March 2009 Archives

Blog Scan

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Today at the Supreme Court (plus more on Philip-Morris):  Lyle Denniston has a post on SCOTUSblog briefly summarizing today's U.S. Supreme Court decisions.  Denniston briefly reports on today's decisions in Rivera v. Illinois (07-9995) and Hawaii v. Office of Hawaiian Affairs (07-1372), but devotes most of his post to the "judicial minuet" of Philip Morris USA v. Williams (07-1216).  On two previous occasions--2003 and 2007--, the Supreme Court told the Oregon Supreme Court to reconsider its punitive verdict; and in its most recent decision, the Oregon Supreme Court refused to decide the constitutional issues and based its ruling on state procedural law.  The Supreme Court agreed to hear the case last June, and today it dismissed the case as improvidently granted.  Kent's post on Philip Morris can be found here

Federal Judge Temporarily Stops State Texting Prosecution:
  At Wall Street Journal Blog, Dionne Searcey reports that yesterday a federal judge blocked a Pennsylvania prosecutor from filing pornography charges against girls engaged in the practice of sexting.  Searcey reports that a group of teenage girls had been discovered sending text messages of nude or partially nude photos of themselves to their buddies in Tunkhannock, Pennsylvania.  The district attorney apparently told the girls he would file charges against them unless they agreed to complete classes teaching them "what it means to be a girl in today's society."  The girls refused, and the ACLU sued, claiming the photos did not violate any obscenity laws and were protected under the First Amendment.  U.S. District Judge James Munley agreed and said the action would violate parental rights.  Doug Berman also has this post at Sentencing Law and Policy.  
ACLU and Others Ask White House to Change Anti-Lobbyist Rule:  Marisa McQuilken posts on Blog of the Legal Times that the ACLU and the Center for Responsibility and Ethics in Washington have teamed with American League of Lobbyists in asking the White House to rescind its directive that bars federal agency heads from having in-person or telephone conversations with registered lobbyists about particular projects and funding under the American Recovery and Reinvestment Act.  The Obama Administration issued the directive on March 20 as part of a broader memorandum meant to ensure that funds under the Recovery Act are spent responsibly and transparently. McQuilken reports that the ACLU and CREW sent a letter to White House Counsel Gregory Craig asking the White House to rescind this "ill-advised restriction on speech" that is "not narrowly tailored to achieve the intended purpose."

The ABA and Judicial Nominees, Again

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From the file of statements that are more significant for who said it than what was said:

Whereas, and Michigan v. Long

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The lawyers, Bob, know too much.
They are chums of the books of old John Marshall.
They know it all, what a dead hand wrote,
                     *        *         *
In the heels of the higgling lawyers, Bob,
Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas,
Too many doors to go in and out of.
           -- Carl Sandburg
The whereases may provide one less door to go out of after today's Supreme Court decision in Hawaii v. Office of Hawaiian Affairs. The unanimous opinion by Justice Alito reaffirms that where the operative language of a statute is clear, the preface clauses do not add operative effect not otherwise there.

Of interest for federal habeas practice is a reaffirmation of federal jurisdiction where a state-law ruling is intertwined with federal law.
The rule against racially discriminatory use of peremptory challenges is one of the very few constitutional rules of criminal procedure that applies equally to the defense and prosecution.  See Georgia v. McCollum, 505 U.S. 42 (1992). So what happens on appeal when a trial judge denies a defense challenge of a juror under McCollum, but the appellate court decides the challenge was valid?

It is well established that in the reverse situation, when a juror is discriminatorily struck who should have been seated, the error is reversible per se. No "harmless error" analysis is allowed. What about a juror who is not challengeable for cause and meets the legal qualifications, but whom the defense should have been allowed to strike under the state-law peremptory challenge procedure? That is the question decided in in Rivera v. Illinois, announced today.

The right to exercise peremptory challenges in state court is determined by state law. This Court has "long recognized" that "peremptory challenges are not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly,we have no cause to disturb the Illinois Supreme Court's determination that, in the circumstances Rivera's case presents, the trial court's error did not warrant reversal of his conviction.

Justice Ginsburg wrote the opinion for a unanimous court. Her opinion goes on to reject the perennial attempt to transform an error of state law into a violation of the Due Process Clause of the Fourteenth Amendment.

Hanging Up on Philip Morris

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Forget about that call, Philip Morris. The Supreme Court has hung up.

The case of Philip Morris USA Inc. v. Williams was supposed to bring at least a little more clarity to one of the messiest areas of the Supreme Court's jurisprudence. When does a state court's holding that a party has failed to properly preserve his federal question preclude federal court review of that question? The issue pops up now and then in the Supreme Court's own review of state court decisions, both criminal and civil. In the lower federal courts, it is an issue in habeas review of criminal judgments. For that reason (we have no position on cigarette litigation), CJLF filed this amicus brief asking the Court to clean up its act. (In a nutshell, just read the late C.A. Wright and do what he says.)

Alas, the high court today dismissed the case as "improvidently granted." As usual, it gave no explanation.

Blog Scan

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Detainee Lawyer's Challenge Government's Guidelines:  Jordan Weissmann writes, on  Blog of the Legal Times, that the Guantanamo detainees' defense lawyers are challenging the new definition of "enemy combatants" on grounds that it is still too broad and violates traditional laws of war.  The detainees' lawyers filed a memorandum on Friday arguing that the president is still overstepping his legal bounds.  The document points out that the Authorization for the Use of Military Force (AUMF), on which the Administration has based its detention power, says nothing explicit about detention powers, and that the Supreme Court, in cases such as Hamdi v. Rumsfeld (2004), has chosen to apply a narrow reading of the resolution.  The detainees lawyers claim that the AUMF was meant to prevent the president's detention power to extend further than it would traditional rules of war. 

Prosecuting Teens for "sexting": Doug Berman blogs on Sentencing Law and Policy on the legal and social issues surrounding recent prosecutions for teen "sexting."  Berman reports that last week the ACLU filed a complaint against a Pennsylvania district attorney for threatening three high school girls with child porn charges for appearing partially undressed in cell-phone pictures.  According to Berman, the complaint asserts the D.A. violated the girls' "First Amendment expression rights and their parents' rights to control their children's upbringing."  As Berman notes, this raises some interesting questions as to whether teen "sexting" should draw harsh penalties.  Particularly because in some states, such as New Jersey, it has been reported that the only laws applicable to these cases were intended to punish sexual predators and child pornography traffickers.   

A Spammer Escapes

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Spammer Jeremy Jaynes finally escaped his well-deserved punishment today, as the U.S. Supreme Court refused to review the decision of the Virginia Supreme Court striking down that state's anti-spam law. The state court decision was based on the premise that the statute effectively prevented anonymous noncommercial speech. The premise was false, and it was obviously so to anyone who knows how email works. CJLF's brief is here.

The Court took no new cases today. Decision announcements are likely tomorrow and Wednesday, and both decisions and a new orders list Monday.

Blog Scan

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Parole Hearings Must Be Held in Prison:  That was the holding of the Sixth Circuit yesterday in Terrell v. United States.  According to Jonathan Adler at Volokh Conspiracy, the court held the United States Parole Commission could not use video conferencing to conduct parole determination hearings.  The Parole Commission is required to hold the hearings in person under 18 U.S.C. § 4208(e).  § 4208(e) was repealed, but its requirement that "[t]he prisoner shall be allowed to appear and testify on his own behalf at the parole determination hearing[,]" remained available for those who committed a crime before Nov. 1, 1987.  Terrell was one such prisoner, and despite some serious misconduct in federal prison - including murder - will receive the benefit of its protection. 

A Different Take on Habeas Corpus:  Doug Berman has posted the abstract for a new SSRN article discussing habeas corpus on SSRN.  "A  Structural Vision of Habeas Corpus" by Eve Brensike Primus, a member of University of Michigan Law School's faculty, "proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when, but only when, a state routinely violates its criminal defendants' federal rights as part of a systemic practice."  She argues this approach would increase efficiency and be more respectful to state institutions.
Supreme Court Asks for Additional Briefing on Sixth Amendment Issue:  Lyle Denniston reports on SCOTUSblog that the Supreme Court has asked parties in Montejo v. Louisiana (07-1529) for additional briefing on whether the Court should overrule its 1986 decision in Michigan v. JacksonJackson held that once a defendant asserts his right to counsel at an arraignment or similar proceeding, the rule of Edwards v. Arizona prevents the trial court from finding a valid waiver of rights if police initiate reinterrogation.  Montejo addresses the separate issue of whether a defendant needs to take additional steps to accept the appointment in order to secure the protections afforded by the Sixth Amendment.  Denniston writes that the Louisiana Supreme Court relied on the Fifth Circuit Court, and held that "a defendant who has been appointed counsel cannot invoke the protections of Michigan v. Jackson unless the defendant has previously done something affirmatively to 'accept' the appointment."

FBI Honor Roll:  On a "feel good" note, Joe Palazzolo has a post on Blog of the Legal Times that reports on the FBI's ceremony to award its highest honors to 38 agents and foreign, federal, and local law enforcement officers for their brave and courageous acts in the line of duty.  These agents and law enforcement officers deserve our gratitude for putting aside their own safety in order to protect others.

News Scan

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Jail for impersonating a lawyer: The Associated Press writes that "a prominent Texas Democratic Party donor and fundraiser was sentenced to a year in jail for falsely presenting himself as a lawyer to collect millions of dollars in attorneys fees." Mauricio Celis "transformed himself from an investigator for a local law enforcement firm to having a framed document on the wall of his office that he told visitors was his Mexican law license." Celis has been ordered to pay restitution around $1.35 million and '"stay out of the legal business 100 percent and absolutely.'"

Sex offenders live under bridge in Miami: Matt Sedensky, of the Associated Press, covers this story about numerous sex offenders living under a busy bridge over Biscayne Bay. "It has become a makeshift town of parolees and others who struggle to find affordable housing that doesn't violate strict local ordinances against sex offenders living too close to schools, parks and other places children congregate." Jo Ellyn Rackleff, a spokeswoman for the Florida Department of Corrections has acknowledged the problems, but says '"It's just a situation that's unsolvable at this point.'" There are 1,030 registered sex offenders in the county "considered among the state's most restrictive."

Terror suspect faking mental illness?: The Associated Press writes that "federal prosecutors say a U.S.-trained scientist suspected of being an Al Qaida operative is faking mental illness to avoid a trial." Aafia Siddiqui had studied at MIT and Brandeis University before she fled to her native Pakistan in 2003. It was by coincidence that "she turned up at a police station in Afghanistan over the summer and was wounded in a struggle with U.S. soldiers."

New York is making changes, easing tough drug laws: Michael Virtanen, of the Associated Press, writes that "New York Gov. David Paterson and legislative leaders have agreed to ease drug laws that were once among the harshest in the nation and led a movement more than 30 years ago toward mandatory prison terms." Easing the laws is an attempt to cut costs said Assembly Speaker Sheldon Silver, "more effective residential drug treatment costs one-third of the cost of prison." In opposition, "Republicans warned that watering down the laws will protect drug dealers and release criminals into the community."

"Missouri model" for juvenile offenders: Solomon Moore, of the New York Times covers this story about Missouri's alternative ways to deal with their juvenile offenders. "The Missouri juvenile system emphasizes rehabilitation in small groups, constant therapeutic interventions and minimal force." Unlike the solitude offenders experience in an institution, Missouri juveniles have the opportunity to learn how to talk and work out their problems. "Perhaps most impressive, Missouri has one of the lowest recidivism rates in the country." What do other states think? "Other states, including Florida, Illinois and Louisiana, have moved in a similar direction, focusing on improving conditions at state facilities to keep young offenders from returning." Texas and California have reduced the length of juvenile sentences served in the institution but is no where near the level of reforms made by Missouri.

Rule Amendments

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On the U.S. Supreme Court's orders page today are amendments to the federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Criminal Procedure. They will take effect December 1 unless Congress acts to the contrary.

Other results of today's conference will probably be out Monday, hopefully including a grant of certiorari in the Virginia Spam case.

An Audacious Hope?

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AP reports,

President Barack Obama says Eric Holder will not repeat the past mistakes of previous attorneys general by letting policy* and ideology cloud his judgment.

Well, I do hope that USDoJ will not be driven by ideology during the next four years. I'll believe it when I see it. Mr. Holder is, after all, one of the perpetrators of the Reno DoJ's notorious, misleading dump of raw data on the death penalty, previously noted here. That misleading release needlessly inflamed racial tensions for the sole purpose of propagandizing against the death penalty. It was an act with no justification other than ideology.

What exactly does it mean to not let policy cloud one's judgment? Isn't policy the end product of judgment? I hope it is. * Update: The BLT version of the story, by Joe Palazzolo, says "politics or ideology," which makes a lot more sense.  The AP has replaced its story with a longer one by Christine Simmons at the same link, and it has the corrected quote. Again, I hope it's true but have to be shown, even though I'm not from Missouri.

Alaska AG

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AP report by Dan Joling:

ANCHORAGE, Alaska -- Alaska Gov. Sarah Palin has picked an Anchorage lawyer and National Rifle Association director as the state's new attorney general.

Palin named Wayne Anthony Ross to the post on Thursday.

Ross twice sought the Republican nomination for governor. He is a former NRA vice president and current director.

