Question:  When can a judge ethically be an advocate for a party in his court?

Answer:  Pick one  --  (a) never; or (b) when the party is a violent criminal serving the sentence he earned.

Until Saturday, I didn't know anyone who would pick (b) over (a).

On that day, however, I learned that it can be OK for a judge to be an advocate for a party when he has "a strong vision of legal justice and then act[s] in service to that vision."

That's the answer given by Prof. Doug Berman, a distinguished lawyer and law professor who sees things from the defense perspective.

I respectfully dissent.  It is precisely when the judge feels most strongly that he must be most disciplined.  The credibility of the judicial branch, and indispensable public confidence in its neutrality, require nothing less.  The notion that the judge can be an advocate for one side is toxic to the core idea of what it means to be a judge at all.
Last year, the Legion of Whiners was in good form, trying to intimidate speech not conforming to their views.  Indeed, they marched beyond the typical snarling reception given conservative speakers, and filed a formal complaint against Judge Edith Jones of the Fifth Circuit for her talk at a Federalist Society function at the University of Pennsylvania Law School.  The gist of the complaint, as reported below, was that the Judge's remarks were  --  ready now?  --  racist, and inappropriately favorable to the death penalty.

The complaint was widely reported, see, e.g., this NYT story and this one from CBS.  It was also reported on legal blogs, see, e.g.,  this entry.

The complaint was referred by Chief Justice Roberts to the DC Circuit.  After a lengthy and thorough investigation, the Court rejected the complaint in its entirety, with no dissent.  Its order is here.  Hat tip to Judge Richard Kopf on his blog Hercules and the Umpire.

I have been writing recently about left wing attempts to silence dissenting conservatives, basically by false and disgusting accusations.  The Jones complaint was of a piece with this New McCarthyism.........as is the relative silence about its dismissal.

Congratulations to Judge Jones.  May she serve many more years on the bench, and continue to defy the Politically Correct Brownshirts who would silence her.


SCOTUS Denies Stay of Texas Voter ID

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Consistently with its recent pattern of not making major election changes close to the election, noted here, the U.S. Supreme Court has denied the application to lift the Fifth Circuit's stay of an injunction against that state's voter ID law.  In other words, the ID law will be in effect for the coming election.

The vote was apparently 6-3, with Justices Ginsburg, Sotomayor, and Kagan dissenting.

The Legalization Lobby Parodies Itself

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Those preferring to see more widespread use of pot are, naturally, for legalizing it, thus removing one of the barriers to broad consumption.

In the course of their campaign (upon which CJLF takes no position), they have claimed that pot affirmatively makes you healthier.  Indeed, it's something of a wonder drug!

Thus I guess this was bound to happen, but I still feel like I should pass it along:  "Smoking Marijuana Can Protect You From Ebola."

I swear I am not making this up.
President Obama yesterday named DC lawyer Ron Klain as the Ebola "czar."  I know Mr. Klain only very slightly, from when I was moving out of the White House at the end of the GHWB administration and he was helping the Clinton administration move in.  I found him intelligent, thoroughly pleasant and a gentleman.  Our contacts were slight and fleeting, and I haven't seen him in more than 20 years. 

The WSJ has an editorial today about the Klain appointment.  Its title is, "Ebola Political Contagion," and it begins:

President Obama bowed to the growing Ebola political furor on Friday and named a so-called Ebola czar, though maybe the better label is apparatchik. His man isn't a military general, despite the troops in West Africa, or even someone with so much as nominal expertise in disasters or infectious disease. He's the political operative Ron Klain.

The Attorney General has directed that appeal waivers in plea agreements should no longer require that defendants waive the right to raise ineffective assistance of counsel claims.  The story is covered here on SL&P, and the Deputy Attorney General's memo is here

As the SL&P entry notes (in the comments section), I am the inventor of appeal waivers.  I litigated their validity for the first time in federal court in US v. Wiggins, 905 F.2d 51 (1990).  That case, and all subsequent cases on the question in the courts of appeals, upheld the waiver.  Probably because the resolution is so obvious, and the appellate courts unanimous, the Supreme Court has never addressed the issue.  I will bet $1,000 here and now on the outcome if it ever does.

