June 2008 Archives

Blog Scan

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Supreme Court Criminal Law Docket in 2007-2008: Kristina Moore at SCOTUSblog posted a summary of the criminal cases decided by the U.S. Supreme Court this term. Moore reports that of the 24 cases involving criminal law, 12 involved sentencing guidelines or felony definitions, and seven cases addressed strictly procedural issues. Some interesting facts from Moore's post: (1) Of the 24 criminal cases, Justice Kennedy cast 12 votes in favor of the defendant, and 12 votes in favor of the prosecution; (2) Justice Stevens actually voted more for the prosecution this term - he only voted for the defendant in 54% of the decisions, whereas last term he voted for the defendant 76.5% of the time; and (3) Chief Justice Roberts' support for the defendant actually increased in OT07. The Chief Justice voted for the defendant in 38% of the cases, an increase from his 18% support of the defendant in OT06.

The Definition of "Judicial Activism":
Over at Bench Memos (NRO) Gerard Bradley has a post pondering the exact meaning of judicial activism. While Bradley struggles with how to give the term "an intelligible and independent meaning", Bradley does believe that the definition of judicial activism is related to the sources of judicial reasoning. He submits that an activist is "at work" if the grounds for a decision are not "fairly inferable from the constitutional text, structure, or history of its authoritative interpretation." Bradley's post references Ed Whalen's earlier post defending the term judicial activism. Whalen believes the term "judicial activism" "identifies one category of judicial error in interpreting the Constitution: the wrongful overriding of democratic enactments (often through the invention of supposed constitutional rights)." "Judicial activism" is distinguishable from what Whalen calls "judicial passivism -- the wrongful failure to enforce constitutional rights."

Federalism and Danforth v. Minnesota: Ilya Somin has a post plugging the publication of his article in Northwestern University Law Review Colloquy. The article, now available at SSRN, discusses the tension between state courts that seek to provide greater protection than provided by the Supreme Court's interpretation of the federal Constitution. The Danforth decision held state courts could provide victims of constitutional rights violations broader remedies, and Somin's article discusses and provides "doctrinal justification" for the decision.

Hubris on Deterrence

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Cass Sunstein and Justin Wolfers have this op-ed in the Washington Post today, claiming that the Supreme Court has "misread" the evidence on deterrence. Professor Sunstein gives himself too much credit and gives Justice Scalia too little.

News Scan

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Death Penalty Opponents Vow More Lawsuits in Wake of Baze: While the Baze decision provides a fairly clear affirmation of the procedures used by Kentucky and 34 other states, Deborah Hastings of the Associated Press argues that death penalty opponents will initiate a string of lawsuits to differentiate their state's method of lethal injection from that approved by the Court.

Relationship Between Gun Laws and Crime Rates Unclear, At Best: Adam Liptak examines the debate over the efficacy of gun laws for the New York Times. While research findings have shown mixed results, an important point is that criminals are of course the least likely to obey gun laws.

FL Prepares to Test New Lethal Injection Protocol: Following an outcry after a botched execution in December 2006, Florida has instituted an additional step to its lethal injection procedure. According to Ron Ward's story for the Associated Press, the new procedure will require an official to verify that the inmate is unconscious prior to the injection of the second chemical. Mark Dean Schwab is scheduled to be executed on Tuesday, exactly 16 years after he was sentenced to death for the kidnapping, rape, and murder of an 11-year-old boy.

The California Commission on the Fair Administration of Justice plans to release its report on the death penalty today. The press release is here. The circumstances of this commission's creation and its actions to date do not bode well for anyone hoping for a fair, balanced report.

The commission was created by former California Senate leader John Burton, a dyed-in-the-wool opponent of the death penalty. Normally, commissions are set up by legislation through the standard process of bicameral approval plus governor's signature. Burton set up his commission by a unilateral resolution of the Senate alone, Senate Resolution 44 of 2004. This unique mode of creation enabled him to keep the appointments entirely in the hands of the Senate Rules Committee, which is firmly under the control of the left wing-tip of the Democratic Party.

The commission promptly retained as its executive director Dean Gerald Uelmen of Santa Clara U. Law, a well-known partisan for the anti-death-penalty side of the debate. If they had intentionally wanted to undermine their credibility as a fair review, they could scarcely have made a better choice.

The commission has funded various people to do research on the administration of the death penalty in California. All but one of the contracts went to anti-death-penalty academics. The one exception was a feasibility study on costs by Rand Corporation, and that study produced no firm conclusions.

Update: The report is now online here. I have extracted the dissent and posted it here. Here is the first paragraph:

We respectfully dissent from the Report and Recommendations on the Administration of the Death Penalty in California, which was issued today by the California Commission on the Fair Administration of Justice. Regrettably, we believe the majority report indirectly assaults California’s death penalty by seeking to undermine public confidence in our capital punishment law and procedure. While the majority refrains from making specific recommendations to weaken this voter approved law, the tone and unbalanced discussion of potential reform is anything but neutral. By doing so, the majority exceeds the scope of its original charge and unfortunately, diminishes the value of other worthwhile recommendations.

Death Penalty Debate Online

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The Federalist Society has this online debate on the death penalty. "In light of the important death penalty questions considered [by the Supreme Court] this term, a panel of experts-- Former Chief of the Appellate Division in the U.S. Attorney's Office, Eastern District of Virginia Bill Otis, the Northern California ACLU's Director of Death Penalty Policy, Natasha Minsker, the Legal Director & General Counsel, Criminal Justice Legal Foundation, Kent Scheidegger, and University of Houston Law professor David Dow --discuss the legal and moral implications of capital punishment."

USCA2 Upholds Death Sentence

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The Second Circuit doesn't decide a lot of death penalty cases. Vermont has decided not to have the death penalty through the democratic process. New York's was nullified by Their Imperial Highnesses at the NY Court of Appeals. Connecticut cases don't make it out of the state courts, except for one volunteer.

Today, however, USCA2 decided the case of Donald Fell. "Fell and an accomplice kidnapped Terry King, 53, from a [Vermont] supermarket, took her to New York state, and beat and kicked her to death in November 2000. Fell and his accomplice had earlier killed his mother and her companion." Sweet guy. Murder is generally a state-law matter, but kidnapping across state lines is a federal offense. See 18 USC §1201(a)(1). The conviction and sentence were affirmed, reports Larry Neumeister of AP. Decision here.

News Scan

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SF Widow Pleads for Death Penalty: A week ago, Danielle Bologna of San Francisco was living with her husband and four children. Then suddenly half her family was gone, reports Jaxon Van Derbeken in the SF Chron. They were killed in a particularly brutal and senseless crime by a member of one of the most notoriously violent gangs in America, MS-13. And what did Tony Bologna do to get himself and his two sons killed? It was nothing but a brief problem of two cars trying to get through one of San Francisco's narrow streets, something that happens all the time. Tony backed up to let the other car through, but the thug opened fire anyway. Danielle Bologna's plea to seek the death penalty in this case will probably go unheeded. District Attorney Kamala Harris has not sought the death penalty once since taking office. And the murder rate in San Francisco relative to the rest of the state has risen steadily.

High Gas Prices Inspire Creative Thievery: As gas prices are on the rise, dishonest people will find a way to profit from it. In a new trend of bizarre thefts, criminals are stealing thousands of dollars worth of fuel from stores, farms, and individuals alike. According to the Skip and Campo-Flores article for Newsweek, we don't just have to lock our front doors any more; now, we have to lock our gas tanks.

Knowles v. Mirzayance

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You know something unusual is up when the three-judge panel of a U.S. Court of Appeals decides that a case is so mundane that it is not worth a published opinion, but the U.S. Supreme Court considers the case "certworthy," i.e., one of the very few cases that it takes for full review. That's what happened today in Knowles v. Mirzayance, No. 07-1315. In terms of the precedential value of a case, the hurdle for publication should be a fraction of the hurdle for certiorari.

The Ninth decided, 2-1, that Mirzayance's lawyer was ineffective in dropping the insanity gambit. After the Supreme Court sent it back for another look in light of Ninth's spanking in Carey v. Musladin, 549 U.S. 70 (2006) (unanimous in the judgment), a divided panel decided that Musladin didn't matter. That's waving a red flag. District Judge Suko, the third member of the panel sitting by designation, thought the other two showed insufficient deference to both the district judge's factual findings and the state court's decision under AEDPA.

The fact that this case was relisted twice is a little curious. (That is, the Supreme Court scheduled it for consideration at a conference, took no action, and scheduled it again for a later conference. Twice.) I suspect they were pondering whether to summarily reverse or whether to take the case for full briefing and argument.

Is it possible a majority of the current Court recognizes that ineffective assistance claims have gotten out of hand since Wiggins v. Smith, 539 U. S. 510 (2003) and Rompilla v. Beard, 545 U. S. 374 (2005)? I hope so.

Questions presented are after the jump.

The Complexity of Brain Scans

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The purported rise of brain scanning technologies in criminal cases has paralleled the growth of neurolaw within legal scholarship. But as with many new interfaces with law, the tendency to overplay the implications such technologies have regarding entrenched legal norms often ignores the mutable nature of our scientific understandings.

