Z

The Legal Rag

Vol. 3 No. 2 Read Z the Blog at http://zlegaltimes.blogspot.com/ Nov '08

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

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Editor's Cut

October Baseball

Let Them Eat Cars

Supreme Court

Obama Campaign as Poetry in Motion

Good businesses for 2008-09

From Z Editor Year Three, Issue Two: the rag has been going for Sixteen numbers. Thanks to all who wrote for motivating me to keep it on. Notice I've dropped “monthly” from the title, and replaced it with, well, you have eyes. Monthly was no longer accurate, a minor detail easily corrected.

We've “fallen back” and added an hour of sleep to our drinking schedules; many apologies for missing the Summer issues; the days were too long, the weather too good, the time scarce to sit down at my computer for any length of time. What else, not even a vacation this year, as we were busy visiting colleges and universities, writing the admissions applications and getting ready for a big high school senior year. Daughter Regina is a big Kahuna now, co-captain of the varsity soccer team that won last year's State Cup, and getting ready for engineering school next Fall. So far, Pitt (Swanson School of Engineering), Drexel, SUNY Maritime have delivered acceptances. WOW.

October 2008 also means the Phillys beat the Rays in the World Series after the first ever rain-suspension in World Series history, becoming champs again after about ninety years (I just love those trivial baseball stats); update your own football schedule, pardon me, but Skins play Steelers on the first Monday night in November.

I was playing too much fantasy baseball in July and August. A curious addiction it was. I moved from last or next to last, made playoffs this year, and finished fourth. What did I learn? This is a game of beauty, timing, nerves, skill, patience and strength, mind over matter, and managerial wit, most of which I already knew from having played a little in my day. There is no substitute for the crack of a wooden bat making contact, no similar trajectory of the pill leaving the park in a parabolic arc, of waiting for the call on a close play at home.

Playing baseball, and watching the game being played is one thing: reviewing and utilizing statistical results is another matter entirely. The game can be captured only in part as a game of stats, with a dash of unpre-dictability thrown in; you have to be a little lucky, keep the team healthy, and not be too quick to give the ax early in the season to a veteran player who might be having a slow start. You never know when those old warhorses are going to fail, and by the same token, when they might get hot with the bat. I hated losing OF Ryan Church to a concussion in mid-season. He was on a streak, and I hope he's okay. I was forced to play rookies and youngsters toward the end and found that unfortunately, they were predictably a little unpredictable. You live and learn. For one, OF Crawford got hurt and didn't play well for me in September. Same goes for SS Hanley Ramirez, who finished the season with a top five ranking overall but didn't produce the numbers I needed in the playoffs. Maybe he was making too much $$$ already, and had insufficient incentives to win! The Rays had the second smallest payroll. By comparison the Yankees with one of the highest if not the highest bankrolls in the game didn't make a contest of it in the end. It was the hungry factor: who was hungrier. Too bad the Rays lineup just couldn't get it done, yet I'm glad Philadelphia won.

I had an awesome early relief/closer and starting pitching crew, e.g., Cole Hamels and a few others, but they didn't all come through in September because not all were on contender teams, strong down the stretch, except Cole. We made it a close finish for second, lost that and played for third in the second round of the playoffs, but in the end we pooped out and finished up fourth.

With big money come big responsibilities (and long hours). I dream of owning or just managing my own real, live, baseball club some day, even if it's in the minor leagues. There might just be money in it. Actor Jim Belushi owns a couple of small franchises. Maybe I can get him, or Gretski, MJ, or another one of those rich, yet humble, guys to put up a stake for one. With the coming deflation, we'll soon see even better investment returns in sports and entertainment, and gambling and liquor sales. Or let's make a movie! We'll base it on the best-seller screenplay I'm working on called “America's funniest prison stories”.

For now, Let them eat cars: buy cars, sell cars, wreck cars and buy and sell and trade and fix up and repair more cars, especially high end interiors, which is the business Z operates when not writing this rag. It's the perfect cover for, ... our Superhero, ... Major BATMAN!

Of course, the Supreme Court has returned to session and there's been cause to review the legal blogosphere and news. I apologize I've been failing to keep up with the Circuit cases, but as always if there's a question just ask, and I'm on it.

