Sunday, December 24, 2006

Ohio Death Penalty Overview, Abolition Possible in Maryland

Maryland Moratorium on Executions

What we're hoping will happen is that the governor will see and the legislature will see that this is an unworkable policy and that the time and money that it would take to fix it -- and we believe it is unfixable -- is just a waste of everyone's resources," said Stephanie Gibson, an associate professor at the University of Baltimore and a chairwoman of the board of directors of Maryland Citizens Against State Executions. "We're the third state now that has a de facto moratorium because of problems with lethal injection. There is no good way to execute people."

But Del. Barry Glassman, a Harford County Republican and capital punishment supporter, said he would not be surprised if the General Assembly takes up a proposal on whether to repeal the death penalty.

"This issue is of a magnitude that it's going to require some kind of legislative action to address whether you're for or against the death penalty," Glassman said. "The legislature really has the duty to weigh in on this. It's a big enough policy question that a committee should look at it and a whole body should vote on it."

Click to read the full article from BSun


From near a Conspicuously Deathly post by DAB, who pasted on very good overview pieces re Ohio (not critical, I'm the one being cumbersome)
Here is a Nation article by Bruce Shapiro:

For the last decade, the issue that has driven the death penalty debate — galvanizing the attention of courts and press alike — has been innocence: a capital representation system so criminally negligent that 123 wrongfully convicted death-row inmates have been released, and public confidence in death sentences eroded.

Yet innocence cases, in their own way, have evaded a fundamental question: What about the grievously guilty? What about what one pro-death-penalty legal scholar calls "the worst of the worst"? Are executions of the truly guilty consistent with America's evolving constitutional standards, with national ideals and worldwide human rights norms?

And here the article in Cleveland Plain Dealer and on Ohio Cases are linked (thanks to DAB). Columbus Dispatch article here on sex offenders. Here is a taste of that one:

In March, Judge Daniel T. Hogan, the administrative judge of the 17-member Franklin County Common Pleas bench, told lawmakers that going too far will actually benefit criminal defendants. "The vast, vast majority of child sex-assault cases are not supported by strong evidence," Hogan said, adding that if stronger punishments push more offenders to opt for trial, fewer convictions will result.

I completely agree with that...but this view is rarely heard. This also presumes that a fair trial can be had. In some states that is still not possible given the "climate" of public opinion, e.g., Texas and ... (anybody have any more from personal experience?).

This Does Not Happen Often: Banishment ordinance stricken as Punitive in Cape May (Friday)

If you want a shock click on this from Worldnet Daily: "Sextra Credit"

Thursday, December 21, 2006

Sub-lethal (illegal) Injection?

There must be blood in the water, the sharks are circling, the beast has been sighted, and it is (find out with DAB) ... [Choose only one: a) sub - lethal injections, b) the white whale, c) Ahab, d) your lawyer calling.] OR, is it

Change Needed in the Courts? Ron Rotunda writes in Washington Post:

The Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress, would create an inspector general for the courts. It offers modest reforms that would keep our judiciary independent (because no one favors a dependent judiciary) and help keep it accountable (because no one favors a judiciary that is above the law).
THAT would be a change. Is this just politics or something with real teeth? How would an IG further the cause of independence? AND judiciary should be accountable to whom? How would that work? House Judiciary Committee recently voted in favor of this bill by a bipartisan majority of 20 to 6.

Sean Penn Politics

Sean, who cut your hair? Get your chit together. Your politics are okay with me, however. Happy Holidays, Robin, Hopper, and Dylan: Have your people call my people. (Hat tip Hannaty and Colmes)

Wednesday, December 20, 2006

Trends and Updates

A few interesting things to note:

Judicial Activism is not necessarily always a "liberal" phenomenon, esp. in the area of Seventh Amendment jury trial right, (re judges taking matters away from jury via summary judgments) (hat tip scotus)

And excellent piece by Jonathan Hafetz "American Justice on the line" from Huffington Post referncing Federalist #84. Hafetz is one of Al-Marri's lawyers, (see below).

There is a lot happening in the Fourth Circuit with the case of Al-Marri v. Wright (docket 06-7427) which plans to hold a hearing on it early in February. Scoot over to SCOTUSblog for all that. Judge Robertson's Order dismissing Hamdan's case from last week is over there too.

Find links to Carey v. Musladin commentary by Prof Amar and Maryland high court ruling halting executions at Standdown Texas.

Doug Berman (SL and P) asks whether the PROSECUTOR should request clemency for Genarlow Wilson. The comments (4) illustrate what I was talking about here this morning concerning my friend who thinks PROSECUTORS OFFICES are where you can really make a difference in this area of the law.

What Ails Republicans?

Sorry, I only made one entry yesterday; I usually strive for two, but it is getting a little busier right now (or am I just trying to do a little more other stuff?). Enjoy, and comments, guest blogging are always welcome. Heard on C-Span Radio this morning on my daily commute, "mean tough guys" in prisons should be given a chance to serve in the military and not waste their youth. There are, admittedly, a lot of ready, willing and able men (and women) who are probably not too far gone, dangerous, or feeble-minded to serve. There is a good solution to the Army's/Marine's recruiting problems. As we know, many of these guys just made one mistake, got caught doing what a lot of other people are doing or have done, and/or simply don't need to be locked up.

Also had an interesting discussion that went (sort of) like this.

Friend: if you want to make a difference in the area of habeas corpus you have to work for the prosecution--they are the only ones who have the power to do anything (about a wrongful conviction or faulty/illegal confession for instance).

I was not able to articulate the fact that in our adversarial system too many prosecutors will NOT go out of their way to fight for right, but find that to advance in their careers they must litigate every "nook and cranny" of the law, and look the other way when Brady evidence is obvious, or just when a case might smell bad from the beginning. That mean "not caving" even when you think the other guy is right, although justice might require that. That is why justice is so hard to come by in places. It is true, my friend's point, that in habeas prosecutors hold all the cards because so few defense lawyers do that kind of work and so few prisoners can pay a lawyer after they've spent their last dime fighting on trial, appeal, etc.. Only in death penalty cases is a lawyer required in habeas. In all other cases prisoners are not constitutionally entitled to a lawyer.

My experience in Virginia, a few years back, did however give me some faith that prosecutors tried to do the right thing most of the time but this does not hold true for all too many of the other jurisdictions, especially in the South, Old South, Deep South. Evidence of that is still, sadly, seen every day.

What ails the Republicans? Find out from Newsweek.

Look what I found:

One of the ill-concealed subtexts of my book Our Undemocratic Constitution is that my colleagues in the legal academy pay much too much attention to the rights-conferring parts of the Constitution (which are often exactly what Madison predicted they would be, "parchment barriers" that are all too permeable given the right degree of public panic and malleable judges) and too little attention to the "hard-wired" structural features that, I now believe, explain much more about the actualities of American politics than do the clauses that law professors fixate on...

Get the rest of piece here: (from The New Republic)

This is why I love the guys over at TNR:
Last week the Washington Times op-ed page, in the form of the
oleaginous (oily? not holy oil? greasy?) (more here)
Tony Blankley, voiced its concern that Hillary was going to rough up Barack Obama. Now it's the Wall Street Journal's turn. Here's John Fund ...

Also, found this

over there.

(what I really meant to say, here, was "one of the next future presidents...")

Veto of Banishment Law Upheld:

“As parents we need to be constantly vigilant of our children. Preventing sex offenders from living here does not prevent them from being here,” Mr. Ossing said. “This law is going to be another unenforceable feel-good law.” Finally, common sense seems to be taking hold. Read this here and more here.

In the Richmond Times Dispatch (in police beat somewhere, a new federal pd office opens in Western Virginia). Andrea Lantz Harris and Frederick T. Heblich are the first lawyers hired in a new defender's office serving the Charlottesville and Harrisonburg divisions of the U.S. District Court for the Western District of Virginia.

I am adding Richmond Times Dispatch and probably Baltimore Sun and Annapolis papers to the MSM links (at right).

"No New Prisons" Campaign starts up in Washington State.

More on the Drug War, Borden's blog.

