January 2009 Archives

Exclusionary Rule: Adam Liptak has a story in today's New York Times on the question of whether the recent Supreme Court decision in Herring v. United States signals a change in direction on the exclusionary rule and possibly even an overruling of Mapp v. Ohio. The story quotes Kent Scheidegger's January 14 post on the question.

Solicitor General:  Tony Mauro has this story in Legal Times on implications of the change in administration for the Solicitor General's office. He notes that in Arizona v. Johnson, discussed here, the SG took a bolder position on police officers' frisk authority than that office had previously taken. The new SG may be less assertive or may just stay out of state criminal cases.

"I think we might not see the new solicitor general asking for argument time in a case like Arizona's," says Lauren Altdoerffer, a lawyer with the law enforcement-oriented Criminal Justice Legal Foundation, which filed a brief on Arizona's side.

"NIJ is interested in stimulating a scientifically rigorous body of research on the topic of wrongful convictions, specifically focusing on the 200-plus cases of exonerations based on post-conviction DNA examinations, and comparisons of DNA-based and non-DNA-based exonerations. Thus far, there have been over 200 cases of post-conviction DNA exonerations in the United States identified by media and interested organizations; however, there has been little social-science-based research on this topic. This solicitation is intended to support a more expansive and empirical examination of wrongful convictions than currently exists. In particular, this solicitation seeks to fund research on post-conviction DNA exonerations in the investigation, trial, and post-conviction stages of the criminal justice process as well as a comparison to non-DNA exonerations. Proposals should seek to optimize the extent of the data that can be collected in each of these three stages. A strong preference will be given to proposals for the collection and analysis of data in all three of these stages."

In Cunningham v. California, 549 U.S. 270 (2007), the U.S. Supreme Court decided that the California Legislature violated the Sixth Amendment by requiring that an aggravating fact be found before a felon could be sentenced to the upper of three possible terms for a felony, without also requiring that the fact be found by the jury. (The Legislature responded by eliminating the fact requirement altogether.) The Cunningham decision was based on the precedent of Blakely v. Washington, 542 U.S. 296 (2004).

Under the rules of Griffith v. Kentucky, 479 U.S. 314 (1987) and Teague v. Lane, 489 U.S. 288 (1989), new rules created by the Supreme Court apply to cases then pending on direct appeal, but they do not apply in subsequent habeas corpus petitions when the direct appeal was already final on the date the rule was created.

So what is the status of cases that become final on direct appeal between Blakely and Cunningham? Was Cunningham a new rule or just an application of Blakely? Monday at 10:00 PST, the California Supreme Court will announce its decision in In re Sotero Gomez, S155425.

Probable Cause to Conduct Thermal Search in the Eighth Circuit: At Volokh Conspiracy, Orin Kerr discusses the en banc opinion of the Eighth Circuit in United States v. Kattaria.  Kerr criticized the panel decision in October of 2007, which held the police only needed reasonable suspicion to obtain a "warrant" to conduct thermal imaging monitoring of a home.  Kerr reports that the en banc decision allows the evidence without reaching the reasonable suspicion issue.  In his post Kerr takes issue with Judge Loken's concurrence in the decision.  Kerr does not like Loken's assertion that a warrant can be based on "enough particularized suspicion to justify the minimal intrusion caused by the exterior thermal imaging of heat emissions, without regard to whether there is probable cause to issue a warrant to conduct a full physical search."  Kerr believes this is too far removed from the requirement that probable cause to issue a warrant to conduct a full physical search means there is probable cause to believe that a full physical search would provide the evidence described in the warrant.
 
Kansas v. Ventris Oral Argument Summary:  At SCOTUSblog Scott Noveck, a Stanford Student, provides a recap of January 21st's oral argument in Kansas v. Ventris.  The question before the U.S. Supreme Court in Ventris is whether the Sixth Amendment prevents a confession to a jailhouse informant from coming in for impeachment purposes.  Noveck's summary indicates that Justice Ginsburg was concerned with whether  police could have a cellmate "affirmatively elicit" statements from the defendant, or if the police may only listen for information without actively soliciting it.  Kansas Solicitor General Stephen R. McCallister correctly responded that cellmates can listen, but cannot "affirmatively elicit." (Our amicus brief for Kansas v. Ventris discusses this issue and can be found here.)   Assistant to the Solicitor General Nicole A. Saharsky then took the podium to face questions from the Chief Justice on whether exclusion would truly achieve any meaningful deterrence. Assistant appellate defender Matthew J. Edge was also questioned by Chief Justice Roberts on this issue.  He argued that permitting the use of uncounseled statements, even just for impeachment, would fail to offer any deterrence against the constitutional violation at issue here.  The transcripts of the argument is available here.   

Tony Mauro at BLT and Lyle Denniston at SCOTUSblog have posts on the certiorari petition in "Cuban 5" case. The petitioners are represented by SCOTUSblog's Tom Goldstein. The petition says:

The common elements to every charge against petitioners were that each was an agent of the Castro government and that each had attempted to infiltrate organizations dedicated to overthrowing that government, actions that were tied to the deaths of four civilians. Petitioners argued that they could not receive a fair trial in Miami because of the uniquely pervasive and severe anti-Castro hostility in that community....

If pervasive and severe political hostility in the jurisdiction entitles the defendant to a change of venue, then no Republican official can ever be tried in the District of Columbia. Perhaps Scooter Libby should file an amicus brief.

There is also a Batson issue.

Death Row inmate assists in discovery of victim's body: Jeffery Collins of the Associated Press reports that Chadrick Fulks, an inmate on death row, replied to a letter written by Monica Caison, founder of Community United Effort- Center of Missing Persons. Alice Donovan, a 44-year old mother of two, went missing in 2002 and Fulks was convicted of murdering her. Caison received "a map, color photos of the area he says he left Donovan's body six years earlier, and instructions to look where searchers had not looked before." Upon following instructions, "after seven hours of searching, dozens of volunteers and four dogs, bones were found in thick brush and thorns 150 feet from a dirt road on the North Carolina line." DNA tests for positive ID are pending. Fulks' lawyer is hoping "prosecutors will rescind the death penalty," but the aggravating circumstance, such as Fulks' escape from jail, carjacking, additional homicide, and attacking of two police officers before murdering Donovan make that seem highly unlikely. "An eye for an eye," said one of Donovan's daughters, "You don't go around killing and expect your consequences are going to change because you told us where the body is."

Inmate Executed for slaying of fellow inmate: Michael Graczyk reports on the execution of Ricardo Ortiz, a high-ranking Texas prison gang member with violent criminal history, including aggrevated robbery to homicide. Upset over Gerardo Garcia's "snitching in a robbery case against him," Ortiz injected Garcia with a heroin dose "three times more potent than the amount that could kill him." Ortiz made two last-minute appeals: one to the U.S. Supreme Court claiming he "should get federal money to pay for legal representation to file a state clemency request," an issue presently pending there in Harbison v. Bell, and the other to the Texas Court of Criminal Appeals alleging a violation of his constitutional rights in that the prosecutors stated he was affiliated with the Texas Syndicate prison gang. Both courts denied the appeals and on January 29, 2009 at 6:18 p.m. CST, Ortiz was pronounced dead from execution by lethal injection.

As mentioned previously, there's lots to be skeptical about the emergence of Internet Addiction.  Now comes a new study, highly critical of this ostensibly new mental illness.  Via Mind Hacks:

Dr Shock covers a new study examining the validity of one of the most popular methods for diagnosing 'internet addiction', Young's Diagnostic Questionnaire, finding it lacks even the most basic ability to distinguish between frequent and infrequent net users...

...the study did clearly show, however, is that the criteria for distinguishing 'addicts' from 'non-addicts', which has been the basis of the majority of 'internet addiction' research, doesn't even reliably distinguish between amount of use and psychological distress.

As Mind Hacks also mentions, this study comes on the heals of another highly critical study:

The analysis showed that previous studies have utilized inconsistent criteria to define Internet addicts, applied recruiting methods that may cause serious sampling bias, and examined data using primarily exploratory rather than confirmatory data analysis techniques to investigate the degree of association rather than causal relationships among variables.

It will interesting to see whether the authors of the DSM-V decide to formally endorse internet addiction as a mental disorder despite these findings.

This post at SL&P points us to this story at stateline.org with ominous-sounding statistics about corrections spending. A closer look at the numbers tells a different story.

"Prison spending increased 127 percent from 1987 to 2007...." From the Pew Center's "One in 100" Report, page 12, it appears that this figure is adjusted for inflation but not for population growth. So the more relevant figure of inflation-adjusted dollars per capita is an 83% increase. That is still quite a substantial increase, but not as dramatic as more-than-double.

But is it true that the corrections budgets are the dominant factor in state financial woes, as many in the soft-on-crime camp would have us believe? No.

