October 2006 Archives

Habeas Statute of Limitations

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The Supreme Court heard oral argument today in the case of Lawrence v. Florida. The transcript is available here. Under AEDPA, the one-year statute of limitations to file a habeas corpus petition in federal court begins running in most cases when the time to file a certiorari petition to the U.S. Supreme Court expires or, if a petition is filed, when the Court denies certiorari. However, "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). Lawrence presents the question of whether to count the time when the state courts have finished with the post-conviction petition, but the petitioner still has time to ask the U.S. Supreme Court to review the case, the Court is considering whether to review it, or the Court has taken it and is considering the merits.

Louis Morin at UCLA asked us to post the following announcement, which we are pleased to do:

Announcing new SSRN journal: Corrections and Sentencing Law and Policy. UCLA law professor Sharon Dolovich and Washington University law professor Margo Schlanger are co-editors of a new Social Science Research Network journal, Corrections and Sentencing Law and Policy. Corrections and Sentencing Law and Policy Abstracts will provide a forum for works-in-progress, abstracts, and completed articles dealing with the broad range of doctrinal, theoretical, and policy issues relating to the punishment, sentencing, and re-entry of convicted criminal offenders. Topics include (but are not limited to) prison and jail conditions and life; prisoners' rights; probation, parole, and re-entry; prison and jail administration; imprisonment and diversionary sentencing, and the death penalty. The journal also invites submissions dealing with the implications of incarceration and other criminal punishments for families, communities, and society as a whole. Contributions from all disciplines are welcome, and scholars working in this area are encouraged to submit their work.

News Scan

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Judical Elections The race for a seat on the Georgia Supreme Court has gotten nasty, as sitting justice Carol Hunstein faces a challenge from former Bush administration lawyer Mike Wiggins. Georgia has contested elections for members on its Supreme Court. The two candidates faced each other in a spirited debate yesterday according to an Atlanta Journal Constitution story by reporters Jill Young Miller and Jeremy Redman.

The Six-Year Itch

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Michael Barone gives us this historical review of 6th-year elections from Reconstruction to the present in the Wall Street Journal (free site). The 1874 election was particularly disastrous. "[M]y reading of history tells me that this was a revolt against Grant's policy of stationing troops in the South to enforce civil rights for blacks. Americans had been growing weary of this strife ... and wanted the troops sent home. They were, and Democrats held the House for 16 of the next 20 years--and Southern blacks were left to the mercies of segregation laws and lynch mobs."

Barone concludes, "I don't know what the results of the midterm elections of 2006 will be. But I doubt that they will have the sweeping partisan or policy consequences of the midterm elections of 1874 and 1894, or 1938 and 1994." For the sake of law-abiding people and victims of crime, I hope he is right. The possibility that 2006 may be for criminals what 1874 was for the Klan is a spooky thought for Halloween.

News Scan

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City Crime Rates. The AP reports here on a rank-ordered list of cities from safest to most dangerous, based on the FBI's Uniform Crime Reports. Where is New Orleans on the list, one might ask? It isn't. One of the problems in crime research is that the cities in deepest crisis sometimes have no data, because the reports that provide the raw data are a low-priority task for police departments and among the first things to be cut.

Md. AG. The Washington Post endorses Douglas Gansler for Maryland Attorney General, while hoping that he "learns the art of understatement." As the Democratic nominee, the Post notes his election is nearly certain, as no Republican has won this office since 1919.

Mental Health Reform. In Sunday's Post is this editorial calling for mental health reform in Virginia. The Post notes that overly restrictive civil commitment criteria are part of the reason too many mentally ill people are in jail. As so often happens, yesterday's "reform" is today's problem in need of reforming.


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The Monday orders list is here. There are no new grants of certiorari, the grants from the Friday conference having been announced on Friday.

The AP reports here on denial of certiorari in a Michigan rape case where the defendant got a higher sentence for lack of remorse after protesting his innocence.

The Court hears argument today on another case involving the administrative exhaustion requirement of the Prison Litigation Reform Act. SCOTUSblog previews the argument here.

Update. We now have the reply brief for the petitioner in Burton v. Waddington, courtesy of Jeff Fisher. The full set of briefs is now available here.

Duke Rape Case

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According to this Associated Press story, prosecutor Mike Nifong said in court today, regarding the accuser, "I haven't talked with her about the facts of that night. ... We're not at that stage yet." The night in question was March 13, over 7 months ago. Readers with experience in prosecuting rape cases are invited to comment on when "that stage" would normally be.

The AP also has this article on the election, which Mr. Nifong is favored to win.

Cert. Grants

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Lyle Denniston at SCOTUSblog reports that the U.S. Supreme Court has granted certiorari in the police pursuit § 1983 case of Scott v. Harris, No. 05-1631. The cert. petition via SCOTUSblog is here. The high court last pursued this issue in County of Sacramento v. Lewis, 523 U.S. 833 (1998). In the new case, Harris was the actual perpetrator, making him a less sympathetic plaintiff than Lewis, who was merely a passenger. Scott is the deputy sheriff who pursued Harris.

Also granted were a patent case, a disabilities/education case, and a tax levy case.

Update: The order is now on the Court's site.

News Scan

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Death Penalty The Florida Supreme Court has overturned the death sentence of murderer William Coday ruling that the trial judge improperly refused to allow six mental health experts to testify at the sentencing hearing. The defendant's guilt is not disputed. According to a story by Diana Moskovitz in today's Miami Herald, Coday beat and stabbed a 29-year-old woman to death nine years ago.

Alabama murderer Larry Eugene Hutcherson was executed on Thursday evening. As reported in yesterday's post, Hutcherson nearly decapitated an 89-year-old woman in 1992. More details are available in a story by Mike Carson in today's Birmingham News.