The federal benches have been filling up (to here) with people from the “right” (not the antonym for the word: wrong); thank god he, Bush, didn't get to put another justice on SCOTUS; which all goes to show the law has been evidencing signs of change in the more radically conservative direction. I didn't think it could get any worse, but I was wrong. What this means for the most part, is, “anti-”: anti- Roe v Wade; anti- criminal defendant and defense bar; anti- immigrant; anti-fair trade; anti-gay; anti-gun control; anti- labor; anti- social security, anti- medicare and unemployment insurance; anti-worker, and can you think of any more? I'll take your comments to heart – you can take mine with a grain.

Poetry in Motion: The Obama Campaign When Conservatives begin to advocate expending Your common resources and wealth, aka Our tax dollars, on protecting and preserving their own hides (and nest eggs) more than on growing the overall wealth, and health of the common-weal, and rather than sharing the proceeds of improved labor productivity fairly with those essential to it, those whom make it possible, I'm speaking of the workers that make economic growth, wealth and health possible; then, and only then, economic conditions will be ripe for revolt, repression, and political change. We seem to be getting close to that place at the present time.

You can't have missed the fact that Obama kicked McCain's butt; or perhaps it was the inevitably tanking economy which did the dirty work. But tell me this, would you vote for a ticket with a gal who can't give a straight answer to the question: what magazines do you read? If she is the future of the Republican party, the Republican party has no future for the foreseeable, vacuous, and infinite, tomorrow. None whatsoever. Period. Nada. Notta. Nyetsky. No. Hell, No. Get me the foreign language dictionaries ... please.

Clearly all she was reading were propaganda talking points prepared by the politicos that ran Bush's presidency in cahoots with the good but misguided and fast-talking Karen Hughes from that lovely ol' place we call Texas. Give it up already, guys; we have your number. And ol' John Mac might have a lot of energy left in that seventy year old frame, but he can't always remember to speak the words he means to speak (most recent case in point is where he blurts the not-soon-to-be-VP Palin is “Senator” – she is actually a governor; sir, you were the senator in this race).

With respect, McCain clearly forgot to review the meaning of the phrase: mean what you say. The Straight Talk Express lost it's wheels and it has been one ugly thing to see.

The other thing that lost wheels, perhaps due to the excessive application of certain lubricants, were the Wall Street banks. That, and Your Four O One K's. I have a little one, and it got even littler. I hope you weren't planning to retire this year because you just lost half your assets.

Good businesses to be in right now: Oil, oil and gas, petroleum, petro- engineering, oil rigging, oil construction, oil engineering, oil futures, oil derivatives, oil options, short selling oil, oil delivery, oil storage, oil drilling, oil exploration, oil geology, oil geography, oil and climate change research, oil and loss of glaciers and polar ice sheets, oil sales, oil trading, oil with OPEC, Venezuelan oil, Russian oil, Kazakhi oil, Gulf oil, Middle Eastern oil, oil pipelines, oil motherfucking oil, and other foreign and domestic intercourse with, over, under and through oil, oil and gas;

That, and other energy of all kinds, wind, solar, bio-fuels, batteries, coal, hydro-electric; if you were smart you bought oil. It is now ripe time to sell. Check that, last month was the time. It's gone back down under 60 dollars per barrel. Gas around here is just under two bucks, but they are expecting it to go up next year. Curious. Curious also how the market value of homes all across the country did the same thing that oil did. Is this more than just coincidence? Guess who got fucked?

All that stuff re: Hillary and Bill is over and done with, OMG, and things appear to be getting back to normalcy within the Democratic camps. I am so glad to see that everybody seems to have regained their senses. A historic victory, but do not measure the drapes just quite yet, should do wonders for Dems, wanderers of the political wilderness. Let's hope it does the same for the economy, and soon.

Last issue, I noted AWA seemed just another way to kick felons after they are already down. Here's a quote from my April 08 issue: “Wouldn't the greedy and mean of heart just love to have another source of cheap unemployable cash labor? And we could build bigger bridges for housing the homeless ones too.”

