December 2009 Archives

Post-Heller Challenge to Federal Regulation of Machine Guns:  At Sentencing Law and Policy, Doug Berman posts on Hamblen v. United States.  In Hamblen, the Sixth Circuit ruled that "the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns," and affirmed the district court's denial of Richard Hamblen's claims that his convictions for possession of machine guns and possession of unregistered firearms are unconstitutional.  Berman notes that Hamblen is one of the few post-Heller decisions addressing machine guns, and points out that the Sixth Circuit did not find it relevant that Hamblen may have personally manufactured his machine guns in order to better serve as a member of the Tennessee State Guard.  With regard to the nine unregistered machine guns possessed by Hamblen, the Sixth Circuit wrote, "whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use."

A "More Interesting" Second Half:  Orin Kerr posts on Volokh Conspiracy that more interesting cases will be heard and decided during the second half of the Supreme Court's term.  Kerr's post follows up on Michael Doyle's McClatchy Newspaper article (mentioned in yesterday's blog scan) with Kerr's own thoughts on why the Supreme Court occasionally engages in "backloading."  He speculates that the Justices may get more selective toward the end of the term and take more important cases to be heard at the end of the term.  He also believes that law clerks may have a greater incentive to recommend more interesting cases for the spring term, and before their clerkship expires in the fall.   

Some Supreme Court Justice Speculation:  On Monday, Jonathan Adler wondered how the terrorist attempt to blow up a passenger jet on Christmas Day would affect Janet Naplitano's chances of making the SCOTUS shortlist.  A New York Times piece by Peter Baker provides some insight into why she may no longer be one of the President's top choices - like she was in May.  

Homicides Plummet in San Francisco:  San Francisco Chronicle writer Jaxon Van Derbeken reports on the largest one-year drop in the city's homicides on record.  The local police have logged 45 homicides in the city this year, a decline of more than 50 percent from both 2007 and 2008, when the city recorded 98 and 97 homicides, respectively.  Police Chief George Gascón believes that some of the decline, particularly the decline of ethnic homicides, can be attributed to the Police Department's decision to target areas of gang activity for tougher enforcement.  The zone enforcement strategy deploys officers to hot spots and targets offenders thought to be likely to commit more crimes.  Another longtime activist in the city, Marie Harrison, believes that the explanations for the decline in homicides do not add up.  She would give more credit to parents in countering violence and changing community attitudes.  Yesterday, New York Times writer Al Baker reported on a similar decline in New York City's homicides. 

Federal Court Restricts Police Use of Tasers:  L.A. Times writers Joel Rubin and Richard Winton report on the Ninth Circuit's ruling that allows officers to be held liable for injuries an individual suffers after being tasered.  The decision, Carl Bryan v. B. McPherson, if allowed to stand, would set a rigorous legal precedent for when police are permitted to use the weapons and would force some law enforcement agencies throughout the state to tighten their own policies governing the use of tasers.  In the opinion, Judges Pregerson, Reinhardt and Wardlaw established legally binding standards about where tasers fall on the spectrum of force available to police officers.  The opinion lays out clear guidelines for when an officer should be allowed to use the weapon.  Michael Gennaco, who conducted internal reviews of Taser use for the L.A. County Sheriff's Department, believes that the ruling limits Taser use to situations where an individual poses an obvious danger. 

Freakanomics Blog Takes a Look at How Justice Kennedy Could Vote:  On the New York Times' Freakanomics Blog Ian Ayers wondered whether prediction markets or super crunching of numeric data would better predict how Justice Kennedy would vote.  Ayers compared Josh Blackman's SCOTUS fantasy league, a traditional "wisdom of the crowds" predictor, with a statistical algorithm developed by four professors.  The comparison inspired Ayers to create his own Justice Kennedy Prediction Tool that allows users to plug in answers for six questions (such as "the ideological direction of lower court decision") and receive predictions of whether Kennedy will affirm or reverse the lower court opinion.  Josh Blackmun used the predictor to see if Kennedy would vote to affirm the lower court in Maryland v. Shatzer (CJLF brief available here) and found that Kennedy would vote to affirm.  Only 43% of FantasySCOTUS.net members agreed.  For more on Justice Kennedy and his judicial philosophy check out Lyle Denniston's book review of Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty by Frank J. Colucci. 

Terrorist Attempt Demonstrates It's Time We Started "Getting Serious About Terrorism":  Umar Farouk Abdulmutallab's bombing attempt has inspired Volokh Conspiracy blogger David Bernstein to comment that "[e]ver since 9/11, I've had the feeling that the U.S.'s domestic counter-terrorism efforts, including the Patriot Act, various airport security measures, and the like, have not been especially serious."  He believes "the U.S. could take some obvious counter-terror measures that don't even seem to have been seriously considered."

Saving the Tough Cases for Last:  On How Appealing, Howard Bashman posts a link to Michael Doyle's McClatchy Newspapers article "Supreme Court has saved toughest cases for second half." Doyle writes that when the Court returns for oral arguments on January 11, 2010, it will have decided only four cases "none dealing with the cases for which the term is likely to be remembered."  Left undecided are questions about whether the government violates the First Amendment when it bans corporations from spending their own money on political campaigns, and whether states violate the Second Amendment when they ban gun possession.  He writes that as these issues are decided, we are sure to learn more about the Supreme Court itself.  For example, will Justice Stevens retire in 2010?  And, how will Justice Sotomayor embrace her role as the newest Supreme Court Justice?

UPDATE Holiday Bombing Attempt:  Fox News reports on last week's bombing attempt on a Northwest flight by 23-year-old Nigerian, Umar Farouk Abdulmutallab.  The bomb is reported to have contained a six-inch pack of highly-explosive powder called PETN, weighing 80 grams (less than 3 ounces) and was sewn into his briefs.  According to ABC News, a government test with just 50 grams of PETN was able to blow a hole in the side of an airliner.  Associated Press writer Michael Tarm reports on what happened after the bombing attempt.  After a two-day security clampdown, airline officials told the Associated Press that in-flight restrictions had been eased.  Now it was up to captains on each flight to decide individually on security precautions.  This led to a confused state of security wherein some flights passengers had to keep their hands visible and were unable to use iPods, on other flights there were no noticeable differences.  The Transportation Security Administration did little to explain the rules.  And that inconsistency might well have been deliberate: what's confusing to passengers is also confusing to potential terrorists.

Self-Represented Killer's Appeal Rejected:  SF Chronicle writer Bob Egelko reports on the California Supreme Court's decision to uphold the death sentence of Keith Desmond Taylor who fired his lawyers and then defended himself in a trial for murdering a woman during a burglary in 1994.  A pretrial judge said Taylor lacked the ability to defend himself adequately, but the trial judge said he had to grant the request as long as Taylor was mentally competent and had waived his right to a lawyer.  In Taylor's appeal, his court-appointed attorney argued that he should have been found incompetent to represent himself at trial.  A psychologist had reported that Taylor had below-average intelligence, an inflated view of his abilities and a history of cocaine use, but none of these factors rendered Taylor incompetent to represent himself.  "In California, defendants who are mentally competent to stand trial and voluntarily waive the right to a lawyer are entitled to represent themselves," states Justice Kathryn Mickle Werdegar.  CJLF authored an amicus curiae brief in U.S. Supreme Court case, Indiana v. Edwards, addressing a similar issue.

Brian Ross, Anna Schecter, and Joseph Rhee report for ABC:

Two of the four leaders allegedly behind the al Qaeda plot to blow up a Northwest Airlines passenger jet over Detroit were released by the U.S. from the Guantanamo prison in November, 2007, according to American officials and Department of Defense documents. Al Qaeda claimed responsibility for the Northwest bombing in a Monday statement that vowed more attacks on Americans.

American officials agreed to send the two terrorists from Guantanamo to Saudi Arabia where they entered into an "art therapy rehabilitation program" and were set free, according to U.S. and Saudi officials.

Guantanamo prisoner #333, Muhamad Attik al-Harbi, and prisoner #372, Said Ali Shari, were sent to Saudi Arabia on Nov. 9, 2007, according to the Defense Department log of detainees who were released from American custody. Al-Harbi has since changed his name to Muhamad al-Awfi.

Hat tip: Orin Kerr.

Art therapy?!

Second Murder Conviction Overturned Because of Prosecutor Error:  At Wall Street Journal's Law Blog, Amir Efrati reports that Zachary Wilson had his second murder conviction overturned by the Third Circuit.  Efrati reports that the Third Circuit, in an opinion authored by Judge Jane R. Roth, said prosecutors had violated Wilson's constitutional rights by failing to disclose facts about three of the government's key witnesses.   According to a Legal Intelligencer article by Shannon P. Duffy, Wilson's first murder conviction was overturned in 2005 on grounds that prosecutors improperly struck blacks from the jury.  Wilson had been convicted for shooting of David Smith following a dispute over a game of craps in 1982.  His second conviction, for the August 1981 gangland-style slaying of Jamie Lamb in a North Philadelphia bar, was overturned because the prosecutor had improperly withheld information that would have been considered important to the defense for its value in impeaching the witnesses.

Supreme Selection:  At Sentencing Law and Policy Doug Berman has posted a link to Judge J. Harvie Wilkinson III's essay on the docket and case selection process of the Supreme Court.  The essay, "If It Ain't Broke...", tackles reformers' complaints that the Supreme Court should decide more cases and that the mechanism used to select cases ought to be changed.  Berman writes that he does not agree with everything that Judge Wilkinson III says, but that he does agree that dramatic modification of the case selection process could do more harm than good.   For example, Judge Wilkinson III believes that dramatic change will lead to more litigation, lead to further politicization of the judicial process, and warns "Congressional reform of Supreme Court structure sets a dangerous precedent that can be used to undermine judicial independence and the separation of powers in the future." 

An "Unorganized Militia" to Fight Terror:  At Volokh Conspiracy Randy Barnett blogged over the weekend that Umar Farouk Abdulmutallab's failed attempt to bomb Northwest flight #253 "highlights the importance of the unorganized militia in asymetric warfare."  Barnett believes that an unorganized militia - those not in the National Guard or Naval Militia - may be the "only self defense available when domestic or foreign terrorists chose their next moment for murder."  He is quick to point out that he is not advocating the arming of passengers on airplanes, but rather believes there is a need for a militia "in a world of hyper-lethal armies" engaged in asymetric warfare.  Barnett believes that Congress could achieve a well-regulated militia through voluntary training programs that make "people feel empowered to defend themselves... and conscious of their responsibilities as militia members to act when an emergency arises..."
 
Sacramento Joins the McDonald v. Chicago Debate:  Today, on How Appealing, Howard Bashman posted a link to Loretta Kalb's Sacramento Bee report that the Sacramento City Council has voted to join other cities in supporting Chicago in the Second Amendment case, McDonald v. Chicago.  According to Kalb, the amicus brief submitted on behalf of Sacramento and other cities is expected to argue that state and local governments are exercising one of their core police powers by regulating possession and use of firearms.  Sacramento currently regulates handguns and ammunition by requiring handgun owners to report a lost or stolen firearm or be charged with a misdemeanor, and requiring firearms dealers to thumb-print and electronically report the names and addresses of those who buy ammunition.  Nathan Koppel covers the Sacramento City Council's decision on Wall Street Journal's Law Blog. 

Change of Venue for Terror Suspect's Trial: New York Times writer Benjamin Weiser reports on speculation that the defense lawyers for Khalid Shaikh Mohammed will ask that his trial be moved from the city of Manhattan because of potential prejudice.  Whether a change of venue will occur depends on the defense's strategy, findings of prejudice surveys, and a judge's discretion.  In 2002, the lawyer for a suspected aide to Osama bin Laden asked for a change of venue because he did not believe he would receive a fair trial.  Judge Deborah A. Batts denied the request stating that there was prejudice elsewhere.  On the other hand Oklahoma City bomber Timothy McVeigh had his trial moved because pretrial publicity had created "so great a prejudice" in Oklahoma that he could not receive a fair trial.  According to California State University at Chico emeritus professor Edward J Bronson, "there's no question that there'll be high levels of prejudice in New York.  The Question will be, compared to what?"