Back in Alabama The state Supreme Court has let stand an injunction requiring that felons be allowed to register to vote if their crime was one that a precedent or Attorney General opinion has indicated is not a crime of "moral turpitude." That is the criterion in the state statute, but the statute does not define moral turpitude. The secretary of state had been applying a blanket ban. The trial court judge also ordered that all felons be allowed to register until the legislature clarifies the law but stayed that portion of his order. The opinion does not appear to be available at any free site, but details are provided in a report by Associated Press writer Jay Reeves.

Habeas Delays


In 2004, Congress enacted a victims' rights statute for federal criminal cases, 18 U.S.C. § 3771. Among the rights are, in subd. (a)(7), "The right to proceedings free from unreasonable delay." Unlike many victims' rights statutes, this one actually has an enforcement provision, with a procedure for a petition for writ of mandamus by the victim in the event rights are denied and a 72-hour deadline to decide the petition.

On October 20, the Ninth Circuit announced proposed rules for a special caption on any such petition and notice by telephone, to help it comply with the 72 hour requirement. The proposed rules have a short comment period, ending November 3.

The rules are sensible, but why the rush now, when this statute has been in effect for two years? Well, it just might have something to do with the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, § 212 (July 27, 2006), which extends both the right and the remedy to habeas corpus proceedings. The right is actually not new in capital cases, as the Supreme Court set down a rule almost 15 years ago, "In a capital case, the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case." In re Blodgett, 502 U.S. 236 (1992). However, in the Ninth Circuit, this rule has not been honored in the breach, and there has been no observance. Could it be that now that Congress has enacted a rule with some teeth, they are anticipating a flood of mandamus petitions? Might that anticipation be the result of awareness that they have been flouting the Blodgett rule the whole time?

Meanwhile, back at the ranch, the Stockton Record reports that the judge in the Michael Morales injection case has granted an extension to Morales's lawyers, further delaying justice in a case where it is already two decades overdue.

News Scan

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Rolling Execution. The Gainsville Sun has coverage on the victims' families and on the demonstrators.

Canada Crime Leg. The Globe and Mail has this article on controversial crime legislation in Canada. The controversies include mandatory minimums and "three strikes."

Padilla Jury. The federal district court in Miami will begin jury selection for Jose Padilla with a pool of 3000, reports the AP.

Terrorist Habeas. Carol Leonnig and Julie Tate of the Washington Post have this article on the habeas petition of Ramzi Binalshibh, "an admitted al-Qaeda planner of the Sept. 11 attacks."

22nd Inmate Executed in Texas this year. Gregory Summers was executed yesterday in Texas and was pronounced dead at 10:16 p.m. E.D.T. Summers offered Andrew Cantu $10,000 to murder his parents and uncle in 1990 in an attempt to collect the life insurance. The AP story reports that Cantu was executed in 1999 for his role in the murder for hire plot.

Scheduled Execution in Alabama. Larry Eugene Hutcherson, 37, is scheduled to be executed by lethal injection this evening at 6:00 p.m. C.D.T. In the process of buglarizing a mobile home in June of 1992, Hutcherson murdered 89-year-old Irma Thelma Gray. The medical examiner stated that the cut to Gray’s throat was so severe, she was nearly decapitated. Read the complete AP story here.

Lifeless Infant Found. A Funeral Home in Buffalo, New York, opened a package that was delivered yesterday to find a dead infant boy inside. According to the AP story a note was also found inside the package, but detectives are yet to reveal what was written on the note.

The Drug Court Fraud

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Guest Post by Steven K. Erickson, J.D., LL.M., Ph.D., MIRECC Fellow, Yale University

Drug courts are widely popular these days and have been heralded as a progressive system for dealing with chronic behaviors that often involve “revolving-door” defendants who cycle in and out of the criminal justice system. Indeed, state and federal governments have largely bought into this model of handling highly recidivistic crimes. In 2004, the GAO reported over 1,700 drug courts were in operation nationwide and a projected $69.86 million dollar budget for 2007. But there are serious question about drug courts, both in terms of effectiveness and policy.

Read the full article, The Drug Court Fraud

News Scan

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Rolling. Danny Rolling was executed in Florida 16 years after he murdered five college students, the AP reports. Justices Stevens and Breyer dissented from the Supreme Court's order denying a stay.

Cal AG Race. There will be no court decision on whether Jerry Brown is legally qualified to be Attorney General of California until after the election, according to the Sacramento Bee.

Guns Down Under. Don Weatherburn, director of the New South Wales Bureau of Crime Statistics and Research, has this article in the Sydney Morning Herald on a study showing that a gun buy-back program had no impact on the homicide rate.

New Jersey Death Penalty

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CJLF's Legal Director Kent Scheidegger testified today before the New Jersey Death Penalty Study Commission. His testimony is available here. Also available here is the prepared statement of New York Law School Professor Robert Blecker (in MS Word). The Commission's Web site is here, and transcripts of the hearings (through Sept., so far) are here.

News Scan

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Intoxication Defense A Missouri murder case has rekindled the discussion on the intoxication defense to murder. A Kansas City Star article by Joe Lambe focuses on the murder conviction of a Jackson County man who, while high on PCP, murdered two women. After a bench trial, the judge found him guilty, citing a Missouri law which forbids an intoxication defense. The defense is appealing, arguing that the state law is unconstitutional and their client is guilty of manslaughter. The U.S. Supreme Court's divided holding in Montana v. Egelhoff upheld such laws, leaving states with the option to allow the defense or not. O'Connor dissented, Ginsburg concurred so the rule seems safe today.

