June 2010 Archives

Kagan and "Evolving Standards"

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Curt Levey of the Committee for Justice has a worthwhile reminder from this afternoon's give-and-take with Solicitor General Kagan:

Kagan says she agrees that evolving traditions are one of the factors courts can look to in interpreting the Constitution. Sen. Cornyn responds that it's the job of the democratically elected legislature, not the courts, to move the law in accordance with the traditions and values of the people it represents. Instead, as Justice Scalia remarked in his Romer v. Evans (1996) dissent, it's the evolving "views and values of the lawyer class from which the Court's Members are drawn" that the Court tends to enforce. Those who prefer the living Constitution approach to the law do so precisely because more democratic methods of moving the law - legislation and constitutional amendments - do not allow the intellectual elite to impose its values on average Americans.
Amen to that.

News Scan

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Holder Accused of Bias:  A story from Fox News reports that a former Justice Department attorney has accused Attorney General Eric Holder and political appointees in the Civil Rights Division of ordering him and other lawyers to drop charges against the New Black Panther Party. The charge was for violating the Voting Rights Act by threatening and intimidating voters in Philadelphia during the 2008 general election.  In an OpEd piece in last Friday's Washington Times, J. Christian Adams wrote, "Based on my firsthand experiences, I believe the dismissal of the Black Panther case was motivated by a lawless hostility toward equal enforcement of the law."  Adams, now a lawyer in Virginia said the voter intimidation case against the Black Panthers was  "the simplest and most obvious violation of federal law I saw in my Justice Department career."  In a written statement, a Justice Department spokesperson dismissed Adams' claims as a "good faith disagreement."   Adams notes that, at a meeting with one of the Division's senior deputies to discuss dropping the charges, the former Voting Section chief Christopher Coates became so angry that his supervisors had refused to even review staff memos on the facts supporting prosecution, that he threw them at the deputy.  The department subsequently removed all of Mr. Coates' responsibilities and sent him to South Carolina.

Judicial minimalism is gone?

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So Adam Liptak writes in the NYT. I have a different view.

Last June, the Supreme Court term ended with restraint and a cliffhanger, as the court left the Voting Rights Act intact and ordered re-argument in Citizens United, the big campaign finance case.
A year later, the profile of the court led by Chief Justice John G. Roberts Jr. is fundamentally changed. Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.

Really?  Let's look first at the criminal cases, the ones I know the most about.

The Criminal Brain

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NPR is doing a series on psychopathy and responsibility.  The series is a timely one given the growing interest in the field of neurolaw and those who argue that psychopaths should be entitled to excuse or substantial mitigation due to their impaired brains.  In today's segment airing on NPR I offer a skeptical- albeit brief - view.  

Elena Kagan, "Pragmatist"

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One of the main problems with confirmation hearings is that it's almost impossible to pin down the nominee to specifics, and even if it could be done, there is no way to hold her, once confirmed, to what she said.  Still, it's not entirely a charade; "mirage" is a better description. 

As the ever-insightful Ed Whelan observes on NRO's Bench Memos:


Kagan's repeated refrain [in response to questions about President Obama's empathy "standard"] that "It's law all the way down" is a nice-sounding proposition, but there's nothing in the judicial philosophy that Kagan has so far expressed that supports her assertion that her approach would be constrained.  In other words, if what Kagan considers "law" (i.e., legitimate legal resources) includes, say, the sort of vacuous philosophizing encapsulated in the proposition (see This Day for June 29, 1992) that "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," then there's no limit to the results that she could reach. 


Kagan describes herself as a pragmatist.  Again, that sounds nice (as though the alternative is to be unpractical), but what she means by that is that she'd be free to pick and choose in the vast majority of cases among a range of interpretive methodologies.  Unless that choice is guided by a higher principle (and Kagan suggests none), Kagan's approach is so malleable that it would enable her to reach whatever result she wants on the most momentous constitutional questions. 


It's not a meaningful answer to this criticism to assert (as now seems to be the fashion) that judging involves judgment.  If that judgment is ad hoc, rather than guided by principle, it's merely a disguise for judicial willfulness.


Kagan on the Death Penalty

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I did not see this part of Ms. Kagan's testimony, but the AP reports it this way:


Supreme Court nominee Elena Kagan is reaffirming her support for the death penalty, saying its constitutionality is "established law."

Under questioning by Democratic Sen. Dick Durbin at her confirmation hearing, Kagan says she has a different outlook than her mentor, the late Justice Thurgood Marshall, who dissented in every death penalty case based on moral grounds.

Kagan says she believes the death penalty is "settled precedent going forward" and generally should not be disrupted.


Kagan is a smart cookie for sure.  She's supple and elusive without being off-putting.  Death penalty backers should not be too cheerful about Kagan's response, however, given that she appears to be describing the law as it exists.  The trick here is that the Supreme Court gets to change the law as it exists, and the Justices most willing to do so are the ones who, like Kagan, subscribe to the "living document" theory of the Constitution.

Still, Kagan's answer that the death penalty is settled precedent "going forward" was about as good as we were going to get, and at least slightly re-assuring.

News Scan

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Repeat Felon Sought for Killing Cops:  Florida police are searching for 24-year-old Dontae Rwshawn Morris, wanted for the early morning murder of two Tampa police officers during a traffic stop.  An AP story by Tamara Lush reports that the stop occurred at 2:15 am when officers noticed a red Toyota Camry without a license plate.  A man and woman were in the car when the officers approached, and the man was identified as Morris, who was wanted on a bad check charge.  A few minutes after the stop a passerby called 911 to report that the two officers were down.  Officer Jeffery Kocab is survived by a wife nine months pregnant with their first child.  Officer David Curtis was the married father of four boys.  Morris, who had been in prison twice for dealing cocaine, had been out for two months.  In 2006 Morris beat charges of attempted murder, aggravated battery and attempted robbery.  In too many states criminals like this are being released early to save money.

NAACP Backs Legalizing Pot:  Noting that blacks are disproportionally arrested for marijuana crimes, the NAACP of California announced that it supports California Proposition 19, which legalizes the possession and cultivation of marijuana for personal use.  AP writer Marcus Wohlsen reports that the NAACP announcement has outraged a coalition of black religious leaders.   Coalition President Ron Allen said the civil rights group's position disregards the harm to the black community caused by drugs.  "The NAACP does not represent the African-American community when it comes to legalizing marijuana," Allen said.  The Regulate, Control and Tax Cannabis Act of 2010 has qualified for California's November 2, 2010 general election ballot.    


Respect for the Court, Chicago Style

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Earlier this year, we were treated to the sight of a prominent Chicago politician dressing down the Supreme Court as several of its members sat, like chastened third graders, in the well of the House of Representatives.

Within hours of the Supreme Court's decision today nullifying Chicago's gun ban as a violation of a fundamental right reserved to law-abiding citizens under the Constitution, another Chicago politician gave the city's response :

As expected, Mayor Daley and Chicago's City Council are circling the wagons to defend against an unfavorable decision by the Supreme Court concerning the city's gun ban.

Daley said the city would have in place a new ordinance aimed at making it difficult to purchase and own a gun in Chicago.

"We'll publicly propose a new ordinance very soon," Daley said at an afternoon press conference concerning the gun ban.

"As a city we must continue to stand up ..and fight for a ban on assault weapons .. as well as a crackdown on gun shops," Daley said. "We are a country of laws not a nation of guns."

Like his father, Chicago's current Mayor Daley seemingly has no sense of irony.  The quotation he's mimicking is that we're "a nation of laws, not of men."  Which I guess is true, except if you're Mr. Daley.  Then we're a nation of defiance, not of law.

Isn't this Blago's hometown, too?

Wise restraints that make us free

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Justice Scalia, in his usual style, writes a scathing review of Justice Stevens' dissent in the McDonald case. His main problem is that Justice Stevens' abandonment of history as the determinant of what rights the Constitution protects places insufficient constraints on judges. It "basically means picking the rights we want to protect and discarding those we do not."

After all, what is the difference between the Miranda rule celebrated in the halls of academe and the Lochner rule disparaged there? Is Miranda better grounded in the text and history of the Constitution? Of course not. The Politically Correct like the result in Miranda and not in Lochner, period.

In her opening statement Justice-to-be Kagan says, "We tell the new graduates that they are ready to enter a profession devoted to 'those wise restraints that make us free.'"  Does that include restraints on the judiciary?

For these reasons, the Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one - properly deferential to the decisions of the American people and their elected representatives. What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.

I hope she really believes that. More importantly, we need to know the nature of the limits as she sees them. Surely it is not blind deference to anything the legislature enacts. What, then? Is it history and the original understanding of constitutional text?  If not, is there anything else that amounts to a real restraint? As the Scalia-Stevens debate today illustrates, any other claimed restraint is likely illusory.

American Exceptionalism

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Is the Constitution of the United States a uniquely American document, defined with reference to American history and ideals, or is it a port for courts to plug into some universal Cosmic Consciousness and set the American people straight when we, in our ignorance, stray too far from what the judges know the world knows is right?

The American exceptionalism view got a big boost today, and the universality view took a big hit in the guns case, McDonald v. City of Chicago.  From Justice Alito's majority opinion (emphasis in original):

"In answering [the incorporation] question, as just explained we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty...."

Justice Stevens sees it differently.

The Byrd Seat

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As a result of the death of Senator Robert Byrd, West Virginia Governor Joe Manchin will appoint a replacement to serve until ... um ... we're not exactly sure.  Paul Kane has this story in the WaPo.

It could matter a lot whether the appointee's term ends in January 2011 or January 2013. 

The Senate will surely be more closely divided after the next election than it is now. West Virginia is a state that generally leans Democratic yet is also generally conservative in many ways. That is a candidate for a Republican pick-up in a year with no incumbent and a generally pro-GOP trend.  Change of control is something less than an even-money proposition right now, but it's a bit closer if there is a West Virginia election.

The Senate Judiciary Committee would be a very different place with Jeff Sessions in the chair.

