May 2008 Archives

Blog Scan

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Justice Scalia's interviews with WSJ Law Blog: Dan Slater at the Wall Street Journal Law Blog posted on his interview with Justice Scalia today. All three parts relate to Justice Scalia's new book “Making Your Case: The Art of Persuading Judges.” Part I addresses tips given in Scalia's book; Part II addresses Justice Scalia's reputation as the "Master of Dissent"; and Part III addressed the Justice's views on the media, as well as attorney misbehavior. For those who will be in the D.C. area next week, Orin Kerr at Volokh Conspiracy reports the Justice will be signing copies of his book, and links to the details.

More on Panetti: Hat-tip to Doug Berman at Sentencing Law and Policy for this link to local Texas coverage of the May 26th decision that convicted murderer Scott Panetti was competent to be executed. Berman also links to Greg Bloom's article at DMI Blog on Mental Illness and the Death Penalty. CJLF's brief in the Panetti case is here. In that brief, we pointed out to the Court that their own overreaching three decades earlier in Faretta v. California, 422 U. S. 806 (1975), was the root of the problem in Panetti's case. In the current term, the Court will return to the Faretta problem and decide if a state can deny self representation to a marginally competent defendant. A decision in Indiana v. Edwards is expected in June. CJLF's brief in that case is here.

Could State Legislation Effect The Outcome of Kennedy v. Louisiana? Corey Rayburn Yung at Sex Crimes posted yesterday on Alabama and Missouri legislation addressing rape laws. In his post, Yung wonders whether the U.S Supreme Court will take notice of state legislation in its Kennedy decision, given the tricky point of reconciling the "evolving standards of decency" analysis with those states that have considered, but not adopted, capitalizing the crime of child rape.

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Escaped Inmate Caught After 43 Years: Associated Press reporter Brian Witte writes that Maryland police have captured convicted armed robber Willie “Pops” Parker, who escaped from Maryland’s Eastern Correctional Camp in 1965. Parker, who is now 81, was tracked down by authorities who found he was collecting social security, had a driver's license and was registered to vote under his own name.

Kansas Law Requires Drug Testing of Drivers involved in serious auto accidents, according to a story in the trucking magazine Land Line . The new law, which takes effect on July 1st, requires law enforcement to give drug and alcohol tests to drivers involved in any accident resulting in fatalities or serious injuries. Opponents charge that mandatory testing without probable cause is unconstitutional.

Gitmo Protesters Convicted: A D.C. Superior Court judge has found 34 activists who staged a January 11th protest of conditions at Guantanamo Bay guilty of violating a ban on demonstrations at the Supreme Court plaza. Washington Post writer Keith Alexander reports that the activists' antics during the three day trial included a show of solidarity with detainees. This involved each activist reciting the names and biographies of suspected terrorists. The story points out that all of the defendants were represented by fools.

Questionable Cover-Up: From the AP in Arvada, Colo.: "Police are looking for two men they say covered their faces with women's thongs to rob a convenience store. Police released a surveillance video of the two men this week as they roamed inside a gas station during the robbery." Of all the articles of clothing to use as a mask, why choose one designed to cover almost nothing?

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Forensic Evidence in Criminal Trials: David Bernstein at Volokh Conspiracy posted some comments on the use of forensic evidence in criminal trials and Federal Rule of Evidence (FRE) 702. Bernstein discusses how expert witness testimony is supported by "Political Liberals" who oppose a crack down on the use of expert testimony and ignored "the ongoing abuses of expert testimony in the criminal justice system." These "ongoing abuses" are the very things mentioned in the Petitioner's Brief for Certiorari, and the Amicus in Support of the Petitioner, in the upcoming Supreme Court case Melendez-Diaz v. Massachusetts. The case will be argued next term. It will be interesting to see if the Court takes a position that is similar to Bernstein's.

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Former Illinois Governor George Ryan, who is serving a 6.5 year prison sentence for racketeering and corruption, lost his bid for a Supreme Court appeal Tuesday as reported by Chicago Tribune writer Mary Owen. Ryan, who became the darling of death penalty opponents when in 2003, he commuted the death sentences of every murderer on Illinois death row the day before leaving office, is now asking President Bush to commute his sentence.

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More Commentary on Giles: In an article posted on FindLaw's Writ, Sherry F. Colb discusses Giles v. California, a case argued before the Supreme Court in April. Giles addresses whether the "forfeiture by wrongdoing" clause allows testimonial statements to be admitted against the defendant, when the defendant has killed the witness. Colb gives an in depth analysis of the case, and the Sixth Amendment's Confrontation Clause. She also dissects the merits of both the defendant's and prosecutions arguments in Giles. Particularly interesting is Colb's point that "there is something peculiar about adhering to the forfeiture-by-wrongdoing exception" of the Confrontation Clause simply because it was part of the common law when the Sixth Amendment was drafted. Colb notes:

"For one thing, the Sixth Amendment (and the Bill of Rights more generally) did not originally apply to the states at all but only to the federal government. It was therefore the framers of the Fourteenth Amendment (through which the Sixth Amendment was incorporated against the states), rather than of the Sixth Amendment itself, whose intent should be examined, if in fact “framers’ intent” is the correct way to approach the contours of exceptions to the Sixth Amendment Confrontation Clause at a state trial. "

Chief Justice Roberts and the Marks Rule: Orin Kerr at Volokh Conspiracy has this post on the few 5-4 U.S. Supreme Court decisions issued this term. Kerr hypothesizes the number of 5-4 decisions could be part of the Chief Justice's strategy of "aiming towards the middle" of the Court in its decisions. Kerr hypothesizes the Chief Justice may be more willing than his predecessor, Chief Justice Rehnquist, to allow plurality opinions than to force majority opinions out of a closely divided court. Kerr writes: "By taking a center-right position, he has a chance of picking up a vote from one of the liberal-leaning Justices who feel they can gain more by joining a center-right opinion than by dissenting. End result: fewer 5-4 decisions."

Ohio AG: Doug Berman at SL&P has this post on Gov. Strickland's appointment of OSU Law Dean Nancy Hardin Rogers as AG. She does not intend to run for the office in November and will return to academia after the election.

The Federalist Society has a SCOTUS podcast on the U.S. Supreme Court's May 19, 2008 decision in United States v. Williams. The SCOTUScast features commentary by Elizabeth Harmer Dionne, the John M. Olin Fellow in Law at Harvard Law School. Dionne specializes First Amendment issues, particularly freedom of religion and obscenity law.

The Williams case addressed section 2252A(a)(3)(B) of Title 18 U.S.C., which Congress passed after the Supreme Court's decision in Ashcroft v. Free Speech Coalition. Section 2252A(a)(3)(B), the "Protect Act", prohibits knowingly advertising, promoting, presenting, distributing or soliciting material in a manner that reflects the belief, or is intended to cause another to believe, that the material is illegal child pornography. Williams challenged the provision as violating his First Amendment rights. The District Court rejected his claim, but the Eleventh Circuit reversed, finding the statute both overbroad and impermissibly vague under the Due Process Clause. In an opinion authored by Justice Scalia, the U.S. Supreme Court reversed. Justices Souter and Ginsburg dissented.

