Recently in Federal Courts Category

Joe Palazzolo has this post at WSJ Law Blog, titled, "Hating on the Ninth Circuit: Funny But a Little Depressing."  The topic is criticism of the Notorious Ninth by presidential candidates, the candidates' proposals, and some reaction from judges.

Some of the statements by candidates are indeed off the wall.  Newt Gingrich's idea about issuing subpoenas to judges to appear before Congress is typical Newt half-baked.  Chief Judge Kozinski says, "They don't need a subpoena. All they need to do is ask."

Two other judges comment without being named.  This comment is all too typical:

Other Ninth Circuit judges told Law Blog they were amused by all the attention the court was getting, but they said the animosity toward judges reflected a deep misunderstanding of how the federal courts operate, which they attributed to a lack of civics education.

Ah, yes.  Once again, it is the ignorant Great Unwashed who fail to understand that the judges of the Ninth Circuit are simply doing their jobs and showing "loyalty to the Constitution" when they hand down all these controversial rulings.  However, given the number of unanimous reversals of the Ninth by the Supreme Court, as we have noted many times on this blog, the lack of understanding may well be at the Ninth itself.

"And what about abolishing the court altogether?" the post asks.  The appeals do, indeed, have to go somewhere.  A "nuclear option" would be to abolish the Ninth, ousting its judges Thomas Jefferson style, and creating one or two new courts with newly appointed judges to take the appeals instead.  That would be an extreme measure, to be avoided except as a last resort. 

Electing presidents who want to fix the Ninth and put some priority on the appointments is a far better method, albeit much slower.  President Bush, disappointingly, did not put a high enough priority on the problem.  A vacancy was left unfilled for years, and some of the appointments that were made were ill-advised.  President Obama, of course, does not want to fix the Ninth.  Let's hope for change -- that the next president does better.

No good reason.  CJLF's press release follows the jump.

Tomorrow the California Supreme Court will announce its answer to the question certified by the Ninth Circuit regarding whether the proponents of an initiative have standing to defend it when executive officers fail to do so.  Notice is here.  As noted in the prior post, CJLF takes no position on the underlying marriage controversy, but I do think the proponents should have standing to make their case for the initiative.

Update:  The Court thinks so too, unanimously.

Gary Fields and John Emshwiller have this article in the WSJ.

An explosion of criminal prosecutions in the nation's overextended federal courts has left civil litigants from bereaved spouses to corporate giants waiting years for their day in court.

The logjam, prompted particularly by criminal cases related to drugs and immigration, as well as by the proliferation of more-obscure federal criminal laws, threatens the functioning of the nation's judicial system, say some judges and attorneys.

"We need the resources to do both" civil and criminal law, says W. Royal Furgeson, a senior federal judge in Dallas. If decisions on contracts, mergers and intellectual-property rights "can't be reached through quick and prompt justice, things unravel for business."

But everybody needs more resources, so the first thing we should do is look at the federal courts to see what they are doing that can be done by state courts or does not need to be done at all.

Adam Liptak and Michael Shear have this article in the NYT about the federal judiciary as an issue in the presidential campaign.

Denunciation of judicial overreach is, of course, a grand tradition in the Grand Old Party.*  The party's very first successful presidential candidate made attack on a Supreme Court decision a major theme of his campaign.  Denouncing that decision was controversial at the time, but nearly everyone today agrees he was correct.

Liptak and Shear report:

Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a "rogue" court that is "consistently radical."

The heading above is the topic of a hearing in the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security.  Witnesses include US Sentencing Commission Chair Patti Saris and our own Bill Otis.

Update:  Video of the hearing is now available.  Same link.

The federal system's deplorable single-juror veto rule for capital sentencing has let another murderer off too easy.  (The crime was noted in yesterday's News Scan.)  Larry Lujan was a drug dealer in San Antonio, Texas.  He required others dealing drugs in his "territory" to pay a "tax."  When 16-year-old Dana Grauke did not, Lujan kidnapped him out of his home and drove him over 500 miles to Anthony, New Mexico (on I-10, just over the state line).  There he sliced Grauke's throat with a meat cleaver, nearly decapitating him.  For more details on the crime, see yesterday's story.

