Sunday, December 31, 2006

End of the Year Currents and bubbles

I am breaking my general rule that I do not blog on Sundays, only because it is the last day of the year (one out of 365 is not bad). Bring on 2007. Just before this stuff goes stale (mostly from Washington Post):

Politics of (and) "Free" Speech (George Will)
A three-judge federal court recently tugged a thread that may begin the unraveling of the fabric of murky laws and regulations that traduce the First Amendment by suppressing political speech. Divided 2 to 1, the court held -- unremarkably, you might think -- that issue advocacy ads can run during an election campaign, when they matter most. This decision will strike zealous (there is no other kind) advocates of ever-tighter regulation of political speech (campaign finance "reformers") as ominous. Why? Because it partially emancipates millions of Americans who incorporate thousands of groups to advocate their causes, groups such as the American Civil Liberties Union and the National Rifle Association.
Classically Innocuous WP: "O'Malley's Gift" (very political and correct--maybe the perfect Christmas gift)

on Nifong (the Duke rape case prosecutor is in trouble now)

more resolutions (Deborah Howell/ombudsman)

Broder on years end

Teggies (Rob Pegoraro/WP)

2006 and the Constitution
2006 was not a good year for the Constitution. It was not remotely a good year for the concept of separation of powers in government or for the idea that our system works best when there are sufficient checks on the excesses of one branch over another. It was not a good year for opponents of an imperial presidency or for supporters of a concerned and compassionate Congress. It was not a year that offers a lot of hope that things will get any better, or even stabilize, in 2007.

So we got out of the law this year what we deserved from it. And hopefully we will come to realize in 2007 and beyond that if we continue to ignore and neglect the most important and weighty issues that confront the Constitution, its power and authority will erode, slowly but surely, until one of the best ideas ever conceived by man is relegated to being just another dusty, historical document.

Andrew Cohen writes Bench Conference and this regular law column for He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.
Gitmo stuff (get rid of the kangas--better late than never! Staunch the stench!?)
“We have tried again and again to have a say in the process,” said Barbara Olshansky, a lawyer who has coordinated much of the work of the detainees’ lawyers for the Center for Constitutional Rights. “But we learned pretty early on that these were kangaroo courts.”
(from the New York Times)

Saturday, December 30, 2006

Politics and Morays: Vicious or Sick to Pinch Bottoms?

This editorial in the New York Times posted on Sentencing Law and Policy sparked a nasty exchange over this case from California. I haven't taken the time to read it just yet, but it promises to be a good one that might get some SCOTUS action, eventually, or maybe not.

Adding Stuff, Links

I have added a few more links over there to the right to make it just a little more convenient for my readers, including me, to access some of the good stuff in the law blogs, and newsy analysis of important currents affecting the law and politics of law. I hope it helps. Procrastination is the enemy.

More Top Ten: "Bill of Wrongs"

The "Outrageous" Top Ten: From (Slate/Dahlia Lithwick)

Definitely good stuff here (there?). Hat tip to Howard Bashman of the award winning How Appealing. (Also need to mention that the guys at Volokh Conspiracy are talking about this: Boumediene v. Bush (Circuit Judge Judith W. Rogers dissented, in a three-page opinion. She argued that the former judges' brief satisfied federal rules of appellate procedure dealing with unopposed motions to file amicus briefs. She concluded that the ex-judges had met the requirement of having an interest in the case by saying that they were retired federal judges who have "dedicated their professional careers to our judicial system," and that the life-long detention of individuals based on credible evidence that they were tortured "challenges the integrity" of the judicial system. The former judges' brief was filed on Nov. 1 by seven retired federal judges, arguing that the new Military Commissions Act is unconstitutional because it would allow the military to use evidence obtained by torture or "inhumane treatment" in detention proceedings, and the courts would not be able to review the legality of such evidence. An earlier post discussing the brief, with a link to the brief itself, can be found here (SCOTUSblog))

Back to the Outrageous Ten

10. Attempt to Get Death Penalty for Zacarias Moussaoui
Long after it was clear the hapless Frenchman was neither the "20th hijacker" nor a key plotter in the attacks of 9/11, the government pressed to execute him as a "conspirator" in those attacks. Moussaoui's alleged participation? By failing to confess to what he may have known about the plot, which may have led the government to disrupt it, Moussaoui directly caused the deaths of thousands of people. This massive overreading of the federal conspiracy laws would be laughable were the stakes not so high. Thankfully, a jury rejected the notion that Moussaoui could be executed for the crime of merely wishing there had been a real connection between himself and 9/11.

9. Guantanamo Bay
It takes a licking but it keeps on ticking. After the Supreme Court struck down the military tribunals planned to try hundreds of detainees moldering on the base, and after the president agreed that it might be a good idea to close it down, the worst public relations fiasco since the Japanese internment camps lives on. Prisoners once deemed "among the most dangerous, best-trained, vicious killers on the face of the earth" are either quietly released (and usually set free) or still awaiting trial. The lucky 75 to be tried there will be cheered to hear that the Pentagon has just unveiled plans to build a $125 million legal complex for the hearings. The government has now officially put more thought into the design of Guantanamo's court bathrooms than the charges against its prisoners.

8. Slagging the Media
Whether the Bush administration is reclassifying previously declassified documents, sidestepping the FOIA, threatening journalists for leaks on dubious legal grounds, or, most recently, using its subpoena power to try to wring secret documents from the ACLU, the administration has continued its "secrets at any price" campaign. Is this a constitutional crisis? Probably not. Annoying as hell? Definitely.

2006 Top Ten Stories

Berman’s 2006 Top Ten (12/30/06) Click here.

10. The paucity of "tough-on-crime" politicking. Reports of rising crime rates and a Republican party with few good election themes had me expecting "tough-on-crime" political rhetoric throughout the election season. But this political dog did not bark, perhaps because Democrats have been consistently "tough" or perhaps because Republicans have found a new prison religion.

9. Continued rise in US incarceration. Though the politics of crime may no longer be out-of-whack, the impact of 20 years of tough-on-crime attitudes continued to be seen in record incarceration rates and overcrowded prisons in state after state. In California, the situation has gotten so bad, some sensible reform might even emerge (details here and here).
8. High-profile white-collar sentencings. Defendants Jack Abramoff, Bernie Ebbers, Andrew Fastow, Jamie Olis, George Ryan and Jeff Skilling all made sentencing headlines this year. Interestingly, Andrew Fastow and Jamie Olis got the same sentence, but the others' sentences were all over the map (and Ken Lay missed the sentencing fun by dying). White Collar Crime Prof Blog has other related year-end highlights here.

6. Continued dialogues about executive clemency. Though notably grants of clemency
remained rare in 2006, clemency issues continued to garner much attention. Ken Starr played a high-profile role in a California clemency request, Maryland's out-going governor keep using this historic power. Also, chief executives in Ohio, South Dakota, and Virginia put off scheduled executions for various reasons.

2. More sex offender mania and some pushback. The severity and creativeness of sentencing for sex offenders reached new heights in 2006. This category archive and the new blog Sex Crimes document that nearly every jurisdiction in the country was dealing with legislation or litigation involving sex offenders. And though getting tougher remained the chief talking point, concerns about the impact of broad residency restrictions or severe mandatory sentences started to garner more attention.

Coming in 2007

“Jailhouse Conversion” (NYT Magazine)
By Chris Suellentrop (writes the Opinionator blog for The New York Times on the Web. This is his first article for the magazine.) (published Dec. 24.) Even if it a bit old it is not stale by any means, but forward looking. These are Chris's words, because I could not improve on them as far as it goes. My apologies for not posting yesterday but I just could not find the time.

