Family of Secrets and The Family

Here's a link to a piece about The Family (the "Christian" mafia as they like to be called) in Salon. Now that I'm reading Family of Secrets I'm wondering about the connections that must exist between them.

There is no doubt that Lou would make a good member of the crowd as his recent Open Letter below shows:

Lou Pritchett is one of corporate's true living legends- an acclaimed author, dynamic teacher and one of the world's highest rated speakers. Successful corporate executives everywhere recognize him as the foremost leader in change management. Lou changed the way America does business by creating an audacious concept that came to be known as "partnering." Pritchett rose from soap salesman to Vice-President, Sales and Customer Development for Procter and Gamble and over the course of 36 years, made corporate history.

OPEN LETTER TO PRESIDENT OBAMA

Dear President Obama:
You are the thirteenth President under whom I have lived and unlike any of the others, you truly scare me. You scare me because after months of exposure, I know nothing about you.

You scare me because I do not know how you paid for your expensive Ivy League education and your upscale lifestyle and housi ng with no visible signs of support. You scare me because you did not spend the formative years of youth growing up in America and culturally you are not an American.

You scare me because you have never run a company or met a payroll.

You scare me because you have never had military experience, thus don't understand it at its core.

You scare me because you lack humility and 'class', always blaming others.

You scare me because for over half your life you have aligned yourself with radical extremists who hate America and you refuse to publicly denounce these radicals who wish to see America fail.

You scare me because you are a cheerleader for the "blame" America crowd and deliver this message abroad.

You scare me because you want to change America to a European style country where the government sector dominates instead of the private sector.

You scare me because you want to replace our health care system with a government controlled one.

You scare me because you prefer 'wind mills' to responsibly capitalizing on our own vast oil, coal and shale reserves.

You scare me because you want to kill the American capitalist goose that lays the golden egg which provides the highest standard of living in the world.

You scare me because you have begun to use 'extortion' tactics against certain banks and corporations.

You scare me because your own political party shrinks from challenging you on your wild and irresponsible spending proposals.

You scare me because you will not openly listen to or even consider opposing points of view from intelligent people.

You scare me because you falsely believe that you are both omnipotent and omniscient.

You scare me because the media gives you a free pass on everything you do.

You scare me because you demonize and want to silence the Limbaughs, Hannitys, O'Relllys and Becks who offer opposing, conservative points of view.

You scare me because you prefer controlling over governing.

Finally, you scare me because if you serve a second term I will probably not feel safe in writing a similar letter in 8 years.

Lou Pritchett TRUE CHECK

http://www.snopes.com/politics/soapbox/youscareme.asp
This letter was sent to the NY Times but they never acknowledged it. Big surprise. Since it hit the internet, however, it has had over 500,000 hits. Keep it going. All that is necessary for evil to succeed is that good men do nothing. It's happening right now.

Litigation Update

Here are a pair of cases worth noting:

Norwood v Vance (9th Cir.) prison officials may be liable for prisoner's lack of exercise;

Michael Joe Williams v. Jones (10th Cir.) habeas overturning jury verdict.

And from ABC News, here is a sad sex crime story about those who have served their prison time being doomed to failure from the moment they set foot outside. What is it about this that lawmakers have seen fit to create colonies of homeless vagrants, under curfew and restricted?

Santimonious Pantheon

This one is too good to pass over, by the beautiful Mo, (and the NYT) about all the great affairs of the world. Sorry, Marco.

Oh, and I almost forgot; thank God the War (remember, the Iraq War?) is finally over! We only lost 95 (and counting) troops this year, quite an improvement. It didn't turn out to be quite as good for the economy as some might have thought it would. Then, for some, it has turned out quite nicely, thank you.

At least not as many Jewish and eastern (Polish) people (or Russians) died this time. Just kidding. Bad Joke, very, very bad.

All aboard the troop express home in 48 hours! Alright.

Productivity, Global (Office) Warming and Japan

The Hilary Clinton of Japan business productivity and cutting energy are all featured in this Newsweek eyecandy, "Want to Save Energy, Think Japanese" -- always interesting for one who was born in Otaru (that's Japan, up North, where the air is/was could not be cleaner, the mountain waters fresher, the veggies and fish more fresh and nutritious). Wonder what it's like there now?

BECAUSE, I have been reading history in my spare time, by Regius Prof. of Modern History, Richard Evans of Cambridge, The Third Reich at War, my posting has been sparse, sorry.

Here is a HABEAS piece that promises to be of interest, re Tarbles case from UVA profs, Woolhandler and Collins, via bepress (thanks Doc as always).

The Big Bankers and the Bigger Fools Who let them Bank Your Money

Once again, after a few weeks of noting nothing newsworthy, in itself newsworthy an occasion, (besides the bankruptcies of our largest automakers of course, but who didn't see that coming?) I see the New Yorker is on the ball again with a review of a promising new look at the CREDIT DEFAULT SWAP, called FOOL'S GOLD (link here). The "new" financial product is taking much of the blame for the recent implosion of the banking industry, deservedly so, except that the blame should be placed on the person and persons who made them happen without adequate regulation to. The so called "off sight" meetings of the big bankers during this period also looks to be VERY interesting reading.

A morsel of this review:

In June, 1994, when a team from J. P. Morgan went on an off-site weekend to Boca Raton, they conformed to normative behavior in certain respects. Binge drinking occurred; a senior colleague’s nose was broken; somebody charged a trashed Jet Ski and many cheeseburgers to somebody else’s account. Where the J. P. Morgan team broke with tradition was in coming up with a real idea—an idea that changed the entire nature of modern banking, with consequences that are currently rocking the planet.

A pair of state cases

I've been asked to comment on this case as I find time to review it:

http://www.in.gov/judiciary/opinions/pdf/04300901rdr.pdf

Initially, I see Indiana has expanded the Registry to include several more categories of crime in addition to sex offenses: these include Murder, Voluntary Manslaughter, under certain circumstances Kidnaping and Confinement (according to the opinion). If we must have a registry at all, which is a bad idea in my opinion for reasons which have been articulated elsewhere here on this blog and by other experts on the topic to whom I have referred and linked at various times, perhaps it should also include financial crimes.

In this age of transparency nothing is private, yet why should government be in the business of publishing lists of people who have done bad things, then punishing people again for failing to self-register? It already does so in Court records should anyone care to search them. The bad guys aren't going to register anyway, so I suppose it makes it easy to identify those; the ones on the registries are not the ones who are committing these crimes. If they are not keeping communities safer, as recent research indicates, get rid of them. They are a waste of valuable government resources at all state and federal levels.

Also, getting to the technical details, ex post facto provisions of the Constitution of Indiana are in play and the court concludes registration laws are punitive in effect if not in intent. That is a contrary conclusion to the US Supreme Court's conclusion in a similar case from Alaska, interpreting that state's laws, which the opinion explains is permissible because an independent view or review is justified and well within the boundaries of the court's powers of judicial review.

Just a case from Maryland that was brought to my attention today:

Doe v. Dept. of Public Safety and Corr. Svcs., CSA No. 22, Sept. Term 2008. Reported. Opinion by Wright, J. Filed May 12, 2009.se

How Many Drops of Water in the Bucket?

Can't believe it's been nearly 2 weeks since I posted, and a month since baseball began. Here is a case in which FAMM (Families Against Mandatory Minimums) played an active role, which just shows that not all mandatory minimum sentences relate to drug offenses.

