Sunday, November 12, 2006
Get Smart On Crime
Grits for Breakfast has this on getting smarter about crime from a Texas perspective, explaining why Texas jails are overcrowded. You'll also find an intriguing link to a piece about government surveillance by the ACLU.
The other recommended read is, Primates and Philosophers: How Morality Evolved:
From Corrections Sentencing there is this interesting review by Michael Connelly posted Saturday, November 11, 2006:
"Last month I posted a book review essay on The Ethical Brain and The Future of the Brain to recommend these studies of cognitive and neuro-research as first steps to understanding where the pharmaceutical and genetic aspects of technocorrections might take us. I've got a couple more to recommend now. The first is along the same line as the first two, Richard Restak's The Naked Brain: How the Emerging Neurosociety Is Changing How We Live, Work, and Love. Restak covers a lot of the same material as the others, the way the new technologies for imaging the workings of the brain are telling us so much about how it works and its relationship to our consciousness (which turns out to be a lot like a third party to our brain like the people we deal with every day are). The brain knows and does a hell of a lot more than "we" are privy to, and the imaging is giving us our first real clues to that, creating a "neurosociety" in which "brain science influences every aspect of daily life."As I mentioned before, this clearly includes corrections sentencing."
The other recommended read is, Primates and Philosophers: How Morality Evolved:
"The title should give the link to corrections sentencing away.In a way I felt sorry for de Waal in this book as he presented the decades of work he's done with other species that demonstrates conclusively to any non-human-obsessed mind that morality exists along a spectrum among species, not a sharp separation between us (really, we're still putting ourselves up as paragons of morality??) and the rest of the animal kingdom. *** If genetics and gene expression in given environments are involved in setting our own and our community's standards of right and wrong, then we will have to consider the arguments of those who argue specialness for their defendants and we will have to consider the possibilities that genes make us different from each other, not "equal under the law."We've based our law, our codes, our justifications for sanctions and mercies on views of humanity that are daily being shown to be as wrong as Locke, as wrong as Plato and Aristotle, Augustine and Luther, Rousseau and Marx. This is serious stuff, folks. And the guys doing the challenging are not under our tent and, in de Waal's case, suffer us not very gladly. They will be setting the new rules, the new paradigms, and we can embrace them and make sure our truly beneficial contributions are incorporated or we can play off in our corner and let people who don't have our experience and mistakes to learn from make the new policies. Or as a wise man once said, "we can allow irresponsible people to use this knowledge in ways that are not always to our advantage." The choice is ours. But time's a-wastin'."
Okay, so on to some Sunday football, America's real religion.
Saturday, November 11, 2006
What's In A Name?
I noticed the incongruoussness in the fact that my blog is still called "Monthly" (I've been posting a monthly newsletter on this site). Now that I think I will be posting more often as a blog than "monthly" I've decided to change the title to "Z--The Legal Blog and Monthly"--keeping the designation of "monthly" out of respect for the monthly paper copy that will still be going into the prisons by old fashioned snail mail.
Prop 83
Start over at Prof. Berman's Sentencing Law & Policy for the latest news on this California initiative. There is a link on the right side of my blog page. Apparently, the TRO was not contested as the law was not intended to apply to persons convicted before it becomes effective. Then go to Sex Crimes, (a blog) also linked on my page, and follow the yellow brick links.
And have a happy Veterans Day!
And have a happy Veterans Day!
Policy Recommendations
Regarding changes in the law, and policy, my first question is, do we really need, "a long term, systematic, comprehensive, institutionalized counterterrorism policy for the United States" as Kenneth Anderson suggests here? If anything, my preference is to reduce bureacratization. The constitution adequately provides for practically anything, we already have a gigantic court system, including a counter-terrorism or FISA court, and our policy toward terrorists and terrorism is very clear already if not constantly evolving. An "institutionalized" policy sounds too much like a new cabinet level or deputy level position, sort of like "drug czar" and I'm not convinced that Anderson's reasons are good ones. The political argument seems to be that once Congress has acted courts must lay off, and that is simply not the way we work. Or is it?
PostScript to Elections
Just guessing, but it looks like the 3 Gs -- Guns, Gays, and God -- Groups will need a new angle on the next elections, or maybe just a new candidate. I wonder which? Who will step up and carry that banner? Genius Karl Rove, who may have been behind the strategy, looks gone but the strategy has worked before and is ripe for ... who knows ... a decent burial?
PPS. I just switched to the new beta version and in any event am a neophyte blogger (that means I have no clue what I am doing with the blog except trying to say something that does not sound totally stupid) so bear with me while I figure this out. I know I'm slow but once I catch on look out...feet don't fail me now.
PPS. I just switched to the new beta version and in any event am a neophyte blogger (that means I have no clue what I am doing with the blog except trying to say something that does not sound totally stupid) so bear with me while I figure this out. I know I'm slow but once I catch on look out...feet don't fail me now.
Z
The Legal Monthly
Vol. 1 No. 4 Blog at http://zlegaltimes.blogspot.com/ November 2006
The Uniquely Gregarious Source Of Legal News And "Divers" Contrary Information
SPECIAL 2006 MIDTERM ELECTION ISSUE
Democrats wanted 15 seats to make Rep. Nancy Pelosi of California the first woman speaker in history; they got 28 and made history. Dems also took over the Senate 51-49. Two Independents will caucus with the Democrats. Many national races at one time uncontested or safely Republican got a lot hairier the closer we got to November 7. Democrats said they would defeat Republicans Rick Santorum in Pennsylvania, Mike DeWine in Ohio and Lincoln Chafee in Rhode Island, and Republicans made little attempt to dispute them. In the campaign's final days, pivotal races were re-election campaigns by Sens. George Allen in Virginia, Conrad Burns in Montana, Jim Talent in Missouri and the Tennessee seat vacated by Majority Leader Bill Frist so he could run for president. In an interview following Senator Allen’s concession in Virginia, in which the vote was so close that the winner could not be called until Thursday, Senator-elect Webb said he got traction on three issues accurately summing up the national mood: course change on national security, class divide not seen since the 1880s in this country, and … President Bush’s unpopularity.
Justice Under Attack Justice Sandra Day O'Connor, retired in January after 24 years on the nation's highest court, continues to speak out in defense of the judiciary ---"the weakest branch"— just days before South Dakota voters consider the "Jail 4 Judges" initiative that would create a citizens' grand jury that could authorize lawsuits or criminal prosecutions against judges based on their rulings. Colorado voters will decide whether to limit judges on the state's highest courts to 10 years in office, a measure that would remove five of the state's seven Supreme Court justices within two years.
Democracy, American Style A review article appearing in The New York Times starts like this: "The current result of American democracy (though this may change on Tuesday) is Republican control of the presidency, both houses of Congress and (undeniably by now) the federal courts. And that, in turn, has produced policies that, unless I badly misjudge the demographics, most readers of The New York Times Book Review don’t care for: unjustified tax breaks for the rich, a miserable war in Iraq, unbelievable indifference to civil liberties (Secret prison camps? Torture?? America???), among other treats. But this doesn’t prove any flaws in democracy itself. Maybe it’s what people want."
That’s pretty cheeky. It goes on, "if reason has led you to a certain set of political beliefs, the fact that others disagree perhaps should give you pause, but it should not automatically change your mind, no matter how many others there are. *** Candidates and partisan commentators strike poses of outrage that they don’t really feel, take positions that they would not take if the shoe was on the other foot (e.g., criticizing Bush when you gave Clinton a pass, or vice versa), feel no obligation toward logical consistency. Our democracy occasionally punishes outright lies but not brazen insincerity. When we vote after a modern political campaign run by expensive professionals, we have almost no idea what the victor really believes or what he or she might do in office.
My favorite part of this article is where Kinsley called Bush v. Gore "surprising" "shocking, in fact" and "probably the most fatuous — i.e., knowingly stupid" decision ever, and says "the justices of Plessy v. Ferguson (1896), who upheld racial segregation, could at least plead historical blinders. The majority justices of Bush v. Gore have no such excuse. Both as a raw assertion of judicial power and as a more specific interpretation of the 14th Amendment, it was not merely wrong, but spectacularly wrong in precisely the ways that conservative justices like Scalia, Rehnquist and Thomas had been objecting to for years. The justices invented a nonsensical equal-protection "right" — essentially, the right to an equal risk of having your vote miscounted — and held that any attempt to correct mistakes through a recount was unfair to those who didn’t get recounted. And then they declared this alleged right to be a one-time-only offer, like a grocery-store coupon. As Adam Cohen pointed out recently on the New York Times editorial page, the coupon has indeed expired. Bush v. Gore is rarely cited or applied in other situations."
Kinsley provided insightful comments regarding well timed books and closed with a nice argument well worth reading:
"at least regarding the presidency, our Constitution doesn’t provide for majority rule. It dictates an arcane process involving the Electoral College and gives disproportionate weight to low-population states. We accept this with surprising equanimity. No one doubts that Al Gore
got the most votes in 2000, but almost no one feels that this alone means that the presidency was stolen from him. One who does apparently feel that way is Sanford Levinson, a professor at the University of Texas Law School, who has written "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)," calling for wholesale revision of our nation’s founding document. *** registration laws and the distribution of assets like voting machines [to] discourage certain voters and potentially change the result. These abuses are the subject of "Stealing Democracy: The New Politics of Voter Suppression," by Spencer Overton, a professor at George Washington University Law School. Fifth — and darkest — is outright voting fraud, by "fixing" (that is, by breaking) the voting machines, as well as more traditional methods à la Chicago in the old days. *** Although resentment over the actually stolen election of 2000 is remarkably muted, there is a noisy contingent of citizens, led by Robert F. Kennedy Jr., who are convinced that the Republicans stole the election of 2004. "Was the 2004 Presidential Election Stolen?" by Steven F. Freeman and Joel Bleifuss, answers its own question with a resounding "yes." *** It is remarkable that the chairman and chief executive of Diebold, the company that makes the voting machines used in Ohio, sent out a fund-raising letter for Bush in 2003 in which he said he was "committed to helping Ohio deliver its electoral votes to the president." This doesn’t prove anything except that the C.E.O. is an idiot. He’s an idiot if his company is not fixing the voting machines, and an even bigger idiot if it is. I hate to be reasonable at this historic moment, but the principle of Occam’s razor favors the lesser idiot theory.And so the quotation and the fund-raiser don’t really feed the case for conspiracy. Most of the other evidence offered by conspiratorialists is not about Category 5 — outright theft — but Category 4: strategic, purposeful, deplorable, but not illegal voter discouragement. *** A famous mathematical proof called Arrow’s Impossibility Theorem, for which the Stanford economist Kenneth Arrow won the Nobel Prize in 1972, demonstrated that whenever there are more than two choices (as there always are in presidential elections, if you include the primaries), no voting system can accurately translate individual preferences into a consensus winner even in theory. *** The great flaw in American democracy is not electoral irregularities, purposeful or accidental. It’s not money (which, even under current law, cannot in the end actually buy votes). It’s not even the inexplicable failure of all other Americans to vote my way or of politicians to enact my own agenda. It’s not the broken promises and the outright lying, although we’re getting close. The biggest flaw in our democracy is, as I say, the enormous tolerance for intellectual dishonesty. Politicians are held to account for outright lies, but there seems to be no sanction against saying things you obviously don’t believe. There is no reward for logical consistency, and no punishment for changing your story depending on the circumstances. Yet one minor exercise in disingenuousness can easily have a greater impact on an election than any number of crooked voting machines. And it seems to me, though I can’t prove it, that this problem is getting worse and worse. A few days before the 2000 election, the Bush team started assembling people to deal with a possible problem: what if Bush won the popular vote but Gore carried the Electoral College. They decided on, and were prepared to begin, a big campaign to convince the citizenry that it would be wrong for Gore to take office under those circumstances. And they intended to create a tidal wave of pressure on Gore’s electors to vote for Bush, which arguably the electors as free agents have the authority to do. In the event, of course, the result was precisely the opposite, and immediately the Bushies launched into precisely the opposite argument: the Electoral College is a vital part of our Constitution, electors are not free agents, threatening the Electoral College result would be thumbing your nose at the founding fathers, and so on. Gore, by the way, never did challenge the Electoral College, although some advisers urged him to do so.
Of all the things Bush did and said during the 2000 election crisis, this having-it-both-ways is the most corrupt. It was reported before the election and is uncontested, but no one seems to care, because so much of our politics is like that. And no electoral reform can fix this problem. Intellectual dishonesty can’t be banned or regulated or "capped" like money. The only way it can be brought under control is if people start voting against it. If they did, the problem would go away. That’s democracy. (from Michael Kinsley and The New York Times) Michael Kinsley is American editor of Guardian Unlimited (guardian.co.uk), the Web site of The Guardian of London. His column appears in The Washington Post and Slate.
IN DEFERENCE TO THE ENTERTAINMENT VALUE OF THIS OLD RAG, "The Bush Wars" this month: THE FANTASTIC EMPIRICAL PRESIDENCY---OF CHEERLEADERS, ROYAL SPITBALLS, AND SINKING SHIPS Washington. Yesterday, Wednesday, November 1, 2006, was a very interesting day. The hot news (perhaps not news?) was that the other one-time-next-POTUS and U.S. Senator Kerry botched a joke. Then during the day ACTUAL POTUS W made a "weird" statement (they had Andrew Sullivan with Chris Hitchens last night on CNN---the word is Andrew’s, or was it Chris’s? I forget but who said what is NOT important). WHAT W SAID was that he would keep Rummy and Chinney until THE DAY he was to leave office, in other words, until January of 2009. OMG.
It WAS TOTALLY weird. The video clip shows W flanked by Chinney, Rummy and etc., (I am talking THE WHOLE CREW including Condi, and some more people in uniforms and suits, all lined up for a group shot outside a log cabin somewhere at Camp David, and W is grim faced as are they all…and…but they are trying to smile and trying to make it look like they were all just partying it up and having a good time, except they all looked very much as though they’d been up all night, which they probably had been because you just can’t hide the fact that you slept in your shirt and sportcoat until AFTER you change and take your morning shower OBVIOUSLY … and well, Andrew Sullivan called it a big "DENIAL" and compared it to Katrina, saying that if you thought the Katrina kudos were true, then you’d also think that Rummy and Chinney are doing "a fantastic job," as W actually said.
Andrew believes Iraq is this year’s Katrina, that W’s popularity rating, meaning his APPARENT level of competence in the public’s perception, is actually tied to his level of competence as determined by what he actually came out and said, and/or did, as reported by the MSM. And this is just what the People THINK WE KNOW our President is doing. Can you just imagine all the STUPID decisions he must actually be making in SECRET that don’t get reported? NOW do you understand why things are the way they are in Iraq?
The following is what really happened, and continues to happen every day, in and around Iraq. This is VERY IMPORTANT because it directly affects what is happening in and around AMERICA. From day one of the invasion or before until today this "project" has skimmed American Peoples’ tax dollars and scooped them into the private coffers of, Halliburton, ChevroTExxonnIncCo/Mobil/BP, etc., and all the other BIG (and small) oil companies and BIG (and small) executives and their "family and friends" in Saudi Arabia, Venezuela, Russia, and even in Houston, Texas, Alaska, Wyoming and Oklahoma, and yes, Kennybunkport, Maine, too. Which essentially leaves the hard working American Joe stiffed, hungry, and looking for…the nearest Walmart. And, well, just go back and look at your photo histories of the 1930s, shake off your coffee-table picture books about the Dust Bowl, and re-read Grapes of Wrath. That’s Steinbeck. That was no fantasy.
But Chris Hitchens has called it "fantasy." That W was just having a fantasy using that word, that it wasn’t real, whatever that means. (Hitchens also denied being "conservative" on the spot right when Paula Z introduced him on CNN). But I know what that means. I saw the video clip of the Bushies outside Camp David yesterday. And what I saw is that Bush is clueless, a void, a vacuum, a … get the picture? Have you seen the photos of Hitler in the final days? Check that out. Eerily similar. Drawn hollow cheeks, blank stares, thin taught lips. Walking dead (dead man walking?). And nobody is telling the Emperor that he has no clothes ON. But who’s fault is that?
How can anybody think things are going "fantastic" in Iraq, or anywhere else? Couric’s own CBS last night spotlighted the following stats: the People will vote AGAINST Bush and not for a Democratic or Republican candidate this Tuesday; Iraq is first/foremost on the collective American mind; "We" don’t like what’s happening; Iraq is NOT going "fantastic"[ally] well. WE HAVE KNOWN THIS FOR SOME TIME NOW AND SHOULD HAVE KNOWN THIS FOR A VERY LONG TIME NOW.
