Monday, October 16, 2006

Z--The Legal Monthly

The Legal Monthly
Vol. 1 No. 3 October 2006
The Uniquely Gregarious Source Of Legal News And "Divers" Contrary Information. All comments are welcome and will be printed at the discretion of Publisher. The September issue is posted at Legal Times - I will post the Inaugural/August issue soon.

Publisher’s Note: This is the third of a series featuring recent Circuit Court developments in federal Habeas Corpus. Of fundamental concern is the constitutionality of AEDPA, specifically U.S.C. 2254(d). A few of us are eagerly anticipating the 9th Circuit Court of Appeals decision in Carl Merton Irons (v. Carey) case, No. 05-15275 on point. The following seem also ripe for commentary: Security and Privacy guarantees of The Fourth Amendment; The First Amendment and Other Fundamental Civil Rights, Bivens, and § 1983 cases of government actors’ misconduct; Cruel & Unusual Punishment; Death Penalty; Sentencing; DNA; Innocence Projects and Clinics.

Help! The White House gardener pointed me out in a lineup, and now, I’ve been designated an enemy unlawful combatant! What can I do? Answer: Float down the stream, merrily sucking deep breaths, because you are up the creek with no paddle (possibly also upside down and on a water "board"). BTW, no habeas corpus for you my friends. Tsk tsk. Pay the sewer bill right now and be rid of this trash. The due date is November 7, 2006.

"Centerpiece of the Month"
The following competed for distinction under this heading, but Bush won hands down:
- "The Threat to Judicial Independence" [Justice O’Connor in Wall Street Journal, 9/27/06].
- "Of Elections, Judges and Stupidity" By Andrew Cohen [Special to, 10/7/06]
- The "Rubber Stamp, Do Nothing, Republican Congress" quoting Rep. Dick Durbin on Cspan, [9/27/06].
- Bush: "God told me to strike at al Qaeda and I struck them; then he instructed me to strike at Saddam, which I did; and now I am determined to solve the problem in the Middle East. If you help me I will act." *** Bush's America has taken a radical swerve toward authoritarian conservatism, creating an international undertow. *** Bush's draconian bill restricting Medicare is the most significant attack on the social compact since the New Deal. It will drop about one-quarter of seniors, six million people, from their coverage for prescription drugs, and another 3.8 million will have it reduced or eliminated. *** The whole $400 billion program will be financed by regressive taxation, in contrast to the current untaxed entitlement; and $125 billion will flow into health-care and pharmaceutical companies, which are major Bush donors. Meanwhile, Karl Rove, Bush's senior political aide, announced that "reform" of Social Security, the foundation of the New Deal, is next. Excerpted from the book "How Bush Rules" by Sidney Blumenthal, as printed in the New York Times, 9/24/06.

- Useful Idiots, by Tony Judt, reviewed in London Review of Books: "the pay ratio of an American CEO to that of a skilled worker is 412:1 … the place of the liberal intellectual has been largely taken over by an admirable cohort of ‘muck-raking’ investigative journalists – Seymour Hersh, Michael Massing and Mark Danner, writing in the New Yorker and the New York Review of Books. *** Magazines and newspapers of the traditional liberal centre – the New Yorker, the New Republic, the Washington Post and the New York Times itself – fell over themselves in the hurry to align their editorial stance with that of a Republican president bent on exemplary war"

- Texas Lt. Gov. David Dewhurst is the latest to join efforts to put sex offenders into the hole proposing a plan Oct. 3 that would require a minimum mandatory prison sentence of 25 years for first-time offenders and the possibility of death for a second conviction. For the folks on the defense bar, that means no more easy pleas—its fight ‘em to death—25 years is typically a life sentence for young and old accused alike. People, wake up smell the coffee; alternatives to incarceration must be considered, and not just for "sex" crimes. "You can tell it is an election year when stories like this start appearing in the press." Capital Defense Weekly

- Delivering the High Sheriff's Law Lecture in Oxford, the Lord Chief Justice, Lord Phillips of Worth Matravers: "I am inclined to think that to be confined in prison for five years is a very weighty punishment indeed …[t]hat is not to say that I do not recognise that there are certain crimes which require a sentence of that length or longer to protect the public, but I detect on the part of such publications an incitement to the public to exact vengeance from offenders that is not dissimilar from the emotions of those who thronged to witness public executions in the 18th century." (The speech outlined the history of British punishments, including execution and a series of practices now considered "utterly barbaric" including flogging, branding, the pillory and stocks and the ducking stool.)Further: "I sometimes wonder whether, in 100 years' time, people will be as shocked by the length of the sentences we are imposing as we are by some of the punishments of the 18th century.

