April 2009 Archives

Backlog for Rape Kit Testing

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Today, the New York Times ran an op-ed by Nicholas Kristof discussing how rape victims can often wait "a year or more" for the results of their "rape kit."  In his article, Kristof mentions a recent report from Human Rights Watch that found that at least 12,669 rape kits were sitting in police storage facilities in Los Angeles County.  450 of them had been there for over 10 years.  In these cases, the statute of limitations had expired. 

Tests weren't conducted much faster in Northern California.  Kristof's op-ed relates the story of Detective Tim Marcia's quest to rush results on a "rape kit" he had collected for a particularly devastating rape.  Detective Marcia feared that the perpetrator would strike again, so he asked the crime lab to rush results. When he was told he could expect results from the L.A. crime lab in about a year he personally drove the kit 350 miles to deliver it to Sacramento.  Sacramento told him he may have to wait four months.  While the kit sat on the shelf, the perpetrator had the chance to strike two more times.  Police say he broke into the house of a pregnant woman and a 17-year-old girl and sexually assaulted them.

On his blog, Kristof opines that rape kits may not receive the prompt attention they deserve because of "a deeply embedded skepticism among many veteran police officers about many rape cases..."  This isn't entirely true.  Back in October 2008, LA Times writer Richard Winton reported that officials blamed the backlog on insufficient funds.  The problem isn't that police don't want to solve crimes, it is that we're not providing them with the funds to keep our streets safe. When it comes to heinous crimes -like rape- our first priority should be catching the perpetrator.  We ask police officers to do this, but we don't give them the resources to do it quickly and safely. 

Hopefully, Kristof's article will spur some action in this area, so that crime labs may receive the funding they need to process the evidence.  More evidence will allow prosecutors to go after the right person, and will place the victim one step closer to seeing justice prevail. 

Georgia Execution

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The U.S. Supreme Court denied a stay in the case of William Mize Wednesday. No dissents are noted. Justice was carried out at 7:28 p.m. EDT. Adam Thompson reports for the Athens Banner-Herald:

At the time of the murder, Mize lived in Madison County, where prosecutors said he and some electrician coworkers were trying to start a Klan-like group called the National Vastilian Aryan Party.

On Oct. 15, 1994, a few members of the group - and Tucker, who had applied to join - went into the woods in Northwestern Oconee County, supposedly to camp, after Tucker and another group member failed to follow Mize's orders to burn down a purported crack house in Athens.

Mize killed Tucker with a shotgun blast, prosecutors said.

I understand why a cautious journalist with the legal department looking over his shoulder would hedge everything with "prosecutors said," but a jury unanimously found the charges proved beyond a reasonable doubt.

About a dozen protesters from Georgians for Alternatives to the Death Penalty gathered at the prison's entrance shortly before his scheduled 7 p.m. execution time.

Though, as a former Klansman, Mize is not the most sympathetic subject for anti-death penalty protesters, members of Georgians for Alternatives to the Death Penalty still needed to be there, said Sara Totonchi, the group's chairwoman.

Blog Scan

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Holder Asks Europe to Take Gitmo Detainees:  Wall Street Journal Blog writer Ashby Jones posts on the anticipation that Attorney General Eric Holder will ask Europe for help in closing the detention center at Guantanamo Bay, Cuba.  Jones reports that Holder is expected to ask countries to take a few detainees off of our hands.  Holder told reporters that there are about 30 detainees the United States is prepared to release, and the United States is hoping that our allies will agree to allow them to relocate in Europe.  According to Jones, several European countries, like Lithuania and Portugal, have said they will consider accepting detainees.  France has said it will take one detainee.  Holder has his work cut out for him.  Even after he finds a place for the 30 detainees, he still has to relocate 211 in the next nine months (Gitmo's scheduled closing date). 

Follow-up on Crack Sentencing Disparity:  Yesterday, Doug Berman posted at Sentencing Law and Policy that today could be the day the DOJ advocated changing the "100-to-1crack/powder" federal sentencing disparity.  Turns out he was right (our News Scan has a link to an AP article on the proposed change).  Today, Berman has several posts on the DOJ's proposal to change the 100-to-1 sentencing disparity between crack and powder cocaine with an even 1-to-1 ratio.  A report on the live webcast can be found here, and musings on how to implement the change can be found here, and here

Oral Arguments on Voting Rights Act Case:  At SCOTUSblog, Lyle Denniston reports on oral arguments in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (08-322). The case asks whether the municipal utility district is eligible to "bail out" from the preclearance requirement of Section 5 of the Voting Rights Act.  The Court's decision could have significant effects on the voting rights of minorities.  Denniston writes that Justice Kennedy controlled the tempo of today's arguments, expressing "concern over Congress intruding on the sovereignty of some states but not others", and looking for a way to check federal management of state voting systems, when doing so could mean invalidating a statute that even he conceded had been "very effective." Tony Mauro has this report at Blog of Legal Times, and Heather Gerken writes for Balkinization, that comments from the Justices today might make supporters of the Voting Rights Act a little nervous.  

Cal. Decisions Tomorrow

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Tomorrow (Thursday), the California Supreme Court will announce decisions in two criminal cases.

People v. Gaines, S157008: "The court limited review to the following issue: Is outright reversal or a remand for a showing of prejudice the appropriate remedy for a trial court's erroneous denial of a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531)?"

Pitchess motions seek discovery of police officers' personnel records.

People v. Lawrence, S160736: "This case presents the following issues: (1) Did the trial court abuse its discretion by denying a self-represented defendant's requests for appointment of counsel prior to opening argument? (2) Is the erroneous denial of a motion for reappointment of counsel made after the commencement of trial automatically reversible as structural error?"

Update: The opinions are out in Gaines and Lawrence. No surprises. The list of errors reversible per se is short and not growing.

News Scan

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Second Appeal for SD Murderer:  AP writer Chet Brokaw reports that the South Dakota Supreme Court heard a second round of oral argument yesterday from defense lawyers representing condemned murderer Briley Piper.  Piper was convicted and sentenced to die for kidnapping, robbing and murdering 19-year-old Chester Allan Poage.  One of Piper's accomplices in the murder, Elijah Page, who voluntarily ended appeals challenging to his death sentence, was executed in 2007.  It was the state's first execution in 60 years.  In his second appeal, Piper's lawyers argue that when he and his trial counsel agreed to plead guilty, he did not validly waive the right to be sentenced by a jury.  An Assistant AG responded that Piper and his lawyers made an informed decision to avoid having a jury sentence him after hearing of the "pure horror" of the crime.    

Transgender Inmates a Problem in CA:  The California Assembly is considering adoption of  legislation requiring that sexual preferences and gender identity be a focus of decisions on where to house prison inmates.  A story by AP writer Don Thompson reports that the bill, which is supported by gay rights groups, was introduced in response to studies showing that homosexual, bisexual and transgender inmates are more vulnerable to abuse and assault.  A U.C. Irvine study released this week found that nearly 60% of male inmates who dress and present themselves as women reported being sexually assaulted by other inmates.  In spite of this, nearly 60% of transgenders opposed being housed in women's prisons.  "They like to be around men," said the study's author.  And apparently bad boys in particular. 

The Crack Ratio: "The Obama administration joined a federal judge Wednesday in urging Congress to end a racial disparity by equalizing prison sentences for dealing and using crack versus powdered cocaine," reports Larry Margasak for AP. So is the disparity to be eliminated by lowering the sentence for crack, raising it for powder, or making them meet somewhere in the middle? The story doesn't say, and apparently the Administration hasn't said. Couldn't find anything on the DoJ website. Don't you think that's important, folks?

Massiah and Impeachment

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The Supreme Court today decided the case of Kansas v. Ventris. The issue was whether a statement of the defendant is admissible for impeachment of the defendant's trial testimony when it is excluded from the prosecution's case in chief under the rule of Massiah v. United States, 377 U.S. 201 (1964). The Court continued its three-decade practice of limiting the damage caused by anti-truth Warren Court precedents without overruling them, in particular by allowing supposedly "tainted" evidence to impeach the defendant when he gets on the stand and tells a story different from a statement he made voluntarily but contrary to some court-created rule.

In its 1964 decision in the case of that oddly named thug, the Warren Court decided that when a jailhouse informant asks questions of a cellmate after formal charges have been filed, that is a violation of the Sixth Amendment right to counsel, even though the same procedure is perfectly legal if (1) the D.A. just holds off filing the formal charges, or (2) the informant just listens and doesn't ask. So the difference between perfectly legal investigation and a violation of our fundamental law turns on the splitting of hairs.

Paying for Sex

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Tom Smith muses over at the The Right Coast about the virtues and vices of legalizing prostitution and ends with this insightful and humble observation:

I don't think the argument that something seems to be going wrong with our sexual culture should be dismissed either.  Today at my son's preschool I saw a little girl of five wearing what appeared to be a low cut pair of pants, giving her that bare midriff look. The bare midriff look is sexy, without a doubt, but should a five year old girl be sporting it?  I don't think so. Humans are sexual animals and you can't just throw out standards and expect to like the results. But what standards and what results, I don't pretend to know.  I just know I see a lot of stuff I don't like. It could be that legalizing prostitution would make our society even more sexually crass and confused, and increase the number of girls who find themselves trapped in the sex industry, however rationally they thought they were making those decisions when they were 18, because of the culture they grew up in.  Or just the opposite might be true.  Those are the questions one would have to know about to know whether to legalize prostitution.  Neither one is illuminated much by observing that the trade in sex slaves is evil, or that the Oingo Boingos pay bride prices.

Indeed, there's something not quite right when parents routinely dress children as if they were sexually mature adults. 