The case is US v. Polouizzi, No. 08-1830 (2d Cir. April 24, 2009) (available thanks to Doc):

Nothing Criminal

The O's won a nailbiter 10 to 9 last night at Texas in a game that had it all including a double steal by Texas in the bottom of the ninth to no avail as closer George Sherril got the strikeout to end the inning and the game with the winning run on second. Uehara got the win. Almost everybody had rbi or scored. They improve to 5-2. Hitting was no problem either but the pitching was nerve wracking. The rotation needs a little work.

The Texas bullpen held Baltimore to 4 scoreless innings to end the game. The O's Uehara loaded the bases in the 6th and everybody made it around on 3 hits to make it close. Baez gave up a two run homer in the 8th to make it a one run game. Ranger's Kinsler started the 9th with a leadoff double, Sherril gave up a walk before getting the all important K. That's how it ended.

Nothing criminal about that. WP/AP (Stephen Hawkins) on it here.

No Shrimpy Fried Rice?

Why is This News? Because somebody ought to charge her with criminal mischief for wasting the time of at least two valuable public servants and peace officers.

Reform of Criminal Justice Much Needed

And of reforming the legal / criminal justice system, we have this development, the dismissal of indictment against Sen. Stevens, a judge demanding accountability of the prosecutors office, and vows of reform. How far will it go (stealing one of Doc's good lines)? Supremacy Claus sure has talent as evidenced by his biting wit in the comments in the source (see link). Recall that the prosecutors misconduct purportedly caused dismissal, and only the Senator's age prevented his retrial. He's not on his deathbed but what good is it to prosecute the elderly? This is a pragmatic business after all. And of course he's suffered enough, probably lost his status as well as the election. Enough already.

Prison Nation or Nation of Jailbirds?

Getting serious attention, if Lexington can be serious over at Economist. The new crime bill is newsworthy. The article begins:

THE world’s tallest building is now in Dubai rather than New York. Its largest shopping mall is in Beijing, and its biggest Ferris wheel in Singapore. Once-mighty General Motors is suspended in a limbo between bail-out and bankruptcy; and the “war on terror” has demonstrated the limits of American military might.

But in one area America is going from strength to strength—the incarceration of its population. America has less than 5% of the world’s people but almost 25% of its prisoners. It imprisons 756 people per 100,000 residents, a rate nearly five times the world average. About one in every 31 adults is either in prison or on parole. Black men have a one-in-three chance of being imprisoned at some point in their lives. “A Leviathan unmatched in human history”, is how Glenn Loury, professor of social studies at Brown University, characterises America’s prison system.

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Conditions in the Leviathan’s belly can be brutal. More than 20% of inmates report that they have been sexually assaulted by guards or fellow inmates. Federal prisons are operating at more than 130% of capacity. A sixth of prisoners suffer from mental illness of one sort or another. There are four times as many mentally ill people in prison as in mental hospitals.

As well as being brutal, prisons are ineffective. They may keep offenders off the streets, but they fail to discourage them from offending. Two-thirds of ex-prisoners are re-arrested within three years of being released. The punishment extends to prisoners’ families, too. America’s 1.7m “prison orphans” are six times more likely than their peers to end up in prison themselves. The punishment also sometimes continues after prisoners are released. America is one of only a handful of countries that bar prisoners from voting, and in some states that ban is lifelong: 2% of American adults and 14% of black men are disfranchised because of criminal convictions.

It is possible to pick holes in these figures. Some of the world’s most repressive regimes do not own up to their addiction to imprisonment (does anyone really believe that Cuba imprisons only five in every 1,000 of its citizens?). No sane person would rather be locked up in Russia or China than in America. A country as large and diverse as America boasts plenty of model prisons and exemplary training programmes. But all that said, the conclusion remains stark: America’s incarceration habit is a disgrace, wasting resources at home and damaging the country abroad.

Corruption, Greed, Prisons

America, we can do better. When judges are corrupted it takes a long time to undo the damage, as you can only imagine from this article about youth in Pennsylvania sentenced by two greedy (but well educated) judges. You can't make this stuff up.

Criminal Justice Commission Act of 2009

Jim Webb, Senator from Virginia, gets it. He and Sen. Specter cosponser this legislation to review and reform criminal justice and incarceration policy.

Not your Chevrolet's America

Chevy, "this is America"

This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation. Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture. For a Presidential candidate, no less than for the prison commissioner, this would have been political suicide. The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it. This is the dark side of American exceptionalism. With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago. Our willingness to discard these standards for American prisoners made it easy to discard the Geneva Conventions prohibiting similar treatment of foreign prisoners of war, to the detriment of America’s moral stature in the world. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement—on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.

Thank you New Yorker Magazine, Atul Gawande et al.

Blawger's Baseball League

As I was perusing Blonde Justice's anonymous blog, (not trying to blow anybody's cover or anything like that, and I'll add that she links to Texas and other geographic places as well) I came across Baltimore Crime which I'll add to my blog roll, as if it's not overloaded already. I just had to do it.

Overcome by the same fit of curiosity I came across this one, (pdiblog) too, by a member of last year's league, Sanchovilla.

The reason for looking was to see if she's still there, and if we're going to do the Blawger's baseball league again this year.

Actual Innocence, DNA Testing, Sec. 1983, Osborne in the Supreme Court

At this link is the transcript of oral argument in the Supreme Court in the Osborne DNA case from Alaska in which the government argues that new evidence in the form of DNA testing should be denied, remain untouched, apparently in the interests of "finality", one, because 1983 civil claim is not the appropriate way to ask for it, and it is more of a discovery request, and prisoner does not have a federal constitutional right to his own DNA for testing, and because he refuses to swear unde penalty of perjury that he is actually innocent and has confessed twice, and remarkably, that there is no right to present new evidence that shows, or could show, your actual innocence (more to come) -- HuH?

I took some notes yesterday and stupidly kept thinking I'd return to post to the blog and didn't so it's lost, only to be retrieved from memory. Perhaps I'll not bother. Now to return to finish reading the transcript...,

For now, let's just say that this case tests whether or not there is a constitutional right to obtain evidence of actual innocence that is in the possession of the state.

Doc Berman's post on the case has the usual good commentary, here.

Citizens for Change

A new reader found my site, left a comment here, so at the request of JustaDadatHome, I'll be adding a direct link to Citizens for Change (cfcamerica.org) under the Sex Crime, Public Education, and Civil Rights section of my blog. Thanks, JaDaH!

I'm looking forward to seeing the great logo link on their website to my blog! It's nice to have talented friends!

Justice Center Chair Facing Removal in Texas CCA

I don't know how to describe this but, just the facts, sir. Judge Keller, Honorable Sharon Keller, Presiding Judge, Texas Court of Criminal Appeals (the supreme criminal court) is the Chairman of the Board of Directors of the Justice Center which is the umbrella organization controlling the Reentry Policy Council noted in my last post. I just happened to stumble upon this fact today while reviewing the website out of an abundance of curiosity.

Unfortunately, the Judge is now facing a removal proceeding and trial (estimated to cost $250,000 dollars of your taxpayer money) thanks to the State Commission on Judicial Proceedings. Just one more reason to stop electing judges is this article about the fee, in which her lawyer, Chip Babcock, says they'd defend her for a buck, but are prohibited by law for giving a discount on legal fees to a judge as it would amount to an illegal political contribution! The buck in question is the amount the lawyer hired by the Commission is set to receive for prosecuting the case against Keller.

Allegations state that Judge Keller refused to follow written procedures in the Richardson execution causing the lawyer's request for stay based upon the USSC grant in Baze to be rejected. It is alleged she knew the lawyers wanted to file the request but could not get it to Court by the five pm close and refused to allow papers to be filed late. I might have added, stupidly and callously refused, but that would just be my spin on it. We'll just have to see what kind of sanction, if any, is appropriate for this kind of behavior by our supreme court justices.

