Alleged-Doctor Killer Not Death Penalty Eligible: At Wall Street Journal Blog, Amir Efrati posts on why Scott Roeder, the man charged with killing late-term abortion provider George Tiller, is not death penalty eligible. Efrati reports that under Kansas law, an alleged murder has to fit into one of eight aggravating criteria to qualify for the death penalty. In Kansas, this includes murders that are especially "heinous" or "cruel," murders committed for
financial gain or killings committed in connection with another felony, etc. Efrati writes that because Roeder engaged in premeditated murder for political reasons he is not death penalty eligible under the current statute. Our previous post on the case is here.
Petitions to Watch: SCOTUSblog has posted its "Petitions to Watch" for the Supreme Court's June 11th private conference. Of the five cases listed, two involve criminal issues. The first Mabry v. United States (08-763) asks whether Roe v. Flores-Ortega is applicable in a habeas case where the defendant has entered into a plea agreement that includes a waiver of the right to take an appeal or to collaterally attack the sentence. Judge Rendell, of the Third Circuit, affirmed the district court's denial of Mabry's habeas petition in which he claimed counsel had been ineffective in failing to file an appeal. In the second case, Campa v. United States (08-987 ) five agents of the Cuban Directorate of Intelligence, and members of The Red Avispa, challenge their convictions for espionage and treason against the United States military. Their petition asks the Court to address whether the Eleventh Circuit erred when it held that petitioners did not establish a right to change venue. The petition also raises a Batson issue.
"Survey Says?": Tom Madigan reports on The Ninth Justice that top political bloggers and members of Congress believe Judge Sotomayor's nomination is a benefit for Democrats and "something of a problem for Republicans." A survey conducted by National Journal Online of members of Congress and political bloggers found that approximately 2/3 of left-leaning bloggers and congressmen thought Sotomayor's nomination would be a major benefit for their party. 1/3 thought it would be a minor benefit. On the right, 33% of GOP Insiders, and 25% of right-leaning bloggers said Sotomayor would be a minor benefit to them, while 41% of GOP congressmen, and 58% of right-leaning bloggers said the nomination would do them minor harm. In the realm of criminal law, neither party may have much to fear. Jess Bravin and Nathan Koppel reported in the Wall Street Journal today that Judge Sotomayor's "Criminal Rulings Tilt Right of Souter." (HT: SL&P) Kent's investigations into her record on AEDPA is consistent with this conclusion, but the death penalty remains a big question mark.
Suspect Complies with Court Order After Being Tased: At Volokh Conspiracy, Orin Kerr posts on a very interesting New York state court decision that found use of a taser was reasonable to carry out a court order for a DNA sample, given the unique circumstances of the case. In People v. Smith, the government obtained an Order to Show Cause (OSC) ordering the suspect to appear and show why he should not be ordered to submit to a buccal swab DNA test. When the suspect did not respond to the OSC, the government sought and obtained an order, apparently based on a probable cause affidavit, requiring the suspect to submit to the DNA test. The suspect complied, but then the government accidentally sent the DNA sample to the wrong lab, where the sample was compromised. The government then obtained a second order, and the suspect refused to comply. The police then called a prosecutor, who told the officers they could use force, but to use as little as possible. Based on the suspect's history of violence, the officers decided to inform the suspect they would taser him, on the lowest setting, if he did not comply with the order. The suspect refused, received a two second jolt from the taser, and then complied. In Smith, the court reasoned that force was permissible because the court order was essentially a Fourth Amendment warrant, and that the police have the power to use reasonable force to execute a warrant. Kerr's post focuses on the Fourth Amendment issue before the court - and not the officer's conduct. Kerr writes that the Fourth Amendment does allow police to use reasonable force to execute a warrant, so, "[i]f the order did in fact give the police the authority to obtain the swab, then they had the right to use reasonable force to get the target to comply."
Petitions to Watch: SCOTUSblog has posted its "Petitions to Watch" for the Supreme Court's June 11th private conference. Of the five cases listed, two involve criminal issues. The first Mabry v. United States (08-763) asks whether Roe v. Flores-Ortega is applicable in a habeas case where the defendant has entered into a plea agreement that includes a waiver of the right to take an appeal or to collaterally attack the sentence. Judge Rendell, of the Third Circuit, affirmed the district court's denial of Mabry's habeas petition in which he claimed counsel had been ineffective in failing to file an appeal. In the second case, Campa v. United States (08-987 ) five agents of the Cuban Directorate of Intelligence, and members of The Red Avispa, challenge their convictions for espionage and treason against the United States military. Their petition asks the Court to address whether the Eleventh Circuit erred when it held that petitioners did not establish a right to change venue. The petition also raises a Batson issue.
"Survey Says?": Tom Madigan reports on The Ninth Justice that top political bloggers and members of Congress believe Judge Sotomayor's nomination is a benefit for Democrats and "something of a problem for Republicans." A survey conducted by National Journal Online of members of Congress and political bloggers found that approximately 2/3 of left-leaning bloggers and congressmen thought Sotomayor's nomination would be a major benefit for their party. 1/3 thought it would be a minor benefit. On the right, 33% of GOP Insiders, and 25% of right-leaning bloggers said Sotomayor would be a minor benefit to them, while 41% of GOP congressmen, and 58% of right-leaning bloggers said the nomination would do them minor harm. In the realm of criminal law, neither party may have much to fear. Jess Bravin and Nathan Koppel reported in the Wall Street Journal today that Judge Sotomayor's "Criminal Rulings Tilt Right of Souter." (HT: SL&P) Kent's investigations into her record on AEDPA is consistent with this conclusion, but the death penalty remains a big question mark.
Suspect Complies with Court Order After Being Tased: At Volokh Conspiracy, Orin Kerr posts on a very interesting New York state court decision that found use of a taser was reasonable to carry out a court order for a DNA sample, given the unique circumstances of the case. In People v. Smith, the government obtained an Order to Show Cause (OSC) ordering the suspect to appear and show why he should not be ordered to submit to a buccal swab DNA test. When the suspect did not respond to the OSC, the government sought and obtained an order, apparently based on a probable cause affidavit, requiring the suspect to submit to the DNA test. The suspect complied, but then the government accidentally sent the DNA sample to the wrong lab, where the sample was compromised. The government then obtained a second order, and the suspect refused to comply. The police then called a prosecutor, who told the officers they could use force, but to use as little as possible. Based on the suspect's history of violence, the officers decided to inform the suspect they would taser him, on the lowest setting, if he did not comply with the order. The suspect refused, received a two second jolt from the taser, and then complied. In Smith, the court reasoned that force was permissible because the court order was essentially a Fourth Amendment warrant, and that the police have the power to use reasonable force to execute a warrant. Kerr's post focuses on the Fourth Amendment issue before the court - and not the officer's conduct. Kerr writes that the Fourth Amendment does allow police to use reasonable force to execute a warrant, so, "[i]f the order did in fact give the police the authority to obtain the swab, then they had the right to use reasonable force to get the target to comply."
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