Chelsea King Killer Violated Parole but Avoided Prison:  At Sentencing Law and Policy, Doug Berman posts a link to a Los Angeles Times article describing how the man accused of killing Chelsea King violated his parole, but avoided being sent back to jail.  In his article, Richard Marosi explains that John Albert Gardner III violated parole in 2007 by living close to a school, but was not sent back to prison because he complied with relocation orders.  The California Department of Corrections and Rehabilitation released a statement yesterday explaining that while Gardner had several minor potential parole violations, the violation of the residency rule could have led to a hearing process with parole officials.  Todd Spitzer, a prosecutor, said the department has eased up on parole violators because of prison constraints. "They were ignoring public safety with one goal in mind: They were trying to solve the prison overcrowding."

Notable Criminal Petitions to Watch:  On SCOTUSblog, Erin Miller has posted its Petitions to Watch for the Supreme Court's March 19 Conference.  Miller provides links to seven cases that Tom Goldstein has deemed to have a reasonable chance of being granted, and three of them address areas of criminal law.  Moran v. United States (09-392) asks the Court to decide whether a Federal Rule of Criminal Procedure, which permits a defendant to comment on "matters relating to an appropriate sentence," entitles a defendant to be notified prior to the pronouncement of sentence that sex offender special conditions of supervised release are contemplated; Kentucky v. Cardine and Curry (09-419) addresses whether the Double Jeopardy Clause bars the retrial of a defendant after the trial court sua sponte declares a mistrial absent manifest necessity and the defendant does not object prior to the actual discharge of the jury; and Beard v. Thomas (09-527), an AEDPA capital case, asks whether Thomas was prejudiced by the absence of supposedly mitigating evidence, when the mitigating nature of that evidence is disputed and he refused to allow any mitigation evidence.

Some Comments on Justice Thomas's Silence:  February 22, 2006, marked the last time Thomas asked a question during oral argument, and on February 22, 2010, Tony Mauro wrote an article on those criticizing Justice Thomas's silence.  Yesterday, Linda Greenhouse joined their ranks with her opinion piece on New York Times' Opinionator blog.  Mauro's post discusses a recent Florida Law Review article, Why Justice Thomas Should Speak at Oral Argument, by David Karp, that argues "[b]y removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court."  Mauro goes on to explain that Justice Thomas may remain silent out of respect for the advocates, and to give them a chance to talk.  Steffen Johnson of Winston & Strawn in Washington, an advocate who appeared before the Court in Holmes v. South Carolina, said Justice Thomas' style "reflects humility on his part."

Recently I discussed the revelation that DOJ has brought on board seven lawyers who previously represented accused members of al Qaeda. 

I was in error.  It wasn't seven.  It was eight.  The eighth has a really nice office, in that he is the Attorney General.

It has now come out that Eric Holder worked on an amicus brief in the Padilla case.  As Powerline reports,

The Justice Department has admitted that Eric Holder failed to tell Congress during his confirmation process that he had contributed to a legal brief which argued that the President lacks authority to hold Jose Padilla, a U.S citizen declared an "enemy combatant," indefinitely without charge. The Justice Department has also acknowledged what is obvious -- that "the brief should have been disclosed as part of the confirmation process."

DOJ contends that the failure to disclose was not intentional. It says that "In preparing thousands of pages for submission, it was unfortunately and inadvertently missed."

Hello??

 

Revised Supreme Court Rules:  Yesterday, SCOTUSblog writer Adam Schlossman reported that on February 16, 2010, the Supreme Court enacted its revised Rules of the Supreme Court.  The updated rules reduce the number of words allowed in a merits reply brief from 7,500 to 6,000, and change Rules 26 and 34.1 to clarify what must be included on the cover of the Joint Appendix.  The new rules also require the counsel of record to include an e-mail address on the cover of every document filed.  The Court also made changes to Rule 37, clarifying that only an attorney admitted to practice before the Court is permitted to file an amicus curiae brief and that extensions of time for amicus curiae briefs at the merits stage will not be entertained. Other minor changes can be found in the Court's official memorandum.

A Study on "Last Words":  In June 2009, Justice Quarterly published Of Guilt, Defiance, and Repentance: Evidence from the Texas Death Chamber, an empirical article statistically examining what an inmate says right before he is executed.  The study, conducted by Stephen K. Rice, Danielle Dirks and Julie J. Exline, examined inmates' final statements for the period between December 1982 and early June 2005.  The authors found that before January 12, 1996, 36% of the last statements admitted responsibility and 32% expressed sorrow or sought forgiveness from the victim's family.  Only 10% of the last statements were coded as criticizing the legitimacy of the death penalty.  On January 12, 1996, Texas began allowing family and friends of homicide victims to attend executions.  After that date, 43% of inmates admitted guilt during their last statements 41% expressed repentance and a desire for forgiveness. (h/t Ian Ayers' post on New York Times' Freakonomics Blog)

House Impeaches Federal Judge Porteous:  At Wall Street Journal's Law Blog, Ashby Jones reports that the House of Representatives has unanimously voted to impeach New Orleans federal judge Thomas Porteous.  Porteous had been accused of of soliciting money from lawyers who appeared before him.  According to a Times-Picayune article by Bruce Alpert, Porteous is the 15th judge found to have committed "high crimes and misdemeanors," the Constitution's criteria for impeachment.  Representative Adam Schiff (D-Calif.) stated, "Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years."  On Volokh Conspiracy, Eugene Volokh posted the articles of impeachment.