- The phrase "judicial activism" is at the epicenter of political debate fighting over ... nothing? Andrew Cohen of the Washington Post says, "These bozos would be better off (and so would we) if they just contemplated their navels for a few hours every day instead of endlessly fighting over this issue. "Judicial activism" means so many different things to so many different people that it means nothing at all. People just need to get over it. "Bench Conference", Andy Cohen, WP 9/13. The comments posted there were also quite interesting: 1. "This column is another example of why we left-wing blogofascists roll our eyes at most attempts by media pundits to be "even-handed" and "judicious." Rightwing activists create the totally bogus concept of "judicial activism"; rightwing politicians use it for decades to provide phony intellectual cover for attacks on judges who they consider excessively zealous in protecting the rights of women, racial minorities, consumers, and people in general; and in response, Andrew Cohen proclaims from Mount Olympus that both the right and the left are "bozos" for fighting over a "silly, pointless phrase."
2. This kind of "evenhandedness" basically amounts to scolding both the schoolyard bully and his victims--the bully for beating up the other kids, and the victims for violently attacking the bully's fists with their chins.
3. Much of it is just politics, and has little to do with the way judges do their jobs.
4. Just look at Kelo v. New London. Scalia ruthlessly attacked the court for not overturning a state law that he did not like. This is the big lie here. Conservative activists like to say their guys are acting on principle, while liberal justices are not. Anyone with half a brain can see that each judge is merely acting on different principles than the others...yuck. By The;
5. Justice Suter (sic) said it best during his confirmation hearings, when asked to express views on "judicial activism" after having had to endure a 15-minute diatribe on the subject from Strom Thurmond: "Senator, judicial activism is when the court rules against you."
6. [This is a long one but worth printing every word] The "GOP-servatives" on the benches in America's courts are often not only judicially activist but also exceedingly wicked. This term ought to be discussed and used. They are fairly easy to spot. Like the California Eastern District's Lawrence O'Neill. He has had three significant jobs in his life--cop, prosecutor, and judge (who favors exceedingly cruel prosecutors). This does not properly prepare someone for the Article III court, it makes him into yet another rubber stamp for "the law." When we get into this notion of judicial activism, let's recall the judgment of the Nuremburg Tribunals AGAINST the German Judges, rejecting their defense that they were only complying with the Nuremburg Laws, declaring them EVIL if they did not stand for justice against the laws of wickedness. The problem with law is the corruption of wealth, status, prestige, privilege, avarice, greed, lust inside the provisions. If you enforce THAT you validate the reign of evil. The court was supposed to strike evil down, and stand for the poor, the orphan, the widow, the maimed, lame, blind, those shut out by society's masses. Instead, the court has become a rubber stamp for organized, government-sanctioned cruelty. This isn't being a "good American" anymore than supporting the fascists in WWII was being a "good German." So you see, it's all subject to semantic framing. The NEO-RIGHT is much like that anointed cherub that covers, and the NEO LIBERALS are likewise. In short, it will not mean any difference for those left out and shut out and those facing injustice and cruelty, it will only matter as to who is getting the money and the status and the favors and the special treatment AMONG the rich and the elites. The American court has become an anachronism, for it is exceedingly wicked as the third sister of an exceedingly wicked family of three. So as Antonin Scalia goes duck hunting with the beneficiary of a case sitting on his desk, and refuses to recuse himself with characteristic crude arrogance and narcicism run riot, you have a fairly accurate view of the American Court. It is exceedingly wicked before God.