News Scan

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Limits on crime victims' measure: Last November, voters approved the restriction of legal rights for parole violators. Don Thompson, of the Associated Press, writes that "U.S. District Judge Lawrence Karlton of Sacramento ruled that a permanent federal injunction previously agreed to by Gov. Schwarzenegger's administration trumps voters' support for Proposition 9."  Proposition 9 writes victims' rights into the California Constitution. Karlton has concluded, "'a change in state law standing alone is not the type of change in factual circumstance that renders continued enforcement of a consent decree inequitable.'" Administration lawyers are expected to appeal. The order is here.

Identical twins' DNA sets them free: This story by Spiegel Online writes that German police say one of the two twin brothers Hassa and Abbas O. may have committed a five million dollar jewelry heist. The case appeared to be an easy one to close due to a glove that was left behind at the scene. Unfortunately, because their DNA is so similar, law enforcement has been unable to identify which twin the glove belonged to. "German law stipulates that each criminal must be individually proven guilty" so both have been let go.

Pennsylvania juvenile convictions reversed: Michael Rubinkam, of the Associated Press, writes that "Pennsylvania's highest court on Thursday overturned hundreds of juvenile convictions issued by a corrupt judge accused of taking millions of dollars in kickbacks to send kids to privately owned detention centers." The State Supreme court ruling was influenced also by Pennsylvania's law that "a juvenile may not waive his right to an attorney unless the decision is made 'knowingly, intelligently and voluntarily.'" Many of the juveniles who went before Judge Mark Ciavarella (corrupt) appeared without counsel and the Court decided many "did not knowingly and intelligently waive their right to counsel." Additional cases are still under review.
Our previous post on this scandal is here.

Tighter restrictions on death penalty in Maryland: John Wagner, of the Washington Post, writes that "the Maryland House of Delegates voted 87 to 52 today to approve some of the nation's tightest restrictions on death penalty cases." New stipulations include "limiting capital cases to those with biological or DNA evidence, a videotaped confession or a videotape linking the defendant to a homicide." There is strong opposition to the restrictions. Del. Patrick L. McDonough (R-Baltimore County) argued that the House "'cleverly and successfully killed the death penalty in Maryland.'" The question remains: With the new restrictions, will the prosecution ever be able to bring forth a death penalty case?

Cutting costs: Jennifer Steinhauer writes this story about state prisons who have relaxed their prison policies in order to reduce costs during the economic recession. Steinhauer notes the two ways in which law makers used to deal with lawbreakers: "lock more up for longer periods, and build more prisons to hold them." Unfortunately, with the current status of the economy "some states, like Colorado and Kansas, are closing prisons. Others, like New Jersey, have replaced jail time with community programs or other sanctions for people who violate parole." How can community programs replace jail time? California state corrections secretary,  Matthew Cate said, "we are out of room and we're out of money." So, what about punishment? It seems for some crimes, there soon may not be much of one.

California Prison Litigation

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The Ninth Circuit today dismissed Gov. Schwarzenegger's appeal from the order to fork over a quarter billion bucks to a court-appointed receiver to build gold-plated health care for incarcerated felons. They said the order was not a final order for the purpose of the appellate jurisdiction rule. However, they noted,

Very recently, while this appeal was pending, the State advised us that it had filed in the district court a Motion to Replace Receiver with a Special Master and to Terminate the Receiver's Construction Plan. Proceedings in response to that motion, or to a motion for relief from the consent decree if the State should deem it advisable to file one, are proper vehicles for addressing in the first instance the objections the State seeks to raise on this appeal without a sufficient district court record.

Meanwhile, back at the ranch, District Judge Thelton Henderson yesterday denied that very motion, so the Governator can now appeal. Bob Egelko has this story in the SF Chron.

Blog Scan

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Senate Confirms Justice Department Official:  At Blog of the Legal Times, David Ingram reports that the Senate has unanimously confirmed David Kris as the new assistant attorney general for the Justice Department's National Security Division.  The new Assistant Attorney General served as Associate Deputy Attorney General for the Justice Department's Criminal Division from 2000 through 2003, and then went to work for Time Warner as senior vice president and deputy general counsel.  According to Ingram, Kris faced few questions from the Judiciary Committee, although he did defend the government's authority to detain enemy combatants "for the duration of the conflict" in conflicts related to terrorism.  In his February hearing he is reported stating,"I think we are at war. I think the law of armed conflict applies."  Jennifer Forsyth at Wall Street Journal Blog also has a post on Kris' confirmation.

SSRN Article on Death Penalty Deterrence:  Hat tip to Doug Berman at Sentencing Law and Policy for pointing out a recent paper, titled "Another Look at the Deterrent Effect of Death Penalty."  Instead of using execution rate to measure the deterrent effect of death penalty, Choe's paper uses dummy variables to categorize states into different groups and to compare the group mean homicide rates.  Choe reports finding no "significant homicide-reducing effect of death penalty." His dummy variables are a bit questionable, though. In part of the analysis, he separates Texas out from the other states that actually enforce their death penalty. The reasons for doing this are unclear.

"The Prisoner's Dilemma, Evil Twin Edition:" 
A fun post from Freakonomics on a curious case in Germany where DNA evidence left at the scene of a $6.8 million jewel heist set a man free because his twin's genetic markers were so similar that no test could tell them apart. Claudia Himmelreich has this story on, and Eugene Volokh has this post on Volokh Conspiracy.   

Given the surging interest in neurolaw, readers might wish to check out the latest issue of Behavioral Sciences and the Law.  I'm the guest-editor for this special issue which contains these interesting articles (sorry, subscription required):


Introduction to this Issue: The neuroscience and psychology of moral decision making and the law
Steven K. Erickson, Alan R. Felthous

Neuroscience and the law: Philosophical differences and practical constraints
Daniel A. Martell

Neurobiology of empathy and callousness: Implications for the development of antisocial behavior
Elizabeth A. Shirtcliff, Michael J. Vitacco, Alexander R. Graf, Andrew J. Gostisha, Jenna L. Merz, Carolyn Zahn-Waxler

The development of decision-making capacities in children and adolescents: Psychological and neurological perspectives and their implications for juvenile defendants
Praveen Kambam, Christopher Thompson

Non-invasive brain stimulation in the detection of deception: Scientific challenges and ethical consequences
Bruce Luber, Carl Fisher, Paul S. Appelbaum, Marcus Ploesser, Sarah H. Lisanby

Concepts of intentional control
Hans-Ludwig Kröber

Neuroscience, moral reasoning, and the law
Joshua J. Knabb, Robert K. Welsh, Joseph G. Ziebell, Kevin S. Reimer

Behavioral and neurological foundations for the moral and legal implications of intoxication, addictive behaviors and disinhibition
Robert F. Leeman, Jon E. Grant, Marc N. Potenza

Brain lesions and their implications in criminal responsibility
Shelley Batts

Emotional evidence and jurors' judgments: the promise of neuroscience for informing psychology and law
Jessica M. Salerno, Bette L. Bottoms

Plain Error and Plea Bargains

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This morning the U.S. Supreme Court decided Puckett v. United States, No. 07-9712, dealing with plain-error review of a claim that the prosecution breached a plea bargain when that claim was not preserved in the district court. FRCrP 52(b) and United States v. Olano, 507 U.S. 725 (1993) are binding only in federal criminal cases, but the SCOTUS interpretation is likely to be persuasive in state courts, especially in states that have xeroxed the federal rules.

So, plain error review applies. Did you really expect to get the "acceptance of responsibility" discount, Mr. Puckett, when you commit further crimes while awaiting sentencing? Get real. It would be a good idea, though, to write into the agreement itself a condition that promises to recommend leniency are off if the defendant commits another crime in the interim.
In my prior post on Knowles v. Mirzayance, I noted the unusual lineup of the Justices who did and did not join Part II of the opinion, holding that the Ninth Circuit erred in not deferring to the prior state court adjudication. Justice Stevens, who tends to be among the most defendant-friendly of the Justices, joined this part, while Justice Scalia did not. The decision could have rested simply on Part III, that Mirzayance had no case even if the issue is reviewed from scratch.

A comment I received by phone today* from an informed source suggests an alternative to the explanations bouncing around the blogosphere. Perhaps Justice Stevens wanted to cut off a theory of § 2254(d) he saw as potentially raising a huge barrier for petitioners in the future.

News Scan

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State receiver will stay: Don Thompson of the Washington Post writes this story of U.S. District Judge Thelton Henderson rejecting California's request to remove their court-appointed receiver, J. Clark Kelso. Despite Gov. Schwarzenegger's concerns and the concern that inmates should not receive better health care than law-abiding citizens, Henderson is claiming that "he will make sure Kelso's plans do not exceed what is needed to improve conditions to legally approved levels." As of now, it seems Schwarzenegger is refusing to hand over a $250 million down payment and "Kelso is seeking to hold him in contempt of court." The case is currently before the 9th U.S. Circuit Court of Appeals.

NH House to vote on death penalty repeal this week: The Associated Press writes that the New Hampshire House will vote this week on whether to repeal the death penalty. The bill's odds are long even if it passes the House. Gov. John Lynch opposes the repeal.

Blog Scan

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An Attorney is Not Ineffective Because He Has "Nothing to Lose":  At Blog of the Legal Times, Tony Mauro has a post reporting on today's Supreme Court activity.  As noted in Kent's post, the Court decided Knowles v. Mirzayance, rejecting the Ninth Circuit's holding that, in Mirzayance's case, competent counsel would have pursued the insanity defense because counsel had nothing to lose. Justice Thomas' majority opinion stated: "This Court has never established anything akin to the Court of Appeals' 'nothing to lose' standard for evaluating Strickland claims."  Mauro also reports on today's oral arguments in Citizens United v. FEC, a case asking whether the 90-minute anti-Hillary Clinton movie released during the 2008 presidential campaign should be regulated under the McCain-Feingold campaign finance law.

Al-Marri Pleads Not Guilty:  New York Times reporter John Schwartz writes that accused Al Qaeda sleeper agent Ali Saleh Kahlah al-Marri pleaded "not guilty" on Monday to charges that he provided aid to terrorists.  Al-Marri, one of the first enemy combatants to be tried in a civilian legal system, has been in custody for almost six years.  While he was initially arrested financial fraud and other charges, the government believes he is a sleeper agent pledged to come to the United States as part of a broader attack plan to follow Sept. 11.  The Supreme Court agreed to hear his case in December 2008, but in February President Obama ordered Mr. Marri's transfer from the military back to the Justice Department. He is being tried in Peoria, Illinois where he was indicted on two counts related to providing material support and resources to a terrorist organization.  (Hattip to Howard Bashman at How Appealing for the link.)

"Does the criminal justice system have anything to do with public health?" wonders Joel Jacobson at Judging Crimes.  In a Monday post, Jacobson discusses a possible relationship between CQ Press's release of Crime State Rankings 2009.  While CQ Press's rankings remain controversial, Jacobson sees similarities between the most dangerous states and the unhealthiest states. He also sees some similarities in the number of heart disease and stroke death rates in an area. The relationship between the three is interesting - especially considering Jacobson's promise to further discuss studies describing what violence does to people .

Counsel May Drop Hopeless Defense

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Update: Follow up post on Knowles v. Mirzayance is here.

The U.S. Supreme Court unanimously reversed the Ninth Circuit yet again in another habeas case. As we have noted before, it is not the much-debated "reversal rate" that demonstrates how far out of the mainstream the Ninth is. Rather, it is the number of cases where that court's judgment does not draw even a single affirming vote from the nine jurists of diverse viewpoints on the high court.

In this noncapital murder case, Alexandre Mirzayance did not deny that he stabbed his 19-year-old cousin nine times and shot her four times. The only defense was mental. In the guilt phase, the prosecution had the burden of proving beyond a reasonable doubt that the killing was "willful, deliberate, and premeditated." (Cal. Penal Code § 189.) Mirzayance's psychiatric testimony failed to convince the jury there was even a reasonable doubt of that. So what are the chances that largely the same evidence is going to convince the same jury by a preponderance of the evidence that he "was incapable of knowing or understanding the nature and quality of his ... act and of distinguishing right from wrong at the time of commission of the offense" (Penal Code § 25(b))? Vanishingly small.

Does counsel have an obligation to go for that infinitesimal chance? The Ninth Circuit said yes. The Supreme Court unanimously said no. 

News Scan

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The Death Penalty has become an issue in the special election for the House seat vacated by New York Senator Kristen Gillibrand, according to this story from FoxNews.  In a recent interview for the New York Post, Democrat candidate Scott Murphy revealed his opposition to the death penalty, even for terrorists.  Jim Tedisco, the GOP candidate for the March 31 special election, said that Murphy's stand on the issue shows that he does not share the values of the Upstate, New York congressional district he wants to represent. 

A Shootout In Oakland on Saturday left three police officers dead and one brain dead after an habitual criminal on parole opened fire during a traffic stop. An AP story by Terry Collins and Lisa Leff reports that the shooter, habitual felon Lovelle Mixon, 26, was wanted on a no-bail warrant for violating his parole at the time.  After the initial shooting, which killed Sgt. Mark Dunakin and critically wounded Officer John Hege, Mixon fled on foot and hid in a nearby apartment building. When a SWAT team entered to arrest Mixon, he shot and killed Sgt. Ervin Romans and Sgt. Daniel Sakai, and injured a third officer.  During the exchange Mixon was shot and killed.  A San Francisco Chronicle story by Demian Bulwa reporting on Mixon's criminal history is here

Two Murderers on Texas' Death Row lost their bids for Supreme Court review of their challenges to their convictions and death sentences today, as reported by AP writer Michael Graczyk.  The Court denied review of David Lee Powell's claim that prosecutors did not timely disclose documents showing that his girlfriend may have fired the shots that killed Austin, TX Police Officer Ralph Ablanedo during a 1978 traffic stop.   The Court also rejected Robert Lee Thompson's petition for review.  In 1996, during a robbery, Thompson shot and killed a convenience store clerk and attempted to kill a second clerk, shooting him four times. The killing was one of three Thompson acknowledged as part of his two-month robbery spree.  In the two other slayings, Thompson acknowledged being the gunman.

