Thursday, November 30, 2006

More Trends: Habeas

Terrorism, Bush Wars, Habeas over at Slate, here.

The writ has been suspended only four times in U.S. history; the last one was in 1941 in Hawaii right after the attack on Pearl Harbor, according to this brief.

The government's handling of al-Marri is an utter departure from historical practice. Noncitizens in the United States have constitutional rights, including the right to due process if they face criminal charges. When they're convicted, they routinely file habeas petitions, as they have for centuries. The Supreme Court explained all of this in a 2001 case, INS v. St. Cyr, in which the government wanted to deport an immigrant convicted of a crime without any judicial review. The court forbade that, saying that the constitution protects the rights of "all persons in the United States."

Read all about the just announced $2 million settlement here (hey, they can break into my house anytime) paying Brandon Mayfield, the Oregon lawyer wrongly jailed in connection with the 2004 Madrid bombings. This Bush administration is not as bad as the Nazis. They do pay when they muck up.

What, us torture? Read this from Newsweek.

And get more of Z's articles on these topics over at Usavoice, here, here and here.


Terrorism, Secrecy, Security

If you were wondering what the government thinks it is doing at the airport security counters then read this. Tom Goldstein is counsel of record on this newly-filed Reply Brief in the case of Gilmore v. Gonzales (No. 06-211; petition here, brief in opposition here). On the brief with him are Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine, and James P. Harrison, an attorney in Sacramento. The case will be considered at the Justices' January 5 Conference. Hat tip, SCOTUSblog.

Death Penalty for Sex Crimes An Incentive to Kill here.

So, how is Your Prison Sex? Learn how its done here.

Being horny and drunk hazardous to health. How hazardous, here.

lawsuits of Michigan inmates Lorenzo Jones, John Walton and Timothy Williams were dismissed on such technicalities, rather than merits. One of the suits claimed discrimination, and the other two involved prison medical care, which a Free Press investigation has found to lack the most minimal standards.

Seven Million and counting. Can immigration keep up? What this?

Death in Prison

Reason over Hysteria Every Time. Just an opinion.

Book Review: Just Americans

Just Americans: How Japanese Americans Won a War at Home and Abroad—The Story of the 100th Battalion/442nd Regimental Combat Team in World War II (Robert Asahina, Penguin, Gotham Books 2006) (nb. I plan to review Soldier, General Colin Powell's new book, and Fiasco, by Tom Ricks next. Readers, please feel free to write comments as I would like these pages to be a place for the give and take of ideas).

The Japanese, like the American Indian, the African American, the Mexican American, the American Vietnamese, Chinese, and every other hyphenated-American nationality, possess a unique history. But the Japanese experience has been even more uncommon than others. The book, Just Americans, tells the story of that uncommonness. It makes an important contribution, not only because at least once in every passing year we honor Veterans who matter, but also because it is far too easy to forget that immigrants matter too. A lot.

Just Americans is the comprehensive guide to one ethnic group in particular, the Japanese. It tells a saga of the Japanese-American nissei, the sons (and daughters, but sons mostly are featured here) of immigrants who until relatively recently have unfortunately not mattered very much. This is to say that the immigrant cannot matter too much in a country which has been populated almost exclusively by immigrants, without whom we might still be eating buffalo meat and venison instead of the likes of baklava, spaghetti, cabbage, wieners, baguettes, bagels, sushi, pho-tai, and lemon grass chicken.

Historical perspective makes for a grand appertif, which is always essential. The idea of immigration at this moment in our history has come to be closely associated with the notion of “illegal.” We are at the brink of a massive immigration imbroglio at this very moment because of the recent uproar over the illegals. Viewed in isolation, past illegal migration has been no big deal and, in fact, industry has been heavily reliant on this source of labor in the past and American agribusiness still relies on it. But, unfortunately, our newfound fear of terrorism has caused this once-beneficent source of cheap labor and, most particularly, the way in which foreigners commonly arrive and depart and especially the ease with they do so, to be viewed with increasing suspicion. This is not the first time that immigrants have been viewed with boatloads of suspicion. This has, in turn, created a populist groundswell and a most well-deserved furor among the rank and file. The fury has its origins in many quarters. It is well deserved as a matter of fact, but mis-directed to the extent that it seeks to blame the immigrant, any immigrant.

First, allow that terrorism and the fear associated with it sells. It sells very much in the same way that sex does, with copious passion and verve. Patriotism and nationalism, sometimes called jingoism, are endless fonts of deeply rooted but increasingly irrelevant imagination running amok, and only add fuel to the fury. It does not help that the minimum wage is so low at this time and has not kept pace with inflation or the cost of living. What our economics does is to encourage immigrants to come to our shores by hook and by crook, and to work for these not-even-subsistence-level wages in America, and then to send this booty home, where it actually amounts to a small fortune. It is a sad commentary on reality that many, many people living in places near and far still survive on a dollar a day.

And, amidst all of this, Americans loudly complain that immigrants keep wages low, that immigrants take jobs away from ready, willing and able Americans, that the cheap labor hurts middle and lower America; the immigrant hogs all the low paying jobs and they also compete for scarce and dwindling social services with the the regular middle-class American.

Unions generally oppose the guest worker program proposal by President Bush that will not allow immigrants to apply for citizenship. The point is, however, that immigration, and those unfortunate immigrants who seek only a better life for themselves and to feed the ones they love by taking advantage of conditions over which they have absolutely no control have always been a ready-made target for politicians and social engineering types.

And so we have arguments like this one, which asserts that it is disingenuous to argue that, in the 2006 elections Arizona rejected enforcement when [as Mark Krikorian of the Center for Immigration Studies points out,] it approved ballot measures to deny bail to illegals, bar them from collecting punitive damages, keep them from receiving certain state subsidies, and make English the state's official language.

Most Americans believe illegal immigrants should be allowed to become guest workers and eventually U.S. citizens, but that Congress should do more to close the border to stop more illegals entering the country, according to a new poll conducted by Quinnipiac University. By a margin of 69 percent to 27 percent, American voters say illegal immigrants should be allowed into a guest worker program with the ability to work toward citizenship over a period of several years. Such a guest worker program has wide support among voters of all political stripes.
Immigration is a political issue. Congressional Democrats earlier this year supported President Bush's vision for a policy revamp, which included tightened border security, a guest worker program and a process to give millions of illegal immigrants legal status. After the GOP lost big in November, Rich Lowry (a conservative) writes,
“there is no good evidence that championing strict immigration enforcement was a loser for Republicans, or that voters elected Democrats explicitly to permit illegals already in this country to stay and to invite more of their brethren to come. Any suggestion otherwise comes from advocates of amnesty who interpret
anything voters do -- now up to and including expressing their discontent with
an unpopular war -- as a call for more immigration.”


The painting of politically expeditious bulls-eyes on immigration and immigrants does, unfortunately, conceal the nature of the true threat to our nation. That remains fighting anything and everything that threatens strong, pluralist, liberal democracy at home (and abroad). It is pollution of the air and of our waterways even more than terrorism, or Islamism.

We are not, surely, unable to secure our own international boundaries from the terrorists who would enter to do us harm but we have been unable to accomplish that aim as of today. Terrorism can also be home-grown. This means that questions of domestic tranquility are equally as important if not more than securing foreign borders from external threats.

Just Americans bravely shows how the Japanese instance of problems with immigration, when combined with questions of national security, was mistakenly handled in the past, and then required remedial political action. The book does more than that however, as it tells the military history of the European campaigns and stories of individual heroism: of conflicted emotions and loyalties as well as “relocation” “exclusion” and imprisonment at home. My favorite place to go for more information about books, and this one in particular, is (if I had the money I'd buy it. Say Jeff, what about a loaner program for prisoners? Wanna buy an ad here?).

Wednesday, November 29, 2006

Odds and Ends

Stink of MS still lingers...

Hard to Ignore Case of Police Brutality: here

More Prisons Not the Answer, Makes Sense Now, but we did not know back then,

The Texas Board of Pardons and Paroles recently came under fierce attack for denying parole to scores of low-risk offenders. Talk about boosting parole rates worries Dianne Clements, of the Houston-based victim advocacy group, Justice for All. "These influential lawmakers seem to be leading us to where we were 15 years ago, when we had a prison population that was a revolving door because we didn't have enough prison beds and parole boards had no alternative but to release people," she said. But Marc Levin, director of the Texas Public Policy Foundation's Center for Effective Justice, a conservative think tank, said the winds were shifting in Texas. "There's an alliance on both the right and the left. There's a consensus we need to do something besides build more prisons," he said.
Innocence Stuff

Global Warming? No Way!