Dionne's commentary reviews the Supreme Court's decision and addresses the First Amendment implications of the "Protect Act". She also suggests that because pornography advocates have successfully classified child pornography as speech, placing it within the protections of the First Amendment, we must continue to question whether any child pornography qualifies as speech. There will certainly be more court cases addressing this issue.

Virginia Execution

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Jerry Markon at the Washington Post has this up to date story on Virginia's execution of Kevin Green. Green was scheduled to be executed by lethal injection last night at 9 p.m. EDT in Virginia. He was pronounced dead at 10:05p.m. Local coverage from The Richmond Times Dispatch story can be found here. Green was the first inmate executed by Virginia since 2006.

The U.S. Supreme Court declined Green's request for a stay yesterday. The Court also denied review of Green's new appeal (Green v. Johnson, 07-10988). Justices Stevens and Ginsburg dissented from the Court's denial. The denial and dissent can be found here. The dissent, authored by Justice Stevens and joined by Ginsburg, articulates Justice Stevens' belief that instead of denying the stay, the Court should have reviewed the merits of Green's claim "in the interest of avoiding irreversible error in capital cases." In Green's new appeal, he argued his trial lawyers improperly failed to appeal the robbery portions of his guilty verdict. On appeal, Green claimed that although his trial lawyers had won him a new trial on the murder convictions, they acted improperly by allowing the jury to learn about the robbery conviction. He claimed this information increased the chances of his being sentenced to death.

Linda Greenhouse has this article in Friday's New York Times, asking, "Where have all the 5-to-4 decisions gone?" Her approach is to look at the court entirely on a simple, one-dimensional liberal v. conservative scale, as if there is nothing else to consider. She looks at the lethal injection case, Baze v. Rees, the voter ID case, Crawford v. Marion Co. Elec. Bd., and United States v. Williams, the child pornography case, saying that it is not surprising that the government won all three but that it is surprising that none was 5-4. She also notes that Justice Kennedy is casting the deciding vote much less often than last term.

And what is the reason for the dearth of 5-4 decisions this term? Ms. Greenhouse hypothesizes that the "liberals" on the court are gaining concessions from the "conservatives," getting narrower decisions in return for broader agreement. The thought apparently never enters her head that the legal world is not as simple as liberal v. conservative, that simplistic labels do not fully describe people's views, and that the mix of cases may affect how well or how poorly those labels predict actual votes.

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Obama's Judicial Philosophy Analyzed: Jennifer Rubin at Pajamas Media has this post analyzing the potential results of Obama's judicial appointments based on his comments to the media on specific issues. Rubin is quick to point out that Obama claims his background as a constitutional law professor qualified him to select Supreme Court Justices, but also states "Obama[] conceives the role of the courts as roving advocates of the poor and disadvantaged who will look, not to the text and meaning of the Constitution, but to their own ethics and values — presumably very left-leaning ones — to override statutes, executive branch actions, and the American people themselves." Rubin then goes on to suggest: "Given that, one wonders if confirmation hearings for Obama judicial appointees should skip over questions of the law and focus on the appointees’ religious and ethical views, their childhood experiences, and even their record of charitable giving. How else will we know whether they are “sympathetic enough”?"

Today's Humphries Decision Demonstrates Move Toward Majority Opinions: Orin Kerr at Volokh Conspiracy posted today on the change in tenor of U.S. Supreme Court decisions this term. Kerr notes that while 2006-2007 was marked with 5-4 decisions and biting dissents. However, 2007-2008 has had far more "lopsided victories", and note today's Humphries decision as an example.

Death Penalty Links

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Steve Stewart, prosecuting attorney of Clark County, Indiana, has updated his extensive collection of links on the death penalty. Check it out.

SCOTUS Today

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No opinions in criminal cases were issued today. The Court did not take any new cases, criminal or civil, in its orders list. (Yawn.)

Among the cases denied certiorari is Warner v. United States, No. 07-977. The codefendant on this case is former governor of Illinois, and now final-on-direct-appeal convicted felon, George Ryan. For his humanitarian achievements, Ryan is also a nominee for the Nobel Peace Prize, along with Adolf Hitler, Joseph Stalin, and Crips founder "Tookie" Williams. See this 2005 LA Times op-ed by Eugene Volokh.

The AP has this summary of today's actions.

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Maryland Death Penalty: Responding to calls by prosecutors and GOP legislators, Governor Martin O'Malley has reluctantly ordered the Maryland Department of Public Safety to review the state's lethal injection protocol and submit the recommended procedure to a legislative panel for approval. Critics claim that O'Malley, a death penalty opponent, has been dragging his feet on resuming executions since the U.S. Supreme Court upheld Kentucky's protocol, which is identical to Maryland's. A story by Baltimore Sun writers Jennifer McMenamin and Laura Smitherman reports House Minority Leader Anthony O'Donnell's estimate that the process would take nearly a year when, in fact, the state "could come up with protocols by the end of the week."

DNA Hit in Cold Case: Pennsylvania Prosecutors will seek the Death Penalty for a habitual sex offender who raped and murdered a young woman 30 years ago. A story by Joe McDonald in today's Morning Call reports that Robert While Jr. was linked to the murder by a cold case DNA hit that matched his DNA with samples from the victim's nightgown. Virginia Morrell was 21, on Halloween night in 1978, when she was raped and suffocated. She was found face down in her apartment the next day, nude with her hands tied behind her back and masking tape over her mouth and nose. White tried to rape a cocktail waitress two weeks after Morrell's murder and also served time in prison for kidnap and rape in 1982 and a separate assault on another woman.

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Georgia Pardon Board Halts Execution: Lyle Denniston at SCOTUSblog has a post on the Georgia pardon board's decision to halt the execution of Samuel David Crowe, who was scheduled to die at 6pm tonight. Crowe had been sentenced to die for the armed robbery and murder of a lumber store clerk in 1988. The pardon board commuted Crowe's sentence from death to life without parole. Denniston reported yesterday that Crowe had filed a petition and a stay application with the U.S. Supreme Court, to delay his execution. The Court did not act on the application before the Georgia pardon board made its decision.

Shock Over Jury Sentence: Grits for Breakfast posted yesterday on a jury's decision to forgo a death sentence in favor of a sentence of life without the possibility of parole. The post explores why the Texas jury decided to choose a life sentence, when Juan Quintero had been convicted of murdering "one of Houston's finest police officers." The post explores several theories for the verdict, including the defense team's "top notch lawyering", but ultimately settles on the conclusion that the jury did not believe a death sentence was warranted in this case.

Popularity of Supreme Court Justices: Rasmussen Reports released the results of a national telephone survey assessing the approval rating of the U.S. Supreme Court yesterday. 41% of the voters gave the Court good or excellent ratings, and 19% of the voters rated the Court's performance as poor. Over half (52%) of Republicans rate the Supreme Court good or excellent, just 39% of Democrats do the same. Among unaffiliated voters, 35% say the Justices are doing a good or excellent job. And in a separate survey, Republicans stated they found the Supreme Court judicial appointments to be a bigger issue than the War in Iraq.

