Monday, January 15, 2007

The Crow's Nest

UT Clinic, Students and Profs re: Wednesday's 3 Texas Death Penalty Arguments in SCOTUS: (from here)

(Doug Berman's question, "what happened to summary reversals" is especially appropriate, given the transparency of the lower court's error and need to "conserve" the high Court's judicial resources. OTH the transparency of an error is not always "immediately or intuitively obvious." It can and often does require a great deal of thought, homework, and clear thinking in order to reach the legal conclusion, especially because the opinion under review has already reached a different conclusion AND rationalized it with an equal if not greater degree of effort). (Does this start to explain why the lawyers who hate lawyers do so with a passion reserved only for lawyers?).
""It does teach them, I think, that law in the courts is really different from the law in the lawbooks. It's essential for people to figure out, if they want to be litigators, that much of what you need to know is not written down anywhere. You can only learn it by going to court," Owen said. "It's not always reassuring."
My argument is the Court of Criminal Appeals didn't comply to the holding of the Supreme Court decision," said Jordan Steiker, Smith's lawyer.

"It's not unheard of, but not common either," Erwin Chemerinsky, a Duke University law professor who urged the justices to take Smith's case a second time. "Usually when it happens, the Supreme Court does not take well to what they regard as disobedience by a lower court." ***
"The United States Supreme Court said this is constitutionally inadequate and the Court of Criminal Appeals and Texas say that's wrong," Victoria Palacios, a Southern Methodist University law professor who teaches capital punishment matters, said. "But you can't disagree with the Supreme Court when the Supreme Court is interpreting the federal Constitution."
Steiker, a University of Texas law professor, appealed again to the high court.
"The Texas Court of Criminal Appeals invented a ground to try to thwart the Supreme Court's ruling," said Chemerinsky, whose brief urging the Supreme Court review Smith's case a second time was filed on behalf of four retired federal judges.
A decision could affect as many as 47 of the state's 390 death row inmates and clarify a murky corner of capital punishment law. *** In 2004, the high court ordered the Texas Court of Criminal Appeals to fix the sentencing problem.

The state court demurred, ruling instead that Smith did not deserve a new sentencing hearing because the constitutional problem was "harmless" and didn't strongly influence jurors.
Only one judge dissented.

"Our judicial power does not include the power to . . . ignore orders from the Supreme Court," Judge Charles Holcomb wrote. "Reversed means reversed."
The 8-1 ruling shocked legal scholars. The Supreme Court had delivered its message to Texas in a "per curiam" opinion — an unsigned order reserved for issues that the court deems unambiguous.

"It's one way of saying the resolution of this issue is pretty darn obvious," said Allan Ides, professor of constitutional law at Loyola Law School in Los Angeles.
The Texas ruling smacked of hostility toward the Supreme Court, Ides said.

"To me, it seems as if the (Texas) court is simply saying, 'We're going to do what we want, and we're going to find some clever way to write around it' — and it wasn't that clever."
It is rare for a case to make it to the Supreme Court, which has accepted only 64 of about 8,000 appeals so far this term, continuing a downward trend from the 1980s. It is even rarer for a case to make a second appearance, perhaps signaling that the high court has lost patience with its Texas counterpart, Ides said.

Ted Cruz, the state solicitor general who will argue the Smith case on the Texas court's behalf, said the judges faithfully tried to adhere to a rapidly changing, sometimes contradictory, line of Supreme Court reasoning.

The Texas judges "are serious, principled jurists who have strived over the past two decades to faithfully apply the Supreme Court's rapidly evolving capital punishment jurisprudence," Cruz said.
NB. Is the ability (perhaps it is a condition?) of thinking it wrong to seek the death of another human being a unique, if not the unique quality that makes us human? Where does this come from?

Dahlia at Slate Argues well, On What I Would Call "Bush Wars":
The object is a larger one, and the original overarching goal of this administration: expanding executive power, for its own sake.***claims about Padilla's dirty bomb, known to be false, were a means of advancing their larger claims about executive power. And when confronted with the possibility of losing on those claims, they yanked him back to the criminal courts as a way to avoid losing powers they'd already won.***The endgame in the war on terror isn't holding the line against terrorists. It's holding the line on hard-fought claims to absolutely limitless presidential authority.

Enter these signing statements. The most recent of the all-but-meaningless postscripts Bush tacks onto legislation gives him the power to "authorize a search of mail in an emergency" to ''protect human life and safety" and "for foreign intelligence collection." There is some debate about whether the president has that power already, but it misses the point. The purpose of these signing statements is simply to plant a flag on the moon—one more way for the president to stake out the furthest corners in his field of constitutional dreams.
Nb. She backs up her conclusions with facts.
The Fundamental Nature of Our Legal System, One Govt Official and Detainees' Counsel;

Is This A Dirty Trick? (The V Conspiracy)

More on Your Mail, (Post)

Dems and the War Prisons from Boston Globe,

And in Prisons on this side of the Pond: (NYT Op by Bernard E. Harcourt, a professor of law and criminology at the University of Chicago, is the author of “Against Prediction: Profiling, Policing and Punishing in an Actuarial Age". Ends like this--
However, prisons are not the only institutions that seem to have this effect. In a recent study, I demonstrated that the rate of institutionalization — including mental hospitals — was a far better predictor of serious violent crime from 1926 to 2000 than just prison populations. The data reveal a robust negative relationship between overall institutionalization (prisons and asylums) and homicide. Preliminary findings based on state-level panel data confirm these results.

The effect on crime may not depend on whether the institution is a mental hospital or a prison. Even from a crime-fighting perspective, then, it is time to rethink our prison and mental health policies. A lot more work must be done before proposing answers to those troubling questions. But the first step is to realize that we have been wildly erratic in our approach to deviance, mental health and the prison.
Sure is curious: Fifth, Hiding Reversals? (Decision of the Day/Robert Loblaw) U.S. v Martinez (Jan.12, 2007)(6th Am., Confrontation Cl., harmless error)

Check The Volokh Conspiracy, Robert Loblaw, Doug Berman, Howard Bashman, Corey Young, for interesting and groundbreaking stuff this weekend.

Update on Groundbreaking Stuff, (and this is not all or least, but is last--for now):

DNA Collection Challenges from Doug Berman

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