George F. Will has an op-ed in today's Washington Post listing questions Solicitor General Kagan ought to be asked.  I found this one particularly of note for those of us interested in the future of the death penalty:

 Some persons argue that our nation has a "living" Constitution; the court has spoken of "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, speaking against "changeability" and stressing "the whole antievolutionary purpose of a constitution," says "its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Is he wrong?

The other questions aren't bad either.  Read the whole piece here.

After Heller declared two years ago that Second Amendment rights belong to individuals, there was a groundswell of litigation by federal defendants challenging the felon-in-possession prohibition in federal law.  For the most part, it went nowhere.


Still, hope springs eternal in the defense lawyer breast, and these same groups were hoping that McDonald would give new life to their claims.  Sorry about that.


The key passage in today's opinion is this: "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill'...We repeat those assurances here."


Defendants were losing almost all their cases after the Court said it once in Heller. Now that it's been repeated in McDonald, one must think defendants will be doing even worse, if possible.


N.B.  I agree with McDonald that possessing firearms for self-defense is a fundamental American right.  But I do not agree with the ideological criminal defense bar that the Second Amendment confers a right for persons adjudicated guilty of serious crimes to keep an AK-47 in case someone, somewhere, sometime 'disses them on the street.

Cert. Grants & Denials

Only one criminal case was taken up by the Supreme Court today, a federal resentencing case, Pepper v. United States, No. 09-6822. Eighth Circuit opinion is here. Today's Supreme Court orders list is here.

The Court denied certiorari in the case of Missouri murderer Reginald Clemons, No. 09-1274.

Senate Notes

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Senate Judiciary Committee hearings on the nomination of Elena Kagan begin today. AP story is here.

The Senate has 99 members today. Sen. Robert Byrd died at 3 a.m. this morning at the age of 92. WaPo story by Joe Holley is here.
No big surprise, the right to bear arms recognized as an individual right in District of Columbia v. Heller is "incorporated" in the Fourteenth Amendment and made applicable to the states. The decision in McDonald v. City of Chicago is 5-4 on the practical outcome, divided along the predictable conservative-liberal lines.

On the theoretical question of whether it is the Due Process Clause or the Privileges or Immunities Clause that does the incorporation, Justice Alito's plurality opinion sticks with the traditional view of the Court's Warren/Burger-era precedents. Justice Thomas alone would go with the Privileges or Immunities approach. That approach is a better fit to the language and history of the Fourteenth Amendment but contrary to a lot of precedent. Justice Scalia goes along with Substantive Due Process based on the weight of precedent, but he grumbles a bit. He also crosses swords with Justice Stevens's dissent on fundamental issues of constitutional interpretation.

The majority portion of Justice Alito's opinion reiterates some good language from Heller on the importance of the right of self-defense.  (Use of force by the victim of crime, BTW, is the one issue of substantive criminal law where CJLF has filed briefs in support of defendants.)

The opinions and syllabus run 214 pages, so I expect to have more to say when I have a chance to read them in depth.

Let's say you had a few too many and ran your car off the road.  You have a pretty good idea you're going to get busted for drunk driving.  You're uninjured, but you've got time on your hands while waiting for the cops to come pry you out of your overturned car.

What to do?

Well, you might have a Kindle.  You might take out your Droid and check things on Facebook.  You could pull out the iPod and go through your e-mail.

With all this, there are probably shrewder choices than the one made by Mr. Sneddon.

A Danger and an Opportunity


Come November, the death penalty debate is going to get a shot in the arm, so to speak.

Doug Berman reports on SL&P that the well-tattooed former drug user, now local Houston judge, Kevin Fine, will convene a hearing November 8 on whether the death penalty is forbidden by the Eighth Amendment under the theory that it presents too grave a risk that innocent people will be (and have been) executed.  Doug quotes a Texas newspaper report as saying:

Fine initially granted the motion [to forbid the death penalty] in March, declaring the law unconstitutional because he believed it is safe to assume innocent people have been executed.  He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality. 


There are at least three problems immediately evident here.  One is that "this reality" is no such thing.  There is not a single case in at least the last 40 years in which any neutral body  -- a court or anything else  --  has found that an innocent person has been executed.  The shrillness of these executed-but-innocent claims is matched only by their mendacity, as Justice Scalia demonstated in his devastating concurrence in Kansas v. Marsh.

Second, it's a mystery why the defendant in the case before Judge Fine should benefit, on supposed innocence grounds, from proof, if there were any, that an innocent person had been executed in a different case.  Absent a showing that the present defendant is arguably innocent  --  and no such showing has been made to my knowledge  --  an innocence error elsewhere is irrelevant.  The defense argument here is to be taken no more seriously than an argument that, because innocent people have sometimes been convicted and imprisoned, imprisonment in every case violates the Eighth Amendment.

But it's the third reason that really rings the bell in this case, and shows what a con job it is.

Counseling and Anger Management

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There's a good deal of hand-wringing going on about the United States as "incarceration nation." This is typically followed by a call for more "humane" or "creative" sentencing such as counseling and anger management.  These represent more enlightened options for the much-ballyhooed "first-time, non-violent" offender  --  which apparently means all of them, since the "incarceration nation" crowd is seldom able to locate an inmate who might actually be dangerous.  Counseling and anger management will do.

Hence this delightful story from near my hometown:


ALEXANDRIA, Va. (AP) -- A former priest and anger-management counselor who pulled a gun in a traffic dispute on two men who happened to be U.S. Marshals has been sentenced to a year in prison. Fifty-seven-year-old Jose Luis Avila of Annandale pleaded guilty earlier this year in U.S. District Court to assaulting a federal officer.

In January, Avila was driving by the marshals near his home. He honked his horn because he believed they were standing in the road. When he thought one of the marshals made an obscene gesture at him, he pulled out a loaded handgun.

The 12-month sentence was in line with what prosecutors had sought. Defense lawyers wanted probation or time served; Avila has been jailed since January.

Avila has also been ordered to undergo anger management.


Honestly, you can't make up stuff like this.

Debating the Kagan Nomination

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Ed Whelan at NRO has done an excellent job keeping us informed about Solicitor General Kagan's nomination to the Supreme Court.  His work is about to be supplemented by a debate hosted by the Federalist Society.

Federalist Society debates are almost always thoughtful and entertaining.  I expect this one fully to meet that standard, since one of the participants is the brilliant Paul Mirengoff, my friend since law school and a founding contributor to the influential blog PowerLine.

I'll be following the debate daily, and I invite our readers to join me. 

Bringing Drugs to Jail

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Does a person commit the crime of knowingly bringing a controlled substance into a jail when his entry into the jail was involuntary (i.e., when he was arrested for another crime). Yes, in California, the Cal. Supreme Court decided today in People v. Low, S151961. Does the dilemma of having to either violate this statute or dump the drugs in view of the arresting officer before entering the jail, thus effectively admitting the lesser crime of possessing them outside the jail, violate the Fifth Amendment? No.

Franken at ACS

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Michael Gerson has this WaPo op-ed reviewing Senator Al Franken's remarks to the American Constitution Society. Gerson is not impressed.

Most of the traditional elements of a Franken rant were employed against Chief Justice John Roberts and conservatives on the Supreme Court. The attack on motives: The "Roberts court has consistently and intentionally protected and promoted the interests of the powerful over those of individual Americans." The silly hyperbole: "What individual rights are so basic and so important that they should be protected above a corporation's right to profit? And their preferred answer is: None. Zero." The sloppy, malicious mixed metaphor: The Roberts court is putting not a "thumb" but "a fist with brass knuckles" on the "scale" of justice. Franken was clearly summoning all his remaining resources of senatorial dignity not to say something like Roberts is a "lying liar who lies along with his lying lackeys for his lying corporate lying masters."

You would never suspect from Franken's speech that the Roberts court, in key cases, has sided with employees who allege discrimination and against corporations. It is never enough for Franken's opponents to be misguided or mistaken; they must want women to be sexually harassed in underpaid jobs while their children die of lead poisoning.

Franken's speech is worth noting only because it is the purest, most simplistic expression of a liberal argument.

Gerson goes on to defend originalism against Franken's simplistic attack.

Honest Services Mostly Survives


The Supreme Court handed down its three honest services opinions this morning (Skilling, Black and Weyhrauch).  By far the most important is the Skiling case.  Seldom has a defendant suffered a more devastating win.

Skilling, it will be recalled, was one of the Enron executives who made a fortune short-selling the stock while lying to shareholders and employees about Enron's true financial condition.

Skilling won what was certainly the most hyped part of the case.  That is, he won the vacating of his conviction for conspiring to violate the honest services statute, on the ground that the conviction came about under what the majority decided was an excessively broad construction of the law.  But that is pretty much as far as it went for Skilling.  The conviction was not reversed; it was remanded to the lower courts to determine whether the error was, against the backdrop of the other massive evidence of Skilling's deceitful behavior, harmless.  
Almost everything else in the case was bad news for Skilling and other honest services defendants.

Nice Timing

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Chances are very good that the Supreme Court will announce its decision in the controversial gun control case, McDonald v. Chicago, on Monday, the very day the Judiciary Committee opens its hearing on the Justices' likely new colleague. It's all good, though, because the opening day is typically just senatorial bloviating, and nothing really interesting happens anyway.

Successive Petitions

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Today the Supreme Court dropped the other shoe left from Burton v. Stewart, 549 U.S. 147 (2007).  When a state prisoner gets federal habeas relief on punishment but not guilt and is then resentenced, does the successive petition rule bar any claims in a new habeas petition that could have been raised in the first one?

No, says the Court in Magwood v. Patterson. Interesting lineup on this one. Justice Thomas writes the opinion, joined by Justice Scalia in full and by Justices Stevens, Breyer, and Sotomayor in all but one part. Justice Kennedy dissents joined by CJ Roberts and Justices Ginsburg and Alito. Justices Breyer, Stevens, and Sotomayor don't like the part of Justice Thomas's opinion that they think tends to undermine Panetti v. Quarterman, 551 U.S. 930 (2007).

