May 2009 Archives

As noted in yesterday's post, Supreme Court nominee Sonia Sotomayor has almost no record on the death penalty. (Update: AP article by Mark Sherman is here.) She has had little or no involvement in the few Second Circuit capital cases, some pretrial rulings in one potentially capital case in the District Court, and some unclear but potentially disturbing involvement with an activist Puerto Rican legal group a long time ago. This last item and the lack of any other significant record calls for careful and thorough exploration of the issue during the confirmation process.

News Scan

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Spector Gets 19-to Life:  A Los Angeles judge has sentenced famed 60s music producer Phil Spector to a 15 years to life for the second-degree murder of former actress Lana Clarkson, plus four years for personal use of a gun.  A story by AP writer Linda Deutsch reports that, in addition to circumstantial evidence, the case hinged on the testimony of five women previously involved with Spector who said that he had threatened them with a gun when they attempted to leave him.  Following the sentencing, Spector's son was quoted saying "I'm torn about this. I'm losing my father who is going to spend his life in jail.  At the same time, justice is served."

Druggist Arrested for Killing Robber:  AP writer Tim Talley reports that an Oklahoma pharmacist has been charged with first degree murder for the May 19, killing of one of two armed teenagers who had attempted to hold up the drugstore where he worked. The incident was caught on the store's security camera which shows that when the robbers confronted pharmacist Jerome Ersland, who was behind the counter, he pulled a gun and shot one in the head.  After chasing the other robber away, Ersland grabbed another gun and pumped five more bullets into the wounded robber laying on the floor.  Public support in Oklahoma seems to favor Erlsland, who's $100,000 bail was payed by an anonymous donor.  The state gives citizens statutory authority to defend themselves with its "Make My Day" law allowing deadly force to protect one's home and a "Stand Your Ground" law which extends that right to any place someone is lawfully allowed to be.  

Deal Announced to Settle CA Prison Healthcare Suit:  California's Secretary of Corrections, and the court-appointed receiver charged with fixing the state's alleged inadequate inmate healthcare system, have agreed to a settlement which calls for construction of two prison hospitals able to house 3,400 inmates at a cost of $1.9 billion.  AP writer Don Thompson reports that the receiver's original demand that the state build seven medical centers, was rescinded after critics pointed out that the $6 billion cost included indoor basketball and handball courts, electronic bingo boards, along with stress reduction, yoga and music therapy rooms at a time when the state is facing a $24.3 billion deficit. 

Blog Scan

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More Time Needed To Block Release of Detainee Photos:  Lyle Denniston reports on SCOTUSblog that U.S. Solicitor General Elena Kagan asked the Supreme Court Friday to give it another 30 days to block public release of photos showing abuse of detainees in Afghanistan and Iraq.  The Administration's application requests that it be given until July 9, 2009, to file its petition for a writ of certiorari to review the Second Circuit's ruling that the photos must be released under the Freedom of Information Act.  The petition asserts that the Administration will "file a petition for a writ of certiorari will be filed unless the Detainee Photographic Records Protection Act is enacted into law[,]" and that more time will "permit the legislative process to continue and allow the United States to assess further the need to file a petition for a writ of certiorari in light of any new legislation."

New Sex Offender Laws in Iowa:  At Sex Crimes, Corey Rayburn Yung, posts on Iowa's new sex offender residency restriction.  Yung reports that Governor Chet Culver has signed legislation that prohibits the most serious sex offenders from living within 2,000 feet of places where children gather, this will include schools, libraries and day care centers.  The legislation will also ban offenders entering those facilities without permission, and it establishes a 300-foot "no loiter" zone around schools, libraries, etc.

A Better Way to Critique:  Stuart Taylor Jr. writes at the Ninth Justice that it is time for the "Right" to stop "Demagoguing" and cautions that President Obama should "stop distorting the facts."  Taylor believes that "the current debate over filling a vacancy on the Supreme Court has been a considerable dose of demagogy and false factual claims."  He believes that recent comments on Judge Sotomayor by Rush Limbaugh and Newt Gingrich have gone too far, and urges criticism focusing on her decisions.  Taylor then moves on to explain President Obama's misrepresentations of the facts of the Ledbetter case.  According to Taylor, the President has repeatedly stated that when Lily Ledbetter realized she was getting paid less than male co-workers, she filed a lawsuit.  Taylor says this isn't true, and points to Ledbetter's sworn deposition, and the opinions in Ledbetter v. Goodyear Tire, as proof.

Members of Bloods Gang Indicted in Maryland:  At Blog of Legal Times, Jordan Weissmann has a post discussing the indictment of 42 suspected gang members and on federal racketeering and drug trafficking charges in Maryland.  23 members of a Baltimore Bloods chapter were indicted by a federal grand jury for operating a violent organized crime web, and paying a cut of their earnings to leaders of the gang in California.  The remaining 19 members were indicted on counts of drug trafficking.  ATF Acting Assistant Director Mark Chait stated that the Baltimore gang was "directed by Bloods leadership in California."  

Considering Indirect Effects

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"There is only one difference between a bad economist and a good one," said French economist and MP Frederic Bastiat. "The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen." One might also refer to the direct and indirect effects. Failure to consider indirect effects is at the root of huge amounts of bad policy.

In this WSJ op-ed, Duke visiting professor John Hasnas uses Bastiat's principle to show what is wrong with judging based on empathy with the party before the court rather than the rule of law.

Judge Sotomayor and AEDPA

Most of the discussion regarding Supreme Court nominee Sonia Sotomayor has been over her civil case opinions and some speeches she has made. To get a better feel for her handling of the criminal cases, and especially the habeas cases, that are of primary interest to CJLF, I did a Lexis search for opinions written by her containing the word "AEDPA," the acronym for the Antiterrorism and Effective Death Penalty Act of 1996. A summary of the cases is here.

I decided to focus on this statute for several reasons. Decisions by federal judges under this law involve important questions of federalism. The Supreme Court's docket has been heavy with AEDPA cases ever since it was enacted.

The law is bitterly resented by many federal judges precisely because it was enacted to curtail their ability to lord it over state courts and because it rejected the notion that their judgments are inherently superior. Many, many federal judges have attempted to evade it, and a few have gone so far as to declare it unconstitutional. All of the latter have been reversed. Reversing the evasions has been a major part of the Supreme Court's workload, although, as one judge boasted, they can't reverse them all.

Nebraska Legislation, Final

The Nebraska Legislature gave its final approval to the method of execution bill, and the governor quickly signed it. Paul Hammel has this story for the Omaha World Herald. AG Bunning suggests that Carey Dean Moore might be the lead-off batter. His habeas petition was rejected by the Eighth Circuit en banc 6 years ago.

Blog Scan

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Goldstein Never Had a Doubt:  At SCOTUSblog, Tom Goldstein declares "It's Over."  What exactly, Tom?  Why, the fight over the confirmation of Judge Sonia Sotomayor, of course.  According to Goldstein, "[b]efore it ever started, the fight over the confirmation of Sonia Sotomayor is done.  She is going to be confirmed by a relatively wide margin and without a substantial, mainstream assault on her credentials or suitability for the bench."  And it appears that Goldstein never had a doubt.  SCOTUSblog has viewed Sotomayor as an "obviously serious candidate to serve on the Supreme Court" since May 15th, and provided weekly summaries of her civil opinions for interested SCOTUS readers.  And now, 48 hours after President Obama announced her nomination, Goldstein believes "the opposition outside the circle of committed advocates is almost certain to run out of gas by the weekend, a full five or six weeks before the hearings begin." If Goldstein is correct, let us hope that he is also correct when he states: "I do think (thankfully) that there will be close questioning of Judge Sotomayor at the hearings on the substance of her views about jurisprudence."

Should the Supreme Court Take Up a Unanimous Jury Case?  Sherry Colb, at FindLaw, believes that it should.  Yesterday, Colb posted a piece arguing that the Supreme Court should grant the certiorari petition of Scott David Bowen, a man convicted 10-2, on eight counts of raping, sodomizing, and sexually abusing his teenage daughter. In his petition for Supreme Court review, Bowen contends that the Sixth Amendment jury trial right requires a unanimous jury for conviction of any serious criminal offense.  He is asking the Court to reconsider the 1972 decision of Apodaca v. Oregon.  Colb writes that the Supreme Court should take the case because, "[h]ad the trial taken place in another state (besides Louisiana), a split verdict like this would have resulted in a mistrial and accordingly, a right to a new trial."  A new trial is precisely what Bowen wants.  Colb also blogs on Dorf on the Law, that one reason Oregon's split verdict system still stands can be contributed to the Justices seated on the Court in 1972.  In Apodaca, the Justices agreed 5-4 that there was a Sixth Amendment right to unanimity, however, Justice Powell "rejected the Fourteenth Amendment incorporation of that right."

Kmiec Comments on Catholic Court:  At Wall Street Journal's Law Blog, Suzanne Sataline has an interview with Pepperdine Law Professor, and former White House adviser to Presidents Regan and Bush, Douglas Kmiec, on what it could mean to have a Supreme Court where six of the nine Justices are Catholic.  Kmiec believes that Judge Sotomayor should not let her faith dictate her decisions.  He has noticed, however, that she seems
"particularly sensitive to freedom of religion issues."  For example, she once protected the ability of prison inmates to have their faith traditions accommodated. 


LWOP Under 18

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Criminal defense attorney Daniel Horowitz has this web site opposing California SB399, the attempt to undo life-without-parole sentences for murderers who are already ineligible for the death penalty (in some cases, just barely) because of their age. His intro on the sidebar explains why he is opposed:

On October 15, 2005, my wife Pamela was murdered by a young man who was just shy of 17 years of age.

He was a serial killer by his own design.  Pamela's courageous fight for her life marked this killer and created the forensic evidence that led to his conviction.  Had she not fought so bravely, he would have escaped and he would have killed again, and again.

SB 399 is a bill that will change California's criminal sentencing system and it will give a chance at parole for all people who killed if they did this before they were 18 years of age.

*                       *                       *

I reviewed the Human Rights Watch document.  It is filled with errors of law and stories of juveniles wrongfully convicted which read to me like fiction.

I put together a criticism of SB 399 and the Human Rights Watch publicity campaign.

Connecticut DP Poll

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Some new polling data from Connecticut:

Connecticut voters say 61 - 34 percent that the state should keep the death penalty, rather than abolish it and replace it with a maximum sentence of life in prison with no chance of parole, according to a Quinnipiac University poll released today.

"Gov. Jodi Rell has said that she intends to veto the bill to abolish the death penalty and public opinion is on her side," said Quinnipiac University Poll Director Douglas Schwartz, PhD.

The wording of the question, better than most polls on the issue, was:

Do you think the death penalty should be abolished in Connecticut and replaced with a sentence of life imprisonment without the possibility of parole or do you think Connecticut should continue to have the death penalty?

The fact that a legislature would pass a bill opposed nearly 2 to 1 by the people is a symptom that something is gravely wrong with the functioning of the democratic process.

I Don't Recall

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Dave Munger at Cognitive Daily has this post on faking amnesia and whether the act of faking actually does distort memory.