Blog Scan

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Double Jeopardy and Other Supreme Court Action:  At SCOTUSblog, Kristina Moore posts on the upcoming activities of the U.S. Supreme Court.  She reports that this morning, the Court heard oral arguments for Yeager v. U.S. (08-67), which asks whether the Double Jeopardy Clause allows the government to retry defendants acquitted of some charges for other, factually related counts, on which the jury failed to reach a verdict. According to Yeager's attorneys, the doctrine of collateral estoppel bars prosecution on counts of insider trading and money laundering.  Juan A. Lozano of the Washington Post has this report on the case. Also up for argument this week, U.S. v. Denedo (08-267), a case that will address whether a military appellate court has jurisdiction to consider a petition for a writ of error coram nobis filed by a former service member following a final court-martial conviction.

Justice Department Updates on Sex Offender Case Law:  On Friday at Sex Crimes, Corey Rayburn Yung provided a link to the March 5, 2009 Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) case law update.  Yung's post also provides summaries of some of the cases mentioned in the update, including People v. Mosley, 168 Cal. App. 4th 512 (Nov. 2008), a case involving sex offender registration and Apprendi.

Professional Juries?:  At Wall Street Journal Blog, Ashby Jones reports on a recent post from George Washington Law Professor Daniel Solove advocating a professional jury system.  Solove advocates a professional jury system - at least in civil trials - because our current practice "was invented in the Middle Ages" and inadequately relies on a judge's brief lecture to describe the applicable law to jurors.  Solove would rather have a professional jury with a basic legal knowledge, and perhaps three years of professional legal education.  The comments from Wall Street Journal Blog readers indicate not too many agree with Solove's proposal. 

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Advocating Death Penalty Closure:  At Sentencing Law and Policy, Doug Berman has a post linking to Jody Lynee Madeira's recent research paper, "Why Rebottle the Genie? Capitalizing on Closure in Death Penalty Proceedings."  According to the abstract, Madeira's article supports the argument that the death penalty provides closure for victims' families and counters "scholarly opposition to utilizing criminal law to pursue therapeutic ends."  Madeira theorizes "closure as a communicative concept composed of two interdependent behaviors: intervention and reflexivity. While intervention is an interpersonal component that urges victims' families to take action to effect change and pursue accountability, reflexivity is an intrapersonal component that nudges them to contemplate and work through grief, emotion, and trauma after a loved one's murder."  Madeira is an Associate Professor of Law at the Indiana University Maurer School of Law-Bloomington.  

Fingerprints on Trial: 
In today's Los Angeles Times, Jason Felch has an op-ed proclaiming "Solving crimes using fingerprints is an inexact science."  Felch's op-ed discusses the use of fingerprints in criminal trials from 1905 through present day.  Felch writes that although fingerprints were long considered "definitive proof of identity[,]" a "dearth of research into the reliability of fingerprinting" has led at least one Maryland Court to conclude fingerprint evidence is "a subjective, untested, unverifiable identification procedure that purports to be infallible."  According to Felch, this view was recently endorsed by the National Academy of Sciences, but that's not really what the Academy said.  The actual press release from the  Academy can be found here and the full report can be read on-line here (skim to the Table of Contents to link to specific pages). 

News Scan

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Prison riot leaves 1 dead, 16 injured: Don Thompson, of the Associated Press writes that Oscar Cruz, a prisoner since 2005 for a robbery conviction with added time because his involvement with a street gang, died yesterday after he was stabbed by other inmates at Kern Valley State Prison in California. Thankfully, no prison employees were injured. "Hispanic inmates are likely to remain on lockdown through the weekend as investigators examine the cause of the fight."

Gov. Doyle defends his new crime proposals: The story by Wheeler News Services writes that Gov. Doyle says his planned release of non-violent prisoners early, ending probation requirements for some offenders, and reducing 24-7 GPS monitoring of sex offenders will not make Wisconsin any less safe under his proposed budget. Both Attorney General and Waukesha County District Attorney say "it goes against the 10-year-old truth-in-sentencing law, which forces most criminals to serve the entire terms."

Referendum on death penalty repeal: The Associated Press writes this story about "Bernalillo County Sheriff Darren White [who] is looking into the possibility of petitioning to put the repeal of New Mexico's death penalty before the voters."  New Mexico's constitution has a referendum provision that allows citizens to try to overrule laws approved by the Legislature and according to recent polls, "the majority of New Mexicans support the death penalty when the question involves someone convicted of murder."

2 killings prompt Juvenile Justice reform:
The Washington Post writes that Lafonte Lurie Carlton's recent killings could possibly have been prevented if the Department of Youth and Rehabilitation Services handled his case properly. "A drug arrest before the two recent killings should have triggered a revocation hearing, but a hearing was delayed, and the youth remained free." Director Vincent N. Schiraldi has acknowledged the '"gross error'" and "testified to changes in procedures [while] talk[ing] about new programs to better involve the community and polcie in helping and monitoring at-risk youths."

Death row inmate loses decisons in 2 state courts:
This story by Brett Barrouquere, of the Associated Press, writes that "the Kentucky Supreme Court and a lower court on Thursday swept away a Death Row inmate's four challenges to his conviction and the way the state executes condemned inmates." Ralph S. Baze was convicted of killing Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe in Eastern Kentucky nearly 17 years ago as they tried to serve a warrant on him. Since his conviction Baze has attempted numerous angles to challenge his conviction, among them are claiming insanity, wrong location for trial, and improper execution process for lethal injection. The U.S. Supreme Court rejected the latter argument last year in Baze v. Rees. At this point, "Baze's attorneys say their client has become delusional."

Supreme Court Conference

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The U.S. Supreme Court has a conference day today, but it is highly unlikely that any decisions on which cases they will accept for review will be announced before Monday. Our previous post on today's conference is here. The Court issued some orders on briefing and argument in a couple of pending civil cases.

PTSD in Jurors

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"Researchers discovered that jury service can leave some people suffering from anxiety or even post-traumatic stress disorder, a condition normally associated with war veterans," reports Murray Wardrop in the London Telegraph.  The article notes the recent case of Josef Fritzl in Austria.*

Should the particularly squeamish be excused from violent cases on the ground that service may be hazardous to their mental health? Would the defense then claim that this violated the Sixth Amendment right to a jury that is a cross-section of the community?

As applied to the states, at least, that right was fabricated by the Supreme Court back in 1975 in Taylor v. Louisiana, 419 U.S. 522, a case on the exclusion of women from juries. The cross-section fiction was necessary to get around the problem of the very low level of scrutiny for sex discrimination at that time and the standing problem for a man challenging exclusion of women. Both of these are no longer problems. Sex discrimination now receives a higher level of scrutiny, and parties now have standing to raise the equal protection rights of jurors. It is high time to dispense with the fiction and allow states to decide who can and who must serve on juries as a question of public policy, so long as they steer clear of the suspect and quasi-suspect classifications of race and sex.

* I was somewhat surprised to learn that Austria has jury trial. More on that case here.
Maryland AG Douglas Gansler says the bill put together hastily in a last-minute compromise in the Maryland Senate is "ill-prepared, ill-thought-out, awkward and clumsy," reports Julie Bykowicz in the BaltSun. "'These artificial limits [in the bill] do not make sense in the real world of litigation,' [Balt. Co. DA Scott] Shellenberger said."

At the House hearing, Del. Michael D. Smigiel Sr., an Eastern Shore Republican, and Del. Susan McComas, a Harford County Republican, bristled at the suggestion by death penalty opponents that the House should pass the Senate's bill without amendments so that it goes directly to O'Malley's desk.

The AG has this op-ed in the BaltSun.

News Scan

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Too Many Thieves In Milwaukee:   The Associated Press reports that two thieves fleeing a jewelry store heist were robbed by another pair of thieves before they could make their escape.  A police lieutenant said after the original thieves were robbed a fight broke out between the four criminals which ended when they jumped in their cars to avoid arrest.  Following a chase, all four were taken into custody.

Tolerating Graffiti seems to be the rule for city leaders in San Francisco. SF Chronicle writer C.W. Nevius reports that a lack of enforcement, mild consequences and the fact that property owners simply get tired of repeatedly painting over tags has resulted in so much graffiti that some freeway signs are unreadable.  The problem has gotten worse since 2004, when the City required property owners to remove graffiti within 30 days for face up to a $500 fine.  The City's Graffiti Abatement Officer says that the taggers have told him that they avoid places like nearby Daly City because they have tougher penalties.  In Seattle, where there is little graffiti, taggers spend six months in jail for a first offense.   

Death Penalty Legislative Update: John Gramlich has this story at on legislative activity in various states -- some considering bills to implement the death penalty better and some considering repeal.

Blog Scan

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Obama Administration Has New Drug Policy:  Ashby Jones posts on Wall Street Journal Blog that the Obama administration does not plan to prosecute marijuana dispensaries in California unless the dispensary violates a federal law.  Jones reports that in a "sit-down" with reporters, Attorney General Eric Holder announced that the Justice Department will be targeting "outlets operating in violation of both federal and state law, such as those being used as fronts for drug dealers."  The Obama administration's new policy is different from the policy implemented by the Bush administration.  The Bush administration approved raids of medical marijuana distributors that violated federal statutes even if the dispensaries appeared to be complying with state laws.  Josh Meyer and Scott Glover have an article on the announcement in today's LA Times, and David Johnston and Neil A. Lewis have a piece in the New York Times. 

ABA President Comments on Its Reintroduction to Judicial Nominations: Tony Mauro posts his interview with ABA President, H. Thomas Wells Jr., on Blog of the Legal Times today.  The post reports on the ABA's return to the judicial nomination process, and gives Wells' account of how the Obama administration brought the ABA "back into the fold."  Wells also addressed recent media reports that the ABA's ratings of nominees skew toward liberals and give conservative nominees generally lower rankings.  Wells, who has not seen the research, does not believe the ABA is biased.  He claims the nominations committee is insulated from ABA policies and confines its assessment of nominees to issues of integrity, competence, and temperament -- not ideology or politics.

Supreme Court Petition to Watch:  On SCOTUSblog, Kristina Moore posted "Petitions to Watch" for next week's private Supreme Court conference. On the list of cases up for consideration is Virginia v. JaynesVirginia v. Jaynes asks whether a court, when presented with a claim that a statute is overbroad, is required to compare the statute's constitutional applications with the statute's actual unconstitutional application.  CJLF's brief in support of certiorari can be found here

Disinformation Strikes Again

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Yesterday, New Mexico Governor Bill Richardson signed the bill to sacrifice the lives of the innocent to save the guilty. That is not a great surprise.  The oddest thing about his announcement, though, was that he cited the discredited "innocence list," saying that 130 people had been "exonerated." AP story by Deborah Baker is here. This fraudulent statistic continues to be cited by people with decision-making authority despite Ward Campbell's excellent work debunking it.

Doug Berman has this post on the unusual nonretroactivity provision of the law. There are two murderers presently on Nuevo Mexico's death row.

Blog Scan

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Dodging Use of "Enemy Combatant":  Today's Wall Street Journal features an editorial on "Prisoners of W--."  The editorial discusses the Justice Department's decision to renounce the phrase "enemy combatant" and use a new, yet "identical," definition for individuals detained at Guantanamo Bay.  The Wall Street Journal criticizes the author of last week's Justice Department memorandum (discussed in last Friday's Blog Scan) for forsaking a simple definition for a far more complex definition.  Now, instead of detaining "enemy combatants," a term rooted in international law and custom, the President has the authority to detain "individuals captured in connection with armed conflicts and counterterrorism operations," or "members of enemy forces," or "persons who [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks."

Reliability of Eyewitness Identification:
  Hat tip to Howard Bashman at How Appealing for his post reporting on an audio segment on NPR's "Day to Day" discussing the reliability of eyewitness identification in criminal trials.  The segment, from writer Dahlia Lithwick, dicusses research from Gary Wells and Deah Quinlivan.  Wells is a psychology professor from Iowa State University.  According to Lithwick, Wells' study shows that of the more than 230 people in the United States who were wrongfully convicted and later exonerated by DNA evidence, approximately 77 percent involved cases of mistaken eyewitness identification.  This is more than any other factor.  Wells and Quinlivan's study was published in last month's Law and Human Behavior.

A Call for Death Penalty Supporters to Speak Out:  In a post at Sentencing Law and Policy, Doug Berman writes: "[I]t appears that those constituents who are opposed to the death penalty made extra efforts to ensure [New Mexico] Governor Richardson heard their views."  Berman is referencing New Mexico's bill to repeal the death penalty, and the Governor's decision to hear from New Mexicans about the House Bill 285 before he takes action tonight.  According to a press release from the Governor's Office the Governor has heard from 9,400 people since the bill passed last Friday.  "Of those, 7169 were FOR the repeal of the death penalty and 2244 were AGAINST."  