In the ho-hum who-cares department:

1. CO2 emissions is not pollution? Fine. It matters not that if you fill your room with it you will die. Deadly, maybe. Poison, perhaps, but not a source of pollution. Only death.

Oh, but what about global warming?

2. EPA has no authority to regulate automobile CO2 emissions in America because, (a) it has no jurisdiction over CO2 as there can be no harm caused by something that is not a pollutant, and EPA jurisdiction is limited to harmful pollutants; (b) even if global warming is happening and is actually caused by CO2, which is a disputed fact in the govenment's view (the science is very "complex" to be precise), warming is not causing any harm, and (c) certainly there is no harm from the measley 6 percent of the total global CO2 emissions caused by American cars in any event, and (d) even if we took action emissions by other nations can't be stopped, so we might as well keep on polluting, and, I might add, we might as well be polluting as fast as we can.

Because then, after we've screwed up the ecological balance to the point that we know we did that for sure, and in other words we can be satisfied that it was not going to happen anyway which we can probably never know for sure, somebody will have to do something about it. But not us, because even if we do nobody else will have to. BTW, it is not only our coastline that is being lost due to non-harmful, non-human-being-caused, global non-warming not resulting in steadily rising sea levels.

3. Plaintiff's have not demonstrated any remediable injury, or standing.

Science seems to have shown already that the position of our government is wrong. We'll have to see if the court agrees.

My prediction? Justice Kennedy will side with science and standing. The other side, curiosly enough in this case just coincidentally happening to be on "the right" and "conservatives" (Roberts, Alito, Thomas, Scalia) and that determine to stick with "the law" must be called "formalists". Formally, the Titanic did not strike the iceberg. The iceberg struck the Titanic which only happened to be on an intersecting course.

The transcript of arguments in this case is available here. What do you think?

Tuesday, November 28, 2006

Yin and Yang

This blog can not ignore the conservative yin of the yang of being. In fact, conservatives are also exemplary thinkers and this will be recognized by my adding permanent links to the Cato Institute and the Federalist Society. It's only when they endeavor to put their thoughts into actions that they fall prey to their own good ideas.

Also, because "the climate," and stewardship of the planet earth's resources and its environment has become a critical issue of global proportions, I have added a token link to in my new links section that I will be calling "Foundations." Anything less would mean consignment to oblivion. Do you recycle?

Buy an energy credit and help slow global warming, not to mention air pollution. You won't believe how many new cars the Chinese are putting on the road every day. It's almost as many as new coal-fired energy plants.

Telephone Justice III

I wonder who pays for these companies to litigate "every nook and cranny"? Yesterday, the Supreme Court heard oral argument in Bell Atlantic v. Twombly, a class action alleging illegal conspiracy to protect a monopoly in the markets for broadband and additional telephone markets. SCOTUSBLOG is the best place to go for more on this.

After years of litigation, the sole issue that made it to the Court was whether the plaintiff's allegations "stated a claim". Law school 101 just got a lot harder.

A monopoly is definitely worth preserving. But who pays?

Monday, November 27, 2006

MSM Shines On

Personally, I've started to tune out bs articles like this but some people get angry enough to comment. Here is a good one from this weekend found (where else?) on Sentencing Law and Policy.

"Who else quit reading and had to walk off the rage and disgust after reading this from "Tracking down sexual predators just in time"? With just four investigators, the CyberCrime Unit can't possibly probe the thousands of child pornographers on the Internet operating in Florida, but it tries to go after the worst of the worst. BABIES AND TODDLERS Horkan has an intense dislike for people who use babies and toddlers in pornography. ''Child pornography is not largely 16-year-olds. It is largely little girls or boys, toddlers. Tiny babies are being molested. They are actually being penetrated,'' she said.``Most people would vomit to see the stuff they have.'' Yes, they may literally vomit, but who else, after cooling off some, returned to the story and read this a further eight paragraphs down the page? About 90 percent of the sexual solicitations happened to children 13 and older. So is Alan Naj really the worst of the worst? The implication is strong. The fallacy of the part equals the whole is very effective and carries a powerful emotional punch right in the gut. But a second, more careful reading finds something else disturbing: Reporters embedded with the police are often misleading, as they were when they surrendered to the government while embedded with the troops. How many readers, in their rage and disgust, will stop to realize toddlers are not on the Internet at all and cannot be solicited? Conflating the two crimes, though both are serious public safety concerns, is not a sound basis for rational law. Such is the stuff of "moral panics" and irrational law, and irrational law is never best for public safety."
The article from the Miami Herald, "Tracking down sexual predators just in time" can be found here.

Heard on NPR, Maryland's Court of Appeals will soon begin to webcast its proceedings.

Fighting CPS? Here is some info for you.

Want to send a Christmas card to somebody in prison? Check this out.

if you know of a man or woman who would like to receive a christmas card, please send me their name & info. I will make a list and post it to the groups. Carol Leonard. Prison Reform is NOT soft on crime.

Food for Thought Post-TGiving

That all men are equal is a proposition which, at ordinary times, no sane individual has ever given his assent. Aldous Huxley

A man walked into a bar with his alligator and asked the bartender, "Do you serve lawyers here?". "Sure do," replied the bartender. "Good," said the man. "Give me a beer, and I'll have a lawyer for my 'gator."

Francis Fukyuyama, Professor of International Political Economy at the Nitze School of Advanced Internaional Studies at Johns Hopkins University wrote this almost two years ago:

“The Iraq war has isolated Washington in unprecedented ways and convinced a large part of the world that the United States—not Islamic terrorism—is the biggest threat to global security.”
Is America really not okay? Leaning too far to the right? Taking on too many characteristics of a police state in addition to an indifferently policing one? Reflect also on Professor Fritz Stern's discerning idea, something he calls the “pseudo-religious transfiguration of politics,” describing “Hitler's success in fusing racial dogma with Germanic Christianity,” and “the moral perils of mixing religion and politics.”

Are there hot headed change agents to blame if blame be found, or is this new-fangled American oppressiveness a development which is nobody's fault but simply the unavoidable result of circumstances beyond anybody's control? The acts of a few bad apples; to be blamed on “the terrorists”?

Rather, what if it was really a well planned assault by a cabal purveying a theory of the unitary executive which is both the result of a mistaken and naïve misreading of the U.S. Constitution, and a cause of the document being altered, indeed interpreted, in reactionary, autocratic and merely politically expedient ways? Now, one of this cabal is running the World Bank. So can a tiger change his stripes?

As the undisputed heavyweight world predator and bully is America going to avoid taking responsibility just because it can for violations and abuses of human rights for which it should be accountable whether they occur at home or abroad? The problem, assuming there is one, might well be the ponderous footprint, the inability to cover those tracks, the failure to recognize and cure the damages. Ever heard of the Inquisition? Star Chamber? Sir Walter Raleigh?

The lessons of history need not go unheeded.

Finally, after digesting the turkey, and hearing the venerated Honorable Messrs. Brzezinski and Kissinger debate this question, it is now very clear (to me at least) that what is needed in Iraq is a complete end to the world's perception of unilateral American involvement.

What is interesting is that the terms of the debate have not changed over the previous three years that the senior diplomats have been having this discussion. What has changed are events on the ground. That tells me that one has been proven correct, with the benefit of hindsight. The unilateralism v internationalism debate has been fought before. What is sad is that the lesson has yet to have taken hold.

My plan to accomplish this is simple: Authorize the U.N. to

(a) take all necessary action in the Middle East (nothing will get done and that is fine, being an improvement over what is going on now, which is only pushing things in the wrong direction and, when things finally do get done the decision will be made by "the people," democratically)

(b) to train Iraqi police, and

(c) precede this by the installation of a new representative to replace Mr. Bolton.

The Baker Commission must go the final mile to internationalize the issue. More bombs going off in the Middle East only aggravates the global warming problem among other things, and this must stop.

But so long as the bombings cannot be stopped, the least we can do to salvage our international reputation, as well as the safety of our young men and women and the nation itself, is to make an effort to be as far away removed as possible from ground zero. We can't fix it, and we must recognize this added "inconvenient truth."