The Bush Wars: Why is it that when Republicans are elected we get into wars? The history of the latter 20th and early years of the 21st Century will be a story of American military misadventures, missed humanitarian missions and lost opportunities; of the growing roots of Japanese remilitarization, of rising China and failed policy toward the starving proxy, N. Korea; of growing anti-American sentiment in neighboring South America; of the transformation of the equal opportunity economy from one of technology and manufacturing to "services" and financial speculation, of the middle class morbidly separating into peasant-serf, upper-lower type distinctions and descending into a feudal model. The first answer might be, "it’s the military-industrial complex, stupid"—but are Democrats immune to the influences? And how could that be? No, then on further reflection, "ideology, stupid" is my final answer. Ds and Rs do not share similar thinking (philosophy) about money, tangible property, or people. Bottom line, Republicans never liked the New Deal that pulled this land out of recession and the crash of 1929. Until their dying breath they will fight to repeal it however, with whatever means can be pulled together, and wherever. Thus explains "privatization." This has been called yoyo (you are on your own—stupid!). And contrary to compassion, this is what Republicans will do for you, in addition to secreting and diverting your tax dollars into their own pockets, right from inside our corridors of power, and having the nerve to tell you "you should keep your own money," so they can lower your taxes—ha!---the wolf in sheepskins). Hitler rose, and the Pacific war’s roots sprouted from exactly this sort of mindless, economic yoyo-ism that America insisted on pursuing in the 1920s and 30s. If such a despot comes to power in China, India, or a unified anti-American South American continent, then what? Come to think of it, in the looking glass many see the very manifestation of tyranny embodied in our White House. Our own propaganda is making this perception even worse in the world. The midterm elections could well tell us something about all that, too. The elder Bush gave us Desert Storm and Desert Fox. For what? In Kosovo/Bosnia the UN localized an ethnic conflict and, unlike in Darfur, ended
widespread suffering, torture and war crimes. How will we view the business in Iraq? Afghanistan? The Publisher.

"[Y]ou don't need an NIE (National Intelligence Estimate) to demonstrate the most controversial judgment -- that the war in Iraq has worsened the terrorist threat." An official evaluation by Britain's domestic security and foreign intelligence services noted that "the conflict in Iraq has exacerbated the threat from international terrorism and will continue to have an impact in the long term." This conclusion is echoed by interior ministries, law enforcement agencies and intelligence services in every part of the world; *** the United States would have had a serious struggle against radical Islam after Sept. 11 under any circumstances. But the occupation of Iraq … has had an incendiary effect and made matters dramatically worse [and] was the wrong answer to the terrorist challenge, for which we will pay a high price for years to come. The continued need to defend that move by the administration and its partisans is preventing the nation from crafting the necessary strategy to meet the terrorist challenge and make Americans safer, writes Daniel Benjamin, senior fellow at the Center for Strategic and
International Studies, and Steven Simon, a senior fellow at the Council on Foreign Relations. They served on the National Security Council staff from 1994 to 1999. Washington Post 9/29/06.

Direct from yours truly and published on USAVOICE.ORG -- "Some members of Congress are trying. Let me rephrase that: Sneaking through in the last legislative days before the mid-term elections, something called the Streamlined Procedures Act. The sponsor? Sen. Jon Kyl, an Arizona Republican.
The measure would stop defendants from appealing in federal courts, prevent judges from considering key issues in many cases, and give the U.S. attorney general - a prosecutor - the power to prevent federal courts from hearing some cases.
This attempt to dismantle constitutional protections comes as DNA evidence has proved, beyond a doubt, that some innocent people are sentenced to long prison terms and even death. Polls show the public is increasingly uncomfortable about the prospect of fatal errors by the criminal justice system. The Kansas City Star has asked, "Shouldn't the senators be just as concerned?"
On Thursday, September 14, 2006, the Administration’s proposed legislation seeking to comply (read give lip service) with the Supreme Court’s Hamdan decision on interrogating and trying a wartime "detainee" (allegedly Osama bin Laden’s driver) was rejected by Senate Committee vote. In defying the President’s position on (non) compliance with Common Article 3 of the Geneva Conventions and trial/detention procedures, Senators McCain, Warner, Graham and Collins crossed the aisle to vote with Democratic members of the Committee. General Colin Powell said the public is losing faith in the moral basis of the GWOT (global war on terrorism).
Now, behind closed doors, just this week, there are efforts to attach Habeas repeal measures and 300 pages of other non-germane matters to the Department of Defense Authorization bill. The primary purpose of this bill, which is currently in conference and could be finalized in the coming days, is to provide resources for troops in Afghanistan and Iraq.
There has been broad bi-partisan opposition to habeas repeal legislation, but members of both parties who have fought on principle to resist these regressive changes may be made to look anti-patriotic when they object to the unnecessary, unrelated additions to the DOD bill.
Much of this maneuvering has been taking place though back door channels and the regular order which assures that both Chambers of Congress have a fair opportunity to consider the legislation has been skirted. Alarmingly, the texts of some of the added measures have not been seen by many members and their staff nor by the public. Additional information is available to the public at the website of The Justice Project. [ps.—the bill as passed has been described a "sell-out" failing to overcome impassioned challenges delivered on the floors of both House and Senate]
Quote: The word of the month is "come a cropper" from the state’s petition for cert in Landrigan, quoting, in turn, the panel verbatim.