Investigation into Abdulmutallab's Terror Attempt:  Wall Street Journal writers Evan Perez and Peter Spiegel report that the Obama Administration has ordered investigations into the area of aviation security to determine how travelers are placed on watch lists, and how passengers are screened.  The concern comes after Umar Farouk Abdulmutallab's failed attempt to bomb a Northwest fight from Amsterdam to Detroit.  Homeland Security Secretary Janet Napolitano told the "Today" show that "Our system did not work in this instance.  No one is happy or satisfied with that.  An extensive review is underway."  This incident comes after dozens of terrorism probes and plots have come to light in recent months.  Reality has set in about how difficult it is to find information that will stop terror attacks.  ABC News writers Brian Ross and Richard Esposito report that according to Abdulmutallab, there are more just like him in Yemen that are going to strike soon.  Four days before Abdulmutallab's bombing attempt, a tape was released by a Yemen al Qaeda leader saying "[w]e are carrying a bomb to hit the enemies of God."  The government has requested it be allowed to obtain DNA samples from Abdulmutallab.  The DNA samples are needed to link him to the explosive devise taken from the airplane.

The U.S. Supreme Court has scheduled for its January 15 conference its consideration of the jurisdictional statement in the California prison case, Schwarzenegger v. Plata, No. 09-416. There is very little to decide, as this is one of those rare cases where Congress has provided for an appeal rather than a writ of certiorari. It is not in the Court's discretion to take it or not. If they have jurisdiction, they have to take it. Howard Mintz has this story in the San Jose Mercury-News.

They probably want to take it anyway, though. On Sept. 11, they denied a stay but added this unusual note: "In denying the stay, the Court takes note of the fact that the three-judge district court has indicated that its final order will not be implemented until this Court has had the opportunity to review the district court's decree."

Habeas corpus has a long history of use (and misuse) to get review of a decision in courts that don't really have review jurisdiction. But the wellsprings of lawyer creativity never seem to run dry. From the Ninth Circuit's decision today in Jeffredo v. Macarro, No. 08-55037:

The Pechanga Band of the Luiseño Mission Indians ("Pechanga Tribe") disenrolled a number of its members ("Appellants") for failing to prove their lineal descent as members of the Tribe. Federal courts generally lack jurisdiction to consider any appeal from the decision of an Indian tribe to disenroll one of its members. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978). Appellants, therefore, brought this petition for habeas corpus under 25 U.S.C. § 1303 of the Indian Civil Rights Act ("ICRA"), claiming their disenrollment by members of the Pechanga Tribal Council ("Appellees") was tantamount to an unlawful detention. Despite the novelty of this approach, we nonetheless lack subject matter jurisdiction to consider this claim, because Appellants were not detained. We hold that Appellants cannot bring their claims under § 1303 of the ICRA and therefore affirm the district court.

District Judge Claudia Wilken, sitting by designation, dissented.

There's a whole lot of shakin' goin' on among the heads of criminologists, as FBI figures show a drop in crime despite tough economic times. This AP article by Devlin Barrett is most remarkable for the factor that the experts he interviewed did not dare to mention -- the "elephant in the living room."

Preliminary FBI crime figures for the first half of 2009 show crime falling across the country, even at a time of high unemployment, foreclosures and layoffs. Most surprisingly, murder and manslaughter fell 10 percent for the first half of the year.

"That's a remarkable decline, given the economic conditions," said Richard Rosenfeld, a sociologist at the University of Missouri-St. Louis who has studied crime trends.

A drop in property crimes may be unexpected during a recession, as there is some correlation between unemployment and property crimes. However, a drop in violent crimes in such a period should not surprise anyone, as there is no significant correlation to begin with. People do not commit rape and murder because they are in financial need; they do it because they are evil.

Man Wants to Claim Necessity Defense in Abortion Case: A CBS/AP story reports that Scott Roeder is seeking ways to use the necessity defense for his trial for the murder of abortion provider Dr. George Tiller.  Roeder is charged with one count of premeditated murder in Tiller's death and two counts of aggravated assault for allegedly threatening two ushers during the May 31 melee in the foyer of the doctor's Wichita church.  Roeder wants to argue at trial that the killing was justified to save the lives of unborn children.  The necessity defense has been sought before, yet rarely been successful in abortion cases.  District Judge Warren Wilbert will rule later today on whether Roeder can use the necessity defense.  Update:  the AP reports that the judge has rejected Roeder's request, ruling that the necessity is not viable under Kansas law.

Experts Puzzled Over Low Crime During Recession: Contra Costa Times writer Stacia Glenn and the Associated Press report that experts are wondering why the crime rate has not increased as the national recession leaves more people unemployed.  Preliminary figures gathered by the FBI show that for the first six months of 2009, crime has fallen in cities like Fontana and Victorvile.  Nationwide, violent crime fell by 4.4 percent and property crimes dropped by 6.1 percent.  For decades, the conventional wisdom among progressives is that unemployment is one of the root causes of crime, which led to the belief that the 2009 job losses would cause crime to soar.  Interestingly enough, the crime rate has not been this low since the 1960s.

Oakland Police Focus on Guns, Gangs, and Drugs:  San Francisco Chronicle writer Chip Johnson reports that the Oakland Police Department has a new focus on what they call the "Big Three"- guns, gangs, and drugs.  Chief Anthony Batts wants a chance to be the leader that helps decrease the crime rate in Oakland.  Others have attempted this task, like former Mayor Jerry Brown and current Mayor Ron Dellums, but their efforts failed.  Batts wants to use technology to aid intelligence gathering, which can lead to better deployment of the city's understaffed police department.  Instead of blanket suppression, Chief Batts is targeting specific offenders who cause most crime, a process he knows will not be an easy one.  The only thing Batts needs now is the support of local elected officials.

State Budget Problems Halt Development of Sex-Offender Facility:  The Associated Press reports that construction of a Connecticut treatment center for sex offenders on parole or probation has been put on hold due to the state's budget problems.  Now, sex offenders let out of prison have nowhere to go.  Ransome Lee Moody was ordered by a judge to report to the facility, approved by the state legislature last year, as a condition of his probation.  Now, he will be monitored with a GPS device and be required to report seven days a week to a program for training in life skills.  Moody is considered so dangerous and untreatable that requests to eight other states to place him in one of their residential facilities have been denied.  State Rep. Micheal P. Lawlor said, "I realize that tough decisions have to be made but if I was governor, I would put a secure facility up and running for (Moody) and others like him who could potentially be a threat to public safety."

DNA Evidence and Fewer Death Sentences:  At Sentencing Law and Policy, Doug Berman posted an article in Friday's Christian Science Monitor hypothesizing that DNA evidence might be the reason fewer prosecutors are seeking the death penalty.  The article, by Mark Guarino, comments that prosecutor use of the death penalty might be declining because prosecutors are hesitant to seek a death sentence in cases that might later be upended by DNA evidence.  According to Guarino and the Innocence Project of Florida, 17 death penalty convictions have been overturned since 1989.  This could be one reason for the decline, or there could be, as Berman suggests, more to the "dynamic story" of declining use.  There certainly is.  While DNA evidence might be reason to dismiss old convictions, it does not stop prosecutors from testing and using DNA evidence for death eligible crimes committed today.  For example, last week two separate juries found two men guilty of murdering an 18-year-old girl near Lake Elsinore, CA.  The Riverside District Attorney is seeking the death penalty, and DNA evidence played a part in the case against Jeffree Jay Buettner.  The Riverside County Sheriff's Department Cold Case Unit is also using DNA to solve cold cases. 

Will the Supreme Court Overrule Heller?  That's what David Kopel appeared to wonder on Volokh Conspiracy yesterday.  Kopel's quick post reports that last Thursday, December 17, Justice Ginsburg spoke on the value of dissenting opinions at a luncheon of the Harvard Club of Washington, D.C.  According to Kopel's source, Justice Ginsburg said that sometimes a dissent can become the majority of a "future, wiser court,"  and mentioned the in District of Columbia v. Heller as an example.

Accepting a Plea Agreement:  On Wall Street Journal's Law Blog, Ashby Jones writes that Wall Street Journal reporters John Emshwiller and Nathan Koppel have been exploring whether too many defendants are being pressured to accept plea deals.  The investigation follows a judge's decision to void a guilty plea in the Broadcom backdating criminal trial.  Jones reports that Judge Carney dismissed the criminal complaint charging former Broadcom co-founder Henry Samueli with lying to the SEC "even though Samueli had stood before him in 2008 and pleaded guilty to that very crime."  The Law Blog post speculates Samueli probably pleaded guilty because he was afraid he'd get stuck with a long prison sentence if he went to trial and lost.  While many fear this outcome, pleas like Samueli's are rare.  As Jones notes, "it is widely agreed that the vast majority of those who pleaded are in fact guilty[,]" and often it is defense lawyers, rather than prosecutors, who exert pressure to sign guilty pleas.

The Murder Business: How the Media Turns Crime Into Entertainment and Subverts Justice:  On Women in Crime Ink, Laura James reviews Mark Fuhrman's new book and surprisingly finds herself "agreeing with many of his points."

Supreme Court Trend: Hiring the Similarly Minded: New York Times writer Adam Liptak reports that according to a new study, former Supreme Court clerks have started taking jobs that reflect the ideologies of the Justices they clerked for.  The new study collected data from 1882 through 2006, and was published in last months issue of Vanderbilt Law Review.  It was in the autumn issue of The Green Bag.  "It's cause for concern mainly because it's a further piece of evidence of the polarization of the court," said William E. Nelson, New York University law professor and one of the authors of the study.  The study found that this current trend started during the Clinton administration.  The findings support, as the study puts it, "a superlegislature responding to ideological argument rather than a legal institution responding to concerns grounded in the rule of law." 

Will Kansas Eliminate the Death Penalty? Wichita Eagle writer Ron Sylvester reports that next year, due to a recent decline in death sentencing, Kansas will consider whether to abolish the death penalty.  A report released by the Death Penalty Information Center, which opposes capital punishment, states that 106 death sentences were handed down in 2009, compared to 111 in 2008.  On January 19, 2010, a four-day hearing is scheduled to discuss a new bill that would eliminate the death penalty.  Kansas is not the only state to consider eliminating the death penalty, 11 others have considered abolishing death penalty this year.  Attorney General Steve Six says it's not fair to put a price on these crimes.  He also states that the cost will be cut in the future because decided case law will make the trials more efficient.  Currently, Kansas has 10 people of death row, they have not executed anyone since 1965. 

Budget Reports Promote Prison Reform: Associated Press writer Jeff Carlton reports that the United States may soon see a drop in its prison population.  Since the early 1970s, states have adopted tough on crime policies that has put more people in prison and kept them there longer.  The economic crisis has caused states to rethink their policies; changing a long steady trend.  According to figures from the Bureau of Justice Statistics, about 739,000 prisoners were admitted to state and federal facilities last year, about 3,500 more than were released.  This 0.8 percent growth in the prison population is smallest increase this decade.  But Florida may be an exception to the trend.  Florida has enacted a law requiring all convicts to serve a high percentage of their sentence.

It's Ninth Circuit Live!:  Ashby Jones posts on Wall Street Journal's Law Blog that yesterday the Ninth Circuit approved an experimental program that could lead to television coverage of the lawsuit challenging California's definition of marriage.  The new plan has the chief judge of each district court choosing cases where cameras will be admitted, and consulting with the chief circuit judge on whether to allow cameras.  Cameras will not be allowed in criminal or jury trials, and judges will not have to obtain consent from both parties before agreeing to allow cameras in the courtroom. Chief Judge Kozinski commented that the Ninth Circuit hopes this idea will improve "public understanding of our judicial processes and (enhance) confidence in the rule of law."  At How Appealing, Howard Bashman rounds up media coverage of the court's new policy.

Yesterday, the California Third District Court of Appeal declared in People v. Branner (C059288) that the exclusionary rule did not prevent the use of evidence obtained by an officer relying on a rule of the U.S. Supreme Court even when the Court later changed its mind about the rule.  According to the majority, "the guilty should not go free when the constable did precisely what the U.S. Supreme Court told him he could do, but the Court later decides it was the one who blundered." 

Branner's case began here in Sacramento.  In 2004, defendant Jasper Dwight Branner, was arrested when officers investigating Vehicle Code violations discovered he had not complied with drug offender registration requirements.  The officers arrested Branner, placed him in the back of the patrol car, and searched the passenger compartment of his vehicle.  They discovered cocaine base and a gun.  New York v. Belton authorized this type of search incident to arrest in 1981, but last term's Arizona v. Gant limited an officer's ability to search to areas within the arrestees immediate control and areas "within which he might gain possession of a weapon."

The court's debate presents some interesting questions on the deterrent purpose of the exclusionary rule and whether the Branner should benefit from Gant's retroactive effect. 

Death Sentences Down:  The Death Penalty Information Center (DPIC), an opponent of capital punishment, released its year-end report yesterday.  Among its disclosures was that In 2009 fewer murderers were sentenced to death.  As per usual, this fact was reported as proof that "juries continue to grow more wary of capital punishment."  While some news outlets swallowed the DPIC spin whole, without bothering to seek an alternative perspective, others were more careful.  Some examples are here, here and here. 

