Holder OK'd Search of Reporter's Emails: NBC News writer Michael Isikoff reports that the DOJ has confirmed that the warrant to seize Fox News reporter James Rosen's emails was approved "at the highest levels" of the Department after "discussions" with Attorney General Eric Holder. This admission came after blistering criticism by news and media groups over the warrant and secret subpoena for the phone records of AP reporters. The Department says that the warrant was a legitimate effort to obtain evidence against former intelligence analyst Stephen Kim, who is suspected to have leaked classified information to Rosen. Critics point to the warrant and subpoena as efforts to chill investigative reporting.
When Lois Lerner of the Internal Revenue Service invoked her Fifth Amendment right against self-incrimination before a House committee on Wednesday, she did so after making a brief statement.
Those remarks have triggered a debate over whether Lerner waived her Fifth Amendment rights. While case law on the subject is limited and fuzzy, most practitioners agree that Lerner risks being held in contempt.* * *George Washington University Law School professor Orin Kerr, in a post on The Volokh Conspiracy blog, pointed to the 1999 Supreme Court ruling in Mitchell v. U.S. that a witness "may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details."
Another Supreme Court precedent on the subject of selective silence is forthcoming. Salinas v. Texas was argued in April and will probably be decided in June. CJLF's brief is here. My podcast for the FedSoc is here. I don't know if Salinas will shed any additional light on the Lerner situation, but it might.
The charges resulted from the so-called "Kids for Cash" scandal that erupted in Luzerne County, Pennsylvania in late 2008. Ciavarella and his fellow judge, Michael Conahan, were accused of receiving over $2.8 million in three years from a commercial builder, Robert Mericle, and an attorney and businessman, Robert Powell, in exchange for helping to construct and operate juvenile detention centers and placing juvenile offenders there.* * *Over the course of several years, Ciavarella committed hundreds of juveniles to detention centers co-owned by Powell, including many who were not represented by counsel, without informing the juveniles or their families of his conflict of interest.
The U.S. Senate unanimously confirmed Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit on Thursday, making him President Obama's first successful nomination to the court and the first new judge there since 2006.The D.C. Circuit does not handle as many criminal cases as most circuits. CJLF filed its very first brief in that court just this year. The circuit has no jurisdiction to review criminal cases from the local D.C. court system, either on appeal or habeas.*
Srinivasan, the principal deputy solicitor general in the U.S. Justice Department, saw his nomination sail through a normally contentious Senate confirmation process. The 97-0 vote reflected his broad support from the legal community and legal pedigree that included work for both Democrat and Republican administrations.
The crime-related cases the D.C. Circuit does handle, though, include some of the most controversial ones. The Gitmo detainee cases are there. The lethal injection importation case, noted above, is there. The habeas "fast track" case will be there shortly.
So where does Judge Srinivasan stand on the issues of greatest importance to enforcement of the criminal law? I have no idea. His work as an advocate for the government in his present position is highly regarded, but that work is advocating for positions determined by others. A Lexis search for articles turned up nothing on criminal law or anything else. We will have to wait and see.
* No, that doesn't violate the Suspension Clause. Not even liberal demigods Brennan and Marshall thought it did.
Occasionally, though, the prevailing party below joins in the request to take the case up, even though it believes the Court should affirm once it does. The U.S. Government is the party most likely to do this, as it is uniquely hampered by having to enforce different interpretations of the law in different federal circuits. Much more rare is such a request by a private party, but one has been filed by Noel Canning, the bottling company that prevailed in the NLRB recess appointments case. "Respondent does not oppose certiorari because this case presents a constitutional question of extreme importance."
Noel Canning asks the Court to add an additional Question Presented to the two proposed by the Government:
The evidence that George Zimmerman's attorneys have uncovered on Trayvon Martin's cell phone paints a troubling picture of the Miami Gardens teenager: He sent text messages about being a fighter, smoking marijuana and being ordered to move out of his home by his mother.Florida defines "relevant" in pretty much the usual way. "Relevant evidence is evidence tending to prove or disprove a material fact." That is simpler than the Federal Rules of Evidence phrasing, but not really different. Any probative value that nudges the probability meter one way or the other to any degree is enough to make evidence relevant.
And photos from that phone offer more of the same: healthy green plants - what appear to be marijuana - growing in pots and a .40-caliber Smith & Wesson handgun.
Defense attorneys on Thursday gave formal notice to prosecutors that they intend to use those and other reputation-damaging pieces of evidence about Trayvon once Zimmerman's second-degree murder trial begins June 10.