Vaughan Bell over at Mind Hacks has a great new post up titled The fMRI Smackdown Cometh which highlights the growing skepticism regarding many of the brain scanning claims made of late:

Over the last few months, the soul searching over the shortcomings of fMRI brain scanning has escaped the backrooms of imaging labs and has hit the mainstream.

Numerous articles in hard hitting publications have questioned some common assumptions behind the technology, suggesting a backlash against the bright lights of brain scanning is in full swing...

It starts with this simple question: what is fMRI measuring?

When we talk about imaging experiments, we usually say it measures 'brain activity', but you may be surprised to know that no-one's really sure what this actually means.

Bell provides a compelling litany of scholarly articles which highlight how much we do not know when it comes to the operations of the mind and the very real limitations of brain scans.

Interpretation Nuggets in Heller

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When reading Supreme Court opinions, I like to keep track of "nuggets," particularly nice statements of basic principles that may be useful in other contexts. The Heller opinion has a number of nuggets on the interpretation of enactments, applicable both to statutes and the Constitution.

More Apprendi Damage Control

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The California Supreme Court decided People v. Towne, S125677, today, further squashing the notion that the Apprendi line of cases requires juries to decide practically everything relevant to sentencing.

We conclude the aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury. In addition, the aggravating circumstance that a defendant’s prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendant’s record of one or more prior convictions.

News Scan

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Affirmation of Right to Face Accusers May Endanger Victims: Carrie Johnson reports for the Washington Post that the US Supreme Court has overturned the conviction of a man for murdering his ex-girlfriend because he could not challenge a statement she gave police. Victims' advocates worry that the decision will provide an incentive for perpetrators of domestic violence to kill the victim, since the victim is often the only witness.

3 Men Extradited to NY to Face Conspiracy Charges: According to the LA Times article by Josh Meyer, 3 men have been extradited from the Caribbean to face numerous charges, including conspiracy to attack a public transportation system and conspiracy to detroy a building by fire or explosives, in an alleged plot to attack JFK International Airport.

VA Landmark Execution: Robert Stacy Yarbrough was executed Wednesday night for the brutal murder of a store clerk in 1997; the clerk's throat was so violently slashed, he was nearly beheaded. Governor Kaine announced that he could find no valid reason to intervene, and thus, Yarbrough earned the dubious distinction of becoming the 100th individual executed in Virginia since the death penalty was reinstatd in 1976. Jerry Markon has the story for the Washington Post.

LWOP for Entwistle in Double Murder: In a story that has captured media attention, British-born Neil Entwistle has been found guilty for the murder of his 27-year-old American wife and their 9-month-old daughter. While Entwistle maintains his innocence, his DNA was found on the murder weapon, and he fled to the UK shortly after "discovering" the bodies. Denise LaVoie of the Associated Press reports that Entwistle will be appealing the conviction.

Judge Throws Out Lawsuit Seeking to Overturn Special Order 40: An LA resident sued to repeal Special Order 40, which prevents the LAPD from detaining individuals to determine immigration status, but the Superior Court judge threw out the lawsuit. Advocates of the order argue that victims and witnesses to crimes are more willing to come forward to help police if their immigration status is not an issue. Joel Rubin for the LA Times details the debate.

Right to Bear Arms

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The U.S. Supreme Court has affirmed that the Second Amendment right to bear arms creates an individual right, not limited to the militia. The D.C. Circuit ruling in Heller is affirmed.

Update: The opinion is available on SCOTUSblog and downloads haven't crashed their server. Must be pretty beefy.

The opinion is now on the Court's website here.

I've pasted the syllabus after the jump. Note that the Court specifically rules out the notion that this decision casts doubt on felon-in-possession laws, concealed carry laws, and several other widely accepted regulations of firearms.

Obama on Kennedy v. Louisiana

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This being an election year, the ink was not dry on the opinion in Kennedy v. Louisiana before bloggers (and blog commenters) were asking how it would affect the presidential election and whether it would give a boost to John McCain. Without missing a beat, Barack Obama has criticized the opinion. What does it say about the Court's finding of a national consensus if the de facto presidential nominees of both major political parties disagree with the supposed consensus?

Blog Scan

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Thursday, The Last Day of the 2007 Term: Tony Mauro at Blog of the Legal Times (BLT) has a post on what will happen tomorrow, Thursday, June 26, when the U.S. Supreme Court releases all remaining cases that are "ready" from the Court's 2007 docket. For those of us who have been watching the Court, this means we should see an opinion in D.C. v. Heller tomorrow.
Also, on BLT is a post from Joe Palazzolo on the recent survey from the National Association of Assistant U.S. Attorneys, which found "one out of every two federal prosecutors reported having been threatened or assaulted at least once in their careers."

McCain's Reaction to Kennedy v. Louisiana: Matthew Franck at Bench Memos reports on McCain's reaction to today's Kennedy decision. Franck agrees with McCain's reference to the activist approach of the majority opinion. Franck states "It is not the province of a judge to act on what he believes is "deserving" punishment for such an offense, notwithstanding several decades of mistaken jurisprudence premised on the contrary. But Justice Kennedy's majority obviously believes it is the province of judges to act on their mere beliefs about such matters. But Justice Kennedy's majority obviously believes it is the province of judges to act on their mere beliefs about such matters."

Big Day For A Supreme Court Advocate: Dan Slater at the Wall Street Journal's Law Blog posted today's "Lawyer of the Day" comment on Stanford Law Professor Jeffrey Fisher. Apparently, Fisher argued in both Kennedy v. Louisiana and Exxon v. Baker, today's most heavily blogged on decisions. Slater reports that while Fisher's argument did not win in Baker, Fisher's view on where the Court stands on "the evolution of the country’s so-called evolving standards of decency" did resurface in Kennedy's majority opinion for Kennedy v. Louisiana.

Although most of the attention today is on the Kennedy opinion, the case of Giles v. California will have a greater impact on the regular practice of criminal law. The case continues the reworking of the Confrontation Clause begun by Crawford v. Washington, 541 U.S. 36 (2004), looking more at what was admissible back in the common law days and less at what the Court thinks is fair today.

The question is when a defendant can forfeit his right to confront the witness, thus allowing into evidence a prior unconfronted statement, by his own misconduct rendering the witness unavailable. In this case, the misconduct was to murder the witness. Specifically, the issue comes down to what mental state the defendant had for this wrongful act. The majority opinion by Justice Scalia goes for a narrow exception. The statement comes in only if the prosecution can prove (to the judge, the jury hasn't heard any of this yet) that the defendant killed the witness for the purpose of preventing testimony, not for some unrelated reason. The dissent (Breyer, joined by Stevens and Kennedy) would hold that intentional killing with knowledge that preventing testimony is a consequence would suffice.

Cunningham Sequel Tomorrow

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Tomorrow, the California Supreme Court will announce its decision in People v. Towne, S125677. This case is another sequel to Cunningham v. California, 549 U.S. 270 (2007), the case that applied the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000) to California's three-tier determinate sentencing system. The questions presented are after the jump.

News Scan

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Ninth Circuit Overturns Death Penalty, Allows Conviction to Stand: Paul Elias reports for the Associated Press that the Reinhart court has ruled that the defense's failure to investigate blood evidence that did not belong to either the defendant or the victim in a 1984 murder might have precluded the death penalty by implicating an accomplice as the actual killer.

LA Gang Raid Leads to Dozens of Arrests: According to the Hennessy-Fiske and Blankstein article for the LA Times, an early morning raid by a task force of more than 500 law enforcement officials resulted in dozens of arrests. 70 individuals were listed on a federal racketeering indictment while 28 others had outstanding warrants. The raid focused on the "Avenues" gang concentrated in Northeast LA.

FBI Child Prostitution Round-up Nets 300 Suspects, More than 400 Victims: Fox News reports that a nation-wide operation under the FBI's child protection program has resulted in 300 suspects, including pimps and prostitutes. The raids focused on blighted neighborhoods and truck stops along the interstate.

Death Penalty Barred for Child Rape

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The Supreme Court this morning decided in Kennedy v. Louisiana that the death penalty is unconstitutional for the crime of the rape of a child. The primary reason for the holding is the national consensus the Court found in state laws. When death penalty laws were reenacted after the prior laws were struck down in 1972, only a handful of states included any kind of rape among the new capital offenses. The Court noted that a few states have recently enacted child rape laws, but found the trend insufficient to overcome the consensus.

A Precursor to Oregon v. Ice

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Hat tip to Doug Berman at Sentencing Law and Policy for the post directing us to today's Supreme Court of Tennessee decision in State v. Allen, No. W2005-0285-SC-R11-CD. The decision, authored by Judge Cornelia Clark, addressed whether Tennessee's consecutive sentencing statute "passes constitutional muster" in light of the U.S. Supreme Court holdings of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). While Tennessee and Oregon sentencing statutes are different, the issue addressed by the Supreme Court of Tennessee is the same as the one before SCOTUS next term in Oregon v. Ice, 07-901. The Supreme Court of Tennessee declined to extend the rules of Apprendi and Blakely to the defendants in Allen. We hope the U.S. Supreme Court makes a similar decision when it issues its opinion in Ice.

