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

GOVERNMENT MOVES TO DISMISS KHADR APPEAL

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

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

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

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

Mukasey for AG -- NOT

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

ouch. Read more from Prof. Bowman at Slate.

October - November News

Z

The Legal Monthly

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

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

Contents

The Costs of Justice

First Take TNR

JEC Rap Sheet

Dworkin: “The Supreme Court Phalanx”

Scotus Focus

A Prediction

A Cute, if Sardonic, Irony

Human Rights Watch Report

Sentencing

Retroactivity

Oral argument

Sex Offender Residency Restrictions

Mailbag

Read the rest at the Newsletter site.

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

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

Read the rest Here

Where's the Good Life Gone?

Hmmm. Here's Judith Warner at NYT:

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

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

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

More Key Points

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

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

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

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

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

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

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

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

The Costs of Justice, American Style

JOINT ECONOMIC COMMITTEE TO EXAMINE ECONOMIC COSTS OF SURGE IN U.S. PRISON
POPULATION AND POSSIBLE SOLUTIONS Hearing on Costs of Mass Incarceration Called by VA Sen. Webb in Light of 500 Percent Increase in Prison Populations In Last 30 Years Washington, D.C. – U.S. Senator Jim Webb (D-VA) will hold a Joint Economic Committee (JEC) hearing to explore the economic consequences and causes of and solutions to the steep increase of the U.S. prison population. The hearing entitled, “Mass Incarceration in the United States: At What Cost?” is scheduled for Thursday, October 4, 2007 at 10:00am in Room 216 of the Hart Senate Office Building. The United States has 25 percent of the world’s prisoners,despite having only 5 percent of the world’s population. The JEC will examine why the United States has such a disproportionate share of the world’s prison population, as well as ways to address this issue that responsibly balance public safety and the high social and economic costs of imprisonment.

Expert witnesses have been asked to discuss the costs of maintaining a large prison system; the long-term labor market and social consequences of mass incarceration; whether the increase in the prison population correlates with decreases in crime; and what alternative sentencing strategies and post-prison re-entry programs have been most successful at reducing incarceration rates in states and local communities.
WHAT: Joint Economic Committee Hearing:

“Mass Incarceration in the United States: At What Cost?”
WHEN: Thursday, October 4, 2007 – 10:00am
WHERE: 216 Hart Senate Office Building
Witnesses (as of September 27):

• Dr. Glenn Loury, Economics and Social Sciences Professor, Brown University
• Dr. Bruce Western, Director Inequality and Social Policy Program, Harvard University
• Alphonso Albert, Executive Director, Second Chances
• Michael Jacobson, Executive Director, Vera Institute for Justice
The Joint Economic Committee, established under the Employment Act of 1946, was created by Congress to review
economic conditions and to analyze the effectiveness of economic policy.
www.jec.senate.gov
# # #

Dworkin On the Court

Not last nor least, here's Ronald Dworkin (beating - not bleating) about the bleeding Supreme Court:
(appearing here)

The Supreme Court Phalanx

By Ronald Dworkin

Anthony Kennedy
(click for larger image)

1.

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush's choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman's right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court's term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament from the bench, "It is not often in the law that so few have so quickly changed so much."

It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance. It urges judicial restraint and deference to legislatures when these bodies pass measures that political conservatives favor, like bans on particular medical techniques in abortion. But the right-wing coalition abandons restraint when it strikes down legislation that conservatives oppose, like regulations on political advertising and modest school district programs to further racial integration in public education. It claims to celebrate free speech when it declares that Congress cannot prevent rich corporations and unions from evading restrictions on political contributions. But it subordinates free speech to other policies when it holds that schools can punish students for displaying ambiguous but not disruptive slogans at school events. Lawyers have long been fond of saying, quoting Mr. Dooley, that the Supreme Court follows the election returns.^[1] These four justices seem to follow Fox News instead.

---

---

They need a fifth vote to win the day in particular cases, and they most often persuade Justice Anthony Kennedy to join them. Kennedy has taken Sandra Day O'Connor's place as the swing vote on the Court. Twenty-four cases—a third of the Court's decisions—were decided by 5–4 votes last term, nineteen of them on a strict ideological division. Kennedy voted on the winning side in all twenty-four of them. He joined with the right-wing justices in thirteen of the ideological cases; he voted against them and with the four more liberal justices—John Paul Stevens, David Souter, Ruth Ginsburg, and Breyer— in the remaining six cases, including four death penalty appeals from Texas. He showed deplorable partisanship when he voted with the majority in the Court's intellectually disreputable 2000 decision to elect Bush president.^[2] He wrote a poor and insensitive majority opinion this year in the Court's so-called partial-birth abortion case. (I discussed his opinion in these pages earlier this year.)^[3]

But in 1992 Kennedy joined O'Connor and Souter in the key opinion upholding abortion rights in principle and providing a firmer constitutional basis for them,^[4] and in 2003 he wrote a strong opinion for a 6–3 majority, relying on that earlier abortion decision, ruling that states cannot make homosexual acts criminal.^[5] He therefore offers hope—slim, but real—of some moderating influence on the Jacobins; lawyers who argue important cases before the Court in the next few years will presumably frame their arguments to convince him.

2.

These are strong claims about the revolutionary character and poor legal quality of many of the Court's 5–4 decisions, and it is necessary to review these decisions with some care, in the remainder of this essay, to explain and defend those claims. The most important decision was the Court's 5–4 ruling striking down school student assignment plans adopted by Seattle and Louisville. . . . ****

N.b. Commentary to follow

Front and Center at the Supreme Court

A 2006 law, passed by Congress and signed by Mr Bush prohibits Guantanamo Bay detainees from challenging their confinement in federal courts and states their cases can only be heard by military commissions, not civilian courts.

This term, Supreme Court justices will decide whether in doing so, the law has violated the constitutional requirement to provide habeas corpus - a procedure under which someone who holds a prisoner is required to show reason why to a court - to prisoners in the US.

The US Appeals Court for the District of Columbia Circuit ruled that habeas corpus does not apply to foreign nationals being held at Guantanamo Bay because it is not US soil.

Professor AE Dick Howard, of the University of Virginia School of Law, said the Guantanamo cases would be "front and centre" of the new session.