Tuesday, December 19, 2006

Trends: Last Week Before Christmas

Wanna Grow the $$$$$$$????????? Big Cash Crop? Find what it is at Real Cost of Prisons (link also to right). So Money does grow on trees as well as in the devil's workshop, or sometimes bushy little stalks, with sticky little leaves. The next future POTUS, Barack Obama, HAS inhaled: even though inhaling does not always necessarily follow the sucking, that was the point. (oops, fixed that typo!)

Weighing in on Moral Tactics and International Military Law is Professor Amos N. Guiora writing in the Baltimore Sun about a ruling in the Israeli Supreme Court:
The ruling establishes a checklist of how the state is to proceed in these cases. Harming civilians who "take direct part in hostilities," as defined in the decision, "even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values-based test, intended to balance between the military advantage and the civilian damage."

Recently, the United States Supreme Court, in Hamdan v. Rumsfeld, held that the military tribunals established by President Bush in the aftermath of 9/11 did not pass judicial muster. The presidential order of November 2001, creating the tribunals, was not subject to rigorous checks and balances. The U.S. Congress was largely somnolent, and then-Chief Justice William H. Rehnquist had previously written that in times of conflict, the court must be "reticent."

Counterterrorism consists of four "legs": the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorismoperations reflect a harmonious confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. It is also very difficult to develop, implement and articulate.

Amos N. Guiora is professor of law and director of the Institute for Global Security, Law and Policy at Case Western Reserve University School of Law. He served for 19 years in the Israel Defense Forces and held senior command positions including commander of the IDF School of Military Law. His e-mail is amos.guiora@case.edu.

Here is the SCOTUS Feb calendar (hat tip SCOTUSblog)

And here we'll find Habeas Corpus Restoration efforts (also from SCOTUS blog) S. 4081, titled "To restore habeas corpus for those detained by the United States." The text of the bill can be found here, and statements by the two senators when they jointly introduced the measure can be found here. Lyle Denniston reporting:

***The measure would appear to have a good chance of passage, at least in the Senate: when Specter attempted to head off the court-stripping wprovision in
the just-ended session, his move failed by a 51-48 vote. The Senate's membership, of course, has changed markedly after the November election.

President Bush would be strongly likely to veto any habeas restoration bill that reached his desk in the new Congress. And there almost certainly would
not be enough votes in Congress to override a veto, even with Democrats in control. Even so, the maneuvering indicates that the question of habeas rights is not likely to be resolved finally, any time soon.


In a comment, Don Robertson, "The American Philosopher" posted a note and excerpt from "The Road to Harpers Ferry" J.C. Furnas, 1959, (William Sloane Assciates, New York) which looks very interesting for abolition, civil war history buffs AND habeas corpus nuts.

CapitalDefenseWeekly has this encouraging post about yours truly, (recognition, at long last there is evidence of--no not water on Mars, which is there too--but that the writing has resulted in the reading).

This is Still Big News: from Howard Bashman at How Appealing (link at right); and Doug Berman at Sentencing Law and Policy (link at right) leads with a post of his own on this today. But this item from yesterday about Claiborne and Rita (pair of SCOTUS cases in sentencing to be decided soon) is the one I am really looking forward to sinking my teeth into:

Howard writes,

"Georgia Man Fights Conviction as Molester": The New York Times today contains an article that begins, "Genarlow Wilson, 20, is serving a prison sentence that shocked his jury, elicited charges of racism from critics of the justice system and that even prosecutors and the State Legislature acknowledge is unjust. He was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting, even though Mr. Wilson himself was only 17."
And The Atlanta Journal-Constitution today contains an editorial entitled "Order justice under righted sex law."

My earlier coverage appears at this link. This matter was also discussed yesterday at "The Volokh Conspiracy" [link at right] and "Sentencing Law and Policy." HB.

AND maybe this is why (from StandDown Texas), as Grits (link to right) reports, Harris County (Houston) Texas wants to increase the already largest county jail in the country's capacity by fifty percent.

ALSO Sex Crimes had some good ones yesterday, making up for HIS weekend hiatus (link at right).

Monday, December 18, 2006

Sensible AND Compassionate in Maryland

I almost forgot, "[b]eing tough on crime doesn't mean 'lock 'em up and throw away the key,'" so the state has hired more social workers, addiction counselors and psychologists to work with prisoners, Richard Rosenblatt said.

Rosenblatt is the assistant secretary for treatment services for the Maryland Department of Public Safety and Correctional Services. The state Division of Correction is part of DPSCS.

Read more here, at Herald-Mail.

Habeas Corpus Takes the Weekend Cake

Wow, a 48 hour plus hiatus from blogging has done wonders for the soul.

Emily Bazelon weighed in on Habeas Corpus this weekend with a piece that ran in Slate and the Washington Post Outlook. This should be read with Fareed Zakaria's piece in the New York Times. He reviewed books by John Yoo and Bruce Ackerman on terrorism, Habeas Corpus (the great writ) and "the rule of law." Fareed is the editor of Newsweek International, the author of "The Future of Freedom" and the host of the PBS program "Foreign Exchange."

Here is an article from Salon (by Alex Koppelman) showing why Habeas Corpus and judicial review is still badly needed. The quote from Jonathan Turley refers to the inhuman "treatment" of terrorist suspect Padilla. Turley is professor of law at George Washington University and specializes in constitutional criminal procedure.

Turley says that is symptomatic of problems with the administration's strategy in prosecuting terror cases generally. He believes that by abandoning traditional methods, such as those used in the Crocker case, it has crippled its own efforts.

"In some ways, this president is the best friend of the criminal defense bar. His inclination to ignore legal standards serves to undermine even the strongest case," Turley says. And had they tried Padilla in the way terror suspects had been prosecuted for years, Turley says, he believes that "Jose Padilla probably could have been convicted by now."

Here is your comprehensive guide to "collateral consequences" of a conviction, said to be an invaluable resource for attorneys, policymakers, and citizens, (from Sentencing Project dot org) and, here at this link you'll find a "prison consultant" (Dr. Prison) claiming to, well, take a guess, is it survival or comfort we are looking for? I make no claims as to either of these products, but here is what Dr. Prison says:

If you don't know how to act in prison, you will have...
*
25-30% chance of getting killed during your prison sentence.
*
10-15% chance of getting raped during your prison sentence.
*
30-40% chance of getting stabbed during your prison sentence.
*
80-90% chance of getting beaten during your prison sentence.
- If you make trouble in prison, you could face...
*
23-hour solitary confinement, with 1 hour outside, all alone.
*
No visits or privileges of any kind.
*
A cell worse than this.

Other notes about prison:
*
Prison guards care very little if at all about you.
*
Prison riots last an hour on average.
*
Prisoner jobs throughout prison generally pay less than $200 a month.

I happen to know that Texas State prisoners get no pay whatsoever, and one three minute telephone call every 90 days, if they are lucky (and behave).

Here is a book that looks interesting:

The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice (Hardcover)
by Paul Craig Roberts, Lawrence M. Stratton

AND, did you know there are 7 millions incarcerated in the United States? What
happens to these folks concerning employment when they come out? Learn about a program which will work to provide meaningful employment for those persons being released from prison, or those presently on probation. It may be too late to click the following link:

http://www.acbradio .org/pweb/ index.php? module=pagemaste r&PAGE_user_ op=view_p
age&PAGE_id= 8&MMN_position= 14:14

but there it is. Maybe there's a way to track it back.

Okay, enough for now. Thoughts, comments, feedback is appreciated. Blog on!

Saturday, December 16, 2006

Just Tinkering

Some of you may have noticed that the page element at the top describing Z the Legal Blog has changed. I was slightly dissatisfied with the way it read so there you have it. I am still not COMPLETELY happy with it now, but I'll sleep on it and see what happens tomorrow.

I have also added a new link at the top right to the Monthly Newsletter because I did not want that to interfere with the bloggy character of the page. It also makes it easier to access the Newsletter for the folks who want to see just that, unjumbled with the blog postings.

