A Bit of History

Here, we have the foreblawgers. HT: How Appealing

Why The Confession? Come to Papa

Check out this case, a rare instance in which the Government is actually caught red-handed obtaining a false confession. How many other confessions are false, but cannot be proven to be false? If the pilot had never inquired about his tranceiver Higazy would still be in jail. HT: How Appealing.

Here is the final ruling, which Howard Bashman points out is controversial due to fact that the court sought to restrict access to the original ruling. Curiouser and Curiouser.

DNA Releases Another Innocent Prisoner

Here is a link to a story of exoneree in New York, Jeffrey Deskovic, released last year, incarcerated since he was sixteen. I feel his pain.

Ball's Blue?

This certainly looks interesting!
Happy Turkey Day, y'all. (HT Grits)

As does this, Holiday Reading, thanks to Doc Berman:

American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman III

Abstract: This essay is an invited response to Professor Ronald Wright's impressive study of the fact that the acquittal rate in federal criminal trials is declining even faster than the rate of trials themselves, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005). The essay concurs with Professor Wright's conclusion that one significant factor driving down both federal trial and acquittal rates is the government's use of the markedly increased bargaining leverage afforded to prosecutors by the post-1987 federal sentencing system consisting of the U.S. Sentencing Guidelines interacting with various statutory mandatory minimum penalties. It offers some additional evidence in the form of statistical data and personal experience supporting that conclusion.

However, the essay goes on to wonder whether Professor Wright's proposed explanations for the disproportionate decline in federal acquittal rates capture the whole story. It suggests that part of the explanation for both the continuing decline of trials and the disproportionate decline in acquittals may be the gradual extinction of true trial lawyers, particularly in U.S. Attorney's Offices. The essay concludes by expressing concern that the decline of trial lawyers may be having deleterious affects on the justice system as a whole.

And this, also reported widely already:

As detailed in this AP report, "Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate." Though the outcome itself is noteworthy, the legal theory behind the ruling in Mann v. Dept. of Corrections (available here) is particularly interesting and could garner US Supreme Court attention: the court finds a takings problem with the law. Here is a key paragraph from the ruling:

Looking to the magnitude and character of the burden OCGA § 42-1- 15 imposes on the property rights of registered sex offenders and how that burden is distributed among property owners, Lingle, supra, 544 U.S. at 542; see also Mann, supra, we conclude that, under the circumstances present here, justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be "spread among taxpayers through the payment of compensation." Lingle, supra at 543. We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant's property without just and adequate compensation. Accordingly, we reverse the trial court's ruling denying appellant's request for declaratory relief in regard to the residency restriction.

That's Grits

From Grits,

Sign Our Judicial Complaint Against Judge Sharon Keller

If you are as shocked as we were by Judge Sharon Keller saying "We close at 5" and refusing to accept an appeal 20 minutes after 5 PM by lawyers representing a man about to be executed, then sign on to this complaint. We will submit this complaint to the State Commission on Judicial Conduct on November 16, 2007, which is also the day we will have a protest at the Texas Court of Criminal Appeals at 4:45pm. Anyone can sign the complaint. In order for your name to count on the complaint for the submission, you must provide all the requested contact information, including your phone number and occupation. If you would like to download a copy of the complaint for your records, click here.

If you would like to help us with a donation, please click the button to the left or send a check made out to Texas Moratorium Network to 3616 Far West Blvd, Suite 117, Box 251, Austin, Texas 78731. Donations are not tax-deductible. If you have questions, please call 512-302-6715.

SCOTUS FOCUS

The January Calendar is here (thanks SCOTUS blog!)
Seven of the twelve so far scheduled are clearly criminal law cases, including the lethal injection case.

Here is a link to the Fourth Amendment case: the State High Court was right on this one. If the states refuse to provide a remedy for a violation of state law, law that is "within the scope or reach" of the constitution, then they must be held to it. The states should not re-write the fourth amendment and then fail to enforce their own revision.

The Gitmo Detainee Cases march on: here is link to reply briefs.

The fallout from Carey v Musladin is beginning to hit the ground, as seen here, in a brief in opposition to certiorari, involving defendant's habeas relief under either Cronic or Strickland. The brief does an exceptional job of clarifying the notion of "clearly established law"... as well as the distinctions among Hill, Cronic, Strickland lines of ineffectiveness of assistance of counsel claims.