Further, yesterday’s NYT feature on the front page is a leaked Pentagon assessment of intelligence, rating Iraq conditions on what I will call a "green scale" (green represents PEACE, red is for CHAOS…in between are yellow, amber, orange, etc.) And there is an arrow on the dial called current assessment marking a point well into the RED (right), and an arrow marking "week ago" is just to the left of the one marked "current assessment". WHEW. OUCH. The People know this already, and now we know this: so DO the GENERALS. W is the only one who doesn’t seem to know??? Or is he just pretending and playing the role of loyal cheerleader?
Also news yesterday, housing prices are starting to actually decline and not just stagnate. That has not happened since the Great American Depression of the 1930s. Today might just well mark the beginning of the next Great Depression-era bust. And this time, as it was before, it will be GLOBAL. And this time, well, we know it led to HITLER last time. And this time, well, HISTORY DOES TEND TO REPEAT, REPEAT, REPEAT. So goes the old joke: the Captain is heard over the ship’s PA system reassuring the passengers. What he says is, "nothing can go wrong… nothing can go wrong… nothing can go wrong…"
Oh, and if you are wondering what the spitballs are about? The BBC reported somebody "over there" has termed the spat between W and K in which W demands an apology from K for botching the joke a "royal spitball fight" or some such thing. Yes, it truly was a very interesting day. Special from Major Goodbar, USAVOICE.ORG
Frankly, my dear… I actually prefer a b*j* (good, bad, or ugly AND even if it does happen to be in the Oval Office—talk about shooting the moon) over a bad war any day.
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 notonly unpatriotic and servile, but is morally treasonable to the American public." --Theodore Roosevelt, 1918
The United States Supreme Court 2006 Term Update (Seriously, now)
RETROACTIVITY: With a single question during argument Tuesday (11/7) in Burton v. Stewart (05-9222), Chief Justice John G. Roberts, Jr., dropped a hint that Congress' revision of federal habeas rules in 1996 might play a major role in determining the fate of one of the most important precedents in the field: Teague v. Lane. Teague might be on the way to being scuttled and, with it, a significant amount of jurisprudence on making criminal law decisions retroactive to earlier cases. Potential retroactive application of the reasonable doubt standard is at issue in Burton. If a procedural rule breaks new legal ground it generally is applied retroactively only if it involved a "bedrock principle," a "watershed" rule that helps to assure fair trials. Apprendi began a series of rulings reinforcing the role of juries – rather than judges – in making the factual findings that can lead to enhanced criminal sentences. Blakely followed in 2004, applying the Apprendi principle to enhanced sentences under state guidelines systems, and a year later came Booker, extending the principle to the federal Sentencing Guidelines regime. The Court has not considered whether to make Apprendi and Booker retroactive but that may ride on the outcome of Burton. Indeed, some of the briefs filed make the argument that all three should be made retroactive. Other briefs, of course, insist that no sentencing procedure ruling should qualify for retroactivity. (Whorton v. Bochting, 05-595, confronted a similar dispute over potential retroactivity. That involved Crawford v. Washington limiting the use of out-of-court statements not subjected to cross-examination and the Confrontation Clause.) The Ninth Circuit found the decision is to be applied retroactively. That holding appeared vulnerable when the Justices granted review -- the Court has been unwilling to make any of its criminal procedure rulings retroactive in the 11 years since it laid down the tests to apply a new rule to earlier cases.
There were signs of that reluctance in the one-hour hearing on Wednesday -- such as a revealing hint that new Justice Samuel A. Alito, Jr., may be attracted to an aggressive suggestion by amici that Congress has taken away the Court's authority to make criminal rulings retroactive to state cases challenged in federal habeas. But the signs seemed less conspicuous than the growth in constitutional stature that Forsman -- on her own, but also with significant help, especially from Justice Anthony M. Kennedy -- conferred on the Crawford decision itself. It might be possible to count to five Justices for the proposition that Crawford was a "bedrock" constitutional decision, and thus would be made retroactive. At the very least, a majority of the Court did not appear interested in the suggestion that it abandon its 1989 decision in Teague v. Lane which, among other things, had declared that retroactivity was the exception but that a rule could be applied to earlier cases if it reflected a "bedrock understanding" of what a fair criminal trial must be.
The Court has already ruled against retroactivity in one post-Apprendi sentencing decision. In Ring v. Arizona in 2002, the Court applied the Apprendi principle on jury fact-finding in sentencing enhancement to require that juries find the aggravating factors
necessary to make a person convicted of murder eligible for the death penalty. But, in 2004, in Schriro v. Summerlin, the Court ruled that Ring was not to be applied retroactively in federal habeas cases. The Ring decision, however, only dealt with the part of Apprendi that
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assigned the fact-finding role in enhancement to juries. It did not deal with the part of Apprendi – later applied in Blakely – that requires that any facts that lead to enhancing a sentence must be found by the jury "beyond a reasonable doubt.
PLRA EXHAUSTION: The Court heard the consolidated arguments of Jones v. Bock and Williams v. Overton, considering three procedural questions regarding the Prison Litigation Reform Act’s exhaustion provision. First, do prisoners have to plead exhaustion in their initial complaint, or does the burden lie with the state to raise non-exhaustion as an affirmative defense? Second, do prisoners have to name every official they will sue in federal court in their original underlying administrative grievance? Third, does the PLRA mandate a "total exhaustion" rule, whereby all claims brought by a prisoner must be dismissed where one or more non-exhausted claims are included in the complaint? All three issues were decided against the petitioning prisoners in the Sixth Circuit. ***Jean-Claude Andre, arguing for petitioners, opened by framing the three rules in contention as "judge-made corollaries" which "contradict the federal rules." Through an exchange with Justice Kennedy, Andre emphasized that under the Sixth Circuit’s holdings, prisoners are not allowed to amend their complaints if they do not satisfy the heightened pleading standard.
AEDPA: Argument in Lawrence v. Florida revealed that the Court may be willing to loosen the strictures that AEDPA places on criminal defendants seeking post-conviction relief. The Court appeared divided on the issue of where an application for post-state conviction relief must be pending for 28 U.S.C. § 2244(d) tolling purposes.
BOOKER: At Conference the Court had before it a long list of cases on the issue. From those, it chose Claiborne and Rita, presenting an array of specific questions on the core issue of reasonableness. The Solicitor General had opposed review in both. In the two cases, the Court itself wrote the questions it will be reviewing, spelled out in the orders.
Is AEDPA 28 U.S.C. 2254(d) Unconstitutional?
No news is not good news in this area: until SCOTUS says you have a constitutional right, no LOWER court will be authorized to recognize that right, a very high hurdle, since it takes SCOTUS many years to review an issue, extremely few unpaid petitions are ever granted cert, AND the bulk of AEDPA petitions are unpaid. Further, this is court stripping like you have never seen before, and denies to the lower courts jurisdiction to consider and rule upon "new" or "unrecognized" constitutional rights, and that is completely unprecedented in the history of the Republic.
The "clearly established rights" doctrine of 1983 immunity cases is the only rule with a resemblance (where immunity cannot be overcome unless a right was "clearly established"). Even there, when the Court sought to define the scope of the term "clearly established" it did not require that the right have been established verbatim (identical or indistinguishable facts and circumstances are not required), as the language of AEDPA appears to require.
New In the Circuits (not yet in print thus Federal Reporter Citations not given) The reporters (or courts) seem to have taken a renewed interest in prisoner litigation issues this month. That incarcerated persons should have certain constitutional rights is a proposition which requires vindication now and again (interestingly, most of these cases have been in the pipeline for quite some time). The looming battle concerning AEDPA review remains whether or not reviewing courts can defer to results of state-court opinions in and from which facts can only be implied, inferred, or deduced, the so-called "silent" opinions or, as it has been said, "can deference be given to that which does not exist?" (when a district court makes no independent findings of fact review de novo the district court's conclusions of law and findings of fact; when state court did not address a properly raised federal claim court is not bound by AEDPA's deferential standard of review and instead reviews the claim de novo. Williams v. Haviland, No. 05-3986 (6th Cir. 10/26/2006)).
Peralta v. Vasquez, No. 04-2822-pr (2nd Cir. 10/17/2006) presents a new twist on a familiar issue: What requirements must a prisoner meet before he can maintain a claim under 42 U.S.C. § 1983 that challenges sanctions imposed pursuant to a prison disciplinary proceeding?
Johnson v. Finnan, Superintendent, Wabash Valley Correctional Facility, November 2, 2006 When a prisoner who seeks a writ of habeas corpus provides competent evidence (such as an affidavit by someone with personal knowledge of the events) contradicting an assertion by the prison disciplinary board on a material question of fact pertinent to an issue of constitutional law, the district court must hold an evidentiary hearing to determine where the truth lies. Piggie, 272 F.3d at 926.
Roth v. Green, No. 05-1129 (10th Cir. 10/30/2006) (10th Cir., 2006) This §1983 case shows not only the high costs and ultimate futility of trying to enforce drug laws through the use of vehicular "ruse" checkpoints, but also a great deal of attorney stupidity. Appeals challenged a sanction award against counsel pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927, as well as a fee award against two individual plaintiffs pursuant to 42 U.S.C. § 1988.
Thore v. Howe, No. 06-1627 (1st Cir. 10/27/2006) (1st Cir., 2006) (Interesting Heck v Humphrey issue and judicial estoppel, state court convictions, plea and consequences for estoppel in future legal proceedings.)
McCann v. Neilsen, No. 05-3699 (7th Cir. 10/26/2006) (7th Cir., 2006) Another good Heck case. "As a general proposition, a plaintiff who has been convicted of resisting arrest or assaulting a police officer during the course of an arrest is not per se Heck-barred from maintaining a § 1983 action for excessive force stemming from the same confrontation. VanGilder, 435 F.3d at 692. A contrary conclusion, we held in VanGilder, would "imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose, while forfeiting the right to sue for damages." Id. We disapproved such a result because it "would open the door to undesirable behavior and gut a large share of the protections provided by § 1983." Id."
Trujillo v. Williams, No. 04-2257 (10th Cir. 10/17/2006) (10th Cir., 2006) Conditions of confinement
Stanley v. Bartley, No. 06-2184 (7th Cir. 10/17/2006) To fail to interview any witnesses or prospective witnesses was a shocking dereliction of professional duty in a case in which the state's evidence, though sufficient to convict the defendant of murder beyond a reasonable doubt, was far from compelling. Leslie Stanley would have had a decent shot at acquittal. The state courts' contrary conclusion was not reasonable, judgment of the district court AFFIRMED.
Lankford v. Arave, No. 99-99015 (9th Cir. 11/7/2006) re: counsel's performance in a twenty-two year old capital murder trial; critical jury instructions that were correct under federal law but clearly in error under Idaho law, error was not harmless, judgment of the district court reversed and writ granted.
Nothing of critical interest was reported out of the Fifth Circuit this month by way of Habeas Corpus and Criminal Law. 112 cases in which the words Habeas or Corpus appeared were reported out of all federal appellate courts in September, October and November to date. That number is down to 37 when "ineffective assistance" is added to the search terms and jumps to an unmanageable 397 when the search term is crim*
EQUITABLE TOLLING: Flores v. Quarterman, No. 04-51062 (5th. Cir. 10/6/2006) (district court abused its discretion in invoking equitable tolling where Flores, uncertain as to which date, elected the later).
OF SPECIAL INTEREST Grayson v. King, 460 F.3d 1328 (11th Cir. Aug 18 06) David Boies and the Innocence Project, high powered counsel, document efforts to convert an ethical obligation by prosecutors under Brady (see Imbler v. Pachtman, 424 U.S. 409, 427 n.25) into one that implicates due process. Could be headed to SCOTUS.
Regarding Actual Innocence
Innocence Blog
Smith v. Baldwin, No. 04-35253 (9th Cir. 10/24/2006) (9th Cir., 2006) Actual Innocence claim overcame procedural bar.
Litigation --
Lawyers for Guantanamo Bay prisoners argued in two briefs filed Wednesday in the D.C. Circuit Court that the language Congress chose in its new court-stripping law actually leaves detainees who have not been charged with any crimes free to go forward with constitutional and treaty-based challenges to their original detention and continued imprisonment. In essence, the lawyers contended, Congress' new exercise in drafting should be read the same way as the Supreme Court did with the original attempt in its ruling in Hamdan v. Rumsfeld -- leaving habeas rights intact. 11/1/06
In Doe v. Schwarzenegger, et al., no. 06-cv-06968-JSW, a federal district judge issued a Temporary Restraining Order (TRO) against the enforcement of the residency restrictions under California’s Proposition 83 (Jessica’s Law), which passed easily on Tuesday, Nov. 7. The judge found that the parties have a likelihood of success on both the Ex Post Facto Clause argument (based on retroactive application) and the due process claim. So far no highest court has supported either of these arguments in killing a residency or work restriction, consequently, it is very unusual for a court to find a likelihood of success on the merits. As this litigation moves forward expect a challenge to GPS monitoring included in the plaintiff's arguments. Residency restrictions for sex offenders are likely to endanger, rather than enhance, public safety. Iowa's prosecutors, who have the most experience with these laws, came to this conclusion long ago. Beyond the public safety consequences, the California experience with residency restrictions in Proposition 83 spotlights that these laws always engender copious litigation.
Books, Magazines (Articles) and Websites
New in the blogosphere is Sex Crimes, a blog devoted to the criminal laws regulating and punishing sex offenders
Senator Byron L. Dorgan (Democrat of North Dakota) "Take This Job and Ship It: How Corporate Greed and Brain-Dead Politics Are Selling Out America," an exercise in assertion rather than persuasion that takes for granted the obvious truth of what it purports to argue, which is boilerplate protectionism
Patrick J. Buchanan at his usual fever pitch "State of Emergency: The Third World Invasion and Conquest of America." (Earlier Buchanan titles, on other issues, have included "The Death of the West" and "The Great Betrayal.")
Ronald Dworkin’s "Is Democracy Possible Here? Principles for a New Political Debate." Dworkin, a law professor at New York University and University College London and a distinguished liberal thinker, says with patent insincerity that he does not blame one side more than the other for the trashy state of our politics
In "Does American Democracy Still Work?" another distinguished liberal philosopher, Alan Wolfe, faces manfully up to "the new politics of democracy" in which sentimental populism seems to be owned by the right. Although Wolfe clearly regards this as terribly unfair (as do I) and a result of voters’ failure to know their own self-interest, he manages to make his argument for more "quality control" in American democracy in ideologically neutral terms.
"The Broken Branch: How Congress Is Failing America and How to Get It Back on Track" reveals their relationship with the national legislature be much more profound than mere observation. Frankly, it’s love. And they are deeply distressed by Congress’s current low esteem. Urging reform at every opportunity, they seem like the loyal spouse of an alcoholic or drug addict, desperately pushing their beloved into rehab. You may not share the authors’ heartbreak over the decline of the "15-minute rule" — a not-so-old tradition (it began in the 1970’s with electronic voting) that House votes should not last longer than 15 minutes, to prevent endless arm-twisting. But their reminders about some of the phony issues and false panaceas that litter the recent history of Congress — Remember the House bank scandal? The Contract With America? Term limits? — do make you despair of American politics. Issues and arguments come and go, depending entirely on whose ox is gored.
Recherché complaint, check out "Activism, Inc.: How the Outsourcing of Grassroots Campaigns Is Strangling Progressive Politics in America," by Dana R. Fisher. Fisher, who teaches sociology at Columbia, is upset about the professionalization of grass-roots campaigning, which he believes has sliced the bottom rung off the political ladder and keeps inspired young people from entering politics and pointing it in a more salubrious direction.
Every current left-wing beef — in one handy volume, what you need is Mark Green’s’s latest collection of complaints, "Losing Our Democracy: How Bush, the Far Right and Big Business Are Betraying Americans for Power and Profit." Green, the former Naderite and long-term New York politician, has been producing volumes like this with unflagging enthusiasm since 1970.
Cutting Edges Odds & Ends
Politics and Economics (this time, not "the economy, stupid" but "the war …") Here are a few lessons from Andrew W. Mellon’s biography: "the economic impact of Mellon’s tax-cutting at a time when few earned enough to pay income tax at all, and is too uncritical of his support for the gold standard, tight money and balanced budgets even as the Depression closed in, policies modern economists agree exacerbated the economy’s collapse. And we soon learn that Mellon compromised the integrity of his "public service" at Treasury by continuing to oversee his business empire, covertly intervening with other government officials for his own interests, and even using the department’s tax specialists to prepare — and artfully minimize — his own taxes.