Speaking of sleeping on it (tongue twister - let's play nicely, Jamie Lee - I love you - I am collecting all your new ads, movies too: blog/call me (nice pic here)) the blogosphere is full of knee jerk split second reactions to everything, so I thought I would create a "new" feature here, story of the week. My picks for this "off the kuff" are

1. The Florida moratorium on executions (SCOTUS will have to take this up within the next year, says Jeffrey Toobin, currently is a staff writer at The New Yorker magazine, former legal analyst for ABC News, and the author of four books);

2. Innocent Man Released in Harris County/Houston, Texas links available here and
Opinions of CCA here:

3. The military generals and Bush administration are actually considering increasing troop strength IN Iraq, and the size of standing army.

4. Supreme Court, which makes news every time it rules, this week in Musladin (click here and here, for my earlier posts, the opinion is here)

5. The Fifth Circuit opinion in Nelson v. Quarterman (my earlier post here).

Friday, December 15, 2006

AN OPEN LETTER ON BANISHMENT: S-4089

RE: Senate Bill S-4089 "Stop the Online Exploitation of Our Children Act of 2006"

I would like to express my deep and sincere concern over this Bill. First, let me say that I do not favor the exploitation of children, but this Bill casts the net too widely.

It does not accomplish the stated purpose. I am particularly concerned that this Bill would deny constitutional rights to freely access and participate in the Internet and WorldWideWeb.

The internet (web), and all of its various shapes, forms and devises, to include websites, shopping and communications services, and other informational tools and utensils are very important, if not absolutely essential to life in the twenty-first century.

We do not say that we will prohibit all sex offenders as a class from reading or writing, or publishing books, or telling stories in person. We do not say that we will prohibit sex offenders from using the telephones or the public roads, or rail, or buses, or parks, or schools or mails or other public utilities and establishments.

We should not say that we will prohibit sex offenders from using the internet.

Please do not pass a Bill that would restrict any American from using the internet to the full extent of her and its capabilities.

A review and additional info on this Bill is available by clicking here.


Throughtout the Internet folks are discussing Sen. McCain's proposed bill S-4089 (click link to go to bill) "Stop the Online Exploitation of Our Children Act of 2006" which is claimed to be an effort to curtail child porn. The bill has been read twice in the Senate (on 12-6-06) and referred to the Senate Committee on the Judiciary.

A second focus of the bill is to require registered sex offenders (RSOs) to provide an e-mail address when they register. Folks are erroneously claiming there will be a federal registry of just e-mail addresses so that social networking sites may deny RSOs access to their websites, that is not true. What the bill indicates is, each RSO's individual record will also contain the e-mail address they provide when they register.

Place to go for all things (okay, many) affecting sex offenders (eAdvocate).

TGIF

TGIF Heading into another Weekend here is a newsy update. So we'll poison the well in order to save the water. That's right, send more troops says Sen. McCain. Of course the generals need a bigger standing army to do this. I respectfully disagree. Do not throw good money after bad.
Here's the plan: draw a perimeter, tell the Saudis to mind their own business and simmer down. We'll save money, lives (ours), and credibility. No matter who controls Iraq it will still be Muslim, anti-American and non-democratic. We need to go back to "self-determination". We lost before we even started. They can sort it out better than we can. Keep terrorism inside/contained AND away from our troops.

The sad story of the Botched execution(s) is here.

Baseball Fans: new import from Japan is the Type O Warrior (hat tip NYT)
In Japan, people with Type O are commonly referred to as warriors because they are said to be self-confident, outgoing, goal-oriented and passionate. According to Masahiko Nomi, a Japanese journalist who helped popularize blood typology with a best-selling book in 1971, people with Type O make the best bankers, politicians and — if you are not yet convinced — professional baseball players.

Poll Says the New Congress is Trusted: Americans trust Democratic lawmakers more than President Bush to handle the nation's toughest problems, including the Iraq war, and a quarter of Republicans are glad that Democrats have won control of Congress, a Washington Post-ABC News poll finds.


A good blurb on Terrorism and Security (by Tom Regan of Christian Science Monitor)

Here you will find a good roundup of the blog and media coverage of the Musladin Supreme Court decision. Hat tip Kent at Crime and Consequences.

Too Good to Pass: Mike at Crime and Federalism (link below at "Mike says")has this called "How Scalia Views the "Little People" -- juicy, for "populist conservatives" -- Here is how Justice Antonin Scalia views 99% of people:

"If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary [$165,200] is," Scalia said during a speech to the Northern Virginia Technology Council.

Mike says: Ninety-nine percent of people make much less money than that. According to Justice Scalia, they must not be raising their families properly. Only the little people make less than 150K. I would love for someone to explain why someone who holds such viewpoints about Americans is considered a populist hero by lower-income conservatives.

Open Letter to Justice Scalia by Keith S. Hampton is here.

More on Hamdan (hat tip Kent at Crime and Consequences)
District Court has dismissed for lack of jurisdiction the habeas petition of Guantanamo detainee Salim Hamdan, whose case went to the Supreme Court in Hamdan v. Rumsfeld.

The opinion has three main points. First, the statute did repeal the court's habeas jurisdiction. The court brushed aside rather easily the shaky statutory interpretation argument that it did not.

Second, Congress has not validly suspended the writ of habeas corpus. The constitutional conditions for suspension, rebellion or invasion, are not present. "If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional."

Third, Hamdan is not constitutionally entitled to it. Here Judge Robertson has an analysis of the historical cases of habeas for aliens that is quite consistent with our brief in Hamdan and rejects the superficial citation of these cases by Justice Stevens in Rasul v. Bush, n. 11.

Hat tip also Crime and Consequences re the Duke rape case. David Scott of AP reports on a defense motion in the Duke Lacrosse team rape case alleging that a DNA test by the prosecution showed multiple males' DNA but none of the team members' and that the result was not disclosed to the defense. The story doesn't say what relief the motion is requesting. Given that they do have the information months before trial, there doesn't seem to be a Brady violation here.

RE Counsel, Medellin and Acker in CCA by Austin American Statesman, here (Nov. 20).

"This state's highest appeals court for criminal cases consistently ignores justice, even when the evidence of injustice is clear. True to its recent history, the court last week rejected two appeals from condemned inmates whose trials were travesties of justice."
"The most ardent death penalty advocate understands that a capital murder proceeding must guarantee a fair trial. One of the strongest arguments against capital punishment in Texas is that the judicial system is so broken that innocent defendants can be condemned and executed."

Cause and effect: The AP reported 12/12--that CCA set new rules to ensure better performance of lawyers for death row. Rules were adopted Monday, (12/11?).

Thursday, December 14, 2006

Nelson v Quarterman

Nelson comes down in 5th Cir. This is a Penry-type capital case involving Texas jury instructions structure failing to giving "full effect" to all mitigating evidence. The State argued this is a Jurek (428 U.S.) type case erroneously contending Jurek is inconsistent with Penry according to the majority. The case hits the high notes in Capital Sentencing and the opinion reassembles and realigns AEDPA standards, according to the 5th Circuit of course; slips by the Teague rule (can't announce new rule on collateral review) of course; and the first 24 pages of the majority opinion (about 50 percent) are devoted to the current state of the law--as it was when Nelson's conviction became final (of course).

Holding: Because there is a reasonable likelihood that the jury was precluded from giving full effect to Nelson’s mitigating evidence, we hold that the Texas Court of Criminal Appeals’ determination was an unreasonable application of clearly established law as announced by the Supreme Court.

More coming on Judge Dennis's concurring opinion and the dissenters (6) led by Judge Edith Jones. All told, this is 161 pages of great stuff, if you like 5th Circuit stuff and death penalty and jury issues and stuff like that. Not 6/5" quarterbacks named Manning or anything like that, but still pretty sexy. I actually prefer blonds, and ... older women, only not when I'm carrying the ball.



Read more about it at the usual links.





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To All Who Contributed

THank You!





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December Newsletter

I've just put up the current issue of Z The Legal Monthly (the Newsletter). Read it at this link. Read on below for a preview:

The Elections are over, the punditry is over and done with, the new Congress is set to convene. Whether the Democrats will be able to do anything the Republicans could not do is the question: You all know the old saw about the new broom. Just one more
thing, “going commando” is the new big thing. Britney does it, and George Clooney says he never does, unless he is “fully waxed.” This is where the picture is worth many thousands of words.