Well, it appears that the powers-that-be have responded to the call by tanking the economy and spinning off ever more jobs, either forever or just by sending them overseas. Do you see a conspiracy to create more cheap labor here at home? Too bad it won't work, because all the pink slips are resulting in spending like molasses, both inflation and deflation, and a downward spiral into poverty for all but the very few, very filthy rich. President Elect Barack Obama promises to update our infrastructure, which should produce a much needed, if somewhat small, construction boom regardless of home sales. We'll need to build very big bridges as part of that program to house all of the homeless from the 2008-09 rounds of recession, depression and foreclosures.

Don't get me wrong. A few new bridges are certainly going to be better than old, decrepit ones, or even no bridge at all, or a bridge to nowhere, and bridges in Iraq and everywhere else except here at home, which is what we've been getting and probably will continue to get from conservative Republican, states' rights, YOYO policies; that and newer, bigger prisons to employ more prison guards converted from ranks of the jobless. Guess what bigger prisons means? Bigger prison populations. You don't think they're going let brand, spanking new prison beds go empty, do you? Get the picture? A lot of us have, and that is why I am glad Obama will be our next President.

I, for one, do not believe in corporate welfare. A corporation should not require public assistance beyond the protections and laws available to all. By definition a corporation is designed to produce goods and or services, and to add value in the marketplace for and on behalf of the owners, the shareholders. When one fails, it is not the place of John Q. Public to provide artificial respiration. We already have a body of bankruptcy law and corporate liquidation processes for that. When a corporation fails we should account for the failures and hold the individual managers responsible. That's what they are highly paid for. They are not supposed to play golf, or fiddle, when the company is folding.

Similarly, ones whom have done well should reap rewards. Ones who have had the misfortune to bear the brunt of somebody else's shortcomings should be assisted as much as possible. There should be incentives to engage in proper, non-risky investments and business activities, and conversely, penalties for engaging in the risky.

We should assist hapless homeowners who are making efforts to stay in their homes, for they've done nothing wrong, assuming they followed the rules in obtaining their RISKY mortgages. It was not their fault the mortgages were risky. It was the bank's: banks took that risk. We'll all be better off if we can immediately begin conserving the costs of the foreclosures, which are only heaping additional distress and other transaction costs onto the pile of crap evidenced by declining prices in certain regional markets for homes at this time. It seems they've figured this out already. Now, what about that Auto Industry? I buy that one more than giving Wall Street Banks all that money. I think that was a lot like the last loot and booty of the Bushy people. Such Shrubs.

Z

The Legal Monthly

Vol. 3 No. 1 Read Z the Blog at http://zlegaltimes.blogspot.com/ Feb-April '08

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

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Editor's Note: Bad Campaign Poetry

HABEAS

NOT QUITE BUSINESS AS USUAL

SCOTUS

WRONGFUL CONVICTIONS/SENTENCES

CALENDAR

SOSEN: Law Struck Down for Disparate Treatment

Terrorism Cases

From Z Editor I can hardly believe this rag has been going for Fifteen numbers. Now, to start our Spring issue I offer:

BAD CAMPAIGN POETRY

I'm shocked at the primary sweep Obama has managed to obtain.

Am I still living in the US of A?
They say that Hillary's back is against the wall, that she needs a political hat trick.
No question the big MO is going that way, even though some were afraid to say it sooner.

The question is, will there be backlash?
The tail of the dragon in defeat is still unpredictably dangerous.
The Asian, Latino, Black vote seems to have been, caricatured.
The white male's, the white woman's too is broad brush, certain. Examine thy nipple ring closely, TSA.

Talk is cheap. In which direction will the vote actually be cast? Wait Texas, wait, Ohio, -- On Pennsylvania, Dancer, and (oops, wrong rhyme)...
As Maine? Or New Hampshire? By a margin of . . . damn it's going to be close.
The superbowl wasn't this hard on the fingernails.

Michigan and Florida? Outta there. Who voted anyway?
Romney, out but could be back in 'twelve.
No question D turnout has never been higher.

So if super-delegates don't go with the popular vote, what happens next?

