July 2006 Archives

News Scan

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Fingerprint Doubts. The Scotsman has this article on doubts about expert identification of fingerprints. The article from the Journal of Forensic Identification is here.

Felon Voting. The Colorado Supreme Court has upheld that state's ban on voting by parolees against a state constitutional attack. The AP story is here, and the full opinion is here. Footnote 2 indicates that there was a claim under 42 U.S.C. § 1983 in the trial court but that the claim is not before the Colorado Supreme Court. That probably means the plaintiffs did not appeal on the federal question. A certiorari petition from New York, in a case decided against the felons by the Second Circuit, is due September 1 in Hayden v. Pataki.

Government prosecutors have won an "almost complete" victory against leaders of the powerful Aryan Brotherhood prison gang according to an AP story by Gilliam Flaccas.

Sexual Violence in Prison. Leslie Millier of the Associated Press reports on the DoJ study noted here yesterday.

D.C. Curfew. The District of Columbia is moving its juvenile curfew up to 10:00 p.m. It was previously midnight. AP story here. Washington Post story here.

Sunday Opinion Pages

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If there was one thing I thought nearly all Supreme Court-watchers could agree on, it was that the two newest Justices were exactly as we expected them to be: very competent, writing solid opinions, leaning conservative but willing to vote for the other side when the law so requires. Justice Alito's first opinion for the Court, for example, was a unanimous reversal for a South Carolina murderer. So along comes Senator Edward Kennedy, with an op-ed in the Washington Post titled "Roberts and Alito Misled Us." For comments on his comments, see Bench Memos here and the Volokh Conspiracy here.

Morris Hoffman and Stephen Morse have this thoughtful piece in the New York Times on the insanity defense. They note that the concept of responsibility is a moral judgment, not a scientific one, and that the insanity defense should be narrow but not eliminated altogether.

Sexual Violence in Prison

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The Bureau of Justice Statistics has this report on "Sexual Violence Reported by Correctional Authorities, 2005." The data are compiled pursuant to the Prison Rape Elimination Act of 2003. There were 6241 allegations made to authorities in 2005.

All categories of crime are underreported to some degree, but this one is probably exceptionally so, as the report recognizes: "Administrative records alone cannot provide reliable estimates of sexual violence. Due to fear of reprisal from perpetrators, a code of silence among inmates, personal embarrassment, and lack of trust in staff, victims are often reluctant to report incidents to correctional authorities." BJS is working on a survey method to supplement the reported-to-authorities method. It will be interesting to see how much the two measures diverge.

Crying Wolf at the NYT

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The Administration's draft legislative proposal to deal with the Hamdan decision produced two very different editorials at two of America's major newspapers on Saturday.

The New York Times editorial is titled The Court Under Siege. In the Times's view, the proposal amounts to a "new offensive against the courts." This is pure nonsense. Hamdan is a statutory interpretation decision. If a court says that a statute means X, introducing legislation to amend the statute to say Y instead is not in any sense an action against the court. "It is emphatically the province and duty of the judicial department to say what the law is," as Chief Justice Marshall famously declared in Marbury v. Madison. Where the law in question is statutory and not constitutional, it is just as emphatically the province and duty of the legislative branch to say what the law should be.

Cooler heads prevailed at the Washington Post.  The Post's editorial doesn't like the proposal either, but they go through it point by point and argue as a matter of policy that Congress should substantially amend this proposal rather than enact it as is. Fair enough. That is what legislative debate is all about.

False alarms cause insidious damage by reducing the response to real alarms. At some point, the courts may actually be under siege. Then we will need the editorials of America's great newspapers to raise the alarm. Having diminished its own credibility by crying wolf this time, the Times's voice will be less effective when it is really needed.

High Crimes and Misdemeanors

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The Los Angeles Times has a surprisingly good editorial on Congressman Sensenbrenner's initial step toward possible impeachment of Judge Manuel Real. Unlike the knee-jerk reaction we have seen elsewhere, assuming that those Wascally Wepublicans are once again attacking the independence of the judiciary, the Times recognizes that there was a real and outrageous abuse of power here, and the judiciary's self-policing mechanism has failed miserably. See Judge Kozinski's dissent for more.