Laura Smith-Spark
BBC News, Washington

Nb. If the detainees "win" is that a conserative or liberal outcome? Hint: is the Constitutional right to habeas corpus a conservative or liberal notion? Hint 2: Is supporting tyranny conservative or liberal?

Check these for more previews: Adler

Wittes: "it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle. It was depressing, and the most depressing part is that sinking feeling that the justices will do the same thing again beginning today."

A Prediction by Tom Goldstein

Direct and unalloyed from Scotusblog:

Because the public's interest in the Court is notoriously weak and its memory short, the relevant question in deciding whether the Court can be a mobilizing force in the 2008 election for ideological groups is therefore not "how were cases decided in OT2006" (the focus of commentary so far), but instead "how will OT2007's cases be decided?" And I think that the existing and anticipated docket strongly suggests that, during OT2007, the outcomes of the highest-profile cases will be perceived as quite liberal.

As a consequence, I think it is exceptionally unlikely that next Term will end as this one did, with front-page stories and reports leading the evening news describing the Court as profoundly conservative, with laudatory commentary by the right and howls of protest from the left. Instead, we will see (mistaken) talk of the "surprising" tack by the Court back to the left and (among the legal glitterati) the "good Kennedy, bad Kennedy" phenomenon in which his ideological views seemingly oscillate dramatically from Term to Term. In fact, this commentary will be wrong: the Justices and their views will be exactly the same come June 2008; it is the cases that will be different.

Equally or more important when considering the potential electoral consequences of the Term, the leading cases will be ones in which the more liberal position is distinctly - even profoundly - unpopular with conservatives, creating the prospect that the Court will serve as a rallying cry to mobilize the electorate. Even if the left ultimately does not win all of the five most significant cases of this Supreme Court Term, that wing of the Court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession.

First, consider the existing docket. The most prominent decision, by far, will come in the cases brought by detainees held at Guantanamo Bay as accused terrorists (see, for example, Lyle's post here). The conventional wisdom is that the detainees will win. I agree.

***
The next-highest-profile case involves the crack-powder disparity in sentencing (Kimbrough v. United States) discussed in this post by Lyle. This is something of a "throwback" case; crack is not as prominent an issue as it once was. Nonetheless, it is one with which the public is familiar. The particular question presented is whether, in the wake of the holding of Booker v. United States (opinion here) that the Sentencing Guidelines are advisory rather than mandatory, district judges can refuse to follow the crack Sentencing Guideline (which imposes a 100:1 ratio to cocaine sentences by weight) on the ground that they disagree with the policy judgment underlying it. I think that the government is overwhelmingly likely to lose.
***

A third significant and publicly accessible case involves the constitutionality of a particular federal regulation of child pornography (United States v. Williams) (Lyle's post here). The PROTECT Act makes it a crime to distribute something in a manner that shows you believe, or causes someone else to believe, it constitutes child pornography. The case is a successor to Ashcroft v. Free Speech Coalition (opinion here), which invalidated as overbroad in violation of the First Amendment a prior statutory provision making it a crime to possess images that "appear to be" or "convey the impression" that they are child pornography. The new statute focused on the act of pandering the material, rather than its possession. A panel of the court of appeals held that the Supreme Court would not find the change significant enough to save the statute. I agree, though the question is difficult and likely to be close. The Free Speech Coalition majority was fairly sweeping on this point (the Court divided seven to two). In particular, Justice Kennedy's opinion for the five-Justice majority (himself and the left) indicated that this type of fix would be insufficient because it would still make unlawful the distribution of material that is not in fact pornographic.

So, in the three most significant cases of the Term granted thus far, the position of the Court's more liberal members will be (in the caricature that comes with much popular reporting on the Court) that accused terrorists deserve more rights, crack dealers deserve lighter sentences, and the First Amendment protects would-be distributors of child porn.

But Tom, in Ditech's words "people are smart" -- I think we're beginning to see through the right-wing "conservative philosophy" yoyo bullshit, don't you? The argument is that people are stupid. I respectfully disagree.

A Cute, if Sardonic, Irony

RATS in robes

sardonic "Like sarcastic, but more in order to cause amusement than insult"

I know, relative to the other Supremes, Roberts is comparatively young, but at 52 years, "young man" seemed a stretch. But like everything else with the Supremes, it's all relative, right? Relative conservatives, relative liberals, relative moderates, relative reactionaries? Well, no -- the latter are pretty clear, the RATS of this court: Roberts, Alito, Thomas, and Scalia -- they're sure to surprise people, if only by how far they'll go to bat for a Republican president. I have no doubt that, should the Democrats actually win the White House in 2008, the RATS will work hard to oppose that new president; they know which party they represent. Rehnquist certainly set that mold for them, and Roberts will follow it. Their creed:

concentrated Republican executive power good,

unchecked corporate power good,

environmental law/regulation bad,

human rights bad,

property rights good,

free speech bad,

economic speech good (e.g., being able to pay for the privilege of said "free" speech, like campaign donors)

That's a pretty reliable barometer of their approach, and I doubt they'll stray from the script much, unless a Democrat wins in '08, then they might oppose concentrated, unchecked executive Democratic power. But we'll see; they might, in principle, maintain that in hopes that the GOP is able to seize power again.

-- Slackie Onassis
Hat tip: How Appealing/Salon

The Crow's Nest

A new report from Human Rights Watch on laws, registries and restrictions for sex offenders:

Laws aimed at people convicted of sex offenses may not protect children from sex crimes but do lead to harassment, ostracism and even violence against former offenders, Human Rights Watch said in a report released today. Human Rights Watch urges the reform of state and federal registration and community notification laws, and the elimination of residency restrictions, because they violate basic rights of former offenders. The 146-page report, “No Easy Answers: Sex Offender Laws in the United States,” is the first comprehensive study of US sex offender policies, their public safety impact, and the effect they have on former offenders and their families. During two years of investigation for this report, Human Rights Watch researchers conducted over 200 interviews with victims of sexual violence and their relatives, former offenders, law enforcement and government officials, treatment providers, researchers, and child safety advocates.

Here, at my newsletter, read more on that: (Source: Citybeat.com)

Just as Ohio has toughened its sex offender registration system, evidence is building that registration causes more problems than it solves.