Perhaps most remarkably, the outgoing Republican-controlled Congress came tantalizingly close to passing the Second Chance Act, a bill that focuses not on how to “lock them up” but on how to let them out. The bill may become law soon, if Democrats continue to welcome the new conservative interest in rehabilitation.
the Second Chance Act is a small bill. It authorizes less than $100 million over two years to address a significant problem: about 700,000 ex-offenders (the population of a good-size American city) will leave prison in 2007 — and two-thirds of them are likely to be rearrested within three years. The bill would provide states with grants to develop model programs for prisoners returning to society. Those states that accept the grants will be asked to re-examine any laws and regulations that make it unreasonably difficult for ex-offenders to reintegrate themselves into their communities — the classic example is the ban on allowing felons to receive a barber’s license. (If the felon in question is Sweeney Todd, of course, the ban might make sense. But a blanket prohibition that includes check bouncers and marijuana users seems overly broad.) The bill also provides money to faith-based organizations and other nonprofits for prisoner-mentoring programs. Finally, it requires states to measure how well their programs achieve the bill’s main goal: reducing the rate of recidivism among recently released prisoners.
as a symbolic political gesture, the Second Chance Act completely reverses recent practice. For the first time in decades, Congress is poised to pass a bill that aims to make the lives of prisoners and ex-prisoners easier, not more difficult. In the 1990s, Democratic and Republican Congresses scrapped the Pell Grant program for prisoners, barred drug offenders from receiving federal student loans and cut highway money for states that did not revoke or suspend the driver’s licenses of drug felons. Now leading politicians of both parties are proposing that states remove laws and regulations that wall off the ex-criminal class from the community. Rather than eliminating education and substance-abuse treatment programs, Congress may well finance them. When I met with Mark Earley, a former political star of the Christian right and a present-day prison reformer, I began explaining to him why I was surprised by the Second Chance Act and the so-called “re-entry movement” surrounding it. He knew why I was surprised: “First of all,” he said, by the very fact “that there is common ground” between Republicans and Democrats. “And second of all, it’s this?”

Thursday, December 28, 2006

Waking Up in Texas Will Still Take Some Doing

Grits for Breakfast displays some GREAT new thinking (editorializing) coming from a great big state of Texas. Are the brains (not hearts) going to win, finally? Hearts, in this case, might be at the root of the brains! Hard to believe, and so, believe this when you see it.

The guys don't want to build more prisons until they see who's in there and why.
Sen. John Whitmire of Houston, who is chairman of the Senate Criminal Justice Committee, put it mildly when he told Ward: "It appears we're probably wasting millions of dollars filling up beds with people who don't need to be there."

Death, Texas, and SCOTUS

More on Topic of Death Penalty (from Texas, via SCOTUSblog--many thanks!)

Robert C. Owen of the Capital Punishment Center at the University of Texas Law School, has told the Court of the Fifth Circuit's 9-7 en banc ruling on Dec. 11 in the case of Nelson v. Quarterman (Fifth Circuit docket 02-11096). Owen argued in his motions to vacate that "the en banc court in Nelson has decisively changed course, rejecting the prior, stunted Fifth Circuit reading [of the key Supreme Court precedent] in favor of this Court's own approach" in more recent precedents. The Circuit Court, the motion added, has repudiated the position that both Brewer and Abdu-Kabir have been challenging. "The need for this Court's intervention no longer exists," Owen contended. The tension between the Supreme Court and the Fifth Circuit, he said, "has been resolved." (Identical arguments were made in the two cases.)

The state, however, argued that the Nelson decision is flawed, failing to take account of the Supreme Court's more recent ruling on the controversy. And, the state contended, the Nelson ruling is limited to its facts, and involves a different kind of mitigating evidence. Moreover, the Nelson ruling itself is going to be challenged in a new petition to the Court by the state, according to its lawyer, Edward L. Marshall, deputy chief of the state's Postconviction Litigation Division in the state attorney general's office. Nothing would be gained by sending the Brewer and Abdul-Kabir cases back to the Fifth Circuit, Marshall said.

The Fifth Circuit Court of Appeals on Wednesday (Dec. 27) denied request for en banc consideration expressly to (try to) resolve the question of the Supreme Court's jurisdiction over the matter by making decision "final".

And, that's not all...for the rest of the controversy, link there. (How Appealing/Howard Bashman--thank you!)

This is big too (from Texas): (Thanks to Karl Keys--Capital Defense Weekly--link at right)

Although I have been repeatedly calling 2006 the “Year of the Needle” it may well be remembered as the year the Texas death penalty was saved. As I am prepping up the year end review in caselaw I am stunned at the developments out of the Lone Star state - standards for post-conviction counsel, the first full year of LWOP (and just 14 new death sentences), the reexamination of Penry in Nelson v. Quarterman, & finally the rough making of the the right to meaningful representation in postconviction found in Ex Parte Juan Jose Reynoso


I almost missed this important item.

PD Stuff is having a vote on best PD blogs here. That's the best public defender blogs of the year awards.

This is the spam for it: (I am so left out, except he does have me on his BIG FEED LIST! Very kindly, so he is forgiven)

Recently there have been a slew of awards for legal blogs, the most recent being the Blawg Review Awards. The only thing the various awards had in common is that they completely ignored public defender blogs. It is something public defenders are used to, of course, being what one PD blogger described as "the dirt of the profession."

Last February I began the Public Defender Stuff blog to publish news involving public/indigent defense, and to bring together the incredibly diverse blogs of public/indigent defenders. That led to the creation of the PD Blog Guide and a daily listing of every PD blogger who has posted since the previous day's listing. Now, in response to what Blawg Review has already described as an unfortunate oversight, Public Defender Stuff is hosting the inaugural Public Defender Blog Awards.

If you could find it in your heart to throw some poor bloggers a bone, would it be possible to mention the awards on Sentencing Law and Policy? The link above will take you (and your readers) to the ballot, and voting is open until January 5. Thank you very much for your consideration.

Quaint Thoughts About Criminal Procedure

A Very Interesting Telephone Conversation

nb. Here is an interesting item I just found, entitled, "Recidivism and Reform, Competing Views of the State's Role in Prison" (by Jordan Ballor)--you will also find this very interesting pdf, "The State of the Law, 2006: Legal Developments Affecting Government Partnerships with Faith-Based Organizations" (by Ira Lupu and Robert Tuttle, of George Washington University's School of Law)
The Acton Institute's article was so good that I have added them to my list of links to Foundations. It is the Power Blog that you might want to sniff around in.

Yesterday I spoke to a kind and generous guy who shall remain anonymous. This person is a fellow attorney and member of the local county bar association. When I told him that the primary “target” of my project was prisoners, he kindly informed me that this group is not his primary concern, and that he sought rather to be serving the unmet legal needs of people outside of prison, making a special point to mention that these are people who have not been convicted of a crime. I should add the term not “yet” been convicted.

It was curious, thinking back now, that he would point out the fact of the conviction rather than the incarceration. So wait, do all prisoners fall into the category of needing to be locked up? Alternatives may be just as effective in some cases. That’s point number one.

It is far too easy for us to think of prisoners as richly having deserved to be imprisoned. In many cases true desserts is justified. In more than a few cases it’s not. An example is drug crimes and morality crimes. But we stray. Focusing on the crime makes it far easier to justify the prisons, to justify building, maintaining and expanding them. But when the price is paid, the sentence is carried to its full conclusion, the prison doors are opened and the prisoners become “free” again.

The attitude on the other end of my anonymous conversation clearly indicates the general nature of the prejudice that all prisoners face as a class, seeking to return to society when they are freed, in hurdling the barrier to “normalcy,” whether or not they needed to be imprisoned. That means in most cases needing a living wage and job, gainful employment. They could just as well have been whipped or put in stocks and sent on their way, back to work, or whatever. Probation for first time offenders is like this. Mandatory minimum sentences changed all that. Has it made society any better, safer, more, well, improved?

Imprisonment is actually banishment. Try moving to a new place and remaking your life. That in itself is punitive. Then try doing this after having slept, like old Rip Van Winkle, for a hundred years (okay, I exaggerated), locked away. All but forgotten.

Not only that, my caller demonstrated the hurdle that we all face, you and me, when seeking not to be charged with a crime, initially, even at the investigative stages, and when seeking to defend against charges of crime after they have been brought against the individual. The prejudicial character of this slice of American life is very strong, and this slice of American life is not insignificant.

