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