The reason the issue is obvious, as explained by Judge Wilkinson in the Fourth Circuit's seminal opinion, is easy to summarize:  If a defendant can waive his constitutional right to a trial, something that has been established forever, he can waive his mere statutory right to an appeal.

DOJ's new modification makes little difference, to the small extent there has been a modification at all.  Accordingly, it's not causing me a lot of heartburn.


News Scan

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Rapist/ Murderer Released from Prison: An Oregon man convicted of raping and murdering a high school classmate more than two decades ago has been released from custody.  Emily E. Smith of The Oregonian reports that Conrad Engweiler, who was 15-years-old at the time of the killing, was convicted of raping and strangling Erin Tonna Reynolds to death in 1990, he was originally sentenced to life in prison with a minimum of 30 years but that sentence was eventually reduced after several parole hearings.  Engweiler will be required to register as a sex offender and will be supervised for a minimum of three years.

Prosecutors to Seek Death Penalty Against Accused Killers
: Prosecutors in Georgia intend to seek death sentences for a pair of men accused of kidnapping and murdering a young couple in August 2014.  Steve Visser of the Atlanta Journal-Constitution reports that the two men are accused of kidnapping a man and his pregnant wife for ransom.  The couple was later found shot to death just miles away from their home.  One of the suspects, 40-year-old Cleveland Gay, was released on parole earlier this year after serving nearly 22 years of a life sentence he received in 1992 for murdering two people when he was 15-years-old.

Murderer Sentenced to Life: A Washington man convicted of murdering two people and nearly killing a third has been sentenced to spend the rest of his life behind bars without the possibility of parole.  KOMO News reports that 39-year-old Aaron Livingston agreed to plead guilty to two counts of first-degree murder and one count of attempted murder for the beating death of his girlfriend and a man he suspected she was having and affair with.  After the murders, Livingston tried to kill a 60-year-old family friend by strangling her with an electrical cord. 

News Scan

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Ex Con Charged With Murder: A repeat felon has been arrested and charged with killing a Northern California man and then shooting the man's mother earlier this year.  KTVU News reports that 34-year-old Demond Spikes shot the man in the abdomen and the head before turning the gun on his mother and shooting her through a sliding glass door.  If convicted, Spikes faces a possible life sentence since he already has two prior felony convictions and this would become his third strike.

Prosecutors to Seek Death Penalty for Accused Killer: Prosecutors in Kansas have announced their plans to seek the death penalty for a man accused of murdering his adoptive parents.  Tim Potter of the Wichita Eagle reports that 19-year-old Anthony Bluml began resenting his parents after he was kicked out of the home for smoking marijuana.  Police believe he killed his parents in order to gain access to the couple's life insurance.  Bluml is just one of four defendants charged in the murder.  His biological mother also participated in the killings and has also been charged with two counts of first-degree murder.

Realignment Offender Linked  to Car Theft Ring: A California man currently on Post-Release Community Supervision (PRCS) for a vehicle theft conviction has been arrested yet again for stealing more vehicles and knowingly receiving stolen property.  Allison Gatlin of The Californian reports that 45-year-old Gary Dean had been arrested at least six times between 2006 and 2011 on a variety of charges.  IN 2011 he was arrested after leading police on a high-speed chase in a stolen vehicle.  He was released on PRCS after serving time behind bars.  Dean is currently being held in county jail on a number of charges including vehicle theft, possession of stolen property, and possession of stolen vehicles.

CBS4 in Denver has this story with the above title.

A victim of the Aurora theater massacre said he believes defense lawyers and anti-death penalty groups have tried to use him like a pawn.

News Scan

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Murderer Sentenced to Nine Life Terms: A California judge has sentenced the leader of a notorious Mexican drug trafficking gang to nine life terms without the possibility of parole after being found guilty on multiple counts of murder and kidnapping.  KUSI News reports that 35-year-old Juan Estrada Gonzalez was sentenced to 29 years in prison in Mexico in 2003, but he escaped and came to the United States, where prosecutors say he murdered six people between 2004 and 2007.  Estrada Gonzalez's co-defendant was also sentenced to life in prison without the possibility of parole.