The preference to look away is perfectly understandable. At the same time I now find it surprising coming from someone who should have, but clearly has not considered the matter very carefully. I must confess that I was one of those who had failed in an earlier life to consider this matter more carefully, even as I embarked on a career that included a bit of indigent defense work.

It was distasteful, admittedly, (I can not quite say why--perhaps I was rightly or wrongly thinking of raising my family, for their safety, or just of what I could choose or not choose to expose them to as part of my own career, or of my own childhood--maybe these are just excuses--I really do not have the answer, except perhaps to blame it on prejudice) and I chose to try to get away from it. But I can not look the other way any more. I’ve had what some might call a conversion or epiphany. Now I understand the importance of this particular section of American life.

To make a long story short I suggested to my very generous anonymous lawyer, generous for letting me talk to him for so long, that he consider the fact that people in the prisons have at a minimum four (4) (parents, siblings, grandparents, and children) individual immediate family members (and on further thought, four classes of family members) who are more than likely feeling the immediate impact of their situation, that is, of knowing somebody actually locked away in prison.

It is the needs of this cohort or group of American citizens that the Innocence Project hopes to serve the most. At the same time these efforts benefit all of the individuals who have been charged, as well as those who will be charged in the future , because the rights to habeas corpus and other “quaint” matters of criminal and constitutional procedure have a way of directly affecting the way in which the fundamental rights to Criminal Trials, and Appeals are vindicated. I hesitate to say it, but there could well be consequences whether intended or not for related areas of (non-criminal) constitutional law and federal civil procedure. The very nature of all of all of our fundamental rights are at stake when we tinker with habeas corpus, criminal procedure, and the Constitution.

Whenever a fundamental right is at stake you had better believe that it affects you in ways that you might never understand, until one day you wake up and discover that it is gone. When you hear of people given to complaining about the fact that “new” constitutional rights are being “made up” by the “personal preferences” of “activist judges,” you should well consider who is behind these efforts to take away certain hard-won and well established constitutional rights that have been around for so long a time already. Then consider who is trying to save them. Then, after that, think about who benefits.

Wednesday, December 27, 2006

Hopefully Not Misplaced

Earlier this month in my Newsletter I wrote this:
On just the topic of begetting wrong results Bill O'Reilly has a new book, Culture Warrior. Being of Irish descent, he fancies himself a modern day "warrior". I'm putting that in quotes because Conan was a warrior, Romans were warriors, samurai (see Clint Eastwood's new movies they're great -- Flags of Our Fathers and Letters from Iwojima), military men/women and athletes are warriors. O'Reilly just exploits the weak, disenfranchised, and defenseless. While he has a remarkable story of "success" he admits he really means financial success. Making a pile of money is pretty much all that he has done. Success for him has come at the expense of truth. He tells the regular American guy what he wants to hear: "liberals" gays and godless activist judges are changing the world and not for the better. This is the new "sexploitation" scam. Sex sells, crime sells, so hey! What's better than jumping on sex criminals and godless judges, and while they're at it throw in "liberal" lawyers, gun-haters, and gays and baby-killers? This is the conservative, religious, right-wing formula for success in action. Too bad the Iraq war intervened and now the Democrats get to check the health of their own agenda. Hope they don't blow it.

The only thing I would add now, reading a bit more before I have to return the book to the libary (I'm so glad I didn't buy it!) is that maybe hopefully O'Reilly has not been and is not exemplary of the "conservative, religious, right-wing" -- after reading the NYT Magazine's piece about the "Right's conversion" I have found new hope. I hope it is not misplaced. In fact, maybe the "conservative" "religious" and "right-wing" are really very different, but all found some expression in the form of a spirit with a body named O'Reilly?

By the way "Chinese guy" is not a pejorative term, just descriptive okay? He does have a name and all you have to do is click the link (it's yesterday) to find out (he may already be a dead Chinese "guy" okay? In which case, very much, RIP; if not, may you all and he live a long and prosperous life, and Happy -- Chinese -- New Year!).

Currents: Eddies and Flows

Re Carey v Musladin is Flawed (Sherry Colb, Findlaw)--Heart of Matter is:
events in a courtroom - overseen and approved by a judge - acquire a state action status that they would not otherwise have. And once the Court acknowledges that this is so, there is no reason to treat a "private" act in the courtroom as falling outside the scope of precedents that govern displays in the courtroom that undermine the fairness of a criminal trial.
I could not agree more.
[Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law will be published by Rowman & Littlefield in early 2007.]

Update: here by Prof. Amar (Findlaw, Wed. Dec. 20).

One More Torture Case Backed by Former Judges.

Washington Post Editorializes on Death.

Too Funny.

And learn lots about the politics of crime from NYT ("Right's Jailhouse Conversion")

Tuesday, December 26, 2006

Spectrum of Abstraction

A Spectrum of Abstraction
Does the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254(d), Unconstitutionally Limit Judicial Independence by Abridging the Judicial Power Under Article III of the U.S. Constitution (to Decide Whether the Law is “clearly established”) and, Does it Unconstitutionally Suspend the Writ in Violation of Article I Section 9?

Readers should keep in mind that this note was written in the same year as the Military Commissions Act of 2006 (MCA) in which Congress abrogated the writ of Habeas Corpus in its entirety for aliens, and also at a time when certain “secret” laws or rules regarding the Transportation Security Administration are being withheld from the public (classified), and yet the public is charged with obedience to said terms or provisions.

The judges of the United States Court of Appeals for the Ninth Circuit have asked for a briefing regarding “whether, under the separation of powers doctrine or for any other reason involving the constitutionality of 28 U.S.C. § 2254(d)(1), this court should decline to apply the AEDPA standards in this case.” This question has arisen in the case of Irons v. Carey, 408 F.3d 1165 (9th Cir. 2005) (before Reinhardt, Noonan, and Fernandez—Fernandez did not join the Order). The case has not yet been decided as of today (but briefs have been filed).

In December of that same year (2005) Judge Merritt of the Sixth Circuit Court of Appeals wrote the following in a resounding dissent: “The state court's decision in the instant case neither identified nor applied the governing legal principle of Washington v. Texas that a state may not arbitrarily deny a defendant the right to call a witness whose testimony is relevant and material to the defense. With such an oversight, it is not difficult to conclude that the state court's determination that "the trial court did not err in refusing to compel Jordan to testify" was contrary to the clearly established mandate of Washington v. Texas.” Davis v. Straub, 430 F.3d 281 (6th Cir.-argued March 17, 2005).

Michigan is not exactly the deep South, but the petitioner was convicted of killing a woman and two children, an event/act/crime that rarely evokes much sympathy among even the least hardened, most liberal, or compassionate. Elaborating on the constitutional points of law nonetheless, Judge Merritt was concerned enough to write,

It seems to me that the Court's reading of AEDPA both unconstitutionally refuses to exercise the "judicial power" required under Article III in a case "arising under this constitution" and "suspends" the writ of habeas corpus in violation of Article I, Section 9. The result — life imprisonment for a probably innocent accused — so undermines both the "the judicial power" and the great writ that it leaves the federal courts without the authority to correct constitutional errors that lead to serious injustice.

430 F.3d at 295-96.

Also important for Judge Merritt was the matter of “deference” to lower court decisions (deference happens to be a matter of considerable controversy at the moment):
Using § 2254(d)(1) as a crutch, the majority simply defers to the state court's decision in which the state court neither identifies nor applies the relevant governing legal principles under either the Compulsory Process Clause or the Self-Incrimination Clause.

A Spectrum of Abstraction

The anatomy or architecture from which the notion that AEDPA may be unconstitutional arises can be found in the opening paragraph of Judge Merritt's thoughtful dissent. It actually goes back further, but a good introduction might begin in the Supreme Court of the United States with Williams v. Taylor, 529 U.S. 362, at 412, 120 S.Ct. 1495 (2000) ('With the caveat that the source of clearly established law is Supreme Court jurisprudence, "whatever would qualify as an old rule under our Teague jurisprudence will constitute `clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1).")'.

To Judge Merritt‘s way of thinking, Williams directly or indirectly supports the assertion that the Supreme Court adopted the “spectrum of abstraction of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine whether a particular legal principle was clearly established at the relevant time” (emphasis mine throughout).