The ABA and Judicial Nominees

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Marcia Coyle reports in the National Law Journal:

Controversy over the American Bar Association's ratings of potential judicial nominees is likely to continue with the announcement that the bar group will resume its role of evaluating candidates before their nominations. In fact, a soon-to-be-released study by political scientists concludes what conservative groups have long charged: The ratings are biased against potential conservative nominees.
Hat tip: How Appealing

Kansas DP Bill Stalled

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It appears that the death penalty repeal bill in Kansas has stalled and is probably dead for the session. Jeannine Koranda reports for the Wichita Eagle that the bill has been referred back to committee for further study. "Judiciary Committee Chairman Tim Owens, R-Overland Park, says the move probably ends the debate for the year. His panel is likely to forward the measure to the state's advisory Judicial Council for review."

This is one of those rare cases where further study is actually needed. Legislatures have been moving forward under inflated estimates of cost savings from repeal and failure to consider the cost savings that could be achieved by the alternative of fixing the review process.

News Scan

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Gov. O'Malley is urging delegates to "abandon their effort to repeal the death penalty and instead adopt an alternative that limits capital cases" writes Julie Bykowicz, of the Baltimore Sun. Colleagues of the governor have voiced their disappointment for not seeking a full repeal. But so far, the proposed plan is to "allow capital punishment only in murder cases where DNA evidence, a video recording of the crime or a voluntary, videotaped confession by the killer." Baltimore County State's Attorney, Scott D. Shellenberger points out, "if it [does] become [the] law, Maryland would have one of the narrowest capital punishment statutes in the country [and] it would severely limit prosecutors' ability to seek capital punishment."

Will Canadian on death row be granted clemency?: A story by CBS News writes that "a Canadian man on death row in a Montana State Prison says he believes he may get clemency now that lawmakers in the state legislature are voting next month on whether to end the death penalty." Ronald Allen Smith is on death row for murdering two young aboriginal men while hitchhiking back in 1982. Smith claims he is remorseful, "I realize-just through the interactions with my family-I realize what I've done to the families of the two victims." So what? Smith may be feeling bad, but that will not replace both families loss. "I wouldn't have to think about it every day. Everyday, I get up, I sit and drink a cup of coffee, and I look at my son's picture and...think about it...It's just like it happened yesterday. There's no change'" said Thomas Running Rabbit Sr.

Heller Meant What It Said

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At the NYT, Adam Liptak has the scoop that lower courts are uniformly finding that the Supreme Court's landmark Second Amendment decision, District of Columbia v. Heller, does not overturn the laws that it expressly said it did not overturn. From the opinion:

... nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
From today's NYT story:

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal immigrants and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.

Anyone surprised by this development is cordially invited to my next poker game.

The Heller decision is not "firing blanks." It is merely not hitting targets it was not aimed at. When another highly restrictive gun control law like D.C.'s comes up for review, one that prevents law-abiding citizens from possessing guns for basic self-defense, then it will be time to assess its impact.

Doug Berman has a different view at SL&P.

Blog Scan

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Kansas' Death Penalty Debate: Doug Berman has a post on Sentencing Law and Policy with a link to an article in the Topeka Capital-Journal.  The article discusses the debate over Senate Bill 208, which will remove the death penalty as a sentencing option after July 1, 2009.  According to the article, and Berman's post, opponents of the death penalty have made the same arguments (morally wrong and too expensive) in support of the Bill.  In addition, supporters argue that Senate Bill 208 should pass because inmates with a pending death sentence will remain on death row.  Kansas' Attorney General Steve Six believes that abolition of capital punishment for future offenders will trigger new appeals by anyone facing execution in Kansas.  This means that some of Kansas' most notorious murderers could avoid execution and spend the rest of their lives in prison.

The Second Amendment, Originalists, and Chicago:  At Wall Street Journal Blog, Ashby Jones posts his summary of Jess Bravin's piece in Saturday's Wall Street Journal, "Rethinking Original Intent."  The piece centers around a Chicago gun-control case that raises the issue of whether the Second Amendment restricts the city's ability to limit the use of handguns.  According to Jones and Bravin, the issue was not covered by D.C. v. Heller because, unlike Heller, the Chicago case deals with a state statute.  Since the case addresses a state law, and not a federal rule, the issue becomes whether the Supreme Court's ruling in Presser v. Illinois - that the Second Amendment does not apply to the states - is still valid precedent.  Both Jones' post, and Bravin's piece, focus on how else the Supreme Court might make the Second Amendment binding on the states.   

Legal Times to Merge with The National Law Journal:  David Ingram writes on Blog of the Legal Times that Legal Times will merge with The National Law Journal.  The new publication will focus on national legal news, with a special emphasis on Washington, D.C.  The current editor and publisher of the Legal Times will become the editor in chief of the new National Law Journal, and the current publisher of The National Law Journal will continue in that role.  The National Law Journal's website will also be redesigned to include the Blog of the Legal Times.  According to the press release, the first publication of the updated National Law Journal will be available in May.  Orin Kerr also has this post on the merger at Volokh Conspiracy.   

New Mexico Death Penalty

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The Governor of New Mexico, Bill Richardson, is asking for input from the people as to whether he should sign or veto the Legislature's bill to sacrifice the innocent to save the guilty. Today is the last day. Announcement here. Contact page here.

Washington Legislation

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The Tacoma News-Tribune has an update of legislation in the "home stretch" of the Washington Legislature, by Joseph Turner. Text of the Crime & Punishment section follows the jump, with my comments in italics.

Habeas and Custody

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The writ of habeas corpus, at its core, is an attack on allegedly unlawful custody. Attack on the underlying criminal judgment is incidental. For this reason, if the petitioner is already out of custody by the time he files, there is no habeas jurisdiction in federal courts. See, e.g., Maleng v. Cook, 490 U.S. 488 (1989).

On Monday, the California Supreme Court will address this problem with regard to persons convicted in California courts and presently in the custody of immigration authorities because of the California convictions. Federal law provides for deportation of aliens who commit various offenses. Can they attack their state convictions on state habeas, even though not in state custody? How about coram nobis?

Update, Monday: Both opinions are unanimous, written by Justice Werdegar. People v. Villa goes through some habeas history before concluding, consistently with the federal rule, that there is no habeas to deal with the collateral consequences of a conviction when the defendant is no longer in the custody of the convicting state by even the most stretched definition of that word.  That probably means deportation for Villa due to a 20 year old charge of possession of cocaine for sale.

People v. Kim reviews the writ of error coram nobis and finds it is unavailable to knock down Kim's earlier conviction to avoid deportation. Kim is a considerably less sympathetic character with a string of offenses, and he has already gotten multiple breaks. The reductions he did receive were sufficient to move him down from mandatory to discretionary deportation, but the Board of Immigration Appeals was "unconvinced that [defendant's] long residence in the United States, his family ties and his rehabilitation outweigh his substantial criminal history and recidivism." That case is still in the Ninth Circuit, where anything is possible.

Blog Scan

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U.S. "Refining" Its Claim on Detention Power:  At SCOTUSblog, Lyle Denniston posts that the Obama Administration has outlined a new position with regard to those that are being detained at Guantanamo Bay.  In a memorandum submitted to U.S. District Court Judge John Bates the Obama Administration has disclosed its detention authority is based on the Authorization for the Use of Military Force (AUMF), which is not necessarily informed by the laws of war. The new stance casts aside the Bush Administration's policy that the President has detention power because he is Commander-in-Chief.  Attorney General Eric H. Holder, Jr.'s separate "declaration" can be found here.  Also available is the Justice Department's press release discussing the new Administration's stance.  Joe Palazzolo also has this post at Blog of the Legal Times. 

U.S. Sentencing Commission's 2008 Annual Report:  Doug Berman has posted the Sentencing Commission's 2008 Annual Report and Sourcebook of Federal Sentencing Statistics.  The Sourcebook provides figures, charts, and tables of selected national, circuit and district sentencing data. 

Wrongfully Convicted Men Can Sue the Federal Government:  At Blog of the Legal Times, Jordan Weissman posts on yesterday's decision from U.S. District Judge Rosemary Collyer that two wrongfully convicted men could sue the government.  Joseph Eastbridge and Joseph Sousa were convicted for the 1976 murder of 26-year-old Johnnie Battle.  Sousa served 19 years before winning parole in 1995, and Eastbridge was released in 2005, just 30 days before Judge Collyer cleared the men of wrongdoing.  The 2005 decision followed testimony from a co-defendant than neither Eastbridge nor Sousa were involved in Battle's murder.  After their convictions were overturned, their lawyers pursued a wrongful conviction claim under 28 U.S.C. §§ 1495 (Court of Claims jurisdiction) & 2513 (substantive requirements).  Yesterday's ruling will allow the suit to go forward because Judge Collyer found that Sousa and Eastbridge's own actions did not contribute to their prosecution, which is one of the requirements under § 2513. The Justice Department had opposed this finding, arguing that Sousa and Eastbridge brought about their prosecution by helping the murderer escape.  Both men will now be able to seek up to $50,000 for each year they were in prison.  

News Scan

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'Robert Blecker Wants Me Dead' documentary: An article, by Hank Stuever of the Washington Post, reports that "Blecker, a New York Law School professor, supports the death penalty on such a contrary and nuanced level-he calls himself an 'emotional retributivist'--that has set him apart from both sides of the debate and a large swath of the legal realm." The short film documents Blecker and his interaction with Daryl Holton, a death row inmate convicted of killing his four children in 1997 (Holton was executed September 2007). The film "is not rated. It contains graphic descriptions of murder and capital punishment."

Biil Ayers & Bernardine Dohrn Accused of SF Bombing
: A story by Demian Bulwa, of the Associated Press, says "leaders of San Francisco's police officers union have accused Weather Underground co-founder Bill Ayers and his wife, Bernardine Dohrn, of taking part in the 1970 bombing of a city police station that killed a sergeant." The union is lobbying for arrests in the case and are citing Larry Grathwohl as their main source of information. Grathwohl "asserts that he infiltrated the Weather Underground as an FBI informant and heard Ayers confess to a role in the bombing." So far, "Ayers, an education professor at the University of Illinois at Chicago, did not return a call Wednesday. Dohrn, a law professor at Northwestern University, was out of the country."

New justices for the U.S. Supreme Court?: "Justice Ruth Ginsburg told law students Friday there could be an opening on the Supreme Court soon but didn't hint at who might be leaving," writes Melissa Trujillo, of the Associated Press. "Court watchers suggest Ginsburg, 88-year old John Paul Stevens and 69-year-old David Souter are the most likely to retire."

The ease of obtaining passports: Eileen Sullivan, of the Associated Press, writes that "using phony documents and the identities of a dead man and a 5-year old boy, a government investigator obtained U.S. passports in a test of post-9/11 security." Terrorists, criminals, and illegal aliens depend on fake documents and pay large sums to acquire them, so why the ease? According to Janice Kephart, an expert on travel document security who worked on the 9/11 Commission Report said, "[the State Department], which processes and issues passports-does not have the ability to ensure that supporting documents are legitimate." So far, no comments have been made by the department.

SCOTUS March 20 Conference

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SCOTUSblog has their "petitions to watch" list for the March 20 conference here, with two criminal cases. One is the warden's (actually Philly DA's) petition in the continuing saga of Mumia Abu-Jamal, No. 08-652. Good chance this one will be "relisted" to be considered together with Abu-Jamal's cross-petition, No. 08-8483.

In Clark v. United States, No. 08-673, the defense side seeks once more to overrule Harris v. United States and apply Apprendi to mandatory minimums.

Also, there are two crime-related civil cases. Amerisource Corp. v. United States, No. 08-497, addresses evidence seizures and the Takings Clause.  Pavey v. Conley, No. 08-886, deals with the Prison Litigation Reform Act and exhaustion.

Eleventh Hour Claims

If there is any proposition of law that should be clear beyond question, it is that a death row inmate cannot attack the method of execution at the eleventh hour and get a stay of execution, when the claim has been known for years. The U.S. Supreme Court made that clear for stays issued by federal courts in the debacle surrounding the execution of Robert Alton Harris in 1992, the first California execution of the modern era. See Gomez v. USDC-NDCal, 503 U.S. 653.

State courts can go their own way, of course, and the Washington Supreme Court just did in the case of Cal Brown, previously noted here. Jennifer Sullivan has this story in the Seattle Times, with links to the victim's family's letter to the judge and the Washington Supreme Court order.

The order is signed by ACJ Charles Johnson, and dissents are noted by CJ Alexander and Justices Owens, Fairhurst, and James Johnson. Hence this disgrace must have been joined by Justices Madsen, Sanders, Chambers, and Stephens.

Note well, people of Washington, that Madsen and Sanders are up for reelection in 2010.
Lester Jackson, PhD sent me a link to his paper posted on SSRN with the title "Fact Suppression and the Subversion of Capital Punishment: What Death Penalty Foes on the Supreme Court and in the Media Do Not Want the Public to Know." I've only been able to skim the paper so far, but his points appear to be valid, if expressed in a somewhat overheated style. "While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause." Bull's-eye. Abstract follows the jump.

News Scan

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Texas executes second condemned killer for 2009: Michael Graczyk, of the Associated Press, writes about Luis Salazar, who "was condemned for fatally stabbing Martha Sanchez" over 11 years ago. Salazar had an extensive criminal history, with previous sentencing given for sexually attacking a mentally disabled high-school student and aggravated robbery. Erick Martinez, Sanchez's eldest son who "awoke to his mother's cries and tried to defend her from [the] attack," said "'it wasn't difficult [to watch Salazar's execution]. I was kind of looking forward to it.'"

