Saturday, February 24, 2007

Oh By the Way

Zblogger, aka "Major" Mori Goodbar (the author of this blog) has gotten a "job" and will be posting just bit less frequently than in previous weeks, for now. Please excuse the temporary absences from the blogosphere. And thank you for your support (!)

What motivates you? Why do you work? And what do you do in all that downtime afterwards?

Are you just happy sitting around, watching b**bs on the toobs?

Do something to help your neighbor, your community, your country.

Just say "No" to sloth.

Bring those troops home, for one.

And two, today, right now, help save the life of somebody in my little town of Brunswick Maryland: Crystal Downs (Please call 301-834-5100 for Crystal's story and how you can help save her life. Please.)


"Major" Mori On Rita,

The Texas style system allows for too much disparity, and does so by preserving unfettered discretion. This opens the door to too much liklihood of abuse(s) of that discretion.

The discretion must be bounded by some rules, aka guidelines, that are objectively reasonable and barring the "objective"(ness), at least reasonable to a reviewing court. Defendants, and the public held accountable to the laws, must know to a reasonable certainty what they are facing when they take a case to trial, vis a vis taking the plea. This mechanism or aim achieves the "uniformity" sought (which is impossible to achieve but a thing to seek after nevertheless). Obviously too much uniformity is something that needs to be avoided equally as much as too much discretion.

I would just add, after reviewing transcripts, that a presumption of reasonableness would not be the best way to handle this. De novo reasonableness review enables the courts to preserve the desired discretion, and avoids giving the appearance that district decisions would be presumptively upheld.

Also, that avoids the incongruous conclusion, or appearance of a conclusion, that the district court's findings of facts are given a presumption, where those findings were actually in the nature of "legal" conclusions derived from interpretation(s) of the guidelines. That is really what must be left up to reviewing courts to decide, de novo of course, as a matter of law. [Major Mori]

The oral argument transcripts for Rita are now available online. On a quick first read, something interesting jumped out at me. Justice Scalia seems to be constructing an argument that a specialized form of Sixth Amendment violation happens when appellate courts review sentences: [SLP, Ron Wright]

The Supreme Court ruled on Wednesday that an individual filing a civil rights lawsuit claiming a false arrest by police must sue within a time period that begins to run at the time of detention, not after any resulting conviction or sentence has been overturned. This requires plaintiffs to file considerably earlier than they would have preferred, and perhaps before their claim has matured or been strengthened through a successful appeal of a conviction.

Justice Antonin Scalia wrote for the majority. There were two Justices in partial dissent. The case was Wallace v. Kato (05-1240, download here). In that case, the statute of limitations for filing a civil rights claim was two years, under Illinois law. [SCOTUSblog]

Justice is Coming to Dallas?

Now that's what I call MONEY, and I don't mean coinage, but changing direction the right way.

From Morning Edition, NPR (2/23) (Wade Goodwyn) Some clips for future reference:

"Dallas' new district attorney, Craig Watkins, says he will open his files to the Innocence Project and work with the group to examine hundreds of cases over the past 30 years. The goal is to see whether DNA tests might reveal wrongful convictions. *** Watkins was elected the first black district attorney in Texas.***

"It's a whole different world in the Dallas criminal justice system," says defense attorney Gary Udashen. "It is a world where if a client of ours is innocent, we feel like there's openness in the District Attorney's office to hear what we have say, to look at what we have to show them, where we don't anticipate resistance every step of the way."

Udashen's firm alone has had seven Dallas clients who were convicted, sent to prison, exhausted their appeals and then ultimately — with the pro bono help of Udashen and his colleagues — were found to be innocent. ***Udashen says that Watkins has decided that defending wrongful convictions is not going to be part of the job.***

So Watkins is opening his files to the Texas Innocence Project. North Texas law students supervised by seven veteran former prosecutors and criminal defense lawyers will begin deciding which cases merit further investigation.