The United States Supreme Court 2006 Term:
The U.S. Supreme Court granted certiorari in Smith v Texas, a UT Austin law Capital Punishment Clinic's case, agreeing on Friday to review the decision by TCCA. This marks the third time in three years that the Capital Punishment Clinic, run by CrimProfs Rob Owen, Jordan Steiker, and Jim Marcus, will litigate in the U.S. Supreme Court. It involves a Dallas County inmate, Laroyce Smith, who was sentenced to death in 1991 (see Smith v. Texas, 543 U.S. 37). On remand, TCCA nonetheless concluded that Smith's death sentence could stand. Prof. Steiker says the issue is "as old as the Constitution: whether state courts must adhere to the spirit and letter of decisions of the United States Supreme Court." Steiker and the clinic supervisors will involve students in the difficult task of briefing the case for the Court and preparing for the staggering range of federal and state issues that bear on the resolution of the case. Mark Godsey, Crim Prof Blog 10/11/06. Godsey is Professor of Law and Faculty Director, Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project at Univ. of Cincinnati College of Law.

Making Sentencing Sensible Douglas A. Berman and Stephanos Bibas, "This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment. Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing. Within these bounds, the Court should preserve states’ flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts. In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges’ reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion." The five Ninth Circuit habeas cases on the argument docket are: Belmontes, Musladin, Bockting, Burton, and Landrigan. All except Burton are cases where the state petitioned on the ground that the Ninth exceeded the limits on federal habeas review. "I find it sad and telling that the only defendant to lose in the Ninth Circuit from this group (Burton) was the one arguing to extend Blakely rights." Sentencing Law & Policy, (Prof. Doug Berman’s blog) 9/26.

Hamdan v. Rumsfeld presents two constitutional questions and more. Scotusblog (Akin Gump partner Tom Goldstein’s blog) 9/24. "[W]hether Congress has the authority, under its control of federal court jurisdiction, to deny the Supreme Court an opportunity to hear a habeas challenge to detention and to potential trial of Guantanamo detainees on war crimes charges. More specifically, the question is whether a detainee could pursue an "original writ of habeas" directly in the Court, even if Congress passed the pending compromise White House-Senate Republican post-Hamdan bill (introduced last week as S. 3930 and as part of S. 3929, a sweeping bill that also includes new restrictions on court review of foreign intelligence wiretapping that reaches Americans using the telephone or Internet connections in the U.S.) The second question is whether Congress can suspend the writ of habeas corpus altogether, by simply denying any judge -- including any Supreme Court Justice -- the authority to hear any habeas case brought by a detainee captured since the terrorist attacks of September 11, 2001."

Is AEDPA 28 U.S.C. 2254(d) Unconstitutional?
Lindh v. Murphy, 96 F.3d 856 (C.A.7 (Wis.), 1996) RIPPLE, Circuit Judge, with whom ROVNER, Circuit Judge, joins, dissenting. "Having given the federal courts the jurisdiction to determine whether a person is being held in custody in violation of the Constitution and laws of the United States, Congress now has also mandated how the courts will determine the applicable constitutional standard. Congress … has now specified that the judiciary is required to disregard the work product of one of its components, a source of law upon which the courts otherwise would rely in the adjudication of the case. ***