Pennsylvania Rules on Execution of Mentally Deficient:  On Tuesday, at Law.com, Leo Strupczewski posted on a Supreme Court of Pennsylvania decision to allow the execution of "any criminal defendant with mental impairments, short of being legally defined as 'mentally retarded[.]'"  The decision, Commonwealth v. Vandivner, can be found here. The 5-2 decision ruled that those seeking waiver of the death penalty must show records demonstrating that mental illness began before the defendant's 18th birthday.  Strupczewski quotes Justice Baer's concurring and dissenting opinion for the proposition that this requirement as difficult to prove - as many defendants do not have access to IQ tests recording mental deficiencies before their 18th Birthdays.  However, as Chief Justice Ronald D. Castille wrote in the majority, Atkins v. Virginia did not prohibit "imposing the death penalty on a defendant who is mentally deficient but not mentally retarded[.]"  Interestingly, the U.S. Supreme Court may be addressed with a similar issue in Bobby v. Bies (08-598), where the defendant's IQ score placed him between the DSM's "mentally retarded" to "borderline mental functioning" ranges.  Kent's post on Bies can be found here.    

Justice Scalia Comments on Privacy:  At Concurring Opinions, Dan Solove discusses Justice Scalia's speech at a  conference hosted by the Institute of American and Talmudic Law.  Solove didn't get to attend, but he did find an AP article by Jennifer Peltz discussing the Justice's comments on digital  privacy and the Fourth Amendment.  In his speech, Justice Scalia commented that he wasn't bothered by internet tracking because some information did not need to remain private - such as the groceries you buy.  The Justice does believe, however, that some information should be off limits to internet data gatherers.  Solove was troubled by these comments because he views them as "an approach toward conceptualizing privacy that focuses on the nature of the information."  Solove believes it is incorrect to view privacy in terms of the nature of the information involved because privacy can still be invaded by compiling small pieces of seemingly unimportant private data.  Of course, Justice Scalia's views on the right to privacy are no surprise, the AP also notes that Justice Scalia's speech "reiterated" his views that the Constitution "does not delineate any overarching right to privacy, though the Bill of Rights includes some specific protections with privacy overtones, such as the Fourth Amendment prohibition against unreasonable searches and seizures." 

"Learned in the Law": Tony Mauro at BLT, correcting an earlier post, finds the Solicitor General isn't the only one statutorily required to be "learned in the law" after all.

Baze Files New Lawsuit Kentucky double-murderer Ralph Baze, who lost a Supreme Court decision on his challenge to lethal injection last year, now claims that he is mentally incompetent for execution, as reported by Brett Barrouquere in the Fort Mill Times.  Baze's attorneys argue that the condemned cop-killer has become depressed recently and that Kentucky's process to determine if he is mentally competent is unconstitutional because it is almost identical to a Texas law the lawyers claim was struck down by the Supreme Court's 2007 holding in Panetti v. Quarterman. (Note: saying the Panetti decision "struck down" the Texas law is a bit loose.)

Japan Executes Four Killers  CNN writer Kyoug Lah reports that four convicted murderers were hanged in Japan today in what Amnesty International called blatant violations of human rights.  Two of the murderers killed four people each during home invasion robberies and the two others killed two women and burned their bodies in steel barrels.  All of the victims undoubtedly felt that their rights were violated.  Japan executed 15 murderers in 2008, and currently has 95 on death row.  According to the most recent international survey of crime rates in 62 nations,  the murder rate in Japan ranked 60th, well below other countries with death penalties like the United States, but also far lower than France, England, Germany and the other European Union members which do not have a death penalty.

Judge Denies Request to Stop Gitmo Trial   Citing "the public interest in a speedy trial" after years of complaints about detainees being denied their day in court, the chief judge at the Guantanamo Bay tribunals has rejected a request by the Obama administration to halt the trial of the suspected mastermind of a bombing that killed 17 American sailors.   AP writers Mike Mella and Andrew O. Selsky report that Col. James Pohl's decision to go on with the trial of Abd al-Rahim al-Nashiri, charged with planning the 2000 bombing of the USS Cole, leaves the Obama administration with few options according to the defendant's attorney.  Quoting Navy Lt. Commander Stephen Reyes,  "The next step, if the government wants to halt the proceedings, is to withdraw the charges."

More Gitmo. John Yoo has this op-ed in the WSJ. "In issuing these executive orders, Mr. Obama is returning America to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001. He's also drying up the most valuable sources of intelligence on al Qaeda, which, according to CIA Director Michael Hayden, has come largely out of the tough interrogation of high-level operatives during the early years of the war."

Governor Schwarzenegger and Attorney General Brown take action to remove receiver

In a story by L.A. Times writer Michael Rothfield reports that Gov. Schwarzenegger and Attorney General Brown have decided to ask for termination of the current California receiver, J. Clark Kelso. U.S. District Judge Thelon E. Henderson turned prison health care over three years ago, and initially Schwarzenegger cooperated with Kelso. Since that time, Kelso's ability to hire, fire, manage employees, and make contracts has created a "receivership which has become a government unto itself" Brown stated. Both are claiming Kelso has overstepped his area of responsibly and will violate the federal Prison Litigation Reform Act if his plans go through. A plan which "state officials estimate that the facilities would cost up to $2.3 billion a year to operate and have included exercise rooms, music and art therapy". The article also mentioned, upon Judge Henderson's approval last year, he required the state to turn over $250 million to the receiver. No money has been sent, after the state protested his ruling. The case remains in pending status at the U.S. 9th Circuit Court of Appeals.

Testing Deterrence:  Doug Berman posted his thoughts at Sentencing Law and Policy today on whether Maryland and Virginia's contrary death penalty stances are the perfect set-up for a case study on death penalty deterrence.  Berman points to a recent piece in the Washington Post by Marc Fisher titled "Maryland & Virginia Go Separate Ways On Death Penalty."  The piece describes the actions of Virginia and Maryland with regards to the death penalty.  According to Fisher, Virgina is making moves to expand its death penalty while the Governor of Maryland is taking steps to end it.  Fisher's article is critical of Virginia, but finishes with the statement "if history is any guide, economic down times will lead to more crime--not exactly the atmosphere in which a repeal of the death penalty is likely to be carried along by a wave of public support."  Look to Kent's comment at the end of Berman's post for statistics on how the murder rate has been affected by the death penalty in Virginia and Maryland.

SCOTUScasts on Bell v. Kelly and Melendez-Diaz v. Massachusetts:  The Federalist Society has posted SCOTUScasts on two criminal cases heard by the Court this term.  The first, Bell v. Kelly, is discussed by Ronald Eisenberg, a Deputy District Attorney in the Philadelphia DA's office.  Bell v. Kelly concerned the application of the deference rule in federal habeas review.  Bell had appealed to the Supreme Court, claiming that the deference rule should not apply to a claim based on evidence not heard by a state court.  However, when the Court heard arguments in November it became clear Bell had misstated his claim.  The case was dismissed as improvidently granted.  CJLF's brief can be found here.  The second SCOTUScast, Melendez-Diaz v. Massachusetts, features John Douglass, the Dean at the University of Richmond School of Law.  Melendez-Diaz is a confrontation clause case asking the Supreme Court to address whether crime lab reports constitute the kind of testimonial evidence which implicates the Sixth Amendment's protection of the accused's right "to be confronted with the witnesses against him." 

And For Something a Little Different... Business Method Patents?:  At Blog of the Legal Times, Tony Mauro reports that the "long-anticipated petition appealing Bilski, et al., v. Doll was filed at the Supreme Court today.  The Bilski petition asks the Court to reexamine a decision of the U.S. Court of Appeals for the Federal Circuit that "business methods" are not patentable because they are not tied to a machine, and do not result in a physical transformation.  Mauro reports that while the legal community was shocked by the Federal Circuit's decision, some believed the decision brought the federal circuit more in line with current Supreme Court sentiment against broad interpretation of patent law.  J. Michael Jakes, partner at Finnegan, Henderson, Farabow, Garrett & Dunner, filed the petition.  His petition argues that the Supreme Court should return to broader principles that will allow business methods to be patented.  

When should the antics of the defendant himself result in a mistrial? AP reports from San Diego that a "judge has declared a mistrial in a kidnapping and assault case after the defendant smeared excrement on his lawyer's face and threw it at jurors."  Weusi "McGowan has pleaded not guilty to kidnapping for robbery, assault with a deadly weapon and other counts in connection with a 2007 home invasion."

Now, if the guy is just plain crazy, he shouldn't be on trial at all. If he is simply a complete jerk, as many criminals are, his vivid in-court demonstration of that fact is logically valid evidence tending to increase the likelihood that the charges are true. We generally don't allow character evidence for that purpose because it is perceived to be unfair to the defendant, not because it is logically invalid. It's "too damn relevant," as one of my law professors said. If the defendant chooses to put that evidence before the jury himself, why should he be spared the consequences? When too many criminals are being offered plea bargains because our courts are overcrowded, why should we abort a trial in progress because the defendant chose to demonstrate his character to the jury?

From the Governator's web site:

Schwarzenegger Administration Officials and Attorney General to Announce Filing of Motion to End Federal Receivership

1/28/2009 - Schwarzenegger Administration officials and California Attorney General Jerry Brown will hold a press conference to announce the filing of a motion to replace the receiver with a special master.

Watch the live webcast at 9:45 a.m.

Some SCOTUS Predictions:  At Sentencing Law and Policy Doug Berman offers mid-term reflections on SCOTUS' 2008-2009 term.  Berman observes that the Court has kept a lower profile this year, with few cases like Baze or Heller, and has quickly decided criminal cases involving circuit splits.  He also predicts that sentencing issues will continue to get the same defendant friendly treatment they received in Spears and Nelson. Aside from setencing and criminal law, Berman predicts the new administration will be asking the Court to take up some more constitutional issues and is expecting to see some Second Amendment action post-Heller. 