CJLF's brief in support of Oregon, can be found here.

Jessica's Law in Massachusetts

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The Massachusetts legislature is presently considering a version of "Jessica's Law," reports Dave Wedge for the Boston Herald. (Hat tip, James Taranto.) Incredibly, the House removed a provision for mandatory prison time for rape of a child before passing the bill. However controversial mandatory minimums may be in other contexts, it staggers the imagination to think that anyone, much less a majority of a house of a state legislature, thinks that probation can be appropriate for this crime. But if you think that's incredible, read what Rep. James Fagan said in opposition to the bill:

Fagan, a defense attorney, infuriated victims’ rights advocates during a recent House debate when he said he would “rip apart” 6-year-old victims on the witness stand and “make sure the rest of their life is ruined.”
In a fiery soliloquy on the House floor, Fagan said he’d grill victims so that, “when they’re 8 years old they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”

If anyone had any doubt that child witnesses need protection from some defense lawyers who go beyond zeal into fanaticism, that should erase the doubt.

Update: The implication in the Boston Herald article that the bill as it passed the House would leave no minimum prison time for child rape is challeged by Corey Rayburn Yung at the Sex Crimes blog. I'll check it out. In any case, that does not affect the main point of the post. If the quote of Rep. Fagan's comments is accurate, he is a disgrace, the voters of his district should dump him at the next election, and protection for child witnesses from jackals like him is absolutely essential.

Update 2: Comment from a Massachusetts prosecutor is after the jump.

News Scan

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Supreme Court Grants 3rd Hearing to TN Death Row Inmate: According to Adam Liptak's article in the New York Times, the US Supreme Court has granted a third hearing to Gary B. Cone, who was sentenced to death for double murder, to determine if he still has an opportunity to argue that prosecutors did not fully disclose evidence that might have helped his defense. Prosecutors are accused of having withheld evidence of drug use, the precise explanation Cone used to excuse his behavior.

Can Court Rule Inmate Too Dangerous for Psychiatric Facility? Ruben Casteneda reports for the Washington Post that a Circuit Court judge has ruled that an inmate is too dangerous to both himself and to others to be allowed outside of Baltimore's Supermax despite his ruling that the inmate was not criminally responsible for his crimes. The judge committed the inmate to the Department of Health and Mental Hygiene based on his ruling, but has now said that the DHMH can provide treatment within the confines of Supermax based the agency's recommendations.

Georgia Sex Offenders Challenge Movement Restrictions: Georgia has the most restrictive laws for registered sex offenders in the country, including bans on living within a certain radius of school bus stops and volunteering at church. Greg Bluestein writes for the Associated Press that, through a human rights group, 5 Georgia sex offenders argue that the restrictions limit their ability to practice their faith under the First Amendment.

L.A. Gang Violence Shuts Down Summer Sanctuaries: Public pools have long been many citizen's only refuge from the sweltering summer heat, but when violence erupted at a Watts public pool, officials shut the pool down indefinitely. John Mitchell details for the LA Times just how gang violence is affecting another aspect of daily life.

Supreme Court Won't Interfere with Border Fence Plans
: When the Secretary of Homeland Security invoked the right, granted by Congress, to exempt the border fence from certain environmental regulations, the environmental lobby and some of their sympathetic legislators protested the constitutionality of the exemptions all the way to the Supreme Court. But according to Dave Montgomery's story in the Sacramento Bee, officials have the right to use the legislative exemption for laws passed by Congress. Go figure.

Blog Scan

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The Remaining Supreme Court Decisions: Tom Goldstein at SCOTUSblog posted his predictions for the 2007-2008 cases that are still unresolved. Based on his SCOTUS sudoku method, Goldstein predicts Justice Scalia is the author of District of Columbia v. Heller, indicating a probably win for the would-be gun owner. He also predicts that Justices Scalia, Kennedy and Alito are the likely authors of opinions for Giles v. California and Kennedy v. Louisiana but concedes these predictions are "wild speculation."

Critiquing Epstein's take on Boumediene:
Ed Whalen at Bench Memos critiques a point made by Richard Epstein in an Op-ed Epstein wrote for Saturday's New York Times. Whalen's post points to Epstein's comment "Nothing in the suspension clause distinguishes citizens from aliens.”, and discusses how irrelevant this statement is when "The Suspension Clause doesn’t purport to define the scope of the privilege of habeas corpus; it merely governs suspension of the privilege." Whalen is critical of Epstein's failure to address the originalist argument made in Scalia's dissent, as well as Epstein's failure to recognize no precedent exists "for recognizing in aliens abroad the same constitutional rights of “persons” that U.S. citizens abroad..." Whalen then notes that Andrew McBride got Boumediene right in Saturday's Wall Street Journal.

Sixth Amendment After Rothgery: Orin Kerr has a post at the Volkh Conspiracy pondering when the right to counsel attaches after today's decision in Rothgery v. Gillespe County. Kerr confesses he is not a Sixth Amendment expert, so he asks readers to help resolve some of the questions he has after reading today's decision. One question that Kerr poses, and offers up for comment, is: "If it means there must be counsel before the detention hearing, how is Rothgery consistent with the Sixth Amendment discussion in Gerstein v. Pugh, where the Court indicated that "pretrial custody may affect to some extent the defendant's ability to assist in preparation of his defense," but that a probable cause hearing did not trigger a critical stage requiring a constitutional right to counsel?"

Psychology and Crime News has a couple of interesting research items. First, Behavioral Science and the Law has a special issue on videoconferencing and the law. Another post gives a summary of an article on "The limited role of neuroimaging in determining criminal liability." (Probably not limited enough.)

Crime and the Election

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More Prisoners, Less Crime: George Will has this column in Sunday's WashPost on the conspicuous absence of crime from the current political campaign. "Listening to political talk requires a third ear that hears what is not said. Today's near silence about crime probably is evidence of social improvement."

The irony is that the very success of getting tough on crime, thereby reducing crime rates, is what has pushed the issue to the back burner. Will quotes Heather MacDonald and James Q. Wilson refuting some of the pervasive myths.

News Scan

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"Enemy Combatant" Classification Overturned: The Associated Press article at Fox News details the new Federal Appeals Court decision which overturned an American citizen's classification as an enemy combatant. The decision, reached Friday, is not currently available to the public because it contains classfied information. According to the Court, an approved version of the decision is being prepared for public access.

Review of CPS Practices Reveals Improvement, but Not Enough: According to Marjie Lundstrom's investigation for the Sacramento Bee, Sacramento County has the highest rate of kids who are abused or neglected again within one year of initial contact with Child Protective Services and who reenter foster care within 2 years of family reunification. The annual budget for CPS has quadrupled since 1996, but the system still appears to have some major shortfalls.

GVR on Collateral Review Waivers

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In two cases today, the Supreme Court issued grant-vacate-and-remand orders (GVR), directing the Seventh Circuit to take another look based on a new position by the Solicitor General regarding the scope of review waivers in plea agreements. The cases are Nunez v. United States, No. 07-818, and Stephenson v. United States, No. 07-9267. Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, dissents in both cases. His position is that the Court lacks authority to vacate the decision of another court unless it finds or the prevailing party concedes that the judgment is erroneous, as distinguished from a correct judgment for a wrong reason.

Understatement of the day award goes to Justice David Souter, writing for the Court in Rothgery v. Gillespie County, Texas, No. 07-440. "Our holding is narrow." Indeed, the holding decides an easy technical question but resolves nothing of consequence. If the holding were any narrower, it would disappear altogether.

Certiorari Grants

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The U.S. Supreme Court accepted three criminal and habeas cases for review next term. We previously noted Cone v. Bell, No. 07-1114 on procedural default and Harbison v. Bell, No. 07-8521 on federally funded counsel for state clemency petitions.

Also granted was Arizona v. Johnson, No. 07-1122. The question presented in the Arizona Court of Appeals was, "During a routine traffic stop, may an officer conduct a pat-down search of a potentially armed and dangerous passenger when the officer has no grounds to investigate the passenger for any crime and the pat-down search is conducted solely to assure the officer’s safety in a wholly separate, consensual investigation of the passenger unrelated to the original stop of the vehicle?"

No decisions in Heller v. DC (gun law) orKennedy v. La. (death penalty for child rape) yet. Lower profile criminal and related decisions were issued in Rothgery v. Gillespie County and Greenlaw v. United States.

Blog Scan

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Predictions of Kennedy v. Louisiana: Yesterday, Corey Rayburn Yung posted his prediction for the Supreme Court's decision in Kennedy v. Louisiana. In his post, Yung states that while he had earlier predicted that the Court might strike down Louisiana's law allowing the death penalty for child rape by "narrowing the class of defendants", Yung now predicts the Court's decision will focus on whether the death penalty for child rape is "cruel and unusual." Yung predicts the Court will "fudge" rather than "overrule" Coker. (We at CJLF do not think that either fudging or overruling is required, as Coker quite clearly left the present question open.) Yung predicts the Court will issue a 5-4 decision in favor of the state, with Kennedy as the swing vote. We could know Monday if his prediction is right...