Finally, as an afterthought, containment works.

Sunday, November 26, 2006

SCOTUS, CURE AND Soros Updates

Slashdot has this interesting thread concerning Tuesday's patent case in the SCOTUS.

International CURE (Citizens United for Rehabilitation of Errants)announced that it will ressure Universal International and corporate print media to remove a wet bar of soap in advertising the newly-released movie, "Let's Go To Prison.""As most people know, a wet bar of soap is to convey the old joke about not bending down to pick up the soap when showering together with other prisoners," commented CURE's executive director, Charles Sullivan."But, prison rape is no joke. In fact, Congress with bi-partisan leadership and a public signing by President Bush passed the Prison Rape Elimination Act of 2003," Sullivan continued."This sixteen page bill establishes a standard of zero-tolerance and makes prevention a top priority," Sullivan explained. He is optimistic that the campaign will eventually be successful."By continuing to make fun of prisoner rape as a promotional gimmick to make big bucks turns back the clock to before the federal government overwhelmingly voted for this bill. Thus, we will not only be contacting Universal International and corporate print media to pull the ad, but also the Bush Administration and members of Congress."International CURE is a grassroots prison reform organization headquartered in Washington, DC, with state chapters in most states and 20,000 members throughout the world. Most of the members are families of prisoners, prisoners, and former prisoners. For more information, call 202-789-2126

From George Soros' Open Society Institute, this about Susan Koch, 2006 Soros grantee:

Susan Koch will complete and distribute Simple Justice, a documentary film that follows the case of Mario Rocha, now age 26, from his arrest and conviction through his nearly ten years of imprisonment. At age 16, Rocha, a young Latino man from East Los Angeles, was arrested and convicted of murder and attempted murder on the basis of one questionable eyewitness identification and no physical evidence. He was tried as an adult and sentenced to spend the rest of his life in prison. Viewers will witness firsthand the legal and justice issues involved in Rocha’s case, as well as the personal story of Rocha, his family, his community, and those who are working to overturn his wrongful conviction. While the film focuses on the case, it also paints a much larger picture of the American judicial system; through Rocha’s story, viewers will come away with a new and deeper understanding of the need to ensure each individual’s fundamental right to equal justice.

Koch, an Emmy and Peabody award-winning filmmaker, has produced, directed, and written documentaries and nonfiction programming for worldwide distribution and television broadcast. Her critically acclaimed film City at Peace premiered at the Kennedy Center in Washington, D.C., and Lincoln Center in New York City, and was broadcast on HBO. Koch’s work has appeared on ABC, NBC, HBO, PBS, MTV, The Discovery Channel, National Geographic, Turner Broadcasting, American Movie Classics, The Learning Channel, and the Travel Channel. She began her broadcasting career at WETA-TV, the public television station in Washington, D.C., and was a producer for Roger Mudd at NBC News. Koch has a BA with honors from Bryn Mawr College. She is on the board of the Women’s Commission for Refugee Women and Children and is a founding board member of Our Voices Together, an organization created by 9/11 families and friends to help build a safer, more compassionate world.

Saturday, November 25, 2006

Great Blogs

Professor Douglas Berman's blog, Sentencing Law and Policy, which I have linked permanently on my site, is by far the best I've found. Today he features a conference at the New School in New York on the topic of Crime and Punishment, available here: [The invited speakers and the topics to be discussed (detailed here and here) are truly amazing. A detailed agenda can be found at this link,] This is a truly amazing line up of great thinkers and abstracts to guide you further, if that is what turns you on. This conference is happening next week in New York.

Also, Doug's permanent links to Criminal Law blogs provide more than enough for astute students of this topic (and legislative assistants) to begin to get their daily digest of must read stuff. Also, there is a reason that Doug has placed these links in the order that he has on his site.

Friday, November 24, 2006

Weekly Update: Due Process, First Amendment

The most important development in the week's news so far just might be this, from howappealing by Howard Bashman (link down and to the right on my sidebar). Thanks Howard!
Access online the D.C. Circuit's order granting rehearing en banc in the substantive due process access to experimental potentially life-saving drugs case: I obtained a copy of the D.C. Circuit 's order entered yesterday granting rehearing en banc in the case from that court's PACER system, and I have uploaded a copy of the order to this link. Posted at 10:25 AM Tuesday, 11/21, Howard Bashman.

And, so now I'm supposed to research down to the gnats *ss every time I use a fact that MIGHT be injurious and put it on my blog to make sure its not defamatory? But as one commenter at Volokh points out, "This [ruling] is not a victory for free speech, which was already protected; it is a victory for the perpetrators of libel and slander." Respectfully, I dissent. The original perpetrator remains liable, and unwitting bloggers should not be dragged into court, and should remain free of the undue burdens of hiring a lawyer to understand what defamation means. Thoughts, anybody?

Thursday, November 23, 2006

Patriotism and Stuff

My Patriots, this one by Shaw is good, but I was born in Japan and instantaneously became an American citizen. Does anybody know of a cure?

Patriotism is the conviction that your country is superior to all others because you were born in it. George Bernard Shaw

A few more in the holiday frivolousness style...

The men the American public admire most extravagantly are the most daring liars; the men they detest most violently are those who try to tell them the truth.- HL Mencken

Every generation laughs at the old fashions, but follows religiously the new.-
Henry David Thoreau

And from NPR Morning Edition, November 23, 2006, but not frivolous ·

The number of people spending Thanksgiving in FEMA trailers has nearly tripled from last year. About 99,000 families displaced by Katrina are living in the trailers. One year ago, many more people were living with family members or staying in hotels.

Happy Thanksgiving! Long Live Fryer and Flier (a pair of pardoned turkeys who still failed to make Bill Schneider's CNN List of Political Turkeys)

This nice look back into time from George Will at the Washington Post begins here,

"Twas founded be th' Puritans to give thanks f'r bein' presarved fr'm th' Indyans, an' . . . we keep it to give thanks we are presarved fr'm th' Puritans."
-- Finley Peter Dunne

and ends with this,

Thanksgiving is, Hodgson thinks, a counterpoint to Americans' other great civic festival, the Fourth of July:

"It is good to celebrate the public glories and the promise of American life with fireworks and speeches, better still to celebrate the mysterious cycle of life, the parade of the generations, and the fragile miracle of plenty, in the small warm circle of family, the building brick of which all prouder towers have always been constructed."

An Englishman (Samuel Johnson) said that people more often need to be reminded than informed. Sometimes Americans need a sympathetic foreigner, such as Hodgson, to remind them of the dignity of what they are doing, on this day and all others.
For us, here and now, its all about football, food and for those of us who have them, family. There was a time once, a long, long time ago, when it meant something different: Overcoming hardship, making new cultural connections, and above all, peace. At a minimum we can think about this as we munch chips and drink beer. A lot has happened between then, and now.

Happy Turkey Day!

Wednesday, November 22, 2006

Corn Pone for Holidays

Some of us find the holidays too depressing, so, here is a motley medley from Bill Vaughn to liven things up:

A citizen of America will cross the ocean to fight for democracy, but won't cross the street to vote in a national election.

A real patriot is the fellow who gets a parking ticket and rejoices that the system works.

A three year old child is a being who gets almost as much fun out of a fifty-six dollar set of swings as it does out of finding a small green worm.

An optimist stays up until midnight to see the new year in. A pessimist stays up to make sure the old year leaves.

By the time you're eighty years old you've learned everything. You only have to remember it.

Bill Vaughan


Pride slays thanksgiving, but an humble mind is the soil out of which thanks naturally grow. A proud man is seldom a grateful man, for he never thinks he gets as much as he deserves.

Henry Ward Beecher

Wapo has this on Georgia's newly enacted law on residency restriction, summarizing legal, empirical and ethical issues.

In a new development in the terrorism cases, Al Marri is the only civilian currently being subjected to military authority who was not arresed on a battlefield [ref. MCA, Milligan, Reid, Duncan.] says former Attorney General of the United States, Janet Reno. Reno signed on to a brief by prominent former Justice Department officials that closes with these memorable words,

"We would do well to remember Benjamin Franklin's admonition that "[t]hose who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." An Historical Review of the Constitution and Government of Pennsylvania, title page, (1759) (Arno Press reprint, 1972).