Guantanamo ex-prisoners rejoining Taliban?: Pamela Hess, of the Associated Press, writes that "Abdullah Ghulam Rasoul, formerly Guantanamo prisoner No.008, was among 13 Afghan prisoners released to the Afghan government in December 2007." Now, "Pentagon and intelligence officials said Rasoul has emerged as a key militant figure in southern Afghanistan." Obama's signed executive order to close the jail next year is cause for concern because "the Pentagon's preferred option is to hand [prisoners] over to their home governments for imprisonment. But the Defense Intelligence Agency's growing list of former prisoners that have rejoined the fight shows that, in some cases, that system does not work."

Death penalty for Saddam's half brothers: The story by Hindustan Times writes that "Iraq's Criminal Court on Wednesday sentenced two half-brothers of former President Saddam Hussein to death for the execution of 42 merchants in 1992, and jailed close Saddam adviser Tariq Aziz for his role in the executions." The names of the brothers "were Watban and Sabaawi Ibrahim al-Hassam."

Blog Scan

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Judge Posner Gives Two Opinions of Prosecutors' Behaviors:  At Sentencing Law and Policy, Doug Berman posts parts of two Seventh Circuit decisions on two very different issues.  Berman finds them noteworthy though because both opinions, written by Judge Posner, comment on the behavior of federal prosecutors.  The first case, U.S. v. Farinella, criticizes the prosecutor's improper statements during her closing arguments, as well as her "additional improprieties."  Judge Posner comments that while the government's attorney argued on appeal that an appropriate sanction might be a "talking-to" from her superior, the panel was "not impressed by the suggestion."  In the second case, U.S. v. Richardson, the Seventh Circuit refused to upset the federal prosecutor's decision not to move for a reduced a sentence unless the defendant dropped his appeal.  In Richardson, the defendant was sentenced to 140 months in prison and then helped the government in an unrelated prosecution.  At the time, the government offered to ask the judge to reduce his sentence based on his cooperation, but only if Richardson withdrew his appeal.  While this tactic might seem improper, the Seventh Circuit found the prosecutor's action to be reasonable.

Justice Thomas Gives Rare Appearance:  Eric Barendsen of Blog of the Legal Times posts on Justice Thomas' talk at Howard University School of Law yesterday.  His appearance was a part of the James M. Nabrit Jr. Lecture Series which has previously featured some of his fellow Justices.  According to Barendsen, the talk focused primarily on Justice Thomas' 2007 book, My Grandfather's Son, but later Justice Thomas gave a summation of his experience during his "brutal" 1991 confirmation hearings.  Justice Thomas stated that the process "was very hard," and he thought about giving up "thousands of times," but he did not.  In other words, Justice Thomas wanted to impart the message that students should not give up.  As Justice Thomas recalled his grandfather saying: "Old man 'can't' is dead. I helped bury him." 
In the federal system, the authorization to seek the death penalty is made centrally by the Attorney General.* I had expected few or no authorizations from AG Eric Holder. That did not bother me much, as there are very few cases that should be both capital and federal. The death penalty is for murder and major crimes against national security, and very few of the former should be federal cases.

There are a few that should be, though, and the AG has authorized the DP in one of the few, John Ellis reports for the Fresno Bee.

Newly appointed Attorney General Eric Holder has authorized prosecutors to seek the death penalty against two inmates at Atwater's high-security federal penitentiary suspected of stabbing and killing a correctional officer last June....

Holder ... sent a two-paragraph letter to acting U.S. Attorney Larry Brown that he was "authorized and directed" to seek the death penalty against Jose Cabrera Sablan and James Leon Guerrero.

The two inmates, who are both from Guam, are charged with first-degree murder in the death of Chowchilla resident Jose Rivera, a U.S. Navy veteran who served four years in the military, including two tours in Iraq.

Rivera, 22, died June 20 when Sablan and Guerrero allegedly stabbed him through the heart with a prison-made shank. Both inmates were already serving life sentences for earlier crimes.

That last fact proves, once again, that a life sentence does not guarantee an inmate will not commit murder.

Only in the Ninth

Yesterday, the Ninth Circuit pseudo en banc* decided the case of Fisher v. City of San Jose.

We address the Fourth Amendment's exigent circumstances doctrine in the context of armed standoffs. Steven Fisher triggered a standoff with San Jose police after he pointed a rifle at a private security guard who was investigating loud noises in Fisher's apartment complex. When the police arrived at his apartment, a noticeably intoxicated Fisher pointed one of his eighteen rifles at the officers and threatened to shoot them. The ensuing standoff lasted more than twelve hours and ended peacefully when Fisher finally emerged and allowed himself to be taken into custody. We hold that Fisher's civil rights were not violated when police arrested him without a warrant.

Nothing remarkable there. Here is the weird part. Believe it or not, there is actually a dissent to that, and the final vote is only 6-5 in a clear, easy case that should be unanimous.
Monday there was a rather testy exchange among Justices Stevens, Thomas, and Breyer over the claim that long delays in execution are themselves cruel, though hardly unusual. The three opinions "relating to" denial of certiorari in Thompson v. McNeil, No. 08-7369, are available at this page.

Warren Richey has this article on the case for tomorrow's Christian Science Monitor.

Blog Scan

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UC Hastings Hosts Conference on California Corrections:  Doug Berman at Sentencing Law and Policy provides links to U.C. Hastings College of the Law's "California Correctional Crisis" Conference and its program.  The conference will take place next Thursday and Friday at the California State Building in San Francisco.  It will feature panels on sentencing reform, special prison populations, and prisoners release back into the community.  Berman also reports that the organizers of the conference (U.C. Hastings College of the Law and Hastings Race and Poverty Law Journal) have set up a blog to provide "News, Updates and Opinions on Sentencing and Corrections in California." 

New Federal Sentencing Reporter Issue on Sex Offenders:  Yesterday, Doug Berman posted a link to the major articles in the newest issue of the Federal Sentencing Reporter.  The newest issue focuses on recent developments in the punishment and management of sex offenders.  The issue features an article from Michael O'Hear an associate dean at Marquette Law School, and an article Corey Rayburn Yung, the lead blogger of the Sex Crimes.

Mini U.S. Supreme Court "StatPack":
Kristina Moore posted a mini Supreme Court "StatPack" on SCOTUSblog yesterday detailing the Court's docket and statistics for the 08-09 term.  March's "StatPack" includes a Circuit Scorecard and information about the authors of each opinion by sitting.  According to Moore, all of the cases that were authored in October (except Arizona v. Gant) have been decided, and Melendez-Diaz v. Massachusetts and F.C.C. v. Fox Television Stations are the only remaining decisions from the November sittings. 

Detached Regret

I propose a new rule. A person caught in a misdeed should get zero or negative credit for an expression of remorse that only expresses regret for the event and not the person's role in causing it.

Baystate Medical Center in Springfield, Mass. has acute pain from its former chief of acute pain, Scott S. Reuben. Keith Winstein and David Armstrong report in the WSJ that the "prominent Massachusetts anesthesiologist allegedly fabricated 21 medical studies that claimed to show benefits from painkillers like Vioxx and Celebrex...." Faking data is the cardinal sin of science.

"Dr. Reuben deeply regrets that this happened," said the doctor's attorney, Ingrid Martin.

Excuse me, Dr. Reuben and Ms.Martin, but how did "this" just "happen"? Did fabricated data grow spontaneously on your flash drive? How many times have we heard the politician version, "mistakes were made"?

I don't know if this is a crime. It should be. The point, though, is that we see this in criminal cases as well. People try to get less condemnation, if not actual sympathy, for acts that deserve condemnation by saying how sorry they are. If such expressions are to be considered at all (and there is a good argument they should not), at the very least the defendant must say "I'm sorry I did it," not "I'm sorry it happened." Everybody is sorry it happened, but the rest of us didn't do it.

Update:  The post has been corrected to remove an incorrect usage of a technical grammatical term.

News Scan

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'Terrorists to the Bone' are what the accused 9/11 suspects have declared themselves as. Jess Bravin of the Wall Street Journal writes, "Khalid Sheikh Mohammad and four other accused in the Sept. 11, 2001 conspiracy called U.S. allegations 'badges of honor' in a written statement slated for public release Tuesday." Also in the statement, an ending "praising the 19 suicide-hijackers and predicting America's demise. 'You will be greatly defeated in Afghanistan and Iraq,' it says, later adding: 'Your fall will be just as the fall of the towers on the blessed 9/11 day.'" So what does their defense have to say? According to the appointed military attorney, "'there is no evidence that Mr. al Hawaswi knew about, read or signed th[e] document [because] it is a typed message in English with no signature.'"

Spending too much on prisons?: Solomon Moore, of the New York Times, writes that "states have shown a preference for prison spending even though it is cheaper to monitor convicts in community programs, including probation or parole." According to a Pew study, these high costs towards prison spending has cut into programs such as education and health care. Brian Walsh, a fellow researcher of the conservative-leaning, Heritage Foundation, argues, "the reality is that one of the reasons crime rates are so low is because we changed our federal and state systems in the past two decades to make sure that people who commit crimes, especially violent crimes, actually have to serve a significant sentence."

Guilty plea for corruption: Ann Copland, Mississippi Sen. Thad Cochran's former aide, plead guilty to corruption charges Tuesday. The story by Nedra Pickler, of the Associated Press, states, "Ann Copland admitted to U.S. District Judge Richard Roberts that she took $25,000 to $30,000 in gifts in exchange for helping one of Abramoff's top clients, the Mississippi Band of Choctaw Indians." Copland is not alone with such charges though, she just happens to be "the latest among more than a dozen congressional aids, lobbyists, lawmakers and Bush administration officials convicted as part of a lobbying scandal spawned by Abramoff, a former high-flying influence peddler now serving a four-year prison term."

Blog Scan

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Courtroom Safety Is An Issue in California: Ashby Jones has posted on the Wall Street Journal Blog about recent attacks in California courtrooms.  The post follows an article in the Sacramento Bee by Kim Minugh and Diana Lambert reporting on the stabbing of San Joaquin Superior Court Judge Cinda Fox during a murder trial in Stockton last week.  Our post on the incident can be found here. Jones' WSJ post states that an article in today's Daily Journal has reported that California courthouses are now turning their attention to courtroom safety.  And judges are apparently doing the same thing.  One Tehama County judge has decided to protect himself from attack by packing a .38 pistol under his robe.

The Daubert Revolution:  Over at Volokh Conspiracy David Bernstein has posted a link to his Engage article that discusses the effects of the Daubert rulings. According to the abstract Bernstein's article discusses the consequences of Daubert v. Merrell Dow Pharmaceuticals and its progeny (General Electric Co. v. Joiner, and Kumho Tire Co., Ltd., v. Carmichael) and finds that their implementation has been "quite positive."  The article also discusses three limitations to the benefits of Daubert

A Justice Comments On Serving On the U.S. Supreme Court:  At Blog of the Legal Times, Tony Mauro writes that while some believe serving on the U.S. Supreme Court would be "an intellectual feast," Justice Souter commented last night that every term he "undergoes a sort of annual intellectual lobotomy.'"  The comment seems odd, but Mauro writes that it was made  to serve a larger point that Americans need to develop a "habit of mind" that includes reading books, and reading books is something Justice Souter does not get to do much of while the Supreme Court is in session.  Hence the "intellectual lobotomy" comment.  Mauro's post concludes with Justice Souter's discussion of what he believes to be necessary to develop a healthy "habit of the mind."  According to Mauro, the Justice advocates reading, intellectual curiosity and self-doubt.

Definitional Sleight of Hand

Among statistics scammers, one of the favorite weapons is the creative definition. James Taranto of the WSJ has a great example here. The National Center on Family Homelessness released a report saying, "One of every 50 American children experiences homelessness...." The Associated Press reports that claim here, as the story lead.

Now let's take a look at the full report. On page 5, we find that the definition of "homeless" includes persons who are "Sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason (sometimes referred to as doubled-up)." By this definition, my brother-in-law and his family were "homeless" their first few years in America. They lived in my home. Needless to say, they did not consider themselves homeless. Nor did I.

The report says this preposterous definition of "homeless" is written into the No Child Left Behind Act. That is not the silliest thing Congress ever enacted, I suppose, but it's in the bottom tier.

One of the first rules of skeptical reading of studies is to watch those definitions.  As we have noted here more than once, there are people who are guilty as sin on the notorious "innocence list."

The thing that bothers me is that people can put out bogus reports with doctored numbers, and very few people seem to care as long as the policy position being advocated is Politically Correct. The reports are taken seriously and cited in public policy debates as if they were the truth. Organizations that have played fast and loose with numbers retain their reputations, when by all rights they should be treated as having completely forfeited their credibility, and their next report will be taken seriously as well.

The "liberal" Justice Thomas

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"Clarence Thomas, Supreme Court liberal?" reads the headline on David Savage's piece in the L.A. Times Sunday. Of course, Justice Thomas is not a "liberal." He is, however, "a steady advocate of limited federal power and respect for states' authority." His all-weather federalism sometimes produces results that please liberals.  Savage recounts the recent drug suit preemption case, Wyeth v. Levine, and the marijuana case of four years ago, Gonzales v. Raich.