Habeas In the Circuits
+Reynoso v. Giurbino, No. 05-55695 (9th Cir. 9/6/2006) (9th Cir., 2006) Reynoso's claim was properly exhausted and on the merits he demonstrated ineffective assistance of counsel under Strickland …. ‘We agree with the district court that the state court's decision to the contrary constituted an unreasonable application of clearly established Supreme Court law. Accordingly, we affirm its grant of the writ of habeas corpus." Fair presentation of claim in lower court was at issue: "When, as in the instant case, "no reasoned state court decision denying a habeas petition exists," this court must assume that the state court has decided all the issues and "perform an `independent review of the record' to ascertain whether the state court decision was objectively unreasonable." (citations omitted). When it is clear, however, that the state court has not decided an issue, we review that question de novo.
+Kesser v. Cambra, No. 02-15475 (9th Cir. 9/11/2006) (9th Cir., 2006) California Court of Appeal's findings are "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Accordingly, we reverse the judgment of the district court and grant the writ.
+ Taveras v. Smith, No. 05-5579-pr (2nd Cir. 9/11/2006) (2nd Cir., 2006) good discussion of import & constitutional dimensions of first appeal of right, i.e., whether it was contrary to or an unreasonable application of settled Supreme Court precedent for the New York state court to dismiss the first-tier appeal of a returned fugitive without first appointing counsel — given that under New York law and practice such dismissals are discretionary. *** "New York law may therefore be described as follows: (a) defendants have a right to a first-tier appeal. See N.Y. CRIM. PROC. LAW § 450.10 (Consol. 2006);(cit. omitted); (b) a fugitive defendant may, or may not, lose that right to appeal in the discretion of the court; (c) as a matter of practice such a right seems never, in the past, to have been lost when a fugitive was returned during the pendency of his appeal; and (d) even when such a right has been lost while the defendant is absent, it may be reinstated on the fugitive's return." Cf. Texas law mandates loss of the right.
Amouzadeh v. Winfrey, No. 04-50903 (5th. Cir. 10/5/2006) (5th. Cir., 2006)
issues are (1) whether unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude
under section 237(a)(2)(A)(ii) of the Immigration and Naturalization Act, as amended ("INA"),1 and (2) whether Amouzadeh was eligible for concurrent relief under former INA § 212(c)2 and current INA § 240A(a).3 Because we conclude that the violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude and that Amouzadeh is not entitled to relief under INA § 240A(a), we deny Amouzadeh's petition.
Stokes v. Schriro, No. 04-16454 (9th Cir. 10/6/2006) (9th Cir., 2006) Lower court ran afoul of Apprendi when it relied on judicial factfinding to increase Stokes's sentence beyond the statutory maximum. Affirmed in part, reversed in part, and remanded.
Stephens v. Herrera, No. 04-56232 (9th Cir. 9/13/2006) (9th Cir., 2006) Stephens has not made a sufficient showing of actual innocence. "Along with many of our sister circuits, we have held that a § 2241 petition is available under the "escape hatch" of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an "unobstructed procedural shot" at presenting that claim. Ivy, 328 F.3d at 1060. We consider these two requirements in reverse order. *** "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. at 623 (internal quotation marks omitted); see also Lorentsen, 323 F.3d at 954 (quoting this passage from Bousley).
United States v. Oladimeji, No. 03-1534 (2nd Cir. 9/12/2006) As the Supreme Court has noted, collateral review typically provides a far better opportunity for an evaluation of an ineffective-assistance claim than direct review, because a factual record focused on the defendant's claim can be developed in the district court, including by "tak[ing] testimony from witnesses for the defendant and the
prosecution and from the counsel alleged to have rendered the deficient performance." (Citation omitted--noting the benefits of deciding ineffective-assistance claims through § 2255 proceedings instead of on direct appeal).
Foster v. Quarterman, No. 05-70016 (5th. Cir. 10/2/2006) COA DENIED; conditional habeas relief granted by the district court VACATED; habeas relief DENIED
Brewer v. Quarterman, No. 05-70056 (5th. Cir. 9/29/2006) (5th. Cir., 2006) Lawrence Russell Brewer ("Brewer") seeks a Certificate of Appealability ("COA") to appeal the district court's denial of habeas relief under 28 U.S.C. § 2254. In addition, Brewer appeals from the district court's denial of his habeas petition, after the granting of a COA by the district court.