Death Penalty The New Jersey Supreme Court joined the nation's other death penalty states yesterday, upholding a New Jersey law which places the burden of proving mental retardation in capital cases on the defendant rather than the prosecution. The Court's 5-2 decision in State v. Jimenez is discussed in an Associated Press story by Beth Defalco.

Historic Preservation. The Wall Street Journal (subscription) has this story on the struggle of residents of San Francisco's Tenderloin district to preserve the area's historic character as a treeless zone of drugs and prostitution.

Lethal Injection The United States Supreme Court has denied review of an Ohio murderer's lethal injection challenge. Jeffrey Lundgren, convicted of murdering a family of five, is scheduled to be executed today. On Monday, the Sixth Circuit lifted a stay, denying Lundgren the opportunity for review of his claim that lethal injection violates the Eighth Amendment. The Associated Press story by John McMcCarthy is available here.
Update: Lundgren was executed this morning at 10:26 E.D.T. according to this story.

Florida murderer Danny Rolling is scheduled for execution tomorrow. Local authorities are expecting large demonstrations on both sides according to a story by Gainsville Sun reporter Nathan Crabbe.

Updated Sex Offender Registry A story on the new in-depth changes to Missouri’s sex offender website can be found here.

News Scan

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Crime Rates The discussion of crime rates intensifies in election years. The Massachusetts Governor's race has focused on the fact that the state's violent crime rate is far higher than the national average as reported in a story from the Lowell Sun by Rebecca Fater. For every violent crime except homicide Boston has a higher rate per 100,000 than Los Angeles.

Supreme Court An article in the San Jose Mercury news discusses Justice Anthony Kennedy's status as a lonely "swing vote", after the retirement of Justice Sandra Day O'Connor. The piece by Nancy Benac provides an insightful contrast between the approaches of Kennedy and O'Connor.

Death Penalty

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An interesting article you won't see in any major newspaper. Former Canadian Socialist Aaron Goldstein discusses the reasons he has abandoned his opposition to the death penalty for the worst murderers in a piece in this morning's American Daily.

More on Cal AG Flap

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Plaintiffs' counsel has graciously provided us with the points and authorities in support of the complaint. Government Code § 12503's requirement of admission to practice in the five years preceding election is the same as the language of the former requirement for judges, Cal. Const. Art. VI former § 23 (repealed 1966). That section was construed in Johnson v. State Bar, 10 Cal. 2d 212, 216, 73 P.2d 1191 (1937) to mean "that the candidate for such position be qualified as an attorney actually entitled to practice in the state courts...," which an inactive member certainly is not.

Curious as to how Mr. Brown might answer this, I went to his campaign web site. The only thing I found there was this reference to and excerpts from this editorial in the Metropolitan News-Enterprise, a Los Angeles legal newspaper. However, the editorial writer is apparently unaware of the Johnson case, even though the paper's reporter Steven Cischke spoke with counsel for the plaintiffs. In Cischke's story, "Zachary Wasserman of Wendel, Rosen, Black & Dean in Oakland called the suit a 'publicity stunt' that 'has no merit.'" Given Johnson, the plaintiffs' position seems solid, but we will wait to see what legal authority the Brown camp can muster to match their bluster.

Cal AG Race Bombshell?

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There has been an interesting development in the race for Attorney General of California. The AP reports that a lawsuit was filed today challenging whether Democratic nominee Jerry Brown is legally qualified for the office.

California Government Code § 12503 provides, "No person shall be eligible to the office of Attorney General unless he shall have been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election or appointment to such office." Mr. Brown's online record at the State Bar indicates that he was an inactive member from 1/1/1997 until 5/1/2003.

News Scan


Habeas and Gitmo. John Yoo has this article in the Wall Street Journal (free site) on the Military Commissions Act, which he sees as a rebuke to the Supreme Court's decision in Hamdan v. Rumsfeld.

Landrigan. James J. Kilpatrick has this article at Town Hall on the case of Schriro v. Landrigan, pending in the Supreme Court, noted previously here. (Hat tip: Howard Bashman.)

Death Penalty Florida executed Arthur Rutherford today, 21 years after he stripped and drowned a 63-year-old widow in her bathtub. The Supreme Court rejected Rutherford's challenge the state's lethal injection process yesterday, which is bad news for Danny Rolling, the confessed murderer of five college students, scheduled to die for his crimes next week, according to a story by Nathan Crabbe in the Gainesville Sun.

Bobby Glen Wilcher, who's lethal injection challenge was also turned down by the High Court yesterday, was executed in Mississippi this morning. Wilcher was convicted of the brutal stabbing death of two women 24 years ago. The story from the Jackson Clarion Ledger by Jimmie Gates is here, and the AP story by Jack Elliott is here.

Kansas v. Marsh Rages On. Jonathan Starble of Legal Times has this article on that bitter intracourt dispute from last June in the Marsh case -- whether to add an additional "s" when forming the plural of a word that ends in "s," such as "Kansas." James Taranto at OpinionJournal.com also weighs in on this burning topic.

Rutherford and Wilcher Orders

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The Supreme Court issued five orders denying all relief in the Rutherford and Wilcher cases. The only noted dissent is Justice Stevens' in Rutherford's Eleventh Circuit case.

Serious Error in Ken Lay Trial?


The AP reports that Ken Lay's conviction was vacated in federal district court today. Overturning of a criminal judgment is per se proof that a serious error occurred at trial. Further, the high percentage of overturnings of convictions of CEOs of very large corporations is proof that the system of trying CEOs is broken. We should all start wringing our hands and call for an immediate moratorium on the trial of mega-CEOs until this broken system is fixed.