It will be necessary to get into the reasons why this is important in short order (basically, a clearly established principle of law is required in order to rule in petitioner's favor (grant the Writ or grant relief) on the relevant issue under “new” AEDPA standards, (adopted in 1996) which revised/changed slightly the “old” review standards to include certain language to the effect that relief will not be granted unless ... unreasonable ... under clearly established law...”.
First, however, it will be interesting if not essential to explore, explain and describe Judge Merritt’s phrase, “spectrum of abstraction” in a bit of detail.

At one end of the spectrum lie legal principles with such a high level of generality, like the Eight Amendment principle of reliability in sentencing, whose application does not necessarily lead to a "predictable development" in the relevant law and therefore can not be considered clearly established. See Sawyer v. Smith, 497 U.S. 227, 236, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) [emph added]. On the other end are narrowly drawn bright-line rules with little application beyond factually indistinguishable situations. In the middle of the spectrum lie those general principles of law crafted by the Supreme Court to constitute clearly established law in a wide range of factual situations. It was the middle of the spectrum that Justice Kennedy described while concurring in Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992).

At 292.

Nb. Teague has made things interesting because it reinforces Justice Harlan’s general rule that new rules of criminal procedure should not take retroactive application, with a few exceptions (Justice Harlan's view that new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review is the appropriate approach. Unless they fall within one of Justice Harlan's suggested exceptions to this general rule—that a new rule should be applied retroactively (1) if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404, or (2) if it requires the observance of "those procedures that . . . are 'implicit in the concept of ordered liberty,' " id., at 693, 91 S.Ct., at 1180—such new rules will not be applicable to those cases that have become final before the new rules were announced. Pp. 305-310.). Teague v. Lane, 489 U.S. 288, 290, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Is the Law Ever “Clearly Established”?

People, and scholars, should soon begin to take notice of what Judge Merritt rightly points out, that the special “clearly established” lingo of the AEDPA actually goes to the heart of a series of questions that are of fundamental importance for the law generally, and not just to that body of law related to the writ:

1. How do lower courts (and the public, to whom the law is held to account, as well as their lawyers) determine whether the law of the case is clearly established?

2. How can we tell whether the lower courts properly understood, recited and/or applied the clearly established law? (Judge Merritt's point was that the majority failed to even take notice of let alone apply the correct, applicable law).

3. And ultimately, how can we know that a decision of a State or lower federal court was correct, that is to say reasonable (or not) in applying the law to the unique facts?

Readers must keep in mind that it will be extremely rare in all areas of the law that two cases will ever present completely identical sets of facts. Of course in that event it is very easy to determine the outcome only because a squarely identical matter has already been decided. Deciding what law may be applicable also involves rendering a decision as to the application of that law, which is to say, how it should be applied.

The Supreme Court has provided some guidance in this area. The facts need not be identical in reaching the conclusion that the law was clearly established. Further complicating matters, both Congress (in the AEDPA) and the Court have suggested that a case should be “indistinguishable” but that is clearly not the same as identical. The Fifth Circuit Court of Appeals recently recited the standards for granting the Writ as follows:

Under AEDPA, a federal court may not grant a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the petitioner shows that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402-13 (2000). A state court’s decision is “contrary to” clearly established federal law if (1) the state court “applies a rule that contradicts the governing law” announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (internal quotation marks omitted).

A writ of habeas corpus may also issue if the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under AEDPA, a state court’s factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption through “clear and convincing evidence.” Id. § 2254(e)(1); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

We review the district court’s conclusions of law regarding the state court’s application of federal law de novo, and we review the district court’s findings of fact, if any, for clear error. Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002).

Nelson v. Quarterman, at page 6-7, No. 02-11096 (5th Cir. December 11, 2006) (emphasis is mine). The language presenting difficulty/controversy is the “as determined by the Supreme Court”, 28 U.S.C. § 2254(d)(1). But what does Nelson offer to teach about all this? First of all, there was a close dissent (9-6, one concurring opinion by Judge Dennis) illustrating that judges on the same court can have difficulty in deciding whether the law is clearly established. (One would think it is hopeless, then, for lawyers and lay persons to embark on this determination and reach the correct conclusion). It should not be surprising then, that different courts will also sometimes disagree (as to whether the law is clearly established in a particular case,) again, because the facts are almost never perfectly identical in two or more given cases.

There is, apparently, some leeway and room for interpretation, slippage or sloppiness, in reaching the determination whether the law has been clearly established. The caveat respecting facts is necessary because when the Court decides a case it does so within its given (peculiar) facts. If another case were to come along in which the slightest deviation regarding the totality of the circumstances was observed, this inconsistency could make enough of a difference and, to that extent it would be inappropriate to apply the law of the previously decided case. In this event it would have to be said that the law was not clearly established.

We learn from this peculiarity then, that the law is very rarely “clearly established” because the facts are so rarely identical. This is where the spectrum of abstraction Judge Merritt talks about re-enters the picture. All is not lost because the law operates also in terms of principles that can be broadly applicable in similar situations, if the situations are similar enough. There is a trick to making that determination.

Here, we might take instruction from Judge Merritt, again dissenting in Davis v. Straub, 430 F.3d 281:

The majority defers by concluding that there is no Supreme Court case with indistinguishable facts. As explained above, this is not the correct interpretation of § 2254(d)(1). Such an interpretation would withdraw from the federal courts, including the Supreme Court, the judicial power to interpret independently the Constitution in most cases and would make the state court's decision the rule we must follow. Such an application of the federal judicial power established in Article III would render § 2254(d)(1) unconstitutional, as Justice Stevens suggests and Klein holds.

And further:

Congress may not say to the federal courts "clearly established law" means a case in the Supreme Court directly in point on the facts, just exactly like the case you have before you. It may, however, say, as the Supreme Court has already said Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, you should follow constitutional language and the principles and standards established by the Supreme Court and in existence at the time the state court completed its case. In the present case, my colleagues have said rather, there is no case in the Supreme Court just like the present case — no case directly in point on the facts — and hence the habeas petition must be dismissed. They say that Supreme Court precedent must be defined in its narrowest sense. Such a reading of § 2254(d)(1) renders it unconstitutional by preventing our Court from giving our independent judgment on the legal effect of the evidence before us and by leaving us "no adjudicatory function to perform."
Id., (emphasis mine throughout).


Morilun Zolbrod, Esq.
Research Consultant For Hire
(*I am not currently engaged in the private practice of law or affiliated with any lawyer or law firm*)


Richard Cohen today writes:
He's my person of the year -- a fleetingly sane man in the maw of a thoroughly insane system.

That's my Post. (for now)

Categorically: Hey! Wait Just A Minute Here!

Maybe nobody noticed, but the Chinese guy writing in TIMEasia (see my earlier post today) basically says they kicked our asses in Korea at the Yalu River. This is completely tangential to my blog but I wonder if anybody out there happens to have heard a different perspective on that particular battle? Comments are greatly welcomed. By my calculation that was exactly 56 years ago November. Some of the guys are still alive and kicking. Any "old crows" out there with a story? Clint, we need a movie about that one soon!

Confessions of A Prison Epiphany

Some of you may still be wondering who I am. A law school education was not enough for me so I went to prison. Now that was an education! Before I went to law school I had been ready to save the world. After law school for some reason I felt I had been liberated from the need to deal with fundamental questions of life or death, and liberty, in a supreme irony that proved itself to be quite wrong. I was one of those “innocents” in prison and I am certain that I too will be vindicated. Oprah are you there? And I assure those of you who may be wondering about this also that there is life after prison. As the great American satirist (Mark Twain) once stated, "the reports of my death have been greatly exaggerated."

I then, after graduating from law school, declined to sell my soul to law enforcement (admittedly my "dream job" as super-cowboy growing up) and I set out to learn what I could about making money just being "a lawyer." I had a new baby at home, can you blame me? Now, apre- prison, I have re-assimilated that which I once thought I had learned by being allowed to read copiously, growing up in a professor's home (my father was also a Korean War vet who was there, up close and in person when the Chinese crossed the Yalu River--so I‘ve heard on the grapevine because he never talked about it--that experience changed him forever, of that I am certain). The link at the Yalu River I provided (TIMEasia dot com, 1999) takes you to a Chinese memoir of these events. Perhaps because of that, I too, became a vet. I was unfortunately unable to learn from the mistakes of others. This is my confession. There is still hope that you, the youthful, and you who will be shaping America‘s future, might.

