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Those of you who follow Doug Berman's entertaining Sentencing Law and Policy will see that a hue and cry is being raised about the Davis opinion.  This was to be expected.  As I have noted there:

The abolitionist refrain about Troy Davis's "innocence" is identical in its shrill, superior and indignant character to the same claim they made about Roger Keith Coleman. And it's identical in one other respect as well, to wit, it's identically false.

Let's face it. Troy Davis's "innocence" was, in the abolitionist eye, never going to be a product of evidence. The district court's opinion could have gone on for 1000 pages and it would have made no difference. Davis's "innocence" has become an urban myth of the abolitionist Left, much in the way that George Bush's "complicity" in arranging the 9-11 attacks has become a Leftist myth. Davis's innocence must be assumed, no matter what the balance of the evidence or the care taken to parse it, because that assumption is the necessary predicate to slam the United States as a rogue country that willy-nilly executes people for the fun of it, especially if they're black.

This mindset is related to, though not exactly the same as, the one that insists OJ didn't do it. OJ was acquitted (by the criminal jury, although not the civil one), so he's not an adjudicated murderer, no doubt about that.  But is he the guy who stuck in the knife? No serious person -- except those who're serious about hating the country -- thinks he wasn't.

Again, to a certain turn of mind, these episodes have long since stopped being cases and started being icons. They are the Religion of the Left. That's the reason debates with abolitionists go nowhere. You can argue facts, but you can't argue religion.

In this video, WSJ columnist Peter Jeffrey gives us a whimsical view of what former Gov. Blago might say in explanation of his decision not to testify at his trial.

In mid-April, while commenting on the gaping lack of trust our citizens now bear toward their government, I noted that one of the reasons for the loss of faith is growing evidence that the Justice Department has become incompetent or politicized or both.  One of the more alarming examples of politicization was the decision to drop what would seem to be an ice-cold case against the New Black Panthers for voter intimidation at a Philadelphia polling place.  (The C&C News Scan recently reported new developments in the matter).

The story is being covered in depth by Powerline, whose most recent entry is here.  Having been both a career attorney at the Department and a political appointee, I am appalled by it.  One of the two career attorneys who had been handling the matter thought the behavior of his political superiors so shocking and dishonest that he could not continue at the Department.  In an op-ed in the Washington Times, he made this observation:

The New Black Panther case was the simplest and most obvious violation of federal law I saw in my Justice Department career. Because of the corrupt nature of the dismissal, statements falsely characterizing the case and, most of all, indefensible orders for the career attorneys not to comply with lawful subpoenas investigating the dismissal, this month I resigned my position as a Department of Justice attorney.

The Department's decision to drop the case, apparently because the Black Panther toughs were intimidating "only" white and Republican voters, is a scandal unto itself.  But's that's too obvious for argument.  What I want to flag here is the other scandal:  the Big Press Cover-Up.

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.

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.

Lyle Denniston at SCOTUSblog reports that Justice Stevens has denied the former Illinois governor's request for a stay of his corruption trial.

Jesse Holland has this story for AP.

An editorial in today's Los Angeles Times comments, "[w]e'd prefer a longer break" than the 14-day "break in custody" rule established by last week's Supreme Court decision in Maryland v. Shatzer.  While the editorial commends the Court for drawing a bright line rule that police may reinterrogate a suspect 14 days after the suspect's first interrogation, it also finds it disturbing that between Shatzer's first interrogation in 2003, and his second in 2006, Shatzer remained in prison.  The editorial comments that "[i]mprisonment is not 'normal life,'" and takes issue with the Court's conclusion that Shatzer, who had remained in prison, had returned to "normal life" for some time before the second interrogation.  The editorial writes, "[t]he court would have been truer to Miranda if it had recognized that, in this case, there was no gap in custody."

The problem with this argument is that Shatzer didn't really address Miranda, it addressed Edwards v. Arizona, and whether there could be an exception to Edwards' rule that once a suspect invokes his right to counsel police cannot reinterrogate the suspect unless he initiates further communication.  Edwards was intended to prevent police from holding suspects in jail and using coercive measures to badger them into giving confessions. 

Last week's decision in Shatzer acknowledged that badgering and police coercion are far less likely when a suspect has been released from the interrogation room "and returned to his normal life for some time before the later reinterrogation."  The decision acknowledged that when a suspect has been released and returns to his daily routines "there is little reason to think that [a suspect's] change of heart regarding interrogation without counsel has been coerced."  The suspect in Edwards had not been released, and had been held overnight and questioned until he confessed.  Edwards sought to reinforce Miranda by ending this type of practice, and the exception to Edwards recognized in Shatzer does not undermine the Fifth Amendment's protection from compelled self-incrimination.  Miranda warnings must be read to suspects and interrogation cannot continue until a suspect waives his rights.  Shatzer simply recognized that a suspect could have a "change of heart" and might voluntarily answer police questions 14 days after his first interrogation.  

The general rule that character evidence is inadmissible in criminal proceedings is always subject to exceptions.  One of those exceptions is when the prosecution "opens the door" by introducing evidence of the victim's virtuous life during the penalty phase.  But in a murder trial, is evidence that the victim possessed child pornography enough to sully his good character?  And if defense counsel fails to introduce that evidence, is it reversible error under Strickland v. Washington? 