Thecurrent issue brings you several new cases in the area of habeascorpus of course, a few books I've read and reviewed, and a mishmash of other stuff. We'll keep following the thread of AEDPAunconstitutionality and the Irons case, particularlyinteresting because of the likely wide impact it could have, if it has legs. Texas Parole issues are of special interest to me and a

reader has asked about it, so I'm going to do a bit more reading and focus on it in the January issue. Meanwhile, you can pull up an article by Doc Berman on the future of parole at Sentencing
Law and Policy (the blog). The courts have been taking on issues of procedural default, actual innocence and newly acquired evidence, independent state-law grounds and
exhaustion of remedies, terrorism habeas cases, IAC (ineffective assistance of counsel) and Brady violations and, 42 U.S.C. 1983 which I find interesting as a method of private enforcement of the law, aka the “constitutional tort,” government secrets and electronic surveillance.

Mostly, true to the form and intent of AEDPA, courts are denying relief. The few cases in which the writ is granted continue to be instructive gems.


The federal government recently settled a wrongful arrest case for 2 Mil with an Oregon man but not all cases are so easily won, or lost, if you can look at this from the point of view of the taxpayer. It is not often noticed that Americans will pay every last penny of that settlement via taxes. The other thing we don't take notice of enough is abuse of prosecutors' powers. Our not noticing, together with a favorable climate in the courts has resulted in virtually unfettered prosecutor “discretion” and egregious abuses that go along with that power. We'll learn more about that in this issue.



Store and Innocence Project, Charitably Yours

I have added new controversial "popular" titles on politics, crime and politics, and the U.S. constitution to my store. The Iraq Study Group store will also be updated soon as the problem of Iraq deserves special attention. I will be looking for new stuff regularly, and the price is always right. You can also see/visit my Amazon "wishlist." (I think).



Add to your book collection or send a gift to somebody, show them you care, and at no cost to you support the Innocence Project. The Amazon link will credit your purchase towards my Associates account if you add items to your shopping basket within 24 hours of linking through my "store." You may pay and accept delivery later than that of course; and you may reopen the 24 hour window by visiting my site and linking again to Amazon at any time. Thank you!





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Wednesday, December 13, 2006

Trends and Updates: More on Musladin

Google blogsearch Skilling (as in Jeffrey) for all the blogs on going straight to prison. It usually means getting an early start on the time, inevitably, to be served pending appeal. It is a significant blow, however, when the defendant has even a slight chance of winning remand or reversal on appeal.

A Poll, always interesting, about Government and Privacy here from Washington Post:

Sixty-six percent of those questioned said that the FBI and other agencies are "intruding on some Americans' privacy rights" in terrorism investigations, up from 58 percent in September 2003. Thirty percent think the government is not intruding on privacy.

Support for intrusive tactics has dropped even more significantly during that time. A bare majority, 51 percent, feel the tactics are justified, down from 63 percent three years ago.
The poll was conducted by telephone from Dec. 7 through Monday, and the results have a three-percentage-point margin of error.

RE: Carey v. Musladin (my earlier posting here -- opinion here Carey v. Musladin). Justice Thomas:

This Court has recognized that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial. Estelle v. Williams, 425 U. S. 501, 503-506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986). In this case, a state court held that buttons displaying the victim’s image worn by the victim’s familyduring respondent’s trial did not deny respondent his rightto a fair trial. We must decide whether that holding was contrary to or an unreasonable application of clearly established federal law, as determined by this Court. 28 U. S. C. §2254(d)(1). We hold that it was not.

***Given the lack of holdings from this Court regarding thepotentially prejudicial effect of spectators’ courtroomconduct of the kind involved here, it cannot be said that the state court "unreasonabl[y] appli[ed] clearly established Federal law." §2254(d)(1). No holding of this Courtrequired the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to oran unreasonable application of clearly established federal law.
My thought: SCOTUS could simply decline to establish clear law, accomplishing the aim of making it impossible for lower courts to grant relief under the AEDPA standard. Indeed, Justice Thomas's opinion clearly reflects a reluctance to provide much, if any, guidance as to what the substantive law is. He has simply found no clearly established law on the issue and that is the end of the matter for him. Too bad that all SCOTUS cases are not so easy to resolve, and that two of the often "liberals," Justices Ginsberg and Breyer, joined in this swat against justice and stare decisis.

If the justices do not wish to discuss the substance of the law, what is and was, and what could or should be, then why grant cert at all? The answer in this case? Just to reverse the Ninth Circuit. How does this advance the stated goals of the Court's review powers?

The good thing might be that the case leaves open the door just a skosh for a similar claim in which better facts might be found. But what better facts could there be involving possible coercion, intimidation, in the courtroom? It would seem that there MIGHT be a matter of degree in question, but when it comes to coercion or intimidation it is hard to draw the line between how much is too much. The analogy is this: how much pain is too much? Just cut off the pinkie, maybe...or just the tip of the pinkie finger, that won't hurt quite as much.

The real lesson here is that you can not shoot and kill somebody and expect to get habeas relief afterwards. This is page 1, section I, para. 1 of the opinion: On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin’s estranged wife, Pamela. Game, set, match, checkmate, strike three, game over. Simple as that for this panel. That is not good news for the law. Because the point of the law is to make darn sure that you did the killing (with requisite intent), not that there was one.

Tuesday, December 12, 2006

Chilly, but Nice in Western Maryland

Just a little something to get you going on a chilly Tuesday morning in Western Maryland. Thank god it's not Vietnam and thank god its not Iraq.

1 Over at SCOTUSblog, Lyle Denniston is reporting that the Supreme Court has reversed the Ninth Circuit's decision in
Carey v. Musladin. The short majority opinion is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more. For some additional blogosphere commentary, check out Crime Consequences and Althouse (blogs). Hat Tip Doc Berman at Sentencing Law and Policy.

2 California's Prison Problems Spotlighted in
NYT:

More on that in
LA Times: "Punishing Prisoners at all Costs." As I note in my header (the blurb at the top, describing my blog), "there has to be a better way." (by Joe Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," -- Domanick is senior fellow in criminal justice at the USC Annenberg Institute for Justice and Journalism)

3 Texas Parole: This is of special interest to me so I'm going to do a bit more reading and post further on this. Meanwhile, read
Doc Berman on the future of parole here.

4
Unintended Consequences: Iowa's residency restrictions creating more problems than they solve. Hat Tip Doc Berman.

5 Sentencing and SCOTUS:
Sentencing fans eagerly awaiting what the Court will say in the Cunningham case about Blakely's applicability to California's sentencing system will have to wait at least another month.

Some have speculated that, in light of the cert grants on Booker issues in Claiborne and Rita, the Court might not issue Cunningham until late Spring. Personally, I would be surprised if the Justices will sit on Cunningham until it deals with Claiborne and Rita (which won't be argued until late February), but who knows what we should expect from slow-poke SCOTUS these days.

Doc Berman's blog Sentencing Law and Policy has all this and more. My hat is permanently tipped in your direction Doug. Thanks!

Christmas Is Time For Giving: As it will soon be Christmas, or Holidays, or just time for gift giving and spending money, let's not forget that lots of people will be missing their loved ones who might be soldiers fighting overseas, or locked away in prison: there is no justice. Lots of prisoners are just plain innocent. Too many. That's why I started the Innocence Project and write this blog and newsletter. Please donate. Send your check to Innocence Project, PO Box 200, Jefferson, MD 21755.

It is an especially hard time of year if you are in prison. It's hard even if you're not. It is an especially good time to begin thinking of new resolutions and turning over a new leaf. If you have not done your good deed for the day, month or year just start today and give a little. It will make you a better person! There is always room for improvement, right?

Monday, December 11, 2006

Culture Warrior: A Preview of the Book and Z's Monthly


On the topic of begetting wrong results Bill O'Reilly has a new book, Culture Warrior (Get this from my Amazon store at right and, at no cost to you, support the Z blog). Being of Irish descent, he fancies himself a modern day warrior and while he has a remarkable story of “success” he admits he really means financial success. Making a pile of money is pretty much all that he has done. His success has come at the expense of truth in my opinion. He tells the regular American guy what he wants to hear: “liberals” gays and godless activist judges are changing the world and not for the better. He claims this is not about liberals v. conservatives, so he uses S-P “secular progressive” -- in other words sans religion and not just liberal but wildly so. Disingenuously, he has written that the culture war is “much more complicated than that” but from the every day examples he talks about it is obviously, precisely, clearly about liberals and conservatives. There is simply no other nametag that fits. Using the term S-P doesn't change the facts.