On one important point, though, I believe the editorial is mistaken. It states there have probably been no "high crimes or misdemeanors" here, apparently assuming that phrase means acts designated as crimes in preexisting statutes. It does not mean that. See Story, Commentaries on the Constitution §§ 403-405 (1833); Schmitt & Bessette, What Does "High Crimes and Misdemeanors" Mean? (1998). Under the original understanding of this phrase, the deliberate abuse of power by a judge who grabs control of a case and issues patently illegal orders in gross disregard of due process of law is an impeachable offense.

Lethal Injection and Supermax

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Doug Berman at Sentencing Law and Policy has this post on the continuing lethal injection controversy. Although we see this issue from very different perspectives, there are two points of agreement: (1) the lethal injection issue is getting attention way out of proportion to its actual importance; and (2) the people who claim that the issue is generating a wholesale reexamination of capital punishment are full of hot air. Doug also has a post decrying the extremely restrictive conditions at "supermax" prisons.

On the other hand, as AP reports here, conditions at Maryland's maximum security facility were not so restrictive that inmates Lee Stephens and Lamarr Harris were not able to arm themselves with knives and stab to death corrections officer David McGuinn, if the charges against them are true. Nor are prison conditions generally so restrictive that the Aryan Brotherhood cannot conduct a drug-dealing racket, enforced by murder of those who cross it, from behind bars. The LA Times story is here.

Sunrise in the West?

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In the last two weeks, the Ninth Circuit has granted rehearing en banc in two criminal cases. Edwards v. LaMarque is an ineffective assistance case. Here are the panel decision and the order granting rehearing. United States v. Curtin involves a pedophile who trolls chat rooms looking for young girls and had pedophilia literature on his PDA when he got caught. The issue is the admissibility of that literature. Here are the opinion and the rehearing order.

What is remarkable here is that the rehearing petitions were both filed by the prosecution after the defendant prevailed before the panel. We have seen so many cases where the Ninth denies rehearing even when a panel decision is patently wrong (see, e.g., Belmontes and Musladin, discussed here), that many prosecutors have decided that even petitioning for rehearing en banc is hopeless and gone straight to certiorari from the Supreme Court.

Could it be that, with the recent appointments, People of Sense now constitute a majority on the Ninth Circuit? That may be too much to hope for, and maybe I am grasping at straws. After decades of darkness, though, it is tempting to see any ray of light as the breaking of the long-overdue dawn.

Virginia Execution

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"Convicted killer Michael Lenz was executed by injection last night in Virginia's death chamber for fatally stabbing another inmate during a pagan religious gathering six years ago." Candace Rondeaux of the Washington Post has the story here. The Fourth Circuit's opinion on habeas is here. The Supreme Court's denial of a stay and certiorari, Justices Stevens and Ginsburg dissenting, is here. The District Court's dismissal of the injection suit is here.

Six years from crime to execution in a non-"volunteer" case is quite an accomplishment. This is the way it should be. That is long enough for a thorough consideration of the case, yet not so protracted as to dilute the deterrent effect and transform a death sentence into a nearly-life-expectancy sentence.

The Presiding Judge of the Sixth Circuit Federal Court of Appeals thinks that capital defense attorneys may intentionally make mistakes at trial to assure extended post-conviction review of ineffective assitance claims and delay executions. Assuming that the judge might be correct, should states be able to recover the money paid to defense attorneys later found to be ineffective? The Judge's views are discussed in Associated Press story by by Terry Kinny. The opinion in Poindexter v. Mitchell is here.

Recent and Quasi-Recent Filings

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The Criminal Justice Legal Foundation has filed three amicus briefs in the United States Supreme Court in the last month: Ayers v. Belmontes, Carey v. Musladin, and Whorton v. Bockting. All three are habeas corpus cases from the Ninth Circuit, and in all three the Ninth Circuit decided in favor of the habeas petitioner.