All major Texas newspapers, including Texas Monthly have decried Keller's hastening of the execution of Richardson. To a man, all have called for Keller's removal.

I wonder how will this affect the future of the reentry movement?

The Justice Center's Board provides guidance on the Center's priorities and is comprised of senior level state officials who shape criminal justice policy.

Grits has this post on it.

Grants for Prisoner Reentry

Second Chance Act grant solicitations are on the way, link for more info from the Reentry Policy Council. Understanding the Act's provisions is easy with this link to Sections 101 (for State and Local Governments) and 211 (for Nonprofits).

Sex Offender Hysteria

I noticed recently that I received nice comments and might have picked up a few more readers, not that I'm counting. But it's encouraging to see that other people find this of interest.

More and more we're seeing media articles cutting into sex offender hysteria and wondering where it will lead, such as these collected from Sex Crimes (WBAY Channel 2 Wisconsin) blog, Residency Restrictions don't work (Syracuse dot com); Rights Must be Observed, (Tufts Daily student paper); No Homes (Wall Street Journal); and Massachusetts Struggling (Herald: federal AWA requirements difficult to implement); this is change in the sense that more attention is being given to the ineffectiveness of residency restrictions, banishment, and throw away the key mentality. This is change in the sense that more in the media seem to be showing an interest in this issue, and seem less willing to just go along with stupid legislative proposals designed to serve one purpose, that of seeming to be tough on crime in order to further the politicians political career. Who could be that cynical?

I see that Rep. Sensenbrenner wants to impeach Judge Kent to keep him from receiving his 169 thou and change retirement pay now that he's pleaded to obstruction after being charged with sex crimes.

Getting Down to Business

Reviewing some posts from Doc's place I could not help thinking that here is where we are (the greatest prison nation), and unfortunately, here is where we are going (same direction).

Just One More, Reduce Rates to 4% and Let's Everybody Do The Refi!

I forgot to mention this solution, as I see more talk about nationalizing big banks that are set to lose more money this year and become insolvent. The good news is, they are already insolvent, and always insolvent, according to their debt to equity ratios. The bad news is they still don't know how insolvent because they haven't yet resolved their "computations" respecting those "bad mortgages" no doubt hoping they could unload all the worst "investments" on the feds, or get more money because of them.

Instead, write these down immediately to zero (creating certainty over the amount of the loss), suspend the capital requirements (to ensure lending without running afoul of federal rules) and federally insure all deposits under 250 thousand (in case there is a run for cash). That should cover most of us working stiffs.

Am I a genius? Or what?

A Fourth Crazy Bad Mortgage Scenario

Moratorium on Foreclosures for one year, to be extended if necessary based on events on the ground.

Two Bad Mortgage Scenarios

Case Study in the Market for Homes with Bad Mortgages

Link to BW "How Banks are Worsening the Forclosure Crisis"

P 1:

Home owners in bad mortgages don't deserve to be rescued.

Then,

a. let the banks foreclose, and the sooner the better. Homeowners take their earnings assuming they have jobs and rent until they reestablish credit to purchase another home.

b. new prospects need to be found to take foreclosed homes off the market.

c. work is created for realtors, movers and people who clean up and fix homes (and credit) for resale.

P 2:

Plenty of people with money will come forward to purchase these homes at the right price.

Then,

a. the market will be readjusted asap. This is the best case.

b. many homes remain vacant and neighborhoods deteriorate.

c. homes are leased/rented at market and neighborhoods deteriorate at a slightly reduced rate.


Compare Alternative Case A

P 1 Saving the homeowner is necessary condition for economic recovery.

Then,

a. bankruptcy courts readjust mortgages to a reasonable market rate.

b. mortgage holders do so on their own initiative.

c. market will be readjusted asap.


Alternative B

Homeowners walk.

White knight purchases homes at short sale and resell/release to the original homeowner.

See P 2, above.

Extension of Prosecutorial Immunities

When a civil rights lawsuit claims “that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at [a] particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”

The case of Van de Kamp v. Goldstein (07-854) involved a plea to the Court to head off a civil rights damages lawsuit by a man who had been prosecuted and convicted of murder in 1980. That conviction had been based in part upon the testimony of a jailhouse informant alleging a confession to the murder.

Inaugeration: Off With the Medieval Currents

Bye Bye, and Hello...a historic moment rises; feel the ground swell of hope, fresh ideas, new thinking. Check out all the different views here, (Atlantic) and here (Roll Call), and here (The Nation), and here (Newsweek).

Don't forget Fox, or the guys on the Right, no doubt making every effort to keep the "Big Tent Democrats" under control. I am getting the feeling that we're starting to ALL PULL TOGETHER.

But what else could go RIGHT?

EVERYTHING!!!

UPDATE: Just one more thing. The Banks cannot be fixed; they need to be reformed in every sense of the word, as in creation. Giving a falling bank money fixes nothing. Give that money to somebody who thinks up, makes, and fixes a tangible good that adds value to the economy (as opposed to somebody who skims off the cream, and thinks up new ways to skim more cream) is the better bet.

Bits of History

Speaking of the Fourteenth Century, which some historians have compared to our own Twentieth (that's the last one, not the 21st--this is yet to unfold), and of Religion and Chivalry, the dominant political idea of the ruling class, in A Distant Mirror, Barbara Tuchman writes:

King Arthur's knights adventured for the right against dragons, enchanters, and wicked men, establishing order in a wild world. So their living counterparts were supposed, in theory, to serve as defenders of the Faith, upholders of justice, champions of the oppressed. In practice, they were themselves the oppressors, and by the 14th century the violence and lawlessness of men of the sword had become a major agency of disorder. When the gap between ideal and real becomes too wide the system breaks down...the sword is returned to the lake... Violent, destructive, greedy, fallible as he may be, man retains his vision of order and resumes his search.

Wash, Rinse, Repeat..., Rinse, Repeat ...., .....

More dots on the emerging financial meltdown from NYT.

Now, with the Madof debacle, I'm tempted to ask, "Where were the regulators" -- Oversight is so passe?

Sosen Newsletter

Here's a link to Sosen's inaugeral newsletter. They finally got it together. Hurrah!

Here is a reminder that my very own newsletter published issue number 16 last month. It is at this link!

Habeas and the Guantanomo Bay Prisoner Cases

Thanks to Scotusblog, at this link is a Supreme Court Order issued today remanding the case of four Britons released from Guantanomo, who then sued United States Military officials for misconduct in the treatment, allegedly torture. That means the opinion of the DC Circuit Court must be reconsidered in light of the Supreme Court Opinion in the case of Boumedienne, issued more recently this year. The opinion to be reconsidered was issued January 11, 2008 and is available at this link. If I can find it I'll post a link to the Boumedienne case as well.

A Petition for Justice

Here, at this link, read about the tragedy that is Ricky's life, or non-life. He's 19. She's 16, was 13 when, but lied and said she was about his age. Now, Ricky lives with the consequences. When will the madness end?

Is it Time to End Prohibition (Again)?

At this link is a post at Prof. Berman's Sentencing Law blog. The debate in the comments is interesting and well worth reading. I agree with those who are pushing to end the Modern Era of Prohibition we are living with today. For all the reasons Zack lists in the comments, I agree.

From Berman's post:

The main group behind all this call for a new repeal of old drug prohibitions is Law Enforcement Against Prohibition. Here's what's up on their site today:

December is the 75th anniversary of when America's leaders had the good sense to end alcohol prohibition. Today, we have another ineffective, harmful and expensive prohibition, the "war on drugs." LEAP has made it easy for you to take action and let your legislators know that we can't afford prohibition in these tough economic times. Visit www.WeCanDoItAgain.net for more information.