Finally, here's one for the Crow's Nest. GPS Tracking could-go-all-the-way-

Wild Guesses -- Riding Bareback

Two models of the presidency are at odds, one whose founding father was George Washington, the other whose founding father was Richard Nixon. Under the aegis of Dick Cheney, who considered the scandal in Watergate to be a political trick to topple Nixon, the original vision has been entrenched and extended. Cheney is the pluperfect staff man, beginning as Donald Rumsfeld's assistant in the Nixon White House, and was aptly code-named "Backseat" by the Secret Service when he pulled the strings in the Ford White House as chief of staff. For Cheney and the president under his tutelage, eagerly acting as "The Decider" on decision memos carefully packaged by "Backseat," the Constitution is a defective instrument remedied by unlimited executive power.

Who wrote this?

Where was it published?

Hint: (Sidney Blumenthal is joining the Hillary Clinton campaign as a senior advisor, and this is his last column for Salon.)

Update -- More good stuff here: In ways that Nixon did not achieve, Bush has reduced the entire presidency and its functions to the commander in chief in wartime. And in order to sustain this role he has projected a never-ending war against a distant, faceless foe, ubiquitous and lethal. Fear and panic became the chief motifs substituting for democratic persuasion to engineer the consent of the governed, and here

So vital is torture to the imperial presidency that Bush staked the nomination of his new attorney general, Michael Mukasey, on his refusal to oppose a ritual designed during the Spanish Inquisition to purge sinful heresy: waterboarding. Were Mukasey to have called waterboarding torture, as it surely is, he would have been obligated to prosecute those responsible for war crimes. also here,

On Oct. 25, Sen. Dick Durbin of Illinois received written responses from Mukasey to questions he had submitted. In one question, Durbin asked about a report that Mukasey had met with unnamed conservative figures to discuss his legal views and allay any misgivings they might have.

The list of names extracted from Mukasey by Durbin passed by unnoticed in the controversy. Mukasey revealed that on order of "officials within the White House" he sat down with six prominent right-wing leaders, whose gathering constituted a de facto subcommittee of the "Inner Party" of the conservative movement. Those present were Reagan's attorney general, Edwin Meese III; former Reagan and Bush I legal officials Lee Casey and David Rivkin; the executive vice president of the Federalist Society, Leonard Leo; the president of the Ethics and Public Policy Center, Edward Whelan; and the chief counsel for the American Center for Law and Justice (founded by Pat Robertson), Jay Sekulow.

Mukasey's meeting with this group at the insistence of the White House amounted to a supra-official confirmation hearing. The incident demonstrates that the Bush imperial presidency is a central tenet of the permanent elite of the party extending beyond his administration. Politicizing paranoia, subsuming intelligence by ideology, purging and deputizing prosecutors, dismissing law by fiat (signing statements) and holding in contempt checks and balances are not temporary measures. It is no accident, as the Marxists (or neoconservatives) say, that President Bush will address the 25th anniversary gala of the Federalist Society on Thursday.

and finally,

Now, on a personal note, I have reached the end of my critique of the Bush administration, having elaborated it for years. (In fact, my book on "The Strange Death of Republican America" will be published in April 2008.) As events continue to unfold there will undoubtedly be many more things to say about Bush, Cheney, their administration and the Republican field. But given the momentous stakes, I have decided that nothing is more important than committing myself wholly to the outcome. Therefore, beginning here, the tone changes.

Readers know of my background in the Clinton White House. (See "The Clinton Wars.") They are familiar with my long friendship with Sen. Hillary Clinton. When she recently asked me to join her campaign as senior advisor I felt I must accept, though not out of obligation but, rather, wholeheartedly. There will be other times and places for me to explain how I have seen her grow into the person I now feel is best qualified and suited to restore the presidency, an office I observed and participated in for four years and about whose nature, I know from working closely with her, she has a deep grasp.

I believe that the reason the Republicans have promoted the talking point that Hillary is unelectable is that they fear that more than any other candidate she can create a majority coalition, win and govern. They fear more than loss in one election; they fear the end of the Republican era beginning with Nixon. They know that she has the knowledge, skill and ability to govern. They know that she has already taken everything they can throw against her and is still standing.

