Monday, June 25, 2007

Crow's Nest:: Sentencing Developments

Though surely authored before Rita, the Fifth Circuit yesterday released US v. Walters, No. 05-51634 (5th Cir. June 21, 2007) (available here) reversing an above-guideline sentence because "the degree of departure in this case is substantial, and there must be more than mere lip service to the § 3553(a) factors to justify such a departure," and "the court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence." (June 22, SL&P)

Thursday, June 21, 2007

Actuarial Peril at Court

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits. In a similar vein, the Court upheld a death sentence in Washington by lessening the scrutiny applied to jury selection in such cases. Last week, the justices rejected an appeal by a prisoner who had filed his case before a deadline set by a federal district judge. Because the judge had misread the law and given the prisoner too much time—three extra days—the Court said that the case had to be thrown out.

Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.

All these conservative victories were decided by votes of five to four, with Kennedy joining Roberts, Alito, Antonin Scalia, and Clarence Thomas to form the majority. (The last big case outstanding this term is a challenge to school-desegregation plans in Louisville and Seattle. Based on the oral argument, Kennedy appears likely to join the same quartet in striking down the plans.) Kennedy holds the balance of power in the Roberts Court, much the way Sandra Day O’Connor did in the Rehnquist years. Kennedy is more conservative than O’Connor, so the Court is, too. He sided with the liberals in only one important case this year, when the Court ruled that the gases that cause global warming are pollutants under the Clean Air Act, a ruling that repudiated the Bush Administration’s narrow view of the law.


At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.

Jeffrey Toobin

Saturday, June 16, 2007

DNA Evidence Was "Massaged"

The final HPD lab report

The final report on the problems with the HPD Crime Lab and what needs to be done about it has been released. (Talk about the letting the Wolf tend to the Sheep: Not speaking of Bromwich of course, but of powers that be in Houston--read on)

Independent investigator Michael Bromwich outlined a series of steps he said officials should take to determine what role blood-typing and DNA evidence played in securing convictions against as many as 600 defendants -- including 14 already executed -- whose cases were processed at the Houston Police Department's crime lab between 1980 and 2002.

Police Chief Harold Hurtt, Mayor Bill White and Harris County District Attorney Chuck Rosenthal agreed that hundreds of cases will require further scrutiny and possibly new testing, but they rejected Bromwich's suggestion that a "special master" be appointed to oversee the process.

"We are committed to having a crime lab that the public and the criminal justice system can have confidence in," Hurtt said. "But we feel very strongly that ... we can accomplish what needs to be done without a special master."

Bromwich's recommendations were made in the final report on his sweeping $5.3 million investigation of the lab, where bad management, undertrained staff and inaccurate work -- first exposed 4 1/2 years ago -- has cast doubt on thousands of convictions and unsettled the criminal justice system in Houston and beyond.


Police and prosecutors already have begun their review, Hurtt said, adding that, in the absence of a "special master," the committee of community representatives that oversaw Bromwich's investigation, known as the stakeholder committee, will check on their progress.

The committee's presence, coupled with assistance from nonprofits such as the Innocence Project to represent defendants' interests, eliminates the need for an independent supervisor of the serology review, Hurtt said. Bromwich said the chief's plan could be an acceptable solution.

Barry Scheck, a founder of the Innocence Project, said his group will help but that a special master would be more effective.

"There is no other way to get to the heart of it," he said. "Obviously (we) will provide help, but it's just too hard."

Each questionable serology case will get the scrutiny needed, Rosenthal said.

"We are going to start notifying defendants through the courts that there's a possibility that something was done incorrectly in their cases," he said, "and we'll let the courts resolve that."

While the stakeholder committee could work, as Bromwich says, I agree with Scheck: It will be more effective with a special master. The simple fact is that however well motivated HPD and the District Attorney's office may be now, there needs to be someone in charge whose interests are independent of theirs. The Chron editorial puts it well:

Local officials understandably want to put the crime lab scandal behind them now that all the lab's divisions have been certified as satisfactory and are processing evidence. However, hundreds of convicts remain in prison, some more than a decade after trials in which evidence presented might have been erroneously tested. Many no longer are represented by lawyers and will need more assistance than a small advocacy group such as the Innocence Project, with limited resources, can swiftly provide.