Data From the Sentencing Commissions Quarterly Update:  At Sentencing Law and Policy, Doug Berman sees a "slow migration away from guidelines" in the U.S. Sentencing Commissions 2009 Final FY09 Quarterly Update.  Berman reports that in FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases.  In 2% of all the cases, judges ordered an above-guideline sentence and initiated a below-guideline sentence in nearly 16% of all cases.  The Sentencing Commissions data from FY 2008 wasn't too different.  In 2008, prosecutors sponsored a below-range sentence in approximately 25% of its cases and judges initiated a below-range sentence 13.4% of the time.

Body-Armor For Felons?: San Francisco Gate writer Bob Egelko reports on the California Attorney General's appeal to at the California Supreme Court to examine a ruling throwing out a state law that bans anyone who has been convicted of a violent felony from owning body-armor.  The law, passed in 1998, was intended to protect police against flak-jacketed criminals.  The law makes it a crime, punishable by up to three years in prison, for felons with violent offenses on their record to possess or wear body armor.  State regulations define body armor as apparel that provides "ballistic resistance to the penetration of the test ammunition" for certain types of guns, a standard also used to certify armor for police.  In December 2009, a state appeals court in Los Angeles ruled that the law was unconstitutional because its terms were so vague that the average person wouldn't know when he or she was violating it.  "Allowing criminals and gang members to arm themselves with body armor makes no sense, and I'm confident the [California] Supreme Court will reverse this wrong-headed decision," Attorney General Jerry Brown said Wednesday.  No hearing date has been set for the case.

White Supremacist Blogger Receives Second Mistrial: New York Law Journal writer Mark Fass reports on the second mistrial of blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges.  Turner was arrested last June after posting blog entries stating that the three federal judges "deserve to be killed" for their decision upholding handgun bans in Chicago and Oak Park, Illinois.  At the end of their deliberations Wednesday, the jurors sent a note to the judge stating that another day of deliberations would be useless.  This was the third time they had stated that they believed a unanimous verdict was impossible.  The mistrial constitutes a serious defeat for the U.S. Attorney's Office for the Northern District of Illinois, which prosecuted the case.  Following the first mistrial in January, in which the threatened judges, Judges Richard Posner, William Bauer and Frank Easterbrook, did not appear as witnesses, a juror told the reporters the jury deadlocked due to a lack of testimony.  This time, all three judges flew to New York and took the witness stand.  Out Blog Scan reported on Judge Easterbrook's testimony and can be found here.  After this second mistrial, an attorney for Turner called the case a "victory." Another article on the story by the Associated Press can be found here.

What a difference a year makes. There are three news stories about death penalty legislation in my Google Alerts email this morning, and all three are about state legislatures considering expanding their death penalty laws. They are noted after the jump.

So what's going on here? Has public opinion on the death penalty shifted dramatically from last year, when repeals and contractions were on the table, to this year, when expansion is on the table in multiple states? No. Polls consistently report that support has been steady. The difference is that political tides have changed for unrelated reasons, producing a shift in which legislators feel confident of reelection and which feel uneasy.

An Umpire Strikes Back:  Yesterday's Above the Law "Quote of the Day," featured Chief Justice Roberts, and his remarks revisiting the exchange between President Obama and Justice Alito during the State of the Union address.   According to an Los Angeles Times article by David Savage, Chief Justice Roberts told University of Alabama law students that he found it "very troubling" to be surrounded by loudly cheering critics at President Obama's State of the Union address.  During the program's Q&A, the Chief Justice was asked about the incident, he stated that the criticism didn't bother him, "[a]nybody can criticize the Supreme Court. . . . I have no problem with that."  He objected to the criticism in such a public setting.  The Chief Justice also commented on the politics surrounding the State of the Union, saying "[t]o the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we are there."  At Volokh Conspiracy, Eugene Volokh comments that if the Justices don't want to attend, "the Congress Provision of the State of the Union Clause should serve as an adequate excuse."  At Crossroads, Jan Crawford comments on White House Press Secretary Robert Gibbs' response to the Chief Justices remarks.  She writes, "[f]or the life of me, I just don't get why the White House continues to try to pick a fight with the Supreme Court."

Another Hearing on Texas's Death Penalty:  Doug Berman posts on Sentencing Law and Policy that Texas District Court Judge Fine is "reconsidering [his] declaration that state's death penalty is unconstitutional."  An AP piece by Juan A. Lozano reported that Judge Fine took back his controversial ruling yesterday, and has scheduled a hearing for next month to hear evidence on the issue.  Judge Fine has stated that he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person.  He has asked Harris County defense attorneys and prosecutors to submit motions on the due process issue by April 12.  An evidentiary hearing is scheduled for April 27, when testimony on whether innocent people have been executed in Texas is set to be presented.  At Homicide Survivors, Dudley Sharp provides his thoughts on Judge Fine's decision.

More on Criticizing Lawyers Who Represent Detainees:  At Volokh Conspiracy, Orin Kerr responds to Andrew McCarthy's comments on pro bono lawyers for Guantanamo detainees.  Kerr does not agree with McCarthy's assertion that lawyers "assist[ed] the enemy . . . against the American people during wartime."  His post explains why.  Kerr's post addresses McCarthy's claims that "only criminal defendants" have a right to counsel, and discusses McCarthy's comments on the Boston Massacre.  At Wall Street Journal's Law Blog, Ashby Jones rounds up coverage on the fallout from criticisms like McCarthy's.  He focuses on editorials and articles written about the Keep America Safe video released last week.

"Mistaken Defenses to Goodwin Liu":  On NRO's Bench Memos, Ed Whalen is "pleased to report" criticisms of his blog posts on the nomination of Goodwin Liu are "ill-founded."  