"Kumbaya Day at the Supreme Court":  Tony Mauro reports for Blog of the Legal Times that yesterday was a rare "kumbaya day" when the Court handed down five unanimous decisions.  Mauro reports that of the cases decided this term, "[t]he last eight decisions of the Court have been without dissents. Ten of the 15 signed opinions issued so far this term have been unanimous. Four have been split 5-4 decisions, and one came out 6-3."  It remains to be seen if the rest of the term will reflect the same consensus, as most controversial decisions don't get released until late in the term, but, Chief Justice Roberts' mission of consensus appears to have taken hold this term.

Eleventh Circuit Decides Pledge of Allegiance Case: The Wall Street Journal Blog has a post from Nathan Koppel discussing yesterday's Eleventh Circuit's decision in Frazier v. Winn. On Monday, the Eleventh Circuit declined to review en banc last year's panel decision that some high schoolers must recite the pledge of allegiance, unless they get special dispensation from their parents.  In 2008, the panel stated: "The State, in restricting the student's freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect."  The lone dissent yesterday came from Judge Rosemary Barkett, who said that states can not compel minors to recite the pledge.  In his post, Koppel wonders, "[f]rom what part of the great document does the 'constitutional right of parents' derive?" 

Utah AG Wants Shorter DP Appeals:  Seeking to shorten the post-conviction review of death penalty cases, Utah Attorney General Mark Shurtleff wants to give the state legislature the authority to limit the types of claims subject collateral review when a conviction and sentence have been upheld.  A story by Pamela Manson of The Salt Lake Tribune reports that the constitutional amendment the AG proposes would protect the ability of innocent defendants to argue their cases while shutting down frivilous appeals. 

Quadruple Murderer Set to Die Wednesday:  A Texas man convicted and sentenced to death for 1996 murders of his ex-girlfriend, her two children, and a neighbor is scheduled for execution by lethal injection in Huntsville tomorrow.  AP writer Michael Graczyk reports that defense attorneys for Virgil Martinez are seeking a stay to argue that he is mentally ill and not competent to be executed.  In 2007, the Fifth Circuit rejected the murderer's claim that he suffered from temporal lobe epilepsy which caused him to shoot 27-year-old Veronica Fuentes 14 times, her 5-year-old son Joshua five times, her three-year-old daughter Cassandra three times, and neighbor John Gomez eight times.  Before he died Gomez identified Martinez as the murderer. 

Doug Berman at Sentencing Law and Policy has a post referencing a new paper on SSRN which discusses the implementation of Atkins.  Commenter Daniel makes this deft observation:

[W]hen psychologists talk about mental retardation, they speak of it with a set of intellectual assumptions and from a world view that is frankly alien to law. The result is that the two sides often talk past one another rather than with one another. I don't have a problem with people who wish to argue that individuals with certain mental disabilities should not be killed. But as a educational psychologist, I fail to see what mental retardation has to do with making that determination. For example, there is nothing in the DSM that says that people who are mentally retarded don't know right from wrong, or that they can't understand the consequences of their actions; concepts which historically have been very important to the law in assessing moral blameworthiness.

As mentioned here and here, there's a lot of interest in brain imaging and social science.  A forthcoming paper (available here in pdf) in the journal Perspectives on Psychological Science by Edward Vul of MIT and colleagues is getting a lot of blogosphere attention.  Sharon Begley of Newsweek has a nice review and concludes:

More than half admitted using a statistical strategy that, write Vul and his colleagues, "grossly inflates correlations, while yielding reassuring-looking scattergrams." Other statistical snafus, they say, "likely created entirely spurious correlations in some cases," and they call on social neuroscientists who use fMRI to reanalyze their raw data "to correct the scientific record."

 

What's striking about the discredited papers--though in fairness, the skewered authors should be given a chance to defend themselves--is how blithely they tend to (as mutuallyoccluded put it) "vindicate the crudest of stereotypes--that women love shopping because they're "gatherers", that girls have different kinds of brains and need to be taught separately, that gay men and straight women read maps similarly." If you were wondering how, exactly, problematic studies got past the peer review at these top journals, that's a clue: scientists no less than other mortals love to have their hunches, prejudices and stereotypes validated by empirical evidence. Maybe they didn't look too critically at studies that did exactly that.

A reply (pdf) and rebuttal have also been posted.

More are sure to follow.

As our News Scan earlier reported, the U.S. Supreme Court decided today to take up the Edwards issue one more time in Maryland v. Shatzer.  Hopefully this time it will answer the question of how long a suspect's invocation of the Fifth Amendment right to counsel prevents police from asking for a Miranda waiver. A related question was on the docket in Maryland v. Blake in 2005, which was to address whether a suspect who had previously invoked his right to counsel had re-initiated police interrogation 30 minutes later.  The Court never answered the question and "dismissed as improvidently granted."

Today's grant gives the Court a chance to address a procedural hurdle that has divided lower courts for years - how long does Edward's protection from police interrogation last?  How long can the prohibition on police-initiated contact reasonably endure?  Maryland's high court found the protection to last indefinitely, so long as the suspect remains in continuous custody, and the post-invocation interrogation regards the same underlying crime as the first interrogation.

The interrogations at issue in Maryland v. Shatzer began in August 2003.  Detective Blakenship went to interview Shatzer as part of his investigation into allegations that Shatzer had sexually abused his three year old son.  Shatzer was already in jail for an unrelated sexual abuse offense of a different child.  At first, Shatzer waived his Miranda rights, but once Blakenship explained what he wanted to discuss, Shatzer invoked his Fifth Amendment right an attorney.  Questioning ceased and the investigation was closed.  In February 2006, the investigation was renewed because Shatzer's son was able to make more specific allegations.  A new detective, Detective Hoover, went to the prison to interview Shatzer a second time.  During the second interview, Shatzer was informed that police had begun a new investigation into the previous abuse charges.  While Shatzer was surprised at the new investigation he did not request his attorney, and he signed a Miranda waiver.  Shatzer then agreed to and failed a polygraph test, and then admitted "I didn't force him. I didn't force him."  Shatzer was convicted and sentenced to 15 years with five years suspended.  He appealed, but the Maryland Court of Appeals granted certiorari to specifically address the Edwards issue. 

Execution Delayed:  A ruling by the Fifth Circuit has stopped the execution of convicted Texas murderer Larry Swearingen, according to this story by Michael Graczyk in today's Houston Chronicle.   Swearingen was convicted in 1999 of the kidnap, rape and murder of 19-year-old Melissa Trotter, a college student he had met three days earlier.  According to the news story, the stay of execution is based upon a change of opinion regarding how long the victim's body was in the woods before it was discovered.  The coroner, who originally testified that the victim died the day she disappeared, has changed her opinion and now believes that the victim died at a later date, possibly when Swearingen was already in jail for outstanding traffic warrants.  Evidence introduced at trial indicated that the victim had been inside Swearingen's trailer, hairs forcibly pulled from her head were found in his pickup, and, on the day she disappeared, Swearingen's cellphone records confirm that he was in the area where her body was later discovered.  The case has been remanded to the District Court for consideration of the disputed time-of-death evidence. 

How Long Does a Request for a Lawyer Last?  The U.S. Supreme Court has agreed to review a Maryland Court of Appeals ruling which threw out the confession of a child molester  according  to this story by AP writer Jesse J. Holland.  In 2003, imprisoned sex offender Michael Shatzer was questioned by a detective about his alleged sexual abuse of his three- year-old son. Shatzer refused to answer questions without an attorney and the investigation was dropped.  Three years later, when Shatzer's son was older and better able to describe the abuse by his father, Shatzer was interviewed again.  This time he waived his right to an attorney and confessed.  After he was charged, Shatzer won the 5-2 appeals court ruling  which held that "In the case of an inmate in continuous incarceration who invokes his right to counsel, the protections of Edwards apply until either counsel is made available to him, or he initiates further conversation with the police. We find this particularly necessary where, as in Shatzer's case, the two interrogations pertained to the same underlying crime."
The case is Maryland v. Shatzer, 08-680.
 

Among the cases decided by the U.S. Supreme Court today, upon full briefing and argument, are one criminal case and one crime-related civil case. Both opinions are unanimous and mercifully short. There is also a summary disposition on a sentencing matter.

In Arizona v. Johnson, the Court upheld the frisk of a passenger during a lawful traffic stop upon reasonable suspicion the passenger might be armed and dangerous. The Arizona Court of Appeals had engaged in the kind of post hoc hair-splitting that drives police officers crazy. They analyzed the nuances of conversation between the officer and the passenger trying to decide when the passenger is no longer seized and, therefore, the authority to frisk supposedly ends.

We at CJLF do not agree that frisk authority necessarily ends with the end of a seizure, so long as the passenger remains on the scene, but the unanimous opinion by Justice Ginsburg takes a cutting-the-Gordian-knot approach. The passenger is effectively seized from the beginning of the traffic stop to the end, and the officer can frisk upon reaching the requisite threshold of suspicion of dangerousness.