NJ High Court Upholds Attempted Murder Conviction: The New Jersey Supreme Court has upheld the attempted murder conviction for a man found guilty of shooting a police officer in 2012.  WMUR News reports that Myles Webster was sentenced to 60 years to life in prison for shooting the officer multiple times at close range, leaving him critically injured.  Webster appealed his conviction based claiming that he was wrongly identified by the officer and witnesses interviewed at the scene of the crime.     

Prosecutors to Seek Death Penalty Against Florida Man: Prosecutors in Florida will seek the death penalty for a man charged with the of killing his girlfriend's one-year-old son.  The Tampa Bay Times reports that 24-year-old Austin Hamilton allegedly beat the young boy repeatedly with a belt before dropping him on his head, resulting in his death.  Hamilton admitted to police that he 'lost control' while changing the boy's diaper and hit him multiple times with a belt, but has pled not guilty to first-degree murder and aggravated child abuse charges.

Jennings v. Stephens Argument, Continued

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The argument transcript in Jennings v. Stephens is now available.

On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on.  If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one.  See pages 9 and 14 of CJLF's brief.  He seeks to assure the Supreme Court this scenario would be rare.  I don't know about Texas, but it is certainly not rare in capital cases in California.  Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno.  It's all part of the strategy to throw as much sand in the gears as possible.

Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court.  The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial.  The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.

The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal.  This is called issue preclusion or collateral estoppel.  A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus.  In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others.  The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period.  Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them.  Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.

Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel.  I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case.  That would simplify things considerably, and Justice Breyer notes our brief  to that effect at pages 48-49.

Update, 10/17:  Rory Little has this analysis of the argument at SCOTUSblog.

Jennings v. Stephens Argument

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The U.S. Supreme Court is hearing argument today in Jennings v. Stephens. We noted this case in the week preview last Friday.  Rory Little has a preview at SCOTUSblog, with some complimentary things to say about CJLF's brief.

The transcript should be available this afternoon.

Chemerinsky and the Supreme Court

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UC Irvine Law Dean Erwin Chemerinsky's new book attacking the Supreme Court has caused Volokh Conspirator Orin Kerr to "wonder[] if he was just criticizing the Supreme Court for not agreeing with his policy preferences."

Orin has this Q-and-A with Dean Chemerinsky in which Chemerinsky attempts to answer that question "no," but even the left-leaning commenters on the post mostly agree that he ends up demonstrating that the answer is "yes."

Texas Voter ID

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As predicted in this post, the Fifth Circuit Court of Appeals has followed the Supreme Court's pattern and stayed an injunction against Voter ID.  The pattern is that the high court disallows late changes, whichever way they go.

Early voting in Texas begins on Monday, October 20. On Saturday, October 11--just nine days before early voting begins and just 24 days before Election Day--the district court entered a final order striking down Texas's voter identification laws. By this order, the district court enjoined the implementation of Texas Senate Bill 14 ("SB 14") of the 2011 Regular Session, which requires that voters present certain photographic identification at the polls. The district court also ordered that the State of Texas ("State") instead implement the laws that were in force before SB 14's enactment in May of 2011. Based primarily on the extremely fast-approaching election date, we STAY the district court's judgment pending appeal.
Lyle Denniston has this post at SCOTUSblog.

Assigning Judges to Cases

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In most courts below the level of the Supreme Court (state or federal), most cases are heard by something less than all the judges of the court.  How do judges get assigned to cases?  Can assignments be manipulated?  Are they?

Presently, there is a big controversy in the Ninth Circuit regarding assignments to the same-sex marriage cases.  Josh Blackman has this post at his eponymous blog.  It seems Judges Reinhardt and Berzon get assigned to these panels at rates far beyond what can plausibly be explained by chance.  CJLF takes no position on the underlying issue in these cases, but the fairness of judicial assignments is something that does concern us.

