December 2007 Archives

"A conservative is a liberal who has been mugged," goes the old joke. Like many jokes, there is a grain of truth in it. It is easier to be blasé about crime when it hasn't touched you personally. It is not universally true, though.

One of California's many criminals carjacked one of its most criminal-friendly politicians Saturday. Don Perata, leader of the Democrats in the State Senate, has long insured that the Public Safety Committee of that body is a graveyard for tough crime legislation. He has kept it stacked with a soft-on-crime majority and chair at all times. Saturday night in Oakland, a man with a gun told Perata to get out of the 2006 red Dodge Charger he was driving and took off with it. The car didn't belong to Perata, though. It belongs to the people of California. Laura Kurtzman of AP reports here.

So, will Perata see the light? Don't count on it.

One of my pet peeves is the imbalance in the way attorneys' fees are awarded when people sue the government, asking courts to overturn policy decisions made through the democratic process. When plaintiffs win, they get attorneys' fee awards routinely, while the government almost never gets an award for the cost of defending its perfectly legitimate, constitutional decision from an unwarranted attack. These cases sometimes involve attempts enjoin enforcement of criminal laws, and so they are of concern to everyone interested in law enforcement. This article by Jon Murray in the Indianapolis Star tells about one suit where plaintiffs were required to pay for the damage they did.

As 2007 winds down, we have another welcome piece of evidence that persons of sense are reaching critical mass at the notorious U. S. Court of Appeals for the Ninth Circuit. Judge Stephen Reinhardt, the epitome of judicial activism, has long been infamous for the rate at which he is reversed -- sometimes unanimously -- by the Supreme Court. Today, in Smith v. Baldwin, though, he was reversed 13-2 by the Ninth Circuit itself.

The case arises from the 1989 burglary of the Oregon home of Emmett and Elma Konzelman, then aged 87 and 74. Roger Smith and Jacob Edmonds entered the house. The Konzelmans were beaten with a crowbar, and Mr. Konzelman died of his injuries.

Prisons: A story by Jordan Rau in today's Los Angeles Times reports that since medical care in California prisons has been taken over by the federal courts, the corrections budget has increased by 79%. While the Times blames the public for passing the "Three Strikes" law to extend confinement for habitual criminals (and reduce crime), it also blames the state legislature for ignoring the prison overcrowding problem for so long that the federal courts have now assumed control.

Death Penalty: Now that the New Jersey Legislature has repealed the state's long-unenforced death penalty law, opponents are seeking to build momentum for repeals in other states. Among the dozen or so news stories inspired by this effort are these from Washington Post writer John Wagner reporting on the effort to abolish capital punishment in Maryland, Brian Lazenby's story in the Chattanooga Times Free Press observing an opportunity for opponents in Tennessee, and Adam Liptak's piece in the New York Times, which suggests that the nation is abandoning the death penalty (except for those cretins in Texas).

Murder Rates: Have dropped significantly in Los Angeles, as reported here in the Los Angeles Times, and in Chicago according to this story in the Sun Times, but homicides are up big time in San Francisco as reported by the Associated Press.

The Government has filed its supplemental brief after argument in the Guantanamo detainee case, Boumediene v. Bush. On Dec. 11, Lyle Denniston at SCOTUSblog had this post on the detainees' supplemental brief. The briefs discuss aspects of habeas history that are tangential at best, such as English practice in World War II.

Robert Loblaw points to a recent 4th Circuit case, U.S. v. Colonna, 06-5237 (4th Cir., Dec. 20, 2007), suppressing evidence obtained during a search of the defendant's home for child pornography involving 24 FBI agents:

The district court found that Colonna was awakened by armed agents and guarded by agents until the search and interview concluded. The home was inundated with approximately 24 officers who gave Colonna and his family members instructions; that is, they told them where to sit and restricted their access to the home. Colonna did not voluntarily request to speak with Agent Kahn. Instead, Agent Kahn requested that Colonna accompany him to a FBI vehicle to answer questions, wherein a full-fledged interrogation took place. Agent Kahn questioned Colonna for almost three hours, albeit with breaks. But, even during these breaks, Colonna was constantly guarded. Although Colonna was not placed under formal arrest, he was told twice that lying to a federal agent was a federal offense. And, at no time was he given Miranda warnings or informed that he was free to leave.

