A Bit of History

Here, we have the foreblawgers. HT: How Appealing

Why The Confession? Come to Papa

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

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

DNA Releases Another Innocent Prisoner

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

Ball's Blue?

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

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

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

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

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

And this, also reported widely already:

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

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

That's Grits

From Grits,

Sign Our Judicial Complaint Against Judge Sharon Keller

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

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

SCOTUS FOCUS

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

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

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

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

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

Wild Guesses -- Riding Bareback

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

Who wrote this?

Where was it published?

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

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

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

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

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

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

and finally,

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

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

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

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

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

More on Moratorium on DP

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

Re: Thinking Age of Consent

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

UPDATED

And here, about how the laws are ineffective.

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

"quis custodiet ipsos custodes?"

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

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

Criminal Justice Reform Could Go All The Way

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

Catching Up to Child Porn in Scotus

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

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

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

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

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

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

By Joan Biskupic

USA TODAY

Baze: Is Three Drug Cocktail Unconstitutional?

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

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

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

Crow's Nest

This summary is not available. Please click here to view the post.

Counsel for the Defense (Yes, We don't just shoot em first)

GOVERNMENT MOVES TO DISMISS KHADR APPEAL

In what can only be described as the latest ironic twist in the sad and strange tale of military commissions, Administration lawyers today filed a motion to dismiss Omar Khadr’s appeal from a special military appeals court decision allowing military commission proceedings to resume at Guantanamo Bay. Administration lawyers argue, in effect, that the Secretary of Defense lacked the authority to issue a military commission rule giving the defense the same ability as the government to seek review of military appeals court decisions.

The rule in question is part of the so-called Manual for Military Commissions, a set of procedures for military commissions issued by the Secretary of Defense in January of this year. The Manual implements the controversial Military Commissions Act of 2006 (MCA). The government’s filing appears to be an effort to hit the “delete” button on language in Rule for Military Commission 908(c)(3), which gives the defense a coequal right to seek review of decisions by the Court of Military Commission Review. Significantly, the MCA required the Secretary to report the rules to Congress for its review prior to commencement of commission proceedings. The Administration filing could be viewed, in effect, as an attempt to change those rules without proper notification of Congress.

Moreover, the government’s position is particularly ironic in light of positions taken before the Court of Military Commission Review in this very case. There, the government argued that the Secretary of Defense had broad authority to issue rules implementing the MCA and another federal statute giving the Secretary the power to delegate his responsibilities to subordinate DoD officials.

The position reflected in the government’s filing is, to say the least, odd coming from an Administration that has arguably made the most expansive claims for executive power in U.S. history. Indeed, the Administration has contended that the President can vary the meaning of federal statutes through so-called “signing statements,” and can ignore federal statutes that, in the Administration’s view, infringe on the President’s powers as Commander-in-Chief. Yet, in the Administration’s view, the responsible executive branch official in this case apparently lacks the authority to interpret the MCA in a way to make the commissions process slightly fairer to the accused. One wonders how they can even make the argument with a straight face.

Mukasey for AG -- NOT

Mukasey's weaseling on water-boarding was unworthy of him. Perhaps feeling pressure from his White House sponsors, he cast himself last week as little more than Torture Boy in long pants. His refusal to call water-boarding torture delighted the White House. His suggestion that he really wasn't familiar with the particulars of the technique was laughable. By now, no literate American adult is unfamiliar with this charming form of interrogation by near-drowning, which makes the claim even more absurd coming from a retired New York federal judge whose main claim to fame is presiding over difficult terrorism trials. Mukasey's response that "if water-boarding is torture, torture is not constitutional" was a transparent evasion. And the entire exchange throws a more sinister light on his borrowed quip that the infamous Gonzales-sponsored torture memo "was worse than a sin, it was a mistake. It was unnecessary." One now fears that Mukasey doesn't so much disagree with the substance of that memo, as he thinks that writing it down was a political error.

ouch. Read more from Prof. Bowman at Slate.

October - November News

Z

The Legal Monthly

Vol. 2 No. 8 Read Z the Blog at http://zlegaltimes.blogspot.com/ Oct/Nov. '07

The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information

Contents

The Costs of Justice

First Take TNR

JEC Rap Sheet

Dworkin: “The Supreme Court Phalanx”

Scotus Focus

A Prediction

A Cute, if Sardonic, Irony

Human Rights Watch Report

Sentencing

Retroactivity

Oral argument

Sex Offender Residency Restrictions

Mailbag

Read the rest at the Newsletter site.

