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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.


Kent may be a little harsh on the NYTimes editorial--it is by no means the worst one to ever come down the pike. A first blush, the Ninth Circuit's decision does not look that bad, and to a lay observer (and I agree that the NYTimes editorial board should be held to a higher standard, given it's know-it-all attitude on so many issues) the argument that there was simply no justification for the picture wearing is seductive, especially given our jurisprudence's allergies to any attempt to improperly sway the jury.

Of course, cases aren't decided at first blush, nor can AEDPA be ignored. With respect to the picture wearing, one of the dissents hit on the correct point, namely, that if there are any influences on the jury (and I think the prospect vanishingly small), they are of the same species as the influence on the jury that come with the fact that we have public trials in this country.

As for AEDPA, it is quite clear that the Ninth Circuit blew it off. The NYTimes editorial really stumbles badly there.

It is refreshing to have a death penalty controversy that has simple facts, evident legal issues, and where the integrity of the cops and prosecutors is not being challenged. Setting aside the AEDPA issue, jurists on either side of the question could rationalize their desired outcome. If griping, scamming and duplicity were outlawed, these would be the kind of cases in the USSC death penalty jurisprudence.

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