"In a state that is a national hotspot, Dallas is the hottest of the hotspots in state right now," says Jeff Blackburn, the Innocence Project's Texas director. "What'd happened in Dallas is that a lot of samples, unlike other any other parts of the state, were preserved, and they're still there."***

It would be safe to say that right now Dallas is on the edge of opening up in a very revealing way what the system in Texas is really all about," Blackburn says.

Tuesday, February 20, 2007

Measure of a Nation

The measure of a nation, as much as the measure of a man, is the ability to hold true under pressure to universal truths of decency and humility.

Executive authority strains most vigorously against its constitutional restraints in times of war and in matters of human liberty. Both Washington and Lincoln faced precisely these dilemmas, and resolved them without compromising America's dignity or reputation.

Read more of this, here. (The Nation, via How Appealing)

Saturday, February 17, 2007

Crow's Nest

Prof. Berman, SLP, (Friday, 2/15)

"mentioned in this post that there was an extraordinary exchange between Justice Kennedy and members of the Senate Judiciary Committee on sentencing issues during Justice Kennedy's testimony before the Committee yesterday. (This exchange has gone mostly unreported, except by Jan Crawford Greenburg here). After watching the video again, I though(t)(sic) I would flag (and put in bold) Justice Kennedy's very first statement: "I am not comfortable with anything in the federal correctional system and with our sentencing policy."

As noted here, the Claiborne and Rita cases to be argued next week have a lot to do with the "the federal correctional system and with our sentencing policy" beyond just Sixth Amendment issues. Thus, as with so many other cases, Justice Kennedy is clearly a key voice and vote to watch in Claiborne and Rita.

It is also interesting to speculate how some of Justice Kennedy's other comments might color his cert vote in a case like Berger, in which a first offender is challenging a 200-year prison sentence for possessing child pornography as a violation of the Eighth Amendment (details here). Back in 1991, Justice Kennedy wrote the key plurality opinion in Harmelin that has largely ensured the Eighth Amendment now provide little or no limit on the length of non-capital sentencing terms. I wonder if Justice Kennedy might be inclined to take up Berger to provide a 21st century spin on the doctrine.

Because of this, I think I know what some lucky DOJ staff attorneys will be doing this weekend. Cancel that trip to the Bahamas, for now.

Friday, February 16, 2007

Irresistable, but Hopefully not Strongly Resisting

"The snow is going to melt in the Hindu Kush mountains, and when it does we can expect fierce fighting to continue."
PRESIDENT BUSH, on the Taliban threat in Afghanistan.

Guess where this came from: Little Apple, Old Yorktown (sans the ville) and what happens when you watch the clocks. Could that be, ... click here to see.

"as the debate in Congress shifts from nonbinding resolutions of disapproval for adding troops in Iraq to attaching conditions on funding for the war, a constitutional clash between the legislative and executive branches may be inevitable, say lawmakers and legal scholars with close ties to the administration." Source:

The President has said:

"They have the right to try to use the power of the purse to determine policy," the president told editors of the Wall Street Journal recently, in an interview that took some of his strongest conservative supporters by surprise.

David B. Rivkin Jr., a White House lawyer in the George H.W. Bush and Ronald Reagan administrations, described the proposed congressional restrictions as the "epitome of micromanagement."

Walter E. Dellinger III, Assistant Attorney General under President Clinton, said he is baffled by such arguments. "Although it does not become law, how can it possibly be considered meaningless for each house of the Congress to exercise the view in a formal recorded vote that a planned addition to U.S. forces is a mistake?" he said. "I think that the framers of the Constitution would be astonished that a president would proceed to increase U.S. involvement in a foreign war over the expressed objection of both houses of Congress."

Who gets the last word? Stay tuned.