Military Commission Review: Lyle Denniston at SCOTUSblog reports on today's D.C. Circuit decision that it does not have authority to hear detainee Omar Ahmed Khadr's challenges to the authority of a "military commission" to try him on terrorism charges. A three judge panel for the D.C. Circuit ruled it could not decide the issue before Khadr had been tried by the military commission. The D.C. Circuit rejected Kadhr's arguments that both the Military Commissions Act of 2006, and the collateral order doctrine, gave the court subject matter jurisdiction over his claim. Denniston reports this is the first time the D.C. Circuit Court has "spelled out" the authority that Congress gave it to review the findings of the military commission trials.

A Rehnquist Ode

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Prof. John Q. Barrett, who authors the emailed Jackson List on things relating to Justice Robert Jackson, has an article in the Green Bag on a Gilbert and Sullivan spoof written by Jackson clerk William Rehnquist. The article is here, which has lots of background and explanation. I've reproduced the spoof and an excerpt of the original after the jump.

Regrettably, Barrett sullies his article with one of those asinine comments that we get from liberals who think they are being nice to conservatives while actually betraying their own prejudices and misconceptions. "William Rehnquist's strong, sometimes stern views, both in his youth and later, did not mean that he was humorless." Why would anyone think for a minute that there is any inconsistency between strong conservative views and a sense of humor? Only if they have a profound misunderstanding of conservative thought.

Update: Professor Barrett responds by email that he did not intend to refer to Rehnquist's conservatism but rather "the way he sometimes would scold attorneys and spectators in Court about quite petty matters."

News Scan

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Texas Courts Accused of "Facilitating" Executions: Steve Mills reports for the Chicago Tribune that a judge's decision to reinstate an inmate's death warrant drew charges from death penalty opponents that the court was behaving "as if their job is to facilitate executions." Because Texas carries out executions more frequently than other states, it is often the focus of protests against the death penalty. The death warrant in question was for Charles Hood, who was sentenced to death 18 years ago for a double murder; clearly 18 years is rushing things.

Potential Impact of the Intelligence Bill
: An editorial in today's Wall Street Journal details the implications of the new extension of the Foreign Intelligence Surveillance Act. The editorial came out before today's floor vote. The House of Representatives passed the bill, and it has been sent to the Senate.

Inside Operation Falcon, the Fugitive Round-up
: According to this article by Wayne Drash at CNN, thousands of individuals are fugitives from justice, often committing multiple crimes - the average is 13 per fugitive - in their attempts to avoid arrest. Operation Falcon is a nation-wide effort, headed by the US Marshals and supported by local, state and federal law enforcement, to track down and arrest violent offenders, sex offenders, and gang members.

Official Recommends Manson Follower Remain Jailed
: According to this AP article at Fox News, Susan Atkins has applied for compassionate release from prison due to terminal illness. Atkins was sentenced to death for her role in the 1969 Manson Family murders, but her sentence was commuted to life in prison. Atkins herself told officials that her victim, Sharon Tate, "asked me to let her baby live. I told her I didn't have mercy for her [or her unborn baby]". Yet Atkins now feels entitled to mercy from the California Board of Parole Hearings.

News Scan

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New Poll Shows European Support for Death Penalty Despite EU Ban: Despite the fact that the European Union requires entrants to ban the death penalty, a recent poll taken in the Czech Republic shows that Czech support for the ultimate punishment is not only high, it's growing, according to Angus Reid's article for the Global Monitor.

Numerous Benefits in Using DNA to Solve Property Crimes
: Gautam Naik details the many benefits of applying DNA analysis in the investigation of property crimes in this Wall Street Journal article. Compared to traditional investigation methods, DNA analysis yielded suspects, arrests, and prosecutions in significantly more cases. While use of DNA in more cases contributes to the already extensive backlog at DNA labs, more arrests and successful prosecution reduces the number of victims as well as the likelihood that these criminals will become violent offenders.

Miyazaki Execution Draws Attention to Japanese Execution Procedures
: The Tanaka and Kinoshita article in the Yomiuri Shimbun analyzes the decision by the Japanese Justice Ministry to execute convicted serial killer Tsutomu Miyazaki on June 18, particularly emphasizing the role international politics can play in choosing execution dates.

Brady Center Cites New Study on Stolen Firearms that nobody gets to read: According to the article in the New York Times by Austin Bogue, the Brady Center to Prevent Gun Violence has conducted a study indicating that thousands of firearms going missing from licensed gun dealers. The Brady Center argues that many of those guns are sold off-the-record to criminals and arms traffickers and recommends tighter regulation. However, they have not published the study on their website, and upon inquiry, a spokesperson said that the study most likely would not be on their website in the future either. It seems unusual that they wouldn't want the public to have access to such important research, if indeed that is the case.

Degrees of Mental Competence

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Today's Supreme Court opinion in Indiana v. Edwards is available on the Court's website. The case deals with the issue of the marginally competent defendant who is mentally able to stand trial but not to represent himself, yet he insists he wants to do just that, invoking the 1975 decision in Faretta v. California, 422 U.S. 806.

Today's decision recognizes that the Faretta right is not absolute. The "consensus" on which it was based was formed by cases that recognized there were limits, and that mental competence is one of those limits. See slip op. 9-10, CJLF Brief 7-14.

Blog Scan

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DOJ Recommends Habeas Proceedings: Lyle Denniston at SCOTUSblog has a post on the Justice Department's recommendation to the D.C. Circuit to put the appeals of 190 detainees on hold, so that the detainees may go forward with their habeas claims in district court. The government's motion can be found here. According to Denniston, today's DOJ filing covers two types of appeals in the D.C. Circuit Court. The first appeals, "in abeyance," are from 190 detainees challenging their status as enemy combatants. The second type of appeal belongs to about 100 detainees who are challenging the denial of earlier habeas actions, as well as "challenging orders not to move detainees, or orders to give detainees’ lawyers notice before a prisoner is sent away from Guantanamo, plus some disputes over classified materials."

The Boumediene Decision and Supreme Court Appointees:
Ed Whalen at Bench Memos has a post criticizing Washington Post columnist Ruth Marcus' article "The Court McCain Wants." Whalen's post criticizes Marcus' article on grounds that "Marcus grossly misestimates how a well-informed public would assess the relative prospects of McCain and Obama appointees to the Court." To illustrate his point Whalen points to the column's discussion of: (1) Roe v. Wade, (2) how the Supreme Court is at a "tipping point on issues that range from the scope of presidential power to the separation of church and state to the future of affirmative action.”, and (3) the fact that Marcus has "ignored" "lots of other issues that Stuart Taylor has identified on which Supreme Court picks by Obama would present a real threat (in Taylor’s words) of further 'displacing democratic choices with made-up constitutional law'." This afternoon, Jonathan Adler at Volokh Conspiracy also weighed in on Whalen's critique.

News Scan

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115,000 Florida Ex-Felons Have Rights Restored: When ex-convicts in Florida wanted their civil rights restored, they used to have to petition the Board of Executive Clemency and undergo an individual hearing to determine whether or not the request should be granted. According to Bill Kaczor's story for the Associated Press, more than 115,000 ex-felons in Florida alone have had their rights restored since a new rule passed 14 months ago to make the process almost automatic in many cases.

Good Old-Fashioned Police Work Nabs "Untouchable" Drug Lord: David B. Caruso for the Associated Press reports that an almost six-year investigation has culminated in a guilty plea from Diego Murillo, the supposedly "untouchable" Colombian drug lord who was active for more than two decades. And it all began when NYPD detective John Barry started asking questions after an informant referenced "Don Berna", Murillo's business monicker. (Hat tip: US News & World Report)

Questionable Defense Appeals Postpone Texas Execution
: Charles Hood was set to be executed on Wednesday night, but a flurry of last-minute procedural appeals by the defense lasted for so long that officials were concerned the lethal injection procedure would not be completed by the midnight deadline. Adam B. Ellick reports for the New York Times that the defense alleges "judicial prejudice" because of a rumored relationship between the trial judge and the prosecutor. Both the guilt phase and the sentencing phase were decided by a jury.

Checking Immigration Status for Certain Felonies Gaining Support
: Jurisdictions all over the country are starting to look at including an immigration status check in the regular booking process for a laundry list of offenses, particularly violent felonies and gang-related crimes. Bill Brubaker of the Washington Post reports that Loudoun County, Virginia is the most recent to add the measure, supported by federal agents through the ICE program. A similar statute is part of California's Safe Neighborhoods Act, included on the November ballot.

CIA Director Addresses Legality Concerns at Gitmo: In a message to his employees, CIA Director Michael Hayden clarified the content of his February testimony to Congress, some of which had been distorted by the media. He specifically illustrated the point that the Department of Justice had deemed waterboarding legal at the time it was used in 2003, and that the extraordinary circumstances of the time period necessitated a swift and effective intelligence program. The Wall Street Journal published the text of Hayden's message.