I expect to have more to say on this interesting opinion later.

Honest Services

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Excerpts from the syllabus in Skilling v. United States:

1. Pretrial publicity and community prejudice did not prevent Skilling from obtaining a fair trial.

(a) The District Court did not err in denying Skilling's requests for a venue transfer. Pp. 11-19.

(b) No actual prejudice contaminated Skilling's jury. The Court rejects Skilling's assertions that voir dire did not adequately detect and defuse juror prejudice and that several seated jurors were biased.Pp. 20-34.

2. Section 1346, which proscribes fraudulent deprivations of "the intangible right of honest services," is properly confined to cover only bribery and kickback schemes.

(b) Section 1346, properly confined to core cases, is not unconstitutionally vague. Pp. 38-51.

(c) Skilling did not violate §1346, as the Court interprets the statute. 

Supreme Court Insider

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The NLJ's Supreme Court Insider newsletter is out, and Tony Mauro and Marcia Coyle have lots of interesting stuff for "high court junkies." There is this interview with Florida SG Scott Makar, Appellate Lawyer of the Week. Also, there is this graphic scorecard on how officials of various states did at the high court this term. (One correction: Maryland v. Shatzer was decided in favor of the state back in February.)

News Scan

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Homebuyer Tax Credit for Inmates:  As noted in Steve Erickson's post earlier today, over the past year our government gave about $9 million of your money in the form of homebuyer tax credits to 1,295 prison inmates, including 241 who are serving life terms.  AP writer Stephen Ohlemacher reports that an Inspector General at the Treasury Department found that roughly 14,100 people fraudulently took $27.7 million in tax credits as first-time homebuyers, in one case 67 people took the credit for supposedly buying the same home.  None of the inmates took the credit on a joint return, eliminating the chance that a spouse actually did purchase a home. 

Innocence Hearing in Davis Case:  The U.S. District Court in Savannah heard argument and reviewed evidence today from attorneys representing condemned cop-killer Troy Anthony Davis.  Last August the U.S. Supreme Court ordered the lower court to hear Davis' claims that he did not murder Savannah police officer Mark Allen MacPhail in a Burger King parking lot 29 years ago.  A story by Bill Rankin in today's Atlanta Journal Constitution reports that for the hearing the high court required that the evidence presented  "clearly establish" Davis' innocence.  In his dissent to the order, joined by Justice Thomas, Justice Scalia called the hearing a "fools errand" because Davis' innocence claim is "a sure loser."  Anti-death penalty groups have been holding vigils in Savannah and Atlanta in support of Davis.  For the record, Officer MacPhail, the 27-year-old father of two, was off duty when he heard cries from a homeless man being pistol whipped in a Burger King parking lot.  As MacPhail ran to the victim's aid, he was shot three times by a man identified by witnesses and other evidence as Davis.
That's the headline from this blog post by Chris Morran over at The Consumerist.  As detailed by the report:

According to a report issued by the Treasury Dept.'s inspector general, 1,295 prisoners, including 241 serving life sentences, somehow managed to receive $9.1 million in credits, despite being locked up at the time.

The report clarifies that these were not prisoners filing joint returns with spouses in the outside world, so there's no way these cons could have purchased a home during the period for which the tax credit was available.

Loose Lips

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I suspect that a lot of career prosecutors and cops can deeply empathize with General Stanley McChrystal right about now.

(For those who haven't followed the story, Eliot Cohen has this op-ed in the WSJ.)

In our democracy (the worst form of government except for all the others), the career folks who do the tough work of protecting us from enemies foreign and domestic work for bosses who are elected politicians and their appointees. Sometimes the boss is a bozo. Sometimes you say so in private. But you don't say so to the press and certainly not to Rolling Stone for God's sake!

Often in criminal cases in the Supreme Court, the press wants to talk to a lawyer actually involved in the case, not the PR spokesperson for the elected official. Many career government lawyers follow a simple rule of never talking to the press under any circumstances, and the McChrystal kerfuffle illustrates why. I probably get more than my share of press calls for this reason. I am often the only nongovernment lawyer on the prosecution side, even though only as amicus.  (Meanwhile, on the defense side, everyone is making a Schumeresque sprint for the camera.)

It's one of the perks of my job. I can even talk to Rolling Stone. (I haven't yet, but I've talked to Mother Jones.)

But General McChrystal shouldn't. Yet. Put in your papers, hang up the uniform, and run for office. Then you can give 'em hell, Stanley. I'll vote for you.

Support for Kagan

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SCOTUSblog reports that all living past Solicitors General except Robert Bork have written to the Senate Judiciary Committee in support of Elena Kagan.  This would include all three Solicitors under President George W. Bush, namely Ted Olson, Paul Clement and Greg Garre.

They are all fine people.  Still, one cannot be too surprised that former Solicitors General think being Solicitor General is an outstanding qualification for the Supreme Court. 

Serious Punishment Works

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I was in the US Attorney's Office for the Eastern District of Virginia in the 1990's when we initiated Project Exile.  The point of the program was to subject violent, gun-wielding criminals --largely crack dealers-- to relatively harsh federal sentencing instead of the softer sentences in state court.  This considerably swelled the federal district court docket, and the judges didn't like it.  One of them threatened to hold the US Attorney in contempt.  (I helped represent her, I'm happy to say successfully, at the contempt hearing).

One thing prosecutors need to remember is that their constituency is the public, not the bench or bar.  This means they have to be ready for criticism from the latter, much of it unfair if not slanderous.  This will occasionally include outraged, if preposterous, allegations of racism, see, e.g., United States v. Olvis, 97 F.3d 739 (4th Cir. 1996).

Still, it's worth it.  As Doug Berman notes on SL&P, the Richmond Times Dispatch reported yesterday that, over the years of Project Exile, the murder rate in Richmond, once the highest in the country, has been cut by more than three-quarters.

Moral of story:  Impostition of the much-maligned tough federal crack and firearms sentences on thugs has saved innocent people a boatload of pain and misery, not to mention dozens of lives.

At least Eric Holder won't speak it.

In his recent testimony before the House Judiciary Committee, the Attorney General seemed mystified about what might have been behind the attempted Times Square bombing.  As the redoubtable Andy McCarthy observes after seeing the painful/hilarious tape of Holder's "answer:"


Mr. Holder would obviously rather get a root-canal than utter the words "radical Islam" (despite the fact that his description of the American people as "a nation of cowards" on race and of Bush officials as war criminals seemed to roll of the tongue without much difficulty).

You'll be pleased to discover, via the AG, that there is an infinite variety of reasons why Muslims commit terrorist attacks. Those reasons, of course, have nothing to do with Islamic doctrine, which is why, even as we speak, agents are struggling to understand what might possibly have driven Faisal Shahzad to try to blow up Times Square. (I guess Mayor Bloomberg will be pleased to know that opposition to the healthcare bill hasn't necessarily been ruled out yet.)


Perhaps if Mr. Holder would attend for a moment to the guilty plea happily entered by Shahzad in the Justice Department's own case, he could get a mite clearer on how it is:


The AP reports:

Calling himself a Muslim soldier, a defiant Pakistan-born U.S. citizen pleaded guilty Monday to carrying out the failed Times Square car bombing and left a sinister warning that unless the U.S. leaves Muslim lands alone, "we will be attacking U.S."

Wearing a white skull cap, prison smocks and a dark beard, Faisal Shahzad entered the plea in U.S. District Court in Manhattan just days after a federal grand jury indicted him on 10 terrorism and weapons counts, some of which carried mandatory life prison sentences. He pleaded guilty to them all.

U.S. District Judge Miriam Goldman Cedarbaum challenged Shahzad repeatedly with questions such as whether he had worried about killing children in Times Square.

"One has to understand where I'm coming from," Shahzad calmly replied. "I consider myself ... a Muslim soldier."


It's bad enough having an Attorney General who's unable to see the cause of the gravest threat of violence facing our nation.  It's worse by far to have one who's unwilling to.

News Scan

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Move to Expand NY DNA Database:   AP writer Michael Virtanen reports that New York Governor David Paterson has proposed requiring DNA testing of people who commit low level misdemeanors to expand the state's database.  While the NY ACLU is concerned about privacy rights, both the state Assembly and Senate are considering laws to make more DNA profiles available to law enforcement.  According to Paterson, "DNA is the most powerful tool ever discovered to solve crimes, prevent crimes and exonerate the innocent, but remarkably in New York State we are still collecting DNA from only 46 percent of the criminals convicted."

CA Rape Shield Law Upheld:  In a decision announced Monday, the California Supreme Court unanimously rejected a defendant's claim that evidence of a rape victim's prior sexual activity should have been introduced at his trial.  SF Chronicle writer Bob Egelko reports that Court declined to overturn Danny Fontana's conviction for raping a 19-year-old woman, noting that the state's rape shield law prohibits a victim's sexual history to be introduced unless it can be used to attack the credibility of the complaining witness.  Fontana, a registered sex offender, claimed that the woman had solicited him.  Writing for the Court, Associate Justice Marvin Baxter noted that "for some jurors, the fact that the  victim has engaged in sexual conduct outside the marriage automatically suggests a receptivity to the activity or is proof that the victim got what she deserved."  The Court found that the trial judge erred by not holding a pretrial hearing to consider Fontana's claim but held that the testimony at trial and at a later hearing were sufficient to render that procedural error harmless.  

News Scan

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NY Bomb Suspect Pleads:  The man arrested for attempting to detonate a car bomb in Times Square last month pleaded guilty today to federal terrorism and weapons charges.  An AP story by Tom Hayes reports that Faisal Shahzad, a Pakistan-born U.S. citizen, called himself a Muslim soldier in a statement presented before a U.S. District Judge in New York.  He noted that he had picked a warm Saturday for the bombing because it would be crowded with people he could injure or kill in retaliation for the U.S. "terrorizing the Muslim nations and the Muslim people."   Sentencing is scheduled for October 5.  