A common defense in murder cases is "focal retrograde amnesia": the defendant claims to have simply forgotten what occurred around the time of the crime (perhaps due having consumed too much alcohol or other drugs). In fact, "amnesia" is claimed in as many as 45 percent of murders. Psychologists know that this sort of amnesia is actually quite rare, so it's very likely that most, if not all of these defendants are faking amnesia.
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But in testing for faking amnesia, a secondary phenomenon seemed to be appearing. Several studies found that people who were asked to pretend to have amnesia were later unable to recall as much as people who told the truth from the start.
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There were a couple problems with these studies.... So a team led by Xue Sun designed a study to address these problems.
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In other words, pretending to have amnesia doesn't hurt your memory, but rehearsing the correct answers improves it. There's still a separate question about how all this applies to the real world. A criminal probably does rehearse his or her alibi. How does this rehearsal affect memory for the actual crime? It's hard to say, and also difficult to envision a study that would address this question. Perhaps our readers have some ideas.

Blog Scan

Judge Sotomayor's 2008 Criminal Decisions:  Yesterday, Corey Rayburn Yung had a post ranking Judge Sotomayor as an "activist judge."  Today, his Sex Crimes blog has a post weighing in on her criminal law record based on her 2008 decisions.  According to Yung, "Sotomayor is in line with the overall average" of appellate judges.  She decides criminal appeals in favor of the defendant 7.25% of the time, but, "[n]otably, she is a bit tougher on the government than other appellate judges with some prosecutor experience."  Yung's statistics do not tell the entire story however, he has "specifically exclude[d] habeas cases" from his dataset. 

Competency to Assist Counsel, Panetti and Ford
Thanks to Doug Berman at Sentencing Law and Policy for posting the SSRN link to Christopher Seeds article, "The Afterlife of Ford and Panetti: Execution Competence and the Capacity to Assist Counsel." Seeds, an Adjunct Law Professor at Cornell and former Deputy Capital Defender, advocates reinstating the capacity to assist counsel into the test for what is "cruel and unusual" under the Eighth Amendment.  Seeds argues that the capacity to assist counsel and communicate a defense once held a central place in assessing competence for execution, but that in 1986, Ford v. Wainwright removed capacity to assist counsel as a consideration.  He believes Panetti v. Quarterman may have created an opportunity to reinstate capacity to assist counsel as a consideration.

Impeaching U.S. District Judge Samuel Kent:  At Blog of Legal Times, Tony Mauro writes that the Fifth Circuit has recommended that Judge Kent be impeached and not be given disability status after he "pled guilty to molestation and obstruction of justice in connection with an investigation into charges that he sexually harassed court employees."  Judge Kent apparently requested disability status so that he could continue drawing a salary while in prison - which he should enter next month.  Chief Judge Edith Jones advised against disability status, reasoning that "a claimant should not profit from his own wrongdoing by engaging in criminal misconduct and then collecting a federal retirement salary for the disability related to the prosecution."  Howard Bashman provides a link to a Houston Chronicle story on the Fifth Circuit's decision at How Appealing.   
Judge Sotomayor Dissents in Prison Disenfranchisement Case:  At Bench Memos, Roger Clegg reports on Judge Sotomayor's dissent in Hayden v. Pataki, a case in which both Clegg and the Criminal Justice Legal Foundation participated as Amici.  (The brief can be found here.)  Clegg writes that Hayden addressed whether prison inmates had the right to vote.  The Second Circuit rejected the inmates' argument that New York's "law disenfranchising prison inmates and parolees deprives them of the right to vote on 'account of race,' and [was] contrary to the federal Voting Rights Act."  Judge Sotomayor dissented because the Voting Rights Act addressed "voting qualification[s]," and § 2 of the Act subjected felony disenfranchisement to its qualifications.  She wrote: "The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created."

Blog Scan

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When Will We Have a New Justice? What Are Interest Groups Looking For? and Does It Matter?:  In light of President Obama's nomination of Judge Sotomayor, a time line of the confirmation process for the four most recently appointed Supreme Court Justices at SCOTUSblog.  The time line is meant to give SCOTUS watchers an idea of when the Senate might hold nomination hearings and vote on Sotomayor's appointment.  Looks as though we could have a new Justice in as little as two months.  In addition, David Ingram has posted a "Roundup of Reaction to Sotomayor's Nomination" at Blog of Legal Times.  Ingram's post includes statements from the Executive Vice President of the Chamber of Commerce, the President of American Tort Reform Association, the President of the Interfaith Alliance, and the Executive Directors of the National Senior Law Center and Americas United, to name a few.  Finally, at the Ninth, Justice Dan Friedman from CongressDaily, reports that the "Senate GOP Rrobably Can't Stop Sotomayor."  Nate Silver at FiveThirtyEight, breaks down how current Senators voted when they confirmed Judge Sotomayor as a Judge for the Second Circuit.  The tally?  35 to 11.  

Summarizing Montejo:  At SCOTUSblog, Lyle Denniston provides a summary of the Supreme Court's decision to overrule Michigan v. Jackson in Montejo v. Louisiana.  As Kent Scheidegger reported earlier today, Justice Scalia authored the majority opinion. The opinion reasoned that Jackson did not set a strong precedent because "when this Court creates a prophylactic rule to protect a constitutional right, the relevant 'reasoning' is the weighing of the rule's benefits against its costs. Jackson's marginal benefits are dwarfed by its substantial costs."

Sentencing History of Current Nominee:  Doug Berman writes at Sentencing Law and Policy that he probably won't blog much about Judge Sotomayor until the sentencing hearings, but he "cannot resist some very early, very brief sentencing reflections on Judge Sonia Sotomayor."  Berman writes that because Judge Sotomayor has "a record as a federal sentencing judge" she is set "apart from every Justice to serve on the Court in my lifetime." He also writes that she "does not have much personal experience with death penalty issues because very few capital cases ever come before the Second Circuit."  With the death penalty consuming a good portion of the Supreme Court docket, it will be interesting to watch her view on the punishment emerge. 
President Obama and Justice Holmes:  At Bench Memos, Roger Clegg comments on President Obama's reference to Justice Oliver Wendell Holmes as he introduced Judge Sotomayor as his Supreme Court pick.  In his remarks, the President quoted Justice Holmes as stating, "The life of the law has not been logic; it has been experience[,]" to explain why the President had chosen Judge Sotomayor.  Clegg's post explains that when Justice Holmes made this comment he was lecturing on the "Common Law," and not constitutional or statutory law. According to Clegg, "he was writing mostly about cases in which judges really had no publicly enacted laws to apply," so they had to rely on life experience and not statutes or codes to make their decisions. This is different from deciding a constitutional issue based on personal life experience.  But Judge Sotomayor's personal experience may not be an issue.  Corey Rayburn Yung posts on Sex Crimes, that based on data compiled from Judge Sotomayor's 2008 opinions, "Judge Sotomayor is less activist than the average judge."

Michigan v. Jackson Overruled

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As expected, the Supreme Court this morning overruled Michigan v. Jackson, 475 U.S. 625 (1986), in Montejo v. Louisiana, No. 07-1529.  The vote was 5-4, with Justice Scalia writing the opinion and Justice Stevens writing the main dissent.

The notion that the police deprive a person of his right to counsel simply by talking with him has always been odd. Coerced statements are, of course, unconstitutional, but that comes under the Fifth Amendment, not the Sixth. The Jackson rule took an already strained concept and stretched it a step further, presuming that a waiver of the dubious right was presumed involuntary without a valid basis for such a presumption.

Today's decision shows that a majority of the Court, albeit a slim one, is willing to drop old rules that never had a valid basis and that cause continuing problems. In particular, rules that exclude evidence for reasons with little or no bearing on the reliability of that evidence are contrary to justice and will be closely examined by this Court. Stay tuned for Maryland v. Shatzer, next term.
A number of years back, opponents of judicial activism talked about interpreting the Constitution in accordance with its "original intent." This rather imprecise language was interpreted by many to focus on the intent of the people who drafted the United States Constitution in a secret meeting in Philadelphia. But that was the wrong focus. That convention could only propose, not adopt. The piece of paper they produced was nothing more than paper until the people adopted it as the supreme law of the land. The original understanding of the words of the document among populace at time is therefore the correct focus, and that is the term that has been used more recently.

A variation of this debate with regard to the Alaska Constitution popped up today in Wilson v. State, Court of Appeals No. A-9786 on the right a felon to possess a firearm and Article I § 19 of the Alaska Constitution. (Hat tip: Eugene Volokh)

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"Ideological Warfare" in the Confirmation Process:  Collin Levy at Wall Street Journal reports that "Joe Biden Wrecked the Judicial Confirmation Process," and Kirk Victor agrees at National Journal Online.  According to both articles, Vice President Joe Biden's attack on Robert Bork in 1987 dramatically changed the way Supreme Court Justices are confirmed.  Before Robert Bork's confirmation hearings, the Senate proceeded on the principle that it owed the president deference on his judicial selections.  But after 1987, all that changed, because Biden believed "[t]he Senate has an undisputed right to consider judicial philosophy."  Now, according to Ms. Levy, the confirmation process has become "a game of political revenge" that "has been toxic not only for the nominees but for the courts," which must find ways to deal with heavy caseloads when vacancies are caused by the delay.

Photos of the "Perp Walk":  At Wall Street Journal Blog, Ashby Jones asks whether pictures of a "perp" in handcuffs are prejudicial or proper?  According to Jones, a U.S. District Court Judge in Long Island is being asked to decide whether a newspaper should be enjoined from publishing photos of a criminal defendant in handcuffs for fear that such pictures might prejudice a jury?  U.S. District Judge Arthur Spatt will hold a hearing to determine whether he will prohibit Newsday from continuing to publish pictures of Long Island legislator Roger Corbin in handcuffs because the actions would prejudice his chance for a fair trial.  Newsday has a story on the hearing, which reports the pictures were published in early May alongside stories about Corbin's arrest on federal charges of evading income tax on $226,000 and lying to an agent about the situation.

A Supreme Court Case Worthy of Memorial Day:  In Salazar v. Buono, the Supreme Court will be asked to consider whether a cross erected in the Mojave Desert Preserve in honor of those who fought and died in World War I violates the Establishment Clause.  At Blog of Legal Times, Tony Mauro reports on a conference held by representatives of major veterans' groups that called on the Supreme Court to allow the Mojave Desert Veterans Memorial to stand.  The ACLU has challenged the seven-foot-tall cross as a violation of the Establishment clause because it was erected on a federal preserve.  The Ninth Circuit has sided with the ACLU twice.  In its second ruling, the court said that an intervening congressional action to transfer the land surrounding the cross to a private party did not cure the constitutional problem.  Mauro reports that the Legal Liberty Institute has authored a brief on behalf of the veterans, and has a website - - devoted to preserving the memorial.  

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WA Lawsuit Over DP Cocktail:  Attorneys representing three murderers on Washington's death row argued yesterday that only one drug should be used to execute the state's murderers.  A story by Jennifer Sullivan in The Seattle Times reports that while the plaintiffs have raised several claims against Washington's protocol, the major focus is on the use of three drugs in Washington's lethal-injection cocktail.  The lead plaintiff, Darold Stenson, who killed his wife and business partner in 1993, testified that his veins are difficult to locate due to health problems, which may prevent the initial painkiller administered in the protocol to take effect.  