Regarding Actual Innocence, in the last issue I wrote,
"The best advice the writ-writer (or lawyer) can provide is to ask, first, "Has there been a wrongful conviction?" and/or, "Is the defendant actually innocent?" Some lawyers will tell you that actual innocence does not matter. Next you have to ask, "Is there a procedural bar to
seeking relief?" As of this moment, your actual innocence is of no consequence according to the Supreme Court except as an exception to the procedural bar." A Petition for certiorari on this issue is given reasonable chance of being granted, in Barnett v. United States, 05-1515: "Whether there is an 'actual innocence exception' to the one-year limitations provision of 28 U.S.C. § 2255?" says court-watcher Tom Goldstein. Others include: Alabama v. Collins, 05-1378, regarding when the rule of Davis v. United States, 512 U.S. 452 (1994), that an invocation of the right to counsel for interrogation be clear, kicks in. Moore v. Maryland, 05-1411, regarding the funding of experts for indigent criminal defendants. Oklahoma v. Graves, 05-1413, regarding the prejudice requirement for ineffective assistance claims. Allred v. Sup. Ct. of Calif., 05-1505, regarding whether a trial court can gag-order an attorney for a witness. Alvarado v. United States, 05-1512, regarding whether federal and state charges arising out of the same conduct are the same offense for the purpose of the Sixth Amendment right to counsel. (See Texas v. Cobb, 532 U.S. 162 (2001).) Barnett v. United States, 05-1515: "Whether there is an 'actual innocence exception' to the one-year limitations provision of 28 U.S.C. § 2255?" Quarterman (TX) v. Graves, 05-1568, regarding Brady v. Maryland issues. Acosta v. Texas, 05-1574, on sex devices and the Ninth Amendment. Schriro (AZ) v. Landrigan, 05-1575, on AEDPA deference, ineffective assistance, and a client who directs his lawyer to present no mitigation. Gonzales (US) v. Duenas-Alvarez, 05-1629: "Whether a 'theft offense,' which is an 'aggravated felony' under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(G), includes aiding and abetting." Thanks Kent Scheidegger’s blog, Crime & Consequences (Criminal Justice Legal Foundation) and Scotusblog (Akin Gump/Tom Goldstein) for the list.

"There are some stand-out cases and each of them will test whether this is a 'restrained' Court," said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law, referring to the abortion, affirmative action and punitive damages challenges. Each of those "headline" cases, he added, also reflects the influence of Justice Anthony M. Kennedy, who has played a major role or has cast the decisive vote in the precedents or doctrines underlying those challenges. "One trend from last term which I really hope will continue is that the chief justice seems to be oriented toward trying to find, where he can, an opportunity for consensus resolution of cases," said high court scholar Mark Rahdert of Temple University James E. Beasley School of Law. One of the weaknesses of the last chief justice, William H. Rehnquist, said Rahdert, was that he made no serious effort to achieve consensus, and that resulted in many splintered decisions and a huge increase in concurrences. "It was really kind of messy," said Rahdert. "Roberts seems not to like that and to think the Court should speak with something more nearly approaching a single voice. That's not to say he is afraid of dispute." *** In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003. In enacting the federal ban, Congress explicitly found that a health exception was not necessary for this type of medical procedure.
"Rather than enacting a law that conformed to Stenberg, Congress sought to overturn that ruling and made findings in the act that criticized factual findings of numerous federal district courts," wrote Priscilla J. Smith of the Center for Reproductive Rights, who is high court counsel to Dr. LeRoy Carhart and three other physicians in the 8th Circuit case.
"There are two aspects to the case that are intriguing: the extent to which Congress has found the facts, and [that Congress is] owed deference under Section 5 of the 14th Amendment," said Pepperdine's Kmiec. That has implications that extend beyond abortion, he said. "And the particular issue of the health exception, which has been, for conservatives, one of the more duplicitous aspects of the entire body of abortion jurisprudence." Kmiec concedes that it is "very difficult at first blush" to see why a conservative, restrained court would take the abortion challenges, since there is no circuit split and there is a recent precedent. "Maybe the answer is: It's not a fully restrained court, especially in this case where Justice Kennedy has been waiting to prevail, and justices [Clarence] Thomas and [Antonin] Scalia have not fully signed on yet to the Roberts-Alito method of decision-making," said Kmiec. *** The high court takes up one of the most hotly debated environmental issues of the time-global warming-in a challenge to the Environmental Protection Agency's interpretation of the Clean Air Act. Massachusetts v. EPA, No. 05-1120. *** Burton v. Waddington, No. 05-9222: Is the sentencing decision, Blakely v. Washington, 542 U.S. 296 (2004), retroactive? Lopez v. Gonzales, No. 05-547; Toldeo-Flores v. U.S., No. 05-7664: Is the commission of a controlled substance offense that is a felony under state law, but a misdemeanor under federal law, an "aggravated felony" under the Immigration and Nationality Act and thus a deportable offense? Carey v. Muladin, No. 05-785: Is a defendant's right to a fair trial violated when family of the dead victim wore buttons bearing his picture during trial?