Civil Commitment of Sex Offenders Expensive:  The 20 states that use civil commitment laws to hold the worst sex offenders beyond their sentences pay an average of $96,000 a year per offender according to this story by AP reporter Martiga Lohn.  With many states running large deficits, politicians find themselves stuck between the public's desire to keep sex predators confined and the need to cut expenditures.  Because civil commitment programs must provide treatment, rather than just incarceration, the costs are far higher than had the offender received a longer or indeterminate prison term.  One Maryland expert said that the psychological treatment sex offenders receive is of dubious value, lowering an offender's risk of committing more sex crimes only slightly.     
Finally, it appears that the United States Supreme Court is prepared to clean up one of the messier areas of its jurisprudence, the question of when a state procedural default rule is an "adequate" ground for decision, precluding federal review of the underlying question. That is, when a federal claim is denied in state court because the defendant did not raise it when, where, and how the state rule requires it to be raised, under what circumstances can a federal court address the claim anyway.

The precedents in the area have drawn fire from many directions over the years. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), was trashed in Justice Harlan's separate opinion and the Wright & Miller treatise (v16B, §4026) and effectively overruled sub silento in Beard v. Kindler earlier this term. Henry v. Mississippi, 379 U.S. 443 (1965), was blasted in Justice Kennedy's dissent in Lee v. Kemna, 534 U.S. 362 (2002). The incoherence of the whole body of jurisprudence is alluded to in the Hart & Wechsler casebook as employing "varying rubrics" to describe what is inadequate (5th ed. at 557).

I've taken a few shots at it myself over the years, trying to get the high court to address it from the Michael Morales case in 1996 to Walker v. Martin this term.

The issue was presented in Philip Morris USA v. Williams, but the Court dropped-kicked the case. In Kindler, they addressed one narrow aspect but deferred a broader ruling to a later case.

Walker v. Martin, No. 09-996, certiorari granted today, is very likely that case.

The Lackey Claim, Again

The Supreme Court's three orders denying a stay to Utah double-murderer Ronnie Lee Gardner are here, here, and here. In the middle one, Justices Stevens and Breyer dissent with reference to their dissent in Johnson v. Bredesen, to the effect that a death sentence can be set aside merely because it has taken so long to resolve the appeals.

However, in this case, unlike Johnson, there is no claim of actual innocence. The only injustice here is that Gardner was allowed to postpone his day of reckoning for as long as he did. Justice Stevens himself bears a heavy share of the blame, as the law of capital punishment is more convoluted than it needs to be, with more litigatable issues than it needs to have, largely because of his "swing vote" in the formative years of the late 1970s and early 1980s.

Put to one side those cases with an actual, substantial "got the wrong guy" claim. For all others, we should get the job done in five years from sentence to execution, max. That is plenty of time if everyone involved puts their efforts toward the goal.

News Scan

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Hillary: Administration to Sue Arizona:  An AP story by Amanda Lee Myers reports that in an Ecuadorian media interview last week, Secretary of State Hillary Clinton, referring to Arizona's recently enacted immigration law, announced that the Obama Administration would be "bringing a lawsuit against the act."  As those who have read the law know, it requires police to investigate the immigration status of persons lawfully stopped for an offense who cannot produce valid identification.  The story found it "unclear why Clinton made the comment since it is not her area."  She could not be reached yesterday for comment.  Arizona Governor Jan Brewer was somewhat ticked off by Clinton's comment, "If our own government intends to sue our state to prevent illegal immigration enforcement, the least it can do is inform us before it informs the citizens of another nation."    

Utah Executes Double Murderer:  Ronnie Lee Gardner died by firing squad in Utah yesterday for the 1985 murder of his lawyer during a failed attempted to escape the courthouse, where he was facing trial for an earlier murder.   Associated press writer Jennifer Dobner reports that after choosing the firing squad as his method of execution last April, Gardner and his attorneys worked furiously to prevent it with petitions to the state and federal courts, the parole board and Utah's Governor.  Gardner's choice of a firing squad drew national attention and united anti-death penalty groups for a vigil in Salt Lake City.  The ACLU decried the execution as an example of America's "barbaric, arbitrary and bankrupted practice of capital punishment."  On his last day, Gardner watched the "Lord of the Rings" trilogy. Two days earlier he enjoyed a steak and lobster dinner as his last meal.  The daughter of a bailiff, George Kirk, who was shot in the abdomen and permanently injured by Gardner during his escape attempt, said that she believed the execution would bring her family some closure.  "I think at that moment, he will feel that fear that his victims felt," she said.  

Class Action Looting

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Irvine, California attorney Sandeep Baweja reaped $887,000 in attorney fees from a class action. That wasn't enough for him. Amanda Bronstad reports in NLJ:

A Southern California lawyer who lost more than $2 million from a class action settlement by investing client trust funds in the stock market has been sentenced to 18 months in prison.
Sandeep Baweja of the Baweja Law Group in Irvine, Calif., pleaded guilty in October to one count of wire fraud and one count of obstruction of justice after confessing that he had clandestinely transferred $2.5 million from an account at Union Bank of California into an online stock brokerage account with TD Ameritrade Inc. He used the brokerage account to make high-risk trades on the stock market. By December 2008, he had lost all but $55,000 of the money.

AUSA Richard Robinson thinks 18 months is not enough. I agree.

Fourth Strike

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Randy Lee Guzek deserves death for the robbery and murder of Rod and Lois Houser, a fourth jury has determined. AP story by Steven Dubois is here. Prior post is here. Congrats to Josh Marquis for a job well done.
Krissah Thompson reports in the WaPo:

The first of several studies looking into the arrest last summer of Harvard professor Henry Louis Gates Jr., which attracted the interest of President Obama and became a national controversy, essentially clears the Cambridge, Mass., police department of the charge of racial profiling.

The report by the New England Center for Investigative Reporting, which was published Thursday in the Boston Globe, bases its findings on a review of the department's handling of disorderly conduct cases from 2004 to 2009.

Of the 392 adults arrested for disorderly conduct, 57 percent were white and 34 percent were black. That racial breakdown almost exactly mirrored the racial composition of the population that Cambridge police investigated for disorderly conduct, the center's analysis shows.

Note that is population investigated for the offense in question, not the general population. Rochelle Sharpe and Maggie Mulvihill explain in the Boston Globe:

Psychobabble and the Real Perps

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Theodore Dalrymple has this op-ed in the WSJ with the above title. His thesis is that psychology, especially as popularized in Alfred Hitchcock's Psycho, enables perpetrators and others to rationalize that the person who committed the crime was not the "real" person. He analogizes this to belief in demonic possession.

"Psycho," then, is a medieval tale in modern costume. The Enlightenment never reached the Bates Motel.


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David Bernstein at the Volokh Conspiracy sniffs it rightThis story from the Washington Times is problematic on so many levels:

"Imagery definitely affects children," said Dr. Sharon Cooper, a forensic pediatrician and faculty member at the University of North Carolina Chapel Hill School of Medicine. "Adult pornography is a good example of giving children unhealthy sexual images."

Pornography normalizes sexual harm, Dr. Cooper said. It shows children a lack of any kind of emotional commitment or relationship between two consensual partners, shows unprotected sexual contact and visual examples often of violent rape....

Children are very vulnerable as compared to adults because of the presence of mirror neurons in the brain, Dr. Cooper said. Mirror neurons are part of the brain that convince us that when we see something we are actually experiencing it.

Of course there are lots of reasons to be concerned about the ready access that many children have to pornography thanks to the internet.  And undoubtedly some of that access causes unhealthily values among developing teens about sex and relationships.  But to say that pornography in and of itself normalizes sexual harm begs the question how it does so.  To say that it occurs through some neurological component that's not well understood but presumably is broadly implicated in everyday living falsely implies a causative pathway.  This type of reasoning is common these days, with all sorts of complex human behaviors and experiences (e.g., learning) supposedly understood by the activation of neuronal tissue.  Yet to describe a physical process such as neuronal activation does little to explain why people experience, learn, or do what they do in everyday life.    It's a vapid simplification of the human experience and the mind.  

Steamy Texting at Work

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The Supreme Court upheld the Ontario, California Police Department's review of transcripts of text messages an officer sent and received on his department-issued pager in Ontario v. Quon this morning. AP story here.

7 Months to Decide the Obvious

Today, a panel of the Ninth Circuit decided on remand the case of Belmontes v. Wong. The order in its entirety reads:

We have reviewed the briefs filed by the parties following the Supreme Court's issuance of its opinion dated November 16, 2009 in Wong v. Belmontes. In light of that opinion, we are compelled to affirm the district court's order denying the writ of habeas corpus.
How long will the Ninth sit on the rehearing petition? Should we start a pool?

News Scan

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Cop Killer Executed After 32 Years:  59 year old David Powell died by lethal injection yesterday for the 1978 murder of a 26-year-old Texas police officer.  As reported by AFP news,  Powell machine-gunned officer Ralph Ablanedo to death during a traffic stop.  While there was no question regarding Powell's guilt, his trial was overturned on appeal twice before his 1999 conviction was upheld.  An article by Chuck Lindell and Tony Plohetski in Monday's Austin American Statesman reports that anti-death penalty advocates claimed that Powell's good behavior in prison made his execution cruel and unusual punishment.  Officer Abanedo's 87-year-old mother, and his two sons, who were 5 and 1 when he was murdered, attended the execution.  Over 100 Austin police officers gathered outside the prison in memory of their murdered colleague. 

The Supreme Court's order denying a stay is here.  No dissent is noted. Justices Stevens and Breyer have previously expressed support for an excessive time claim.

Sex Offender Tries to Rape Counselor:  Habitual felon William Powell has been arrested for attempting to rape a counselor at a Bronx psychiatric center as reported by New York Daily News writers John Marzulli, Brendan Brosh and Rocco Parascandola.  The 6-foot-3, 230 lb. Powell, who served eight years for an attempted rape in 1996, forced his way into the victim's office, grabbed her by the neck and tried to pull down her pants before she managed to break away.  It was not immediately clear why Powell was at the clinic and the state Mental Health Office refused to comment.  Perhaps he was being rehabilitated.     
We previously noted here the hostile review by the California Office of Administrative Law of the Department of Corrections and Rehabilitation's regulations to implement its lethal injection protocol. We also noted that California law expressly provides that CDCR can implement regulations immediately when necessary for "operational needs of the department."