Kent's piece, "Shoddy and Dangerous," introduces us to a controversy swirling around two enormously important questions:  Who should serve in the Department of Justice, and to what extent can lawyers properly be held to account for positions they took in a representative capacity in their prior, private practice.

These questions were first raised by the organizaion Keep America Safe, which asked the Justice Department to identify lawyers it has employed who previously represented persons accused of supporting al Qaeda terrorism.  Initially, it is my understanding, the Department refused, but since has provided seven names.  Keep America Safe now designates these as "the al Qaeda Seven."  For the reasons that follow, I think that designation is unfair on the present record  --  but that doesn't mean raising the issue was unfair.

The Supreme Judicial Court of Massachusetts upheld the state's gun locking requirement today in Commonwealth v. Runyan, SJC-10480, distinguishing D.C. v. Heller on two grounds.

First, the Massachusetts court holds that the Second Amendment does not apply to the states. That issue is presently before the Supreme Court in McDonald v. Chicago.

Second, the court distinguishes the Massachusetts law from the more restrictive D.C. law.

The latter holding would make a simple "vacate and remand" inappropriate in the event the Supreme Court decides in favor of incorporation in McDonald.

Denise LaVoie has this story for AP.

Judson Berger reports on FOXNews.com,

The Senate Judiciary Committee has postponed the hearing for a controversial Court of Appeals nominee after the panel received a letter from a home-state prosecutor blasting the candidate as a judicial loose cannon and after Republicans raised concerns about bias in favor of sex offenders.

U.S. District Court Judge Robert Chatigny gained notoriety in 2005 for his role in trying to fight the execution of convicted serial killer and rapist Michael Ross, also known as The Roadside Strangler, whom Chatigny had described as a victim of his own "sexual sadism."

When it comes to the goals of representation, the rules are quite clear: the client is in charge. See, e.g., ABA Model Rule of Professional Conduct 1.2. Michael Ross was a "volunteer" who decided to waive his appeals and receive his punishment. His lawyer's duty was to achieve the client's goal. Whenever someone "volunteers," the anti side generally runs in and claims he must be crazy, using a variation of the original Catch-22. But in fact waiving appeals can be a rational choice. It was in Ross's case, and the lawyer did the right thing. Judge Chatigny nonetheless threatened the lawyer with loss of his license in an appalling display of judicial intemperance.  From the story:

"I've never seen conduct like this," said a Republican source. "I'm shocked that the White House vetted this guy ... and still put him up for a judgeship."

Also appalling is Judge Chatigny's assertion that sadism is "clearly mitigating" in a capital case. Not everything that has a code in the DSM is mitigating. Antisocial personality disorder is a code for behavior that is aggravating. Describing a sadistic rapist and murderer as a "victim" indicates a seriously skewed view of criminality. Sadism is defined by urges, not by an inability to resist them. A person who has an urge to do things the rest of us would not want to do is nonetheless fully responsible for his voluntary choice to act on them.

"The American Tradition of Zealous Representation of Unpopular Clients":  John Schwartz of The New Times reports on the criticism certain Justice Department lawyers have faced over their loyalty.  The lawyers once represented detained terrorist suspects, and an  advocacy organization in Washington has used this to question the lawyers' patriotism.  Attacks on these lawyers have drawn commentary from conservative legal scholars who believe that questioning the lawyers' loyalty violates the American legal principle that even unpopular defendants deserve a lawyer.  Benjamin Wittes, a senior fellow at the Brookings Institution, issued a joint letter signed by former Republican administration officials and other conservative figures, criticizing attacks, claiming they were "unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."  Richard A Epstein, a law professor, finds it "appalling" that people equate working on detainee cases with a lack of patriotism.  David M. McIntosh, a former member of Congress and a founder of the Federalist Society, thinks sometimes it might be legitimate to examine the agenda of a lawyer.  "Was the person acting merely as an attorney doing their best to represent a client's case," he asked, "or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?"  If the commitment to the case is ideological, he said, it is reasonable to ask, "Is that the best attorney for the Justice Department?"  Kent also linked to Michael Mukasey's Wall Street Journal article on DoJ criticism today.

Former AG Mukasey is getting pretty close to being a regular columnist at the WSJ. Maybe he should be. In today's piece, he notes parallels between the attacks on John Yoo and Jay Bybee and the attacks on current DoJ lawyers who represented Guantanamo detainees. "This is all of a piece, and what it is a piece of is something both shoddy and dangerous."

A third jury has decided that serial killer Rodney Alcala should be sentenced to death for five murders, including that of a 12-year-old girl. Gillian Flaccus has this story for AP. The previous judgment was overturned by the Ninth Circuit. The story says the jury "recommended" death, but in California the jury returns a verdict, not a recommendation.

Jay Reeves reports for AP:

U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama's State of the Union address was "very troubling" and the annual speech has "degenerated to a political pep rally."

While looking for something else, I came across a transcript of Professor John McAdams' testimony to the Senate Judiciary Committee, Senate Hearing 109-540, Feb. 1, 2006. I've copied it in full after the jump. Some of the numbers are a bit out of date, but the main points remain valid.

Constitutional Right to Informational Privacy: Today's News Scan linked to Bob Egelko's report on the Supreme Court's grant of certiorari in NASA v. Nelson. Yesterday, Eugene Volokh posted his thoughts on the case, comparing the background checks conducted by NASA to criminal investigations by police. Volokh explains that in NASA the Ninth Circuit concluded it was unconstitutional for the government to ask people who knew NASA employees broad questions. Questioning "references, employers, and landlords" presumptively violated a constitutional right to privacy discussed by the Supreme Court in Whalen v. Roe. Volokh believes the ruling's implications are "stunningly broad." He writes that the Ninth Circuit's suggestion, that the right to privacy is violated when an officer asks broad questions, will limit an officer's ability to ask people broad questions about what they know of a potential suspect.

