July 2009 Archives

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Problems Managing Urban Jails are discussed in this interesting City Journal article entitled "The Jail Inferno" by Heather MacDonald (hat tip to Heritage Insider).  The, often overlooked, reality of controlling an inmate population consisting of varying classes of offenders, who may be mentally ill, violent or suicidal, in an uncertain time frame of between one day and one year while addressing possible corruption by guards, gang activity and the constant scrutiny of the civil liberties bar are well portrayed.   

The Feds v. Sheriff Joe:  The Department of Homeland Security recently changed a policy adopted in February 2007, which had encouraged local law enforcement agencies to arrest illegal aliens according to this Associated Press story by Amanda Lee Myers.  This is not sitting well with Arizona's Maricopa County Sheriff Joe Arpaio, whose department is among 66 local police agencies across the country which have been actively pursuing illegals.  The policy change, which modifies the 287(g) agreement between Homeland Security and local law enforcement,  requests that departments clear sweeps for illegals with U.S. Immigration and Customs Enforcement and coordinate with ICE.  The revisions direct police to focus on illegals who commit serious crimes or who have prior convictions, without mentioning the previous understanding that police could and should arrest those whose only offense is being illegality in the country.  Sheriff Joe will have none of it, saying that "I don't report to the federal government, I report to the people."  In a statement to the press which should surprise nobody, the head of the Arizona ACLU characterized Arpaio as a "rogue sheriff," who along with all other local law enforcement agencies, should not be allowed to make any immigration arrests.

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House Demos Refuse to Subpoena Mortgage Records from Countrywide Financial which may implicate additional government officials in the lender's VIP program.  Committees in both Houses are currently reviewing evidence that Countrywide gave special loan packages to top ranking Democrat Senators Chris Dodd and Kent Conrad.  In an update to his story last Tuesday, Associated Press writer Larry Margasak reports that Congressman Darryl Issa, the ranking Republican on the House committee investigating whether the sweetheart deals given to Dodd and Conrad violated Congressional rules, has repeatedly asked the Chairman to order that the records be subpoenaed.  Responding to the request, House Oversight and Government Reform Committee Chairman Edolphus Todd D-N-Y, has refused, saying he has other work to do on the financial crisis.  The Senate Ethics Committee, which is also investigating the matter, does not have jurisdiction beyond the Senate.  House Republicans seeking to have the records opened, say that they are willing to risk the possible exposure of some of their GOP colleagues who may have also received preferential treatment by Countrywide.   

Justice Relaxes Security on Shoe Bomber:  Last month the Justice Department announced its decision not to renew the Special Administrative Measures (SAMs) governing the detention of Richard Reid aka the "Shoe Bomber".  Reid was convicted on charges of terrorism and is serving a life sentence for a 2001 attempt to blow up American Airlines flight 63 from Paris to Miami, with what prosecutors later determined was enough plastic explosive in his shoe to blow a hole in the plane's fuselage and kill all of the 197 passengers and crew on board.  In a federal lawsuit Reid claims that the SAMs, which are security directives restricting the communications, correspondence and contacts of particularly dangerous inmates, violate his First Amendment rights.  In an OpEd piece in today's Wall Street Journal, attorney Debra Burlingame makes the case that Reid remains a very dangerous character who should continue to be confined under maximum security.  She characterizes Justice's decision in this case as an administration effort to "appease political constituencies both here and abroad...on the false premise that giving more civil liberties to religious fanatics bent on destroying Western Civilization will make a difference in the Muslim world." 

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Felon Dispossession Laws in the Tenth Circuit:  Lyle Denniston wonders over at SCOTUSblog if "Heller [said] too much" when it declared a Second Amendment right to a handgun for self-defense.  His question comes after Tenth Circuit Judge Timothy M. Tymkovich expressed concern in a concurring opinion "that the dictum inhibits lower courts from exploring the contours of [District of Columbia v.] Heller and its application to firearms restrictions....I...wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases."  The dictum to which Judge Tymkovich is speaking is "...nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[,]" a phrase specifically addressed in the Tenth Circuit case of U.S. v. McCane.  In the case, Markice Lavert McCane, challenged his conviction for violating the federal felon dispossession law by arguing, among other points, that the law was unconstitutional under the Heller decision.  Denniston reports that "feeling bound by Heller dictum," a three-judge panel rejected McCane's argument, and prompted Judge Tymkovich to write separately.  Judge Tymkovich's main complaint with the felon dictum in Heller "short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts."  Doug Berman has this post on Judge Tymkovich's concurrence at Sentencing Law and Policy. 

Originalism and Activism:
  Stuart Taylor Jr. comments on The Ninth Justice that the nomination of Judge Sotomayor to the Supreme Court has sparked debate among legal scholars over the extent to which "conservative justices are guilty of judicial activism."  This all began with a statement by Ramesh Ponnuru in a New York Times Op-ed.  According to Taylor, the statement "clashed with efforts by other conservatives to depict Sotomayor as a liberal activist and themselves as the champions of judicial restraint[.]"  In Taylor's view, conservative justices are not always the champions of judicial restraint, and Heller's discussion of the Second Amendment is a prime example.  The decision in Heller has been called an exercise in "faux originalism" by Judge Richard Posner of the Seventh Circuit, and causes Taylor to wonder "[w]hat justification is there for unelected, life-tenured justices to strike down democratic choices based on highly debatable interpretations of ambiguously worded, indeterminate constitutional provisions?"  Of course, the decision in Heller did not reach the level of the infamous, Roe v. Wade, a "made-up constitutional law that can be maintained only on the basis of respect for precedent," but Taylor still believes, in some cases, "it's fair" to brand conservative justices as activists.  

Crime-facilitating Speech - Blogging About Undercover Officers:  At Volokh Conspiracy, Eugene Volokh links to a piece that describes how a Virginia woman has been arrested for blogging about the members of a local drug task force. She has been charged with harassment of a police officer.  The woman apparently posted one officer's home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home.  The author of the post, Randy Balko, believes that "Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it's a tougher call when the officers in question work undercover."  Volokh believes this is a tough call and discusses the point in his post, and his article Crime-Facilitating Speech.  Volokh believes that such speech is dangerous, as it could help criminals kill police officers or conceal their crimes, but he also believes that the speech does have value for law-abiding citizens.  He thinks the same speech could help noncriminals realize their acquaintances aren't what they seem, and could help criminal defense lawyers defend their clients.  While this may be true, the fact that such speech could allow criminals to kill undercover officers and visit their homes, seems worthy justification for limiting what's posted on the web.  

California Budget and Crime Tax

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The California Legislature sent the Governator a budget that wasn't really balanced, so he line-item-vetoed close to half a billion dollars, reports Steve Wiegand in the SacBee. Not that the budget is truly balanced even with the vetoes, but it moves somewhat closer to reality.

Further cuts to prisons apparently weren't in the vetoes. The bill as passed, according to the SacBee, "Assumes [a] $1.2 billion cut [to prisons], but does not specify how the savings would be achieved. Democrats and Schwarzenegger are seeking changes to release thousands of prisoners to home detention and county jails."

But the county jails have their "no vacancy" signs lit, and the people who would monitor alternative detentions are already overmaxed, so in practice we are talking about unsupervised release here.

The budget has no express taxes, but the prison cuts will impose a sort of "crime tax" on the people who are the victims of the additional crimes. Those victims will, to use a favorite phrase of our friends on the political left, be "disproportionately poor and minorities," but the folks who usually screech about disparate impact apparently don't have a problem with it in this case.

Justice Delayed and Denied

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The absurdly protracted process for reviewing capital cases in California racked up two more miscarriages of justice over the weekend. Two more murderers who should have been executed years ago died of natural causes. AP story is here.

Year after year, we have gone to California's dysfunctional Legislature with proposals to fix the problem, and year after year they have summarily killed them. Looks like we have to go back to the ballot in 2010.

Blog Scan

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Judge Sotomayor's Confirmation:  As the News Scan reported earlier today, Judge Sotomayor has been approved by the Senate Judiciary Committee.  Kristina Moore writes over on SCOTUSblog that during the two-hour committee session, Senators reiterated their points from the four days of hearings and also looked to future of Supreme Court nominations.  After the six Republicans voting against Judge Sotomayor voiced concern over Sotomayor's speeches and law review articles, Senator Charles Schumer (D-NY) stated this hearing "process has shown that Republican colleagues will never support anyone nominated by President Obama, no matter how moderate her record."   A similar concern was voiced by Wisconsin's two Democratic senators, Herb Kohl and Russell Feingold, when they "[a]nounced the politicization of Supreme Court nominations during the Senate Judiciary Committee's" meeting today.  Amy Harder writes over on The Ninth Justice that after these hearings, Senator Kohl is concerned that the committee is no longer capable of having "substantive and candid conversations about our nominees."  Feingold echoed Kohl's comments when he complained that the nominations process "fails to educate the Senate or the public about the views of potential Justices on the Supreme Court."  David Ingram also reports on the senators statements at Blog of Legal Times. 

D.C. Circuit Prohibits Imposing Longer Sentences to Rehabilitate: Mike Scarcella reports on Blog of Legal Times that the U.S. Court of Appeals for the D.C. Circuit ruled today that federal judges cannot "use a greater likelihood of rehabilitation to justify a longer prison sentence for a criminal defendant."  A divided panel followed precedent set by the Second and Third Circuit to rule that judges cannot increase a prison sentence for rehabilitative reasons.  This is in contrast to the Eighth and Ninth Circuits that allow imposition of a longer sentence to rehabilitate.  The defendant, a 56-year-old drug addict with a lengthy criminal history, was sentenced to 11 years after pleading guilty to distributing 2.1 grams of heroin.  The trial judge defended the sentence because of his belief that the defendant would benefit "from some of the programs and educational training and the medical treatment that is available in the federal prison system, and that would actually be more available and more useful for the defendant over a somewhat longer period of time..."  In today's ruling, the majority found a statute controlled their decision.  Because Congress had spoken clearly as to how long a defendant could be kept in prison, "sentencing courts may not use imprisonment as a means of rehabilitation."

Washington Criminalizes Sex With a Student Under 21:  At Volokh Conspiracy, Eugene Volokh blogs that Washington passed HB 1385 and made it a felony for a school employee, who is more than 5 years older than the student, to have sex with the student.  "[T]his strikes [Volokh] as quite wrong."  Volokh thinks such behavior could justify firing the employee, but it does not justify sending the teacher to prison.  Volokh believes that the "abuse of power" rationale does not work in this situation, since we typically require plaintiffs to prove abuse in sexual favor cases.  Volokh was concerned that the "psychotherapist-patient" analogy would not work here either.  However, a tip informed him that California treats such sex as a misdemeanor, or a felony if it's committed with two or more "victims."  This doesn't change Volokh's opinion much.  He still believes the analogy doesn't work, because the teacher-student relationship "involves far less likelihood of emotional fragility on the alleged 'victim's' part."  Volokh writes: "Criminal punishment, and especially felony punishment, of sexual behavior should be reserved for genuine force, fraud, imposition on children, or situations where there seems to be a real risk of extraordinary psychological or physical harm, or harm to social institutions -- not to consensual sex between adults, even when one adult is a school employee and the other is a student."   

Texas to Create Capital Defense Office:  Ashby Jones writes on Wall Street Journal's Law Blog that Texas has passed legislation to create a capital defense office next year, which will handle appeals for death row inmates.  An article by Lise Olsen of the Houston Chronicle reports that the office will have a budget of about $1 million and about nine employees.  Olsen reports that the legislation creating the capital defense office was inspired by stories of Texas inmates who lost appeals because their lawyers missed deadlines or filed "skeletal" writs, which contained only scant information often copied from other cases.  

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Judiciary Approves Sonia Sotomayor's Nomination:  The Senate Judiciary Committee approved the nomination of Judge Sonia Sotomayor to the Supreme Court today with a 13-6 vote. A story by Kristina Peterson of the Wall Street Journal reports that of the committee members only Republican Lindsey Graham joined the Democrats to move the nomination to the Senate floor.  A vote by the full Senate to confirm her elevation to the high court is expected next week.

Murder to Avoid Child Support as a Special Circumstance?  A Southern California man is on trial on charges that he murdered his 4-year-old daughter to avoid paying $1,000 a month in child support. AP writer Greg Risling reports that the Los Angeles District Attorney is prosecuting Cameron Brown for murder with the special circumstances of murder while lying in wait and murder for financial gain.  Brown allegedly threw his little girl off a cliff into the Pacific Ocean in November of 2000.  He apparently had not bothered to visit the child until he was forced to pay child support.  Brown's defense attorney argues that the child fell from the cliff.  According to the child's mother, she did not want to see her father on the day she died, "she was crying and I had trouble getting her out of the car seat," she said.  While the District Attorney is not seeking the death penalty, it remains to be determined if a claim of murder to avoid a financial loss is the legal equivalent of murder for financial gain. 