Lujan got off with life yesterday, not because the jury agreed that sentence was appropriate but because the jury could not agree after deliberating "several hours."  Ashley Meeks has this story on the nonverdict in the Las Cruces Sun-News.

The story doesn't say what the vote was, but in some cases a single juror has imposed his view of the correct sentence over the opposition of the other 11 through this asinine rule.

There are two correct ways of handling the unanimity issue.  In California, the jury must be unanimous one way or the other.  If they are truly deadlocked, it is a mistrial, just like on the guilt verdict, and the penalty phase is retried.  In Florida, a less-than-unanimous jury can make a recommendation, and the judge makes the final decision.

Congress really needs to fix this.  Pick the California method or the Florida method, but get rid of the single-juror veto.

And now, for something completely different, the term mens rea appears in the first paragraph of a front-page story in a newspaper not specifically for lawyers.

Gary Fields and John Emshwiller have this story in the WSJ on watering down of the criminal intent requirements in federal criminal laws.  Their lead horror story is a Native Alaskan trapper charged with a crime for selling sea otters.  The sale would have been perfectly legal if the buyer were another Native Alaskan but, unknown to the seller, he was not.

Declining mens rea requirements are compounded by overfederalization and overcriminalization.

The criminal law draws its moral force from a societal consensus on the wrongness of the conduct.  Expanding criminal law beyond inherently wrong acts such as robbery and murder into regulatory matters needs to be done carefully.  As the story illustrates, Congress has been astonishingly sloppy at times.

F. James Sensenbrenner, a Wisconsin Republican and chairman of the House crime subcommittee, said he wants to clean up the definition of criminal intent as part of a broader revamp of the criminal-justice system. There are crimes scattered among 42 of the 51 titles of the federal code, with varying standards of criminal intent. Still others are set by court decisions.

"How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix," he said.

Judge Pamela Rymer of the US Court of Appeals for the Ninth Circuit died Wednesday of cancer.  She served 22 years on the court.  She will be greatly missed.  The Ninth Circuit's press release is here.  AP story is here.

Nina Totenberg has this article for NPR on the controversies over the Supreme Court, judicial ethics, and H.R. 862, the bill to make the Code of Conduct applicable to the high court.

While I have been critical of Ms. Totenberg's coverage of the Court on other occasions, I find this piece, well, "fair and balanced."

Following up on the prior posts here and here, AP reports from Grand Rapids, Michigan:

Federal prosecutors in Grand Rapids have until Sept. 16 to decide whether to appeal a decision that overturned a rare death sentence.

An appeals court set the deadline Tuesday, about a week after one of its three-judge panels threw out the death penalty for Marvin Gabrion.

In 2002, Gabrion was convicted of drowning a woman in a national forest. The jury sentenced him to death, an option in federal court.

But the appeals court says the sentencing phase needs to start over. In a 2-1 decision, the court said defense lawyers should have been able to argue that Gabrion would not have faced a death sentence if the case had been prosecuted in state court.

The government's options include asking the full appeals court to look at the case.

Technically, the options are to (1) petition for rehearing by the panel; (2) petition for rehearing en banc (the last sentence above); or (3) petition for a writ of certiorari from the Supreme Court.  Option (1) is essentially useless, as none of the three judges on this panel will change position.  Skipping (2) for (3) is permissible, but SCOTUS takes a dim view of it, and I don't expect it.  Go for (2).

In the upper echelons of the present Administration, there will probably be a tussle between anti-death-penalty ideologues supporting "none of the above" (letting the decision stand), and political operatives who know that would be politically disadvantageous and will support option (2).  (Career prosecutors and people who care about justice would also support (2), but there are few, if any, in the upper echelons.)  I expect the political operatives to win.

Carol Williams has this story in the LAT on the Ninth Circuit's numerous reversals by the US Supreme Court.

