September 2008 Archives

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Supreme Court Review of Military Convictions: Wall Street Journal's Law Blog has a post from Dan Slater concerning legislation that could allow for Supreme Court review of certain petitions by military service members convicted of crimes. The current law, the Uniform Code of Military Justice, allows appeal of a military conviction to the Supreme Court in limited conditions, "such as when the U.S. Court of Appeals for the Armed Forces has conducted a mandatory review" or "granted discretionary review of a petition." But if the court of appeals denies review, the Supreme Court will only hear the case on collateral review (e.g. a writ of habeas corpus). Slater reports the "Equal Justice for Our Military Act" would change that. If passed, the Act will allow service members to file a petition with the Supreme Court when the court of appeal denies review or a writ of extraordinary relief. The House of Representatives approved the Act by voice vote over the weekend.

Ohio's Supreme Court: In a Volokh Conspiracy post referencing a white paper he co-authored with his wife, Jonathan Adler talks about Ohio's "More Modest" Supreme Court and its recent move toward exercising judicial restraint. The white paper, A More Modest Court: The Ohio Supreme Court's New Found Judicial Restraint, was written by Adler and his wife, Christina, for the Federalist Society. According to Adler, the paper discusses the recent deference the court has given to the legislature, especially in the areas of education and tort reform. Hopefully this trend will be followed by other courts and they will be "less likely to impose... policy preferences on the state."

Alito Leaves the Cert Pool: Law.com has a post from Legal Times writer Tony Mauro about Alito's recent decision to step outside the Supreme Court's cert pool. The "cert pool" refers to the Supreme Court's 30 year practice of allowing justices' law clerks to divide up incoming petitions, with one law clerk summarizing each petition for the benefit of all the justices in the pool. Until recently, Justice Stevens was the only Justice to remain outside the pool, having his own law clerks examine each petition independently. On Friday, Adam Liptak reported for the New York Times that Justice Alito had made the move as well. According to Jay Jorgensen, one of Justice Alito's former Third Circuit clerks, Justice Alito decided to leave the cert pool so he could be more "helpful to the other justices in identifying, among the thousands of petitions that come in, those that are worthy of the Court's attention."

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New Hampshire Poll: Support For Death Penalty In Cop Killing: An article from the Boston News reports that a new poll shows more than half of New Hampshire residents believe the death penalty is an appropriate punishment for someone who murders a police officer. The poll comes as the state prosecutes two capital murder trials, including one that involves a police officer's death. Death penalty experts say polls taken during the course of high profile prosecutions tend to show greater support for the death penalty than those taken at other times. But the numbers represent a shift since the last time public opinion on the death penalty was measured.

Conyers Calls For Death Penalty For Child Murderers: Scott Ryan reports from WWJ Newsradio that Detroit city council president Monica Conyers is calling for Michigan to reinstate the death penalty, following the weekend murder of a four-month old baby. Conyers told WWJ that she wants to see justice and feels that child murderers in Michigan should be put to death. Sunday's shooting death occurred at the Premier Apartments on Lahser. The baby was shot in the head after gunmen sprayed bullets into the picture window of his mother's apartment.

Calif. Laws Crack Down On Sex-Offender Teachers: AP writer, Juliet Williams, reports that Gov. Arnold Schwarzenegger has signed two bills making it tougher for teachers who commit sex crimes to remain in California's public schools. The new laws close loopholes in California's teacher licensing system that had allowed some teachers accused or even convicted of serious crimes to remain in the classroom. It will allow the state to revoke licenses from teachers who plead no contest to certain sex crimes or drug offenses without waiting for a discretionary review that can sometimes take two or three years. The results of investigations into teacher misconduct will be available for five years instead of being sealed after one year, as they currently are.

Testimony Ends In 25-year-old KFC Murders In Texas: According to a story by AP writer, Michael Graczyk, a witness testified Monday about the night of September of 1983 when five people were abducted from a Kentucky Fried Chicken restaurant in a van driven by a white man and carrying three people wearing KFC uniforms. The five victims - four KFC employees and a friend - were found shot to death along a rural road about 15 miles from the restaurant the next day. James Rowe testified as defense attorneys began their case in the capital murder trial of Darnell Hartsfield. It was long one of Texas' oldest unresolved mass murder cases. Hartsfield faces life in prison if convicted of the five capital murder counts. Prosecutors chose not to seek the death penalty.

A High Court ruling in the Troy Davis case is expected on October 6, according to a story by Atlanta Journal Constitution reporter Bill Rankin. The Court stayed Davis' execution on September 23, two hours before it was to be carried out. Davis was sentenced to die for the 1989 murder of a 27-year-old police officer who came to the aid of a homeless man Davis was pistol-whipping in a Burger King parking lot. The father of two did not have time to draw his gun and was shot three times. The Court could lift the stay on Monday, October 6th, or agree to reconsider Davis' claims questioning his guilt which had been reviewed and rejected by the Georgia Supreme Court and the lower federal courts.

No SCOTUS Orders Today

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Lyle Denniston at SCOTUSblog reports that the Supreme Court will not release an orders list today. Yesterday was the "long conference" at which the Court considered all the petitions built up over the summer asking the Court to accept cases for review. Last year on the last Tuesday of September, the Court released orders accepting 17 cases for review, most of them with accelerated briefing schedules. Maybe tomorrow.

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Gun Groups To Appeal Decision To Toss Ga. Lawsuit: AP reports that gun rights groups are appealing a ruling that dismissed a lawsuit seeking the right to carry guns in parts of the world's busiest airport. U.S. District Judge Marvin Shoob tossed the lawsuit Friday, ruling that there was no evidence indicating that Georgia's new right to carry law would allow weapons into unsecured areas of Hartsfield-Jackson Atlanta International Airport. State Rep. Tim Bearden, a Republican who co-sponsored the gun law, hopes to win on appeal.

Supreme Court Opens New Term: L.A. Times Staff Writer, David G. Savage, reports that the new term will feature cases on whether the government can forbid foul language on television, whether drug makers can be sued by injured patients, and whether environmentalists can protect whales off California from the Navy's sonar. On Monday, the justices will meet behind closed doors to sift through more than 2,000 appeal petitions that have piled up over the summer. They are expected to announce Tuesday that they will hear a handful of those cases. On major issues - among them abortion, race, religion, the death penalty, gun rights, gay rights and presidential power - the court regularly splits 5-4, with Justice Anthony M. Kennedy casting the deciding vote.

New York Defends Handgun Database:
Michael Hill, AP writer, reports that New York's seven-year-old database of handgun "fingerprints" has yet to lead to a criminal prosecution, questioning its effectiveness. However, the state police remain committed to the tool, saying that more time and a long-awaited link to a federal ballistics database could bring success. Gun advocates, who have opposed the database from the get-go as unworkable, claim the lack of results is evidence of the system's failure. The state police disagree. A spokesman, Sgt. Kern Swoboda, noted that the typical time between the legal purchase of a gun and the time it is used in a crime is seven to 10 years.

Fund For Death Defenses Remains Unchecked: According to an article from the Morris Daily Herald, a state fund that pays for death penalty cases shows a pattern of unchecked expenses and questionable fees billed by some lawyers and trial experts, according to a report published in Sunday's St. Louis Post-Dispatch. The report focused on the lack of audit and oversight of the Illinois Capital Litigation Trust Fund, budgeted at about $10 million each year. Among the newspaper's findings were that some defense professionals charge private sector rates for expenses like travel. The fund has dispersed more than $50 million since it was founded eight years ago.

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Supreme Court's Opening Conference: SCOTUSblog posted yesterday on the Court's upcoming week. The Supremes will hold their opening conference today, and are scheduled to review a petition for rehearing in Kennedy v. Louisiana. SCOTUSblog expects the Court to release orders from the conference tomorrow, and will provide coverage on its site. One of the cases the Supreme Court will review in conference is Kennedy v. Leach, et ux.. The Attorney General of Kentucky has asked the Court to address whether "Is it reasonable to initiate a 'knock and talk' investigation at a back door used as the main public entrance of a residence?" The Court of Appeals of Kentucky found the behavior to be a violation of the Fourth Amendment. Another interesting question is raised in Kansas v. Ventris, which asks "Whether a criminal defendant’s "voluntary statement obtained in the absence of a knowing and voluntary waiver of the [Sixth Amendment] right to counsel," Michigan v. Harvey, 494 U.S. 344, 354 (1990), is admissible for impeachment purposes." SCOTUSblog's Petition's to Watch post lists others.

Economics and the Death Penalty: Doug Berman at Sentencing Law and Policy posted yesterday on Jack Payden-Travers' Op-ed in the Pasadena Star News. The Op-ed argues the "Price isn't right for the death penalty." Berman provides text from the op-ed. The text references the results of a recent death penalty report from the California Commission on the Fair Administration of Justice. Kent has blogged about the "dubious" results of the report, as well as the Commission's biased selection of those it funded to do research studies for the report. Posts like Kent's provide important context when reading an op-ed that concludes "The death penalty is a failed government program for many reasons. One is that it is a colossal waste of government resources."

Obama's Potential Supreme Court Nominee: Bench Memos has a post from Ed Whalen discussing the "[l]egal blog[]" buzz surrounding Massachusetts governor Deval Patrick as a potential Supreme Court nominee. According to Whalen, Patrick has left a mark on the legal field of racial preferences. Thus far, according to Whalen, Patrick has made it clear that he supports racial preferences "in employment, government contracting, and gerrymandering."

Special Journal Edition on Criminal Profiling: Psychology and Crime News has a post briefly reporting on the Journal of Police and Criminal Psychology's Special Issue on Criminal Profiling. The Special issue is edited by Craig Bennell, the Director of the Police Research Laboratory in Canada. The Journal is available for a fee through Springerlink.

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Longer Sentence for Hamdan? Military prosecutors have asked for a new sentencing hearing for Salim Hamdan, who had previously received 5 1/2 years for supporting terrorism. AP writer Mike Melia reports that Hamdan, who was Osama bin Laden's driver, received credit for time served and could be released this January. Prosecutors, who believe the current sentence is legally incorrect, are seeking a 30-to life term.

Texas Registry Posts Sex Offenders' Jobs: In addition to a sex offenders' name, home address, photograph and criminal record, the Texas Department of Public Safety is now posting their employers, according to the story by Brian Collister, of WOAL TV in San Antonio. The state is providing the employment information to allow the public to learn if sex offenders are working in jobs that bring them in contact with children. The link to the Texas registry is here . A therapist notes that the new information may cost some offenders the jobs they need for rehabilitation.

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The Bailout and Separation of Powers: Bench Memos has a post from Robert Alt that directs readers to a Heritage Foundation piece discussing some of "fundamental constitutional values at stake" in the bailout debate. Some of the concerns the article raises include: the missing enumerated power that gives Congress the authority to intervene with private markets in the manner contemplated, lack of meaningful standards to guide the Treasury of Secretary, and the limits on judicial review over the exercise of "that almost limitless discretion." The Heritage Foundation's piece suggests that to address the Constitutional concerns, Congress should draft a policy "cabin[s] the scope and character of the Treasury secretary’s discretion, connect[s] the exercise of that discretion to legitimate government purposes, and allow[s] Americans adversely affected to seek meaningful judicial review."