Sentencing Law & Policy Blog - "I am always charged up about sentencing realities because I sometimes find cases in which simple sloppiness can almost cost a person years of their life. A prime example comes from a summary order in the (unpublished) Second Circuit ruling in US v. Day, No. 05-4283 (2d Cir. Oct. 10, 2006) (available on request). In Day, the Second Circuit reverses a 15-year sentence because "the District Court erred in (1) misreading the relevant statute to require that the mandatory minimum sentence it imposed for each count be served consecutively ..., and (2) not making findings in support of its decision that Day did not qualify for safety valve relief." Prof Doug Berman.

Litigation -- New Suit Challenges Attack on Voting Rights Act:
Northwest Austin Municipal Utility District Number One v. Gonzales (District Court docket 06-1384). A week ago, Chief Judge Douglas H. Ginsburg of the D.C. Circuit assigned the case to a three-judge District Court panel -- Circuit Judge David S. Tatel and U.S. District Judges Paul L. Friedman and Emmet Sullivan: The Section "lacks any continuing justification and is nothing more than a badge of shame that Congress, without any cognizable justification, has chosen to continue in place." In extending the act, it adds, "Congress incongruously and irrationally opted to continue preclearance under a now ancient formula..." Times have changed, and Section 5 should now be struck down as unconstitutional, either on its face, or as applied to the district....Section 5 is no longer a 'congruent and proportional' remedial exercise of Congress's enforcement power." Scotusblog. 9/12/06.

Books, Magazines (Articles) and Websites
Near the beginning of "Not a Suicide Pact" Judge Posner writes that "rooting out an invisible enemy in our midst might be fatally inhibited if we felt constrained to strict observance of civil liberties designed in and for eras in which the only serious internal threat (apart from spies) came from common criminals." Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience’s sake. "The greater the potential value of the information sought to be elicited by an interrogation," he writes, "the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach." New York Times Book Review.

The First Amendment as Criminal Procedure by Daniel J. Solove, George Washington Univ. Law School, New York University Law Review, Vol. 2, 2007: explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people's private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls First Amendment criminal procedure. Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

Relief from the Collateral Consequences of a Criminal Conviction: A State-by State Resource Guide, by Margaret Colgate Love (2006) William S. Hein & Co.: Comprehensive survey "that offers a way to overcome or mitigate the collateral legal consequences of a criminal conviction; analytical pieces on executive pardon, judicial expungement and sealing, deferred adjudication and set- aside, certificates of rehabilitation, and laws that limit consideration of conviction in connection with employment and licensing; detailed descriptions for each U.S. jurisdiction of available relief mechanisms and how they operate. Also included are charts that allow easy state-to-state comparisons. The guide is an invaluable resource for policymakers and researchers dealing with the legal barriers to offender re-entry, and for practitioners at every level of the justice system."

Blogs cited most frequently in the scholarly literature and presumably also most likely to be found in legal opinions and briefs are, Balkinization, The Becker-Posner Blog, How Appealing, Legal Theory Blog, Leiter Reports, Lessig Blog, Patently-O: Patent Law Blog,, SCOTUS Blog, Sentencing Law and Policy, The Volokh Conspiracy, White Collar Crime Prof Blog, says Ian Best at 3Lepiphany.