The Constitution makes federal power supreme but limits it to those areas designated in the Constitution itself. Everything else is for the people of each State to decide for themselves. Fair-weather federalists cite this principle or abandon it, depending on whether they like the outcome it points to. All-weather federalists remain faithful to the principle, wherever it points.

Scheduled Execution in Washington

The State of Washington intends to finally carry out justice on Friday for the rape, torture, and murder of Holly Washa in the Seattle suburbs in 1991, reports Shannon Dininny of AP. This is significant for several reasons:

First, and foremost, this is the just punishment for Cal Coburn Brown's crime, and he has evaded it far too long already.

Second, this will be the resumption of executions in Washington after an 8-year hiatus. Although the number of people who support the death penalty has not dropped significantly in recent years, according to Gallup, some supporters are not as strong as they used to be due to a fatigue factor. When executions remain blocked, some people are prone to throw in the towel and assume we will never fix the problems in the review system.

Third, Washington is in the Ninth Circuit. It is important symbolically to demonstrate that it is possible to get death penalty cases through even in the worst circuit (in this case, with a little help from the Supreme Court).

Fourth, Washington is not in the South. One of the strategies of the anti side is to try to isolate the death penalty to the South, then convince the rest of the country that it is just another regional aberration, invoking all the old stereotypes. Resumption of executions in Ohio and now in Washington works against this strategy.

There will, of course, be the usual last-minute throw-everything-against-every-wall paper blizzard.  Let us hope that long-delayed justice will be carried out on Friday nonetheless.

Update: As "federalist" notes in the comments, the Washington Supreme Court has denied a stay. Washington courts press release with links to the orders is here. Seattle Times story by Jennifer Sullivan is here.

Blog Scan

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Legalizing Marijuana:  Doug Berman posts links to two recent op-eds calling for the legalization of marijuana and other drugs.  The first piece discussed by Berman was printed in last week's Economist and discusses the United Nation's March 2009 meeting "to set international drug policy for the next decade."  The editorial states that because "[p]rohibition has failed" "the least bad policy is to legalise drugs."  A second, more recent op-ed by Dave Stancliff appeared in Eureka's Times-Standard.  His piece calls to "jumpstart California's sagging economy" by legalizing drugs.  The op-ed discusses California's consideration of Tom Ammiano's AB 390, a bill which would "legalize the possession, sale, cultivation, and other conduct relating to marijuana and its derivatives by persons 21 years of age and older."  The bill would setup a system for its taxation and regulation.  On the issue of legalization Berman comments that while he is "not holding my breath...tough economic times certain make this a better possibility now than probably any other time is my lifetime."

Supreme Court Declines to Hear Victims' Challenge to Gunmaker Immunity:  Hat tip to Howard Bashman at How Appealing for providing a link to Greg Stohr's report on the U.S. Supreme Court's decision not to hear victims' challenges to a 2005 law shielding gunmakers from lawsuits that seek to hold them liable for urban violence.  In New York v. Beretta former Mayor Giuliani sought court-ordered changes to industry practices to keep illegal guns out of the city.  Lawson v. Beretta similarly involved nine people who were either injured by gun violence or were representing people killed by assault weapons or machine guns in Washington D.C.  Both cases had been thrown out of lower courts.  According to Stohr, the Obama administration had urged the Court not to challenge the constitutionality of the 2005 Act.  

Comment on Justice Ginsburg's Strickland Dissent:  At Bench Memos, Ed Whalen criticizes Justice Ginsburg's use of judicial dissent as a form of political activism.  In his post, Whalen points to two of the Justice's dissents, Ledbetter v. Goodyear Tire and today's Bartlett v. Strickland, as examples of Justice Ginsburg's political activism.  In her Bartlett dissent, Justice Ginsburg wrote: "Today's decision returns the ball to Congress' court.  The Legislature has just cause to clarify beyond debate the appropriate reading of §2."  Whalen is upset at her steady use of dissent "to invite Congress to legislate on a matter..." Orin Kerr also posts his thoughts on Volokh Conspiracy. 

A Practical Supreme Court

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One of the strangest doctrines in the criminal law is that a prevailing party can have its judgment taken away because of the misconduct of the opposing counsel. Just imagine the screams from the tort plaintiffs' bar if appellate courts started overturning their judgments for ineffective assistance of defense counsel. Yet it happens every day in criminal cases. The Ninth Circuit has an unwritten de facto rule that every defense attorney whose client is sentenced to death is ineffective.

Today in Vermont v. Brillon, the Supreme Court declined to start down a similarly strange road. When a defendant claims a violation of his right to speedy trial, "delays caused by defense counsel are properly attributed to the defendant...."

The vote was 7-2-0, with Justice Ginsburg writing the opinion of the Court. Justices Breyer and Stevens do not disagree with the proposition quoted above, but they do not think the case actually presents that question.

Justice Ginsburg's opinion has a decidedly practical bent to it. She sees the consequences of the rule Brillon proposed and the Vermont Supreme Court bought. She foresees sandbagging by defense lawyers who know that if they manage to delay long enough, their client will get off altogether. She foresees that possibility as making trial judges skeptical of time extension requests from the defense. If the defense lawyer actually needs more time to prepare, an extension request could cause reversal for speedy trial delay if granted and reversal for ineffective assistance if denied. That road leads to nothing but a swamp. Better not start down it.

This case illustrates once again how the practical, albeit defense-leaning, jurisprudence of Justice Ginsburg differs from the implicit rule of "vote for the defendant nearly every time and damn the consequences" that we saw with Justices Douglas, Brennan, and Marshall. We survived eight years of President Clinton with the Constitution intact, in part because he was not all that interested in appointing hard-core activists to the Supreme Court and in part because Republicans had enough strength in the Senate to stop him even if he wanted to. What awaits us for the next four or eight years remains to be seen.

Meanwhile, back at the orders list, the Court turned down both parties' petitions in the North Carolina case of murderer Dr. William Gray. Like Brillon, it was a case of a defendant seeking a reversal for matters that were primarily his own fault, as noted here. Even a practical Supreme Court can't reverse every wrong decision in this area.

News Scan

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Victims Speak Out for DP:  The brothers of 18-year-old Jody Stambaugh , who was raped and murdered in 1972 by a habitual sex offender, detail the ordeal they and the family of another victim have gone through over the years in this article in the Anchorage Daily News.   Alllen Walunga was convicted of what the judge called "probably the most vicious crime that I have had contact with," for the rape and murder of Stambaugh and the attempted murder of her college roommate.  Walunga was sentenced to life in prison with the possibility of parole plus 15 years, primarily because Alaska did not have a death penalty.  The Stambaughs and the roommate and her family have spent the last 37 years fighting to prevent the state from granting Walunga's repeated applications for parole.

Guilty Plea to Avoid DP:  The wife of a college football player charged with the 2008 murder of a cheerleader has pleaded guilty in order to avoid a death sentence for assisting in the crime, according to this Associated Press story from South Carolina.  Prosecutors have announced that they will seek a death sentence for her husband, Parnell Thompson, who has pleaded not guilty to stabbing 16-year-old Marisha Jeter to death and leaving her body under a bridge. 

Dealing With Prison Overcrowding in Arkansas may include letting convicted murderers out of jail on work-release, according to this story by Lacey Crisp of Eyewitness News.  Fortunately the family of Kenya Thigpen, who was reportedly shot at least seven times by her boyfriend Leon Jackson, was able to discourage Arkansas authorities from letting the killer participate, although he appears to have been eligible.  The crackdown on habitual felons over the past 20 years, coupled with a reluctance by politicians to fund expansion of corrections facilities, have left many states with overcrowded prisons.  Rather than set priorities that assure the safety of the public, a remedy that failed miserably in the late 60s is gaining popularity among states such as Arkansas. Expanding community release programs to reduce prison population will certainly cause crime rates to rise.  Eventually, after the lives of several million innocent people are destroyed or seriously impacted by crime as occurred in the 1970s, the public will demand a new crackdown.       

Arson, Murder, and Intent to Kill

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The felony murder rule is a favorite target of academics and defense lawyers. That is the rule that a killing in the course of certain listed felonies is murder without a showing of intent to kill. The criticism is generally muted, if voiced at all, in the specific case of arson, though. This story by Amy Taxin of AP from Riverside, California, shows why.

Large, destructive wildfires are all too common in the arid "Inland Empire" east of L.A. People often die in them. A person who sets one may not specifically intend to kill anyone, but he has to know that is a strong possibility.

A jury convicted an auto mechanic Friday of murdering five federal firefighters by setting a wildfire that overran them as they defended a home in a rural Southern California mountain community.

Raymond Lee Oyler, 38, was found guilty of five counts of first-degree murder. Because he committed multiple murders and did so while committing another felony -- arson -- he could face the death penalty in a trial phase beginning Tuesday.
At one point, it seemed that the Supreme Court was close to requiring an intent to kill for the death penalty in all cases. They did not do that, however, and California law requires no additional showing for the actual killer in felony murder cases. (There are additional requirements for an accomplice.)  In a case such as this, intentionally starting a wildfire with the knowledge of a strong possibility of resulting deaths is just as culpable a mental state as premeditated murder.

Artificial Intelligence

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I received an emailed press release from the Constitution Project today regarding the Al-Marri case. The full release can be viewed here.

Immediately upon receipt, my email program warned me, "Thunderbird thinks this message might be an email scam." Wow. That is truly impressive. How do the folks at the Mozilla Project do it? Very few live people, even very few lawyers, would know how misleading this press release is. Yet the Mozilla folks detected it with a computer program, and a free download at that.

The release begins, "Today, the U.S. Supreme Court ordered the U.S. Court of Appeals for the Fourth Circuit to vacate (i.e., 'void') its ruling permitting the President to indefinitely detain individuals living legally in the U.S. that the government asserts are terrorists." Without knowing that the order was on the technical ground of mootness, and therefore connotes neither approval nor disapproval, one would think that the high court had disapproved the Fourth Circuit decision.  The remainder of the release is carefully worded not to correct that misimpression.

Nothing in the release is actually false, yet it leaves the reader with an impression that is false. Our friends on the other side of the aisle are really good at that.

Terrorist Detention Case Dropped

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"The Supreme Court dismissed a challenge Friday by suspected al-Qaida sleeper agent Ali Al-Marri to the president's authority to detain people without charges, granting an Obama administration request to end the high court case," reports Mark Sherman for AP.

The high court's order approving transfer of Al-Marri to the custody of the AG (for regular criminal prosecution) is here. By remanding the detention case to dismiss as moot, the court eliminates the Fourth Circuit opinion as precedent, and the citation to United States v. Munsingwear, Inc., 340 U.S. 36 (1950) reinforces that point.

The Court did not announce today which cases it decided to accept for review, as it normally does not at this point in the term. We can expect that announcement Monday. Among the cases considered are cross-petitions in a North Carolina murder case: Branker v. Gray, 08-551 and Gray v. Branker, 08-7013. Can a well-heeled defendant claim ineffective assistance of counsel for not hiring a mental health expert after telling his lawyer, "not to spend another f'ing penny on this trial"? Can he claim the lawyer should have applied for funds from the court after the defendant self-inflicted indigence by transferring his assets to a trust? CJLF's brief in support of North Carolina in 08-551 is here.

News Scan

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SG Nominee Clams Up:  Elana Kagan, President Obama's choice for Solicitor General, used to say "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."  But now, as Washington Post writer Robert Barnes reports, nominee Kagan has embraced the call for change, by changing her mind.  During her confirmation hearing, which ended yesterday, she told the Senate Judiciary Committee that she is "...less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested."     

The Anti-Legalization Argument

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Former "drug czar" John Walters has this op-ed in the WSJ making the case against legalization of drugs. Some of the statements in the piece could stand elaboration.

"No nation that has tried to avoid controlling supply has been able to stand by its permissive approach. Sweden, the Netherlands, and the United Kingdom have all experimented with being more accepting of drugs, only to backtrack later when the resulting destruction was clear." Both sides in this debate cite the experience of European countries, with some claiming it has been a great success and others claiming it has been a disaster.

"Alternative regulatory schemes give little attention to how a free society will function when it sells known disease-causing poisons that are more powerful than alcohol and that profoundly attack the user's capacity for free action." I think you need to go drug by drug on that. I don't doubt that it is true for crystal meth, but its application to marijuana is dubious.

Having written a few op-eds myself, I know space is limited, and you can't always say everything that needs to be said. I looked on the site of the Hudson Institute, where Walters is now the VP, for an expanded version and didn't find it. Maybe later.

Blog Scan

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Second Circuit Rules on Mandatory Minimum Statutes:  Doug Berman posts a link to today's Second Circuit decision in U.S. v. WilliamsWilliams involved the appeal from judgment against Williams for "a drug trafficking crime which carried a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), and possession of a firearm in furtherance of that drug trafficking crime, an offense which carried a five-year mandatory minimum consecutive sentence '[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law' under 18 U.S.C. § 924(c)(1)(A)(i)."  A district court in New York had imposed the five-year minimum sentence consecutively, even though the ten-year mandatory minimum was provided for by the predicate the drug trafficking offense.  The Second Circuit held that 18 U.S.C.§ 924(c)(1)(A) was "inapplicable where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense."

Getting Rid of Peremptory Strikes:  At the Wall Street Journal, Nathan Koppel reports on the "radical" possibility of getting rid of peremptory strikes.  The article briefly discusses two cases that addressed the judge's role in rooting out discriminatory peremptory strikes: Rivera v. Illinois argued before the U.S. Supreme Court last week (CJLF's brief can be found here) and a recent Fifth Circuit decision in Price v. Cain.  Koppel writes that it is unlikely states will get rid of peremptory strikes, but it is possible that states will decide to limit the number of strikes available to each party.   