Thursday, February 15, 2007

Better Alternatives to Prison Wanted

Detailed in this press release, The Pew Charitable Trusts today released an important new report entitled "Public Safety, Public Spending: Forecasting America's Prison Population 2007-2011." The press release has this description of the reader-friendly report (which is available here): (thanks to Prof. Berman)

By 2011 one in every 178 U.S. residents will live in prison, according to a new report released today by the Public Safety Performance Project of The Pew Charitable Trusts. Public Safety, Public Spending: Forecasting America’s Prison Population 2007-2011 projects that by 2011 America will have more than 1.7 million men and women in prison, an increase of more than 192,000 from 2006. That increase could cost taxpayers as much as $27.5 billion over the next five years beyond what they currently spend on prisons.

"As states continue to struggle with tight budgets and competing priorities among health, education and safety, they are beginning to question whether huge additional investments in prisons are the most effective and economical way of combating crime," said Susan Urahn, Managing Director of State Policy Initiatives at The Pew Charitable Trusts. "The challenge for state policy makers is to ensure that taxpayers are getting a strong return on their investment in corrections: safer communities, efficient use of public dollars, and ex-offenders who become productive, law-abiding members of society."

Some recent related posts are available at Prof. Berman's: (hat tip)

Wednesday, February 14, 2007

Important Judiciary Initiative

Here is most of the announcement of the Georgetown Law Center regarding an important project on the judiciary. Particularly interesting, I thought, are the "interactive online product" for secondary school students, and "innovative technology" legal writing components:

WASHINGTON, D.C. - Georgetown Law Dean T. Alexander Aleinikoff is pleased to announce the establishment of the Sandra Day O’Connor Project on the State of the Judiciary at Georgetown University Law Center. The project will continue the work of "Fair and Independent Courts: A Conference on the State of the Judiciary", held at Georgetown Law in September 2006 and co-chaired by Justices O’Connor and Stephen Breyer.

"I am very pleased that Georgetown Law will partner with me in educating the public about judicial independence," said Justice O’Connor. "As a judge, it is critical to me that we help people understand the importance of a fair and independent judiciary in a constitutional framework."

"The Sandra Day O’Connor Project aims to be a valuable resource in increasing public confidence in the judiciary," said Aleinikoff. "We are delighted that the project can support Justice O’Connor’s work as a strong voice for judicial independence, both as a member of the Supreme Court and now as a retired justice."

Project plans include:

• Circulating the recommendations of the conference participants to all state Supreme Court chief justices and federal judges.
• Publishing the conference proceedings and scholarly background materials. A conference DVD is also being produced.
• Planning regional conferences in Dallas, Atlanta, Chicago and other venues in cooperation with the William H. Rehnquist Center at the University of Arizona School of Law and local law schools and bar associations.
• Developing an interactive online product for secondary school students on the role of the Third Branch with the Sandra Day O’Connor Law School of Arizona State University. Georgetown Law Professors Julie O’Sullivan and Diana Donahoe are employing innovative technology designed by Professor Donahoe for her new online legal writing instruction course.
• Monitoring developments in the 110th Congress related to federal judicial salaries.
• Planning a conference at Georgetown Law on state court judicial selection and elections to be held in the fall of 2007. Additional panel discussions and symposia on judicial independence topics are also being planned and will be co-hosted with associations and groups including elected officials, the business community, attorneys and bar groups.

A steering committee will guide the work of the O’Connor Project. Members of the committee, along with Justices O’Connor and Breyer, include Aleinikoff; former Solicitor General Theodore Olson; former Sen. Warren Rudman (R-N.H.); Larry Thompson, General Counsel of PepsiCo and former Deputy Attorney General; former White House Chief of Staff Kenneth Duberstein and three state Supreme Court chief justices. Meryl Justin Chertoff, project director for the "Fair and Independent Courts" conference, will serve as director of the O’Connor Project.
(hat tip: SCOTUSblog)

Et tu Texas? How bad is this?