Connecticut Senate Votes to Abolish Capital Punishment in the face of an expected veto by Governor M. Jodi Rell.  "The Day" writer Ted Mann reports that the 19-17 vote this morning followed House approval of the bill, which will make the state's most severe sentence for murder life in prison without the possibility of parole.  Connecticut currently has ten murderers on its death row and has only carried out one execution over the past 48 years.

Big LA Gang Sweep:  In what U.S. Attorney Thomas O'Brien called "the largest gang takedown in United States History,"  over 1,400 law enforcement officers were involved in a sweep in Los Angeles County Thursday, arresting  88 members and associates of the Varrio Hawaiian Gardens gang according to this story from Reuters.  An AP story by Thomas Watkins reports that state and federal officers siezed dozens of firearms including assault rifles and over $1 million in drugs during the sweep.  The gang, in addition to its other criminal activities, has conducted an ongoing campaign of violence against blacks to drive them out of the small Los Angeles County city of Hawaiian Gardens.   The 2005 murder of LA County Sheriff's Deputy Luis Otiz by a member of the gang sparked the investigation leading to Thursday's sweep.       

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Pew Center Report on "Evidence Based Sentencing":  At Sentencing Law and Policy, Doug Berman provides a link to a new policy brief from the Pew Public Safety Performance Project, titled "Arming the Courts with Research: 10 Evidence-Based Sentencing Initiatives to Control Crime and Reduce Costs."  Evidence-based sentencing is aimed toward reducing recidivism, and the policy brief's author, Roger Warren, advocates flexible sentencing options that will encourage recidivism based on the risks and needs of the offender.  The policy brief cites a study conducted in Washington state, and published in 2006, that concluded "some evidence-based programs can reduce crime, but others cannot."

More Sotomayor Opinions:  As part of its Judge Sotomayor opinion series SCOTUSblog offers up summaries of a few decisions by Judge Sotomayor.  These cases are notable because they provoked dissents or concurrences from other panel members.  They are also noteworthy because address mostly criminal issues, from application of the Sentencing Guidelines to habeas corpus petitions.  One case, United States v. Santa, actually involved the same question considered by the Supreme Court in Herring v. United States - whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information?  Judge Sotomayor held the evidence should not be suppressed under the exclusionary rule.  The Supreme Court reached a similar conclusion in Herring.

Judge Wood Interviewed:  Jeff Zeleny at New York Times The Caucus confirms that Judge Wood was in Washington for a SCOTUS interview with President Obama.  Yesterday, an official confirmed that President Obama had interviewed the first prospective Supreme Court candidate, while she was in town for a law conference at Georgetown University.  The meeting has prompted Stuart Taylor, Jr., to rework his SCOTUS rankings.  Judge Wood has replaced Elena Kagan at the top of his list.  All of the speculation surrounding Judge Wood also prompted a post describing Judge Wood's judicial philosophy on SCOTUSblog.  Kristina Moore's informative post provides transcripts of Judge Wood's nomination hearing to the Seventh Circuit, as well as summaries of some of her decisions.   
For those who place great weight on the opinions of other countries regarding America's death penalty, James Dao's story in yesterday's NYT may provide some food for thought. Former Army private Steven Green is on trial for raping an Iraqi girl and then murdering her and her entire family.

Several major issues are at stake in their verdict. Iraqis have been demanding the death penalty for the former soldier, Steven D. Green, a private first class with the 101st Airborne Division at the time of the killings. Only death will prove the fairness of the American judicial system and bring a measure of solace to the victims' relatives, many Iraqis say. The only other possible sentence, life without parole, could set off protests.

But of course the American judicial system is not fair to the victims, especially in capital cases. The worst feature of the federal system, due to the Supreme Court's dubious interpretation of a poorly drafted statute, is that a single juror can veto a death penalty that the other 11 consider the only just punishment for a particularly heinous murder. (Alternatives are to require the jury to deliberate to unanimity one way or the other, as in California, or to allow a nonunanimous jury to make a recommendation to the judge, as in Florida.)

So, we should not be surprised to shortly see people in another country protesting the unfairness of America's system of capital punishment. Unlike the usual protests, though, (1) it actually is their business, as the crime was committed in their country against their countrymen, and (2) the system actually is unfair in this respect.

Update: As predicted, and as yankalp notes in the comments, the single-juror-veto rule has resulted in a life sentence for this atrocity, and the Iraqis are justifiably furious. Habib al-Zubaidy has this story for Reuters. We don't know what the jury vote was, but that information will probably come out later.

What are the chances of Congress fixing the rule? Zero in the present Congress. Even when persons of sense were in control, I was not able to raise any interest in it.

The Unbiased Journalist

New York Times reporter Tim Arango reports in today's New York Times that "Death Row Foes See Newsroom Cuts as [a] Blow."  Apparently, lawyers who oppose the death penalty, and are working to exonerate prisoners on death row, feel "hobbled" by the shrinking size of America's newspapers and the declining number of investigative journalists. 

But death penalty opponents aren't worried that the decreasing number of papers will undermine quality journalism or inhibit the proliferation of ideas.  Death penalty opponents are complaining because they are finding it more difficult to enlist reporters as active members of their cause. Entirely aside from manpower questions, there is the question whether reporters ought to be doing that in the first place.

Some news organizations are reluctant to join the effort out of fear of blurring the line between advocate and objective collector of the news. "My feeling always was we should do it on our own," said Maurice Possley, a Pulitzer Prize-winning reporter who wrote many death penalty and wrongful convictions stories while a reporter for The Chicago Tribune.

Mr. Possley, who left The Tribune last year, had discussions with Mr. Scheck about the paper becoming involved as a plaintiff in the Jones case. "I think the more you link up, people will think you have a bias or an agenda," Mr. Possley said.


Blog Scan

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Acts of Vengeance:  Joel Jacobsen blogs on Judging Crimes that despite what educated lawyers, including Justice Souter, may think, lawyers and judges cannot stop those "at the bottom of the social ladder" from resorting to private acts of vengeance.  Jacobsen writes that private acts of vengeance are a way of life for tens of millions of Americans, because the alternative - involving the police and court system - doesn't offer justice or protection from retaliation.  Jacobsen blames "the people at the top, such as Souter," for this problem, because they don't adopt judicial practices that will protect the victim.  For example, the system may not protect an abused spouse if she refuses to testify against her husband.  As a result, the victim, who cannot afford private security, must rely on private acts of vengeance for protection.

Executions Go Forward:  At Sentencing Law and Policy, Doug Berman briefly comments on the executions of Dennis Skillicorn and Michael Lynn Riley, in Missouri and Texas.  Berman counts these as the 28th and 29th executions in the United States this year.  He also notes that of the 66 executions that have taken place since the Supreme Court decided Baze v. Rees, he "cannot recall a single report of a botched lethal injection protocol...."  Berman's eyes were most likely trained on Missouri's execution of Skillicorn.  This New York Times article by Monica Davey reported Skillicorn was the first prisoner to be executed in Missouri since a federal judge ordered a stop to executions, and a remaking of the system, in 2006.   

Why is Judge Wood Heading to Washington?:  At Legalities, Jan Crawford Greenburg reports on the curious timing of Judge Wood's trip to Washington, D.C.  Judge Wood is reportedly in D.C. to attend a legal conference at Georgetown, but Greenburg thinks Judge Wood could be in Washington for other reasons.  Apparently, Judge Wood didn't teach her first-year civil procedure class at the University of Chicago Law School yesterday afternoon so that she could attend the conference - even though she is not listed as a panelist or a participant.  Greenburg speculates that Judge Wood has come to town for an interview with President Obama, and believes Judge Wood is a "top contender."  One user comment points out, however, that Judge Wood could just be in town for the American Law Institute's Annual Meeting.  She does serve on its Council.  Wall Street Journal Blog also has this "Scotulbutt" on Obama's pick for the high court, and Jonathan Adler reports on Volokh Conspiracy that we may be losing Legalities at the height of nomination speculation. 

(For background and insight into the words and ideas SCOTUS watchers are debating, check out Stuart Taylor Jr.'s "Background Briefing" at the Ninth Justice.) 
A very strong argument for term limits can be found today in America's heartland. The longer people stay in office, the more removed they get from the common sense of regular folks, and the more they get wrapped up in the claptrap of the supposed elites. Paul Hammel continues reporting for the Omaha World-Herald on the legislative battle between those who want to repeal the death penalty and those who seek to implement it by replacing the invalidated electric chair with the SCOTUS-approved method of lethal injection.

The growing support for capital punishment within the Nebraska Legislature was clearly evident Tuesday.
Observers credited term limits and the exit of the Legislature's leading death-penalty foe, State Sen. Ernie Chambers, as the leading reasons.

Former Senator Chambers, you may recall, is the crackpot who filed a lawsuit against God.

The margin of victory [in Tuesday's vote] was stark compared with two years ago, when a similar repeal attempt mustered 24 votes - one fewer than a majority in the 49-member Legislature. Last year, an attempt to do away with the death penalty lost 28-20.
The winds of change blew in with term limits, which brought a total of 36 new senators into the Legislature in 2006 and 2008.
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New senators, [Sen. Tony] Fulton said, simply reflect Nebraskans' support of the death penalty.

Blog Scan

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Longer Sentences Deter in Italy:  Early this morning Doug Berman posted excerpts from a press release describing the results of a new published study on deterrence coming from Italy.  The study, "The Deterrent Effects of Prison:  Evidence from a Natural Experiment" suggests that potential criminals are deterred by longer sentences.  The study, published in Science Daily, found "that former prisoners are less likely to return to jail if they expect longer sentences for future crimes..."  Berman believes the results "suggests governments might be able to save money AND reduce the probability of recidivism by granting conditional clemencies to non-violent offenders."  In the alternative, the study could suggest that potential criminals will weigh the cost of a longer sentence against the immediate benefit of any crime, and choose not to commit the crime.

New Interrogation Rules Worry CIA:  Washington Post writer Walter Pincus writes that the CIA is concerned that agents will not be able to conduct effective interrogations under rules set out for the U.S. military.  In January 2009, an executive order declared that the CIA would conduct interrogations under rules described in 2006 version of the Army Field Manual.  But several past agency and military officials worry that the rules are so broad they are unclear.  For example, one section bans "violence, threats, or impermissible or unlawful physical contact," without specifying what is sanctioned.  This would ban tactics like the "attention grasp," described as "grasping the individual with both hands, one hand on either side of the collar." It has been employed in the past by the CIA and is listed in the Justice Department's May 10, 2005, memo, but is barred under the Field Manual.  CIA officials must ask Washington for permission to use this tactic during interrogation. 

Critical Comments on a Conservative Chief:  Above the Law has a post by Kashmir Hill summarizing Jeffery Toobin's profile of Chief Justice John Roberts in this week's New Yorker.  Readers familiar with Toobin probably aren't surprised by the critical tone that Toobin takes when profiling the Chief Justice.  Kashmir describes Toobin's piece as giving the Chief Justice "a fairly harsh appraisal in the profile, coming across as a political stooge..."  Toobin's problem with Chief Justice Roberts appears to be that Roberts is not "a humble moderate" but, "a doctrinaire conservative."  Not such a bad thing considering some of the Chief Justice's recent opinions.  Kashmir thinks Toobin's "fierce" comments might be because the Chief Justice refused to give Toobin an interview.

Nebraska Legislation

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The bill to replace Nebraska's now-outlawed electric chair with lethal injection is moving through the legislature. Yesterday, a Maryland-style amendment to reduce the death penalty to a token few murders was walloped 31-7. Paul Hammel has this story in the Omaha World-Herald.