Blog Scan

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Will the DOJ Address the Crack Disparity Tomorrow?:  At Sentencing Law and Policy, Doug Berman speculates that tomorrow, President Obama's 100th day in office, could be the day that the DOJ decides to tackle the "100-to-1crack/powder" federal sentencing disparity.  Tomorrow, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs is scheduled to hold a hearing on "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity."  Berman cautions that change is unlikely, but, he does note that in the past both Vice President Biden and President Obama have advocated legislation to end harsher sentencing for crack vs. powder cocaine.

Upholding the Government's Ban on "Fleeting Expletives":  Tony Mauro reports for Blog of Legal Times on the Supreme Court's decision in FCC v. Fox Television Stations, et al.(07-582).  The case involved a challenge to the FCC's decision to ban the "fleeting expletives" uttered by celebrities on two of Fox's television shows.  Following comments by Cher and Nicole Richie on live Fox award's shows, the FCC decided to switch its policy from accepting "dirty words" to a near-ban on "fleeting expletives."  Justice Scalia wrote the majority opinion, which found found that the FCC had acted reasonably in tightening up its policy on indecent language over the airwaves to cover fleeting expletives.  The Court did not rule on Fox's First Amendment claim.  Lyle Denniston has this post on SCOTUSblog.   Eugene Volokh also comments on Justice Thomas' concurring opinion over on Volokh Conspiracy. 

A "Frothy" Plaintiff:  [Off-topic but interesting] At Wall Street Journal Blog, Ashby Jones posts on a legal battle between Larry Bell, the founder of Bell's Brewery Inc., and one of his distributors in Michigan state court.  Bell has sued his distributor to try to block it from selling the rights to market his products to an Anheuser-Busch InBev distributor.  Jones reports that Bell's lawsuit is one of many recent legal spats between small craft brewers and distributors, as craft brewers challenge the state laws that typically favor the distributor.  Jones calls these laws "part of a complex regulatory architecture erected after the repeal of Prohibition." 

Remand in a Quirky Capital Case

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The AP reports, "The Supreme Court has thrown out a death sentence for a Tennessee death row inmate who was deprived of key evidence at his trial."* Actually, the high court remanded the case of Cone v. Bell to a lower court to decide whether to throw out the death sentence, and whether the evidence is "key" remains disputed and undecided. The opinion is available here.

Chief Justice Roberts, concurring in the judgment, notes:

The Court's decision is grounded in unusual facts that necessarily limit its reach....  If [a] claim has been waived under state rules, that waiver typically precludes federal review. If the claim has been decided in the state system, federal review is restricted in light of the state court's legal and factual conclusions. The unique procedural posture of this case presents a Brady claim neither barred under state rules for failure to raise it nor decided in the state system.

Bies Argument

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The transcript of oral argument in Bobby v. Bies is now available here. Lauren previewed the argument Friday, and I wrote this post back in January when the Supreme Court took up the case.

Things are looking bad for the defendant when defense counsel gets interrupted a lot more than the attorney for the state. And when it's Justices Souter, Ginsburg, and Breyer doing the interrupting, he's toast. On pages 22-23, Justice Ginsburg says:

the ultimate issue in the case that was before the Ohio Supreme Court is, do the aggravators outweigh the mitigators? That's the ultimate determination, and that's what would have preclusive effect, not the many intermediate findings that may have been made on the way to the ultimate determination of death.

Right. The main question now is whether the reversal will be unanimous.

Doug Berman has this post at SL&P.

Update: Adam Liptak has this story on the argument in the NYT.

Blog Scan

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No Oral Argument for Michigan v. Jackson Rule:  As Kent noted earlier today the U.S. Supreme Court has denied the petitioner's request for reargument in Montejo v. Louisiana.  Tony Mauro has this post on the decision at Blog of Legal Times.  Montejo asks whether an indigent defendant must affirmatively accept the appointment of counsel to preclude future police interrogation in the absence the attorney. Michigan v. Jackson, the Supreme Court precedent relied on by the petitioner, holds that once an indigent defendant requests appointment of counsel, officers cannot re-initiate contact to ask if he wants waive the right to have counsel present during questioning.  Back in March, the Supreme Court asked the parties to brief whether Michigan v. Jackson should be overruled.  Monejo's new attorney, Paul Smith of Jenner & Block, asked the Court to allow reargument on the issue.  According to Mauro, Smith isn't too worried that the Court denied rehearing.  Smith also speculates that the Court denied rehearing because oral arguments for the term are scheduled to end this week. 

Unreasonable Delay in Obtaining Warrant:  Orin Kerr posts at Volokh Conspiracy on the Eleventh Circuit's decision to vacate a defendant's conviction last week in United States v. Mitchell.  According to Kerr, the case involved child pornography evidence obtained from a computer hard drive after the defendant had admitted to downloading child pornography onto his computer.  While Mitchell acknowledged the pornography was on his computer, he did not consent to allow search of his computer.  The police took his hard drive anyway, and then waited 3 weeks to obtain a warrant.  Evidence was finally found on the computer, and Mitchell eventually pled guilty to downloading and possessing images of child pornography, but the Eleventh Circuit has held that such evidence should have been suppressed.  According to the Eleventh Circuit, the initial seizure was justified, but the police needed to obtain a warrant in a reasonable period of time to justify the continued detention and search. Three weeks was just too long.  Kerr reports that this is consistent with the Supreme Court's decision in Illinois v. MacArthur.

Fifth Circuit Hears Halliburton Rape Case:  At Wall Street Journal Blog, Ashby Jones reports on oral arguments in the Fifth Circuit in Jamie Leigh Jones v. Halliburton.  Jamie Leigh Jones claims that she was raped by co-workers while working for Halliburton Co. in Iraq.  She sued Halliburton in 2005, and Halliburton countered with a claim that Jones had signed an arbitration agreement covering all claims against the company.  Jones wants a federal court jury to hear the issue instead.  The federal court judge found in favor of Jones, believing "that plaintiff's bedroom should [not] be considered the workplace, even though her housing was provided by her employer."  His decision allows her to take her case to trial.  

News Scan

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New Orleans DA Wants to Keep Death Penalty:  Although there has not been a execution in New Orleans in 12 years, DA Leon Cannizzaro still believes it should be enforced according to this story by Gwen Filosa of The Times-Picayune. Cannizzaro, elected DA last fall after serving as a judge for 22 years, has failed to secure death sentences in the nation's murder capital for pre-Katrina murder cases, but his office is continuing to seek the ultimate punishment in cases involving the city's worst killers.  Kerry Cuccia, director of the Capital Defense Project of Southeast Louisiana, does not think that "there is any reason to believe that Orleans Parish jurors are any more reluctant to give a death sentence than in any other parish. It's a case-by-case basis."

Another Money Saving Inmate Release Plan: California Governor Arnold Schwarzenegger's Secretary of Corrections and Rehabilitation, Matt Cate, is proposing that the state's prison population be cut by up to 8,000 inmates to save scarce tax dollars, according to this Sacramento Bee story by writer Andy Furillo.  The plan calls for slicing four months off sentences for participation in job or education programs, loosening parole requirements, and doubling the dollar limit for grand theft to reduce the number of thieves sent to prison.  Assemblyman Jim Nielson, who served eight years as Chairman of the Board of Prison Terms, said the release will result in "chaos in the streets" and called the change in grand theft "indexing criminality." 

Orders List

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The Monday orders list from the U.S. Supreme Court is here. No cert. grants in criminal cases; there are two civil and one immigration. The Court denied petitioner's request for reargument in Montejo v. Louisiana, which is now about whether to overrule Michigan v. Jackson, previously noted here, here, and here.

News scan

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Traffic enforcement cuts crime rate:  A traffic enforcement effort in Omaha is cutting crime as well as traffic accidents. KETV.com's news story quotes Maj Tom Schwarten of the Nebraska State Patrol, '"To put it simply, where there are a significant number of crashes, there are, at times, significant numbers of criminal activities.'" How successful has the initiative been? "'We found, in every category, that crime went down,' said University of Nebraska-Omaha professor John Crank."

NH senate panel recommended
killing the bill that sought to repeal the state's death penalty law writes John Distaso of the Union Leader. While the story calls it a "3-2, party-line vote," in fact all 5 members voted to remove the death penalty repeal language. The three Democrats replaced the repeal with a study, while the two Republicans would have simply deleted the language.

Oakland transit crime finds refugee victim: Matt O'Brien of the Contra Costa Times writes this story of a man named Khalid, whose last name has been omitted for safety reason. Khalid is a immigrant from Iraq who escaped Saddam Hussein's dictatorship six months ago and recently had his first brush with violent crime in Oakland. "A mob attacked and robbed [him] on his way home from work through East Oakland three weeks ago." Don Climent, the regional director of the International Rescue Committee, indicated that an increased number of incidents have been reported throughout the past six months. Law enforcement is creating a presence on the transit ways, hoping to deter potential offenders.

Downside to over protecting our youth: This week marked the 10th anniversary of the Columbine High School murders. Caitlin Flanagan mentions the two young gunmen in her Wall Street Journal op-ed when she stresses the cost to society for "a nation of laws and an ever-evolving sense of sympathy for children and teenagers." Flanagan also gives her reasoning for why the system is ineffective in handling juvenile offenders.

ACLU has lost its way says Wendy Kaminer, a former member of the board who left the organization in 2006, writes John Leo of the Wall Street Journal. In her book "Worst Instincts: Cowardice, Conformity, and the ACLU" Kaminer shares several frustrations, the majority stemming from her disagreements with Anthony Romero, President of the board. In one situation, Kaminer claims Romero signed an agreement to forfeit free speech in exchange for grant money. "'The ACLU is becoming just another liberal human-rights, social-justice advocate that reliably defends the rights of liberal speakers,' said Kaminer."