Habitual Criminals:  Habitual criminals commit roughly two-thirds of all crimes yet some people have trouble acknowledging that the only way to stop this type of offender from committing crimes is to lock him up.  A story by Tom Alex of the DesMoines Register profiles 55-year-old Melvin "Punky" Adams, who had been convicted 25 times since his 19th birthday.  Adams, who says that he wants to change, was arrested two weeks ago when police, responding to a burglar alarm at 4:00 am, found him inside a restaurant with a hammer and a screwdriver.  A retired police officer who arrested Adams in the 1970s said, "....to most people going to jail is a terrible thing.  To others, it's like attending a class reunion."  

In Kansas v. Crane, 534 U.S. 407 (2002), the U.S. Supreme Court held that the civil commitment of a sexually violent predator requires some proof that a person subject to commitment has a serious difficulty in controlling his or her behavior in addition to a mental abnormality.  But does that volitional requirement apply to people adjudicated not guilty by reason of insanity?  According to the 2nd Circuit's opinion in Richard S. v. Carpinello  (Docket No. 08-4197-pr., December 15, 2009) the answer is yes:

Petitioner-Appellant Richard S. appeals the July 22, 2008 denial of his petition for habeas corpus by the United States District Court for the Northern District of New York (Hurd, J.). Richard S. argues that the state courts unreasonably refused to apply the United States Supreme Court holding in Kansas v. Crane, 534 U.S. 407 (2002), to his case. For the reasons that follow, we hold that Crane's involuntary commitment standard applies to insanity acquittees, but that the New York courts did not unreasonably conclude that Richard S.'s continued involuntary confinement meets the requirements of the due process clause. The denial of Richard S.'s 28 petition for a writ of habeas corpus is therefore affirmed 

DNA Solves 1987 Murder:  A DNA test has helped the Detroit Police Department's Cold Case Team crack a 22-year-old murder case.  Doug Guthrie of the Detroit News reports that Anthony Diquet Phillips, Sr., was arrested in Virgina and will be extradited to Michigan for a murder trial.  On March 4, 1987, a burglar broke into Lacey Tarver's home on Detroit's west side.  When Tarver confronted the burglar, he was beaten to death.  An article by Amber Hunt in Detroit's Free Press explains how DNA taken from blood droplets at the scene helped confirm the burglar's identity.   According to police, the DNA and fingerprints from the murder scene belong to Phillips.   

Georgia Supreme Court Halts Execution:  In yesterday's NewsScan we posted that the Georgia Board of Pardons and Paroles has declined to stay the execution of Carlton Gary, but last night, on Sentencing Law and Policy, Doug Berman reported that the Georgia Supreme Court halted the execution.  The court ordered a judge to hold a hearing to address Gary's request for DNA testing.  Berman posts that Gary's stay marks the end of executions in 2009, and puts the final execution tally at 52 for 2009.  He writes that the number is "still well below the average of roughly 70 executions per year for the decade from 1995 to 2005." 

Terror Trials in D.C.:  On Blog of Legal Times, Jordan Weissmann reports that Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia believes that D.C.'s federal courthouse could be used as a site for prosecuting Guantanamo detainees.  According to Judge Lamberth, the government is looking into security at the courthouse, and weighing whether to try detainees in D.C.'s federal courthouse.  Lamberth's remarks were made at a breakfast this morning hosted by the American Bar Association.  He commented on the terrorism cases which have been handled successfully by U.S. judges, including the prosecution of the four men convicted for bombing the U.S. Embassy in Kenya.  With regard to the Kenya bombings, Judge Lamberth asked, "Wasn't that a war-like act?  Wasn't that Al-Qaeda declaring war on us? And yet we tried them successfully in the federal courts."

Changing the Fourth Amendment Debate With "A Single Sentence":  That's what PrawfsBlawg writer Fabio Arcila thinks happened in last term's traffic stop case, Arizona v. Johnson.  In his post, Arcila writes that "with one blithe sentence" the Supreme Court "wiped off the law books an entire jurisprudential debate."  He comments that in the past the Supreme Court has often likened traffic stops to Terry stops, and states like Illinois had relied on Terry to prevent police from inquiring about matters unrelated to the traffic stop.  Arcila believes that a single sentence in Johnson - "An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop" - ended this reliance.  According to Arcila, post-Johnson, it is possible for police to "ask about your drug or alcohol use, or whether you have firearms or any other contraband in the car..." and your only protection "is that the inquiries cannot 'measurably extend the duration of the stop.' "  That's not entirely true.  Arcila forgets to point out another important sentence in Johnson.  This one pays heed to Terry and says, "[t]o justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous."  Our brief in Johnson is available here.  

A New Twist on Kiyemba:  On SCOTUSblog yesterday, Lyle Denniston wondered whether Supreme Court review of Kiyemba, et. al. v. Obama, et. al. (08-1234) was "going forward, or not?"  Denniston's question was prompted by the Obama Administration's decision to transfer some of the Guantanamo Bay prisoners to a newly acquired federal prison in Thomson, Illinois.  Denniston believes that the posture of the Kiyemba case could conceivably change even as the Court gets ready to examine it.  According to Denniston, the legal issues will depend on whether Congress goes along with the administration's plan. If Congress balks, then the case could go forward as argued (the administration's brief is due January 4), and the seven Chinese Uighurs might be released.  Denniston writes that if the government moves quickly, however, and is able to shift focus from habeas review to the prisoners' status under U.S. immigration laws, the government may be able to claim enhanced detention authority once the detainees are on U.S. soil.  For more thoughts on the legal issues surrounding the transfer of prisoners check out yesterday's post on the New York Times' Room for Debate blog (hat tip Kenneth Anderson at Volokh Conspiracy)

Sixth Circuit Allows Judicial Fact-Finding to Increase Minimum Sentence:  Doug Berman reports on Sentencing Law and Policy that today the Sixth Circuit issued "an effective" decision on the application of "Blakely [v. Washington] to Ohio sentencing law."  The case, Arias v. Hudson, involved the habeas petition of a convicted kidnapper and rapist.  At the time of Arias' conviction, Ohio sentencing law allowed the trial court to make factual findings that produced a thirty year sentence.  State law also allowed the thirty-year fixed sentence to be converted to an indeterminate sentence with a minimum term of thirty years and a maximum term of life.  While Arias state court appeal was pending, the Supreme Court decided Blakely v. Washington, and Arias subsequently filed a habeas petition alleging the court had usurped the jury's role in sentencing by making its own findings of fact.  The district court conditionally granted his habeas petition, and today, the Sixth Circuit reversed.  Berman's post provides portions of the decision and discusses how certain sentencing precedent could be effected by the pending Supreme Court case United States v. O'Brien.

Ninth Circuit Tackles State Secrets in CIA Rendition Case:  Over the past two days How Appealing's editor, Howard Bashman, has rounded up media and legal coverage of oral arguments in the Ninth Circuit case, Binyam Mohamed v. Jeppesen Dataplan.  On law.com Dan Levine reports that "[t]he breadth of the state secrets privilege will apparently hinge on 9th U.S. Circuit Court of Appeals Judges Raymond Fisher and Johnnie Rawlinson."  The ability of the two judges to decide the breadth of the state secrets privilege arises from a lawsuit against Boeing subsidiary Jeppesen Dataplan for its participation in the CIA's "extraordinary rendition" program. The men claim to have been abducted and flown by Jeppesen to countries where they were tortured. The government contends the suit can't go forward without revealing state secrets.  In an earlier panel decision, the court ruled that the CIA could not compel dismissal with a sealed declaration - judges need to make their own independent analysis of both public and classified evidence.  For links to the panel's decision and the government's petition for rehearing go to Christian Ehret's June post on JURIST- Paper Chase.   

Gallup asked, "Do you think the United States should - or should not - close [Guantanamo Bay] prison and move some of the prisoners to U.S. prisons? Answer: yes 30%, no 64%, duh 5%.

One interesting aspect of this poll is that while the answers varied sharply by political affiliation they hardly varied at all by region.

Stay Denied for Georgia Murderer:  A story in today's Columbus Ledger-Enquirer by Tim Chitwood reports that the Georgia Board of Pardons and Paroles has declined to stay the execution of Carlton Gary, the infamous Stocking Strangler.  Gary was convicted in 1986 for the rape and strangulation killing of three elderly Columbus women. A WTVM story noted that the victims were raped, then strangled with their own stockings.  The murders occurred over an eight month period.  Their deaths were 3 of 7 slayings that terrified Columbus between 1977 and 1978. After a gun stolen from one of the victim's homes was linked to Gary, he admitted to burglarizing or being present at eight of the nine crime scenes where seven murders, and two attempted murders, occurred. Gary's attorneys have sought a stay of his execution, which is set for tonight, so that DNA evidence from the four other murder scenes could be tested.  UPDATE:  An AP story here reports that the Georgia Supreme Court voted 5-2 yesterday to stay Gary's execution and order a hearing on his DNA claim. 

Killer Pleads Guilty, Still Gets Death Sentence:  Christy Gutowski, a writer for Chicago's Daily Herald, reports that an attempt by habitual murderer Brian Dugan to avoid the death penalty - by pleading guilty to a 1983 murder - didn't pan out.  A story by Chicago Tribune reporter Art Barnum noted that after days of deliberation during Dugan's sentencing hearing last month, two members of the jury refused to vote for a death sentence which, in Illinois, automatically defaults to LWOP.  But before the signed verdict form was delivered to the judge, the two holdouts asked for deliberations to resume.  The next day the jury unanimously recommended the death sentence.  Today, the judge denied Dugan's appeal of that verdict.  "Brian Dugan is simply entitled to a life sentence," according to his defense attorney.  Really?  But he already has some of those.  Dugan has been serving life sentences for a series of sexual assaults on women who survived and the murder of two others - 27 year-old Donna Schnorr and a 7-year-old Missy Ackerman.

AG to Make Death Penalty an Issue:  Whittier Daily News writer Rebecca Kimitch reports that state Senator Tom Harman, the only Republican currently running for California AG, will make the death penalty a campaign issue if San Francisco District Attorney Kamala Harris, a death penalty opponent, becomes the Democratic nominee.  Noting that a majority of Californians support capital punishment,  Harman said that "The race could become a referendum on the death penalty."  Harris' campaign manager disagreed, saying that reducing violent crime, solving the prison crisis and tackling financial crimes are uppermost on voters' minds.  But District Attorney Harris' policies have not been very effective with regard to violent crime.  According to the FBI Uniform Crime Reports, of the nation's 20 largest cities, San Francisco has the ninth highest violent crime rate, much higher than the larger cities of New York, Los Angeles, Phoenix and San Diego.  Murders in SF have been on the increase for five years and the 99 homicides in 2008, were the most since 1995. 

Gillian Flaccus reports for AP, "A federal judge Tuesday dismissed all charges against the remaining two defendants in the government's sweeping securities fraud case against chip-maker Broadcom Corp., citing what he called 'shameful' prosecutorial misconduct and a lack of evidence." Update: Holman Jenkins has this column in the WSJ, arguing that there was no crime at all here.

Ohio Supreme Court Requires Warrant to Search Cell Phones:  At How Appealing, Howard Bashman rounds up today's coverage of the Ohio Supreme Court's decision in State v. Smith.  The 4-3 ruling holds that warrantless search of a cellphone's data is prohibited under the Fourth Amendment unless the search is necessary to protect the safety of law enforcement officers and there are no exigent circumstances.  According to the Ohio Supreme Court's press release the Fourth Amendment prohibits searches of phones "seized from its owner in the course of a lawful arrest."  In its decision, the majority noted that with regard to a person's reasonable expectation of privacy "cell phones defy easy categorization."  It reasoned that because cell phones are able to store large amounts of private data, users had a justifiable expectation of a higher level of privacy in the information cell phones contain.  For that reason, once seized, "police must then obtain a warrant before intruding into the phone's contents."

Will the October 2009 Term Be a Criminal Justice Term to Remember?:  Doug Berman, at Sentencing Law and Policy, thinks so.  Today, he posts that after the Supreme Court added three more criminal justice cases to its docket yesterday the biggest stories for the Term will involve criminal justice issues.  He writes that many of the cases involve challenging and important issues "that seem unlikely to be resolved through the 'traditional' right/left splits among the Justices."  Berman also comments that the Court's focus on criminal justice cases could be attributed, in part, to the addition of Justice Sotomayor.  He believes that with two former-prosecutors sitting on the Court (Justices Alito and Sotomayor) the Court is more likely to understand the importance of taking up more criminal justice issues with day-to-day importance.