H.R. 1704, the "Second Chance Act," has bipartisan support and cleared the House Judiciary committee, although some of the provisions FAMM was most eager to see enacted were stripped. The likelihood of the Second Chance Act’s passage during the upcoming "lame-duck" session remains uncertain. But even if does fail bipartisan support will likely continue in the 110th Congress, hopefully carrying it towards final passage. Rep. John Conyers (D-Mich.) will become Chair of the House Judiciary committee, replacing sentencing reform foe Rep. F. James Sensenbrenner (R-Wis.), who orchestrated attacks on judicial discretion and sponsored the egregious "Booker-fix" bill. Rep. Robert "Bobby" Scott (D-Va.) will become Chair of the House Subcommittee on Crime, Terrorism and Homeland Security, where sentencing bills begin.
Prayer
The Innocence Project: Gold Rope & Brass Ring Enterprises is in early stages of establishing an Innocence Clinic and Prison Project aiming to bring lawyers and related professionals together to provide assistance to incarcerated prisoners and their families, to work for alternatives to incarceration for a better and safer society. GRBR is actively seeking funding and partnerships -- IRS 501(c)(3) and (4) tax exempt registration are in progress. Please send your contributions to Gold Rope & Brass Ring, PO Box 200 Jefferson, MD now! We are energetically seeking volunteers and philanthropy-minded individuals to serve on the Board of Directors. For Prospectus, detail, and scope of this community-based enterprise please contact the Publisher. Big Brothers Big Sisters of Frederick County, MD has a new program called Mentoring Plus providing mentoring to children of prisoners. Check with Big Brothers Big Sisters in your area for a similar program! And look for a program called Amachi founded by the Rev. Dr. W. Wilson Goode, Sr. Also, BBBS will serve as a founding Member of the Board of GRBR.
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The Legal Monthly
Vol. 1 No. 4 Blog at http://zlegaltimes.blogspot.com/ November 2006
The Uniquely Gregarious Source Of Legal News And "Divers" Contrary Information
SPECIAL 2006 MIDTERM ELECTION ISSUE
Democrats wanted 15 seats to make Rep. Nancy Pelosi of California the first woman speaker in history; they got 28 and made history. Dems also took over the Senate 51-49. Two Independents will caucus with the Democrats. Many national races at one time uncontested or safely Republican got a lot hairier the closer we got to November 7. Democrats said they would defeat Republicans Rick Santorum in Pennsylvania, Mike DeWine in Ohio and Lincoln Chafee in Rhode Island, and Republicans made little attempt to dispute them. In the campaign's final days, pivotal races were re-election campaigns by Sens. George Allen in Virginia, Conrad Burns in Montana, Jim Talent in Missouri and the Tennessee seat vacated by Majority Leader Bill Frist so he could run for president. In an interview following Senator Allen’s concession in Virginia, in which the vote was so close that the winner could not be called until Thursday, Senator-elect Webb said he got traction on three issues accurately summing up the national mood: course change on national security, class divide not seen since the 1880s in this country, and … President Bush’s unpopularity.
Justice Under Attack Justice Sandra Day O'Connor, retired in January after 24 years on the nation's highest court, continues to speak out in defense of the judiciary ---"the weakest branch"— just days before South Dakota voters consider the "Jail 4 Judges" initiative that would create a citizens' grand jury that could authorize lawsuits or criminal prosecutions against judges based on their rulings. Colorado voters will decide whether to limit judges on the state's highest courts to 10 years in office, a measure that would remove five of the state's seven Supreme Court justices within two years.
Democracy, American Style A review article appearing in The New York Times starts like this: "The current result of American democracy (though this may change on Tuesday) is Republican control of the presidency, both houses of Congress and (undeniably by now) the federal courts. And that, in turn, has produced policies that, unless I badly misjudge the demographics, most readers of The New York Times Book Review don’t care for: unjustified tax breaks for the rich, a miserable war in Iraq, unbelievable indifference to civil liberties (Secret prison camps? Torture?? America???), among other treats. But this doesn’t prove any flaws in democracy itself. Maybe it’s what people want."
That’s pretty cheeky. It goes on, "if reason has led you to a certain set of political beliefs, the fact that others disagree perhaps should give you pause, but it should not automatically change your mind, no matter how many others there are. *** Candidates and partisan commentators strike poses of outrage that they don’t really feel, take positions that they would not take if the shoe was on the other foot (e.g., criticizing Bush when you gave Clinton a pass, or vice versa), feel no obligation toward logical consistency. Our democracy occasionally punishes outright lies but not brazen insincerity. When we vote after a modern political campaign run by expensive professionals, we have almost no idea what the victor really believes or what he or she might do in office.
My favorite part of this article is where Kinsley called Bush v. Gore "surprising" "shocking, in fact" and "probably the most fatuous — i.e., knowingly stupid" decision ever, and says "the justices of Plessy v. Ferguson (1896), who upheld racial segregation, could at least plead historical blinders. The majority justices of Bush v. Gore have no such excuse. Both as a raw assertion of judicial power and as a more specific interpretation of the 14th Amendment, it was not merely wrong, but spectacularly wrong in precisely the ways that conservative justices like Scalia, Rehnquist and Thomas had been objecting to for years. The justices invented a nonsensical equal-protection "right" — essentially, the right to an equal risk of having your vote miscounted — and held that any attempt to correct mistakes through a recount was unfair to those who didn’t get recounted. And then they declared this alleged right to be a one-time-only offer, like a grocery-store coupon. As Adam Cohen pointed out recently on the New York Times editorial page, the coupon has indeed expired. Bush v. Gore is rarely cited or applied in other situations."
Kinsley provided insightful comments regarding well timed books and closed with a nice argument well worth reading:
"at least regarding the presidency, our Constitution doesn’t provide for majority rule. It dictates an arcane process involving the Electoral College and gives disproportionate weight to low-population states. We accept this with surprising equanimity. No one doubts that Al Gore
got the most votes in 2000, but almost no one feels that this alone means that the presidency was stolen from him. One who does apparently feel that way is Sanford Levinson, a professor at the University of Texas Law School, who has written "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)," calling for wholesale revision of our nation’s founding document. *** registration laws and the distribution of assets like voting machines [to] discourage certain voters and potentially change the result. These abuses are the subject of "Stealing Democracy: The New Politics of Voter Suppression," by Spencer Overton, a professor at George Washington University Law School. Fifth — and darkest — is outright voting fraud, by "fixing" (that is, by breaking) the voting machines, as well as more traditional methods à la Chicago in the old days. *** Although resentment over the actually stolen election of 2000 is remarkably muted, there is a noisy contingent of citizens, led by Robert F. Kennedy Jr., who are convinced that the Republicans stole the election of 2004. "Was the 2004 Presidential Election Stolen?" by Steven F. Freeman and Joel Bleifuss, answers its own question with a resounding "yes." *** It is remarkable that the chairman and chief executive of Diebold, the company that makes the voting machines used in Ohio, sent out a fund-raising letter for Bush in 2003 in which he said he was "committed to helping Ohio deliver its electoral votes to the president." This doesn’t prove anything except that the C.E.O. is an idiot. He’s an idiot if his company is not fixing the voting machines, and an even bigger idiot if it is. I hate to be reasonable at this historic moment, but the principle of Occam’s razor favors the lesser idiot theory.And so the quotation and the fund-raiser don’t really feed the case for conspiracy. Most of the other evidence offered by conspiratorialists is not about Category 5 — outright theft — but Category 4: strategic, purposeful, deplorable, but not illegal voter discouragement. *** A famous mathematical proof called Arrow’s Impossibility Theorem, for which the Stanford economist Kenneth Arrow won the Nobel Prize in 1972, demonstrated that whenever there are more than two choices (as there always are in presidential elections, if you include the primaries), no voting system can accurately translate individual preferences into a consensus winner even in theory. *** The great flaw in American democracy is not electoral irregularities, purposeful or accidental. It’s not money (which, even under current law, cannot in the end actually buy votes). It’s not even the inexplicable failure of all other Americans to vote my way or of politicians to enact my own agenda. It’s not the broken promises and the outright lying, although we’re getting close. The biggest flaw in our democracy is, as I say, the enormous tolerance for intellectual dishonesty. Politicians are held to account for outright lies, but there seems to be no sanction against saying things you obviously don’t believe. There is no reward for logical consistency, and no punishment for changing your story depending on the circumstances. Yet one minor exercise in disingenuousness can easily have a greater impact on an election than any number of crooked voting machines. And it seems to me, though I can’t prove it, that this problem is getting worse and worse. A few days before the 2000 election, the Bush team started assembling people to deal with a possible problem: what if Bush won the popular vote but Gore carried the Electoral College. They decided on, and were prepared to begin, a big campaign to convince the citizenry that it would be wrong for Gore to take office under those circumstances. And they intended to create a tidal wave of pressure on Gore’s electors to vote for Bush, which arguably the electors as free agents have the authority to do. In the event, of course, the result was precisely the opposite, and immediately the Bushies launched into precisely the opposite argument: the Electoral College is a vital part of our Constitution, electors are not free agents, threatening the Electoral College result would be thumbing your nose at the founding fathers, and so on. Gore, by the way, never did challenge the Electoral College, although some advisers urged him to do so.
Of all the things Bush did and said during the 2000 election crisis, this having-it-both-ways is the most corrupt. It was reported before the election and is uncontested, but no one seems to care, because so much of our politics is like that. And no electoral reform can fix this problem. Intellectual dishonesty can’t be banned or regulated or "capped" like money. The only way it can be brought under control is if people start voting against it. If they did, the problem would go away. That’s democracy. (from Michael Kinsley and The New York Times) Michael Kinsley is American editor of Guardian Unlimited (guardian.co.uk), the Web site of The Guardian of London. His column appears in The Washington Post and Slate.
IN DEFERENCE TO THE ENTERTAINMENT VALUE OF THIS OLD RAG, "The Bush Wars" this month: THE FANTASTIC EMPIRICAL PRESIDENCY---OF CHEERLEADERS, ROYAL SPITBALLS, AND SINKING SHIPS Washington. Yesterday, Wednesday, November 1, 2006, was a very interesting day. The hot news (perhaps not news?) was that the other one-time-next-POTUS and U.S. Senator Kerry botched a joke. Then during the day ACTUAL POTUS W made a "weird" statement (they had Andrew Sullivan with Chris Hitchens last night on CNN---the word is Andrew’s, or was it Chris’s? I forget but who said what is NOT important). WHAT W SAID was that he would keep Rummy and Chinney until THE DAY he was to leave office, in other words, until January of 2009. OMG.
It WAS TOTALLY weird. The video clip shows W flanked by Chinney, Rummy and etc., (I am talking THE WHOLE CREW including Condi, and some more people in uniforms and suits, all lined up for a group shot outside a log cabin somewhere at Camp David, and W is grim faced as are they all…and…but they are trying to smile and trying to make it look like they were all just partying it up and having a good time, except they all looked very much as though they’d been up all night, which they probably had been because you just can’t hide the fact that you slept in your shirt and sportcoat until AFTER you change and take your morning shower OBVIOUSLY … and well, Andrew Sullivan called it a big "DENIAL" and compared it to Katrina, saying that if you thought the Katrina kudos were true, then you’d also think that Rummy and Chinney are doing "a fantastic job," as W actually said.
Andrew believes Iraq is this year’s Katrina, that W’s popularity rating, meaning his APPARENT level of competence in the public’s perception, is actually tied to his level of competence as determined by what he actually came out and said, and/or did, as reported by the MSM. And this is just what the People THINK WE KNOW our President is doing. Can you just imagine all the STUPID decisions he must actually be making in SECRET that don’t get reported? NOW do you understand why things are the way they are in Iraq?
The following is what really happened, and continues to happen every day, in and around Iraq. This is VERY IMPORTANT because it directly affects what is happening in and around AMERICA. From day one of the invasion or before until today this "project" has skimmed American Peoples’ tax dollars and scooped them into the private coffers of, Halliburton, ChevroTExxonnIncCo/Mobil/BP, etc., and all the other BIG (and small) oil companies and BIG (and small) executives and their "family and friends" in Saudi Arabia, Venezuela, Russia, and even in Houston, Texas, Alaska, Wyoming and Oklahoma, and yes, Kennybunkport, Maine, too. Which essentially leaves the hard working American Joe stiffed, hungry, and looking for…the nearest Walmart. And, well, just go back and look at your photo histories of the 1930s, shake off your coffee-table picture books about the Dust Bowl, and re-read Grapes of Wrath. That’s Steinbeck. That was no fantasy.
But Chris Hitchens has called it "fantasy." That W was just having a fantasy using that word, that it wasn’t real, whatever that means. (Hitchens also denied being "conservative" on the spot right when Paula Z introduced him on CNN). But I know what that means. I saw the video clip of the Bushies outside Camp David yesterday. And what I saw is that Bush is clueless, a void, a vacuum, a … get the picture? Have you seen the photos of Hitler in the final days? Check that out. Eerily similar. Drawn hollow cheeks, blank stares, thin taught lips. Walking dead (dead man walking?). And nobody is telling the Emperor that he has no clothes ON. But who’s fault is that?
How can anybody think things are going "fantastic" in Iraq, or anywhere else? Couric’s own CBS last night spotlighted the following stats: the People will vote AGAINST Bush and not for a Democratic or Republican candidate this Tuesday; Iraq is first/foremost on the collective American mind; "We" don’t like what’s happening; Iraq is NOT going "fantastic"[ally] well. WE HAVE KNOWN THIS FOR SOME TIME NOW AND SHOULD HAVE KNOWN THIS FOR A VERY LONG TIME NOW.
Further, yesterday’s NYT feature on the front page is a leaked Pentagon assessment of intelligence, rating Iraq conditions on what I will call a "green scale" (green represents PEACE, red is for CHAOS…in between are yellow, amber, orange, etc.) And there is an arrow on the dial called current assessment marking a point well into the RED (right), and an arrow marking "week ago" is just to the left of the one marked "current assessment". WHEW. OUCH. The People know this already, and now we know this: so DO the GENERALS. W is the only one who doesn’t seem to know??? Or is he just pretending and playing the role of loyal cheerleader?
Also news yesterday, housing prices are starting to actually decline and not just stagnate. That has not happened since the Great American Depression of the 1930s. Today might just well mark the beginning of the next Great Depression-era bust. And this time, as it was before, it will be GLOBAL. And this time, well, we know it led to HITLER last time. And this time, well, HISTORY DOES TEND TO REPEAT, REPEAT, REPEAT. So goes the old joke: the Captain is heard over the ship’s PA system reassuring the passengers. What he says is, "nothing can go wrong… nothing can go wrong… nothing can go wrong…"
Oh, and if you are wondering what the spitballs are about? The BBC reported somebody "over there" has termed the spat between W and K in which W demands an apology from K for botching the joke a "royal spitball fight" or some such thing. Yes, it truly was a very interesting day. Special from Major Goodbar, USAVOICE.ORG
Frankly, my dear… I actually prefer a b*j* (good, bad, or ugly AND even if it does happen to be in the Oval Office—talk about shooting the moon) over a bad war any day.
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 notonly unpatriotic and servile, but is morally treasonable to the American public." --Theodore Roosevelt, 1918
The United States Supreme Court 2006 Term Update (Seriously, now)
RETROACTIVITY: With a single question during argument Tuesday (11/7) in Burton v. Stewart (05-9222), Chief Justice John G. Roberts, Jr., dropped a hint that Congress' revision of federal habeas rules in 1996 might play a major role in determining the fate of one of the most important precedents in the field: Teague v. Lane. Teague might be on the way to being scuttled and, with it, a significant amount of jurisprudence on making criminal law decisions retroactive to earlier cases. Potential retroactive application of the reasonable doubt standard is at issue in Burton. If a procedural rule breaks new legal ground it generally is applied retroactively only if it involved a "bedrock principle," a "watershed" rule that helps to assure fair trials. Apprendi began a series of rulings reinforcing the role of juries – rather than judges – in making the factual findings that can lead to enhanced criminal sentences. Blakely followed in 2004, applying the Apprendi principle to enhanced sentences under state guidelines systems, and a year later came Booker, extending the principle to the federal Sentencing Guidelines regime. The Court has not considered whether to make Apprendi and Booker retroactive but that may ride on the outcome of Burton. Indeed, some of the briefs filed make the argument that all three should be made retroactive. Other briefs, of course, insist that no sentencing procedure ruling should qualify for retroactivity. (Whorton v. Bochting, 05-595, confronted a similar dispute over potential retroactivity. That involved Crawford v. Washington limiting the use of out-of-court statements not subjected to cross-examination and the Confrontation Clause.) The Ninth Circuit found the decision is to be applied retroactively. That holding appeared vulnerable when the Justices granted review -- the Court has been unwilling to make any of its criminal procedure rulings retroactive in the 11 years since it laid down the tests to apply a new rule to earlier cases.