Judges, Foreign Policy, & the Constitution
: Hattip to Howard Bashman at How Appealing for the link to this article, by Noah Feldman discussing the power of the Supreme Court to give "[e]very generation gets the Constitution that it deserves." Feldman's article specifically addresses whether international law should be treated as the law of the United States. This issue has stirred some debate since the Court's decisions in Boumediene v. Bush and Medellin v. Texas. The article discusses two schools of thought on this issue. Feldman states the more conservative school of thought interprets the Constitution to provide rights for its citizens within the borders of our country. The Constitution was meant to secure domestic order. The competing school of thought defines law "not as a quintessentially national phenomenon but rather as a global ideal." In other words, "rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order." The article will appear in Sunday's New York Times Magazine.

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Fed. judge in Va. rejects sniper Muhammad's appeal: That's the headline of an AP story on both the WaPo and SFChron sites, but the story doesn't seem to have any text as of this writing. Next stop, the Fourth Circuit. Update: The AP story has text now.

Sentence in SF Dog Mauling Case: Attorney Marjorie Knoller has received a 15- to- life sentence for negligently allowing two dangerous Presa Canario fighting dogs to attack and maul to death 33 year old Dianne Whipple seven years ago. A story by SF Chronicle writer Bob Egelko reports that at sentencing, Judge Charlotte Woolard found that Knoller did practially nothing while her dogs fatally mauled Ms Whipple in the apartment hallway they shared, then later blamed the victim for her own death. Knoller had been warned several times that the dogs were dangerous and should be restrained. She was keeping the dogs for criminals serving time in California's Pelican Bay Prison.

Santa Clara County Passes Underage Drinking Law: AP reports that parents and other people who host parties in parts of Santa Clara County where anyone under the age of 21 is drinking alcohol may be facing fines under new rules passed by county supervisors. By a 3-2 vote, Santa Clara County supervisors approved the law that holds parents, tenants, party hosts or party organizers responsible for parties that involve underage drinking. Hosts of such parties could face fines of up to $1,000 if they do not heed an initial warning.

Berkeley Throws the Book at Tree-Sitters: Activists who spent 21 months sitting in trees to prevent their removal to build an athletic training facility at U.C. Berkeley are facing civil fines and attorney's fees which could total $10,000 according to this Los Angeles Times story. The University is seeking maximum penalties to deter future protests, which is interesting because some Berkeley law professors do not believe that penalties deter criminal behavior. The defendants are also facing criminal prosecution which could result in jail time. "Shame on you Berkeley", said Tony Serra, the notorious, Bay Area defense lawyer representing the tree-sitters. We were surprised to learn he is still an attorney, but his bar record indicates he has managed to avoid actual disbarment so far.

Mom Spared Death For Fire That Killed Daughter: According to an article from the Associated Press, a Texas woman who set her three young daughters on fire, killing one of them, has been sentenced to life in prison without a chance of parole in a plea deal that spared her the possibility of the death penalty. Alysha V. Green pleaded guilty Monday to capital murder and two counts of injury to a child. She admitted setting the fire because she was angry at her husband, the girls' father. Green coaxed her daughters, then 3, 5, and 7 years old, into a closet by saying they were playing a game, poured gasoline on them and threw a burning shirt on them, according to documents filed in the case. Three-year-old Ariania was burned over 90 percent of her body and died a few days after the fire at their home in Haltom City a year ago.

The Troy Davis Stay

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Robbie Brown has this story in the NYT on the Supreme Court's stay of execution for Georgia death row inmate Troy Davis. Yours truly is quoted near the end:

Kent Scheidegger, a death penalty expert at the Criminal Justice Legal Foundation in California, called the Supreme Court’s intervention “not usual but not too rare either.”
“I’m not terribly surprised,” Mr. Scheidegger said. “This fellow has enough of a claim of innocence that many people say he’s innocent.”

The inherent problem with newspaper quotes is that quotee has absolutely no say on which of his statements on a case makes it into the paper. The reporter works the statement he chooses into the story, and the editor has the final call. In this instance, my criticism of the Georgia Board of Pardons and Paroles for not giving an explanation of its review and conclusions, noted here, didn't make the cut. The Board was the right forum to evaluate this claim, and if it had issued a full explanation for its conclusion this stay might very well have been denied.

Update: "Federalist" asks in the comments if an explanation would open the door to judicial scrutiny of the clemency decision. I believe a majority of the present Court would endorse the position of the lead opinion in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) and shut down such challenges.

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District Court Nominees Stalled: Jonathan Adler and Matthew Franck each have a post on Bench Memos reporting on stalled district court nominations. Adler reports the Senate Judiciary Committee was supposed to approve five nominees last Thursday, but because Senator Jon Kyl objected to committee subpoenas of confidential memoranda from the Justice Department's Office of Legal Counsel, Committee Chairman Patrick Leahy postponed consideration of the judges. The National Law Journal reported Monday, that the week long delay will leave just one day for the Senate to vote on the nominees before senators recess. Franck's post criticizes Senator Biden for "unaccountably holding up a nomination to his own state's district court that was made by the president in February." The nomination of U.S. Attorney Colm Connolly is not one of five nominations discussed in Adler's post. But, because of delay, Delaware's federal District Court is likely to go without a fourth judge until July.

Ninth Circuit Ruling on Identity Theft:
Doug Berman at Sentencing Law and Policy posted on a split decision from the Ninth Circuit addressing the application of sentencing guidelines to identity theft convictions. The decision, US v. Pham addressed Pham's claim that "it was error for the district court to apply a four-level enhancement to his sentence for a property crime involving fifty or more victims where the shortfalls in the accounts of the ninety-five individuals whose identities were stolen were fully reimbursed by their banks." Even though Pham pleaded guilty to the offense, and his crime resulted in more than $1.6 million in loss, the Ninth Circuit vacated Pham's sentence and remanded for resentencing on an open record.

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Florida Killer's Execution Scheduled Tonight: From the Orlando Sentinel, writer Stephen Hudak reports that Richard Henyard is scheduled for execution for the murders of two Lake County girls. Today he will become the 66th person executed by the state since the death penalty was reinstated in 1976. Assistant Florida Attorney General Stephen Ake urged the U.S. Supreme Court on Monday to reject Henyard's latest appeal, saying his lawyers "failed to demonstrate any basis" for another review. The nation's high court was pondering a review of Henyard's appeal, which could challenge the constitutionality of lethal injection in Florida. Unless justices decide to look at his case, Henyard faces death by lethal injection at 6 p.m. at Florida State Prison in Starke. Henyard was sentenced to die for the Jan. 30, 1993, murders of the two sisters, who were shot in the head. He and Alfonza Smalls, then 14, carjacked the girls and their mother, Dorothy Lewis, from a Winn-Dixie parking lot; raped and shot the mother in front of Jamil- ya and Jasmine; and then shot both girls.

US Has Mixed Record On Victims’ Rights: The Human Rights News reports that the United States has not incorporated into its domestic criminal justice systems many of the recommended standards for the treatment of crime victims set out under international law. In the report, “Mixed Results: US Policy and International Standards on the Rights and Interests of Victims of Crime,” Human Rights Watch analyzed how well the United States is meeting international best practices. Human Rights Watch found that police and prosecutors in some states enjoy very broad discretion over who is to be granted victim status and the extent to which victims are included in the justice process. In some cases, victims who disagree with the punishment being sought in the case – such as the death penalty – have been barred from testifying. Certain categories of victims, such as police officers and prisoners, have also been denied victim status or services. The Human Rights Watch called on all jurisdictions in the US to ensure that the definition of “victim” in state and federal law does not arbitrarily deny victims of crime access to their rights and support services, and to allow crime victims to exercise their right to have information about the criminal investigation or about the prosecution at any time in the process.

Ex-Pa. Lawmaker Takes Sex-Offender Fight To Court: AP reports a story of a former state lawmaker who took three sex offenders into his home and then went to court to challenge zoning officials' decision to bar them. He asked a Lancaster County judge to overturn an August zoning board ruling that said he violated a local ordinance by taking the three offenders, who all served prison time, into his Marietta home. Citing his Christian belief in forgiveness, he has said he wants to shelter the three men until he can open a halfway house for sex offenders. He argued the zoning officer didn't properly investigate who was living in his home before issuing a cease-and-desist order June 18. He also said the zoning law, which limits the number of unrelated people who can live together, fails to differentiate between temporary and permanent residents. The sex offenders' probation terms prohibit them from living under the same roof with minors. Armstrong has a 16-year-old daughter, but she moved out along with his wife to care for a sick relative and has not returned, he said. The three men he took in are a rapist, a man who fondled a 15-year-old neighbor girl, and a man caught with child porn on his computer at work. Armstrong said defense attorneys and prison counselors had contacted him for help and assured him they were not a threat to anyone.

Troy Davis and the Georgia Parole Board

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The Georgia Parole Board issued this press release Monday on the Troy Davis case. The full text is also quoted after the jump, in case they remove the page linked here.

It's good that they made an exception to their "no comment" policy, but they did not go far enough. In capital cases with claims of actual innocence, an explanation should be the rule, not the exception. Further, the explanation should go into detail as to why the board does not believe the inmate is actually innocent. The right way to do it was illustrated by Gov. Pete Wilson of California in the Thomas Thompson case. We appended this explanation to our brief in Calderon v. Thompson, 523 U.S. 538 (1998), and the Supreme Court noted it. See id., at 547-548, 552, 556.

The Georgia Board should do the same, as should the clemency authority in any case of this type. There aren't enough of them that this would be a significant burden, and it is very bad for public confidence in the system to have one side saturating the media with claims he is innocent while the people who properly decided that question are virtually mum on their reasons for rejecting it.

UPDATE. The CJLF brief in Calderon v. Thompson is available here.

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October Oral Arguments: Lyle Denniston at SCOTUSblog reports the Supreme Court has released a new calendar for oral arguments in October. The new calendar can be found here. The revised sitting schedule has the Supreme Court hearing oral arguments in Oregon v. Ice on October 14th at 1 p.m. The old calendar scheduled Ice for the following day. The case involves whether a judge's decision to implement consecutive sentences for separate crimes violated the defendant's right to a jury trial. CJLF wrote a brief in support of Oregon.

Courts Cannot Hear Challenges to Conditions of Detainee Confinement or Challenges to Transfers:
Lyle Denniston also has a post on today's decision from Senior U.S. District Judge Thomas F. Hogan. Judge Hogan has been responsible for overseeing some 200 Guantanamo Bay detainee cases. In today's decision he found that the Military Commissions Act of 2006 removed federal court authority to hear challenges to the“transfer, treatment, trial, or conditions of confinement” of any captive found by the government to be an “enemy combatant.” He reasoned that because Boumediene v. Bush did not nullify that provision of the statute, federal courts “have no jurisdiction” over a detainee’s challenge to a transfer, or the conditions of his confinement. According to Judge Hogan, Boumediene only gave detainees the right to challenge their detention through federal habeas petitions.