Yes, says the Supreme Court of Missouri in the recent case of Gill v. State:

When the State introduced evidence regarding the victim's good character, Gill's counsel should have presented rebuttal evidence. However, his counsel failed to present rebuttal character evidence because they failed to discover it. They saw the names of the sexually explicit files on the report but were not diligent in investigating further. Defense counsel testified at the Rule 29.15 hearing that after more carefully reviewing the report, they noticed entries that should have alerted them to the presence of pornography on the computer. They had the opportunity to discover the child pornography, bestiality content, and instant message conversations on the victim's computer but neglected to do so.

By failing to discover those files on the victim's computer, Gill's counsel's performance was deficient.

Today, the Supreme Court will hear oral arguments in Berghuis v. Smith (08-1402), a case involving issues of jury discrimination disparity analysis and AEDPA deference. 

In 1993, Diapolis Smith was convicted for the second-degree murder of Christopher Rumbly at a bar in Grand Rapids, Michigan.  He was sentenced to life in prison without the possibility of parole.  On appeal, Smith claimed that his Sixth Amendment right to a venire (jury pool) representing a fair-cross-section of the community was violated because the percentage of African Americans who appeared for jury service was lower than the percentage of African Americans living in Kent County, Michigan.  The Michigan Supreme Court rejected Smith's argument.  It found that Smith had "failed to establish a legally significant disparity under either the absolute or comparative disparity tests" and that he failed to demonstrate systematic exclusion of minorities.

Smith's habeas petition was denied by the federal district court, but the Sixth Circuit reversed.  It concluded that the Michigan state courts acted unreasonably when they found the minority underrepresentation in Smith's case was constitutionally insignificant.

Today's arguments are likely to focus on whether the state supreme court reasonably applied Sixth Amendment precedent to reach a correct decision on the merits, and whether the Michigan Supreme Court reasonably applied the three-part test established in Duren v. Missouri.  Michigan Solicitor General, B.Eric Restuccia will be arguing for the state of Michigan, and James Sterling Lawrence will be arguing for Smith.

Today's oral arguments are previewed here and here on SCOTUSblog.  The second post features five minute podcasts from participants in the case.  CJLF's Kent Scheidegger summarizes the issues before the court and argues that the Sixth Amendment does not contain a "fair cross-section" requirement.  The podcast provided by Lawrence, Smith's attorney, could well be a preview of what he will argue before the court today.

The Supreme Court issued this opinion and order in Hollingsworth v. Perry today.

The question whether courtroom proceedings should be broadcast has prompted considerable national debate. Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do not here express any views on the propriety of broadcasting court proceedings generally.

Instead, our review is confined to a narrow legal issue: whether the District Court's amendment of its local rules to broadcast this trial complied with federal law. We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court's actions. We therefore stay the court's January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.

The gay marriage suit is, of course, not a criminal or crime-related case, and CJLF takes no position on the merits of that controversy. Similar issues do come up in criminal cases, though, so we need to keep tabs on it. In its discussion of the chilling effect of broadcasting on witnesses, the Court noted the trial of LBJ crony Billy Sol Estes, which was a criminal case. "See Estes v. Texas, 381 U. S. 532, 547 (1965); id., at 591 (Harlan, J., concurring)." The Oklahoma City bombing case, and Congress's very narrowly limited authorization for closed-circuit television in that case, is also discussed.

Open courts are generally a good thing, and broadcasting a trial can have an educational benefit, letting more of the public see real trials than the limited few who can actually go to the courtroom. Even so, the impacts on victims, witnesses, and the defendant need to be considered with care. The loss of privacy and danger of intimidation that come with being a witness are magnified if the proceeding is broadcast. We need to proceed with caution.

Larry Neumeister of AP has this report on the speedy trial motion of alleged embassy bombing conspirator Ahmed Ghailani. CJLF's amicus brief, invited by the court, is here.

Apparently at one point defense counsel was spilling classified information before the AUSA could shut him up. One more reason this case should not have been moved to civilian court.

Update: Benjamin Weiser has this story in the NYT.

The Supreme Court summarily decided McDaniel v. Brown (08-559) today.  Justice Thomas wrote a concurring opinion, which Justice Scalia joined. 

The Court granted certiorari on the case last January, and then canceled oral arguments it had scheduled for October 13, 2009.  The opinion is available here.  Our brief is available here.    

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

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

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

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

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

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

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

From the California Supreme Court today in People v. Concha, S163811:

Reyas Concha, Julio Hernandez, and Max Sanchez attempted to murder Jimmy Lee Harris. During the attempt, Harris responded in self-defense by stabbing Max Sanchez to death. Relying on the so-called provocative act murder doctrine, the jury convicted defendants Concha and Hernandez of first degree murder for the death of Sanchez. We granted review to determine whether a defendant may be liable for first degree murder when his accomplice is killed by the intended victim in the course of an attempted murder. We hold that a defendant may be convicted of first degree murder under these circumstances if the defendant personally acted willfully, deliberately, and with premeditation during the attempted murder.

I'm not a big fan of prosecutions such as this. The death of Sanchez was not a crime. The world is a better place without him. Concha and Hernandez should have been prosecuted for their crimes against Harris, but that's it.