Defunding the Adam Walsh Act:  At The Heritage Foundation's The Foundry, Cully Stimson has a post criticizing the Justice Department's lack of support for the Adam Walsh Act.

Does Caperton v. A.T. Massey Coal Have First Amendment Implications?:  Jonathan Adler, over at the Volokh Conspiracy, wonders whether Bradley A. Smith and Jeff Patch correctly interpret Caperton as a political speech issue in the context of judicial elections.  Smith and Patch wrote an op-ed for Tuesday's Wall Street Journal arguing that Caperton "is one of the most important cases this term" because of "the free speech consequences of requiring a judge's recusal based on the spending of an independent group."  

A Victim's Testimony

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Connecticut is one of the smaller states in the union, and it has a relatively low crime rate, so it stands to reason that there would be relatively few murders that cry out for the death penalty, compared to most other states. There are some, though. In July 2007, the home of William Petit and his wife Jennifer was invaded. Jennifer and their two daughters were killed. William was the sole survivor. Joshua Komisarjevsky and Steven Hayes are charged with the crime, and the State's Attorney is quite appropriately seeking the death penalty. Yesterday, Mr. Petit and his sister testified before the General Assembly's Judiciary Committee, which is considering abolishing the death penalty and letting the very worst murderers off with only life sentence. First, they made Mr. Petit wait eight hours, reports Amanda Falcone of the Record-Journal. Then,

Petit sat before the Judiciary Committee Wednesday not knowing what to expect. He still wore his wedding ring, and as he spoke about his late wife and children, he got emotional. Committee members peppered him with questions - some of them personal: More than one asked him why he couldn't just forgive and whether his support for the death penalty went against his wife's wishes.

Let us hope that the legislators in question have genuinely contested elections next time, and that the transcript is available for use by their opponents.

SCOTUS and Stocks

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Off-topic for the blog, but possibly interesting for SCOTUS-watchers.

Becker on Deterrence

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In debates on the death penalty, it is common for opponents to state flatly that the death penalty has been proven not to deter and that the studies finding deterrence have been discredited. Baloney. Here is the assessment of Gary Becker, Nobel laureate and the man who pioneered the use of economic methods to study crime, as posted on his blog a few years ago:

Of course, public policy on punishments cannot wait until the evidence is perfect. Even with the limited quantitative evidence available, there are good reasons to believe that capital punishment deters murders. Most people, and murderers in particular, fear death, especially when it follows swiftly and with considerable certainty following the commission of a murder. As Posner indicates, the deterrent effect of capital punishment would be greater if the delays in its implementation were much shortened, and if this punishment was more certain to be used in the appropriate cases. But I agree with Posner that capital punishment has an important deterrent effect even with the way the present system actually operates.

Responding to critical comments on this post,  Prof. Becker followed up:

I stated that the evidence from quantitative studies is decidedly mixed, yet I concluded that "the preponderance of evidence does indicate that capital punishment deters." Although the weight of the positive evidence should not be overstated, the frequently stated claim that these studies prove that capital punishment does not deter is clearly false.

If the death penalty does deter, then repealing it kills innocent people. If it does not, then keeping it simply results in the execution of punishments that are independently justified as "just deserts" for the crime committed. The opponents' claim of nondeterrence is the one less likely to be true by a considerable margin, and they should surely have the burden of proof given that their proposal will cost innocent lives if they are wrong. The opponents who say lack of deterrence has been proven are just flat lying.

News Scan

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Defendant Attacks Judge: In Lodi, California, murder defendant David Paradiso wanted to testify, but he wasn't happy about being cross-examined, Keith Reid reports for The Record. "With Paradiso on the witness stand, Deputy District Attorney Kevin Mayo asked Paradiso why he stabbed [his 20-year-old girlfriend, Eileen] Pelt.'Because she deserved to die,' Paradiso answered." This prompted a disruption by Paradiso's mother, and Judge Cinda Fox called a recess. "As the jurors filed out, David Paradiso suddenly jumped behind the judge's bench, threw Fox onto the table and began punching and stabbing her with a sharp object....Lodi police Detective Eric Bradley, the investigating officer for the prosecution, approached David Paradiso and Fox and fired." Paradiso died at the scene. Judge Fox suffered a stab wound to her arm.

Maryland Injection Regulations

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"Gov. Martin O'Malley is preparing to move forward with regulations to allow executions to resume in Maryland now that his effort to repeal the death penalty appears to have failed, a spokesman said yesterday," John Wagner reports in the WaPo.

A Strange Bill in Maryland

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Maryland already has one of the most restrictive death penalty laws in the country, so restrictive that the infamous D.C. Sniper could not be sentenced to death for the killings there. Instead of fixing the law, and the seriously clogged review process, the Maryland Senate today agreed to a strange "new requirements -- if they become law -- would mean that the death penalty could be applied only in murder cases in which there is DNA evidence, a video recording of the defendant committing the crime, or a voluntary, videotaped confession," Julie Bykowicz reports for the Baltimore Sun.

The bill would nominally keep Maryland in the camp of states having the death penalty. Perhaps sometime in the future, when the present leftward tide and receded and the legislature has more persons of sense, it will be somewhat easier to restore a reasonable, workable, law. So I suppose it is better than a full repeal. It will not, however, provide justice in any but a handful of cases, and its deterrence value will be minimal.

Meanwhile, on the Maryland Politics blog, David Nitkin reprints a heart-rending memo to the Senators from Craig Rice, a member of the House of Delegates and a family member of murder victims. The full text is after the jump.

O'Malley misguided crusade

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The Washington Times has this editorial. Excerpts:

With a murder rate of 9.8 per 100,000 people in 2007 (the most recent complete year available from FBI reports), Maryland had the second highest state murder rate in the nation. This tragedy is largely due to Baltimore's outrageously high murder rate, a city that Martin O'Malley ran before becoming governor. Given O'Malley's failure in Baltimore, his newest proposals should expect some skepticism.

Maryland's death penalty was re-enacted in 1978, and while the U.S. murder rate fell dramatically from 8.8 to 5.6 from then to 2007, Maryland's murder rate over the same period actually rose - going from 8.0 to 9.8. It is hardly a coincidence that only five convicted murderers have been executed in Maryland since 1978 - that is just five out of 13,947 murders. On the other side of the Potomac, the murder rate in Virginia, where capital punishment is enforced much more often, fell even faster than the national rate, dropping from 9.0 to 5.3.

*                    *                  *

In preparation for this year's session, the governor stacked the Maryland Commission on Capital Punishment - a group he helped create last year to make recommendations - with a reliably anti-death penalty majority.

*                    *                  *

Possibly the weakest part of the commission's report was its unwillingness to consider the massive empirical research done by academics. For example, research by economists overwhelmingly shows that the death penalty saves lives. The published peer-reviewed research over the last decade that examined how the murder rates in states changed as they changed their execution rate found that each execution saved the lives of roughly 15 to 18 potential murder victims. Overall, the rise in executions during the 1990s accounted for about 12 to 14 percent of the overall large drop in murders during that time.

Idaho Execution Methods

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The Idaho Legislature is considering a bill on execution methods. This story by Kathleen Kreller in the Idaho Statesman emphasizes that the bill eliminates the alternative of the firing squad. The more important aspects, in my opinion, are that it (1) removes details from the statute and leaves them to the director of corrections, and (2) allows a coroner rather than a licensed physician to pronounce death.  The first provision allows the flexibility to change the protocol more easily if a legal challenge succeeds.  The second avoids the Catch-22 of physician involvement being both required by statute and forbidden by the ever-expanding scope of doctors' rules.

The bill status page with a link to the full text is here.
David Crary of AP has this story on the latest report from the Pew Center on the States:

"A crisis is a terrible thing to waste," said Susan Urahn, managing director of the Center on the States. "The economy opens a window of opportunity to do things that are not always easy to do."

If anyone doubted that the Pew Center is an advocacy organization with an agenda behind its reports, that should settle the matter. With people losing their jobs, homes, and savings, the folks at Pew are giddy with glee that this opens an opportunity for them to push their soft-on-crime agenda.

Blog Scan

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Are There More Hate Groups During a Recession?  Wonders an anonymous post over at Freakonomics Blog.  According to the post, the Southern Poverty Law Center has reported that number of hate groups has grown by over 50% since 2000.  Both the report and the media have blamed growth on the "deteriorating economy" and the election of President Obama.  Freakonomics writes that such blame may be misplaced.  The post discusses how "most economic research finds no correlation at all between hate crimes and the economy."  For example, a 1998 study of economic motivations for hate crimes examined statistics in New York between 1987 and 1995 and did not find a significant link between "economic performance and intolerant behavior directed against minorities."  Another study, by Swarthmore economists Philip Jefferson and Frederic Pryor, reached a similar conclusion.  The post also comments that the Southern Poverty Law Center's data does not show 2008 to have been a particularly strong growth year for hate groups, ruling out any conclusion that President Obama's campaign is to blame for the recent growth.  If this is the case, wonders Freakonomics, "what explains this expansion of hate?"  While a good question to ask, a better question for the anonymous blogger to be asking might be "where did the Southern Poverty Law Center get the data to support this 'expansion of hate'?"

Wyeth v. Levine:
State Tort Law and Preemption:  Ashby Jones at Wall Street Journal Blog reports on today's Supreme Court decision in Wyeth v. Levine, a decision that addressed whether federal laws that regulate certain products preempt state tort law.  Jones reports that Levine is the last of three opinions to address this issue. The other two, Riegel v. Medtronic Inc. and Altria Group Inc. v. Good, were decided in 2008. Jones' post also includes a Q&A with Wall Street Journal Supreme Court Reporter Jess Bravin.  The Q&A provides summaries of the majority and dissenting opinions, as well as Justice Thomas' concurring opinion.

Forensic Linguistics at Trial:  Psychology and Crime News posted an interview with John Olsson of the Forensic Linguistics Institute last week about Olson's experience as a forensic linguist with the criminal justice system.  Forensic linguists are often asked to give expert opinions on the authorship of a text.  Olson comments that he has been asked to give opinions about the authorship of suicide notes, hate mail, products contamination cases and the authorship of mobile phone text. 

No Laptop Policy in Law School Class: At Volokh Conspiracy Eugene Volokh has posted the results of a student survey of his "No-Laptop-In-Class Experiment."  Looking at his numbers, the results seem to be generally positive.  Students reported better in-class concentration without their laptops.  

News Scan

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The Texas Execution of Willie Pondexter Tuesday night is reported by AP writer Michael Graczyk. Pondexter has claimed that he was not the killer of 85 year-old Martha Lennox, although he admitted shooting the Clarksville philanthropist during a 1993 burglary.  The woman suffered two gunshots, either of which could have killed her, according to the medical examiner.  Pondexter's accomplice, James Henderson, who fired the other shot, remains on death row. 

Richard Allen Davis, the habitual criminal sentenced to die for the 1993 kidnap and murder of 12-year-old Polly Klaas, sought to overturn his conviction in argument before the California Supreme Court Tuesday.  The AP story by Paul Elias reports on Davis' claim that his video taped confession was taken in violation of Miranda, because the police officer who asked him to call if he wanted to talk about the case did not first inform Davis of his right to an attorney.  The officer's offer came while he was transporting Davis for fingerprinting.  He asked if Polly was still alive, and Davis replied that he had nothing to do with her disappearance.  Davis later called and admitted his guilt.  The state's position is that because the police did not know if Polly was still alive, the question put to Davis was allowable under the "rescue doctrine" exception.

More Miranda:  Ohio murderer William Gardner, on death row for setting a fire that killed five children, lost a bid to overturn his conviction yesterday when the 6th Circuit rejected his claim that he did not understand the Miranda warning he received before admitting the crime.  An AP story reports that Tuesday's decision by the full court overturned a divided panel's 2007 holding that Garner, who was 19 at the time, was too stupid and immature to grasp the meaning of words such as "you have the right to an attorney". Ten of the thirteen judges of the full court voted to reinstate the judgment.   

Quantifying Crime Damage

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Much of the damage caused by crime is intangible, presenting a problem for researchers and policy makers. How much damage does a crime really cause, and how much are we justified in spending to prevent it? Various approaches have been tried. The June 2008 issue of The Journal of Legal Studies (vol. 37, no. 2, part 2 of which just arrived last month despite the nominal date) has a novel approach by Mark A. Cohen, The Effect of Crime on Life Satisfaction, pp. S325-S353. This is a symposium issue on research on happiness.

Cohen compares changes in life satisfaction associated with changes in income with those associated with being the victim of a burglary. "I estimate the compensating income value for a household burglary to be $83,772 (ranging from $10,353 to $322,261 based on a 95 percent confidence interval)." This is a larger estimate than most previous ones, although the width of that confidence interval does not inspire much confidence.  Still, the article is a valuable contribution toward impressing on policy makers that crime, even "property crime," causes more damage than is commonly appreciated, and preventing it deserves a higher place on the government's list of priorities.