In Van de Kamp v. Goldstein, the Ninth Circuit had attempted an end-run around prosecutorial immunity by letting the plaintiff sue supervisory prosecutors (including L.A. District Attorney and later Cal. AG John Van de Kamp) for supposedly "administrative" rather than "prosecutorial" decisions. No dice, writes Justice Breyer for a unanimous Court. "Immunity does not exist to help prosecutors in the easy case; it exists because the easy cases bring difficult cases in their wake. And, as Imbler pointed out, the likely presence of too many difficult cases threatens, not prosecutors, but the public, for the reason that it threatens to undermine the necessary independence and integrity of the prosecutorial decision-making process."

Nelson v. United States is a summary per curiam on the continuing saga of unraveling the spaghetti created by United States v. Booker, 543 U. S. 220 (2005). More on this is available at (where else?) Sentencing Law & Policy.

Commentary on Pearson v. Callahan:  At SCOTUSblog guestblogger Nancy Leong weighs in on the Supreme Court's decision in Pearson.  Leong criticizes Justice Alito's opinion for failing to acknowledge "the cognitive difficulty that judges may face in attempting to keep the two parts of the qualified immunity inquiry segregated from one another in their minds."  She argues that the Pearson opinion falls short in failing to discuss the reality that "an easy immunity determination may - on a subconscious level - influence a judge's thinking about the outcome of a more challenging constitutional issue."  Leong's criticism leads up to discussion of her forthcoming Pepperdine Law Review article, "The Saucier Qualified Immunity Experiment: An Empirical Analysis."  For her article Leong randomly selected 600 federal cases, decided before and after Saucier, to examine the impact of the Saucier approach to qualified immunity cases.  Her analysis apparently revealed that the decisions that used the Saucier approach tended to favor defendants.  She wonders whether abandoning this approach will lead to more pro-plaintiff decisions.

Advice for Fourth Circuit Judicial Nominations:  Hattip to Ed Whalen at Bench Memos for his link to Judge Harvie Wilkinson III's op-ed in Today's Washington Post.  The piece, "Storming the 4th Circuit," expresses Wilkinson's thoughts on why appointing federal judges based on their ideologies is not always a good idea.  Orin Kerr at Volokh Conspiracy also has this post on the op-ed.

Executions in the United States and Internationally:  Doug Berman at Sentencing Law and Policy posts links to stories covering capital punishment in the United States, Iran, Uganda and China.  The AP story  by Michael Graczyk discusses the two executions that took place in the United States yesterday.  Reginald Perkins was executed yesterday for strangling and robbing his stepmother,  and in Oklahoma Darwin Brown was executed for beating a convenience store clerk to death with a baseball bat.

Terry Stop: Orin Kerr at VC points us to this decision from a Louisiana appellate court: "In the present case, Detective Peterson, a law enforcement officer with approximately 10 years experience, observed the defendant chambering a round into a firearm while driving with no hands on the wheel. Detective Peterson testified that, although he did not witness the defendant committing a specific crime, he stopped the defendant to investigate because '[he] did not know if a crime had been committed or was about to be committed.' We cannot say that the trial court erred in finding that Detective Peterson had sufficient reasonable suspicion that a crime was being committed, had been committed, or was about to be committed to justify an investigatory stop." Um, isn't driving with no hands on the wheel at least an infraction in Louisiana?

Another Freed Detainee Rejoins al Qaeda:  A New York Times story by Robert F. Worth reports that Said Ali al-Shihri, a Yemeni militant released from Guantanamo Bay in 2007, has been identified by Yemen's al Qaeda branch as a deputy leader with the terrorist group.  U.S. officials suspect that al-Shihri was involved in a car bombing of the American Embassy in Sana last September that killed 16 people.  The militant reportedly disappeared from his home last year after passing through a Saudi rehabilitation program. Reports of freed detainees rejoining middle eastern terrorsist groups raise questions about how the new administration will deal with detainees after closure of the Guantanamo Bay detention camp.   

Eleventh Circuit Reinstates Death Sentence:  A unanimous three judge panel of the Eleventh Circuit overturned an earlier District Court ruling today in a decision reinstating the death sentence of an Alabama man, according to this AP story.  Habitual criminal Billy Joe Magwood was convicted and sentenced to death in 1981 for gunning down Coffee County Sheriff Neil Grantham two years earlier.  Although evidence of Magwood's guilt was undisputed,  he was able to delay his sentence on collateral review for over twenty years. The decision offers an analysis of the application of the successive petition rule to claims that could have been made after the first sentencing, which petitioner now wishes to make after resentencing.

Wednesday's U.S. Supreme Court Decisions in two criminal cases are discussed in this piece by New York Times reporter Adam Liptak.  The Court's unanimous opinions In Fitzgerald v. Barnstable School Committee and Pearson v. Callahan, authored by Justice Alito, are characterized as cases involving civil rights.  In Fitzgerald the Court upheld right of parents to  sue a school district over the alleged molestation of their daughter by another student. The Court's holding in Pearson upheld the immunity of Massachusetts police officers who searched a suspected drug dealer's home after he allowed an informant in to buy drugs.  Kent Scheidegger's post on the case is here.  The story also notes that the Court let stand a lower court ruling striking down the Child Online Protection Act, which had made it a crime for a commercial website to make sexually explicit materials available to children under 17. 

Another Criminal Case,  Waddington v. Sarausad is the subject of this story by Levi Pulkkinen in this morning's Seattle Post-Intelligencer. Kent's earlier post on the case is here. The Court's 6-3 decision overturned a Ninth Circuit ruling that had overturned the 1994 conviction of an accomplice to a fatal shooting, citing a flawed jury instruction on accomplice liability.

This morning, the California Supreme Court issued its decision in In re Jose C.  Authored by Justice Werdegar, the Court held that state jurisdiction over delinquency proceedings was not preempted by the Supremacy Clause, or section 3231 of the U.S. Constitution.  In recognizing California's power to regulate juvenile misconduct, the Court wrote: "Whether delinquency proceedings are treated as civil or criminal, the determinations they entail -- whether a minor should be declared a ward of the court and what juvenile treatment and rehabilitation he or she should be afforded -- do not trench on exclusive federal court prerogatives to try, convict, and punish for the violation of federal law. To the contrary, Congress, recognizing no comparable federal system exists, has made clear its preference that offenses by minors be handled, whenever possible, by state juvenile courts." 

Associated Press reports:

Chief Justice John Roberts has administered the presidential oath of office to Barack Obama for a second time just to be on the safe side.

The unusual step came after Roberts flubbed the oath a bit on Tuesday, causing Obama to repeat the wording differently than as prescribed in the Constitution.

In 2002, I happened to be in Washington on November 13 and watched the oral arguments in the Megan's Law cases. In the Ex Post Facto case, Smith v. Doe, 538 U. S. 84 (2003), Alaska Attorney General Bruce Botelho had passed on arguing the case himself and hired one of the Supreme Court Bar's premiere advocates, John Roberts. It was one of the smoothest, best-prepared arguments I have ever seen. Nearly everyone who saw Roberts argue a case had a similar impression.

So the blogs have been buzzing about how such a famously skilled and invariably prepared advocate could flub such a simple task. My theory is Casey At the Bat Syndrome. Perhaps it was so simple he got overconfident, "misunderestimated" (to use a Bushism) the anxiety-inducing effect of the whole world watching, and didn't think he needed to rehearse.

Commenting on Judicial Appointments:  Over at Bench Memos, Ed Whalen reacts to an editorial in today's Washington Post discussing judicial appointments past, present and future. Whalen takes issue with the editor's description of Conservatives under the Bush Administration, particularly what the Post perceives to be their "battle cry" that former-President Bush was entitled to appoint those who shared his "judicial philosophy."  Whalen comments, that he "missed that 'battle cry,'" because he believes "the dominant substantive message from conservatives over the past eight years is that nominees dedicated to judicial restraint should be confirmed--not because that was President Bush's judicial philosophy but because it's the judicial philosophy compatible with the system of representative government that our Constitution creates."

Criminal Cases in the Supreme Court:  SCOTUS watchers saw plenty of action today with decisions in three criminal procedure cases.  As Kent reported earlier, both Pearson v. Callahan and Waddington v. Sarausad, were decided today.  Ben Winograd at SCOTUSblog provides a quick summary  of each decision with links to each decision.  Over at Sentencing Law and Policy Doug Berman notes his surprise and excitement at the Court's summary reversal of Spears v. United States.  Spears is a sentencing case addressing  circuit court authority to second guess the sentencing court's sentence when the district court has provided a thoughtful explanation for the sentencing choice.  Note the repartee between the Chief Justice's dissent and the Court's per curiam opinion.

Court Declines to Review Third Circuit's Ruling:  Over at Wall Street Journal Blog, Dan Slater reports that the Child Online Pornography Act got "No Love" from SCOTUS today.  Slater reports the Court declined to hear a Third Circuit decision that "took a whack at social conservatives when it affirmed a lower court ruling striking down COPA, or the Child Online Pornography Act."  Slater also reports on the Court's decision to review Cuomo v. Clearing House Association on Friday.  The case will address "whether state officials are barred from investigating the lending practices of national banks." 