Update: The story linked above has been updated to indicate that a second amendment on an outright repeal was defeated 33-13. The legislature's website indicates that the bill, in substantially its original form as a method-of-execution bill, has been approved by the committee. Nebraska's legislature has only one house.

Wood v. Allen

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We now have the Questions Presented, as framed by counsel for petitioner, in Wood v. Allen, No. 08-9156, courtesy of the Alabama AG office. The Court limited the grant to petitioner's Questions 1 and 2:

1. Whether a state court's decision on post-conviction review is based on an unreasonable determination of the facts when it concludes that, during the sentencing phase of a capital case, the failure of a novice attorney with no criminal law experience to pursue or present evidence of defendant's severely impaired mental functioning was a strategic decision, while the court ignores evidence in the record before it that demonstrates otherwise?
2. Whether the rule followed by some circuits, including the majority in this case, abdicates the court's judicial review function under the Antiterrorism and Effective Death Penalty Act by failing to determine whether a state court decision was unreasonable in light of the entire state court record and instead focusing solely on whether there is clear and convincing evidence in that record to rebut certain subsidiary factual findings?

The Court is evidently not interested in petitioner's Questions 3 and 4:

3. Whether a state court unreasonably applies Atkins v. Virginia when it bases its finding that a defendant does not have significant deficits in adaptive functioning and thus is not mentally retarded on an analysis of the defendant's relative strengths in adaptive functioning without considering the defendant's limitations, which is inconsistent with the accepted and established clinical definitions of mental retardation?

4. Whether a petitioner seeking habeas relief in federal court may rely on a comparative juror analysis to demonstrate a Batson v. Kentucky violation where that analysis is based on facts from the state trial court record, but was not presented to the state trial court?
Question 2 interestingly asks about deciding the "deference" question based on the whole state court record, while McDaniel v. Brown, No. 08-559, asks about deciding that question only on the state court record. Do you solemnly swear to decide on the record, the whole record, and nothing but the record, so help you God?

Blog Scan

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Cert Granted in Black v. United States:  At Volokh Conspiracy, Orin Kerr asks whether the Supreme Court will finally limit the scope of the honest services fraud statute now that the U.S. Supreme Court has granted certiorari in Black v. United States.  Kerr hopes that the Court will take this opportunity to limit the scope of the clause, and construe criminal statutes narrowly, something he blogged about back in February.  Black asks whether the "honest services" clause of 18 U.S.C. § 1346 applies in cases where the jury did not find that the defendants "reasonably contemplated identifiable economic harm..."  According to Judge Posner's Seventh Circuit opinion, Black was the CEO of Hollinger International, which was owned by a Canadian company that Black also controlled.  Black was accused of defrauding Hollinger through his association with the Canadian company, and at trial, the jury was instructed it could convict Black upon proof that he had schemed to deprive Hollinger and its shareholders "of their intangible right to the honest services of the corporate officers..." provided the objective of the scheme was "private gain."  As Kerr points out, Scalia's dissent in Sorich v. United States, may offer insight into how the Supreme Court will decide the case.

Death Penalty Delay:  At Sentencing Law and Policy, Doug Berman points to an  "interesting" L.A. Times article by Maura Dolan detailing the case of murderer Michael Ray Burgener, who was sentenced to death in 1981 and still remains on death row.  The article states "Burgener's death sentence in the murder of a 7-Eleven clerk has been overturned multiple times, and lawyers say his appeals could span another 15 years."  Unfortunately, Burgener has yet to complete his automatic appeal before the San Francisco-based California Supreme Court, which means that even after California renders a final verdict, Burgener may still appeal to the federal courts.  Even more unfortunate, the article stresses that California is suffering under the cost of appeals, instead of looking how the victim's of Burgener's have yet to see this killer brought to justice.

Proposed Local Law Enforcement Hate Crimes Prevention Act of 2009:  The Civil Rights Practice Group of the Federalist Society has posted a piece by Gail Heriot discussing H.R. 1913, an Act that will allow federal authorities to prosecute a crime because it was motivated by the victim's "race, color, religion, or national origin" only to protect certain "federally protected activities."  The new law would remove the requirement that the victim be engaged in a federally-protected activity and expand the list of protected categories to include actual or perceived "gender, sexual orientation, gender identity, or disability."  Critics of the Act worry that it will abrogate double jeopardy protections, since the Double Jeopardy Clause does not apply to dual prosecutions by the federal and state governments.  The Act's supporters believe that DOJ officials can be trusted to engage in double prosecutions only in cases under which their internal guidelines would consider it appropriate -cases involving more serious miscarriages of justice.  Heriot reports the bill passed in the House on April 29, 2009.  She is a Professor at University of San Diego School of Law and a Commissioner for the U.S. Commission on Civil Rights.   

SCOTUS Speculation - More of Sotomayor's Civil Opinions:  Tom Goldstein follows up on a post last week that summarized some of Judge Sotomayor's decisions for the second circuit.  Today's post summarizes more civil opinions, and opines that Judge Sotomayor's civil decisions  "seem largely in line with the views of Justice Souter."

Polling on the "Worst Judicial Activist":  David Ingram reports for Blog of Legal Times that the Judicial Confirmation Network has created a website,, and is asking its visitors to vote on which judicial frontrunner is the worst liberal judicial activist.  The group has chosen three, and "[a]s of 1:17 this afternoon, Kagan was in the 'lead' with 44 percent. Wood was second with 32 percent, and Sotomayor had 24 percent."

Chemerinsky's Advice

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Contrarian indicator Erwin Chemerinsky has this op-ed on regarding SCOTUS nominations, and he predictably gets point after point wrong. We need more politicians on the high court, he says. No, we don't. Probably the best howler is this:

Simply put, Obama should pick a justice as liberal as Roberts and Alito are conservative. This is important for ideological balance and to fill a gap on the current Court: There is no justice as liberal as a William Brennan, a Thurgood Marshall or a William O. Douglas.

Once again, we see someone who is so far to the left he has no clue where the center is. The proper reference point is the median American voter. From that point, the present court is roughly centered, and the present justices on the left are at least as far from the center as those on the right. To have justices as far right as Douglas, Brennan, and Marshall were left, we would need people calling for Hammer v. Dagenhart, 247 U.S. 251 (1918) to be reinstated. Such people do exist, but none were ever seriously considered for appointment in any modern Republican administration.

Procedural Default, Once More

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Sometimes a state court rejects a federal claim on the ground that the claimant did not raise it in the proceeding the state provided for that purpose, but instead he wants to raise it in a later proceeding. For example, an objection that evidence is inadmissible must normally be made at trial. A defendant who says nothing as the evidence comes in and then claims on appeal that the judge committed reversible error in allowing it is generally not allowed to make that claim.

This is called the "procedural default rule," although it might also be called the "speak now or forever hold your peace" rule.

In the 1960s, some Southern state courts manipulated their rules quite shamelessly to defeat civil rights claims, making them up or giving them unforeseeable interpretations after the fact. The U.S. Supreme Court in response developed the doctrine of the "inadequate" state ground. Regrettably, the 60s jurisprudence in the area borders on incoherent, and the Court since then has not cleaned it up. We had hoped it would in Philip Morris v. Williams this term, but alas it did not. Hope springs again in Beard v. Kindler, No. 08-992, granted today.

Oh, Never Mind

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Bob Egelko reports in the San Francisco Chronicle:

The Pentagon's plans for death-penalty prosecutions of six men accused of plotting the 2001 terrorist attacks were criticized by Democratic presidential candidate Barack Obama, who said capital punishment is appropriate for such crimes but that military tribunals are the wrong forum for the case....

"These trials will need to be above reproach," the Illinois senator said in a statement Monday. "These trials are too important to be held in a flawed military commission system that has failed to convict anyone of a terrorist act since the 9/11 attacks and that has been embroiled in legal challenges."

Obama said the men should be tried either in a U.S. criminal court or by military court-martial, either of which would "demonstrate our commitment to the rule of law."

Oops, sorry. That was Feb. 13, 2008.  Let me try that again. [Ahem.]

Laura Jakes reports for AP:

President Barack Obama said Friday he would reform and restart the military tribunals he once reviled for Guantanamo Bay detainees, jeopardizing his timetable for closing the prison by January and dismaying many supporters who suggested he was going back on campaign promises.

"This is the best way to protect our country, while upholding our deeply held values," Obama said, announcing his decision to renew the tribunals in a three-paragraph White House statement. The administration said he was not embracing the Bush-era system because it would be so significantly changed.

Alabama Execution

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Ella Foy Riley, age 68, was stabbed to death in her home in 1990. Willie McNair had asked to come in for a glass of water, and she let him in. The facts from the Eleventh Circuit opinion in the case are quoted after the jump.

The just punishment for this crime was finally carried out today. The Supreme Court order denying a stay yesterday is here. No dissents are indicated. Nineteen years is way too long, particularly in a case of clear guilt.

Blog Scan

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Vetting - Through a Judge's Decisions:  At SCOTUSblog, Tom Goldstein has a lengthy post summarizing Judge Sotomayor's "principal opinions in civil cases."  Goldstein writes that while media commentary may provide insight into the next Supreme Court Justice, a Judge's opinions, "the most accessible and valuable source of information," should also be considered.  Goldstein's post reviews Judge Sotomayor's opinions on First Amendment rights of speech and religion, abortion, civil rights, environmental law, the second amendment, international law, privacy and voting rights.  Goldstein promises that a summary of criminal opinions will follow.  Jonathan Adler has a post at Bench Memos pointing to another good source of information - judge's speeches.  Orin Kerr chimes in at Volokh Conspiracy on one of Judge Sotomayor's speeches. 

The Great Writ Isn't Used Much... At Sentencing Law and Policy, Doug Berman links to a SSRN article by U.S. District Judge Lynn Adelman titled, "The Great Writ Diminished."  The article examines a random sample of 2,384 habeas petitions filed in United States District Courts in 2007 by state prisoners in non-capital cases, and finds relief was only granted in seven cases.  Adelman argues that, based on his own experience of granting relief in 12 cases in 2007, "the Great Writ has been diminished."  Adelman is a United States District Judge for the Eastern District of Wisconsin, and a former Wisconsin legislator.

The fact that a small fraction of petitions for writs of habeas corpus are granted has been known for a long time. As Justice Jackson pointed out in 1953, that is because nearly all of them are meritless. Also, referring to the modern writ of collateral attack as the "Great Writ" is misleading. The historical writ of habeas corpus that earned that name was simply unavailable to collaterally attack a judgment of a court of competent jurisdiction.

Because Findings of Innocence Get Appealed...  At Blog of Legal Times, Mike Scarcella reports that the Department of Justice is planning to appeal a certificate of innocence issued by the D.C. federal district court earlier this year.  In 2005, U.S. District Judge Rosemary Collyer overturned the murder convictions against Joseph Eastridge and Joseph Sousa for their alleged roles in the 1974 racially charged stabbing death of Johnnie Battle.  Lawyers for Sousa and Eastridge argued the certificate of innocence was necessary to pursue a wrongful conviction claim against the government in the U.S. Court of Federal Claims. (Previous posts on the grant can be found here.)  In order to obtain a certificate of innocence, 28 U.S.C. §2513 requires the petitioner to prove, among other things, that "He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution..."  The government argued that Sousa and Eastridge could not meet this burden in the initial hearing.  Scarcella does not report on whether the DOJ is arguing the same issue on appeal.