  On Monday, April 27th, the Supreme Court will hear oral argument in Bobby v. Bies (08-598), a case which addresses whether holding a state-post conviction hearing to determine the mental capacity of a defendant whose death sentence was affirmed before Atkins v. Virginia (2002), violated the Double Jeopardy clause.
  As Kent wrote back in January, the Double Jeopardy clause comes into play only if a person is "for the same offence ... twice put in jeopardy of life or limb..."  Bies has only been tried for murder once.

News scan

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New limit on defendants' rights?: Mark Sherman, of the Associated Press, writes this story of the Obama administration's request to the Supreme Court. Obama's legal team has asked the Supreme Court to overrule the law that stops police from initiating questions unless a defendant's lawyer is present after criminal proceedings have begun and the right to counsel has attached.The case in question is Michigan v. Jackson No. 84-1531. See previous post here. Overturning the current law would allow police officers to question suspects and obtain confession statements when they agree to talk without their attorney. Defense counsel argue that the "protection offered in Stevens' 1986 opinion is especially important for vulnerable defendants, including the mentally ill and developmentally disabled...." Eleven states are also echoing the administration's call to overrule.

An end to a bad bill: The Grand Junction, Colorado Daily Sentinel this editorial. This week a legislative plan that would have significantly reduced sentences in some critical areas, prohibiting prosecutors from filing habitual criminal charges and lengthening sentences, was pulled from consideration. Colorado Attorney General John Suthers and Mesa County District Attorney Pete Hautzinger were among those who strongly opposed the bill and expressed their contentment when the bill was withdrawn.

Colorado House says 'goodbye' to death penalty: Bill Synder, of the Thornton Republican Examiner, writes on the recent House's vote in his opinion.The House "voted down the death penalty 33-32 decision on house bill 1274. In the last 40 years in Colorado has had only one execution. Lawmakers said that by eliminating the death penalty they can now fund the "cold case" unit." However, as we have noted before here and here, the savings may be illusory.

More money for local police: Jim Abrams, of the Associated Press, writes that "the House approved money Thursday to help local police departments hire and retain 50,000 officers over the next five years, expanding a Clinton-era community policing program that struggled to survive under the Bush administration." The economic stimulus package will be the source of the $1 billion for the Community Oriented Policing Services (COPS) grant program for law enforcement. Major police organizations like the International Association of Chiefs of Police and the National Association of Police Organizations are showing their support for the additional funding.

Philly DA Lynne Abraham is not running for reelection. Patrick Walters of AP has this story on the candidates vying for the job.

Blog Scan

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Proposing New Drug Sentences in the U.K.:  Doug Berman reports on a new proposal for drug offense sentencing in the United Kingdom.  Berman's report links to an article by Guardian writer Alan Travis summarizing the Sentencing Advisory Panel's consultation paper for sentencing drug offenses. The Panel proposes reducing the sentences of drug barons from 14 years to 12 years, while placing "heavier sentences" on "dealers who focus on psychiatric hospitals, drug treatment centres and bail hostels, or who try to smuggle drugs into prisons."  It also advised shorter sentences for drug mules or couriers, because of their minimal role in criminal organizations. 

Debating a "Federalism Amendment":  Ilya Somin has a post on Volokh Conspiracy discussing Randy Barnett's op-ed in today's Wall Street Journal.  Barnett's article "The Case for a Federalism Amendment" calls for a Constitutional amendment, enacted through a convention of the states, that will severely limit Congress' power.  Briefly summarized, Barnett's proposed amendment would: allow Congress to regulate or prohibit any activity between one state and another, or with foreign nations; would prohibit Congress from regulating or prohibiting any activity that takes place wholly within a single state; limit Congress' power to appropriate funds to specific federal activities; repeal the 16th Amendment (authorizing federal income tax); and give the judiciary the authority to nullify any "prohibition or unreasonable regulation of a rightful exercise of liberty."  Somin's post discusses why he favors the substantive provisions of the amendment, but, does not agree with Barnett's proposal to abolish the 16th Amendment, or Barnett's belief that Congress can be stopped from regulating activity if it takes place "wholly within a single state."  Kent also has this comment on Section V of Barnett's proposed amendment.   
Another Reason to Wish Justice Stevens a Happy Birthday:  At NRO's Bench Memos, Matthew J. Franck posts his hopes that Justice Stevens will go the distance and break the record of our longest serving Supreme Court justice, Justice William O. Douglas.  Franck's post offers mixed motives for this hope.  First, he hopes Justice Stevens serves until mid-July 2012, and breaks Justice Douglas' record, because "he likes to see records fall."  The second reason?  Well, if Justice Stevens serves until mid-summer of 2012 "the chances improve that Stevens will be replaced by a Republican challenger who defeats Barack Obama that fall."

A Bullet in a Crowd

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This sounds like a law school hypothetical, but it's a real case:

This case presents the following issues: (1) In a prosecution for a single count of attempted murder, did the trial court err by instructing the jury on the "kill zone" concept (see People v. Bland (2002) 28 Cal.4th 313) when defendant fired a single shot into a crowd although he was ostensibly not shooting at anyone in particular and there was no "primary" target? (2) Did substantial evidence support defendant's conviction for attempted murder in this case?

Cal. Supreme will let us know tomorrow in People v. Stone, S162675.

Update: "Can a person who shoots into a group of people, intending to kill one of the group, but not knowing or caring which one, be convicted of attempted murder? Yes. The mental state required for attempted murder is the intent to kill a human being, not a particular human being." Unanimous opinion by Justice Chin.

Blog Scan

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New Website for Law Review Articles: At Volokh Conspiracy, Orin Kerr and Sasha Volokh discuss and link to a new website, LegalWorkShop.org, which will post very short versions of published law review articles from participating law reviews.  Volokh's post provides a description of the new website's services, while Kerr's post comments on the utility of what he thinks is "a good experiment."  Kerr believes that the short summaries provided on the websites will force authors to be more concise, and will also encourage the legal scholars to read more articles. Still, he expresses doubt that the experiment will work - after all "a short article about an esoteric legal topic is still an article about an esoteric legal topic."

Capitalizing on Ted Stevens' Brady Claims: 
Amir Efrati reports on Wall Street Journal Blog that criminal defendants "across the land" are attempting to draw parallels between former U.S. Senator Ted Stevens' case and their own.  Efrati's article gives three recent examples: former Alabama Gov. Don Siegelman, convicted of corruption charges, had 75 former attorneys general write a letter to AG Eric Holder to investigate prosecutor misconduct; lawyers and executives for W.R. Grace & Co., on trial for conspiracy, told Donald Molloy judge on Friday that prosecutors violated Brady rules and that their case resembled Stevens'; and lawyers for former Bear Stearns hedge fund manager Matthew Tannin, accused of securities fraud, alleged the government was withholding so-called Brady material.  Tannin's argument didn't sway his judge, but, Efrati reports that W.R. Grace & Co. had better luck with Judge Malloy.  

Comments on new US Sentencing Commissioner Chair Nominee:  Doug Berman posts to Thatcher Moats' article for the Rutland Herald on Judge William Sessions nomination of chairman of the U.S. Sentencing Commission.  Berman finds it "[n]otable and encouraging that Judge Sessions seeks to reform federal sentencing to address prison overcrowding through drug treatment courts, and split sentences. Berman also highlights Judge Session's comments that he hopes to focus on rehabilitation instead of punishment.  Sessions is the same judge who declared the federal death penalty unconstitutional in 2002, so you'll have to forgive us if we don't share Berman's excitement over his comments. 

The "beer goggles" defense

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"All the girls get prettier at closing time," we have long known. They also become more attractive when you are drunk, a recent UK study confirms. They do not, however, get older, according to the study, debunking the "beer goggles" defense to charges of sex with a minor. Nicole Butler has this story on the Australian B.C. site.

SCOTUS Opinion

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The U.S. Supreme Court released one opinion today: Nken v. Holder, an immigration case. The case deals with stays of deportation pending review, an issue somewhat analogous to stays of execution in capital cases. The Immigration Reform and Immigrant Responsibility Act of 1996 has a limitation on injunctions of deportation, but that is not the same thing as a stay of a deportation order, according to CJ Roberts' opinion. Justices Alito and Thomas dissent. Once again, if Congress wants to clip a traditional judicial power, it needs to be very precise in its wording.

News scan

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Missouri sets execution date: The Missouri Supreme Court has set a May 20 execution date, writes the Associated Press. Dennis Skillicorn, who was convicted of killing a Missouri man 15 years ago, will be the first execution since 2005. Skillicorn's attorneys are seeking a stay until federal matters can be resolved. Attorney Jennifer Merrigan is claiming "Gov. Jay Nixon blocked her access to Department of Corrections staff witnesses in her previous clemency attempt," and therefore should not be allowed to make a decision in the matter.

Desperate for diapers: The Associated Press writes this story about a couple so desperate for $18 worth of diapers that the security guard who tried to stop them got punched. Spokane County Sheriff's Sgt. Dave Reagan said the man did yell "sorry" before punching him. Reagan was unable to stop them as they fled to their SUV and drove off.

Animal rights activists are indicted in CA:
The Associated Press writes that "Linda Faith Greene, 61, and Kevin Richard Olliff, 22, pleaded not guilty to the charges during their arraignment in Superior Court." Both are suspected of conspiracy, stalking, and other crimes committed against researchers at University of California, Los Angeles and executives of POM juice company. "Greene, Olliff, and others conducted demonstrations at the professor's home and on the UCLA campus, during which they chanted threats through a bullhorn and disputed law enforcement claims that the wrong house was targeted." Greene is currently being held on $450,000 bail and Olliff, on $460,000. The pretrial hearing is scheduled for May 20, 2009. Animal rights activist Jerry "Vlasak said the activists targeted POM because they believe the company was using animal experiments to support claims that pomegranate juice could improve erectile function in men with mild impotence problems."