Check this out (Chronicle, of Houston, "we have a problem" and it's been going on too long):

What happens in the majority of cases with court-appointed counsel looks more like this: During a morning docket call, shackled herds of defendants charged with felony crimes receive a court-appointed attorney who confers with them less than five minutes. The defendants are informed of the plea offer from the prosecutor and told that they have until noon to accept it or face a more punitive recommendation. The attorney knows next to nothing about the facts of the case and has no knowledge of the life of his new client, but tells him he has negotiated the best possible deal. This assembly line process is designed to clear cases from a crowded docket and occurs in the context of the assumption of guilt and is largely controlled by the prosecutor.

It is not a process for the discovery of truth and the doing of justice. Indeed, there is no doubt that the unintended consequences of this process include the conviction of innocent persons.

Money budgeted by counties for court-appointed legal counsel should be diverted to the operation of the public defenders office. The inherently inequitable process in which judges are authorized to appoint legal counsel should be abolished.

and check out related posts here.

Wednesday, February 07, 2007

People Talking About Making Babies Making More News in Maryland: At What Point Do We Call That Rape?

Mel Feit, executive director of the National Center for Men, a male-advocacy group based in Old Bethpage, N.Y., says biology is a factor. "At a certain point during arousal, we don't have complete control over our ability to stop," he says. "To equate that with brutal, violent rape weakens the whole concept of rape." His group has created a "consensual sex contract" to be signed before intercourse.

Victims' rights activists don't buy the loss-of-control argument. "It's insulting to men to say they can't stop," says Lisae C. Jordan, legislative counsel for the Maryland Coalition Against Sexual Assault. "Any one of us who's had a toddler walk in on them knows that that's not true. Or a teenager who's had a parent walk in--they stop pretty quickly." Still, even advocates concede it's hard to set a time frame in which sex must cease after consent is taken back. "I don't know where that bright line is," says Scott Berkowitz of the Rape Abuse and Incest National Network. "We'll leave that to juries to decide what's reasonable in each case."


UPDATE: There are quite a few interesting comments on this here, at Talk Left.

In Theory

This post slakes my thirst for

"legal theory":

from Reproductive Rights Prof blog

Mitchell Berman on Originalism and Abortion

Berman_mitchell Mitchell N. Berman has posted Originalism and its Discontents (Plus a Thought Or Two About Abortion) on SSRN. Here is the abstract:

In Abortion and Original Meaning, Jack Balkin presents a new argument, based on his reconstruction of the principles that animated the Fourteenth Amendment, for the soundness of the result, though not the reasoning, of Roe v. Wade. That argument, however, serves the “larger purpose” of demonstrating “why the debate between originalism and living constitutionalism rests on a false dichotomy.” Once we “reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application,” Balkin contends, we ought instead to agree that “constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text.” In maintaining such fidelity, moreover, “[e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time.” It follows, Balkin claims, that “[t]he choice between original meaning and living constitutionalism ... is a false choice.” This short reply essay, to appear in a symposium devoted to Balkin's article, argues that Balkin mischaracterizes contemporary originalism and that his “false choice” claim cannot be maintained.

Sunday, February 04, 2007

Beam Me Up, "Scottie"

Clashing Perspectives On Habeas Corpus in the “War on Terror”--The Constitution versus the Statute: The Constitution and a law that spells out the reach of habeas corpus sparked an exchange between Attorney General Alberto R. Gonzales and the senators. Although everyone -- including, apparently, the attorney general -- agrees the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right. That is the focus of a bill before Congress as well as cases involving "enemy combatants" headed to the Supreme Court.

The senator incorrectly said the Supreme Court had already ruled the Constitution protects the habeas rights of detainees at Guantanamo.
Gonzales responded by suggesting the Constitution does not protect habeas corpus at all.

"The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away," he said.

Boy, talk about offering a mile and taking an inch...

"Now, wait a minute," Specter interrupted. "The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus?"

Lawyers delicately tried to explain what the attorney general meant. "This didn't come out as cleanly and crisply as we might have hoped," said one, who spoke on the condition that he not be identified. "The question is not whether Americans have a right to habeas corpus. That is undisputed. What's at issue is the scope of the right."

