasn't heard any of this yet) that the defendant killed the witness for the purpose of preventing testimony, not for some unrelated reason. The dissent (Breyer, joined by Stevens and Kennedy) would hold that intentional killing with knowledge that preventing testimony is a consequence would suffice.

In two cases today, the Supreme Court issued grant-vacate-and-remand orders (GVR), directing the Seventh Circuit to take another look based on a new position by the Solicitor General regarding the scope of review waivers in plea agreements. The cases are Nunez v. United States, No. 07-818, and Stephenson v. United States, No. 07-9267. Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, dissents in both cases. His position is that the Court lacks authority to vacate the decision of another court unless it finds or the prevailing party concedes that the judgment is erroneous, as distinguished from a correct judgment for a wrong reason.

Understatement of the day award goes to Justice David Souter, writing for the Court in Rothgery v. Gillespie County, Texas, No. 07-440. "Our holding is narrow." Indeed, the holding decides an easy technical question but resolves nothing of consequence. If the holding were any narrower, it would disappear altogether.