Debunking The Belief That "We Execute Innocent People": At Homicide Survivors Dudley Sharp posts on Texas District Court Judge Fine's decision to clarify his ruling regarding the death penalty in Texas. Sharp finds Judge Fine's clarification that his ruling was " . . . limited only to the due process claim that 37071 has resulted in the execution of innocent people . . . ," curious when "(1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process." Last Friday's Blog Scan reported on the ruling, and Kent's comments are available here.

Abandoning the Exclusionary Rule: At CrimProf Blog, Kevin Cole links to Todd E. Pettys' SSRN article, Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule. Pettys' argument is that allowing the exclusionary rule in cases involving juries infringes upon jurors' deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court's deterrence objectives. He believes it might be time to abandon the exclusionary rule, and suggests that the Supreme Court might already be willing to abandon the rule, depending on whether Congress enacts laws that will strengthen the threat of financial liability for Fourth Amendment violations. Two Volokh Conspiracy bloggers also have posts on the exclusionary rule. Orin Kerr continues his discussion of whether Herring v. United States establishes a good faith exception to the exclusionary rule, this time distinguishing Illinois v. Krull, a case where the police relied on a statute which had not been held unconstitutional at the time of the search. Eugene Volokh discusses Texas's statutory exclusionary rule, applied in Wilson v. State. He is surprised Texas has a statutory exclusionary rule.

Juan Lozano reports for AP,

A Texas judge who came under criticism for his ruling declaring the death penalty unconstitutional took back his controversial decision on Tuesday.

However, Judge Kevin Fine said he still wants more information on whether the state's death penalty statute is unconstitutional because it allows for the possible execution of an innocent person.

*                              *                             *

Fine said there was no precedent to guide him in resolving the issues raised by defense attorneys in a case involving a man accused of fatally shooting a Houston woman and wounding her sister during a robbery in front of their home in June 2008.

Has this guy been asleep since 1972 and come out yawning like Rip Van Winkle? These issues have been debated ad nauseam.

Practical to Keep Two Options for Terror Trials: New York Times writers Charlie Savage and Scott Shane report on the idea to retain two separate systems for trying foreign terrorism suspects: military commission and civilian courts.  While politicians argue for one over another, former counter-terrorism officials are warning that the political debate has lost touch with the pragmatic advantages of keeping both the civilian and military systems available.  There are problems with a commissions-only policy: some nations will not extradite terrorism suspects or provide evidence to the United States except for civilian trials; federal courts offer a greater variety of charges for use in pressuring a defendant to cooperate; military commission rules do not authorize a judge to accept a guilty plea from a defendant in a capital case; and the military system is legally untested, so any guilty verdict is vulnerable to being overturned on appeal.  Those in favor of military commissions argue that critics are exaggerating any problems with commissions and overlooking their advantages.  Congress overhauled military commissions last year to increase defendant's rights, and the United States may be able to persuade foreign countries to extradite suspects to military tribunals.  There might be value to keeping both systems.  Juan C. Zuarte, former deputy national security adviser for combating terrorism stated, "We shouldn't inadvertently handcuff ourselves by taking [civilian terrorism trials] completely out of our tool kit."

Getting the Last Word: New York Times writer Adam Liptak reports on the growing frequency of oral dissents being delivered from the Supreme Court bench.  "Dissenting from the bench," a new study to be published in Justice System Journal, contends that dissenting is a sort of nuclear option that "may indicate that bargaining and accommodation have broken down irreparably." There is, of course, an element of stagecraft to oral dissents.  If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.  Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.  "In 15 years on the bench," he said, "I have never read a dissent from the bench, but today's decision requires that I do so." Justice Thomas had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

Federal Background Probes Come Into Question: San Francisco Gate writer Bob Egelko reports on the Supreme Court's decision to hear NASA v. Nelson, and decide how far the government can go in looking into the background of NASA scientists and engineers.  The court granted the Obama administration's request to hear an appeal of a lower-court ruling that barred NASA from conducting far-reaching inquiries into the lives of 28 workers at the Jet Propulsion Laboratory in Pasadena.  They passed routine background checks when they were hired, but were ordered to undergo further reviews under a 2004 homeland security directive by President George W. Bush.  28 employees refused to submit to checks and were fired.  The Ninth Circuit Court intervened in October 2007, blocked the firing and ruled that the inquiries were too intrusive and unrelated to national security.  "The decision prevents the routine background checks of many government contract employees and it casts a constitutional cloud over the background-check process the government has used for federal civil service employees for over 50 years," Justice Department lawyers said in seeking Supreme Court review.  The Justices will hear the case in the term that starts in October, with a ruling due by June 2011.

Looks like crime is a major issue in the election campaign under way in Britain. Crime is notoriously difficult to measure, and some variation among different measures is par for the course, but the variations being thrown around over there are wild. Roland Watson has this story in Times Online (London).

Chris Grayling, the Shadow Home Secretary,* said violent crime had risen 70% since 1998-99. He was taken to task by the head of the UK Statistics Authority, Sir Michael Scholar (great name for a stats chief), who said a change in reporting methods produced a false bump. The British Crime Survey says violent crime dropped 41% in the last 12 years. Mr. Grayling then asked the House of Commons library to look into it, and they estimated a 44% increase.

In Taylor v. Louisiana (1975), the Supreme Court constitutionalized what had been up to that point a policy decision made by some courts and legislatures, including Congress, that juries should be drawn from a cross-section of the community. Taken to its logical extreme, this would require racial quotas for jury venires, with the jury commissioner taking affirmative action to meet the quota of minority jurors if neutral selection policies did not naturally produce the supposedly needed numbers. But we don't take it to that extreme, do we?