Habitual Offender Narrowly Avoided "Three Strikes", Suspected in Deputy Slaying: Marco Antonio Topete, the primary suspect in the shooting death of Yolo County, CA Deputy Jose Antonio Diaz last Sunday, has repeatedly come into contact with the criminal justice system, including two violent felony convictions. Difficulties proving his culpability in some cases prevented him from being tried under "Three Strikes", but his record alone validates the need for habitual offender laws. Andy Furillo reports for the Sacramento Bee.

The Criminal Vote

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Virginia's Democratic Governor Tim Kaine is expediting the process to restore the voting rights of convicted felons before the November election, reports Tim Craig of AP.

Query for law-abiding people: The fact that the Democratic Party expects the criminal vote to go overwhelmingly for Obama tells us ...? This is left as an exercise for the reader, as my old physics textbooks said.

"Kent Willis, executive director of the Virginia branch of the ACLU, and other activists say the campaign to register more felons is a civil rights issue, not a political one." Right. And pigs can fly and the moon is made of green cheese.

The state trial judge has withdrawn the execution warrant in the controversial case of Charles Dean Hood. AP story by Michael Graczyk is here. Update: A later story by Graczyk is here. The most interesting part, in my view, is that even though Texas DCJ could have legally gone ahead at 11:30 p.m., they did not because they did not believe they had time to do it right. Good call. A new date will be set for this vermin, and the ramifications for other cases of a possibly botched execution were not worth the risk.


Thirteen years ago, Japanese exchange student Ken Yamamoto was burned to death in his Oklahoma City apartment. Terry Lyn Short had thrown a firebomb into the apartment downstairs, which was occupied by his former girlfriend and others. "Yamamoto was rushed to a hospital with third-degree burns over almost his entire body. He survived for about 30 hours, long enough for his mother to fly from Japan and be by his side before he died," reports the AP.

Overdue justice for this crime was finally carried out shortly after 6:00 p.m., Central Time, according to another AP story.

Lab Techs and Confrontation

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Via SCOTUSblog, here is the brief for the petitioner in Melendez-Diaz v. Massachusetts, No. 07-591, on the Confrontation Clause and lab tech reports. My impression at this point is that the state has a seriously uphill battle here. We should be looking at other ways to make lab results admissible while still maintaining reasonable efficiency. Prerecorded examinations with cross-examination are one possibility.

Blog Scan

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Boumediene Backlash: Over at Bench Memos, Ed Whalen offers a critique of Washington Post writer, George F. Will's attack of McCain's comment that Boumediene was "one of the worst decisions in the history of this country.” Whalen's post discusses the shortcomings of Will's article, while wondering whether Will himself has read, and understood, the Boumediene decision.

New Way to Look at "Going Postal"
: Over at Volokh Conspiracy guest blogger Anuj Desai has a post submitting that the origins of certain constitutional doctrines can be traced to eighteenth-century postal policy. In particular, Desai argues the doctrines of 1) First Amendment restrictions on government subsidies for speech ); (2) the First Amendment “right to receive” ideas; and (3) the Fourth Amendment principle of communications privacy, may all be traced to early congressional policy decisions, that embedded as attributes of the postal institution, and then were applied to other areas of constitutional law. In today's post Desai connects the early policy decision to subsidize postal delivery of newspapers with the "unconstitutional conditions" doctrine.

Two Executions Today:
Hattip to Sentencing Law and Policy for its report on the executions scheduled in Oklahoma and Texas today. In his post, Berman reports that although this will be the first execution in Oklahoma in nearly a year, the Texas execution is getting more press because of an alleged affair between the prosecutor an the judge.

Misconduct Probe of Alex Kozinski: The L.A. Times reported today that the U.S. Third Circuit had appointed a panel of federal judges to oversee a misconduct probe of Ninth Circuit Judge Alex Kozinski. U.S. Chief Justice John G. Roberts Jr. transferred the matter to the 3rd Circuit Court in Philadelphia, and the chief judge there appointed a special committee to investigate. The probe comes a week after the L.A. Times reported Kozinski was posting sexually explicit material on a personal, but publicly accessible website. As a result of the story, Judge Kozinski declared a mistrial in the obscenity case over which he was presiding. Ironically, the obscenity trial involved the prosecution of Hollywood filmmaker Ira Isaacs, who had been accused, under federal obscenity laws, of distributing hard-core pornographic films.

News Scan

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Mexico Adopts Reform Modeled on US System: Long criticized for a harsh judicial system that was prone to human rights abuses, Mexico has embraced reforms based on the US judicial system, includig public trials and a presumption of innocence until proven guilty. Even Human Rights Watch has called these "an historic step forward" in a letter to President Calderon. The Associated Press article in the San Francisco Chronicle has the details.

Even $2.5M Isn't Enough to Cure Some Criminals
: According to this LA Times article by H.G. Reza, police officials and family members were hopeful that 23-year-old Jose Muñoz would turn away from his criminal tendencies after receiving a $2.5 million settlement for being hit by a police car. It was, after all, the proverbial "second chance", an opportunity not many could hope for. But just 4 months after the settlement, Muñoz was back in custody, belying the common argument that a majority of criminal activity stems from a lack of economic opportunity.

New Study Says DNA Results in More Arrests: Kevin Johnson reported for USA Today on the study released by the National Institute of Justice. Most people are familiar with DNA's use in rapes and murders, but the results of the study indicate that DNA analysis also results in twice the number of arrests in property crimes as similar cases using only traditional investigative methods, like fingerprinting and witness statements.

Japan Executes Child Murderer, Cannibal: Nearly 20 years after Tsutomu Miyazaki gruesomely murdered four girls, all age 7 or younger, cannibalized two of his victims, and tormented their families, justice has finally been served. Mari Yamaguchi for the Associated Press reports that Miyazaki was hanged along with two other convicted murderers.

Judicial Restraint? Not Likely... Professor John Yoo's scathing indictment of the Boumediene ruling analyzes the implications of the decision and touches on several of the issues raised by CJLF in their amicus brief to the Supreme Court.

Worth 1000 Words

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Judge James Burge Last week we noted the coverage on the decision of Judge James Burge of Ohio on that state's use of the three-drug protocol for lethal injection. However, we somehow overlooked this AP photograph of Judge Burge by Tony Dejak. (Hat tip: NRO Bench Memos) There is nothing quite like a Che Guevara poster in your office to tell the world you are a crackpot and proud of it.

Hattip to BLT for its link to Tresa Baldas article in The National Law Journal, "Courts Putting Hot-Button Words on Ice." The article reports on the success of the defense bar in convincing trial judges to ban prosecutors and witness from using certain words, like "victim" and "rape" at trial. According to the defense attorneys quoted in the article, when used at trial, words like "victim" and "rape", or even "crime scene" and "public defender" interfere with the criminal defendant's presumption of innocence.

What?! How?! Let us forget for one moment, the fact that the defendant is already present, at trial, with an attorney, and has been accused by the state of some sort of "bad act" (I can't call it a "crime", that's not allowed). Let's also forget for a second that twelve ordinary people have given up their daily routines and lives for the past week, so that during the empaneling process they could be asked questions concerning their opinions on "bad acts", questions about their personal prejudices, and maybe even questions on the death penalty (if we can even call it that... the words "death" and "penalty" might not even be allowed), and let us pretend for one moment that the a single use of the word "rape" - a legally defined act - can sufficiently prevent twelve rational people from presuming that a defendant is innocent until the prosecution proves its case. In a criminal justice system that has increasingly taken the rights afforded a criminal defendant out of context, this takes the defendant's constitutional right to be presumed innocent until proven guilty one step too far.

Today's Orders

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Two habeas cases of note were denied certiorari today, and two were conspicuously absent from the orders list.

In Quarterman v. Chambers, No. 07-1329, the court denied review of a Fifth Circuit decision overturning the sentence Ronald Chambers, who has been on death row for 32 years. The AP story is here. In this case, the State of Texas committed the outrageous constitutional violation of believing that the Supreme Court meant what it said in Jurek v. Texas, 428 U.S. 262 (1976).

The Court also denied certiorari in the child-rape case of Bockting v. Bayer, No. 07-9512. Last year, the Court held in Whorton v. Bockting that Crawford v. Washington, 541 U.S. 36 (2004), rewriting the rules on admission of hearsay, did not apply retroactively to overturn cases already final. On remand, applying the prior standard, the Ninth Circuit denied relief 2-1.

Update Tuesday morning: The online docket shows that the Cone and Mirzayance cases, described below, have both been relisted for this Thursday's conference.

New Zealand Sentencing

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"Yesterday, the Sensible Sentencing Trust joined families of victims outside Auckland's Mt Eden Prison and staged a demonstration for tougher parole laws," reports Greer McDonald for the Dominion Post. (Hat tip: SL&P.) On the same site, another story reports that dueling experts from Britain have been giving the Kiwis contrary advice. Baroness Vivian Stern and Professor Andrew Coyle "say they are astonished at the high rate of imprisonment in New Zealand and that alternatives should be considered." "But David Fraser, a British law and order expert, says the Government needs to change its anti-prison ideology if it wants to avoid criminals running free and committing more crimes." He says, "British sentencing policies since the 1960s have failed to protect the public and are a monumental disaster."