Ayers v. Belmontes, No. 05-493, filed June 19, is a case where the Ninth Circuit split hairs to evade a Supreme Court precedent on point. In the case of the brutal and senseless murder of a 19-year-old girl, just to steal her stereo, the jury was given the then-standard instruction on mitigating evidence, an instruction specifically upheld by the Supreme Court 16 years ago in the case of Boyde v. California. The Ninth Circuit's decision claims that Boyde's approval of this instruction does not extend to evidence offered to negate future dangerousness as opposed to evidence offered to give a psychological explanation of the defendant's commission of the crime. The Ninth Circuit persisted in this error even after being told to reconsider by the Supreme Court. See Judge Callahan's dissent from denial of rehearing en banc.

This decision is a misinterpretation of Boyde, contrary to other Supreme Court precedents, and illegitimately changes the rules long after the sentence was final. Regarding the latter point, our brief asks the Supreme Court to declare that new rules which only affect the sentence and not the determination of guilt should never apply retroactively to judgments which are already final. This would eliminate a significant amount of litigation over the exception to the general rule of nonretroactivity that the Court created in the 1989 case of Teague v. Lane.

News Scan

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Lethal Injection. Missouri's revised protocol is better, but still not good enough, says Federal District Judge Fernando Gaitan. AP story here.

Death penalty opponents are marshalling their forces to convince Wisconsin voters to reject a November referendum on capital punishment. The state has not had the death penalty for 153 years according to a story in the Capital Times.

The New Jersey Supreme Court has rejected a murderer's jury instruction claim and upheld his death sentence. In November a special commission report on the state's death penalty is due. The previous Governor had imposed a moratorium on executions pending that report. The Associated Press story is here .

Andrea Yates NGRI of Murdering Her Children. Fox News reports that the jury has found the Houston mom not guilty by reason of insanity here.

Assault trial probes different explanations for how a cell phone became lodged in a woman's throat in a Kansas City suburb. The bizarre story here.

Law Restricting Sex Offenders Clears a Hurdle here.

The body of five-year-old Destiny Norton, who disappeared from the yard of her home a little over a week ago in Salt Lake City, Utah was found in the basement of a neighbor, who was charged with homicide. Full story here.

Cocaine Sentencing. The differential treatment of crack and powder cocaine in federal drug sentencing law would be reduced, although not eliminated, under a bill introduced by Senators Sessions, Cornyn, Pryor, and Salazar, the Washington Times reports here. (Hat tip: Doug Berman.)

News Scan

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Richard Allen Davis, on death row for the 1993 kidnap/murder of 12-year-old Polly Klaas almost received his sentence Sunday when he overdosed on heroin but was revived according to a Los Angeles Times story.

Don't feed the homeless. The Orlando City Council has banned feeding large groups of people in a downtown area without a permit. The ACLU will sue. The AP story is here

Cos was right. Clarence Page argues in this article that Bill Cosby's much criticized remarks about crime, personal responsibility, and parenting were right, and maybe not tough enough. The occasion is the death of one of Cosby's more vociferous critics. He was murdered.

Serial murderer and photographer William Richard Bradford, on California's death row for murdering two aspiring models, may have raped or murdered as many as 50 other women. The AP story is here.

News Scan

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A 10:00 pm curfew for teens has been imposed in Washington D.C. to help combat the crime wave that has hit the nation's capitol this summer according to an ABC news story .

The video taping of police interrogations, which is required in some states, has become a valuable tool for law enforcement according to this report in the St. Paul Pioneer Press.

Interesting article in Law.Com by Howard Bashman about how rulings from the federal courts of appeals fared over the United States Supreme Court's recent term.

News Scan

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Two Executions Scheduled this Evening.

Brandon Hedrick is scheduled to be executed this evening in Virginia. Hedrick, who chose electrocution over lethal injection, will be the first inmate since April 2003 to use Virginia’s electric chair. He was found guilty of abducting, sexually assaulting and murdering Lisa Alexander Crider in May of 1997. The Washington Post story states that Virginia, Florida and South Carolina give inmates the choice between electrocution and lethal injection.

Update: Hedrick was pronounced dead at 9:12 p.m. EDT. Washington Post story on the execution here.