There were signs of that reluctance in the one-hour hearing on Wednesday -- such as a revealing hint that new Justice Samuel A. Alito, Jr., may be attracted to an aggressive suggestion by amici that Congress has taken away the Court's authority to make criminal rulings retroactive to state cases challenged in federal habeas. But the signs seemed less conspicuous than the growth in constitutional stature that Forsman -- on her own, but also with significant help, especially from Justice Anthony M. Kennedy -- conferred on the Crawford decision itself. It might be possible to count to five Justices for the proposition that Crawford was a "bedrock" constitutional decision, and thus would be made retroactive. At the very least, a majority of the Court did not appear interested in the suggestion that it abandon its 1989 decision in Teague v. Lane which, among other things, had declared that retroactivity was the exception but that a rule could be applied to earlier cases if it reflected a "bedrock understanding" of what a fair criminal trial must be.
The Court has already ruled against retroactivity in one post-Apprendi sentencing decision. In Ring v. Arizona in 2002, the Court applied the Apprendi principle on jury fact-finding in sentencing enhancement to require that juries find the aggravating factors
necessary to make a person convicted of murder eligible for the death penalty. But, in 2004, in Schriro v. Summerlin, the Court ruled that Ring was not to be applied retroactively in federal habeas cases. The Ring decision, however, only dealt with the part of Apprendi that
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assigned the fact-finding role in enhancement to juries. It did not deal with the part of Apprendi – later applied in Blakely – that requires that any facts that lead to enhancing a sentence must be found by the jury "beyond a reasonable doubt.
PLRA EXHAUSTION: The Court heard the consolidated arguments of Jones v. Bock and Williams v. Overton, considering three procedural questions regarding the Prison Litigation Reform Act’s exhaustion provision. First, do prisoners have to plead exhaustion in their initial complaint, or does the burden lie with the state to raise non-exhaustion as an affirmative defense? Second, do prisoners have to name every official they will sue in federal court in their original underlying administrative grievance? Third, does the PLRA mandate a "total exhaustion" rule, whereby all claims brought by a prisoner must be dismissed where one or more non-exhausted claims are included in the complaint? All three issues were decided against the petitioning prisoners in the Sixth Circuit. ***Jean-Claude Andre, arguing for petitioners, opened by framing the three rules in contention as "judge-made corollaries" which "contradict the federal rules." Through an exchange with Justice Kennedy, Andre emphasized that under the Sixth Circuit’s holdings, prisoners are not allowed to amend their complaints if they do not satisfy the heightened pleading standard.
AEDPA: Argument in Lawrence v. Florida revealed that the Court may be willing to loosen the strictures that AEDPA places on criminal defendants seeking post-conviction relief. The Court appeared divided on the issue of where an application for post-state conviction relief must be pending for 28 U.S.C. § 2244(d) tolling purposes.
BOOKER: At Conference the Court had before it a long list of cases on the issue. From those, it chose Claiborne and Rita, presenting an array of specific questions on the core issue of reasonableness. The Solicitor General had opposed review in both. In the two cases, the Court itself wrote the questions it will be reviewing, spelled out in the orders.
Is AEDPA 28 U.S.C. 2254(d) Unconstitutional?
No news is not good news in this area: until SCOTUS says you have a constitutional right, no LOWER court will be authorized to recognize that right, a very high hurdle, since it takes SCOTUS many years to review an issue, extremely few unpaid petitions are ever granted cert, AND the bulk of AEDPA petitions are unpaid. Further, this is court stripping like you have never seen before, and denies to the lower courts jurisdiction to consider and rule upon "new" or "unrecognized" constitutional rights, and that is completely unprecedented in the history of the Republic.
The "clearly established rights" doctrine of 1983 immunity cases is the only rule with a resemblance (where immunity cannot be overcome unless a right was "clearly established"). Even there, when the Court sought to define the scope of the term "clearly established" it did not require that the right have been established verbatim (identical or indistinguishable facts and circumstances are not required), as the language of AEDPA appears to require.
New In the Circuits (not yet in print thus Federal Reporter Citations not given) The reporters (or courts) seem to have taken a renewed interest in prisoner litigation issues this month. That incarcerated persons should have certain constitutional rights is a proposition which requires vindication now and again (interestingly, most of these cases have been in the pipeline for quite some time). The looming battle concerning AEDPA review remains whether or not reviewing courts can defer to results of state-court opinions in and from which facts can only be implied, inferred, or deduced, the so-called "silent" opinions or, as it has been said, "can deference be given to that which does not exist?" (when a district court makes no independent findings of fact review de novo the district court's conclusions of law and findings of fact; when state court did not address a properly raised federal claim court is not bound by AEDPA's deferential standard of review and instead reviews the claim de novo. Williams v. Haviland, No. 05-3986 (6th Cir. 10/26/2006)).
Peralta v. Vasquez, No. 04-2822-pr (2nd Cir. 10/17/2006) presents a new twist on a familiar issue: What requirements must a prisoner meet before he can maintain a claim under 42 U.S.C. § 1983 that challenges sanctions imposed pursuant to a prison disciplinary proceeding?
Johnson v. Finnan, Superintendent, Wabash Valley Correctional Facility, November 2, 2006 When a prisoner who seeks a writ of habeas corpus provides competent evidence (such as an affidavit by someone with personal knowledge of the events) contradicting an assertion by the prison disciplinary board on a material question of fact pertinent to an issue of constitutional law, the district court must hold an evidentiary hearing to determine where the truth lies. Piggie, 272 F.3d at 926.
Roth v. Green, No. 05-1129 (10th Cir. 10/30/2006) (10th Cir., 2006) This §1983 case shows not only the high costs and ultimate futility of trying to enforce drug laws through the use of vehicular "ruse" checkpoints, but also a great deal of attorney stupidity. Appeals challenged a sanction award against counsel pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927, as well as a fee award against two individual plaintiffs pursuant to 42 U.S.C. § 1988.
Thore v. Howe, No. 06-1627 (1st Cir. 10/27/2006) (1st Cir., 2006) (Interesting Heck v Humphrey issue and judicial estoppel, state court convictions, plea and consequences for estoppel in future legal proceedings.)
McCann v. Neilsen, No. 05-3699 (7th Cir. 10/26/2006) (7th Cir., 2006) Another good Heck case. "As a general proposition, a plaintiff who has been convicted of resisting arrest or assaulting a police officer during the course of an arrest is not per se Heck-barred from maintaining a § 1983 action for excessive force stemming from the same confrontation. VanGilder, 435 F.3d at 692. A contrary conclusion, we held in VanGilder, would "imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose, while forfeiting the right to sue for damages." Id. We disapproved such a result because it "would open the door to undesirable behavior and gut a large share of the protections provided by § 1983." Id."
Trujillo v. Williams, No. 04-2257 (10th Cir. 10/17/2006) (10th Cir., 2006) Conditions of confinement
Stanley v. Bartley, No. 06-2184 (7th Cir. 10/17/2006) To fail to interview any witnesses or prospective witnesses was a shocking dereliction of professional duty in a case in which the state's evidence, though sufficient to convict the defendant of murder beyond a reasonable doubt, was far from compelling. Leslie Stanley would have had a decent shot at acquittal. The state courts' contrary conclusion was not reasonable, judgment of the district court AFFIRMED.
Lankford v. Arave, No. 99-99015 (9th Cir. 11/7/2006) re: counsel's performance in a twenty-two year old capital murder trial; critical jury instructions that were correct under federal law but clearly in error under Idaho law, error was not harmless, judgment of the district court reversed and writ granted.
Nothing of critical interest was reported out of the Fifth Circuit this month by way of Habeas Corpus and Criminal Law. 112 cases in which the words Habeas or Corpus appeared were reported out of all federal appellate courts in September, October and November to date. That number is down to 37 when "ineffective assistance" is added to the search terms and jumps to an unmanageable 397 when the search term is crim*
EQUITABLE TOLLING: Flores v. Quarterman, No. 04-51062 (5th. Cir. 10/6/2006) (district court abused its discretion in invoking equitable tolling where Flores, uncertain as to which date, elected the later).
OF SPECIAL INTEREST Grayson v. King, 460 F.3d 1328 (11th Cir. Aug 18 06) David Boies and the Innocence Project, high powered counsel, document efforts to convert an ethical obligation by prosecutors under Brady (see Imbler v. Pachtman, 424 U.S. 409, 427 n.25) into one that implicates due process. Could be headed to SCOTUS.
Regarding Actual Innocence
Innocence Blog
Smith v. Baldwin, No. 04-35253 (9th Cir. 10/24/2006) (9th Cir., 2006) Actual Innocence claim overcame procedural bar.
Litigation --
Lawyers for Guantanamo Bay prisoners argued in two briefs filed Wednesday in the D.C. Circuit Court that the language Congress chose in its new court-stripping law actually leaves detainees who have not been charged with any crimes free to go forward with constitutional and treaty-based challenges to their original detention and continued imprisonment. In essence, the lawyers contended, Congress' new exercise in drafting should be read the same way as the Supreme Court did with the original attempt in its ruling in Hamdan v. Rumsfeld -- leaving habeas rights intact. 11/1/06
In Doe v. Schwarzenegger, et al., no. 06-cv-06968-JSW, a federal district judge issued a Temporary Restraining Order (TRO) against the enforcement of the residency restrictions under California’s Proposition 83 (Jessica’s Law), which passed easily on Tuesday, Nov. 7. The judge found that the parties have a likelihood of success on both the Ex Post Facto Clause argument (based on retroactive application) and the due process claim. So far no highest court has supported either of these arguments in killing a residency or work restriction, consequently, it is very unusual for a court to find a likelihood of success on the merits. As this litigation moves forward expect a challenge to GPS monitoring included in the plaintiff's arguments. Residency restrictions for sex offenders are likely to endanger, rather than enhance, public safety. Iowa's prosecutors, who have the most experience with these laws, came to this conclusion long ago. Beyond the public safety consequences, the California experience with residency restrictions in Proposition 83 spotlights that these laws always engender copious litigation.
Books, Magazines (Articles) and Websites
New in the blogosphere is Sex Crimes, a blog devoted to the criminal laws regulating and punishing sex offenders
Senator Byron L. Dorgan (Democrat of North Dakota) "Take This Job and Ship It: How Corporate Greed and Brain-Dead Politics Are Selling Out America," an exercise in assertion rather than persuasion that takes for granted the obvious truth of what it purports to argue, which is boilerplate protectionism
Patrick J. Buchanan at his usual fever pitch "State of Emergency: The Third World Invasion and Conquest of America." (Earlier Buchanan titles, on other issues, have included "The Death of the West" and "The Great Betrayal.")
Ronald Dworkin’s "Is Democracy Possible Here? Principles for a New Political Debate." Dworkin, a law professor at New York University and University College London and a distinguished liberal thinker, says with patent insincerity that he does not blame one side more than the other for the trashy state of our politics
In "Does American Democracy Still Work?" another distinguished liberal philosopher, Alan Wolfe, faces manfully up to "the new politics of democracy" in which sentimental populism seems to be owned by the right. Although Wolfe clearly regards this as terribly unfair (as do I) and a result of voters’ failure to know their own self-interest, he manages to make his argument for more "quality control" in American democracy in ideologically neutral terms.
"The Broken Branch: How Congress Is Failing America and How to Get It Back on Track" reveals their relationship with the national legislature be much more profound than mere observation. Frankly, it’s love. And they are deeply distressed by Congress’s current low esteem. Urging reform at every opportunity, they seem like the loyal spouse of an alcoholic or drug addict, desperately pushing their beloved into rehab. You may not share the authors’ heartbreak over the decline of the "15-minute rule" — a not-so-old tradition (it began in the 1970’s with electronic voting) that House votes should not last longer than 15 minutes, to prevent endless arm-twisting. But their reminders about some of the phony issues and false panaceas that litter the recent history of Congress — Remember the House bank scandal? The Contract With America? Term limits? — do make you despair of American politics. Issues and arguments come and go, depending entirely on whose ox is gored.
Recherché complaint, check out "Activism, Inc.: How the Outsourcing of Grassroots Campaigns Is Strangling Progressive Politics in America," by Dana R. Fisher. Fisher, who teaches sociology at Columbia, is upset about the professionalization of grass-roots campaigning, which he believes has sliced the bottom rung off the political ladder and keeps inspired young people from entering politics and pointing it in a more salubrious direction.
Every current left-wing beef — in one handy volume, what you need is Mark Green’s’s latest collection of complaints, "Losing Our Democracy: How Bush, the Far Right and Big Business Are Betraying Americans for Power and Profit." Green, the former Naderite and long-term New York politician, has been producing volumes like this with unflagging enthusiasm since 1970.
Cutting Edges Odds & Ends
Politics and Economics (this time, not "the economy, stupid" but "the war …") Here are a few lessons from Andrew W. Mellon’s biography: "the economic impact of Mellon’s tax-cutting at a time when few earned enough to pay income tax at all, and is too uncritical of his support for the gold standard, tight money and balanced budgets even as the Depression closed in, policies modern economists agree exacerbated the economy’s collapse. And we soon learn that Mellon compromised the integrity of his "public service" at Treasury by continuing to oversee his business empire, covertly intervening with other government officials for his own interests, and even using the department’s tax specialists to prepare — and artfully minimize — his own taxes.
H.R. 1704, the "Second Chance Act," has bipartisan support and cleared the House Judiciary committee, although some of the provisions FAMM was most eager to see enacted were stripped. The likelihood of the Second Chance Act’s passage during the upcoming "lame-duck" session remains uncertain. But even if does fail bipartisan support will likely continue in the 110th Congress, hopefully carrying it towards final passage. Rep. John Conyers (D-Mich.) will become Chair of the House Judiciary committee, replacing sentencing reform foe Rep. F. James Sensenbrenner (R-Wis.), who orchestrated attacks on judicial discretion and sponsored the egregious "Booker-fix" bill. Rep. Robert "Bobby" Scott (D-Va.) will become Chair of the House Subcommittee on Crime, Terrorism and Homeland Security, where sentencing bills begin.
Prayer
The Innocence Project: Gold Rope & Brass Ring Enterprises is in early stages of establishing an Innocence Clinic and Prison Project aiming to bring lawyers and related professionals together to provide assistance to incarcerated prisoners and their families, to work for alternatives to incarceration for a better and safer society. GRBR is actively seeking funding and partnerships -- IRS 501(c)(3) and (4) tax exempt registration are in progress. Please send your contributions to Gold Rope & Brass Ring, PO Box 200 Jefferson, MD now! We are energetically seeking volunteers and philanthropy-minded individuals to serve on the Board of Directors. For Prospectus, detail, and scope of this community-based enterprise please contact the Publisher. Big Brothers Big Sisters of Frederick County, MD has a new program called Mentoring Plus providing mentoring to children of prisoners. Check with Big Brothers Big Sisters in your area for a similar program! And look for a program called Amachi founded by the Rev. Dr. W. Wilson Goode, Sr. Also, BBBS will serve as a founding Member of the Board of GRBR.
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Monday, October 16, 2006
Z--The Legal Monthly
Z
The Legal Monthly
Vol. 1 No. 3 October 2006
The Uniquely Gregarious Source Of Legal News And "Divers" Contrary Information. All comments are welcome and will be printed at the discretion of Publisher. The September issue is posted at Legal Times - http://legaltimes.blogspot.com. I will post the Inaugural/August issue soon.
Publisher’s Note: This is the third of a series featuring recent Circuit Court developments in federal Habeas Corpus. Of fundamental concern is the constitutionality of AEDPA, specifically U.S.C. 2254(d). A few of us are eagerly anticipating the 9th Circuit Court of Appeals decision in Carl Merton Irons (v. Carey) case, No. 05-15275 on point. The following seem also ripe for commentary: Security and Privacy guarantees of The Fourth Amendment; The First Amendment and Other Fundamental Civil Rights, Bivens, and § 1983 cases of government actors’ misconduct; Cruel & Unusual Punishment; Death Penalty; Sentencing; DNA; Innocence Projects and Clinics.
Help! The White House gardener pointed me out in a lineup, and now, I’ve been designated an enemy unlawful combatant! What can I do? Answer: Float down the stream, merrily sucking deep breaths, because you are up the creek with no paddle (possibly also upside down and on a water "board"). BTW, no habeas corpus for you my friends. Tsk tsk. Pay the sewer bill right now and be rid of this trash. The due date is November 7, 2006.