Related on the topic of security in my web travels this morning I was troubled to see this quote by Henry L. Stimson, former Secretary of War. I am still troubled at the way in which the Pacific war was closed, even though it may have saved many, many American lives (I have no problem with that aspect). The nuclear option has created a precedent from which the world is still seeking to recover:

On Tuesday, August 14th, when the news arrived of the final surrender of the Japanese we had a little thanksgiving meeting in the Casino after dinner. Henry L. Stimson

Tuesday, November 21, 2006

Just in from the Fifth Circuit

Just out is an unusual case, click here, in that TCCA had ordered a review by affidavit after a recommendation (without conducting a hearing) from the trial court to deny relief, following which the district court conducted even more extensive hearing and fact-finding proceedings. Many if not most cases are decided with little or no fact finding below. At least St. Aubins can feel like the courts looked at the evidence in his case. The court also updated its formulation of AEDPA deference, reying on the Neal, Henderson, Collier and Cluck cases from within the circuit, and Williams, Bell, and Rompilla from SCOTUS; and concerning the failure to investigate claim, Miller, 420 F.3d, Wiggins, and Strickland. Because the facts revealed that St. Aubin's lawyer had conducted a pretty thorough investigation and decided not to investigate further or present evidence at issue to a jury the court affirmed the denial of relief.

But it is surprising and highly questionable for the court to rule categorically that it was not unreasonable to investigate mental health history further just because what was discovered was thought to be damaging. That completely discounts the possibility that mitigating evidence might have been uncovered upon further analysis and investigation.

The court also presented some interesting cases and comments on "double edged" evidence.

St. Aubin v. Quarterman, No. 05-40277 (Fifth Circuit, Nov. 21, 2006)


Fear, and the fear of war in particular, is a time-tested recipe and tool of oppression. Freedom from oppression and its incidents is the essence of democracy. To think oppression only as likely to occur as a tsunami on the banks of the Potomac just makes it that much less reassuring to know that if the subject is officially sanctioned oppression, it can be, and probably is, coming soon to a theater near you. Oppression, pure and simple, is a condition from which a freedom-loving and democratic People have the most to fear. In the hierarchy of causes to be abhorred, cruelty and ignorance, intolerance and bigotry are not far behind.

Think of torture. We have rightly rejected torture and yet in war routinely excuse it; not being alone in doing so does not make it right. But can’t it be avoided? To bring home the notion of precisely what is loathed and why, draw upon the facts [of the case of Bell v. Cone (2005)] which spotlight the distinctions that can and must be drawn between a most brutal of acts worthy of the ultimate penalty of death (according to some), and all others in the criminal justice context.
While a gruesome torturous murder may well deserve the ultimate penalty many heinous exhibitions of human imperfection are carried on regularly and are actually implicitly, if not explicitly, given approval at the highest levels of government in the name of war and national security, or justice or criminal justice on a very large scale, particularly overseas, and not least in the context of America's own criminal justice system of prisons and punishments. That the President should ask the question, “who authorized putting him on pain medication?” says it all.

Misuse and abuse of power by government officials has historically been subject to scrutiny in countless lawsuits under Section 1983, and has also formed the topic of numerous books, articles, and judicial opinions.

What is transpiring overseas, in Iraq, in Darfur, and in all of the other so-called “hot spots” is equally deserving of our attention and should be targeted for correction, remedial action and improvement. Poverty both domestic and abroad, and development and stewardship of scarce natural resources in all respects must also be addressed. These are the issues du jour falling under the heading of oppression.

To return to leading developments in the law in this arena, consider also how, not only that, High Court Justices, Mr. Souter and Ms. Ginsburg, found it necessary to note in an opinion concurring in part and concurring in the judgment the need for Congress to explicitly authorize locking up citizens indefinitely before the government, even with the approval of the President, may do so without an opportunity to challenge that detention:

The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of government, whose particluar responsibility it is to maintain security. * * * A reasonable balance is more likely to be reached on the judgment of a different branch.

Hamdi v. Rumsfeld, (2004).

Especially in foreign relations and even in the context of war callous action evidently create significant blow-back. A combat veteran of the Iraq war writes,

We arrested people in front of their families, dragging them away in handcuffs with bags over their head, and then provided no information to the families of those we incarcerated. In the end, our soldiers killed, maimed and incarcerated thousands of Arabs, 90 percent of whom were not the enemy. But they are now.

Another officer reports, “we can't kill them all. When I kill one, I create three.”

There is, therefore, considerable anecdotal support for the three propositions to follow, noting that persuasion—the power of the pen—is the sole source of the legitimacy of the judiciary:

A. Liberty and justice, if not security, have little to fear from an independent judiciary;

B. The judiciary and executive define their terms to somewhat different effect in theory than when honoring them in practice;

C. There is more to fear from a strong executive than from a robust judiciary.

Such seemingly transcendent issues are neither obsolete nor mere immaterial cumulative backdrop from the bygone era of the Federalists. The possibility that Americans might walk in the shoes of the rest of the world for even one day suggests viewing the state of the globe as a mirror image of conditions that faced inhabitants of the Colonies with respect to George, King of England, circa 1776.

Who can think it not oppressive to jail or abduct—politely termed “extraordinary rendition” but very reminiscent of Krystallnacht—without legal process any citizen or alien, even those suspected of terrorism, sedition, or criminal activity? We can not condone torture, nor can we look the other way when we condemn the accused in secret kangaroo courts and in summary “military tribunals” based upon scant evidence.

In view of this and additional abuses of power, to include a morally repugnant if not rapacious laissez faire capitalism itself with all of its associated shortcomings, it should be evident to many that America has become the arrogant, selfish and greedy neo-imperial superpower. It is no longer, as formerly perceived, a benign sleeping giant. The government of America is a mature, full-blown and lumbering monstrosity. Its toxic ungula vibrate to and fro in omnipresent profanity. It behaves with impunity and carelessness and callous disregard for human rights and the common good. It does not have to be this way. America is better than that.

Monday, November 20, 2006

Communications Decency Act Protects Users and Distributors of Online Content

The California Supreme Court ruled Monday that individual Internet users cannot be held liable for republishing defamatory statements written by others. Available here from
The unanimous ruling appears to be the first to make clear that a 1996 law called the Communications Decency Act protects not only providers, but also users of online services who redistribute content. Earlier court rulings had established that Section 230 of that statute shields companies such as AOL and eBay from such liability, provided that they make good faith efforts to restrict access to material that could be considered "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."

The majority opinion is here, penned by Associate Justice Carol Corrigan.

No Honor in Contientious Objector Aguayo's Court Martial

Here are moving excerpts from the heart, of Agustin Aguayo, an Army medic facing court martial for refusing to redeploy to Iraq. I must say that, especially after seeing Flags of Our Fathers, it is not unreasonable to me that somebody would object on personal and religious grounds to waging war. Only those who have been there could possibly have any idea of what it entails to go to war. The Bush chain of command got it wrong on this one too. It is no dishonor to stand up for what you believe. The prosecution is discretionary, so the Army can only be motivated on political grounds and from an effort to preserve discipline in the unfortunate ranks of the disaffected and demoralized. I can't quite understand what we are fighting for at this time, except to give cover to somebody's big mistake. It was senseless to start this war and senseless to continue to wage it. Even the former Secretary of State and senior statesman Dr. Henry Kissinger was heard on CNN last night, saying this war can't be won. And if you can't win then what's the point? Agustin's statement can be found on his website:

My beliefs and morals come from a transformation as a direct result of my combined religious/family upbringing, military experience, and new experiences I’ve created and sought. Such as, I have surrounded myself with people who cherish life and peace. I have become an active member and supporter of many peace organizations such as The Center on Conscience & War, Military Counseling Network, The Munich Peace Committee, and American Voices Abroad. I have overhauled my life with new practices such as the peaceful art of Yoga and meditation. As time progresses (it has been more than two and a half years since I became a CO) my beliefs have only become more firm and intense. I believe that participating in this (or any) deployment would be fundamentally wrong, and therefore I cannot and will not participate. I believe that to do so, I would be taking part in organized killing and condoning war missions and operations. I object, on the basis of my religious training and belief, to participating in any war. I have to take a stand for my principles, values, and morals and I must let my conscience be my guide.