There is no empirical evidence that proves sex offender registries do what they're supposed to do -- keep children safe. The U.S. Justice Department is now commissioning and funding studies looking at the effectiveness of registries, Singleton says. But the evidence so far is troubling, according to Jill S. Levenson, southern regional coordinator for the Center for Offender Rehabilitation and Education and a board member of the Ohio Chapter of the Association for the Treatment of Sexual Abusers. "There is a growing body of research that documents what we call collateral consequences of registration and notification; in other words, the kind of unintended consequences of these laws that disrupt stability and interfere with the ability of these offenders to reintegrate and create law-abiding constructive lives for themselves," Levenson says. "Criminals who are placed back in the community need jobs, and they need a place to live. People aren't very sympathetic to that. But the reality is that we know that the factors that are ... associated with a good community adjustment and less recidivism in the future -- desistance from crime -- are stability in housing, social support and employment. These laws contradict what the research tells us about the environmental conditions that lead to the desistance of crime.

Also missing from the law is a mandate to educate the public -- practical information to help people avoid and survive any kind of attack or information to help eliminate myths and misconceptions about sex offenders.

"Sex offenses and sex offenders fall into a really broad range," Levenson says. "Everybody who is convicted of drunk driving is not an alcoholic. Everyone who is convicted of a sex offense is not a sexual predator."

Retroactivity: A Good Thing? But Don't Ask Martha. And A Sidenote on National Security Policy

Links to briefs in Danforth v. Minnesota (06-8273) -- a case examining state courts' authority to expand retroactivity of Supreme Court criminal procedure rulings -- which is scheduled for argument on October 31:

Click here to read the petitioner's brief, filed by the Minnesota Public Defender's office, and here to read the respondent's brief.

Click here and here for amicus briefs from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers in support of the petitioner; here for an amicus brief from Alaska and ten other states in support of the respondent; and here for an amicus brief from Kansas in support of neither party. Hat tip to Doug, at S, L & P.

Source: SCOTUSBLOG

Here, also at SCOTUSBLOG, read about how the revelation of our program of kidnapping and torture presents a "grave risk of injury to national security" (quote from the government's brief in opposition for writ in the Supreme Court: El-Masri v. Tenet, 437 F.Supp.2d 530, 541 (E.D.Va.2006) and El-Masri v. U.S., 479 F.3d 296 (4th Cir., 2007)).

I should think so. If true, and even if not, the allegation alone, rumor only perhaps, presents untold harm to the reputation and moral standing of the United States among the community of nations.

Cover that up, and bring lots of dirt to do it with. That's mud, as in "dragging through the mud" -- as in the reputation of the former AG, whose worst day was "better" than his own father's best day. I'm so glad I'm not his dad. Aren't you?

Sentence in Fourth Circuit Affirmed

Here's the Fourth Cir. affirming over dissent by Judge Gregory the lower court's denial of motion to withdraw plea after having conditionally accepted same pending receipt of presentencing report, and challenge to the 120 month sentence for possession of firearm. United States v. Battle (Sep 5). And,

Retroactive restrictions are unfair and violate the Constitution. Hat tip -- nationalsosen@yahoogroups.com

- this link is just in from Ohio (district court presumably): (AP, WDTN - Dayton) - and more on that here.

A federal judge in Akron has ruled in favor a sex offender in a residency case.

Lane Mikaloff filed a lawsuit after he was ordered out of his home because he lives too close to a school.

Connecticut Criminal Sanctions Strong Enough

Three members of a prominent Cheshire, Conn., family were slain in their home in July after being held hostage for hours. The gruesome murders, and the arrests of two career criminals out on parole for the crime, have left Connecticut residents justifiably outraged. More than 42,000 people have signed an online petition advocating that their state pass a “three strikes and you’re out” law to force judges to impose lengthy sentences on criminals convicted of three felonies. That is the wrong solution, for Connecticut or any state. Source: New York Times

Taking Care of Business

Nan Aron cuts through the slimy lens of Republican (right wing? "conservative"? ) spin to show how that party's philosophy translates into actual practice. More tax cuts anybody? [N.B. Mr. Lee Iacoca says he'll give his tax cut back; well, only that he doesn't need it] :

The Post is wrong. Why are so many unions opposed to Southwick? Because Southwick voted against the interests of injured workers and consumers in divided decisions 89 percent of the time. Why are civil rights groups opposed? Because he also voted overwhelmingly -- 54 of 59 times -- against defendants alleging juror discrimination. That prompted his own colleagues on the Mississippi Court of Appeals to accuse him of "establishing one level of obligation for the State, and a higher one for defendants on an identical issue." Southwick, they charged in a dissent, placed his "stamp of approval on the arbitrary and capricious selection of jurors."

Southwick got achance to explain these decisions. Sen. Richard Durbin asked Southwick whether he could think of one example of an unpopular decision he had made in favor of the powerless, the poor, minorities or the dispossessed. The judge said he could not.

The opposition doesn't stem from anecdote but analysis, analysis that reveals overwhelmingly one-sided patterns. The Post said that opponents of Southwick "haven't made their case." But this argument doesn't reflect the most substantive points that opponents raise.

A nominee's record is the best predictor of what he or she will do on the bench. Southwick's record predicts that those in the 5th Circuit's jurisdiction have much to fear regarding their legal rights and protections. Moreover -- and overlooked by The Post -- the patterns in Southwick's record fit this administration's pattern of behavior. For with the assistance of conservative activists, allies in the Senate and in well-funded interest groups, and the amen chorus of commentators such as Will, George W. Bush has appointed a succession of appellate judges who will serve his administration's ideological agenda long after he has left office.

********
We cannot let this administration pack our courts with judges who share its disrespect for law and lack of compassion for the powerless. These nominees have turned their backs on our most fundamental rights and freedoms. The Senate should turn its collective back on Leslie Southwick and those like him.

WHEW! I LIKE IT. YOU GO, GIRL. Aron is president ofAlliance for Justice, an association of liberal advocacy organizations.

Ode to US (two)

Interesting, just as I was comparing notes, specifically on adjectives to describe the United States now, versus then perhaps, I came upon this:

Harold Nicolson wrote this condescending characterization of the United States (“a giant with the limbs of an undergraduate, the emotions of a spinster, and the brain of a pea-hen”) -- it now reads like postimperial sour grapes.

The United States in 1945 was a giant, all right, but with the wealth of a Harriman, the altruism of a Marshall, and the sheer dedication of men like Clayton, Vandenberg, Hoffman, and Bissell, it was surely a benign colossus.