D.C. Murder Convict Released, But Not Exonerated:  At Blog of Legal Times, Jordan Weissmann reports that District of Columbia Senior Judge Fred Ugast ordered the release of Donald Gates after new DNA evidence showed he may have been wrongly convicted.  Gates was found guilty of raping and murdering a Georgetown University student nearly 28 years ago.  Last week, the D.C. Public Defender Service filed a motion asking Ugast to exonerate Gates based on a laboratory finding that the DNA of semen found inside the victim after the crime did not match Gates' genetic code.  Today, Assistant U.S. Attorney Joan Draper asked that her office be allowed an opportunity to "double check" whether those samples were in fact from Gates and the victim.  Senior Judge Ugast ordered the release of Gates, but will wait to formally overturn his conviction.  This will give prosecutors one week to try to conduct a last round of DNA testing.  More information on the case can be found here.

Justice Napolitano?:  At NRO's Bench Memos, Jonathan Adler links to Tim Graham's post discussing speculation that Janet Napolitano will be the next Cabinet official to leave the White House so that she can serve on the Supreme Court.  Speculation came from NBC reporter Chuck Todd who told Laura Ingraham that Napolitano would be the President's next pick because "Personally, he likes her probably more than any other cabinet secretary outside of [Robert] Gates on a personal comfort zone. She almost got it the last time. I think he's determined to put somebody who's actually run for elective office on the Supreme Court."   

As detailed by Kelly Lowenberg over at the Stanford Law and Neuroscience Blog, psychopathy was recently introduced as a mitigating factor in a capital murder trial:

[N]euroscientist Kent Kiehl recently testified as an expert witness for the defense in the sentencing hearing for Brian Dugan, a man who pled guilty to the 1983 rape and murder of a ten-year old girl. The defense argued that Dugan suffers from psychopathy, a psychiatric disorder typified by antisocial behavior, impulsivity, and lack of remorse, which made it difficult for him to control his behavior. As a result, the defense argued, Dugan is less culpable for his criminal behavior, and his disorder should be considered a mitigating factor. Kiehl testified that based on functional magnetic resonance imaging (fMRI) tests and a diagnostic checklist, Dugan showed abnormal brain functioning and responses similar to other psychopaths Kiehl has tested.

But the crucial question is what is that abnormal brain functioning?  Is it an abnormality that renders the defendant unable to bring reason to bear on his or her decisions?  Keep in mind that the hallmark feature of psychopathy is willful engagement in planned, predatory behavior.  Neurotalk can make any behavior sound pathological, but describing brain patterns doesn't equate to excuse (yet) in any jurisdiction.

But what if those doctrines were to change?

At the least, they were have to hold that defendants who have a sophisticated enough understanding of legal wrongfulness that they often engage in planned behavior designed to subvert detection by law enforcement are insane.  What's more, they would hold that citizens who have antisocial tendencies, are impulsive, and hurt other without feeling bad about it deserve excuse. 

And that is no small doctrinal change.

An Example of a "somewhat irresponsible" Editorial:  At Sentencing Law and Policy, Doug Berman comments that the New York Times editorial, "No Humane Execution," irresponsibly discusses the facts surrounding the single drug execution of Kenneth Biros last  week.  Berman points to three phrases in the editorial that wrongly portray the facts (i.e. only death penalty advocates believed that a single-drug protocol would be less painful), and states that while he respects the Times "moral assertion" it should "avoid seeking to bolster [its] arguments with specious facts and suspect suggestions."

Denying Parole for Murderers in California:  Yesterday, Doug Berman blogged on an  article discussing early release of murderers in California.  The L.A. Times article, by Carol J. Williams, asks whether California needs a reason to deny a murderer's parole, and discusses the pending  Ninth Circuit decision of Hayward v. Marshall (06-55392).  The case, now pending before the Ninth Circuit en banc, involves the challenge of convicted murderer, Ronald Hayward, to then-Governor Gray Davis' reversal of the parole board's decision to release him after 27 years' imprisonment for the stabbing death of a motorcycle gang member.  Hayward does not have a right to a sentence to less than life for his crime, but last year two California Supreme Court decisions expressed a need for the state to show "some evidence" that the prisoner poses a risk.  The three-judge panel in Hayward's case agreed with this legal notion and found a due process violation because Governor Schwarzenegger failed to cite any evidence that Hayward was still dangerous.  Hopefully the panel's decision will continue to allow California's governors to remain, as Williams puts it, "tough-on-crime."

Adverse Comment on Trial Silence:  CrimProf Blog Editor Kevin Cole has posted a link to Jeffrey Bellin's SSRN article Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence.  According to the abstract, Bellin's paper addresses the Supreme Court's decision in Griffin v. California, and attempts to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.  Bellin suggests that in some cases adverse comment could rise to the level of compulsion, but also comments "that in the bulk of cases, a Fifth Amendment-based prohibition of adverse comment is, in fact, indefensible."  He suggests recasting the current Fifth Amendment-based prohibition of adverse comment on defendant silence in a more tailored form.  

Supreme Court Revises Oral Argument Schedule and Takes No Action on Citizens United:  On SCOTUSblog, Lyle Denniston reports on the Court's to alter its oral argument schedules this Term.  The Court will now hear oral arguments on the "honest services" provision of mail fraud law on March 1, 2010 in the case Skilling v. U.S. (08-1394).  It has also agreed to add ten minutes to the total argument time for the case American Needle v. National Football League (08-661).  The Court granted the extra ten minutes so that U. S. Solicitor General's Office may argue for a position that differs from that of each side in the case.  Also, on Blog of Legal Times, Tony Mauro reports that the Court has yet to decide Citizens United v. Federal Election Commission.  He writes that when the Court ordered re-argument on June 29th many believed the Court was ready and eager to "precedents that have allowed the government to bar independent campaign expenditures by corporations and unions in federal elections."  The more than five month delay has caused many to doubt that the Court will issue a clear anf sweeping victory in the case.  Mauro reports that "[t]he general consensus is that a proliferation of concurrences and dissents has slowed issuance of the final ruling, pointing toward the kind of mix-and-match majority decision that will be hard to decipher -- and harder to put into effect."  John Elwood suspects there will be more than one majority opinion and maybe a "substantial third opinion."  

Impact of Politics on Prisons: Ross Douthat's op-ed in The New York Times takes a stance on how previous and current political figures have effected the prison system.  In the 1960s and 1970s there was a crime wave that lasted until the early 1990s.  Douthat argues that the reason for the surge was a mixture of demographics bulge created by the baby boomers, the crisis of authority in the 60s, and a large drug problem.  The liberal strategy of focusing more on rehabilitation than deterrence only enhanced the problem.  Since then, conservatives have been leaders in prison policy making.  They have instituted harsher penalties and more prisons.  The conservative approach has worked, the violent crime rate has been cut by 40% since it's peak.  Douthat says that the cost of success has been significant.  Prison overcrowding and high costs have led some to look to their leaders for change.  He argues that with politicians more worried about whether their stand on crime will harm their political career, change will be slow.

The Failure of the NY Juvenile Prison System: New York Times writer Nicholas Confessore reports on a report prepared by a task force appointed by Governor David Paterson that found New York's juvenile prison system to be broken.  New York's youth prisons are so defective that the state agency overseeing them have asked family court judges not to send youth there unless they are a significant risk to public safety.  A confidential draft report stated, "New York State's current approach fails the young people who are drawn into the system, the public whose safety it is intended to protect, and the principles of good governance that demand effective use of scarce state resources."  The state spends around $210,000 per youth annually to run the system.  The report recommends that there should be smaller facilities because it would put less strain on workers, help reduce the use of physical force and better facilitate rehabilitation.  Peter E. Kauffmann, a spokesman for Gov. Patterson said that the governor "looks forward to receiving the recommendations of the task force as we continue our efforts to transform the state's juvenile justice system from a correctional-punitive model to a therapeutic model."

1970s Law and Time Credits Free Two North Carolina Inmates:  Associated press writer Mike Baker reports that Superior Court Judge Ripley Rand has ordered the release of two convicts because of time credits and a 1970s law that limited a life term to 80 years.  Alford Jones, 55, and Faye Brown, 56, successfully argued that their times credits cut years off their life terms, and they should be released.  State attorneys argued that the credits awarded to Jones and Brown were suppose to be used for parole eligibility and other matters, and not given to reduce sentence for lifers.  But Judge Rand disagreed, saying that the inmates were allowed to receive credits which should be applied to the 80 term limit.  It is unclear how this ruling will affect approximately two dozen other inmates in a similar situation. 

When a court imposes a domestic violence restraining order and the respondent violates it, who is the prosecutor for the resulting criminal contempt? The District of Columbia Court of Appeals* held that under the pertinent section of the D.C. Code, "the criminal contempt proceeding against Mr. Robertson under the District's intrafamily offense statute was prosecuted in the name of Ms. Watson, not in the name of the United States or the District of Columbia." The victim can pursue the prosecution despite a plea agreement by the prosecutor. Today, the U.S. Supreme Court agreed to review that ruling in Robertson v. US ex rel. Watson, No. 08-6261.

The high court also took up a case on employee privacy in text messages where the employer buys the pager, pays for the service, and tells the employee the messages are not private, but a supervisor says personal messages are allowed. City of Ontario v. Quon, No. 08-1332. (Seems like an easy case to me, so of course the Ninth went the other way.) They also took up a deportation-for-crime case, Carachuri-Rosendo v. Holder, No. 09-60.

Possibility of Death Penalty Expansion in Virginia:  The Examiner writer William C. Flook reports that with a change of Virginia's governor, there could be a change with death penalty.  In Virginia, only the triggerman is eligible for the death penalty, with a few exceptions.  For the last three years, there has been an effort to abolish the triggerman rule, and expand the death penalty.  But current governor Tim Kaine has vetoed the bills that have reached his desk.  With Kaine's successor, Bob McDonnell, the fight for expansion seems more likely to succeed.  McDonnell has said that if the bill to repeal the triggerman rule reaches his desk, he will sign it.  Opponents of the death penalty, like Kent Willis say that "[they're] hoping that the knowledge that McDonnell will certainly sign the bill may cause a few senators to rethink their stance." 

Ninth Circuit Court Throws Out Death Sentence in Double Murder Case:  Metropolitan News writer Steven M. Ellis reports on the Ninth Circuit Court of Appeals' decision to overturn  the death sentence of Scott Lynn Pinholster because of ineffective assistance of counsel at the penalty phase.  The case has been remanded for a new penalty trial because the majority of the court believed counsels' failure to introduce evidence of traumatic childhood head injuries, abuse and deprivation, along with other mitigating evidence would have resulted in a lesser sentence.  In 1984, Pinholster was convicted of murdering of Robert Beckett, 29 and Thomas Johnson 25, during a burglary at the residence of a convicted marijuana dealer.  Pinholster had two accomplices.  One accomplice, became witness against Pinholster and the other accomplice was sentenced to life imprisonment without possibility of parole.

Bernard Madoff is the exemplar of a person who was once respected and is now disgraced, but it turns out he has found respect in a new peer group in his new abode. Dionne Searcey reports for the WSJ, "'To every con artist, he is the godfather, the don,' says an inmate [at Butner Federal Correctional Complex] interviewed earlier this week." Madoff has served 12 months of his sentence and has "only" 1,795 to go.

On Tap for the Supreme Court next Monday:  Today SCOTUSblog has two informative posts on what to expect from the Supreme Court next Monday.  In her Petitions to Watch post, Erin Miller links to information for twelve cases up for consideration at the Justices' private conference today. Of the twelve, four have been relisted from earlier conferences, and two address criminal justice issues.  Another case, Rasul v. Myers (09-227) involves torture claims made by the detainees at Guantanamo Bay.  In her second SCOUTSblog post, Miller tells us not to expect any Supreme Court opinions on Monday.  She writes that the Court expects to release orders, but "[n]o mention was made of any opinions." 

O'Connor's Initiative Against Judicial Elections:  On Sentencing Law and Policy, Doug Berman links to an article in today's National Law Journal where Jordan Weissmann discusses the creation of the O'Connor Judicial Selection Initiative.   The Initiative, a collaboration between the University of Denver's Institute for the Advancement of the American Legal System and O'Connor, intends to assist state level efforts to move away from judicial elections.  The former Supreme Court Justice will chair the 11-member advisory commission.  Berman comments on his blog that he is not "quick to assail elected judges" but members of the defense bar might be.  He also believes prosecutors "might be among those most eager to see judicial elections retained."  Of course, when we talk about moving away from something, we need to consider what we are moving to. For all the deficiencies of directly contested judicial elections, so-called "merit selection" that effectively delegates selection authority to the state bar is even worse.