But the District Court held that since the agents informed Colonna that he was not under arrest, no interrogration took place. Not so, says the 4th Circuit:

Indeed, there is no precedent for the contention that a law enforcement officer simply stating to a suspect that he is "not under arrest" is sufficient to end the inquiry into whether the suspect was "in custody" during an interrogation.

And in a footnote:

Agent Kahn testified that he took twenty-three agents because the house was of considerable size; three stories high, four bedrooms, and a large detached garage.

Lili O. Graue, David T. R. Berry, Jessica A. Clark, Myriam J. Sollman, Michelle Cardi, Jaclyn Hopkins, & Dellynda Werline (2007), Identification of Feigned Mental Retardation Using the New Generation of Malingering Detection Instruments: Preliminary Findings, Clinical Neuropsychologist, 21(6), 929-942.

Abstract: A recent Supreme Court decision - Atkins v. Virginia, 536 U.S. 304 (2002) - prohibiting the execution of mentally retarded (MR) defendants may have raised the attractiveness of feigning this condition in the criminal justice system. Unfortunately, very few published studies have addressed the detection of feigned MR. The present report compared results from tests of intelligence, psychiatric feigning, and neurocognitive faking in a group of 26 mild MR participants (MR) and 25 demographically matched community volunteers asked to feign MR (CVM). Results showed that the CVM suppressed their IQ scores to approximate closely the level of MR participants. WAIS-III and psychiatric malingering measures were relatively ineffective at discriminating feigned from genuine MR. Although neurocognitive malingering tests were more accurate, their reduced specificity in MR participants was of potential concern. Revised cutting scores, set to maintain a Specificity rate of about .95 in MR clients, were identified, although they require cross-validation. Overall, these results suggest that new cutting scores will likely need to be validated to detect feigned MR using current malingering instruments.

The authors are all with the University of Kentucky, Lexington. Research Digest Blog has this summary.

Single drug execution: Jason Mumpower, the Republican leader in the Tennessee House of Representatives, has this op-ed in the Tennessean calling on the state to "explore other options, such as the one-drug method form of lethal injection that has not been challenged in any court." (Hat tip: SL&P) Of course, the reason it hasn't been challenged is that no state is using it. Even so, it would be harder for the opponents to challenge it given that their own experts having been saying it is better. Harder, but not impossible, as their present attack on their own previously proffered alternative demonstrates.

Parole hearing backlogs are the subject of a court-imposed deadline in California, according to this AP story by Jason Dearen. A simple way to reduce backlogs is to hold the hearings less often.

The Baze argument on lethal injection will be released in audio on an expedited basis, according to this press release from the Supreme Court.

Salim Hamdan, Osama bin Laden's driver, body guard, and weapons deliverer, is not a prisoner of war and will face a war crimes trial at Gitmo, a military judge has ruled. Ben Fox reports for AP.

Obama "Present": In the Illinois Senate, Barack Obama had a tendency to vote "present" on contentious bills, including tough crime bills, report Raymond Hernandez and Christopher Drew in the NYT. (Hat tip: Corrections Sentencing). Is this political fence-straddling? Regarding one such bill, "Mr. Obama’s aides said he was more concerned about whether the bill would be effective rather than with its political consequences. They did not explain why he did not just vote no."

Senator Jon Kyl of Arizona has delivered a small Christmas present to AUSA's, federal-case defense lawyers, and federal judges who deal with collateral review petitions by federal defendants. He added Section 511 to H.R. 660, the Court Security Improvement Act, to finally put subdivision designations on the paragraphs of the ungainly 28 USC § 2255. He notes at page S15790 of the Congressional Record that this is for convenience of reference and not a substantive change in the law. The House agreed to the Senate amendments yesterday, and the bill is headed to the White House.

The bill also moves one circuit judge seat from DC to the Ninth, to be filled by the next President. Maybe President Kucinich will nominate Stephen Yagman. Oops, sorry, this is Christmas, not Halloween.

Jonah Lehrer over at Frontal Cortex has a post (hat tip: Corrections Sentencing) that says in pertinent part:

What does this have to do with neuroscience? I think neuroscience is our last, best, and only hope of actually dealing with the drug problem. While addiction is an extremely complicated phenomenon, we now know that the brain utilizes a single chemical mechanism - the dopamine reward pathway - for everything from heroin to gambling to cigarettes. Of course, the molecular details differ in each context, but the general principle is the same. If science can find a way to selectively block the addictive properties of dopamine - without inducing a terrible range of side-effects - the societal payoff would be immense. Of course, nobody is sure that such a pharmaceutical is even possible, but even if scientists can engineer a mildly effective treatment that only works for specific substances, I think it would dramatically change the way we approach the War on Drugs.