In my last deployment, I witnessed how soldiers dehumanize the Iraqi people with words and actions. I saw countless innocent lives which were shortened due to the war. I still struggle with the senselessness of it all – Iraqi civilians losing their lives because they drove too close to a convoy or a check point, soldiers' being shot by mistake by their own buddies, misunderstandings (due to the language barrier) leading to death. This is not acceptable to me. It makes no sense that to better the lives of these civilians they must first endure great human loss. This, too, is clear and convincing evidence to me that all war is evil and a harmful.

Sunday, November 19, 2006

TCCA Business as Usual

Thanks due to my dependable and creditable sources, here is this link to more cruel and [un]usual stuff from the Lone Star State. This is the frontrunner in the race to the bottom of the barrel touching the quality of legal representation due from an [appointed] lawyer--indeed a macaca could have done better--tax payers should be outraged. Then again, perhaps the average citizen of Texas only expects that the accused will be tried in this fashion:

Wilkinson's writ appeared to copy Acker's letters from death row so that, instead of citing legal cases, the writ echoes Acker's unintelligible arguments, flawed grammar and even his complaint that he was about to run out of paper.

"It's yet another example of the court of criminal appeals turning a blind eye to clearly incompetent representation," Andrea Keilen, with the Texas Defenders Service, said of Wednesday's ruling.

"What they could easily have done was order the trial court to appoint another lawyer." Martin Braddy, the district attorney for Hopkins County, said that while Wilkinson's legal brief could have been better, it raised all the appropriate issues that needed the court's attention.

Surveillance Program: EFF v. ATT

Available here, from Zdnet is this post updating Friday's developments in the EFF suit against ATT:

A federal district judge on Friday rejected the Bush administration's request to halt a lawsuit that alleges ATT unlawfully cooperated with a broad and unconstitutional government surveillance program. U.S. District Judge Vaughn Walker said the lawsuit could continue while a portion of it was being appealed, despite the U.S. Justice Department's arguments that further hearings and other proceedings would consequently endanger national security. "I do think these are matters we can proceed on," Walker said toward the end of the status conference here, which began at 11 a.m. PST and was attended by around 50 attorneys from the government, nonprofit groups, class action law firms and major telecommunications companies.

Friday's ruling represents another preliminary victory for the Electronic Frontier Foundation, which filed its lawsuit against ATT in January. In its suit, the EFF charged that ATT has opened its telecommunications facilities up to the National Security Agency and continues to "to assist the government in its secret surveillance of millions of ordinary Americans."

The ruling is also a win for attorneys in 47 other cases against numerous large telecommunications providers. The cases are in the process of being consolidated into one mammoth lawsuit in the northern district of California. Last week, the Justice Department filed a 27-page request (click for PDF) saying at the least, the court should halt the ATT case because any proceeding would "indirectly confirm or deny classified facts and cause harm to the national security."
In July, Walker rejected the Justice Department's attempt to have the suit against ATT dismissed. That prompted federal prosecutors to appeal to the 9th Circuit a few days later. Along with ATT, Verizon Communications, BellSouth and Comcast, they urged Walker to delay the case in front of him until the appeals courts reached a decision, which could take years, if it goes to the U.S. Supreme Court.

The "entire process is fraught with risk," a Justice Department attorney said Friday. Bruce Ericson, an attorney for ATT at Pillsbury Winthrop Shaw Pittman, said that more proceedings would be useless because all his client could put in "a public answer" would be "a general denial." After EFF's lawsuit was filed, reports of a secret room in an ATT building in San Francisco surfaced and have become central to the nonprofit group's litigation.

A former ATT employee, Mark Klein, has released documents alleging the company spliced its fiber optic cables and ran a duplicate set of cables to Room 641A at its 611 Folsom St. building. Improperly-redacted documents seen by CNET show that ATT has tried to offer benign reasons for the existence of such a room. (ATT has publicly neither confirmed nor denied cooperating with the National Security Agency.)

A handful of state utility commissioners, including Vermont and Missouri, have tried to investigate whether the telecommunications companies they regulate have illegally cooperated with the NSA.

In September, for instance, Vermont's Public Service Board said (PDF) Verizon could be ordered to disclose whether it has "provided local calling records to the NSA, whether Verizon provided information to the NSA before February, 2006, and the conditions under which Verizon provides others with access to its customer records."

Friday, November 17, 2006


I picked up a couple of books recently, yes, in actual black and white print and on paper not a computer screen. The first one is Run, Run, Run a bio of Abbie Hoffman by Abbie's brother Jack written five years after his death. Actually, it's borrowed from Barry Kissin, who ran for the Maryland 6th Congressional District in the Democratic primaries. If you missed the 1980s and weren't paying attention to Nicaragua, PECO, Saving Our River, the latter-day SNCC and the civil disobedience movement and want a quick primer and thoughtful eulogy, get this book. I lean toward the Buddhist philosophy of laughter in achieving improved health and enlightenment (I Know I heard this on NPR this morning but can't seem to find it right now). Combine the two, laughter and mass protest, and change the world all for the better simultaneously with improving your health. Or just laugh a lot. You'll feel better, even if you force yourself to laugh. It's the only forced activity that's good for you, unless you consider being force fed "foodloaf" good for you. Don't know what food loaf is? Consider yourself lucky.

Making Globalization Work (Joseph E. Stiglitz) is the sequel to Globalization and Its Discontents by the same author. I found this passage interesting in relation to our national security policy (the principle applies with equal force to domestic economics, but I'll leave that to the experts--hint, for developing countries substitute "working poor"):

There are few success stories--our brief tour of the world has shown us a world replete with failures...we can at least create a more level playing field. It would be even better if we tilted it to favor the developing countries. There is a compelling moral case for doing this. I think there is also a compelling case that it is in our self-interest. Their growth will enhance our growth. Greater stability and security in the developing world will contribute to stability and security in the developed world.

The other passage I found interesting is this one about Microsoft and monopolies.

Equally how new technologies (reinforced by new trade rules) are enhancing the market power of incumbent, dominant firms, such as Microsoft,
which are all from the developed world: for the first time, in a key global industry, there is a near-global monopolist, so powerful that even highly innovative firms in the United States like Netscape, the developer of the first major browser, get easily squashed.***So much power does Microsoft have that it brazenly threatened to wrthdraw from Korea if Korea pursued its anittrust action against the firm--in a sense, it confirmed the allegations of overweening market power,


In response to Anonymous below, I always wondered why it is that they only let you make collect calls from the inside on a landline phone. That is the most expensive of all possible options.

Why can't a phone enabled with VOIP service be provided? Broadband/DSL should be available nearly universally by now, via cable. The phone is as secure as the duty officers', and gives good free long distance service. The cost of the service is surprisingly inexpensive, too. The liability is no more than the liability of the duty officer's own phone, since you can attach an extension to his in his office, and he can monitor the call as they are required to do in many states.

My original post is here.

Anonymous said...

Those rates do sound high, but that is comparing the rates to a regular long distance call from home. What is not being taken into consideration is the liability of having phones in jails, costs of frequently replacing phones and cost of recording equipment since many inmates are still attempting to commit crimes while incarcerated. Additional costs include the billing and collecting of collect calls...local phone companies are charging up to $1 per call just to put that call on the phone bill. The insurance costs to maintain a phone system in a jail can be upwards of $10,000 per year for liability. The Inmates Rights Groups should really consider investing in this equipment and maintaining it for the jails and the inmates at no cost. This cost should not be borne by the taxpayers, but by the organizations that want the inmate to have free or low-cost phone calls.


This quote used by E.J. Dionne of WAPO here, might explain as much as does the Iraq question (and indeed the two might be VERY related): "much of the gain from excellent macroeconomic performance has gone to just a small segment of the population -- those already in the upper part of the distribution." From a remarkable speech that Janet Yellen, the president and chief executive of the Federal Reserve Bank of San Francisco, gave the day before voters went to the polls. A related and entertaining read from "The Major" in USAVOICE.ORG is here.

Yellen draws on the essential policy book of the year, Jacob S. Hacker's "The Great Risk Shift." Again, if Democrats get tired of recrimination over an election they won -- imagine if they had lost! -- they might spend time with Hacker, who shows how more and more risk is being offloaded from government and private corporations onto individuals. He makes a powerful case for remodeling our social insurance systems to provide genuine economic security for all working Americans.