"Centerpiece of the Month"
The following competed for distinction under this heading, but Bush won hands down:
- "The Threat to Judicial Independence" [Justice O’Connor in Wall Street Journal, 9/27/06].
- "Of Elections, Judges and Stupidity" By Andrew Cohen [Special to washingtonpost.com, 10/7/06]
- The "Rubber Stamp, Do Nothing, Republican Congress" quoting Rep. Dick Durbin on Cspan, [9/27/06].
- Bush: "God told me to strike at al Qaeda and I struck them; then he instructed me to strike at Saddam, which I did; and now I am determined to solve the problem in the Middle East. If you help me I will act." *** Bush's America has taken a radical swerve toward authoritarian conservatism, creating an international undertow. *** Bush's draconian bill restricting Medicare is the most significant attack on the social compact since the New Deal. It will drop about one-quarter of seniors, six million people, from their coverage for prescription drugs, and another 3.8 million will have it reduced or eliminated. *** The whole $400 billion program will be financed by regressive taxation, in contrast to the current untaxed entitlement; and $125 billion will flow into health-care and pharmaceutical companies, which are major Bush donors. Meanwhile, Karl Rove, Bush's senior political aide, announced that "reform" of Social Security, the foundation of the New Deal, is next. Excerpted from the book "How Bush Rules" by Sidney Blumenthal, as printed in the New York Times, 9/24/06.
- Useful Idiots, by Tony Judt, reviewed in London Review of Books: "the pay ratio of an American CEO to that of a skilled worker is 412:1 … the place of the liberal intellectual has been largely taken over by an admirable cohort of ‘muck-raking’ investigative journalists – Seymour Hersh, Michael Massing and Mark Danner, writing in the New Yorker and the New York Review of Books. *** Magazines and newspapers of the traditional liberal centre – the New Yorker, the New Republic, the Washington Post and the New York Times itself – fell over themselves in the hurry to align their editorial stance with that of a Republican president bent on exemplary war"
- Texas Lt. Gov. David Dewhurst is the latest to join efforts to put sex offenders into the hole proposing a plan Oct. 3 that would require a minimum mandatory prison sentence of 25 years for first-time offenders and the possibility of death for a second conviction. For the folks on the defense bar, that means no more easy pleas—its fight ‘em to death—25 years is typically a life sentence for young and old accused alike. People, wake up smell the coffee; alternatives to incarceration must be considered, and not just for "sex" crimes. "You can tell it is an election year when stories like this start appearing in the press." Capital Defense Weekly
- Delivering the High Sheriff's Law Lecture in Oxford, the Lord Chief Justice, Lord Phillips of Worth Matravers: "I am inclined to think that to be confined in prison for five years is a very weighty punishment indeed …[t]hat is not to say that I do not recognise that there are certain crimes which require a sentence of that length or longer to protect the public, but I detect on the part of such publications an incitement to the public to exact vengeance from offenders that is not dissimilar from the emotions of those who thronged to witness public executions in the 18th century." (The speech outlined the history of British punishments, including execution and a series of practices now considered "utterly barbaric" including flogging, branding, the pillory and stocks and the ducking stool.)Further: "I sometimes wonder whether, in 100 years' time, people will be as shocked by the length of the sentences we are imposing as we are by some of the punishments of the 18th century.
- The phrase "judicial activism" is at the epicenter of political debate fighting over ... nothing? Andrew Cohen of the Washington Post says, "These bozos would be better off (and so would we) if they just contemplated their navels for a few hours every day instead of endlessly fighting over this issue. "Judicial activism" means so many different things to so many different people that it means nothing at all. People just need to get over it. "Bench Conference", Andy Cohen, WP 9/13. The comments posted there were also quite interesting: 1. "This column is another example of why we left-wing blogofascists roll our eyes at most attempts by media pundits to be "even-handed" and "judicious." Rightwing activists create the totally bogus concept of "judicial activism"; rightwing politicians use it for decades to provide phony intellectual cover for attacks on judges who they consider excessively zealous in protecting the rights of women, racial minorities, consumers, and people in general; and in response, Andrew Cohen proclaims from Mount Olympus that both the right and the left are "bozos" for fighting over a "silly, pointless phrase."
2. This kind of "evenhandedness" basically amounts to scolding both the schoolyard bully and his victims--the bully for beating up the other kids, and the victims for violently attacking the bully's fists with their chins.
3. Much of it is just politics, and has little to do with the way judges do their jobs.
4. Just look at Kelo v. New London. Scalia ruthlessly attacked the court for not overturning a state law that he did not like. This is the big lie here. Conservative activists like to say their guys are acting on principle, while liberal justices are not. Anyone with half a brain can see that each judge is merely acting on different principles than the others...yuck. By The;
5. Justice Suter (sic) said it best during his confirmation hearings, when asked to express views on "judicial activism" after having had to endure a 15-minute diatribe on the subject from Strom Thurmond: "Senator, judicial activism is when the court rules against you."
6. [This is a long one but worth printing every word] The "GOP-servatives" on the benches in America's courts are often not only judicially activist but also exceedingly wicked. This term ought to be discussed and used. They are fairly easy to spot. Like the California Eastern District's Lawrence O'Neill. He has had three significant jobs in his life--cop, prosecutor, and judge (who favors exceedingly cruel prosecutors). This does not properly prepare someone for the Article III court, it makes him into yet another rubber stamp for "the law." When we get into this notion of judicial activism, let's recall the judgment of the Nuremburg Tribunals AGAINST the German Judges, rejecting their defense that they were only complying with the Nuremburg Laws, declaring them EVIL if they did not stand for justice against the laws of wickedness. The problem with law is the corruption of wealth, status, prestige, privilege, avarice, greed, lust inside the provisions. If you enforce THAT you validate the reign of evil. The court was supposed to strike evil down, and stand for the poor, the orphan, the widow, the maimed, lame, blind, those shut out by society's masses. Instead, the court has become a rubber stamp for organized, government-sanctioned cruelty. This isn't being a "good American" anymore than supporting the fascists in WWII was being a "good German." So you see, it's all subject to semantic framing. The NEO-RIGHT is much like that anointed cherub that covers, and the NEO LIBERALS are likewise. In short, it will not mean any difference for those left out and shut out and those facing injustice and cruelty, it will only matter as to who is getting the money and the status and the favors and the special treatment AMONG the rich and the elites. The American court has become an anachronism, for it is exceedingly wicked as the third sister of an exceedingly wicked family of three. So as Antonin Scalia goes duck hunting with the beneficiary of a case sitting on his desk, and refuses to recuse himself with characteristic crude arrogance and narcicism run riot, you have a fairly accurate view of the American Court. It is exceedingly wicked before God.
The Bush Wars: Why is it that when Republicans are elected we get into wars? The history of the latter 20th and early years of the 21st Century will be a story of American military misadventures, missed humanitarian missions and lost opportunities; of the growing roots of Japanese remilitarization, of rising China and failed policy toward the starving proxy, N. Korea; of growing anti-American sentiment in neighboring South America; of the transformation of the equal opportunity economy from one of technology and manufacturing to "services" and financial speculation, of the middle class morbidly separating into peasant-serf, upper-lower type distinctions and descending into a feudal model. The first answer might be, "it’s the military-industrial complex, stupid"—but are Democrats immune to the influences? And how could that be? No, then on further reflection, "ideology, stupid" is my final answer. Ds and Rs do not share similar thinking (philosophy) about money, tangible property, or people. Bottom line, Republicans never liked the New Deal that pulled this land out of recession and the crash of 1929. Until their dying breath they will fight to repeal it however, with whatever means can be pulled together, and wherever. Thus explains "privatization." This has been called yoyo (you are on your own—stupid!). And contrary to compassion, this is what Republicans will do for you, in addition to secreting and diverting your tax dollars into their own pockets, right from inside our corridors of power, and having the nerve to tell you "you should keep your own money," so they can lower your taxes—ha!---the wolf in sheepskins). Hitler rose, and the Pacific war’s roots sprouted from exactly this sort of mindless, economic yoyo-ism that America insisted on pursuing in the 1920s and 30s. If such a despot comes to power in China, India, or a unified anti-American South American continent, then what? Come to think of it, in the looking glass many see the very manifestation of tyranny embodied in our White House. Our own propaganda is making this perception even worse in the world. The midterm elections could well tell us something about all that, too. The elder Bush gave us Desert Storm and Desert Fox. For what? In Kosovo/Bosnia the UN localized an ethnic conflict and, unlike in Darfur, ended
widespread suffering, torture and war crimes. How will we view the business in Iraq? Afghanistan? The Publisher.
"[Y]ou don't need an NIE (National Intelligence Estimate) to demonstrate the most controversial judgment -- that the war in Iraq has worsened the terrorist threat." An official evaluation by Britain's domestic security and foreign intelligence services noted that "the conflict in Iraq has exacerbated the threat from international terrorism and will continue to have an impact in the long term." This conclusion is echoed by interior ministries, law enforcement agencies and intelligence services in every part of the world; *** the United States would have had a serious struggle against radical Islam after Sept. 11 under any circumstances. But the occupation of Iraq … has had an incendiary effect and made matters dramatically worse [and] was the wrong answer to the terrorist challenge, for which we will pay a high price for years to come. The continued need to defend that move by the administration and its partisans is preventing the nation from crafting the necessary strategy to meet the terrorist challenge and make Americans safer, writes Daniel Benjamin, senior fellow at the Center for Strategic and
International Studies, and Steven Simon, a senior fellow at the Council on Foreign Relations. They served on the National Security Council staff from 1994 to 1999. Washington Post 9/29/06.
Direct from yours truly and published on USAVOICE.ORG -- "Some members of Congress are trying. Let me rephrase that: Sneaking through in the last legislative days before the mid-term elections, something called the Streamlined Procedures Act. The sponsor? Sen. Jon Kyl, an Arizona Republican.
The measure would stop defendants from appealing in federal courts, prevent judges from considering key issues in many cases, and give the U.S. attorney general - a prosecutor - the power to prevent federal courts from hearing some cases.
This attempt to dismantle constitutional protections comes as DNA evidence has proved, beyond a doubt, that some innocent people are sentenced to long prison terms and even death. Polls show the public is increasingly uncomfortable about the prospect of fatal errors by the criminal justice system. The Kansas City Star has asked, "Shouldn't the senators be just as concerned?"
On Thursday, September 14, 2006, the Administration’s proposed legislation seeking to comply (read give lip service) with the Supreme Court’s Hamdan decision on interrogating and trying a wartime "detainee" (allegedly Osama bin Laden’s driver) was rejected by Senate Committee vote. In defying the President’s position on (non) compliance with Common Article 3 of the Geneva Conventions and trial/detention procedures, Senators McCain, Warner, Graham and Collins crossed the aisle to vote with Democratic members of the Committee. General Colin Powell said the public is losing faith in the moral basis of the GWOT (global war on terrorism).
Now, behind closed doors, just this week, there are efforts to attach Habeas repeal measures and 300 pages of other non-germane matters to the Department of Defense Authorization bill. The primary purpose of this bill, which is currently in conference and could be finalized in the coming days, is to provide resources for troops in Afghanistan and Iraq.
There has been broad bi-partisan opposition to habeas repeal legislation, but members of both parties who have fought on principle to resist these regressive changes may be made to look anti-patriotic when they object to the unnecessary, unrelated additions to the DOD bill.
Much of this maneuvering has been taking place though back door channels and the regular order which assures that both Chambers of Congress have a fair opportunity to consider the legislation has been skirted. Alarmingly, the texts of some of the added measures have not been seen by many members and their staff nor by the public. Additional information is available to the public at the website of The Justice Project. [ps.—the bill as passed has been described a "sell-out" failing to overcome impassioned challenges delivered on the floors of both House and Senate]
Quote: The word of the month is "come a cropper" from the state’s petition for cert in Landrigan, quoting, in turn, the panel verbatim.
The United States Supreme Court 2006 Term:
The U.S. Supreme Court granted certiorari in Smith v Texas, a UT Austin law Capital Punishment Clinic's case, agreeing on Friday to review the decision by TCCA. This marks the third time in three years that the Capital Punishment Clinic, run by CrimProfs Rob Owen, Jordan Steiker, and Jim Marcus, will litigate in the U.S. Supreme Court. It involves a Dallas County inmate, Laroyce Smith, who was sentenced to death in 1991 (see Smith v. Texas, 543 U.S. 37). On remand, TCCA nonetheless concluded that Smith's death sentence could stand. Prof. Steiker says the issue is "as old as the Constitution: whether state courts must adhere to the spirit and letter of decisions of the United States Supreme Court." Steiker and the clinic supervisors will involve students in the difficult task of briefing the case for the Court and preparing for the staggering range of federal and state issues that bear on the resolution of the case. Mark Godsey, Crim Prof Blog 10/11/06. Godsey is Professor of Law and Faculty Director, Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project at Univ. of Cincinnati College of Law.
Making Sentencing Sensible Douglas A. Berman and Stephanos Bibas, "This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment. Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing. Within these bounds, the Court should preserve states’ flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts. In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges’ reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion." The five Ninth Circuit habeas cases on the argument docket are: Belmontes, Musladin, Bockting, Burton, and Landrigan. All except Burton are cases where the state petitioned on the ground that the Ninth exceeded the limits on federal habeas review. "I find it sad and telling that the only defendant to lose in the Ninth Circuit from this group (Burton) was the one arguing to extend Blakely rights." Sentencing Law & Policy, (Prof. Doug Berman’s blog) 9/26.
Hamdan v. Rumsfeld presents two constitutional questions and more. Scotusblog (Akin Gump partner Tom Goldstein’s blog) 9/24. "[W]hether Congress has the authority, under its control of federal court jurisdiction, to deny the Supreme Court an opportunity to hear a habeas challenge to detention and to potential trial of Guantanamo detainees on war crimes charges. More specifically, the question is whether a detainee could pursue an "original writ of habeas" directly in the Court, even if Congress passed the pending compromise White House-Senate Republican post-Hamdan bill (introduced last week as S. 3930 and as part of S. 3929, a sweeping bill that also includes new restrictions on court review of foreign intelligence wiretapping that reaches Americans using the telephone or Internet connections in the U.S.) The second question is whether Congress can suspend the writ of habeas corpus altogether, by simply denying any judge -- including any Supreme Court Justice -- the authority to hear any habeas case brought by a detainee captured since the terrorist attacks of September 11, 2001."
Is AEDPA 28 U.S.C. 2254(d) Unconstitutional?
Lindh v. Murphy, 96 F.3d 856 (C.A.7 (Wis.), 1996) RIPPLE, Circuit Judge, with whom ROVNER, Circuit Judge, joins, dissenting. "Having given the federal courts the jurisdiction to determine whether a person is being held in custody in violation of the Constitution and laws of the United States, Congress now has also mandated how the courts will determine the applicable constitutional standard. Congress … has now specified that the judiciary is required to disregard the work product of one of its components, a source of law upon which the courts otherwise would rely in the adjudication of the case. ***
Habeas In the Circuits
+Reynoso v. Giurbino, No. 05-55695 (9th Cir. 9/6/2006) (9th Cir., 2006) Reynoso's claim was properly exhausted and on the merits he demonstrated ineffective assistance of counsel under Strickland …. ‘We agree with the district court that the state court's decision to the contrary constituted an unreasonable application of clearly established Supreme Court law. Accordingly, we affirm its grant of the writ of habeas corpus." Fair presentation of claim in lower court was at issue: "When, as in the instant case, "no reasoned state court decision denying a habeas petition exists," this court must assume that the state court has decided all the issues and "perform an `independent review of the record' to ascertain whether the state court decision was objectively unreasonable." (citations omitted). When it is clear, however, that the state court has not decided an issue, we review that question de novo.
+Kesser v. Cambra, No. 02-15475 (9th Cir. 9/11/2006) (9th Cir., 2006) California Court of Appeal's findings are "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Accordingly, we reverse the judgment of the district court and grant the writ.
+ Taveras v. Smith, No. 05-5579-pr (2nd Cir. 9/11/2006) (2nd Cir., 2006) good discussion of import & constitutional dimensions of first appeal of right, i.e., whether it was contrary to or an unreasonable application of settled Supreme Court precedent for the New York state court to dismiss the first-tier appeal of a returned fugitive without first appointing counsel — given that under New York law and practice such dismissals are discretionary. *** "New York law may therefore be described as follows: (a) defendants have a right to a first-tier appeal. See N.Y. CRIM. PROC. LAW § 450.10 (Consol. 2006);(cit. omitted); (b) a fugitive defendant may, or may not, lose that right to appeal in the discretion of the court; (c) as a matter of practice such a right seems never, in the past, to have been lost when a fugitive was returned during the pendency of his appeal; and (d) even when such a right has been lost while the defendant is absent, it may be reinstated on the fugitive's return." Cf. Texas law mandates loss of the right.
