September 2006 Archives

Not So Innocent -- II

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"Tony Apanovitch has been sentenced to death for a crime he did not commit. He is a victim of the most serious miscarriage of justice."  So proclaims this page on the Web site of the Canadian Coalition Against the Death Penalty. Note the complete absence of doubt from that statement. Not "there is evidence that leads us to believe he is probably innocent." Nope, it's an absolute certainty.

Funny thing, though, is that there was DNA available from the 1984 rape and murder of Mary Ann Flynn, but Apanovitch steadfastly refused to give a comparison sample. Shouldn't that have given the innocence proclaimers at least a little pause?

Supreme Court Poll

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Gallup reports here that public confidence in the Supreme Court is at its highest point in four years. (Gallup's content is typically free to nonsubscribers on the day of release only.) The trend graph is kind of interesting. Bush v. Gore, which gets political junkies all excited, was apparently a minor blip on the radar screen for the public at large, with only a small drop in January 2001 from the previous Labor Day. The big slide in public confidence came in 2003-2005, from which the high court has apparently recovered. Gallup analyst Jeffrey Jones suggests Lawrence v. Texas, Kelo v. New London, and McCreary Co. v. ACLU as the reasons for the slide.

News Scan

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Lethal Injection State medical experts testified yesterday, at a federal court hearing on California's Lethal Injection process. An anesthesiologist who initially agreed to assist with the execution of murderer Michael Morales earlier this year, testified that he opted out because he didn't want to be labeled an executioner by the AMA, which has forbidden doctors from participating in executions. The witness added that it was unlikely, considering the dose of pain killer administered, that condemned murderers were conscious during the lethal injection process according to a San Francisco Chronicle story by Bob Egelko. Another article by Sacramento Bee reporter Claire Cooper discusses other evidnece presented by the state. Update: An AP story on the final day of the hearing is here.

Prison inmates who convert to Islam may become recuits for terrorism according to a story by Debra Saunders in today's Salem Statesman Journal. The story cites a George Washington University report on the radicalization of prison inmates entitled "Out of the Shadows" which is available here.

Not So Innocent?

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Almost every time I debate the death penalty, someone will bring up the DPIC's notorious "innocence list" as a list of people sentenced to death who actually did not commit the crime. We and others have tried for years to educate the public and especially the press that it is nothing of the sort, but the message doesn't seem to penetrate, despite Ward Campbell's thorough refutations here and here. Justice Scalia hammered the point in Kansas v. Marsh, but it's too early to tell if that has had any effect.

Sometimes a single dramatic case can have more impact than a stack of scholarly work. That case may be coming, according to this article by Paul Woolverton in the Fayetteville (NC) Observer (hat tip: federalist). "Innocent" number 39, Timothy Hennis, may soon be convicted of the very murders for which he was "exonerated."

Terrorism, Detainees, and Habeas

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Today the Senate passed S. 3930, the Military Commissions Act. Reuters reports here in the Washington Post. Yesterday the House passed substantially the same bill as H.R. 6166.

Section 7 of both bills amends the primary habeas corpus statute: 28 U.S.C. § 2241. The bill deletes two subdivisions:  subdivision (e) and the other subdivision (e).* These had been added late last year and applied only to aliens at Gitmo. The new subdivision (e) drops the ill-conceived location restriction and forbids habeas corpus for aliens determined to be enemy combatants or awaiting such determination.

Senator Leahy says this provision is "flagrantly unconstitutional." No, actually, it isn't. As explained in Part III of CJLF's brief in Hamdan v. Rumsfeld, the common law writ protected by the Suspension Clause did not extend to enemy prisoners held by the military. Although the habeas statute was held to extend to them in Rasul v. Bush , the Court did not say that Congress could not amend the statute. The Court's interpretation of the statute as it then existed mooted the constitutional argument, and the Court did not decide it Rasul or Hamdan. Opponents can still argue that it is unconstitutional, but "flagrantly"? No.

News Scan

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The California hearings on lethal injection continued yesterday as opponents presented a second day of testimony from medical experts who said errors by prison staff could have caused condemned murderers to die in agony according to a Associated Press story by David Kravets.

A poll of likely voters in Wisconsin indicates that 57% will vote to support a statewide referendum this November urging lawmakers to reinstate the death penalty for some murderers. The state has not had a death penalty since 1853 as reported in an Associated Press story in the Duluth News Tribune.

The Colorado man who held two schoolgirls hostage before murdering one and committing suicide yesterday has been identified as a 53-year-old loner who had been living out of his car, according to a story in this morning's Denver Post by reporter Kirk Mitchell. The victim, 16-year-old Emily Keyes died in a Denver hospital shortly after police stormed the school, as reported in the Guardian Unlimited.