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Murder Conviction Overturned: The Illinois Supreme Court has unanimously overturned the murder conviction and prison sentence of a Rockford man convicted of killing his girlfriend in 1993. A story in the Rockford Register Star by Aaron Chambers reports that the court found a due process violation in the prosecution's failure to disclose evidence favorable to defendant Alan Beaman. The Court's opinion is here.

Judicial Philosophy: Los Angeles Times reporter David Savage contrasts the views of John McCain and Barack Obama regarding the appointment of judges in this story from last Monday.

The Supreme Court's recent porn law ruling is the subject of this Washington Post editorial. The Post is mostly for it. The Court's decision in United States v. Williams upheld the Protect Act, enacted by Congress to address child pornography. The decision overturned an Eleventh Circuit ruling that concluded the Act is overly broad and impermissibly vague.

Sentencing & Discrimination: A story by Larry O'Dell of AP reports on a study by the National Center for State Courts which found that three states, once accused of biased sentencing, have implemented sentencing guidelines resulting in consistent sentencing which is not influenced by a defendant's race or economic status. States with mandatory guidelines had the most consistent and predictable sentences. The NCSC website is here.

Stay Denied in Berry Case

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Update: Berry was executed at 6:15 p.m. CDT, AP reports. That is 20 years and 6 months after he kidnapped Mary Bounds and beat her to death, far too long.

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The Supreme Court has denied stays in the two petitions filed by Mississippi murderer Earl Wesley Berry. No dissents are indicated. As noted in yesterday's blog scan, Lyle Denniston has this post at SCOTUSblog on the filings in the case. The original post merely summarized the allegations of Berry's lawyers. If one knew neither the facts nor the law, one would think after reading the post that this case involves the state proceeding with the execution of a person who is clearly retarded and doing so via a procedure that is arbitrary. One would be wrong on both counts. Lyle writes,

Potentially more significant, however, is the core issue he raises in both the new state case and the original habeas plea over the question of a death-row inmate’s right to a hearing — which Berry’s lawyers say he has never had in state court — on a claim of mental retardation.


But in fact evidence of mental status was presented at Berry's penalty trials -- both of them.

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Effect of Blakely in Ohio: Doug Berman at Sentencing Law and Policy posted on the Ohio Supreme Court's decision in State v. Hairston, No. 2008-Ohio-2338 (Ohio May 21, 2008). The decision upheld a 134 year prison sentence for a man who tied up four people while ransacking their homes. The decision held that the sentence did not violate "the U.S. constitutional ban on cruel and unusual punishment." Berman posted on the decision because of the dicta in the case calls for a reform to the sentencing laws Ohio had implemented in the wake of the U.S. Supreme Court's decision in Blakely v. Washington. Of particular interest, is the concurring opinion of Judge Lanzinger, who writes: "When a defendant is convicted of multiple offenses, the community may now expect maximum and consecutive prison terms as the default sentence. It will take a courageous judge not to “max and stack” every sentence in multiple-count cases...." A 134 year sentence seems like a good policy argument for allowing some judicial discretion in sentencing - until one reads the press report detailing the details of Hairston's offense.

Best State High Courts: Hat-tip to Lawrence Solum at Legal Theory Blog for directing us to a Stephen J. Choi , G. Mitu Gulati and Eric A. Posner paper ranking the best and worst high courts in the country. The paper ranks the high courts of the fifty states during the years 1998-2000. The abstract and text of the article can be found at SSRN.

Any attempt to measure objectively an elusive concept such as quality of a court is going to be problematic. This paper has a three-part measure: productivity, defined as published opinions per judge per year, "influence or opinion-quality," defined by citations from other jurisdictions, and "independence." The last factor is intriguingly defined by considering a judge independent if he frequently votes with judges of the other party. Applying this operational definition to the U.S. Supreme Court, for example, would result in Justice Stevens (appointed by Republican Gerald Ford) being rated more "independent" than, say, Justice Thomas because Stevens more often votes with Democrat-appointees Ginsburg and Breyer. The validity of this measure is debatable.

Hillary on the Court?: The Washington Post published a column today by Andrew Miller where Miller proposed that should Obama get the Democratic nomination, a surefire way to appease Clinton supporters would be to place Hillary on the Supreme Court. Matthew Franck over at Bench Memos posted his thoughts on the suggestion. Franck's post hypothesizes that such a deal would be a "gift" to John McCain and the Republican Party in the upcoming election. Franck also points out that a commitment to appoint a Justice this early on would put Obama on the record as treating "the Court [as] just another political institution like any other."

Program on Obstruction of Justice

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May 29 event in DC by the Federalist Society and its Criminal Law and Procedure Practice Group:

Every few months, a highly visible public figure or government official becomes embroiled in a criminal investigation that ultimately includes obstruction of justice charges. Barry Bonds, Rep. William Jefferson (D-LA), Scooter Libby, Martha Stewart, Computer Associates, the U.S. Attorney firings, the CIA’s destruction of interrogation tapes – all have included a focus on the conduct occurring during the investigation of other, unrelated charges. But what exactly is obstruction of justice, and what role should it play in our justice system? No one can doubt the importance of punishing those who willfully corrupt the administration of justice, lie under oath, tamper with witnesses, or destroy evidence, but critics charge that prosecutors have used “creative interpretations” of obstruction of justice statutes to punish marginal conduct or create criminal liability where none otherwise existed. What is the proper role and scope of the obstruction statutes? Have obstruction of justice prosecutions veered too far from heartland cases? Please join us for an informative workshop addressing these issues.

Brain Scams

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Daniel Carlat over at the Carlat Psychiatry Report has a post titled "Brain Scams: The Marketing of Functional Neuroimaging" discussing his recent article in Wired on the subject:


Functional neuroimaging has great promise for elucidating the neurocircuitry of psychiatric disorders, but most of the neuro-entrepreneurs are leapfrogging over the necessary studies to rush their products to market. It's time to slow down and do it right.

brain.jpg

Previous posts on this topic:

Are Brain Scans All the Rage?

What Neuroscience Cannot Tell Us About Humanity


Evolving Standards of Lunacy

Neuropsychology in New Hampshire

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The Supreme Court of New Hampshire issued an opinion in the case of Baxter v. Temple (#2007-102) yesterday involving the admissibility of the Boston Process Approach (BPA) of neuropsychological assessment. In brief, the BPA is a widely used assessment approach used by neuropsychologists which utilizes a priori selection of psychological tests instead of the full battery of tests used in other assessment approaches. As the Court stated:

While the BPA itself does not have a known or potential error rate, the Daubert factors “do not constitute ‘a definitive checklist or test’” that must be applied in all circumstances. Kumho Tire, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 594); see also RSA 516:29-a, II. Rather, the factors must be applied with flexibility and in light of the proffered testimony. Baker Valley, 148 N.H. at 616. Given the nature of the BPA, and particularly that it inherently requires some level of flexibility, we find that the known or potential error rate factor is not an “appropriate” consideration in examining its reliability. See RSA 516:29-a, II(a).