This is an attractive and seductive idea. With all of the advances in neuroscience and addictions it's easy to believe that biological science will give us a cure for a phenomenon that is principally biochemically based. Yet it's also quite simplistic and ignores the graveyard of promising addiction treatments of the past that led us down the road of disappointment. The dopamine system is terribly complex. It is globally involved with brain function to the point of ubiquity. Thus, it is associated with a plethora of behaviors so that it is at least nominally linked to all of them. The idea that our understanding of a common dopamine pathway surrounding addictions is tantamount to a molecular key which unlocks the proverbial sobriety door belies the vast territory of the brain that remains a mystery. Our understanding is simply not that great; in many respects the field of neuroscience remains in its infancy. This is not to discount the discoveries of the field; indeed neuroscience has made tremendous discoveries about the brain that should be celebrated. Moreover, there are many promising novel pharmaceutically-based treatments for addictions deserving of our attention. But it's false hope to think that any of these current or foreseeable treatments will lead to a paradigm shift in how we deal with addictions. Ultimately, internal motivation is the key factor for long-term sobriety. For all of the methadone, buprenorphine, and varenicline, the divide between those who succeed and those who fail with sobriety lies mainly outside of biology and chemistry.

"There was no evidence that the defendant's race was related to procedural and sentencing advancement," that is, to the likelihood that a death-eligible case would move forward to a penalty trial and from there to a death sentence.

Since 2003, the Chief Public Defender of Connecticut has had in hand a study that says this but refused to release the study until it came out in litigation yesterday. Lynne Tuohy has this article today in the Hartford Courant.

Doug Berman highlights a potential case that might be granted cert by the Supreme Court involving a 30 year sentence for a teen who killed his grandparents when he was 12 years old. Ed Silverman adds an interesting twist to the case: apparently the convicted defendant, Christopher Pittman, was taking the antidepressant Zoloft at the time of the killings. There's been a lot of allegations that antidepressants have the propensity to cause suicides, particularly in children. Yet there's strong evidence against this notion (including an international study). The link between antidepressants and violence against others is even less compelling (View image)

Update: The Last Psychiatrist has this very good post about the misinterpretation of a study examining the perception of violence, kids, and mental illness:

I had thought the entire infrastructure of psychiatry rested on the very foundational idea that psychiatric disorders, especially depression, are responsible for increased risk of violence to the self. And these quotes are even more weird given that they come from Ohio and Indiana-- the two states responsible for over half the increase in female youth suicides in the whole country. You know, the increase that everyone is blaming on antidepressants.

But words are lies, and you can use loose language like "violence" and "dangerous" and "youth" and "kids"-- bending its meaning to whatever you need it to mean at that moment-- to make any point you want. The actual arguments for this position can be be flipped when necessary (e.g. Nasrallah saying a school shooting isn't "evil" but "medical illness.") You can do this if you manipulate words, e.g. conflating school shooting and suicide to "violence," and then making "violence" mean what you need it to mean at that moment.

Robert Loblaw posts about the 10th Circuit's work in the case Attorneys v. Oliver, 07-4097 (10th Cir., Dec. 18, 2007). The court affirms the disciplinary action against attorney D. Bruce Oliver who, inter alia, argued:

Oliver testified that “it’s okay not to respond” to orders to show cause because the order itself said “if you don’t [respond] your case is going to be dismissed.” . . . He felt that if the court thought a response necessary it “would say, ‘You know, you need to respond to this, and failure to respond will result in sanctions.’”

Res ipsa loquitur.

Scott Gottlieb had this editorial in yesterday's Wall Street Journal discussing the Justice Department's recent criminal prosecutions of pharmaceutical companies for marketing prescription drugs to physicians for "off label" uses. Ted Frank gives his views as well Ed Silverman. Both make good points and there's much to dislike about the heavy handed use of criminal sanctions to enforce corporate behavior in these cases. Yet, Gottlieb's essay falls short.