News Scan

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More on Kevin Cooper:  Our posts on Monday (here and here) reported that the Ninth Circuit had refused to hear additional claims against the conviction and sentence of California murderer Kevin Cooper. San Francisco Chronicle writer Debra J. Saunders has this Op Ed piece providing details on the Cooper case and her understandable problem with the dissenting opinion by Ninth Circuit Judge William Fletcher.   

Connecticut Death Penalty: The Connecticut House has voted 90-56 for the death penalty repeal bill, according to this story by Christopher Keating in the Hartford Courant. If the bill does make it to her desk, Gov. Jodi Rell has pledged to veto it. The story notes the political aspect that the repeal forces have been strengthened by a shift in the legislature toward the Democratic Party. It will be interesting to see if this vote is a factor in the next election, pushing the balance back the other way.


Missouri Death Penalty

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The Missouri House resoundingly defeated a death penalty moratorium yesterday. Virginia Young has this story in the St. Louis Post-Dispatch. Meanwhile, Dennis Skillicorn is due for execution next week. His case is a good example of why a strict "triggerman" rule is a bad idea. In most cases, the accomplice is less culpable than the actual killer, and that is an important factor to be considered in mitigation. Not always, though. The leader of a conspiracy who orders another to kill is more culpable, in my opinion, than if he did the dirty work himself.

In Skillicorn's case, nontriggerman status may duly be considered mitigating. But should it exempt him from the penalty altogether? No, because he was a full, willing partner in a multistate crime spree resulting in four murders. The facts are summarized in the Eighth Circuit opinion, here. In the weighing of aggravating and mitigating factors, body count is a cinder block on the aggravating side of the scale. It easily outweighs Skillicorn's nontriggerman status.

News Scan

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War Crimes:  The President announced today that his administration will oppose the release of photos depicting abuse of detainees held abroad by the U.S. military. Washington Post writers Michael D. Shear and Scott Wilson report that today's announcement reversed last month's statement that the Obama Justice Department's would not oppose the ACLU, which filed suit to have the photos released.  On April 23, the federal court where the suit was filed received a letter from the U.S. Attorney stating that the parties had reached an agreement and the administration would be releasing the photos on May 28.  A lawyer for the ACLU responding to news of today's reversal said, "We expect the government to hold true to their word." 

Florida Killers Get DP:  Two drug dealers have been sentenced to death for murdering a Palm Beach family, including 4 and 3 year old boys, over a drug debt against the father.  The Associated Press story reports that Daniel Troya and Ricardo Sanchez are the first Florida murderers to receive federal death sentences since 1988.  The bodies of Jose Escobedeo, his wife Yessica and their two young sons were found on the side of a Florida highway in October of 2006.  The mother, who had tried to shield her sons in her arms, was shot 11 times.  During the sentencing hearing Troya apologized to the victims and family members, while Sanchez told the court that he was innocent insisting that "they will see when it (his case) comes back on appeal."

Blog Scan

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Federal Power to Civilly Commit Dangerous Sex Offenders:  At Volokh Conspiracy, Eugene Volokh speculates that the Supreme Court will soon be addressing whether the federal government can civilly commit, in a federal facility, any 'sexually dangerous' person 'in the custody' of the Bureau of Prisons, even after that person has completed his entire prison sentence.  In United States v. Comstock, the Fourth Circuit found Congress action under 18 U.S.C. § 4248 unconstitutional, but, Volokh reports that today, the Eighth Circuit reached the opposite result.  In United States v. Tom, the Eighth Circuit reasoned that without civil commitment under 18 U.S.C. § 4248 "the underlying federal criminal law would be frustrated[,]" as would "the power to prosecute or punish..."  The court reasoned that because the federal government retains a vast amount of power over criminal defendants subject to a term of supervised release, the Commerce Clause and the Necessary and Proper Clause allowed Congress to provide for civil commitment of offenders like Tom.  Tom was decided by a three judge panel, it remains to be seen whether the Eighth Circuit will hear the case en banc.

Investigating Lawyers for the Office of Legal Counsel:  David Ingram reports on Blog of Legal Times that the Senate is debating whether it should "investigate former lawyers with the Justice Department's Office of Legal Counsel over their involvement with memos that authorized harsh interrogation techniques for suspected terrorists."  According to Ingram, Senators at the first congressional hearing on the issue debated whether it could pursue action against the authors of the memos.  Senator Sheldon Whitehouse (D-R.I.) and other Democrats seemed to believe that the authors acted improperly, but Senator Lindsey Graham (R-S.C.) warned that too much scrutiny would "make this country less safe."  Congress does not have authority to sanction the lawyers, but Ingram reports that Democrats have made it clear that they wish to ramp up oversight of what happened in the OLC during the Bush Administration.  James Taranto warns that too much oversight could come "back to bite Speaker Pelosi."

SCOTUS cast on Waddington and PulidoThe Federalist Society has posted a SCOTUS cast discussing the Supreme Court's decisions in Waddington v. Sarausad and Hedgpeth v. Pulido. Casey, a former adjunct professor at George Mason University School of Law, is now a Partner at Baker Hostetler.  His practice focuses on federal, environmental, constitutional and election law issues.  Casey had previously commented on both the oral arguments in both cases.  Today's post also discusses the opinions. Our brief on Pulido is available here.

The Short List

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Ben Feller reports for AP:

A source tells The Associated Press that President Barack Obama is considering California Supreme Court Justice Carlos Moreno and more than five other people as nominees for the Supreme Court.

I, for one, am glad to see Justice Moreno on the "short list." It is well known that the President is under pressure to appoint a Hispanic justice. Most of the candidates mentioned to date, though, have served as judges on the federal courts of appeals and nowhere else. Between Justice O'Connor's retirement in 2006 and Justice Souter's impending retirement, we could have a high court entirely devoid of state-court judicial experience. Not good.

Justice Moreno has served on both the federal district court and the state high court, which would add a useful diversity of experience.

SL&P has this post on the story.

The Buddhist Temple Massacre Case

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The Ninth Circuit has granted the state's petition for rehearing en banc in the case of the 1991 massacre at a Thai Buddhist Temple near Phoenix. The case is Doody v. Schriro, No. 06-17161. Arizona-based Circuit Judges Hawkins and Silverman are recused. That is unfortunate, as they are two of the more level heads on a court with a deficit of levelheadedness. The panel opinion reached the unusual conclusion that the defendant had no Miranda claim yet did have a meritorious voluntariness claim. The state appellate opinion is State v. Doody, 930 P.2d 440 (Ariz. Ct. App. 1996). The case is not capital. The perp was 17 at the time of the crime.

News Scan

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DC Sniper Wants New Trial:  The lawyer for John Allen Muhammad, who is facing a death sentence for his part as the brains behind the 2002 sniper murders of 10 people, is now arguing that his mental condition should have prevented him from representing himself for part of his 2003 trial.  The AP story by Larry O'Dell reports that the federal appeals court in Richmond, VA is expected to rule on the claim in several weeks.

The House Case Ends: "Prosecutors dropped charges on Tuesday against a former inmate who spent two decades on Tennessee's death row before the U.S. Supreme Court questioned his guilt," report Beth Rucker and Duncan Mansfield for AP. See House v. Bell. "District Attorney Paul Phillips said he still believes Paul House, 47, was involved in the slaying of a young mother, but acknowledged in his petition that new evidence raises doubts that House acted alone and clouds what his role was....  Phillips' petition said the state can still prove House was involved in the crime, 'but the new evidence (including the forensic examinations) raises a reasonable doubt that he acted alone and the possibility that others were involved in the crime.'  That compounded by the 'substantial sentence' already served led to requesting charges be withdrawn against House, who uses a wheelchair because he developed multiple sclerosis in prison." Bill Means at CNN reports that House has been "cleared." No, dropping charges against someone who has already done as much time as most noncapital murderers get does not equal clearing.

Blog Scan

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Top Ten Supreme Court Contenders:  Stuart Taylor Jr. provides thoughts on the top ten possible Supreme Court nominees for National Journal Online.  He bases his ranking on media reports, online chatter and the opinions of "various experts," but admits his conclusions are "fairly arbitrary."  Ranking #1 is Solicitor General Elena Kagan, and coming in at #10 is Merrick Garland, the only male on Taylor's list.  (Check out the sidebar of Taylor's post for more information on each of the nominees.)

Can Acquitted Conduct Enhance a Sentence? 
At Blog of the Legal Times, Mike Scarcella reports on a D.C. Circuit Court case that will determine whether a trial judge can use acquitted conduct to enhance the sentence of a man convicted of drug crimes.  Oruche was acquitted of conspiracy charges for distributing more than 1,000 grams of heroin, but, according to attorneys for Oruche, the trial judge improperly relied on these charges to sentence the man for an additional eight years.  Scarcella reports that trial judge's use of acquitted conduct has caused debate in circuit courts around the country.  The D.C. Circuit has found nothing prohibiting its use.  Stay tuned to see how D.C.'s Chief Judge David Sentelle, Senior Judge A. Raymond Randolph and Judge Douglas Ginsburg resolve the case...

State Drops Charges Against Paul House:  At Volokh Conspiracy, Jonathan Adler reports that the Tennessee has dropped charges against Paul House, a man who was convicted of murdering Carolyn Muncey in 1985.  House spent 22 years on death row before the U.S. Supreme Court granted House's petition for a writ of habeas corpus because the availability of new evidence cast doubt on his conviction.  House was scheduled for retrial on June 1, 2009, but prosecutors are dropping the charge because they are not certain whether House acted alone or was an accessory.  Prosecutors remain certain that he had some involvement in the murder.  Doug Berman also links to this AP article on Sentencing Law and Policy.  Kent's 2006 post on House's case can be found here.  Additional press links are in today's News Scan.

First or Second Hispanic Justice?:
  Ashby Jones wonders over on Wall Street Journal Blog whether the Supreme Court has "Already Had a Hispanic Justice?"  Apparently, sometime after Wall Street Journal Blog reported on lobbying efforts to appoint a Hispanic judge to the U.S. Supreme Court, one commenter asked, "What about the great one, Justice Cardozo? Wasn't he a [Portuguese] Jew?"  To follow-up with an answer, WSJblog dropped a line to Harvard Law professor Andrew Kaufman, author of the biography "Cardozo."  Kaufman's response neither confirms nor denies the question, but does acknowledge that while Cardozo's family came to the American colonies in the eighteenth century via Holland and England, there is family legend that the Cardozos came from Portugal. 


Blog Scan

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Time for the North Carolina Legislature to Address Its Death Penalty:  The Winston-Salem Journal Staff is asking Governor Bev Perdue to encourage legislators to tackle an issue that has been plaguing North Carolina's death penalty since January 2007.  In January 2007, the North Carolina Medical Board issued a statement threatening disciplinary action for any physician participation in an execution - other than certifying the fact of the execution and simply being present at the time of the execution.  On May 1, 2009, the North Carolina Supreme Court finally decided the issue, declaring that the the Medical Board had overstepped its authority.  (Kent's post on the decision can be found here.)  The Winston-Salem Journal Staff has long regarded this to be an issue for the legislature, and not the courts to decide.  This is especially true since a House select committee study of capital punishment underscored that "big questions" - regarding reforms to the legal discovery process, recording of interrogations and police lineup procedures (to name a few) - "have not gone away."'