In civil litigation affecting the criminal justice system, we have seen manipulations of the "related case" rules to funnel the prisoner rights cases and the cases blocking implementation of an important reform of capital habeas corpus to the most prisoner-friendly judges.  The three-judge panel that heard the California overcrowding case was the prisoners' dream team.  If I were representing the prisoners and could choose any three judges from the entire federal judiciary, those are the three I would have chosen.

The next Congress should take a good, hard look at judicial assignment policies.  This is too important to leave to local rules of court.
Nedra Pickler has this story for AP, incorrectly headlined Obama waiting for midterm to name Attorney General. As the text of the story makes clear, he is not going to wait for the midpoint of his term, January 20, but instead is only waiting until the election is past.

President Barack Obama does not plan to announce his choice for attorney general before the November elections, shielding the nomination from the midterm election politics while setting up a potential year-end showdown with the lame duck Senate.
Shielding the nomination from politics?  My, doesn't that sound noble?  Reality is more like shielding the Democratic candidates in close races from having to answer to the people, which is how our representative democracy is supposed to work.

There wouldn't be any need to "shield" if the President were planning to nominate a solid, non-divisive candidate.  So this timing tends to indicate that another divisive, partisan nominee who will continue the politicization of the Department of Justice is headed our way.

News Scan

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Realignment Offender Suspected of Murder: Police in Barstow, CA believe that the person responsible for murdering a man Monday night is on active Post-Release Community Supervision (PRCS), a form of probation started under Governor Brown's Realignment legislation.  Jose Quintero of the Desert Dispatch reports that 22-year-old Andrew Gallegos, a known gang member, stabbed his victim to death Monday evening just after 8:00 p.m.  Police have yet to locate Gallegos and are warning citizens not to approach him as he is believed to be armed and dangerous.

Rapist Denied Release: An Ohio man scheduled for release from prison this week will remain behind bars after his DNA linked him to five unsolved rapes.  Sean Rowe of Fox Columbus reports that 54-year-old Dwayne Wilson, who was already serving a five-year sentence for a separate sexual assault conviction, will now be charged with nine counts of rape and five counts of kidnapping after DNA linked him to assaults against five women between 1994 and 1997.  Ohio Attorney General Mike DeWine recently launched a campaign to test thousands of rape kits that had gone un-tested across the state, so far, the campaign has resulted in over 1,000 hits to DNA already in a nationwide database.   

FL Supreme Court Upholds Death Sentence: Florida's highest court has upheld the death sentence for convicted rapist and murderer William Davis III.  Desiree Stennett of the Orlando Sentinel reports that Davis kidnapped a 19-year-old receptionist from her workplace before raping and strangling her to death.  Davis never denied his involvement in the murder and actually requested that he be sentenced to death during his trial. His attorneys have not announced whether they will appeal to the U.S. Supreme Court.

If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026.  Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.

Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime."  Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt.  What is "substantively unreasonable" you might well ask?  Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case.  "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.

I think that is stretching "elements" way too far.  The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.

Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.

P.S.: Looks like Bill and I were writing on this at the same time.  I'll leave them both up, so readers get two perspectives on the case.

No New SCOTUS Cases, Part II

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Among the cases to which cert was denied today was a very big sentencing case, Jones v. US, No. 13-10026.  The basic issue was whether a sentencing judge could take account of "acquitted conduct."  The DC Circuit, in conformity with others, said yes, and the Supremes allowed its judgment to stand.

There were three votes for cert  --  Scalia, Thomas and Ginsburg.  Doug Berman, one of the leading voices pushing for SCOTUS review, has this post on it at SL&P.  

I cannot go into detail about this right now  --  other duties call  --  but I agree with the denial of cert.  The issue is all but governed by the Court's decision in Watts, decided 17 years ago. Despite Apprendi, a convicted criminal has no right to a determination beyond a reasonable doubt of facts used to fashion a sentence that is within the statutory range.  Jones's sentence was within the range.