Source:
Niall Ferguson -- New Yorker Magazine

PS. Do Republicans do more "mortality exercizes"? Or are they just more susceptible to subliminal messages about death? Learn more about "mortality salience" here, from Judis, "Death Grip"at The New Republic.

Where Is "The Center?" (Political Center)

True or False? Source.

By early 2006, so-called centrism had offered up Iraq, a tax regime that puts the burden on the middle class, bankruptcy reform that gave away the farm to irresponsible credit card companies, an outdated physical infrastructure, legalized torture and a crippled disaster-response effort in New Orleans. The American people, infinitely smarter than Washington insiders, had had enough. Unapologetic, muscular Democrats swept into office in dramatic numbers in state and local races nationwide.

A new day is dawning for the progressive movement. The distrust between Net-roots activists and more traditional progressive players in the party establishment and issue groups has given way to respectful cooperation as we all adjust to new technologies and the promise they hold for institutional change.

Last week, at the YearlyKos convention, all these players came together to celebrate our newfound unity and to organize for the coming battles in 2008 and beyond. The DLC was nowhere to be found -- unless you looked in Nashville, where its members continued to preach, in empty halls, about the "vital center." Even the Democratic presidential candidates have figured out where the heart of the party now lies: with the new, unashamedly progressive movement.

The DLC had two decades to make its case, to build an audience and community, to elect leaders the American people wanted. It failed.

Susan Gardner is a contributing editor to and holds a fellowship with the Web site Daily Kos. Markos Moulitsas is founder of Daily Kos.

Taking Stock of SCOTUS

A new poll: source

About half of the public thinks the Supreme Court is generally balanced in its decisions, but a growing number of Americans say the court has become "too conservative" in the two years since President Bush began nominating justices, according to a new Washington Post-ABC News poll.

Nearly a third of the public -- 31 percent -- thought the court is too far to the right, a noticeable (12 point) jump since the question was last asked in July 2005. That's when Bush nominated John G. Roberts Jr. to the court and, in the six-month period that followed, the Senate approved Roberts as chief justice and confirmed Justice Samuel A. Alito Jr.

WONDER OF WONDERS, people are starting to notice and none too soon. In fact, it did not take very long at all. The thirty or so percent who think the Court is now "too conservative" probably overlaps with the fraction who are likely paying attention. Less than half of respondents thought the Court was "generally balanced" (47 % -- a drop of 8 points from before). Really, nobody pays any attention to the Court, or do they?

And there's this, concerning equal pay for women, horror of horrors! ! ! Backed only by Democrats under peril of a mightily under-employed Presidential VETO! Who else would like to know what Laura thinks about that???

WOW!

Prof. Sunstein, Open University:

In short, the conservative refashioning of the Court has radically changed the terms of legal and political discourse. On the Supreme Court, what was once centrist is now left-wing. What was once conservative is now centrist. What was once on the extreme right--so extreme that it was not represented on the Court at all--is now merely conservative (Scalia and Thomas). What was once on the left no longer exists (Brennan and Marshall, often joined by Blackmun).

By drawing attention to these changes, I do not mean to suggest agreement with the liberals of the Court's past. In my view, the Court does best if it proceeds incrementally and with respect for the elected branches of government. But public discussion has been badly distorted by a failure to see exactly how much has happened in the last decades. Indeed, this particular revolution has been so unusual, and so stunningly successful, precisely because so few people have even noticed it.

HAS THIS TRULY ESCAPED OUR ATTENTION? I THINK NOT.

Crow's Nest: Iraq

Whooops! Does anybody see the draft coming?
In nine months, when the surge has totally failed and only made the hornet's nest of the Middle East Region (Iraq) into the eye of a full-blown hurricane
Then, will we see the need for a draft?
Or, ...
When the next POTUS is a Dem,
Will we hang with her as we try to fix something that was not in need of repair until the Rep took control?

In case you were wondering, this is just bananas compared to the next war, in which Iraq is just the opening gambit. Can we stop it now before it gets out of control?

Only the war machine, that we used to call the Military Industrial Complex, and the stockholders therein are, and will be beneficiaries of this ongoing Third World War. So Sorry Charlie, that the Constitution has been shredded.

Crow's Nest:: Sentencing Developments

Though surely authored before Rita, the Fifth Circuit yesterday released US v. Walters, No. 05-51634 (5th Cir. June 21, 2007) (available here) reversing an above-guideline sentence because "the degree of departure in this case is substantial, and there must be more than mere lip service to the § 3553(a) factors to justify such a departure," and "the court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence." (June 22, SL&P)

Actuarial Peril at Court

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits. In a similar vein, the Court upheld a death sentence in Washington by lessening the scrutiny applied to jury selection in such cases. Last week, the justices rejected an appeal by a prisoner who had filed his case before a deadline set by a federal district judge. Because the judge had misread the law and given the prisoner too much time—three extra days—the Court said that the case had to be thrown out.

Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.

All these conservative victories were decided by votes of five to four, with Kennedy joining Roberts, Alito, Antonin Scalia, and Clarence Thomas to form the majority. (The last big case outstanding this term is a challenge to school-desegregation plans in Louisville and Seattle. Based on the oral argument, Kennedy appears likely to join the same quartet in striking down the plans.) Kennedy holds the balance of power in the Roberts Court, much the way Sandra Day O’Connor did in the Rehnquist years. Kennedy is more conservative than O’Connor, so the Court is, too. He sided with the liberals in only one important case this year, when the Court ruled that the gases that cause global warming are pollutants under the Clean Air Act, a ruling that repudiated the Bush Administration’s narrow view of the law.

***

At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly. ♦

Jeffrey Toobin

DNA Evidence Was "Massaged"

The final HPD lab report

The final report on the problems with the HPD Crime Lab and what needs to be done about it has been released. (Talk about the letting the Wolf tend to the Sheep: Not speaking of Bromwich of course, but of powers that be in Houston--read on)

Independent investigator Michael Bromwich outlined a series of steps he said officials should take to determine what role blood-typing and DNA evidence played in securing convictions against as many as 600 defendants -- including 14 already executed -- whose cases were processed at the Houston Police Department's crime lab between 1980 and 2002.

Police Chief Harold Hurtt, Mayor Bill White and Harris County District Attorney Chuck Rosenthal agreed that hundreds of cases will require further scrutiny and possibly new testing, but they rejected Bromwich's suggestion that a "special master" be appointed to oversee the process.