President Obama and the American Bar Association will be restoring the Association's "pre-eminence in federal judicial vetting--a privilege it lost under President Bush," writes The Wall Street Journal. Obama's recent announcement is concerning to many, considering "a study out of three universities in Georgia says the ABA's vetting is predisposed toward more generous ratings of liberal nominees than of conservatives." More specifically, according to Richard Vining of the University of Georgia, Amy Steigerwalt of Georgia State University, and Susan Smelcer at Emory University, federal appellate nominees between 1985 and 2008 favored the liberal nominees, who had a 62.3% chance of receiving a "'well qualified'" rating from the ABA.

Blog Scan

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Pirates Are International Outlaws, Not Criminal Defendants:  Daniel A. Rezneck writes for the Legal Times that "Pirates deserve something other than fancy legal proceedings."  Rezneck writes that before the United States decides to grant the Somali pirates the rights of U.S criminal defendants, it should consider that the United States is not required to grant pirates the protections of the criminal justice system.  Quoting Justice Story's opinion in The Marianna Flora, Rezneck calls pirates "the common enemies of all mankind, and, as such, are liable to the extreme rights of war."  For Rezneck this means that the protections granted under our federal statutes (18 U.S.C. §1651 and 18 U.S.C. §1203), should not limit the power of the United States to impose international law (which traditionally subjects pirates to the death penalty) on captured pirates.

"Moore" on Gant, and Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Elahi: At SCOTUSblog, Kristina Moore has a post summarizing two of today's opinions from the U.S. Supreme Court.  In her post, Moore summarizes the majority, concurring and dissenting opinions in Arizona v. Gant.  She also reports on the Court's decision to deny Elahi's right to obtain $312 million from a default judgment against Iran because he had waived his right to do so by accepting $2.3 million from the federal government under the Victims of Trafficking and Violence Protection Act of 2000 (VPA).  Kent's post on Arizona v. Gant is available here.  At Volokh Conspiracy, Orin Kerr also comments on the interesting fact that Justice Stevens "has stayed pretty consistent" in interpreting the automobile exception to the warrant requirement.

Another Arizona Search Case:
  Tony Mauro reports on today's oral argument in Safford Unified School District v. Redding at Blog of the Legal Times.  Safford, known as the "student strip search case," addresses whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing prescription drugs.  Mauro reports that today's argument demonstrates that the Justices desire to "draw a line between student privacy and school safety...."  According to Mauro, Justice Ginsburg seemed particularly concerned with the severity of the search, while Justice Breyer appeared to believe it was reasonable to believe the drugs could only be found by closely searching the girl's clothing.  Lyle Denniston also has an analysis of the argument here

Goodbye, Belton

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Yesterday I asked whether the denial of certiorari in Brendlin, the sequel, "presage[d] that there will be no major change in the law in Arizona v. Gant?" Never mind.

In New York v. Belton, 453 U.S. 454 (1981), presented the question, "When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?" Answer: yes.

Today in Gant, by a 5-4 vote, the Court rejected a "broad" (i.e., straightforward) reading of Belton. The exception to the warrant requirement described in Belton applies only when the arrestee might be able to reach inside the car to obtain a weapon or destroy evidence or "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."

What about stare decisis (the doctrine of adherence to precedent)?

Our dissenting colleagues argue that the doctrine of stare decisis requires adherence to a  broad reading of Belton even though the justifications for searching a vehicle incident to arrest are in most cases absent. The doctrine of stare decisis is of course "essential to the respect accorded to the judgments of the Court and to the stability of the law," but it does not compel us to follow a past decision when its rationale no longer withstands "careful analysis." Lawrence v. Texas, 539 U. S. 558, 577 (2003).
I have no quarrel with that as long as it applies in both directions, not as a ratchet that regards pro-defendant precedents as sacrosanct and pro-prosecution precedents as subject to constant reexamination. Please remember your words, Justice Stevens, the next time the Court is presented with a claim under one of its many pro-defense precedents that is both unjustified as an original matter and a failure in practice. For example, there are the multiple extensions of the rule of Edwards v. Arizona, 451 U.S. 477 (1981). One is at issue in Montejo v. Louisiana this term, previously noted here, and another is at issue in Maryland v. Shatzer, No. 08-680 next term. Then there is the brooding omnipresence of capital punishment law, the disastrous Lockett v. Ohio, 438 U.S. 586 (1978).

The lineup in today's decision, BTW, included Justices Scalia and Thomas voting for the defendant and Justice Breyer voting for the prosecution.

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Ninth Circuit Rules on Second Amendment:  In a post titled, "Second Amendment extended," Lyle Denniston writes on SCOTUSblog that the Ninth Circuit ruled today, in Nordyke v. King, that the Second Amendment's right to "keep and bear arms" is a personal right that applies to the states through the Fourteenth Amendment's due process clause.  Denniston reports that Judges Alarcón, O'Scannlain, and Gould concluded that the right, as construed by D.C. v. Heller, limited the right to "armed self-defense" in the home.  The Ninth Circuit's ruling was not quite so narrow.  The panel's decision recognized that the Second Amendment prevents regulation of armed self-defense in the home, and upheld Alameda County's ordinance because "it was not of that ilk" and "regulates gun possession in public places that are County property."  The ordinance makes it a crime to bring onto county property a gun or ammunition, or to possess them on that property.  Eugene Volokh posts on Volokh Conspiracy, that although Alameda County can keep its ordinance, it can still ask the Ninth Circuit to rehear the case en banc to reconsider whether the Second Amendment is incorporated. 

Final Argument Days:  The Legal Times has an article by Tony Mauro discussing the final - and busy- argument cycle of the Supreme Court term.  Mauro writes that during "an intense two-week period" that began today, the U.S. Supreme Court will hear oral arguments in cases ranging from search and seizure rights, Iraqi immunity, voting rights, and affirmative action.  Today, the Roberts Court heard arguments in Horne v. Flores, with former SG Kenneth Starr arguing for the Superintendent of Arizona Public Instruction, and Republic of Iraq v. Simon, with Tom Goldstein arguing for Simon, who was kidnapped and tortured by Iraq in 1991.

Expressing Frustration With Obama's Inaction on Torture:  Hat tip to Howard Basham at How Appealing for the link to Andrew Cohen's Courtwatch Op-Ed "Annals of Impeachment:  Oust Bybee?" Cohen's post discusses a New York Times editorial calling for the impeachment of Ninth Circuit Judge Bybee, and expresses Cohen's frustration with the Administration's decision not to take action against the officials who authored the torture memos.  Cohen disagrees with the Times on the impeachment point, but he does believe it is time for the Obama Administration to take a concrete stance on "the Bush administration's (probably) illegal, (apparently) unsuccessful, and (certainly) odious 'enhanced interrogation' rules."  Cohen writes: "The problem here for the Obama Administration - and let's be frank this now is a problem for the administration - is that neither the White House nor the Justice Department seems willing or able to explain or justify the gulf between Attorney General Eric Holder's talk about the government's recommitment to the 'rule of law' and President Barack Obama's talk about the need for 'reflection and not retribution' against former officials who may have broken the law."

Dissenting from En Banc Opinions in The Ninth Circuit
:  At Wall Street Journal Blog, Ashby Jones writes that while President Obama could get the chance to appoint three new judges to the Ninth Circuit, a push to the left may not stop conservative judges from using an effective tool - a dissent from the denial of an en banc hearing.  Conservative judges on the Ninth Circuit have often used the dissent "as a signal flare to the U.S. Supreme Court."  Jones' post discusses an LA Times article by Carol J. Williams, reporting on the sway of conservative judges on the Ninth Circuit.   

New SCOTUS Cases

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The U.S. Supreme Court took up three new cases this morning, to be briefed over the next several months and argued about November or so. The orders list is here. There is one minor federal criminal procedure case, one First Amendment case, and one on civil suits against prosecutors. The Court turned down cases on Bible-reading jurors and animal cruelty movies, as well as the return of the Brendlin case, a search case whether possible implications for the pending Arizona v. Gant.

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Reprimanded for Delayed Ruling:  At Sentencing Law and Policy, Doug Berman posts an excerpt from a Memphis Commercial Appeal article describing the public reprimand of a Shelby County Criminal Court judge for taking more than seven years to rule on a death penalty appeal.  According the the article, Judge Carolyn Wade Blackett was publicly reprimanded for waiting seven years, five months and 21 days to enter her ruling on Perry Cribbs' death penalty appeal.  Judge Blackett was reprimanded for violating state law, by waiting more than a year to deny Cribbs' appeal, and she was reprimanded for violating the Code of Judicial Conduct that requires judges to decide cases in a timely manner.  Here at CJLF we hope that the Ninth Circuit has taken notice of the reprimand.  It still has yet to rule on whether to rehear the appeal of murderer Kevin Cooper, a man who was convicted of murdering four people in 1985.  His last appeal was denied by the Ninth Circuit in 2007.

New Trial Granted Because of Prosecutor Misconduct:  Mike Scarcella writes at Blog of the Legal Times that a D.C. Superior Court judge has granted a new trial to a man convicted of fatally stabbing another man in 2007.  The new trial was granted because the prosecutor  failed to turn over favorable evidence.  Apparently, certain grand jury testimony casting doubt on the government's chief witness was not handed over to the defendant's public defender until one month after the conviction.  Judge Frederick Weisberg was unable to say whether the testimony would have changed the outcome of the trial, but faulted the prosecutor for failing to turn over "patently disclosable" evidence.    