LONG LIVE MILTON FRIEDMAN as this clip from Doug Berman at SL&P demonstrates!


The WAPO fix on Steny Hoyer and House Leadership battle is here. Say, didn't Murray use to write for WSJ?

The Sex Offender Homelessness Problem & the New Class of State Slave

From Corey Yung at Sex Crimes yesterday -- A Maryland court was forced to confront the issue of how homeless sex offenders can comply with the requirements of that state's registry requirements. Their answer? Homeless sex offenders are exempt:

Sex offenders who are homeless are exempt from laws requiring them to register a change of address with state officials, Maryland’s high court ruled Wednesday. The Maryland Court of Appeals said in a pair of unanimous rulings that it would be impossible for the homeless to comply with provisions of the state sex offender registry.

Corey Yung (Sex Crimes) wonders how this problem is addressed in the probation context and credits eAdvocate for letting him know about this case. For more on this topic, and how restrictions do not actually protect children and society, and developments from the states of KS, UT, IA, WA go blog at Sex Crimes.

Let's really make the world safer and not just say we are. Registries and restrictions in Z's view create an entirely new and growing underclass, branded and shamed, unable to pursue careers, upon whom a disproportionate share of a scarce budget must be spent on policing and registering, and investigating and administering.

After several years of results, the statistics are coming in and beginning to show how completely useless this “feel good” solution has been.

The real solution should be to construct solid re-entry and reintegration community-based programs, and not on segregation, policing and fingerprinting, in essence creating state and federal catalogs of sex offenders. That's how communities should get involved, and that's how communities can become engaged in true prevention as well. That's not perverted.

That's called helping your neighbor.


Hobson, the old innkeeper, had a rule. Take any horse you want, but only take the one closest the stable door. As kingmakers have framed all but a few controversial issues in the post-9/11 regime the average citizen has not possessed a meaningful choice in matters of grave public concern. The ideological left-right divide has been reduced to a simple yes or no proposition appearing in the form of Hobson’s Choice, which with respect, is none at all: Fear (nay) --- Security (aye). HEE HAW!

The oh-so-deceptive corollary has become this easy; “Are you for us or against us?” Things just could not be more clear. But wait. Who is the “us” in this formula? Must “we” to a man toe the line to be included? To get out of jail free? To receive basic health care? To keep a job; put food on the table? What happens if one fails to join? The fear of terrorism is fully capable of being used against the People by a few in “leadership” to suit their own personal agendas.

The most esteemed of Founding Fathers, Alexander Hamilton, once warned that “safety from external danger, is the most powerful director of national conduct. Even the ardent laws of liberty will, after a time, give way to its dictates.” Federalist No. 8, p.33. That old devil, the demagogue Hitler, it has been noted, “preached fear in order to exploit it.”

An occasion for considering such woes in the United States Supreme Court arose recently in the case of Hamdi v. Rumsfeld (2004). Quoting Hamilton, Justices Scalia and Stevens objected to the indefinite imprisonment without charge of treason as warranted of citizen Hamdi who was under suspicion for sedition. Following cases which documented the intrinsic error in singing a tune of blind adherence to military authority, the High Court was unwilling to endorse the reflexive obeisance to an incident of war, in this particular, the so-called war on terrorism. The Court hastened to reassure that a familiar Due Process balancing sufficed to resolve certain tensions between the individual and his government concerning fundamental human rights.

What to do then, when incumbents of the military-industrial and security and police offices grow in zeal, waxing greedy, ambitious and corrupt? Or, in the words of John Quincy Adams’ Independence Day Speech of 1821, succumb to “wars of interest and intrigue, of individual avarice, envy, and ambition, which assumes the colors and usurp the standards of freedom.” If officers of the United States cannot be trusted to carry out justice uninfected by racial bias, prejudice or politics can judicial safeguards be trusted to keep Americans safe and free?

The conventional political wisdom in wartime dictated that America in 2004 could not switch presidential horses in mid-stream. The architect inheriting those conditions, and in a more sinister vision creating them, could not have been more brilliant if the aim was only to secure the reelection in utter disregard for substantive elements of the National interest. Political strategists coolly anticipated that the public appetite for war and fear could by no means be unlimited. This suggested that additional masquerades would be in need of invention, or recollection, in order to capture the People’s attention and prevail upon our emotions for votes in further rounds of elections. Perhaps a rising China, India, or Africa will suit these transparently political purposes; or it could be something else. Iran, Korea? Or the lowering of gasoline prices at the pumps?

Perhaps presidential politics truly is so uncomplicated as this: “Americans were terrified after 9/11 and a small majority of voters concluded, rightly or wrongly, that the incumbent was clear in his thinking on this matter—and that John Kerry, at best, hadn’t anything much different to offer [in 2004].” Are there any lingering doubts that President George W. Bush was reelected simply because he dethroned Saddam; or that the tripling price of oil after the former oil man and Texas Governor took office is merely an embarrassing coincidence?

Or perhaps the 2004 election simply confirmed that many Americans in both Red and Blue states preferred the clarity of a strict daddy routine even if Daddy was wrong. So strict trumped being right. Perhaps, judging from the composition of the past Congress, national politics followed suit. Perhaps differences between right and left were “fundamental.”

So what happened in 2006? It was about Iraq and the People spoke, and it was about Washington, and it was about the People caught in the middle and not wanting to be there. And the voices that were heard included a longer and more multilateral fuse, a preference for surgical and more limited use of force, great difficulty condoning callous, excessive, and morally indifferent unilateral applications of force and the military and police powers so amply demonstrated under Bush 43.

Most people vote based upon instinct and on what they see, hear or are told, alternatively perhaps some also on broader ideological grounds, and not necessarily upon a personal or independent analysis after gleaning and sifting through ALL the facts. And, those basic political differences between left and right have very important consequences for ordinary life both pro and con beyond elections. This time, the People have spoken. Congress had better be listening.

Thursday, November 16, 2006


HOW IT IS DONE IN TEXAS: CCA Update 11/15/06 - Ex Parte Medellin:
Texas Gives Middle Finger to World
This story is big. Very, very, very, very, very, very big. By the way, I couldn't help going with The Onion-esque title for this post, SAYS WRETCHED OF THE EARTH.

“I take a backseat to no one when it comes to protecting this country from terrorists,” Sen. Dodd said. “But there is a right way to do this and a wrong way to do this. It’s clear the people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law. But in taking away their legal rights, the rights first codified in our country’s Constitution, we’re taking away our own moral compass, as well.”

The Effective Terrorists Prosecution Act:
-Restores Habeas Corpus protections to detainees
-Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants
-Bars information gained through coercion from being introduced as evidence in trials
-Empowers military judges to exclude hearsay evidence the deem to be unreliable
-Authorizes the US Court of Appeals for the Armed Forces to review decisions by the Military commissions
-Limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight
-Provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions
Thank you talkleft


Wired has an interesting comment on the death row inmates posting diary entries on Myspace. How dangerous is that? So they are supposed to shut up and die, but for 25 years?

Bush Wiretapping Program Violates Federal Laws and the Constitution, Says ACLU
-- The ACLU issued press release that begins, "The American Civil Liberties Union and the ACLU of Michigan today urged a federal appeals court to uphold a lower court ruling declaring the government's warrantless National Security Agency wiretapping program illegal, calling the government's assertion of unchecked spying powers 'radical' and a threat to American democracy."
-- Brief for Appellees filed in the NSA wiretapping appeal, pending before the U.S. Court of Appeals for the Sixth Circuit, is available by clicking here. Thanks Howard Bashman

Texas Court of Criminal Appeals (TCCA), that State's highest court in criminal cases, holds that President Bush was powerless to force the Texas judiciary to disregard its rules of procedural default to consider on the merits a Mexican death row inmate's Article 36 Vienna Convention claim. The Texas Court of Criminal Appeals today issued its ruling in Ex Parte Jose Ernesto Medellin. Access the lead opinion at this link, while the concurring opinions can be accessed here, here, here, and here. For more click this, at SCOTUSblog.

When George Will writes, he's news. His column in the Washington Post, found here, is about the recent Belmontes decision. Kent Scheidegger reactions are here at Crime & Consequences. Brian Tamanaha has thoughtful ruminations on jury instructions in the wake of Belmontes here at Balkinization. Thanks SCOTUSblog.