However, we note that a critical component of our finding that the BPA meets three of the four Daubert factors is the use of standardized tests. To meet the threshold for reliability, a neuropsychologist applying the BPA must demonstrate that the individual tests he or she administered as part of the battery, not the battery as a whole, have been tested, have been subject to peer review and publication, and have known or potential error rates. Cf. United States v. Eff, 461 F. Supp. 2d 529, 531, 533 (E.D. Tex. 2006)

The opinion is an interesting, albeit somewhat technical, read for anyone with a curiosity about the various tests often used in neuropsychological assessment.

Blog Scan

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Death Penalty Appeal to the Supreme Court: Lyle Denniston at SCOTUSblog posted on Earl Wesley Berry's recent petitions to the U.S. Supreme Court. Berry had petitioned the U.S. Supreme Court for a stay of execution back in April, our posts on the denial of stay can be found here, and here. Denniston's post on SCOTUSblog reports that Berry's new petition raises an issue that has never been decided:whether a a procedural defect that had been caused by a lawyer's mistake, can clear the way for execution of an individual if there is evidence that he is mentally retarded? On a quick review, there appear to be some gaping holes in the argument. Berry is scheduled to be executed in Mississippi tomorrow night at 6pm.
UPDATE: SCOTUSblog reported that the Supreme Court refused in late afternoon Wednesday to delay the execution in Mississippi of Earl Wesley Berry. The Court also denied review of his appeal.

Bench Memos Supreme Court Watch: Ed Whalen at Bench Memos is keeping track of the U.S. Supreme Court. According to Whalen, "nearly half the Court’s rulings for the term will be rendered over the next five weeks." The ruling we're anticipating most is the Court's decision in Boumediene v. Bush (and Al Odah v. United States). Criminal Justice Legal Foundation filed an amicus brief in the case, which can be found here. Whalen speculates Justice Kennedy is the author of this opinion.

A tentative settlement has been reached in the California prison overcrowding case. The deal would avoid early releases by reducing the population over time through fewer returns for parole violations. Michael Rothfeld has this story in the LA Times.

Fewer parole returns is better than early releases, of course, but it runs the risk of pulling the few remaining teeth from parole requirements. Local confinement for parole violation is an alternative only if there is local space available. House arrest with electronic monitoring is a possibility, but only with tamper-proof monitoring and adequate staff and equipment.

The "costly human toll" of early releases are described in this long story from last week by LAT staff writers Jack Leonard, Megan Garvey and Doug Smith. The LA County Jail has been doing early releases for some time now. The results after the jump:

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More on McCain's Judicial Policy: Dan Slater at Wall Street Journal's Law Blog has this his post discussing Jeffrey Toobin's article in this week's New Yorker. Many of you may recall Toobin is the author of last year's The Nine, a book discussing U.S. Supreme Justices and the political process of judicial appointment. For those of you who have read the book, Tobin's critique of McCain's judicial policy will be no surprise. While WSJ Lawblog viewed McCain's policy to be "clear embrace of state’s rights and a jurisprudence of restraint," Toobin believes that McCain will "continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.”

Comment on Scalia's Silence in Rodriquez: Doug Berman's post on United States v. Rodriquez, No. 06-1646, is an interesting attempt to utilize Rodriquez to determine how the U.S. Supreme Court might decide other sentencing decisions this term. Berman finds it especially interesting that Scalia stayed quiet on this issue, especially because of Scalia's belief that federal criminal statutes should be leniently construed.

Peter Brown of the Quinnipiac U. Polling Institute has this post on the WSJ Political Perceptions blog regarding the impact of the California gay marriage case on the presidential election.

By overturning a ban on gay marriage that was approved by 61% of California voters, the judges have helped revive an emotional issue that seems likely to work to Sen. McCain’s benefit and to Sen. Barack Obama’s detriment....
The specifics of the decision - in which the seven-member court overruled the will of a sizable majority of Californians - is tailor-made for an issue that Sen. McCain has already been pushing: His claim that he, unlike Sen. Obama, would not appoint judges who disregard the will of the people and make, rather than interpret, the law.

CJLF takes no position on the gay marriage issue, but we are definitely opposed to "appoint[ing] judges who disregard the will of the people and make, rather than interpret, the law."

David Savage has this article in the Los Angeles Times.

"Much as I like and respect Barack, I think his vision of judging couldn't be more wrong," said Bradford Berenson, a Washington lawyer who worked in the current Bush White House and knew Obama at Harvard Law School. "Whereas McCain wants our judges and Supreme Court justices to be faithful to the Constitution . . . and decide cases according to law, Barack seems to think judges should systematically favor certain parties or groups and decide cases according to their personal sympathies or feelings about how who needs or deserves help."

Recidivism Compounding

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Compound interest is a very powerful force in finance. (Whether Albert Einstein really declared it to be the most powerful force in the universe is undetermined.) But if you choose crime as your career instead, you may run into a different kind of compounding: recidivist sentencing enhancements.

The Armed Career Criminal Act (ACCA) provides additional time for criminals with prior convictions for "violent" crimes and for "serious" drug offenses. What is "serious"? Well, Congress said that if the maximum sentence for the offense is 10 years or more, that's serious. Gino Rodriquez had two priors for burglary, which Congress has declared to be "violent." Then he had a case with three drug offenses, committed on separate occasions but adjudicated together. Under the relevant state law, the offenses were punishable by up to five years, but that could be doubled if the person was convicted of more than one, whether previously or concurrently.

So are these drug priors "serious" within the meaning of the ACCA? The Supreme Court said yes, 6-3, in today's decision in United States v. Rodriquez, No. 06-1646. The majority went with the plain meaning of "maximum term." If Rodriquez had asked his lawyer on the prior occasion, what is the maximum term, the lawyer would surely have included the doubling statute in answering the question. The dissent would apply the rule of lenity to include only the max for the base offense, not recidivism enhancements.

Here is the compounding effect. Rodriquez's multiple offenses exposed him to a risk of 10 years on the prior occasion, although he only got 4, concurrent. That exposure then elevated those same offenses to "serious" ones in his subsequent federal case. Should we wring our hands over this? I don't think so. Although President Bush has said that America is the land of the second chance, a seventh chance is a bit overboard. This guy has demonstrated that he has no intention whatever of ever going straight. Locking him up for the next 15 years means 15 years that he will not be committing crimes on anyone on the outside.

Emmett Stay Lifted

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The Supreme Court lifted the stay of execution previously issued in the case of Virginia murderer Christopher Emmett. Previous posts on this case are here, here, and here. Justice Stevens dissented from today's lifting of the stay, joined by Justices Souter and Ginsburg.

No new grants of certiorari for full briefing and argument are in the orders list. The Court turned down the Florida injection cases of Lightbourne v. McCollum, No. 07-10265 and Schwab v. Florida, No. 07-10275. No big surprise there, as even the dissent in Baze v. Rees cited Florida's procedure as the preferable way to go.