So what does this have to do with wrongful convictions? A recent article by Professor Angela Davis of the Washington College of Law at The American University (my alma mater) explains that reviewing courts have created a climate in which prosecutorial “discretion” has become almost complete, the line has been blurred between what is legal and what is not legal as to what prosecutors may do or not do in order to win convictions, including subornation of perjury, fail to disclose evidence of innocence and other facts and evidence tending to show defendant's innocence, or that may be used to impeach, and on and on.

You'll have to tune in to the Monthly, (November issue at bottom of
this post) coming in a few more days, for the rest of the connection between O'Reilly and Davis, "Culture Wars" in action. The suspense is already killing me.

As always, comments are welcome all the time.

A Rock and A Hard Place: American Foreign Policy

The Death of Former Dictator and Criminal Pinochet (RIP) Is Reminder that the U.S. Has Not Always Shunned the Niche Between A Rock and A Hard Place: Realism v Democracy Promotion in US Foreign Policy. Straight to you from Washington Post:



Aliyev drew a predictable conclusion: that he could be both a dictator and an American ally as long as he delivered energy and security cooperation. So Azerbaijan is pumping oil to Europe, and has promised gas this winter to pro-Western Georgia. It is allowing the U.S. military to use its airspace, and it reportedly hosts CIA monitoring operations of Iran. Meanwhile, Aliyev's government is systematically attacking the country's pro-democracy forces, while favoring Russia's Azerbaijani allies. The losers are the very "democratic reformers" to whom Bush said: "When you stand for your liberty we will stand with you."







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Saturday, December 09, 2006

How Appealing

Howard Bashman's blog HowAppealing is the goto place for news updates related to law, courts, and crime (and especially appellate litigation).

He has more links to newspaper articles on the lawsuit against Rumsfeld and one from Washington Post called, "Commute this Sentence: A clemency case not even President Bush can ignore--or can he?" (I've decided that WaPo is a pejorative, aka bad, term and won't use it any more);

And this from Howard:

the brand new installment of my "On Appeal" column is headlined "Have 7th Circuit Judges Gone Off the Deep End?" My essay concludes:
If the 7th Circuit desires that the appellate record better reflect the precise basis for the federal district court's subject matter jurisdiction, those appellate judges should consider cracking the whip on their federal district court colleagues. It is the federal district court judges who, in the first instance, have the ability to ensure that the record is absolutely clear concerning what facts and allegations do or do not give rise to the district court's subject matter jurisdiction.

I continue to enjoy the intellect and writing of Judge Posner and Chief Judge Easterbrook, but sometimes, to use Judge Posner's own words, they do cross the line and become fusspots and nitpickers when the question arises of berating or sanctioning attorneys for minor and inconsequential transgressions.

NB. I too have started thinking that Judge Posner has gone off into the depths. But judges are allowed to do that I suppose.

Allegations of Torture Overseas in Our Courts

Direct from WaPo:
Saturday, December 9, 2006

The Bush administration asserted in federal court yesterday that DefenseSecretary Donald H. Rumsfeld and three former military officials cannot be held liable for the alleged torture of nine Afghans and Iraqis in U.S. militarydetention camps because the detainees have no standing to sue in U.S.courts.

Deputy Assistant Attorney General C. Frederick Beckner III also argued that a decision by the court to let a trial proceed would amount to an infringement by the judiciary on the president's power to wage war and would open the door to new litigation in U.S. courts by foreign nationals who feel aggrieved by U.S. government policies.


NB. Sen. McCain has argued previously that we don't want to encourage torture because that would encourage "them" to torture Americans. He should know because he was held captive by the Vietcong. So why would we not want to show the whole world that we will enforce the law, whether or not the law is sought to be enforced by "foreigners"? Comments anybody?

Do we really want to demonstrate that the President's power to wage war will include everything, even the power to order torture and turn a blind eye to violations of basic human rights? Even the possibility of that power? The fact that this is even a debatable question is itself rather curious in my view. This is the old "ends will justify the means" slog. But here, it is highly questionable whether getting somebody to say something under extreme coercion yields useful and accurate information. One more thing, inflicting extreme pain and suffering, and torture, must really be seen as simple retaliation and retribution for being on the wrong side of conflict, and wrong, because there is not one case that has been brought to the public's attention where torturing somebody has yielded useful information. And even if it did and that has not been brought to our attention it is still wrong absolutely, and a good way to keep our enemies even more dedicated to harming us.

Crim Law Brief

My law school (alma mater), Washington College of Law, is putting out a new journal called Crim Law Brief. More information about this is available at the link. They are sponsoring an interesting event in January called "Prosecutorial Power" or something to that effect. I'll put more info up when I get it. The first issue, Vol 1 Issue 1, has this article by Angela Davis, Professor of Law, that promises to be very interesting.





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Drug War, Congress, Sentencing, SCOTUS

The drug war and the new congress, sentencing and the Sixth Amendment, and it was an eventful week at SCOTUS. Doc Berman's is still the place to go.





Friday, December 08, 2006

Law Bad? Beware of Your Texas Legislators

How bad laws are made: this comment tells all. Quoted in full from OfftheKuff

[hat tip sex crimes]

What to do with sex offenders
The following was forwarded to me by a reader. I thought it was provocative. I present it here in the interest of starting a conversation.

Warning to Texas residents: a group of individuals, still at large, poses an imminent threat to the public. Several thousand Texas citizens may be at risk if the activities of these people are not monitored more closely. Registered sex offenders, you say? No, actually I am referring to the elected members of the Texas Legislature, who will soon meet in Austin for the 80th legislative session.

Several bills have been pre-filed for the session which opens in January, ostensibly with the intent of protecting Texas children from the clutches of the 45,000+ registered sex offenders currently residing in Texas. Our elected officials, certainly all honorable and well-intentioned people interested in serving the public interest, want us to believe these bills will protect us and our children from harm.

To the contrary, most of the provisions of these bills are â€Å“smoke and mirrors”, an illusion designed to create the appearance of concern and activity by your elected representatives. Our elected officials, with access to current academic and Justice Department research and statistics, know that - but they are hoping we won’t find out. Otherwise, we voters might actually demand that they do their homework and provide some real solutions.
Beyond being of illusory value, the bills contain provisions that are blatantly unconstitutional, in direct violation of several fundamental principles of constitutional law in this country - principles like due process, equal protection, protection against double jeopardy and uncompensated property takings. Registered sex offenders - though convicted of felonies and misdemeanors - still remain citizens protected by our Constitution.

Our legal system requires due process - hearings, evidence, opportunity for judicial review. It provides that all citizens have equal access to our courts. It requires that individuals may not be punished more than once for an offense, no matter how heinous. Once served, a sentence of incarceration or probation cannot lawfully be extended or additional conditions of punishment imposed by another legislative body or even a court. And the total use of property cannot be denied absent just compensation for its value. These are fundamental, time-tested, basic principles that govern how our legal system is supposed to work.

But some Texas legislators, despite their sworn oath to uphold the constitution, apparently do not believe these principles apply here or at least to some citizens of Texas. Legislators will soon be taking up several proposed laws that will create â€Å“child safety zones” around schools, parks, day-care centers and similar place where children gather. Registered sex offenders will not be permitted to walk or even drive within 1,000 feet of these facilities.

More draconian still is a provision to restrict where registered sex offenders can reside in our communities, prohibiting them from living within 2,500 feet of places where children gather. Those offenders already living within that radius - even homeowners and long- time residents who have not presented a threat in the past, probably even some nursing home residents - will be forcibly evicted or face incarceration.

These provisions would not just be applied to new offenders being released from prison, but also to current parolees and those who have already served their sentences and are no longer under court jurisdiction. Some have been off of probation for years, living as law-abiding neighbors and friends in our communities. But they will all have to move elsewhere. Thousands of Texas citizens face the prospect of being literally banished from their homes and families by legislative action - a practice unheard of and considered morally and legally unthinkable in this nation until only recently. No court hearing, no evidence of a crime, no appeal. These are authoritarian governmental abuses that all of us ought to vigorously oppose.