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Colorado House strikes death penalty: On Wednesday the House of Representatives in Colorado voted to "end the state's death penalty and instead use the money to bolster a cold case unit at the Colorado Bureau of Investigation." Joe Hanel, of the Herald Denver Bureau writes the story. Rep. Paul Weissmann was the driving force for House Bill 1274, craftily presenting representatives with one of two options- death penalty or cold case unit. Republicans all stood opposed. "Rep. David Balmer, R-Centennial, said the death penalty is the only way to deter inmates serving life sentences from committing more crimes." Is the Colorado state budget really so lean that nothing else can be cut to fund the cold case unit? We doubt it.

Lethal injection bill advances, death penalty repeal bill stalled:
Paul Hammel, of the World-Herald, has this "twist[ed]" story. On Thursday, "the Judiciary voted 6-1 to advance the lethal injection bill to the full Legislature for debate. The action came almost a month after the Committee had refused to endorse the measure." Hammel writes that "passage of the lethal injection bill seems assured--29 of 42 state senators who responded in a pre-session survey by the World-Herald said they supported lethal injection." Oddly, that same day, "the Judiciary Committee also advanced, on a 6-1 vote, a bill to repeal the death penalty. LB 306, introduced by Council, would not be debated until next year because it was not selected as priority." See our previous posts on the Mata case here, here, and here.

A new home for inmates with "sensitive needs": Despite strong opposition from the City of Lancaster, state officials have decided to move forward with plans to convert a local prison reception center into a long-term facility to house hundreds of "sensitive needs" inmates, writes Ann M. Simmons, of the Los Angeles Times. "Sensitive needs" is used to refer to sex-offenders, ex-gang members and the like. Lancaster Mayor R. Rex Parris said he was disappointed but not surprised by the state's decision while noting that, "'the Antelope Valley has been raped by the corrections department since the prison was built."

Sacramento considers closing youth jails: Andy Furillo, of the Sacramento Bee, writes that "Sacramento County probation officials have proposed shutting down their two main youth jails for convicted juvenile offenders, a budget move that carries potentially drastic implications for public safety." Juvenile Court Judge Kenneth G. Peterson said, "'if it happens it will be devastating [because] the Boys Ranch is the last resort at the local level for older boys who have committed relatively serious offenses." The reason for the proposition can be traced to the current budget crisis in California, and attempts by the county to cut costs. If closure did occur, 247 jobs would be eliminated.

Prison inmates to take over forced lay-off positions?: "Ohio wants to use prisoners to replace Statehouse janitors and groundskeepers who were laid off because of budget cuts" writes Andrew Welsh-Huggins, of the Associated Press. The idea has the Ohio Civil Service Employees Association deeply angered, claiming that the positions are not "phantom jobs" and need to be reserved for the non-inmate population. William Carleton, executive director for the Capital Square Review and Advisory Board, points out that the Statehouse needs the inmate labor due to the loss of 17 employees since the beginning of 2009.

Troy Davis

The Eleventh Circuit, which had previously stayed the execution of Troy Davis in Georgia, today denied relief in this 2-1 opinion. On the question of whether Davis is actually innocent, the majority opinion says:

Davis has not presented us with a showing of innocence so compelling that we would be obliged to act today. Rather, the record, including all of the post-trial affidavits, is, at best, tortured and difficult. Indeed, the Georgia trial court and Georgia's Supreme Court have twice parsed through all of this evidence and determined that it was insufficient to establish Davis's innocence. In addition, the Georgia State Board of Pardons and Paroles held a hearing,questioning every witness Davis's attorneys presented to support their allegation that there was doubt as to Davis's guilt; studied the voluminous trial transcript, the police investigation report and the initial statements of all the witnesses; had certain physical evidence retested and Davis interviewed; and ultimately concluded that clemency was not warranted.

Our review of the record is wholly consonant with the repeated conclusions of the state courts and the Board of Pardons and Paroles. 

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No prosecutions for CIA "harsh interrogations": Evan Perez, of the Wall Street Journal, writes that "the Obama administration said it won't prosecute Central Intelligence Agency officials who carried out harsh interrogation of terror suspects under Justice Department legal guidance." Despite the American Civil Liberties Union, who initiated the Freedom of Information Act lawsuit, pressing for the release of further information regarding the interrogations, President Obama "thanked the CIA official for their service." The President also commented "'The men and women of our intelligence community serve courageously. They need to be fully confident that as they defend the nation, I will defend them."

13th Execution in Texas: Michael Rosales, a man convicted "for beating and using kitchen tools to kill a 67-year-old woman in her Lubbock apartment" back in 1997, was executed Wednesday night. Michael Graczyk, of the Associated Press, writes that "about 90 minutes before he was scheduled to be taken to the death chamber, the U.S. Supreme Court rejected appeals to delay the lethal injection so Rosales could have more time to assemble a state clemency petition and investigate claims he might be mentally retarded, therefore ineligible for execution."

Execution scheduled for today: Tom Gordon of the Birmingham News writes this story in Alabama about death row inmate Jimmy Lee Dill. Dill "is scheduled to die today and is waiting to hear if the Alabama Supreme Court will postpone his execution or allow it to proceed." Attorneys with the Equal Justice Initiative, representing Dill, have claimed "he did not have effective legal representation during his murder trial and afterward." They also argue that his attorney should "have helped [him] to understand a plea bargain in which he could have pleaded guilty to murder for a sentence of life without parole." Dill has been on death row since August 15, 1989. The Alabama Attorney General's office says the claims have already been raised and considered and do not in any event amount to a miscarriage of justice. After the story was written, the U.S. Supreme Court posted this order denying a stay.
Update: Gordon's post-execution story is here.

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Considering Self-Defense:  At Volokh Conspiracy this morning, Eugene Volokh posted his thoughts on what he calls "Self-Defense Blindness."  Volokh describes "self-defense blindness" as "complete failure to even consider self-defense as one of the functions of a gun or other weapon. Either the speaker doesn't even think of self-defense, or at least he assumes that the listener can be persuaded not to think of self-defense."  Volokh writes that this curious phenomenon doesn't occur much, but he has found in it Attorney General Opinions and court decisions.  The problem with these examples is that "they seem to be part of a broader blindness to self-defense," and a weapon's role in self-defense.  This is interesting since, as Volokh points out, every U.S. state "legally allow[s] self-defense."

With Money Tight, Should Criminal Justice Be the First Thing We Cut?:
  At Sentencing Law and Policy, Doug Berman stretches logic to imply that yesterday's Tea Party protests against "giant government programs" indicate it might be time to cut criminal justice programs "that 'create huge economic burdens' in the course of seeking to execute certain murderers, chasing lots of drug users and dealers, and locking up many thousands of individuals."  But when money is tight, personal safety should be the one thing that people can expect from their government.  The rest of our freedoms don't mean much if we don't feel safe.

DOJ Promises Not to Prosecute for Harsh Interrogation Practices:
  According to Joe Palazzolo at Blog of the Legal Times, Attorney General Eric Holder, Jr. has announced that CIA officials who used harsh interrogation tactics on suspected terrorist will not face federal prosecution.  Holder also announced that the government will provide free legal assistance to any official who is sued for participating in the now-banned program.  The government has also promised to indemnify "to the extent permissible under federal law" the officials for any money judgment imposed against them, and to represent them in any congressional investigation.  These remarks followed the announcement that the Obama Administration will release four torture memos "issued by the Office of Legal Counsel between 2002 and 2005..."
In a comment to this post on death penalty costs at SL&P, capital defense attorney Bruce Cunningham writes, "In the huge majority of capital cases there is no question about who did it. The question is whether he gets death or not."

Everyone involved in capital litigation has known that the whole time. Yet when we answer the argument about the death penalty costing so much by saying it doesn't need to cost so much, we are met with the response that the cost is needed to ensure we do not execute an innocent person. Bunk. Very few capital cases involve any genuine question of actual innocence, and the honest defense lawyers will say so.

The vast bulk of the additional cost involves litigating issues having nothing whatever to do with the guilt determination. So as we debate whether to get rid of the death penalty due to the cost, the alternative of simply getting rid of most of the extra cost must also be considered.

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No Takers on Philly's $10K Offer To Hire Ex-Cons:  A story by Marcia Gelbart in today's Philadelphia Inquirer reports that Philadelphia Mayor Mike Nutter's 18-month-old offer to give businesses who hire ex-con's $10,000 per year in tax-breaks for three years has had exactly zero takers.  The Mayor's office reports that two companies are supposed to apply for the credit next year.  To get the credit, employers have to keep the ex-con on the payroll for at least six-months at a higher wage than required for non-criminal union members.  Last year the Mayor proclaimed, "This is one of the best crime-prevention programs we'll ever have," in spite of Philly maintaining one of the highest violent crime rates among U.S. cities, and nobody yet taking him up on the offer. 

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The Real Problem With Life Tenure on the Supreme Court:  Hat tip to Howard Bashman at How Appealing for his link to Edward Lazarus' article "The Problem of Supreme Court Justices' Remaining on the Bench Too Long:  Although It's a Genuine Concern, Recently Suggested Reforms Are More Problematic Than the Status Quo."  Lazarus' article critiques Paul Carrington's recent argument that Justices are taking their "life tenure" on the Court too literally, and should consider retiring earlier (Carrington's Op-ed can be found here).  For Lazarus, the problem is not that members of the Supreme Court are remaining on the Court when they are "too old or infirm to handle the job," the problem is that people tend to hold on to positions of authority for as long as they possibly can.  Lazarus argues that this tendency limits the Court by allowing them to make retirement decisions based on political factors, and could cause judicial decisions based on outdated world views.  Lazarus believes these problems can be addressed by establishing a system of set 18-year terms for Supreme Court Justices. 

Is it really a problem if Justices have "outdated" views such as interpreting the Constitution according to its original understanding or holding people fully responsible for their voluntary choice to violate the rights of others?