One Terrorist Case Down

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The United States Supreme Court issued three decisions in criminal cases today. This post describes one of them.

Although the Gitmo habeas case remains pending, the high court did decide the case of another terrorist, Ahmed Ressam. He falsely stated his name and nationality when entering the United States from Canada. And, oh, by the way, he had a trunk full of explosives with which he intended to blow up LAX. An additional ten years in prison is provided by 18 U.S.C. § 844(h) for "Whoever ... (2) carries an explosive during the commission of any felony which may be prosecuted in a court of the United States...." This is a fine example of the sentence enhancement tail wagging the offense dog, but it's constitutional as long as the jury finds the requisite facts beyond a reasonable doubt.

The Supreme Court decided today, 8-1, that "during" means "during." It does not mean "in relation to." Congress knows how to add that requirement when it wants to. Cf. 18 U.S.C. § 924(c)(1)(A).

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Flag burning is still a crime, notwithstanding Texas v. Johnson, 491 U.S. 397 (1989), if the perpetrator sneaks around in the wee hours burning other people's flags. Lindsey Baguio has this story in the Orange County (Cal.) Register. See Cal. Penal Code § 451.

Bite-mark analysis got a deservedly bad rep after some high-profile false positives. Todd Richmond of AP reports on an attempt to bring it back from ignominy.

Cyber bully Lori Drew of Missouri was indicted by a federal grand jury in Los Angeles, "Invoking a criminal statute more commonly used to go after computer hackers or crooked government employees," report Scott Glover and P.J. Huffstutter for the LA Times. The case raises both substantive and venue questions.

Ninth Circuit Habeas: The Ninth Circuit has granted rehearing en banc in Hayward v. Marshall, No. 06-55392, a habeas case in which the panel ruled for the petitioner. That is unusual enough in the Ninth (though less so than it used to be), but this was not a particularly pro-prisoner panel: Kozinski, Gould, and Friedman (visiting from Fed. Cir.). The case involves the governor's power to block parole after it has been granted by the [whatever it's named this week] board, a frequent source of litigation.

20th Hijacker: The WashPost has this editorial on the dismissal of charges against Mohammed al-Qahtani, who was supposed to be the 20th hijacker on 9/11, due to the coerced nature of his interrogation.

Surveillance cameras: Here is a new wrinkle in the debate over whether surveillance cameras are effective as crime-fighting measures. Richmond, California (north of Oakland) has a new set of cameras that are monitored by computer. When the software spots something that might need attention, it alerts the police to take a closer look, Demian Bulwa reports for the SF Chron.

Cross-Examining Lab Techs

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The Ninth Circuit today issued an interesting, if quirky, opinion on the issue of the right to cross-examine lab technicians in United States v. Perez, No. 07-10289. The issue arose in the context of supervised release revocation, not criminal trial, and the opinion by Judge Carlos Bea cautions, "this is an unusual case with unusual facts and should not be taken out of context. We do not hold that a releasee always has a right to cross-examine the technician who tested a urine sample." In this case, though, she did have that right.

The distinct question of "Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)," will be decided next term by the Supreme Court in Melendez-Diaz v. Massachusetts, No. 07-591.

Here is an interesting ruling from Chief Judge Kozinski of the Ninth Circuit. An attorney filed a misconduct complaint against a district judge and a magistrate judge. The complaint was such total tripe that the attorney is now ordered to show cause why sanctions should not be imposed.

Injection Litigation

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Post-Baze mopping-up operations are reported in this AP article by Larry O'Dell and Randall Chase. The Fourth Circuit held oral argument today in the Emmett case.

In Richmond, attorneys for Emmett and the state told a three-judge panel of the 4th U.S. Circuit Court of Appeals that they would consider settling the case if they can agree on changes to the state's execution protocol to satisfy Emmett's concerns -- in his case only.

I do not think the Virginia AG should go for that. Having a Fourth Circuit precedent on the validity of their protocol will go far toward expediting future executions, even if it means a little extra delay on this one.

In Delaware, U.S. District Judge Sue Robinson said she must decide whether the state's procedure is significantly different from Kentucky's, as claimed by an attorney representing ax murderer Robert Jackson III and other death row inmates.

Deputy Attorney General Elizabeth McFarland said Delaware's protocol is even more detailed than Kentucky's, leaving even less to chance. "The protocol is very clear as written," she said.

The judge set a June 23 hearing to consider which specific issues and expert witnesses will be heard in deciding whether Delaware's protocol presents a substantial risk of unnecessary pain to the condemned inmate.

Blog Scan

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Ed Whalen Comments on Ronald Dworkin's New Book: Over at Bench Memos, Ed Whalen has this post commenting on the first few chapters of Ronald Dworkin's new book, The Supreme Court Phalanx: The Court’s New Right-Wing Bloc. The book republishes the essays Dworkin wrote for the New York Review of Books from 2005 through 2007. Whalen's post smartly points out that Dworkin's main thesis - that Chief Justice Rehnquist, Justice Scalia, and Justice Thomas always took the "most conservative positions possible" is "patently false", especially when considering that Rehnquist, Scalia and Thomas have taken the middle-of-the-constitutional-road position that the Constitution does not prohibit abortion, as well as the position that in the area of race, the Constitution requires the government to be color blind.

Constitutional Rights of Sex Offenders: Doug Berman at Sentencing Law and Policy speculates on when the United States Supreme Court will choose to address the constitutionality of sex offender residency restrictions. Berman's post notes that recent decisions in Ohio and Indiana create the possibility that the opportunity will come through the state court system. He also notes the differing constitutional issues presented by the cases - ex post facto punishment claims, and due process or takings claims - don't give us a clear indication of the exact right the Supreme Court might address.

Steven Erickson at Sex Crimes Blog:
Our blogger Steven Erickson will be guest blogging at Sex Crimes as well. Those of you who have been following and enjoying Erickson's posts on our blog will be able to get a double dose of Erickson's comments at Sex Crimes.

Resignation Day

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The Attorney General of Ohio, Marc Dann, has resigned, under very different circumstances from those of SG Clement, noted below. Laura Bischoff has this story for the Oxford Press.

Clement Resignation

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Solicitor General Paul Clement is resigning June 2. WSJ Law Blog has this post. SCOTUSblog has the text of the press release, not yet on the DoJ site.

Blog Scan

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Monday's Decisions from the Ninth Circuit: Jon Sands at Ninth Circuit Blog posted a summary of the Ninth Circuit's decisions in U.S. v. Caruto, Woods v. Carey, and Miller v. Blackletter. Defendant's rights appeared to be the theme of the day. U.S. v. Caruto addressed whether a prosecutor could argue the omissions in a defendant's post-arrest statement before invoking her Miranda rights. The Ninth Circuit held the prosecutor could not. Miller v. Blackletter involved the denial of a defendant's request for a trial extension to search for another attorney. Yesterday's Ninth Circuit decision held the state court did not abuse its discretion in balancing the right to counsel against concerns of fairness and scheduling as set forth by Gonzalez-Lopez. Woods v. Carey addressed whether a second federal habeas petition filed while the first was still pending, should be treated as a "second or successive" petition, or a motion to amend the first petition. The district court had treated it as a "second or successive" petition, and dismissed it. The Ninth Circuit held that because the petition was filed pro se, the petition should be treated as as a motion to amend the pending petition.