News Scan

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Ninth Circuit Strikes Again: As we posted last Friday, the Ninth Circuit has overturned murderer Fernando Belmonte's death sentence for a third time. Bob Egelko reports for the San Francisco Chronicle on this ruling.

Creative Use of Internet Assists Investigations
: Private investigators and police officials alike are making the Internet phenomenon YouTube work for their investigations by uploading videos to circulate information about unsolved crimes, hoping that witnesses will come forward with information and provide new leads. Dan Morse has the story for the Washington Post.

Taliban Prison Break Validates Concerns about Boumediene Decision: This Op-Ed for the Wall Street Journal highlights some of the primary concerns about the Boumediene decision, namely that military prisoners cannot be kept in Iraq or Afghanistan where they are captured. But Boumediene severely limits the military's ability to incarcerate suspected terrorists, endangering the lives of American troops.

Dahlia Lithwick has this op-ed in the WashPost puzzling over the nonideological lineups this term:

Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees.

Excuse me, Ms. Lithwick, but nobody here at C&C is "dumbfounded" or "baffled" that the simplistic liberal-conservative model has broken down. (And personally, I never did care for the Bee Gees.)

Habeas Corpus: GITMO Style

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The Commonwealth Club of San Francisco has a program this Thursday evening with the above title. The speakers are CJLF's Legal Director Kent Scheidegger and Center for Constitutional Rights Executive Director Vincent Warren. Bob Egelko of the San Francisco Chronicle is the moderator.

Cert. Grants

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The Supreme Court granted certiorari in three civil cases today, SCOTUSblog reports. Two are law-enforcement related. One is Ashcroft v. Iqbal, No. 07-1015 on post-9/11 suits against high DoJ officials.

The other is Haywood v. Drown on state court jurisdiction in a prisoner § 1983 suit despite a state statute to the contrary. The New York Court of Appeals opinion upholding the statute is here. "Thus, while state courts may hear § 1983 claims, and while the Court has always assumed that state courts must afford an hospitable forum to the vindication of federal rights, the Court has not explicitly held that state courts must hear § 1983 claims." 4 Rotunda and Nowak, Treatise on Constitutional Law, § 19.15(c), p. 518 (4th ed. 2008).

Ignoring History in the Gitmo Case

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My "initial thoughts" post on the Boumediene decision noted that the Court gave short shrift to the historical point regarding habeas and military prisoners with no prior connection to the country. I will expand on that point a bit here.

Belmontes on Remand

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The U.S. Court of Appeals for the Ninth Circuit has demonstrated once again why it simply cannot be trusted to decide capital cases fairly.

The Supreme Court reversed the Ninth Circuit in the case of Ayers v. Belmontes in 2006 and remanded the case. Today, the Ninth Circuit overturned the death sentence again, finding that trial counsel had provided ineffective assistance in the penalty phase. The truth is that trial counsel had pulled off a major coup for the defendant in the penalty phase.

News Scan

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Arms Trafficker Extradited to NY for Trial: Tom Hays reports for the Associated Press that Spain gave final approval for the extradition of a wealthy arms trafficker to face trial on charges related to funneling arms to revolutionary Colombian forces in order to kill American troops. (Hat tip: US News and World Report)

Former "Manson Family" Member Requests Compassionate Release: Susan Atkins has served 37 years in prison for her role in the brutal slayings of Sharon Tate and six others over the course of two nights in 1969 and has been denied parole 11 times. Now she has requested compassionate release, citing an undisclosed terminal illness. Andrew Blankstein and Hector Becerra have the story for the LA Times.

Mukasey Says Boumediene Ruling Won't Stop Trials: According to Mark Sherman of the Associated Pres, Attorney General Mukasey says that yesterday's Supreme Court decision to grant habeas corpus to Guantanamo detainees will not have any impact on the trials that are already being conducted. Officials say that the ruling will predominantly affect detainees being held indefinitely, while detainees who have already been charged with crimes are in "a different category".

From the Daily Trust of Abuja, Nigeria, comes this excellent piece by Adamu Adamu with the above title. Adamu addresses many of the same topics that are debated in the United States: deterrence, retribution, and especially the "we have to abolish because Europe has" argument. Adamu's last paragraph is precious:

If some members of the House of Representatives are still reeling from a colonial hangover, the right thing for them to do is to take a dose of cultural Alka-Seltzer and wake up, and stop seeking to impose on this society a law that is so patently insupportable. No, sirs, this will never wash: confirmed willful killers in this land must just be cut down, irrespective of what they do to them in Europe.

Blog Scan

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Habeas Rights After Boumediene and Al Odah: As expected, the blogosphere was saturated with posts and comments on today's Boumediene and Al Odah decision. Lyle Denniston has a post on SCOTUSblog analyzing detainee rights now that they have been granted the right to habeas corpus. Denniston notes that the Supreme Court's decision does not foreclose Congress', or the President's, authority to create another method of review for the detainees. The decision did not say there could never be substitutes for habeas. The decision also left alone the Combatant Status Review Tribunals (CSRTs). Detainees at Guantanamo Bay will not be able to file with the federal court until after they have been determined to be "enemy combatants" by the CSRTs. Because detainees must go through the CSRTs first, Denniston wonders what exactly the majority of the Court meant when it said detainees were entitled to a "prompt" habeas hearing. Denniston then lists six rights he believes the Supreme Court requires a detainee to be afforded when he seeks review under habeas corpus.

Reaction to Boumediene: For our readers interested in the reaction to today's decision Tony Mauro at the BLT has a post on the "dramatic" reaction to Justice Kennedy's opinion, as it was announced by the Court this morning. The Volokh Conspiracy also has several posts from Orin Kerr, Jonathan Adler and Ilya Somin giving their thoughts on today's decision.

The Boumediene Dissents:
Much was made of the majority opinion, so Ed Whalen at Bench Memos helpfully offers some excerpts from Chief Justice Roberts' and Justice Scalia's dissents.

Irizarry and Sentencing: And if you've had enough of Boumediene for today, Douglas Berman at Sentencing Law and Policy has two posts on his thoughts on today's Irizarry decision. Berman states he is "not sure upon first read whether the ruling is very important or just a review of matters established by modern Booker progeny like Gall and Kimbrough."

News Scan

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Habeas Corpus Extends to Military Prisoners?: Despite CJLF's research that the Great Writ did not extend to military prisoners under common law, the Supreme Court ruled today that Guantanamo detainees have the right to challenge their detention in civilian court. This Associated Press article in the LA Times has details on counsels' arguments and the final decision released by the Court.

Texas Killer Executed, First Since National Pause: Michael Graczyk for the Associated Press writes that Texas has executed convicted killer Karl Chamberlain, 17 years after he murdered a 30-year-old woman who lived in his apartment building. The victim's family wondered why it had taken so long for justice to be served.

Independent Report on Juvenile Escape May Prevent Future Incidents: Following the February escape of a 17-year-old charged as an adult for murder, an independent audit has detailed the factors that allowed for the escape from San Mateo County's juvenile facility. John Coté of the San Francisco Chronicle reports that officials hope the investigation will prevent future incidents.

The good news is that all the people who have been squawking about the "ultraconservative" Supreme Court look pretty foolish this morning.

A quick scan of the Boumediene opinion indicates that most of it is refuting the government's theory that habeas doesn't extend to aliens at Gitmo because it is not in the United States. I expected from day one that was a loser. The opinion does not seem to deal much with the argument that the writ known to the Founders and incorporated in the Constitution was simply not available to military prisoners with no prior connection to the country, regardless of where they were held. See CJLF Brief, here. Given that this argument was not only in our brief but also raised expressly by the Solicitor General at oral argument, this omission is curious.

Blog Scan

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Ohio Trial Court's Lethal Injection Decision: Doug Berman at Sentencing Law and Policy posted today on the Catch-22 of lethal injection reform in the United States. In his post, Berman discusses a press release from a "team of medical, ethical, and legal scholars" that claims as "jurist demand lethal injection protocol changes" state officials are "employing the tools and methods of biomedical inquiry without its ethical safeguards." The press release appears to be yet another attempt by "medical, ethical, and legal scholars" to delay implementation of death penalty sentences. Berman's post also links to an AP article discussing the Ohio decision, also noted in the News Scan below, and gives a link to the opinion.

Judge Kozinski's Personal Website: Howard Bashman at How Appealing has a post inviting bloggers to comment on whether The Los Angeles Times be praised or condemned for reporting on the pornographic images posted on Ninth Circuit Chief Judge Alex Kozinski's personal web site. Bashman says he will post the most thoughtful comments. Bashman also poses some interesting questions in his post, such as whether this story is newsworthy only because Kozinksi is presiding over an obscenity trial? and "[I]f Judge Kozinski decides to recuse from presiding over the criminal obscenity prosecution in which a jury has already been selected and perhaps seated, can a new judge be brought in to take over the trial from that point forward, or will it be necessary to declare a mistrial and start over?"