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker.  Two remedies were on the table in that case:  Requiring a jury's judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can't have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

Second, contrary to the wide misconception among laymen, an acquittal does not mean the defendant didn't do it.  It means only that the jury was not convinced beyond a reasonable doubt that the government proved every element of the offense.  If defendants should be sentenced on the whole of who they are and what they do  --  as the defense bar routinely insists in every other context  --  then there is no injustice in sentencing them based in part on conduct they actually undertook, whether or not they got convicted for it. 

No New SCOTUS Cases

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The U.S. Supreme Court, back from its Columbus Day holiday, issued its virtual-Monday orders list today. No new cases were taken up.

Studies and Coding

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In almost every debate about policy, someone asserts confidently that "studies show" whatever supports their position.  However, what "studies show" is not necessarily so.  Occasionally on this blog we highlight why the neat little bottom line result that makes the newspaper may not be true.  Sometimes, the reason involves inherent difficulties in studying a particular area, fully disclosed by the researcher, but deemed too complicated for a newspaper article.  Sometimes it is simple sloppiness on the part of the researcher.  In the worst case, it represents intentional manipulation by an agenda-driven researcher intent on producing "evidence" for a predetermined position.

Eugene Volokh has this comment at VC on a study that purports to show that Supreme Court Justices are more likely to vote for protection of a speaker in First Amendment cases if they are ideologically aligned with that speaker.

Before studiers can crunch numbers, they have to reduce real-world realities to simple numbers.  This is called coding and there is a lot of opportunity for either error or distortion in this process.

Ebola, Race and Criminal Justice

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Ebola screening of persons on incoming flights, and the concomitant implicit threat of detention and possible coercive quarantine, is deployed disproportionately against "people of color," to use the current politically correct phrase.  

Q:  Why, then, haven't the Usual Whiners against racial disproportionality been at the top of their lungs in protest? 

A:  Because even they understand that the government's response, though grossly racially disproportionate, has nothing to do with race.  It has to do with behavior. Specifically, it has to do with the higher-than-average prospect that persons on those particular flights have come in contact with the virus.

Q:  So why do Whiners refuse to understand that racial disproportionality in important areas of the criminal justice system  --  e.g., concentrating police patrols in high crime areas, and stiffer sentencing for those with long records or histories of violence  -- likewise reflects attention to behavior rather than attention to race?

A:  Because that is not on the Whiner Agenda.  Indeed, it affirmatively undermines the Agenda.  Once it is recognized that differences in treatment reflect differences in chosen behavior rather than differences in skin color, the Agenda collapses, and with it much of the force of the attack on police and prosecutors.

News Scan

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Convicted Murderer Beats Mother to Death: A New Jersey man is in custody and charged with beating his mother to death just days after he was released from serving a 30-year prison sentence for murder.  The Associated Press reports that 45-year-old Steven Pratt allegedly beat his mother to death Sunday morning after his family threw a welcome-home party for him celebrating his release from prison.  In 1984, Pratt was convicted of murdering his next-door neighbor when he was 15-years-old and sentenced to 30 years in prison after being tried as an adult, he is once again facing first-degree murder charges and is being held on $1 million bail.

OK Attorney General Seeks to Delay Upcoming Executions: Oklahoma Attorney General Scott Pruitt has filed a notice seeking to delay three of the state's upcoming executions.  The Associated Press reports that the attorney general has announced that the state needs more time to obtain execution drugs and time to train staff on new execution protocols.  Oklahoma put all executions on hold after the botched execution of Clayton Lockett earlier this year.
http://www.nydailynews.com/news/national/oklahoma-executions-delayed-attorney-general-article-1.1972508

Convicted Killer Sentenced to 160 Years in Prison: A Chicago man has been sentenced to 160 years in prison after being found guilty of stabbing to death a 14-year-old girl nearly three years ago during a botched home robbery.  ABC News reports that 41-year-old John Wilson Jr., an ex-con, stole the young girl's cellphone after killing her and taunted her mother by sending text messages from her phone.  Wilson was given the maximum sentence for the killing, as the state of Illinois does not have the death penalty.

