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.)

UPDATES:

"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]

Crow's Nest

Crow's Nest looks in the rear view and sees that he hasn't blogged in a day or two, for shame for shame. He has been a tad under the weather and taking care of some necessary business and has not had the time or the spirit. Before he say or reads anything else he will post the following old stuff from earlier in the week just to get it off the scratch pad and onto a more useful place.

He was looking forward to going to the Supreme Court Fellows Program tomorrow, titled "Judicial Independence: Drawing Lessons From History" but unhappily that does not look possible at this time (not due to ill health, thank goodness) (link here for info). He'll try to get some prepared remarks if they are available.

Now about the State of the Union, the best line was this one, from Sen. James Webb's designated Democratic response, paraphrasing, "if the President cannot be convinced to chart a new path in Iraq, we will show him the way." Amen!

SCOTUS decided Jones v Bock, Williams v Overton (consolidated PLRA /1983 cases from the 6th Circuit), important prisoner rights decisions, that with Monday's Cunningham decision leans in favor of prisoners rights, and against the grain of the "tuff on crime and criminals" trend. One supposes that either of these cases could easily have been decided the other way. There is more from SCT that I need to catch up on too. The syllabus is here. And the opinion here.

UPDATE: The opinion was unanimous, so maybe I spoke too soon and was being too cynical about the Court's inclination to be politicized, or results-oriented (so it could not have been decided any other way? How could the Sixth Circuit be so wrong on this? State's attorneys in the Fifth Circuit like to try to get the courts to ignore Leatherman and the simplified pleading rule in 1983 cases as well.). As Doug B suggests, maybe prison and criminal justice reform is morphing into the leading edge of civil rights issues of our time. I just hope, as I try to stay abreast of developments in the sex offender registration/restriction arena, that reform does not mean a continuation of the trend toward indifference and (stupidity is not too strong a word here) witchhunting that we have been seeing.

There seems to be an interesting Campaign Finance entry here at Electionlawblog (which might need to go over with my Poliblog); and

Also from SCT is U.S. v Atlantic Research Corp (link here for the SCOTUSblog entry) involving Superfund section 107(a) and PRPs "contribution" rights, which really needs to go over to my Brunswick/conservation place.

And once again, I can say with confidence that the reports of my early demise have been largely exaggerated. Whew! Grim Reaper, you need to be looking somewhere else, baby.

From the Crows Nest

Today is Attorney General day as the Post has one, two and three (not blind mice) items and NYT one on this topic.

Yesterday just listening to some commentatary on the Devlin kidnapping case from Missouri, I heard something to the effect that many people are looking for an early plea arrangement in order to avoid the trauma to the kids of testifying at a trial (so it is not as traumatic to just talk about it in private to the REALLY NICE prosecutors, who are VERY interested also in getting that plea).

So, in that view, a trial imposes trauma, and that's a good enough reason to enter a conviction on a plea. Do we no longer CARE whether the man is guilty? Sure, the facts of this case appear open and shut, but it isn't always like that.

Meanwhile, back at the ranch:

This from the Post Thursday on Smith and the Supreme Court death penalty cases is good:

It was death penalty day yesterday at the Supreme Court, coincidentally 30 years to the day since Gary Gilmore became the first person to be executed under the country's modern capital punishment laws.

The court heard three death penalty cases from Texas even as executions are on hold in an increasing number of states, from Maryland to California, and as the number of new death sentences continues to fall.

The work of the court so far this term shows that the complicated legal process that attends executing a murderer -- the balance of state laws and federal constitutional guarantees -- can take decades to unspool. Even a trip to the Supreme Court is sometimes not enough to settle the issue.

The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard yesterday.

The number of capital cases is not unusual for the court, those who follow the issue say. But because the justices so far this year have taken a smaller number of cases overall, the death penalty accounts for "a larger fraction of their work," said Richard Dieter, executive director of the Death Penalty Information Center. Douglas A. Berman, a law professor at Ohio State University, said: "It's probably the normal number, but I always think they take too many. Especially at a moment when the docket is so light." The justices have taken a decreasing number of cases in recent years, and this term, which will end this summer, is likely to continue that trend.

Sometimes the court's decisions are dramatic, such as 2005's Roper v. Simmons, which forbade the execution of those who were younger than 18 at the time of their crimes. But Berman, who writes regularly for and runs the Sentencing Law and Policy blog, said the court's decisions in most death penalty cases affect only a handful of people in the states from which the cases arise. He would like to see the court spend time on other sentencing disparities "that affect thousands of people every day."

More on Politicized AGs: (from Howard at How Appealing)

"Surging and Purging": Today in The New York Times, columnist Paul Krugman has an op-ed (TimesSelect temporary pass-through link) that begins, "There's something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors."

In related news coverage, The Washington Post today contains an article headlined "Prosecutor Firings Not Political, Gonzales Says; Attorney General Acknowledges, Defends Actions."