There are fundamental questions, and they are fundamental because they invade every man and woman's life in one form and fashion or another. They cannot be passed over or ignored. Mankind does so at her peril. These questions bite and everybody has a dog in the hunt. Just sometimes there are no other dogs, and sometimes the hunt is over. When will the hunt be over for you?

Monday, December 25, 2006

Christmas Day Oddities

The Old South Hasn't Gone Anywhere, and Won't:

X _________ (just take a wild guess) and a number of political interest groups attacked Wallace's nomination (to the federal bench), led by a scathing report from the American Bar Association that gave him a "not qualified" rating. The report specifically questioned his record on civil rights, his treatment of minorities and his record on voting rights issues. The predominantly African-American Magnolia Bar Association also opposed Wallace's nomination on grounds the 5th Circuit bench needs more diversity based on the district's population.

Wallace was reticent about his political opposition, but when asked if he held racist views, Wallace said flatly: "No."

The ABA report noted: "Lawyers and judges stated that Mr. Wallace did not understand or care about issues central to the lives of the poor, minorities, the marginalized, the have-nots and those who do not share his view of the world."

More Synaptical Sparks Concerning Ohio, Death Penalty and interesting comments about pain, punishment and death from crimeandconsequences dot com here.

Maryland, Death Penalty notes, and the Political Value to State Republicans, tipped in from Washington Post via How Appealing (Howard Bashman):

the confluence of national currents and a Maryland court ruling last week halting executions on a technicality could make the death penalty a defining issue of O'Malley's tenure.***executions are not likely to resume without action from his administration. Under the ruling by the Court of Appeals, new regulations must be drafted before the state may put more prisoners to death -- and early signs from O'Malley and his aides suggest that he sees no reason to rush that process. *** O'Malley said he was certain that "all of this will spark a renewed debate as to whether all of the money we spend prosecuting death penalty cases might be better spent fighting violent crime and saving lives."***Legislation that allowed executions to resume would be subject to a filibuster in the Senate, however, and is not certain to pass, said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee. In coming weeks, lawmakers will be looking at O'Malley to signal where the process is headed, said Del. Samuel I. Rosenberg (D-Baltimore), vice chairman of the Judiciary Committee.

A pair of interesting posts from Howard Bashman, a Freebie, (in Law dotcom) about SCOTUS, from Legal Times (not cheap news), and what I might call a year-end wrap-up here (written by Howard).

Happy Holidays!

Sunday, December 24, 2006

Ohio Death Penalty Overview, Abolition Possible in Maryland

Maryland Moratorium on Executions

What we're hoping will happen is that the governor will see and the legislature will see that this is an unworkable policy and that the time and money that it would take to fix it -- and we believe it is unfixable -- is just a waste of everyone's resources," said Stephanie Gibson, an associate professor at the University of Baltimore and a chairwoman of the board of directors of Maryland Citizens Against State Executions. "We're the third state now that has a de facto moratorium because of problems with lethal injection. There is no good way to execute people."

But Del. Barry Glassman, a Harford County Republican and capital punishment supporter, said he would not be surprised if the General Assembly takes up a proposal on whether to repeal the death penalty.

"This issue is of a magnitude that it's going to require some kind of legislative action to address whether you're for or against the death penalty," Glassman said. "The legislature really has the duty to weigh in on this. It's a big enough policy question that a committee should look at it and a whole body should vote on it."

Click to read the full article from BSun

From near a Conspicuously Deathly post by DAB, who pasted on very good overview pieces re Ohio (not critical, I'm the one being cumbersome)
Here is a Nation article by Bruce Shapiro:

For the last decade, the issue that has driven the death penalty debate — galvanizing the attention of courts and press alike — has been innocence: a capital representation system so criminally negligent that 123 wrongfully convicted death-row inmates have been released, and public confidence in death sentences eroded.

Yet innocence cases, in their own way, have evaded a fundamental question: What about the grievously guilty? What about what one pro-death-penalty legal scholar calls "the worst of the worst"? Are executions of the truly guilty consistent with America's evolving constitutional standards, with national ideals and worldwide human rights norms?

And here the article in Cleveland Plain Dealer and on Ohio Cases are linked (thanks to DAB). Columbus Dispatch article here on sex offenders. Here is a taste of that one:

In March, Judge Daniel T. Hogan, the administrative judge of the 17-member Franklin County Common Pleas bench, told lawmakers that going too far will actually benefit criminal defendants. "The vast, vast majority of child sex-assault cases are not supported by strong evidence," Hogan said, adding that if stronger punishments push more offenders to opt for trial, fewer convictions will result.

I completely agree with that...but this view is rarely heard. This also presumes that a fair trial can be had. In some states that is still not possible given the "climate" of public opinion, e.g., Texas and ... (anybody have any more from personal experience?).

This Does Not Happen Often: Banishment ordinance stricken as Punitive in Cape May (Friday)

If you want a shock click on this from Worldnet Daily: "Sextra Credit"

Thursday, December 21, 2006

Sub-lethal (illegal) Injection?

There must be blood in the water, the sharks are circling, the beast has been sighted, and it is (find out with DAB) ... [Choose only one: a) sub - lethal injections, b) the white whale, c) Ahab, d) your lawyer calling.] OR, is it

Change Needed in the Courts? Ron Rotunda writes in Washington Post:

The Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress, would create an inspector general for the courts. It offers modest reforms that would keep our judiciary independent (because no one favors a dependent judiciary) and help keep it accountable (because no one favors a judiciary that is above the law).
THAT would be a change. Is this just politics or something with real teeth? How would an IG further the cause of independence? AND judiciary should be accountable to whom? How would that work? House Judiciary Committee recently voted in favor of this bill by a bipartisan majority of 20 to 6.

Sean Penn Politics

Sean, who cut your hair? Get your chit together. Your politics are okay with me, however. Happy Holidays, Robin, Hopper, and Dylan: Have your people call my people. (Hat tip Hannaty and Colmes)

Wednesday, December 20, 2006

Trends and Updates

A few interesting things to note:

Judicial Activism is not necessarily always a "liberal" phenomenon, esp. in the area of Seventh Amendment jury trial right, (re judges taking matters away from jury via summary judgments) (hat tip scotus)

And excellent piece by Jonathan Hafetz "American Justice on the line" from Huffington Post referncing Federalist #84. Hafetz is one of Al-Marri's lawyers, (see below).

There is a lot happening in the Fourth Circuit with the case of Al-Marri v. Wright (docket 06-7427) which plans to hold a hearing on it early in February. Scoot over to SCOTUSblog for all that. Judge Robertson's Order dismissing Hamdan's case from last week is over there too.

Find links to Carey v. Musladin commentary by Prof Amar and Maryland high court ruling halting executions at Standdown Texas.

Doug Berman (SL and P) asks whether the PROSECUTOR should request clemency for Genarlow Wilson. The comments (4) illustrate what I was talking about here this morning concerning my friend who thinks PROSECUTORS OFFICES are where you can really make a difference in this area of the law.

What Ails Republicans?

Sorry, I only made one entry yesterday; I usually strive for two, but it is getting a little busier right now (or am I just trying to do a little more other stuff?). Enjoy, and comments, guest blogging are always welcome. Heard on C-Span Radio this morning on my daily commute, "mean tough guys" in prisons should be given a chance to serve in the military and not waste their youth. There are, admittedly, a lot of ready, willing and able men (and women) who are probably not too far gone, dangerous, or feeble-minded to serve. There is a good solution to the Army's/Marine's recruiting problems. As we know, many of these guys just made one mistake, got caught doing what a lot of other people are doing or have done, and/or simply don't need to be locked up.

Also had an interesting discussion that went (sort of) like this.