Were Dodd and Conrad Bribed?  In testimony before two Congressional committees last month Robert Feinberg, an executive with Countrywide Financial Corp., said that Senators Chris Dodd, Chairman of the Senate Banking Committee, and Kent Conrad, Chairman of the Senate Budget Committee, knowingly accepted special mortgage deals from the lender.  Larry Margasak of the Associated Press reports that both senators were considered "'friends' of Angelo" (Mozilo), who was the Chief Executive of Countrywide, a big player in the subprime loan market and the subsequent foreclosure crisis.  Loan records, and Feinberg's testimony, indicate that Dodd was charged no points, and received rate discounts on the mortgages, for his Washington and Connecticut homes based on the false notation that they were both owner-occupied residences.  In Conrad's case, Countrywide gave him discounts on points and fees, and waived its residential loan limit to allow him to finance a larger building. While both senators have denied knowledge of the special treatment, internal Countrywide documents appear to contradict those statements.  Feinberg could face criminal prosecution if his testimony before the Congressional committees is proven false.

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Judge Sotomayor's Republican Support:  Today on SCOTUSblog, Kristina Moore reports that Senator Charles Grassley (R-Iowa) has announced he will vote against Judge Sotomayor's confirmation.  Senator Grassley was one of the last Senate Judiciary Republicans to announce his vote, and unless Senator Tom Coburn (R-OK) votes to confirm Judge Sotomayor, Senator Lindsey Graham (R-SC) may be the only Republican backing President Obama's pick for the seat.  Earlier today, Senator Jeffrey Sessions (R-AL) also announced he would vote against Judge Sotomayor's confirmation.  Both Senators Sessions and Grassley credited their fear that Judge Sotomayor would allow personal beliefs to influence her decisions as a reason for their "No" vote.  Sessions also stated "I don't believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism. She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent."  David Ingram also has this report on Judge Sotomayor's dwindling GOP support on Blog of Legal Times. 

Federal Habeas Article:  Thanks to Doug Berman at Sentencing Law and Policy for linking to "Rethinking the Federal Role in State Criminal Justice," an essay by Professors Joseph L. Hoffman and Nancy J. King in NYU Law Review.  The essay argues that federal habeas review of state criminal cases is broken and "squanders judicial resources."  The authors look to King's 2007 empirical study and "the Supreme Court's most recent decision applying the Suspension Clause," and conclude that Congress should "eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences."  The authors propose that the money saved by eliminating such review could be used to fund state defense services.  When Hoffman and King advocate habeas review of death sentences, they advocate review only if (a) petitioner's "death sentence was imposed in violation of the Constitution or laws or treaties of the United States or (b) he is legally ineligible to be executed."  In this article, the authors "defer to another forum a discussion of the proper scope of habeas in capital cases, including the appropriate standard of review and the application of doctrines such as procedural default that currently limit habeas relief."  Footnote #105 tells us they plan to write a book addressing the proper scope of habeas corpus in capital cases.  For now, Hoffman and King just propose keeping habeas review of capital cases separate, instead of attempting a "misguided effort to develop "onesize-fits-all" habeas rule[]..." We are inclined to think that federal review of issues going only to the sentence imposed on a death-eligible murderer should be the first item to go on the scrap heap.

A Plea for Action in D.C. Murder Case.: Today, on Wall Street Journal Blog, Ashby Jones writes about "the tragic story of Robert Wone."  Three years ago, Wone was murdered while he was visiting friends in Washington, D.C.  To date, no one has been charged with his murder.  Police have charged three men of conspiracy, obstruction of justice and crime-scene tampering.  Robert Wone's murder has spawned a website, and today, the Washington Post allowed its editors, David Greer and Craig Brownstein, to write an opinion piece discussing Wone's murder.  The piece details problems with solving a homicide in D.C. and concludes, "Many want to see justice in the scores of unsolved cases, but this one example has revealed a chilling fact: Being a homicide victim in the District may be a great equalizer; position guarantees you nothing. If the slain former colleague of the U.S. attorney general gets lethargic and sloppy treatment from authorities, then what hope do the rest of us have?"     

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SG Vows Independence:  On Thursday, Solicitor General Elana Kagan told lawyers and judges at the annual meeting of the Ninth Circuit, that she will defend federal laws even if the President disagrees with them.  SF Chronicle writer Bob Egelko reports that while she did not refer to any specific law, she said that only if the federal law were unconstitutional or interfered with executive prerogatives would she not defend it.  The story brings up the Defense of Marriage Act and the law shielding telecommunications companies from liability for participation in the Bush Administration's electronic surveillance of suspected terrorists.

Obama Comment Angers Police:  The President's comment Wednesday, that the Cambridge police "acted stupidly" in a July 16 incident with a Harvard professor has sparked criticism from the Cambridge Police Commissioner and many officers across the country according to this story by AP writer Melissa Trujillo.  "I think [Obama] was way off base wading into a local issue without knowing all the facts...", said the arresting officer, Sgt.  James Crowley.  The incident occurred when Cambridge police responded to a 911 call from a woman who reported seeing two black men trying to force open the door of noted black history professor Henry Louis Gates' home.  When the officers arrived, they saw Gates in the house and Sgt. James Crowley ordered him present identification.  At that point, Chicago Tribune writer Bob Salsberg reports Gates flew into a verbal rage and accused Sgt. Crowley of racial bias. Sgt. Leon Lashley, a black officer at the scene, supports how his fellow officer handled the situation.  Lashley said that he supported his white colleague "100 percent."  See also our prior post here

So-Called Prosecutor Misconduct

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Stop the presses. The American Bar Association's Criminal Justice Section is not entirely without redeeming social value. They have actually proposed something positive. More than that, they forwarded a proposal to the House of Delegates over the opposition of NACDL.

The legal profession sometimes inflicts public relations wounds on itself by continuing to use old terms to express concepts that have been expanded far beyond the commonly understood meaning of those terms. Among the worst examples is "prosecutor misconduct." It was originally "misconduct" to "suppress" evidence favorable to the defendant, but that concept has been expanded to failure to disclose information in the files of any police agency associated with the case, even if the prosecutor is completely unaware of the information. In Strickler v. Greene, 527 U.S. 263, 275, n. 12 (1999), for example, the information was in a police file in another county, unknown to the attorneys on either side.

The other side loves to exploit this term in debates, such as those over the death penalty, noting in grave tones how many judgments have been reversed for "prosecutor misconduct." Regular folks hearing that term, not knowing how broadly it has been expanded, get the (usually false) impression of some dastardly conspiracy to railroad the defendant. Now the Criminal Justice Section wants the ABA to go on record asking courts to distinguish between "attorney misconduct" and "attorney error." The recommendation and the reasons for it are on pages 67-68 of this PDF document.

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Big Bust in Jersey: Johathan Dienst and Michael Clancy from NBC report that 40 people, including several elected officials were arrested in New Jersey this morning by agents from the FBI and IRS as part of a crackdown on widespread corruption.  Among those arrested were a member of the state assembly and the mayors of Secaucus, Hoboken, the Deputy Mayor of Jersey City, a council member, and several area rabbis.  Those arrested are suspected of involvement in international money laundering, bribes and an illegal human organ-selling ring. 

Inmate Release Almost Kills CA Budget Deal:  The budget compromise announced by California's Governor and legislative leaders on Monday was almost derailed when GOP lawmakers learned that part of the deal involved the release of 27,000 inmates from prison.  Sacramento Bee writer Steve Wiegand reports that, to save the compromise, Democrat majority leaders have postponed a vote on the inmate release plan until August.   The other 28 bills in the budget package are expected to be adopted by both legislative houses this week and Governor Schwarzenneger, who brokered the compromise, has pledged to sign them.  Senate President Pro Tem Darrell Steinberg, D-Sacramento, said that there was no intent by the Democrats or the governor to change the release plan before the August vote, but the Assembly Republican leader said that his party will introduce a countermeasure that will not involve the release of dangerous prisoners.

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Tracking Life Sentences:  With the Supreme Court scheduled to review life sentences without parole for juveniles in Graham v. Florida and Sullivan v. Florida, Doug Berman provides some timely links to a new report, No Exit: The Expanding Use of Life Sentences in America, by the left-leaning Sentencing Project.  Berman's first post provides details of the report.  For example, according to Berman's post, "140,610 individuals are now serving life sentences in state and federal prisons, 6,807 of whom were juveniles at the time of the crime."   Berman's second post links to stories discussing the report in the New York Times, USA Today, Birmingham News, and Daily Record.  The report also focuses on the "overwhelming racial and ethnic disparities [found] in the allocation of life sentences." We've seen these revelations before, particularly when it came to the death penalty.  In one of Kent's past posts, he discusses a study that looked for discrimination when handing out the death penalty.  Researchers in that National Institute of Justice Study found it "difficult to determine definitively whether there is any meaningful association between race or ethnicity and prosecutor recommendations and decisions to seek or not to seek the death penalty in federal capital cases." 

Partisanship and Judicial Review:  At The Ninth Justice, Stuart Taylor Jr. discusses how political leanings can impact how Justices view judicial review and the Constitution.  In discussing the "bumper-sticker" liberal and conservative views of constitutional interpretation, Taylor opines that easy to categorize, simplistic views of constitutional interpretation aren't realistic.  The reality is that there would not be so many 5-4 decisions if the hardest questions could be solved by applying the Constitution to the facts.  Taylor points to ambiguous phrases in the Constitution, like "due process" and "equal protection," and admits "[t]he starting point for honest constitutional analysis is the recognition that most of us...care less about neutral principles of constitutional law than about the political results of the courts' rulings on big issues...."  Some Justices, like William Brennan, adhere to a liberal view of constitutional interpretation that often creates policy that clashes with the Constitution.  Justices that adhere to the "original meaning" of the Constitution, like Justice Scalia, interpret the Constitution to achieve results that would not "horrif[y] the framers."  Each method has its own agenda, and Taylor promises to follow up on the debate surrounding the results of each agenda in his next post.

A Bill to Change the Pleading Standard: 
David Ingram reports for Blog of Legal Times that Senator Spector (D-Pa.) filed a bill yesterday that would change the pleading standard for civil lawsuits.  The Supreme Court recently raised the pleading standard, in Ashcroft v. Iqbal, to a level that has garnered several complaints.  Adam Liptak's Sidebar in Tuesday's New York Times relates the impact, and some complaints, surrounding the Iqbal decision.   Specter echoed these complaints when he introduced his bill.  His bill directs federal courts to back away from the fact-specific approach established in Iqbal and interpret the pleading rules as the Supreme Court did in a much earlier decision, Conley v. Gibson.

Amicus Posts Reach Their Conclusion:  Eugene Volokh writes on Volokh Conspiracy that blogger interest has inspired him to post one last post on amicus briefs before he concludes his Federal Appellate Practice treatise series "with two more posts on oral argument."  Today's post covers "Judicial Attitudes Toward Amicus Briefs."  There are some judges, like Judge Posner of the Seventh Circuit, that favor "a narrow view of the circumstances in which leave to file an amicus brief should be granted."  Other judges, like former Third Circuit Judge Alito, believe amicus may provide "important assistance to the court."  
At yesterday's news conference (transcript here, excerpt after the jump), President Obama said, with regard to the Gates incident, "the Cambridge Police acted stupidly in arresting somebody when there was already proof that they were in their own home...." Disturbingly absent from his statement is any parallel rebuke to Gates, whose extreme overreaction to a legitimate police inquiry was the main cause of the incident. The police report is here.

True enough, the police should not have arrested Gates for screaming unfounded accusations of racism at an officer just doing his job. Being a total jerk is not a crime. Yelling at someone you are angry at in your own home -- even though unjustified -- is not disorderly conduct under a constitutional interpretation of that offense. But if the President is going to criticize the police's conduct in the incident, he should certainly include Gates's complicity in the matter as well.

There is much talk about the incident showing what it means to be a Black man in America today. I think it shows even more clearly what it means to be a cop in America today. In the course of doing your job -- in this case protecting Gates's house from what appeared to be a burglary -- you have to take guff from people like Gates and just suck it up.

AP reports the White House is now backing off the "stupidly" remark.

Double Jeopardy and Sentencing

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The California Supreme Court will announce two decisions tomorrow having to do with double jeopardy and sentencing. The notice is here. It is copied in part after the jump.