Speaking of limits, how about a word limit for article titles?
When Barack Obama was elected President, a major concern for those of us who believe in actually enforcing the criminal law was how much "change" we would see in the Department of Justice generally and in the Solicitor General's advocacy in the Supreme Court particularly. Our experience with the Clinton Administration (see below) combined with the fact that Obama is considerably further left than Clinton raised concerns that the SG's office would change from a consistent defender of law and order into a voice for further inflation of already bloated protections for criminal defendants.

Yesterday, we saw with some relief that the new SG is willing to call a spade a spade and denounce one of the more pointless and unjustified rules requiring exclusion of valid evidence. In Michigan v. Jackson, 475 U.S. 625 (1986), the Court handed down one of those maddening rules where it extrapolates its own precedents to unjustified lengths, creating new restrictions far removed from any realistic view of what the real Constitution actually requires.

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Jury finds producer Spector guilty: Linda Deutsch, of the Associated Press, writes this story about the rock music producer's conviction. "Phil Spector was convicted Monday of second-degree murder in the shooting death of a film actress [Lana Clarkson] at his mansion six years ago, a verdict that will send him to prison for at least 18 years barring a successful appeal." Clarkson was found dead in Spector's foyer. The cause of death was a gunshot wound in her mouth. "Spector's chauffeur, the key witness, said he heard a gunshot, then saw Spector emerge holding a gun and heard him say: 'I think I killed somebody.'" Spector's attorney said he will be filing an appeal and a request for a new trial.

Marine denied ability to sue: Nedra Pickler, of the Associated Press, writes that "a federal court ruled Tuesday that Rep. John Murtha cannot be sued for accusing U.S. Marines of murdering Iraqi civilians 'in cold blood,' remarks that sparked outrage among conservative commentators." Staff Sgt. Frank Wuterich is claiming that Murtha's statements severely hurt his reputation. The attorney of another marine, involved in a similar situation as Wuterich, "argued that a jury in Pennsylvania should decide whether Murtha was acting within the scope of his official duties when he called the Marine murderers on cable TV news shows."

More on Corley: The L.A. Times has this over-the-top editorial on the recent Supreme Court decision in Corley v. United States, noted here. The editorial equates a mere delay in presentment, which is what happened in Corley, with the infamous "third degree" interrogation, a quite different matter.

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Another Judge Calls for Cost Analysis of Death Penalty:  Today, at Sentencing Law and Policy, Doug Berman posts the concurrence of Sixth Circuit Judge Martin in Wiles v. Bagley.  Berman's post focuses on Judge Martin's discussion of the "exceedingly expensive" costs of the death penalty.  While Judge Martin believes that our broken system "would not justify its costs even if it saved money," he does believe that the time has come for an extensive study comparing the costs of the death penalty with its benefits.  One of the studies he cites as a point for comparison is Kent Scheidegger's The Death Penalty and Plea Bargaining to Life Sentences. (Hat tip federalist).

Failure to Provide Defense to Indigents:  At the American Constitution Society, Virginia E. Sloan, President of The Constitution Project, posts on the National Right to Counsel Committee's report on "the crisis in our country's indigent defense system."  The report, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, describes how "funding shortfalls, excessive caseloads, and a host of other problems" are causing our indigent defense structures to fail.  To address this failure the Committee recommends legislation that will provide indigent defense services that are "independent, non-partisan, organized at the state level, adequately funded by the state from general revenues, and overseen by a board or commission.  These state programs will also be supported by federal funds.  This makes me wonder whether too many cooks will make it difficult for indigent defendants to receive the representation the Constitution requires.

International Human Rights Treaties and Domestic Law:  At Bench Memos, Ed Whalen continues his critique of Harold Koh's advocacy of international "'human rights' treaties" and his belief that such treaties are self-executing.  Whalen writes that use of these treaties to regulate the a nation's treatment of its own citizens is contrary to "the basic system of representative government that the Constitution creates."  Whalen believes that Koh is one of the "American transnationalists" urging the United States to adopt international treaties and then hiding behind a treaty's sweeping statement of an unobjectionable principle.  Whalen worries that such a policy, particularly in the hands of the future Legal Advisor to the United States Department of State, will allow activists to rush to courts and ask judges to reinvent what provisions of the Constitution mean.  Jonathan Adler had a related post on Volokh Conspiracy yesterday.

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Citing Foreign Legal Decisions:  At Volokh Conspiracy, David Bernstein discusses Justice Ginsburg's speech defending the wisdom of citing foreign legal decisions.  Apparently, during a speech made at Moritz College of Law at Ohio State University, Justice Ginsburg asked "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?"  Berstein responds that it is not the job of Supreme Court Justices to decide American law based on the beliefs of foreign judges.  He also states it is not the duty of the Justices to increase the international influence of the U.S. Supreme Court.  For those who are interested in reading more about "why, in historical context, it's important to limit the influence of foreign law on American constitutional interpretation" Bernstein recommends Ken Kersch's Constructing Civil Liberties. Orin Kerr has this follow-up

Life Tenure on the Supreme Court:  Yesterday, Paul Carrington's Op-Ed "When to Retire a Justice" appeared in The New York Times.  Carrington, a professor at Duke University Law School, believes that it may be time for Congress to create a judicial council to investigate complaints made against the Supreme Court Justices that might be overstaying their welcome on the U.S. Supreme Court. Carrington argues that some Justices have remained on the Supreme Court for too long, and that the recognized practice of granting life tenure can run far beyond Article III's direction that federal judges may maintain their office so long as they maintain "good behavior." While he does not believe discipline is necessary for those who overstay their welcome, he does believe that a discipline council would remind Justices that the Constitution did not give them life tenure.

Who Wants to Free Mumia Now?

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San Fran Chrontrarian Debra Saunders comments on the denial of certiorari in Abu-Jamal v. Beard, noted here, and takes a few well-deserved shots at the apparently shrinking "Free Mumia" crowd.

Perhaps there were tears shed in Paris, where he is an honorary citizen and where the suburb of St. Denis named a one-way street "Rue Mumia Abu-Jamal" in 2006. But I see it as a sign of healthy change that in America the ruling went largely unprotested.

Update: The "Free Mumia" crowd is not entirely silent, as reported by Susan Snyder in the Philly Inquirer (h/t How Appealing). It seems that "about 50 people, led by MOVE member Pam Africa, began signing a petition to present to Attorney General Eric H. Holder Jr...," and they are also going to "take their plea to President Obama and his wife, Michelle, both lawyers."

"Africa at first expressed concern about seeking a presidential pardon, wondering if it would imply guilt." No, Ms. Africa, it would imply that you are so completely clueless about America's federated government that you think the President can issue a pardon for a state offense.

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Pittsburgh officers are remembered: The Associated Press writes that "Pittsburgh Mayor Luke Ravenstahl says three city police officers killed when they answered a call are heroes." Ravenstahl spoke to thousands who mourned the death of the three officers. "More than 1,000 police patrol vehicles from across the country have rolled into Pittsburgh for the event."

Execution dates set in Ohio: Andrew Welsh-Huggins, of the Associated Press, writes that "the Ohio Supreme Court on Wednesday set execution dates for two more condemned killers as the state accelerates its death penalty cases." July 14, 2009 is set for John Fautenberry who was sentenced for the "fatal shooting of man during a 1991 multistate killing spree." August 18, 2009 is set for Jason Getsy who was "given the death penalty in 1995 [for] slaying a woman in a murder-for-hire scheme in Trumbull County." CJLF's brief in the Sixth Circuit in Getsy is here. The Ohio State Supreme Court has "two other requests for executions pending."

CSI television show and the justice system:
Elena Buckner, for the K-State Collegian, writes that "CSI (Crime Scene Investigation) might be one of the most misleading shows on television. The realistic elements of the show are few and far between." In relation to the justice system, "CSI misinforms people by creating the illusion that each and every case that goes to trial requires substantial amounts of forensic evidence." This is creating problems seen by lawyers and judges across the United States. Many have labeled the "CSI effect as the influence of juries who are becoming increasingly reluctant to convict a defendant without some forensic clue that the prosecution caught the right suspect." In reality, forensic evidence cannot be processed to close a case within a single hour, which each episode tries to convey as a possibility each week.

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Governor Bill Richardson Vetoes Teen Sentencing Bill:  Doug Berman posts a link at Sentencing Law and Policy to a Silver City Sun-News article reporting on the New Mexico Governor's decision to veto a teen sentencing bill.  The bill, Senate Bill 7, would have allowed judges more discretion than they already have when sentencing convicted first-degree murderers, aged 15-17, as juveniles.  Under the bill, these offenders could be sentenced to less than the mandatory term for an adult.  When he vetoed the bill, Richardson stated, "signature of Senate Bill 7 would, in essence, allow courts to treat serious youthful offenders who commit the most heinous of crimes in the same manner as youthful offenders who commit minor offenses; hence, any deterrence that the enhanced penalty might cause would be taken away." 

Defining Rights of Terrorist Suspects Held Abroad:  Hat tip to Howard Bashman at How Appealing for the link to today's LA Times editorial calling for a concrete articulation of the rights of suspected terrorists held at Bagram Air Force Base in Afghanistan.  The editorial follows last week's decision by U.S. District Judge Bates that three suspected terrorists held at Bagram could challenge their detentions in U.S. courts.  Last week's decision goes beyond what the U.S. Supreme Court stated in Boumediene v. Bush.  To reach his conclusion Judge Bates likened Bagram to Guantanamo Bay, and said that the three men held at the base were "virtually identical" to Guantanamo detainees because they're foreign nationals who have been transported to a foreign country, imprisoned indefinitely and denied a fair chance to dispute their designation as enemy combatants.  The editorial asks the Obama administration to "quickly" institute new procedures defining the rights of the detainees held at Bagram.