Data in Law Review Articles: Eugene Volokh at Volokh Conspiracy posted today on the Tulane Law Review controversy. We mentioned the controversy in our Blog Scan last Thursday. Volokh's post supports a law review practice that would include the raw data supporting an article's assertions in an Appendix. He states "That way, law reviews would be reminded of their responsibility to check the data, and readers will find it more consistently accessible." We agree. This type of practice would give researches easy access to data, and put pressure on law review editors to check the data. Both are incredibly important to policy makers and scholars who rely on the data in formatting opinions.

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S.C. To Consider Ex-Judge’s Duty to Disclose Censure: According to a story by the MetNews, the California Supreme Court has agreed to decide whether a retired L.A. Superior Court judge had a duty to disclose his censure for making offensive comments about women based on their physical attributes before arbitrating a medical malpractice claim centering on a woman’s appearance. The justices, at their weekly conference in San Francisco, voted unanimously to grant review in Haworth v. Superior Court (Ossakow), 164 Cal.App.4th 930. The Court also agreed to review the ruling of the Third District Court of Appeal in Barnett v. Superior Court, 164 Cal.App.4th 18, which deals with discovery disputes in a death penalty habeas corpus proceeding. At issue: whether Penal Code Sec. 1054.9, establishing procedures for post-conviction discovery, is an unlawful amendment to Proposition 115, the 1990 criminal justice initiative. The justices invited the Criminal Justice Legal Foundation, the Habeas Corpus Resource Center, the Office of the State Public Defender, the California District Attorneys Association, and other interested organizations to brief that issue.

Morales Case Gets Another Hearing: Stockton Record staff writer Scott Smith reports that attorneys for California brought their case against condemned Stockton murderer Michael Morales to an appeals court Thursday for argument on changes made to the state's method of execution two years ago. In February 2006, state officials modified California's lethal injection procedure in a last-ditch effort to convince a federal judge that Morales would not suffer unconstitutional levels of pain during his execution. The challenge has stopped executions in California. Morales was sentenced to death for the 1981 rape and murder of 17-year-old Terri Lynn Winchell of Stockton. The case came before the appeals court because Morales' attorneys filed a lawsuit in the Superior Court for Marin County, where San Quentin is located, against the California Department of Corrections and Rehabilitation in April 2006, two months after the failed attempt to execute the inmate. Once the appellate court rules, Morales' case may go back to U.S. District Judge Jeremy Fogel, who is overseeing the federal case.

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The Maryland Death Penalty should "stand as written, and be used more often to serve the citizens" writes Paul Highbarger in an Op Ed in today's Baltimore Sun. Governor Martin O'Malley has received legislative authorization to appoint a commission to study the state's death penalty and recommend changes to what Highbarger calls "one of the nation's most restrictive" capital punishment laws. He calls the commission a complete waste of time and money and a tool the Governor is using "to force his own personal beliefs on the state."

Protesters in Atlanta marched Thursday in opposition to the execution of Troy Anthony Davis, who was sentenced to death for killing an off duty police officer during a violent crime spree in 1986. An AP story in today's Atlanta Journal Constitution barely mentions the murder victim, and does not note that on the night of the murder Davis shot another man in the face and was pistol whipping a second victim when Officer Mark MacPhail intervened and was killed. Our post from Tuesday provides the background on this case.

The Adam Walsh Act passed by Congress in 2006 to transform the patchwork of uncoordinated state sex offender registries into a nationally linked system to keep track of sex offenders was not much more than a photo-op according to this Fox News piece by Charles D. Stimson and Andrew M. Grossman of the Heritage Foundation. While the agency created by the act has issued guidelines to upgrade and conform state registries, the funding promised to help offset the related costs has not been authorized. Just this year, Congress cut funds for the program by two thirds and some states are backing off of implementation or opting out.

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A Reason to Be A Skeptical Reader and A Careful Author: At Wall Street Journal's Law Blog, Dan Slater reports that the Dean of Tulane Law School has apologized to the Louisiana Supreme Court for errors in a professor-authored law review article. The article, written by Tulane Prof Vernon Valentin Palmer, suggested that the Louisiana Supreme Court justices tend to decide cases in favor of litigants and lawyers who contribute to their campaigns. Back in January, when the publication of the article was still pending, Adam Liptak of the New York Times wrote a story discussing the article. In his article, Liptak cited arguments that dismissed the Tulane professor's findings. Turns out Liptak's skepticism was well founded. Yesterday, the Times-Picuyane published excerpts of the Dean's apology. Dean Poronoff wrote: "Because of the miscalculation in the underlying data, the reliability of some or all of the authors' conclusions in the study as published has been called into question." Professor Palmer has apologized for the errors, but still stands by the results of the study. With all the mistakes corrected, Professor Palmer still claims, broadly speaking, the study's conclusions remain the same.

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Federal Sentencing Data from US Sentencing Commission: Doug Berman posted the links to three new data sets that the US Sentencing Commission posted on its website this morning. His post has links to the September 2008 update of the U.S. Sentencing Commission Preliminary Post-Kimbrough/Gall Data Report; the FY2008 3rd Quarterly Sentencing Update; and Preliminary Crack Cocaine Retroactivity Data Report. Berman promises more on the new tables once he has a chance to "chew" on the data.

Kennedy v. Louisiana Update: Briefs, on the question of possible rehearing of Kennedy v. Louisiana , were filed with the U.S. Supreme Court today. Lyle Denniston has a post discussing briefs submitted by Kennedy's defense counsel and the U.S. Solicitor General. According to Denniston, the defense brief argues that military law is beside the point when deciding the constitutionality of criminal sentences for civilians. The defense brief apparently argues that because the Supreme Court has "never looked to military law to provide guidance in conducting Eighth Amendment analyses of state capital punishment laws," it should not be considering them in this case. The Justice Department, on the other hand, urged the Court to to reopen the case, and change it, at least by allowing that sentence in “aggravated cases” of child rape, perhaps in a military setting. The brief apparently contends “[t]he Court should not displace a recent and emerging consensus reflected in the judgment of the Nation’s political Branches that a particular punishment is appropriate and proportionate.” The state of Louisiana apparently has until next Wednesday to file its brief.

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Montpelier Restored: On the 221st anniversary of the Constitutional Convention's completion of its work, the restoration of James Madison's home, Montpelier, was unveiled. Carlos Santos has this story for the Richmond Times-Dispatch. Chief Justice Roberts and Justice Alito were on-hand for the ceremonies.

International Influence Of Supreme Court Waning: According to a story by NY Times writer Adam Liptak, a diminishing number of foreign courts seem to pay attention to the writings of American justices. Judges around the world have long looked to the decisions of the United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War. But now American legal influence is decreasing, according to the article. Foreign courts in developed democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, “they tend not to look to the rulings of the U.S. Supreme Court.” The rise of new and sophisticated constitutional courts elsewhere is one reason for the Supreme Court’s fading influence, legal experts said.

Longest-Serving Death Row Inmate Is Executed: An AP story reports that a man who had been on Georgia's death row for 33 years was executed Tuesday for killing his wife in 1974. Alderman was sentenced to die for killing his wife, Barbara. He and an accomplice beat her with a crescent wrench and choked her at their home near Savannah before dumping her body in a creek. Prosecutors alleged he wanted to collect $20,000 in life insurance money. Alderman lost his bid for clemency before the Georgia Board of Pardons and Paroles earlier that Tuesday. Those seeking clemency argued that Alderman has been a model prisoner and mentor in his more than three decades behind bars. They also noted that his accomplice, John Arthur Brown, was paroled after 12 years in prison. But David Lock, an assistant district attorney in Chatham County, said Alderman instigated the crime.

Troy Davis Goes to SCOTUS

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Troy Anthony Davis is scheduled for execution in Georgia a week from now for the murder of police officer Mark Allen MacPhail. Prior posts here, here, and here. He has applied to the U.S. Supreme Court for a stay of execution, according to this post on SCOTUSblog by Lyle Denniston. According to Lyle, "The key issue his appeal raised is whether the Court will rule — in a way it has only assumed previously — that it is unconstitutional to execute a person who is innocent of the crime, and has substantial evidence to support that claim." What the Court actually said in Herrera v. Collins, 506 U.S. 390, 417 (1993) (emphasis added), was:

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.

The Court also made pretty clear that the right place to consider last-minute, free-standing claims of innocence is executive clemency. Georgia has done exactly that. In this order, the Board stayed the execution to hear the innocence claim, stating, "The members of the Georgia Board of Pardons and Paroles will not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt of the guilt of the accused...." The subsequent denial implies they are now convinced.

So what are the chances that the Supreme Court will grant review to reconsider a fact-intense claim that has already been carefully considered by the body that the Court has said is the right one to consider it? Vanishingly small.

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U.S. Files to Head Off Sanctions For Failure to Meet Deadlines: Lyle Denniston reported at SCOTUSblog that the U.S. has filed a reply motion for partial and temporary relief from the Guantanamo district court's July 11 scheduling order. In its reply motion, the government argued that if it is forced to comply with the court's deadlines it will be forced to chose between two evils: release of detainees or the loss of control of national secrets. The government has conceded that it has not been able to meet the imposed deadlines, but has asked the court to relax the deadlines so it can catch up. Last week, counsel for the detainees argued that the government has added a layer of review of secrets that is not necessary, that the government will only respect deadlines if it is punished for missing them, and that the government has done much less than it could to produce its reasons for holding detainees. According to Denniston, counsel requested step-by-step, increasing level sanctions for the government's delay. The Justice Department fought back yesterday, arguing in its motion that detainees' counsel is is seeking “to force the Government to choose between its duty to present, consistent with the currently governing legal landscape, the most appropriate case to ensure that those held as enemy combatants do not return to the fight and its duty to protect classified intelligence (and the assets used to acquire that intelligence) from improper disclosure that would endanger national security interests.” Denniston reports that the judge overseeing the detainee habeas cases has not yet given a timetable for acting on the delay issue.

Use of Heller and The Second Amendment to Reduce A Mandatory Federal Sentence: Yesterday, Doug Berman at Sentencing Law and Policy provided a post on his motion for partial summary judgment to partially vacate the 55 year mandatory sentencing term of Weldon Angelos. Apparently, Angelos received this 55 year sentence because of gun possession linked to three small hand-to-hand marijuana sales in a public parking lot. The motion for partial summary judgment is the follow up to a "lengthy 2255 motion" Berman helped author in 2007. In his post, Berman states he does not plan to discuss the merits of the case. However, that does not mean other bloggers will refrain from commenting. Today, over at the Volokh Conspiracy Paul Cassell provides a quick summary of Berman's post, and then notes "Professor Berman is trying to get me reversed here. I was the federal district court judge who, very reluctantly, had to impose the 55 year sentence."

Dallas County DA Seeking Review of Pending Capital Cases: Sentencing Law and Policy also provided a link to this story in today's Dallas Morning News. Apparently, Dallas County District Attorney Craig Watkins is concerned that innocent people have been imprisoned for faulty prosecutions. He would "re-examine nearly 40 death penalty convictions and would seek to halt executions, if necessary, to give the reviews time to proceed. " According to the story, Watkins became concerned by problems exposed by 19 DNA-based exonerations in Dallas County. Watkins claims a number of convictions were based on faulty eyewitness testimony and, in a few cases, prosecutorial misconduct. Former Dallas County prosecutor, Toby Shook, told The Dallas Morning News "Mr. Watkins was imposing an unnecessary new level of review and a hardship on victims' families."