The foregoing drivel is strikingly similar to an argument we have heard with some regularity in the death penalty debate. However, the argument was taken seriously in the death penalty context. A judgment may be overturned in a criminal case, even though everyone involved in the trial performed correctly, because of events occurring after the trial. In Lay's case, the defendant died during the appeal, and the federal courts still adhere to the bizarre rule that this results in automatic vacation of the sentence. (Imagine an appellate attorney discussing this rule with his client. "You want a guaranteed reversal?  Yes, I can do that, but there's just one small catch.")

In capital cases as well, a trial conducted in full accord with the rules in effect at the time may be reversed if the rules change down the road. For example, capital sentences have been reversed because: (1) the jury was instructed with the original Texas special issues, considered and upheld as a valid method of sentencing in Jurek v. Texas; (2) the jury was given evidence of the impact of the crime on additional victims in accordance with a statute of the state, erroneously declared unconstitutional in Booth v. Maryland, which was overruled in Payne v. Tennessee; (3) the judge rather than the jury found the circumstances that qualified the case as capital, a procedure expressly approved in Walton v. Arizona; (4) the jury considered mild retardation as a mitigating circumstance rather than a categorical exclusion, a mode of proceeding upheld in Penry v. Lynaugh. I could go on and on, but that's enough.

O'Connor at the Ninth

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Retired Justice Sandra Day O'Connor sits by designation on the Ninth Circuit today. It would have been fun to see her in argument on a habeas case with one or more of the judges who seem to be unable to understand Teague v. Lane, 489 U.S. 288 (1989) and Williams v. Taylor, 529 U.S. 362 (2000), so she could explain the binding precedents to them in person, but no such luck. For the sole habeas case on her docket, Laird v. Schriro, she is teamed with Judges Tallman and Graber, two of the more reasonable judges appointed by President Clinton. In the three wrongly decided Ninth Circuit habeas cases presently before the Supreme Court, Judge Tallman joined the dissent from denial of rehearing en banc in all three, and Judge Graber joined it in Bockting, the one where en banc was most needed due to the breadth of the issue. Laird is the formerly capital case of one of the young killers spared by Roper v. Simmons.

Update (10/19): Howard Mintz has this story in the San Jose Mercury News on the argument. "Known for tough, biting questions on the Supreme Court, O'Connor didn't press lawyers in any of the four cases very hard. In fact, she asked just one question in each case, showing little expression beyond an occasional smile."

Wilcher Execution

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The Fifth Circuit today affirmed the District Court's denial of relief to Mississippi murderer Bobby Glen Wilcher. Wilcher was previously a "volunteer" who knowingly and voluntarily dismissed his habeas petition. The Supreme Court granted a stay last July while it considered a certiorari petition, noted here, but that stay automatically terminated when the Court denied certiorari on the First Monday, noted here. The execution is scheduled for tomorrow.

FRCP Rule 60(b) allows the losing party in a civil case to seek relief from judgment under certain circumstances. "I changed my mind" is not one of them. Application of the rule to habeas cases was the subject of Gonzales v. Crosby, 545 U.S. 524 (2005).

Hat tip: Sonny White

News Scan

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Aid and Comfort. Larry Neumeister of AP has more on the astonishingly lenient sentence given to terrorist-facilitator Lynne Stewart. The Wall Street Journal (free site) weighs in on "radical chic and the radical sheik."

Murder Rates. Joel Jacobsen at Judging Crimes has a unique explanation for why murder rates dropped in the 1990s and now are headed back up. His hypothesis is that gang wars of the 1980s and early 1990s killed off a lot of would-be murderers who are now being replaced by a new generation.

Detainee Legislation. Lyle Denniston at SCOTUSblog has this post on the new detainee legislation and legal challenges to it. The reasons why "The constitutional 'privilege of the writ of habeas corpus' does not extend to a person captured abroad by the military as an enemy, with no other connection to the United States" are explained in Part III, pp 18-26 (PDF file pp. 28-36) of CJLF's brief in Hamdan v. Rumsfeld.

Stats. The FBI has released hate crime stats for 2005.

More News


The Supreme Court orders list today had no grants of certiorari. Lyle Denniston at SCOTUSblog discusses some of the civil cases denied. There does not appear to be much of interest on the criminal side. The Court formally denied the now-moot petition of the late Clarence Hill.

Cal. AG Race. Jill Stewart of the Wall Street Journal (free site) interviewed Jerry Brown and wrote this column in Saturday's WSJ. Last week the San Francisco Chronicle endorsed Brown, based solely on noncrime issues. Today Jim Zamora of the Chron has this article on Chuck Poochigian with a link to a podcast interview. The Stockton Record endorsed Poochigian: "thoughtful, articulate and level-headed, [he] will better fill this office's dual role of top cop and top lawyer."

The right to counsel in terrorism cases is significantly complicated by the possibility that the lawyer may be in cahoots with the terrorists and misuse attorney-client confidentiality to convey messages to and from incarcerated terrorists. The AP reports on the sentencing of attorney/carrier pigeon Lynne Stewart, who got off with a mere 28 months. Doug Berman at SL&P notes that this sentence is subject to review for "reasonableness" in the post-Booker regime and may depend on what panel of the Second Circuit gets the case.

Crime increases in multiple U.S. cities will be the focus of a new study announced by AG Alberto Gonzales in a speech to the International Association of Chiefs of Police. AP story here; full text here (pt 1) and here (pt 2).

Postconviction DNA Grants. The NIJ is accepting applications from states for grants funding postconviction DNA programs. Announcement here.