Good Reference Commentary

Letsgetreal has posted comments on my last post concerning the Adam Walsh Act and related concerns.

145 Million At Stake in Frederick County, Maryland, Wrongful Death Suit

Here is a link to an opinion in which United States District Judge Quarles, of Maryland's US District Court, discusses breach, and in particular the concepts of gross negligence and malfeasance in a contract context. If past is prologue, the opinion could shed light into what could happen in a case pending before the same Judge Quarles. I am still waiting for this opinion to appear on the Court's website.

Judge Quarles penned an opinion reinstating the County and Sheriff's office as defendants being sued along with a deputy for the death by taser of a Frederick County youth.

Jarrel Gray, 20, of Frederick, died Nov. 18, 2007, hours after being shocked twice by a Taser operated by Cpl. Rudy Torres.

Here is a link to the article in the Frederick News Post about it.

Don't want to come into contact with a registered sex offender?

Use the website to locate them more easily. But don't use the sidewalks, they don't wear the yellow stars, or the red A, just yet.

At the same time, more and more serious studies are showing that registration such as this is a waste of time and money, tax payer money, to be more precise.

I cannot help commenting on this post by Corey at SexCrimes. The new and improved federal sex offender website is getting a ton of hits every day, apparently. According to the press release, posted by Mr. Young on his blog, the purpose is now not the protection of our children, but to protect "communities from coming into contact with" the target population. Here's Assistant AG Sedgewick:

"NSOPW provides the public with information to protect themselves, their families and their communities from coming into contact with registered sex offenders," said Jeffrey L. Sedgwick, Assistant Attorney General for OJP.

Clearly Established Law Not Always Clear

Here is a petition to watch, with links to the opinion below, petition for cert and reply concerning the recent Cunningham decision in the Court. The appellate court held Cunningham did not establish new law, following Blakely, making defendant eligible for habeas relief under 2254. Frustrating, isn't it, to see how much litigation can arise from the simple phrase, "clearly established".

It was quite interesting to search the blog for "clearly established". There are too many prior posts to list here. A cursory review shows that this is a key concept in habeas and civil rights litigation. It is typically used in order to limit claims for relief.

Thank you Scotusblog:

Docket: 08-517
Title: Curry v. Bulter
Issue: Whether the Court’s ruling in California v. Cunningham (2007), which struck down part of the state’s sentencing scheme, was dictated by the Court’s ruling in Blakely v. Washington (2004) or instead announced a “new rule” that cannot be applied retroactively on habeas review.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition*
• Petitioner’s reply

Soros on the Crisis

At this link to the NYRB, read George Soros's take on what went wrong in the financial system.

New Commerce Clause SORNA piece

Here is Cory Young, Associate Professor of Law at Marshall, posting in his Blog, Sex Crimes:

I've posted a draft of a shorter article of mine that will be out soon in the Federal Sentencing Reporter. The article builds upon the Commerce Clause discussion in my other forthcoming article, One of These Laws is not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions. My article is titled: The Sex Offender Registration and Notification Act and the Commerce Clause. This is the abstract:

In 2006, the Sex Offender Registration and Notification Act ("SORNA") created a new federal crime of "failure to register" which is punishable by up to ten years imprisonment. Since that time, sex offenders across the country have been prosecuted even though the offenders had no prior connection to the federal criminal justice system. For almost all of the prosecutions under SORNA, the argued jurisdictional basis for federal prosecution has been that the sex offender travelled across state lines. Based upon this travel, which is an element of the crime of failure to register, the government has argued that the new registration crime is justified under Commerce Clause authority. An overwhelming majority of courts that have addressed Commerce Clause challenges have accepted the government's argument that interstate travel is a sufficient jurisdictional hook. However, a careful examination of existing Commerce Clause law demonstrates that these courts are mistaken. For the Commerce Clause to have any meaning and for the decisions in Lopez and Morrison to make sense, the alleged interstate travel must be connected to the underlying offense in fact and time. Despite the limitations of prior Supreme Court precedent, courts have enabled the government to prosecute sex offenders who crossed state lines years before SORNA was even enacted. Further, courts have not required any showing that the travel had any connection to the alleged offense of failing to register. While some have argued that the decision in Raich effectively ended the federalism revolution, SORNA expands federal jurisdiction into entirely new territory. As a result, this article concludes that courts should dismiss most indictments under SORNA based upon a lack of federal jurisdiction and/or Congress should amend SORNA to properly reflect the jurisdiction authorized under existing precedent.

If you are interested in reading the whole article, you can follow the link to SSRN. Unfortunately, SSRN has hidden its download link, but it is located in the upper middle of the abstract page (it's labelled "Download"). If you have any problems downloading or if you have any comments, feel free to email me.

Curious Registry Stuff: Real Offender is the Law

Here is the intro to this good piece (ht, Doc), called "Real Offender,"

In its relentless efforts to expel Wendy Whitaker from her Columbia County home, the state of Georgia has crossed the line from protector to persecutor of its citizens. The state isn’t inciting torch-wielding mobs to chase Whitaker from her home 20 miles west of Augusta. But it is using a gaggle of state attorneys and a politically driven, poorly written sex offender law to wreck her life.

Punitive, or Not Punitive to Register

A very unusual ruling, at the cusp of right to jury trial and constitutional issue of whether a requirement to register as a sex offender is or is not punitive, for a person not convicted of a misdemeanor sex offense but required to register is available at this link, made available by the one and only Doc Berman.

Cheney, Gonzalez indicted

Read up on the indictments issued against Cheney and Gonzalez at the link (wp).

Effective Assistance of Counsel

Here at this link is an article one kind reader called attention to. Called Effective Assistance of Counsel and Consequences of Guilty Pleas (2002), it represents slow if steady progress in the study of criminal law in general, and one of the pillars thereof, the right to a lawyer for your defense, which often means nothing more than advice to take a plea if you don't want to go to jail for a much longer time, pay out your life savings for legal fees, and/or both.

Bank Loots Treasury: Taxpayer Loses!

Today I heard that certain people on Wall Street were getting bonuses of 13 point something BILLION for the year!!!

That was after the company they worked for had accepted 10 BILLION from the Tarp (I think that's what Hank called it) the 'GOVERNMENT BAILOUT'. wtf???

GUESS what else I heard? Certain banks that accepted our BAILOUT $$$ have, instead of making loans available to the businesses and consumers that need them, BUYING OTHER HEALTHY BANKS!!! Once more, wtf??? IN UNISON NOW,... WTF???

Never mind, Lou Dobbs, this gives an entirely new meaning to the term CORPORATE SOCIALISM.

ENOUGH ALREADY.

Mike Mukasey, you have got your work cut out for you now, and so have you PRESIDENT OBAMA!

Corporate Crime

We need to correct this BS asap: The WaPo headlines a piece which features a tax policy regulation issued recently that amounts to corporate welfare -- correct that: stealing taxpayer money to pay banks and other corporations that only lose money.

For losing money in a given year, these conservative executives expect the government (taxpayer) to give them a cash refund. What Balls. If this is "conservative" as in what conservative economists think, then I am definitely not a conservative, and not in this mold.

That is as radical socialist as it gets. That's called corporate socialism. That's what we've had for 8 years and that's enough of that.

Excerpt: full article at this link.

The opposition to Section 382 is part of a broader ideological battle over how the tax code deals with a company's losses. Some conservative economists argue that not only should a firm be able to use losses to offset gains, but that in a year when a company only loses money, it should be entitled to a cash refund from the government.