News Scan

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Ohio Judge Orders New Execution Method: Adam Liptak and Adam B. Ellick report for the New York Times that Judge Burge of Ohio has ordered a change in Ohio's execution protocol. Despite the Supreme Court's decision in Baze v. Rees, Judge Burge ruled that Ohio could no longer use the three-injection method, citing state law that the protocol must be sufficient "to quickly and painlessly cause death".

Judge Recommends Release of Convicted Murderer, Cites Defense Attorney's Mistakes: An Associated Press article by Janet McConnaughey in the San Francisco Chronicle provides details on the Magistrate Judge's reasoning for recommending that a former Black Panther convicted of the 1972 murder of a prison guard should have his sentence overturned and should be released from prison. The defense attorney's failure to object to certain testimony and to hire expert witnesses were among the complaints.

Inmate Guilty of Murder, Not Criminally Responsible: Ruben Castaneda of the Washington Post details Monday's ruling by Judge Plitt finding Maryland inmate Kevin Johns Jr. guilty, but not criminally responsible, in the 2005 murder of Philip Parker Jr. Johns strangled Parker while the two were on a prison transport bus. Because of prison guards' failure to restrain Johns properly and his documented mental illness, he will not be held criminally responsible.

The Criticism Intensifies... As the Bush Administration attempts to move forward with prosecutions of Guantanamo detainees in designated military proceedings, the critics are becoming more and more vocal. Here's what some of them are saying.
Carol Williams for the LA Times
William Glaberson for the New York TImes
Michael Melia for the Associated Press (Hat Tip: Fox News)
While the majority of the articles focus on criticisms of the proceedings. Matt Apuzzo of the Associated Press reports Attorney General Mukasey's support of the special military proceedings.

The O'Connor Precedents


As noted in yesterday’s Blog Scan, there is much discussion about which of the cases where Justice O’Connor cast the deciding vote might be overruled following her replacement by a more “conservative” justice. I put “conservative” in quotes because such labels are an oversimplification, as described here.

The following list is the criminal and related cases from Marty Lederman’s most recent post, with some comments as to which ones really are candidates for overruling by justices who are “conservative” not only in their ideological leanings but also in their respect for precedent.

Lederman describes his list as “cases decided in the decade between 1995 and 2005 in which Justice O'Connor's was the decisive vote or opinion, and as to which a more conservative Justice such as Justice Alito might well vote to overrule the governing precedent (assuming, in each case, that Chief Justice Roberts would vote in accord with Chief Justice Rehnquist).” The description following each case is Lederman’s, and the paragraph that follows is my comment.

Blog Scan

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O'Connor's Supreme Court Precedents: Marty Lederman has a post at Balkinization discussing the "five high-profile constitutional areas" where O'Connor's precedents are vulnerable to being overruled by the current U.S. Supreme Court. The five areas include abortion, "race conscious assignments and affirmative action", campaign finance regulation, the establishment clause, and Congress's power to remedy discrimination under the Reformation Amendments. Lederman points out that in the areas of abortion, race conscious assignments, and campaign finance regulation, the Court has already taken "big bites" out of the rules established by O'Connor's opinions. The post also gives a helpful list of cases between 1995 and 2005, where O'Connor's vote was the decisive vote, or where she authored the opinion.

Mootness, and the Relevance of Munsingwear: Pattie Millet at SCOTUSblog has a post giving practioner's points on mootness. The post discusses the 58 year-old precedent of United States v. Munsingwear, Inc., 340 U.S. 36 (1950), that established, as paraphrased by Millet, "where intervening mootness prevents appellate review of the underlying decision, the decision below ordinarily should be vacated." The most helpful aspects of the post are Millet's pointers on the caveats to the Munsingwear rule. These caveats include: (1) the party seeking Supreme Court review cannot be responsible for the mootness; and (2) because vacatur is a discretionary exercise, a motion for vacatur must persuade the Supreme Court "not only that equitable relief is appropriate, but also that the Supreme Court’s time and intervention are warranted."

Texas Executions:
Grits for Breakfast has a post on a Texas Court of Criminal Appeals decision released yesterday that approved Texas lethal injection procedures. The first few paragraphs of the post address the dissenting opinions of Judge Price and Judge Johnson, but the end of the post discusses the majority opinion by Judge Hervey. The majority of the court "characterized the lethal injection procedures analyzed in Baze as 'materially indistinguishable from Texas' lethal-injection protocol.'"

James Q. Wilson has been guest blogging at the Volokh Conspiracy on crime and punishment. His most recent post, as of this writing, with links to the earlier ones is here. Our good friend and advisor appears to be a bit surprised that the comments section of VC is pretty much a food fight.

News Scan

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Texas to Resume Executions Following Nationwide Pause: The Associated Press reports that, on Monday, the highest court in Texas turned aside an appeal to challenge the constitutionality of Texas's lethal injection procedures, allowing plans to move forward to execute Karl Chamberlain on Wednesday. Chamberlain was convicted of the 1991 rape-murder of a 30-year-old Dallas woman.

Virginia Governor Halts Execution of Triple Murderer, Cites Mental State: David Soetz for ABC News reports that Governor Tim Kaine of Virginia has announced that he will commute the death sentence of Percy Levar Walton, a convicted triple murderer, because he does not believe that the inmate meets the mental competency requirements for execution.

Important Victory for Children, Children's Advocates: Peter Whoriskey of the Washington Post reports that large Internet providers Sprint, Time Warner Cable, and Verizon will block connections to Websites or news groups that offer child pornography. The decision marks an important step in protecting children from exploitation by attacking the supply of child pornography instead of merely individual users.

u r gil T: From the Northern (England) Echo comes this story by Owen Amos on the application of forensic linguistics to text messaging. David Hodgson sent text messages from the phone of 19-year-old Jenny Nicholl, whom he had murdered days earlier, to try to convince her friends and family she was still alive. (Hat tip: Psychology and Crime News)

Who Is In Our State Prisons?


From the office of California State Senator George Runner comes this report, refuting some of the myths about the state's prison population. Everybody "knows" that our prison population per capita has exploded in the last ten years. No, actually, it has declined. Everybody "knows" that California's "harsh" Three Strikes Law is responsible for explosive prison growth. Actually, the prison population five years after passage of Three Strikes was only two-thirds of what the doomsayers predicted it would be, and it was even lower than the population projections without Three Strikes.

News Scan

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Crime Down in 2007: Preliminary figures reported by the FBI indicate that crime was down nationally in 2007. An Associated Press story by Michael J. Sniffen reports that violent crime declined by 1.4% and property crimes dropped by 2.3% last year. The FBI report, available here, showed that homicides in large cities plunged by 9.8%.

ACLU Expansion: Funded by George Soros, et al., the ACLU is planning a major expansion in "relatively conservative states," reports David Crary for AP. Among the "social justice" issues to be boosted by this expansion is ensuring that justice is not carried out for the worst murderers.

Root and Branch Causes?: In Millville, NJ, Alexander McCartney, "a forester with the state Department of Enviromental Protection, said studies have shown that an increase in a city's canopy can provide heat relief, cleaner air, higher property values and can even help reduce crime," reports Edward Van Embden of the Press of Atlantic City.

Deinstitutionalization Debacle: E. Fuller Torrey has this op-ed in the WSJ. "The latest [study], carried out by Jason Matejkowski and colleagues at the University of Pennsylvania, found that individuals with serious mental illnesses are responsible for 10% of all homicides in Indiana."

Cold Case DNA Hit Snags Another Sex Offender
: Larry Welborn reported in the Orange County Register that convicted sex offender Lynn Dean Johnson, who had been granted parole on his earlier conviction, had been re-arrested just two weeks before his release. Johnson was linked to the unsolved 1985 rape-murder of 19-year-old Bridget Lamon through a cold case DNA hit. The prosecutor in the case told the jury that this new evidence is further proof of Johnson's "'propensity to commit violent sex crimes' against young girls". If convicted on the new charges, Johnson could face the death penalty.

SCOTUSblog reports that the Supreme Court has issued four opinions today, all in civil cases. The Court also granted certiorari in two civil cases. Next opinion day is Thursday.

Two habeas cases were on SCOTUSblog's "petitions to watch" list for this conference. Neither is on the orders list, meaning they will be considered again at another conference. The two are (1) McNeil v. Ferreira, No. 07-1108 on whether resentencing restarts the habeas statute of limitations clock, and (2) the continuing saga of Cone v. Bell, No. 07-1114, this time on procedural default. The Court's 2005 opinion in the same case is here.

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Increasing Prison Population: Doug Berman at Sentencing Law and Policy has a post clarifying an ABC News Report that the "U.S. Prison Population Hits All-Time High". Berman clarifies the ABC story by linking to the the Justice Department's official press release, which actually reports on slower growth in the nation's prison and jail populations. The report states that according the Bureau of Justice Statistics, "[t]he growth in the number of prisoners under state or federal jurisdiction slowed during the first six months of 2007[.]" "The number of prisoners rose 1.6 percent, which was lower than the 2.0 percent growth during the same period in 2006."