Precisely. The poem about the cake comes to mind . Little by little, bit by bit, crumb by crumb, the whole cake was gone. David G. Savage, Los Angeles Times, for the factual reporting. The opinion is wholly “my bad.” That's a “Rosy Original” if I ever heard one. Anybody know if she kicked Donald's ass yet? Because if anybody can it's her.

Relatedly (stole this good adjectival non-word from Prof. Berman) how does the Spectrum of Abstraction,“Alice in Wonderland” stuff from my posts here tie together? The scope of habeas is as related to its application as flies gathering on a steaming summer day. Gutting habeas by shrinking the standard of review (via the unconstitutional provisions of AEDPA) into the size of a pin-head (-hole?) is a lot like shaving the “scope” which is not too unlike “saving face” (or that other smooth part of the baby). Of course there's Congress, and there's the Constitution. Who wins? Tune in, read on, you won't be disappointed!

Saturday, February 03, 2007

En - "lightning" On "Cruel and Unusual"

"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."

Justice Potter Stewart, Furman v. Georgia (1972).

It really is morbid not just because morally questionable but also because that bad bankroll represents a huge and wacky enchilada of opportunity costs diverted from fighting injustices on many other fronts including wrongful convictions, education, probation, treatment and parole, DNA analysis and, of course, Non-Death Penalty Habeas Corpus. Prof. Berman notes excessive numbers of capital cases on the Supreme Court's ever shrinking docket. ACS Blog's Martin Magnusson has this piece, "The Dominance of the Death Penalty on the Decreasing Supreme Court Docket” echoing concerns about a SCOTUS docket "filled with criminal cases that have no impact on the vast majority of American inmates."

Also review Coker v. Georgia, 433 U.S. 584 (1977) (the Supreme Court held that the Eighth Amendment categorically prohibits the death penalty for the crime of rape of an adult woman) and the syllabus:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery. The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded.
Capital punishment for sex offenses is not just of historical interest. A number of states (mostly southern states) have enacted or are actively debating making some child rape offenses death-eligible. In August 2003 Patrick O. Kennedy was sentenced to Louisiana's death-row for the rape of an eight-year-old child. Litigation over the death penalty for child rape seems like a certainty over the next decade. (Prof. Berman's SL&P). Before Furman, “as a practical matter, the death penalty had nearly withered away for crimes other than murder and rape. From 1930 to 1967, over 3,300 persons were executed for homicide, 455 for rape, and only 70 (or less than 2% of the total) for all other non-homicidal offenses, including robbery, burglary, attempted murder, kidnaping, assault by a life-term prisoner, carnal knowledge, espionage, assault with intent to rape and accessory to murder. In this era, executions for rape were carried out exclusively in the Southern states (including the border states of Oklahoma, Missouri and Delaware), and they were carried out predominately on black men convicted of raping white women. Of the 455 rapists executed, 405 (89%) were black. Prof Marvin Wolfgang's research on the death penalty for rape, reported as "Racial Discrimination in the Death Sentence for Rape" in William Bowers's Executions in America (1974), showed that over one-third of black defendants convicted of raping white victims received death sentences; in all other racial combinations of victim and defendant, only 2% received death sentences. Struck by Lightning: Louisiana's Electrocutions for Rape in the Forties and Fifties by Burk Foster (September 1996). (Appeared in Lane Nelson and Burk Foster, Death Watch: A Death Penalty Anthology, Upper Saddle River, NJ: Prentice Hall, 2001, pp. 188-207. Originally appeared in The Angolite, September/October 1996, pp. 36-47.).

Thursday, February 01, 2007

Slouch Sloth

I have not been a complete, utter, and undiminished sloth but reading, and have noticed that I'm not on the BIG roll over at PD Stuff but adjusted into Friends of the Family. Works for me! It was much too much and undeserved for me to be up there with Judge Skelly and the other colossus(es--ii?). It's all good as they say, and happy winter--it did arrive for a bit anyway.