There is no question that off label uses of pharmaceutical drugs is both endemic and necessary. Moreover, as Daniel Carlat has emphatically suggested finding physician education not sponsored by the pharmaceutical industry is almost impossible; physicians rightly or wrongly rely on drug companies to inform them about the latest developments in pharmaceuticals. But when drug company representatives enter the realm of advising doctors on non-FDA approved uses they are indeed entering treacherous territory. Drug representatives, on the whole, have no medical training and are merely passing along company script when advising physicians about medications. This may be fine when we're talking about FDA approved uses; after all these uses were subjected to rigorous formal trials, peer review, and extensive overview by the FDA. Off label uses are exactly that: not used in conjunction with the science that supports their official use, and hence, almost devoid of the review that gives us assurances that the medicines are safe and effective. As such, the FDA concern about this practice is justified albeit the criminal path may be the wrong method to correct it by.

Convicted felons have a seemingly inexhaustable supply of reason for not submitting to the DNA testing that Congress has required. In United States v. Zimmerman, the Ninth Circuit affirmed in part, reversed in part, and remanded for consideration of Zimmerman's complaint that the drawing of blood violates his religious beliefs.

On one hand, it is tempting to say that the government should have just gone to another method rather than spending the money to litigate this issue. On the other, if the government bends every time a prisoner asserts a claimed and probably fabricated religious objection, it's going to end up doing a lot of bending.

Jane Brody has this piece in the New York Times which discusses recent findings regarding how teenagers perceive and deal with risk:

Is it that teenagers think that they are immortal or invulnerable, immune to the hazards adults see so clearly? Or do they not appreciate the risks involved and need repeated reminders of the dangers inherent in activities like driving too fast, driving drunk, having unprotected sex, experimenting with drugs, binge drinking, jumping into unknown waters, you name it?

None of the above, says Valerie F. Reyna, professor of human development and psychology at the New York State College of Human Ecology at Cornell. The facts are quite the opposite. Scientific studies have shown that adolescents are very well aware of their vulnerability and that they actually overestimate their risk of suffering negative effects from activities like drinking and unprotected sex.

That's funny, I thought the psychological community was in agreement that "the characteristics of adolescents" were "as a group, are not yet mature in ways that affect their decision-making." At least that was the position of the American Psychological Association when it came to the juvenille death penalty. Indeed, the APA stated in it's brief that during adolescence the "brain has not reached adult maturity, particularly in the frontal lobes, which control executive functions of the brain related to decision-making." What they failed to mention, however, is that the process of myelination (which is what the APA brief was alluding to) is not complete until around age 50.

A good reason why institutions like APA should not take such strong positions on issues like the juvenile death penalty is because the science is rarely as settled as they make it out to be. We have a lot yet to learn about the human brain and development. Yet, when science enters the legal and political arena it risks its credibility when later discoveries, like those mentioned in the Times article, undermine positions that were so strongly held in the past.

Interrogation Overreaction: Stuart Taylor at National Journal asks, "Does Congress really want to make it unlawful for the CIA to threaten to slap Osama bin Laden (if he is captured) in the face?" (Hat tip: How Appealing)

Executions numbered 42 this year, down 11 from last year mostly because of the Baze v. Rees injection litigation, reports Robert Barnes in the Washington Post. New death sentences are also down for various reasons, one of which is simply the decline in the number of murders, according to "a prominent death penalty proponent."

New Jersey: "Marilyn Flax, whose husband was abducted and murdered in 1989, vowed to work against Corzine and the lawmakers who voted last week to abolish the death penalty. 'I will make sure my voice is used and they are not re-elected,' she said" in this AP article byTom Hester.

"Children." That is how the soft-on-crime crowd likes to refer to people under 18 when they commit crimes. Of course, when teenagers are victims of crimes, that word is completely inappropriate. The 14- and 16-year-old girls raped and murdered by Jose Medellin were "young women," i.e., adults, according to counsel for Medellin. Is there any other context in modern society where people routinely refer to teenagers as "children"? Try standing in front of a class of high school seniors and saying, "Good morning, children," and see what kind of reaction you get. When we want to refer to all persons below the age of majority, we generally say "minors" or "juveniles."

Of course, teenagers are neither children nor adults. This is a transition stage of life, and we need to consider it separately. On the question of whether teenagers who commit crimes should be tried in regular criminal court or juvenile court, the correct answer is, "It depends." This AP story by Helen O'Neill provides a prime example of a case where juvenile court was absolutely the wrong answer.