The ability to carry out duly entered and fully reviewed judgments is the quintessential operational need. Today, CJLF formally calls upon the Governor and the Secretary of CDCR to invoke the authority of Penal Code Section 5058.3 and put the lethal injection regulations into immediate effect. Our letter is available here.

In Praise of Firing Squads

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Update: Jennifer Dobner has this story for AP.

As Utah prepares to dispatch murderer Ronnie Lee Gardner "old school," we find support of sorts for the firing squad in unexpected places. Margot Sanger-Katz writes in Slate, "This may sound gory, but the limited body of research on death penalty methods suggests that the firing squad is actually a pretty good way to go....  Deborah Denno, a professor at Fordham Law School who has studied execution methods for nearly two decades, said she'd pick the firing squad if offered Gardner's choice between the two methods."

"All of which raises the question: Why did the states drop firing squads in the first place? Death penalty scholars say that legislators tend to like lethal injection because it appears dignified and medical."

Huh? What scholar said that? Legislatures "preferred" lethal injection because, at the time, it was the way to shut down the distracting, delaying method-of-execution controversy and litigation. Justice Stevens wrote in his dissent in the Robert Alton Harris case that the gas chamber's pain was unnecessary because all the experts said lethal injection was so much better.  Okay, said death penalty supporters in the legislature. If that's what it takes to shut down the litigation, we will do that.

It worked. For a while.

More recently, opponents have claimed that the three-drug method creates an unnecessary risk of pain -- unnecessary because the one-drug method is so much better. Ohio said okay, we'll use the one-drug method. The "nonpartisan" DPIC immediately started screeching that Ohio was experimenting with untested methods on humans. This is the Roseanne Roseannadanna method of attacking the death penalty.

In re Allah

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Here is one from the Cases You Have to Look Up Just for the Name file.

Allah has filed an original habeas corpus petition in the U.S. Supreme Court, In re Allah, No. 09-11321. Allah is appearing pro se and gives his address as Coyote Ridge Correctional Center in the State of Washington.

The first question that strikes me is whether Allah has a "corpus" that one can have custody of. If so, why does He need the assistance of mere mortals to obtain His liberty?  Also, Allah has moved for leave to appear in forma pauperis. Does that mean Allah is indigent? I did not think so.

The Other Cal. Prison Case

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There are actually two appeals to the Supreme Court challenging the prisoner release order in California. The Prison Litigation Reform Act gives various people, including state legislators, standing to challenge such orders. The reason for this is to deal with possible collusion between prisoner advocates and the executive branch of government, which may want to put the squeeze on the legislative branch to pony up more funds (i.e., tax dollars) for prisons. In the California  case, a number of Republican legislators exercised their right to intervene.

In the governor's appeal, Schwarzenegger v. Plata, No. 09-1233, noted yesterday, the Court deferred consideration of a jurisdictional issue. The orders list did not mention California State Republican Legislator Intervenors v. Plata, No. 09-1232. Today, the online docket shows no order issued in that case, even though it was on the same conference. Not sure what's happening here.

Opinion in the Ghailani Case

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Judge Kaplan at USDC-SDNY has issued an opinion in the case of accused terrorist Ahmed Khalfan Ghailani. Unfortunately, the only thing public at this point is the cover sheet. We don't know if the opinion is on the speedy trial motion that CJLF briefed or something else. A "redacted" version for the masses generally follows later. Stay tuned.

The Pinholster Case

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The Supreme Court today granted certiorari in the California death penalty case of Cullen v. Pinholster, No. 09-1088. AP story is here. The Ninth Circuit en banc opinion is here. The first three paragraphs of Chief Judge Kozinski's dissent are after the jump.

The California Prison Case

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On the Supreme Court's orders list for today is this order in Schwarzenegger v. Plata, No. 09-1233:

Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.

Lyle Denniston at SCOTUSblog interprets this order as meaning that "the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order."

I do not agree.
[Update: Lyle has revised his post.] I think the jurisdictional question that the Court deferred is whether the Supreme Court has jurisdiction to review the order of a single-judge district court calling for the three-judge court to be convened. The Governator tried to appeal that order to the Ninth Circuit when it was issued, and the prisoners moved to dismiss on the ground the Ninth did not have jurisdiction.  The Ninth's docket in case 07-16361 says (emphasis added):

Order filed: The motions to exceed the page limit for aples' opposition and aplts' reply are granted. Aples' opposed motion to dismiss these appeals for lack of jurisdiction is granted....CITE. The district court orders from which aplts seek to appeal can be effectively reviewed following the entry of a final order by the three−judge district court. All other pending motions are denied as moot. DISMISSED.

The appeal referred to in the italicized language is the appeal now before the Supreme Court. In other words, the Ninth Circuit ruled that the Supreme Court would have jurisdiction on the motion of the very people now denying the Court has jurisdiction.

Counsel for appellees win the chutzpah award of the week.
In the 1970s, the Supreme Court decided that states had to limit the death penalty to a defined subclass of murders. In Maynard v. Cartwright, the Court held that Oklahoma had defined an impermissibly vague subclass of murder as "especially heinous, atrocious, or cruel." Copying straight out of the Model Penal Code was no defense.

Today, the Supreme Court held in Holland v. Florida that equitable tolling will not operate to extend the statute of limitations on habeas petitions in cases of "a 'garden variety claim' of attorney negligence." (AP story here.) Equitable tolling only applies to a subset of attorney negligence. How is the subset defined? Applying Maynard to Holland, the Court fails its own test:

TV Testimony

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Justice Sotomayor has this "Statement ... respecting the denial of the petition for writ of certiorari" in Wrotten v. New York. The case involves the Confrontation Clause implications of testimony "via a two-way video that enabled the testifying witness to see and respond to those in the courtroom, and vice versa." However, the case isn't final in the state courts, so SCOTUS kicks the question down the road.

Equitable Tolling

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The Supreme Court decided today in Holland v. Florida that the habeas corpus statute of limitations in AEDPA is subject to "equitable tolling." Equitable tolling is supposed to apply only in extraordinary circumstances, but in the wrong hands it can amount to a de facto repeal of the statute of limitations. More on this later today.
Debra Saunders has this column in the SF Chron with the above title. She includes this comment on Mr. Brown's changing profile on law enforcement, at the point of transition from talk-show host to mayoral candidate:

Brown also shed the anti-law-enforcement tone he used as a talk-radio-show host. (Read: "Some people might say that this increase in the prison population is a conspiracy, because it seems to be working almost perfectly for those with extra capacity for sale.") This mayor wanted more cops on the beat.

I voted to re-elect Brown, as he was the best mayor Oak[land] had seen in years. Granted, the bar was low.

(The last sentence is certain to win at least honorable mention for understatement of the year.)

So what kind of record does Mr. Brown have on crime issues as AG? It is probably best described as "salutary neglect." He has good people in charge of the criminal law side of the office, and he largely lets them do their jobs. Has he exercised any leadership on crime issues where personal involvement of the top dog is needed? None that I am aware of.

In particular, he has not been a leader in removing the obstructions to the enforcement of California's death penalty. He has not applied for certification for the federal "fast track," even though California clearly qualifies and the federal courts' dithering is a major source of delay.

He was a member of the notorious John Burton's study commission, but instead of the double-barreled dissent from the stacked commission's slanted report that we needed, he issued a page-and-a-half waffling letter.

What does he plan to do about crime if elected governor again? Who knows? I'm not sure he knows. The "fighting crime" page of his campaign website is nothing but press releases of specific law-enforcement actions.  Meg Whitman's crime-positions page has been criticized in some quarters as being superficial, but at least she has one.

Getting Real

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Question:  What do some killers know that abolitionists don't?

Answer:  Reality counts.

Thus this Associated Press story from a Virginia prison, where inmate Robert Gleason, already serving 100 years for one murder, encountered a particularly annoying cellmate.  He knew what to do.  He knows what he's going to do next time, too.  Will we listen?


POUND, Va. (AP) -- For seven days, Robert Gleason Jr. begged correctional officers and counselors at Wallens Ridge State Prison to move his new cellmate. The constant singing, screaming and obnoxious behavior were too much, and Gleason knew he was ready to snap.

On the eighth day -- May 8, 2009 -- correctional officers found 63-year-old Harvey Gray Watson Jr. bound, gagged, beaten and strangled. His death went unnoticed for 15 hours because correctional officers had falsified inmate counts at the high-security prison in southwestern Virginia.

Now, Gleason says he'll kill again if he isn't put to death for killing Watson, who had a history of mental illness. And he says his next victim won't be an inmate.

"I murdered that man cold-bloodedly. I planned it, and I'm gonna do it again," the 40-year-old Gleason told The Associated Press. "Someone needs to stop it. The only way to stop me is put me on death row."


The whole story is here.

Proper Use of Force

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How long do the police have to try to talk a hostage taker into giving up peacefully before they go ahead and shoot him? I would think that two full days is long enough in the estimation of any rational person.  Gina Kim and Chelsea Phua report for the Sacramento Bee:

After 55 1/2 hours, it finally was over.

The stalemate between authorities and a mentally unstable and wanted man holed up for more than two days in a Sacramento apartment with a 16-month-old boy as his hostage ended Friday evening with the man dead and the boy safe.

"This is, in fact, by any measure a very, very successful outcome," said Sheriff John McGinness who said he gave the green light for deputies to use deadly force against Anthony Alvarez, 26, if the boy could be safely rescued.

Five Years for a Push?

It is always dicey to make judgments from a newspaper story, so I'll hedge right up front by saying there may be more to the story. However, if the facts reported by Sunita Vijayan in The Californian accurately reflect the event, it appears a California man is facing up to five years in prison for doing nothing wrong.