Friend: if you want to make a difference in the area of habeas corpus you have to work for the prosecution--they are the only ones who have the power to do anything (about a wrongful conviction or faulty/illegal confession for instance).

I was not able to articulate the fact that in our adversarial system too many prosecutors will NOT go out of their way to fight for right, but find that to advance in their careers they must litigate every "nook and cranny" of the law, and look the other way when Brady evidence is obvious, or just when a case might smell bad from the beginning. That mean "not caving" even when you think the other guy is right, although justice might require that. That is why justice is so hard to come by in places. It is true, my friend's point, that in habeas prosecutors hold all the cards because so few defense lawyers do that kind of work and so few prisoners can pay a lawyer after they've spent their last dime fighting on trial, appeal, etc.. Only in death penalty cases is a lawyer required in habeas. In all other cases prisoners are not constitutionally entitled to a lawyer.

My experience in Virginia, a few years back, did however give me some faith that prosecutors tried to do the right thing most of the time but this does not hold true for all too many of the other jurisdictions, especially in the South, Old South, Deep South. Evidence of that is still, sadly, seen every day.

What ails the Republicans? Find out from Newsweek.

Look what I found:

One of the ill-concealed subtexts of my book Our Undemocratic Constitution is that my colleagues in the legal academy pay much too much attention to the rights-conferring parts of the Constitution (which are often exactly what Madison predicted they would be, "parchment barriers" that are all too permeable given the right degree of public panic and malleable judges) and too little attention to the "hard-wired" structural features that, I now believe, explain much more about the actualities of American politics than do the clauses that law professors fixate on...

Get the rest of piece here: (from The New Republic)

This is why I love the guys over at TNR:
Last week the Washington Times op-ed page, in the form of the
oleaginous (oily? not holy oil? greasy?) (more here)
Tony Blankley, voiced its concern that Hillary was going to rough up Barack Obama. Now it's the Wall Street Journal's turn. Here's John Fund ...

Also, found this

over there.

(what I really meant to say, here, was "one of the next future presidents...")

Veto of Banishment Law Upheld:

“As parents we need to be constantly vigilant of our children. Preventing sex offenders from living here does not prevent them from being here,” Mr. Ossing said. “This law is going to be another unenforceable feel-good law.” Finally, common sense seems to be taking hold. Read this here and more here.

In the Richmond Times Dispatch (in police beat somewhere, a new federal pd office opens in Western Virginia). Andrea Lantz Harris and Frederick T. Heblich are the first lawyers hired in a new defender's office serving the Charlottesville and Harrisonburg divisions of the U.S. District Court for the Western District of Virginia.

I am adding Richmond Times Dispatch and probably Baltimore Sun and Annapolis papers to the MSM links (at right).

"No New Prisons" Campaign starts up in Washington State.

More on the Drug War, Borden's blog.

Tuesday, December 19, 2006

Trends: Last Week Before Christmas

Wanna Grow the $$$$$$$????????? Big Cash Crop? Find what it is at Real Cost of Prisons (link also to right). So Money does grow on trees as well as in the devil's workshop, or sometimes bushy little stalks, with sticky little leaves. The next future POTUS, Barack Obama, HAS inhaled: even though inhaling does not always necessarily follow the sucking, that was the point. (oops, fixed that typo!)

Weighing in on Moral Tactics and International Military Law is Professor Amos N. Guiora writing in the Baltimore Sun about a ruling in the Israeli Supreme Court:
The ruling establishes a checklist of how the state is to proceed in these cases. Harming civilians who "take direct part in hostilities," as defined in the decision, "even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values-based test, intended to balance between the military advantage and the civilian damage."

Recently, the United States Supreme Court, in Hamdan v. Rumsfeld, held that the military tribunals established by President Bush in the aftermath of 9/11 did not pass judicial muster. The presidential order of November 2001, creating the tribunals, was not subject to rigorous checks and balances. The U.S. Congress was largely somnolent, and then-Chief Justice William H. Rehnquist had previously written that in times of conflict, the court must be "reticent."

Counterterrorism consists of four "legs": the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorismoperations reflect a harmonious confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. It is also very difficult to develop, implement and articulate.

Amos N. Guiora is professor of law and director of the Institute for Global Security, Law and Policy at Case Western Reserve University School of Law. He served for 19 years in the Israel Defense Forces and held senior command positions including commander of the IDF School of Military Law. His e-mail is

Here is the SCOTUS Feb calendar (hat tip SCOTUSblog)

And here we'll find Habeas Corpus Restoration efforts (also from SCOTUS blog) S. 4081, titled "To restore habeas corpus for those detained by the United States." The text of the bill can be found here, and statements by the two senators when they jointly introduced the measure can be found here. Lyle Denniston reporting:

***The measure would appear to have a good chance of passage, at least in the Senate: when Specter attempted to head off the court-stripping wprovision in
the just-ended session, his move failed by a 51-48 vote. The Senate's membership, of course, has changed markedly after the November election.

President Bush would be strongly likely to veto any habeas restoration bill that reached his desk in the new Congress. And there almost certainly would
not be enough votes in Congress to override a veto, even with Democrats in control. Even so, the maneuvering indicates that the question of habeas rights is not likely to be resolved finally, any time soon.

In a comment, Don Robertson, "The American Philosopher" posted a note and excerpt from "The Road to Harpers Ferry" J.C. Furnas, 1959, (William Sloane Assciates, New York) which looks very interesting for abolition, civil war history buffs AND habeas corpus nuts.

CapitalDefenseWeekly has this encouraging post about yours truly, (recognition, at long last there is evidence of--no not water on Mars, which is there too--but that the writing has resulted in the reading).

This is Still Big News: from Howard Bashman at How Appealing (link at right); and Doug Berman at Sentencing Law and Policy (link at right) leads with a post of his own on this today. But this item from yesterday about Claiborne and Rita (pair of SCOTUS cases in sentencing to be decided soon) is the one I am really looking forward to sinking my teeth into:

Howard writes,

"Georgia Man Fights Conviction as Molester": The New York Times today contains an article that begins, "Genarlow Wilson, 20, is serving a prison sentence that shocked his jury, elicited charges of racism from critics of the justice system and that even prosecutors and the State Legislature acknowledge is unjust. He was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting, even though Mr. Wilson himself was only 17."
And The Atlanta Journal-Constitution today contains an editorial entitled "Order justice under righted sex law."

My earlier coverage appears at this link. This matter was also discussed yesterday at "The Volokh Conspiracy" [link at right] and "Sentencing Law and Policy." HB.

AND maybe this is why (from StandDown Texas), as Grits (link to right) reports, Harris County (Houston) Texas wants to increase the already largest county jail in the country's capacity by fifty percent.

ALSO Sex Crimes had some good ones yesterday, making up for HIS weekend hiatus (link at right).

Monday, December 18, 2006

Sensible AND Compassionate in Maryland

I almost forgot, "[b]eing tough on crime doesn't mean 'lock 'em up and throw away the key,'" so the state has hired more social workers, addiction counselors and psychologists to work with prisoners, Richard Rosenblatt said.

Rosenblatt is the assistant secretary for treatment services for the Maryland Department of Public Safety and Correctional Services. The state Division of Correction is part of DPSCS.

Read more here, at Herald-Mail.

Habeas Corpus Takes the Weekend Cake

Wow, a 48 hour plus hiatus from blogging has done wonders for the soul.

Emily Bazelon weighed in on Habeas Corpus this weekend with a piece that ran in Slate and the Washington Post Outlook. This should be read with Fareed Zakaria's piece in the New York Times. He reviewed books by John Yoo and Bruce Ackerman on terrorism, Habeas Corpus (the great writ) and "the rule of law." Fareed is the editor of Newsweek International, the author of "The Future of Freedom" and the host of the PBS program "Foreign Exchange."

Here is an article from Salon (by Alex Koppelman) showing why Habeas Corpus and judicial review is still badly needed. The quote from Jonathan Turley refers to the inhuman "treatment" of terrorist suspect Padilla. Turley is professor of law at George Washington University and specializes in constitutional criminal procedure.