Robert Anderson will be executed this evening in Texas by lethal injection. Anderson abducted a 5-year-old girl in front of his home in June of 1992. A neighbor discovered the girl’s body inside of a styrofoam ice chest in a dumpster. Anderson confessed that he abducted, assaulted, beat, stabbed and drowned the little girl before disposing of her body. Visit the Texas Department of Justice for more information on this inmate here.

Update: Anderson was pronounced dead at 6:19 p.m. CDT. AP story on the execution here.

Pledge Follies

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This is off-topic for a crim law blog, I know, but it's important. Yesterday, the House of Representatives passed H.R. 2389 which would remove jurisdiction from federal courts, not including D.C.'s local court system, to consider challenges to the Pledge of Allegiance, and it would also eliminate the U.S. Supreme Court's appellate jurisdiction over such cases. Lyle Denniston has a post on SCOTUSblog here.

With 51 state & D.C. high courts, it is a near certainty that at least one, maybe more, will accept the argument that the Pledge violates the First Amendment. Others will, of course, reject that argument. With no U.S. Supreme Court jurisdiction to review these decisions, "one nation, indivisible" will be divided on the question.

The congressmen who voted for this bill thinking they were protecting the Pledge are seriously mistaken. Let us hope that cooler heads prevail in the Senate.

First Monday in October

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Here are some scheduled events and some predictions for the Supreme Court's opening in the fall.

Tuesday, September 26: Look for an orders list from the conference of the day before, with grants of certiorari.

Monday, October 2: The traditional opening day of the First Monday in October coincides with Yom Kippur, which caused a bit of a flap a few years back. The Great Compromise, which we see again this year, is that the Court formally opens its term and will probably announce an orders list, but will hear no arguments. There will likely be a long list of cert. denials and no grants, the grants having been announced the week before.

Hate Crimes Down in Cal.

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The California Attorney General reports that hate crimes are down in California for the fourth year in a row. Good, but we'll take it with a grain of salt given the difficulty of deciding which crimes are "hate crimes."

Also, it doesn't help one's credibility much to send out studies with emails like this: "This e-mail is to nortify you, as you requested, of the availablity of new statisticks." Now, we don't claim perfection in proofreading ourselves, but this is ridiculous.

News Scan

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Texas Execution Scheduled this Evening.
Mauriceo M. Brown will be the 15th person executed this year in Texas. Brown gunned down Michael LaHood, Jr. after an attempted botched robbery. Read the full Star-Telegram story here. The Texas Department of Justice has more information available on Brown here.

Update: Brown was pronounced dead at 6:47 CDT. AP story on the execution here.

As noted here, a recently published study has reviewed the decisions to seek the death penalty by the U.S. Department of Justice for evidence of racial bias and other purported problems. Here are a few observations on this study.

One of the problems in research on the death penalty is the very fact that it is so controversial. One tends to suspect that a study is done to support a predetermined result rather than to actually find the truth. This latest study, funded by the National Institute of Justice, dealt with that problem by doing multiple studies in one. The same data were provided to three different teams of researchers. Three teams using three different methodologies and coming from different perspectives all found no firm evidence of racial bias.

News Scan

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A Proposed New National Sex Offender Registry Bill:
The proposed bill will require states to share information on sex offenders who move to new states and would make it a crime, not a misdemeanor, if sex offenders did not register with their state. Senator Orrin Hatch, Elizabeth Smart and Ed Smart are supporting this bill that the House and Senate may vote on today. The story published by ABC News—Good Morning America is available here. The text of S. 1086 is here.

Impeachment. Henry Weinstein of the L.A. Times has this article on House Judiciary Chairman Sensenbrenner's tentative first step toward the possible impeachment of L.A. Federal District Judge Manuel Real. Mr. Sensenbrenner notes the case as a breakdown in the judicial self-policing mechanism that Congress set up in 1980. His statement is available here (thanks to "federalist" for this link). The Ninth Circuit decision is here.

Competency to Waive Appeals. Jack Elliott of the Associated Press has another article here on the case of Mississippi murderer Bobby Glen Wilcher and the question of his waiver of further appeals. The Supreme Court has scheduled the question of whether to take his case for its conference of Sept. 25.