Update (7/23): The opening paragraphs of the decisions are copied after the jump.

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Supreme Court Preview: Maryland v. Shatzer: On SCOTUSblog, Georgetown Law student Diana Gillis previews the U.S. Supreme Court case Maryland v. Shatzer (08-680).  The Court is scheduled to hear oral arguments in the case on Monday, October 5th.  As reported earlier, Shatzer takes up the issue of whether Edwards v. Arizona requires police to cease interrogation indefinitely, once a suspect asserts his right to counsel.  In Shatzer's case, the Maryland Court of Appeals held that Edwards did, and found inadmissible the incriminating statements Shatzer made almost three years after he first asserted his right to counsel.  In her case preview, Gillis nicely sums up the facts of the case and gives brief synopsis of Maryland and Shatzer's briefs.  The Maryland brief argues that Edwards' protection should lift when there has been a break in custody or a substantial lapse of time.  These arguments are similar to those that John Roberts made before the U.S. Supreme Court in United States v. GreenGreen was dismissed without decision.  In response, Shatzer argues that a break in custody limit would undermine Edwards' goal of protecting suspects from coercion.  He also argues that any "lapse in time" rule is arbitrary.  He especially doesn't like the position taken in our brief that Edwards' presumption should expire after 30 days.

"Becoming belligerent with a police officer is almost never a good idea."
  That's the advice that James Taranto gives as he recaps the Henry Louis Gates saga on Wall Street Journal's Best of the Web.  Taranto's advice is based on a personal experience with police officers.  One day in the mid-1990s Taranto was a house guest and  a neighbor mistook for a suspicious man roaming the area.  The officers arrived, Taranto kept his cool, and the officers left.  For those unfamiliar with Gates' story this AP story gives some quick details.  Apparently, Gates, director of Harvard's W.E.B. Du Bois Institute for African and African American Research, was locked out of his Cambridge, MA, house one afternoon. A woman called police and "reported seeing a man try to pry open the front door."  When an officer arrived, he asked for Gates identification.  The Boston Globe reports that Gates showed his driver's license and Harvard identification card.  The problem began when Gates accused the officer of being a racist.  He was booked for "exhibiting loud and tumultuous behavior," although charges were later dropped.

Virginia to Address Melendez-Diaz At Blog of Legal Times, Tony Mauro reports that Virginia's Governor, Tim Kaine, has called a special session of the state General Assembly on Aug. 19 to respond to Melendez-Diaz v. Massachusetts.  The Supreme Court's decision requires lab technicians to appear at trial if the prosecution introduces at trial written reports or certificates prepared by the technician.  Virginia has a special interest in this decision since the Supreme Court recently granted certiorari in Briscoe v. Virginia, a case that will examine Virginia's rule regarding this type of evidence.  We've blogged about Briscoe before, and as Mauro correctly states, "Virginia may be able to make relatively minor adjustments to its laws to accommodate Melendez-Diaz."  We hope Virginia doesn't make these adjustments too quickly.  Briscoe is a good case to place some limits on Melendez-Diaz's potential impact.

Supreme Court Justice News:  Also on Blog of Legal Times, Tony Mauro posts on "The Bush Judicial Legacy, By the Numbers."  The post links to the latest issue of Judicature which states "[Bush's] judicial legacy may well be Bush's most enduring accomplishment[.]"  On The Ninth Justice, Amy Harder reports that Senator Graham will endorse Judge Sotomayor, and Senator Kyl will not.  According to Jan Crawford Greenburg at Legalities, Senator Kyl will not endorse Judge Sotomayor because her testimony was "evasive, lacking in substance and, in several instances, incredibly misleading[.]"

The Power of an Amicus:  On Volokh Conspiracy, Eugene Volokh has been offering up a series of posts on amicus curiae briefs.  Today's offering tells us that less is more in amicus briefs.  Previous posts include "Amicus Briefs -- Why File Them?" and "Amicus Briefs Supporting Petitions for Discretionary Review."  All of the posts include excerpts from Mayer Brown LLP's treatise on Federal Appellate Practice.      

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Ohio Executed a Serial Killer this morning. This is the 2nd serial killer executed in Ohio in the past week.  Alan Johnson of the Columbus Dispatch reports that Marvallous Keene, sentenced to die for a 1992 killing spree that resulted in five deaths, was executed by lethal injection while seven witnesses for the victims watched.  Last Tuesday, John Fautenberry was also executed for the murders of five people.  A recent procedural change ordered by the Ohio Supreme Court will require future executions in the state to be no closer than three weeks apart. 

Suspects Want to Plead Guilty to Avoid DP:  Two parolees, scheduled to be tried in January for the 2007 home-invasion robbery and murders of Jennifer Hawke-Petit and her 17 and 11 year-old daughters, want to plead guilty in exchange for life sentences to avoid the death penalty, as reported in this AP story by John Christoffersen.  Prosecutors, who have refused to agree to the deal, are being criticized by defense attorneys for costing taxpayers millions for the trial and appeals, and exposing the jurors to post-traumatic stress syndrome after hearing the details of the crime.  According to a story by WFSB Eyewitness News, the criminal records of both Steven Hayes and Joshua Komisarjevsky, who had multiple priors for burglary and larceny crimes, made them appropriate candidates for supervised parole in the community. Both men are facing capital felony and charges of felony murder, kidnapping, sexual assault and arson in connection with the killings. Hawke-Petit was sexually assaulted and strangled to death.  Her 11-year-old daughter was sexually assaulted before both girls were left bound in their beds as the house was doused with gasoline and set fire. Both died of smoke inhalation. The husband and father, Dr. William Petit, was beaten unconscious during the invasion but survived. 

Blog Scan

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Targeting Drug Traffickers in Mexico:  Mike Scarcella reports on for Blog of Legal Times that the Department of Justice has unsealed an indictment targeting a drug trafficking ring in Mexico that is pumping drugs into the United States.  Justice officials are charging nineteen reputed members of the Gulf Cartel/Los Zetas drug trafficking organization, now known as the "Company," in federal court in Washington and in Manhattan for their alleged roles in the drug trafficking conspiracy.  Leaders of the group are apparently directing shipments of cocaine and marijuana via boats, airplanes and cars from Venezuela and Colombia to Guatemala and Mexico, and then transporting them into Texas for distribution in the United States.  Officials are offering up to $50 million for information leading to the capture of 10 of the defendants, including four leaders of the organization.

Ohio's Executions: 
At Sentencing Law and Policy, Doug Berman opines that after this morning's execution, "[w]ith respect to the death penalty, I think it is fair and appropriate to now call Ohio the Texas of the north..."  Berman wonders why few academics or leading public policy groups are making waves about Ohio's execution rate.  His "cynical explanation" is that Ohio does not fit "easily or effectively fit into certain anti-death-penalty narratives often stressed by academics and public policy groups and abolitionists..."  As Kent points out, this observation "isn't cynical; it is realistic.Ohio doesn't fit the profile that the anti side is trying to create..."

Was the Prosecutor Wrong?:   Ashby Jones blogs on Wall Street Journal's Law Blog about the Fischer Homes saga, and Jon Entine's Washington Post piece discussing the case.  The Fischer Homes saga began when the FBI raided construction sites in northern Kentucky overseeen by homebuilder Fischer Homes. In an attempt to assemble a wide-sweeping illegal-immigration case against the company and its officials, the government took documents, handcuffed Fischer Homes superintendents and locked down the company's headquarters.  Apparently, nothing came of the crackdown, but Jon Entine believes it is a clear example of prosecutorial misconduct.  He believes the prosecutor's facts were wrong, and that the raid was entirely political.  He writes, "the justice system wields enormous power, which often depends on extracting plea deals, sometimes from the innocent and often from supposedly deep-pocketed businesses."  In response to Entine's book discussing the case, U.S. attorney Robert McBride said the prosecution was justified because later approximately eight subcontractors for Fischer were convicted of harboring illegal aliens.

Playing It Safe:  A women's blog, The Double X, has posted a guest post from former SCOTUSblogger and current Yale Law student, Adam Chandler.  In his post, Chandler argues that judicial confirmation hearings are teaching students one thing: "Play It Safe."  According to Chandler, Judge Sotomayor's predicted confirmation (The Ninth Justice posts anticipated "yay" and "nay" votes here) teaches the politically ambitious to "Say nothing, and join nothing, within a pole's length of controversy."  Jess Bravin at Wall Street Journal's Law Blog has similar thoughts as he writes, "[a]t her confirmation hearing last week, Supreme Court nominee Sonia Sotomayor took extraordinary pains to avoid saying anything that conceivably could spark the tiniest bit of controversy from any possible constituency." This is a disturbing message.  If political figureheads are taught to avoid voicing, and backing, controversial positions early in their careers, how can we trust they'll make controversial decisions when necessary?  Are we moving away from Truman's "The Buck Stops Here?"

California Budget Deal

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The Governator and legislative leaders have reached a budget deal in the formerly golden state, including at 1.2 gigabuck cut to the department of locking up bad guys. Shane Goldmacher and Evan Halper have this story in the LA Times.

No one involved in the negotiations would explain how $1.2 billion would be cut from the state prison system. Law enforcement advocacy groups said that level of reduced spending could require the release of as many as 20,000 prisoners before their sentences are complete.
How many people will be robbed, raped, or murdered as a result? We can't put an exact figure on it, of course, but it will be a great many.

Sotomayor Follow-Up Questions

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SCOTUS nominee Sonia Sotomayor has responded to written follow-up questions from the Judiciary Committee Republicans. The questions and answers are here on the committee website. As anyone who watched the hearings can guess, there are no great revelations. Tony Mauro has this post at BLT.

Death penalty questions are on pages 11-14. Again, she minimizes the PRLDEF memo. She declares that she is not Witherspoon-Witt excludable: "I have no personal views about the death penalty that would interfere with my obligation to apply the law as a judge." She says, "The Supreme Court rejected the argument that the death penalty may never be imposed consistent with the Eighth Amendment in Gregg v. Georgia, 428 U.S. 153, 187 (1976), and I accept that decision." That's not quite a promise she won't go Blackmun on us, but I suppose it's as close as we could expect to get.

Her answer to the McCleskey question, pp. 12-13, says nothing. That touches on the greatest concern, that once freed from the requirement to follow precedents of higher courts she might accept some flaky racial argument against the death penalty. (For reasons why the arguments are flaky, see this article.) We'll just have to wait and see.

On pages 24-25, she responds to a question about Hayden v. Pataki. Sessions screws it up by misstating the would-be holding of the dissenters, that they would have held that New York's felon disenfranchisement law violates the Fifteenth Amendment.  She responds that her opinion was on the statute and only about whether judgment should have been rendered at an early stage. Would a better question have produced a more informative answer? Probably not. The penultimate question gives us this gem:

1. Please describe with particularity the process by which these questions were answered.
Response: Responses to these questions were drafted by legal staff of the White House based on my guidance. I edited these draft responses, and gave final approval to all answers.
Please pass the Maalox.

Simply Indefensible

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For the second time in two terms, a habeas petitioner who prevailed in the Ninth Circuit has abandoned that court's opinion when the merits of the case reached the U.S. Supreme Court. Previous posts on last term's Hedgpeth v. Pulido are here, here, and here.

This term we have McDaniel v. Brown. I previously noted what a stinker the Ninth Circuit's opinion was. Was it really that bad, you might ask. No, it was worse. Counsel for Brown filed their merits brief Friday. As noted in the prior post, the Ninth used Jackson v. Virginia to decide that the evidence in Brown's trial was insufficient after first deciding it would ignore the prosecution's key evidence, DNA, that it considered unreliable on the basis of an affidavit presented for the first time on federal habeas. Friday's brief for Brown concedes, "The purpose of a Jackson analysis is to determine whether the jury acted in a rational manner in returning a guilty verdict based on the evidence before it, not whether improper evidence violated due process," which the state has been saying the whole time. The brief then goes on to try to salvage the case with the sweeping assertion that there is a general due process protection against unreliable identification evidence, an argument complicated by the fact that the Supreme Court rejected a very similar argument just 3 months ago in Kansas v. Ventris, slip op. at 7, n. *. See CJLF Brief at 26-27.

There is something seriously amiss with a court that repeatedly issues opinions so wrong that even the prevailing party can't defend them. In every crop there will be some outliers, but the en banc review process is supposed to cull them out. The state petitioned for rehearing en banc in both Pulido and Brown, and the Ninth Circuit denied both petitions. You need to look at these petitions more carefully, Ninth Circuit judges. The reputation your circuit has is not a bum rap. Cases such these illustrate that it is thoroughly deserved.