Section 1983, DNA, Claims of Innocence (and Potty Fodder for Newsletter)

Here is a new cert grant in a DNA evidence case, District Attorney’s Office v. Osborne (08-6) courtesy of SCOTUSBLOG. An implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

Fodder for the Newsletter, which I promise will be out before December. Now for the POTTY FODDER UPDATE, Dahlia Lithwick gives us the following in Slate: (Shit Doesn't Happen, The Supreme Court's 100 percent Dirt-Free Exploration of Dirty Words)

FCC v. Fox Television is not a First Amendment case. It's a First Amendment-minus case, in that while the various justices insist that it need not be decided on constitutional grounds, it nevertheless provokes one of the best First Amendment debates I have ever heard. Since the Supreme Court decided FCC v. Pacifica in 1978, which found the midday radio broadcast of George Carlin's "Filthy Words" monologue to be indecent, the FCC rule has been this: The agency may regulate a daytime broadcast of the sort of "verbal shock treatment" of the Carlin monologue, but it will overlook the "isolated use" of one-off potty words. A 2001 clarification of the FCC policy provided that a finding of indecency requires that the naughty word "describe or depict sexual or excretory organs or activities" and be "patently offensive as measured by contemporary community standards."

Enter Bono, who accepted his 2003 Golden Globe with the heartfelt (live) declaration that the honor was "really, really fucking brilliant." Oh. And Cher, who received her 2002 Billboard music award with the gracious, "I've also had critics for the last 40 years saying that I was on my way out every year. So fuck 'em." And the ever delightful Nicole Richie, who wowed them at the Billboard awards the following year with the observation that "it's not so fucking simple" to remove "cow shit out of a Prada purse."

A Workout Plan

Just for the record, here is one plan put forward by a couple of lawyerly individuals in the New York Times.

I like the community based aspect of this one. My thoughts on this are for agencies at Hud or Treasury to work with existing local-community based non-profits, such as Habitat and others, to provide funding and/or guarantees for private buyouts and lease-backs for those still able to make a reasonable, market-adjusted, mortgage or rent payment. Lease-back might not be the technically correct term; just so I'm clear, private investors, local non-profits, and not the federal government would be the purchasers; the original homeowner could stay on the mortgage, and in the home, under the new terms, or be provided a rent-to-own provision if they want.

Warrant, Searches, and Qualified Immunity

Here is the Scotuswiki on a Supreme Court case that promises to be interesting to say the least. Quickly, the court's oral argument has taken place and further briefing ordered on whether Saucier v Katz (2001) should be overruled. More, after digestion commentary, to be forthcoming.

This is important because the qualified immunity test maintained in Saucier essentially makes it impossible to determine what "clearly established law" is in this context. And that is important because in the absence of a common sense understanding, any arbitrary, unreasonable, boorish and/or stupid conduct of police and other government actors cannot be held to account by the common citizen simply because the bad government actors were unable to determine that their conduct violated or would violate "clearly established law."

GOBAMA! GO!

What the World Could Look Like

Ronald Dworkin in NYRB, among others in the special election issue.

If McCain wins, however, Kennedy's vote would probably be irrelevant and his influence negligible because Mc-Cain's first appointment would probably create an unstoppable rock-solid conservative majority for a generation or more. (Stevens is eighty-eight, Souter sixty-nine, and Ginsburg, Kennedy, and Breyer in their seventies.) We cannot predict all the important constitutional issues that might arise in that long period. But it seems likely that a solid ultra-conservative majority would finally wipe away all constitutional protection for abortion, which Scalia and Thomas have repeatedly vowed to do. Such a majority would also allow a significantly greater role for religion in public schools and public displays and occasions; effectively end any form of affirmative action in employment or education; cut back on protections for accused criminals; and again broaden the scope of capital punishment.

Most frightening of all, it would likely embrace the Bush administration's most extravagant claims of presidential power: the so-called unitary executive doctrine Garry Wills describes below, which allows the president dictatorial powers over all executive functions, including the power to wage war, spy on citizens, and detain and torture prisoners, ignoring any congressional constraint.

Obama's promise is as great as McCain's threat. His race and background would refute the charges of American racial arrogance that have helped recruit many angry terrorists. His remarkable and apparently near-unanimous appeal abroad—an appeal the insular Republicans scorn—would immediately help redeem our soiled international reputation. He has a striking, deep intelligence, and a gift for combining clarity and strong feeling in his writing and speeches; and he uses these qualities to expose and explain complexity rather than bury it under slogans. It is said that he lacks experience. On the contrary, he alone among prominent politicians has the experience that counts most in a threatening and densely interdependent world: the crucial experience of empathy. He has lived, and been poor, in both domestic and foreign worlds that few national politicians can even imagine.

Investing in Future: More Stimulus

What to make of the idea of more economic stimulus, now that we seem to be determined to shore up failed banks, and the bankers that failed them? The first rule: avoid a massive asset bubble. We've seen at least two recently; real estate and before that, high tech stock. The second rule: all public spending is political, whether we recognize it or not. If I'm not mistaken, that's why we've seen declining funding for R&D and basic research. Leaving this to the private sector results in capital flight to areas that yield quick returns on Wall Street and speculation. The untempered "Free Market" philosophy of the last thirty years has proven itself to be, as in the previous century, not good for the people. Similarly, leaving philanthropy and charity to the private sector is tending sheep with wolves.

The best investments we could make would seem to be R & D in new science and technology applications, manufacturing enterprises we cannot do without such as autos and planes, the obvious -- energy, medical/health just to name a few. Of course injecting more $$$ into these areas is not as rapid an economic stimulus as cash in the pocket, but it may be almost as fast as the infrastructure projects Washington is talking about.

Careful screening may yield investment in businesses that are in a position to put many people into decent jobs quickly, such as construction projects. What else?

Here is another unique idea: provide a "co-op" fund for government and community organizations to invest in and rehabilitate houses. That would immediately begin to adjust the failing housing market. It might even put some people to work right away.

Serious Appellate Review Can Make a Difference

If perfunctory or truncated review of Georgia's death sentences by the state Supreme Court would be likely to result in imposition of arbitrary and unconstitutional sentences, then, by similar logic truncated federal habeas review over state criminal proceedings would likely result in rising incidents of unfair and unconstitutional decisions at the state level.

At this link is the opinion by Justice Stevens in which he underscores the truncated Georgia Supreme Court mandatory review of its death penalty cases is not the kind of review represented to the US Supreme Court in Zant.

Global Finance in Crisis

We're off on a tangent, political economy, aka the credit crisis, global recession, market meltdown. M y previous post focused on this and questioned specifically what caused the market to tank, banks to stop lending if that is indeed the situation, and well, putting us all through another Black October.

Fareed called it "hiding mountains of debt in complex instruments." As is often the case the Economist has attempted to provide an answer including info on the financial instruments and policy to blame, perhaps, such as credit default swaps, interest rate swaps, derivatives, options, futures. In a word however, the slant is not surprisingly a policy question concerning regulation. In A Short History of Modern Finance, the closing question is whether the future of the increased regulation that seems inevitable will be as benign as the past "liberalized" capital regime has been for growth.

To my mind, tactically, questions should be couched in terms of transparency and disclosure. For instance, at some point during the previous 18 months, when oil and gasoline prices started to ratchet upward for reasons which must remain unspoken, when mortage defaults first started to become noticeable, coupled with and perhaps caused by job losses, slowing growth, and slowing demand for, and then plummeting home prices, all related to core inflation and stagnant wages, who could have failed to see the risks increasing with respect to the securities tied to home mortgages. By then, of course, it was too late to do anything except sell. Hedging seemed like a good idea, but this only increased exposure if you guessed wrong about the direction of the market, and ratcheted up volatility.