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India’s Use of Brain Scans in Courts Is Debated: NY Times writer Anand Giridharadas, reports that India has become the first country to convict someone of a crime relying on evidence from a brain scan. This controversial machine involves a brain scanner that produces images of the human mind in action and is said to reveal signs that a suspect remembers details of the crime in question. The technologies, generally regarded as promising but unproved, have yet to be widely accepted as evidence — except in India. It was only in June, in a murder case in Pune, in Maharashtra State, that a judge explicitly cited a scan as proof that the suspect’s brain held “experiential knowledge” about the crime that only the killer could possess, sentencing her to life in prison. Some believe it could transform investigations as much as DNA evidence has. But many experts in psychology and neuroscience were troubled that it was used to win a criminal conviction before being validated by any independent study and reported in a respected scientific journal.

Dallas County DA Wants To Re-examine Nearly All Of Pending Death Row Cases: According to a story by Jennifer Emily and Steve McGonigle from the Dallas Morning News, District Attorney Craig Watkins, convinced by the problems exposed by 19 death penalty convictions, said he should ensure that no death row inmate is actually innocent. He wants to re-examine nearly 40 death penalty convictions and would seek to halt executions, if necessary, to give the reviews time to proceed. Toby Shook, who sent several people to death row while he was a Dallas County prosecutor, said Mr. Watkins was imposing an unnecessary new level of review and a hardship on victims' families. To halt an execution, judges from the trial court where the conviction was obtained would have to sign the order to approve withdrawing the execution date, said Dallas County state District Judge Andy Chatham. Judge Chatham, who signed the order to withdraw Mr. Lave's execution date, said Monday that any similar requests would need specific reasons for stopping the execution. Those reasons are DNA testing or a writ of habeas corpus that showed the need for additional court proceedings.

Eyewitness Research

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The September 2008 issue of Applied Cognitive Psychology is a special issue on eyewitness research. The Psychology and Crime News blog has this summary.

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Senate Impact on Liberal Judicial Nominees: On Saturday, Jonathan Adler posted his thoughts on whether conservatives would attempt to block any of Obama's judicial nominees. Adler's post was prompted by this MSNBC article. While Adler states he probably won't like any of Obama's pics for the Supreme Court, he also states his belief that "the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament..." Adler then discusses Alexander Hamilton's Federalist 76, where Hamilton explained that primary purpose of Senate confirmation is to place a "check upon a spirit of favoritism in the President" and "to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Adler hopes the Senate will stay true to this philosophy and let qualified liberal nominees through without too much of a fight. He also promises to blog more later on some of the comments that follow the post.

New SSRN Articles on the Eighth Amendment: Doug Berman at Sentencing Law and Policy has a post providing links to two new SSRN articles discussing the Eighth Amendment. The first article is by Corey Rayburn Yung (blogger at Sex Crimes) and asks "Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?" Berman says the second article, "The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity," discusses the Eighth Amendment more generally. Berman's post has the text of each Abstract, and you can download each by clicking "Choose Download Location" link near the top of each SSRN page.

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Death Penalty Is Upheld in Publicized Georgia Case: New York Times writer Robbie Brown, reports that the Georgia parole board has denied clemency to Troy Davis, sentenced to death for the killing a Savannah police officer in 1989. Davis, 39, is scheduled to die by lethal injection in Jackson, Ga., on Sept. 23, unless the United States Supreme Court agrees to hear an appeal. Previous posts on this case are here and here. A jury in 1991 convicted Davis in the 1989 murder of Mark Allen MacPhail, an off-duty police officer moonlighting as a security guard who was shot to death while responding to a late-night fight at a Burger King in Savannah. Davis testified he was at a nearby pool hall and left before Officer MacPhail arrived. The defense claims that since the trial, seven key witnesses have recanted, saying they were bullied by investigators into lying under oath. A per curiam Eleventh Circuit decision in 2006 rejects these claims and notes that Davis was also convicted of shooting another victim in the jaw and striking a third man in the head with a pistol on the night that Officer MacPhail was killed.

Violent Crimes Costing U.S. $45.1B A Year: This story, from the Orlando Sentinel News Services, reports the United States leads the world in economic loss from deaths caused by armed crime, according to a global survey released September 12th. The U.S. registered an estimated loss of up to $45.1 billion in terms of economic productivity because of violent crimes, said the report by the U.N. Development Program and the Geneva-based Small Arms Survey. At least 490,000 people are killed in armed crimes each year worldwide, placing a huge economic cost and social burden on nations, the report said. It did not give a country-by-country breakdown of the numbers of people killed in armed crimes but did say Colombia, El Salvador, Guatemala, Jamaica and South Africa are among the countries with the most recorded violent crimes in the world. More people are killed worldwide in violent crimes every year than in wars, it said, asserting that armed killings and their economic impact on nations are largely underreported.

Mexico In The Midst Of A Legal Revolution: AP writer, Julie Watson, reports that Mexico has amended its constitution to throw out its inept and corrupt legal system. Under the constitutional amendment passed by the legislature, approved by all 32 states and signed by President Felipe Calderon, Mexico has eight years to replace its closed proceedings with public trials in which defendants are presumed innocent, legal authorities can be held more accountable and justice is equal. Since the Spanish conquest in the 1500s, Mexico has had an inquisitorial system adopted from Europe in which the accused is not presumed to be innocent and proceedings are largely carried out in writing and in secret. Without the threat of exposure in public trials mistaken arrests, bungled investigations and confessions extracted under threats and torture have become common in Mexico. Mexico's new penal code is similar to the one adopted by Chile in 2005, where cases are examined by three judges who consider the legality of the evidence and whether the defendant's rights were respected. Then, the judges send cases to trial or recommend other means of adjudication, such as a plea bargain or probation.

Reflexive Support for a Crook

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Leonard Pitts of the Miami Herald has this column on the remarkably slow decline and fall of Detroit mayor Kwame Kilpatrick. Pitts compares the agonizing year it took to get rid of Kilpatrick with the sudden departure of Eliot Spitzer, whose political base vanished overnight. Why the difference? Pitts says that Kilpatrick's race gave him a broad base of "undeserved support" despite his obvious crookedness.

Truth is, we [African Americans] get played like checkers any time any high profile one of us is caught in scandal or sin. From Michael Jackson to O.J. Simpson to Tawana Brawley to Mike Tyson to Marion Barry to Kilpatrick, lying his natural backside off in court, we keep proving pathetically susceptible to manipulation by any brother or sister who says white folks have done him or her wrong -- especially if they invoke God a few times for good measure.
* * *
African Americans -- and, for that matter, all people of conscience -- have a moral responsibility to stand up for those who truly are victims of racial injustice. In defending those people, we should be unstinting and unwavering.
We should not, however, be unthinking. We should stop falling into the easy trap of believing every black man in trouble is a victim of racial malfeasance. Sometimes, a black man in trouble is a victim of his own malfeasance. If more black folks in Motown had understood this, the city might not have spent the last year embarrassing itself.
For centuries, African Americans have struggled to teach white people that black does not mean guilt. Frankly, it's high time we ourselves learned a corresponding truth.
It doesn't mean innocence, either.

The column is noteworthy not only for its truth but for its source. Pitts is a party-line, thinking-inside-the-box liberal. If he gets it, maybe there is hope that we will someday see the end of the seemingly endless stream of reflexive accusations of racism every time the good guys nail a bad guy who happens to be black. Or, if the stream does not end, maybe it will be recognized as bogus by such a large majority of people of all races that it won't matter.

Crime Down a Little in Annual FBI Report

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The FBI has released it annual Crime in the United States report. The overall violent crime rate is down 1.4% from 2006. (The AP story reports that violent crimes are down 0.7%, but that is total crimes, not per capita rate.)

For trend data, see Table 1, which shows the indexes and per capita rates from 1988 to 2007. The overall violent crime index is down 38% from the peak, since we got tough on sentencing. The extent to which getting tough contributed to the drop remains hotly debated, but there is not much doubt it was one of the major factors. See prior post here.

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Some New SSRN Articles: Doug Berman at Sentencing Law and Policy has this post with links to two new articles on SSRN. The first article, Prosecutorial Shaming by Adam M. Gershowitz, examines "instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed the misconduct." It then argues that "[t]he naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct." The second article, Guidelines Simplification: Still an Urgent Priority Post-Booker is by Michael M. O'Hear. The article advocates the simplification of Federal Sentencing Guidelines, to "provide fairer sentences, better accommodate new procedural safeguards, and insulate the Guidelines from counterproductive tinkering by the political branches."

If You Are In Washington, D.C. in the Next Three Weeks: Ben Winograd has provided a post listing the Upcoming Supreme Court Preview Panels that will be taking place in Washington D.C. before the start of the Supreme Court term. The National Chamber Litigation Center will have former U.S. Solicitor Generals Paul Clement and Seth Waxman on Tuesday, Sept. 23rd. The following day, Orin Kerr will be on a panel at the American Constitution Society. Next Tuesday, Sept. 17, Tom Goldstein will be on a panel at the Cato Institute.

Does 18 U.S.C. 242 Permit the Death Penalty for Rape? Yesterday, Sex Crimes had a post linking to Orin Kerr's response to this question over at the Volokh Conspiracy. Kerr initially but tentatively answered, that yes, 18 U.S.C. § 242 does permit the death penalty for rape. As you can see, both posts quote our very own Kent Scheidegger. Kent correctly pointed out 18 U.S.C. § 3591(a)(2), a statute which makes death of the victim is a prerequisite to the death penalty in all but a very limited set of cases. (Treason and espionage come under paragraph (1).)

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Tracking Terrorists: New guidelines for identifying terrorists within the United States, which would give the FBI tools currently used against organized crime, were proposed today according to this AP story by Larry Hargasak. If adopted, the guidelines would allow agents to conduct physical surveillance, recruit snitches and conduct pretext interviews to uncover information about possible terrorists. The proposals were immediately criticized by the ACLU and some Democratic lawmakers for allowing a suspect's ethnic background to be among the criteria for initiating an investigation. A Justice Department spokesman noted that ethnicity is often an essential marker in criminal investigations, pointing out that the investigation of members of La Cosa Nostra required a focus on Italians and tracking Hezbollah meant looking primarily at Lebanese.

Drug Lord Needs Bigger Cell: Ramirez Abadia, who is being held on federal charges for heading a cartel that smuggled an estimated $10 billion worth of cocaine into the U.S. between 1990 and 2003, is claustrophobic in his New York maximum security cell. The Associate Press reports that his lawyer is asking a federal judge to move Abadia to a Detention Center in Brooklyn where he will be more comfortable.

