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.