This AP story from Georgia reports that a murder defendant wants his trial postponed until after the next census to get the benefit of altered county demographics. The story says (emphasis added),

Jury pools in Clayton County, like many other jurisdictions, are drawn from voter registration lists, driver's license data and utility records. The list is then balanced by gender and race using the Census.

Now, every citizen has a duty to serve if summoned, but one ought not be burdened with this duty more often than others by reason of one's race. That would be the effect if people who belong to groups with a higher percentage of ineligibles or no-shows are oversampled to make up the difference.  If the cross-section rule really required that, it would collide head-on with the Equal Protection Clause. In the event of such a collision, equal protection should win. For one thing, it really is in the Constitution, unlike Taylor's complete fabrication.

Business Leaders Take On Prison Reform:  On Sentencing Law and Policy, Doug Berman posts an editorial from the Detroit Free Press describing the Detroit Regional Chamber's plan to reduce corrections costs as part of an overall effort to restructure state government.  The Chamber wants to reduce Michigan's prison spending by $500 million and has made seven recommendations for cutting costs.  First, the Chamber would like to make the parole board a body of professional civil servants replacing the current board of political appointees, charged with enacting and enforcing parole guidelines which are score all inmates for parole and respect the proper role of the sentencing judge.  The Chamber also proposes re-creating a "good time" system that replaces disciplinary credits with credits for accomplishments that increase the likelihood of success upon release, and opening up food service to competition by allowing competitive bidding from the private sector.

No Hearing Day Set for Ninth Circuit Nominee:  At Blog of Legal Times, David Ingram reports that the debate is heating up over Ninth Circuit nominee Goodwin Liu, and that a hearing date for Liu has not been announced, even though a hearing date has been set for Judge Robert Chatigny, nominated on the same day as Liu.  Ingram's post describes the efforts of Liu's critics and supporters, including the efforts of one of Liu's law students to gather material in support of Liu's nomination.  Ingram writes that the debate could heat up further now that Liu's answers to a Senate questionnaire have been published. 

Should President Obama Consider a Protestant?  Today, Washington Post staff writer Robert Barnes wonders whether President Obama's next Supreme Court nominee needs to be a Protestant.  Barnes reports that if Justice Stevens does retire at the end of this term, the Supreme Court would for the first time in its history be without a justice belonging to America's largest religious affiliations.  Catholics have held a majority on the nine-member court since 2006 and the confirmation of Justice Samuel A. Alito Jr. Justice Sonia Sotomayor made it six last summer.  Justices Breyer and Ginsburg are Jewish.  While religion may not play a role in the President's decision, one former Justice has express her views on the issue.  Last fall, when Justice O'Connor was asked about the need for geographic diversity on the court she stated, "I don't think they should all be of one faith, and I don't think they should all be from one state."

Neuroimaging and Competency to be Executed:  CrimProf Blog editor Kevin Cole posts a link and the abstract to New York Law Professor, Michael L. Perlin's new SSRN article Neuroimaging and Competency to Be Executed after Panetti.  In the abstract, Perlin writes that scholars are questioning the impact of neuroimaging evidence on capital punishment trials, wondering whether reliance on such testimony can actually make "sentencing more rational and humane."  He writes that after Panetti v. Quarterman recognized a constitutional right to make a showing that a defendant's mental illness "obstruct[ed] a rational understanding of the State's reason for his execution," competency-to-be-executed hearings may have to become more sophisticated.  Perlin then explores what impact neuroimaging testimony will have on future Panetti hearings.   

Chelsea King Murder Suspect May Be a Serial Killer:  Richard Marosi and Julie Cart of the Los Angeles Times report on the recent discovery of the human skeletal remains of  Amber Dubois, a 14-year-old girl who disappeared one year ago.  When a registered sex offender was arrested for the murder of Chelsea King near San Diego, CA, police refocused their attention on the Dubois case.  Amber's remains were found over the weekend near Pala, CA, and were identified through dental records.  The suspect, John Albert Gardner III, is charged in the slaying of King, and police are looking for possible links that could connect Gardner to Amber.  Gardner lived only a couple of miles from where Amber vanished near Escondido High School, and spent weekends at his mother's house near the lake where Chelsea King was found.  Police are not disclosing any information that led investigators to the remains, however, the tip they received did not come from Gardner.

"Court Won't Disturb Ban on Death Row Interviews":  The Associated Press reports on today's Supreme Court decision to deny an appeal from death row inmate, David Paul Hammer, regarding a federal prison policy that prohibits death row inmates from giving face-to-face interviews to reporters.  Hammer argues that the policy is an unconstitutional violation of his free speech rights.  The policy was adopted after Timothy McVeigh, the Oklahoma City bomber, appeared on "60 Minutes" in 2000.  SCOTUSblog's March 5th Petitions to Watch post provides links to Hammer's petition and the Seventh Circuit's opinion. 

Sex Offender Not Breaking Laws by Living Near School:  Linda Davis of The Oakland Tribune reports that a registered sex offender and parolee living less than 2,000 feet from an elementary school in Piedmont, CA has stirred up concern among the community.  James Donnelly, 71, was recently released from federal prison for possession of child pornography, and registered at the police department in Piedmont.  In addition to his federal conviction, Donnelly was also the subject of a federal investigation into child sex tourism.  Residents are concerned with Donnelly's presence in their community and are asking why he is being allowed to live so close to an elementary school.  According to Piedmont's acting Chief John Hunt, local police cannot arrest Donnelly based on his place of residence.  Donnelly is not listed on the Megan's Law sex offender web site because he was convicted of a federal crime, not a state crime.  In addition, although Jessica's Law prohibits any convicted sex offender from living within 2,000 feet of a school or park, California does not have a penalty associated with violating the provision.  Gary Shih also blogs on the story for the New York Times.