 

Pearson v. Callahan, decided today by the U.S. Supreme Court, shares a common element with Waddington v. Sarausad, also decided today and discussed here. Both cases involve a rule of law that makes the outcome depend on the clarity with which the law was established at the time of the act in question. There are a number of such rules in or related to the criminal law that protect against fuzzy rules that are only clarified after the fact. The rule of Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) provides that "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." See also, United States v. Lanier, 520 U.S. 259 (1997). The rule of Teague v. Lane, 489 U.S. 288 (1989) protects final judgments from collateral attack based on new rules created after the direct appeal. The statutory rule of 28 U.S.C. § 2254(d) protects reasonable applications of Supreme Court precedent by state courts from second-guessing by lower federal courts.

The Pearson case involves the rule of qualified immunity under which police officers can be sued individually only if it was clearly established at the time that their acts violated a right of the plaintiff. Today's decision though, is mostly about the process for deciding the cases; the actual decision on the immunity question was easy.

A Quite Life in Scotland:  Raphael Satter of the Associated Press reports on the arrest of  Scotsman Kenny Richey, who pled guilty to manslaughter last year and was released for time served after his murder conviction was overturned by a January 2007 Sixth Circuit ruling . In 1987 Richey was convicted and sentenced to death for the arson murder of his ex-girlfriend's 2-year-old daughter.  In 2005 the United States Supreme Court rejected the Sixth Circuit's earlier holding that a lack of specific intent and a Strickland violation invalidated Richey's conviction. . Undeterred, on remand the Sixth re-decided the Strickland claim in Richey's favor, to the joy of the British Parliament, the Pope, and death penalty opponents worldwide who insisted that he was innocent.  Less than a year after winning his freedom, Richey is facing charges in Scotland for burglary and beating a man with a metal rod.  Once again, Richey says that he's innocent.  

Holder Nomination Delayed:   Senate Republicans have delayed the Judiciary Committee's confirmation vote on Attorney Nominee Eric Holder for one week.  Evan Perez reports for the WSJ, "The one-week delay, Republicans said, would help address several concerns, including Mr. Holder's role in the pardon for financier Marc Rich at the end of the Clinton administration and the Obama administration's stance on whether to pursue criminal prosecutions over the treatment of terror detainees during the Bush administration."

Change? Maybe Not. From the Legal Times newsletter, "In his confirmation hearings last week, Eric Holder Jr. broke sharply with some of the Bush administration's controversial terrorist detention and interrogation policies, but the attorney general nominee embraced many, if not most, of the national security tools created in the last eight years." The full story by David Ingram and Joe Palazzolo is available here with registration.

Uganda Supreme Court Upholds DP: An appeal by condemned inmates, claiming that the death penalty and the use of hanging as an execution method were cruel and unusual, was rejected yesterday by a 6-1 vote of the Ugandan Supreme Court according to this story by Daily Monitor reporters Lominda Afedraru, Lydia Mukisa & Siraje Lubwama.  The Court also affirmed a lower court ruling that found that the various laws that prescribe a mandatory death sentence are unconstitutional and that delays on death row, of more than three years after the sentence was confirmed by the appellant court, were "inordinate".  The decision leaves the death penalty intact as the ultimate punishment for capital offenses and hanging as a form of execution. However, the ruling on the mandatory sentences is likely to lead to amendments of the relevant laws on cases such as murder and aggravated robbery which carry the mandatory death penalty.

The U.S. Supreme Court has once again reversed the Court of Appeals for the Ninth Circuit for overturning on habeas corpus a state court decision that is within the zone of reasonable disagreement, despite an act of Congress almost 13 years ago forbidding it from doing so. The case of Waddington v. Sarausad involves one of those murky problems of accomplice liability and exactly what intent an accomplice must have to be held liable for an act which he assisted but did not personally commit. In this case, Sarausad was the driver in a driveby shooting by one gang against a rival gang. Under all the circumstances of the evidence, instruction, and argument, the case was fairly close on the merits. The whole point of AEDPA's deference requirement, 28 U.S.C. § 2254(d)(1), is that cases close on the merits should be easy on federal habeas. In a close case, a decision either way is clearly not clearly wrong, and the drastic remedy of collateral attack on a final judgment is not warranted. The Ninth Circuit still doesn't get it, and apparently Justices Souter, Stevens, and Ginsburg don't either.

We at CJLF have more than once denounced the Fourth Amendment exclusionary rule. That is the rule that blinds the criminal trial to the truth and lets known criminals walk for the purpose of deterring future violations of the Fourth Amendment, even if the supposed violation in the actual case is a borderline application of a fuzzy rule on which even judges cannot agree. Our most recent post on the subject is here, noting that the Supreme Court may (or may not) have made an important step toward scrapping the rule.

The argument that is always raised in response is that there no other way of enforcing the Fourth Amendment. (Comparison to other countries, of which our opponents are so fond in other contexts, strangely doesn't carry any weight with them on this one.) Suing individual police officers in borderline situations must not be allowed. For good reason, the Supreme Court has created qualified immunity. Without it, officers would either be overly timid in enforcing the law or leave law enforcement altogether.

Almost four decades ago, Chief Justice Warren Burger threw down the gauntlet in a dissenting opinion in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 422 (1971) (footnotes omitted):

President Frees Border Agents:  President Bush commuted the sentences yesterday of two U.S. Border Patrol Agents sentenced to prison for shooting a Mexican drug dealer in 2005.  Deb Riechmann of the Associated Press reports that agents Ignacio Ramos and Jose Compean were convicted of shooting admitted drug smuggler Osvaldo Aldrete Davilia in the buttocks as he fled across the Rio Grande, abandoning a van loaded with marijuana.  Both agents have served about two years in prison.

The U.S. Supreme Court today issued orders after its Friday conference, granting certiorari in six cases: four civil, one criminal, and one quasi-criminal. Lyle Denniston summarizes all six at SCOTUSblog. The quasi-criminal case is named Nijhawan v. Mukasey, No. 08-495 for the time being. It has to do with deportation for frauds over $10,000 and who decides the amount of the loss.

The criminal case is Bobby v. Bies, No. 08-598. The Sixth Circuit opinion is Bies v. Bagley, 519 F.3d 324 (2008). The Ohio Supreme Court opinion on direct appeal is State v. Bies, 658 N.E.2d 754 (1996).

Bies is on one of the lower rungs of the intellectual ladder. Whether he is actually retarded has been disputed throughout the litigation. His IQ tested at 69, which is pretty much a coin-toss given a margin of error of +- 5 and a presumptive threshold of 70. Before Atkins v. Virginia, 536 U.S. 304 (2002), the difficult question of which side of the nebulous line he falls on didn't really matter. Being on the ragged edge was a mitigating factor to be weighed against the aggravating under Penry v. Lynaugh, 492 U.S. 302 (1989), and the weight was not appreciably different whether he just barely met or just barely did not meet the clinical criteria for the diagnosis of "mildly retarded."

Alabama Killer Executed:  James Harvey Callahan, on Alabama's death row for almost 26 years, finally received his sentence yesterday for the kidnap, rape and murder of Jacksonville University student Rebecca Howell.  A story by AP writer Garry Mitchell reports that Thursday afternoon, the U.S. Supreme Court denied Howell's final appeal, as noted in this post yesterday.  Howell was one of five Alabama murderers are scheduled to be executed this year.  These executions were delayed by last year's Supreme Court review of legal challenges against lethal injection.

Obama AG Back's Shield Law:  President-Elect Obama's choice for Attorney General told the Senate Judiciary Committee yesterday that he would support a federal law to prevent federal judges from punishing reporters who refuse to disclose their sources.  SF Chronicle writer Bob Egelko reports that Eric Holder plans to reverse Bush Administration policy which allows the government to withhold federal records from the public if there is any plausible reason to do so.  Holder told the committee that he plans restore the policy under Clinton's Attorney General Janet Reno which allowed the release of confidential government records.     

After the jump is an excerpt from the Holder confirmation hearings, with questions by Sen. Jon Kyl of Arizona. The whole thing is interesting, but we at CJLF are most keenly interested in the second question, on AEDPA. My comments follow the excerpt.

President Bush is confident that he will be viewed more favorably in the long view of history than he has been recently. He may be right. From Gallup, here are the approval ratings of post-WWII presidents upon leaving office:

Roderick Moore and LaTanya Boone were shot to death in Fort Worth, Texas in November 1995. The same night, Darrel Hoyle and Henry Truevillian were found shot and burned in a burning car. Hoyle survived but Truevillian did not. Justice for these crimes was finally carried out today. Michael Graczyk has this story for AP.

Justice has been even slower for Rebecca Suzanne Howell. In 1982, the 26-year-old Jacksonville State University student was abducted from a coin-operated laundry, bound with duct tape, raped, suffocated, and thrown off a bridge. The perpetrator was scheduled to be executed a year ago, but a stay was granted by the U.S. Supreme Court, presumably pending its decision on lethal injection in Baze v. Rees. This time the high court denied the stay. Garry Mitchell has this pre-execution story for AP quoting several of Ms. Howell's relatives.

Throughout the land we hear a chorus of voices claiming that because justice takes so long and costs so much in cases such as these we should forgo justice and let the perpetrators off with inadequate sentences. No, we should just make the process go faster and cost less. We have known all along what needs to be done. We just need legislators with the backbone to do it.

The Holder Memorandum is the subject of this Wall Street Journal op-ed by Senator Arlen Specter and Edwin Meese, III. The memo was issued by Deputy Attorney General Eric Holder near the end of the Clinton Administration.  It allowed federal prosecutors to pressure businesses under federal investigation to provide the government with incriminating evidence about their employees.  This led employers to threaten termination of employees who would not give statements to investigators, compromising their constitutional right to counsel. In one case, a federal district judge ruled that federal prosecutors, following Justice Department policies, forced an accounting firm to cut off payment of legal fees for 13 of its employees.   