It was another bruising year for the liberal judges of the U.S. 9th Circuit Court of Appeals as the Supreme Court overturned the majority of their decisions, at times sharply criticizing their legal reasoning.

SCOTUSblog is out with their batch of statistics for the US Supreme Court term just ended.  This year, they have helpfully posted their spreadsheet of raw data so others can crunch the numbers in different ways.

In accordance with the theme of this blog, I selected out the cases where the "nature" of the case is criminal or habeas.  From this subset, I made my own circuit scorecard.

In the full set compiled by SCOTUSblog, including civil cases, the Ninth Circuit is doing better than in prior years.  In the criminal cases, though, the Ninth remains dismal.  For cases decided on the merits with an opinion, reversals of the circuits line up as follows:

CA1:  0/2 = 0%
CA3:  1/2 = 50%
CA4:  0/1 = 0%
CA6:  2/3 = 67%
CA7:  1/2 = 50%
CA8:  1/1 = 100%
CA9:  8/8 = 100%
CA11: 1/2 = 50%

There were no criminal cases this term from the Second, Fifth, Tenth, or D.C. Circuits.  One Ninth Circuit federal case was "affirmed by an equally divided court," which in legal effect is the same as if the Supreme Court had not taken up the case at all.

More important than reversal rate is the number of unanimous reversals.  When the Supreme Court is close to evenly divided, that indicates the question was close and reasonable judges could go either way.  When not a single one of the nine justices of diverse viewpoints thinks a decision was correct, that is an indication that the court below is seriously out of the mainstream.

Nine federal court of appeals decisions in criminal or habeas cases were reversed unanimously this term, and the Ninth racked up a stunning six of them, twice as many as all other circuits put together.  All but one are cases where the Ninth wrongly granted habeas corpus to a state prisoner.  For its state-prisoner habeas cases, the Ninth got a grand total of two votes to affirm in six cases, a vote total of 50-2 to reverse.

This is an utterly dismal record.  The Ninth is a clear and present danger to public safety and the rule of law.  Once more, with feeling, the Senate needs to carefully examine any nominees for this train wreck of a court to make sure that they will make it better on habeas, not worse.

David Ingram reports at BLT:

Three Republicans who have rarely supported filibusters of judicial nominees said today they will vote to filibuster appellate nominee Goodwin Liu, a bad omen for Liu a day before a crucial Senate vote.

Republican Sens. Lindsey Graham (S.C.), Johnny Isakson (Ga.) and John McCain (Ariz.) said they plan to vote against ending debate on Liu's nomination. The vote is scheduled for 2 p.m. on Thursday, and Liu needs 60 votes to advance to a final confirmation vote. A judicial nominee of President Barack Obama has never been successfully filibustered, but Liu may be the first.

In separate comments, the three senators all cited the same reason for opposing Liu: the law professor's 2006 testimony against the confirmation of Justice Samuel Alito Jr.

    The US Senate will likely vote tomorrow afternoon on cloture on the disastrous nomination of Goodwin Liu for the Ninth Circuit Court of Appeals.  This nomination needs to be stopped.

    The Ninth Circuit is the worst federal court in the country when it comes to reviewing criminal cases.  Here are a few of its decisions:

    -- It overturned, on patently erroneous grounds, the conviction of a man who had brutally raped and nearly killed a 9-year-old girl, and it did so on a basis that would have prevented retrial and put him back on the street.  Fortunately, the Supreme Court unanimously reversed.

    -- It usurped to itself the power to second-guess parole decisions of the parole board and governor in murder cases, and it did so for years until the Supreme Court finally, and without dissent, ruled that this was no part of that court's business.

    -- It overturned a conviction for premeditated murder because the defense lawyer abandoned a hopelessly weak insanity claim.  The Supreme Court unanimously reversed.

    But the wrong decisions the Supreme Court reverses are only the tip of the iceberg.  In most cases, the federal court of appeals decision is the final decision.  It is vitally important that we have good judges who understand the need for justice on these courts.  For a court as bad as the Ninth presently is, it is essential that new appointments make the court better.  Appallingly, President Obama has nominated someone who would make this court even worse.