And how do you sell something that is an "off balance sheet" instrument, by definition something you don't want the investing public knowing about. And there is another problem, there is no market or clearinghouse for these things, not surprisingly. So my question from the previous post still remains, how could reasonably smart people have been enticed to continue to sell these things knowing that the rapid rise in home prices could only mean one thing, an asset bubble. Bubbles are a recurring phenom, so...? Greed is the word. As AIG executives have recently shown, taking junkets with taxpayer dollars, stupidity is also rampant.

Finally, after Enron, how could regulators have failed to outlaw similar "off balance sheet" transactions? Or, was the investing public hoodwinked into believing the practice was obsolete?

My question is this. In times of good growth anything goes and nobody notices a few bad decisions, even sleazy ripoffs. When things get tough, when prices are falling, and when people are losing jobs, it is not regulation or the lack thereof that is the problem. It is just that times are tough. Free trade might take it's share of the blame. Let's not forget the corporate execs who forgot to pass along the cost savings and other goodies realized from free trade and robust growth to consumers and workers while socking away golden parachutes, bigger boats and mansions to pass the time. This seems less of a crisis in global finance than a crisis in global productivity and the division of labor, aka the global distribution of wealth. This is a failure of the notion of the Economy and the discipline of Economics itself, as we know it. This is called politics and it is criminal, paying lip service to the theme of this blog. Heads must roll.

The rich have been allowed to get away with far too much. The blame rests squarely with the failed execution and incoherent policy of the current, soon to be ex, President and the cronies who ran his administration. I predict that we will not see another such disasterous presidency, not at least until my grandchildren are grown.

Just one more thing. When banks fail you know we are in for a rough ride. So just on more question to think about. How could we have allowed matters to come to this?

Hiding Mountains of Debt in Wall Street?

Here's what I want to know more about. What about this "hiding mountains of debt in complex instruments?"

It brought down Enron and others. Is that what the "mortgage backed securities" were all about? This is Fareed, in Newsweek:

If there is a lesson to be taken from this crisis, it's a simple and old rule of economics: there is no free lunch. If you want something, you have to pay for it. Debt is not a bad thing. Used responsibly, it is at the heart of modern capitalism. But hiding mountains of debt in complex instruments is a way to disguise costs, an invitation to irresponsible behavior.

And, excuse me, but could someone please explain to me how a "derivative" in the sense used here and on Wall Street, differs from a worthless piece of paper sold to an unwitting investor with knowledge it had no intrinsic value or economic basis in equity, meaning something of tangible value such as an asset. Is a derivative something derived from a mortgage, but not a piece of the pie?

Am I right on this, or what? These were never worth more than precisely zero? How could they have been purchased? Zachary Karabell in Newsweek:

... Absurd though these all were, they paled in comparison to the financial innovations that grew out of the mortgages—derivatives built on other derivatives, packaged and repackaged until no one could identify what they contained and how much they were, in fact, worth.

More New Conclusions on Federal Habeas

Continuing to review the Hoffmann & King, Rethinking the Federal Role in State Criminal Justice
DRAFT, forthcoming N.Y.U.L.Rev. DRAFT, at page 9 we find the following remarkable conclusions:

Given the time to habeas filing and disposition, most defendants convicted of felony offenses in state court have no practical access to federal habeas review.22 For the latest year with available data, 60% of all defendants who were convicted of felony crimes in state court did not receive any prison sentence at all,23 and the average prison sentence for the remaining 40% was less than five years, with release in less than three.24 This means that the average habeas petition is filed after the average prisoner is released.

It should not be surprising, therefore, that in examining who filed habeas cases, the study found that nearly 30% of prisoners who challenged their state criminal judgments were serving life sentences,25 even though fewer than 1% of all state felons who are sentenced to state prison receive life terms.26 At the other extreme, only 12% of those who filed federal habeas petitions were serving sentences of five years or less27 – even though the latter group represents the majority of all those who are sent to prison.28 Federal habeas corpus review of state convictions and sentences is unavailable to those who are not serving a very long prison sentence or who have not received a death sentence. For most of the more than two million people now incarcerated for state offenses,29 the Great Writ is a pipe dream.

Economical Thinking in Federal Habeas

Here is how a new draft by King and Hoffman, to be published in the NYU Law Review next year opens. Commentary will follow once I've read more. At the link you can download the whole thing from SSRN. Thanks, Doc B!

We believe that it is time to rethink the federal role in state criminal justice. The present approach is a failure, because it relies almost entirely on post-hoc litigation in the federal courts – especially federal habeas litigation. A recently completed empirical study,1 conducted by one of the co-authors of this essay, has exposed the futility of habeas review today. In 99.99% of all state felony cases – excluding those cases in which the defendant is sentenced to death2 – the time, money, and energy spent on federal habeas litigation is wasted, generating virtually no benefits for anyone. Non-capital federal habeas has become, in essence, a lottery, funded at great expense by taxpayers, open almost exclusively to the small group of state inmates who are sentenced to the longest prison terms, and producing almost no marginal increase in the enforcement of constitutional rights.

Not Just Election Politics

The following description of current state of affairs is accurate and not good, because the state of the nation is not good, which qualifies as the understatement of the year. It can only get better, we hope. From the editors at New Yorker Oct. 13: (read complete article at the link)

....The Republican disaster begins at home. Even before taking into account whatever fantastically expensive plan eventually emerges to help rescue the financial system from Wall Street’s long-running pyramid schemes, the economic and fiscal picture is bleak. During the Bush Administration, the national debt, now approaching ten trillion dollars, has nearly doubled. Next year’s federal budget is projected to run a half-trillion-dollar deficit, a precipitous fall from the seven-hundred-billion-dollar surplus that was projected when Bill Clinton left office. Private-sector job creation has been a sixth of what it was under President Clinton. Five million people have fallen into poverty. The number of Americans without health insurance has grown by seven million, while average premiums have nearly doubled. Meanwhile, the principal domestic achievement of the Bush Administration has been to shift the relative burden of taxation from the rich to the rest. For the top one per cent of us, the Bush tax cuts are worth, on average, about a thousand dollars a week; for the bottom fifth, about a dollar and a half. The unfairness will only increase if the painful, yet necessary, effort to rescue the credit markets ends up preventing the rescue of our health-care system, our environment, and our physical, educational, and industrial infrastructure.

At the same time, a hundred and fifty thousand American troops are in Iraq and thirty-three thousand are in Afghanistan. There is still disagreement about the wisdom of overthrowing Saddam Hussein and his horrific regime, but there is no longer the slightest doubt that the Bush Administration manipulated, bullied, and lied the American public into this war and then mismanaged its prosecution in nearly every aspect. The direct costs, besides an expenditure of more than six hundred billion dollars, have included the loss of more than four thousand Americans, the wounding of thirty thousand, the deaths of tens of thousands of Iraqis, and the displacement of four and a half million men, women, and children. Only now, after American forces have been fighting for a year longer than they did in the Second World War, is there a glimmer of hope that the conflict in Iraq has entered a stage of fragile stability.

The indirect costs, both of the war in particular and of the Administration’s unilateralist approach to foreign policy in general, have also been immense....

The VP Debate

My take on last night's VP debate:

She is a well indoctrinated republican who recited and mangled canned lines regardless of the question on the floor, not qualified to occupy the office.

He is a well qualified, experienced, connected, grounded U.S. Senator of long years.

You do the math: change? or more of the same?

Biggest Growth Industry?

The biggest growth industry amid the economic cliff hanging? Alan Dershowitz (writing in Newsweek) tells us, here.

Against the Grain on Registries

Finally, this constitutional erosion seems to be gaining attention. Excerpt from ABAJ,

at least two courts this year have sided with the critics and invalidated some or all of the registry law. In both rulings, the courts referred back to a line of U.S. Supreme Court cases from the 1990s that limited the federal government’s reach into state law.