Hurtt says the judicial system, including police, prosecutors, judge and jury, can bring justice to the inmates who might have been wrongly convicted. That would leave the matter of representing prisoner interests to the police department that made the case against them, the district attorney's office that prosecuted them or a small private group. That model does not guarantee impartial justice.

Bromwich, a former U.S. Justice Department inspector general, won national attention when he investigated problems at the FBI crime lab. At a news conference after the release of his report on Houston's lab, Bromwich agreed that adequate involvement by the stakeholder group could be a substitute for a special master in finishing up the crime lab investigation.

That will put a heavy responsibility on the volunteer, unpaid members to make sure the remaining cases are thoroughly investigated and not swept under the rug in the interest of saving money or jurisdictional expedience.

It's not that it's impossible for this to work without there being an outsider in charge, as the example of Dallas DA Craig Watkins shows. Of course, Watkins is basically an outsider, just one who has since gotten himself officially embedded. He has a mandate for what he's doing that neither Rosenthal nor Hurtt have. Let's get a special master and get this done. It really is the best way.

Grits has more and more on this. The final report itself is here (PDF).


Friday, June 15, 2007

Justice: Just One Vote Away From!

Here's Doc B:

In this new piece entitled "Low-Profile Supreme Court Case Offers Glimpse of Sharp Divide," Tony Mauro highlights a point that I noticed when reading today's 5-4 decision in Bowles v. Russell: the Justices seem to be deeply divided in nearly all criminal law cases these days. Here's excerpts:

[T]he low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term. Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004....

“This court has no authority to create equitable exceptions to jurisdictional requirements,” Justice Clarence Thomas wrote for the majority. Joining him were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito Jr.

In dissent, Justice David Souter was blunt and unforgiving. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.” He was joined by the other justices in the moderate-liberal bloc: John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.

“This is a doctrinal thing that only lawyer geeks and the Supreme Court care about,” says Kevin Russell of Howe & Russell in D.C., who authored a brief in the case on behalf of Bowles for the National Association of Criminal Defense Lawyers. “But you also see more frustration from the liberals on the court who are upset that the rules are changing just because the composition of the court has changed.”

Though I've not formally counted, I believe the vast majority of 5-4 splits this term have been in criminal law cases and most (though not all) have been the same 5-4 composition as Bowles.

As regular readers know well, the traditional divides do not hold to true to form in the Sixth Amendment cases. The deepening divide in other areas just makes more that much more eager — and that much more uncertain — about what to expect in Rita.

And a comment from George (HT SL&P/Berman)

federalist, "suspending" the writ is too mild. This flat out revokes it.

Aaron, that makes some sense. But why no outrage over this in FN 4? Not only the SCOTUS, but a freakin' clerk can suspend/revoke the Great Writ and the government gets off on a technicality.

4The dissent minimizes this argument, stating that the Court under-stood §2101(c) as jurisdictional “in the days when we used the term imprecisely.” Post, at 4, n. 4. The dissent’s apathy is surprising be-cause if our treatment of our own jurisdiction is simply a relic of the old days, it is a relic with severe consequences. Just a few months ago, the Clerk, pursuant to this Court’s Rule 13.2, refused to accept a petitionfor certiorari submitted by Ryan Heath Dickson because it had been filed one day late. In the letter sent to Dickson’s counsel, the Clerk explained that “[w]hen the time to file a petition for a writ of certiorariin a civil case . . . has expired, the Court no longer has the power toreview the petition.” Letter from William K. Suter, Clerk of Court, to Ronald T. Spriggs (Dec. 28, 2006). Dickson was executed on April 26,2007, without any Member of this Court having even seen his petitionfor certiorari. The rejected certiorari petition was Dickson’s first in thisCourt, and one can only speculate as to whether denial of that petitionwould have been a foregone conclusion.