Polanski's Lawyer Argues for Dismissal:  At Wall Street Journal's Law Blog, Ashby Jones writes that according to the LA Times, an attorney for Roman Polanski is arguing that an "astonishing record of misconduct" should result in dismissal of the case.  In the article, Jack Leonard reports that Chad S. Hummel argued to a California appeals court panel that "Judge Laurence J. Rittenband improperly discussed with a prosecutor how to punish Polanski and threatened to lock up the director for a longer period if his attorney challenged the judge's decision to return Polanski to prison."  A Los Angeles judge declined to address similar arguments earlier this year, and yesterday the panel suggested that Polanski might be 32 years too late in his request to dismiss the case.  They wondered why Polanski couldn't have asked his lawyer to raise the misconduct concerns at the time rather than flee the country.  

The California Supreme Court today decided an issue on the constitutional right to be a fool created in Faretta v. California, 422 U.S. 806 (1975). See id., at 852 (Blackmun, J., dissenting). In today's case of People v. Butler, S068230 , Justice Chin wrote:

The question before us is whether the Sixth Amendment requires the trial court to allow a defendant who has already killed a jail inmate (and clearly intends more jail violence) to represent himself, with the obvious danger to jail inmates and staff and other difficulties inherent in such self-representation. The majority holds that the trial court violated defendant's Sixth Amendment right to represent himself when it revoked his self-representation status shortly before trial. (See Faretta v. California (1975) 422 U.S. 806 (Faretta).) In my view, the trial court properly refused to let defendant represent himself under the extreme circumstances the case presents.

The bad news is that is the dissent.

Prison and Parole/Probation Populations in 2008:  Yesterday, on Sentencing Law and Policy, Doug Berman posted on two recent Bureau of Justice Statistics reports examining the numbers of prisoners and individuals under probation or parole supervision in the nation for 2008.  Prisoners in 2008 reveals that the number of individuals released from federal and state prisons increased by 2%, and Probation and Parole in the United States, 2008 found that nearly 5.1 million adults were under community supervision at yearend 2008.  The report also found that the probation population increased by 36,446, and the parole population increased by 6,992 parolees during the year.  Berman's post links to a press release from the National Reentry Resource Center, which states that the number of prisoners released in 2008 "underscore[s] the need for reentry resources and technical assistance to state and local service providers."  In other words, if states are seriously considering releasing prisoners to decrease the cost of prison, they will still have to fund the prisoners' reentry programs.

Rounding up Coverage of Pinholster v. Woodford:  On SCOTUSblog's Thursday Round-up, Adam Chandler posts on the Ninth Circuit's en banc decision in Pinholster v. Woodford.  Chandler links to coverage from Howard Bashman's blog, How Appealing, and Doug Berman's blog, Sentencing Law and Policy.  According to Bashman, the Ninth Circuit "voted 8-3 to uphold the federal district court's order setting aside the death sentence."  Chief Judge Kozinski was one of the dissenters.  In his dissent he predicts that the Supreme Court will reverse the Ninth Circuit yet again.  He writes, "Pinholster's death sentence must be reinstated. If we do not do it ourselves, it will surely be done for us."

Cheney Responds to Holder's Decision to Try KSM in New York:  Ashby Jones blogs on Wall Street Journal's Law Blog that former Vice President Dick Cheney is publicly criticizing the Attorney General's decision.  Tuesday, Cheney appeared on Fox News and called the decision a "huge mistake."   According to Jones, Cheney believes Khalid Sheik Mohammed's trial will "generate a whole new generation of terrorists," and make him "a hero in certain circles, especially in the radical regions of Islam around the world."  Still, as reported in today's News Scan, Holder appears determined to go forward with the trial.  His unannounced visit on Wednesday to federal prosecutors and law enforcement officials in New York established some security plans for KSM's trial. 

For Fun:  Florida Facebooker's "Watch Who You 'Friend'":  Ashby Jones blogs on Wall Street Journal's Law Blog discussing last month's advisory opinion by the Florida Judicial Ethics Advisory Committee that stated that a judge may not "add lawyers who may appear before the judge as 'friends' on a social networking site, and permit such lawyers to add the judge as their 'friend.'"  The Committee appeared concerned that the identification of a lawyer as a "friend" could convey the impression that the lawyer was in a position to influence the judge.   

UPDATE U.S. Attorney General Goes to N.Y. to Discuss Security for 9/11 Trials:  New York Times writer Al Baker reports on Attorney General Eric Holder's unannounced visit on Wednesday to speak with federal prosecutors and law enforcement officials in New York.  As concern builds over the security arrangements for the upcoming trial of Khalid Shaikh Mohammed, Holder met with security officials, including Raymond W. Kelly, the city's police commissioner, and Joseph M. Demarest Jr., the assistant director in charge of the F.B.I.'s New York office, "to discuss coordination, cooperation and security for the upcoming trials of the 9/11 terrorists."  New York officials believe security arrangements will be similar to those used during New York's New Year's Eve celebration, and police are formulating security plans for bridges, the transit system and landmarks. Matthew A. Miller, a spokesman for Holder, stated that "There is broad agreement that we can safely and securely hold these trials."

Executions Lower Homicide Rates:  USA Today writer Dan Vergano reports on a study that shows "[e]xecutions in Texas slightly lower homicide rates there, about five to 10 killings in the year afterwards..."  The study, led by sociologist Kenneth Land of Duke University, examined executions in Texas between 1994 and 2005 and subsequent crime.  Researchers chose 1994 as a starting date because legal decisions had led to an increased number of executions during that year.  They found that about one to four months after an execution about 2.5 fewer murders occurred in Texas than would have otherwise took place.  The study concludes "that evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions."    Kent's comment on this study last month is here.

The neuroscience world has been buzzing as of late about a recent study, Association of Poor Childhood Fear Conditioning and Adult Crime, published in a recent issue of the American Journal of Psychiatry.  The gist of the article is the claim that children at the age of 3 who had an abnormal amygdala were more likely to engage in criminal conduct as adults.  There are problems with the study, however, as The Last Psychiatrist aptly points out.  

But there's an additional observation worth noting: the amygdala has become hot again, but what it can explain about human behavior is limited. 

Back in the 1990s, the amygdala was all the rage in the explanatory models of schizophrenia (with some renewed interested today).  But as of late, the amygdala has become the focus of explanatory models of psychopathic behavior. And while it makes intuitive sense that the amygdala could be (and probably is) involved in both disorders, there's a larger lesson to be learned. 

Back in the 1980s and early 1990s (before the widespread use of fMRI) the tool of choice in biological psychiatry was the EEG.   Stories were written with much fervor that the EEG could peer inside the brain and explain the mind by describing the electrical impulses detected by the EEG apparatus.  Soon, a particular type of brain wave was identified which seemed to have explanatory value in various behavioral models.   The P300 wave had been around for a while, but the evolution of psychiatry from its psychoanalytic traditions to one dominated by biological psychiatry was well under way by the 1980s.  Before long, researchers found that the P300 wave was abnormal in people with schizophrenia.  Then it was observed that the P300 was abnormal in alcoholics, people who abused cocaine, depression, Alzheimer's, smokers, borderline personality disorder... and the list goes on.

The point is not that the P300 models were wrong in the descriptive sense- they were surely right.  The issue is what localization models can explain.  Inasmuch as the P300 is indeed abnormal in schizophrenia and a myriad of other behavioral disorders, the amygdala is likely involved in various behavioral phenomena as well.  What that tells us about why people behave as they do, however, is quite limited and circumspect.   

Addressing Adequate and Independent State Grounds in Florida v. Powell:  On SCOTUSblog, Stanford Law student Sam Bateman spends some time discussing the independent state ground presented in Florida v. Powell.  Powell addressed whether Miranda v. Arizona required a police officer to advise of a right to have counsel present "during" questioning, and according to Bateman, when it reached the Supreme Court the case also addressed "whether the Florida Supreme Court's decision striking down the Tampa warning rested on an adequate and independent state law ground."  Based on Monday's arguments, Bateman believes there is a slight possibility that the adequate and independent state law question might cause the the Court to refrain from deciding the case.  Justice Ginsburg seemed concerned that even if the Court were to issue an opinion the Florida Supreme Court could say, "that's very nice, but we have a Florida Constitution with a counterpart to the Fifth Amendment, so we're just going to have the same opinion, but we are putting it...squarely under the Florida Constitution."  Bateman does not appear to believe that the majority of the Court shares Justice Ginsburg's concern.  He believes the Court is likely to decide Powell on the merits. 

What Lies Ahead for Ohio:  At Sentencing Law and Policy, Doug Berman posts some "early questions [and answers] following Ohio's successful one-drug lethal injection execution."  His post addresses whether this development proves that the death penalty can be improved, whether it will satisfy the opposition to the three-drug protocol, whether there will be more litigation, and whether Ohio may now execute Romell Broon.  Berman's comments on whether the one-drug execution will satisfy opposition is noteworthy.  He writes, "...I have long suspected that most (if not all) vocal opponents of three-drug lethal injection protocols are categorical opponents of the death penalty more generally, and thus I suspect there will be little celebration within this crowd tonight."

If Acquitted, Detainees Will Be Deported:  Daniel Newhauser writes on Blog of Legal Times that if the 9/11 co-conspirators are acquitted they will be deported.  Newhauser reports that in today's hearing before the Senate Judiciary Committee Homeland Security Secretary Janet Napolitano told Senator John Cornyn that "[i]n the off chance" that the co-conspirators are acquitted "they will immediately be placed into removal proceedings and deported."  She declined to comment on where the detainees might be deported.  According to the post, Napolitano also supports the decision of Attorney General Eric Holder Jr. to try Khalid Sheikh Mohammed and his alleged 9/11 co-conspirators in a New York federal court.  She stated that she did not consult with the attorney general because "[t]hat is a prosecution decision, and I think it was properly made by the attorney general."

"[I]t's our job as a society to put an end to" brutal teen violence:  On Women in Crime Ink, Robin Sax wonders how young children have become so brutally violent, and why witnesses to gang rapes and stabbings don't report the violence occurring right in front of them.  She reports on four recent crimes where witnesses sat by and watched a rape, stabbing or beating occur, and did not do anything. She chastises society for being "ambivalent, negative, and accustomed to blaming the victim."  She writes that the best way to prevent teen violence is to show children "that along with our rights as citizens come responsibilities to the other people in our community."  In other words, we must not look away from crime and violence, but address it head on.

Massachusetts AG Martha Coakley swamped her rivals yesterday to take the Democratic nomination for the late Ted Kennedy's seat in the U.S. Senate. Coakley was the target of an exceptionally boneheaded attack, even by today's low standards of political discourse. She signed on to the states' amicus brief in Wood v. Allen, written by the Indiana AG's office. Allen happens to be a capital case, but it involves an issue in federal habeas law that is common to capital and noncapital cases alike. To say that the Mass. AG should refrain from joining an issue of interest to the enforcement of criminal law in Massachusetts simply because the underlying case happens to be a capital one is an argument that only foaming-at-the-mouth anti-DP fanatics would buy.

This story by Matt Viser in the Boston Globe notes the criticism by Rep. Michael Capuano, who finished second yesterday, near the end of the story. Most of the article is about Capuano's criticism of Coakley for saying attacks on the Patriot Act were overblown, which they most certainly were. It's good to see that these attacks got little traction, even in Massachusetts, even in a Democratic primary.

Perry Bacon of AP has this story on the election results. State Sen. Scott Brown won the task of carrying the GOP banner up a very steep slope.

If Coakley wins the general election, as most political observers think is likely, how good a senator will she be on criminal justice issues? Only time will tell, but I will go out on a limb and predict that she will be far better than the late Sen. Kennedy was. (Okay, that's a short, sturdy limb.)

Guantanamo Bay Detainees Begin New York Hearing:  New York Daily News writers John Marzulli and Bill Hutchinson report that a federal grand jury in Manhattan has begun hearing evidence against alleged 9/11 mastermind Khalid Shaikh Mohammed and four of his Al Qaeda henchmen.  The jurors are expected to hear testimony and be presented with evidence that the men plotted the 2001 attacks that killed nearly 3,000 people.  The controversial decision move the men to New York and begin their trial sparked protests from the families of 9/11 victims.  The panel was seated in recent days and could take several weeks to hand down an indictment.