Q&A With Justice Scalia: Above The Law has a post on Justice Scalia's Q&A session at a Federalist Society event promoting his recent book "Making Your Case: The Art of Persuading Judges". During the Q&A session Scalia answered questions regarding his thoughts on the Court confirmation process, what drew him to administrative law, and urged law students to take classes in comparative law. The post also contains some interesting commentary on why Justice Scalia may have turned down an invitation to sit on the Seventh Circuit. Earlier posts have addressed Scalia's other public appearances for his new book.

Federalism Discussed at the AALS Mid-Year Meeting: Jonathan Adler at Volokh Conspiracy has a post on his participation at the AALS Mid-Year meeting. Adler reports that he led a session on “Federalism and the Roberts Court.” According to Adler, the session discussed the different approaches of the Roberts Court and the Rehnquist Court towards "judicial safeguards of federalism". Adler reports that while the Rehnquist Court sought to advance state sovereignty and enumerated powers, the Roberts Court has shifted its focus toward the issues preemption and the dormant commerce clause. Adler also reports on two other papers addressing federalism at the conference: “Federalism, the Rehnquist Court, and the Modern Republican Party,” by Bradley Joondeph (Santa Clara), and “The Populist Safeguards of Federalism,” by Robert Mikos (UCDavis).

SCOTUS Schedule Shift

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In an effort to decide more cases early in the term and fewer in June, the Supreme Court will hear three cases a day, rather than two, during the October and November argument sessions. Chief Justice Roberts acknowledged that this will cause additional work for the Solicitor General's Office, reports Daniel Lovering for AP. "Also saddled with extra work, Roberts noted, will be journalists who cover the court's arguments. 'After careful reflection, I decided I didn't care,' he joked."

But seriously, folks, I expect that spreading the decisions out will make the press corps' job easier. They will have something to write about on more days.

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Did the State Expressly Waive Exhaustion Defense to a Brady Claim?: Jonathan Adler at Volokh Conspiracy has this post on today's Sixth Circuit decision in D’Ambrosio v. Bagley. In the opinion, a divided three judge panel split over when in a habeas proceeding the state may "expressly waive" its defense that the petitioner had failed to exhaust his Brady claims in state court. In D'Ambrosio, the divided panel held that the government’s conspicuous failure to raise such a claim could constitute an “express” waiver, even though the waiver was never made explicit. D'Ambrosio had amended his habeas corpus petition to include a Brady claim after he learned the state was withholding mitigating evidence. When D'Ambrosio made the motion, the state's attorney "stated that she took no position on the motion, but requested the opportunity to file a response if the district court granted the motion to amend." When the district court granted both motions it noted: "its understanding was that the warden would not argue that the Brady claim was unexhausted . . . ." The Sixth Circuit's decision upheld the district court’s grant of death-row inmate Joe D’Ambrosio’s habeas petition.

Anticipating Boumediene: Marty Lederman at Balkanization posted on how the U.S. Supreme Court might decide Boumediene v. Bush, and how Congress might respond to the ruling. In his post, Lederman comments he believes Kennedy is authoring the opinion. He also notes that after the D.C. Circuit Court's ruling in Bismullah, he is "somewhat hopeful that Justice Kennedy will conclude that the MCA/DTA process is not a constitutionally adequate substitute for habeas. In other words, Bismullah was (perhaps) the best thing that could have happened to the Boumediene petitioners, because it was a concrete demonstration of the constitutional inadequacy of the MCA/DTA process." However, Lederman is skeptical that the Court will decide the extent the Constitution protects detainees who are detained elsewhere around the world, or "whether Congress has given the President the authority to detain the civilian Bosnian petitioners in Boumediene".

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Commentary on The Roberts Court: Jonathan Adler has this post reflecting on a plenary panel discussion he attended at the AALS Mid-Year Conference. The panel focused on “The Changing Roberts Court”, and was Moderated by Lori Ringhand (UGeorgia). The panel featured Eric Segall (Georgia State), Erwin Chemerinsky (Duke/UCIrvine), and Lee Epstein (Northwestern). The post analyzes each of the panelist's views on the Roberts Court and the extent to which it can be deemed a "conservative court."

The Ninth Circuit Reasons Computers Are Like Briefcases for Fourth Amendment Purposes: Steven Kalar posted on a Ninth Circuit panel decision in United States v. Giberson on Sunday. The facts, according to Kalar, establish that Giberson was suspected of making fake ID's, and a search warrant authorized seizure of the relevant documents and records - but did not mention a computer. When Giberson's computer was seized, investigators were given a warrant to search its hard drive. This led to the discovery of child pornography. According to Kalar, the panel's decision held that because many records relating to the fake ID's were found near the computer, "It was therefore reasonable for officers to believe that the items they were authorized to seized would be found in the computer, and they acted within the scope of the warrant when they seized the computer.” Kalar finds the Ninth Circuit's willingness to extend Fourth Amendment “container” theory to computers particularly disturbing. He urges the Ninth Circuit to grant en banc review.

Creative Juvenile Punishment: Dan Slater at Wall Street Journal's LawBlog has a post on Vermont sentence for 28 teenagers who broke in Robert Frost's Vermont home, and proceeded to drink beer and vandalize the home. According to Slater, each teen was sentenced to two sessions of study with the Frost biographer, poet, and professor at Middlebury College, Jay Parini. The prosecutor in the case John Quinn, apparently thought up the punishment. Quinn told The New Yorker that in recommending the sentence: "I guess I was thinking that if these teens had a better understanding of who Robert Frost was and his contribution to our society, that they would be more respectful of other people’s property in the future.” One hopes the teens understand the value of the education they are receiving through this "punishment".

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Virginia Spam: The Virginia Supreme Court reheard the First Amendment issues in the case of prolific spammer Jeremy Jaynes, reports Larry O'Dell for AP. Prior opinion here; rehearing order here.

Guantanamo Is a Model Prison (Really): Admiral Mark Buzby refutes myths about Gitmo in this WSJ op-ed.

Rezko: "A prominent political fundraiser for Sen. Barack Obama and Illinois Gov. Rod Blagojevich has been found guilty of fraud and money laundering," reports Mike Robinson for AP.

Civics online: Retired US Supreme Court Justice "Sandra Day O'Connor is developing a free interactive Web program for middle schoolers on the U.S. court system," reports Associated Press.

Military Commissions to try terrorists were defended by AG Mukasey at a federal judges conference. Matt Apuzzo has this story for AP.

Research Notes

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Fingerprint Breakthrough? "Forensic scientists at the University of Leicester, working with Northamptonshire Police, have announced a major breakthrough in crime detection which could lead to hundreds of cold cases being reopened," reports Science Daily. "Dr John Bond, Honorary Fellow at the University of Leicester and Scientific Support Manager at Northamptonshire Police said: 'For the first time we can get prints from people who handled a cartridge before it was fired.'" Could be huge, if it pans out.

CSI: Cost Effective? Australian researchers plan to go beyond the anecdotal and look quantitatively into how effective forensic science is. How many crimes does it solve, and at what cost? Liz Porter reports for The Age.

Crime and Prison: Doug Berman at SL&P and DoJ's Weekly Accessions List both point us to Spelman, Specifying the Relationship Between Crime and Prisons, Journal of Quantitative Criminology, 24(2), June 2008, pp. 149-178. However, the two sources give us different abstracts for the same article. The one at SL&P is extremely math- and jargon-heavy. The one at the Weekly Accessions List is considerably less so. It is copied after the jump.

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New Solicitor General: The Wall Street Journal's Law Blog posted today that President Bush intends to nominate Gregory Garre to replace Paul Clement as Solicitor General. Garre currently serves as Principal Deputy Solicitor General in the Office of the Solicitor General at the Department of Justice.

The Influence of Law Blogs: Apparently Ed Whalen, Eugene Volokh, Howard Basham, and Dahlia Lithwick will be performing double duty this week. In addition to blogging on happenings in the legal world, Whalen, Volokh, Basham and Lithwick have all been tapped to appear at the D.C. Circuit's annual judicial conference for a panel on “The Impact of Legal Blogs”. Ed Whalen has a quick post on his involvement as well as a link to the Conference program.

Understanding Denial of Certiorari: Eugene Volokh at The Volokh Conspiracy posted today on the general misunderstanding of what it means when the U.S. Supreme Court denies certiorari. A headline run in the L.A. Times read: "Fantasy baseball leagues can use real players' names, Supreme Court agrees". Volokh correctly points out that denial of certiorari "is expressly not a statement that the Court agrees with the decision below." This means that "the decision doesn't set any precedent (as Savage correctly said in his last paragraph)." Posts like Volokh's are good reminders for the public. Without them, the public is led to believe the Court actually decided the case on its merits. Volokh also "stress[es] that headlines are written by headline writers, not by reporters."

Understatement of the day award goes to Justice Samuel Alito: "There are no generally accepted accounting principles for determining the net income of illegal enterprises...." United States v. Santos, No. 06-1005 (today) (dissent). The splintered opinion involves more interesting issues than I had thought, and we now have an idea why it took a rare nine months from oral argument to opinion. We have the meaning of an ambiguous word in a statute, the rule of lenity, interpretation of splintered opinions, and the practical realities of organized crime prosecution.

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