News Scan

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Death Penalty The Flordia Supreme Court has rejected convicted murderer Arthur Rutherford's claim that an American Bar Association report uncovers serious flaws in the state's death penalty. In a 6-0 ruling the court states ""The ABA report is a compilation of previously available information," according to an Associated Press story in the Gainsville Sun. The opinion is here. Rutherford is scheduled for execution on Wednesday, October 18.

Supreme Court Justice Antonin Scalia squared off with ACLU head Nadine Strossen in a televised debate Sunday. On policy issues such as homosexual and abortion rights he said "Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution," according to an Associated Press story in Forbes by Hope Yen. Video is available through the CSPAN site.

Search & Seizure In a divided opinion, the Alaska Supreme Court has declined to overturn an appeals court which suppressed drugs found by police in a Terry search of the driver of a car, ruling that there was not sufficient cause to justify the search. The facts surrounding the search, as reported in a story in today's Anchorage Daily News, seem to be quite enough to meet the reasonable suspicion threshold.


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SCOTUSblog has posted this orders list, issued today by the Supreme Court. Lyle Denniston's post on the orders is here. Update: The list is on the Court's site here.

Missing Indictment Elements. As we noted Tuesday after the oral argument in United States v. Resendiz-Ponce, the Supreme Court's review of the question of whether omission of an element from an indictment can ever be harmless error was significantly complicated by the likelihood that there was no missing element and the indictment in the case before it was not erroneous. Justice Kennedy strongly hinted that the Court might order supplemental briefing on whether there was really anything missing (a question the Government did not petition to have reviewed), and the Court so ordered today.

Texas Death Penalty. Last Friday, the Court took a Texas death penalty case on direct appeal, where the claim involves Texas's implementation of the rule of Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court effectively overruled Jurek v. Texas, 428 U.S. 262 (1976) and disapproved the Texas system it had upheld in Jurek, even while denying it was doing so. Today the Court took two Fifth Circuit habeas cases on similar points. The first case is Abdul-Kabir v. Quarterman, No. 05-11284. In the Fifth Circuit, the case was Cole v. Dretke, panel opinion here, denial of rehearing en banc with dissent here. This case was previously remanded by the Supreme Court for reconsideration in light of Tennard v. Dretke, 542 U.S. 274 (2004). The second case is Brewer v. Quarterman, No. 05-11287, Fifth Circuit opinion here. It appears that Penry issues and the Texas death penalty will be a major part of this Term. The issues are difficult because the Court has been narrowly divided on the Texas system, with narrow, shifting majorities issuing opinions that give strained interpretations of earlier decisions. It will be interesting to see how this shakes out, particularly with the new two members of the Court.

News Scan

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SF Cop Killer. David Hill, accused of killing San Francisco Police Officer Isaac Espinoza, pleaded guilty to separate gang allegations, which apparently has the effect of keeping his gang affiliation out of the murder trial, according to this article in the San Francisco Chronicle. It is not immediately apparent why it has this effect, because the evidence is relevant to motive under the prosecution's theory and should be admissible on that basis.

Insanity acquittals, although rare, do happen, even under the strict M'Naghten test. The Honolulu Advertiser reports on a NGI verdict in the killing of Park Service Ranger Steve Makuakane-Jarrell on the Big Island. Congress reinstated the M'Naghten test for federal trials following the infamous Hinckley verdict. See 18 U.S.C. § 17.

Alabama DP. The Associated Press reports on a suit filed by Alabama murderer Larry Hutcherson making a systemic attack on capital representation in Alabama, both at trial and on collateral review. However, he has already had a chance to litigate the effectiveness of his trial counsel, and there is no constitutional right to effective representation on collateral review. Congress addressed the latter issue in 1996 by offering the states the benefit of a "fast track" in federal habeas if they offered qualified counsel in state habeas. The plan failed because the federal courts reneged on the bargain, failing to give the benefit to the states that actually qualify for it, thereby negating the incentive for other states to reform.

Squeezing O.J.

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O.J. Simpson has moved to dismiss Fred Goldman's suit to seize his publicity rights, according to this story on the KNBC site. Simpson was "exonerated" (by the DPIC's definition) of the murder of Nicole Brown Simpson and Ronald Goldman, but a civil jury with the benefit of Simpson's own testimony found by clear and convincing evidence that he actually did it. The LA Superior Court's online document site says it is temporarily unavailable. Perhaps a crush of requests for these papers crashed the server. From the news story, it appears that Simpson is arguing that he now lacks the requisite "minimum contacts" with California under the International Shoe Co. v. Washington, 326 U.S. 310 (1945) line of cases. (California's "long-arm" statute, Code of Civil Procedure § 410.10, extends the Superior Court's jurisdiction to the I. Shoe limit.)

If that is really his argument, it seems far-fetched. He killed two people in California and owes a whopping judgment for their wrongful death, on which he has never paid a nickel. That alone would seem to be far more than needed to meet the requirement "that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

News Scan


Death Penalty Among the standard claims in any debate about capital punishment is that it is biased against blacks. Gregory Kane addresses this issue with an illuminating commentary on BlackAmericaWeb. It would be interesting to hear from someone who can refute his logic.

Lethal Injection The Florida Supreme Court has agreed to hear a second appeal from confessed murderer Danny Rolling after a judge ruled that his arguments against the state's lethal injection process were without merit. Rolling, who's execution is set for October 25, pled guilty to the brutal 1990 murders of five college students according to an Associated Press story

Judicial Education. Ed Whelan has this article at National Review Online on the criticism of judges attending expense-paid seminars. He contends that Senator Leahy's bill is not viewpoint-neutral but rather is "gerrymandered" to prevent judges from attending seminars sponsored by George Mason U. but allow them to attend those of the Soros-funded Aspen Institute.