From the NCJRS Weekly Accessions List:

Attitudes of Members of the Association for the Treatment of Sexual Abusers Towards Treatment, Release, and Recidivism of Violent Sex Offenders: An Exploratory Study, Journal of Offender Rehabilitation, Volume:44 Issue:4  Dated:2007  Pages:17 to 24, Michael J. Engle ; Joseph A. McFalls Jr. ; Bernard J. Gallagher III:  "The findings suggest that the popular belief that sex offenders cannot be cured is shared by professionals who work with and/or study these offenders. A large majority (63 percent) of the professional respondents reported little hope for a cure, and 88 percent reported a fear of recidivism after treatment."

Victims' Rights is the subject of this story by Emma Schwartz in U.S. News and World Report. Paul Cassell is quoted. (Hat tip, How Appealing)

Surveillance legislation appears poised to pass the Senate in largely the form favored by the Administration, Siobhan Gorman and Evan Perez report in the WSJ.

Timmendequas's Law was signed by Gov. Jon Corzine in New Jersey. Tom Hester reports here for AP. The "On the Net" feature at the bottom of the story gives links to two web sites, both on the anti side.

Fixing Bad Credit. We've all seen those sleazy commercials claiming to be able to fix the credit ratings of people who don't pay their bills. Turns out some of these outfits actually did -- by bribing credit bureau employees. The Ninth Circuit in United States v. Betts affirmed the conditions of supervised release for the employee regarding employment restriction and a Samson-type search condition but reverses on applying windfalls to restitution and abstention from alcohol.

After the jump are the roll call votes of the New Jersey Legislature to reduce the sentence of Jesse Timmendequas for the murder of Megan Kanka and to sacrifice of lives of future victims like Megan who might have been saved by an effective, actually enforced death penalty in New Jersey. The cowards who run the New Jersey Legislature withheld the vote to the lame-duck session in the hope that the people of the state, who continue to favor the death penalty, will forget by the next election.

The New Jersey Assembly passed Timmendequas's Law today, as expected. Jeremy Peters reports here in the NYT.

Joe Logan has this story in the Philadelphia Inquirer of the opposition to the law by the family of Megan Kanka, who was murdered at the age of 7 by Jesse Timmendequas. That crime sparked the enactment of the first "Megan's Law," back in the days when the New Jersey Legislature cared more about victims than about criminals.

The California Supreme Court issued an order to show cause in the case challenging the residency restrictions of Proposition 83, approved by the voters last November. Bob Egelko reports here for the SF Chron. The case is In re E.J., S156933. The docket is here.

Procedurally, the case is an "original habeas petition," meaning it was filed directly in the California Supreme Court rather than as an appeal from the decision of a lower court. Unlike the U.S. Supreme Court -- which can only take original habeas petitions when they are, in practice, reviews of other court decisions -- Cal. Supreme has jurisdiction to hear these cases without a lower court decision. The usual practice in noncapital cases is to say "go away and file in another court," but this case was evidently considered important enough to take the fast track. The order to show cause effectively accepts the case for full consideration.

We at CJLF have been unenthused about the residency restriction from the beginning. The requirement that sex offenders live no closer than 2000 feet from any school or park was ill-considered, effectively banning them from densely populated areas. An exodus of sex offenders from San Francisco to Merced is not a good thing. We supported Prop. 83 anyway because of other worthwhile provisions but warned that the constitutionality of this one was borderline.

Winston Churchill once said something to the effect that democracy is the worst form of government except for all the others. In California, we take that a step further. Direct democracy is the worst form of democracy except for the other. If our Legislature were not so dysfunctional, we wouldn't have to make nearly all important criminal law by initiative. But it is, and we do.

I talk to the press fairly often on the subject of the death penalty and am quoted in the stories occasionally. They invariably spell my name correctly, no small accomplishment. The quotes are almost always accurate when they are direct quotes. Reporters' paraphrases of what I say, on the other hand, are often off the mark. On occasion, though, even a direct quote can be wrong. Sometimes it is simply not what I said. Sometimes, a quote is accurate as far as it goes but clips off an essential part of the statement. A whopper of a truncated quote that is effectively a misquote can be found in this AP story by David Crary.