And in The San Francisco Chronicle, Bob Egelko reports that "U.S. attorney was forced out, Feinstein says."

Here is a link to one of the first opinions disposing of a challenge to the Adam Walsh Act.

This one is of local interest-- a challenge to an "anti-solicitation" Herndon, Virginia law targeting day laborers: (Washington Post)

Although town officials cited traffic safety as their chief concern, the law was passed in the midst of a debate over the impact of immigrant day laborers, who congregated in the parking lot on Elden Street in the mornings to seek work.

Thomas's attorneys, Rodney G. Leffler and Alexa K. Moseley of Fairfax, asked that the case be dismissed on First Amendment grounds, saying that solicitation has long been protected by the courts as free speech. Specifically, they said Herndon's law is flawed because it focuses only on solicitation for employment, while leaving other forms of solicitation -- such as charitable contributions or the sale of goods -- unrestricted.

Fairfax District Judge Lorraine Nordlund has scheduled a hearing for Feb. 14 but indicated that she could rule earlier based on written arguments. The lawsuit was filed last week.

Herndon Town Attorney Richard B. Kaufman declined to comment. "The Town of Herndon does not comment on ongoing criminal prosecutions," he said.

Vice Mayor Dennis D. Husch said the Town Council can rewrite the ordinance, if necessary.

From the Crows Nest

$$$ Award Against Police (from the V Conspiracy)

Rajwani (3x above-guideline sentence returned) (5th Cir. Jan 16, 2007)

Elizondo (5th Cir. Jan. 15, 2007) (remanded for sentencing) (HT Doc Berman)

Duenas Alvarez, 549 U.S. ___ (2007) (syllabus) was yesterday's SCT opinion. (HT SCOTUSblog)

Administion caves on warrantless wiretaps.

UPDATE: From How Appealing on the Wal-Mart case in Maryland

"Md. Wal-Mart law dealt second defeat; U.S. appeals court upholds earlier ruling; Assembly seeks new health care solutions":

This article appears today in The Baltimore Sun.

The New York Times reports today that "Appeals Court Rules for Wal-Mart in Maryland Health Care Case."

And The Washington Times reports that "Court upholds killing of 'Wal-Mart bill.'"

His earlier coverage appears at this link.

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."

Also:

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.

And:

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

Happy MLK Day (preview from the Crow's Nest)

Today's Crows Nest posting is on the way, but first I wanted to mention a new link I added just now, that looked good enough to make the cut after about thirty seconds: Law of Criminal Defense. I wonder if he'll notice (by John Wesley Hall, Jr.-- a site not technically a blog, "supporting Professional Responsibility in Criminal Defense Practice" that posts frequently, with caveat that there is a book involved).

Apparently we are both interested in the Joseph v Coyle case I mentioned here.

UPDATE: There is some great-looking stuff from NYT Week in Review (as well as the Post, of course).

New Blog and Crows Nest Lite

I will probably be adding this one to the Poliblog. It looks to be regularly irregular.

You gotta love how Doc B rings up another one...kashing!

Almost forgot, Howard and Lyle (most recent post here) should be interested in my most recent efforts by way of deferential review under AEDPA (my last post). Howard first noticed the Irons case, and Lyle wrote it up last year in May and followed that up with some more good stuff.

Ready to Rumble?

Here, is the headline of the day (Discourse dot net on tip from Progressive Law Blog aka Prolawblogs). A Demonstration, Miami for Peace is sponsoring this action with Global Exchange, CODEPINK Women for Peace, United for Peace and Justice, the Bill of Rights Defense Committee, Veterans for Peace South Florida, Miami Chapter of Amnesty International and many others.

This is a close second, S. 223. A bill to require Senate candidates to file designations, statements, and reports in electronic form; to the Committee on Rules and Administration (from Votelaw, which I will be adding to the "roll" here or on the Poliblog).

Additional Curiosities Related to "Criminal Politics":

"Sexual politics" means a lot of things in Washington, even how men and women relate to each other, defining notions about femininity and masculinity. For better or for worse, as in the marriage vows. In Washington "sexual politics" is usually more about power than sex. The Republicans are the Daddy Party, the Democrats the Mommy Party. But the stereotypes are changing right before our eyes, and smart pols will take due notice now because public expectations and psychological perceptions will shape their future. Suzanne Fields/
WashingtonTimes

Not Ship-Shape at State, Sherlock (WPost)

Lefty v Righty Churches: Do Donors Affect or Reflect the Flock's Thinking? (WPost)

UPDATE: I have been struggling for a label for these trendy, newsy, dailies that I post, having previously tried "currents" "trends" and variations thereof. NOW I HAVE IT. Henceforth, these will be THE CROW'S NEST. Apologies but I could not resist a reference here to "running point" which is something I've been asked to do and Army (and football) guys should appreciate. Contrast this with "on point" which the big legal guns know all about.