"Your dishonor":  At Judging Crimes, Joel Jacobsen comments on the Supreme Court's recent decision, and rejection of the Ninth Circuit's decision, in Knowles v. Mirzayance.  Mirzayance addressed sufficiency of counsel during conviction and sentencing of a first-degree murderer.  During post-conviction proceedings, Mirzayance alleged his counsel had been ineffective under Strickland v. Washington, because counsel had advised Mirzayance to abandon his "Not Guilty By Reason of Insanity" claim, and because Mirzayance's parents had surprised counsel by refusing to testify.  A three-judge panel for the Ninth Circuit found counsel incompetent for failing to put the parents on the stand.  The Supreme Court disagreed with this finding, calling it "misleading."  Jacobsen uses some stronger words to describe the Ninth Circuits errors.     

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Judging judges in Caperton v. Massey Energy:  David Rivkin, Jr. has an op-ed in today's L.A. Times urging the Supreme Court to "resist the temptation ... to make federal judges the arbiters of state court ethics," when it decides Caperton v. Massey Energy this term.  Rivkin argues that allowing federal judges to police state judges will undermine state sovereignty, weaken judicial reforms, and threaten federal judges' freedom from political interference.  Caperton was argued on March 3, 2009, and according to Rivkin, poses the question of whether elected state judges, who depend on campaign contributions during election season, should have the same discretion as appointed judges to decide whether to recuse themselves.  If the Supreme Court subjects this discretion to review in federal court, Rivkin believes that our "federalist tradition" will suffer and that the decision would imply that elected judges are less impartial than appointed judges and could lead some to conclude that no judge--state or federal, elected or appointed--can be trusted to police himself.

Prosecutor Sentencing Discretion:  Doug Berman posts a link to an article on post-Booker prosecutorial sentencing discretion at Sentencing Law and Policy.  The article, written by Alex Whiting, and titled, "How Prosecutors Should Exercise Their Discretion Now that the Sentencing Guidelines are Advisory," argues that the current Department of Justice policy--requiring prosecutors to charge and pursue the most serious, provable offense and advocate a Guideline sentence--is flawed.  Whiting argues that the DOJ should revisit its policy and return some limited discretion to prosecutors, particularly at sentencing

JLE Articles

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The table of contents for the "February" issue of Journal of Law and Economics arrived in my mailbox this morning. Here is the crim. law stuff, after the jump:

What Everybody Knows About Costs

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Here is a fallacy with a familiar ring.

Everyone knows that smokers cost society more in health care costs, and that is what makes steep taxes on tobacco fair. As the saying goes, "It's not what we don't know that gets us in trouble. It's what we know for a fact that just ain't so."

Erica Werner of AP has this "Fact Check" article that tells the unpleasant truth.

Smoking takes years off your life and adds dollars to the cost of health care. Yet nonsmokers cost society money, too - by living longer.

It's an element of the debate over tobacco that some economists and officials find distasteful.

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"We were actually quite surprised by the finding because we were pretty sure that smokers were getting cross-subsidized by everybody else," said [Willard] Manning [of U.Chi.]....  "But it was only when we put all the pieces together that we found it was pretty much a wash."

So why is this familiar and what is it doing in a crim law blog? This is the same fallacy we are seeing in the death penalty debate. People look at direct costs, such as a capital trial costing more than a non-capital trial, and ignore less obvious offsetting factors, such as the much larger number of trials saved when cases are plea-bargained to life sentences.

Our previous post on that subject is here.

Blog Scan

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Executive Branch May Transfer Detainees to Other Countries:  At SCOTUSblog, Lyle Denniston reports on a D.C. Circuit Court "compromise" decision that the Executive Branch can order the transfer of Guantanamo detainees to other countries without "second guessing" from other courts, and without informing detainees' lawyers of the order.  Denniston reports that the decision left open the possibility that a court could block a transfer if the government knew the country would torture the detainee.  But this does not mean that courts can interfere if the Executive Branch orders the detainee to a country where the detainee could be held again, or prosecuted for some other crime. Today's ruling in Kiyemba v. Obama (05-5487) dissolved a district court's orders that the Uighurs could not be transferred to another country before their attorneys had the opportunity to object.  The decision was based on the Supreme Court's decision in Munaf v. Geren (06-1666), which held that a U.S. court could not bar the transfer of two U.S. citizens to Iraq for prosecution for crimes allegedly committed in that country.

Stevens Conviction Set Aside:  Doug Berman has a post on Sentencing Law and Policy linking to a CNN report and a Legal Times article on the formal dismissal of former Senator Ted Stevens' prosecution.  Apparently, at today's proceeding, District Judge Emmet Sullivan chastised the prosecutors, stating "[i]n nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case."  He also appointed an independent, nongovernment attorney to investigate the misconduct of the government attorneys.   

News Scan

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Harmony on the High Court:  An article by AP writer Mark Sherman reports that more than half of the Supreme Court's decisions this term have been unanimous or with only one dissenting vote.  In each of the eight 5-4 decisions, Justice Anthony Kennedy was was the deciding vote.  Sherman notes that there may be less harmony in the end of term decisions, especially among the three cases argued last fall that remain undecided. 

Condemned Murderer Admits to Another Killing:  There are some murderers that the anti-death penalty folks simply cannot whip up much sympathy for.  Luis Salazar, executed last month for the attempted rape and stabbing murder of 28-year-old Martha Sanchez, fell into that category.  During the murder, Salazar was interrupted as the woman's ten-year-old son tried to defend her.  He slashed the boy in the chest, but he survived to run to a neighbor's for help and testify against the killer.  A story by AP writer Michelle Roberts reports that on the day he was executed, Salazar admitted stabbing 19-year-old Melissa Morales to death during a 1992 convenience store robbery in San Antonio.  Local police had no suspect for that murder.  "We were at a standstill until this confession," said the Police Chief.

New information regarding fallen Pittsburgh police officers: Dan Nephin, of the Associated Press, writes that the "three police officers killed while answering a call about a woman fighting with her son didn't know the man had weapons, but a 911 operator did. She just didn't tell anyone." Operators are taught to "'never send a response unit to any dangerous or potentially dangerous situation without some advisory about weapons' said Bob Smith, director of strategic development for the Association of Public-Safety Communications Officials International." In this situation, the operator did not relay even the basic information she had to police dispatchers. "She is now on paid administrative leave and is receiving counseling because supervisors are concerned about her well-being."
In today's New York Times, John Schwartz has an article discussing how different states are addressing the tightening budgets of their criminal justice systems.  The article, headlined "Pinched Courts Push to Collect Fees and Fines," discusses how Florida courts have implemented the aggressive plan of sending people to jail for failing to pay all of their court fees. Schwartz reports that Florida, Georgia, and Michigan have all cracked down on those who owe the court fees and fines.  While some bloggers have expressed disapproval of these state methods, fee collection is not what bothers me.  I am more disturbed by the other methods Schwartz reports courts are using to cut costs.

Repeal the Repeal

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Darren White, Sheriff of Bernalillo County, NM (Albuquerque and vicinity), has this web site for his effort to gather signatures for a referendum on the death penalty repeal bill recently enacted.

McNabb Lives! (more or less)

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Today, the U.S. Supreme Court dove once again into Congress's clumsy, problematic 1968 response to the Miranda decision, 18 U.S.C. § 3501.

Subdivisions (a) and (b) of that section were intended to simply abrogate Miranda. Even though the decision itself says that Congress could prescribe a different rule if that rule addressed the underlying problem, 384 U.S., at 467, Congress opted for the meat-axe approach. Subdivision (a) of the statute simply says that "a confession ... shall be admissible in evidence if voluntarily given." The statute lay dormant for years, leaving undecided the question of whether Miranda was a rule of constitutional law above the power of Congress to change or some lower level that Congress could change. That question was finally resolved in the Dickerson case in 2000.

A much older rule is the rule of McNabb v. United States, 318 U.S. 332 (1943), excluding confessions for a violation of the prompt presentment requirement. Because the underlying requirement is not constitutional, there is little doubt that Congress can have its way with this rule. Subdivision (c), read alone, appears to modify but not abrogate this rule, even though subdivision (a) would seem to wipe it out. So, do the courts apply subdivision (a) as it reads, making (c) pointless and superfluous, or do they say that (a) does not really mean what it so plainly says? That's a tough one. Bad(ly drafted) laws make hard cases. The Court split 5-4 for the former interpretation today in Corley v. United States.

Abu-Jamal: 1 down, 1 to go

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Supreme Court cases 08-652 and 08-8483 are cross-petitions of Pennsylvania and Abu-Jamal, respectively, to review a decision of USCA3 granting relief from the death sentence but upholding the conviction, respectively, in the controversial case of Mumia Abu-Jamal. The Supreme Court today denied Abu-Jamal's petition. The orders list is here.

The state's petition is still pending. It was originally set for conference March 20. (The state filed a supplemental brief on March 18.) As noted here, on March 13, we expected no action at the March 20 conference so that the Court could consider the two petitions together. However, the cross-petition has now been denied, and no new conference date has been set for the state's petition, so something else is up. One possibility is that a Mills v. Maryland issue has already been accepted in Smith v. Spisak, No. 08-724, and the Court may be deciding whether to grant Abu-Jamal in addition or just sit on it for now.

James Vicini has this story for Reuters. AP story is here.

Emilie Lounsberry has this story in the Philadelphia Inquirer. Officer Daniel "Faulkner's widow, Maureen, said she started to cry after learning about the decision. 'To think that he will never get a new trial is such a relief for the family and I after 27 years and everything we've gone through,' Faulkner said in a telephone interview from California, where she lives."