"We are committed to having a crime lab that the public and the criminal justice system can have confidence in," Hurtt said. "But we feel very strongly that ... we can accomplish what needs to be done without a special master."

Bromwich's recommendations were made in the final report on his sweeping $5.3 million investigation of the lab, where bad management, undertrained staff and inaccurate work -- first exposed 4 1/2 years ago -- has cast doubt on thousands of convictions and unsettled the criminal justice system in Houston and beyond.

[...]

Police and prosecutors already have begun their review, Hurtt said, adding that, in the absence of a "special master," the committee of community representatives that oversaw Bromwich's investigation, known as the stakeholder committee, will check on their progress.

The committee's presence, coupled with assistance from nonprofits such as the Innocence Project to represent defendants' interests, eliminates the need for an independent supervisor of the serology review, Hurtt said. Bromwich said the chief's plan could be an acceptable solution.

Barry Scheck, a founder of the Innocence Project, said his group will help but that a special master would be more effective.

"There is no other way to get to the heart of it," he said. "Obviously (we) will provide help, but it's just too hard."

Each questionable serology case will get the scrutiny needed, Rosenthal said.

"We are going to start notifying defendants through the courts that there's a possibility that something was done incorrectly in their cases," he said, "and we'll let the courts resolve that."

While the stakeholder committee could work, as Bromwich says, I agree with Scheck: It will be more effective with a special master. The simple fact is that however well motivated HPD and the District Attorney's office may be now, there needs to be someone in charge whose interests are independent of theirs. The Chron editorial puts it well:

Local officials understandably want to put the crime lab scandal behind them now that all the lab's divisions have been certified as satisfactory and are processing evidence. However, hundreds of convicts remain in prison, some more than a decade after trials in which evidence presented might have been erroneously tested. Many no longer are represented by lawyers and will need more assistance than a small advocacy group such as the Innocence Project, with limited resources, can swiftly provide.

Hurtt says the judicial system, including police, prosecutors, judge and jury, can bring justice to the inmates who might have been wrongly convicted. That would leave the matter of representing prisoner interests to the police department that made the case against them, the district attorney's office that prosecuted them or a small private group. That model does not guarantee impartial justice.

Bromwich, a former U.S. Justice Department inspector general, won national attention when he investigated problems at the FBI crime lab. At a news conference after the release of his report on Houston's lab, Bromwich agreed that adequate involvement by the stakeholder group could be a substitute for a special master in finishing up the crime lab investigation.

That will put a heavy responsibility on the volunteer, unpaid members to make sure the remaining cases are thoroughly investigated and not swept under the rug in the interest of saving money or jurisdictional expedience.

It's not that it's impossible for this to work without there being an outsider in charge, as the example of Dallas DA Craig Watkins shows. Of course, Watkins is basically an outsider, just one who has since gotten himself officially embedded. He has a mandate for what he's doing that neither Rosenthal nor Hurtt have. Let's get a special master and get this done. It really is the best way.

Grits has more and more on this. The final report itself is here (PDF).

Source/HT:

Posted by Charles Kuffner to Crime and Punishment | Comments (0)

Justice: Just One Vote Away From!

Here's Doc B:

In this new piece entitled "Low-Profile Supreme Court Case Offers Glimpse of Sharp Divide," Tony Mauro highlights a point that I noticed when reading today's 5-4 decision in Bowles v. Russell: the Justices seem to be deeply divided in nearly all criminal law cases these days. Here's excerpts:

[T]he low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term. Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004....

“This court has no authority to create equitable exceptions to jurisdictional requirements,” Justice Clarence Thomas wrote for the majority. Joining him were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito Jr.

In dissent, Justice David Souter was blunt and unforgiving. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.” He was joined by the other justices in the moderate-liberal bloc: John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.

“This is a doctrinal thing that only lawyer geeks and the Supreme Court care about,” says Kevin Russell of Howe & Russell in D.C., who authored a brief in the case on behalf of Bowles for the National Association of Criminal Defense Lawyers. “But you also see more frustration from the liberals on the court who are upset that the rules are changing just because the composition of the court has changed.”

Though I've not formally counted, I believe the vast majority of 5-4 splits this term have been in criminal law cases and most (though not all) have been the same 5-4 composition as Bowles.

As regular readers know well, the traditional divides do not hold to true to form in the Sixth Amendment cases. The deepening divide in other areas just makes more that much more eager — and that much more uncertain — about what to expect in Rita.

And a comment from George (HT SL&P/Berman)

federalist, "suspending" the writ is too mild. This flat out revokes it.

Aaron, that makes some sense. But why no outrage over this in FN 4? Not only the SCOTUS, but a freakin' clerk can suspend/revoke the Great Writ and the government gets off on a technicality.

4The dissent minimizes this argument, stating that the Court under-stood §2101(c) as jurisdictional “in the days when we used the term imprecisely.” Post, at 4, n. 4. The dissent’s apathy is surprising be-cause if our treatment of our own jurisdiction is simply a relic of the old days, it is a relic with severe consequences. Just a few months ago, the Clerk, pursuant to this Court’s Rule 13.2, refused to accept a petitionfor certiorari submitted by Ryan Heath Dickson because it had been filed one day late. In the letter sent to Dickson’s counsel, the Clerk explained that “[w]hen the time to file a petition for a writ of certiorariin a civil case . . . has expired, the Court no longer has the power toreview the petition.” Letter from William K. Suter, Clerk of Court, to Ronald T. Spriggs (Dec. 28, 2006). Dickson was executed on April 26,2007, without any Member of this Court having even seen his petitionfor certiorari. The rejected certiorari petition was Dickson’s first in thisCourt, and one can only speculate as to whether denial of that petitionwould have been a foregone conclusion.

It is near impossible to understand how the government would benefit and the defendant wouldn't if statutes were unable to override the Constitution. United States v. Curry is not a habeas corpus case and no one was imprisoned. No mention of the Great Writ in Scarborough v. Pargoud either. How can those writs equate to the writ of habeas corpus?