Death Sentence Upheld: Twenty-seven years after receiving a death sentence for stalking and shooting two 12-year-old girls, one fatally, a Ninth Circuit panel has upheld the death sentence of Thomas Edwards. A story in today's Orange County Register by Larry Wellborn reports how in 1981, at a Southern California campground, Edwards spotted best friends Venessa Iberri and Kelly Cartier walking to a picnic. After following the two girls to a remote spot, he pulled up to them in his pickup and shot them both in the head. His conviction and death sentence in 1986 began a series of appeals and delays described by one judge as reminiscent of "Dickens' Bleak House." The federal appeals process alone has taken 17 years, not including the possibility of an en banc review by the Ninth Circuit.

Geographic Disparity: The Baltimore Sun has this letter to the editor in which the author disputes the notion that variation among counties is a problem that needs to be fixed. The writer reacts to an Abell Foundation study showing differences between Baltimore City jury verdicts and those in surrounding counties. "The study not only identified differences in verdicts but went on to the make the shocking proposal that we should consider a regional jury pool. But differences don't necessarily indicate problems; distinct approaches more often than not lead to the right answer." Here is the twist: the letter writer is an Assistant Public Defender in Baltimore.

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Guantanamo Detainees Seek to Attend Hearing: Lyle Denniston reports at SCOTUSblog that lawyers for the Uighurs - the Chinese Muslims being held at Guantanamo - have filed a motion requesting that four of the 17 detainees be flown to Washington, D.C. for the hearing on their plea. The motion also requests that the remaining 13 be allowed to listen live from Guantanamo via telephone. Denniston reports the Justice Department is likely to oppose the plea even though the Pentagon has indicated that five of the Uighurs will no longer be treated as “enemy combatants.” The opposition is consistent with Justice Department's policy of opposing any detainee being brought to the U.S. mainland for any purpose. U.S. District Judge Ricardo M. Urbina, who is scheduled to hold the hearing on October 7th, has not indicated whether he would allow a detainee to brought into his court. District Judge Richard J. Leon, another District judge handling the hearings, has indicated he would only allow detainee participation through telephone hook-up.

The Winning Brief: David Zaring has this post at Conglomerate Blog asking "How much of a Supreme Court opinion is lifted from the winning brief?" The post discusses a paper written by Pamela Corley, a faculty member at Vanderbilt University, which examines the relationship between the briefs filed and the resulting Court opinion. According to Zaring, results of the study show that during the 2002, 2003, and 2004 terms, "[t]he average overlap between opinion and winning party brief then was roughly 10%." The study also apparently shows "Rehnquist and O'Connor were the justices most likely to borrow from the briefs." Rehnquist reportedly relied on the content of the briefs 14% of the time, and O'Connor 11.5%, during 2002, 2003, and 2004. The study is in an upcoming issue of Political Research Quarterly. Zaring has a link to the gated version here.

Timid Defense Attorney:
Nathan Koppel has a post on Wall Street Journal Blog discussing the Ninth Circuit's rejection of a defense counsel's claim that Judge Manuel Real "should be replaced in a criminal case because defense lawyers were allegedly afraid of the judge." The defendant's lawyer claimed that because of "'“a generalized pattern of cowering by attorneys who appear in this district court[,]'" Judge Real should be dismissed. The Ninth found the allegation was not supported by the record. The Ninth Circuit said the allegation was not supported by the record. “We note that neither [the defendant’s] attorney nor the government’s attorney faltered in the least bit in their arguments or retreated from their positions at the sentencing and restitution hearings[.]" Apparently, the attorney told the Daily Journal in Los Angeles (link unavailable, but click here for a blog post from the ABA Journal), “I’m very timid in front of him, and my clients don’t get my best efforts" Of course, it wasn't all good news for Judge Real. Koppel reports the Ninth Circuit found the Judge erred in sentencing and remanded the case back to the judge.

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3 Death Row Inmates Executed Under Japan's New Justice Minister's Orders: A news article from the Mainichi Daily News, reports that the first executions in Japan in about three months occurred Thursday, the Ministry of Justice announced. It was the first time for executions to be carried out under the orders of Justice Minister Okiharu Yasuoka since he assumed his post in August. Executions in Japan were halted for a period of about 3 years, 4 months up until March 1993, as no execution orders were issued by justice ministers during the period. Since executions resumed, 73 inmates have been put to death. There are now 102 confirmed inmates on death row. Some of the convictions of the three inmates includes stabbing in a robbery attempt, murder, assault, stealing money, breaking and entering, and arson.

Five Countries Account For All "Child" Executions In The World: According to a story from the Daily Pakistan News, Human Rights Watch (HRW) is urging an end to the practice. HRW apparently has no intention of ending its own deceptive practice of lumping 17-year-olds together with actual children in its pronouncements. The HRW states that Iran, Pakistan, Saudi Arabia, Sudan and Yemen are the only countries that continue to impose the death penalty on people younger than 18 after they have been convicted. The United States outlawed execution of juvenile offenders in 2005. Furthermore, the HRW states that Iran has executed 26 of the 32 juveniles put to death globally since January 2005. Iranian law allows such penalties for girls of at least nine and boys of 15 or older, said the report, adding that six juvenile offenders had been executed there this year.

'Good Judges Are More Important Than Ever', states David B. Rivkin Jr. and Lee A. Casey in an article from the Wall Street Opinion Journal. According to the article, judicial intervention has become more prevalent after 9/11. In June, the Supreme Court invalidated a careful compromise on detainee rights adopted by Congress and the president in the 2006 Military Commissions Act (MCA), which provided only limited authority for the federal courts. But it went further, framing an unprecedented role for the judiciary in wartime decision making, states the article. The Supreme Court decisions show an alarming and growing willingness by judges - who lack national security expertise and approach issues in relative isolation - to accept and decide matters left to the discretion of the president and Congress. This makes future judicial appointments all the more critical. According to the article, the next president will determine the course of the Supreme Court and lower federal courts for decades to come.

District Court Overturns Nevada's Sex Offender Law:
A news story from the KTVN News Online, reports that a federal judge kept a new state sex offender law from going into effect. The law would have forced other offenders - who committed crimes and served their time long ago - to sign up with the state's sex offender registry, even though the registry may not have been around at the time of their conviction. The American Civil Liberties Union of Nevada fought this in court, and won. The A.C.L.U. thought the law was unconstitutional, because it would basically punish sex offenders a second time, for a crime they've already paid for. The new law would have meant keeping track of thousands of extra sex offenders, regardless of the nature of their crime, or the time they had already served. Unfortunately, the text of the opinion is not available on the district court's web site at this time. We are curious to know how the court got around Smith v. Doe, 538 U.S. 84 (2003), in which the Supreme Court reversed a Ninth Circuit decision striking down application of an Alaska law to existing cases. The question might also interest the lawyer who represented the State of Alaska in Smith, John G. Roberts.

Lest We Repeat

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On the seventh anniversary of the 9/11/01 attack on America, we must remember those who died that awful day. Just as importantly, we must remember the mistakes that made us vulnerable so that we do not repeat them. Many of those mistakes involved overreactions to abuses of authority in an earlier era.

When something bad happens, it is common for people to demand that measures be put in place to make certain that it never happens again. The problem is that the measures needed for such certainty may increase the likelihood of some even worse occurrence. The most notorious of these measures was the ill-conceived and ultimately disastrous wall between law enforcement and foreign intelligence, intentionally preventing the sharing of information about terrorist threats. While there were certainly real abuses that this measure sought to prevent, it should have been obvious to anyone with sense that the cure was far worse than the disease and that other, less damaging, remedies should have been used to address the problem. Only after 9/11 was the public sufficiently aroused that it became possible to tear down this foolish wall.

But the public has a short attention span, and the lapse of seven years without a new attack has softened public support for measures needed to fight terrorism. Meanwhile, those who would unilaterally disarm us in the face of our enemies remain as vocal as ever. Ironically, the very success of the post-9/11 changes undermines the political support for them.

More on the Hood Case

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The strange case of Texas murderer Charles Dean Hood is mentioned, with links to blog and news coverage, in today's Blog Scan and News Scan. The decision of the Texas Court of Criminal Appeals is here. The court denies the affair-based claim, along with a nonsense double jeopardy claim, on the ground that "they do not meet the requirements of Article 11.071, § 5, for the consideration of subsequent claims." In Texas, as in most jurisdictions, there is an appeal, one collateral review, and only a narrow window for any further collateral reviews after that.

The court goes on to say, though, "Because of developments in the law regarding nullification instructions, this Court has determined that it would be prudent to reconsider the decision we issued in dismissing applicant’s second subsequent writ application. See Ex parte Hood, 211 S.W.3d 767(Tex. Crim. App. 2007)(No. AP-75,370)."

The primary development is likely the Supreme Court's 2007 decision three months later in Smith v. Texas. As with many old Texas cases, the state is still litigating in Hood the consequences of instructing juries in accordance with a statute the Supreme Court expressly upheld in Jurek v. Texas, 428 U.S. 262 (1976), a practice later found to violate the constitutional requirement the Court fabricated in Lockett v. Ohio, 438 U.S. 586 (1978).

The KKK and the SoL

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Update, Thursday: Holbrook Moore of AP has this story on the case. "Mississippi Attorney General Jim Hood said Wednesday he is reviewing the ruling and declined comment on whether there is enough evidence to charge Seale with murder."

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Last year, former Klansman James Ford Seale was convicted in federal court of kidnapping Henry Dee and Charles Moore in 1964. The victims were not only kidnapped, they were killed, but murder as such is not a federal offense. One of the problems with prosecuting murderers in federal court is that some other, usually lesser, crime ends up as the tail wagging the dog of murder.

But isn't there a statute of limitations problem here?

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Execution Delayed: Dan Slater at the Wall Street Journal Law Blog posted this morning on the postponed execution of Charles Dean Hood. Our News Scan has the link to the AP story. Yesterday, the Texas Court of Criminal Appeals granted Hood a stay so that it could reconsider its previous dismissal of Hood's appeal challenging jury instructions. Last Friday, we blogged that the execution might not occur as scheduled because of allegations that the trial judge and a former district attorney had an affair during Hood's 1989 murder trial. Slater's post reports the two admitted, under oath, that they carried on a secret affair for years. When allegations first arose, the Texas AG supported inquiry into whether the affair took place. However, the affair was not the reason for the stay. Yesterday, the Texas Court of Criminal Appeals dismissed claims that Hood had been denied a fair trial because of the alleged affair.

Chief Justice of the Supreme Court: For those interested in a little Supreme Court history, Eugene Volokh has a post on a N.Y. Times correction that claimed "there is no such title as chief justice of the Supreme Court." Volokh's feisty post takes us on a quick trip of the historical use of the title "Chief Justice of the Supreme Court of the United States." Apparently, George Washington used it, Thomas Jefferson used it, and so did St. George Tucker in the 1803 Appendix to Blackstone's Commentaries. So if you use the term "Chief Justice of Supreme Court," Volokh doesn't think you need to apologize.