Amouzadeh v. Winfrey, No. 04-50903 (5th. Cir. 10/5/2006) (5th. Cir., 2006)
issues are (1) whether unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude
under section 237(a)(2)(A)(ii) of the Immigration and Naturalization Act, as amended ("INA"),1 and (2) whether Amouzadeh was eligible for concurrent relief under former INA § 212(c)2 and current INA § 240A(a).3 Because we conclude that the violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude and that Amouzadeh is not entitled to relief under INA § 240A(a), we deny Amouzadeh's petition.
Stokes v. Schriro, No. 04-16454 (9th Cir. 10/6/2006) (9th Cir., 2006) Lower court ran afoul of Apprendi when it relied on judicial factfinding to increase Stokes's sentence beyond the statutory maximum. Affirmed in part, reversed in part, and remanded.
Stephens v. Herrera, No. 04-56232 (9th Cir. 9/13/2006) (9th Cir., 2006) Stephens has not made a sufficient showing of actual innocence. "Along with many of our sister circuits, we have held that a § 2241 petition is available under the "escape hatch" of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an "unobstructed procedural shot" at presenting that claim. Ivy, 328 F.3d at 1060. We consider these two requirements in reverse order. *** "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. at 623 (internal quotation marks omitted); see also Lorentsen, 323 F.3d at 954 (quoting this passage from Bousley).
United States v. Oladimeji, No. 03-1534 (2nd Cir. 9/12/2006) As the Supreme Court has noted, collateral review typically provides a far better opportunity for an evaluation of an ineffective-assistance claim than direct review, because a factual record focused on the defendant's claim can be developed in the district court, including by "tak[ing] testimony from witnesses for the defendant and the
prosecution and from the counsel alleged to have rendered the deficient performance." (Citation omitted--noting the benefits of deciding ineffective-assistance claims through § 2255 proceedings instead of on direct appeal).
Foster v. Quarterman, No. 05-70016 (5th. Cir. 10/2/2006) COA DENIED; conditional habeas relief granted by the district court VACATED; habeas relief DENIED
Brewer v. Quarterman, No. 05-70056 (5th. Cir. 9/29/2006) (5th. Cir., 2006) Lawrence Russell Brewer ("Brewer") seeks a Certificate of Appealability ("COA") to appeal the district court's denial of habeas relief under 28 U.S.C. § 2254. In addition, Brewer appeals from the district court's denial of his habeas petition, after the granting of a COA by the district court.
Regarding Actual Innocence, in the last issue I wrote,
"The best advice the writ-writer (or lawyer) can provide is to ask, first, "Has there been a wrongful conviction?" and/or, "Is the defendant actually innocent?" Some lawyers will tell you that actual innocence does not matter. Next you have to ask, "Is there a procedural bar to
seeking relief?" As of this moment, your actual innocence is of no consequence according to the Supreme Court except as an exception to the procedural bar." A Petition for certiorari on this issue is given reasonable chance of being granted, in Barnett v. United States, 05-1515: "Whether there is an 'actual innocence exception' to the one-year limitations provision of 28 U.S.C. § 2255?" says court-watcher Tom Goldstein. Others include: Alabama v. Collins, 05-1378, regarding when the rule of Davis v. United States, 512 U.S. 452 (1994), that an invocation of the right to counsel for interrogation be clear, kicks in. Moore v. Maryland, 05-1411, regarding the funding of experts for indigent criminal defendants. Oklahoma v. Graves, 05-1413, regarding the prejudice requirement for ineffective assistance claims. Allred v. Sup. Ct. of Calif., 05-1505, regarding whether a trial court can gag-order an attorney for a witness. Alvarado v. United States, 05-1512, regarding whether federal and state charges arising out of the same conduct are the same offense for the purpose of the Sixth Amendment right to counsel. (See Texas v. Cobb, 532 U.S. 162 (2001).) Barnett v. United States, 05-1515: "Whether there is an 'actual innocence exception' to the one-year limitations provision of 28 U.S.C. § 2255?" Quarterman (TX) v. Graves, 05-1568, regarding Brady v. Maryland issues. Acosta v. Texas, 05-1574, on sex devices and the Ninth Amendment. Schriro (AZ) v. Landrigan, 05-1575, on AEDPA deference, ineffective assistance, and a client who directs his lawyer to present no mitigation. Gonzales (US) v. Duenas-Alvarez, 05-1629: "Whether a 'theft offense,' which is an 'aggravated felony' under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(G), includes aiding and abetting." Thanks Kent Scheidegger’s blog, Crime & Consequences (Criminal Justice Legal Foundation) and Scotusblog (Akin Gump/Tom Goldstein) for the list.
From Law.com
"There are some stand-out cases and each of them will test whether this is a 'restrained' Court," said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law, referring to the abortion, affirmative action and punitive damages challenges. Each of those "headline" cases, he added, also reflects the influence of Justice Anthony M. Kennedy, who has played a major role or has cast the decisive vote in the precedents or doctrines underlying those challenges. "One trend from last term which I really hope will continue is that the chief justice seems to be oriented toward trying to find, where he can, an opportunity for consensus resolution of cases," said high court scholar Mark Rahdert of Temple University James E. Beasley School of Law. One of the weaknesses of the last chief justice, William H. Rehnquist, said Rahdert, was that he made no serious effort to achieve consensus, and that resulted in many splintered decisions and a huge increase in concurrences. "It was really kind of messy," said Rahdert. "Roberts seems not to like that and to think the Court should speak with something more nearly approaching a single voice. That's not to say he is afraid of dispute." *** In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003. In enacting the federal ban, Congress explicitly found that a health exception was not necessary for this type of medical procedure.
"Rather than enacting a law that conformed to Stenberg, Congress sought to overturn that ruling and made findings in the act that criticized factual findings of numerous federal district courts," wrote Priscilla J. Smith of the Center for Reproductive Rights, who is high court counsel to Dr. LeRoy Carhart and three other physicians in the 8th Circuit case.
"There are two aspects to the case that are intriguing: the extent to which Congress has found the facts, and [that Congress is] owed deference under Section 5 of the 14th Amendment," said Pepperdine's Kmiec. That has implications that extend beyond abortion, he said. "And the particular issue of the health exception, which has been, for conservatives, one of the more duplicitous aspects of the entire body of abortion jurisprudence." Kmiec concedes that it is "very difficult at first blush" to see why a conservative, restrained court would take the abortion challenges, since there is no circuit split and there is a recent precedent. "Maybe the answer is: It's not a fully restrained court, especially in this case where Justice Kennedy has been waiting to prevail, and justices [Clarence] Thomas and [Antonin] Scalia have not fully signed on yet to the Roberts-Alito method of decision-making," said Kmiec. *** The high court takes up one of the most hotly debated environmental issues of the time-global warming-in a challenge to the Environmental Protection Agency's interpretation of the Clean Air Act. Massachusetts v. EPA, No. 05-1120. *** Burton v. Waddington, No. 05-9222: Is the sentencing decision, Blakely v. Washington, 542 U.S. 296 (2004), retroactive? Lopez v. Gonzales, No. 05-547; Toldeo-Flores v. U.S., No. 05-7664: Is the commission of a controlled substance offense that is a felony under state law, but a misdemeanor under federal law, an "aggravated felony" under the Immigration and Nationality Act and thus a deportable offense? Carey v. Muladin, No. 05-785: Is a defendant's right to a fair trial violated when family of the dead victim wore buttons bearing his picture during trial?
Sentencing Law & Policy Blog - "I am always charged up about sentencing realities because I sometimes find cases in which simple sloppiness can almost cost a person years of their life. A prime example comes from a summary order in the (unpublished) Second Circuit ruling in US v. Day, No. 05-4283 (2d Cir. Oct. 10, 2006) (available on request). In Day, the Second Circuit reverses a 15-year sentence because "the District Court erred in (1) misreading the relevant statute to require that the mandatory minimum sentence it imposed for each count be served consecutively ..., and (2) not making findings in support of its decision that Day did not qualify for safety valve relief." Prof Doug Berman.
Litigation -- New Suit Challenges Attack on Voting Rights Act:
Northwest Austin Municipal Utility District Number One v. Gonzales (District Court docket 06-1384). A week ago, Chief Judge Douglas H. Ginsburg of the D.C. Circuit assigned the case to a three-judge District Court panel -- Circuit Judge David S. Tatel and U.S. District Judges Paul L. Friedman and Emmet Sullivan: The Section "lacks any continuing justification and is nothing more than a badge of shame that Congress, without any cognizable justification, has chosen to continue in place." In extending the act, it adds, "Congress incongruously and irrationally opted to continue preclearance under a now ancient formula..." Times have changed, and Section 5 should now be struck down as unconstitutional, either on its face, or as applied to the district....Section 5 is no longer a 'congruent and proportional' remedial exercise of Congress's enforcement power." Scotusblog. 9/12/06.
Books, Magazines (Articles) and Websites
Near the beginning of "Not a Suicide Pact" Judge Posner writes that "rooting out an invisible enemy in our midst might be fatally inhibited if we felt constrained to strict observance of civil liberties designed in and for eras in which the only serious internal threat (apart from spies) came from common criminals." Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience’s sake. "The greater the potential value of the information sought to be elicited by an interrogation," he writes, "the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach." New York Times Book Review.
The First Amendment as Criminal Procedure by Daniel J. Solove, George Washington Univ. Law School, New York University Law Review, Vol. 2, 2007: explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people's private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls First Amendment criminal procedure. Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.
Relief from the Collateral Consequences of a Criminal Conviction: A State-by State Resource Guide, by Margaret Colgate Love (2006) William S. Hein & Co.: Comprehensive survey "that offers a way to overcome or mitigate the collateral legal consequences of a criminal conviction; analytical pieces on executive pardon, judicial expungement and sealing, deferred adjudication and set- aside, certificates of rehabilitation, and laws that limit consideration of conviction in connection with employment and licensing; detailed descriptions for each U.S. jurisdiction of available relief mechanisms and how they operate. Also included are charts that allow easy state-to-state comparisons. The guide is an invaluable resource for policymakers and researchers dealing with the legal barriers to offender re-entry, and for practitioners at every level of the justice system."
Blogs cited most frequently in the scholarly literature and presumably also most likely to be found in legal opinions and briefs are, Balkinization, The Becker-Posner Blog, How Appealing, Legal Theory Blog, Leiter Reports, Lessig Blog, Patently-O: Patent Law Blog, orconlaw.blogs.com/ProfessorBain-bridge.com, SCOTUS Blog, Sentencing Law and Policy, The Volokh Conspiracy, White Collar Crime Prof Blog, says Ian Best at 3Lepiphany.
Adam Smith was the father of the complex international transactions responsible for stable international markets. He might have been a proto-socialist who believed as much in "the helping hand" (a phrase Smith never used) as the invisible hand (a phrase that Smith famously used, but only three times). In review, "Smith was neither the one nor the other, Mr. Buchan argues. The great theorist of foot-to-the-floor capitalism never once used the term "laissez-faire," supported all manner of limitations on free trade, and slept through the
only lecture on political economy that he ever attended. At the same time he would have loathed the intricate state interventions beloved of Mr. Brown, the sort of top-down tinkering Smith dismissed as "systems of preference and restraint." He was not, Mr. Buchan writes, a "brash Liberal with a large ‘L,’ " but a "cautious, voluminous, virtuous, qualified, liberal with a small ‘l.’ " *** He made a poor personal impression. Scrawny and bucktoothed, he lived with his mother nearly all his life and never married. He was a hypochondriac. He veered between mumbling introspection and excited speechifying. In one famous anecdote he became so engrossed in explaining the theory of the division of labor while taking a visitor on a tour of Glasgow factories that he fell into a tanners’ pit. Samuel Johnson, according to James Boswell, pronounced him "as dull a dog as he had ever met with." He also happened to be one of the century’s towering geniuses, with a restless mind, a powerful imagination and the desire, widespread in the age of the French Encyclopedia, to bring order and system to all branches of human knowledge. His first philosophical essay dealt with astronomy, and his two great works, "The Theory of Moral Sentiments" and "The Wealth of Nations," were intended as mere installments in a series of disquisitions on law, politics, science and the arts. *** Smith was clairvoyant about the American colonies, which declared their independence on the same day that "The Wealth of Nations" appeared." New York Times Sep 15 ’06, [William Grimes Review of "The Authentic Adam Smith," James Buchan.]
John Grisham's first non-fiction book, The Innocent Man. Review by Peter Senese on Amazon: "John Grisham has demonstrated once again why he is one of the greatest … in his courageous study of the American Legal System in this thrilling yet disturbing expose' titled 'The Innocent Man: Murder and Injustice in a Small Town'. *** Grisham portrays … the li[ves] of two innocent men, Ron Williamson and Dennis Fritz, both convicted of a crime they were not guilty of, [and] demonstrates how our criminal justice system … is filled with great fault and injustice due to the fact that the very same system we trust is at times run and operated by individuals who are not concerned with the truth but with self promoting record keeping . . . for some law enforcement - getting the arrest . . . for some prosecutors - getting a conviction. In directing his overall efforts at the discrepancy and faults of the U.S. criminal justice system, author Grisham is very clever in picking the heartbreaking stories of Mr. Williamson and Mr. Fritz since the small town politics and "cowboying" of law enforcement … is not immune to larger populated cities. Ada, Oklahoma, the town where Mr. Williamson and Mr. Fritz were tried allowed the author to put the local system under a careful microscope . . . and just like politics being local with a grander scheme, so too is this country's legal system.
Cutting Edges Odds & Ends
Ohio Representative Bob Ney pleaded guilty Friday, October 13, in the Jack Abramoff influence-peddling investigation.
A woman's 159-year federal sentence for various robbery convictions was upheld despite the facts that she was a lesser "Bonnie" who helped her "Clyde" carry out numerous armed robberies. Concurring, Judge Reinhardt stated she was "mentally disturbed woman with no prior criminal record" who "never touched a gun." With but a touch of dry, not inhumorous uncharacteristic understatement, if not the hint of irony, a Professor Doug Berman blast: "Too bad for the defendant that she was not also required to wear a sign in public saying "I am a thief," since then there might be sustained opposition from others in the legal academy." Nevertheless, the sign could be grounds for a lynching in some quarters. Somehow, why am I not convinced about that being the reason why the academy is opposed to shaming. 10/13 The Professor’s Challenge: Has any modern shaming punishment ever produced personal harms or society costs anywhere close to the harms and costs to be endured by, say, Robert Berger, the Phoenix high school teacher sentenced to 200 years in prison for a first offense of possessing child pornography?
Prayer
The Innocence Project: Gold Rope & Brass Ring Enterprises will establish a much needed umbrella Innocence/Prison Project to occupy the vacancy between DNA, and the various other ways of avoiding and proving wrongful convictions. As such, GRBR actively seeks funding and partnerships with lawyers, professors, and other active professionals for this purpose, as well as for the Legislative and Political activities involved in the Project. IRS 501(c)(3) and (4) tax exempt registration are in progress; pending approval Principle, Founder, and Partnership donations may be deducted as a business expense. Send contributions to Gold Rope & Brass Ring, PO Box 200 Jefferson, MD now! The project is energetically seeking philanthropy-minded individuals to serve on the Board of Directors. For Prospectus detail and scope of this community-based proposal, please contact the Publisher. Big Brothers Big Sisters of Frederick County, MD has a program called Mentoring Plus providing mentoring to children of prisoners. Check with Big Brothers Big Sisters in your area for a similar program! In addition, they have agreed to serve as a founding member of the Board of GRBR.
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End
The Legal Monthly
Vol. 1 No. 3 October 2006
The Uniquely Gregarious Source Of Legal News And "Divers" Contrary Information. All comments are welcome and will be printed at the discretion of Publisher. The September issue is posted at Legal Times - http://legaltimes.blogspot.com. I will post the Inaugural/August issue soon.
Publisher’s Note: This is the third of a series featuring recent Circuit Court developments in federal Habeas Corpus. Of fundamental concern is the constitutionality of AEDPA, specifically U.S.C. 2254(d). A few of us are eagerly anticipating the 9th Circuit Court of Appeals decision in Carl Merton Irons (v. Carey) case, No. 05-15275 on point. The following seem also ripe for commentary: Security and Privacy guarantees of The Fourth Amendment; The First Amendment and Other Fundamental Civil Rights, Bivens, and § 1983 cases of government actors’ misconduct; Cruel & Unusual Punishment; Death Penalty; Sentencing; DNA; Innocence Projects and Clinics.