On the subject of the cost of the death penalty, I have stated my position publicly many times. That position is that the death penalty would not cost significantly more than life imprisonment if we did them both correctly. It might cost less. To see why we must look separately at the guilt and penalty phases.

Timmendequas's Law is set for a vote tomorrow in the New Jersey Assembly, to change New Jersey's abolition of the death penalty from de facto to de jure. Tom Hester has this report for AP. Google News has comments by Robert Blecker and Richard Dieter.

GPS Tracking provided a quick partial solution to drive-by murder of Nelly Vergara in Los Angeles Monday, Thomas Watkins reports for AP. Police cross-checked the time and place of the murder with the tracking devices worn by some parolees and arrested MS-13 gang member John Garcia. "We are not dealing with the brightest bulbs in the circuit," said Chief Bratton. "This character has to be one of the stupidest people in the city of Los Angeles." Although GPS shows Garcia's presence at the scene, witnesses are still needed.

"She wanted to save money and buy her first home and because of these people that shot at her, her dreams are not a reality any longer," Vergara's mother Mireya Robles said in Spanish through heavy tears as she asked for witnesses to come forward. "I can't even begin to tell you my pain."

On the same story, Andrew Blankstein and Richard Winton have this article in the LA Times.

The Kimbrough and Gall cases are the subjects of copious commentary, but this one by Frank Bowman at SCOTUSblog is particularly good.

Curtis Dean Anderson, a notorious sexual predator, died in prison of unspecified medical problems, Marisa Lagos reports in the SF Chron. Anderson kidnapped and raped two young girls in Vallejo, northeast of San Francisco, and murdered one of them, Xiana Fairchild.

The U.S. Supreme Court announced three opinions today on federal sentencing matters. We won't be covering them much here. There is commentary at SL&P and SCOTUSblog. In a nutshell:

Watson v. United States rejected the preposterous notion that a person "uses" a gun within the meaning 18 U. S. C. §924(c)(1)(A) by receiving it in trade for drugs.

Kimbrough v. United States held that under the post-Booker federal sentencing system, a judge can decide that the much-criticized guideline that considers an amount of crack cocaine equal to 100 times as much powder is unreasonable and need not be followed.

Gall v. United States held that under the same post-Booker regime, appellate courts consider all district court sentencing decisions under the same abuse-of-discretion standard, not a different standard depending on whether it's inside or outside the guidelines.

The orders list had no grants, as expected given that grants were announced Friday.

One depressing item and one funny one from weekend papers:

A culture of murder in parts of Oakland is the subject of this article by Meredith May in the SF Chron.

Criminals who can't resist snapping cell-phone pictures of their exploits are examined by William Bulkeley in the WSJ.

Last year, Morgan Kipper was booked on charges of stealing cars and reselling their parts. He declared his innocence, but his cellphone suggested otherwise: Its screensaver pictured Mr. Kipper behind the wheel of a stolen yellow Ferrari.

"As a criminal defense attorney, it's very difficult when a client proclaims his innocence but incriminates himself by taking photos of the stolen items," says William Korman, the Boston attorney who represented Mr. Kipper.

Meanwhile, back at the blogosphere, we note that a number of other blogs are actively soliciting their readers to go vote for them at the ABA Journal Blawg 100. We'll pass.

Capital Defense Weekly contends,

In an opinion out Wednesday, the Tennessee Attorney General has held that it is inappropriate to kill animals by the same lethal injection protocols used to kill people.

Nope. The opinion in question deals with intracardial injection, a method never used for execution of murderers in the United States, or anywhere else that I know of.
--------------------
Update: CDW has this bizarre follow-up supposedly responding to the above yet making no mention of the holding of the AG opinion or intracardial injection and challenging me to retract a statement I didn't make. I decline.
--------------------
Misuse of the American Veterinary Medical Association's Guidelines on Euthanasia by the anti crowd has been so rampant that the AVMA now has a red-type disclaimer on the cover noting how the guidelines are not pertinent to the debate. The text of the disclaimer is after the jump.

We previously noted here that in Crater v. Galaza, the Ninth Circuit had rejected again the argument that the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), is unconstitutional. Today, the Ninth denied rehearing en banc. Judge Reinhardt dissents, saying pretty much the same stuff he has been saying. He is joined by Judges Pregerson, Gould, Paez, and Berzon. It is disappointing to see Judge Gould join this over-the-top opinion. Judge Reinhardt cites the Liebman and Ryan article in Columbia Law Review but not my refutation which immediately follows it. See 98 Colum. L. Rev. 888. I'm crushed.