Blog Scan

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Second Amendment Cases Challenge Slaughterhouse Cases:  At SCOTUSblog, Lyle Denniston wonders whether the Slaughterhouse cases could be overruled.  The Slaughterhouse cases narrowly interpreted the Fourteenth Amendment's Privileges and Immunities Clause to restrict state laws affecting the rights of national citizenship, but not state citizenship.  Denniston reports that this longstanding rule could be challenged by the Second Amendment cases up for review by the Supreme Court this fall.  In Maloney v. Rice (08-1592),  National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521) the Court will determine whether the Second Amendment's personal right to have a gun for self-defense restricts state and local government laws, and not just those at the federal level.  Denniston believes that "there are only three ways that the Court could interpret the Second Amendment as applying to the states."  He writes that the Constitution rules out one, Slaughterhouse the second, and the third, "'incorporation' of the Second Amendment into the Fourteenth Amendment so that it reaches states - is not an attractive option to constitutional conservatives."  The NRA's petition argues the Second Amendment should apply to the states through "incorporation" and through the Privileges and Immunities Clause.  McDonald suggests overruling Slaughterhouse as "wrong the day it was decided and today stands indefensible."

Was "Repudiating" Obama's Judicial Philosophy Part of the Plan?:  At The Ninth Justice Stuart Taylor Jr. writes that Judge Sotomayor's repudiation of President Obama's "empathy" criteria, as well her step back from the "wise Latina" comments could have been done at the advice of White House lawyers prepping Judge Sotomayor for the hearings.  He wonders if she was advised to reject the liberal judicial philosophy that pervades the President's speeches in order to get "out of a tight spot."  Taylor speculates that the White House knew that the real ammunition against Judge Sotomayor existed in her speeches, and not her judicial record, and suggested that she resort to what Taylor calls "implausible disclaimers."  So were the disclaimers a smokescreen?  Maureen Dowd wrote in The New York Times, "as any clever job applicant knows, you must obscure as well as reveal, so she sidestepped the dreaded empathy questions -- even though that's why the president wants her." 

Reported Decrease in Violent Crime Rates:  On Sentencing Law and Policy Doug Berman posts on a reported decrease in violent crime rates in major cities across the country.  According to a Washington Post story, by Allison Klein, Washington D.C, Los Angeles and New York have all reported fewer killings this year than any other year in at least four decades.  The District and Prince George's County, MD have seen homicides drop 17 percent.  As Chuck Wexler, executive director of the Washington-based Police Executive Research Forum, noted this trend is significant because "summer is when you see the most significant increase in street violence. Departments have had to be more strategic in terms of gangs and hot spots."  Berman has some interesting "not-quite-absurd" theories on why crime is decreasing in these major cities.  His first theory is that that after Heller more people are packing their own heat, and this has led to a decrease in crime.  The second theory is that the election of President Obama has given hope to people and deterred them from committing crime.  It could also be that police are doing are more strategically seeking out gangs in these cities, or that we are handing out tough sentences to the worst offenders.   
That's the headline of this story by Amy Goldstein and Paul Kane in the Washington Post.

Either way, Sotomayor's reticence, if not her nomination, has disappointed legal thinkers on the left. The hearings "did serious damage to the cause of progressive thought in constitutional law," said Geoffrey R. Stone, a University of Chicago Law School professor who was dean there when Obama joined its faculty. Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank, called them "a totally missed opportunity. . . . The progressive legal project hit rock bottom [last] week."
Let's hope so.

Lying About Lying

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In the latest installment of the Federalist Society's online debate on the Sotomayor nomination, Louis Michael Seidman wanders off the topic to take a gratuitous swipe at Justice Thomas with the well-worn lie that "Thomas swore under oath to the preposterous claim that he had never in his life talked with anyone about Roe v. Wade." Wendy Long then nails him on it, and Seidman curiously replies by quoting the portion of the transcript that definitively proves Seidman's statement was a lie.

In the transcript, Thomas does not say that he never talked about Roe. He says he discussed it only in the most general terms and wasn't involved in the debates that were going around. That statement is entirely credible. Hard as it is for the combatants in the abortion debate to believe, there are many people who do not feel strongly about it either way and don't get into the debates.

Seidman says he quotes the transcript to "leave to people to decide for themselves whether [Thomas's testimony] is credible." Say you don't believe his testimony if you like Professor, but your statement that he "swore under oath to the preposterous claim that he had never in his life talked with anyone about Roe v. Wade" is beyond question a lie. Lying is bad in any situation, but to lie while calling someone else a liar is hypocrisy of lowest order.

Update: See the comments regarding whether Seidman's initial post was an intentional lie or reckless disregard of the truth.

Blog Scan

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Cameras in the UK's Supreme Court:  Tony Mauro posts on Blog of Legal Times that the newly formed Supreme Court of the United Kingdom will allow the media to request broadcasts of its proceedings.  According to a BBC report by Dominic Casciani, the broadcasts are a first for England and Wales.  They could be part of a reform to connect the the justice system to the public that it serves.  Casciani reports "that alongside the decision on filming sessions, the new Supreme Court building had been designed to be as open to the public as possible."  Justice minister Lord Bach claims the new building will allow the public to observe what is happening, which is important to prevent "a disconnect between the justice system and the people it's meant to serve." Back on Blog of Legal Times, Mauro notes that the Justices of the United States Supreme Court may want to take notice.  Judge Sotomayor appears open to the idea of cameras in the Supreme Court, and many of our Justices will be attending the UK's Court opening in October. 

How Did the Confirmation Hearings Go?: 
Today, The Ninth Justice has two posts, with comments from SCOTUS watching experts, weighing in on how the hearings went for Judge Sotomayor and other key players.  The first post polls legal experts like Tony Mauro, Tom Goldstein, Doug Kendall, Dahlia Lithwick and Wendy Long, and asks them to grade the performance of each player.  Senator's Leahy and Specter received low marks - C+, while Senators Sessions and Graham each received a B-.  Judge Sotomayor and Senator Al Franken " each got B averages."  Judge Sotomayor receive a B+ from one commenter because, "Her calm, painstaking demeanor took the sting out of the whole affair, leaving Republicans frustrated that they could not draw blood. But her self-portrayal as a judge who follows the law and precedent unquestioningly is hard to believe."  Also available on The Ninth Justice is Amy Harder's interview with Stuart Taylor Jr. discussing this week's hearings.

Was it Justice?:  Doug Berman reports over at Sentencing Law and Policy on Former Pennsylvania Senator Vincent Fumo's prison sentence.  Berman's first post points us to an article from the Patriot-News, reporting that Fumo "should consider himself lucky that he was convicted of misusing more than $2.4 million in taxpayers' money and not of selling crack cocaine."  Apparently, with credit for good behavior Fumo could walk out of prison in 2013.  His sentence is more lenient than Joseph J. Moore, arrested for being "in a car with three men who tried to buy $6,000 worth of crack cocaine from a police informant."  Moore will be serving 20 years in federal prison for his offense. Members of the defense bar were up in arms over this discrepancy, and, it turns out Federal Prosecutors are going to appeal the Fumo's sentence.  Berman's second post points to Maryclaire Dale's article on Philly.com which reports that Federal Prosecutors believe Fumo's sentence is "unduly lenient and unreasonable" and plan to ask the Justice Department to sign off on an appeal. 

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Habeas and War. David Rivkin and Lee Casey has this op-ed in the WSJ on ill effects of extending habeas corpus to military detainees.

Court Rejects Sex Offender's Release Bid:  A sex offender, who was mistakenly held in prison 11 months beyond his release date, has failed to convince the Iowa Supreme Court that he should be set free, while the state pursues a civil court ruling to hold him indefinitely.  AP writer Amy Lorentzen reports that while the Iowa court acknowledged that the state department of corrections miscalculated Galen Shaffer's release date, improperly keeping him behind bars, the court found the state was keeping Shaffer confined "under a good faith belief" that a later release date was correct.  The court concluded that Shaffer was "presently confined" for the purposes of initiating civil commitment proceedings under the state's Sexually Violent Predator Act.  The Court's decision is here.

October SCOTUS Arguments

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The U.S. Supreme Court has published its argument calendar for the beginning of the new term in October. The first case out of the box on the First Monday in October is an "original jurisdiction" case which, as usual, is a state suing another state, South Carolina v. North Carolina. (Yawn.)

Next up is Maryland v. Shatzer, on whether the don't-ask-again interrogation rule of Edwards v. Arizona has any time or place limits. CJLF's brief in that case is here.

The next day is federal criminal case day: US v. Stevens, Johnson v. US, and Bloate v. US.

The following Tuesday, October 13, features three state criminal cases (two of them on federal habeas): McDaniel v. Brown, Padilla v. Kentucky, and Smith v. Spisak.

Brown involves an exceptionally bad (even for the Ninth Circuit) sufficiency of the evidence decision, discussed here. Spisak involves an exceptionally bad (even for the Sixth Circuit) extension of existing precedent to overturn a reasonable state court decision, discussed here. Nineteen years after Teague and 12 after AEDPA, they still didn't get it. Padilla involves ineffective assistance of counsel, guilty pleas, and advising of immigration consequences.

News Scan

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Melendez-Diaz Fallout: Tom Jackman at the WaPo has this story on the practical difficulties potentially created by the lab-tech confrontation case. One nugget: the Manhattan medical examiner's office has such high turnover that it is common that the ME who did the autopsy no longer works at the office by the time of trial.

Sotomayor Hearings: James Taranto at WSJ writes, "Under normal circumstances, a judge who says the things Sonia Sotomayor has said during her confirmation hearings would not be able to win confirmation in a Senate with a solid Democratic majority.... She's practically a new Robert Bork!" No, he doesn't think she really is.

Shield Law. A student journalist claims a privilege not to turn over photographs of a murder he happened to be present for, AP reports from SF. No confidential sources of the type shield laws are intended to protect are involved in the case. California's [over]broadly written provision, Cal. Const. Art. I § 2(b), may actually allow this, and the trial judge has ruled in his favor.  Note to student: just because you have the right to do (or not do) something doesn't make it right. Privileges can and should be waived by the holder when there is a compelling reason for disclosure and when the reason for the privilege does not apply.

Blog Scan

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Hearings End Today - With Potentially Delayed Vote:  Today is the last day of hearings before the Senate Judiciary Committee votes on Judge Sotomayor's confirmation.  As Amy Harder has reported over on The Ninth Justice, Judge Sotomayor has faced questions from Senator Coburn (R-OK) on the Second Amendment, Senator Cornyn (R-TX) attempted to "[p]it Sotomayor against Obama", and Senator Charles Grassley (R-IA) asked her to address gay marriage.  One interesting comment involved the issue of identity politics, which Judge Sotomayor described as "politics based simply on a person's characteristics, generally referred to either race or ethnicity or gender, religion."  Harder reports that after Senator Lindsey Graham (R-SC) asked her if she embraced identity politics, Judge Sotomayor emphasized that as she understands it, the term is ""usually denigrated. And that I don't believe in. Whatever a group advocates, obviously it advocates on behalf of its interests, but I would never endorse a group advocating something that's contrary to some basic Constitutional right as it's known at the time."  This all seems to play into earlier accusations that Judge Sotomayor's "wise Latina" comment indicated she would not be an impartial Justice.  As Balkinization guest blogger Alexander Tsesis commented yesterday, Judge Sotomayor has done well defending herself in the face of such accusations.  He does note, that while Judge Sotomayor has made it sound as though she will remain impartial,  "let's not kid ourselves into believing that personality has no role in decisionmaking." If she is confirmed, we will get to see how Judge Sotomayor's personality plays a role in her decisionmaking."  As CongressDaily's Dan Friedman reports over on The Ninth Justice, the vote may be delayed until July 28th. 

"Revisiting Rosen":  Volokh Conspiracy blogger Randy Barnett follows the lead of Jennifer Rubin at Contentions, who wonders whether Jeffrey Rosen may have been correct to criticize Judge Sotomayor back in May.  Rubin writes "Rosen was trying to warn his liberal compatriots that they could do 'better' than Sotomayor. He was right and should get some credit for his effort."  For Rubin, the confirmation hearings have not helped Rosen's concerns that Judge Sotomayor may have the best command of technical legal details.  Rubin comments that "[w]hether examining her verbal skills, her command of the law or her intellectual acuity, I come away thinking she is one of the least impressive Supreme Court nominees to come along in recent memory." Barnett comments that "[a]fter forcing myself to watch much of the hearings, I wonder if those who criticized [Rosen] then are having any second thoughts today."   
This exchange between Senator Graham and Judge Sotomayor has raised some hackles:

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendment. It is a process -- an amendment process that is set forth in the document.