News Scan

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Lethal Injection A federal District Judge heard testimony yesterday in the hearing to determine if California's lethal injection protocol violates the Eighth Amendment. According to an Associated Press story by David Kravets one of the highlights was testimony from Dr. Kevin Concannon, a North Carolina veterinarian. Dr. Concannon filed an amicus brief in Hill v. McDonough (Sept. 20 post "Hill Executed" below) arguing against Florida's lethal injection protocol.

Jessica's Law Opponents of a California's Jessica's Law ballot measure suggest that, if adopted, the restrictions on sex offenders will drive them underground, according to a story in the San Jose Mercury News by Sean Webby. This claim ignores the fact that over half of California's registered sex offenders are currently AWOL.

News Scan

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The hearing on California's lethal injection protocol begins today in federal district court in San Jose, and there is a lot of coverage on it. Here is Bob Egelko's story yesterday, and here is David Kravets' story for the AP. Update: Howard Mintz of the S.J. Mercury-News reports on the first day of the hearing here.

Broken Windows The theory advanced by Professors James Q. Wilson and George Kelling, that cracking down on low level crimes, like petty theft and vandalism, discourages more serious crime, has been proven effective in the New York subways for over a decade. A story in the New York Daily News by Pete Donohue discusses the recent impact of putting more cops in the subways to bust fare-beaters over the past Summer.

Sup. Ct. Takes Arizona Habeas Case

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SCOTUSblog reports here that the Supreme Court has granted Arizona's petition in the case of Schriro v. Landrigan, No. 05-1575. There are now five Ninth Circuit habeas cases on the argument docket: Belmontes, Musladin, Bockting, Burton, and Landrigan. All except Burton are cases where the state petitioned on the ground that the Ninth exceeded the limits on federal habeas review -- either the anti-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989), the deference standard enacted by Congress in 1996, 28 U.S.C. 2254(d), or both. Arizona's cert. petition in Landrigan is here. Landrigan claimed ineffective assistance in the penalty phase of his capital case, in which he actively opposed counsel's efforts to put on a case in mitigation. This claim was rejected by the Arizona courts, the federal district court, and a unanimous three-judge panel of the Ninth Circuit, but the court en banc reversed and remanded for an evidentiary hearing.

Texas Injection Litigation

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On Wednesday, the Texas Court of Criminal Appeals issued this order in Ex parte Alba, asking for briefing on whether a lethal injection claim is cognizable on habeas corpus. This is the flip side of the question considered by the Supreme Court in Hill v. McDonough, whether the claim can be brought as a civil rights suit instead of on habeas. The U.S. Supreme Court considered method of execution claims on habeas when the electric chair was first being used in 1890. See page 17 of CJLF's Hill brief. Habeas was also used in the LaGrand case in 1999. The prisoners lost their enthusiam for using habeas after AEDPA clamped down severely on successive petitions in 1996. Habeas was no longer useful for method-of-execution claims held until all other issues were litigated in order to further delay the execution. That was why Hill was so interested in using the civil rights law.

In Texas state court, the civil v. habeas question could have a different angle. Which court of Texas's two-headed judiciary would have the final review of civil suit? Would it be the Court of Criminal Appeals or the Supreme Court? I suspect the justices of the Texas Supreme Court want nothing to do with this. Lone Star lawyers who have some insight on this are cordially invited to comment.

Comments elsewhere in the blogosphere include the TDCJ Blog, Capital Defense Weekly, and Sentencing Law and Policy.

News Scan

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Habitual Criminal William Henry Furman, whose murder case was the vehicle for the Supreme Court's 1972 Furman v. Georgia decision, is back in a Macon jail on a burglary charge. In 1967 Furman admitted shooting and killing a homeowner during a burglary. His death sentence was overturned by the Court's famous decision, and he was paroled in 1984. Furman, 64, was arrested while burglarizing the home of a woman and her ten year old daughter. At the time of the arrest, he had a pair of the child's panties in his pocket, according to a story by Tim Sturrock, a reporter with the Macon Telegraph.

Hill Executed

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Twenty-four years ago next month, Officer Stephen Taylor was brutally gunned down while performing his duty protecting the people of Penasacola. Just punishment for this crime was finally carried out at 6:12ET this evening, about 20 years longer than a thorough review of the case should have taken. The post-execution AP story is here. CJLF's brief in the Supreme Court Hill case earlier this year, which includes a summary of the facts and the convoluted procedural history, is here.