Go see
Prison Art Gallery
1600 K Street NW
Suite 501
Washington, DC

Wednesday, November 15, 2006


Stewart v. Wolfenbarger, No. 04-2419 (6th Cir. 11/9/2006)
Petitioner raises two further claims of ineffective assistance of counsel: that O'Connell failed to file a proper notice of alibi witnesses, and that she failed to investigate Delshawn Williams as a potential witness. These two errors constitute deficient performance under Strickland's first prong. An assessment of the totality of the omitted evidence shows that the unprofessional errors of counsel were prejudicial. We consider these errors in turn***
The uncontested evidence in the record is that O'Connell failed to adequately investigate Simpson's statement, and she failed to adequately investigate Williams as suggested by Petitioner. In either case, it seems clear that O'Connell should have, at some point, contacted Williams, one of the individuals who lived in the house where Simpson purportedly had the conversation with Petitioner on April 22, 1996. This failure to investigate clearly constituted objectively deficient performance ***
We can see no strategic purpose in failing to investigate Williams as a potential favorable witness. As this Court stated: "Where counsel fails to investigate and interview promising witnesses, and therefore `ha[s] no reason to believe they would not be valuable in securing [defendant's] release,' counsel's inaction constitutes negligence, not trial strategy." Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir. 1992) (quoting United States ex rel. Cosey v. Wolff, 727 F.2d 656, 658 n.3 (7th Cir. 1984)). Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987) ("Counsel did not make any attempt to investigate this known lead, nor did he even make a reasoned professional judgment that for some reason investigation was not necessary

Joseph v. Coyle, No. 05-3111 (6th Cir. 11/9/2006) (6th Cir., 2006)
AEDPA DEFERENCE: As the text of the statute makes clear, however, § 2254(d)(1)'s limits on habeas relief apply only if there is a state-court "adjudicat[ion] on the merits" of a given claim. For reasons we discuss at greater length in Part IV.C, Joseph's Brady claim was not "adjudicated on the merits in State court proceedings" and therefore is not governed by the strictures of § 2254(d)(1). Joseph's remaining claims were, however, "adjudicated on the merits" by the state courts, so § 2254(d)(1)'s limits apply. For each of these claims, the decision we review is that of "the last state court to issue a reasoned opinion on the issue." Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005), cert. denied, ___ U.S. ___, 2006 WL 732193 (U.S. June 26, 2006) (No. 05-9829); see also, e.g., Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) ("[A] federal court reviewing a habeas petition should examine the decision of the last state court to rule on the merits of the issue."), cert. denied, 538 U.S. 1057 (2003); Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002) ("This court . . . must look to the last reasoned decision of the state court as the basis of the state court's judgment."); Barrientes v. Johnson, 221 F.3d 741, 779 (5th Cir. 2000) ("When the last state adjudication of the claim is silent or ambiguous, the federal court should look through to the last clear state decision on the matter." (internal quotation marks omitted)), cert. dismissed, 531 U.S. 1134 (2001). ***
STRICKLAND ISSUE: A number of recent cases have emphasized that defense attorneys have a constitutional duty to conduct adequate factual investigations. See, e.g., Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003). Yet it can hardly be doubted that defense lawyers have a constitutional obligation to investigate and understand the law as well. See, e.g., Williams, 529 U.S. at 395 (noting that counsel "failed to conduct an investigation . . . not because of any strategic calculation but because they incorrectly thought that state law barred access to such records."); Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . ." (emphasis added)); Smith v. Dretke, 417 F.3d 438, 442-43 (5th Cir. 2005) ("[Defense counsel] failed to achieve a rudimentary understanding of the well-settled law of self-defense in Texas. By doing so, he neglected the central issue in his client's case. . . . This misunderstanding could have been corrected with minimal legal research." (footnote omitted)) ***
RE: NO AEDPA DEFERENCE WHEN NEWLY DISCOVERED EVIDENCE PRESENTED FOR FIRST TIME DURING FEDERAL HABEAS Joseph's current Brady claim is not the same as the one he brought before the state courts: he now relies on a different mix of suppressed evidence that includes some items discovered only during federal habeas proceedings. Thus, Joseph argues, his Brady claim was not "adjudicated on the merits in State court proceedings," and AEDPA's strict standard of review does not apply. We agree. Williams v. Coyle, 260 F.3d 684 (6th Cir. 2001), cert. denied, 536 U.S. 947 (2002), we reviewed a Brady claim based on evidence disclosed during federal habeas proceedings "under pre-AEDPA standards because no state court reviewed the merits of that claim." Id. at 706; Monroe v. Angelone, 323 F.3d 286, 297-98 (4th Cir. 2003) (collecting cases); Holland v. Jackson, 542 U.S. 649, 653 (2004) (noting that "[w]here new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer" and "[a]ssuming . . . that this analysis is correct and that it applies where . . . the evidence does not support a new claim but merely buttresses a previously rejected one"). Because AEDPA's standard of review does not apply here, we review the district court's factual findings for clear error, while whether a Brady violation occurred is a mixed question of law and fact that we review de novo. Williams, 260 F.3d at 706.

Giving Aid and Comfort to ... Injustice is the Enemy

It is the rare generation that is given, and then seizes, the opportunity to make history. Not since WWII and the internment of Japanese-Americans and trials of German POWs have the courts had to become so actively engaged in prisoner litigation. Yes, of course, you have the “run of the mine” habeas corpus cases and lots of them perennially, but the recent so-called “terrorism cases” have become the hot potato for judicial review on a broad scale, involving questions of jurisdiction, federalism, separation of powers and Executive prerogative, in conjunction with American and enlightened notions of fundamental civil liberties. After a long swing of the pendulum toward "get tough on crime" (aka "lock'em up and throw away the key), perhaps a throughgoing review of this (including torture and abuse in our prison and criminal justice system) has been long overdue. We, Americans, as well as our bretheren overseas, confront a world that our parents and grandparents could never have dreamed up.

SCOTUSblog has this update:
Since the Supreme Court's decision in Hamdi v. Rumsfeld on June 28, 2004, a question has lingered over the President's authority to hold war-on-terrorism detainees who are captured inside the U.S., not in a foreign battle zone. The issue did not get finally resolved in the highly visible case of Jose Padilla because the government shifted him to a criminal trial court before the Supreme Court could rule. It is now unfolding in the Fourth Circuit Court, in the case of Al-Marri v. Wright (Circuit docket 06-7427). But, on Monday, the Justice Department sought to turn that case into another test of Congress' power to strip the federal courts of authority to hear habeas challenges to detention, even as Al-Marri's lawyers filed their opening brief on the merits (brief can be found here).
the Justice Department, in a filing also submitted on Monday, argued that the Fourth Circuit no longer has any authority to decide Al-Marri's case, because it is a habeas challenge and Congress in the new Military Commissions Act of 2006 stripped the federal courts of all authority to rule on detainees' habeas cases. The case thus should be dismissed, the government argued in the filing, found here. The Department said that the two sides had agreed on a briefing schedule on this motion, with Al-Marri's response due Jan. 5 and the government's reply Jan. 17. (The Circuit Court has tentatively set the week of Jan. 31-Feb. 3 to hear the case.)


A federal judge on Monday ordered sweeping mental health care changes for Michigan's prisons in Jackson to prevent the mistreatment and death of inmates.

U.S. District Judge Richard Enslen suggested a prayer be said for those who have already died in custody.

Since the Free Press series began, Gov. Jennifer Granholm has pledged to fix problems in the prison health system; the Department of Corrections has revised its four-point restraint system, and legislators have talked about reviving the Prison Ombudsman's Office to give prisoners someone to hear their complaints.

Contact DAVID ASHENFELTER at 313-223-4490 or



Dr. Wilson Goode, will be the featured speaker: catering by Outback Steakhouse with silent auctions taking place throughout the evening for a huge array of items. Dr. Goode is the first African American Mayor of Philadelphia, Pennsylvania.

Tickets are available through BBBS. Please call them at (301) 694-9455 or email them at for more information. BBBS has a "mentoring plus" program for children of prisoners. There are still about 15 kids in need of mentors RIGHT NOW. Please help these kids so they, too, do not have to go to prison. Children of prisoners are the largest group of "at risk" youth in America.