It doesn't live other than to be timeless by the expression of what it says. What changes is society. What changes is what facts a judge may get presented...

I would fully expect that ivory tower folks would have a conniption fit over that response, but I was surprised to read this scathing comment from Jan Crawford Greenburg, generally one of the most astute and evenhanded of the Court commentators.

That's nonsensical. Obviously, the name of the game is confirmation, but if you have 60 votes, why not explain your views on the role of the courts and liberal judicial philosophy? Justice Breyer wrote an entire book on this! He and Scalia have gone on the road to debate whether the Constitution is living or dead (I moderated one of their debates and just tried to stay out of the way). This is an easy one! It shouldn't be that difficult to knock it out of the park.

I disagree. The statement makes perfect sense, and she did hit it out of the park. She just didn't hit it in the direction many expected. The answer responds directly to the question, and it is a clear, unequivocal repudiation of the "living Constitution" nonsense. It appears that Judge Sotomayor recognizes a truth that has escaped many judges and nearly all law professors.

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A Liberal Backlash:  Jan Crawford Greenburg writes on Legalities that liberals are lashing out against Judge Sotomayor over some remarks made during her hearings.  According to Greenburg, not only is the Center for Reproductive Rights upset with Judge Sotomayor's performance, but the Constitutional Accountability Center's founder and President, Doug Kendall, has come out and said "empathy, perspective and understanding pretty much went out the window" during her testimony.  Georgetown Law Professor, and former Thurgood Marshall clerk, Mike Seidman declared himself "completely disgusted" by her testimony.  (Sidenote: Seidman did not sign last week's letter endorsing Judge Sotomayor).  As Greenburg notes however, Judge Sotomayor's performance has been surprising.  Yesterday, she "dance[d] around issues, decline[d] to defend liberal philosophy and [went] on to specifically reject the so-called legal approach of the man who nominated her, Barack Obama."  At one point, Senator Lindsey Graham (R-SC) commented she was sounding a lot like Chief Justice Roberts -- and asked, "Who are we getting here?"  Nathan Koppel reports on Wall Street Journal's Law Blog that after this morning's questioning, Republicans are also frustrated by Judge Sotomayor's responses.  According to Koppel, during a break Senator Jeff Sessions (R-AL) complained she was less forthcoming that Justices Alito or Roberts.

Should Parents Get Discounted Sentences?:  That's the question posed by guest bloggers Jennifer Collins, Ethan J. Leib, and Dan Markel on Freakonomics Blog today.  Their answer? "[S]entencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection."  According to Collins, Leib and Markel, the problem with sentencing discounts for parents is that it grants an unexpected windfall "to an offender for a reason unrelated to his crime[,]" and could give incentives to defendants with family ties "to seek out greater criminal opportunities..."  The authors realize that children do pay a cost for when their sole caregiver is incarcerated.  They argue, however, that "harms to innocent third parties should be ameliorated through the institutions of distributive justice, not criminal justice." In other words, children with incarcerated parents should receive state aid.  In the alternative, Collins, Leib and Markel propose that legislatures authorize "time-delayed sentencing to offenders with irreplaceable caregiving responsibilities." [Hat tip Doug Berman at Sentencing Law & Policy]

Upcoming National Sentencing Conference:
  Doug Berman's post over on Sentencing Law and Policy informs that the National Association of Sentencing Commissions' annual conference will be held in Baltimore, MD from August 2-4.  This year's conference is titled "15 Years of NASC: Looking Back, Moving Forward," and Berman believes it is "very timely and forward looking."  For those considering attending the conference we'll offer one more incentive - Kent will be part of Tuesday's panel addressing The Consequences of Escalating Incarceration Rates.

More on NC Racial Quota Act

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In the News & Observer, Michael Biesecker has this story about the NC House vote yesterday approving the Death Penalty Racial Quota Act (mislabeled Racial Justice Act). There is still a possibility this ill-advised, badly drafted measure won't make it out of the legislature due to a difference in the House and Senate versions.

In 2006, retired UNC Professor Elliot Cramer testified on an earlier version of the bill regarding the statistical studies claiming to show racial bias.

Given the large number of possible relevant variables and the small numbers of homicides in each judicial district, I do not see the possibility of any statistical study being able to adequately draw conclusions about racial disparities in administration of the death penalty....
I am agnostic on the issue [of the death penalty]. I am committed to the proper use of statistical methodology and I do not believe there is any statistical support for the view that the Death Penalty discriminates against African-Americans or anyone else.

The LA Times has transcripts of the hearing. From part 5, here are the portions about the death penalty, after the jump. Prior post on this portion of the hearing is here.
The Death Penalty Racial Quota Act (mislabeled Racial Justice Act, even though its purpose is to defeat justice) has passed the House in North Carolina. Winston-Salem Journal story here. Bill text here. It remains to be seen how this very badly written bill will be implemented in the state's courts. They could minimize or maximize the damage, as they choose.

Blog Scan

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Guess it is Baseball Season:  SCOTUSblog writer Kristina Moore gives us the "Box Score" for the number of times the the phrase "balls and strikes" and "umpire" or "umpires" emerged during Judge Sotomayor's confirmation hearings yesterday.  According to Moore, an "incomplete" review of the Senator's written statements and oral testimony revealed "balls and strikes" was used 11 times, "umpire" or "umpires" showed up 16 times, and "playing field" was used twice.  Baseball references date back to Chief Justice Roberts' 2005 confirmation hearings where he stated "Judges are like umpires."  If the analogy appears again, this just might be one more thing to contribute to the legacy of the Roberts' Court.

But The Hearings Covered More Than Baseball:  As Stuart Taylor Jr. points out on the Ninth Justice, some interesting remarks were made by senators during yesterday's hearings.  Taylor's post quotes some of the "more notable remarks" offered by 10 of the 19 committee members during the hearings.  He also comments on each of the statements, often demonstrating how each comment was skewed by the Senators' political views.  For example, Taylor shows Republicans relied on Judge Sotomayor's "wise Latina" comment, while Democrats appeared to use the hearings to criticize Justices Alito and Roberts.  At Blog of Legal Times, The National Law Journal's editor in chief, Dan Brown, recaps this morning's confirmation with Tony Mauro.  In the post, Mauro comments that Judge Sotomayor remained calm during questioning, but predicts more "Republican pushback" this afternoon.  He believes "Republican members of the committee will find her answers unsatisfying, especially her explanations of her controversial 'wise Latina' remark and others that have made it sound like she will bring her background and personal views to her decision-making."  But as Nathan Koppel points out over at Wall Street Journal's Law Blog, we know Judge Sotomayor does not plan on following the President's "follow-the-heart" principle.  Koppel writes that Judge Sotomayor stated "Judges cannot rely on what is in their heart," and grimaced "as if she had smelled rotten garbage."

Victim Access to Presentencing Reports:  Doug Berman has a quick post to yesterday's Sixth Circuit decision in In re Siler, No. 08-5215 (6th Cir. July 13, 2009).  In Siler,  Lester Siler sought access to the Presentence Reports (PSRs) of defendants who had violated Siler's constitutional rights while arresting him.  When the defendants, Campbell County law enforcement officers, pled guilty ot federal charges, the Silers sued them for civil damages.  Following discovery in the civil case, the Silers motioned for the defendants PSRs from the criminal cases.  Both the district court, and the Sixth Circuit, denied the motions.  The Sixth Circuit reasoned "[t]here is no apparent authority for the release of such documents in this context[,]" and the court "did not abuse its discretion...because PSRs are confidential, nonpublic documents, and the Silers did not show that they had a special need to have access to them."       

Hearings About Nothing

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We haven't said much about the Sotomayor confirmation hearings on this blog in the last couple of days, because there hasn't been much to say. Randy Barnett's prediction of the Seinfeld Hearings has regrettably proven correct. Day one was vacuous opening statements by senators and a very brief and nearly content-free statement by the nominee.

For those of us whose primary interest is criminal law, today's questions have been a huge disappointment. Despite being a major portion of the Supreme Court's docket, criminal law has been barely mentioned. On the one huge issue where major explanation is required, capital punishment, we haven't heard a blasted word.

 Update: Finally, a few words, very few, at 4:52 in the afternoon. Question by Senator Graham. SCOTUSblog's live blog reports the exchange as follows:

LG [Lindsey Graham]: what's your view personally on the death penalty.   SS[Sonia Sotomayor]: the S. Ct. has determined that the DP is constitutional in certain situations.   I have rejected challenges to the federal law in the one case I had, which is a reflection of my view.   LG:   as an advocate, did you challenge the DP.   SS:   I never litigated it.   LG: did you sign a memo.   SS:   I signed a memo for the Board to consider on behalf of the Latino community on reinstating the death penalty.

At about 5:00, Sen. Durbin, of all people, asks about Justice Blackmun's notorious dissent in Callins v. Collins, 510 US 1141, 1143 (1994), and about the PRLDEF memo. [Notorious is my opinion; Durbin probably does not agree.]

Senator Durbin is very concerned about all the innocent inmates on death row in Alaska and Massachusetts. Reminds me of an old Mary Tyler Moore episode in which Phyllis was on a crusade to abolish capital punishment in Minnesota, completely undeterred when Mary told her Minnesota didn't have capital punishment.

Judge Sotomayor did not commit herself, but the tone of her answer gives me a little better feeling she will not go the Blackmun route on us.

After these updates, the title of this post isn't quite right, but the titles are tied to the URL's in the blog's Movable Type software, and it's better not to tinker with the machinery of blogs, as Justice Blackmun might have said.

News Scan

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Jane Roe Arrested: Anti-abortion activist Norma McCorvey, better known as Jane Roe of Roe v. Wade, 410 U.S. 113 (1973), "was arrested after she and another protester started yelling during the opening statement of Sen. Al Franken (D-Minn.)" during the Sotomayor confirmation hearings, reports Paul Kane in the WaPo.

"Two Wrongs... President Obama's high court pick deserves the deference that Sen. Obama failed to show." That's the title of an editorial in the WaPo.

Ohio continues to do remarkably well toward the goal of an effective death penalty. In 1991, Joseph Daron kindly picked up a hitchhiker near Cincinnati. Unknown to him, John Fautenberry had killed before and would kill again. The toll would eventually reach five people in four states. The U.S. Supreme Court denied a stay this morning. No dissent is noted. Justice was finally carried out two hours later. Meghan Barr has this story for AP.

Stay in Double Jeopardy Case

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In Powell v. Kelly, No. 09-21, the Supreme Court has granted a stay pending its consideration of the certiorari petition. The case involves application of the Double Jeopardy Clause to findings of aggravating circumstances in a capital case. The Fourth Circuit opinion is here. I'm a bit puzzled by the absence of any discussion of the Bullington line of cases.

Powell attempted to rape a 16-year-old girl and then murdered her. He also raped and attempted to murder her 14-year-old sister. The punishment in this case is certainly thoroughly deserved.

Blog Scan

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Confirmation Begins:  Judge Sotomayor's confirmation hearings are underway, and SCOTUSblog provided a "LiveBlog" of today's proceedings.  As SCOTUSblog reported yesterday, today's session was occupied primarily by the opening statements of members of the Senate Judiciary Committee.  Long time Supreme Court reporter Tony Mauro's thoughts on today's hearings are available on Blog of Legal Times.  Sometime this afternoon, Judge Sotomayor made her opening statement to the Committee.  In her opening statement, Judge Sotomayor summed up her judicial philosophy in four words: "fidelity to the law."  She believes that her record "reflects [her] rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress's intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court."  The Ninth Justice has provided a copy of her statement here.  Also blogging on The Ninth Justice today, Stuart Taylor Jr. comments that Judge Sotomayor should not "disclose her views on issues that might come before her, except at a high level of generality[,]" as she is questioned by Senators.  He reminds us that Robert Bork was not confirmed after he "detail[ed] his views on just about every hot issue."  He also argues that a judge can refuse to say what she thinks about the issues because "answering such questions threatens judicial integrity and independence, as distinguished from impartiality."  He believes that when Senators question a Supreme Court candidate "[t]hey are pressing for implicit commitments akin to campaign promises."  These promises could later conflict with any views the nominee privately expressed to the White House, and could cause the Justice to act impartially.  This strange reality has led Taylor to conclude that it is better to evaluate nominees' views based on their pre-nomination records than to corrupt the selection and confirmation process. 