Musladin Argument: Ginsburg Gets It


After reading the transcript of oral argument in Carey v. Musladin, I call for a round of applause for Justice Ruth Bader Ginsburg. Though I often disagree with her, she can be very good when she is right, and she cast decisive fifth votes in Montana v. Egelhoff, 518 U.S. 37 (1996) and Medellin v. Dretke, 544 U.S. 660 (2005). Several of her comments in today's argument are noteworthy.

Today's Arguments


Preargument coverage on Musladin: Howard Mintz in the San Jose Mercury-News, Pete Yost for the Associated Press, a characteristically clueless editorial in the New York Times, and Amy Howe at SCOTUSblog. On Cunningham: Bob Egelko in the San Francisco Chronicle, Doug Berman at SL&P on where the Court's newcomers may come out, a preview by a student who helped write an amicus brief supporting Cunningham at SCOTUSblog.

Update (11:08 PDT). The AP story link now points to post-argument coverage. The Cunningham transcript is up.

Update 2: The Musladin transcript is up. Here is post-argument coverage by Howard Mintz in the S.J. Mercury-News and David Savage in the LA Times.

News Scan

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Death Penalty Missouri law allows a trial judge to sentence a convicted murderer to death if the jury deadlocks. Earlier this month a jury convicted Scott McLaughlin of first degree murder and separately found aggravating circumstances. After hanging on the sentence, the jurors were dismissed, leaving the trial judge to choose between LWOP or a death sentence. According to a story by William Lhotka in the St. Louis Post Dispatch, both the Attorney General's Office and the state Public Defender are uncertain if a death sentence from the judge will withstand a Sixth Amendment challenge.

The Supreme Court heard oral argument today on a Ninth Circuit ruling which overturned a federal conviction because the grand jury indictment did not allege an overt act toward carrying out the defendant's intent to illegally enter the United States after previously being deported. The defendant was subsequently convicted at trial on evidence that he used false identification to cross the U.S. border with Mexico, according to an Associated Press story by Mark Sherman. The case is United States v. Resendiz-Ponce, No. 05-998.
Update: The transcript is available here. It appears that the Supreme Court's review of this case is significantly complicated by the likelihood that the Ninth Circuit is wrong on the merits and there is nothing defective about this indictment, but the Government did not petition for certiorari on that question. On page 53, Justice Kennedy suggests that rebriefing may be in order to address the merits of the underlying question.

"The Innocent Man". Joshua Marquis reviews John Grisham's latest in the Wall Street Journal (subscription).

SCOTUS This Week

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The Supreme Court takes today off in honor of Christopher Columbus. Tomorrow, the Court considers in United States v. Resendiz-Ponce, No. 05-998, "Whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error." This involves the (only?) criminal provision of the Bill of Rights that still doesn't apply to the states.

Wednesday is a big day for criminal law. In Carey v. Musladin, Judge Reinhardt is up for another AEDPA spanking for declaring a state-court judgment "unreasonable" despite the fact that it is in accord with the overwhelming weight of authority in the area and contrary only to an idiosyncratic Ninth Circuit case. The decision is an exemplar of precisely what Congress intended to prohibit when it enacted 28 U.S.C. § 2254(d). The case involves the homicide victim's family wearing buttons with his photo during the trial. CJLF's press release is here, and our brief is here. A set of links to all the briefs is here.

Also up Wednesday is Cunningham v. California, which will decide if California escapes the Blakely tsunami. Doug Berman has links to his many posts and the briefs here.


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On Sept. 30, David Bernstein of George Mason U. Law had this article in the Wall Street Journal (subscription) bemoaning that "despite far-reaching reforms, junk science still plagues American courtrooms." Prof. Bernstein considers the standard of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) to be a "strict test" which results in the exclusion of junk science allowed in by the tests used in many states, including most of the largest states.

In today's WSJ, there is a responsive letter by Elliott Foucar, M.D. of Albuquerque noting that the problem is not so much the test used but rather that scientific judgments are being made by judges who very often lack even the most minimal qualifications for making them.

I am inclined to agree with Dr. Foucar. The decline of core curricula in America's colleges means that people can often earn bachelor's degrees without even an introductory course in the sciences, and then they go on to law school, become lawyers, and become judges without any exposure to science other than what they pick up in the course of their cases. A motion to exclude scientific evidence often means a crash course for the judge, but no matter how diligent or dedicated the judge may be in this self-education, a crash course can never be a substitute for years of study. Dr. Foucar suggests that judges consult unbiased experts of their own, rather than relying on the competing testimony of experts-for-hire, and that professional boards scrutinize the testimony of the hired experts for ethical violations.

Those steps would be worthwhile, but I would go a step further. Trial judges should be able to certify scientific questions of evidence to a special science court, composed of a judge and several scientists who are knowledgeable in the general field but noncombatants in the particular controversy. Let scientists who propose new techniques and claim wonderful results for them testify before a panel of people who really understand the science, and let them decide what is reliable enough for proof in a court of law, using a strict standard.

News Scan

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Felons and Bullets. A RAND Corp. study funded by NIJ finds that ammuntion sales to felons who are legally prohibited from buying ammo are common. RAND's release is here, and an LA Times story is here.

Forensic Nursing. Newsweek has this article on forensic nursing, a specialty that involves both assistance to the rape victim and preserving evidence to prosecute the rapist.

NY Crime. The New York Sun has this editorial on the Big Apple's falling crime rate and how its rival the Gray Lady manages to find a cloud in the silver lining.

Mass. Gov. The Boston Herald has this editorial on crime and the Massachusetts Governor's race.

Science News

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This article in Forbes describes a study finding that a particular area of the brain is related to the tendency of people -- unlike any other animal -- to value fairness over self-interest in some situations. No doubt we will soon see claims made in defense or mitigation that the defendant's fairness switch was broken.