It would appear that there would be no lawful way to comply with these residency restrictions, as onerous as the proposals are. Even if an offender lived in a rural area, say on a 500-acre farm in the Hill Country, the bills would measure the distance restrictions from the property line of the farm to the nearest school or bus stop. How many parts of Texas, aside from the isolated mountainous and desert areas of the west, are more than 2,500 feet from a school or school bus stop location?

So where will these people go in September 2007 if these bills are passed? Well, since they cannot lawfully comply with the laws, they will probably hide. A few may choose to leave the state, as is no doubt the obvious intention of lawmakers - make these people someone else̢۪s problem. But many of them have families, homes and jobs here in Texas. So they will just live elsewhere, hoping not to be found, costing us lots of tax dollars to seek them out and punish them for breaking a law against something that was not a crime in the first place.

Iowa recently passed a similar law and the rate of non-compliance with that state̢۪s sex offender registration statute jumped by 300%. The Iowa County Attorneys Association, the people in charge of actually enforcing that statute, is now opposed to residency restrictions that were enacted there and are being proposed here in Texas. The unintended consequence of what was probably an honest and well-intentioned effort turned out to be worse than the problem they were trying to solve.

California recently passed a similar law by public referendum and it was immediately halted by a federal judge because its provisions were in obvious violation of our constitution. A similar federal court challenge will surely be filed here if the bills pass as proposed.
The academic and law enforcement research does not support the effectiveness of these restrictions. Several prominent research groups - including child abuse prevention advocacy groups hardly sympathetic to sex offenders - have concluded that there is no statistical link between restricting the residence of registered sex offenders and the incidence of sexual assault cases.

More importantly, the proposed bills ignore the faulty theory behind sex offender registration in the first place. Let me clear up a very common misconception - most registered sex offenders don̢۪t commit repeat offenses. Recent research by the federal Department of Justice has indicated a recidivism rate of between 4 and 15 %, lower than for most other categories of major crimes. And here is the really startling fact: by far, most sexual assaults of a child are committed by a parent, other family member or family acquaintance, not the registered offender living down the street. Most of the people on the list of registered offenders served their time, paid their debt to society and just want to be left alone.

Our elected officials do not want us to be aware of or understand these facts. They want us to be fearful enough to trust that they are looking out for us. Do not be deceived by this group of people - a group representing a direct threat to the liberty and lives of thousands of law-abiding, tax-paying, voting citizens. Citizens just like me.

What do you think? Let me know.
Posted by Charles Kuffner on December 07, 2006

Thursday, December 07, 2006

Out of Iraq

How many different ways can you say
OUT OF IRAQ?

Hint: what is one less than eighty?

What happened to the 80th recommendation?
That was the straw that broke the camel's back.
What?

Purchase the Iraq Study Group report at my convenient link at the top of this page or click on the link you just read. Proceeds go to a worthy cause, my tip bucket (very, very, tiny right now--actually the bucket is VERY BIG but just not very full--its early in the game, right?), which feeds the Prison/Innocence Project (501(c)3 iminently in progress) and Newsletter. The next volume is due out on Dec. 15, when I get around to editing and layout.

Guest Blogger

I would welcome anybody who is interested in taking up blogging to try it out right here as a guest blogger. That would be anybody with shared interests of course: Crime, Law, National Security...

Contact yours truly.

Wednesday, December 06, 2006

Review: Fiasco by Thomas E.Ricks

Fiasco: The American Military Adventure in Iraq. (Thomas E. Ricks, Penguin Press, New York, 2006)

The curious thing about a book, any book, is that it tends to raise a fundamental question: What is there in this piece of printed pulp that was, at one time, a living tree do I not already know? Then you read it and find out.

Ricks knows what he's talking about as he is the Washington Post's senior Pentagon correspondent and got a lot of information contemporaneously, and from emails from personnel engaged in the operations. From this he has pieced together a “first draft” of history, and a good first draft it is. There are many, many anecdotes and real-life scenarios showing what life was like in the combat theater which I appreciated, being relegated to my soft chair: the stories I found particularly sorrowful were the ones describing fratricide, roadside bombs and deaths and mutilations of comrades. I don't know whether having lived through and observed (through the media) what was actually happening in and around Iraq contributed to my feeling of deja-vu as I read Fiasco.

The answer to the first question referenced in paragraph one above was, as it turned out, both a lot and not much. There is a lot I did not know about the how of what happened in Iraq, but I pretty much knew what happened as and when it happened. At least I thought I did, and after reading Fiasco I still think so. Maybe that has something to do with the fact that I happened to read much of the reporting as it became available in the media, although I don't remember having seen his bylines. Maybe it just means that this book describes events straight down the middle, even if there might be some spin in the title.

When Ricks uses the word “adventure” in the subtitle he's just being polite. But why be polite? He really uses the term in the critical sense of “adventurism” so the book actually should have been titled the “misadventure” in Iraq. Is that accurate? Well, that is the same as asking whether he is right. The elections are over, Ricks is a seasoned reporter and not a politician and so we don't expect a lot of spin or obfuscation, although the timing of publication as to the election seems a tad suspicious. So what? Is he being fair and honest, because fair and honest is what we should expect from a serious book that is, on its face, not satirical and not attempting to be conspicuous conspiratorial political ax-grinding, like Ann Coulter, Bill O'Reilly, and some other people I know, and this is to take nothing away from grinding or axes. I like to keep my edges sharp, too.

After taking in the first paragraph of Fiasco and again after finishing chapter ichiban I happened to agree with virtually everything. It's true, I confess, my first reaction was, “okay, I already know everything that could possibly be in here” and, “I could have written that.” That is what bias does. It jades your view. It starts with “A Bad Ending,” paragraph one, Chapter One:
President George W. Bush's decision to invade Iraq in 2003 ultimately may come to be seen as one of the most profligate actions in the history of American foreign policy. The consequences of his choice won't be clear for decades, but it already is abundantly apparent in mid-2006 that the U.S. Government went in Iraq with scant solid international support and on the basis of incorrect information—about weapons of mass destruction and a supposed nexus between Saddam Hussein and al Qaeda's terrorism—and then occupied the country negligently.

But what of the possibility that Ricks is wrong? Would that mean we were right to go into Iraq or that we are doing a good job there? That even if we straightened things up and rebuilt the place so Iraq came to resemble one of those NICs like South Korea, India or Japan, would that justify what we did and make it right? Could that atone for our immediate sins, our mistakes, our transgressions? These are speculative questions and not easily answered even with the benefit of hindsight. To some extent they carry normative implications, and where norms are involved relativity of the moral variety lurks dangerously around the next curve. Still, it is not too soon to begin thinking about them.

The ultimate question about which Fiasco sounds an SOS but which unfortunately can not yet be answered is, assuming that we made mistakes, and committed sins, errors and transgressions, can we still atone for them or is it too late? That remedial inquiry will require intense soul-searching and above all, honesty. It might require Congressional hearings into the how and why.

Ricks rightly perceives that the Iraq mis-adventure was the Bush administration's response to 9/11; the Patriot Act was Congress's. He also perceives that that was mistaken in drawing resources away from fighting terrorism, and here too Ricks is right on the ball. So does my thinking so mean I'm not a patriot? That I am a traitor? That I am unfaithful to the troops and don't support them? It makes me wonder. And my wondering leads me to ask, “who's fault is that?” The kind of uncritical thinking that the President seems to require of the People recently reminded me of this infamous quote:

To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public." --Theodore Roosevelt, 1918.


The internet has made it all but impossible to conceal what is really going on, even in the far reaches of the world. To the extent that's true, we really do live in a transparent world. What the internet has failed to bring about, however, is an end to the lies and the spin and the attempts to communicate what is happening in purely political terms, and by political I mean Orwellian. If anything the spin is worse because it is forced to try to overcome the truth. And sometimes it does. For example, the president, through his spokespersons and alter-egos, Vice President Richard Cheney, Secretery Rice, and there are others, have been saying for three years that we are “winning” in Iraq, that we have been doing the right thing, that we needed to be there and that we need to “stay the course.” And as Robert Gates has discovered in his Senate confirmation hearings in December, this has created a political minefield. I want to emphasize the three years because that is a fairly longish period of time for anybody to be continuously conned, deceived, and mislead.