Salinas police have said Moore, 29 at the time, pushed Harish Dinesh Davis to the ground on Dec. 26, 2008, causing him to hit his head on the pavement. Police have said Moore shoved Davis after the transient, about age 60, ignored repeated requests to stop washing the windshield of Moore's BMW.
*                          *                        *
On Thursday afternoon, Moore pleaded no contest to assault with force likely to cause great bodily injury. He also admitted to an enhancement of causing great bodily injury. He is scheduled for sentencing July 7.
*                          *                        *
Before the confrontation, police have said Moore and a female companion stopped at the gas station while traveling through Monterey County on Highway 101.

They said Davis was seeking donations in exchange for washing windshields, and Moore walked into the station store to complain about him. They said Moore saw the transient arguing with the woman, came outside and pushed Davis, causing him to hit his head.

A shove is not force likely to cause great bodily injury. It is force likely to cause no injury at all. It is an entirely appropriate amount of force to use when a trespasser to one's chattels refuses to desist after being warned. In this case, it caused accidental injury resulting in death. But a legal use of force against the transgressor does not become a crime because of an unlikely and unintended consequence, however unfortunate. That consequence is the result of Davis's own misconduct, and that is where the blame lies.

We need to revise California's law of authorized use of force. Given that our state cannot afford to protect us, it can at least allow us to protect ourselves.
The California Office of Administrative Law (the bureaucrats' bureaucrats) on Tuesday disapproved the regulations on lethal injection promulgated by the Department of Corrections and Rehabilitation. Paul Elias has this story for AP. So, this administrative process that was unnecessary to begin with and has already dragged on far too long will be delayed further. But how much further?

It is evident from the disapproval decision that someone at OAL made a policy decision to review the regulations with maximum hostility. For example, OAL claims that the regulation conflicts with the governing statute on witnesses to the execution. The statute permits "at least 12 reputable citizens, to be selected by the Warden" with no upper limit. The regulation provides for attendance by, among others, "News media witnesses." OAL says this is a conflict. Really? Only if members of the news media are per se not reputable citizens. I'm sure the warden can find a few good apples in the barrel.

We don't have to put up with this. Penal Code section 5058.3(a)(2) allows the CDCR to use the expedited "emergency" procedures for adoption of regulations without the usual showing of an emergency but merely "if the director certifies ... that operational needs of the department require adoption ... of the regulation on an emergency basis."

The department is required by law to carry out executions on the date set by the Superior Court. That is an operational need. The need is unmet while we putz around with spamming campaigns flooding CDCR with irrelevant comments and punctilious bureaucrats with imagined or trivial objections. The director should exercise his authority and invoke the emergency procedures.

Hearsay and Baseball

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The Ninth Circuit issued this split opinion today in United States v. Barry Bonds. The main issue is whether a statement by the defendant's agent can be attributed to him for the purpose of the rule that a statement of a party opponent is not hearsay. Judge Bea thinks so, but Judges Schroeder and Reinhardt think not.

A D.C. court's poor judgment

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The Washington Post has this editorial, with the above title, criticizing a Fourth Amendment exclusionary rule decision of the D.C. Court of Appeals. Here is the concluding paragraph:

Law enforcement officers must be held to high standards, but judges should allow some leeway for dealing appropriately with the realities and the dangers of the streets. Officer Elliott used his best judgment and made a reasonable call in a potentially volatile situation. A cache of illegal drugs was seized. No one was hurt. Such actions should be commended, not penalized.

Julie Hirschfield Davis reports for AP:

The William J. Clinton Presidential Library is set Friday [today] to release more than 40,000 pages of notes, memos and other files, mostly from Kagan's stint as a White House counsel during the mid-1990s. It's the second installment in a 160,000-page cache of Clinton-era documents from Kagan's past.
By the wildest of coincidences, the prior batch of documents was also released on a Friday. See prior post here.

Update: The White House Counsel Office documents are here. I have not found anything about AEDPA in them.

Legalization, Take II

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One of the myths of pot legalization (first for so-called medical purposes, then for any purpose) is that life gets better after it's done.

Well, not exactly.  Thus today's story from the Associated Press:

HELENA, Mont. (AP) -- Montana Gov. Brian Schweitzer says legalization of medical marijuana has not worked out as voters planned, and agrees the state needs a legislative fix.

Schweitzer says he is watching proposals as they come forward and expects lawmakers, convening in January, will have a lot of options. The governor says one of his agencies may pitch its own plan.

Schweitzer says one part of the solution could be to require genetic branding of medical marijuana, which would allow police to trace illegal pot to see if it originated from a caregiver selling medical marijuana.

The medical marijuana law has become one of the hottest topics facing lawmakers as the state deals with an explosion in the number of patients, caregivers and growers.

The KKK Kase Returns

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James Ford Seale, former Klansman convicted of kidnapping Henry Dee and Charles Moore in 1964, is back in the Supreme Court with a certiorari petition in No. 09-11229, Seale v. United States. (He also killed them, but murder as such is not a federal offense.)

Prior posts are here and here. The Stevens/Scalia dissent from the Court's prior dismissal of the statute of limitations question certified by the Fifth Circuit is here. The Fifth's subsequent opinion on the remaining issues is here. Interestingly, those other issues include a "Christian burial speech":

We know that on Saturday afternoon May 2, 1964, you picked up in your car Henry Dee and Charles Moore, two Negro boys from Roxie. You and Charles Edwards and others took them to some remote place and beat them to death. You then transported and disposed of their bodies by dropping them in the Mississippi River. You didn't even give them a decent burial. We know you did it, you know you did it, the Lord above knows you did it.

This is over a decade before Brewer v. Williams, 430 U.S. 387 (1977). It's even before Miranda v. Arizona.
Nevada Republicans chose Sharron Angle to oppose Senate Majority Leader Harry Reid's reelection bid. Susan Davis has this post at the WSJ Washington Wire blog. This result increases the chance that President Obama's effort to move the Ninth Circuit even further out of the jurisprudential mainstream will become an election issue. Ms. Angle had this press release back in April, saying she was dismayed at the choice of Goodwin Liu.

The nomination might be an issue in the California Senate race as well.  Carly Fiorina decisively defeated Liu backer and one-time front-runner Tom Campbell. The daughter of Judge Joseph Sneed knows a bit about the Ninth and what President Carter's nominations did to it.

DAs for Cal. AG

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The Republican and Democratic voters of California have chosen the district attorneys of LA and SF, respectively, as their nominees for attorney general.

LA DA Steve Cooley has created some controversy in the past by his position that the Three Strikes law should be moderated, but in the end he was supported by the state's toughest prosecutors.

SF DA Kamala Harris has created considerably more controversy by her refusal to enforce the state's death penalty law at all, even in the case of cop killers. That stance won her election and reelection in SF and didn't cost her the Democratic primary, but I expect it will be a harder sell in a statewide general election.

Jack Leonard and Shane Goldmacher have this story in the LA Times.

DSM-IV and Cinema

The WSJ has this fun feature diagnosing characters in movies. Hannibal Lecter, of course, has our favorite -- Antisocial Personality Disorder.

Primary Day

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Today is primary election day in 11 states. The WSJ has this rundown.

This blog is about criminal law and not politics, but the two cannot be cleanly severed. Elections have consequences. Will the next Congress be one where we worry about what damage Congress does, as we do with the present one, or where we look forward to opportunities to make things better, as we did in 1996? Will President Obama have a blank check to fill the federal courts with friends of murderers, as he is presently attempting in the Ninth Circuit, or will he have a Senate that he knows will only approve nominees showing some degree of moderation, as President Clinton had during most of his tenure.

In the states, will we have governments that swallow hook, line, and sinker the "smart on crime" mantra as they repeat the foolish errors of the Great Society, or will we have people who regard the academics and interest groups publishing agenda-driven studies with the proper degree of skepticism and who proceed on sentencing reform with the caution appropriate when innocent people's lives are at stake?

Stay tuned.

Yoo and Shapiro on Thompkins

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The WSJ has op-eds by Steven Shapiro of the ACLU and John Yoo of UC Berkeley on the Supreme Court's recent pruning of Miranda in Berghuis v. Thompkins.

Shapiro says what you would expect the ACLU to say. Unfortunately, Yoo doesn't really counter him. Yoo mentions the decision briefly in its criminal procedure context and then goes off on a tangent about the Obama Administration's return to a law-enforcement approach to terrorism rather than a war approach.

Suing the Wrong Defendant

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It is not unusual for habeas petitioners, even those represented by counsel, to sue the wrong defendant (respondent). For example, in Holland v. Florida, No. 09-5327, pending in the Supreme Court, the named respondent is the State of Florida, even though the State is immune from suit under the Eleventh Amendment. "[T]he proper respondent is the warden of the facility where the prisoner is being held...." Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).

Government attorneys usually don't make a big deal of this, but here is a clever gambit that may have occurred to some. Wait for the statute of limitations to expire, move to dismiss the incorrect respondent, and then defend against an amendment naming the correct respondent on statute of limitations grounds. Would that work?

Fuhgeddaboudit. See Krupski v. Costa Crociere S. p. A., decided today by the U.S. Supreme Court.

No, not Officer Krupke of West Side Story.
In the Sentencing Reform Act of 1984, Congress decided to cap the sentence reduction credits for behaving in prison at about 15%. The formula they chose was 54 days per year, which actually works out to 14.8%. But is that 14.8% off the total sentence or credit for 14.8% of the time actually served? That was the question before the Supreme Court in today's decision of Barber v. Thomas. The difference works out to about 10 weeks for a 10-year sentence.

The Collateral Costs of Crime

Enforcing the criminal law is not cheap. It doesn't need to be as expensive as it is, but it will never be cheap. The costs are producing a rising chorus of people who want to water down the law.