Gender Plays a Role in Death Penalty Administration:  Over the weekend Doug Berman posted a link to this article, and asked should a federal judge "feel a special obligation to impose a sentence of death if he believes that the jury recommended a life sentence only or primarily because the defendant here was a woman?"  Berman's question was prompted by TimesDaily reporter Dennis Sherer's account of the conviction and sentencing of Christie Michelle Scott in Russellville, Alabama.  According to Sherer, Scott killed her 6-year-old son so she could collect on three life insurance policies that totaled $175,000. A jury convicted her of three counts capital murder and recommended that that she be sentenced to life in prison without parole.  The district judge is not required to accept the jury's recommendation and could instead sentence her to death.  If this happens, Scott will be one of ten women sentenced to death in Alabama since 1973.  If she receives the sentence she will join the four women, and 199 men sitting on Alabama's death row.  Of course, gender is not the only reason so many more men receive the death penalty. Bryan K. Fair, a professor of law at the University of Alabama, commented "The kinds of offenses that can be punished by death are typically committed by men.  In our society in general, violent crimes are committed most often by men."

Is It Legal for the CIA to Kill Bin Laden?:  This is the question posed by Siobhan Gorman that tells us the the CIA didn't mention to Congress a secret initiative that was an attempt to carry out a 2001 presidential authorization to capture or kill al Qaeda operatives.  Searcey believes this "skirts the legal elephant in the room in the most recent revelation: if our CIA's shaggy assassins (trust us, we've seen those secret agent types on the Iraqi battlefield and they appear to never, ever shave) came across Osama bin Laden in a cave, can they legally kill him on the spot?"  According to this report, from the Congressional Research Service of the Library of Congress, resident Ronald Reagan issued an executive order in 1981 prohibiting assassination, directly or indirectly - and specifically singled out the "Intelligence Community."  This could be in direct conflict with the joint resolutions authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Clinging On to De Novo Review

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Norwood v. Vance, decided by the Ninth Circuit last Thursday and noted in Friday's Blog Scan, is a prisoner suit involving denial of outdoor exercise. The trial judge denied a jury instruction regarding deference to prison officials because "deference" was not defined. The panel majority (Kozinski, Callahan), noted that the word "deference" is a common English word, not Urdu or Klingon. The dissent (Thomas) disagreed with the holding but further noted that there is no Klingon word for "deference."

I have often wondered why many federal judges have such difficulty with the "deference" standard of AEDPA, 28 U.S.C. § 2254(d), desperately clinging on to the 1953-1996 de novo review standard. See, e.g., our prior posts on Irons v. Carey, here and here. Maybe this helps explain it.

Serial hat tips to Eugene Volokh and VC commenter Dave N.

News Scan

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Green Rage:  A hat tip to Sentencing Law and Policy for this story, by Jennifer Sullivan from The Seattle Times, reporting that a Washington man has received a 21 month prison sentence for assaulting a fellow golfer. It seems that a year ago, James Compton and his foursome on the Auburn Golf Course, became annoyed with the slow play of the party ahead and complained to the greens marshal.  Nicholas Shampine and his party counter-complained that Compton's group was too noisy.  Eventually the two groups confronted each other, and after some shoving, Shampine demonstrated his prowess with the six iron by striking Compton in the temple.  The victim had to be hospitalized and still suffers memory loss and confusion.  Yesterday a judge gave Shampine the upper range sentence for second degree assault.  What factor persuaded the judge to levy the upper term?  One doubts that Shampine completed his follow through during the stroke.    

DC Police Checkpoints Blocked:  A unanimous panel of the U.S. Court of Appeals for the District of Columbia has announced that police checkpoints in a crime plagued Washington neighborhood are unconstitutional. At the checkpoints, which were announced in advance, D.C. police stopped motorists entering a crime plagued neighborhood to ask if they lived in the area and the nature of their business there.  Last year the Partnership for Civil Justice filed suit to block the checkpoints on behalf of three drivers who had been stopped. AP writer Brett Zongker reports that the court's ruling in Caneisha Mills v. D.C. cited several Supreme Court cases as precedent.  In ordering the case back to the district court for reconsideration, the ruling states: "The harm to the rights of appellants is apparent. It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access." 


Blog Scan

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Polls Show More than 80% Support for the Death Penalty:  At Homicide Survivors, Dudley Sharp posts that "[w]hen polls correctly ask about true capital, death penalty eligible murders, support" remains high for the death penalty.  Sharp points out that the polls which correctly ask whether the respondent supports a death sentence for capital murder demonstrate that support remains very high.  In other polls, where respondents have been asked whether they support the death penalty for murder, positive responses are only 60-75% of the time.  Sharp dismisses these as "irrelevant" because they asked the wrong question.  He believes that the "error rate" (80% vs. 65%) is due to several factors, such as reluctance to voice support unless specific details of the murderer and the crime is provided.  A good example?  In a 2001 Gallup poll concerning Timothy McVeigh's execution "57% of those who say they oppose the death penalty, generally, actually do support it for McVeigh's execution (81% supported the execution of McVeigh, 16% opposed (Gallup 5/02/01)), while 65% offer general support for executions for "murder," with 28% opposed (Gallup, 6/10/01)."

Sotomayor Hearings - Where Will GOP Focus?:  Amy Harder writes at the Ninth Justice that after polling ten Supreme Court watchers, the NationalJournal.com has found that the GOP is most likely probe Judge Sotomayor on her decisions in Ricci v. Destafano and Maloney v. Cuomo.  The ten respondents were given seven choices, ranging from Judge Sotomayor's role in Didden v. Village of Port Chester (property rights case) to her views on abortion, and asked to rank the choices.  Each respondent had to give reason for his or her ranking.  For one expert, Ricci ranked first because "Ricci is the worst, and the most unpopular with voters, and she is the most vulnerable on that, in part for the sweep-it-under-the-rug approach and recent Supreme Court rebuff."  To find out if these Supreme Court watchers were right, take Crawford Greenburg's advice on Legalities and check out ABCNews.com livestream of the hearings next Monday, 10a.m.ET.

Split Ninth Circuit Decides When Prison Officials Are Liable for Depriving Outdoor Exercise:  Doug Berman has a quick post at Sentencing Law and Policy on Norwood v. Vance, a Ninth Circuit decision granting qualified immunity to prison officials who denied prison inmates outdoor exercise during four separate lockdowns after serious inmate assaults on staff.  Gregory Norwood was incarcerated at a maximum security prison near Sacramento, CA, during a two-year period of exceptional violence against prison staff and other inmates. Norwood brought a §1983 action, claiming the officials had violated his Eighth Amendment right to outdoor exercise.  Judge Kozinski's ruling on the merits states that in qualified immunity cases, and under Saucier v. Katz, "[t]he relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."  For two of the three Judges on the panel, it would be "particularly odd to hold that liability attaches in this case, where hindsight validates defendants' decisions."  Eugene Volokh also has a post on Norwood, which focuses on the majority and the dissent's understanding of the word "deference" when discussing a jury instruction. 

Federalist Society Debate on Judge Sotomayor:  Both Eugene Volokh and Edward Whalen have posts linking the Federalist Society's Online debate on Judge Sotomayor's nomination.  Volokh's post is available here on Volokh Conspiracy, and Whalen's is available on NRO's Bench Memos.  Whalen is actually taking part in the debate, along with Tom Goldstein, Louis Michael Seidman, David Stras, and Wendy Long.  

Sotomayor's Crim Record

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Jerry Markon at the WaPo has this story on an analysis of Judge Sonia Sotomayor's record by seeing where she comes down when the panel splits. She leans somewhat more to the defendant in criminal cases than the Second Circuit average.

Experts said the results show that Sotomayor's ascension would probably not alter the balance of a high court closely divided between conservatives and liberals such as Souter. But they also provide a more nuanced picture of the 17-year federal judge than those offered by her supporters and her critics.

The White House has portrayed Sotomayor as a tough-on-crime moderate who favors the "judicial restraint" often sought by Republicans, while conservatives call her a liberal activist whose decisions are influenced by ideology and her Latina heritage.

"She looks like a classic Democrat," [University of South Carolina political scientist Donald] Songer said. "I don't think it's fair to classify her as tough on crime. I would use the term 'moderately liberal,' not 'moderate.' But she certainly seems to be in the mainstream of Democratic judges."

The split decisions, which are heavy on the criminal and business cases that tend to dominate the Supreme Court's docket, show Sotomayor voting to overturn convictions or sentences eight times, at a rate comparable to that of other Democratic-appointed judges. Six times, she affirmed them.

News Scan

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Illinois Ponders Inmate Release:  In what one candidate for Governor is calling "fear-mongering" to get the public to support a tax increase, current Illinois Governor Pat Quinn proposes releasing up to 10,000 criminals from prison to save money during the state's budget crisis.  CBS newsman Mike Flannery reports that an estimated $125 million could be saved by giving early releases to so-called non-violent inmates and laying off about 1,000 corrections officers.  Other states, including California, have also proposed abandoning government's primary obligation to protect the public by releasing criminals to save money. Question: Is a non-violent criminal someone who had not yet been convicted of a violent crime?  By that reckoning, until he murdered five innocent people in South Carolina two weeks ago, Patrick Burris was a non-violent offender.  

Challenge to Breathalyzer Upheld:  LA Times writer Maura Dolan reports that today, a unanimous California Supreme Court ruled that a DUI defendant may present evidence showing that the results of a breathalyzer test may not accurately reflect his blood/alcohol level.  The Court's decision in People v. McNeal noted that "Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing."  The decision also cited holdings from appellate courts in Vermont and Arizona which had reached the same conclusion. 
 

Blog Scan

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Ineffective Counsel at the Plea Stage:  Doug Berman posts on Sentencing Law and Policy that yesterday, in Williams v. Jones, No. 06-7103 (10th Cir, July 8, 2009), the Tenth Circuit determined that Mr. Williams' attorney was deficient at the plea stage and Mr. Williams received ineffective assistance of counsel in rejecting a plea offer.  It concluded that the Oklahoma Court of Criminal Appeals (OCCA) had not fashioned a constitutionally permissible remedy for its determination that Mr. Williams received ineffective assistance of counsel at the plea stage.  The Tenth Circuit remanded the case to the district court.  Judge Gorsuch's dissenting opinion stated: "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial."  He believed that since Michael Williams had admitted to receiving a fair trial, the Tenth Circuit could not disturb its outcome.  He wrote: "As the Supreme Court has repeatedly held, plea bargains are matters of executive discretion, not judicially enforceable entitlement; due process guarantees a fair trial, not a good bargain."  Commentors on Berman's blog seem to think the case cert. worthy - so stay tuned. 

As the Majority Goes, So Goes Sotomayor:  At SCOTUSblog, Kristina Moore posts news of a Brennan Center for Justice study that found Judge Sotomayor consistently voted with the mainstream of Second Circuit judges when deciding issues of constitutional law.  The study looked at every constitutional case (1,194 total) decided by the Second Circuit during the decade of Judge Sotomayor's service.  Apparently, Judge Sotomayor voted with the majority in 98.2% of constitutional cases.  After examining all the cases, the Brennan Center for Justice concluded that, in the area of constitutional law, Judge Sotomayor is not an activist Judge. "Any honest reading of the facts make it abundantly clear that Judge Sotomayor is a mainstream jurist."  Charlie Savage nicely summarizes the study from the "liberal-leaning legal center" at New York Times' "The Caucus."  Savage reports that in 44 criminal law cases, Judge Sotomayor voted with the majority every time.  David Ingram also posts on the study at Blog of Legal Times.  As if to counter the release of the report, Robert Alt posts on "Sotomayor's Activist Cases" over at NRO's Bench Memos.  He says it will be a daily feature on Bench Memos throughout her confirmation hearings. Today's post focuses on Maloney v. Cuomo, a post-Heller Second Amendment decision.    
A recent decision out of New York holds the Static-99, a common actuarial measure of sex offender recidivism, as inadmissible under Frye. In State v. Rosado, 2009 NY Slip Op 29290 , Judge Riviezzo holds:

In the immediate case, respondent's STATIC-99 score of "4" is considered to be a medium-high risk of reoffending. Under the "new" norms, assuming future admission under Frye, that risk percentage varies from 8.2 % to 27.3% over 10 years. Interestingly, respondent's score of "4" - clearly not low, however not squarely high - provides the perfect example of the pitfalls of admitting the STATIC-99 at a jury trial. The testimony could arguably benefit respondent if, for example, the jury believed that the risk was in fact closer to 8%, but could be greatly prejudicial to respondent if the jury accepted testimony that the risk was in fact closer to 27%. However as discussed above the score of "4" has at best marginal relevance to the issue of whether respondent has a mental abnormality in the first instance, since the score only means that respondent shares certain characteristics of a group found to reoffend at a certain rate without telling the jury anything about respondent's volitional capacity. Given the tenuous connection between a STATIC-99 score and volitional capacity, a jury could easily be confused by the evidence and give it undue significance in either direction. In this case, a jury, believing this score to be low, might wrongfully conclude that respondent has no mental abnormality when in fact one might exist, even if ultimately confinement might not be required due to his "lower" risk of reoffending.  
There's lots of interesting issues discussed in this case, including NY's unique bifurcated commitment statute and whether recidivism tools such as the Static-99 can be used to establish a mental abnormality.    Interestingly, it was the state which argued for exclusion of the evidence. 