Adam Smith was the father of the complex international transactions responsible for stable international markets. He might have been a proto-socialist who believed as much in "the helping hand" (a phrase Smith never used) as the invisible hand (a phrase that Smith famously used, but only three times). In review, "Smith was neither the one nor the other, Mr. Buchan argues. The great theorist of foot-to-the-floor capitalism never once used the term "laissez-faire," supported all manner of limitations on free trade, and slept through the
only lecture on political economy that he ever attended. At the same time he would have loathed the intricate state interventions beloved of Mr. Brown, the sort of top-down tinkering Smith dismissed as "systems of preference and restraint." He was not, Mr. Buchan writes, a "brash Liberal with a large ‘L,’ " but a "cautious, voluminous, virtuous, qualified, liberal with a small ‘l.’ " *** He made a poor personal impression. Scrawny and bucktoothed, he lived with his mother nearly all his life and never married. He was a hypochondriac. He veered between mumbling introspection and excited speechifying. In one famous anecdote he became so engrossed in explaining the theory of the division of labor while taking a visitor on a tour of Glasgow factories that he fell into a tanners’ pit. Samuel Johnson, according to James Boswell, pronounced him "as dull a dog as he had ever met with." He also happened to be one of the century’s towering geniuses, with a restless mind, a powerful imagination and the desire, widespread in the age of the French Encyclopedia, to bring order and system to all branches of human knowledge. His first philosophical essay dealt with astronomy, and his two great works, "The Theory of Moral Sentiments" and "The Wealth of Nations," were intended as mere installments in a series of disquisitions on law, politics, science and the arts. *** Smith was clairvoyant about the American colonies, which declared their independence on the same day that "The Wealth of Nations" appeared." New York Times Sep 15 ’06, [William Grimes Review of "The Authentic Adam Smith," James Buchan.]

John Grisham's first non-fiction book, The Innocent Man. Review by Peter Senese on Amazon: "John Grisham has demonstrated once again why he is one of the greatest … in his courageous study of the American Legal System in this thrilling yet disturbing expose' titled 'The Innocent Man: Murder and Injustice in a Small Town'. *** Grisham portrays … the li[ves] of two innocent men, Ron Williamson and Dennis Fritz, both convicted of a crime they were not guilty of, [and] demonstrates how our criminal justice system … is filled with great fault and injustice due to the fact that the very same system we trust is at times run and operated by individuals who are not concerned with the truth but with self promoting record keeping . . . for some law enforcement - getting the arrest . . . for some prosecutors - getting a conviction. In directing his overall efforts at the discrepancy and faults of the U.S. criminal justice system, author Grisham is very clever in picking the heartbreaking stories of Mr. Williamson and Mr. Fritz since the small town politics and "cowboying" of law enforcement … is not immune to larger populated cities. Ada, Oklahoma, the town where Mr. Williamson and Mr. Fritz were tried allowed the author to put the local system under a careful microscope . . . and just like politics being local with a grander scheme, so too is this country's legal system.

Cutting Edges Odds & Ends
Ohio Representative Bob Ney pleaded guilty Friday, October 13, in the Jack Abramoff influence-peddling investigation.
A woman's 159-year federal sentence for various robbery convictions was upheld despite the facts that she was a lesser "Bonnie" who helped her "Clyde" carry out numerous armed robberies. Concurring, Judge Reinhardt stated she was "mentally disturbed woman with no prior criminal record" who "never touched a gun." With but a touch of dry, not inhumorous uncharacteristic understatement, if not the hint of irony, a Professor Doug Berman blast: "Too bad for the defendant that she was not also required to wear a sign in public saying "I am a thief," since then there might be sustained opposition from others in the legal academy." Nevertheless, the sign could be grounds for a lynching in some quarters. Somehow, why am I not convinced about that being the reason why the academy is opposed to shaming. 10/13 The Professor’s Challenge: Has any modern shaming punishment ever produced personal harms or society costs anywhere close to the harms and costs to be endured by, say, Robert Berger, the Phoenix high school teacher sentenced to 200 years in prison for a first offense of possessing child pornography?

The Innocence Project: Gold Rope & Brass Ring Enterprises
will establish a much needed umbrella Innocence/Prison Project to occupy the vacancy between DNA, and the various other ways of avoiding and proving wrongful convictions. As such, GRBR actively seeks funding and partnerships with lawyers, professors, and other active professionals for this purpose, as well as for the Legislative and Political activities involved in the Project. IRS 501(c)(3) and (4) tax exempt registration are in progress; pending approval Principle, Founder, and Partnership donations may be deducted as a business expense. Send contributions to Gold Rope & Brass Ring, PO Box 200 Jefferson, MD now! The project is energetically seeking philanthropy-minded individuals to serve on the Board of Directors. For Prospectus detail and scope of this community-based proposal, please contact the Publisher. Big Brothers Big Sisters of Frederick County, MD has a program called Mentoring Plus providing mentoring to children of prisoners. Check with Big Brothers Big Sisters in your area for a similar program! In addition, they have agreed to serve as a founding member of the Board of GRBR.

PO Box 200 Jefferson MD 21755
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Publisher and Editor: "Major" Mori Goodbar

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