The Bush line is clearly untenable today because Bush was wrong about Iraq in the beginning, and he is wrong about it now. The military did not learn from its own experiences and the policy-makers did not study their history and, consequently, we are where we are today, a sad lot much like where the British were 75 years ago, in danger of losing big chunks of prestige and colonial territory. Ricks aptly quotes from British Lt. Gen. Aylmer Haldane, The Insurrection in Mesopotamia, 1920: “From the beginning of July until well into October, ... we lived on the edge of a precipice where the least slip might have led to a catastrophe.” Only by “luck, pluck and courage” (typically British traits not only by coincidence) was “a long and agonizing guerrilla war” avoided.

General Myers in particular was saying things were going very well when they weren't, but he was not alone.

When Bremer flew home to Washington for quick consultations at the end of July 2003, his message was that the situation was far better than it appeared in the news coverage. *** In fact the U.S. Occupation was about to be confronted by a full-blown counterinsurgency. But as the United States entered its first sustained ground combat in three decades, this was his story, and he and the entire Bush administration stuck to it.

General Franks, too, could not be heard to say things went badly and continued to insist that “the plan” for Iraq was a good one, but in hindsight we know that this was wrong. It was wrong from the beginning. And, in the fact, Ricks notes that even the stated tactical objective for going in at the outset was wrong. Wrong tactically and wrong strategically. That was the mushroom cloud scenario, thanks to Secretary, and formerly National Security Adviser, Rice. Wrong. Wrong. Wrong? Only General Colin Powell has come to make this, which is also his current assessment, public. The folly is described in counterpoint by Ricks using this quote from Gen. Franks's memoir, American Soldier:

History will record that America's strategy for fighting terrorism was a good strategy, that the plan for Operation Iraqi Freedom was a good plan—and that the
execution of that plan by our young men and women in uniform was unequaled in
its excellence by anything in the annals of war.”

Ricks provides much evidence to the contrary throughout, but especially in “False Start” which opens the first chapter of Section II, in Chapter 7.

“Fittingly,” he writes, “a war justified by false premises began on false information.” My own theory on this just happens to be that most wars actually do start that way. If somebody wants to make war they are usually going to be telling lies in order to make it happen. Remember Vietnam and the alleged naval attacks at Haiphong Harbor? Then Ricks quotes Richard Perle, “This was, I believe, a successful intelligence operation by Saddam Hussein in which we were led to believe that he was in a certain location, and he wasn't there.”

So we were duped. So much for the decapitation strategy. Decapitation, followed by an inept occupation, demonstrably resulted in chaos. So much for the just war theory. So much for the theory of preventive war. So much for Bush's legacy. I'm truly sorry. I voted for him the first time. War is not glorious. War is never preventive, never just. War is always, sadly, with tears in your eyes, only necessary to preserve life and limb, no more and no less. That is what the Iraqi insurgency is now teaching. For posterity, that is being taught to us, by us. Will we learn?
We learn that as early as two months following the invasion of April, 2003, the occupation was “teetering.” In “Franks Flunks Strategy” we get this:

The American military believed it had taken Baghdad.
To understand that mistaken conclusion, it is necessary to step back and examine Gen. Tommy Franks, the senior U.S. commander in the war, and particularly his misunderstanding of strategy. That is a grand-sounding word, and it is frequently misused by laymen as a synonym for tactics. In fact, strategy has a very different and quite simple meaning that flows from just one short set of questions: Who are we, and what are we ultimately trying to do here? How will we do it, and what resources and means will we employ in doing it? The four answers give rise to one's
strategy. Ideally, one's tactics will then follow from them—that is, this is who we are, this is the outcome we wish to achieve, this is how we aim to do it, and this is what we will use to do it. But addressing the questions well can be surprisingly difficult, and if the answers are incorrect or incomplete, or the goals listed not reachable, then the consequences can be disastrous.

This, in a nutshell, states our current dilemma. Because we went in expecting one thing and found another. Expecting WMD we found none: expecting liberation we found rebellion and sectarian divides.

Ricks has amply demonstrated, as events on the ground have also demonstrated, that neither the President, Gen. Myers, nor Gen. Franks have been speaking the truth. Clearly, to the extent that they believed what they said was true they were clearly wrong. To the extent they were heeding the advice of the boots in the sand, they were wrong. But Ricks shows that not all the advice percolating up from ground (or intel) was in tune with Bush's Polly-Anna scenario. Well intentioned, no doubt, but still very wrong. What the guys at the top were saying wasn't true. For three years the Republic has wrongly been fed Mis-information and Untruth by our leaders. That is a sad commentary on us. Sad because we have been complicit. We have let them do it, and let it be said that they have done it with impunity.

In democracy, the People have a collective duty to take responsibility for what happens. That is how we earn the right to be free and democratic. Not imposing accountability for being told lies, and for making mistakes, and for clearly unproductive, unjust and stupid results is the first step toward tyranny. Going to Iraq was stupid. Democracy is not stupid. Iraq today is undemocratic, un-American, and definitely not un-Cola cool, baby.

And hear, hear, the public is finally fed up with “strong but wrong.” Come to think of it, that's a lot like “shoot first and ask questions later.” But gee, that's apparently exactly what we've been doing. We have taken the paradigm of our own eighteenth century Indian wars and taken it to Iraq and, surprise! It did not work. And it took a professional cadre of military men to let—no, let is too passive—they made this happen. And we, the People, have stood by and allowed it to happen. There will be consequences. It is ultimately unfair, however, to lay all blame on the military men, even those at the top, because our Constitution provides for political control of the military.

In sum, Fiasco provides a good preliminary account of some of the fateful decisions in terms of their effects, but it is not yet clear precisely what the really big and most critical decisions were, when they were made, or by whom, excepting the decision to go in itself. So we are still left wondering whether it was Rumsfeld, Bush, Bremer, or somebody else at the very top who is to blame for the full extent of the real fiasco. The book points out but does not develop many of the issues of fraud, waste and abuse associated with the employment of military contractors. We should be learning more about this in coming years.

Finally, one of the decisions that must be viewed with great skepticism was Maj. General Raymond Odierno's “get tough” policy. In broad-brush, thus began a formal disagreement between the approach (attitude) employed by the regular Army, armor and artillery, and the thinking of the Marines, and the counter-insurgency methods learned from past experience. To defeat an insurgency you must live among the people and win them over one by one. But in the early days nobody noticed the telltale signs that an insurgency was forming. That insurgency, in fact, might even have been planned at the outset given the paucity of the resistance of the regular Iraqi army in the opening days of the war.

I noticed too that Odierno's unit is stationed in Texas. Ricks notes that they sometimes felt like second stringers, and so it occurred that maybe they had a complex and took it out on the Iraqis. Mostly, however, I sensed that Lt. General Ricardo Sanchez, who was the senior military commander, must bear the brunt of the blame for what went wrong after the politicians took over. The sections about prisoner abuse and Abu Ghraib tell a very depressing story deserving of entirely separate treatment. It is truly worse than shameful that that has become part of the history of the U.S. military.

And just briefly comparing Fiasco to State of War: The Secret History of the CIA and the Bush Administration (Free Press, January 2006) by James Risen I found both books are similar in their criticism of Bush, but Risen has focused more on the secrecy and intel, as his title suggests, and relied more on anonymous sources, and that was frustrating to me. Knowing who said what gives a book a definite sense of credibility. Having said this, I think I'll need to take a second look at State of War. Maybe that will be next, after I review Soldier, by General Powell.

Lopez v. Gonzales: Trafficking does not mean help to possess

Yesterday, the Supreme Court issued its opinion in the case of Lopez v. Gonzales. IMHO
a Common Sense Definition (of "trafficking" in the INA) prevailed over a very Legalistic argument. Even if the State makes a crime a felony the INA's language is controlling. The conclusion is worth quoting:

In sum, we hold that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Surprising, or not surprising, that what appears to be a VERY simple and straight-forward, as in fastball down the middle, question went all the way to the Supreme Court? But let it be noted that there was a lone dissent, by Justice Thomas.