Implosion, fracture: President McCain?
By Iglittarati

AND ON A LIGHTER NOTE:

The House escalated a constitutional showdown with President Bush, approving the first-ever contempt of Congress citations against West Wing aides and reigniting last year's battle over the scope of executive privilege in February. On a 223 to 32 vote, the House approved contempt citations against White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet E. Miers over their refusal to cooperate with an investigation into the mass firings of U.S. attorneys and allegations that administration officials sought to politicize the Justice Department.

The administration immediately condemned the House action, noting that no White House official has ever been cited for contempt. "This action is unprecedented, and it is outrageous. It is also an incredible waste of time -- time the House should spend doing the American people's legislative business," White House press secretary Dana Perino said in a statement.

The legislative business of, say, impeaching the President, investigating wrongdoing emanating from the West Wing, which has, you don't say, politicized law enforcement, trashed Justice, just not to mention US Attorneys?

Oh, but that's exactly what the congress was doing. They're just finding more balls now. Read the WP on it. Even if a pardon is in the works, don't we just want to know if anybody did anything wrong? Don't the ones who are under scrutiny want to enlighten us? Don't we care? This theoretical fight over Executive Privilege carries only so much water when at stake we find fragile notions of trust, integrity of Justice, etc. December 7 (date the US attorneys were fired) will live on, in infamy to infinity, ad infinitum. Bad, very bad. The point is not to throw anybody in jail but to promote the ability of Congress to investigate the executive, if, and when necessary. It has never been more necessary.

HABEAS: (Thanks Howard) “Of Beethoven, of vodka, or of the Bill of Rights containing the first ten amendments to the U.S. Constitution?” The U.S. Supreme Court has ruled that if a criminal suspect indicates in any manner during custodial questioning that he wishes to remain silent, interrogation must cease. A fifteen-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit resolved in Anderson v Terhune (Feb. 15) whether a criminal defendant's statement, during an interrogation, that "I plead the fifth" is sufficient to invoke the right to remain silent.

Complicating this question, the appeal arises in the habeas context challenging a state court conviction and is governed by the federal law whose acronym is AEDPA. The majority, in a decision (access here), overturned the federal district court's denial of habeas relief. Back on November 6, 2006, a three-judge Ninth Circuit panel voted 2-1 to affirm the district court's denial of habeas relief. Now-Chief Judge Alex Kozinski joined in the original panel's majority opinion, which a federal district judge sitting by designation wrote. The judge who dissented from the panel opinion wrote the en banc majority opinion on behalf of a sizable majority. Because this case was reargued en banc before Kozinski became the Ninth Circuit's chief judge, he was not guaranteed a seat on the en banc panel, and he was not randomly selected to serve on the en banc panel. Thus, we can only imagine what he might have said in response to today's ruling.

By a vote of 8-5, en banc Sixth Circuit held that the federal constitutional right to the appointment of counsel for indigent defendants seeking first-tier review of plea-based convictions in Michigan state court does not apply retroactively on habeas review: ruling at this link. The U.S. Supreme Court specifically recognized this right to counsel in Halbert v. Michigan, a ruling that issued in June of 2005.

By entering into a plea that required at least a 27-year prison sentence on one count of child exploitation, defendant waived any Eighth Amendment challenge to what that the federal district judge described as "the most unjust sentence that I have ever imposed": The U.S. Court of Appeals for the Eighth Circuit issued this ruling (2/14).

Not Quite Business As Usual

Via How Appealing: Yesterday's edition of The Times and Democrat of Orangeburg, South Carolina contained an article that begins, "The South Carolina Appellate Court has handed down a decision that upheld a circuit court judge's 2005 contempt ruling after a St. Matthews woman instructed the judge to kiss her derriere (that's a term of endearment she likes to use for her pet Harry, the jackass—hee, haw!). Judith Law will serve extra time in jail after losing an appeal on a 2005 contempt-of-court charge for offering the written instruction to a circuit court judge." You can access last month's unpublished ruling of the South Carolina Court of Appeals at this link.