Election Notes

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Although this is a blog about crime and not politics, anyone who cares about fighting crime must necessarily care about the election of people who set policies related to crime. We will therefore note crime-related news about the November election here.

Maryland Gov.. John Wagner of the Washington Post reports on crime issues coming to the fore in the Maryland Governor's race.

Cal AG. The California AG candidates' debate before the San Francisco Chroncle editorial board yesterday is available here. The debate was somewhat disappointing in that an insufficient portion of the time was spent on the AG's primary job -- criminal cases -- while time was wasted on utterly irrelevant topics. Whatever one thinks of stem cell research, the Attorney General has little if anything to do with it. The death penalty discussion was superficial. What we really want to know from both candidates is what, if anything, they are going to do to break the logjam.

Mr. Brown accused Mr. Poochigian of quoting him misleadingly and out of context regarding his talk-show statements in the wake of the execution of the "freeway killer" William Bonin. We found this link to the full text of Mr. Brown's remarks through Capital Defense Weekly, so it is safe to assume this is not some right-wing distortion of what he said. Judge for yourself which candidate's characterization of the remarks more accurately captures the essence.

Smith v. Texas, the Sequel

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The Supreme Court today granted certiorari, again, in the case of Texas murderer LaRoyce Smith, this time for full briefing and argument. The previous per curiam opinion is here, the Texas CCA opinion on remand is here, and the docket is here.

Ig Nobel Prizes

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The Annals of Improbable Research has announced the annual Ig Nobel prizes. (Their server appears to be overloaded at the moment, so you may have difficulty with the preceding link.) Most relevant to our work is the prize for literature awarded to Daniel Oppenheimer of Princeton University for his report "Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly."

Rutherford on Remand


The Eleventh Circuit has issued a split decision in the case of Rutherford v. McDonough, a companion case to Hill v. McDonough, the lethal injection case decided by the Supreme Court on June 12. Judges Carnes and Hull are more than a little ticked off at counsel for Rutherford, who among other things petitioned the Supreme Court for a writ of mandamus ordering the Eleventh Circuit to expedite its decision without (1) first asking the Eleventh itself to do so; or (2) mentioning to the Supreme Court that counsel herself had contributed to the delay by taking a vacation in the middle of the briefing and then asking for an extension. They are also displeased that the Governor signed a death warrant three days before this mandamus petition and no one bothered to tell them.

In substance, the opinion follows that of another Eleventh Circuit panel in the case of the late Clarence Hill. You can't wait until the eve of execution to challenge a method adopted five years earlier. Judge Wilson dissents.

Thanks to Dave Pancione for bringing this decision to our attention.

News Scan

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Cal. AG Race. The San Francisco Chronicle is having candidates seeking its endorsement debate in public rather than being interviewed in private, according to this story. Today's debate between AG candidates Chuck Poochigian and Jerry Brown will be webcast on www.cbs5.com at 2:00 p.m. Left Coast time. The recording will be available at that site afterward until election day.

Mass. Gov.. Virginia Buckingham of the Boston Herald has a column on the efforts of gubernatorial candidate Deval Patrick to obtain clemency for a brutal rapist.

Cal. Prisons. Yesterday, the Governator declared a state of emergency in California's overcrowded prisons. This authorizes him to ship prisoners out of the state on contract. He had previously called a special session of the Legislature so that it could deal with the problem, but it didn't. Jenifer Warren reports here in the LA Times.

al Qaeda. Rivkin and Casey have an op-ed in the Wall Street Journal (subscription) on the perennial question of whether to treat the terrorist threat as a military issue or a law enforcement issue.

Foley. Richard Schmitt of the LA Times has this article questioning whether disgraced ex-Congressman Foley actually broke any criminal laws. Also discussed is the question of whether there should be a simple age of consent for teenagers or an age plus differential, so that teens who have consensual sex with each other are not branded as sex offenders. The latter issue came up during the oral argument in Connecticut v. Doe, with a strong hint from the high bench that Megan's Laws would be unconstitutional if they included Romeo and Juliet.

Getsy Filing


On September 29, the Sixth Circuit granted CJLF's motion to file an amicus brief in support of Ohio's petition for rehearing en banc of the astonishing opinion in Getsy v. Mitchell, previously noted here The brief is available here. The habeas petitioner's response to the rehearing petition was due yesterday, but has not shown up on the PACER docket yet.

Stay Granted in Surveillance Case

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The Sixth Circuit granted a stay in the NSA surveillance case, ACLU v. NSA. Dan Sewell of the Associated Press has this article, in which he describes the program: "The program monitors international phone calls and e-mails to or from the United States involving people the government suspects have terrorist links." The headline writer (who is usually not the reporter) apparently didn't read the article and captioned it, "Court Temporarily OKs Domestic Spying."

December Calendar

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The Supreme Court's "December" calendar (which actually begins in late November) is available here. There are a grand total of zero criminal cases, strictly speaking, on the calendar. The one crime-related case in Gonzales v. Duenas-Alvarez, regarding deportation of aliens convicted of theft.

News Scan

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Belmontes Case. Layla Bohm of the Lodi News-Sentinel has this article on the Belmontes case, argued yesterday, as seen by the parents of Steacy McConnell.

Judicial Independence. Judge William Pryor of the Eleventh Circuit has this op-ed in the Wall Street Journal, saying that the claims that judicial independence is in danger are overblown.

Patriot Act Challenge. Three years after hearing argument in the ACLU-led challenge to the Patriot Act, Judge Denise Page Hood of the Eastern District of Michigan has issued a decision. No, she hasn’t decided the constitutionality of the Patriot Act. She only decided that the plaintiffs have standing and the case can move forward. The AP story is here.