Maryland v. Shatzer May Ease Prosecution of Chandra Levy's Killer: Last Friday, Michael Doyle reported for McClatchy Newspapers that the Supreme Court's decision in Maryland v. Shatzer has eased one of the burdens confronting prosecutors in the high-profile case.  Ingmar Guandique is accused of killing Chandra Levy, and his attorneys have sought to block prosecutors from using information gained during a September 2008 meeting between Guandique and three Washington detectives.  According to Doyle, Shatzer "gives prosecutors potentially more opportunity to use Guandique's unmediated words and behavior against him." 

Attempted Suicide on Death Row? Can a condemned murderer get a stay of execution by attempting suicide? As strange as that sounds, it may have happened in Ohio, according to this AP story by Matt Leingang. Lawrence Reynolds was found unconscious of an overdose of pills just hours before he was scheduled to be executed.  Gov. Strickland issued a 7-day reprieve.

The U.S. Supreme Court today decided a case under the federal Speedy Trial Act, Bloate v. United States, No. 08-728. This is a statutory interpretation case applicable only to federal prosecutions. The Sixth Amendment's Speedy Trial Clause is not mentioned.

The lineup is unusual, with Justices Alito and Breyer in the dissent and the other seven in the majority. Justice Ginsburg wrote a separate concurrence to emphasize that the defendant does not necessarily get the windfall of dismissal for delays that are mostly of his own doing. More needs to be decided on remand.

Most interesting to me is that the Court reads that statute in a straightforward manner and is not willing to bend it to achieve the result that I suspect most of the Justices think is right. In this case, there are other paths to that result as noted by both the majority and the concurrence, but that doesn't seem to be the decisive point for them. The statute says what it says, and the time automatically excluded for pretrial motions is only from motion to decision under the paragraph specifically addressing that issue, 18 U.S.C. §3161(h)(1)(D), not the more general language of other paragraphs. "Had Congress wished courts to exclude pretrial motions preparation time automatically, it could have said so." (n. 13)

This is a hint, though no more than that, of a favorable disposition toward the prosecution's argument in the AEDPA statute of limitations case, Holland v. Florida. That argument is also based on a straightforward reading of the statute, with a premise that Congress prescribed in detail the exceptions to the general rule and implicitly decided not to allow courts to make up additional exceptions. CJLF's brief is here.

California has started releasing criminals early because, so it is said, the state is out of money to fund the prison system.  Only now it turns out that the same force that has driven the state to near-bankruptcy  --  the free spending legislature  --  is considering a bill that would allocate taxpayer dollars to track animal abusers.

I swear I'm not making this up.  Here are the first few paragraphs of the story, as reported by Fox News:

The California state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

Animal abusers would be tracked like sex offenders if California lawmakers have their way. 

The state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

The registry, which under the law would be posted on the Internet, wouldn't just include names. The bill calls for photographs, home addresses, physical descriptions, criminal histories, known aliases and other details to be made public. 

Animal abuse is a sick, heart-wrenching and disgusting crime, as anyone will agree who has a dog at home (I have the world's most pig-headed Basset hound).  But to propose new and significant spending on an animal abuse registry while releasing criminals on grounds of insolvency sounds like something that could only happen in.............California.

Selecting a Federal Judge:  At SCOTUSblog, Erin Miller posts an account of former White House counsel Gregory Craig's lecture at Georgetown University.  Last year, Craig led the search for Justice Souter's replacement, and according to Miller, Craig's lecture offered insider insights on President Obama's selection of federal judges.  Miller reports that Craig refuted  stories that ethnic and gender diversity factors were an issue late in the Supreme Court selection process by stating that "simply wasn't part of the discussion."  Craig stated that the President had already taken diversity into account in his earliest suggestions, and Craig believes that the President will take diversity into account in the event of any new vacancy.

McDonald Post-Argument Reactions:  The Federalist Society has posted a post-argument SCOTUScast for McDonald v. Chicago.  The discussion is moderated by Northwestern University School of Law George C. Dix Professor Steven Calabresi, and features comments from two authors of amicus briefs in the case.  Clark Nielly, a Senior Attorney at the Institute for Justice, was the Counsel of Record in the Institute for Justice's brief in support of McDonald.  Marquette University Law School Professor J. Gordon Hylton also signed onto an amicus brief.  He joined the Brief of Thirty-Four Professional Historians and Legal Historians in support of Chicago.  Tony Mauro also reports on Blog of Legal Times that Douglas Kmiec, the U.S. Ambassador to Malta, and former Dean of Catholic University of America's law school, has weighed in on Tuesday's oral arguments from the European republic in the Mediterranean Sea.  

Texas State Judge Declares State's Death Penalty Unconstitutional (or Maybe Not):  At Sentencing Law and Policy, Doug Berman posts a link to a Houston Chronicle article by Brian Rogers reporting that state District Judge Kevin Fine granted a pretrial motion to declare the death penalty unconstitutional.  The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty was unconstitutional for their client, John Edward Green Jr.  But, according to Mark Bennett, the author of Defending People, "Brian Rogers's report is not quite accurate. In fact, it's far enough from accurate to be totally false."  Judge Fine actually denied defendant's motion to hold the death penalty unconstitutional (denial available here), and granted the defendant's Motion to Hold that Texas Code of Criminal Procedure Article 37.071 is Unconstitutional.  Criminal Procedure Article 37.071 addresses procedure in capital cases, and is a far cry from declaring the death penalty unconstitutional.  Ashby Jones of Wall Street Journal's Law Blog reports that by granting the motion Judge Fine agreed with defendant's argument that the law providing for the procedures surrounding instructions to a jury in the Texas Code of Criminal Procedure violated the Eighth and 14th Amendments.  According to Rogers' article, not even University of Houston Law Center Professor Sandra Guerra Thompson believes Fine's decision would survive appellate review. 