Ohio's New Execution Method Unlikely to Gain Traction in CA:  LA Times writer Carol J. Williams reports on this Tuesday's execution in Ohio, where a murderer was put to death with the nation's first single-drug lethal injection.  This marks the first time the execution method, some analysts consider more humane than the three-drug procedure used in California, was used.  California, and several other states that have the death penalty on hold, are reviewing their three-drug procedures to address claims that they might be inflicting cruel and usual punishment on the inmates.  The first drug, used in Kenneth Biros' execution Tuesday, is supposed to render the prisoner unconscious before paralysis is induced by the second drug.  Cardiac arrest is induced by the third drug.  California could change its method, but it is unlikely.  The State's Administrative Procedures Act requires authorities to seek public comment on any change in official practice.  Capital punishment supporters say opponents abuse the law to delay executions.  "Opponents of the death penalty then intentionally make that process more expensive and time-consuming than necessary by spamming [correction officials] with a flood of irrelevant comments decrying the death penalty generally," said Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.  Currently, the legal rights of capital prisoners contribute to an average 25-year period between sentencing and execution.  Only six of California's 685 death row inmates have exhausted all appeals and would be subject to execution.

Judge Comments on Ohio Inmate's Execution Appeal:  Associated Press writer Andrew Welsh-Huggins reports on a federal judge's statement that Ohio inmate, Romell Broom, may no longer have a valid pain and suffering claim to stay his execution.  U.S. District Judge Gregory Frost did not make a ruling but said Wednesday that developments in Kenneth Biros' execution could limit what killer Romell Broom may argue.  Frost says the Sixth Circuit's ruling appears to limit Broom to another argument over whether the state has the right to carry out a second execution attempt.

Finding an Attorney for Khalid Sheik Mohammed:  At Wall Street Journal's Law Blog, Ashby Jones reports that the attorney for Khalid Sheik Mohammed could be chosen from New York's "death list" - a group of 20 veteran defense lawyers with broad experience in death penalty and other complex criminal cases.  According to a New York Times story by Benjamin Weiser, the "death list" has at least two lawyers, Avraham C. Moskowitz and Joshua L. Dratel, who have some connection with terrorist attacks on the World Trade Center. Moskowitz even told Weiser, "I could not take that case, my background, my politics, my very essence would create the appearance of a conflict."  Whoever is chosen is up for a tough fight, particularly when a majority of Americans support the death penalty if KSM is found guilty.

A First for Justice Sotomayor:  Tony Mauro reports on Blog of Legal Times that Justice Sotomayor delivered her first opinion as a Supreme Court Justice today.  The opinion, Mohawk Industries v. Carpenter, held that disclosure orders adverse to attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine.  Mauro reports that it is customary for first opinions to be unanimous and that the Carpenter opinion was unanimous.  Justice Thomas authored a concurring opinion.  Jonathan H. Adler also notes "Sotomayor's First" on Volokh Conspiracy.

Commentary on Michigan v. Fisher:  Yesterday, on Volokh Conspiracy, Orin Kerr posted his thoughts on the Court's decision in Michigan v. Fisher.  Kerr notes that the facts of Fisher are "pretty similar" to Brigham City v. Stuart, and is surprised that the Court decided to take the case.  He believes the Court may have taken the case as a form of "error-correction just to make sure the state Supreme Courts are paying attention."  Kerr also appears surprised by Justice Stevens' dissent from the opinion.  Kerr discusses the Justice's argument that "the Court is justified in micromanaging the day-to-day business of state tribunals," and wonders why Justice Stevens, who "isn't known for his passion for federalism," took this opportunity "to raise federalism concerns."

Releasing an "Unrepentant" Pedophile:  At Sentencing Law and Policy, Doug Berman links to a story describing that the "oldest sex offender" is about to be released in Upstate, New York.  The Buffalo News story, by Lou Michel, explains that twice convicted sex offender, Theodore A. Sypnier, is about to be released from prison even though the former District Attorney believes Sypnier "remains a threat."  Sypnier, a 100 year-old pedophile, remains "unrepentant," and claims he is the victim of a colossal miscarriage of justice.  The current Erie County District Attorney Frank A. Sedita III believes that Sypnier "can't be cured....He's evil."  Michel reports that Synpier was ruled ineligible for a lifetime of civil commitment, and that authorities plan to monitor him closely upon release.  He will be monitored until 2012, but New York's Division of Parole told Michel that "[a]fter 2012, we will no longer be supervising him."

Ian Urbina has this story in the NYT on Ohio's use of a single-drug method of execution. The usual suspects make the expected noises, further confirming that all the professed "concern" over methods of execution is really opposition to whatever method is adopted.

Plan to Cut CA Prison Crowding Backed by Inmates' Lawyers:  Sacramento Bee writer Denny Walsh reports on CA Governor Schwarzenegger's plan to reduce 33 adult CA prison populations to 137.5 percent of design capacity within two years.  Lawyers for sick inmates stated their approval for the Governor's plan to reduce the prison population and urged a three-judge federal panel to allow state officials to decide on their methods.  The judicial panel, formed under provisions of the Prison Litigation Reform Act, ruled in August that substandard health care and overcrowding in the adult prisons violates the U.S. Constitution's ban on cruel and unusual punishment.  Governor Schwarzenegger and Corrections Secretary Matthew Cate have made it clear they will appeal the panel's final order, no matter what it says, to the Supreme Court.  They insist that the Prison Litigation Reform Act does not empower the three judges to dictate state prison policies.  Cate stated at a press conference that "the administration would prefer a plan that reduces the population much more slowly over a greater period of time" and relies more on bond-funded expansion of the prison system.

Kindler Death Sentence to be Reconsidered:  The Associated Press reports on the Supreme Court's decision to allow lower courts to consider reinstating a death sentence for a convicted murderer who twice escaped from prison after being found guilty of killing a man who intended to testify against him.  The Supreme Court overturned a lower court decision throwing out the death sentence against Kindler for killing one-time accomplice David Bernstein in 1982 in Beard v. Kindler.  Chief Justice Roberts said the state court decision has to be taken into consideration by the federal courts. "We hold that a discretionary state procedural rule can serve as an adequate ground to bar federal habeas review," Roberts said.  Kent's post on the opinion is available here.

The U.S. Supreme Court today decided Beard v. Kindler, a case on the procedural default doctrine. The decision is an important victory for the enforcement of the criminal law generally and capital punishment in particular, even though a broad question is left for a future case.

When a criminal judgment has been upheld by the state courts and is challenged in federal court, the petitioner often wants to make a claim that he did not make or did not make on time in the state court. The general rule is that the claim is barred by an independent state ground and cannot be reviewed in federal court, with exceptions for "cause and prejudice" or actual innocence. During the 1960s, when some state courts sometimes made up new procedural rules or gave them unforeseeable interpretations to evade civil rights requirements, the Supreme Court developed the concept of the "inadequate" state ground. In more recent years, federal habeas courts determined to evade limits on their authority have struck down state procedural rules as "inadequate" on the flimsiest of excuses. The Ninth Circuit, in particular, seems to have never met a state rule it liked.

 Today's decision disapproves one of the more extreme versions of "inadequate state ground" doctrine -- the notion that a state procedural rule is "inadequate" merely because it is discretionary. The Court's own Sullivan decision, discussed here, is curiously absent from the opinion even though it says exactly that, but surely Sullivan can now be considered overruled.

Many people, including the late Charles Alan Wright, yours truly, and the Philly DA, have argued that the Court should replace the existing mix of rubrics with a straightforward requirement that state law at the time of the default need only give the defendant notice of the right way to make the objection and a reasonable opportunity to do so. The Court today said the present case, involving the highly unusual "default" of escape from jail, is not the right vehicle to decide whether to make that change. The concurrence by Justice Kennedy comes very close to accepting it. The stage is set to make that change in the next appropriate case to come along.

Let's get those certiorari petitions in, folks. Charge!

Another Side to Lethal Injection Arguments:  At Homicide Survivors, Dudley Sharp dissects three arguments made against lethal injection in the United States.  First, Sharp tackles the argument that the murderer will experience pain during the procedure. He writes that although select research has suggested that the amount of sodium thiopental in the murderer's system may indicate that the executed was conscious, the authors of the often cited Lancet Study were "speculating."  Sharp's post offers up evidence from Michael Ross' execution to counter the speculation.  He then moves on to tackle the anti-death penalty argument that there is an ethical conflict for participation in the lethal injection process, because medical professionals have a requirement to "do no harm."  Sharp dispenses with the argument by pointing out that "ethical codes pertain to the medical profession, only, and to patients, only. Judicial execution is not part of the medical profession and death row inmates are not patients."  Sharp's third point addresses the argument that prison officials are not properly trained for IV application of drugs.  He notes that there are few errors in lethal injection that can be attributed to personal error, and states he is "unaware of evidence that shows criminal justice professionals are more likely to commit critical errors in the lethal injection process than are medical professionals in IV application.

Padilla Post-Argument SCOTUScast:  The Federalist Society's SCOTUScast series posted commentary from the United States Military Academy at West Point's Department of Law Professor Margaret D. Stock, on Padilla v. Commonwealth of Kentucky.  Padilla examines the claim an attorney was ineffective for failing to advise his client of the deportation consequences of pleading guilty.  Stock is well known in the area of immigration and citizenship law, and has testified as an expert before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, & International Law.  She finds the implications for immigrants "significant."  She believes that Padilla's case can have wide ranging effects for immigrants who plead guilty to relatively minor offenses.  She says that in many states judges in a criminal case will actually advise the defendant of the consequences of his guilty plea. In describing oral arguments Stock notes that Justice Scalia was concerned that the Supreme Court would be creating an undue burden if it were to create a Sixth Amendment right to counsel for all sorts of legal issues that a defense attorney might not be capable of management.  Stock believes that this could mean that the Court could limit its decision to apply only to the cases like Padilla's.  Transcripts from the October 13 argument are available here.

"Lincoln and Habeas:"  On Saturday, How Appealing's Howard Bashman linked to John Yoo's SSRN essay, "Lincoln and Habeas: Of Merryman, Milligan and McCardle."  According to the Abstract, the essay "examines the costs of judicial intervention in wartime policy through the lens of three Civil War cases - Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle."  He writes, "The Court's attachment to judicial supremacy in wartime ultimately provoked outright presidential defiance and the only clear example of congressional jurisdiction-stripping in the Court's history." 

Cert Granted in Law School Case:  At Blog of Legal Times, Tony Mauro writes that today, the Supreme Court agreed to hear Christian Legal Society v. Martinez, a case addressing University of California, Hastings College of the Law's denial of official recognition to the student group because it does not conform to the school's requirement that membership and leadership positions be open to all.  According to Mauro, the Ninth Circuit, in a brief unpublished opinion, said the law school's action was "viewpoint neutral and reasonable." The Christian Legal Society petitioned for cert., asserting that the Ninth Circuit's decision is in clear conflict with a Seventh Circuit decision involving the same organization, Christian Legal Society v. Walker.  University of Hastings predictably denied conflict among the lower courts, and sought to distinguish Walker.  The Court must not have agreed, and granted certiorari to determine whether a public university law school may deny school funding and other benefits to the student organization.  Eugene Volokh comments on Volokh Conspiracy that the Court's decision could extend beyond schools and "apply to tax exemptions and various other such schemes." 

US Supreme Court to determine Adequate Miranda Warnings:  A St. Petersburg Times article written by John Frank reports on a case to be heard by the US Supreme Court today to determine whether Kevin Dewayne Powell was adequately advised of his right to an attorney.  Powell was arrested on a charge of possession of a firearm by a convicted felon after police saw him leave a room and found a gun under a bed.  After being given a Miranda warning, Powell signed a acknowledgment of rights form and confessed to owning the gun.  At trial, he changed his story and alleged that police threatened to arrest his girlfriend if he did not take responsibility.  He was convicted by a jury and a judge sentenced him to 10 years.  In September of 2008, Florida's Supreme Court ruled that authorities needed to expressly convey the right to have an attorney present during questioning, and the Tampa police warning was inadequate. It "suggests to a reasonable person in the suspects shoes that he or she can only consult with an attorney before questioning." Opinion found here. Florida Attorney General Bill McCollum has asked the US Supreme Court to clarify the issue.  Tampa Police have since change the wording of the Miranda warning used, but there are Florida cases pending that are asking for clarification on the Miranda issue.  Oral argument transcripts are available here. 

Support for the Death Penalty:  Gant Daily published an article by Jesse Hicks reporting on the support of the death penalty in America.  According to professor Suzanna Linn at Penn State, support for the death penalty is on a decline.  Linn says "[a]lthough a majority still supports the death penalty in the abstract, fewer and fewer defendants are being sentenced to death both because prosecutors are less likely to seek the death penalty and juries are less likely to mete out a death penalty sentence."  Linn believes the decline in support is because of articles like "Trial by Fire: Did Texas execute an innocent man?", which was featured in the New Yorker magazine.  Kent's posts have demonstrated the healthy degree of skepticism that must be given to that particular piece.  More relevant information can be found by accessing the Gallup polls and by looking at the 35 states that still have Death Penalty statutes.    