It is near impossible to understand how the government would benefit and the defendant wouldn't if statutes were unable to override the Constitution. United States v. Curry is not a habeas corpus case and no one was imprisoned. No mention of the Great Writ in Scarborough v. Pargoud either. How can those writs equate to the writ of habeas corpus?

The Oxford Companion to the Supreme Court has this:

"Habeas corpus has certain important characteristics. For one thing, there is no statute of limitations regarding access to it, since the right of personal freedom from illegal restraint never lapses. Neither does one failure to secure the writ forbid later application, which means that the usual doctrine regarding the finality of court judgments (res judicata) does not apply to habeas corpus. In recent decisions, the Supreme Court has expressed it disapproval of multiple applications for the writ. Furthermore, unlike other legal actions, a relative or friend may petition for the writ in behalf of a person unable to apply on his or her own behalf. Called "the most important human right in the Constitution," Chief Justice Salmon P. Chase described it in Ex parte Yerger (1868) as "the best and only sufficient defense of personal freedom" (p.95).

What the hell happened? Now even a clerk can write and say you're a day late and a dollar short. No disrespect to any clerks, but there seems to be a great deal of disrespect for the Great Writ.

Thursday, June 14, 2007

Free Scooter? Free Everybody? Land of the Free!

No, all Libby did was lie under oath about some details of a campaign to smear opponents of the Iraq war. To such media luminaries as Time's Joe Klein, the whole idea of imprisoning Libby is offensive: "Do we really want to spend our tax dollars keeping Scooter Libby behind bars?" Klein asks.

This question, again, is being asked in a nation that has nearly 2 1/2 million people behind bars - a large proportion of whom committed crimes that were less morally reprehensible, and almost infinitely less damaging to the nation, than Libby's lies.

But to Joe Klein, Libby just doesn't "look" like a criminal. Somebody - perhaps Paris Hilton - should remind Klein that looks aren't everything.

Source: HT Doc Berman

An "inspiring snippet":

In the Petitioner's case, the imposition of the mandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....

If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.

The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here).

So then there is also this from the great Doc B:

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here). Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit. But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable. In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit. Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence? I am still scratching my head, but let me venture a few ruminations:

Tuesday, June 05, 2007

Mental Illness Crisis in the System?

From Crime & Consequences, an interesting manipulation of the facts (but what is "clarion call"? Is that, like, a seagull? Obnoxious, or inspiring?)

As discussed here, there's a lot of problems with the clarion call of a mental illness crisis in our jails and prisons. That said, a new article in this month's issue of Psychiatric Services has a notable finding: 92% of jail inmates in the study with diagnosed severe mental illness were non-adherent with treatment before their arrest. Furthermore, of those 92%, 72% had a prior arrest for violent crime. This study adds to a growing body of research suggesting that a subgroup of people with mental illness are more violent when compared to the general population.

Saturday, June 02, 2007

Booker Reasonableness Review Strikes Extreme Sentence

Observe for yourself here, how easy it is for even a judge to make unreasonable decisions in cases involving uncharged (sex) offenses. It seems, the very thought of a sex crime drives otherwise rational individuals to extremes of irrationality, if not unreasonableness.

Equally interesting is the interaction between uncharged and unrelated to the offense conduct and sentencing in these opinions and federal guidelines.

Libby's Politics

Here is John Dean, former Presidential counselor, taking exception to the slant Presidential wannabe Fred Thompson and the lineup of Republican heavies angling for a pardon at the "Libby Legal Defense Trust" have taken respecting the conviction and yes, the very prosecution itself. Mr. Dean suggests that far from being over, the truth will never be told because of Libby's efforts. And of course, who else but the VP would know that Libby is "the most capable and talented individual" he has ever known, as he stated here.

Apparently, this was one of those mysterious political prosecutions that never would have happened in any jurisdiction except here.

On June 5, U.S. District Judge Reggie B. Walton will sentence Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, who has been convicted of obstruction of justice, making false statements, and perjury, as the result of the Special Counsel investigation arising from the revelation of Valerie Plame's identity as a CIA agent. I suspect that Judge Walton's actions will create a difficult and delicate problem for the White House.