Turley says that is symptomatic of problems with the administration's strategy in prosecuting terror cases generally. He believes that by abandoning traditional methods, such as those used in the Crocker case, it has crippled its own efforts.

"In some ways, this president is the best friend of the criminal defense bar. His inclination to ignore legal standards serves to undermine even the strongest case," Turley says. And had they tried Padilla in the way terror suspects had been prosecuted for years, Turley says, he believes that "Jose Padilla probably could have been convicted by now."

Here is your comprehensive guide to "collateral consequences" of a conviction, said to be an invaluable resource for attorneys, policymakers, and citizens, (from Sentencing Project dot org) and, here at this link you'll find a "prison consultant" (Dr. Prison) claiming to, well, take a guess, is it survival or comfort we are looking for? I make no claims as to either of these products, but here is what Dr. Prison says:

If you don't know how to act in prison, you will have...
25-30% chance of getting killed during your prison sentence.
10-15% chance of getting raped during your prison sentence.
30-40% chance of getting stabbed during your prison sentence.
80-90% chance of getting beaten during your prison sentence.
- If you make trouble in prison, you could face...
23-hour solitary confinement, with 1 hour outside, all alone.
No visits or privileges of any kind.
A cell worse than this.

Other notes about prison:
Prison guards care very little if at all about you.
Prison riots last an hour on average.
Prisoner jobs throughout prison generally pay less than $200 a month.

I happen to know that Texas State prisoners get no pay whatsoever, and one three minute telephone call every 90 days, if they are lucky (and behave).

Here is a book that looks interesting:

The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice (Hardcover)
by Paul Craig Roberts, Lawrence M. Stratton

AND, did you know there are 7 millions incarcerated in the United States? What
happens to these folks concerning employment when they come out? Learn about a program which will work to provide meaningful employment for those persons being released from prison, or those presently on probation. It may be too late to click the following link:

http://www.acbradio .org/pweb/ index.php? module=pagemaste r&PAGE_user_ op=view_p
age&PAGE_id= 8&MMN_position= 14:14

but there it is. Maybe there's a way to track it back.

Okay, enough for now. Thoughts, comments, feedback is appreciated. Blog on!

Saturday, December 16, 2006

Just Tinkering

Some of you may have noticed that the page element at the top describing Z the Legal Blog has changed. I was slightly dissatisfied with the way it read so there you have it. I am still not COMPLETELY happy with it now, but I'll sleep on it and see what happens tomorrow.

I have also added a new link at the top right to the Monthly Newsletter because I did not want that to interfere with the bloggy character of the page. It also makes it easier to access the Newsletter for the folks who want to see just that, unjumbled with the blog postings.

Speaking of sleeping on it (tongue twister - let's play nicely, Jamie Lee - I love you - I am collecting all your new ads, movies too: blog/call me (nice pic here)) the blogosphere is full of knee jerk split second reactions to everything, so I thought I would create a "new" feature here, story of the week. My picks for this "off the kuff" are

1. The Florida moratorium on executions (SCOTUS will have to take this up within the next year, says Jeffrey Toobin, currently is a staff writer at The New Yorker magazine, former legal analyst for ABC News, and the author of four books);

2. Innocent Man Released in Harris County/Houston, Texas links available here and
Opinions of CCA here:

3. The military generals and Bush administration are actually considering increasing troop strength IN Iraq, and the size of standing army.

4. Supreme Court, which makes news every time it rules, this week in Musladin (click here and here, for my earlier posts, the opinion is here)

5. The Fifth Circuit opinion in Nelson v. Quarterman (my earlier post here).

Friday, December 15, 2006


RE: Senate Bill S-4089 "Stop the Online Exploitation of Our Children Act of 2006"

I would like to express my deep and sincere concern over this Bill. First, let me say that I do not favor the exploitation of children, but this Bill casts the net too widely.

It does not accomplish the stated purpose. I am particularly concerned that this Bill would deny constitutional rights to freely access and participate in the Internet and WorldWideWeb.

The internet (web), and all of its various shapes, forms and devises, to include websites, shopping and communications services, and other informational tools and utensils are very important, if not absolutely essential to life in the twenty-first century.

We do not say that we will prohibit all sex offenders as a class from reading or writing, or publishing books, or telling stories in person. We do not say that we will prohibit sex offenders from using the telephones or the public roads, or rail, or buses, or parks, or schools or mails or other public utilities and establishments.

We should not say that we will prohibit sex offenders from using the internet.

Please do not pass a Bill that would restrict any American from using the internet to the full extent of her and its capabilities.

A review and additional info on this Bill is available by clicking here.

Throughtout the Internet folks are discussing Sen. McCain's proposed bill S-4089 (click link to go to bill) "Stop the Online Exploitation of Our Children Act of 2006" which is claimed to be an effort to curtail child porn. The bill has been read twice in the Senate (on 12-6-06) and referred to the Senate Committee on the Judiciary.

A second focus of the bill is to require registered sex offenders (RSOs) to provide an e-mail address when they register. Folks are erroneously claiming there will be a federal registry of just e-mail addresses so that social networking sites may deny RSOs access to their websites, that is not true. What the bill indicates is, each RSO's individual record will also contain the e-mail address they provide when they register.

Place to go for all things (okay, many) affecting sex offenders (eAdvocate).


TGIF Heading into another Weekend here is a newsy update. So we'll poison the well in order to save the water. That's right, send more troops says Sen. McCain. Of course the generals need a bigger standing army to do this. I respectfully disagree. Do not throw good money after bad.
Here's the plan: draw a perimeter, tell the Saudis to mind their own business and simmer down. We'll save money, lives (ours), and credibility. No matter who controls Iraq it will still be Muslim, anti-American and non-democratic. We need to go back to "self-determination". We lost before we even started. They can sort it out better than we can. Keep terrorism inside/contained AND away from our troops.

The sad story of the Botched execution(s) is here.

Baseball Fans: new import from Japan is the Type O Warrior (hat tip NYT)
In Japan, people with Type O are commonly referred to as warriors because they are said to be self-confident, outgoing, goal-oriented and passionate. According to Masahiko Nomi, a Japanese journalist who helped popularize blood typology with a best-selling book in 1971, people with Type O make the best bankers, politicians and — if you are not yet convinced — professional baseball players.

Poll Says the New Congress is Trusted: Americans trust Democratic lawmakers more than President Bush to handle the nation's toughest problems, including the Iraq war, and a quarter of Republicans are glad that Democrats have won control of Congress, a Washington Post-ABC News poll finds.

A good blurb on Terrorism and Security (by Tom Regan of Christian Science Monitor)

Here you will find a good roundup of the blog and media coverage of the Musladin Supreme Court decision. Hat tip Kent at Crime and Consequences.

Too Good to Pass: Mike at Crime and Federalism (link below at "Mike says")has this called "How Scalia Views the "Little People" -- juicy, for "populist conservatives" -- Here is how Justice Antonin Scalia views 99% of people:

"If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary [$165,200] is," Scalia said during a speech to the Northern Virginia Technology Council.

Mike says: Ninety-nine percent of people make much less money than that. According to Justice Scalia, they must not be raising their families properly. Only the little people make less than 150K. I would love for someone to explain why someone who holds such viewpoints about Americans is considered a populist hero by lower-income conservatives.

Open Letter to Justice Scalia by Keith S. Hampton is here.

More on Hamdan (hat tip Kent at Crime and Consequences)
District Court has dismissed for lack of jurisdiction the habeas petition of Guantanamo detainee Salim Hamdan, whose case went to the Supreme Court in Hamdan v. Rumsfeld.

The opinion has three main points. First, the statute did repeal the court's habeas jurisdiction. The court brushed aside rather easily the shaky statutory interpretation argument that it did not.

Second, Congress has not validly suspended the writ of habeas corpus. The constitutional conditions for suspension, rebellion or invasion, are not present. "If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional."

Third, Hamdan is not constitutionally entitled to it. Here Judge Robertson has an analysis of the historical cases of habeas for aliens that is quite consistent with our brief in Hamdan and rejects the superficial citation of these cases by Justice Stevens in Rasul v. Bush, n. 11.