Just as the disintegration of the Democrats brought about the rise of the Republicans, the collapse of the Republicans has created an opening for the Democrats. But the Democrats have been victims of their own false euphoria, sanctimony and illusions before. Now, only the Democrats can revive the Republicans. Nixon, Reagan and Bush were all beneficiaries of Democratic disarray and strategic incompetence. The Democrats have snatched defeat from the jaws of victory before and it can happen again, even under these circumstances, when history is turning the Democrats' way.

The Democrats at key junctures have been seduced by the illusion of anti-politics to their own detriment. Anti-politics upholds a self-righteous ideal of purity that somehow political conflict can be transcended on angels' wings. The consequences on the right of an assumption of moral superiority and hubris are apparent. Their plight stands as a cautionary tale, but not only as an object lesson for them. Still, the Republican will to power remains ferocious. The hard struggle will require the most capable political leadership, willing to undertake the most difficult tasks, and grace under pressure.

More on Moratorium on DP

Here is a good link to discussions about the recent developments in SCOTUS and the death penalty.

Re: Thinking Age of Consent

Food for thought here:
If nothing else, the article points out how the sex offender laws are netting individuals who have not traditionally been thought engaged in criminal behavior.

UPDATED

And here, about how the laws are ineffective.

Also here, describing how the "worst of the worst" fare in Virginia.

"quis custodiet ipsos custodes?"

- "Who will guard the guards?" wrote the Roman poet Juvenal. Citing numlerous instances of CEO robbing the public coffers with huge payoffs to self after losing billions of shareholder $$$, so also asks William Lerach, Plaintiff's lawyer and shareholder advocate, here, as he prepares to go to jail to serve a one year sentence for boldly stepping over the line in his advocacy, as he put it:

in my zeal to stand up against this kind of corporate greed over the years, I stepped over the line. It turns out that the legal system is a lot tougher on shareholder lawyers than it appears to be on Wall Street executives.

Criminal Justice Reform Could Go All The Way

WHAT: WHEN: WHERE: WHO:	Policy & Media Briefing on Release of Unlocking America November 19, 9:30-11a.m. National Press Club, 529 14th Street, NW 13th Floor, Washington, D.C. Moderated discussion with nationally syndicated columnist Clarence Page. Panelists to include:
			James Austin, President, JFA Institute Devon Brown, Director, Washington, D.C. Department of Corrections Marc Mauer, Executive Director, The Sentencing Project Dr. Fred Osher, Director, Center for Behavioral Health, Justice, & Public Policy, University of Maryland Dr. Michael Pinard, University of Maryland, School of Law Christy Visher, Research Associate, Urban Institute

Catching Up to Child Porn in Scotus

WASHINGTON — The Supreme Court appeared open Tuesday (10/30) to arguments that a law intended to criminalize the advertising of purported child pornography is constitutional and would not cover promotions of Lolita and American Beauty, as challengers say.

The 2003 law arises from Congress' effort to staunch the demand for child pornography and save the children exploited in the creation of the illegal materials. It makes it a crime — punishable by at least five years in prison — to advertise, promote or solicit materials purported to depict children engaging in sex acts.

A federal appeals court last year struck down the ban as overly broad in violation of the First Amendment free-speech guarantee. The court said the law could cover fake or non-existent porn offerings.

A lawyer for Michael Williams, a Florida man convicted under the law, says it could threaten the marketing of movies depicting adolescent sex. The National Coalition Against Censorship and other free-speech groups are backing him.

The Justice Department counters that the law targets solicitations that fuel the child porn market and would not cover ads about mainstream movies.

As the justices pummeled both sides with questions, they seemed torn on the reach of the law. Overall, the comments, particularly from swing-vote Justice Anthony Kennedy, suggested they may reverse the U.S. Court of Appeals for the 11th Circuit and uphold the law.

By Joan Biskupic

USA TODAY

Baze: Is Three Drug Cocktail Unconstitutional?

Here's how the New York Times has put the question:

The central question of Baze is: Does the Eighth Amendment bar an execution method that creates an unnecessary risk of pain and suffering, or does it merely protect inmates against the wanton infliction of pain and suffering?

If it’s the former, then the three-drug cocktail is probably unconstitutional, because states would not have a compelling reason to continue to use it. But if it’s the latter, then states could probably stick with the old deathly recipe, as long as someone on the execution team had the fortitude, after administering the first drug, to shake the inmate or look in his eyes, or otherwise make a passing attempt to see if the anesthetic took.

Crow's Nest

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