As noted in Friday's Blog Scan, the Sixth Circuit on that day denied rehearing en banc to the challenge to Ohio's since-abandoned three-drug method of execution. That controversy is moot, and the court noted that the new one-drug method was not before it.

The day before, murderer Kenneth Biros had filed in the District Court a curiously titled "Emergency Motion of Intervenor-Plaintiff Kenneth Biros for a Temporary Restraining Order, or, at the very Least, for an Order under the All Writs Act Staying his Execution by Defendants and the State of Ohio." That motion was denied this morning in a grumbling 191-page opinion and order by District Judge Frost.

Biros's attorneys have asked the Sixth Circuit for a stay, Andrew Welsh-Huggins reports for AP. Also, Alan Johnson has this story in the Columbus Dispatch.

Today, the U.S. Supreme Court issued a per curiam opinion in the case Michigan v. Fisher (09-91).  Justices Stevens and Sotomayor dissented.  Fisher asked the Court to decide whether the Michigan Court of Appeals correctly applied the Fourth Amendment when it held that officers had not acted reasonably in entering Fisher's home without a warrant.  There was some question as to whether entry might have been justified under the "emergency aid" exception to the Fourth Amendment.

On October 31, 2002, two officers arrived at Jeremy Fisher's home and found him "going crazy" inside.  Fisher was screaming inside the house, throwing things, and officers found blood on the doors of the home and on the hood of the pickup outside.  The officers knocked, and saw that Fisher had blood on his hand.  They asked if he wanted medical attention and Fisher did not respond.  Instead, Fisher swore at the officers and told them to get a search warrant.  One officer decided to enter the house without the warrant.  He pushed the door open and saw Fisher pointing a gun at him.  He then withdrew.  Fisher was subsequently charged with assault of a dangerous weapon and possession of a firearm during the commission of a felony.

The U.S. Supreme Court this morning agreed to review another case sifting through the debris of the United States Sentencing Guidelines following its 2005 decision in United States v. Booker, 543 U.S. 220. The new case is Dillon v. United States, No. 09-6338. The Third Circuit's decision was originally unpublished but then published on the motion of the government. The lead paragraph follows the jump.

Legal Battle over Ohio's Lethal Injection Protocol:  Doug Berman reports on Sentencing Law and Policy that the Sixth Circuit has officially denied en banc review of a panel's ruling that Kenneth Biros challenge to Ohio's old three-drug lethal injection execution protocol is moot.  Berman recommends downloading the opinion just to read the concurring and dissenting opinions of Judge Sutton and Moore.  He notes that Judge Sutton's concurrence "suggests that Ohio's adoption of a new one-drug lethal injection protocol largely solves the asserted constitutional problems with Ohio's execution method."  Judge Moore sees things differently.  She believes that the Sixth Circuit erred in construing Biros' complaint as solely a challenge to Ohio's three-drug protocol, and still finds merit in the argument that "the old procedure and the new one share a common problem: poor training by the State of the relevant medical staff and the use of EMTs in implementing the protocol."  As Berman notes, this still does not resolve Biros' separate challenge to Ohio's single drug protocol, but it does increase the odds that he will be executed next week. 

Regarding Recusals:  Both David Ingram and Tony Mauro report on recent activity surrounding the issue of judicial recusals.  In his post, Blog of Legal Times reporter, Tony Mauro, discusses Justice Stevens' Wednesday recusal in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection.  Mauro reports the recusal may have been triggered by information about Stevens' Ft. Lauderdale property provided last week by the Cato Institute.  The Cato Institute filed a brief in the case and reports that last week one of its fans sent it public documents indicating that Justice Stevens' condominium is within a renourishment zone similar to the property at issue in the case.  In a related Blog of Legal Times post, David Ingram writes that the House Judiciary will hold hearings on judicial recusal on Thursday, December 10th.  Ingram writes that lawmakers plan to examine the process that federal judges use to decide recusal motions.  The hearings will mark the first time Congress has addressed recusals in a significant way since 2004.

Court Advocate Gets T.V. Show:  Ashby Jones writes on Wall Street Journal's Law Blog that NBC is developing a show around Akin Gump attorney, and Supreme Court practitioner, Tom Goldstein.  Variety's Michael Schneider was first to break the news.  He reported that NBC is planning to call the show "Tommy Supreme," and base it off of Goldstein's early days as an attorney who worked from home as he looked for cases likely to make it to the high court, volunteering to represent litigants for free.

As noted previously, the ABA Journal has its annual list of top 100 law blogs, or "blawgs." The five crim-law blawgs are here. Four of them are defense oriented, and then there is C&C.

You can vote for your favorite in the category if you register with the site. We don't put a lot of stock in Internet surveys. Of all the ways to select participants for a study, self-selection is near the bottom of the barrel. But if you have a minute, you can wander on over there, register, and vote just for grins.

Just punishment for the kidnapping, rape, and murder of 11-year-old Sarah Patterson was finally carried out yesterday, 12 years after the crimes. Michael Graczyk has this story for AP.

As noted in my post yesterday, the claim that the perpetrator was retarded was disproved by the pre-Atkins IQ tests of 78, 80, 86, and 83. They average 81.75, far above the retardation threshold of 70, and even the lowest score exceeds the threshold by more than the margin of error. As Steve Erickson explained, the post-Atkins score of 68 has far less probative value. The AP story says, "Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment."

There has been considerable discussion in the blogs about Justice Stevens' complaints of the cruelty of delay in the Tennessee capital case of Johnson v. Bredesen. Links to some of the posts are in yesterday's Blog Scan.

One point that needs further exploration is Justice Stevens' claim that "Johnson bears little, if any, responsibility for this delay." The reason he says that is that the prosecution did not disclose certain evidence until a change in state law gave Johnson access to it. Much of the subsequent litigation involved that evidence. But Justice Stevens cites only the Court of Appeals dissent to support his thesis that "if the State had not withheld exculpatory evidence ... Johnson would not have waited for 11 years on death row before the State met its disclosure obligations." (Emphasis added.) Citing only the dissent is a red flag that we need to check the majority opinion. Did the State default on any disclosure it was obligated to make?

First, it is important to note a commonly misunderstood aspect of the disclosure requirement of the Brady v. Maryland line of cases.  The Sixth Circuit majority summarizes it well in footnote 3 of its opinion.

We note the Kyles Court's iteration of Justice Blackmun's statement in Bagley that "the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. We have never held that the Constitution demands an open file policy . . . and the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate." 514 U.S. at 436-37 (internal citations omitted).

Thus, when a court finds that evidence not disclosed was not material, i.e., very unlikely to have made a difference, as every court that reviewed Johnson's claim did, the court is not making a finding of "harmless error."  It is finding no error at all.  If the evidence was not material, the prosecution had no federal constitutional obligation to turn it over.

So, Justice Stevens' assertion that this case involved "state-caused delay" through supposed violation of the state's "disclosure obligations" rests on a premise that both the state and lower federal courts rejected and the Supreme Court chose not to review.  Justice Stevens says, "The merits of Johnson's Brady claim are not before us; we denied certiorari on this issue several months ago." Yet his laying of the blame for the delay assumes the critical issue on the merits of the claim and assumes it in a way that is contrary to the final adjudication of the claim.

If Justices Stevens and Breyer are really this concerned about delay (and I am too, for different reasons), there is a great deal they can do about it. I'll leave that to another day, though.

Federal Use of Death Penalty Stays the Same:  Doug Berman posts on Sentencing Law and Policy that USDoJ is seeking  the death penalty at roughly the same rate under the Obama Administration as it did under the last Bush Administration AG. Berman links to an NPR article by Ari Shapiro discussing Attorney General Eric Holder's approval of  prosecutors seeking  the death penalty in 7 out of 61 cases - an 11% approval rating.  Shapiro notes that Holder has said he is not a proponent of the death penalty, yet, according to the Federal Death Penalty Resource Center's numbers, this is roughly the same rate at which former Attorney General Michael Mukasey approved federal use of the death penalty - 13%.  Both numbers are still very low, considering that 65% of Americans generally approve use of the death penalty and 57% believe it is fairly administered.  Holder's rate is only half that of the first Bush Administration AG, John Ashcroft.

Petitions to Watch:  Erin Miller posts SCOTUSblog's "Petitions to Watch" for the Supreme Court's conference tomorrow.  On the list are two habeas cases, Ryan v. Scott (09-274), and Ricci v. Kamienski (09-395).  Kamienski involves the 1987 murder conviction of Paul Kamenski, and asks the Supreme Court to resolve the standard of review for federal appellate courts analyzing a sufficiency-of-evidence claims in a habeas petition.  The Third Circuit reviewed the record and concluded "that no reasonable juror could conclude that the evidence admitted against Kamienski at his trial established that he was guilty of murder or felony murder beyond a reasonable doubt...."   The second case, Ryan v. Scott, asks the Supreme Court to address the Ninth Circuit's holding that an Arizona state rule did not provide a basis for an adequate state procedural bar. Specifically, the court held that the rule was not "regularly followed or consistently applied' by the Arizona state courts," based on one Arizona Court of Appeals decision...."  The facts of Scott will be familiar to regular readers of our site.  The Respondent in the case, Roger Mark Scott, was a part of the conspiracy to murder 4-year-old Christopher Milke, the victim in our brief Schiro v. Styers.

Bloggers Comment on Porter v. McCollum:  Both Jonathan Adler and Ed Whalen have raised interesting points regarding the Supreme Court's recent decision in Porter.  On Volokh Conspiracy, Adler comments that the Supreme Court has reversed three ineffective assistance of counsel claim's this term - the most recent being Porter v. McCollum. He writes that each case found the appellate court had been "too solicitous" of the defense, and each case was decided without oral argument. For Adler "it would appear the Court is quite unhappy with how appellate courts are handling ineffective assistance claims."  At NRO's Bench Memos, Whalen points to language in the decision that he believes recognizes an unborn human being as a child.   

"Evidence Theory and the NAS Report on Forensic Science": CrimProf Blog editor Kevin Cole posted a link today to Michael S. Pardo's upcoming article in the Utah Law Review.  In his article, the University of Alabama Law School Associate Professor of Law discusses the National Academy of Sciences' recent report on forensic science and its recommendations.  Pardo writes that although many of the report's recommendations "focus on activities that take place outside of legal proceedings," it also invites courts to respond and improve upon the law's use of forensic evidence.  He believes that courts should focus less on the admissibility of the evidence, and instead examine the sufficiency of the evidence.  

Court Comments on Constitutionality of Death Row Delay:  Lyle Denniston writes on SCOTUSblog that about an hour before Cecil C. Johnson, 53, was put to death by lethal injection today, Justice Stevens, in an opinion that Justice Breyer joined, commented on what Justice Stevens called the "underlying evils of intolerable delay" in Johnson's case.  Johnson was convicted and sentenced to death for three brutal murders he committed in the course of a robbery, he spent 29 years on death row.  According to Justice Stevens, "Johnson bears little, if any, responsibility for this delay."  For those familiar with Justice Stevens' stance on the death penalty, his opinion today, that he "remain[s] steadfast in my view 'that executing defendants after such delays is unacceptably cruel,' " is no surprise. Of course, neither is Justice Thomas' response to the Stevens opinion.  Justice Thomas rejects Justice Stevens' "novel" argument that "lengthy and inhumane delay" would violate the Eighth Amendment's prohibition on "cruel and unusual" punishment.  He writes, "I was unaware of any constitutional support for the argument then."  Marcia Coyle also discusses the "Death Clash at the High Court" on Blog of Legal Times.   Update: Ed Whelan has this post on the opinions at Bench Memos, titled "Justice Stevens' Bizarro World."

Shifting Blame for Clemmons Tragedy:  At Sentencing Law and Policy, Doug Berman writes that the more he "think[s] about [Clemmons'] case and hear[s] details about Mike Huckabee's 2000 clemency decision, the more I want to be sure some blame gets directed toward the poor state of modern re-entry services and the inadequate use of sophisticated risk assessment tools."  Berman links to a Seattle Times article by Nick Perry, Maureen O'Hagan, Jonathan Martin and Ken Armstrong that reports that Maurice Clemmons began to become mentally unhinged back in May.  The reporters write that on May 9th something set Clemmons off and he began throwing rocks at houses, cars and people. He was arrested, let out on bail, and then rearrested in July for failing to appear for his May arraignment.  Clemmons was eventually paroled on November 23rd.  In his blog post, Berman comments that this series of events reinforces his view that states and the federal government can do a better job sorting and monitory the past offenders that present the greatest risk to public safety.  He also advises that we "should not be too quick to lay blame principally on Huckabee for what seems to have been an understandable clemency call back in 2000."

