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Landrigan Argument Tomorrow. Tuesday, January 9, the Supreme Court hears argument in Schriro v. Landrigan, one more Ninth Circuit habeas case. We will be very interested in reading the transcript and comparing it with Judge Martin's hypothesis that the Ninth is excessively deferential to the states. CJLF's press release and brief are available on our web site.

Learning Law the Hard Way. Eric Duxheimer of the Austin-American Statesman has this interesting article on a law student's introduction to the reality of the criminal justice system: as a victim.

Prison Phone Calls. The New York Sun has this article about overcharging for phone calls from prison. Perhaps this is the meritorious needle in the prison litigation haystack.

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What is particularly irritating about this case is that the real underlying issue should be not whether the the lawyer was ineffective, but whether a person can interfere with a lawyer's presentation of the case and then be heard to claim ineffectiveness on appeal. In other words, defendants who sabotage their own cases don't get do-overs. Besides rewarding a defendant for his own wrongdoing, the do-over is a grievous insult to the dignity of the court, the lawyers and the jury who participated in the trial. The American justice system rightly gives defendants numerous procedural and substantive protections--this expends a good deal of resources, resources which should not be wasted on account of a defendant who at best is simply interfering with the orderly administration of justice and at worst is gaming the system for advantage. The Ninth Circuit's ruling is just another example of the metastasized death is different "jurisprudence", which has (at least for now) swallowed up the venerable rule that one cannot create error at trial and then be heard to complain on appeal. It is not surprising that the usual suspects like Reinhardt or Berzon have swallowed this whole--but one would think Kozinski brighter than that.

Imagine the message that a victory for Landrigan would send to capital defendants (and any unscrupulous defense attorneys looking for a sandbag): mess up the case, and a sympathetic group of judges will bail you out.

There have been many many many offensive Ninth Circuit decisions over the years--this one, for its pure cynicism takes the cake. Perhaps, the Kevin Cooper nonsense is worse. I don't know. But this one is pretty bad. If habeas is reserved for those whose rights have been egregiously violated, it is difficult to see how a defendant who deliberated interfered with the very person whose function it is to ensure that his rights are observed could qualify for habeas.

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