Bite attack gives murderer additional 10 years in prison. Hours before Laurence Jackson Jr. murdered a sheriff’s deputy and wounded another in 2003, he attacked and bit William Gone in the nose, ear and finger. Jackson who is already serving back to back life sentences for the above-mentioned crimes, was sentenced Monday to 10 additional years in prison by a U.S. District Judge. According to the AP story, doctors sent Gone’s family members searching for the missing parts in hopes of reattaching them.

Burton Briefing

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The "bottom side" briefs have been filed in Burton v. Waddington, the Blakely retroactivity case. The briefs so far (all except the reply) are collected here.

As the State's brief and CJLF's amicus brief point out, the Court made a stunningly poor choice of vehicle for deciding Blakely retroactivity. There is a huge jurisdictional question that the Ninth Circuit just blew by. If the Supreme Court actually affirmed that holding, it would be more important than the question they actually took this case to decide. In addition, Burton's sentence is legally justified entirely on his criminal record without any other facts. The state appellate court so held, and this holding of state law is binding on the federal habeas court. Unless the Court wants to overrule Almendarez-Torres v. United States, there is no Blakely error here.

Notes on the Belmontes Argument

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The same-day transcript is obviously in need of editing, but that's understandable considering the speed with which it was produced. We appreciate the Court making this available. It is a great help to those of us out in the hinterlands who can't attend the arguments in person. Here are a few observations.

It has been noted that there is a substantial negative correlation between the number of questions a Justice asks a party and the way he or she finally votes. Applying this crude measure, we have the unsurprising tally that Chief Justice Roberts and Justice Alito asked more questions of defense counsel and Justices Stevens, Souter, and Ginsburg directed more questions to the State. Justice Thomas asked no questions, as is his custom, but given that he has voted against every attempt to expand the Lockett v. Ohio rule since he joined the Court, including his magnificent concurring opinion in Graham v. Collins, 506 U.S. 461 (1993), his position is not hard to predict. Justice Scalia actually directed about equal numbers of questions to each party, but his questions to the State were softballs. No mystery here, either.  Ex-Professor Kennedy probed both parties, as is his custom, and his position is not predictable this way. The surprise is Justice Breyer, who asked nothing of the State and grilled the defense. In Brown v. Payton, Justice Breyer concurred with the majority solely on the basis of AEDPA and indicated that he would have voted to reverse but for the deference standard, which is not applicable in the pre-AEDPA Belmontes case. However, he may find this case distinguishable from Payton based on the trial counsel arguments.

Belmontes Argument

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The Supreme Court begins arguments for the term today with the capital case of Ayers v. Belmontes. CJLF's press release is here. Belmontes beat 19-year-old Steacy McConnell to death with a dumbbell bar in Victor, California, in 1981 just to steal her stereo. Mark Sherman of AP reports here, although more of the story is devoted to the immigration case on today's docket. CJLF's brief is here. A collection of briefs in the case is here.

Update (12:45PDT). As advertised, the Supreme Court has made the transcript available the day of the argument.

News Scan

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On the Waterfront--Still. John Fund has this piece in OpinionJournal.com: "Congress is patting itself on the back for passing the Port Security Act last Saturday. But the day before, a House-Senate conference committee stripped out a provision that would have barred serious felons from working in sensitive dock security jobs."

Gagging Gloria Allred The Supreme Court has rejected attorney Gloria Allred's challenge to a gag order on police, prosecutors, defense counsel and attorneys representing witnesses during the trial of Scott Dylenski, convicted earlier this year of the murder of Pamela Vitale, wife of TV legal analyst Scott Horowitz. Allred represented the murderer's ex-girlfriend, who testified at the trial. She hired famed constitutional lawyer Erwin Chemerinsky to argue that the judge's order amounted to prior restraint of Allred's free speech rights according to a San Jose Mercury News story by AP writer Pete Yost.

Death Row inmate Robert Thompson, convicted and sentenced to death in 1983 for the rape and murder of a 12-year-old Anaheim boy, has died of an apparent heart attack according to a report this morning's Bay City News Wire. The story reports that after seventeen years, Thompson was still pursuing claims regarding his case in federal court and that the leading cause of death at San Quentin is natural causes.

A Journalism Ethics Lesson. The Cincinnati Inquirer has this editorial on an astonishing revictimization of a rape victim by a professor: "A year ago, a University of Cincinnati journalism professor passed out a police report with not only details of the 2002 rape, but [the victim's] name, address, telephone number, height, weight and hair color to his class. The lesson, ostensibly, was one on journalistic ethics."

Military Commissions Act. Sens. Warner, McCain, and Graham have this op-ed in the Wall Street Journal (subscription) on the compromise military commissions bill.

First Monday

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The Supreme Court formally opened its October 2006 term today. There were no arguments, today being the first day of Yom Kippur. Mark Sherman of the Associated Press reports on the first day here. The headline story in the San Francisco Chronicle is Bob Egelko's piece on the "pivotal" term. Not for criminal law, though. The only criminal case mentioned is Cunningham v. California, at the very end.

As expected there were no grants of certiorari for argument in today's orders list. The grants from the "long conference" were announced last Tuesday, and today's list consisted of denials, routine orders, and "vacate and remand in light of ..." orders. Denial of certiorari in the case of Mississippi murderer Bobby Wilcher automatically terminates the stay granted July 11 over the dissent of Chief Justice Roberts, Justice Scalia, and Justice Alito, noted here.

Of the ten criminal and crime-related cases from Tom Goldstein's "reasonable chance" list, previously reported here, two were granted last Tuesday, and the remaining eight were denied today.

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