Kevin Cooper Denied En Banc Review:  As Kent noted earlier, the Ninth Circuit has finally denied en banc review for murderer Kevin Cooper.  Doug Berman, at Sentencing Law and Policy, has this post commenting on the amount of ink (over 100 pages) "spilled" to issue the decision. Berman's post focuses on the leading opinion dissenting from the the denial of en banc review, and assures that this does not mean California might be about "to execute an innocent man[,]" because "California has not been able to execute even an indisputably guilty man in over three years because of litigation over the state's lethal injection protocols."  Based on the gruesome nature of Cooper's killings, which occurred in 1983, further delay isn't exactly good news.

Justice Scalia -  "May he never retire[,]" writes Adam Liptak for the New York Times.  (hat tip Howard Bashman at How Appealing)  Liptak's article reports on some comments made by the Roberts Court's most colorful Justice. Liptak writes that while Justice Souter's retirement will deprive the Court of a "careful" judge, Justice Scalia's recent comments, in Court and in speeches, have provided far more newpaper fodder.  Of course, there are many other reasons to hope that Justice Scalia stays with the Court for the next several years...  

Kevin Cooper, Finally

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The U.S. Court of Appeals for the Ninth Circuit finally denied rehearing en banc in the Kevin Cooper case. The panel decision was 17 months ago.
Judicial opinions can be roughly classified into three categories: the good, the bad, and the putrid. One of the latter from the Ninth Circuit will go before the Supreme Court next term. The "top side" amicus briefs, including ours, were filed last week in McDaniel v. Brown, No. 08-559, reviewing the Ninth's decision in Brown v. Farwell, 525 F.3d 787 (2008).

There are typically three reactions one has upon reading an opinion. Most are correct, and the bulk are obviously so. That is why most opinions at the intermediate appellate level are not published. A few strike the reader as wrongly decided, but in most of those there is room for reasonable disagreement. Then there are a few that make you want to throw the opinion against the wall and ask, "What planet are these people living on?!" The 2-1 decision in Brown, written by Judge Kim Wardlaw, is one of those. Judge Diarmuid O'Scannlain dissented.

News Scan

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GPS Tracking of Wife Beaters and stalkers may provide victims with more protection than a restraining order, but current state and national economic conditions are preventing widespread use of the technology.  A New York Times article by Ariana Green reports that although domestic violence related homicide increased by 300% throughout Massachusetts between 2005 and 2007,  Newburyport, MA, a town near Boston using GPS tracking, reported no such homicide.  Research by Harvard Law School Professor Diane Rosenfeld indicates that roughly one quarter of women killed by domestic abusers already had restraining orders against them.  One advocate against domestic violence reported that her abusive ex-boyfriend has violated his restraining order over 30 times in four years, slashing tires, lurking around her house and harassing her online, but she has no way to prove it.   She said that California, where she lives, has a law allowing for GPS monitoring of stalkers, but lawmakers have told her that the state cannot afford to pay for it. 

SLA Murderer Paroled:  A former member of Symbionese Liberation Army, convicted of participating in a 1975 bank robbery which left a Sacramento wife and mother dead, was paroled yesterday, after serving a six-year sentence.  AP writer Don Thompson reports that prior to his parole, James Kilgore had served a 54-month sentence in federal prison for using a dead baby's birth certificate to obtain a passport, and for possessing a pipe bomb in his San Francisco apartment 49 years ago.  The SLA, a 70s era anarchist group of mostly white, spoiled elitists led by a black ex-convict, engaged in murder, bank robberies and attempted bombings.  After the FBI began tracking down and arresting his fellow revolutionaries, Kilgore ran to South Africa, changed his identity and became a professor, until his capture in 2002.

Colorado's Death Penalty:
  The Staff at Face the State wrote this opinion piece last Friday on "The Senator Who Saved the Death Penalty."  The piece congratulates Senator Josh Penry, a Republican from Grand Junction, CO, for helping to broker the "last minute deal" that removed a provision from House Bill 1274 that would have ended capital punishment in Colorado.  According to the authors, Sen. Penry began searching for ways to keep capital punishment in Colorado as soon as HB 1274 passed by a single vote in the House last month.  Penry's strategy involved finding alternative funding for cold case investigations, while leaving the death penalty intact.  His efforts paid off when the Bill was defeated last Wednesday.  From the begining, Sen. Penry saw HB 1274 for what it was a way  of "doing away with the death penalty" in Colorado.  "The cold case aspect to all this was nothing more than a ploy."

The Cost of Being "Soft" On Crime: How much could a "soft" criminal justice system cost?  According to a study conducted by England's Policy Exchange, about £3,000 for every household.  James Slack, of the United Kingdom's Daily Mail reports that despite the Labour Party's law and order policies, Britain has the fourth-highest rate of recorded crime of 39 European countries.  The study reports that this is due to the lack of effort put into crime prevention.  Although the Government established a National Crime Reduction Board two years ago it gave the Board no budget.  

News Scan

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Spelling Counts: "If you're going buy something with a forged cashier's check, don't misspell 'cashier's' or use an FBI office as your shipping address. Monroe [Louisiana] police said they arrested 44-year-old man after he did both. He was held Friday on two counts of forgery and as a fugitive from justice in Georgia, where he is accused of a similar scheme." AP story here.

Attorney Fees: "The top lawyer for ousted Illinois Gov. Rod Blagojevich reluctantly agreed Friday to be paid far below the rate some lawyers usually charge in return for being allowed to tap his $2.3 million campaign fund," Mike Robinson reports for AP. "In court papers filed Friday morning, attorney Sheldon Sorosky accepted the rate of $110 an hour, which is the legal limit court-appointed lawyers can charge in federal cases.... Federal prosecutors had said they would not object to the defense using the fund if the hourly rate were limited. If attorneys had billed the fund at a high rate, they said, it would soon be exhausted."

Suppressed Memories: "Congressional leaders were briefed in detail about techniques used in the Central Intelligence Agency's interrogation program, according to a new intelligence document," reports Siobhan Gorman in the WSJ. "The document appears to conflict with recent statements from House Speaker Nancy Pelosi, who was then the top Democrat on the House intelligence committee. Ms. Pelosi has said she hadn't been told that the CIA was using the technique known as waterboarding, or simulated drowning. According to the document, Ms. Pelosi was one of the first lawmakers briefed on the interrogations in 2002."

Blog Scan

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Summary of Supreme Court's Plenary Docket:  David Stras posts Part Two of his "Supreme Court Plenary Docket" on SCOTUSblog today.  (Part One can be found here).  In today's post, Stras breaks down the cases heard in OT08 by subject matter/litigant.  Stras reports that this year's docket contained "a slightly higher proportion of cases involving federal governmental litigation than in any of the past five Terms."  The Supreme Court granted cert. for 15 cases involving federal government litigation.  This was 19.2% of the Court's caseload this term.  Stras believes that this might be due to the number of "administrative action" cases the Court heard this year.  In OT08 the Court heard ten "administrative action" cases.  The Court only heard four in OT07, five in OT06, and six in OT05.  Stras also reports that this term the Court heard 25 criminal cases.  Seven of these cases were habeas cases and eight were state criminal law cases.  He reports that criminal cases tend to "hover around 25% of the total composition of the docket and this Term is no exception."

Supreme Court Short List:  At Legalities, Jan Crawford Greenburg reports that the White House has asked six prospects to provide personal background information for vetting purposes.  She reports that sources close to the process have named "[t]he leading contenders" as Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan.  According to Greenburg, Chief of Staff Rahm Emanuel favors Judge Sotomayor for the position.  While Sotomayor would be a historic choice for the Court, Greenburg cautions that "Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer--something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee."  Judge Wood might be the better choice, as she is "a careful jurist who, while liberal on social issues, is highly respected for her craftsmanship." Greenburg believes that we can expect an announcement on the nomination in the next few weeks.  Jonathan Adler also has this post at Volokh Conspiracy briefly discussing Greenburg's report.

More on "Leading Contender" Judge Wood:  Yesterday, at Bench Memos, Ed Whalen posted Part 3 on his series on Supreme Court candidate Dianne Wood.  The post reviews Judge Wood's "confused" opinion in French v. Duckworth, 178 F.3d 437 (1999), a decision the U.S. Supreme Court overruled in Miller v. French, 530 U.S. 327 (2000).  French involved the Prison Litigation Reform Act which altered the criteria when a state moves to modify or terminate an injunction in a prison conditions case.  Under the Act's automatic stay provision, "section e(2)," if the court fails to decide the motion within 30 days the decree is stayed until the court rules on the motion.  Judge Wood found this section to violate the separation of powers principle "because it is a direct legislative suspension of a court order."  Her problem with e(2) was that it "strips from the court the authority to decide whether the status quo (defined by the earlier decree the court entered that required prospective relief) should be continued or modified pending the court's decision on the immediate termination petition."

Judge Wood's opinion was criticized by Judge Easterbrook when he dissented from the Seventh Circuit's denial of rehearing en banc. CJLF's brief supporting reversal is here. When the Supreme Court reversed in Miller v. French, Whalen reports, none of the Justices shared Judge Wood's view.  He notes this is quite "unimpressive and troubling."

A Restrained Justice? Stuart Taylor at National Journal is "cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint." Robert Alt at Bench Memos  is "less optimistic."
There are few sights more enjoyable than seeing someone who has pulled a dirty trick have it backfire on them. As we have noted here, the opponents of capital punishment in Colorado used a despicable ploy of driving a wedge between two groups of murder victims' families and demanding that the legislature deny justice to one or the other. The bill was defeated in a 17-18 vote, as noted here.

Turns out that one of the 18, Sen. Mary Hodge of Brighton, was actually opposed to the death penalty, but she voted no anyway, according to this Denver Post story by Jessica Fender.

Hodge said she's anti-death penalty but didn't agree with using its demise as a way to help solve cold cases.

"It's the hardest vote I've ever taken," Hodge said. "I felt that the two issues are not connected. I think it's taking two sets of victims and pitting them against each other."


Last night, Drew Peterson, a former Illinois police sergeant, was arrested for the murder of his third wife, Kathleen Savio.  In 2004, Savio was found dead in her home in a dry bathtub.  Her hair was soaked with blood from a head wound, yet the initial autopsy found her cause of death to be "accidental drowning."  CBS News has this story.

When Peterson's fourth wife, Stacy Peterson, disappeared in October 2007, the suspicious circumstances surrounding Savio's death resurfaced.  Savio's body was exhumed, and authorities reclassified her death as a homicide.  This Chicago Tribune timeline tracks the events leading up to Drew Peterson's arrest.

Now, with Peterson arrested, his case is making headlines again, only this time it is because the case will test a new Illinois hearsay law that allows murder victims' words to be used against their accused killers. In November of last year, Illinois amended its hearsay law so that prosecutors could enter into evidence relevant statements from witnesses who were murdered to prevent them from testifying.  Some speculated this move was prompted by Stacy Peterson's case.  Why, you may ask? Well, because both Stacy Peterson and homicide victim Kathleen Savio commented to family: "If anything happens to me, Drew Peterson killed me."  Savio also allegedly wrote a letter to a prosecutor that stated: "He would do anything to get custody of our kids, including killing me."