News Scan

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Hill Execution. Ron Word of AP reports here that the Supreme Court denied a stay on Wednesday, Justices Stevens, Souter, Ginsburg, and Breyer dissenting.

Stats. OJJDP has released "Juvenile Offenders and Victims 2006 National Report," available here.

L.A. Skid Row. The Los Angeles Times has this story on a proposed settlement between the City and the ACLU on the enforcement of a city ordinance against sitting, lying, or sleeping on sidewalks.

News Scan

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UCR. The FBI has released the final Uniform Crime Reports for 2005. The report is here. DAG Paul McNulty's briefing to reporters is here.

Jessica's Law On November 7, California voters will decide if the state should join a national trend to crack down on sex offenders. According to a Los Angeles Times story by Jennifer Warren, if Proposition 83 (Jessica's Law) is enacted, one of its provisions would bar sex offenders from living in nearly all of San Francisco.

Ninth Circuit A Los Angeles Times story by David Savage discusses two Ninth Circuit cases authored by Judge Stephen Reinhardt, Carey v. Musladin and Ayers v. Belmontes, which will be reviewed by the Supreme Court this fall. Briefs are collected here for Belmontes and here for Musladin.

Hill Execution. Lyle Denniston at SCOTUSblog reports that Clarence Hill of Hill v. McDonough infame has filed a stay application with the U.S. Supreme Court, number 06-A-301. Our previous post on the case is here.

Weekend News

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Crime Down Under. News.com.au has this story on a study of crime rates in a "Generation Y" cohort in New South Wales. Adolescent psychologist Michael Carr-Gregg identifies indulgent parenting as a root cause of crime.

Aryan Brotherhood Case. The jury deadlocked in the penalty phase of the federal trial of Aryan Brotherhood leaders Barry "The Baron" Mills and Tyler "The Hulk" Bingham. The vote was 9 to 3 for death in Mills's case. Under the Supreme Court's dubious interpretation of the federal death penalty statute in Jones v. United States, 527 U.S. 373 (1999), this means the view of the minority of jurors prevails over the view of the majority, and Mills receives a life sentence. Because Mills is already in prison for life for another murder, it means effectively no punishment at all. (In California state courts, if the penalty jury deadlocks it is a mistrial, and the penalty phase is retried before another jury.) In Bingham's case, the jury voted 8 to 4 for a life sentence. All Headline News reports here. The AP story is here. The Orange County Register story is here.

Sarin Gas Case. The Japan Times reports that the Supreme Court of Japan upheld the 2004 death sentence of Shoko Asahara for the horrific sarin gas attack in the Tokyo subway in 1995.

Down Jamaica Way. Here is an op-ed taking an international view of crime control, looking to see what works elsewhere. Kevin O'Brien Chang writes in the Jamaica Gleaner that the United States provides the example of how to bring down a sky-high crime rate -- by locking up the career criminals. He says the Jamaican police particularly like our "three strikes" laws.

News Scan

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Death Penalty California's longest-serving death row inmate had his death sentence overturned for the third time yesterday, after a unanimous ruling by a Ninth Circuit panel. The decision in Frierson v. Woodford is reported by Associated Press writer Lisa Leff.

Meanwhile, in Florida, the execution of Clarence Hill is set for Wednesday, and the AP reports that it may well occur as scheduled. Hill won a Pyrrhic victory in the Supreme Court earlier this year in Hill v. McDonough, where the Court ruled that a challenge to lethal injection could be brought as a civil rights suit, but it was subject to dismissal if brought too late. The federal district judge ruled on September 1 that Hill's suit was indeed brought too late, five years after the issue had been fully considered by the Florida Supreme Court in another case. The Eleventh Circuit opinion denying a stay is here.

The AP story quotes the lawyer who brought the eleventh-hour claim as saying, "the state has attempted to manipulate the process...." Jack Taylor, brother of Officer Stephen Taylor who was murdered by Hill, says, "When it comes to the fact that he will be uncomfortable when he dies, that is bull."

U.S. Supreme Court Notes

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The Supreme Court announced today that transcripts of oral arguments will be available the same day on the Court's Web site, rather than two weeks later. (Hat tip: SCOTUSblog.) This is great news for those of us who do Supreme Court work from the hinterlands and can't travel to Washington to personally attend arguments. It should also be helpful for reporters who cover the Court's arguments, as knowledgeable people can make responsible comments on the argument after reading the full transcript. Update: Charles Lane has this article in the Washington Post on the announcement.