Prosecutors say they're not relevant and should be barred.
Is this evidence relevant? It's probative value is certainly quite weak. Is there any at all? Doubtful.
Researcher Calls Realignment an Experiment: AP reporter Don Thompson writes about the growing criticism of California Governor Jerry Browns Realignment law. Preliminary reports by the FBI on 2012 crime rates indicate that violent crime increased in 40 of the state's 69 largest cities, the largest such increase in 20 years. While most criticism of the law has come from Republican legislators and victims' groups, some Democrats have indicated that they are open to reforms. One expert who has been studying the shift of thousands of felons from state prison to counties, Stanford University law professor Joan Petersilia, said the policy is serving as a national experiment about whether prison populations can be reduced significantly without posing a threat to public safety.
Jurors in Jodi Arias' murder trial resume deliberations Thursday after they were unable to reach a unanimous verdict on whether she should be sentenced to life in prison or death for killing her one-time boyfriend, prompting the judge to instruct them to keep trying.In the wake of Ring v. Arizona, the Arizona Legislature had the good sense to enact a true penalty-phase unanimity rule. Just like in the guilt phase, the jury must be unanimous one way or the other. If they are truly deadlocked, that is a mistrial. A new jury will be impaneled to retry the penalty phase unless the prosecution gives up and accepts a life sentence.
In many jurisdictions, there is a false unanimity rule, more aptly described as a single-juror veto rule. If eleven jurors believe the death penalty is the just sentence and one disagrees, the one can simply hold out and impose his will on the eleven. Jurisdictions that have such a rule need to fix it. Congress needs to fix it immediately for the federal system, before the trial of the Marathon Bomber.
The discovery of cannabinoid receptors was fairly recent. Undoubtedly, sometime down the road therapeutic uses of drugs that act on those receptors will be discovered. But we're not there yet and even when we get there the prescription will not be to toke up but will likely involve highly refined, pharmaceutical-grade pills at doses much lower than are used by recreational marijuana users.
Med Marijuana Users Can Drive in Michigan: The Michigan Supreme Court unanimously held that medical marijuana users have some protection against a conviction of driving while intoxicated in a ruling Tuesday reported by the Associated Press. While it is illegal for drivers to consume marijuana in the state, the medical marijuana law "shields" registered patients for the internal possession of the drug according to the court. The prosecution must show the driver was actually under the influence. Unlike alcohol, there is no defined blood concentration limit, but the court invited the legislature to establish one. The decision overturned an appeals court ruling which held that the defendant, medical marijuana user Rodney Koon could be prosecuted for driving under the influence.
The researchers assessed 270 Colorado prison inmates charged with violating prison rules and who, after a disciplinary hearing, were placed in one of three prison environments. Subjects in the first group, which included individuals with or without a mental illness, were placed in a super-maximum security environment in which they were locked in their cell 23 hours a day. Inmates in the second group, which also included individuals with or without a mental illness, were assigned to a general-population maximum-security housing unit, where they had more out-of-cell time per day than the first group had.
Whereas some of the inmates' psychological health deteriorated over the course of the study, this was generally not the case, even among inmates in solitary confinement. "We were surprised that only a small number of inmates in segregation got clinically worse," Metzner told Psychiatric News.
Iran's election overseers removed potential wild-card candidates from the presidential race Tuesday, blocking a top aide of outgoing President Mahmoud Ahmadinejad and a former president who revived hopes of reformers.
Their exclusion from the June 14 presidential ballot gives establishment-friendly candidates a clear path to succeed Ahmadinejad.... It also pushes moderate and opposition voices further to the margins....
The candidate-vetting group is called the Guardian Council.
Many US States have a similarly undemocratic system for choosing judges. A commission, unaccountable to the people and typically dominated by the state bar either outright or as a practical matter, approves a short list of candidates. The person who actually is accountable to the people, the governor, gets the same kind of lesser of evils (but not by much) choice that the people of Iran will get for their president.
The selection commission serves the same function as the Guardian Council. It makes sure that the Great Unwashed, through the person they elected, do not choose any candidates of insufficient ideological purity. The Orwellian name for this system is "merit selection."
Judicial Watch filed a Freedom of Information Act request seeking disclosure by the Central Intelligence Agency of 52 post-mortem images of Osama bin Laden. The agency refused on the ground that the images were classified Top Secret. Judicial Watch sued, and the district court granted summary judgment for the agency. We affirm because the images were properly classified and hence are exempt from disclosure under the Act.