Summary Justice: "Four teenagers say police in a northern Mexican town spray-painted their hair, shoes and buttocks to teach them not to paint graffiti on public property," according to this AP story. "Guadelupe's police department says several officers have been suspended while the matter is being investigated. The youths were fined more than $200 before being released on Tuesday. Guadelupe is outside the city of Monterrey."

Uncharged Misconduct. "A man charged with setting an arson wildfire that killed five U.S. Forest Service firefighters in 2006 started nearly two dozen additional blazes for which he hasn't been charged, the district attorney alleges in court papers," AP reports. "Raymond Lee Oyler, 38, has pleaded not guilty to five counts of first-degree murder, 17 counts of using an incendiary device and 23 counts of arson. Jury selection in the death penalty case began Monday and a panel could be seated by next week."

Jeremy Jaynes is a spammer. He was convicted of violating Virginia's anti-spam law by spamming AOL subscribers (AOL is in Virginia) and was sentenced to a total of nine years in the slam for three slices of spam.

In 2006, the Virginia Court of Appeals rejected Jaynes's constitutional attack on the statute and affirmed. Last February, the Virginia Supreme Court affirmed on the patently erroneous ground that Jaynes did not have standing to attack the statute as overbroad due to its application to noncommercial spammers, given that his spam was commercial. The whole point of the "overbreadth" doctrine is to let people challenge laws as applied to others, but the requirement of substantial overbreadth means that such attacks should fail when the invalid applications are minor. Realizing its error, the Virginia Supreme Court granted rehearing and proceeded to err even more badly in the opposite direction. The AG filed a certiorari petition in Virginia v. Jaynes, No. 08-765, and the amicus briefs supporting certiorari are in the mail.

The U.S. Supreme Court today decided the Fourth Amendment exclusionary rule case of Herring v. United States. At SCOTUSblog, Tom Goldstein's "preliminary reaction is that we will at some point soon regard today's Herring decision as one of the most important rulings in that field in the last quarter century." Meanwhile, back at the Volokh Conspiracy, Orin Kerr "thought it might be worth explaining why I disagree and why I think Herring is a minor case."

I think Tom is basically right, with one large caveat. Herring is a 5-4 decision, and it is a good bet that any new Justices appointed in the next several years will be likely to side with the dissenters. If President Obama appoints a successor to any of the 5, then Herring could be overruled or it could be relegated to the minor category of Supreme Court precedents that are never overruled and continue to control on their unusual facts but are never extended to their logical conclusion. If he does not, then the Holy Grail may be within grasping distance.

When the Supreme Court announced Apprendi v. New Jersey, 530 U.S. 466 (2000) nine years ago, the result seemed sensible. The "sentence enhancement" in that case operated for all practical purpose like a higher degree of offense, and degrees were traditionally decided by the jury and had to be proved beyond a reasonable doubt. Yet in the years that followed, Apprendi spread to other areas. In Ring v. Arizona, 536 U.S. 584 (2002), the Court extended the rule to death penalty eligibility circumstances, an artificial construct with no common law equivalent that states enacted only because the Court itself forced them to. In Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), the Court threw a monkey wrench into sentencing guidelines systems enacted in the 1980s in a bipartisan consensus to reduce the sentencing disparity that arises in discretionary systems, where the luck of the draw on judges may count more than the legitimate factors of the defendant's crime and criminal record. In Cunningham v. California, 549 U.S. 270 (2007), the Court ruled that the state violated the Constitution by imposing a fact-finding requirement for the defendant's benefit, prompting the Legislature to repeal the requirement.

In Oregon v. Ice, the Supreme Court of Oregon carried the "no good deed goes unpunished" principle of Cunningham one step further. Today, the U.S. Supreme Court decided that was one step too far in a 5-4 decision that scrambles the usual ideological lines.

Speedy Trial Case: The Washington Post opines on Vermont v. Brillon, argued yesterday. "The Vermont Supreme Court threw out Mr. Brillon's conviction and barred prosecutors from retrying him after concluding that Mr. Brillon's right to a speedy trial had been violated -- even though the delays were the fault of Mr. Brillon or his lawyers. The court concluded, in part, that because the public defenders were paid with state money, the state must be held responsible. The Supreme Court, which heard arguments in the case yesterday, should overrule the decision." Is it our imagination, or has there been a statistically significant increase in sense on the WaPo's editorial page recently?

Released Gitmo Inmates Rejoin the Fight:  The Pentagon reports that 61 of the detainees released from Guantanamo Bay are either confirmed or suspected to have resumed committing terrorist acts according to this Reuters story by David Morgan.  The Pentagon said it has confirmed that 18 former detainees are directly involved in terrorism and that intelligence has determined that 43 are likely to have resumed involvement. The ACLU called the report "another fearmongering campaign to justify the indefinite detention of detainees."

Oakland Officer Arrested for New Year's Transit Shooting:  In a widely distributed video, a transit officer in Oakland, California is shown shooting a prone suspect in the back during the investigation of a New Years Eve fight. The officer has now been arrested for murder as reported by SF Chronicle writers Demain Bulwa, Henry K. Lee and Leslie Fulbright. Johannes Mehserle was arrested yesterday in Nevada after several days of protests over what Oakland community and civil rights leaders call another example of excessive force against blacks. 

FBI Taps Local Police:  AP writer Devlin Barrett reports that the FBI is now sharing tips about possible terrorist threats with local police in an effort to identify patterns of activity in multiple locations.  The bureau notes that it receives 1,000 tips per day but that only about a dozen merit distribution to other police agencies.  A spokesman said that sending a report on an incident in one location to police in far flung jurisdictions might uncover reports of similar activity, such as multiple thefts of military uniforms or equipment.

Feds DNA Testing Suspected Illegals: In an effort to identify illegal immigrants who commit crimes in the US, the Department of Justice is implementing a policy of taking DNA samples from suspected illegals detained by federal officers.  A story by Jeremy Roebuck in the Brownsville Herald reports that the testing was authorized by Congress in 2005.  It is being implemented this year because of an increase in crimes committed by illegals.  Last year, federal prosecutors filed criminal charges against over 25,000 illegals in the judicial district stretching from Houston to the Rio Grand Valley.  As with fingerprints, inclusion in the federal DNA data base does not implicate anyone as a criminal.  It does give law enforcement a tool to identify those who may have been involved in a crime and exclude those who are not.  In spite of this, immigration rights groups are opposed, claiming that the testing paints illegals "with the same brush as violent felons." 

This is shaping up to be a strange term for habeas corpus cases. In today's argument in Knowles v. Mirzayance, for the third time, much of the discussion was on a question other than the official Question Presented, and the discussion also wandered to another case on the docket this term.

When the Court took up the case, it appeared to be a routine "Ninth Circuit wrongly overturns another murder conviction" case. Such cases are to the Supreme Court's docket what "dog bites man" is to journalism generally -- not news. In this case, the trial lawyer was castigated for abandoning an insanity defense he had concluded was hopeless. Stanford student Ruthie Zemel has this well-written summary of the case and arguments on SCOTUSblog.

Right out of the gate, Justice Kennedy and DAG Steve Mercer get into a discussion of the relationship between the federal court evidentiary hearing and the rule of 28 U.S.C. § 2254(d), which says that habeas relief cannot be granted unless the state court decision was contrary to Supreme Court precedent, an unreasonable application of it, or an unreasonable determination of the facts based on the evidence presented to the state court. How can evidence presented for the first time in federal court have any relevance to that question? That was an issue in Bell v. Kelly, argued November 12 and dumped November 17. It is not one of the questions presented in this case.

The U.S. Supreme Court today decided another case under the habeas reforms of the Antiterrorism and Effective Death Penalty Act of 1996. The case involves one of those odd little quirks where statutory language is perfectly clear in the normal course of things but ends up being unclear in a situation that never occurred to the people who wrote or voted on the statute.

The statute of limitations for a state prisoner to file a federal habeas petition, 28 U.S.C. § 2244(d), generally starts running when the case becomes "final by the conclusion of direct review...."  Finality on direct review was a concept well established in the high court's retroactivity jurisprudence long before AEDPA, see Griffith v. Kentucky, 479 U.S. 314, n. 6 (1987), and generally does not present a problem. State collateral proceedings pause the federal limitations clock but do not reset it to zero.

But what happens when the direct review process malfunctions, and the state courts are presented with a collateral attack (such as a habeas corpus petition) presenting the issues that should have been presented on appeal? The state court could (1) tell the prisoner he is out of luck; (2) waive the usual default rule (that issues that should have been presented on appeal but were not are defaulted) and consider the issues in the state collateral proceeding; or (3) reinstate the right to appeal, notwithstanding the lapse of the usual time to appeal.

This was the situation in Jimenez v. Quarterman. Jimenez's direct appeal lawyer found no issues to brief and gave the required notice that Jimenez could file a pro se brief by leaving a letter at the county jail. But Jimenez wasn't there, having already been sent to the big house. When all this came to light, the state habeas court chose number 3, above, and reset the clock on the direct appeal for the purpose of state law.