A Brush with Disaster

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Ever find out you had a close brush with death or some other disastrous result, and you had no idea at the time? Tony Mauro posts at BLT that former NY Gov Mario "Cuomo has another strong link to the Supreme Court. He came very, very close to being appointed to replace Byron White when White retired in 1993. According to Jeff Toobin's book The Nine, Cuomo said yes twice to President Bill Clinton's offer of the nomination, only to change his mind, prompting Clinton to name Ruth Bader Ginsburg instead."

"Justice Cuomo" is enough to send shivers up my spine.

The Case of the Twittering Juror

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That sounds like a good title for a Perry Mason novel, but this is a real case. It's civil, but it could just as easily happen in a criminal case. The juror sent 8 "tweets" to Twitter.com during deliberations ending in a $12.6M verdict. No new trial, the judge decided, according to this AP article by Jon Gambrell.

Life Imitates Hypotheticals

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To refute the notion that freedom of speech or the press is absolute, a common device is to cite a hypothetical of spoken or written words that everyone with sense would agree can be prohibited. The most famous is Justice Holmes's example in Schenk v. United States, 249 U.S. 47, 52 (1919), "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Another classic is that of Chief Justice Hughes in Near v. Minnesota, 283 U.S. 697, 716 (1931), "No one would question but that a government might prevent ... the publication of the sailing dates of transports or the number and location of troops."

Well, now it turns out someone has actually done that and is going to be punished for it. John Christoffersen writes for AP,

A former Navy sailor convicted of leaking details about ship movements and the best ways to attack them was sentenced Friday to the maximum 10 years in prison.

U.S. District Judge Mark Kravitz said Hassan Abu-Jihaad, of Phoenix, betrayed his country and endangered his fellow sailors.

Friday Orders

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Today's U.S. Supreme Court orders list, such as it is, decided 8 motions by the Solicitor General for leave to participate in oral argument as amicus. No points for guessing the results. Decisions on questions that were actually in doubt will be announced Monday.

Update: Lyle at SCOTUSblog reports that there actually was an order of some substance today, an order by CJ Roberts as circuit justice staying an order releasing "sexually dangerous" persons held in federal prison. The order in U.S. v. Comstock, 08-1224 does not appear to be on the Court's website as of this writing (2:50 PDT).

Blago Indicted

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"Even before he took office six years ago, former Illinois Gov. Rod Blagojevich, his brother and a circle of associates conspired to use the governor's office to enrich themselves at the expense of taxpayers and 'honest government,' a federal grand jury indictment charged Thursday."  Douglas Belkin and David Kesmodel have the story in the WSJ.

Blog Scan

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Judicial Nominees for the Second and Fourth Circuits:  Ashby Jones reports on Wall Street Journal Blog that President Obama has announced two nominations for vacancies on Second and Fourth Circuit Courts.  This morning, President Obama announced he would nominate Maryland federal judge Andre Davis to the Fourth Circuit, and Gerard Lynch to fill the lone vacancy on the New York-based Second Circuit.  In 2000, Lynch was appointed to the U.S. District Court for the Southern District of New York by then-President Clinton.  If affirmed, Judge Davis would be the sixth Democratic-appointed judge on the Fourth Circuit, and Judge Lynch would be the seventh Democratic-appointed judge on the Second Circuit.  David Ingram posted the news release on Blog of the Legal Times. 

"Bazed and Confused"  A New SSRN Article:  Thanks to Doug Berman at Sentencing Law and Policy for pointing us to the article "Bazed and Confused: Lethal Injection, the Eighth Amendment and Plurality Opinions," discussing Baze v. Rees and the Marks rule.  The article, written by Justin Marceau, an Assistant Professor at University of Denver Sturm College of Law, argues that Chief Justice Roberts plurality opinion in Baze "leaves the individual states and lower courts to quarrel over the weight and precedential value to be accorded to the case's seven separate opinions."  Marceau argues that "the Court's jurisprudence regarding plurality opinions -- the Marks rule -- is frustratingly indeterminate in its application to any case, and antithetical to the Eighth and Fourteenth Amendments in the context of capital cases."

Federal Judges Cannot Limit Governor's Clemency Power:  Hattip to Howard Bashman at How Appealing for the link to the Seventh Circuit's opinion in Bowens v. Quinn, which held that federal courts cannot set timetables for action on clemency petitions by state governors.  The decision, written by Judge Richard Posner, rejected the plaintiffs' argument that the due process clause of the Fourteenth Amendment entitled each to have his clemency petition acted on by then-Governor Blagojevich within a reasonable time.  In rejecting this argument Posner wrote, "Federal courts have run prisons, school systems, police and fire departments, and other state and local agencies found to have engaged in unconstitutional conduct. But for a federal court to run a governor's pardon system would be a step too far."  It's surprising this case made it all the way to the Seventh Circuit, for as Judge Posner wrote, "plaintiffs have no good constitutional claim."  

Miranda Rumblings

For the second time in two weeks, the U.S. Supreme Court has stayed the mandate of the Florida Supreme Court in a criminal case on the application of the state. Last week's order in Florida v. Rigterink is here. Today's order in Florida v. Powell is here. The Powell opinion, followed in Rigterink, deals with the adequacy of Miranda warnings. According to the Rigterink dissent, it creates a conflict with People v. Wash, 6 Cal.4th 215, 861 P.2d 1107 (1993) and other cases.

Update: Lyle Denniston has this post on the cases at SCOTUSblog. However, his statement that Justice Thomas stayed the Powell case individually is incorrect. The order reads, "The application for stay presented to Justice Thomas and by him referred to the Court is granted...."

News Scan

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DC Ponders Inmate Release: Facing a revenue shortfall of $800 million, the Mayor of the District of Columbia is proposing the early release of up to 80% of the criminals in city jails according to a Washington Times story by Gary Emerling.  With DC consistently ranking #1 nationally for its murder and violent crime rates, at least one local Council Member, at large Democrat Phil Mendelson, has some concerns about the effect the proposed releases may have on public safety.  What public safety?  The Mayor must have read the feature article from last Sunday's Parade Magazine, where Virginia Senator Jim Webb laments the size of the U.S. prison population and reports that an increasing number of inmates are going to prison for non-violent crimes.  He also reports on his trip to Japan 25 years ago where he discovered that the ratio of Japanese in prison was far lower than for Americans. The Senator is mistaken about the U.S. inmate population. More than half of the inmates currently in state prisons are there for violent crimes such as rape, robbery, murder and aggravated assault and the incarceration rate of these types of criminals has been increasing.  The remaining so-called non-violent inmate population are mostly habitual felons and drug dealers.  The last time the states decided to explore alternatives to incarceration for their non-violent felons (1966-1980) the national violent crime rate tripled and the homicide rate doubled.  See graph on the jump page. The comparison of incarceration rates in Japan and the U.S. while ignoring their respective crime rates and fundamental cultural differences is remarkably naive.

Blog Scan

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Ohio's Death Row:  Doug Berman posts a link to the Ohio AG's Capital Crimes Annual Report for 2008 at Sentencing Law and Policy (and for those who don't want to read the entire report, he also provides a link to the press release).  According to Berman, Ohio law requires the AG to produce an annual report that details the status of all individuals sentenced to death in the state.  According to Alan Johnson of The Columbus Dispatch, Ohio's death row "is shrinking due to both executions and successful legal appeals."  The report also shows fewer people are also being sentenced to death.  In 2008, three new death sentences were imposed in Ohio, and 53 death sentences were imposed from 2000 through 2008.  Berman also links to an AP article that quotes Ohio Attorney General Richard Cordray as saying the death penalty appeals process is still too long and sometimes defeats the possibility of justice being done.  Berman seems surprised by this quote, particularly Cordray's rejection of the argument that the death penalty should be eliminated because cases take too long and cost too much.

Holder Drops All Charges Against Ted Stevens:  At Wall Street Journal Blog, Ashby Jones reports on this morning's announcement that AG Eric Holder is dropping all the charges against Stevens, who was convicted last year on corruption charges.  Jones reports that Holder reviewed the case because of allegations of prosecutorial misconduct, specifically that four prosecutors had failed to give defense attorneys documents concerning allegations of misconduct by members of the government's legal team.  Mike Scarcella, of Law.com, has this article on Holder's announcement.
Explaining the Justice Souter Bobblehead (No Foolin'):  At Blog of the Legal Times, Tony Mauro posts that The Green Bag has delivered the Justice Souter bobblehead just in time for April Fool's day.  The new bobblehead joins five other dolls created to depict the sitting Justices.  If you scroll down to glimpse the photo of the doll you'll notice that the doll is wearing a gold chain and sitting in a lifeguard's chair.  Mauro explains that the gold chain replicates the jewelry worn by members of the 2 Live Crew rap group that Souter wrote about in his 1994 decision Campbell v. Acuff Music, while the lifeguard stand represents Souter's 1998 ruling in Faragher v. City of Boca Raton, in which the city was held liable for sexual harassment committed by supervisors against lifeguard Beth Faragher.

Clemency, Counsel, and Congress

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The Supreme Court decided Harbison v. Bell this morning. 5-2-2. No surprises.

Is there any good reason why the taxpayers of the country as a whole should pay for a lawyer to make a clemency plea to a state governor on behalf of a murderer set to be executed by a state, after that murderer has already made and lost his case to the federal courts? Putting aside the very rare cases with genuine questions of actual innocence and considering the typical case, I can't think of a single one.

Should a statute that appears to provide such federally funded counsel be enforced as written, despite the lack of a decent policy reason? Yes. The very first substantive section* of the Constitution provides, "All legislative Powers herein granted are vested in a Congress...." The Constitution does not go on to say, "except when they are acting like a bunch of Bozos."

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