Courts and the Media: Tony Mauro at Blog of the LegalTimes has been posting on Justice Breyer's talks at the University of Arizona's Rogers College of Law recently. Tuesday's post discussed Justice Breyer's new book, and today's post discusses the important interaction between courts and the media. According to Mauro, the judges on the panel "seemed to embrace" the idea that informing the public in judicial decisions was "now part of their job description." In fact, many courts are already taking it on themselves to put "court documents, streamed audio of hearings, everything except what the judge ate for lunch" on the Internet. Mauro states that with the popularity of internet coverage, the media is going to need to step up its own coverage of the courts. If not, "the courts — not usually viewed as cutting-edge in terms of technology — might find their own ways of bypassing the media and communicating directly with the public." Mauro also promises more posts on this topic.

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Texas Death Row Inmate Gets Execution Postponed: AP writer, Schuyler Dixon, reports that the Texas Court of Criminal Appeals postponed Charles Dean Hood's execution, scheduled for Wednesday, because it wanted to reconsider whether the jury instructions were flawed. Hood is a former bouncer at a topless club who was 20 when he was arrested in Indiana for the fatal shootings of Tracie Lynn Wallace, 26, an ex-dancer, and her boyfriend, Ronald Williamson, 46, at Williamson's home in Plano in 1989. The lawyers of the death row inmate argued that a secret romantic relationship between retired judge Verla Sue Holland and former Collin County District Attorney Tom O'Connel tainted his trial. In an earlier ruling the Austin-based appeals court dismissed claims by Hood's attorneys citing procedural reasons for the rejection. But on Tuesday the Court said it would be "prudent to reconsider the decision we issued" in previously dismissing Hood's appeal that challenged jury instructions.

NYC Emergency Hot Lines Accepting Photos, Videos: According to a story from CBS online news, Mayor Michael Bloomberg announced that photos and video can now be transmitted to the hotline. Operators will notify the NYPD when callers have cell phone images of accidents or crimes. Callers with a cell phone video or photo of a crime also can notify the emergency operator, and a detective will call back to receive the images. Police Commissioner Raymond Kelly said major improvements to technology within the department in the past six years have helped reduced crime, which is down more than 3 percent so far this year. While hundreds of cities around the country accept text messages to emergency hot lines, New York is believed to be the first with the capability to accept images, which may be used as evidence when prosecuting criminals, officials said.

Students Can Send Text Message Tips To Cops: CBS journalists, Rosalind Rossi and Frank Main, report that students who see a gun or overhear plans about an after-school fight can now tip off authorities by anonymously text-messaging police under a program announced Monday involving 10 Chicago public high schools. Crime Stoppers of Cook County is even offering rewards to tipsters whose information produces arrests. For murder cases, that can involve up to $1,000. "Practically every student these days has a cell phone. Students are texting each other messages faster than they can dial a number,'' Police Supt. Jody Weis said in announcing the pilot program with Chicago Public Schools CEO Arne Duncan.

Sex Offender Sent To Prison After Violating Probation Within 40 Minutes: A news story from the Poughkeepsie Journal reports that a convicted sex offender who violated the terms of probation less than an hour after he left the courtroom in July received 1 1/2 to five years prison sentence today. Walter Freeman, 72, of Lent Street, City of Poughkeepsie, had been placed on probation July 15 after he admitted he had failed to notify police he had changed his address, as required by state law for most sex offenders. Freeman acknowledged last month he had violated the terms of his probation by approaching two children in a bank in Poughkeepsie and offering to buy them ice cream. The incident occurred about 40 minutes after Freeman had been placed on probation. Under the terms of his probation, Freeman was prohibited from having any contact with children.

Ohio's New Self-Defense Law

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Yesterday, Cleveland's Plain Dealer Politics Blog had this post from Reginald Fields. The post discusses SB184, Ohio's new "Castle Doctrine" law. The law creates a rebuttable presumption that person acts in self-defense when he uses force against someone who has entered his home or car unlawfully or without permission. The bill was signed into law in June, but went into effect yesterday.

Ohio's new law requires prosecutors and police officers to prove that a homeowner, or vehicle occupant, did not act in self-defense. According to the post, some Ohio prosecutors are against this new rule. These prosecutors view the law as a legal cover for individuals who did not actually act in self-defense -for example, a drug dealer who shot a customer when the deal "went bad." This Bill Summary, posted at the Buckeye Firearms Association, claims that isn't entirely correct. The summary states a prosecutor will still be able to rebut the presumption of innocence in cases where there is evidence of illegal activity, or evidence of domestic violence.

But wait, there's more...

Is Crime Off the Voters' Radar?

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We haven't heard much about crime in the present election campaign. Does that means it's off the voters' radar screen? Maybe. In this WaPo/ABC survey, voters are asked what is the single most important issue (question 5), and crime isn't on the list of 18 issues mentioned. Wait a minute. At the bottom are three more categories: "none/nothing," "other," and "no opinion." The "duh" vote gets 6%, but 11% are lumped into "other." That makes me wonder if there is a least a single-digit percentage of people focused on crime who are hidden in that group. In addition, there may be many people who don't consider crime to be the number one issue but who might consider the issue a tie-breaker if they have mixed views of the candidates on other issues.

The economy is the number one issue by a wide margin, but the voters collectively aren't too sure who is better on that issue (see question 7), and a good many swing voters may be individually unsure on the point. The war in Iraq is diminishing in importance in the voters' view, and the next president may well just complete the already-planned withdrawal whatever his views on the past controversies.

Ideally, of course, crime should be primarily a state and local issue and not a big concern in the federal races. Our government does not conform to that ideal, though, and it matters a great deal who will be appointing federal judges for the next four (and probably eight) years. Whatever differences we may have with President Bush on other issues, he hit two home-runs in two at-bats on Supreme Court appointments, a better average than any other president in living memory. For other federal courts as well, his appointments have made a huge difference. The Ninth Circuit is still a problem, but it is far better than it was. In the Midwest, the court formerly known as the Ninth-upside-down actually has a thin majority of persons of sense now, the reverse of the previous situation.

The difference between the candidates on judicial appointments is stark. We have previously noted them here and here. Let's hope this important issue gets more attention before the election.

Update: WaPo political blogger Chris "The Fix" Cillizza has an updated electoral vote prediction map in this post. He comes up with Obama 289, McCain 249, but only after an agonizingly close call on Ohio. Flip Ohio's 20 votes and it comes out to a dead heat: 269-269. So, Ohioans, do you want the Sixth Circuit to go back to the way it was?

News Scan

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Wales Has The Third Highest Rate Of Violent Crime In The World, according to a story written by David James from the Western Mail. Alcohol-fuelled fights in Welsh towns and city centres has been a primary cause. Only England and Northern Ireland have recorded higher levels of violent crime, according to a report compiled by Welsh Assembly Government statistician. There were 1,950 incidents of violent crime recorded in Wales per 100,000 people, compared to 2,200 and 2,000 in England and Northern Ireland, respectively. The only other three countries that recorded more than 1,000 incidents are Austria, New Zealand and Sweden. The international crime comparison figures also revealed the murder rate in Wales was just over 10 per 100,000 people, slightly below England, and half the level in Scotland. Lithuania topped the table with nearly 90 murders per 100,000 people.

Study Finds Returning Deported Illegal Immigrants Commit More Crimes: Anna Gorman from LA Times reports that illegal immigrants who have been deported at least once from the United States are far more likely than other immigrants to repeatedly commit crimes, according to a study by the nonprofit Rand Corp. Overall, however, illegal immigrants were not a greater crime risk, according to the study, which looked at all inmates released from Los Angeles County Jail for a month in 2002. But among those who previously had been deported, reentered the U.S. and were arrested and released from jail, nearly 75% went on to commit another crime within a year. And 28% were arrested three or more times during the one-year period. The recidivism rate was much lower for illegal immigrants who had not been previously deported, with 32% of those inmates being rearrested within a year and 7% arrested three or more times during that year.

Washington County Sheriff's Department Emphasizes Crime-Education Link Study: According to a story written by Diana Graettinger from the Bangor Daily News, Sheriff Donnie Smith said "high school dropouts are more likely to turn to crime." A recent report released by "Fight Crime: Invest in Kids" shows that high school dropouts are 3 1/2 times more likely than high school graduates to be arrested, and more than eight times more likely to be incarcerated. Nationwide, 68 percent of state prison inmates have not received a high school diploma. This also holds true in the Washington County Jail, Smith said. A study by two prominent economists found that a 10 percent increase in graduation rates would reduce murder and assault rates by about 20 percent. This prevents more than 20 murders and more than 900 aggravated assaults in Maine every five years, the sheriff says.

Death Penalty - Pros And Cons Debated By 200 Experts At ProCon.org: An article from the MarketWatch states that today ProCon.org announces its newest nonpartisan website, deathpenalty.procon.org, to help Americans decide whether or not to abolish the death penalty. The website lists 25 important questions related to the death penalty and presents answers to those questions from over 200 diverse experts including sociologists, law enforcement officials, religious leaders, legal scholars, activists, academics, government agencies, and even a few convicted criminals. Sources range from Barack Obama to John McCain, from the American Bar Association to the U.S. Department of Justice, and from the Dalai Lama to Eliot Spitzer. Also provided are all federal and state capital laws, execution statistics, a glossary, a reader comments page, and more research in development. No site like deathpenalty.procon.org had previously been created to simultaneously help legislators, policy makers, clergy, students, and the general public inform themselves about the death penalty in a nonpartisan pro-con manner.

Mother Convicted In Kids' Drownings Free On Parole: An AP story reports a woman convicted in the drowning deaths of her three children who has been released on parole after serving part of a 10-year sentence. Illinois Department of Corrections spokesman Derek Schnapp says Amanda Hamm left the Dwight Correctional Center Tuesday morning. Hamm was convicted of child endangerment in 2006 in the deaths of 6-year-old Christopher Hamm, 3-year-old Austin Brown and 23-month-old Kyleigh Hamm. Hamm's boyfriend, Maurice LaGrone Jr., is serving a life sentence after being convicted of first-degree murder. Prosecutors say Hamm and LaGrone planned the drownings at the lake near their home in Clinton because the children were in the way of their relationship.

New Briefing on Capital Child Rape Case

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The U.S. Supreme Court has asked for additional briefing on the rehearing petition in the capital child rape case decided in June, Kennedy v. Louisiana. This is most unusual. Rehearing petitions in cases decided after full briefing and argument are usually exercises in futility. But this is an unusual case. Jess Bravin has this story in the WSJ. Lyle Denniston has this post at SCOTUSblog.

I expect that after the supplemental briefing we will see an order denying rehearing and explaining that the previously overlooked military statute does not change the Court's conclusion as to the Louisiana law. It will be interesting to see what they say about whether their decision applies to the military. As noted earlier on this blog, the Court has never expressly said whether the whole Furman line, of which Kennedy is a part, applies to the military at all.

Here are the criminal and related cases for the October, November, and December calendars of the U.S. Supreme Court. The link in the case number for each case is to the docket, which in turn has a link to the "question presented" page. Note that in most cases the question presented is drafted by the attorney for the party who lost in the lower court, not by the Supreme Court, and the QP is often phrased in a slanted way.