Meanwhile, a third federal court temporarily halted the new law until it had a chance to hear arguments on the issue.

More is at stake than just the sex offender registries, observers say. Americans have become accustomed to national crime registries, and courts could throw them into doubt.

“Not surprisingly, given our increasing sense of informational entitlement and disdain for criminal offenders, we are seeing registration and notification laws spread to other subgroups, such as domestic abusers,” says Florida State University law professor Wayne A. Logan, author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.

Constitutional Crisis or Just Business as Usual?

Here is the big picture, from Prof. Bruce Ackerman of Yale, via Stirling Newberry at KOS. Link. On one side is the economy, politics on another and upon the third leg the constitution, the supposed "order" our Republic stands upon. The monetary/financial system is clearly being manipulated to serve the rich; the rich get richer, the system spends like no tomorrow to preserve and increase their own wealth. Tell me something new guys. But can Democrats fix it?

Convicting Innocents, Sex Offender Laws, Anthrax Investigation in the News

Here is an interesting post from Grits in Texas, who always does good work, about Ivins, the accused, and now dead, pushed by the investigation to commit suicide, FBI anthrax case suspect. I've felt something fishy about this matter. So do the investigating members of the Senate committee in charge. It begins like this.

Pat Leahy, one of the US senators targeted in the 2001 anthrax attacks, made this shocking declaration yesterday that he doesn't believe Bruce Ivins, the scientist blamed for the attacks who committed suicide earlier this year, acted alone:

"If he is the one who sent the letter, I do not believe in any way, shape or manner that he is the only person involved in this attack on Congress and the American people," Leahy told FBI Director Robert S. Mueller III at a hearing yesterday. "I believe there are others involved, either as accessories before or accessories after the fact. I believe that there are others who can be charged with murder."

At this report, Grits independently concludes and takes up the banner many of us have been carrying, that the Sex Offender Registration/Targeting laws only produce more wrongful convictions and collateral damage and nothing to keep anybody, much less our children safe: Conceived literally in error from their inception. And he can point to yet another DNA exoneration to make the point. The American people are so stupid. They can't imagine the harm these ineffective and wasteful laws have imposed upon all the rest of us in society.

There is more than enough fear to go around now, so can we please move on to more serious stuff, like fixing inflation and stagnation, and making more stuff so more people can have jobs making and selling it? Please.

AWA Cruel and Unusual Judge Rules

Doc Berman notes this decision, in his words:

Thanks to this post at Sex Crimes, I have learned of this recent federal district court opinion which concludes "that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution." US v. Farley, NO. 1:07-CR-196-BBM, slip op. at 8 (N.D. GA. Sept. 2, 2008).

Secretly Shrinking National Security

Concerns over the lingering Gitmo cases expressed by Judge Leon as reported by AP, here.

Excerpt,

WASHINGTON (AP) -- A federal judge overseeing cases against dozens of Guantanamo Bay detainees said Wednesday that he fears the public - and the detainees themselves - will be locked out of the courtroom when evidence in the case is scrutinized for the first time.

Hundreds of detainees are awaiting hearings in a Washington federal court in the coming months to determine whether they were properly labeled enemy combatants and imprisoned without being charged.

U.S. District Judge Richard J. Leon, who has said he wants to resolve the 24 cases assigned to him before the next president is sworn in, urged President Bush's administration to find a way for at least part of those cases to be held in public.

"If it can't be done, I have great concern that these hearings will be virtually or exclusively classified, closed to the public and, I might add, to the detainees," Leon said.

Update to Doe privacy/national security appeal

The privacy case appeal, involving the Patriot Act, "national security letters" and judicial review powers, link here, (Doe v Mukasey; How Appealing, Lawdotcom), updating my earlier post, "Secret Government" was heard with skepticism on the part of a panel of 2d Circuit judges this Wednesday.

Excerpts from Lawdotcom:

Judge Calabrese expressed his concern to Assistant U.S. Attorney General Gregory Katsas that such language would permit the issuance of NSLs and gag orders in traffic safety investigations or operations seeking to determine if a state governor is patronizing prostitutes.

"Why isn't the appropriate thing to say that Congress here used, in a First Amendment sense, language that simply goes too far?" asked the judge.

The panel also expressed concern that the statute constrained judges reviewing such gag orders to uphold them unless they had "no reason to believe" any harm would arise from permitting disclosure.

Katsas countered that this standard could be "charitably construed" as "no good reason" and said the FBI's certification process was geared toward counterterrorism and national security concerns.

But Calabrese said he was particularly uncomfortable that gag orders could be certified by a special agent-in-charge, rather than a more senior FBI official.

"A special agent-in-charge is not someone who is directly responsible to the people," the judge said.

The ACLU brought the underlying case on behalf of a small Internet service provider served with an NSL several years ago. Jameel Jaffer, the director of the ACLU's national security project, told the court that gag orders were preventing many opposed to the Patriot Act's surveillance programs from speaking out.

But the judges pointed out that, of more than 40,000 NSLs issued, only three parties had complained about their inability to discuss them.

"Do we have any reason to believe there is anyone out there other than your client who is dying to make a speech about this?" Judge Sotomayor asked.

Tax Policy a Crime?

Economic Growth, the lifeblood of the economy, the fountain of youth of the Garden of Eden that we call the economy, is apparently not well served by ripping off the poor after all, via tax cuts for the rich. Sorry about that. I thought otherwise in my youthful days of indiscretion. Although I did have some misgivings that it could really be so.

Read about that here, in TNR. Does the right wing spin machine have a response? Or do they really just love to take candy away from babies? Exactly how stupid do they think the regular working stiff is? Really. Pretty stupid has got to be the answer to that one.

Annual Review, Criminal

For housekeeping purposes and future review and research, here is a link to a "terrific" summary of the USSC term as compiled by Prof. Rory Little of Hasting Law.

Alice, the Judge and the Constitution

How do Lewis Carroll, Humpty Dumpty, and Alice relate to the law? Check this piece out, by a "rogue" juror who refused to take an oath selected by the trial judge. Excerpt:

The scene in the judge’s robing chambers that day reminded me of a passage in Lewis Carroll’s Through the Looking Glass, where Alice is talking with Humpty Dumpty, the latter having just taken words out of context. In other words, Humpty Dumpty was lying:

"When I use the word," Humpty Dumpty said, in a rather scornful tone, "it means just what I chose it to mean – neither more nor less."

"The question is," said Alice, " whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be the master – that’s all."

Judge Young’s court presumed a world without an objective reality, just like Humpty Dumpty’s worldview.

Hamdan Verdict

Here, is Hirch's (Newsweek) take on the Hamdan verdict. As I've begun to suspect, opinions are written not only by judges, less frequently by lawyers (at least not quickly) and with the most brevity by the media, some in the media. The case is certain to be appealed and has a good chance of being thrown out, as it does not seem clear that driving a car, even carrying a terrorist, is a war crime worthy of much punishment, much less torture.

Why did the administration decide to lead off with this one? Is it the strongest case? Strongest argument for maintaining Gitmo? A risky decision. But that's why I'm not serving in this man's government.

As Matt Waxman, the former Defense Department assistant secretary of detainee affairs, put it to me (the author): "In terms of global perceptions, it's really been the U.S. system that's on trial more than individual terrorism suspects … The government has certainly lost the perceptions battle on this case so far."

SORNA and the Constitution

Here, at SexCrimes blog by Prof. Corey Young, are an article draft and the first Circuit (8th) decision interpreting the new sex offender federal registration act (SORNA). Prof. Young notes serious commerce clause constitutionality questions with the law and the recent ruling as well.