But the case is noteworthy for its extended discussion of the Static-99 tool itself.  To be fair, the disparate range of recidivism rates that the court seems concerned about center on the fact that recidivism rates generally go up over time.  The instrument itself provides different recidivism rates depending on the length of follow-up. 

Considering the Source

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If a member of the lunatic left certifies that you are moderate, does that help your cause? Very doubtful.

David Ingram at BLT and Kristina Moore at SCOTUSblog have posts regarding a letter signed by a bevy of law professors saying, among other things, that SCOTUS nominee Sonia Sotomayor's "opinions reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution. She pays close attention to precedent and has proper respect for the role of courts and the other branches of government in our society."

So who signed the letter? Of the names I recognize, most are dyed-in-the-wool lefties. Jeffrey Fagan and Erwin Chemerinsky are on the list. There is Goodwin Liu, author of a misleading hatchet job against Justice Alito three years ago, refuted here. There is Charles Ogletree and Duncan Kennedy. These are the folks who consider genuine moderates to be right-wing. Enthusiastic support from them is cause for concern, not reassurance. Given how skewed their view of the Constitution is, their opinion that someone is faithful to the Constitution is worth zero at best and a substantial negative value at worst.

Oh yeah, there is also ambassador-nominee Douglas Kmiec.

There is nobody on the list from George Mason U., which seems to be the primary abode for law professors of sense these days. I don't see any Volokh Conspirators on it. I didn't recognize anyone active in the Federalist Society (except maybe Kmiec, not sure if he's persona non grata there now).

So should we assign this letter a zero value or a negative? I'm inclined to score it zero. Although the opinion of some of the folks on the list is a contrarian indicator, it is only a weak indicator. Reading the opinions oneself is a far better way to make a judgment, Harry Reid notwithstanding.

Update: Jonathan Adler weighs in at VC here.

News Scan

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Blago Aid Pleads Guilty:  The Chief of Staff for former Illinois Governor Rod Blagojevich has pleaded guilty to a single count of wire fraud and agreed to testify against his former boss, according to this AP story by Legal Affairs Writer Mike Robinson.  John Harris admitted in his plea agreement that he repeatedly talked with Blagojevich about exchanging the Governor's appointment to fill President Barack Obama's Senate seat for money - like trading the seat for a high paying job. In one conversation, Blagojevich allegedly told Harris the he wanted to receive a candidates entire campaign fund in exchange for the appointment.  "I have never met a person who is going to be a better witness than John Harris is going to be," Harris' attorney told reporters.

Virginia Murderer Claims Double Jeopardy:  A man convicted of the murder and attempted rape of a 16-year-old girl has asked the U.S. Supreme Court to halt his execution.  This AP story reports that Paul Warner Powell was originally convicted and sentenced to death for of the murder of Stacie Reed.  He was also convicted, and sentenced to three life terms, for the abduction, rape and attempted murder of her 14-year-old sister.  In 2001, the Virginia Supreme Court overturned the capital murder conviction, holding that the state had failed to prove the robbery aggravating circumstance against Reed.  It also held that the rape and murder of her sister did not qualify Powell for capital murder.  Thinking that he could not be tried for capital murder again, Powell wrote the prosecutor a obscenity-laced letter explaining in detail how he had attempted to rape Stacie before he killed her.  Armed with  new evidence, the Commonwealth's Attorney promptly sought and won a conviction and death sentence against Powell on the new charges of murder and attempted rape.  Powell's claim of double jeopardy has since been rejected by every court which has reviewed it, most recently in an opinion from the 4th Circuit U.S. Court of Appeals on habeas corpus.  Barring a stay by the Supreme Court, or clemency by Virginia's Governor, Powell will be electrocuted (his choice) on July 14.


Blog Scan

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Republican SCOTUS Nominees Outlast Democrat Candidates:  Amy Harder and Chris Szymanski report at The Ninth Justice that a recent NationalJournal.com analysis of Supreme Court nominees reveals "justices picked by Democrats have served about five years less on average than those picked by Republicans."  Excluding the current members on the Court, GOP candidates tend to serve 20 years, while Democratic picks average 15 years of service.  The analysis shows that of the eleven Justices appointed between the ages of 53 and 57, three (Justices Stevens, Breyer and Alito) are still on the Court, two left early (Abe Fortas and Arthur Goldberg) and the remaining 6 served an average of 14 years.  Judge Sotomayor is 55, and she has been nominated by a Democrat. Will she beat the odds and serve more than 15 years?

Texas Abolishes LWOP for Juveniles:  Doug Berman posts on Sentencing Law and Policy that he is "quite pleased and impressed that Texas passed legislation to reduce sentences for certain juvenile killers[,]" but also "troubled" by the media's lack of interest in the legislation.  On June 19, 2009 the Texas Legislature passed legislation abolishing life without parole for juveniles and establishing a 40-year minimum for juveniles convicted of capital murder.  The Supreme Court granted certiorari in two juvenille LWOP cases, Graham v. Florida and Sullivan v. Florida, back in May.  Texas' new legislation could prove relevant to the Court's decision.

Altering Prosecutor's Obligations with Federal Rule of Criminal Procedure 16:  At Blog of Legal Times, Mike Scarcella reports that the Judicial Conference Advisory Committee on the Rules of Criminal Procedure may amend the rules of criminal procedure to require prosecutors to disclose any exculpatory information to the defense.  Back in April, Judge Emmet Sullivan of U.S. District Court for the District of Columbia (the same Judge Sullivan who presided over Ted Stevens' trial) urged the committee re-examine amending Rule 16 to require the disclosure of any exculpatory information.  According to Scarcella, on July 2nd, Chairman Judge Richard Tallman responded to the request.  Apparently, the Justice Department has created a working group to focus on the issue.  The working group will report to the committee in October. 

Partition Ratio

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Tomorrow, the California Supreme Court will announce its opinion in a drunk-driving case, People v. McNeal, S157565, dealing with the relationship between the breath alcohol measured by the breathalyzer and the blood alcohol level specified in the statute.

Blog Scan

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SCOTUScast on Cone v. BellThe Federalist Society has posted Kent's commentary on the Supreme Court's decision in Cone v. Bell (07-1114).  Kent summarizes the case history, and then delves into the Court's decision.  As Kent says, "In terms of the law governing review of criminal cases on habeas corpus, this decision changed very little.  Given the clear guilt of the defendant and the minimal mitigating value of his evidence, we have to wonder why the Court accepted it.  Perhaps it wished to send a message to prosecutors in lower courts that it takes these nondisclosure things very seriously and wants them reviewed very carefully..."  CJLF's brief is available here.  

Criminalizing Terrorist Support:  At SCOTUSblog, Lyle Denniston reports on the Government's appeal to the U.S. Supreme Court in Holder v. Humanitarian Law Project.  Since 1996, under AEDPA, it has been a crime to provide "material support or resources" to any group designated by U.S. officials as a "foreign terrorist organization," but in December 2007, the Ninth Circuit struck down several parts of the law, finding them unconstitutionally vague and that they threaten free speech rights of those who would support non-violent activities of the designated organizations.  The Justice Department appealed the decision, asking the Supreme Court to grant certiorari "because the material-support statute is an important tool in the Nation's fight against international terrorism."  Today, the Humanitarian Law Project filed its Brief in Opposition.  The Humanitarian Law Project has also filed a cross-petition asking the Supreme Court to review the provisions of the law that the Ninth Circuit upheld, if the Court decides to grant certiorari.  If the Court grants review, it will be asked to determine whether the parts of the law that criminalize support for terrorist groups through "training," "expert advice or assistance," or "service" are too vague.  If it also accepts the cross-petition, the Court may be review the Ninth Circuit's decision to uphold the parts of the law that make it a crime to provide assistance to a designated organization through "personnel" or "scientific or technical knowledge."

ABA Unanimously Finds Judge Sotomayor "Well-Qualified":  At Blog of Legal Times, David Ingram reports that the ABA's Standing Committee on the Federal Judiciary has given Judge Sotomayor it's highest rating.  It is the same rating that it gave the past four additions to the Court.  Since the end of May, a team of law professors, lawyers, Supreme Court law clerks and other experts familiar with the high court have examined Sotomayor's legal writings.  According to Amy Harder, at The Ninth Justice, "[t]he evaluation doesn't take into account a nominee's philosophy or ideology..."    

Mexico Election

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Sunday was election day in Mexico, and the big news was that the old machine, the PRI, won big over the incumbent PAN. PRI is "repackaging itself as a modern party that had shed a corrupt and authoritarian past," reports Ken Ellingwood in the L.A. Times.

The reason we mention the election here is a fascinating footnote, curiously not mentioned in either the LAT's story or the NYT's. The Green Party racked up 10%, campaigning vigorously on a restore-the-death-penalty platform, Angela Kocherga reports for KVUE in Austin. That places them only a shade behind the main leftist party, the PRD, which just three years ago was a contender for the top prize.

The Reason for Three Strikes Laws

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Mitch Weiss reports for AP:

The serial killer who terrorized a South Carolina community by shooting five people to death before police killed him Monday was a career criminal paroled just two months ago, authorities said....

Burris had a long rap sheet filled with charges such as larceny, forgery and breaking and entering from states across the Southeast, including Florida, Virginia, West Virginia and Maryland. He had been paroled from a North Carolina prison in April after serving nearly eight years.

"Look at this," Lloyd said, waiving a stapled copy of Burris' criminal record. "This is like 25 pages. At some point the criminal justice system is going to need to explain why this suspect was out on the street."

Note that larceny, forgery, and breaking and entering are "nonviolent" offenses. If the let-em-out crowd were correct, this record would make the "offender" (as they like to call criminals) no more likely to commit a violent offense than the rest of us. But they are not correct. Criminals do not specialize to anywhere near the degree they would have us believe.


News Scan

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When Bullying Becomes Assault:  An apparent increase in violence between students has resulted in aggressive enforcement of anti-bullying laws in dozens of states, with police being called to investigate everything from cyber-bullying to sexual assault according to this AP story by Christine Armario. "It's starting to become more physical, more sexual, and it's not just emotional bullying like we've seen in the past," said an Ohio attorney representing a high school basketball player attacked by three teammates while waiting for a bus to take them to practice.  The story provides some other examples, including the sexual assault of a Tampa middle school student with a hockey stick. The story cites a U.S. Education Department and U.S. Justice Department study that found 32% of students between 12 and 18 experienced bullying during the 2007 school year. 

Missing Girl Victim of Serial Killer:  Police now believe that Amber Swartz-Garcia, a 7-year old Bay Area girl who went missing twenty-one years ago, was murdered by Curtis Dean Anderson, who died in 2007 while serving a prison sentence for murdering two other young girls.  San Francisco Chronicle writer Henry K. Lee reports that, the month before he died of liver and kidney failure, Anderson confessed to kidnapping Amber from her front yard in Pinole, CA and killing her in a Tucson motel room.  The little girl's body was never found.  In an earlier interview Anderson bragged to a Chronicle reporter that he had killed "many girls, and you'll never find them all."  According to a source familiar with the Anderson investigation, he is also a suspect in the disappearance of a young girl in Arizona.   

Blog Scan

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A Look Back at Supreme Court's Criminal Law Cases:  At Concurring Opinions, guest-blogger Jenia Turner tells us her thoughts on the Supreme Court's criminal procedure decisions.  She writes that she is particularly interested in exploring the Court's suggestion "that 'truthseeking' was a central concern of our criminal justice system and may trump individual liberties in certain cases."  Turner believes that the Court is willing "to elevate the position of truthseeking relative to individual rights."  However, she also believes that "the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system."  She cites D.A.'s Officer v. Osborne as an example.  According to Turner, Osborne held a prisoner had no "due process right to DNA evidence after conviction[,]" due to the State's interest in finality.