Canadian on Death Row: Doug Berman at SL&P has this post on failed negotiations to commute the sentence of a Canadian on death row in Montana. "Some Canadian bloggers are apparently upset that weakened Canadian opposition to the death penalty led to this back-room clemency deal falling through. I am more troubled to hear that a state governor seriously considered a back-room clemency deal along these terms for a brutal double-killer that Montanta's state prosecutors and judges and juries thought should be executed for his crimes. (The press article notes that Smith 'brutally executed two Blackfeet Indian men — Thomas Running Rabbit and Harvey Mad Man — during a drunken road trip to Montana in 1982.')"

Ohio AG: WSJ Law Blog has this post on the status of the "Marc Dann mess."

News Scan

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Fast Track DP in Utah? The Utah legislature is considering putting a constitutional amendment on the 2010 ballot that would shorten post conviction review of death penalty cases. The measure, which has been proposed by the Attorney General, would set time limits for raising constitutional claims in the state courts. A story by Pamela Manson of the Salt Lake City Tribune quotes one Deputy AG who said that under the current lax post conviction review process, "we have the death penalty on the books, but no death penalty."

Murderer's Appeal Rejected: A Texas inmate convicted and sentenced to death for murdering an accomplice by giving him a lethal injection of heroin while they shared a cell in the El Paso County jail, has lost his bid for review by the U.S. Supreme Court. According to this AP story by Michael Graczyk, Ricardo Otiz was in jail awaiting trial for aggravated robbery when they put his accomplice in the same holding tank. Otiz injected his victim with heroin smuggled into the jail to keep him from testifying. Great jail security.

Reagan Judges: A USA Today story by Joan Biskupic focuses on the influence of federal judges appointed by President Reagan two decades ago. "They became the legal vanguard of the Reagan agenda to lessen federal control -- and protections -- in American life", she opines. The piece correctly notes the importance of a president's judicial philosophy and the lasting impact appointees, especially to the appellate courts, have on the rule of law nationally. Many also appear as speakers at "meetings of the arch-conservative Federalist Society." Oh my.

Anonymous rape exams: "Starting next year across the country, rape victims too afraid or too ashamed to go to police can undergo an emergency-room forensic rape exam, and the evidence gathered will be kept on file in a sealed envelope in case they decide to press charges," reports Kristen Wyatt for AP.

California Supreme Court's decision in Humberto S. was not the only prosecutor recusal opinion issued by the California Supreme Court today. Today, the court also decided Hollywood v. Superior Court and Haraguchi v. Superior Court.

Prosecutors and Victims' Privileged Info.

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The California Supreme Court today issued a decision regarding the proper role of prosecutors when the defense attempts to access information protected by a privilege held by the victim. In a child molestation case, the trial court recused a large portion of the Los Angeles County DAs office for supposedly stepping outside its role as the public prosecutor to represent the victim in resisting defense efforts to access her privileged psychotherapy records. The Supreme Court held that there was no conflict. The prosecution may appear in a discovery proceeding and resist disclosure. Opinion here. CJLF press release here. CJLF brief here.

SCOTUS Monday

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No decision yet in the Guantanamo detainee case, Boumediene v. Bush. Be sure to tune in next week, same time, same channel.

The Court decided Gonzalez v. United States on the (yawn) question of whether consent to having the jury voir dire in a federal criminal trial be done by a magistrate judge instead of a full-fledged district judge requires the personal waiver of the defendant as opposed to simple consent by counsel. No, 7-1-1.

The lone new cert. grant is Bell v. Kelly, No. 07-1223, a capital habeas case on the extent of deference to state court decisions under 28 U.S.C. § 2254.

Blog Scan

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Bismullah To Get Status Review: Lyle Denniston at SCOTUSblog reported today that the Pentagon intends to review the status of Bismullah, an Afghan national detained at Guantanamo Bay. Bismullah's lawyers have argued for months that he has been detained by mistake, and his case is currently awaiting a decision from the United States Supreme Court in Gates v. Bismullah (07-1054). Denniston reports that the U.S. Supreme Court has avoided action in Bismullah until it decides Boumediene v. Bush and Al Odah v. U.S. The Pentagon's review will include a new “Combatant Status Review Tribunal” based on new evidence. This news comes at the same time as the Justice Department's announcement that the second "Combatant Status Review Tribunal" for detainee Al Ginco, based on new evidence submitted by Al Ginco's counsel, resulted in classification as an "enemy combatant".

Baze Backlash: Over at Sentencing Law and Policy Doug Berman reports and comments on Elisabeth Semel's piece in the The National Law Journal. The article is called "Fearing Too Much Justice" and argues that death penalty states should be using Baze as the standard by which to review each of the state's lethal injection protocols. Berman's comments on the article are the best part of the post:

"Actually, I think that what some members of the current Supreme Court truly fear is what Semel and other death penalty opponents often seem eager to seek: the de facto elimination of the death penalty through persistent constitutional litigation rather than de jure reform through the democratic process. The fear is not of too much justice, but of too much persistent effort by death penalty abolitionists to achieve through the courts what they have not been achieve through the ballot box."

Obama's Position on the Courts: Orin Kerr at Volokh Conspiracy had two posts today on comments Senator Obama has made to the press about the type of Justice he would appoint. The first post reports on Obama's interview with Wolf Blitzer where he states he will seek Justices who will be able to use their own experiences and morals to protect "those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly." Kerr opines that Blitzer fell short when he failed to ask Obama for examples of what type of Justice he would appoint - as this would give us a better idea of what exactly Obama has in mind when he describes his ideal Justice. The second post reports on Obama's July 2007 speech at Planned Parenthood Action Fund. There, Obama stated he did not support judges that took the view that the Constitution in a" cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society."

News Scan

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Marco Allen Chapman, a death row inmate in Kentucky, may soon get his wish: to die. Chapman will be the first person executed in Kentucky since 1999. Brett Barrouquere, from the San Francisco Chronicle, reports Chapman has waited more than three years for the courts to consider an appeal he never wanted. He was convicted for stabbing two children after a two-day crack binge. “I did something that was immoral and wrong. I want to pay the price for it.” confessed Chapman. He says because of his Christian upbringing he’d rather the state kill him so he’s not committing suicide. He is scheduled to be executed June 3.

High School to Blame for Student's Murder Public defender, William Quest, holds E.O. Green Junior High partly responsible for Oxnard student Lawrence King’s death as reported by Catherine Saillant in the L.A. Times. The defendant, 14-year-old Brandon McInerney, was arraigned yesterday for murdering King with a handgun, allegedly because the victim had been flirting with him. Quest suggests that school administrators were so caught up trying to make King comfortable with his sexuality that they overlooked the chaos his behavior was causing. Ventura County prosecutors intend to try McInerney as an adult.