Help! The White House gardener pointed me out in a lineup, and now, I’ve been designated an enemy unlawful combatant! What can I do? Answer: Float down the stream, merrily sucking deep breaths, because you are up the creek with no paddle (possibly also upside down and on a water "board"). BTW, no habeas corpus for you my friends. Tsk tsk. Pay the sewer bill right now and be rid of this trash. The due date is November 7, 2006.
"Centerpiece of the Month"
The following competed for distinction under this heading, but Bush won hands down:
- "The Threat to Judicial Independence" [Justice O’Connor in Wall Street Journal, 9/27/06].
- "Of Elections, Judges and Stupidity" By Andrew Cohen [Special to washingtonpost.com, 10/7/06]
- The "Rubber Stamp, Do Nothing, Republican Congress" quoting Rep. Dick Durbin on Cspan, [9/27/06].
- Bush: "God told me to strike at al Qaeda and I struck them; then he instructed me to strike at Saddam, which I did; and now I am determined to solve the problem in the Middle East. If you help me I will act." *** Bush's America has taken a radical swerve toward authoritarian conservatism, creating an international undertow. *** Bush's draconian bill restricting Medicare is the most significant attack on the social compact since the New Deal. It will drop about one-quarter of seniors, six million people, from their coverage for prescription drugs, and another 3.8 million will have it reduced or eliminated. *** The whole $400 billion program will be financed by regressive taxation, in contrast to the current untaxed entitlement; and $125 billion will flow into health-care and pharmaceutical companies, which are major Bush donors. Meanwhile, Karl Rove, Bush's senior political aide, announced that "reform" of Social Security, the foundation of the New Deal, is next. Excerpted from the book "How Bush Rules" by Sidney Blumenthal, as printed in the New York Times, 9/24/06.
- Useful Idiots, by Tony Judt, reviewed in London Review of Books: "the pay ratio of an American CEO to that of a skilled worker is 412:1 … the place of the liberal intellectual has been largely taken over by an admirable cohort of ‘muck-raking’ investigative journalists – Seymour Hersh, Michael Massing and Mark Danner, writing in the New Yorker and the New York Review of Books. *** Magazines and newspapers of the traditional liberal centre – the New Yorker, the New Republic, the Washington Post and the New York Times itself – fell over themselves in the hurry to align their editorial stance with that of a Republican president bent on exemplary war"
- Texas Lt. Gov. David Dewhurst is the latest to join efforts to put sex offenders into the hole proposing a plan Oct. 3 that would require a minimum mandatory prison sentence of 25 years for first-time offenders and the possibility of death for a second conviction. For the folks on the defense bar, that means no more easy pleas—its fight ‘em to death—25 years is typically a life sentence for young and old accused alike. People, wake up smell the coffee; alternatives to incarceration must be considered, and not just for "sex" crimes. "You can tell it is an election year when stories like this start appearing in the press." Capital Defense Weekly
- Delivering the High Sheriff's Law Lecture in Oxford, the Lord Chief Justice, Lord Phillips of Worth Matravers: "I am inclined to think that to be confined in prison for five years is a very weighty punishment indeed …[t]hat is not to say that I do not recognise that there are certain crimes which require a sentence of that length or longer to protect the public, but I detect on the part of such publications an incitement to the public to exact vengeance from offenders that is not dissimilar from the emotions of those who thronged to witness public executions in the 18th century." (The speech outlined the history of British punishments, including execution and a series of practices now considered "utterly barbaric" including flogging, branding, the pillory and stocks and the ducking stool.)Further: "I sometimes wonder whether, in 100 years' time, people will be as shocked by the length of the sentences we are imposing as we are by some of the punishments of the 18th century.
- The phrase "judicial activism" is at the epicenter of political debate fighting over ... nothing? Andrew Cohen of the Washington Post says, "These bozos would be better off (and so would we) if they just contemplated their navels for a few hours every day instead of endlessly fighting over this issue. "Judicial activism" means so many different things to so many different people that it means nothing at all. People just need to get over it. "Bench Conference", Andy Cohen, WP 9/13. The comments posted there were also quite interesting: 1. "This column is another example of why we left-wing blogofascists roll our eyes at most attempts by media pundits to be "even-handed" and "judicious." Rightwing activists create the totally bogus concept of "judicial activism"; rightwing politicians use it for decades to provide phony intellectual cover for attacks on judges who they consider excessively zealous in protecting the rights of women, racial minorities, consumers, and people in general; and in response, Andrew Cohen proclaims from Mount Olympus that both the right and the left are "bozos" for fighting over a "silly, pointless phrase."
2. This kind of "evenhandedness" basically amounts to scolding both the schoolyard bully and his victims--the bully for beating up the other kids, and the victims for violently attacking the bully's fists with their chins.
3. Much of it is just politics, and has little to do with the way judges do their jobs.
4. Just look at Kelo v. New London. Scalia ruthlessly attacked the court for not overturning a state law that he did not like. This is the big lie here. Conservative activists like to say their guys are acting on principle, while liberal justices are not. Anyone with half a brain can see that each judge is merely acting on different principles than the others...yuck. By The;
5. Justice Suter (sic) said it best during his confirmation hearings, when asked to express views on "judicial activism" after having had to endure a 15-minute diatribe on the subject from Strom Thurmond: "Senator, judicial activism is when the court rules against you."
6. [This is a long one but worth printing every word] The "GOP-servatives" on the benches in America's courts are often not only judicially activist but also exceedingly wicked. This term ought to be discussed and used. They are fairly easy to spot. Like the California Eastern District's Lawrence O'Neill. He has had three significant jobs in his life--cop, prosecutor, and judge (who favors exceedingly cruel prosecutors). This does not properly prepare someone for the Article III court, it makes him into yet another rubber stamp for "the law." When we get into this notion of judicial activism, let's recall the judgment of the Nuremburg Tribunals AGAINST the German Judges, rejecting their defense that they were only complying with the Nuremburg Laws, declaring them EVIL if they did not stand for justice against the laws of wickedness. The problem with law is the corruption of wealth, status, prestige, privilege, avarice, greed, lust inside the provisions. If you enforce THAT you validate the reign of evil. The court was supposed to strike evil down, and stand for the poor, the orphan, the widow, the maimed, lame, blind, those shut out by society's masses. Instead, the court has become a rubber stamp for organized, government-sanctioned cruelty. This isn't being a "good American" anymore than supporting the fascists in WWII was being a "good German." So you see, it's all subject to semantic framing. The NEO-RIGHT is much like that anointed cherub that covers, and the NEO LIBERALS are likewise. In short, it will not mean any difference for those left out and shut out and those facing injustice and cruelty, it will only matter as to who is getting the money and the status and the favors and the special treatment AMONG the rich and the elites. The American court has become an anachronism, for it is exceedingly wicked as the third sister of an exceedingly wicked family of three. So as Antonin Scalia goes duck hunting with the beneficiary of a case sitting on his desk, and refuses to recuse himself with characteristic crude arrogance and narcicism run riot, you have a fairly accurate view of the American Court. It is exceedingly wicked before God.
The Bush Wars: Why is it that when Republicans are elected we get into wars? The history of the latter 20th and early years of the 21st Century will be a story of American military misadventures, missed humanitarian missions and lost opportunities; of the growing roots of Japanese remilitarization, of rising China and failed policy toward the starving proxy, N. Korea; of growing anti-American sentiment in neighboring South America; of the transformation of the equal opportunity economy from one of technology and manufacturing to "services" and financial speculation, of the middle class morbidly separating into peasant-serf, upper-lower type distinctions and descending into a feudal model. The first answer might be, "it’s the military-industrial complex, stupid"—but are Democrats immune to the influences? And how could that be? No, then on further reflection, "ideology, stupid" is my final answer. Ds and Rs do not share similar thinking (philosophy) about money, tangible property, or people. Bottom line, Republicans never liked the New Deal that pulled this land out of recession and the crash of 1929. Until their dying breath they will fight to repeal it however, with whatever means can be pulled together, and wherever. Thus explains "privatization." This has been called yoyo (you are on your own—stupid!). And contrary to compassion, this is what Republicans will do for you, in addition to secreting and diverting your tax dollars into their own pockets, right from inside our corridors of power, and having the nerve to tell you "you should keep your own money," so they can lower your taxes—ha!---the wolf in sheepskins). Hitler rose, and the Pacific war’s roots sprouted from exactly this sort of mindless, economic yoyo-ism that America insisted on pursuing in the 1920s and 30s. If such a despot comes to power in China, India, or a unified anti-American South American continent, then what? Come to think of it, in the looking glass many see the very manifestation of tyranny embodied in our White House. Our own propaganda is making this perception even worse in the world. The midterm elections could well tell us something about all that, too. The elder Bush gave us Desert Storm and Desert Fox. For what? In Kosovo/Bosnia the UN localized an ethnic conflict and, unlike in Darfur, ended
widespread suffering, torture and war crimes. How will we view the business in Iraq? Afghanistan? The Publisher.
"[Y]ou don't need an NIE (National Intelligence Estimate) to demonstrate the most controversial judgment -- that the war in Iraq has worsened the terrorist threat." An official evaluation by Britain's domestic security and foreign intelligence services noted that "the conflict in Iraq has exacerbated the threat from international terrorism and will continue to have an impact in the long term." This conclusion is echoed by interior ministries, law enforcement agencies and intelligence services in every part of the world; *** the United States would have had a serious struggle against radical Islam after Sept. 11 under any circumstances. But the occupation of Iraq … has had an incendiary effect and made matters dramatically worse [and] was the wrong answer to the terrorist challenge, for which we will pay a high price for years to come. The continued need to defend that move by the administration and its partisans is preventing the nation from crafting the necessary strategy to meet the terrorist challenge and make Americans safer, writes Daniel Benjamin, senior fellow at the Center for Strategic and
International Studies, and Steven Simon, a senior fellow at the Council on Foreign Relations. They served on the National Security Council staff from 1994 to 1999. Washington Post 9/29/06.
Direct from yours truly and published on USAVOICE.ORG -- "Some members of Congress are trying. Let me rephrase that: Sneaking through in the last legislative days before the mid-term elections, something called the Streamlined Procedures Act. The sponsor? Sen. Jon Kyl, an Arizona Republican.
The measure would stop defendants from appealing in federal courts, prevent judges from considering key issues in many cases, and give the U.S. attorney general - a prosecutor - the power to prevent federal courts from hearing some cases.
This attempt to dismantle constitutional protections comes as DNA evidence has proved, beyond a doubt, that some innocent people are sentenced to long prison terms and even death. Polls show the public is increasingly uncomfortable about the prospect of fatal errors by the criminal justice system. The Kansas City Star has asked, "Shouldn't the senators be just as concerned?"
On Thursday, September 14, 2006, the Administration’s proposed legislation seeking to comply (read give lip service) with the Supreme Court’s Hamdan decision on interrogating and trying a wartime "detainee" (allegedly Osama bin Laden’s driver) was rejected by Senate Committee vote. In defying the President’s position on (non) compliance with Common Article 3 of the Geneva Conventions and trial/detention procedures, Senators McCain, Warner, Graham and Collins crossed the aisle to vote with Democratic members of the Committee. General Colin Powell said the public is losing faith in the moral basis of the GWOT (global war on terrorism).
Now, behind closed doors, just this week, there are efforts to attach Habeas repeal measures and 300 pages of other non-germane matters to the Department of Defense Authorization bill. The primary purpose of this bill, which is currently in conference and could be finalized in the coming days, is to provide resources for troops in Afghanistan and Iraq.
There has been broad bi-partisan opposition to habeas repeal legislation, but members of both parties who have fought on principle to resist these regressive changes may be made to look anti-patriotic when they object to the unnecessary, unrelated additions to the DOD bill.
Much of this maneuvering has been taking place though back door channels and the regular order which assures that both Chambers of Congress have a fair opportunity to consider the legislation has been skirted. Alarmingly, the texts of some of the added measures have not been seen by many members and their staff nor by the public. Additional information is available to the public at the website of The Justice Project. [ps.—the bill as passed has been described a "sell-out" failing to overcome impassioned challenges delivered on the floors of both House and Senate]
Quote: The word of the month is "come a cropper" from the state’s petition for cert in Landrigan, quoting, in turn, the panel verbatim.
The United States Supreme Court 2006 Term:
The U.S. Supreme Court granted certiorari in Smith v Texas, a UT Austin law Capital Punishment Clinic's case, agreeing on Friday to review the decision by TCCA. This marks the third time in three years that the Capital Punishment Clinic, run by CrimProfs Rob Owen, Jordan Steiker, and Jim Marcus, will litigate in the U.S. Supreme Court. It involves a Dallas County inmate, Laroyce Smith, who was sentenced to death in 1991 (see Smith v. Texas, 543 U.S. 37). On remand, TCCA nonetheless concluded that Smith's death sentence could stand. Prof. Steiker says the issue is "as old as the Constitution: whether state courts must adhere to the spirit and letter of decisions of the United States Supreme Court." Steiker and the clinic supervisors will involve students in the difficult task of briefing the case for the Court and preparing for the staggering range of federal and state issues that bear on the resolution of the case. Mark Godsey, Crim Prof Blog 10/11/06. Godsey is Professor of Law and Faculty Director, Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project at Univ. of Cincinnati College of Law.
Making Sentencing Sensible Douglas A. Berman and Stephanos Bibas, "This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment. Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing. Within these bounds, the Court should preserve states’ flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts. In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges’ reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion." The five Ninth Circuit habeas cases on the argument docket are: Belmontes, Musladin, Bockting, Burton, and Landrigan. All except Burton are cases where the state petitioned on the ground that the Ninth exceeded the limits on federal habeas review. "I find it sad and telling that the only defendant to lose in the Ninth Circuit from this group (Burton) was the one arguing to extend Blakely rights." Sentencing Law & Policy, (Prof. Doug Berman’s blog) 9/26.
Hamdan v. Rumsfeld presents two constitutional questions and more. Scotusblog (Akin Gump partner Tom Goldstein’s blog) 9/24. "[W]hether Congress has the authority, under its control of federal court jurisdiction, to deny the Supreme Court an opportunity to hear a habeas challenge to detention and to potential trial of Guantanamo detainees on war crimes charges. More specifically, the question is whether a detainee could pursue an "original writ of habeas" directly in the Court, even if Congress passed the pending compromise White House-Senate Republican post-Hamdan bill (introduced last week as S. 3930 and as part of S. 3929, a sweeping bill that also includes new restrictions on court review of foreign intelligence wiretapping that reaches Americans using the telephone or Internet connections in the U.S.) The second question is whether Congress can suspend the writ of habeas corpus altogether, by simply denying any judge -- including any Supreme Court Justice -- the authority to hear any habeas case brought by a detainee captured since the terrorist attacks of September 11, 2001."
Is AEDPA 28 U.S.C. 2254(d) Unconstitutional?
Lindh v. Murphy, 96 F.3d 856 (C.A.7 (Wis.), 1996) RIPPLE, Circuit Judge, with whom ROVNER, Circuit Judge, joins, dissenting. "Having given the federal courts the jurisdiction to determine whether a person is being held in custody in violation of the Constitution and laws of the United States, Congress now has also mandated how the courts will determine the applicable constitutional standard. Congress … has now specified that the judiciary is required to disregard the work product of one of its components, a source of law upon which the courts otherwise would rely in the adjudication of the case. ***
Habeas In the Circuits
+Reynoso v. Giurbino, No. 05-55695 (9th Cir. 9/6/2006) (9th Cir., 2006) Reynoso's claim was properly exhausted and on the merits he demonstrated ineffective assistance of counsel under Strickland …. ‘We agree with the district court that the state court's decision to the contrary constituted an unreasonable application of clearly established Supreme Court law. Accordingly, we affirm its grant of the writ of habeas corpus." Fair presentation of claim in lower court was at issue: "When, as in the instant case, "no reasoned state court decision denying a habeas petition exists," this court must assume that the state court has decided all the issues and "perform an `independent review of the record' to ascertain whether the state court decision was objectively unreasonable." (citations omitted). When it is clear, however, that the state court has not decided an issue, we review that question de novo.
+Kesser v. Cambra, No. 02-15475 (9th Cir. 9/11/2006) (9th Cir., 2006) California Court of Appeal's findings are "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Accordingly, we reverse the judgment of the district court and grant the writ.