We previously noted here the case of Arave v. Hoffman, in which the Supreme Court granted certiorari and added its own question, "What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?" My op-ed in the LA Daily Journal on the case is here.

The odd thing about the case was that Hoffman had already obtained relief from his penalty judgment in district court, and the state had abandoned its cross-appeal of that decision. The question was whether the state could retry the penalty phase if it chose to do so. After almost six years of litigating whether the district court erroneously denied him the remedy of precluding a retrial, Hoffman has now decided he doesn't want that remedy after all. Oh, never mind. He has asked the Supreme Court to vacate the decision of the Ninth Circuit as dismiss the case as moot. SCOTUSblog has the motion here. The Idaho AG naturally concurs, given that Hoffman is now asking for the same result they have been saying was correct the whole time.

The purported reason for Hoffman's change of heart is the prison conditions that he remains under until the district court's judgment becomes final. I don't buy it. I strongly suspect that counsel for Hoffman was under intense pressure from the defense bar, who saw a whopping defeat looming. The case would have required the Supreme Court to confront the "prejudice" element of Strickland v. Washington, 466 U.S. 668 (1984) in a context where an attorney error might have affected outcome but does not affect the reliability of the verdict. That is, is the failure of an attorney to obtain an undeserved windfall for the defendant a reason to set aside a reliable judgment?

In Kimmelman v. Morrison, 477 U.S. 365 (1986), Justice Powell strongly hinted that the answer was "no" in a context much more common than the quirky facts of Hoffman. That case involved a lawyer's failure to get evidence suppressed under the Fourth Amendment exclusionary rule. However, the question had not been squarely presented in Kimmelman, see id., at 397-398, so it was not resolved then and has not been resolved since.

The Court will probably dump Hoffman, as requested. However, the grant of certiorari in this case indicates that the Court is interested in the issue. If any AG or DA offices have an appropriate vehicle to raise the issue, bring it on.

The transcript of oral argument in Boumediene v. Bush is available here. Audio is on CSPAN. CJLF's brief is noted by the SG on page 71 of the transcript. The Schiever discussion noted is on pages 14-15 of the printed brief, beginning at page 22 of the PDF file.

Gitmo: Marcia Coyle of National Law Journal previews tomorrow's argument in Boumediene v. Bush, the case on a constitutional right to habeas review for the detainees in Guantanamo Bay. CJLF's brief is here. The Federalist Society has an online debate here.

Felony murder rule: Adam Liptak has this article on the controversial rule in the New York Times. The article profiles a case from Florida, and the misleading headline says that Ryan Holle is doing life merely for loaning his car. If the jury had believed that, or even had a reasonable doubt, he would not have been convicted of a crime at all. To find him guilty, they had to find he was a party to the underlying robbery. In this case, actual violence was part of the robbery plan from the beginning.

The Kevin Cooper case has finally been decided by the Ninth Circuit panel. This is the case where the convicted murderer's lawyers keep asking for tests, insisting each time that the test will show their client's innocence, and each time the test reinforces the finding of guilt. Let's see how long they take deciding the rehearing en banc petition. Standard practice in the Ninth is that when the state loses any rehearing petition is disposed of quickly, but when the petitioner loses it takes many months, sometimes years.

The U. S. Supreme Court's orders list from last week's conference is here. Conspicuously absent is Berry v. Epps, No. 07-7348. On October 30, the Court granted a stay of execution in that case but provided that the stay terminated automatically if certiorari were denied. The certiorari petition was on the conference list for Friday, but apparently it has been delayed to a future conference. Our previous post is here.

If the Court has simply decided to hold all cases until it resolves Baze v. Rees, one can only wonder why they put it on the conference list at all.

Detainee Case: Mark Sherman of AP has this preview of the detainee case to be argued in the U.S. Supreme Court on Wednesday.

Pretrial Blog Publicity: In a twist on the usual motion for change of venue, a defendant charged as accessory after the fact in a murder asked for the change based in part on coverage of his case by "conservative bloggers," according to this AP story. The motion was denied.

Public Interest Law may not be an option for law school graduates with high debts. This WashPost story by Ian Shapira looks at the problem of graduates who would rather do public service but are financially required to go for the bucks.