Murderer Challenges Cold Hit: Dennis Nelson was identified by a cold DNA hit as the person who raped and murdered a 19 year old Sacramento girl in 1976. He is asking the California Supreme Court to overturn his conviction because so much time had passed since the crime occurred, he claims he could not present an adequate defense. The Los Angeles times story by Maura Dolan reports on yesterday's oral argument where Nelson's attorney lamented that presenting a adequate defense was impossible because over the years evidence had been lost and memories have faded. That's kinda what happens when a federal judge overturns a conviction or sentence over some procedural error two decades after the trial. The DA is unable to retry the case and the defendant gets on the DPIC innocence list.

Blog Scan

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Takings Clause and Foreigners: Thanks to Eugene Volokh at Volokh Conspiracy for his post on the Federal Circuit opinion dismissing a claim that the Fifth Amendment's Takings Clause applied to foreign nationals with no relationship to the United States. While the Takings Clause does not normally arouse our interest, the Federal Circuit's discussion of the Bill of Rights as it applies to foreigners is of interest - especially in light of pending U.S. Supreme Court decisions pending in Boumediene and Al Odah.

News Scan

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Ohio Murderer May Finally Face Execution Cleveland Plain Dealer reporter Maggi Martin writes that, after 21 years of appeals, double-murderer Richard Cooey may soon receive his sentence. Cooey was sentenced to die on December 1986 for the rape and murder of two waitresses, Wendy Offredo, 21 and Dawn McCreey, 20. Cooey had disabled the victim's car by hitting it with a rock thrown from an overpass. Minutes later he pulled up in his car and offered to take the girls for help. He drove them to a remote area where he raped and strangled them. The most recent delay in Cooey's case was an Eighth Amendment challenge to the state's lethal injection process. With that issue settled, the state attorney is asking the Ohio Supreme Court for an execution date.

Is European Law Enforcement Biased Against Muslims? A Washington Post story by Molly Moore reports that while only 3 percent of all Briton's are Muslim, they make up 11 percent of its prison inmates. In the Netherlands 20 percent of adult inmates and 26 percent of juvenile inmates are Muslims although only 5.5 of the population share that faith. It gets worse, 2% of those living in Belgium are Muslim but they represent 16% of the prison inmates. France beats them all with Muslims making up 12% of the population but an estimated 60-70% of all inmates. Sociologists opine that this represents a failure to integrate Muslim immigrants. But maybe it's a cultural problem. Maybe some immigrants don't want to integrate. Hummm.

The Lynd Case

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More breaking news on the possible first post-Baze execution. Lyle Denniston at SCOTUSblog has this post, with the pleadings, on Georgia murderer William Lynd's certiorari petition and request for stay to the U.S. Supreme Court.

The state's opposition notes that the Georgia Supreme Court's decision rests on the independent state ground that Lynd has already had a state habeas petition and is not entitled to another one. Lynd's reply says that the mere fact that the state court requested merits briefing means its decision was on the merits, not procedural default, and the Supreme Court therefore has jurisdiction. Nope. We slew that dragon 17 years ago. See Coleman v. Thompson, 501 U.S. 722, 744 (1991).

Update: Lyle reports that the Court denied the stay and certiorari at 7:01 ET.

Update 2: "William Earl Lynd was pronounced dead at 7:51 p.m. EDT, Georgia Department of Corrections spokeswoman Mallie McCord told The Associated Press," Shannon McCaffrey reports.

Hat-tip to Paul Cassell at the Volokh Conspiracy for the link to the text of Senator McCain's speech on his judicial appointment philosophy. The speech was given today at Wake Forest University and outlines McCain's conservative philosophy of appointing qualified judges to positions in the federal courts. For McCain, qualified judges are those who will apply the Constitution, and the laws of democratically elected representatives, to each case at hand. This would include "people in the cast of John Roberts, Samuel Alito, and the late William Rehnquist" because these were jurists "who knew their own minds, and know the law, and know the difference." McCain was particularly careful to point out that his appointments would understand the "clear limits to the scope of judicial power" as well as "the clear limits of the federal power."

News Scan

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Georgia Murderer Faces Execution: William Earl Lynd, sentenced to death 18 years ago for the kidnap and murder of his ex-girlfriend, is scheduled for execution tonight as reported in this story by AP writer Shannon McCaffrey. Lynd will be the first murderer executed since last September, when the U.S. Supreme Court agreed to review the lethal injection process in the Kentucky case of Baze v. Rees, decided on April 16.

Update: The Georgia Supreme Court unanimously denied a stay this afternoon. Atlanta Journal-Constitution story here.

DC Sniper: AP reports that John Allen Muhammad has written a letter to prosecutors saying that he wants to drop his appeals, and he asks for their help against the efforts of his lawyers. They claim he is brain damaged.

Do capital defense lawyers oppose every attempt to "volunteer" and claim mental incapacity every time? It seems to happen with great regularity.

Blog Scan

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Medellin Execution Date Set: The Blog of Legal Times has this post on the decision to set Jose Medellin's execution for August 5, 2008. In March 2008, the Supreme Court ruled that an International Court of Justice judgment was not binding domestic law, and Medellin was not entitled to further review of his conviction and death sentence. CJLF submitted an Amicus Brief in the case. The brief can be found here. See also press coverage in today's News Scan.

Predicting Lethal Injection Review Post-Baze: Lyle Denniston at SCOTUSblog has this post on proceedings in the Fourth Circuit on the question of whether Virginia's lethal injection protocol satisfies the constitutional standards articulated in Baze v. Rees. Virginia filed its petition with the Fourth Circuit last Friday, its brief can be found here. Denniston reports that Virginia's brief focuses heavily on the argument that the district court anticipated the U.S. Supreme Court's decision in Baze, and applied the same constitutional standards to uphold Virginia's method. This brief is in response to Christopher Scott Emmett's April 16th petition to the Fourth Circuit urging the Fourth Circuit to send the case back to the district court to determine if Virginia's protocol adequately resembles the lethal injection upheld in Baze v. Rees. Emmett's petition can be found here. Denniston's post notes that the Fourth Circuit's decision could lead the way by setting an example for other courts to follow when reviewing state lethal injection protocols.

Media Coverage on Execution's Post-Baze: Over at Sentencing Law and Policy Douglas Berman also has this comment on the news stories that have reported on scheduled executions in the wake of Baze v. Rees. Based on the media coverage, and politician silence after the Baze decision, Berman predicts we will not see a "serious change in capital" punishment "even if we see a few executions every week for the rest of 2008."

News Scan

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Civil Rights Pioneer Mildred Loving, a black woman who challenged Virginia’s ban in interracial marriage, died Friday in her home. On June 12, 1967, the Supreme Court upheld Mildred and Richard Loving’s right to marry. Washington Post writer Dionne Walker reports, “the ruling struck down laws banning racially mixed marriages in at least 17 states”. The story is available here.