+ Taveras v. Smith, No. 05-5579-pr (2nd Cir. 9/11/2006) (2nd Cir., 2006) good discussion of import & constitutional dimensions of first appeal of right, i.e., whether it was contrary to or an unreasonable application of settled Supreme Court precedent for the New York state court to dismiss the first-tier appeal of a returned fugitive without first appointing counsel — given that under New York law and practice such dismissals are discretionary. *** "New York law may therefore be described as follows: (a) defendants have a right to a first-tier appeal. See N.Y. CRIM. PROC. LAW § 450.10 (Consol. 2006);(cit. omitted); (b) a fugitive defendant may, or may not, lose that right to appeal in the discretion of the court; (c) as a matter of practice such a right seems never, in the past, to have been lost when a fugitive was returned during the pendency of his appeal; and (d) even when such a right has been lost while the defendant is absent, it may be reinstated on the fugitive's return." Cf. Texas law mandates loss of the right.
Amouzadeh v. Winfrey, No. 04-50903 (5th. Cir. 10/5/2006) (5th. Cir., 2006)
issues are (1) whether unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude
under section 237(a)(2)(A)(ii) of the Immigration and Naturalization Act, as amended ("INA"),1 and (2) whether Amouzadeh was eligible for concurrent relief under former INA § 212(c)2 and current INA § 240A(a).3 Because we conclude that the violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude and that Amouzadeh is not entitled to relief under INA § 240A(a), we deny Amouzadeh's petition.
Stokes v. Schriro, No. 04-16454 (9th Cir. 10/6/2006) (9th Cir., 2006) Lower court ran afoul of Apprendi when it relied on judicial factfinding to increase Stokes's sentence beyond the statutory maximum. Affirmed in part, reversed in part, and remanded.
Stephens v. Herrera, No. 04-56232 (9th Cir. 9/13/2006) (9th Cir., 2006) Stephens has not made a sufficient showing of actual innocence. "Along with many of our sister circuits, we have held that a § 2241 petition is available under the "escape hatch" of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an "unobstructed procedural shot" at presenting that claim. Ivy, 328 F.3d at 1060. We consider these two requirements in reverse order. *** "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. at 623 (internal quotation marks omitted); see also Lorentsen, 323 F.3d at 954 (quoting this passage from Bousley).
United States v. Oladimeji, No. 03-1534 (2nd Cir. 9/12/2006) As the Supreme Court has noted, collateral review typically provides a far better opportunity for an evaluation of an ineffective-assistance claim than direct review, because a factual record focused on the defendant's claim can be developed in the district court, including by "tak[ing] testimony from witnesses for the defendant and the
prosecution and from the counsel alleged to have rendered the deficient performance." (Citation omitted--noting the benefits of deciding ineffective-assistance claims through § 2255 proceedings instead of on direct appeal).
Foster v. Quarterman, No. 05-70016 (5th. Cir. 10/2/2006) COA DENIED; conditional habeas relief granted by the district court VACATED; habeas relief DENIED
Brewer v. Quarterman, No. 05-70056 (5th. Cir. 9/29/2006) (5th. Cir., 2006) Lawrence Russell Brewer ("Brewer") seeks a Certificate of Appealability ("COA") to appeal the district court's denial of habeas relief under 28 U.S.C. § 2254. In addition, Brewer appeals from the district court's denial of his habeas petition, after the granting of a COA by the district court.
Regarding Actual Innocence, in the last issue I wrote,
"The best advice the writ-writer (or lawyer) can provide is to ask, first, "Has there been a wrongful conviction?" and/or, "Is the defendant actually innocent?" Some lawyers will tell you that actual innocence does not matter. Next you have to ask, "Is there a procedural bar to
seeking relief?" As of this moment, your actual innocence is of no consequence according to the Supreme Court except as an exception to the procedural bar." A Petition for certiorari on this issue is given reasonable chance of being granted, in Barnett v. United States, 05-1515: "Whether there is an 'actual innocence exception' to the one-year limitations provision of 28 U.S.C. § 2255?" says court-watcher Tom Goldstein. Others include: Alabama v. Collins, 05-1378, regarding when the rule of Davis v. United States, 512 U.S. 452 (1994), that an invocation of the right to counsel for interrogation be clear, kicks in. Moore v. Maryland, 05-1411, regarding the funding of experts for indigent criminal defendants. Oklahoma v. Graves, 05-1413, regarding the prejudice requirement for ineffective assistance claims. Allred v. Sup. Ct. of Calif., 05-1505, regarding whether a trial court can gag-order an attorney for a witness. Alvarado v. United States, 05-1512, regarding whether federal and state charges arising out of the same conduct are the same offense for the purpose of the Sixth Amendment right to counsel. (See Texas v. Cobb, 532 U.S. 162 (2001).) Barnett v. United States, 05-1515: "Whether there is an 'actual innocence exception' to the one-year limitations provision of 28 U.S.C. § 2255?" Quarterman (TX) v. Graves, 05-1568, regarding Brady v. Maryland issues. Acosta v. Texas, 05-1574, on sex devices and the Ninth Amendment. Schriro (AZ) v. Landrigan, 05-1575, on AEDPA deference, ineffective assistance, and a client who directs his lawyer to present no mitigation. Gonzales (US) v. Duenas-Alvarez, 05-1629: "Whether a 'theft offense,' which is an 'aggravated felony' under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(G), includes aiding and abetting." Thanks Kent Scheidegger’s blog, Crime & Consequences (Criminal Justice Legal Foundation) and Scotusblog (Akin Gump/Tom Goldstein) for the list.
From Law.com
"There are some stand-out cases and each of them will test whether this is a 'restrained' Court," said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law, referring to the abortion, affirmative action and punitive damages challenges. Each of those "headline" cases, he added, also reflects the influence of Justice Anthony M. Kennedy, who has played a major role or has cast the decisive vote in the precedents or doctrines underlying those challenges. "One trend from last term which I really hope will continue is that the chief justice seems to be oriented toward trying to find, where he can, an opportunity for consensus resolution of cases," said high court scholar Mark Rahdert of Temple University James E. Beasley School of Law. One of the weaknesses of the last chief justice, William H. Rehnquist, said Rahdert, was that he made no serious effort to achieve consensus, and that resulted in many splintered decisions and a huge increase in concurrences. "It was really kind of messy," said Rahdert. "Roberts seems not to like that and to think the Court should speak with something more nearly approaching a single voice. That's not to say he is afraid of dispute." *** In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003. In enacting the federal ban, Congress explicitly found that a health exception was not necessary for this type of medical procedure.
"Rather than enacting a law that conformed to Stenberg, Congress sought to overturn that ruling and made findings in the act that criticized factual findings of numerous federal district courts," wrote Priscilla J. Smith of the Center for Reproductive Rights, who is high court counsel to Dr. LeRoy Carhart and three other physicians in the 8th Circuit case.
"There are two aspects to the case that are intriguing: the extent to which Congress has found the facts, and [that Congress is] owed deference under Section 5 of the 14th Amendment," said Pepperdine's Kmiec. That has implications that extend beyond abortion, he said. "And the particular issue of the health exception, which has been, for conservatives, one of the more duplicitous aspects of the entire body of abortion jurisprudence." Kmiec concedes that it is "very difficult at first blush" to see why a conservative, restrained court would take the abortion challenges, since there is no circuit split and there is a recent precedent. "Maybe the answer is: It's not a fully restrained court, especially in this case where Justice Kennedy has been waiting to prevail, and justices [Clarence] Thomas and [Antonin] Scalia have not fully signed on yet to the Roberts-Alito method of decision-making," said Kmiec. *** The high court takes up one of the most hotly debated environmental issues of the time-global warming-in a challenge to the Environmental Protection Agency's interpretation of the Clean Air Act. Massachusetts v. EPA, No. 05-1120. *** Burton v. Waddington, No. 05-9222: Is the sentencing decision, Blakely v. Washington, 542 U.S. 296 (2004), retroactive? Lopez v. Gonzales, No. 05-547; Toldeo-Flores v. U.S., No. 05-7664: Is the commission of a controlled substance offense that is a felony under state law, but a misdemeanor under federal law, an "aggravated felony" under the Immigration and Nationality Act and thus a deportable offense? Carey v. Muladin, No. 05-785: Is a defendant's right to a fair trial violated when family of the dead victim wore buttons bearing his picture during trial?
Sentencing Law & Policy Blog - "I am always charged up about sentencing realities because I sometimes find cases in which simple sloppiness can almost cost a person years of their life. A prime example comes from a summary order in the (unpublished) Second Circuit ruling in US v. Day, No. 05-4283 (2d Cir. Oct. 10, 2006) (available on request). In Day, the Second Circuit reverses a 15-year sentence because "the District Court erred in (1) misreading the relevant statute to require that the mandatory minimum sentence it imposed for each count be served consecutively ..., and (2) not making findings in support of its decision that Day did not qualify for safety valve relief." Prof Doug Berman.
Litigation -- New Suit Challenges Attack on Voting Rights Act:
Northwest Austin Municipal Utility District Number One v. Gonzales (District Court docket 06-1384). A week ago, Chief Judge Douglas H. Ginsburg of the D.C. Circuit assigned the case to a three-judge District Court panel -- Circuit Judge David S. Tatel and U.S. District Judges Paul L. Friedman and Emmet Sullivan: The Section "lacks any continuing justification and is nothing more than a badge of shame that Congress, without any cognizable justification, has chosen to continue in place." In extending the act, it adds, "Congress incongruously and irrationally opted to continue preclearance under a now ancient formula..." Times have changed, and Section 5 should now be struck down as unconstitutional, either on its face, or as applied to the district....Section 5 is no longer a 'congruent and proportional' remedial exercise of Congress's enforcement power." Scotusblog. 9/12/06.
Books, Magazines (Articles) and Websites
Near the beginning of "Not a Suicide Pact" Judge Posner writes that "rooting out an invisible enemy in our midst might be fatally inhibited if we felt constrained to strict observance of civil liberties designed in and for eras in which the only serious internal threat (apart from spies) came from common criminals." Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience’s sake. "The greater the potential value of the information sought to be elicited by an interrogation," he writes, "the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach." New York Times Book Review.
The First Amendment as Criminal Procedure by Daniel J. Solove, George Washington Univ. Law School, New York University Law Review, Vol. 2, 2007: explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people's private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls First Amendment criminal procedure. Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.
Relief from the Collateral Consequences of a Criminal Conviction: A State-by State Resource Guide, by Margaret Colgate Love (2006) William S. Hein & Co.: Comprehensive survey "that offers a way to overcome or mitigate the collateral legal consequences of a criminal conviction; analytical pieces on executive pardon, judicial expungement and sealing, deferred adjudication and set- aside, certificates of rehabilitation, and laws that limit consideration of conviction in connection with employment and licensing; detailed descriptions for each U.S. jurisdiction of available relief mechanisms and how they operate. Also included are charts that allow easy state-to-state comparisons. The guide is an invaluable resource for policymakers and researchers dealing with the legal barriers to offender re-entry, and for practitioners at every level of the justice system."
Blogs cited most frequently in the scholarly literature and presumably also most likely to be found in legal opinions and briefs are, Balkinization, The Becker-Posner Blog, How Appealing, Legal Theory Blog, Leiter Reports, Lessig Blog, Patently-O: Patent Law Blog, orconlaw.blogs.com/ProfessorBain-bridge.com, SCOTUS Blog, Sentencing Law and Policy, The Volokh Conspiracy, White Collar Crime Prof Blog, says Ian Best at 3Lepiphany.
Adam Smith was the father of the complex international transactions responsible for stable international markets. He might have been a proto-socialist who believed as much in "the helping hand" (a phrase Smith never used) as the invisible hand (a phrase that Smith famously used, but only three times). In review, "Smith was neither the one nor the other, Mr. Buchan argues. The great theorist of foot-to-the-floor capitalism never once used the term "laissez-faire," supported all manner of limitations on free trade, and slept through the
only lecture on political economy that he ever attended. At the same time he would have loathed the intricate state interventions beloved of Mr. Brown, the sort of top-down tinkering Smith dismissed as "systems of preference and restraint." He was not, Mr. Buchan writes, a "brash Liberal with a large ‘L,’ " but a "cautious, voluminous, virtuous, qualified, liberal with a small ‘l.’ " *** He made a poor personal impression. Scrawny and bucktoothed, he lived with his mother nearly all his life and never married. He was a hypochondriac. He veered between mumbling introspection and excited speechifying. In one famous anecdote he became so engrossed in explaining the theory of the division of labor while taking a visitor on a tour of Glasgow factories that he fell into a tanners’ pit. Samuel Johnson, according to James Boswell, pronounced him "as dull a dog as he had ever met with." He also happened to be one of the century’s towering geniuses, with a restless mind, a powerful imagination and the desire, widespread in the age of the French Encyclopedia, to bring order and system to all branches of human knowledge. His first philosophical essay dealt with astronomy, and his two great works, "The Theory of Moral Sentiments" and "The Wealth of Nations," were intended as mere installments in a series of disquisitions on law, politics, science and the arts. *** Smith was clairvoyant about the American colonies, which declared their independence on the same day that "The Wealth of Nations" appeared." New York Times Sep 15 ’06, [William Grimes Review of "The Authentic Adam Smith," James Buchan.]
John Grisham's first non-fiction book, The Innocent Man. Review by Peter Senese on Amazon: "John Grisham has demonstrated once again why he is one of the greatest … in his courageous study of the American Legal System in this thrilling yet disturbing expose' titled 'The Innocent Man: Murder and Injustice in a Small Town'. *** Grisham portrays … the li[ves] of two innocent men, Ron Williamson and Dennis Fritz, both convicted of a crime they were not guilty of, [and] demonstrates how our criminal justice system … is filled with great fault and injustice due to the fact that the very same system we trust is at times run and operated by individuals who are not concerned with the truth but with self promoting record keeping . . . for some law enforcement - getting the arrest . . . for some prosecutors - getting a conviction. In directing his overall efforts at the discrepancy and faults of the U.S. criminal justice system, author Grisham is very clever in picking the heartbreaking stories of Mr. Williamson and Mr. Fritz since the small town politics and "cowboying" of law enforcement … is not immune to larger populated cities. Ada, Oklahoma, the town where Mr. Williamson and Mr. Fritz were tried allowed the author to put the local system under a careful microscope . . . and just like politics being local with a grander scheme, so too is this country's legal system.
Cutting Edges Odds & Ends
Ohio Representative Bob Ney pleaded guilty Friday, October 13, in the Jack Abramoff influence-peddling investigation.
A woman's 159-year federal sentence for various robbery convictions was upheld despite the facts that she was a lesser "Bonnie" who helped her "Clyde" carry out numerous armed robberies. Concurring, Judge Reinhardt stated she was "mentally disturbed woman with no prior criminal record" who "never touched a gun." With but a touch of dry, not inhumorous uncharacteristic understatement, if not the hint of irony, a Professor Doug Berman blast: "Too bad for the defendant that she was not also required to wear a sign in public saying "I am a thief," since then there might be sustained opposition from others in the legal academy." Nevertheless, the sign could be grounds for a lynching in some quarters. Somehow, why am I not convinced about that being the reason why the academy is opposed to shaming. 10/13 The Professor’s Challenge: Has any modern shaming punishment ever produced personal harms or society costs anywhere close to the harms and costs to be endured by, say, Robert Berger, the Phoenix high school teacher sentenced to 200 years in prison for a first offense of possessing child pornography?
Prayer
The Innocence Project: Gold Rope & Brass Ring Enterprises will establish a much needed umbrella Innocence/Prison Project to occupy the vacancy between DNA, and the various other ways of avoiding and proving wrongful convictions. As such, GRBR actively seeks funding and partnerships with lawyers, professors, and other active professionals for this purpose, as well as for the Legislative and Political activities involved in the Project. IRS 501(c)(3) and (4) tax exempt registration are in progress; pending approval Principle, Founder, and Partnership donations may be deducted as a business expense. Send contributions to Gold Rope & Brass Ring, PO Box 200 Jefferson, MD now! The project is energetically seeking philanthropy-minded individuals to serve on the Board of Directors. For Prospectus detail and scope of this community-based proposal, please contact the Publisher. Big Brothers Big Sisters of Frederick County, MD has a program called Mentoring Plus providing mentoring to children of prisoners. Check with Big Brothers Big Sisters in your area for a similar program! In addition, they have agreed to serve as a founding member of the Board of GRBR.
PO Box 200 Jefferson MD 21755
Gold Rope & Brass Ring Enterprises
Publisher and Editor: "Major" Mori Goodbar
301-591-2490
End
Sunday, October 15, 2006
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