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Roads Not Taken

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Also out today are two opinions dissenting from denial of certiorari. In Marlowe v. United States, Justice Scalia dissents from the Court's refusal to examine the sentence of a prison guard convicted of violating the civil rights of a prisoner by denying medical care, resulting in the prisoner's death. "I would grant the petition for certiorari, so that we may either forthrightly apply Booker or announce that the case is overruled." No excess of subtlety here.

Chief Justice Roberts gives us his impression of a detective novel writer, not in Marlowe, alas, but in Pennsylvania v. Dunlap. Penn. Supreme confused probable cause with proof in this Fourth Amendment case, he believes. "But as Judge Friendly has pointed out, '[j]udges are not required to exhibit a naiveté from which ordinary citizens are free.'" Justice Kennedy agrees.

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Scalia's subtlety is warranted. Basically mens rea got upped by a judge and created a life sentence. Whatever one thinks of the outcome in Apprendi and its progeny, this sentence is problematic. Perhaps the Court could spend a bit more time on cases like this, instead of flyspecking capital cases where innocence is not an issue.

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