"A statistical analysis of federal prosecutors' decisions about whether to seek the death penalty has found no evidence of racial bias, according to a RAND Corporation report issued today." Press release here. Full text here. Executive summary here.

We have not yet reviewed the study and its methodology and will post again when we do. However, the conclusion is similar to what other studies actually indicate when they are properly analyzed, as described in my 2003 article here.

News Scan

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A Delaware teacher who was hired three years after pleading guilty for attempting to sexually extort a young man in 1998, is now facing multiple charges of rape and related charges for acts he committed after being hired. The News Journal has the complete online story here.

News Scan

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Several leaders of the notorious Aryan Brotherhood prison gang are being prosecuted in California for murder, racketeering, and conspiracy. While the Reuters story discusses the case from the defense perspective, it does indicate the threat to society that the worst criminals pose, even while in prison.

Like a Duracell battery, the commentary on the Hamdan decision just keeps on coming. The Baltimore Chronicle shares the opinion of Dave Lindorff, author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal.

The early release of criminals to reduce jail and prison overcrowding is a topic of discussion in many states. A story by Kate Holloway in the Indianapolis Star reports on the effect of the policy in Indiana.

News Scan

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Ohio executed a murderer today using a revised injection procedure according to an Associated Press story by Matt Leingang.

Today's Washington Post reports that the Chief of the D.C. police department has declared a "crime emergency" after the city suffered its fourteenth murder since July 1.

Mississippi Execution Stayed

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The United States Supreme Court has stayed the execution of Mississippi murderer Bobby Glen Wilcher for the 1982 murder of Katie Belle Moore and Velma Odell Noblin. The order is on the second page of yesterday's "Miscellaneous Orders" here. "The Chief Justice, Justice Scalia, and Justice Alito would deny the application for stay of execution." The Associated Press story is here. Wilcher was apparently a so-called "volunteer" who may or may not have changed his mind at the last minute. The Fifth Circuit opinion on Monday is here. Lyle Denniston at SCOTUSblog has more on the case here.

Update, July 14: The Supreme Court docket indicates that the certiorari petition is scheduled for the conference of Monday, Sept. 25. If the Court follows last year's practice, we can expect an orders list on Tuesday with a grant or denial of certiorari.

Texas Murderer Executed

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Derrick Sean O'Brien, who was convicted of the kidnap, rape and murder of two teenage girls in 1993 is scheduled to be executed today. On the evening of June 24 of that year, the two victims, 16-year-old Elizabeth Pena and 14-year-old Jennifer Ertman, took a shortcut home from a friend's house when they were spotted by O'Brien, Ernesto Medellin and other members of a Houston street gang. After stripping and gang raping the girls, O'Brien and Medellin each pulled on one end of a belt wrapped around the younger girl's neck. When the belt broke, they strangled her to death with a shoelace. Four of the gang members were convicted and sentenced to death but two, who were 17 at the time of the murders, were spared by last year's Supreme Court ruling in Roper v. Simmons. A federal habeas corpus bid by Medellin (a Mexican citizen) to overturn his conviction because the Houston police failed to notify the Mexican consulate in accordance with the Vienna Convention, was denied by the Supreme Court last year. His state habeas corpus petition on the same ground is pending before the Texas Court of Criminal Appeals. (CJLF's brief in that case is available here.) According to an Associated Press story O'Brien was a suspect in the rape and murder of a 27-year-old woman six months earlier. Last May the Texas Court of Criminal Appeals denied his Eighth Amendment claim against lethal injection. An appeal of that holding has been filed with the Supreme Court.

UPDATE: O'Brien was executed at 6:12 p.m. CDT this evening, July 11. The AP story is here. A Web page dedicated to Jennifer and Elizabeth is here. The Supreme Court order denying a stay and declining to accept the case for review is here.

Blog Scan

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Orin Kerr has a post on whether Hudson v. Michigan extends to federal court cases. There are old Supreme Court cases providing a nonconstitutional exclusion remedy for knock-and-announce violations. Do they survive Hudson? Hudson's attorney David Moran also comments.