Change or No Change? Big Money and Moray Hinge on This

Supreme Court’s agreement on Sept. 25 in Baze v Rees to rule on the constitutionality of the lethal injection method, and the Court’s order on Wednesday to postpone a scheduled execution in Virginia (Emmett v. Johnson).

Read the rest Here

Where's the Good Life Gone?

Hmmm. Here's Judith Warner at NYT:

newest set of poll results showing Clinton’s surprising levels of popularity among lower- and middle-class women, white moderate women, even black voters, was another story this week, based on a new set of data from the I.R.S.

It showed that America’s most wealthy earn an even greater share of the nation’s income than they did in 2000, at the peak of the tech boom. The wealthiest 1 percent of Americans, the Wall Street Journal reported, earned 21.2 percent of all income in 2005 (the latest date for which these data are available), up from the high of 20.8 percent they’d reached in the bull market of 2000. The bottom 50 percent of people earned 12.8 percent of all income, compared with 13 percent in 2000. And the median tax filer’s income fell 2 percent when adjusted for inflation (to about $31,000) between 2000 and 2005.

More and more people are being priced out of a middle class existence.

More Key Points

* The United States has the highest reported incarceration rate in the world. While the United States currently incarcerates 750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons. Russia, the country with the second highest incarceration rate, imprisons 624 per 100,000 persons. Compared to its democratic, advanced market economy counterparts, the United States has more people in prison by several orders of magnitude. Although crime rates have decreased since 1990, the rate of imprisonment has continued to increase.

* Growth in the prison population is due to changing policy, not increased crime. Many criminal justice experts have found that the increase in the incarceration rate is the product of changes in penal policy and practice, not changes in crime rates. Changes in sentencing, both in terms of time served and the range of offenses meriting incarceration, underlie the growth in the prison population.

* Changes in drug policy have had the single greatest impact on criminal justice policy. The Anti-Drug Abuse Act of 1986 created mandatory minimum sentences for possession of specific amounts of cocaine. The Act instituted a 100-to-1 differential in the treatment of powder and crack cocaine, treating possession of 5 grams of crack cocaine the same as possession of 500 grams of powder cocaine. Crack cocaine is typically consumed by the poor, while powder cocaine, a significantly more expensive drug, is consumed by wealthier users. Mandatory minimum sentences for low-level crack-cocaine users are comparable (and harsher in certain cases) to sentences for major drug dealers.

* The composition of prison admissions has also shifted toward less serious offenses, characterized by parole violations and drug offenses. In 2005, four out of five drug arrests were for possession and one out of five were for sales. The crime history for three-quarters of drug offenders in state prisons involved non-violent or drug offenses.

* The prison system has a disproportionate impact on minority communities. African Americans, who make-up 12.4 percent of the population, represent more than half of all prison inmates, compared to one-third twenty years ago. Although African Americans constitute 14 percent of regular drug users, they are 37 percent of those arrested for drug offenses, and 56 percent of persons in state prisons for drug crimes. African Americans serve nearly as much time in federal prisons for drug offenses as whites do for violent crimes.

* The U.S. prison system has enormous economic costs associated with prison construction and operation, productivity losses, and wage effects. In 2006, states spent an estimated $2 billion on prison construction, three times the amount they were spending fifteen years earlier. The combined expenditures of local governments, state governments, and the federal government for law enforcement and corrections total over $200 billion annually. In addition to these costs, the incarceration rate has significant costs associated with the productivity of both prisoners and ex-offenders. The economic output of prisoners is mostly lost to society while they are imprisoned. Negative productivity effects continue after release. This wage penalty grows with time, as previous imprisonment can reduce the wage growth of young men by some 30 percent.

* Prisons are housing many of the nation’s mentally ill. Prisons are absorbing the cost of housing the nation’s mentally ill. The number of mentally ill in prison is nearly five times the number in inpatient mental hospitals. Large numbers of mentally ill inmates, as well as inmates with HIV, tuberculosis, and hepatitis also raise serious questions regarding the costs and distribution of health care resources.

* The United States faces enormous problems of offender reentry and recidivism. The number of ex-offenders reentering their communities has increased fourfold in the past two decades. On average, however, two out of every three released prisoners will be rearrested and one in two will return to prison within three years of release.