Already, Drew Peterson's attorney is attacking the admissibility of these statements under Illinois new law.  The law might conflict with Crawford v. Washington and  Giles v. California.     

News Scan

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Drug Testing of Students Halted:  A Shasta County judge has issued a preliminary injunction to halt random drug testing of students engaged in non-athletic, school sponsored extracurricular activities.  A story by Sacramento Bee writer Denny Walsh reports that the injunction will remain in force until a lawsuit challenging the testing requirement is decided on the merits.  The ACLU filed the lawsuit last December on behalf of three students who objected to the policy, which required testing before students could participate in academic and arts competitions.   The attorney for the school district believes that there is no state law on the random mandatory drug testing of high school students.  The attorney representing the students, who is working pro bono along with the ACLU, does not agree.  "This was an extreme policy, far beyond what California law allows,.." she said.

Specter to Chair Subcommittee:  In an apparent move to heal the wound caused when Senate Democrat leaders stripped Senator Arlen Specter of his seniority - after changing his party affiliation - Sen. Specter has been given the chairmanship of the Subcommittee on Crime and Drugs.  Shailagh Murray, of the Washington Post, reports that Sen. Specter will replace Illinois Sen. Richard Durbin as Chairman of the subcommittee which holds jurisdiction over most Justice Department activities.  Senate leaders are sticking with their decision not to restore Specter's seniority on the Judiciary Committee until after the 2010 election.

Ohio Poll

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"These findings are based on the most recent Ohio Poll conducted by the Institute for Policy Research at the University of Cincinnati between April 16 and April 27, 2009. A random sample of 818 adults from throughout the state was interviewed by telephone. In 95 of 100 cases, the statewide estimates will be accurate to plus or minus 3.4 percent."

"Now I am going to read a list of proposals that are being discussed nationally, in other states and in Ohio. Please tell me if you would favor or oppose each of the following . . ."

"Abolishing the use of the death penalty in Ohio"
18% strongly favor
9% favor somewhat
19% oppose somewhat
51% strongly oppose
3% duh
That's a whopping 70% overall opposition, over 2.5 times the 27% total support, with very few people having no position. Very few controversial issues have such high and consistent public support as the death penalty.

This is only a one-state poll, but the state in question is very close to the American political center of gravity. In the 2008 presidential election, for example, the vote was 53-46 nationally and 52-47 in Ohio.

Previous posts include this one from last November on a nationwide poll and this one from 2007 discussing the various ways of wording the question. The anti side gets close to parity when, and only when, the wording of the question is slanted to the max in their favor.

Blog Scan

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Keys to Writing a Clear Opinion:  Yesterday, at Dorf on Law, Michale Dorf posted some thoughts on what thinks merits "Supreme Style" - or what has made some Supreme Court Justices some of "the best writers to have served..."  Dorf writes that Justices John Marshall, Joseph Story, Oliver Wendell Holmes, Jr., Louis Brandeis, Robert Jackson, and Antonin Scalia were all great writers because they could "lay out their arguments in clear forceful language and [had] some gift for turning a catchy phrase."  Dorf gives Justice Scalia "high marks for writing consistently interesting and clear opinions," but awards the gold medal for the best turn of phrase to Chief Justice Roberts who wrote in Parents Involved in Community Schools v. Seattle School District: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

The "Torture Memos" and John Yoo: At Legalities, Jan Crawford Greenburg reports that despite recent calls for state bars to discipline the authors of the "torture memos," it "appears John Yoo cannot be disciplined or disbarred for writing those memos, even if the Office of Professional Responsibility [OPR] says it has evidence he should be."  Apparently, because OPR waited five years to release its investigation results, the statute of limitations has run for the Pennsylvania Disciplinary Board to investigate charges against him.  (Yoo is  admitted in Pennsylvania, and the statute of limitations is 4 years).  Crawford reports that discipline could be taken against Bybee.  Bybee is admitted in Nevada and D.C., but it would be "strange" to discipline Bybee when he only made a few edits and signed Yoo's legal work.  To top it all off, Crawford reports that even if an investigation were to take place "[t]he bar for disciplinary action is incredibly high."  Current bar standards will make it incredibly hard for any state board to find an ethical violation.

City Makes Threats and Property Owners Consider Giving Up Vote:
  Hat tip to Ilya Somin at Volokh Conspiracy for linking to Timothy Sandefur's post on an eminent domain case Sandefur is arguing  in the Ninth Circuit today.  Sandefur is arguing for the property owners in the case of Griswold v. City of Carlsbad.  The case addresses the city's ability to take away a property owner's right to vote on city "assessment fees" if the property owner could not afford the fee.  The California Constitution gives property owners the right to vote on these fees "for any proposed new or increased assessment before it could be levied."  The city of Carlsbad, however, had decided to charge the fee up-front, and if the owner can't afford it, then the owner must waive his right to vote on the assessment.  It will be interesting to see how the Ninth Circuit decides this one.  For those that are curious, the Pacific Legal Foundation provides more information on the case on its "media backgrounder."  

Justice in Colorado

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The Colorado Senate rejected the death penalty repeal 17-18, a minute ago. The updated Denver Post story is still at the same URL. Our thanks and congratulations to the 18 with the courage to stand up to this cynical extortion scheme.

Third Time the Charm?

Tomorrow, the California Supreme Court will decide, for the third time, the capital case of Michael Ray Burgener. Burgener received a well deserved sentence of death for the murder of William Arias, a clerk at a 7-Eleven in Riverside, California, in 1980.

The notorious Bird Court wrongly reversed Burgener's sentence the first time in 1986, 41 Cal. 3d 505, because trial counsel honored his client's instructions not to put on mitigating evidence. It is basic legal ethics that the client controls the goal of representation. Eight months later, Bird, Reynoso, and Grodin, JJ., got the well-warranted boot from the people of California.

Burgener received another death sentence, and there was another appeal. In January 2003, 29 Cal. 4th 833, Cal. Supreme sent the case back to the Superior Court to reconsider the automatic motion to modify the penalty verdict. That reconsideration only took the trial court a matter of months. Cal. Supreme then allowed the briefing to drag on for five years, even though all three briefs on this second trip up total only 113 pages.

Blog Scan

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Bankruptcy Judges Could Be Source of "Routine Illegality":  Wall Street Journal Blog writer, Nathan Koppel, posts that a new study from UCLA Law Professors Lynn LoPucki and Joseph W. Doherty blames bankruptcy judges for the fact that bankruptcy lawyers are earning such big bucks.  The study finds that "judges are shirking the duty to review [attorney] fees absent objection," in a field where "bankruptcy professional fees increased more than 10% annually; more than twice the rate of inflation."  The study reports that this occurs because judges routinely allow "debtors to pay their professionals monthly before the judges have reviewed the professionals' fee requests and determined their reasonableness -- as the federal bankruptcy code requires."

Federalist Society Founders Awarded $250,000:  At Blog of Legal Times, Jordan writes that the Lynde and Harry Bradley Foundation has awarded the founders and leaders of the Federalist Society for "forming and nurturing an organization dedicated to preserving rule of law."  Weismann reports that the Society's founders, Spencer Abraham, Steven Calabresi, David McIntosh and Lee Liberman Otis will split the $250,000 prize. 

Gov. Schwarzenegger Welcomes Debate, But Not Legalizing Marijuana:  Doug Berman writes on Sentencing Law and Policy that California Governor Arnold Schwarzenegger commented yesterday that while he does not believe it is time to legalize marijuana, he does believe it is time give the issue consideration.  According to Steve Gorman's Reuters story, Governor Schwarzenegger told reporters that when it comes to legalization, he believes "we ought to study very carefully what other countries are doing that have legalized marijuana and other drugs, what affect it had on those countries, and are they happy with that decision."  A recent bill in California's state Legislature would legalize marijuana (this Blog Scan has the details).  Governor Schwarzenegger was also featured in Jennifer Steinhauer's New York Times article today.  She reports that the Governor "is facing the most difficult period of his political career."  Legalizing marijuana might make him more popular with a few Californians, but it may not help his political career...

Colorado DP Back in Peril

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The conference committee in the Colorado Legislature has reinstated the cynical, cruel, divisive strategy of artificially pitting two groups of murder victims' families against each other, previously noted here. Jessica Fender has this story for the Denver Post.

Update: The story linked above has been updated (1:32 MDT) and is now coauthored by Lynn Bartels.

In his first comments on the bill, Gov. Bill Ritter said today that he thinks the proposal should not have been tied to funding cold cases.

"Those are two separate issues, and I told the sponsor of the bill they were wrong to do that," he said. "You don't get a pure debate about either."

Better late than never.

Senator Specter

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Senator Arlen Specter (RD-Penn.) has gone from Ranking Member on the Senate Judiciary Committee to virtual rookie, Paul Kane reports for AP.

In announcing his move across the aisle last week, Specter asserted that Majority Leader Harry M. Reid (D-Nev.) had assured him he would retain his seniority in the Senate and on the five committees on which he serves. Specter's tenure ranked him ahead of all but seven Democrats.

Instead, though, on a voice vote last night, the Senate approved a resolution that made Specter the most junior Democrat on four committees for the remainder of this Congress. (He will rank second from last on the fifth, the Special Committee on Aging.) Reid himself read the resolution on the Senate floor, underscoring the reversal.

Marilynn Marchione with the AP has this remarkable story of Connie Culp.  Connie is the recipient of the first face transplant in the United States.  She lost her face after her husband shot her in the face with a shotgun.  According to the AP story:

Culp's husband, Thomas, shot her in 2004, then turned the gun on himself. He went to prison for seven years. His wife was left clinging to life. The blast shattered her nose, cheeks, the roof of her mouth and an eye. Hundreds of fragments of shotgun pellet and bone splinters were embedded in her face. She needed a tube into her windpipe to breathe. Only her upper eyelids, forehead, lower lip and chin were left.

What constitutes justice for this sort of crime is sure to vary among different people.  And the story lacks many of the details about the adjudication in this case. Perhaps there were extenuating circumstances not told.  Maybe a plea-bargain was used. But somehow seven years doesn't seem quite right for this horrific crime.

Blog Scan

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Why Is Souter Retiring?:  At Blog of Legal Times, Tony Mauro reports that Justice Souter is retiring because of his age, and not for political reasons as many had thought.  According to Jeannette Lee, at the Atlantic's political blog, shortly after Justice Souter announced his retirement he commented that he "probably" would have retired had Republican candidate John McCain had been elected last November.  He commented that he wished to retire early because, "I'm going to be seventy soon. I've watched other justices wait until their eighties to retire, and by that time they have nothing left to retire to. I didn't want that to be me."  Not everyone believes that age is the only reason.  Mauro quotes Artemus Ward, the author of a 2003 book on why justices retire, as saying Justice Souter is "a prime example" of justices who time their retirements for strategic reasons, both political and institutional.

Some Academic Articles:
  Thanks to Eugene Volokh for providing the link to HeinOnline's most cited legal journals and articles.  The list contains the number of times the journal or legal article is cited on HeinOnline by other legal journals or Supreme Court cases. Interestingly, Warren and Brandeis' The Right to Privacy tops the list.