And here, (at CJLF's Crime and Consequences) we find the following excerpt, describing an examplary incident that demonstrates precisely why the registration laws are nothing more than a feel good, politically correct, ineffective, (and unconstitutional if not un-American) pieces of paper containing worthless ink.

Convicted Sex Offender Strikes Again, Victim Only 16: Angel A. Perez Jr., a 32-year-old convicted sex offender, failed to register his new address with police. He also had several outstanding warrants for larceny, which would have qualified him for diversion programs for "nonviolent" offenders. Now, he's charged with raping a 16-year-old girl in a park near her home, an ordeal that lasted for around an hour, according to Brian Fraga's story for the Standard-Times. Repeat offenders are just that, and the only way to protect society from them is for them to be incarcerated for increasingly longer periods of time.

Government and Secrecy

A good one from New Republic, by Jack Goldsmith (Harvard Law School professor, and former Bush Administration appointee) titled Secrecy and Safety here.

A sample of the analysis:

A root cause of the perception of illegitimacy inside the government that led to leaking (and then to occasional irresponsible reporting) is, ironically, excessive government secrecy. "When everything is classified, then nothing is classified," Justice Stewart famously said in his Pentagon Papers opinion, "and the system b
becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on selfprotection or self-promotion." And he added that "the hallmark of a truly effective internal security system would be the maximum possible disclosure," noting that "secrecy can best be preserved only when credibility is truly maintained."

The Bush administration defied these precepts and suffered as a result.

The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating. One lesson of the last seven years is that the way for government to keep important secrets is not to draw the normal circle of secrecy tighter. Instead the government should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger. In the end, not Congress, nor the courts, nor the press can force the government to follow these precepts. Only the president can do that.

Could someone please tell me what good has come from our secret, illegal, lying, spying programs, aka domestic and foreign "wiretapping" surveillance, about which the President and administration have lied, concealed and perpetrated with our money, right under our noses? From the politicization of justice and the economy that the administration has similarly perpetrated?

I have some ideas, but your comments are most welcome.

Conviction Reversed (Almost)

Lessons from an important insider trading case, in which Joseph Nacchio formerly of Quest, gets a new trial, is the title of a potential review of this one, from the Tenth Circuit.

Habeas and Unconstitutional Deference

The Supreme Court granted petition re: the 28 USC 2254(d) deferential standard of review in the case of Bell v Kelly (SCOTUSwiki preview here). The practical issue is, how do you get to present "new" evidence that was lost previously through your lawyer's conduct or misconduct, (or the governments sleight of hand, or procedure) when the standard of review won't allow for a fresh look at all the circumstances, but only a "reasonableness" test brushing over what is already in the record below? Petitioner took issue that the state court proceedings did not afford a full and fair hearing, sufficient to consider the element of prejudice. Finding no prejudice, but affirmative deficient performance, the courts below had denied relief.

To noone's surprise, there is a split in the circuits. Technically, it might be phrased: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas.

It occurred to me reviewing the briefs (available at SCOTUSblog wiki) that the adverse position makes a good practical case in point for why the statute is facially unconstitutional: following the dictates requires no substantive review, contrary to the traditional, constitutional role of higher court review.

Do we want our higher courts rubber stamping decisions in other areas as well? Not, hopefully.

An argument schedule for cases in Nov. follows:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings

Maryland Secret Government

Speaking of secret government, check this out. Apparently, Maryland's Gov. Erlich was doing some of that too. Spying on Anti war and death penalty activists under the pretext of fighting terrorism. How the definition morphs!

Secret Government?

At this link is brief of amicus curiae, the National Archive (of Washington, D.C.) and Electronic Frontier Foundation, in the case of Doe v. Mukasey, on appeal from the US District Court, Southern District of New York. Summary of the argument: judicial review of government's demands for secrecy is necessary to protect the security of the nation and quality of government decision making.

The case has an aspect of interest for habeas watchers: it challenges an attempt by Congress to usurp the traditional role of the courts. Part of the AEDPA, governing federal judicial review of habeas corpus, does this also, and may well fall under fire from recent constitutional challenges.

Criminal Justice Symposium

A criminal justice Symposium! The press release is at the link: "Alternatives to Incarceration"

Here's the meat:

Presenters at the symposium include federal and state judges, congressional staff, professors of law and the social sciences, corrections and alternative sentencing practitioners and specialists, federal and state prosecutors and defense attorneys, prisons officials, and others involved in criminal justice. Approximately 250 individuals representing the federal and state criminal justice communities, academia, and public interest groups have been invited to attend. Topics to be examined include –

* drug courts and treatment options for certain offenders;
* alternative sentencing options in the federal and state systems;
* restorative justice-based programs;
* prison programs resulting in reduced sentences;
* the Second Chance Act and re-entry issues; and
* collateral consequences of convictions.

UPDATE: A link to "Notes" is here, authored by Kent. The Sentencing Project makes waves there. Not taken seriously by the author of the notes. Apparently the transcript will be made available in E form. HT to Doc Berman (once more).

Texas Justice Re-redux

One more instance of a Texas exoneration, and how bad laws make everybody less safe, and life more miserable for the accused and wrongly convicted by making it easier to be wrongly convicted, at the link. Having identified the problem, let's put a stop to it. Thanks, Grits.

Scotus Term Summary, 2007-08

New York Times summarizes here, the most important decisions of the Supreme Court term just ended, leading with the Guantanamo Bay habeas/access to courts decision, Boumediene v. Bush, No. 06-1195, (the guarantee of habeas corpus applies at the Navy base in Cuba, the court said, and the truncated alternative procedure that Congress set up was not an adequate substitute.).

Not very surprisingly, the decision was “no bolt out of the blue” according to the majority. The minority (Justice Scalia for one) strove mightily to instill fear, the fear of deaths of more Americans, as a direct result of the decision.

Curious, how justices can disagree so drastically on the nature of a notion of what it means to live, and govern, under the rule of law.

What one hand giveth, the other taketh away: By contrast to the sharp division in the Guantánamo case, the court was unanimous in another case on the availability of habeas corpus. It rejected the Bush administration’s argument that two United States citizens facing criminal charges in Iraq, and held in that country by the American military, could not seek federal court review of their detention. The two were entitled to file habeas corpus petitions, Chief Justice Roberts wrote for the court in Munaf v. Geren, No. 06-1666. Proceeding to the merits of the petitions, the court ordered them dismissed on the ground that holding the men while awaiting further action by the Iraqi authorities did not violate their rights.

The Times counts five access to courts decisions deserving of mention.

Of the ten criminal cases deserving mention, two involved sentencing after Blakely: Gall v. United States, No. 06-7949, (upheld a trial judge’s refusal to impose prison time on a young drug offender, despite the sentence of 30 to 36 months called for by the guidelines), AND Kimbrough v. United States, No. 06-6330 (the court upheld a lower sentence for a man convicted of a crack cocaine offense than the guidelines called for under a formula that treated crimes involving crack cocaine much more harshly than those involving cocaine in its powdered form. Justice Ginsburg wrote the opinion. Both cases were decided by the same 7-to-2 alignment, with Justices Thomas and Scalia dissenting). Others involved the lethal injection challenge, death penalty for rape of a child, money laundering, and another had implications for international law.

Risk Assessment and Prison

In this post, titled "Examining the School to Prison Pipeline, readers of Doug's blog respond with interesting comments on the topic of the overincarceration and undereducation of our nation's citizenry. It leads naturally to ask not why are so many low risk offenders being locked up, but how can you tell the low risk offender apart from the truly dangerous, and habitual. Is it really that difficult?