Telephone Justice

WHEN: Thursday, November 16, 2006 (or CALL IN on another day of your favorite radio show)

Verizon/MCI’s monopoly telephone contract with The NYS Department of Correctional Services: charges families of people in prison 630% more per collect call than the average customer; has given New York State $175 million dollars in kickbacks from the contract since 1996; and unlawfully taxes and exploits families.

The New York Campaign for Telephone Justice seeks to end the contract and deliver choice, affordability and equitable service to the families and friends of people incarcerated in NYS prisons.Join the New York Campaign for Telephone Justice as we CALL IN to our favorite local radio stations! In recognition of the successful 11-16-05 MCI Boycott, Rally & March in NYC, the NYCTJ is encouraging people all around the country to CALL IN to your local radio stations - in a public education blitz! Say something like "Hi, I'd like to request (name of song) for my loved one in prison, who I don’t speak as often as we’d like to because of Verizon's [or other phone service provider] high rates with the Department of Corrections.

Tuesday, November 14, 2006


Whether or not one "has" religion should/not affect sentence in this capital case? And does that California "Factor K" adequately allow jurors to consider all mitigating factors? (I.e., Skipper type mitigating evidence?) Exactly what did the jury understand "factor k" to mean? Even the prosecutor was "incorrect" about what he thought it meant, and said so in court; so the jury was understandably thus mislead and failed to give the jury instructions the very sum and substance the majority gave to it. Oh well. Justice Stevens dissenting, joined by the usual three on the left. And apparently, very unusual for SCOTUS to lead off with a 5-4 split. What does this mean, grasshopper?


The motion of petitioner for appointment of counsel is granted. Robert C. Owen, Esquire, of Austin, Texas is appointed to serve as counsel for the petitioner in this case.

The motion of petitioner for appointment of counsel is granted. Robert C. Owen, Esquire, of Austin, Texas is appointed to serve as counsel for the petitioner in this case.

The motion of petitioner for appointment of counsel is granted. Jordan Steiker, Esquire, of Austin, Texas is appointed to serve as counsel for the petitioner in this case.

Classic Memo to GOP (Oops)
To: Republicans
From: America
For future reference, here’s a quick list of 10 sure-fire ways to lose an election:
10. Nominate your favorite elementary school teacher to the Supreme Court.
9. With pants around your ankles, chase our teen-agers around the Capitol. When caught, shrug.
8. Pull pants back up, stuff all pockets with cash. When caught, shrug.
7. "Exit strategy? Phhhhttt! We’ll work that out when we get there!"
6. Take my house. Give it to your developer buddies. I don’t really need it … I guess.
5. Tell the NYT you’re just a little (yawn) bored with this whole governing thing.
4. Stripsearch my grandma at the airport.
3. "Man, aren’t those people of faith funny, what with their values and stuff? Heh, heh, heh."
2. Muggy weekend in Washington? Vegas junket, baby!
1. Run as a conservative. Govern like a gutless, poll-watching, money-grubbing pol.

Thank you David Eldridge, managing editor,

Monday, November 13, 2006

Political Questions of the Day (A very slow news day so far)

How Much Will "Being Tough on Immigration" hurt tough-guys in the next election? (How many "immigration-minded" voters reside in critical states and how do you keep them happy?)

"Yo noo-moo-dubya" political landscaping early is at Wapo

Battles shaping up over Habeas and Counter-Terrorism, and what REAL MEN she links with are talking about with Michelle Malkin: "Probe-a-palooza"


American government surveillance didn't begin after 9/11. It started centuries earlier. Check out the new online documentary "Tracked in America: Stories from the History of U.S. Government Surveillance" at

"The world is a dangerous place to live; not because of the people who are evil, but because of the people who don't do anything about it." Albert Einstein

ON REENTRY, FORT PIERCE, FL — Since 2003, the reentry program at the Treasure Coast Public Defender's Office has helped more than 800 former inmates get a much-needed boost after release. The 19th Judicial Circuit, which covers Martin, St. Lucie, Indian River and Okeechobee counties, was selected by state leaders to form a local council to give them feedback on the issue. Treasure Coast Public Defender Diamond Litty, who has served on the state task force for about eight months, said the area was selected because it already has produced success stories with its program. "We were picked mainly because we're on the cutting edge," Litty said. "And it works. This is one of the biggest factors in reducing recidivism that we have." More than 30,000 people were released from Florida's prisons last year, and more than 40 percent are predicted to return within three years, according to the state Ex-Offender Task Force. The task force is trying to find ways to promote employment opportunities for felons, Litty said. "These people need help," she said. "Often they've lost their homes, they've lost their jobs. We need to do something so they just don't fall back into a life of crime." Link here for more.

OKLAHOMA, (not the musical by Rogers & Hammerstein) has turned corrections into a swelling industry that we can’t afford to grow any bigger. We agree with state Sen. Richard Lerblanc, D-Hartshorne, that Oklahoma needs to invest more heavily in prevention and rehabilitation, than in building more prisons. Our goal should be to keep as many people out of prison as we can, rather than lock up as many as we can. Oklahoma should be spending its money working with at-risk youths and adults and providing rehabilitation services, not on expanding it prison industry, public or private. More on this here.

TEXAS AND MYSPACE Texas inmates they send letters, journalentries or blog postings to friends and families who create the pages and post their writings for them. Death row inmates being able to express themselves on the Internet isnot new as they've used isolated anti-death penalty Internet pages topublicize their cases. "The reality is that for many years death row inmates have had family and friends on their case, on the Internet, oftentimes to get pen pals and in some cases raise money for the defense," said Michelle Lyons,spokeswoman for the Texas Department of Criminal Justice. From the Houston Chronicle.

Sharon Dolovich, professor at UCLA School of Law says CALIFORNIA'S PRISONS are bursting at the seams, but Gov. Arnold Schwarzenegger' s latest strategy for easing the pressure has hit a snag. The nonpartisan Legislative Counsel, which provides legal advice to state lawmakers, has issued an opinion (concluding that the governor's plan to ship thousands of prisoners to private prisons out of state violates California's Constitution. This opinion buoyed the anti-privatization California Correctional Peace Officers Assn. (the state prison guards union), which has gone to court to try to stop the transfers.

TEXAS As Release Nears, These Inmates Are All Business: Street Smarts Are Put to Good Use in Texas Program, By Sylvia MorenoWashington Post Staff WriterFriday, "We are not so much in the business of creating entrepreneurs as leveraging their skills," said Catherine Rohr, founder of the Prison Entrepreneurship Program, a nonprofit organization based in Houston. "After all, it was their entrepreneurial skills that landed them in prison." Rohr, a one-time venture capitalist in California and New York, was inspired after visiting a prison ministry program in the spring of 2004 that was started by former Watergate conspirator Charles W. Colson. She heard a graduate say that he left prison after eight years and started a general contracting business that made $1.7 million in sales in 18 months.

This Roundup assisted by info from PrisonMovement@yahoogroups; Carol Leonard says Prison Reform is NOT soft on crime)

JUDICIAL "ACTIVISM": Court-watchers believe the assault on independent judges has been fueled by a 2002 Supreme Court decision, Republican Party v. White, (First Amendment allows judges running for office to say in advance how they would rule on legal matters). Justice Sandra Day O'Connor, who joined the 5-4 majority, said after she retired that she regretted her vote because it has grossly politicized the judiciary in the 47 states that elect at least some judges.
Ballot amendments to ban gay marriage in previous years have drawn out social conservatives who might not otherwise have voted boosting to President Bush's re election effort in key states such as Ohio.

Boston Globe notes recently that the ballot attack shows how fortunate Massachusetts is to have the system of appointed judges for 226 years: "Co-equal branch of government" does not mean the courts should be equally whipsawed by popular passions as campaigns for Congress or the presidency.

And From Kent Scheidegger at Crime and Consequences this:
Judicial Restraint: Judge Charles Pickering (USCA-5, Ret.) has a long letter to the editor in the Wall Street Journal (subscription) on judicial restraint in answer to Justice O'Connor's earlier op-ed on judicial independence;
Maryland Senate Race. The Washington Post has this article on the Maryland Senate race, which involves crime issues to a greater extent than most federal races this year. Issues include the Maryland death penalty (with both candidates apparently oblivious to the real problem), the 100/1 crack/powder ratio, and the Patriot Act. Mr. Cardin committed a rather astonishing gaffe on the latter, claiming it predated his tenure in the House.