What effect does this have on the federal statute? The state court's choice between options 2 and 3, above, is one of form rather than substance. If the state court just finds the default excused and goes ahead and considers the issues on habeas, then the reconsideration is clearly a state collateral review which merely pauses rather than resets the clock. Although the federal statute has exceptions that would give an inmate extra time when he really has been shafted, any time that he spent sitting on known claims would still count. In this case, as Justice Ginsburg noted in the oral argument, Jimenez sat on his claims for four and half years after he found out that his direct appeal had been dismissed.

In the end, the Supreme Court just went with the answer that seems simplest from the face of the statute. If the state chooses to reinstate the direct appeal, the case has been retrieved from the "final" bin much as you would retrieve a "deleted" file on your computer. It's an odd result in the case, but the oddity traces back to an incorrect decision by the state court. The right answer would have been that even though Jimenez would have had his claims considered if he brought them promptly after learning of the dismissal of his appeal, he lost that right through his years-long inaction after that discovery.

On remand, I would place a large wager that the final decision will be that Jimenez's claims are without merit anyway.

Supreme Court Resumes Oral Arguments Today:  Over at SCOTUSblog, Court watchers will find a wide array of posts on today's action in the U.S. Supreme Court.  Oral argument transcripts for Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al. can be found here, and the transcripts for Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi and Harbison v. Bell are available here.  Also on SCOTUSblog today is a post by Kristina Moore previewing today's arguments in Bell.  Bell involves the right of prisoners to have federally funded counsel during state clemency proceedings.  Moore's post gives the background of the case, as well as whether 18 U.S.C. § 3599's provision that for indigent capital defendants "unless replaced by a similarly qualified counsel upon the attorney or defendant's own motion...each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings."  Harbison was convicted of murdering a 62 year-old woman in 1985, and in 2006 a district court denied his request that his original federal habeas counsel be allowed to represent him in state clemency proceedings.  According to Moore, Harbison's merits brief argues "it would be irrational to interpret Section 3599 to exclude state clemency proceedings[,]" because such an interpretation "would leave appointed counsel in federal habeas proceedings without a job to do, as state prisoners may only seek state clemency."  While the State's merits brief did not weigh in on this issue, the U.S. Solicitor General, as amicus, noted that the amendments to the 1988 bill, which provided for funding for "executive or other" clemency proceedings were added when the bill focused exclusively on federal defendants and state post-conviction litigants were added at the last minute.  The Solicitor General's brief argues Section 3599(e) provides counsel only for the federal proceedings "available" to defendants.

Crime Went Down over the first half of last year according to this report by the FBI.  The largest drop was for violent crime, which decreased by 3.5 percent nationally. Property crime declined by 2.5 percent. The data indicates that violent crime has fallen for a second straight year. The report was also covered by this AP story.  The story states crime rates began to rise in 2005 and 2006, after the "historic lows during the Clinton administration and continued into President Bush's first years in the White House."  This might lead some to believe that the Clinton administration's law enforcement polices had something to do with the reduced crime rate.  However, there is strong evidence that state and federal enforcement of tough habitual criminal laws is the primary reason. 

S.F. Surveillance Cameras Don't Reduce Violence according to a study reported on in today's Chronicle by Robert Selna and Demian Bulwa.  The study, conducted by the UC Center for Information Technology Research in the Interest of Society, found that while property crime dropped by 24% in areas near the cameras, the cameras had no impact on violent crime.  While speculating that the failure might be because violent criminals are often irrational, the study noted several significant flaws in San Francisco's use of the cameras.  Among these are local restrictions on monitoring the cameras in real time.  To protect a suspect's privacy, inspectors must order footage from the cameras after a crime has beebn reported.  Additional problems found by the study included: the very slow frames-per-second speed, due to the city's inadequate data storage; multiple agencies involved in managing the surveillance program; and untrained personnel assigned to monitor the cameras.

High Court to Review Speedy Trial Ruling:  The Supreme Court will hear oral argument in Vermont v. Michael Brillon tomorrow to consider if delays caused by public defenders can be the basis for overturning a conviction.  Associated Press writer John Curran reports that Brillon, a habitual felon who was finally convicted in 2004 for the 2001 assault of his girlfriend, was released by a Vermont court in 2008.  The court reasoned that delays caused by six different public defenders assigned to represent him violated his right to a speedy trial.  Two of the lawyers were fired by Brillon, and another quit after Brillon allegedly threatened his life.  The Vermont Supreme Court overturned the conviction stating the delays were the fault of the state. Forty states and over a dozen organizations are backing the state's appeal of that ruling.  The ACLU and National Association of Criminal Defense Lawyers are supporting Brillon.

Theodore Kaczynski, a.k.a. the Unabomber, escaped the death penalty when the US Attorney in Sacramento decided that his schizophrenia was a sufficient mitigating circumstance to forgo seeking that penalty. But Kaczynski is not too crazy to litigate pro se from his prison cell, causing further distress to his victims. The Ninth Circuit wrote another chapter in this seemingly unending saga today.

Supreme Court Grants:  As Kent noted earlier today the U.S. Supreme Court released orders today and took four civil cases for review.  One of those civil cases, Northwest Austin Municipal Utility District v. Mukasey (08-322), addresses "a weighty constitutional dispute over Congress's 25-year extension of the federal voting rights law's provision" according to this post by Lyle Denniston over at SCOTUSblog.    The federal voting rights provision requires some states and local governments to get clearance in Washington before making any changes in election laws or methods.  Denniston reports that some conservative advocacy groups are passionately opposed to the Voting Rights Act extension and claim it is an intrusion on state sovereignty.  A Texas government unit is challenging the extension and also arguing it falls within a special exception and should be allowed to "bail out" of the federal law.  A three judge panel in Texas District Court upheld the extension, and the utility district exercised its right to appeal directly to the U.S. Supreme Court.  Denniston's post reports on constitutional issues presented in the case and then provides details on the three other cases granted certiorari today.  Former Supreme Court correspondent Linda Greenhouse returns to the NYT's pages with her opinion piece candidly labelled as such. Present NYT Supreme Court correspondent Adam Liptak has this report.

Another Batson Challenge - With A Twist: At Wall Street Journal Blog Dan Slater has posted his thoughts on the Second Circuit's decision in Dolphy v. Mantello, a case which asks "What inquiry must a trial court undertake when a prosecutor cites 'obesity' as the reason for using a peremptory challenge to strike the only African-American from the jury pool?"  According to Slater's post, when the prosecutor tried to exercise a peremptory strike against the only African-American in the jury pool he cited his personal belief "that heavy-set people tend to be very sympathetic toward any defendant[,]" as his reason for the strike.  The trial judge accepted the reason as race-neutral, but today the Second Circuit reversed, finding the inquiry unsatisfactory. The Second Circuit found fault in the fact that the trial court had failed to "assess the credibility of the prosecutor's explanation" and there had been "no adjudication of Dolphy's claim on the merits." Therefore, said the Second Circuit, there is no need to defer to the state court, and the federal district court should decide the Batson question de novo on habeas corpus. This sounds like the same kind of overly severe reading of the state court's ruling that prompted a unanimous reversal in Rice v. Collins, 546 U.S. 333 (2006).

The U.S. Supreme Court issued an orders list after its conference today, accepting four civil cases for review. SCOTUSblog has the questions presented and links to opinions and pleadings.

As no criminal cases were granted, we can assume that most of the cases up for today's conference will be denied on Monday, although a few may have been "relisted" to be considered again at a subsequent conference.

Schwarzenegger Backs Down on DP Procedures:  A story by Howard Mintz in the San Jose Mercury News reports that, rather than seek Supreme Court review of a questionable San Francisco Appeals Court ruling which blocked enforcement of the death penalty, California Governor Arnold Schwarzenegger has decided to comply with the ruling, which announced that death penalty procedures must be adopted through an administrative process which includes public comment from those affected, i.e. condemned murderers.  The Deputy Attorney General handling the issue said the state has no timetable for beginning the process.  While there is no guarantee that the Supreme Court would have overturned the appellate ruling, a strong argument could be made that administrative hearings are not required for execution procedures.  There is also the  question of why the governor did not begin jumping through the administrative hoops in 2007, when the Marin County Superior Court decided this case, in parallel with the appeal.    

"DOJ Bids Farewell to Mukasey":  At Blog of the Legal Times Joe Palazzolo has a post describing the DOJ's celebratory send-off in the Department's Great Hall today.  Devlin Barrett of the Associated Press also had this story.  According to Palazzolo's post the Attorney General spoke about the number of reforms he had made during his fourteen month tenure - he "limited contact between the Justice Department and the White House, restored the role of career lawyers in making hiring decisions, and reinforced a merit-based system for hiring and recruitment 'without regard for any improper consideration, be it politics, age, race or sexual orientation[.]'" Palazzolo also reports that Mukasey briefly referenced the Department's role in condoning some of the Bush administration's controversial post-9/11 policies.  With regard to that work Mukasey apparently stated: "it is one thing to review and, when appropriate, to correct a lawyer's work; it is another thing altogether to subject that work to second guessing without appreciation for the circumstances or good faith in which it was done."