Also from SCOTUSblog, Court-watcher Tom Goldstein has compiled a list of pending certiorari petitions that he estimates have a "reasonable" chance of being granted. The post is here, and the list itself is here. Because Tom evaluates only paid cases, most defendant petitions in criminal cases (usually in forma pauperis) are not in his sample. Here are the paid criminal and crime-related cases on Tom's list:

Ninth Circuit Habeas

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The Ninth Circuit issued a couple of interesting habeas opinions today. We had previously noted here the curious case of Comer v. Schriro and wondered what on earth could possibly be taking them years to decide a case where the petitioner has moved to dismiss and the district court has found that he is sane and knows what he is doing. The answer comes in today's opinion by Judge Ferguson, joined by Judge Pregerson. "By upholding Comer’s waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution." This is a case already reviewed by the state courts and the federal district court. The majority considers the federal court of appeals' role in the process to be so vital that cutting it off is a constitutional violation, even if the inmate himself is doing the cutting. Judge Rymer will have none of this. "I dissent from this raw imposition of judicial power."

News Scan

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Death Penalty A study by the liberal think tank New Jersey Policy Perspective on the cost of the death penalty has concluded that each capital case costs the state about $11 million. The study also estimates the cost of sentencing a murderer to death in other states. It has been cited in public hearings held by the New Jersey Policy Commission, which is reviewing that state's process for handing capital cases according to a story by Robert Schwaneberg in the New Jersey Star Ledger.

Sentencing A federal judge has sentenced three animal rights activists to four to six years in prison for threatening researchers and vandalizing a New Jersey laboratory of Huntington Life Science. The case is the first application of the Animal Enterprise Protection Act, adopted by Congress in 1992, according to a story by Laura Mansnerus in the New York Times.

Sex Offenders. The Virginia State Crime Commission is pondering voluntary castration as an alternative "treatment" for sex offenders, reports Frank Green in the Richmond Times-Dispatch. Among the problems with this proposal are a lack of evidence it works and the question of how "voluntary" this procedure can be when the alternative is indefinite incarceration.

News Scan

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Thompson Memo. The Senate Judiciary Committee held a hearing today on the right to counsel in corporate investigations. The announcement with links to statements and video is here. Witnesses include Deputy Attorney General Paul McNulty and former Attorney General Edwin Meese. Hope Yen of AP reports on the hearing here.

Booker. A story by Pamela A. MacLean from The National Law Journal discusses the problems the federal circuits are having with sentencing after last year's Supreme Court decision in U.S. v. Booker.

Fitting nicely in the "what's the point" category, California congresswoman Maxine Waters has introduced a bill that would require Aids testing of federal prison inmates, unless the inmates want to opt-out to preserve their confidentiality according to a story in The Hill by Jeffery Young.

Topping the "best excuse" category of the week is an Associated Press story about a former Dallas city official arrested for public intoxication.

Texas Execution. Farley Charles Matchett is scheduled to be executed by lethal injection this evening in Texas. Matchett, who had prior arrests for theft, drug offenses and forgery, murdered two people and seriously injured one over a three day period in July 1991. Read the AP story here. Update: The execution was carried out as scheduled.

News Scan

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Cal. AG Race: Herbert Sample of the Sacramento Bee has this story on Jerry Brown's history of opposing the death penalty and its impact on the race for California Attorney General.

Blakely Retro
: The Colorado Supreme Court has held that Blakely v. Washington only applies retroactively to cases pending on appeal when Blakely was decided in 2004, overruling an appellate court decision that applied Blakely back to the date of Apprendi v. New Jersey in 2000. The issue is presently pending before the United States Supreme Court in the case of Burton v. Waddington. (Hat tip: Doug Berman.)

Crime Statistics

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The Bureau of Justice Statistics released the National Crime Victimization Survey for 2005 over the weekend. The overall crime rate, which is dominated by the property crime rate, is down slightly to a 32-year low. However, FBI numbers released in June indicated that the homicide rate is up. Yesterday's report shows a sharp drop in rape but an increase in firearm violence. The AP report is here.

News Scan

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A Indiana sentencing law passed in 2005 in response to the U.S. Supreme Court's decision in Blakely v. Washington is facing its first test before that state's highest court. To avoid Blakely's requirement that any factor utilized to increase a sentence by found by a jury, the law provides a range of sentences a judge can impose “regardless of the presence or absence of aggravating circumstances or mitigating circumstances" according to a storyby Niki Kelly in the Fort Wayne Journal Gazette.