Will Obama Opt for Military Tribunals for 9/11 Mastermind?:  Jennifer Loven of the Associated Press reports that the Obama administration may opt for a military tribunal for Khalid Sheik Mohammed and other known terrorists.  Attorney General Eric Holder has pushed for Mohammed to be tried in a civilian court, but because of costs, security, and logistical concerns, he has faced strong opposition and, after the attempted Christmas airline bombing, the Obama administration's terrorism policies were widely scrutinized.  CNN reporter Suzanne Malveaux adds that congressional leaders are arguing that Mohammed should not be entitled to all of the protections and privileges that a defendant receives in a civilian court.  Senator Joe Lieberman said to try Mohammed and other terrorists "as common criminals, giving them the constitutional rights of American citizens in our courts, is justice according to 'Alice in Wonderland.'"  No recommendation has been given to the President, but there's hope for a decision to be made before March 18.  Bill Otis also reports on the proposal. Fox News has this story by Catherine Herridge and Major Garrett.

Pentagon Shooter Harbored Resentment for American Government:  Associated Press writers Matt Apuzzo and Eileen Sullivan report on yesterday's shooting at the Pentagon, and provide new information about the shooter.  Last night, John Patrick Bedell, a 36-year-old American citizen, opened fire on two Pentagon police officers at the subway station across the street from the Pentagon building.  Officers quickly responded and fired back, fatally shooting the gunman.  Newly discovered information suggests that Bedell had a long-held frustration and distrust for the Federal government.  Internet postings and blogs suggest that het may have resented the military and had significant doubts about the truth behind the 9/11 attacks.  An investigation continues, and information on the shooting can be found here. SF Chron writers Jaxon Van Derbeken and Victoria Colliver have this profile of  Bedell and his history of mental illness.

Nevada Supreme Court Denies "Schizophrenic's" Appeal:  Martha Bellisle reports on the Nevada Supreme Court's decision to reject Tamir Hamilton's appeal.  Hamilton was convicted and sentenced to death for the rape and murder of Holly Quick.  He was sentenced to death for the murder, and two consecutive terms of 10 years to life in prison for the rape.  Weeks before the Quick killing, Hamilton had also raped another female.  Hamilton appealed his conviction, claiming there was a racial bias in selecting the jury because the judge allowed the prosecutor to exclude the only two black prospective jurors.  Yesterday, the Nevada Supreme Court said the reasons for excusing the jurors were not "pretexts for racial discrimination."  Hamilton also claimed that executing him would violate the Eighth Amendment because he is an "incurable schizophrenic."  The court responded, "Hamilton fails to demonstrate that he is incompetent to be executed and provides no authority indicating that schizophrenics as a class cannot be executed."  The decision, Hamltion v. State of Nevada, can be found here.

It dares not speak its name, that is, because its name is murder.

That is the demonstrated cost of prison sentences that are too short to persuade, or force, offenders to refrain from returning to crime.  The case in point, and in the news, is that of Chelsea King, a high school student who was raped and murdered this week.  A fellow named John Gardner has been arrested for the crime.  At present, there appears to be little realistic doubt of his guilt.

The twist in the case is that Gardner pleaded guilty in 2000 to molesting a 13 year-old girl.  Instead of being required to serve the eleven years to which he could have been sentenced, he was given a six year sentence, of which he served five.

The case illuminates two long-running and active themes the defense bar has been pushing. One is that we should substantially reduce prison sentences to save money. The other is that sex offenders are treated too harshly (forced to sleep under a bridge in Miami, etc.), apparently because the country consists of high-handed and puritanical morons.

 

The lead paragraphs from a Washington Post story reveal a possible major development in the coming terror trial of 9-11 planner Khalid Sheik Mohammed:

President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.

The president's advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some alleged terrorists in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

The notion that "the rule of law" cannot prevail in military tribunals is at best ahistorical and at worst absurd and insulting to the armed forces.  Such tribunals (with significantly fewer defendant protections than exist today) were good enough for Franklin Roosevelt when he ordered captured Nazi saboteurs put before them in 1942.  And the Nuremberg trials were themselves military tribunals.

It's unfortunate and worrisome that it has taken the administration this long to figure out that KSM is an enemy combatant, not the next fellow on the police blotter  --  if indeed they've figured it out.  Still, as they say, better late...

 

Equitable Tolling in Holland v. Florida:  At SCOTUSblog, Harvard Law School student Kate Wever recaps Monday's oral argument in Holland v. Florida.  Wever reports that Holland's attorney, Todd Scher, used the facts of Holland's case to support his argument that Holland was entitled to equitable tolling.  When Justice Sotomayor questioned him on where to draw the line for future cases, and to distinguish between the negligence and "intentional malfeasance," Scher returned to the facts of Holland's case to demonstrate that his client was entitled to equitable tolling.  Florida's Solicitor General, Scott Makar, endured questioning by Justice Breyer on whether equitable tolling should be denied even when the missed deadline resulted from an earthquake, fire, flood, or counsel being kidnapped.  Although Makar initially maintained (consistent with Florida's brief) that it should be, by the end of his argument he appeared to concede that equitable tolling might be available in situations external to the attorney-client relationship.  CJLF's brief is available here. 

