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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."  

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