Should We Ever Have LWOP for Juveniles?

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Since the Supreme Court, acting as it so often does on its own tastes, outlawed mandatory LWOP for juvenile murderers, there has been a raging debate whether LWOP should ever be allowed for adolescent killers. You can guess which side academia, the press and the one-direction-only defense bar take.

This grisly story will not make them reconsider, because nothing makes them reconsider. That's because, despite their demand for "evidence-based sentencing," they are not about to take an honest look at any actual evidence when it undermines their predetermined position.

Into the Fog, as Predicted

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When the President traded five high-value Taliban commanders for Sgt. Bowe Bergdahl, in patent violation of United States law, we were told that there would be, in good time, a full investigation into the circumstances under which Bergdahl left his unit and wound up with the enemy.  But a full investigation would take weeks, perhaps months.  In the meantime, the first priority was to see to Sgt. Bergdahl's health.  There would be, so we were assured, an accounting later whether Bergdahl was, as many in his unit charged, a shirker and a deserter.

I was skeptical.  I wrote a little more than three months ago:

I [may have] overestimated the President's willingness to act directly and take responsibility for letting Bergdahl off the hook.  It now appears more likely that, while I was correct in saying there isn't going to be any honest investigation, there may not be any pardon as such, either.  Why should there be? Why should there be, that is, when the President can just believe  --  not unintelligently  -- that, if dragged out for long enough, the whole thing will disappear into the fog of even more prominent scandals?

And sure enough.  The Hill newspaper has this Friday afternoon newsdump story titled, "Army Won't Release Bergdahl Review." 

Goodness gracious!  Still, I can take only piddling credit for prescience.  Anyone with the IQ of a tomato understands that this Administration's promises of "accountability" in the by-and-by are nothing but the first step of "dragg[ing] it out for long enough [so that] the whole thing will disappear into the fog of even more prominent scandals."

SCOTUS Next Week

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

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

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

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

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

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

News Scan

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Man Wearing GPS Device Arrested on Drug Charges: A Massachusetts man on federal probation for drug possession and distribution has been arrested again for drug sales despite having a GPS monitoring device attached to his ankle.  George Graham of The Republican reports that 26-year-old David Faust was arrested Thursday afternoon for selling cocaine, OxyContin, and marijuana throughout the city of Springfield, Massachusetts.  Faust has a lengthy criminal past and has been arrested on multiple occasions for drug possession and sales.

DNA Links Man to Cold Case Murder: A Texas man is behind bars and facing murder charges after a DNA sample linked him to a 2008 cold case killing.  Shaley Sanders of KCBD News reports that 43-year-old Billy Lumbaugh Jr. is the man believed to be responsible for killing a Lubbock woman in 2008 and dumping her body in a field.  In addition to the murder charge, Lumbaugh was also linked to an unsolved rape and an unsolved kidnapping and robbery. 

Kansas Man Faces Possible Death Sentence: A Kansas man faces a possible death sentence if he is found guilty in the brutal murders of a mother and her three young children.  Jeff Lehr of CNHR News reports that 23-year-old David C. Bennett Jr. allegedly broke into the woman's home and sexually assaulted her in the middle of the night.  He returned hours later and strangled the woman and her three young children to death.  Bennett is currently being held in county jail on charges of first-degree murder and rape.

The Next AG? OMG

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Curt Hulse reports at NYT's First Draft:

The White House is moving more quickly than anticipated to select a new attorney general and is poised to announce President Obama's choice before the Nov. 4 election, with Labor Secretary Thomas E. Perez emerging as a leading candidate.

Many on Capitol Hill expected the president to wait until after the election to avoid making the nominee a campaign issue for embattled Democratic Senate candidates. But people familiar with the administration's planning now say an announcement could come in the next few weeks.