Blog Scan

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A New Challenge to Warrantless GPS Tracking:  At Blog of the Legal Times, Mike Scarcella posts on an amicus brief filed in the U.S. Court of Appeals for the D.C. Circuit today in U.S. v. Maynard and Jones.  The amicus brief argues that authorities violated search and seizure law when, without a warrant, they installed a GPS device on a drug suspect's vehicle and tracked the vehicle for a month.  According to the court records, a D.C. federal court judge had authorized investigators to install a GPS device on Jones' Jeep but investigators attached the device in Maryland (outside the scope of the warrant) and did not install the device until after the warrant had expired.  At the trial level, the district court judge denied a motion to suppress evidence, saying that the GPS did not violate Fourth Amendment search and seizure restrictions because investigators could have watched the driver and the vehicle as it went around town.  Today's amicus brief argues the decision was incorrect because GPS tracking reveals "a plethora of intimate information about a person's life, including his or her travel to political meetings, places of worship, news media offices, or the homes of friends or lovers."  [In this blogger's humble opinion, a warrant might be needed to attach the GPS, but actual travel to public meetings isn't exactly the sort of thing where one can claim a reasonable expectation of privacy.]

Today at the U.S. Supreme Court:  In a post titled "Supreme Court Debates Judicial Ethics and Rules on Standing, Refugees," Tony Mauro blogs on today's action at the U.S. Supreme Court.  Mauro first writes about today's oral argument in Caperton v. Massey, a judicial ethics case that will address whether an elected judge's failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violates due process.  According to Mauro, in today's argument the attorney for Massey Coal Co. spent much of his time defending his argument that recusal should not be a constitutional due process issue.  Mauro also writes that at one point Justice Scalia wondered aloud whether a recusal standard for elected judges might also affect appointed judges like himself.  Mauro also briefly summarizes the the two opinions that were handed down today in Summers v. Earth Island Institute and Negusie v. United StatesKent also posted on implications of Summers for capital habeas litigation here.

Commenting on the Web:
  Two posts put up today, one by Eugene Volokh at Volokh Conspiracy, and one by David L. Hudson Jr. at First Amendment Center discuss potential legal repercussions of blogging or commenting on the World Wide Web.  Volokh's post discusses a Louisiana Capital Post-Conviction Project attorney's threats to silence the blog comments of Patrick Frey, a Los Angeles County Deputy District Attorney, and the author of the blog "Patterico's Pontifications."  Apparently, Frey wrote a long and detailed post analyzing allegations that 2 prosecution experts in a Louisiana murder case manufactured evidence that helped send the Louisina attorney's client, Jimmie Duncan, to death row.  Duncan's attorney then threatened to file an ethics complaint against Frey if he did not stop commenting on her case.  Volokh wonders if Frey's speech is protected by the First Amendment.  At First Amendment Center, David L. Hudson Jr. writes about Maryland's decision in Independent Newspapers Inc. v. Brodie and how it affects plaintiffs' ability to file libel suits to unmask anonymous online critics. The decision now requires a plaintiff to establish a prima facie case of defamation before a court must unmask the anonymous commentor.    

Administrative Law and Habeas

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The U.S. Supreme Court decided two cases today, and on the surface neither would seem to be of interest to practitioners of criminal law. However, Summers v. Earth Island Institute may have some value:

We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations.

From the fact Justice Scalia is writing the opinion, most SCOTUS-watchers would guess right there the answer is "no," and so it is.

Meanwhile, back on the Left Coast, the California Habeas Corpus Resource Center, a government entity created for the express purpose of qualifying the state for the federal habeas fast track under Chapter 154 of 28 U.S.C., has an injunction against USDoJ's implementation of regulations under that chapter. Does HCRC have standing to bring this suit? It's hard to see how, after Summers. Surely there is no "concrete application" until a state actually applies for certification. When a state does apply, Congress has specified the venue for judicial review, and it is the Court of Appeals for the D.C. Circuit, not out here.

Habitual Criminals

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Howard Bashman at How Appealing points us to this Eleventh Circuit sentencing opinion by Judge Carnes with a noteworthy opening paragraph (emphasis added):

When Robert Shaw was thirteen years old he hurled a rock through a car windshield, sending shards of glass into his victim's face. Fifteen years later Shaw was speeding through Miami, with a cocked and loaded pistol and ski masks, on his way to burglarize a "drug hole." His rap sheet during the intervening years is long enough to require extra postage. It shows 27 arrests involving 62 counts, and sentences totaling at least 105 months in spite of receiving one break after another from the system. Indeed, from Shaw's criminal record it seems as though he is determined to serve a life sentence, albeit on the installment plan. The question this appeal presents is whether the current installment is a reasonable one.

With that opening, no one will be surprised to learn that the answer is "yes." The essence of "three strikes" laws is that at some point we have to decide that a person has demonstrated that he will never go straight, and we must keep him in prison for the rest of his life for our own protection. Shaw got 10 years, not life, and when he gets out at the age of 40 there is little doubt he will return to victimizing people.

Blog Scan

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Bundling Up to Get to the Supreme Court Today:  At Blog of the Legal Times, Tony Mauro posted early this morning about the continuing tradition of "No Snow" Days at the U.S. Supreme Court.  While students up and down the East Coast enjoyed a three day weekend, Supreme Court Justices, law clerks, and attorneys arguing in District Attorney's Office for the Third Judicial District, et. al. v. Osborne, and Atlantic Sounding Co., Inc. v. Townsend, still had to be at Court on time today.  Mauro writes that the "no snow delays" policy is consistent with late Chief Justice Rehnquist's policy of "almost never shut[ting] the Court down for snow[,]" particularly on argument days.  

YouTube at the Supreme Court
:  Hattip to Howard Bashman at How Appealing for the link to Adam Liptak's New York Times article discussing the use of a citation to a video link in a petition filed in Buckley v. Haddock last month.  According to Liptak, the video shows "what is either appalling police brutality or a measured response to an arrested man's intransigence..."  As a new study in the Harvard Law Review points out, use of this type of evidence has the potential to unsettle the way appellate judges do their work.  If Justices are allowed to view evidence for themselves, they may be less likely to defer to the factual findings of the jury.  This was apparent in the Supreme Court's decision in Scott v. Harris, where the Justices were allowed to view video of a high-speed chase that resulted in a police officer terminating the pursuit by applying his push bumper to the rear of the vehicle, causing it to leave the road and crash.  The new study took the same video the Justices viewed in Harris, and showed it to 1,350 people.  Liptak writes that most viewed the video as the Supreme Court did, and thought the use of potentially deadly force by the police was justified by the risk Mr. Harris's driving posed.  However, Liptak also reports that the study found that "African-Americans, liberals, Democrats, people who don't make much money and those who live in the Northeast were, ... 'much more likely to see the police, rather than Harris, as the source of the danger posed by the flight and to find the deliberate ramming of Harris's vehicle unnecessary to avert risk to the public.'"

Osborne Argument

MR. KATYAL: Mr. Chief Justice, and may it please the Court:
The Ninth Circuit created a novel constitutional right by extending Brady to the postconviction setting. Mr. Osborne doesn't attempt to defend that rationale. Instead, he attempts to mint a previously unrecognized liberty interest in access to clemency or State postconviction procedures. Assuming the Court reaches the second question presented, it should not constitutionalize rules for postconviction access to DNA, an area of great legislative ferment in the last few years. And even were it inclined to do so, the unusual facts of this case, which include failure to attest to actual innocence under threat of perjury, two recent confessions to the crime, and a tactical decision at trial to forego a highly discriminating RFLP DNA test, all together make this a particularly poor candidate for recognizing a new constitutional entitlement.

We were a little worried that the new administration would abandon the position taken by the previous one in District Attorney's Office v. Osborne and are glad to see they did not. Transcript here.

Community penalties 'laughed at'

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Advocates of alternative sentencing want us to believe that the alternatives are real penalties that will be effective. We will believe it when we see it, and across the pond they aren't seeing it. The title above is from this BBC story.

Experts from King's College London examined Community Orders and Suspended Sentence Orders, which were introduced in England and Wales four years ago.

They require offenders to do unpaid work or undergo rehabilitation.

But a probation officer interviewed for the study said those under the orders left court "laughing their heads off".

The King's College press release is here, and the full study is here. From the press release:

Government attempts to slow a rapidly rising prison population by a reformed, and credible, community sentences framework has largely failed, according to a new report published today by the Centre for Crime and Justice Studies at King's College London. Indeed there is evidence that the Community Orders and Suspended Sentence Orders, which came into effect in April 2005, are contributing to the rise in prison numbers, rather than helping to arrest its growth.

News Scan

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The Exclusionary Rule may be eliminated by future U.S. Supreme Court decisions according to Emory University law professor Paul H. Rubin.  In his opinion article in Saturday's Wall Street Journal  Professor Rubin discusses how Chief Justice Robert's opinion in Herring v. United States could signify a Court movement towards eliminating the rule.  The article also discusses research on the cost of enforcing the rule.

Gitmo Conflicts at DOJ:  A story (registration required) by Legal Times reporter Joe Palazzolo focuses on a problem at President Obama's new Department of Justice.  Many of the new lawyers recruited to prosecute terrorists, among other things, come from law firms that represented terrorist detainees held at Gitmo.  As a result, several high ranking officials at Justice, including Attorney General Eric Holder himself, will have to recuse themselves in matters involving the detainees their firms have been defending.
In a less exciting decision than I expected, the California Supreme Court ruled today in Sheehan v. San Francisco 49ers, Ltd.  As Kent noted in posts on Friday and today, this decision was meant to address whether, as 2005 and 2006 season ticket holders of the San Francisco 49ers, the Sheehans had impliedly consented to the team's policy of conditioning admission to the stadium on submission to a pat-down search.  The Sheehans implied consent allegedly arose from their knowledge of the pat-down policy when they bought 2006 season tickets.  However, a majority of the California Supreme Court decided today that the record before them required additional fact-finding before the merits of this issue could be decided.

The California Supreme Court's decision to reverse the Court of Appeal's judgment in favor of the 49ers, and remand the case for additional fact-finding, is due to the procedural posture of the case.  The Sheehans had filed a complaint against the 49ers alleging that pat-down searches implemented since 2005 violated their right to privacy under Article I, §1 of the California Constitution.  The 49ers demurred to the complaint, alleging the Sheehan's complaint did not state a cause of action.  The trial court sustained the demurrer, and a California Court of Appeal affirmed.  The Court of Appeal concluded that the Sheehans had not demonstrated they had a reasonable expectation of privacy under the circumstances because "rather than submit to the pat-down the Sheehans had the choice of walking away, no questions asked." 

While the California Supreme Court decision did not specifically overrule the Court of Appeal's holding, the majority opinion, authored by Justice Chin, reversed the Court of Appeal holding in favor of the 49ers.  The decision requires the 49ers to justify their pat-down policy and demonstrate that that the allegations of the complaint fail to state a cause of action under any possible legal theory. 
In social sciences, all studies have limitations and all make assumptions. To the extent that policy decisions are based on them, those decisions are based on knowledge that is less than perfect. What degree of confidence should we require of a study before we consider it in policy-making? Setting the threshold too high can result in an assumption that is even less likely to be true than the one we consider unworthy.

In a comment to Doug Berman's post on my study on the effect of plea bargaining effect on the net cost of capital punishment, commenter "Overburdened Statistics" says that he once thought that we should go with the best information we have available, but now he would apply a more selective filter. At least in the context where a decision has to be made, I think he was right the first time.

Legislatures in several states are being asked to make a decision of monumental importance, to repeal the death penalty. One of the primary arguments is that they will save large amounts of money in trial costs by avoiding the more expensive capital trials. The most widely publicized studies on cost do not include the plea bargaining effect in their calculations. Yet there is no way to avoid making some assumption or estimate of this effect. A study that simply ignores it, as the Urban Institute study of costs in Maryland does, implicitly assumes the effect is zero. Whatever the limitations of my estimate are (and I note some of them in the paper), can anyone seriously claim that zero is a better estimate?

Stadium Pat-Down Decision

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The California Supreme Court has sent the 49er pat-down case back to the trial court for more fact-finding. The opinion in Sheehan v. San Francisco 49ers is here.

The DNA Testing Case

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Update: Mark Sherman's post-argument story is here.
Post-conviction DNA testing is on the U.S. Supreme Court's argument docket this morning in District Attorney's Office v. Osborne. The issue, however, is not about access to critical evidence for a simple test that may release a possibly innocent person from undeserved incarceration. The issue is about testing sought by a person who has freely admitted his guilt, who could have had the test done at the time of trial and passed, who has already been released from prison for the original crime, and who is now incarcerated on new charges. The evidence would not necessarily exonerate him if it tested negative, and the proposed testing goes far beyond the allegedly critical evidence to other evidence impacting on the privacy of the victim of an exceptionally brutal crime. Mark Sherman has this story for AP:

Osborne himself admitted his guilt under oath to the parole board in 2004.

Osborne's lawyer passed up advanced DNA testing at the time of his trial, fearing it could conclusively link him to the crime. A less refined test done by the state showed that the semen did not belong to other suspects, but could be Osborne's, as well as about 15 percent of all African-American men.

The results of the case could be limited. Forty-four states and the federal government have laws that give convicts access to DNA testing....

Alaska has no DNA testing law, but its Court of Appeals has given people a path to follow to gain access to the evidence. It ruled Osborne did not meet the standards it set out.

And there is more, from Paul Cassell's brief for the victim.


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The U.S. Supreme Court took up one civil case in its Monday orders list, no criminal cases. It denied certiorari in Mitchell v. Rees, a Sixth Circuit case on the continuing problems of Civil Rule 60(b) as applied to habeas corpus.

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