Washington Changes to One-Drug Execution Method:  Yesterday, Associated Press writer Rachel La Corte reported that Washington has become the second state to switch to a one-drug system for executing prisoners.  According to La Corte, Washington's Attorney General filed a motion with the state Supreme Court on Tuesday arguing that now that Washington has changed its protocol portions of the appeal of death-row inmate Darold Stenson, challenging of the drug protocol's constitutionality are now moot.  The state Department of Corrections is in the process of rewriting the execution policy that will make Washington the second state in the nation to use the one-drug method.  

Backlash Against Freeing Prisoners:  At Sentencing Law and Policy, Doug Berman links to a New York Times article by Monica Davey reporting on public backlash in the wake of state legislation trimming prison populations by expanding parole programs and early releases.  Davey reports that states like Colorado, Michigan and Oregon are reducing their prison populations to reduce prison spending.  She reports that Michigan, which reduced its state prison population by 3,200 inmates last year, is experiencing its highest parole rate in the past 16 years.  According to Davey, parole has become such a controversial issue in Michigan that Attorney General Mike Cox, who normally defends the State Department of Corrections and its Parole and Commutation Board in their parole decisions, has also filed separate amicus briefs in eight cases opposing some of the state's parole decisions.  Yesterday, Berman also posted a link to The Sentencing Project's reports demonstrating that states are reforming sentencing policies and scaling back on the use of imprisonment in an effort to control spending.

Putting Seventh Circuit Judges on the Stand:  Yesterday, Orin Kerr posted Cross Examining Frank Easterbrook on Volokh Conspiracy, and described Judge Easterbrook's testimony in the trial of Harold Turner, the New Jersey blogger charged with encouraging his readers to murder the three judges as retribution for their decision upholding a Chicago handgun ban.  Mark Fass has the story on Law.com, and Kerr posts on the attempted cross-examination of Judge Easterbook by defense counsel Michael Orozco.  Apparently after Judge Easterbrook told Orozco that he was "not grasping the case," he went on to give an extended history of the Fourteenth Amendment and its relationship to the Second Amendment, and U.S. Supreme Court precedent regarding both amendments dating back to 1873.  Kerr wonders what the jury was thinking.  Ashby Jones posts more on the Judge Easterbrook's testimony, including his response to Orozco's question about what might happen if the Supreme Court overturns McDonald v. Chicago.  "If it's overturned," Orozco asked, "doesn't that make Hal Turner correct?"  Responded Easterbrook: "This blog post says any judge who decides a case incorrectly is supposed to be assassinated. That is not the way the system works."   

Opinions Differ On Supreme Court Ruling on Miranda Rights: Washington Post Staff Writer Ruben Castaneda reports on the Supreme Court's decision in Maryland v. Shatzer, and the different ways prosecutors and defense attorneys are interpreting its holding.  The Court's opinion allows police to interview a suspect who has invoked his Miranda rights, provided that law enforcement officers release the suspect from custody and wait 14 days.  The decision "doesn't erode or cut back on Miranda rights at all," according to Maryland Attorney General Douglas F. Gansler, who argued the case on behalf of the state in October.  He adds, "[t]he interviewing officer still has to read the suspect his or her Miranda rights."  Peter D. Greenspun, a defense attorney based in Northern Virginia, disagreed.  "This is going to lead to disastrous consequences for those who have not committed any crime and those who have a context for their actions," Greenspun said. "The Supreme Court has now gone into legislative mode.  Apparently, at 14 days and one minute, Miranda no longer applies."  One prosecutor believes the ruling could be useful in cases where new evidence, such as DNA, comes to light after a suspect has invoked Miranda and been released.  CJLF's brief on the case can be found here.

"Justices Weight Claims Over Torture in Somalia": New York Times writer Adam Liptak reports on Wednesday's Supreme Court oral arguments in Samantar v. Yousuf, about whether foreign officials may be sued in the United States over torture claims.  The Petitioner in this case, Bashe Abdi Yousuf, is asking the Court to allow him to sue Mohamed Ali Samantar, the minister of defense and prime minister of a regime that allegedly tortured Yousuf in Somalia in the 1980s.  The Torture Victim Protection Act of 1991 allows lawsuits against individuals said to have committed torture under the authority of a foreign nation, but the Foreign Sovereign Immunities Act of 1976 bars suits against foreign states and their "agencies or instrumentalities." Most of yesterday's arguments concerned whether that last phrase included current or former officials.  Justice Stephen G. Breyer suggested that it would be an odd legal system that would require a lawsuit against a foreign government to be dismissed but allow the same suit to proceed once the plaintiff listed the names of the officials involved.  Deputy Solicitor General Edwin S. Kneedler sided with the plaintiffs in urging the Court to reject Mr. Samantar's statutory immunity argument.  But he said Mr. Samantar may still be immune from suit under common law principles, depending on the position taken on that by the State Department.

"Liu Nomination Pushes 9th Circuit Farther Left":  Yesterday, Ross Kaminsky of HumanEvents.com had this opinion piece discussing UC Berkeley Law Professor Goodwin Liu's nomination to the 9th Circuit.  In the article, Kaminsky states that by nominating Liu, President Obama is working to push the nation's most liberal, and most overturned, court even further outside the mainstream of American jurisprudence.  The article mentions Liu's views on the death penalty.  Kent has suggested that, "[t]o anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point.  If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case." Kaminsky believes that Liu's left-leaning positions on specific issues emanate from a view of the Constitution which is anything but "originalist" and is concerned about what this could mean for our courts.

Here are photos from the death penalty "mock trial" event in London on Tuesday. The link starts at index page 3, where most of the pictures of the home team are.

We hope to have a full online video of the event soon.