The Oxford Companion to the Supreme Court has this:

"Habeas corpus has certain important characteristics. For one thing, there is no statute of limitations regarding access to it, since the right of personal freedom from illegal restraint never lapses. Neither does one failure to secure the writ forbid later application, which means that the usual doctrine regarding the finality of court judgments (res judicata) does not apply to habeas corpus. In recent decisions, the Supreme Court has expressed it disapproval of multiple applications for the writ. Furthermore, unlike other legal actions, a relative or friend may petition for the writ in behalf of a person unable to apply on his or her own behalf. Called "the most important human right in the Constitution," Chief Justice Salmon P. Chase described it in Ex parte Yerger (1868) as "the best and only sufficient defense of personal freedom" (p.95).

What the hell happened? Now even a clerk can write and say you're a day late and a dollar short. No disrespect to any clerks, but there seems to be a great deal of disrespect for the Great Writ.

Free Scooter? Free Everybody? Land of the Free!

No, all Libby did was lie under oath about some details of a campaign to smear opponents of the Iraq war. To such media luminaries as Time's Joe Klein, the whole idea of imprisoning Libby is offensive: "Do we really want to spend our tax dollars keeping Scooter Libby behind bars?" Klein asks.

This question, again, is being asked in a nation that has nearly 2 1/2 million people behind bars - a large proportion of whom committed crimes that were less morally reprehensible, and almost infinitely less damaging to the nation, than Libby's lies.

But to Joe Klein, Libby just doesn't "look" like a criminal. Somebody - perhaps Paris Hilton - should remind Klein that looks aren't everything.

Source: HT Doc Berman

An "inspiring snippet":

In the Petitioner's case, the imposition of the mandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....

If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.

The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here).

So then there is also this from the great Doc B:

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here). Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit. But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable. In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit. Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence? I am still scratching my head, but let me venture a few ruminations:

Mental Illness Crisis in the System?

From Crime & Consequences, an interesting manipulation of the facts (but what is "clarion call"? Is that, like, a seagull? Obnoxious, or inspiring?)

As discussed here, there's a lot of problems with the clarion call of a mental illness crisis in our jails and prisons. That said, a new article in this month's issue of Psychiatric Services has a notable finding: 92% of jail inmates in the study with diagnosed severe mental illness were non-adherent with treatment before their arrest. Furthermore, of those 92%, 72% had a prior arrest for violent crime. This study adds to a growing body of research suggesting that a subgroup of people with mental illness are more violent when compared to the general population.

Booker Reasonableness Review Strikes Extreme Sentence

Observe for yourself here, how easy it is for even a judge to make unreasonable decisions in cases involving uncharged (sex) offenses. It seems, the very thought of a sex crime drives otherwise rational individuals to extremes of irrationality, if not unreasonableness.

Equally interesting is the interaction between uncharged and unrelated to the offense conduct and sentencing in these opinions and federal guidelines.

Libby's Politics

Here is John Dean, former Presidential counselor, taking exception to the slant Presidential wannabe Fred Thompson and the lineup of Republican heavies angling for a pardon at the "Libby Legal Defense Trust" have taken respecting the conviction and yes, the very prosecution itself. Mr. Dean suggests that far from being over, the truth will never be told because of Libby's efforts. And of course, who else but the VP would know that Libby is "the most capable and talented individual" he has ever known, as he stated here.

Apparently, this was one of those mysterious political prosecutions that never would have happened in any jurisdiction except here.

On June 5, U.S. District Judge Reggie B. Walton will sentence Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, who has been convicted of obstruction of justice, making false statements, and perjury, as the result of the Special Counsel investigation arising from the revelation of Valerie Plame's identity as a CIA agent. I suspect that Judge Walton's actions will create a difficult and delicate problem for the White House.

HT: SL&P

Right On

Rep. George Miller (D-CA) released this statement: (HT Talkleft)

Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, today said that the 5-4 Supreme Court decision in the Ledbetter v. Goodyear Tire and Rubber case, in which discriminated workers have only a narrow time-frame to file a complaint in the face of ongoing discrimination, was wrong and Congress should work to clarify the Civil Rights Act. “The Supreme Court’s ruling makes it more difficult for workers to stand up for their basic civil rights in the workplace. A worker undergoing sex, race, or other discrimination in pay is discriminated against with each and every discriminatory paycheck, not just when the company set the worker’s pay. Yet, according to the Supreme Court, if a worker does not file within 180 days of the employer’s decision to set her pay unlawfully, she has to live with that discrimination paycheck after paycheck. This ruling will force Congress to clarify the law’s intention that the ongoing effects of discriminatory decisions are just as unacceptable as the decisions themselves.”

Hyperbole, or One Big Hole: Empirical Reign Crumbling Already?

Here is how a recent review of U.S. foreign policy, appearing here, begins:

One of the few foreign policy achievements of the Bush administration has been the creation of a near consensus among those who study international affairs, a shared view that stretches, however improbably, from Noam Chomsky to Brent Scowcroft, from the antiwar protesters on the streets of San Francisco to the well-upholstered office of former secretary of state James Baker. This new consensus holds that the 2003 invasion of Iraq was a calamity, that the presidency of George W. Bush has reduced America's standing in the world and made the United States less, not more, secure, leaving its enemies emboldened and its friends alienated. Paid-up members of the nation's foreign policy establishment, those who have held some of the most senior offices in the land, speak in a language once confined to the T-shirts of placard-wielding demonstrators. They rail against deception and dishonesty, imperialism and corruption. The only dispute between them is over the size and depth of the hole into which Bush has led the country he pledged to serve.
***
Neither Ross, who served as Middle East envoy for both George H.W. Bush and Bill Clinton, nor Brzezinski, a conservative Democrat and cold war hawk, could be dismissed as Nation-reading, Howard Dean types. Yet in withering new books they both eviscerate the Bush record, writing in the tone of exasperated elders who handed over the family business to a new generation, only to see their successors drive the firm into bankruptcy. Both books offer rescue plans for a US foreign policy they consider to be in tatters.

Global Warming? Massachussetts v EPA

Personally, I treasure clean air, water, regardless of how hot it gets...it's the pollution, hon.

Here's another "Z" guy, Jonathan Z. Cannon writing in Virginia Law Review:

Last month, the Supreme Court handed down its decision in Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”), its first case dealing with climate change. The decision was an enormous, if narrow, victory for environmentalists: it legitimized their concerns about global warming and their claims that the administration was not doing what it should to address it. Whether the decision was a great victory for the environment remains to be seen, but it will affect the policy debate for years to come. I should make clear that I had a dog in this fight. In 1998, as EPA General Counsel in the Clinton administration, I wrote a legal opinion on the question of EPA’s authority to regulate emissions of carbon dioxide (“CO2”) and other greenhouse gases under the Clean Air Act (“CAA” or “Act”), one of three issues decided in Mass. v. EPA.