The Louisiana Supreme Court has rejected a challage to procedures the state adopted in 2003 to accommodate Atkins v. Virginia. The case involves a man facing the death penalty for a double-murder who claims that he is mentally retarded. Louisiana law requires that the claim be tried by a jury prior to trial. The trial judge ruled such claims should be decided by a judge to minimize the risk that a "death qualified" jury would make a finding and sentence a mentally retarded person to death. The story by Vickie Welborn is from yesterday's Shreveport Times. The Louisiana Supreme Court decision is in the case of Louisiana v. Turner.

Illinois Governor Ryan Sentenced

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Illinois Governor George Ryan, convicted earlier this year on corruption charges, has been sentenced to 6 1/2 years in prison. Ryan, a Republican, endeared himself to death penalty opponents in 2003 when, as one of his final acts of Governor, he commuted the death sentences every murderer on the state's death row. A story by Kevin McDermott in the St. Louis Post Dispatch discusses this latest example of corruption which has plagued Illinois for generations. An Associated Press report from the Belleville News Democrat provides an interesting time line on the Ryan case.

Blog Scan

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SCOTUSblog notes a paper by Peter B. Rutledge called "Looking Ahead: October Term 2006." It examines the major cases on the Court's October term 2006 and analyzes them in the context of the shift in membership on the Court. It can currently be found here on SSRN and will later be included in the forthcoming Cato Institute Supreme Court Review.

Sentencing Law and Policy has an array of Death Penalty discussions. The Gainesville Sun has this article by Nathan Crabbe about the state of executions in Florida. Finally, articles from Washington and Baltimore discuss the costs associated with the death penalty.

Not Qualified. Ed Whelan's National Review article on the ABA and its role in the judicial confirmation process is now available online here.

Brookings Panel on DP

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The Brookings Institute hosted a lively panel discussion on the death penalty today featuring California Congressman Dan Lungren, CJLF Legal Director Kent Scheidegger, Ruth Friedman, Director of the Federal Capital Habeas Project and Virginia Sloan, President of the Constitution Project. Click on the link to C-Span and select all recent programs (bottom of page) and you'll see the archived broadcast of this program.

UPDATE: The printed transcript is now available here.

News Scan

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A new Alabama law, which went into effect last Friday, requires an identifying mark on the driver's licenses of convicted sex offenders, according to an Associated Press story in the Decatur Daily.

More fallout from the decision by South Dakota Governor Mike Rounds to halt the execution of torture- murderer Elijah Page last Tuesday. While Round's said he acted to prevent a conflict between the state law which specifies a two-drug execution and the department of correction's three drug procedure, an Associated Press report in today's Sioux City Journal indicates that Oklahoma has executed 83 murderers since 1990 with no legal problems although the same discrepancy exists between state law and actual practice.

Death Penalty Stories

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Here are some stories on the death penalty from the long weekend:

Injection Follies:  Bill Harlan of the Rapid City Journal reports here that other states with statutes similar to South Dakota's have not had to hold up their executions to amend the statute.  He quotes advice from yours truly on not writing detailed protocols into your statutes. Meanwhile, the Tennesseean reports that Daryl Holton, who murdered his own children, has chosen the electric chair for his Sept. 19 execution.  It has not been used in Tennessee since 1960.

Iraq Rape/Murder.  The AP reports that an Army investigating officer has recommended the death penalty for four soldiers who are alleged to have raped a 14-year-old girl and then murdered her and her family.

Rwanda.  From Africa comes this report that Rwanda is poised to abolish the death penalty, not because it wants to but because the Europeans are forcing it to by refusing extradition of alleged perpetrators of genocide.  The people are very much against it, but their opinion doesn't count.  This extorted abolition will, in due course, be held up as another example that the whole world is turning against the death penalty, just as we saw in Eastern Europe

Forum. Tomorrow's death penalty discussion at the Brookings Institution will be covered on CSPAN3, according to the CSPAN Web site.

Candidates in MySpace

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The Fresno Bee has this story on political candidates putting up MySpace pages, including California AG candidates Chuck Poochigian and Jerry Brown. Pooch's slogan is "Tough to pronounce. Tougher on crime."  Rats, I wish I'd thought of that. Jerry gives us the unimaginative, "Support my campaign for Attorney General."

SCOTUS Notes

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The U.S. Supreme Court has issued the third and last of its summer orders lists. It's pretty routine stuff. A fellow named Alan Ernest, who tries to get into every abortion case, continues to be the only person regularly denied leave to file an amicus brief.

Discussion of the decline in the number of female law clerks continues. Links are available at SCOTUSblog here and here. Bench Memos has some posts under the heading "Vapors from Greenhouse." Personally, I am less concerned with the sex and ethnic mix than I am with the high court's dependence on people of limited maturity and experience, drawn mostly from a handful of schools.