The Supreme Court's jurisprudence on retroactivity of court decisions (as opposed to statutes), is less than crystal clear, and one might make a reasonable argument on the merits that this retroactive application crosses the fuzzy line. Under Congress's 1996 reform of federal habeas corpus (AEDPA), though, that is not the question for the federal court. The Michigan state courts decided the merits question, adversely to Lancaster. "To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on 'an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.' Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 12-13)."
Where the merits question is close, the AEDPA question is easy. The state court decision was well within the bounds of "fair minded disagreement." The Sixth Circuit decision to the contrary was beyond wrong. It was lawless.
Ben Boychuk has this article in the City Journal on the brazen theft of his expensive new laptop from beneath his fingers at a Starbucks in Fontana.
It isn't easy looking at a photo lineup. But one mug shot was unmistakable. I paused for a long moment, and I must have had a strange look because the officer asked if I recognized someone. "Yes," I said. "That's the driver." Of all the forlorn faces staring up at me, his was the only one smiling.
"He was probably smiling because he knew he got one over on you with your computer," the officer said.
"I guess so. But why would he be smiling now, when he's under arrest?"
Well, at least they dumped the Roman numerals.
Update: According to the listing at Amazon, the book will actually be available for purchase on May 27.
Court to Rule on Mississippi Murderer's Second Conviction: A Mississippi man who had his execution for the 1992 murders of two college students stayed by the state Supreme Court earlier this month will receive a ruling on his post-conviction claims for two other murders in late June. AP reporter Jack Elliott writes that Willie Jerome Manning was within hours of execution on May 7th when the state high court issued a stay to allow a DNA test Manning claims will exonerate him. His conviction and death sentence for the 1993 murders of two elderly woman were upheld on direct appeal. A judge's ruling on his post conviction claim that prosecutors withheld evidence will be announced on June 28.
"F*** America, Boston Marathon Suspect Wrote in Boat."
As police searched for him, and as he lay bleeding in his boat hideout, Boston Marathon bombing suspect Dzhokhar Tsarnaev wrote "F*** America" on the side panel of the boat, police in Massachusetts told ABC News.
Officers said they also discovered the phrase "Praise Allah" on the boat's side panels and several anti-American screeds, including references to Iraq, Afghanistan and "the infidels."
A BostonHerald.com story notes that Dzhokhar referred to the victims, including an eight-year old boy, as "collateral damage," echoing Timothy McVeigh's famous phrase.
With any luck, Dzhokhar will be joining Timmy real soon.
Hundreds of illegal immigrants with criminal records were released earlier this year as the Obama administration prepared for budget cuts, according to newly released data that challenged claims the program involved "low-risk" individuals ****Of the 2,226 detainees that were released in February, the department revealed, "622 have been identified as having some type of criminal conviction."
Down the page, the story relates:
Nelson Peacock, assistant secretary for legislative affairs, said ICE focused on [releasing] those that "posed no significant threat to public safety."
What makes me think that no "significant" threat means that those released are thought to be likely to break into someone's house other than Mr. Peacock's?
Lifelong? He has not always been so scrupulous about obeying God's will, such as "Honor your father and mother..." and "You shall not murder." Exodus 20:12-13. At least he didn't ask for sympathy because he is an orphan, the classic example of chutzpah.
I'm kind of surprised that Florida officials resisted as long as they did. This is precisely why Congress included prisoners in RLUIPA, for better or worse.
"The initial portrayal by the media has been one of a 'monster' and that's not the impression that I got when I talked to him for three hours," [defense counsel Craig Weintraub] said to Cleveland's WKYC-TV. "I know that family members who have been interviewed by the media have expressed that as well."
Craig argues that Ariel is a loving father who is committed to his daughter.
He is "extremely committed to the well being and positive future for his daughter, who he loves dearly. And if people find that to be a disconnect from what he's alleged to have done, then the people will just have to deal with it. We just know how he feels about his little girl."
There's the old story of the fellow who murders his parents and then pleads for mercy because he's an orphan, but Castro's defense team has topped that. He deserves mercy, you see, because he (allegedly) loves the girl who came into this world by means of his raping her terrified, chained, teenage mother.
OK, fine. I trust the comments section will be filled by those explaining how this unbelievably vile rendition is really just, ya know, defending the Constitution, etcetera. Have at it, gentlemen.