Thanks to the guys at SCOTUSblog, who also have this regarding an important new development, if you are thinking about going to the federal courts for relief (what a gas! or should I say, more hot air only?):

Is Twombly the Death-Knell for Notice Pleading?

09:16 AM | Marty Lederman | Comments (1)

In its decision Monday in the antirtust case of Bell Atlantic v. Twombly, the Court expressly (and sua sponte) rejected the half-century-old nostrum from Conley v. Gibson that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id., at 45–46. The complaint in Twombly alleged a Sherman Act conspiracy (that the petitioners “agreed not to compete with one another”), but did not specifically allege any facts that would establish such an agreement -- and the Court therefore held that the complaint should be dismissed for failure to state a claim. (See Mark Botti's helpful summary here.)

The Twombly opinion not surprisingly has caused quite a stir in civil procedure circles. Does it signal the rejection of notice pleading and, if so, how can it be reconciled with the Court's decisions in Swierkiewicz (2002) and Leatherman (1993)? Can its holding somehow be limited to certain sorts of Sherman Act allegations, or does it have much broader implications for pleading practice?

It looks as though these questions will be hotly debated in the academy and lower courts in the near future. Michael Dorf has a very helpful initial take on the alternative readings of Twombly that are already framing that debate. See also Scott Dodson's reading here. By contrast, Einer Elhauge calls the case "quite insignificant," not to mention unhelpful for resolving longstadning questions with respect to antitrust complaints.

In general, keep your eyes on the Civil Procedure Prof Blog, where the issue is sure to continue to receive a lot of attention..

The Cave

Not.

Do not fund the troops for another single solitary day. It's for their own good, our good, and the good of America to bring them home with all deliberate speed. Congress, do not become complicit in this ill-fated war for even one more solitary day.

Fund their safe return, fund their R & R, fully.

Day by day, week by week, this disaster continues to fester, grow, stink, and spread.

Kill it now!

UPDATE: R & R = I'm talking about this--

Some of the "rest-and-recreation" facilities include the armed forces ski center at Garmisch in the Bavarian Alps, over two hundred military golf courses around the world, some seventy-one Learjets and other luxury aircraft to fly admirals and generals to such watering holes, and luxury hotels for our troops and their families in Tokyo, Seoul, on the Italian Riviera, at Florida's Disney World, and many other places.

Thanks, to this.

Impeach Gonzales (Speedily)

Here is Prof. Frank Bowman, in Slate:

Showing that Gonzales knew that the only real reasons for dismissing Iglesias were improper ones is critical to the case for impeaching the attorney general. Remarkably, Gonzales has effectively admitted as much. In his testimony, Gonzales provided three explanations for his decision to fire Iglesias: 1) Iglesias "lost the confidence of Senator Domenici," 2) Karl Rove and President Bush complained, and 3) "the consensus recommendation of the senior leadership."

It's time for him to go.

Oh, and I am wondering what the immunized, took-the-Fifth-Monica (Goodling) had to say...

The rest of Frank's piece is too good to pass, enjoy:

The last explanation is misleading. To the extent it suggests that the "senior leadership" of the Department of Justice initiated the idea of firing Mr. Iglesias, it appears to be false. All of the "senior leadership" to have testified so far—including Deputy Attorney General Paul McNulty, Acting Associate Attorney General William Mercer, and Sampson—deny proposing Iglesias for removal. What's more, the only complaints anyone in the Justice Department received about Iglesias were those voiced by Domenici and his fellow New Mexico Republicans, and echoed by Bush and Rove. And all those complaints concerned either voter fraud or public corruption. Thus, when Gonzales said to Congress, "I was not surprised that Mr. Iglesias was recommended to me, because I had heard about concerns about the performance of Mr. Iglesias," he was admitting, however grudgingly, that he knew Iglesias was being fired either for failing to bring voter fraud cases or failing to indict New Mexico Democrats before the 2006 election.

Yet Iglesias' prosecutorial judgment that there were no viable voter-fraud cases to bring has never been challenged by the White House, the attorney general, or any Justice Department official. Indeed, FBI Director Robert Mueller testified in April 2007 that he was not aware of any election-fraud case since 2001 that he thought should have resulted in an indictment, but did not.

Iglesias' firing, therefore, cannot be lumped with others characterized as dismissals for failure to carry out the priorities of the Bush administration. A U.S attorney may certainly be dismissed for failing to prosecute a class of cases the administration has made a priority, so long as there are meritorious cases in his district to prosecute. To knowingly prosecute cases that are without merit, however, would be personally unethical and a gross abuse of prosecutorial power. The punishment is disbarment. If a U.S. attorney, at the command of his political masters, prosecuted a case without merit to suppress voter participation, he would also commit the felony of voter intimidation, as laid out in these federal statutes.

***

Iglesias' sin was not a failure to conduct a successful investigation, but rather his refusal to rush the investigation to affect the outcome of an election. Gonzales' approval of his firing is inexcusable. It was for just such an extraordinary case that the Constitution's framers gave the legislature the power to remove civil officers. Congress should use it.

SCOTUS FOCUS

Yesterday, by a vote of six to three, the Supreme Court dismissed as improvidently granted the writ of certiorari in No. 06-313, Roper v. Weaver. The Court had granted certiorari to determine whether the Eighth Circuit had exceeded its authority under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in setting aside William Weaver’s death sentence because the prosecutor’s penalty phase closing argument was “unfairly inflammatory.” The dismissal means that the Eighth Circuit’s grant of habeas relief to Weaver, a Missouri prisoner, stands.

Thanks to, guess, click here to see.

AWA and SORNA

The Department of Justice has released its Proposed Guidelines for the Sex Offender Registration and Notification Act (SORNA) of the Adam Walsh Act. The proposed guidelines will be published in the Federal Register and will be subject to public comment. You can find the webpage for the proposed guidelines here.

On the page are the Fact Sheet, FAQ, and proposed guidelines themselves.

Thanks, Sex Crimes

Z The Legal Monthly Newsletter

For your May issue, click here.