Lyle Denniston at SCOTUSblog has this post on the search of Congressman Jefferson's office.

Doug Berman at SL&P comments here on the tendency of Supreme Court Justices to drift "left," i.e., toward the defense side, during their tenure. He advances an interesting hypothesis that on the Supreme Court, the Justices see a skewed sample of the worst cases, which tends to affect their view.

News Scan

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Kelley Beaucar Vlahos at FoxNews.com has this story on the search for alternatives to civil commitment for dangerous sex offenders.

Tony Mauro at LegalTimes.com has this article about the state of the death penalty.

The Washington Post has this article by Margaret Cordray and Richard Cordray criticizing the Court's shrinking docket.

Michael Graczyk of AP reports on a Fifth Circuit decision that prisoners who work are not entitled to the minimum wage. The text of the decision is here.

James Q. Wilson has this article in the Wall Street Journal (subscription) on legislation to limit judges' attendance at university-sponsored seminars.

CJLF has compiled a summary of the criminal, habeas, and law-enforcement-related civil cases of the United States Supreme Court for the term just ended. The table is sorted by whether the case came from a state or federal court, then by jurisdiction, then by decision date.

We see that once again reversing the Ninth Circuit takes up a disproportionate share of the Supreme Court's criminal docket. There are 7 cases from the Ninth, over a third of all the cases from the numbered circuits, significantly more than the Ninth's proportionate share of the population. All 7 are reversals. All 7 had been decided in favor of the defendant or prisoner by the Ninth. Five out of 7 are unanimous reversals. These data provide further confirmation that the Ninth's en banc review process is not functioning. The en banc court is supposed to overturn clearly wrong panel decisions, but it fails to do so when they favor the defendant, forcing the Supreme Court to pick up that load.

We also see the Supreme Court taking a large number of criminal cases from the state courts. With greater restrictions on federal habeas corpus, we can expect to see the high court taking more cases directly from the state courts in order to resolve constitutional questions directly without the limitations of habeas.

Hamdan Legislation

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Senator Specter's remarks upon introduction of S. 3614, the Unprivileged Combatant Act of 2006, followed by the text of the bill, are available here, pages S6796 et seq. of the Congressional Record.

How to Proceed After Hamdan

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Since the Supreme Court's June 29, decision in Hamdan v. Rumsfeld, there has been considerable speculation about its meaning and application. Some, including the ACLU and Amnesty International, have heralded the ruling as a victory for the rule of law, others offer a less charitable characterization. An article by Paul Greenberg published in today's Sacramento Bee offers some reality-based observations.

Blog Scan

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Lyle Denniston at SCOTUSblog has this interesting post of the "split-the-difference" Supreme Court. He extends Judge Harvie Wilkinson's critique of the late Rehnquist Court, available here, to the Term just completed.

Matthew Franck at BenchMemos has this comment on a Washington Post editorial attacking Justice Scalia's concurrence in Kansas v. Marsh.

Doug Berman at Sentencing Law and Policy sums up the noncapital sentencing cases of the Supreme Court term here, with some hints of what may be coming down the road.

News Scan

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Habitual Sex Offender to stand trial for the murder of North Dakota college student. The federal trial of the man accused of the November 2003 kidnap and murder of 22-year-old Dru Sjodin will begin Thursday, according to an Associated Press story

California prisons have become a political issue in race for Governor. An article in the San Francisco Chronicle breaks down the positions taken by Govenror Schwarzenegger and challenger Phil Angelidies.

The Kennedy Center? Ruth Marcus at the Washington Post examines the current Supreme Court's center of gravity here. She laments, "a court with Kennedy at the center is not a securely centrist court."

News Scan

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The Roberts Court. James Taranto of the Wall Street Journal has this interesting article on the first term of the Roberts Court, unanimity, and minimalism in judging.

Congress and Military Tribunals. Maura Reynolds has this article in the Los Angeles Times on efforts to enact statutory authorization for military tribunals to replace the executive order struck down in Hamdan. Senator Specter has scheduled a hearing for July 11. Kathryn Lopez at Bench Memos has this post with a section-by-section analysis of Specter's bill.

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