No final decision has been made, they said, but Mr. Perez, 53, a former Justice Department civil rights official and the son of Dominican immigrants, is at the top of the list. His nomination would be applauded by many Hispanic leaders. And he has a compelling personal story, having worked as a trash collector to help put himself through Brown University.
*                                     *                               *
Mr. Perez was opposed for the labor post by Republicans, who branded him an ideologue who selectively enforced civil rights laws. But Democrats could push the nomination through in a lame-duck session on a simple majority vote.
Well, maybe we need trash collection experience given all the garbage we have gotten from Mr. Holder, but I seriously doubt Mr. Perez is the man for the job.  For those who thought the next AG would have to be an improvement, maybe not.

My first job after high school was shoveling sand into sandbags at the White Sands Missile Range.  Maybe I should apply, given all the sandbagging Mr. Holder has done in response to congressional investigations.
Wayne Hall of the University of Queensland (Australia) Centre for Youth Substance Abuse Research has a monograph with the above title in the journal Addiction.  Here is the abstract:

Aims:  To examine changes in the evidence on the adverse health effects of cannabis since 1993. Methods:  A comparison of the evidence in 1993 with the evidence and interpretation of the same health outcomes in 2013. Results:  Research in the past 20 years has shown that driving while cannabis-impaired approximately doubles car crash risk and that around one in 10 regular cannabis users develop dependence. Regular cannabis use in adolescence approximately doubles the risks of early school-leaving and of cognitive impairment and psychoses in adulthood. Regular cannabis use in adolescence is also associated strongly with the use of other illicit drugs. These associations persist after controlling for plausible confounding variables in longitudinal studies. This suggests that cannabis use is a contributory cause of these outcomes but some researchers still argue that these relationships are explained by shared causes or risk factors. Cannabis smoking probably increases cardiovascular disease risk in middle-aged adults but its effects on respiratory function and respiratory cancer remain unclear, because most cannabis smokers have smoked or still smoke tobacco. Conclusions: The epidemiological literature in the past 20 years shows that cannabis use increases the risk of accidents and can produce dependence, and that there are consistent associations between regular cannabis use and poor psychosocial outcomes and mental health in adulthood.
In olden times, proponents of marijuana prohibition ridiculously exaggerated its harmful effects, a campaign reaching its unintentionally hilarious peak in the film Reefer Madness.  Today, proponents of legalization engage in equal and opposite propaganda, trying to convince us that marijuana is completely harmless.  I call this campaign Reverse Reefer Madness.  CJLF takes no position on the legalization issue, but we should be basing our decisions on science, not propaganda.  Hall says:

Our best estimate is that the risk of developing a psychosis doubles from approximately 7 in 1000 in nonusers [102] to 14 in 1000 among regular cannabis users.
Schizophrenia is a terrible disease.  It wrecks people's lives.  It has a profound impact on the lives of people close to them.  Doubling the risk is no trivial matter.

Hat tip to Michael Tremoglie, who has this article at Main Street.

More Voter ID Developments

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Brent Kendall reports in the WSJ on developments in voter ID cases.

Voter identification laws suffered setbacks in two states on Thursday, with the U.S. Supreme Court blocking Wisconsin from imposing its voter-identification measure during the midterm elections and a federal judge in Texas striking down that state's ID law.

The Supreme Court's action in Wisconsin marked its third recent intervention in a high-profile election case, and the first before the high court in which advocates for minority voters prevailed.

The justices in the two other cases allowed Ohio to cut back on early voting and cleared North Carolina to impose new, tighter voting rules.

The high court in each case effectively put the brakes on lower court rulings that would have prompted late changes in election procedures in the run-up to the Nov. 4 day.

Meanwhile, a U.S. District Judge in Texas said that state's voter ID law amounted to an "unconstitutional poll tax," an outcome the state said it would immediately appeal.

The unfortunate thing about this "avoid late changes" approach is that the timing of an order rather than its merit may determine whether it is in effect for the election.  If the Fifth Circuit follows the same pattern, it will stay the District Court's order.  It won't matter that much in Texas, where the most important races aren't close.  But the Wisconsin governor's race is a tossup, and if the final tally is close enough, the deceased vote could tip the balance.

Update:  Text of the order and dissent follows the break.

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