Stock Issues for Supreme Court Nominees:  Howard Bashman provides a link to Sharon Theimer's AP article, which reports "Stocks could cause conflicts for court prospects."  Theimer reports that some potential nominees, like Judges Diane Wood and Kim Wardlaw, hold stocks that could cause conflict-of-interest problems in cases that might come before the court.  Judge Wood has holdings in Whole Foods Market Inc., which won permission from a federal appeals court in Washington in 2007 to buy rival organic grocer Wild Oats Markets despite the Federal Trade Commission's argument that the deal would stifle competition. Judge Wardlaw has holdings in Microsoft, which was targeted by a antitrust lawsuit during the Clinton Administration.  This conflict-of-interest problem is nothing new, Theimer reports that "last year, three justices' stock holdings and the job of another justice's son prevented the court from getting involved in a lawsuit that accused dozens of businesses of violating international law by assisting South Africa's former apartheid government." 

LWOP and Incapacitation

No, friends, not even a sentence of life without parole and confinement in a maximum security prison guarantees a killer will not kill again. AP reports,

Officials say an inmate at Pelican [Bay] State Prison is under investigation for the death of his cellmate.

Officials at the California Department of Corrections and Rehabilitation announced Tuesday that they believe 41-year-old David Martinez killed his cellmate, 51-year-old James Lambert. Lambert was found unconscious in his cell on April 19, and died on May 1.

Lambert was serving a 41-years-to-life third-strike sentence from Los Angeles County for assault with force.

Martinez is serving a life sentence without parole from Los Angeles County for first-degree murder.

Dena Potter with the Associated Press has this article discussing the virtues and vices of mental health courts across the United States.  The folks Potter interviews have a range of opinions on the wisdom of these specialty courts: some endorse the idea as necessary and helpful while others remains skeptical of their use.   Indeed, there's a lot to be concerned about in terms of mental health courts, including the diminished role of defense counsel; having judges making clinical treatment decisions; transposing adjudication venues into mental health systems, and the rather anemic outcome studies we have to date. 

But as highlighted in the article, there's also the idea of criminalization of mental illness.  Typically, those who posit this view suggest that the behavior that lands folks with mental illness in jails nowadays would, in the past, have landed them in state psychiatric care.  And there's some truth to that.  Thanks in large measure to the changes in civil commitment statutes and legal precedent, its very difficult to sustain involuntary treatment.  What follows is what every mental health clinician who has worked in the public mental health system knows is painfully true: Life for many people with severe mental illnesses involves an endless revolving door of acute psychiatric admissions, discharge, treatment non-adherence, endemic drug use, contacts with the police and readmission - over and over again.

Yet what remains unclear is how much of the behavior which lands people with mental illnesses in jail is a product of their mental illnesses and how much is just bad behavior.  A few studies have suggested that the risk factors for incarceration among those with mental illnesses are the same as those without mental illnesses. Other studies suggest otherwise, although disentangling substance abuse from the primary mental illness in these populations is notoriously difficult.  These differences matter inasmuch as they support and detract from the criminalization hypothesis.

But what is much more evident is that addressing the root cause entails more than providing additional services.  While there are undoubtedly shortages of public mental health services in some areas, almost all of the studies that have critically examined incarceration among those with severe mental illnesses have noted that treatment adherence is a central, if not, defining issue.  More services might be the clarion call for many advocacy organizations, but those resources are likely to little to solve the problem unless they can maximize participation by those they are designed to help. 

Colorado Senate Rejects a Scam

Of all the attacks on the death penalty, the most despicable is the one perpetrated in Colorado. In order to drive a wedge between two groups of murder victims' families, the death penalty opponents there told the families in the unsolved cases that they could have additional funding for a cold case unit only if the money came from repeal of the death penalty, denying justice to the families of other murder victims. The scam is reminiscent of the movie Sophie's Choice, in which a mother is forced to choose which of her children will be killed.

Fortunately, it appears the scam has failed.

SCOTUSblog Down

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The invaluable SCOTUSblog is down for the moment due to technical difficulties. Good thing it's happening on a day when the Court is not is session.

Blog Scan

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Amicus Briefs in Sullivan v. Florida:  As reported in our News Scan, the Supreme Court agreed today to address whether the sentence of life without the possibility for parole is cruel and unusual punishment when given to juveniles.  At Sentencing Law and Policy, Doug Berman muses on what the DOJ and other amici might argue in the case.  Berman writes that groups like Human Rights Watch and the Sentencing Project "have long been vocal opponents of juve LWOP sentences" and expects them to file briefs.  He wonders, however, whether state and federal prosecutors will file as amicus in the case, and if they do, whether they will have different perspectives on how to apply the Eighth Amendment.  He also wonders what perspective AG Eric Holder, Jr. and SG Elena Kagan will offer to the case. 

Supreme Court Justice Speculation:  At Blog of Legal Times, David Ingram reports that President Obama has been calling Senators for input on who to nominate to replace Justice Souter.  Press Secretary Robert Gibbs told reporters that the President had placed calls to Sen. Orrin Hatch, R-Utah, and Sen. Arlen Specter, D-Pennsylvania, and was looking to replace Justice Souter with someone "with a record of excellence, somebody with a record of integrity, somebody who understands the rule of law, and somebody who understands how being a judge affects Americans' everyday lives."  Over at the New Republic, Jeffrey Rosen offers some advice of his own.  In this piece, Rosen argues his "Case Against Sotomayor."  Howard Bashman offers his recollection of Judge Sotomayor on How Appealing.  He also links to Gerard Magliocca's post, "The Case for Sotomayor," on Concurring Opinions.    

Doctors and the Death Penalty

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One of the gambits used by the anti-death-penalty crowd is to claim that the Constitution requires doctors to be involved in lethal injection to ensure it is not cruel, and then turn around and claim that medical ethics forbids what the Constitution requires. The resulting Catch-22 shuts down executions, at least temporarily. The North Carolina Supreme Court ended that effort in that state Friday.

Section 15-190 requires a physician to be present at the execution of a condemned inmate. The General Assembly did not include such a requirement simply to have a 'professional' present at the time of the execution without that individual supplying some sort of professional assistance.... 

Thus, the General Assembly has specifically envisioned some sort of medical participation in the execution process, and [the Medical Board's] Position Statement runs afoul of N.C.G.S. § 15-190 by completely prohibiting physician participation in executions. While defendant would retain disciplinary power over a licensed medical doctor who participates in an execution, see N.C.G.S. § 90-14, defendant may not discipline or threaten discipline against its licensees solely for participating in the execution alone. To allow defendant to discipline its licensees for mere participation would elevate the created Medical Board over the creator General Assembly.
The case is North Carolina Dept. of Correction v. North Carolina Medical Board, No. 51PA08.

News Scan

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California Execution Procedures have been posted for public review and comment as reported by Carol J. Williams of the Los Angeles Times.  Interested parties have until June 30th to make public statements regarding the procedures.  After comments, the procedures may be modified or adopted by the state Department of Corrections.  While California had its revised lethal injection procedures when the U.S. Supreme Court upheld Kentucky's process in Baze v. Rees, attorneys for Michael Morales, the next murderer scheduled for execution, won a ruling from a Marin County judge, which held the new protocol illegal because the state had not allowed for public comment. The ruling was later upheld by a state appeals panel.  The protocol in question has already been identified as more humane than Kentucky's. In her dissent in Baze, Justice Ginsburg indicates that she (and Justice Souter) preferred California's protocol over Kentucky's, noting that due to "the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentucky's protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 19-23.... In California, a member of the IV team brushes the inmate's eyelashes, speaks to him, and shakes him at the halfway point and, again, at the completion of the sodium thiopental injection. See State of California, San Quentin Operational Procedure No. 0-770, Execution by Lethal Injection, §V(S)(4)(e) (2007), online at"   

Juvenile Sentences Challenged:  James Vicini of Reuters reports that next fall the Supreme Court will review appeals to two Florida cases in which juveniles are making Eighth Amendment claims against their sentences of life without possibility of parole (LWOP) for crimes other than murder.  Sullivan v. Florida involves Joe Sullivan, who at age 13, was convicted and sentenced to LWOP for the 1989 rape and burglary of a 72-yer-old Pensacola woman.  In Graham v. Florida, Terrance Graham who, at 16 had pleaded guilty to burglary and armed robbery while free on probation, is contesting the LWOP he received a year later for an armed home-invasion robbery. 

Progressive Vision: Professor Laurence Tribe is advising President Obama to pick someone for the Supreme Court "to build a progressive legal vision for the century ahead," reports Jess Bravin in the WSJ. Tribe's model for the ideal justice is (who else?) William Brennan. We knew that.

ACORN:  "Attorney General Catherine Cortez Masto filed charges Monday alleging the Association of Community Organizations for Reform Now had policies requiring employees in Las Vegas to sign up 20 new voters per day or be fired," reports Ken Ritter for AP. "Nevada Secretary of State Ross Miller and Masto say that's voter registration fraud, and it violates state law banning quotas for registering new voters. A criminal complaint filed in Las Vegas Justice Court accuses ACORN and two former employees of 39 low-level felonies."

News Scan

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Torture Hypocrisy:  The current effort to convert the Bush Administration's war on terror into the Clintonian approach to foreign-born terrorists as a criminal justice problem has encouraged some to call for prosecution of those who authorized the harsh interrogation of a few key terrorist leaders shortly after 9/11.  In this piece in today's Washington Post, Charles Krauthammer discusses the naivete of the President's assertion that the information about the structure of the Islamic terrorist network and plans for future attacks could have been gotten without resorting to waterboarding.  He also finds it "utterly contemptible" that some Congressional leaders who  acquiesced to waterboarding in 2002 "rise now 'on a bright, sunny, safe day in April 2009' ... to excoriate those who kept us safe these harrowing eight years."  This opinion piece in the Wall Street Journal also questions the wisdom and accuracy of the President's recent statements on what constitutes torture.

Jacking Jerry's Wheels:  California's self described "top cop", Attorney General Jerry Brown, lost his wheels to thieves last week.  The theft occurred on April 24th, while the hybrid taxpayers lease for Brown was parked in front of his home in Oakland, the city he cleaned up as Mayor.  The San Francisco Chronicle story by Henry K. Lee reports that Brown, who is seeking a second stint as California's Governor, was at the State Democrat Party convention in Sacramento when his wheels were stolen.

Filling Souter's Seat:  The big legal story for the next several months will be about who the president nominates to replace Justice Souter.  Marc Ambinder has this piece in the Atlantic discussing who's in the running. Among the other 2,000 or so stories on this are a couple of other decent takes, including this one by LA Times writer David G. Savage, this one by Warren Richey at The Christian Science Monitor, and this one by Ashby Jones at WSJ Law Blog.   

Justice Souter's Retirement

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The news and blogs are ablaze with reports that Justice Souter will retire this summer. During his tenure, Justice Souter has been one of those justices who usually goes for the defense on issues where the Court is divided, but who occasionally could be won over with a good enough argument. His dissent in Stringer v. Black, 503 U.S. 222 (1992) remains one of my favorite opinions, though it may no longer be one of his favorites. See Beard v. Banks, 542 U.S. 406, 425, n. * (2004) (Souter, J., dissenting).

The danger now is that a President with roots in radicalism and a filibuster-proof Senate will appoint someone vastly worse, e.g., a reincarnated William Brennan to plague America for another three decades. Let us hope for best, audaciously, but prepare for the worst.

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