Editorial Supports Victims' Rights: In a rare break from sympathizing with criminal defendants, the LA Times editorial page is defending introduction at trial of the statements of a murder victim in the Supreme Court case of Giles v. California.

Blinded by Reality. Apparently unaware of multiple studies showing that keeping habitual criminals and drug dealers behind bars is far cheaper than releasing them back into society, Washington Post writers Keith Richburg and Ashley Surdin report as fact, the decades-old claim by the Sentencing Project (read Reduce Sentencing Project) that the opposite is true. The story quotes the groups executive director: “Do you want to build prisons or do you want to build more colleges." ...... Hello?.. open the prison doors and any supposed savings will be spent building more morgues, rape crisis centers and drug clinics.

Texas Sets Date for Medellin: Michael Graczyk of AP reports, that Texas has set an execution date of August 5 for murderer Jose Medellin. CJLF has been involved in Medellin's case since 2005 and filed a brief on behalf of one of his victim's families in Medellin v. Texas, decided last March.

Six murders over a video game WWSB ABC News reports, that the Florida Supreme Court heard arguments today challenging the conviction of three defendants for the 2004 massacre of six people in a Deltona home. The defense attorney argues that the three defendants should have received separate trials. One defendant was convicted and sentenced to LWOP. The other two received death sentences. A fourth accomplice pleaded guilty and received LWOP. The victims were killed over the theft of an X Box video game.

The anti-DP crowd is crowing over another "exoneration," once again obscuring the distinction between inability to reprosecute and actual proof (or even evidence) of actual innocence. DPIC, for example, has this description of the case of Levon Jones in North Carolina. The headline begins "Innocence" even though the text of the story does not claim he is actually innocent.

The district attorney's press release is here. It turns out the witness recantation is only in an affidavit prepared by defense counsel. That is the weakest of all forms of evidence. It is not unusual for a person to sign a statement under pressure from a persistent lawyer or investigator only to say something quite different when speaking in his or her own words on neutral ground. But in this case, the witness won't speak to anyone from law enforcement. The DA believes she has been intimidated by the defendant. Two other witnesses in the case are dead.

What does it mean to be "exonerated"? The Oxford online dictionary says, "1 officially absolve from blame. 2 (exonerate from) release (someone) from (a duty or obligation)." If a person is released and the charges are dropped, the person is "exonerated" in the second sense. He has no remaining duty or obligation. He is not, however, absolved from blame in the sense of having been affirmatively shown to be blameless.

This is a vitally important distinction when the policy implications of cases such as this are considered. The requirement of proof beyond a reasonable doubt, along with other protections for the defendant, means that we tolerate a lot of guilty people going free. That happens on initial trials, such as O.J. Simpson, and it happens when convictions are set aside and cases are sent back for retrial. The fact that a few cases cannot be successfully reprosecuted a decade or two after the crime does not mean that the defendants were innocent. A few are, but not all or even most.

USDC San Diego Bombed

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The federal courthouse in San Diego was hit by a bomb about 1:40 a.m. Sunday. Angelica Martinez has this story in the San Diego Union-Tribune.

Sowell on Obama

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Thomas Sowell has this column on Barack Obama, noting that eagerness to have a black President is not a good reason to elect this particular person as President:

Just the power to nominate federal judges to trial courts and appellate courts across the country, including the Supreme Court, can have an enormous impact for decades to come. There is no point feeling outraged by things done by federal judges, if you vote on the basis of emotion for those who appoint them.

DNA Cold Hits

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"DNA matches aren't always a lock" is the headline of this LA Times story by Jason Felch and Maura Dolan. Cases where a suspect is identified by a "cold hit" database search involve different probability considerations than the typical case where a person already a suspect based on other evidence is confirmed as the perpetrator by a DNA test.

By analogy, if you buy a lottery ticket for a drawing, the chances that your ticket will win are extremely small. However, the chances that somebody will win from that drawing are often pretty good. If the chance that a person would match a profile if selected at random are one in a million and the database searched for that profile has millions of people, then there is a decent chance that an innocent person will be a random match. Of course, with fresh samples and modern techniques, the random match probability is 1/quadrillions, not millions, so the chance of random false positive remains very small. With old, degraded samples and only a few markers available, though, the chance of a false positive match is significant.

Is this story accurate? I would be interested in hearing from DNA experts.

Blog Scan

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The Constitution and Judicial Supremacy: At Bench Memos Ed Whelan and Matthew J. Franck have two posts on the Senate resolution that declared John McCain a "natural born" citizen under Article II, Section 1, of the Constitution of the United States. Matthew Franck's post reacts to today's Washington Post article by Matthew Dobbs. The post disputes Dobbs' claim that a Constitutional amendment might be necessary to clarify what is meant by "natural born" in Article II. Whelan's post adds to Franck's post by taking up Franck's statement, " 'Congress cannot legislatively change the meaning of the Constitution.' That's true. Somehow it never seems to occur to most law professors that neither can the Supreme Court judicially change the meaning of the Constitution." Whelan adds his own thoughts as they relate to Lawrence Solum’s “Semantic Originalism”.

The Takings Clause and the Fourth Amendment: Orin Kerr at Volokh Conspiracy posted his reaction to Ilya Somin's textualist reading of the Fifth and Fourth Amendments and their possible interplay. Kerr disagrees with Somin's argument that there is significance in the fact that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. He also specifically addresses Somin's point that the Framers didn't experience seizures of property owned by innocent third parties.

News Scan

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Justice Resumed?: Bill Mears at CNN has this story on post-Baze executions scheduled in Georgia and Mississippi next week.

Intelligent Life at a College Newspaper
An editorial in San Diego State University's paper, The Daily Aztec, suggests that "America's tough and distinct approach to crime and punishment" has driven crime rates down. Columnist Holly Wells also notes that when comparing the cost of incarceration with the cost of leaving criminals on the streets, "prison is a bargain." She also compares U. S. sentencing policies with those in England, concluding that "when America got tough...crime rates dropped. When England got soft on crime, rates increased."

Hispanics lead in cocaine convictions: An AP story reports that according to government data, Hispanics now make up the overwhelming majority--60%--of federal offenders facing powder-cocaine charges. Part of the reason is that most of the powder-cocaine entering the U.S. has been coming through Mexico since federal law enforcement cracked down on trafficking through Florida. Another factor is the dramatic shift in focus from users to suppliers. The story notes that cocaine possession represented less than 4% of federal convictions in 2007, while 96% involved drug traffickers, manufacturers and distributors. No Virginia, the prisons are not full of non-violent folks caught using drugs.

Blog Scan

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Federal Sentencing at the Ninth Circuit: Douglas Berman at Sentencing Law and Policy posted his thoughts on today's Ninth Circuit sentencing decision in Tapia-Romero, No. 05-50121 (9th Cir. May 1, 2008). Berman's commentary questions whether the Ninth Circuit was correct to uphold the district court's determination that "cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment." Berman wonders how far the decision will be taken, and whether it will lead to the prohibition of cost-benefit analysis in all federal sentencing determinations.

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