Fourth Circuit Federal Powers Case May Go To Supreme Court:  At Volokh Conspiracy, Eugene Volokh has a post on today's decision in United States v. Comstock.  A unanimous panel of the Fourth Circuit apparently held unconstitutional 18 U.S.C. § 4248, part of the Adam Walsh Child Protection and Safety Act of 2006, which allows the federal government to place in indefinite civil commitment "sexually dangerous" persons in the custody of the Bureau of Prisons even after the person has served his entire sentence.  According to Volokh, the court held that Congress' power did not reach this far because Congress lacks a general police power aimed at protecting the public at large from crime.  Volokh's post provides an excerpt from today's decision, and gives his thoughts on the merits, as well as the future of the case.  On the merits, Volokh sympathizes with the panel's concerns, but also believes that if Congress can detain those "not-guilty-for-reason-of-insanity" then a similar power should allow it to detain those that are predisposed to committing sexual crimes.  Volokh predicts that although there is currently no circuit-split on this issue, the Supreme Court is likely to take up the issue because it strikes down a federal statute, and addresses conflicting constitutional views on the statute of the legislature, the executive and the judiciary.   

I have extracted the minority report from the report of the Maryland Commission on Capital Punishment and uploaded it here. It is a well-written piece of work and certainly worth reading.

The full report is here. In that document, the minority report is oddly sandwiched in the middle of the references section. I informed the staff of this error and received a curt response that it is not an error.

The New SG: Adam Liptak has this article in the NYT on Solicitor General nominee Elena Kagan. "She has a powerful and varied résumé and has produced a substantial paper trail. But she has provided few clues about where she stands on the great legal issues of the day...."

Lethal Injection Supported:  A survey of Nebraska senators reported by Paul Hammel of the Omaha World-Herald indicates there are more than enough votes to adopt lethal injection for execution of the state's worst murderers.   The state's previous method of execution, electrocution, was ruled unconstitutional by the Nebraska Supreme Court last February.  Although the Senate majority supports adopting the new protocol, Senate leader Mike Flood believes that it will not be easy to pass the necessary legislation. 

California's Death Penalty is the subject of a Contra Costa Times article by John Poyner, the Colusa County DA and President of the Institute for the Advancement of Criminal Justice.  Poyner's article rebuts a piece by Newark Police Chief Ray Samuels which argued the state's death penalty is too costly and ineffective.  Citing the Institute's 2008 Journal, which consists of over a dozen articles addressing the benefits of the death penalty, as well as opposition's claims against enforcement, Poyner concludes that "Even with the facts supporting a just capital punishment system, the state fails to live up to its responsibility to provide justice.  It is bound to uphold the law and the people of California deserve better." (Note: Kent Scheidegger's article "Death Penalty Review in California: Enlightening Comparisons to Other States" appears on page 64 of the Journal.) 

Faith-Based Program: Rick Reilly of ESPN Magazine reports on "the oddest game in high school football history last month down in Grapevine, Texas" between Grapevine Faith and Gainesville State School. (Dudley Sharp brought this to our attention.)

Separation of Powers Challenge to Sarbanes-Oxley:  Lyle Denniston reports on SCOTUSblog that on Monday Free Enterprise Fund offered its petition for writ of certiorari to the Supreme Court to challenge  the constitutionality of the Public Accounting Oversight Board.  The case, Free Enterprise Fund, et al., v. Public Company Accounting Oversight Board, et al., asks whether the Sarbanes-Oxley Act of 2002 violates the Constitution's separation of powers by vesting members of the Public Company Accounting Oversight Board ("PCAOB") with far-reaching executive power while completely stripping the President of authority to appoint or remove those members or otherwise supervise or control their exercise of that power.  According to Denniston, Congress created the Oversight Board after the Enron scandal to regulate auditing firms that review the books of public companies.  This sounds good, but according to Petitioners, the Board violates separation of powers principles.  The D.C. Circuit Court upheld the Board in a 2-1 vote and rehearing was denied 5-4.  Mike Scarcella also has this post on the petition at Blog of the Legal Times.  

Is A Six Person Jury Enough?:  At Wall Street Journal Blog Dan Slater comments on an article on today's Wall Street Journal Opinion page that asks the Supreme Court to take up a challenge to Williams v. Florida  which reasoned the 12 juror "requirement cannot be regarded as an indispensable component of the Sixth Amendment."  The article's authors, Steven Calabresi and Michael Saks, both law professors, urge the Court to take up the case of Deltoro v. Florida.  Apparently, Deltoro was convicted of sexually assaulting his daughter, and sentenced to life in prison without the possibility of parole by a six person jury.  According to Calabresi and Saks, a six person jury was permissible in Deltoro's case "because, in 1970, the Supreme Court decided that when the Framers used the word 'jury' in the Constitution they meant to specify no particular number of jurors. The court held that juries could be as small as six and perhaps even smaller."  Slater reports that Saks and Calabresi believe this ruling to be contrary to the original meaning of the Constitution because juries with fewer than twelve jurors do not have the same "capacity for cross-sectional representation."  Stay tuned to see if the Court decides to take up the challenge.

Deception Research: Deception Blog, apparently an offshoot of the Psychology and Crime News Blog, has a six-part series on recent research on lying, a subject highly relevant to criminal trials.

Two notorious scammers on a grand scale are in the criminal law news today.

The Fifth Circuit has affirmed the conviction of former Enron CEO Jeff Skilling, rejecting numerous contentions in a long opinion. However, the court vacated the sentence and remanded for resentencing. The appellate court found that the trial court erred in enhancing the sentence for "substantially jeopardizing the safety and soundness of a 'financial institution' pursuant to U.S.S.G. § 2F1.1(b)(8)(A) (2000)." Enron's savings plan and employee stock ownership plan were not "financial institutions" for the purpose of this sentencing guideline.

In other action, NY AUSA Marc Litt wants Ponzi scammer Bernard Madoff to go to jail, go directly to jail, so he can't disperse any more of his assets. Larry Neumeister has this story for AP. Chad Bray, Amir Efrati and Kara Scannell have this story in the WSJ.

Harvard Law Dean Elena Kagan has been nominated to be the new Solicitor General. Sasha Issenberg has this story in the Boston Globe.

Given that she comes from academia, I was curious to see what she has written to shed some light on what direction the office may be headed. The list is on the HLS website. The substantive law articles are all on the First Amendment. Interestingly, she has written three articles, out of a total of nine, on or largely on a single case: R.A.V. v. St. Paul, 505 U.S. 377 (1992).

Press coverage notes that she has not argued a Supreme Court case and that she clerked for Justice Marshall, neither of which should be considered disqualifying, IMHO. I expect we will learn more about her shortly.

Ledbetter and the President-elect: At Wall Street Journal Blog Dan Slater wonders whether Obama will "[l]egislate away the Lilly Ledbetter decision?"  Ledbetter v. Goodyear Tire and Rubber Co. was the 2007 decision, authored by Justice Alito, which held Ledbetter's claim of sex discrimination was time barred for late filing.  The Court ruled she should've filed her claim within 180 days of "the alleged unlawful employment practice" -- the initial decision to pay her less than men performing similar work. Slater notes Obama was the co-sponsor of a bill to overturn the decision, and he referenced the Ledbetter decision in the final presidential debate.  Based on this history, its not too much of a surprise to have the New York Times report yesterday that Obama and Democrats in Congress are planning legislation that would relax the statute of limitations under various civil rights laws, giving people more time to file charges.

Bipartisan Panel to Screen California Federal Court and Prosecutor Candidates: Jonathan Adler at Bench Memos has a quick post on an article by Bob Egelko in today's San Francisco Chronicle that reports Senator Feinstein "has named bipartisan committees to screen candidates in California..."  According to the article, Senator Feinstein and fellow Senator Barbara Boxer will take turns recommending nominees to Barack Obama for U.S. District Court, U.S. attorney and U.S. marshal's positions in California after the president-elect takes office Jan. 20.  President Bush has relied on a similar process to make recomendations for district courts and according to Egelko, the arrangement "has produced some compromise candidates."  In his post, Adler reports that there are four federal district court vacancies in the state and more are anticipated.

Early Parole Due To Rising Prison Costs in Virginia:  At Sentencing Law and Policy Doug Berman comments on an Op-ed in yesterday's Washington Post where Anthony Barkow discusses Virginia Governor Tim Kaine's proposal to release some prisoners 90 days before the end of their sentences.  Barkow is the executive director of the Center on the Administration of Criminal Law at New York University School of Law.  Under Kaine's proposal only nonviolent offenders who have been model inmates will be eligible for early release.  According to Barkow, the proposal is a reaction to the $1 billion+ spent on incarceration each year.  Virginia's Attorney General Bob McDonnell, who is running for governor, has criticized the proposal, but Barkow and Berman believe that Kaine's proposal is "exactly right."  Both men believe that "tough on crime rhetoric" "simply does not work as a method of governance."  Barkow argues that if prison spending continues as it has in the past, other priorities such as schools, and police on the streets could lose funding.  Berman's only complaint with Barkow's op-ed is Barkow's decision to call Governor Kaine "brave" for his decision "to tell the truth about criminal justice expenditures."  For Berman,  leaders should not be considered  "brave" when making "responsible public policy decisions."  Only time will tell how "responsible" early release of Virginia's prisoners will be. 

More on spinning crime stats: Last week we noted the report on homicide statistics by James Alan Fox of Northeastern University and the coverage on it. At Freakonomics, Steven Levitt takes aim at the same report.