When Confirmation Comes, What Roles Do Judicial Ideology & Qualifications Play?
  As a follow up to last Thursday's post, the Ninth Justice offers up an excerpt from Lee Epstein and Jeffrey A. Segal's book, "Advice and Consent: The Politics of Judicial Appointments," to illustrate how ideology and qualifications affect Senator votes during confirmation hearings.  The excerpt focuses on the confirmation hearings of Justice Ginsburg and Robert Bork.  According to the passage, senators typically vote for candidates who mirror the Senators' ideologies.  In the case of Justice Ginsburg, however, it seemed senators were willing to "support a politically remote candidate if they perceive that candidate to be highly meritorious..."  On the other hand, when it came to Robert Bork, Segal and Epstein state that even though "Bork's qualification rating was higher than [William] Rehnquist's in 1986" and Justice Breyer's rating, the media focus on his ideology may have ultimately done him in.  Epstein and Segal conclude that because the President has stuck to nominating ideological moderates since Bork "it is too soon to tell whether this purely ideological opposition to an otherwise well-qualified nominee was an anomaly or a portent of changes to come."  Dave Ingram at the The National Law Journal explains how Judge Sotomayor's history and ideology could cause certain themes to emerge during her hearings (h/t Sentencing Law and Policy).

Death Penalty Protects Innocents
:  Yesterday, Homicide Survivors posted a piece by Dudley Sharp that argues that the Death Penalty provides "More Protection for Innocents."  Sharp's post argues that out "[o]f all the government programs in the world, that put innocents at risk..." there is not one with a "safer" record than the US death penalty.  Sharp argues that evidence of enhanced due process, incapacitation, deterrence and fear undermine the "false promise" that life without the possibility of parole is better than a death sentence.  According to Sharp, "[h]istory tells us that lifers have many ways to get out..." and "[i]n choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives." 

Close, but No Revolution

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Tony Mauro at NLJ and Bob Egelko at the SF Chron have SCOTUS term wrap-up articles with similar themes. Cases in which the "conservative" position prevailed this term were not blockbusters; they were decided on narrower grounds than they might have been. Yet both stories imply this may be part of a strategy to build toward blockbuster decisions in the future.

Egelko: "Still, for the court's conservatives, 'it was a term pregnant with possibilities for the future,' said Erwin Chemerinsky, a liberal scholar and dean of the UC Irvine law school."

Mauro's piece carries the subhead, "Decisions suggest chief justice may be slow-playing Court's march to the right." "Slow-playing" is a poker term for betting a powerful hand passively, with calls or small raises rather than large raises, to bait more players in and build the pot before dropping the hammer.

Are major changes in the offing for criminal law? Maybe. Justice Kennedy is hard to predict. Justice-to-be Sotomayor may be more favorable to the prosecution in criminal matters than Justice Souter was, but it is hard to predict whether and in what direction she may drift. Justice White had a generally pro-prosecution orientation from the beginning of his long tenure to the end, while Justice Souter seemed that way at first and then drifted. We'll have to wait and see.

Update: James Taranto weighs in at the WSJ:

Still, it is fair to say that the Roberts court is only as conservative as Justice Kennedy will allow it to be. On subjects like abortion and the exclusionary rule as well as on race, that is only very modestly conservative....
By declining to resolve major constitutional questions now, the justices leave open the possibility that a future majority, more liberal and less scrupulous about constraining its power, will decide them. Such is the hazard of judicial restraint.

In other words, the "slow-play" metaphor doesn't work, because Roberts' hand isn't really strong.

Blog Scan

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Media Study Reveals a "Conservative" Supreme Court:  At The Ninth Justice, Amy Harder and Charlie Szymanski report that a study by Northwestern law professor Lee Epstein has revealed that since 1937 "[t]urnover on the Supreme Court has led to increasingly conservative nominees and likely a more conservative court..."  The study measures a nominee's ideology according to the Segal-Cover score, which examines newspapers' editorials written before confirmation to gauge perception of a nominee.  This means that the results will not be perfect.  Harder and Szymanski write: "Assumptions or bias in the media could skew the results, and justices sometimes change while serving."  After all, Justices Stevens and Harry Blackmun both "scored as safely conservative nominees," but later emerged as liberals.  The study does lend credibility to claims that none of the President's potential nominees would have "shift[ed] the court's conservative slant."

Tennessee's Lethal Injection Procedures:  Doug Berman posts news of the Sixth Circuit's decision to uphold Tennessee's lethal injection procedures on Sentencing Law and Policy.  According to Berman, a split Sixth Circuit panel has found Tennesse's procedure to be "constitutionally sound."  Today's decision in Harbison v. Little, No. 07-6225 (6th Cir. July 2, 2009), relied on Baze v. Rees, which upheld Kentucky's lethal injection protocol.  Since Tennessee's protocol was "substantially similar" to Kentucky's, the Sixth Circuit vacated the lower court's decision in favor of Little, and remanded for further proceedings.  Judge Clay dissented, believing that the Sixth Circuit's ruling "usurp[ed] the district court's role as a factfinder and decides an issue never presented to the district court..."

Judge Kozinski Avoids Punishment:  At Blog of Legal Times, Tony Mauro reports on a Third Circuit memorandum opinion that admonishes Judge Kozinski but concludes no further punishment is needed.  The opinion states that Judge Kozinski was "judicially imprudent" when he maintained sexually explicit material on a personal web site and failed to prevent public access to it.  This all began in 2008 when the Los Angeles Times reported that Kozinski's site contained explicit material, at a time when he was about to preside over an obscenity trial.  Judge Kozinski declared a mistrial and asked th Ninth Circuit's judicial council to look into his conduct.  Today's Third Circuit decision puts the issue to rest by concluding that Judge Kozinski's "acknowledgment of responsibility together with other corrective action, his apology, and our admonishment, combined with the public dissemination of this opinion.." was sufficient punishment.  Jonathan Adler's post on the decision can be found at Volokh Conspiracy, and Doug Berman has this post on Sentencing Law & Policy.  Ashby Jones writes "we can't say we're surprised" at Wall Street Journal's Law Blog.   Our previous blog posts on the incident can be found here, and here.    
 
Pretty Cool... Today, SCOTUSblog links to this hyperlinked version of Ricci v. DeStefano at PARADOCS.  The file is large (25MB), but its size may be justified.  If you download the decision, you wil be able to access relevant U.S. Codes and Supreme Court decisions (in Westlaw format) just by clicking on the link.  Think of all the time this will save busy attorneys, or lowly research clerks...

MySpace Case Conviction Tossed

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Linda Deutsch reports for AP:

A federal judge on Thursday tentatively threw out the convictions of a Missouri mother for her role in a MySpace hoax directed at a 13-year-old neighbor girl who ended up committing suicide.
U.S. District Judge George Wu said he was acquitting Lori Drew of misdemeanor counts of accessing computers without authorization but stressed the ruling was tentative until he issues it in writing. He noted the case of a judge who changed his mind after ruling.

What Drew did is beyond despicable, but it was not a violation of the federal computer hacking law, 18 U.S.C. § 1030, the law she was accused of breaking in this case. A law that makes it a crime merely to breach a contract would be scary indeed, and Congress should not be lightly presumed to have enacted such a law.

If the criminal case is indeed over, let us hope that Drew at least gets socked with a civil judgment so large she will never again own any nonexempt assets.

News Scan

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Thou shalt not tweet. "The Michigan Supreme Court has laid the hammer down on gadget-happy jurors in banning all electronic communications by jurors during trial, including tweets on Twitter, text messages and Google searches," reports Tresa Baldas in the NLJ.

TSA going too far?
WSJ air travel columnist Scott McCartney has this story about airport screeners going beyond airline security and searching and questioning passengers for evidence of other crimes.

DNA Cracks Cold Case:  A Hawaiian judge has sentenced habitual criminal Darnell Griffin to LWOP for the 1999 sexual assault and murder of 20-year-old Evelyn Luka, as reported by Jim Dooley in this story from the Honolulu Advertiser. Griffin, who served sixteen years for the earlier murder of another young woman, was identified by a DNA sample taken in 2007.  The sample taken by Griffin's parole officer matched a sample collected from Luka, who was found lying next to a freeway after being raped and strangled.  Her brother, Air Force Major James Morimoto, endorsed the life sentence but only because Hawaii does not have a death penalty.  An earlier story by Peter Boylan reported that Griffin was convicted and sentenced to life with the opportunity of parole for the rape and strangulation murder 26-year-old X-ray technician Lynn Gheradi in October of 1980.  In most other states either of these rape/murder convictions, would have made Griffin eligible for a death sentence.

Risky to Let Jose Padilla Sue John Yoo:  An LA Times editorial expresses the Editorial staff's doubts over whether it is a good idea to allow Jose Padilla sue John Yoo for authoring the infamous torture memos.  Last month U.S. District Judge Jeffrey S. White ruled Padilla could proceed in a lawsuit against Yoo for violating his civil rights.  The Judge White reasoned: "Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct."  The LA Times agrees, but believes "offering a legal interpretation, even a flawed or foolish one, isn't conduct; it's an intellectual enterprise. Conscientious lawyers shouldn't have to fear that their judgment of what the law allows will implicate them in policies they may abhor -- or in abuses that go beyond what the policies allow."

Blog Scan

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All Quiet on the Confirmation Front:  At SCOTUSblog, Tom Goldstein explains why he believes that Senate confirmation hearings for Judge Sotomayor will be a "non-event."  First, Goldstein reasons that with 60 Democrats in the Senate, "absent a bombshell," Judge Sotomayor will be confirmed.  But aside from that, Goldstein believes that there are political disadvantages to drawing attention to Judge Sotomayor's hearings.  He writes that the public "seemingly likes her and thinks she should be confirmed."  This could be because, according to Goldstein, she is well-qualified, has a compelling life story, and is the first Latina nominee to the Court.  While Goldstein does not predict any public attacks during the hearings, he does believe that the hearings could be a venue the Obama Administration "to use a popular nominee to further define the President."  Goldstein writes: "Though the general public does not care much about the Court, the perception of a nominee in a high-profile nomination process does translate to some extent onto the President that made the appointment.  If she is regarded as a radical liberal, for example, that will say a good deal about the President who picked her." We still think the hearings are important to get some answers to unanswered questions, especially on the death penalty.

Alliance for Justice Defends Judge Sotomayor's "Controversial" Cases:
  At The Ninth Justice, Amy Harder reports that shortly after the U.S. Supreme Court struck down the Second Circuit's decision in Ricci v.DeStefano, the left-leaning Alliance for Justice issued its final report on Judge Sotomayor's opinions. Harder reports, that "[w]hile the group doesn't officially take positions on nominations, the Alliance's legal experts were quick to come to Sotomayor's defense on Ricci."  William Yeomans, the group's legal director, explained that since Ricci announced a new standard for interpreting Title XII of the Civil Rights Act of 1964 there was no way Sotomayor could have applied it as an appellate judge at the time she heard the case.  The report also reviews Maloney v. Cuomo, a Second Amendment case where Judge Sotomayor joined a panel in affirming a lower court's ruling that the Second Amendment doesn't apply to the states.  In addition the report tackles Judge Sotomayor's views on abortion, which the group said show "a real sensitivity to privacy rights and family planning rights."   Considering the source, we have to take all this with a grain of salt.

Juvenile Strikes

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Speaking of Apprendi-land, tomorrow the California Supreme Court will announce its decision in People v. Nguyen, S154847. Notice is here. "This case presents the following issue: Can a prior juvenile adjudication of a criminal offense in California constitutionally subject a defendant to the provisions of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state?"

Update (7/2): Answer: yes (6-1).

The 5-4 Cases in Crim. Law

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There is a lot of discussion in the press and blogosphere today about the 5-4 decisions of the Supreme Court term just ended and whether the Court is tilting right. The following table is shamelessly pirated from SCOTUSblog's StatPack. For criminal and related cases I have highlighted the law enforcement wins in blue and the defense wins in green.

Number of cases (entirely 5-4 or 5-4 on a major issue)
23
Five to Four Cases: Alignments
5-4 Cases:
Roberts, Scalia, Kennedy, Thomas, Alito 1114 Penn, Ashcroft, Bartlett, District Attorney's Office, FCC, Gross, Herring, Horne, Montejo
Ginsburg, Stevens, Souter, Breyer, Kennedy 5Altria, Caperton, Corley, Haywood, Denedo
Ginsburg, Stevens, Souter, Breyer, Scalia 2Spears, Cuomo
Ginsburg, Stevens, Souter, Scalia, Thomas 2Arizona v. Gant, Melendez-Diaz
Ginsburg, Stevens, Souter, Breyer, Thomas 1 Atlantic Sounding
Ginsburg, Stevens, Breyer, Kennedy, Alito 1 Oregon v. Ice
Ginsburg, Souter, Kennedy, Scalia, Thomas 1 Vaden

Spears is actually more of a 5-1-3, so its presence in the table is debatable.