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U.S. Sentencing Panel to Focus On Alternatives to Jail: According to a story written by Gary Fields from the Wall Street Journal, the U.S. sentencing panel plans to focus on developing alternatives to incarceration, setting up a possible clash with the Justice Department. It is not clear exactly what the panel might recommend. However, possible recommendations include drug courts. Justice Department spokeswoman Laura Sweeney said the department is hopeful about the alternatives but believe there should be rigorous research showing their effectiveness in promoting public safety before expanding them. More than two million people are in prison in the U.S., including more than 200,000 in the federal system. The panel and Congress have been inching toward a move in recent years.

Judicial Nominations At A Slower Rate: An editorial in the Wall Street Journal Review and Outlook, points out that the Democrats on the Senate Judiciary Committee are responsible for the slowest rates for judicial confirmations in modern times. Since the beginning of the year, the Senate has confirmed a total of four nominees to the federal circuit courts. According to the Committee for Justice, the average number of days from nomination to confirmation for circuit court nominees has risen to 348 days during the Bush Administration from an average of 238 days under President Clinton. In President Clinton's final two years of office, a Republican Senate confirmed 15 circuit court judges and 57 district court judges. To match that record, Senate Democrats will need to confirm five more circuit court nominees and nine more district court nominees when they return for a session that will only last a few weeks.

New Jersey Lawmaker Wants Sex Offenders To Register E-Mail: Associated Press writer Angela Santi reports that New Jersey sex offenders would be required to divulge their personal e-mail addresses and share their passwords as well, under a proposal sponsored by a New Jersey lawmaker. The current proposal would require anyone under Megan's Law restrictions to register their e-mail addresses and passwords. It also would require offenders to notify the state of any e-mail address changes 10 days before sending or receiving electronic correspondence, and would subject sex offenders under supervision to periodic, unannounced examinations of their computers. The maximum penalty for those who don't comply would be up to 18 months in jail and a fine of up to $10,000. The bill has been referred to the Assembly Judiciary Committee.

George Banks, who murdered 13 people including five of his own children during a 1982 killing spree, has been declared too mentally unstable for execution, according to this AP story from today's Washington Post. Pennsylvania judge Michael Conahan announced his ruling today. Banks, who was unsuccessful in persuading the Supreme Court to overturn his conviction in 2004 (decision here), has had some success in delaying it in Judge Conahan's court before. Pennsylvania's high court found a flaw in that ruling and directed the judge to rehear Banks' claim.

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No Action in Kennedy v. Louisiana: Lyle Denniston at SCOTUSblog reports that while the Supreme Court issued its final round of summer recess orders today, there was "no action announced" on whether it would reconsider Kennedy v. Louisiana. The State of Louisiana had asked the Court to consider the effect, if any, of the Court's failure to address the federal military law that allows the death sentence for child rape. The Justice Department then asked the Court to allow it to join Louisiana in its plea for rehearing. Today's orders did not mention either request.

More On Today's Orders: Tony Mauro at The BLT has this post on the Supreme Court's decision to deny the SG's request for time to argue in Locke v. Karass. The case will address the dispute over the use of mandatory union dues. According to Mauro, the Justice Department had filed a brief supporting neither side in the case and had requested a total of 10 minutes, 5 minutes for each side, during oral argument. The Supreme Court denied the request without explanation.

Executions Next Week in Texas: Grits for Breakfast has a post on the two executions scheduled next week in Texas. In his post, Scott Henson wonders if either will go through. The first execution, of Gregory Wright, has been reported to be postponed, to allow testing of DNA evidence. The second, of Charles Dean Hood, may not occur because of allegations that the trial judge and the prosecutor were having an affair during his trial. As Kent noted this morning, the Texas AG has supported inquiry into whether the alleged affair took place.

Third Circuit Rules on Searches of Cruise Ship Cabins:
Orin Kerr, at Volokh Conspiracy, posted today on a Third Circuit decision that held the search of a cruise ship cabin requires reasonable suspicion. The decision, United States v. Whitted, addressed "whether the Fourth Amendment requires any level of suspicion to justify a border search of a passenger cabin aboard a cruise liner arriving in the United States from a foreign port." The Third Circuit ruled yesterday that it does. The case involved the search of a cruise ship cabin that had been docked in St. Maarten and then in St. Thomas. After the ship was docked in St. Thomas, United States Customs and Border Protection boarded the boat and searched the cabins of suspects the officers had reason to believe were bringing narcotics into the United States. The defendant wasn't present when the officers searched her room. They uncovered heroin stuffed in perfume and shaving containers. The Fourth Amendment issue in this case is interesting because it treats the search of a cruise ship cabin as a non-routine border search, which requires reasonable suspicion, instead of a routine border search, which does not. As Kerr notes, "[s]o far, the only kinds of searches that courts have found to be non-routine searches are invasive searches of the person." Kerr's post notes the "fish[iness]" of this decision in light of precedent, and then addresses how narrow the decision really is. Once the same suspects disembark at the border those perfume bottles and shaving containers can be searched without suspicion.

Former Virginia ACLU President Disbarred:
Yesterday, the BLT had this post on the D.C. Court of Appeals decision to disbar former VA ACLU President Charles Rust-Tierney. On July 1, 2007, Rust-Tierney pleaded guilty to charges of receiving child pornography through his home computer. He was sentenced to serve seven years in federal prison in September 2007. Apparently Rust-Tierney consented to disbarment. That means the details of the ethical violations filed against him by the Board on Professional Responsibility remain sealed.

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A California ballot measure that purports to help drug offenders is being opposed by virtually every law enforcement organization in the state. Proposition 5, The Nonviolent Offender Rehabilitation Act of 2008 (NORA) allows drug users arrested for "non-violent" felonies including domestic violence, child abuse, commercial burglary, identity theft, vehicular manslaughter, grand theft, and drug dealing, to be diverted to a community treatment program rather than face prosecution and punishment. The measure effectively eliminates drug courts and allows defendants to commit up to four of these felonies before actually being held accountable by the criminal justice system. In a column in today's Sacramento Bee, actor Martin Sheen explains why he is opposed to NORA.

Prisons Scramble To Get Digital TV Switch: AP writer, Jim Davenport, reports a story of prisoners across the nation scrambling to keep broadcast television - said to be one of the most important peacekeeping tools in prisons. The switch from analog to digital broadcast television, mandated by the Congress, will affect all analog televisions. Broadcast stations in all U.S. markets are currently broadcasting in both analog and digital. However, after February 17, 2009, full-power television stations will broadcast in digital only and all analog televisions will need a digital-to-analog converter box to continue to watch broadcast television on that set. Prison officials are concerned about the prisoners because they don't quality for the $40 coupons prepared by the TV industry to purchase digital-to-analog converter boxes. While TV might seem like an undeserved luxury for inmates, prison officials say it provides a sense of normalcy and is a bargaining chip that encourages good behavior. Many states are now scrambling to get the converter boxes by asking for donations and buying the converters themselves.

Child's Murder Revives Capital Punishment Debate In Latvia:
A story, written by a staff member from the Earth Times online newspaper, reports that the murder of a young girl has sparked a debate over the re-introduction of the death penalty in Latvia. Eleven-year old Daina was found with her throat cut in bed in the town of Bauska. Her father, Ivars Grantins, confessed to the killing after emerging from hiding three days after the August 27 attack. Latvia abolished the death penalty in 1996 in order to meet a requirement for joining the European Union in 2004. However, Justice Minister Gaidis Berzins told Latvian national radio this week that situations like this "require renewed debate on the suitability of not having capital punishment."

No Death Penalty For 1,000-Pound Woman: According to a news story by the KGBT-TV Channel 4, The Hidalgo County, Texas, District Attorney's Office will not seek the death penalty against a 1,000-pound woman charged with beating her 2-year-old nephew to death. Mayra Rosales was scheduled for arraignment on Thursday but her lawyers scheduled her doctor to testify instead. Dr. Jetta Brown is expected to tell the judge that Rosales is immobile and moving her is dangerous to her health. A judge agreed to postpone the hearing until Monday. Prosecutors told the court that they do not intend to seek the death penalty against the half-ton woman. As of Thursday evening, she was not in custody. Rosales' defense attorney Sergio J. Sanchez said his client is currently under house arrest and not a flight risk. The boy's mother Jamie Lee Rosales was charged earlier with injury to a child because she allegedly left her son alone with his aunt.

Violation Sends Convicted Sex Offender Back To Prison: A story from the DelcoTimes, written by Marlene DiGiacomo, reports that a convicted sex offender violated his parole when the probation officers discovered a youngster in the defendant's home. He had told a judge he didn't know a youngster was visiting with his grandparents. David John Evans, 50, is not to be in the company of a minor unless certain conditions are met. Judge Chad Kenney Thursday found the defendant in violation and resentenced Evans to serve 22 months to five years back time to be followed by a consecutive five years of probation. Evans was found guilty in 2005 of charges including statutory sexual assault on a teenage girl. He was also found to fit the criteria of a sexually violent predator following a state-mandated evaluation and was described as having a "high risk to reoffend," according to a court document. Defense Attorney Andrew Edelberg charged that Evans is being singled out as "an example" by probation officials.

Union: Corrections Covering Up Assaults On Staff: According to a story from the 3 News Channel, the union that looks after prison officers says the Department of Corrections of New Zealand is covering up to make prisons look safer. The Corrections Association president Beven Hanlon says the Department of Corrections are manipulating the statistics to mask its failure to keep staff safe as the dangers increase. On the contrary, the Corrections say prison safety is improving, its statistics are correct, and serious assaults on wardens are declining. The Minister of Corrections says improvements to warden and prison safety are being considered, however, there is no timeline in place for the improvements, which could include stab-proof vests. The Corrections Association says that is not good enough.

From an article by Diane Jennings in the Dallas Morning News:

The Texas attorney general's office on Thursday took the unusual step of joining the defense in saying that death row inmate Charles Dean Hood should not die until after an investigation into an alleged romantic relationship at the time of his trial between the prosecutor and judge.

Although noting that the facts of the murders of Ronald Williamson and Tracie Lynn Wallace are not in question, Attorney General Greg Abbott wrote in a letter to Collin County District Attorney John Roach, "The impartiality of a defendant's trial and conviction must be beyond reproach."

The letter said that the attorney general's office would file a legal brief today asking that the trial court fully review the matter, even if it means delaying the execution.

"Because of the unique nature of the issues in this matter – and to protect the integrity of the Texas legal system – we will ask the court to thoroughly review the defendant's claims before the execution proceeds," the letter said.

Update: The letter is here, courtesy of the Texas AG's office.

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Supreme Court to Review Cert. Petition on "Victim Impact Evidence": Over the weekend, Ben Winograd at SCOTUSblog put up this post on Kelly v. California (07-11073), a capital case the Supreme Court will examine during its opening conference at the end of September. The Petitioner, Douglas Oliver Kelly, has asked the Court to review whether the Constitution places limits on how victim impact evidence may be admitted during the penalty phase. In 1991, Payne v. Tennessee held that the Eighth Amendment did not bar the introduction of "victim impact evidence" at the penalty phase of trial. However, the Court did suggest evidence "so unduly prejudicial that it renders the trial fundamentally unfair" would not be admissible. In Kelly's case, he is contesting the introduction of nearly a twenty minute photo montage set to music, of his victim, a 19-year-old he stabbed 29 times with a pair of scissors. The trial court allowed the tape, and the decision was upheld by the California Supreme Court. Kelly contends Payne did not envision this type of evidence. California's Brief in Opposition argues that no genuine conflict exists on the admissibility of victim impact evidence presented on videotape. Winograd notes the Court will consider the petition on September 29th, and we could have a decision on whether it hears the case the next day.