But what are the costs of not enforcing the criminal law? We can talk about the direct monetary costs to victims. Some researchers even assign dollar values to the deaths and injuries caused by violent crime. But there is more. The cost of crime goes beyond the direct victims. Crime is a major factor in the decay of neighborhoods and even whole cities. Alex Kellogg has this article in Saturday's WSJ:

DETROIT--This shrinking city needs to hang on to people like Johnette Barham: taxpaying, middle-class professionals who invest in local real estate, work and play downtown, and make their home here.

Ms. Barham just left. And she's not coming back.

In seven years as a homeowner in Detroit, she endured more than 10 burglaries and break-ins at her house and a nearby rental property she owned. Still, she defied friends' pleas to leave as she fortified her home with locks, bars, alarms and a dog.

Then, a week before Christmas, someone torched the house and destroyed almost everything she owned.

The article is titled "Black Flight Hits Detroit," but the underlying issue transcends race. Crime drives the responsible, productive people out of a neighborhood and leaves behind two kinds of people -- criminals and those who can't leave.

Let us keep this in mind when someone claims it is "smart on crime" to grant short sentences or even probation to the "nonviolent offenders" who drove Ms. Barham out of Detroit. Let us particularly keep that in mind when the same politicians who want leniency for the criminals bemoan the urban decay that they have done so much to cause.

Hope for Sotomayor


Justice Sotomayor joined the Court's 6-3 majority today in Barber v. Thomas, upholding the Bureau of Prisons' method of computing good time credits.  The Bureau uses the actual time the defendant has been in jail; the defendant had wanted the computation based on the inevitably longer period to which he was sentenced.

The case is not a blockbuster, although it is marginally significant for the roughly 200,000 federal inmates.  The principal significance for the rest of us is that Justice Sotomayor voted for the government in a case where an "empathy"-driven judge (see, e.g., Justice Kennedy and his sentiment-laden writings in Graham, Roper and Kennedy v. Lousiana) could easily have gone the other way.

Unsurprisingly, Sotomayor voted as Justice Souter surely would have in Graham.  But today's case is different.  It is difficult to believe that Souter  --  ever looking to eke out a way to boost criminal defendants  --  would have voted with today's majority.  This is the frist criminal case in which I am certain that Sotomayor cast a more "consevative" vote than Souter would have.

Ladies and gentemen, there may yet be hope.

Rasmussen has this video report of the crime survey previously noted here. The video focuses on the "fairness" questions of the survey.
No major action on the criminal law front from the U.S. Supreme Court this morning. Barber v. Thomas upheld the U.S. Bureau of Prisons' method of computing good time credits. The decision is 6-3; opinion by Justice Breyer, dissent by Justice Kennedy joined by Justices Stevens and Ginsburg. We will likely post more on this case later.

In U.S. v. Juvenile Male,* the Court also certified a question to the Montana Supreme Court to help it decide if a case on retroactivity of sex offender registration is moot.

Update: John Elwood at VC has this post on two "relisted" capital cases, Ryan v. Libberton, 09-1208, from Arizona and Sears v. Upton, 09-8854, from Georgia.  Elwood notes that in the Arizona case, both of the State's questions presented begin "Did the Ninth Circuit err ...."

* Come on now, federal courts, surely you can think of a better way to name your juvie cases.

Reversals of USCA6

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Lawrence Hurley has this article in the L.A. Daily Journal, via How Appealing, on the large number of Sixth Circuit cases -- all reversals so far -- in this SCOTUS term.

The Sestak Affair, Cont'd.


A little more than two months ago, I called for the appointment of a Justice Department Special Counsel to investigate the facts and circumstances surrounding the White House job offer to Congressman Joe Sestak to drop his primary challenge to Senator Arlen Specter.

After weeks of dodging questions and refusing to give specifics, White House spokesman Robert Gibbs has announced that "nothing improper" went on, citing the "investigation" by none other than long-time Obama friend, now White House Counsel,  Robert Bauer.  This despite the fact that there remain fair reasons to believe a violation of federal anti-corruption statutes may have occurred.

In my meandering path through the federal bureaucracy, I have worked both in White House Counsel's Office and the Criminal Division of the Justice Department.  It comes as news to me that, in a matter of this gravity and ambiguity, the White House can "investigate" itself and then call it a day. 

Other alumni of Counsel's Office, William Burck and David Rivkin, agree, and make the case in their Washington Post op-ed, which follows the break.

Worthless Law Reviews

Santa Clara Law Dean Gerald Uelmen and I rarely agree, but I do recommend his article in the current issue of California Lawyer.

The full title of the article is "The Wit, Wisdom, and Worthlessness of Law Reviews," but I did not see any evidence of the first two in the article.

The main problem is too much theory and not enough practice.

And when [Cal. Supreme supervising staff attorney Jake] Dear did find a useful article, it was just as likely to be authored by a student as by a law professor. This left him with the distinct impression that "many law professors do not deign to write anything of practical use, but instead leave such pedestrian matters for students."

Clemency in Ohio

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Ohio Gov. Ted Strickland has granted clemency to Richard Nields, Andrew Welsh-Huggins reports for AP. The governor's statement is here.

Clemency in capital cases is relatively rare these days, for a number of reasons. One reason is that there are far fewer capital crimes than in the past. The Supreme Court has required the states to limit the death penalty to murder and to further specify some objective factors that make the case worse than the minimum elements of murder. The Court has further created categorical exceptions that exclude the cases that would have been the most compelling cases for clemency.

A second reason is the much greater judicial scrutiny that capital cases receive. In California, for example, only 14 inmates have made it through the system to execution in the post-Furman era, and in none of these cases was the clemency question even close, in my opinion.

A third reason is closely related to the second. Because so many murderers that should be executed are not, there is great public frustration with the system. Political pressure on the governor not to commute the sentence in one of the few cases where it actually can be carried out is greater than it would be if deserved sentences were routinely carried out.

This may be where Ohio is different. As the AP story notes, "The state has executed 14 men since Strickland, a Democrat, took office in 2007. He has spared three inmates, including Nields."

Fourteen in 3½ years is a lot. It is well more than Texas if considered in proportion to the number of murders in the time period in which these crimes were committed. When a state's death penalty system is actually working, the governor has the political elbow room to grant clemency in a capital case.

So, everyone carping about how seldom clemency is granted in capital cases, get behind the reforms needed to achieve an effective death penalty.

Radio Program on Thompkins

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KPCC, public radio in L.A., has this program on the Berghuis v. Thompkins decision. The program is Air Talk, hosted by Larry Mantle. The guests are UC Irvine Law Dean Erwin Chemerinsky and CJLF Legal Director Kent Scheidegger.

Kagan on Ineffective Assistance

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In the summer of 1987, Thurgood Marshall's clerk Elena Kagan wrote a cert. memo in the case of Pughsley v.O'Leary. The scanned image can be found at SCOTUSReport. Here is the text:

Petr filed for a writ of habeas corpus, raising both fourth amendment and sixth amendment (ineffective assistance of counsel) claims. The DC denied the petition and declined to issue a certificate of probable cause. The CA7 also declined to issue a certificate of probable cause, stating that the petr had failed to make a substantial showing of the denial of a federal right.  In his petition for cert, petr attacks the standard set forth in Strickland v. Washinqton to govern ineffective assistance claims. I 'd like to reverse Strickland too, but something tells me this court won't buy the idea. Petr also claims that the DC ignored this court's holding in Kimmelman v. Morrison, 106 S. Ct. 2574, that Stone v. Powell's restriction on habeas review of fourth amendment claims does not extend to ineffective assistance claims founded on incompetent representation with respect to a fourth amendment issue. This argument does not fly. The DC found only that petr was precluded from raising a fourth amendment claim in habeas proceedings when he had raised this claim, within the context of a sixth amendment claim, on direct appeal. In addition, the DC found that petrns fourth amendment claim had no merit.

The comment "I'd like to reverse Strickland too" requires explanation. I wouldn't make too much of it until we get the explanation. I don't necessarily believe everything I wrote in 1987. Still, it's an issue that requires examination.

The notion that the Strickland rule leans too far in the prosecution's favor, if she really still believes that, could be a huge problem. The rule is sufficiently loose that it enables the Ninth Circuit to adopt something pretty close to a de facto rule that every capital trial lawyer whose client is sentenced to death is per se ineffective. The Supreme Court itself completely blew it in the murderer's favor in Rompilla v. Beard, 545 U.S. 374 (2005). A desire to shift this law even further in the direction of overturning judgments for a reason completely beyond the state's control would be a valid ground for opposition of her confirmation.
Promptly after the much-publicized Supreme Court decision in Berghuis v. Thompkins Tuesday, the Rasmussen Poll asked regular folks about Miranda and other crime issues. Toplines here; article here. I was on an L.A. public radio program Wednesday, and a caller made the predictable comment that the right wing Supreme Court was destroying constitutional rights. Well, the country as a whole doesn't see it that way:

3* Some people say that there is a natural tension between protecting individual rights and public safety. In the United States today, does our legal system worry too much about protecting individual rights, too much about public safety, or is the balance about right?
33% Legal system worries too much about protecting individual rights
20% Legal system worries too much about public safety
32% Balance is about right
15% Not sure
Is there dynamite in Elena Kagan's papers from the Clinton White House? The timing of the release suggests there is. Julie Hirschfeld Davis reports for AP (emphasis added):

Supreme Court nominee Elena Kagan's paper trail is about to get a lot longer.

The William J. Clinton Presidential Library is scheduled Friday afternoon to release the first batch of a 160,000-page trove of records from Kagan's service in the former president's White House. The National Archives announced it would post 46,500 pages on the library's website.

As everyone who has been around politics any length of time knows, Friday afternoon is when you release damaging information that you can't spike altogether. The information is reported in the weekend papers, when most people are out fishing or whatever and not really paying attention to politics. By Monday, it is old news, and old news is no news.

We do have Ms. Kagan's earlier work as a clerk for Thurgood Marshall. I will link to that in a separate post.
Sheri Qualters reports in NLJ over a circuit split on discretion in resentencing.