Human Trafficking in North Carolina:  Robin Sax blogs on Women in Crime Ink writes that "[h]uman trafficking is one of the most hidden crimes," and occurring, with very little recognition, right here in the United States.  She posts on the case of Shaniya Nicole Davis, a five-year-old sold as a sex slave by her mother in Charlotte, N.C.  Sax uses the case to applaud the work of local prosecutors for calling this crime "what it is" - human trafficking.  She believes that while human trafficking may be more difficult to prove, the crime must be recognized for what it is because "the first step toward stopping it is to acknowledge that it exists."

You Never Know Who Will Show Up for Jury Service:  Ashby Jones posts on a curious incident in a Birmingham, Alabama courtroom.

As Kent notes, there have been a series of posts over the internet about the impending execution of Bobby Woods.  Many have claimed that Woods is mentally retarded and his execution would therefore violate Atkins v. Virginia.  But what evidence is there that Woods is mentally retarded?  As Kent notes, there are three criteria which all must be meet in order for someone to meet a clinical diagnosis of mental retardation:

1. A full-scale IQ score of 70 of less;
2. Significant limitations in adaptive functioning (e.g., an inability to dress oneself or use the bathroom without assistance);
3. Age of onset before 18. 

Of course, in Atkins, the Court did not expressly claim that these clinical criteria were dispositive; rather the Court was willing to defer to the various state legislatures.  But those legislatures have largely adapted these clinical criteria with the understanding that they have been formulated by the scientific knowledge of the professional bodies which promulgated them.

Applying Atkins is difficult.  Obviously, anyone on death row has a vested interest in appearing mentally retarded.  This is known in psychology as the problem of secondary gain.  The problem is amplified in Atkins claims because the various psychological tests used to assess IQ assume that the test-taker is exerting maximum effort.  None of the tests are designed to detect whether the test-taker is intentionally trying to appear less intelligent than he or she really is.  After all, in most contexts, higher intelligence has direct benefits for the test-taker.  Not so when an Atkins claim is at issue.

To overcome this difficulty, most forensic psychologists rely on historical records to collaborate their hypothesis.  And none are more relied upon than prior IQ tests that were administered before the test-taker had a powerful incentive to appear less intelligent than they really are.  When only 1 out of 5 IQ tests indicate mild mental retardation (with the rest showing no retardation) the weight of evidence is strongly against the hypothesis of mental retardation.  The fact that the only test indicative of mental retardation was administered during pending litigation makes it highly suspect.

More curiously, though, are claims that watching short video clips is a reliable and valid method of assessing mental retardation.  It surely is not.  Psychological assessment of intelligence is a highly involved and complex affair. This is even more true in borderline cases such as this Woods case.  Woods' only score indicative of mental retardation is 68, which - if it were to be believed as accurate - would barely place him in the mildly mentally retarded range.  The idea that one could ascertain someone as mentally retarded immediately upon meeting them only holds weight if the person was profoundly retarded - which clearly Woods is not.    And it was this distinction that the common law got right before Atkins.  

Jurors Dispute Willingham's Innocence:  Evidence keeps cropping up to challenge the veracity of roving reporter David Grann's allegation in his September 7, New Yorker article  that Texas executed an innocent man 2004. Earlier posts here, here and here reported facts related to Todd Cameron Willingham's conviction and death sentence for the 1991 arson and  murder of this three children. Grann's piece focuses on the forensic evidence of arson, which has been disputed by other experts. Today, a story by AP writer Jeff Carlton quotes Willingham's defense attorney, and four jurors he was able to locate from the 1992 trial. All of them still believe Willingham is guilty.  The veteran defense attorney says that he did not present a fire expert at trial because "We hired one...and he said: 'Yep.  It's arson.'"  The two fire experts who testified for the prosecution found evidence that an accelerant was used to start the fire.  The jurors noted that, in addition to the forensic evidence, other information helped to convince them.  Days after the fire Willingham was at the scene complaining that his dart set was either burned or stolen. He then told a fire department paramedic that he had poured cologne (an accelerant) along the floor from the bathroom through the hallway (where the childrens' bodies were found) because the children liked the smell.  Neighbors testified that while his children were trapped inside the burning house, Willingham moved his car to keep it from catching fire.      

SL&P has this post, linking to this post at Stand Down Texas, regarding Bobby Wayne Woods, who has an appointment with the Grim Reaper tomorrow. Reading these posts, you might think that Woods has a substantial argument that he is mentally retarded and hence ineligible for execution. Jumping to that conclusion without reading the opinions in the case would, of course, be foolish. Here are two of the opinions: the Fifth Circuit's 2007 opinion on the retardation issue and its 2002 opinion disposing of the pre-Atkins issues. I've put the facts of the crime after the jump.

A diagnosis of mental retardation requires three elements. Somewhat simplified, they are sub-70 IQ, poor functioning in society, and being that way before 18 (as opposed to, e.g., later brain damage). Let's look at the IQ first. Here are Woods' IQ test results:

1st grade: 78 (WISC)
4th grade: 80 (WISC)
1972 (age 7): 86 (Cal. Short Form)
1998 (age 33): 83 (short form upon entry to Tex. prison system)
recently: 68 (WAIS-III, during Atkins litigation)

Which of these tests is the least reliable? The last one, obviously. It is an outlier from the others and it was given at a time when Woods had the strongest possible incentive to do poorly on a test where effort is essential to validity. From the Fifth Circuit's summary of the state court opinion:

Based on this evidence, the state habeas court concluded that Woods failed to prove each required element by a preponderance of the evidence. Regarding Woods' general intellectual functioning, the court noted, in part, the existence of four IQ test scores placing Woods above the seventy-point cutoff. It also found compelling the fact that Dr. Schmitt, the defense's expert, was the only person to test Woods' IQ below seventy and the only expert who has tested Woods and concluded that he is mentally retarded. The court further noted that Woods' lowest IQ score was attained when he had an incentive to perform poorly, but Woods' IQ scores were higher when he had no such incentive.

Bingo. That is sufficient to dispose of the retardation claim. But there is more. See the opinion for details.

Oh, and what did the sainted Mr. Woods do, BTW?

Some Point and Counterpoint Arguments to Legalizing Marijuana:  Ashby Jones writes on Wall Street Journal's Law Blog, that New Jersey could be the next state to allow residents to use marijuana, when recommended by a doctor, for relief from serious diseases and medical conditions.  According to Jones, New Jersey's Senate has approved the bill and the state Assembly is expected to follow. If the bill reaches the desk of Governor Jon Corzine before he leaves office it will probably become law.  A story by Suzanne Sataline provides more details. Instead of focusing on the politics surrounding the New Jersey legislation, Jones' post focuses on potential tax revenues states might take in were marijuana legalized and regulated.  Jones provides quotes from a "point/counterpoint" debate on whether legalizing and taxing marijuana is really worth the cost.  Stephen Easton writes for the "pro" side that taxing marijuana "could raise $40 billion to $100 billion in new revenue."  Bob Stutman then points out "studies show that the U.S. collects about $8 billion yearly in taxes from alcohol. The problem is, the total cost to the U.S. in 2008 due to alcohol-related problems was $185 billion..."

Sex Offenders in Nursing Homes:  At Sex Crimes, Corey Rayburn Yung provides a link to a Chicago Tribune article that reports many sex offenders living in Illinois' nursing homes are not on the state's sex offender registry.  The article, by David Jackson and Gary Marx, found that only 59 of the 192 sex offenders in Illinois nursing homes -- or less than one in three -- were listed on that online state registry.  The two report that state investigators have documented more than a dozen instances since 2007 in which nursing homes failed to notify local law enforcement that they housed a convicted sex offender, as required by law, or failed to implement care plans to monitor and treat sex offenders inside the facilities.  Jackson and Marx also note that in some cases unregistered offenders have allegedly molested vulnerable residents and even staff. 

Department of Justice Census on Public Defenders' Office:  The American Constitution Society posts a link to the Department of Justice's Census for Public Defender Offices, 2007, and a description of the report by Matt Kelly, the Online Communications Director for the Innocence Project.  The report looks at public defender office staffing, caseloads, expenditures, and standards and guidelines used by the nearly 1,000 public defender offices found across 49 states and the District of Columbia.  Kelly writes that Public Defender Offices have had it rough this year because of staffing cuts, he writes, "BJS study found that the 17,000 attorneys in 2007 were aided by 11,000 support staff - from secretaries to file clerks to investigators and paralegals."  He mentions that prosecutors' offices are feeling the pinch too.  A 2005 DOJ report found that half the prosecutors' offices Nationwide employed 9 or fewer people and had a budget of $355,000 or less.

Amendments to Federal Rules of Appellate Procedure Take Effect Today:  Howard Bashman writes on How Appealing that "[t]oday is the first day of the so-called 'days are days' approach to calculating time."  Now, when the rules speak of "days" in the calculation of time, the rules will mean calendar days regardless of the length of the period at issue. The amendments are available here.  

Surprisingly, the hard-nosed Justice Scalia has granted an extension to file the certiorari petition to the notorious Peter Anthony Cantu, the leader of the gang whose crimes gave rise to Medellin v. Texas. Prior posts on the case are here, here, here, and here.

Justice Scalia went so far as to give 2 more days than Cantu's lawyer requested. She asked for February 6, a Saturday, and he gave her until the following Monday, February 8. Execution in June, perhaps.

Huckabee Haunted by Clemency Record:  New York Times writer Kate Zernike reports on former-Arkansas Governor Mike Huckabee's decision to grant clemency to Maurice Clemmons nine years ago.  When Huckabee granted clemency he cited Clemmons age - 16 when he began the crime spree for which he was sentenced to more than 100 years in prison - as a reason for the grant.  Yesterday, Clemmons became the prime suspect in the killing of four uniformed police officers on Sunday.  In one decade as governor beginning in 1996, Huckabee granted clemency twice as many times as his three predecessors combined.  Clemmons applied for clemency in 2000, writing to Mr. Huckabee that he had fallen in with a bad crowd, in a bad neighborhood, and "had learned through the 'school of hard knocks' to appreciate and respect the rights of others."  While Huckabee has declined requests for an interview about the matter, a statement from his political action committee's press team stated that should Clemmons be found responsible for the shooting,"it will be a result of a series of failures in the criminal justice system in both Arkansas and Washington State." Another article by the Associated Press can be found here.

"Terror by Trial Lawyer":  Wall Street Journal writer William McGurn opines on the Senate Judiciary Committees decision to hold a hearing on the Notice Pleading Restoration Act of 2009.  Introduced by Arlen Specter (D., Pa.), this bill could undo a recent Supreme Court ruling that gave us this common sense standard: Before you can sue someone, you have to have a plausible claim they did something wrong.  The U.S. Chamber of Commerce opposes the bill, saying it would impose a hefty "litigation tax" on American business and encourage frivolous lawsuits.  The bill will also make it easier for a terrorist to sue military and federal law enforcement officers.  That is what Javaid Iqbal, a Pakistani Muslim detained after September 11th tried to do.  He was designated a person of "high interest," and detained under restrictive conditions.  After pleading guilty and serving time, he was released and sent back to Pakistan.  Once free, Iqbal filed a lawsuit against more than three dozen federal officials and corrections officers, including Attorney General John Ashcroft and FBI Director Robert Mueller.  The complaint alleged that they had discriminated against him based on race, religion or natural origin.  The Supreme Court ruled that while Iqbal was free to sue those who he says abused him, but he needed to assert a plausible claim with "factual content that allows the court to draw the reasonable inference that the defendant is liable for the conduct alleged."  McGurn comments that "this may not sound like much," but is concerned that Senator Spector's bill will impede top U.S. officials' ability to prosecute the war.

War Trauma Becomes Issue in Capital Cases:  New York Times writer Adam Liptak reports on a death penalty lawyer's failure to present evidence of the trauma his client suffered in combat, and the Supreme Court ruling requiring a new sentencing hearing for the man.  The decision, Porter v. McCollum,  makes it clear that lawyers for clients facing the death penalty must present evidence of post-traumatic stress disorder resulting from military service if it is available.  The 15 page unsigned opinion was critical of Porter's attorney, Sam Bardwell.  The Court did not believe that Mr. Bardwell had conducted a "thorough - or even cursory - investigation," and determined his decision not to investigate "did not reflect reasonable professional judgment."