Demonstrations in St. Paul

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The WSJ has this article by T. W. Farnam on "demonstrations" aimed at the Republican National Convention in St. Paul. Although I didn't think so at first, on reflection I believe that "demonstration" is the correct word. These people have demonstrated that they think they have the right to interfere with and violate other people's rights. They have demonstrated that America needs strong law enforcement. They have demonstrated that we need a President who will appoint judges who will back up the police when they need to use force, not wring their hands over injuries to people whose intentional violations of the rights of others are the root cause of their own complaints. Here are some excerpts.

Demonstrations this week have been the most violent at a national party convention in recent memory, with protesters smashing windows, slashing tires, throwing bags of urine and excrement and physically confronting Republican delegates in the streets.
* * *
Police have responded to some of the demonstrations with pepper spray, tear gas, smoke canisters and what they called "distraction devices" that give a loud bang and a flash of light, said Doug Holtz, a commander with the St. Paul Police Department.
* * *
Monday, protesters blocked members of the Connecticut delegation from proceeding to the convention, said Heath Fahle, executive director of the state party. The demonstrators spat on the delegates and squirted bleach on at least six of them. "There are some people out there that only care about being disruptive," Mr. Fahle said.
* * *
"I think it really exposes that we live in a police state," said a woman who gave her name as Loaf Owls, her age as 20 years old, and said she was a professional clown. "Someone at the march said yesterday that anarchists are protectors of the people, and that pretty much sums up why I'm here."
"We'll protest the grass being green," shouted Robert Wilson, 45, who said he is homeless. "I love protesting. My favorite cologne is pepper spray."

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Detroit Mayor Pleads Guilty And Agrees To Resign: According to a story in today's New York Times by Susan Saulny, the mayor of Detroit, Kwame M. Kilpatrick, 38, has pleaded guilty and agreed to resign this morning after months of refusal as part of a deal with prosecutors. He agreed to plead guilty to two felony counts of obstruction of justice and no contest to a felony count of assault on a police officer; to pay restitution to the city of $1 million; to surrender his law license; forfeit his state pension to the city and be barred from elective office for five years; and to serve 120 days in the Wayne County jail, followed by five years’ probation.

Ohio Mom Spared Death Penalty After Microwaving Baby: A story, by James Hannah from the Associated Press, reports that China Arnold, convicted of murdering her infant daughter by microwaving her, was spared from the death penalty Wednesday when a jury couldn't reach a unanimous decision. Ohio law provides for a life sentence, rather than retrying the penalty phase, when the jury cannot agree. The defense had argued that Arnold was drunk when the offense occurred and had no motive, while prosecutors had called the crime "heinous" as they argued for the death penalty. Montgomery County Judge Mary Wiseman is now limited to sentencing Arnold to life in prison without parole, life without parole for at least 30 years, or life without parole for at least 25 years. The sentence will be announced on Monday. Assistant Prosecutor David Franceschelli said: "If this is not the time for the death penalty, when is the time?" It's time to scrap the single-juror-veto rule.

Principal Pleads No Contest To Not Reporting Sex: A South Gate principal has pleaded no contest to charges of failing to report a sexual encounter between a student and a substitute teacher, according to a story from The Associated Press. While the incident occurred in March 2007, authorities say the two administrators learned about it seven months later. The Los Angeles County District Attorney's Office says 35-year-old Jesus Angulo, principal of South East High School, entered the plea Wednesday to one misdemeanor count of failure to report child abuse. Angulo was sentenced to two years of probation and 100 hours of community service. The school's assistant principal Maria Sotomayor faces a similar charge and is due to appear in court Sept. 9. The teacher, Jesus Saenz, was fired and faces a felony charge.

Guilty Plea In Bomb Plot That Killed Pizza Man: A story by AP writer Ramit Plushnick-Masti reports that Kenneth Barnes, 54, admitted in federal court Wednesday that he helped plot a bizarre bank robbery that ended when a bomb strapped around a pizza deliveryman's neck exploded and killed him. This is the first conviction in the 5-year-old case. Barnes pleaded guilty to conspiracy and a charge of aiding and abetting at a hearing in which prosecutors also revealed new details, based on a statement by Barnes, about deliveryman Brian Wells' involvement in the scheme. According to Barnes, Wells got cold feet on the day of the robbery, refusing to put on the collar bomb after realizing it was real. Another plotter then fired a single shot from a gun, scaring him into putting it around his neck. Barnes could be sentenced to life in prison. Wells walked into a PNC Bank on the outskirts of Erie on Aug. 28, 2003, with a pipe bomb locked onto his neck and left with about $8,700. He was cornered by police a short time later and told officers the bomb had been put on his neck at gunpoint. It exploded, killing him, as police waited for a bomb squad to arrive.

Orders List Tomorrow

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The U.S. Supreme Court will issue the third and last of its summer orders lists tomorrow. The Court's press release last June noted, "Summer order lists usually consist of actions taken by the Court on motions in pending cases, petitions for rehearing, and other miscellaneous matters." Translation: they're generally boring. Everybody's watching the petition for rehearing in the child rape case of Kennedy v. Louisiana (opinion here, docket here), but it probably won't be on tomorrow's orders list. The docket does not indicate a response to the petition has been filed yet.

Update, Friday: The list is here. As expected, no action on Kennedy and a bunch of routine stuff. The one surprise is that the Solicitor General actually got turned down on a request to argue as amicus. It's in a use-of-union-dues case, Locke v. Karass. Lyle Denniston has this post at SCOTUSblog.

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Illegal Immigration: The ACLU has filed a lawsuit to block an executive order by the Governor of Rhode Island cracking down on illegal immigrants. A story by AP writer Ray Henry reports that Governor Carcieri has ordered employers doing business with the state to check the immigration status of new hires, and police and prison officials to check the status of arrestees and inmates for possible deportation. The lawsuit claims that the crackdown could encourage employers to discriminate against workers who appear foreign.

Summer Homicides in LA have dropped to a level not seen since 1967 according to this Los Angeles Times story by Joel Rubin. From June to August, there were 84 homicides reported in LA compared with roughly 125 killings reported each summer over the past decade. For the year, homicides are down 8.5% to date. Police Chief William Bratton attributes the decline to his department's aggressive anti-gang program and the hiring of hundreds of additional officers.

Virginia's DNA Database has generated 5,000 cold hits and become a national model according to this story by Scott Shenk in the Charlottesville Daily Progress. Albermarle Sheriff J.E. Chip Harding, who pushed through legislation last year that added 11,000 new profiles to the data base, wants to include felons going back to 1990, which could add 30,000 more. The Virginia ACLU is opposed, arguing that adding the new profiles undermines the privacy rights of felons.

Dress Codes and State Action

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The Ninth Circuit en banc today decided Villegas v. Gilroy Garlic Festival, No. 05-15725:

We must decide whether guests at the Gilroy Garlic Festival can hold the City of Gilroy in California and the Gilroy Garlic Festival Association liable in a civil rights action when they are escorted from the event by a City police officer for violating the Festival’s dress code.

The dress code was a prohibition of “gang colors or other demonstrative insignia, including motorcycle club insignia,” deemed to be violated by the Top Hatters' “image of a skull with wings and a top hat.”

The answer to the question posed above is no, because (1) the Gilroy Garlic Festival Association is a private entity, not a state actor, and they can have a dress code if they like, and (2) the city did not violate the Constitution by having one of its police officers escort people off the grounds, thereby enforcing a private entity's right to have its dress code.

Fortunately, the Garlic case does not involve the overbreath doctrine.

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2007 Federal Criminal Caseload Statistics: Hattip to Doug Berman at Sentencing Law and Policy for his post and link to data statistics on the federal criminal prosecutions in district courts over various years. Berman notes that federal bank robbery prosecutions have declined nearly 15%, while federal traffic offense prosecutions have increased "more than 20%." Federal prosecutions of sex offenders have also increased in recent years. The data shows that the federal government filed 1,885 claims for sex offenses in 2006. By the end of 2007, the federal government had filed 2,460 claims.

Probable Cause When Executing An Arrest Warrant:
Yesterday, Jonathan Adler put up a post at Volokh Conspiracy discussing the Sixth Circuit's decision in U.S. v. Hardin. The decision, filed August 25th, addressed whether police officers could enter a home to execute an arrest warrant if they had "reason to believe" the suspect was inside, or if probable cause was required to enter. Adler comments that while the U.S. Supreme Court appeared to resolve this question in Payton v. New York (1980), a two judge majority found the issue to be an "open question" in the Sixth Circuit. According to the majority in Hardin, "the officers’ knowledge was insufficient under either standard..." therefore, suppression of the evidence seized during the entrance was required. The dissent found circuit precedent to be consistent with Payton v. New York, in requiring a "lesser reasonable belief standard" to enter the home in order to execute an arrest warrant.

Doc Dumps at SCOTUS: Ben Winograd at SCOTUSblog has this practice pointer post on "lodging" of nonrecord materials at the Supreme Court.

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Australia's Approach to Serial Child Sex Offenders: A serial sex offender already jailed indefinitely for previous sexual crimes, has been sentenced to another 12 months' imprisonment according to a story written by Christine Flatley from The Australian. In the District Court in Brisbane, 66-year-old Keith Albert Beattie pleaded guilty today to the indecent treatment and unlawful sodomy of a 15-year-old boy in Brisbane between November 1995 and February 1996. The court was told the charges against Beattie were made after the complaintant saw him in the prison system last year. Beattie has been in jail since July 1996 for child sex offenses and today marked his ninth appearance before a court for sexual offences against a minor. Judge Michael Shanahan today sentenced Beattie to an additional 12 months jail for the latest offenses.

Death Penalty Upheld for Killer In Hate Crime: A story, written by Mike Anton from The Los Angeles Times reports that the California Supreme Court upheld the conviction and death sentence of Gunner Lindberg. Lindberg, 33, was convicted in the 1996 slaying of Thien Minh Ly, 24, who was stabbed more than 50 times and had his throat slashed. Lindberg was convicted in Orange County Superior Court of first-degree murder with a special circumstance that the crime was based on the victim's race and is the first person in the state condemned to die for a racially motivated murder. Ly, who was a graduate of UCLA and Georgetown University wanted to become the United States ambassador to Vietnam.

Bay Area Robberies Indicate A National Trend: According to a story from today's San Francisco Chronicle, written by Erin McCormick, the bay area robberies follow a national surge. The Chronicle examined location records in San Francisco and Oakland since 2004, as well as statistics for other Bay Area cities, and found that robberies spiked in the region, going from 11,264 a year to 15,698. "More than 40 robberies occur everyday in the Bay Area," states the article. Furthermore, the steep national economic downturn of 2007 and 2008 indicates a crime increase, according to University Missouri-St. Louis criminologists Richard Rosenfeld and Brian Oliver. Local communities are warned of a new crime increase in the years ahead.