More from Sex Crimes (and that's all for today, folks)

Here are excerpts from Sex Crimes, which continues to do outstanding reporting on the topics:

The expansion of sex offender laws along with harsher sentences for sexual offenders DO contribute to the decline in child sexual abuse

Among explanations for the general decline in crime during the 1990s, the large increase in the incarceration of offenders has received the most extensive empirical support. Although detailed data are insufficient to conduct a careful analysis of the possible impact of incarceration on sexual abuse, the overall pattern is certainly consistent with the idea that increased incarceration played a part in a true decline. (Explanations for the decline in child sexual abuse cases)

However, there are also disastrous consequences. For instance:

• In California (and most other states), under pressure from politicians and victim advocacy groups, the mandatory child abuse reporting law, originally designed to protect children has been expanded to identifying offenders, making it virtually impossible for them to enter treatment without first suffering severe legal consequences. (How does this protect children?)

• The age of consent varies from state to state and is out of sync with normal sexual development in every state. Adolescents are being charged with felonies for many ordinary, consensual and developmentally normal behaviors.

• Disregarding scientific information about adolescent development, the Federal Government’s Sex Offender Registration and Notification Act will require lifetime registration as sex offenders for many of these adolescents.

• Young children are being ostracized for sexual behavior that is often normal or at worst, an annoying means of seeking attention.

• Under the guise of “protecting our communities,” without a shred of empirical support and in spite of significant empirical evidence to the contrary, sex offenders who served their sentences are being forced to leave their homes (and sometimes families) because they live too close to a school, playground or park.

• In many States authorities are often free to take alleged child victims into custody and subject them to internal forensic medical examinations without either the child’s or parent’s permission. (They need a court order to look for evidence of a crime in a person’s home but not a child’s vagina or rectum.)

• Adolescents are given conflicting and confusing messages about sexual behavior. They can generally consent to abortion and obtain birth control at age 12 but, depending on the state, cannot consent to sex until age 16 or eighteen. If they willingly engage in sex with adults before that age, adolescents are labeled (“compliant”) victims because they are considered incapable of meaningful consent. But if then engage in sex with a younger child they are considered capable of forming meaningful criminal intent by age 14 and can be (and often are) charged with felonies in adult courts.

In future posts I will expand on these and other issues and explore how they integrate with out cultural sexual obsession.

The Crow's Nest: Libby and One Federal Sentence

From SL & P: US News & World Report has this new piece discussing the preparation of Scooter Libby's presentence report. Here is how it starts:

Lewis "Scooter" Libby — the former top aide to Vice President Cheney who was convicted of obstruction of justice, perjury, and lying to the FBI in March — will be a step closer to learning his fate next week, when the presentencing report for his case is due to be completed.

Libby's lawyers and special prosecutor Patrick Fitzgerald will get their hands on the report May 15, but the document will not be publicly released–not before Libby's June 5 sentencing nor after. The report will include a probation officer's calculation of what sentence Libby should receive under federal guidelines and a judgment on whether the case merits a different sentence. Lawyers on both sides can contest parts of the report, and the judge ultimately can depart from its findings, but it will serve as a kind of first draft of the eventual sentence.

Some Libby sentencing posts:

• First-cut Libby guideline calculations?
• More Libby sentencing speculation
• Comparing Lewis Libby and Victor Rita
• Could Libby's decision not to testify now result in an obstruction-of-justice enhancement?
• Sentencing and pardon politics in the Libby case
• Will VP Cheney help Libby at sentencing?

SEPARATELY: The Boston Globe published a lengthy article questioning the wisdom of using residency restrictions as a means to decrease sex crimes against children.

FURTHER: (Also from Sex Crimes blog)

The Massachusetts Supreme Court has made a ruling in the odd area of law concerned sex by fraud. Here is a media account of the ruling:

A woman who had sex with her boyfriend's brother in her darkened room late one night claimed she was raped, saying the man tricked her into the act by impersonating her boyfriend.

But Massachusetts' Supreme Judicial Court disagreed Thursday, citing a half-century-old state law that says it is not rape when consent to sexual intercourse is obtained through fraud or deceit.

The high court said the state's rape law defines rape as sexual intercourse compelled "by force and against (the) will" of the victim. The court cited a 1959 ruling it made in another case in which it found that fraud cannot be allowed to replace the force required under the law.

The SJC noted that the state Legislature has had "ample opportunity" to change the rape statute to include fraud or deceit, but has not done so.

"Fraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute," the court said.

Modus Operandi: Plutarch's Lives

But Aristides, who was the principal man of Greece, through extreme poverty reduced some of his to get their living by jugglers' tricks, others, for want, to hold out their hands for public alms; leaving none means to perform any noble action, or worthy his dignity.

Yet, why should this needs follow? since poverty is dishonourable not in itself, but when it is proof of laziness, intemperance, luxury, and carelessness; whereas in a person that is temperate, industrious, just, and valiant, and who uses all his virtues for the public good, it shows a great and lofty mind. For he has no time for great matters who concerns himself with petty ones; nor can he relieve many needs of others, who himself has many needs of his own. What most of all enables a man to serve the public is not wealth, but content and independence; which, requring no superfluity at home, distracts not the mind from the common good. God alone is entirely exempt from all want: of human virtues, that which needs least is the most absolute and most divine...

[Plutarch's Lives, The Comparison of Aristides with Marcus Cato]

Modus Operandi

Just one more case of Texas "justice" ...
click here, and thank you, Howard Bashman, for the link.

Major Question: Reach of Presidential Power

From SCOTUSblog we learn:

This morning, (that would be Monday, 4/30) the Supreme Court granted cert. in Medellin v. Texas, which raises a major question about the limits of executive power. Lyle Denniston has written extensively about the case of Jose Ernesto Medellin, a Mexican national convicted of murder and facing execution in Texas.

In September of 2005, Lyle had this post discussing the aftermath of the Supreme Court's May 2005 decision in Medellin v. Dretke. Last November, he reported here on the ruling of Texas' highest state criminal court that the President did not have the authority to direct the state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S.

In January, Lyle had this report after Medellin's lawyers filed a new appeal to revisit the issue. He discussed the Goverment's amicus brief in this case here in March. And prior to the April 20 private Conference, Lyle provided additional background and context here.

Additionally, the April 16 edition of Conference Call in the Legal Times (column archive here; subscription req'd) features Medellin v. Texas.

All of the filings in this case, as well as in the earlier appeal to the Supreme Court, can be found at this link.