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News Scan

Maine Sex Offender Registry Challenged:  The retroactive application of Maine's sex offender registry is being challenged before the state's highest court, according to this AP story by Jerry Harkavy.  Two cases before the court involve sex offenders convicted before the legislature required lifetime registration who argue that the change violates ex-post facto restrictions and due process.  The state argues that "there is no private right to secrecy, regarding these convictions..."  The story notes that other states have wrestled with the retroactive application question but that Maine's is the harshest.  The U.S. Supreme Court addressed the ex post facto issue in Smith v. Doe, 538 U.S. 84 (2003).

RI Supreme Court Reinstates Conviction:  A Rhode Island man convicted in 1995 for sexually assaulting his eight-year-old stepdaughter, will go back to prison following a state supreme court ruling announced Wednesday.  Providence Journal writer Tracy Breton reports that the court overturned lower court's a 2004 holding that accepted Danny Brown's claim of ineffective assistance of the lawyer he retained to defend him.  While the state appeal was pending, Brown has been free on bail.  The high court's decision noted that it is quite difficult for a defendant to claim that a lawyer of his own choosing was ineffective in post-conviction proceedings .  Amen. 

A Fourth Circuit decision accepting such a claim is presently before the U.S. Supreme Court in Branker v. Gray, No. 08-551, in which CJLF filed an amicus brief asking the Court to take the case. The Court asked for a response, which Gray has just filed. Expect a decision on certiorari before the end the of term.

Lying on voir dire is one of those things that you know happens all the time, but it seems no one ever gets punished for it. This AP story provides us with an exception to the rule. Manuel Basulto Soto not only lied on the questionnaire about his felony conviction, but he lied again when asked directly by the judge. Three years, suspended, 25 days in county, and three years probation.

Phelps, Kellogg's, and the Munchies: James Taranto writes in the WSJ's Best of the Web newsletter about the backlash against Kellogg's for dropping its sponsorship of Michael Phelps. "Until their point is made, marijuana users will boycott Apple Jacks, Cheez-It crackers, Cocoa Krispies, Eggo waffles, Famous Amos cookies, Froot Loops, Frosted Flakes, Pop-Tarts and Rice Krispies Treats. They may find this easier to accomplish if they also boycott marijuana."


Isn't one of the major problems with Judge Michael's opinion in Branker v. Gray that the lay testimony which was strong could have been undermined by the proposed expert testimony and that the refusal to risk that possibility was a strategic choice that is not to be second-guessed, particularly on habeas corpus?

Doesn't this language in US V. Gonzales-Lopez:

"To argue otherwise is to confuse the right to counsel of choice—which is the right to a particular lawyer regardless of comparative effectiveness—with the right to effective counsel—which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed."

make the argument that the standard for effectiveness of counsel changes depending whether counsel is retained or appointed a difficult one? As a practical matter, it may be true, as retained counsel may be more skilled and may be more likely to be subject to financial limitations.

Great amicus brief, by the way. I think the real problem, as you point out, is the steady expansion of the ineffective rep holdings. We've gone from the functional equivalent of no counsel to highly detailed analyses of a few decisions in the course of a long trial.

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