Hat tip also Crime and Consequences re the Duke rape case. David Scott of AP reports on a defense motion in the Duke Lacrosse team rape case alleging that a DNA test by the prosecution showed multiple males' DNA but none of the team members' and that the result was not disclosed to the defense. The story doesn't say what relief the motion is requesting. Given that they do have the information months before trial, there doesn't seem to be a Brady violation here.

RE Counsel, Medellin and Acker in CCA by Austin American Statesman, here (Nov. 20).

"This state's highest appeals court for criminal cases consistently ignores justice, even when the evidence of injustice is clear. True to its recent history, the court last week rejected two appeals from condemned inmates whose trials were travesties of justice."
"The most ardent death penalty advocate understands that a capital murder proceeding must guarantee a fair trial. One of the strongest arguments against capital punishment in Texas is that the judicial system is so broken that innocent defendants can be condemned and executed."

Cause and effect: The AP reported 12/12--that CCA set new rules to ensure better performance of lawyers for death row. Rules were adopted Monday, (12/11?).

Thursday, December 14, 2006

Nelson v Quarterman

Nelson comes down in 5th Cir. This is a Penry-type capital case involving Texas jury instructions structure failing to giving "full effect" to all mitigating evidence. The State argued this is a Jurek (428 U.S.) type case erroneously contending Jurek is inconsistent with Penry according to the majority. The case hits the high notes in Capital Sentencing and the opinion reassembles and realigns AEDPA standards, according to the 5th Circuit of course; slips by the Teague rule (can't announce new rule on collateral review) of course; and the first 24 pages of the majority opinion (about 50 percent) are devoted to the current state of the law--as it was when Nelson's conviction became final (of course).

Holding: Because there is a reasonable likelihood that the jury was precluded from giving full effect to Nelson’s mitigating evidence, we hold that the Texas Court of Criminal Appeals’ determination was an unreasonable application of clearly established law as announced by the Supreme Court.

More coming on Judge Dennis's concurring opinion and the dissenters (6) led by Judge Edith Jones. All told, this is 161 pages of great stuff, if you like 5th Circuit stuff and death penalty and jury issues and stuff like that. Not 6/5" quarterbacks named Manning or anything like that, but still pretty sexy. I actually prefer blonds, and ... older women, only not when I'm carrying the ball.

Read more about it at the usual links.

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To All Who Contributed

THank You!

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December Newsletter

I've just put up the current issue of Z The Legal Monthly (the Newsletter). Read it at this link. Read on below for a preview:

The Elections are over, the punditry is over and done with, the new Congress is set to convene. Whether the Democrats will be able to do anything the Republicans could not do is the question: You all know the old saw about the new broom. Just one more
thing, “going commando” is the new big thing. Britney does it, and George Clooney says he never does, unless he is “fully waxed.” This is where the picture is worth many thousands of words.

Thecurrent issue brings you several new cases in the area of habeascorpus of course, a few books I've read and reviewed, and a mishmash of other stuff. We'll keep following the thread of AEDPAunconstitutionality and the Irons case, particularlyinteresting because of the likely wide impact it could have, if it has legs. Texas Parole issues are of special interest to me and a

reader has asked about it, so I'm going to do a bit more reading and focus on it in the January issue. Meanwhile, you can pull up an article by Doc Berman on the future of parole at Sentencing
Law and Policy (the blog). The courts have been taking on issues of procedural default, actual innocence and newly acquired evidence, independent state-law grounds and
exhaustion of remedies, terrorism habeas cases, IAC (ineffective assistance of counsel) and Brady violations and, 42 U.S.C. 1983 which I find interesting as a method of private enforcement of the law, aka the “constitutional tort,” government secrets and electronic surveillance.

Mostly, true to the form and intent of AEDPA, courts are denying relief. The few cases in which the writ is granted continue to be instructive gems.

The federal government recently settled a wrongful arrest case for 2 Mil with an Oregon man but not all cases are so easily won, or lost, if you can look at this from the point of view of the taxpayer. It is not often noticed that Americans will pay every last penny of that settlement via taxes. The other thing we don't take notice of enough is abuse of prosecutors' powers. Our not noticing, together with a favorable climate in the courts has resulted in virtually unfettered prosecutor “discretion” and egregious abuses that go along with that power. We'll learn more about that in this issue.

Store and Innocence Project, Charitably Yours

I have added new controversial "popular" titles on politics, crime and politics, and the U.S. constitution to my store. The Iraq Study Group store will also be updated soon as the problem of Iraq deserves special attention. I will be looking for new stuff regularly, and the price is always right. You can also see/visit my Amazon "wishlist." (I think).

Add to your book collection or send a gift to somebody, show them you care, and at no cost to you support the Innocence Project. The Amazon link will credit your purchase towards my Associates account if you add items to your shopping basket within 24 hours of linking through my "store." You may pay and accept delivery later than that of course; and you may reopen the 24 hour window by visiting my site and linking again to Amazon at any time. Thank you!

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Wednesday, December 13, 2006

Trends and Updates: More on Musladin

Google blogsearch Skilling (as in Jeffrey) for all the blogs on going straight to prison. It usually means getting an early start on the time, inevitably, to be served pending appeal. It is a significant blow, however, when the defendant has even a slight chance of winning remand or reversal on appeal.

A Poll, always interesting, about Government and Privacy here from Washington Post:

Sixty-six percent of those questioned said that the FBI and other agencies are "intruding on some Americans' privacy rights" in terrorism investigations, up from 58 percent in September 2003. Thirty percent think the government is not intruding on privacy.

Support for intrusive tactics has dropped even more significantly during that time. A bare majority, 51 percent, feel the tactics are justified, down from 63 percent three years ago.
The poll was conducted by telephone from Dec. 7 through Monday, and the results have a three-percentage-point margin of error.

RE: Carey v. Musladin (my earlier posting here -- opinion here Carey v. Musladin). Justice Thomas:

This Court has recognized that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial. Estelle v. Williams, 425 U. S. 501, 503-506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986). In this case, a state court held that buttons displaying the victim’s image worn by the victim’s familyduring respondent’s trial did not deny respondent his rightto a fair trial. We must decide whether that holding was contrary to or an unreasonable application of clearly established federal law, as determined by this Court. 28 U. S. C. §2254(d)(1). We hold that it was not.

***Given the lack of holdings from this Court regarding thepotentially prejudicial effect of spectators’ courtroomconduct of the kind involved here, it cannot be said that the state court "unreasonabl[y] appli[ed] clearly established Federal law." §2254(d)(1). No holding of this Courtrequired the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to oran unreasonable application of clearly established federal law.
My thought: SCOTUS could simply decline to establish clear law, accomplishing the aim of making it impossible for lower courts to grant relief under the AEDPA standard. Indeed, Justice Thomas's opinion clearly reflects a reluctance to provide much, if any, guidance as to what the substantive law is. He has simply found no clearly established law on the issue and that is the end of the matter for him. Too bad that all SCOTUS cases are not so easy to resolve, and that two of the often "liberals," Justices Ginsberg and Breyer, joined in this swat against justice and stare decisis.

If the justices do not wish to discuss the substance of the law, what is and was, and what could or should be, then why grant cert at all? The answer in this case? Just to reverse the Ninth Circuit. How does this advance the stated goals of the Court's review powers?

The good thing might be that the case leaves open the door just a skosh for a similar claim in which better facts might be found. But what better facts could there be involving possible coercion, intimidation, in the courtroom? It would seem that there MIGHT be a matter of degree in question, but when it comes to coercion or intimidation it is hard to draw the line between how much is too much. The analogy is this: how much pain is too much? Just cut off the pinkie, maybe...or just the tip of the pinkie finger, that won't hurt quite as much.

The real lesson here is that you can not shoot and kill somebody and expect to get habeas relief afterwards. This is page 1, section I, para. 1 of the opinion: On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin’s estranged wife, Pamela. Game, set, match, checkmate, strike three, game over. Simple as that for this panel. That is not good news for the law. Because the point of the law is to make darn sure that you did the killing (with requisite intent), not that there was one.