IMHO he continues fighting the bad war on drugs with the get-tough approach; but let's do that someplace else, and not make bad law over it. Is he just making a political statement?

Trends in Ohio Supreme Court

A friend called my attention to an interesting case involving those ever-ephemeral "newly created" constitutional rights we hear so much about, which always create reactions in the "originalist" camps. The Ohio Supreme Court has ruled 4-3 that polygraphs cannot be made a condition of probation for a juvenile sex offender. The Court made available this decision summary.

Getting Active

I joined the Federick County Democratic Party today. Maybe they'll call me now so I can make my run for president in 2008. Too bad I have the same problem Ahnie has, we weren't born here. Actually, I just want to be the State Ombudman for Prisoner Rehabilitation and Re-Entry. I'm not asking for too much, and because that would require the sacrifice of much time that I otherwise put into BLOGGING and other fun stuff, I might even get paid a little something something. At least minimum wage, maybe? I noticed that the guy over at 3-L Epiphany (a blog) got a job with the Ohio Legislative Service, and says law school is finally looking like its worth it. But I think it is a privilege just to be rubbing shoulders with those who have been chosen (would you really choose to be a lawyer if you knew what they do for a living?) for this noble profession.

I got this from Brian Hammock yesterday:

One month ago you helped make history by electing Martin O'Malley as our 61st Governor of Maryland. I'm writing this morning to ask for your help once again as we prepare for the Gubernatorial Inaugural.

Invitations for the inaugural need to be sent out next week. We are looking
for volunteers to help assemble the invitations next Tuesday, Wednesday, and Thursday at the 5th Regimen Armory in Baltimore (219 Twenty-Ninth Division St,
Baltimore, MD 21201 Map). We have three shifts available each day: 3:00 -5:00pm, 5:00 - 7:00pm, 7:00 - 9:00pm.

This will be a good opportunity to see friends from the campaign and be a part of this historic event. Food and beverages will be provided. Please let me know if you can help and which day/shift you are available. You can let me know by email or call the inaugural office at 410-547-8884 ×200.

Monday, December 04, 2006

Immigration, National and Domestic Security

At this link I published a book review of Just Americans chronicling the story of Japanese immigrants in World War II. Now, Iyal Press has this article in this weekend's NY Times Magazine about immigrants. He looks at whether they are making us safer or not. There is a debate over this, both in real world practice and in the academy (as in Ivory Towers).

Case Draws a Crowd at SCOTUS



SCOTUSblog will no doubt be calling attention to this phenomenon soon, reminiscent of the Sixties and the civil rights era. The government argues that, in effect, desegregation laws are no longer necessary. True or False?









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Saturday, December 02, 2006

Circuit Trends in Habeas Corpus, AEDPA


When did you last admit to having made a mistake about something? Anything. That is why judicial review, and in particular, Habeas Corpus review, remains so extraordinary. It provides a searching and thorough reexamination in a matter of controversy and, where warranted, it requires the finding: judge, you made a mistake. To a judge this must be an excruciating moment, akin to punishment. Habeas writs are granted very infrequently, so that when they are granted that is news. Here are a few items of note recently published elsewhere that I happen to be collecting, and now make available to you, dear readers:

Killing Habeas: Maryland's Unique contribution to the history of Habeas here


President Abraham Lincoln suspended habeas corpus in Maryland on April 27, 1861, two weeks after the Confederate attack on the Union garrison at Fort Sumter. “Lincoln could look out his window at the White House and see Robert E. Lee’s plantation in Virginia,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution,” said. “He was also facing a rebellion of so-called Peace Democrats in Maryland, meaning there was a real chance that Washington would be surrounded and a real threat that the White House would be captured.” On Lincoln’s order, federal troops arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, who were jailed so that they couldn’t vote to secede from the Union.

Relief Granted:


Stewart v. Wolfenbarger, No. 04-2419 (6th Cir. 11/9/2006) (6th Cir., 2006) See previous post here.


A Question of Innocence:


Rittenberry v. Morgan, No. 05-5606 (6th Cir. 11/9/2006) (6th Cir., 2006)



When does procedural default bar federal review? When is a state-court decision based on "independent and adequate state grounds"? Triggering these questions was Confrontation Clause ruling reviewed in Wright v. Quarterman, No. 05-70037 (5th. Cir. 11/17/2006) (5th. Cir., 2006). This case seems to say that you must make a contemporaneous Sixth Amendment objection together with a Hearsay objection under Texas Rules of Evidence in order to preserve Confrontation Clause grounds for federal habeas review. But I was under the impression that the Texas Rules of Evidence are grounded in the federal rules...or does that not matter? But what if the fundamental reasoning for having hearsay objections (and exceptions) was grounded in the Confrontation Clause itself? Can that not be sufficient?


Grant of Relief Affirmed in James v. Brigano, No. 05-4003 (6th Cir. 11/30/2006) (6th Cir., 2006) resolving a question of procedural default

(Ohio Court of Appeals' lengthy opinion denying James's motion to reopen does not frame its rejection of James's underlying claims as a failure to find prejudice or on procedural grounds, but instead rejects those claims on their merits. Therefore, because the Ohio Court of Appeals did not actually rely on the procedural bar in rejecting either of James's claims, those claims are not procedurally defaulted for habeas purposes)

James's other claim for habeas relief is that his waiver of appointed counsel before the state trial court was not made knowingly and intelligently. As the record makes clear, at no time did the state trial court judge ensure that James's waiver of appointed counsel was knowing and voluntary. At no time did the state trial judge explain to James the risks and dangers in proceeding pro se. And at no time did the state trial judge make an explicit finding that James's waiver was knowing and intelligent. Instead, the state trial judge appeared to accept, and the Ohio Court of Appeals explicitly accepted, the idea that James was attempting to delay trial and avoid the administration of justice when he tried to fire Stewart with his outbursts in front of prospective jurors and to the court after voir dire.

Neither the state trial judge nor the appeals court addressed the question of waiver, even though "courts [should] indulge every reasonable presumption against waiver of fundamental constitutional rights."Johnson v. Zerbst, 304 U.S. 458, 464 (1938)".

As the district court pointed out, under even the AEDPA standard, the finding that James knowingly and intelligently waived appointed counsel was a failure to apply clearly established Supreme Court precedent because of an unreasonable finding of fact.


Remanded, Writ Vacated on Non-retroactivity: Albrecht v. Horn, No. 04-9005 (3rd Cir. 11/21/2006) (3rd Cir., 2006)

See Previous Post here: St. Aubin v. Quarterman, No. 05-40277 (5th. Cir. 11/21/2006) (5th. Cir., 2006)

Affirmed Conditional Relief: Higgins v. Renico, No. 05-1564 (6th Cir. 11/20/2006) (6th Cir., 2006)

REAL ID Act of 2005 in Action

Spina v. Department of Homeland Security, No. 04-3177-pr (2nd Cir. 11/28/2006) The REAL ID Act -- On May 11, 2005, Congress enacted the REAL ID Act, which, among other things, eliminates habeas corpus jurisdiction over final orders of deportation, exclusion, and removal, and provides that "a petition for review filed with an appropriate court of appeals. . . shall be the sole and exclusive means for judicial review" of such orders. Pub. L. No. 109-13, § 106(a), 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(5)). In Gittens v. Menifee, this court ruled that appeals involving habeas corpus petitions "pending before this court on the effective date of the REAL ID Act are properly converted to petitions for review and retained by this court." 428 F.3d 382, 385 (2d Cir. 2005)

Friday, December 01, 2006

Bush Wars

Compassion Wanted: George W. Bush is the boy at the bottom of the pile, taking the weight of insult, affront and other abuse from assorted connivers, blowhards and corporation lawyers looking for clients, says Pruden here.

Yesterday's News

Gitmo Justice A Joke, here at WaPo. Just imagine the state courts, where some of the people running DOJ have come from (could that be, Texas?)

More good stuff from Scott Henson at Grits for Breakfast on Texas Justice, permanent link to right.

A Critical Report on the Detainee Hearing Process is here.

And an article headlined "Blind Inmate's Medication Claim Revived” here reports on a ruling here issued yesterday under 42 U.S.C. 1983.