A U.S. Court of Appeals for the 1st Circuit ruling giving district court judges resentencing discretion when a defendant meets career offender and crack cocaine guidelines expands a circuit split on the issue.
The 1st Circuit ruled on May 28 in U.S. v. Cardosa that trial judges have discretion to resentence criminal defendants who originally were sentenced in line with former crack cocaine sentencing guidelines, even if the defendant qualifies for career offender status....

The ruling followed similar decisions by the 2d, 9th and 11th circuits. The 8th and 10th circuits, by contrast, have not allowed resentencing.
Sounds certworthy to me.

Anyone conversant with the Supreme Court's death penalty jurisprudence is familiar  --  too familiar  --  with the phrase, "evolving standards of decency."  It first appeared in a 1958 citizenship case, Trop v. Dulles, written by Chief Justice Earl Warren.  Justice Brennan, being no dummy, quickly saw its potential as a way of equating "decency" with "abolition of capital punishment," and, more broadly, of equating fidelity to the written Constitution with primitivism.


George Will now delves more deeply into the origin of this sort of thinking.  He links "evolving standards of decency" to the broader theme of Wilsonian progressivism.  I had thought that invoking the word "progressivism" was merely a tool to allow our opponents to call themselves anything other than "liberal," a term the public has figured out means bad news for the country.  Either that, or a tool the Left fashioned to simply expropriate the idea that they represent "progress," and everybody else is a troglodyte.


Will has a deeper understanding.  As he explains, "The name 'progressivism' implies criticism of the Founding, which we leave behind as we make progress. And the name is tautological: History is progressive because progress is defined as whatever History produces. History guarantees what the Supreme Court has called "evolving standards of decency that mark the progress of a maturing society."  

Will's essay is short and very much worth the read.

Here is a bit of good news from National Law Journal. You can now get the insights of veteran reporters Tony Mauro and Marcia Coyle on the U.S. Supreme Court in an e-newsletter. Sign up here.

No, there is no "bad news" punchline. It's free.

......he might come to think he can get away with it again.  This, apparently, is the lesson to be drawn from the story of Joran van der Sloot, once of Natalee Holloway fame.  MSNBC reports:


Police in Chile are checking hotels for a young Dutchman long suspected in the 2005 disappearance of U.S. teen Natalee Holloway and now believed to be involved in the killing of a woman in Peru.

After Peruvian officials announced Wednesday that Joran van der Sloot is the prime suspect in the death of 21-year-old Stephany Flores in a Lima hotel, Chilean police confirmed he had entered their country two days earlier.

*                            *                       *

Two years ago, a Dutch television crime reporter captured hidden-camera footage of van der Sloot saying he was with Holloway when she collapsed on a beach from being drunk. He said he believed she was dead and asked a friend to dump her body in the sea.

Judges subsequently refused to arrest van der Sloot on the basis of the tape.


The release of factually guilty people absent proof beyond a reasonable doubt is the price we pay for safeguarding liberty from a potentially oppressive government.  The Framers and almost all of our citizens think the price is worth it.  But, as this story shows, it is still a price. 

Fourth Time the Charm?

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The case of Randy Guzek, of Oregon v. Guzek infame, has gone to a penalty phase trial for the fourth time. Erin Golden has this story for the Bend Bulletin, reprinted in the Argus Observer.
The "Missouri plan" is extolled as a better way to select judges by those who can't bear the thought of the Great Unwashed having any significant input on the matter. Under this plan, the governor is limited to choosing from a short list prepared by an august commission of the wise and wonderful, which generally ends up dominated by the state bar.  Well, the celebrated Missouri plan is not all that popular in Missouri. Folks there have apparently gathered enough signatures to put a repeal on the ballot.

It's old news by now that, as CNN recounts:

After a meeting with state attorneys general and federal prosecutors from Louisiana, Alabama and Mississippi, U.S. Attorney General Eric Holder told reporters that the Justice Department was looking at possible criminal violations in connection with the spill.

When I was in the Justice Department  --  under administrations of both parties  --  we waited until the end of the investigation to go public with it.  We did not announce an investigation at the beginning, lest innocent parties be unfairly tarred, and lest guilty parties make haste to hide or destroy evidence.  Evidently things have changed.


Because the administration is in big political trouble on account of the oil spill, see Real Clear Politics story here, and has to pretend it's doing something.  The public knows full well that it has massively failed to do the one thing that actually needs doing, i.e., capping the pipe.  Given Big Government's now proven inability to do that, it seems that Plan B is to have the Attorney General use his official position to snarl at the boogeyman, that being BP.

BP makes a great boogeyman, for sure.  It may be guilty of all kinds of crime, and one way or the other, the results of its behavior are a catastrophe.  But, as Mr. Holder knows full well  --  for example, in dealing with terrorist detainees  --  our system prizes the presumption of innocence.  Merely because it's convenient as a political matter, and necessary as a PR matter, to forget that in this instance does not make it any less a part of the system of law Mr. Holder elsewhere claims to value.


Today's WaPo opinion page brings most welcome news. Richard Cohen, quintessentially lefty columnist, has seen the light. He has thrown overboard the left's number one article of faith regarding crime (emphasis added):

This is a good news, bad news column. The good news is that crime is again down across the nation -- in big cities, small cities, flourishing cities and cities that are not for the timid. Surprisingly, this has happened in the teeth of the Great Recession, meaning that those disposed to attribute criminality to poverty -- my view at one time -- have some strenuous rethinking to do. It could be, as conservatives have insisted all along, that crime is committed by criminals. For liberals, this is bad news indeed.
*                                 *                                  *
Whatever the reasons, it now seems fairly clear that something akin to culture and not economics is the root cause of crime. By and large everyday people do not go into a life of crime because they have been laid off or their home is worth less than their mortgage. They do something else, but whatever it is, it does not generally entail packing heat. Once this becomes an accepted truth, criminals will lose what status they still retain as victims.
*                                 *                                  *
Common sense tells you that the environment has to play a role and the truly desperate will sometimes break the law -- like Victor Hugo's impoverished Jean Valjean, who stole bread for his sister's children. But the latest crime statistics strongly suggest that bad times do not necessarily make bad people. Bad character does.
Welcome to the ranks of the enlightened, Mr. Cohen.

Waiting on the Kagan Papers

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Jill Zeman Bleed reports for AP: "Researchers at the William J. Clinton Presidential Library are working overtime to produce more than 160,000 pages of documents -- some of them possibly holding clues to the record of Supreme Court nominee Elena Kagan.... The nation's top archivist has said he hopes to start releasing documents by June 4."

We at CJLF are particularly interested in knowing whether Ms. Kagan had anything to say on the habeas reform portion Antiterrorism and Effective Death Penalty Act of 1996. More particularly, what was her input, if any, on President Clinton's preposterous signing statement to the effect that the deference standard did not really change anything and would be unconstitutional if it did. The first of these two propositions has been expressly rejected by the Supreme Court, and the second has been implicitly rejected, but a nominee who actually believed the second would be quite dangerous.

Non sequitur of the day award goes to Senator Patrick Leahy, regarding the schedule:

Committee Chairman Patrick Leahy, D-Vt., pointed out when he set the hearing schedule that the Senate had reviewed Kagan's credentials a year earlier when it confirmed her as solicitor general, the government's top lawyer in arguments before the Supreme Court.

"There is no reason to unduly delay consideration of this nomination," said Leahy.

As the distinguished gentleman from Vermont knows very well, there is a world of difference between the "at will" office of SG and a lifetime appointment to the Supreme Court.

News Scan

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Illegals Caught Smuggling Pot:  Two tons of marijuana and twenty suspected illegal immigrants were caught by San Diego Police early this morning according to this story by NBC reporter Monica Dean.  Police and Border agents spotted a boat landing on a La Jolla beach at 1:15 am.  When officers approached the seven passengers scattered leaving the pot in the boat.  About an hour later another boat landed with thirteen passengers.   All the suspects were apprehended.  In order to determine that those caught might be illegals, police must have asked for their ID.  Somebody call Al Sharpton!

Cal. AG Primary: Marisa Lagos has this story in the SF Chron on the Democratic primary of California AG and the heat on SF DA Kamala Harris. "[T]he family of slain San Francisco Police Officer Isaac Espinoza has also joined the chorus, sending out a scathing e-mail urging people to vote against the prosecutor."  Harris "notes that her anti-death penalty position is the same as the last three attorneys general." Three? That is true of incumbent Jerry Brown. Predecessor Bill Lockyer saw the light during his tenure, so that's debatable. To say that about Dan Lungren, however, is just ludicrous.

A Major Pruning of Miranda

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Today, the United States Supreme Court pruned back the artificial rule it created in Miranda v. Arizona in 1966. The decision in Berghuis v. Thompkins moves the Constitution back in the direction of what it really says, that no person "shall be compelled to be a witness against himself in a criminal case," and away from artificial rules created by the Court.

The Miranda rule remains intact in that the police must warn suspects of their rights and that an invocation of those rights by the suspect requires the police to stop questioning. Today's decision involves what is needed to establish whether a suspect invoked or waived his rights.

To invoke the right to remain silent such that the police must stop, the suspect must say so expressly and unambiguously. On the other hand, a waiver of rights may be inferred from the facts that the suspect received the warnings, understood his rights, and responded to questions anyway.

The rule really in the Constitution, forbidding compelled statements, remains in force, of course. Today's decision places limits on an entirely artificial rule grafted onto the Constitution by the Supreme Court. It is entirely appropriate that artificial rules be strictly limited, if they are not to be abandoned altogether.

The split was 5-4, majority opinion by Justice Kennedy, dissent by Justice Sotomayor.

Although this case is governed by the deferential standard of AEDPA (28 U.S.C. §2254(d)), the Court chose to decide the issues on the merits. That is consistent with the statute, since a correct decision is necessarily reasonable, but Justice Sotomayor criticized the majority for going further than needed to decide the case before it. True, but it is kind of odd to make that criticism in a Miranda case, as Miranda itself is the exemplar of going further than necessary to decide the case.

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