SCOTUS It's the Seventh Inning Stretch at the Court, and baseball is back on track. Spring has struck. I almost made it to the Nats opening game, but only got as far as Champions on that particular occasion. The company was better there, the servers good to look at and the beer cold, the seat warm. The Supreme Court (Danforth opinion), Ohio and Missouri make news in the Habeas and Residency Restriction arenas. Update here, of course, thanks to Doc Berman. On Danforth, the headline by Scotusblog, Courts Allowed to Expand Criminal Rights, here, says it all. That was not supposed to be a good thing, do you wonder, Wanda? To expand the "criminal rights" -- It is a magnanimous thing for the Court to allow States to do that. But read on, and we find we are actually talking about something akin to the retrospective application, or as some say, the "retroactive benefit" of Supreme Court rulings. Chief Justice Roberts dissented, in which Justice Kennedy joined.

Is it only coincidence that retrospective application of laws is also in the spotlight in Residency challenges? Don't let the big words fool you. What this involves is determining whether the rules of the game can/will be changed in the middle of the fourth quarter, sort of like counting the Florida and Michigan delegates after the DNC said they wouldn't before the vote (or non-vote), because the state's delegations broke, (transgressed?) the Party rules. It all depends, of course, on what the word Justice means to you: Or is it the Framers'?

Wrongful Convictions/Sentences

I heard something about "restoring habeas" from Obama recently. Was he speaking only of habeas for Guantanamo detainees? Barack also mentioned the phrase "wrongful convictions." This is clearly something to be redressed through a pardon, quite possibly a more muscular Habeas process. There have to be consequences for those who would callously engage in behavior designed to produce the wrongful conviction of innocent individuals. Here, we see that some in the legal community are waking up to the fact that there are numerous instances of wrongful convictions and wrongful sentencing. They say it's impossible to document, but one in seven is said to be a good guess. Curious, isn't it. This is a systemic problem that deserves much further study.

Here is an interesting, if tangential discussion arising out of Danforth on Scotusblog's site.

“…while on your website you claim this is relevant to constitutional habeas.” ... If by “constitutional habeas” you mean habeas as required by the Suspension Clause, the only point in today’s decision relevant to that question is the Court’s acknowledgment that common law habeas (and therefore the Suspension Clause) was limited to jurisdictional questions. That was once a furious historical debate, but it’s largely over, and the Fay v. Noia revisionism lies in ruins... The primary debate over § 2254(d)– the one in the two law review articles I cited in the beginning and the one before the Ninth Circuit in Irons v. Carey — is all about the statutory writ and whether Congress can, consistently with Article III, require “deference” (actually a limited form of res judicata) to state court judgments in a class of cases where Congress could repeal the jurisdiction entirely if it chose. Today’s holding on the nature of the Teague rule is highly relevant to that debate, as I explained in comment 7, above.

The Short Skinny on Wallace v. Kato from Scotusblog and a longer piece by Kent (Crime and Consequences), here: Justice Antonin Scalia wrote for the majority. There were two Justices in partial dissent. Wallace v. Kato (05-1240, download here). In that case, the statute of limitations for filing a civil rights claim was two years, under Illinois law.

The false arrest claim in the civil rights lawsuit by Andre Wallace of Chicago had its origin, the Court ruled, when he appeared before a magistrate after his arrest and was bound over for trial. More than two years elapsed between that date and the day he filed his lawsuit, and thus, the Court decided, the lawsuit was too late.

The Scalia opinion was supported by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Clarence Thomas. Justice John Paul Stevens joined in the result only, along with Justice David H. Souter. Justice Stephen G. Breyer dissented, joined by Justice Ruth Bader Ginsburg.

The Court agreed to examine law enforcement’s ability to conduct a warrantless search of the automobile’s passenger compartment incident to the arrest (Arizona v. Gant, No. 07-542) and the question of when erroneous jury instructions can lead to habeas corpus relief (Chrones v. Pulido, No. 07-544). Thanks, DC Dicta.

Request for Cert in Bell v Cone; petition challenges a widespread practice by states' attorneys to dispose of state habeas actions: the ignored federal claim. By ignoring federal claims under guise of state rules of procedure, or simply for no reason whatsoever, states have been able to argue that vague elements of the federal "procedural default" doctrine apply. I'm glad to see that this form of legal abuse is getting the attention it deserves. I'm sorry to see that it takes a capital case and a big rich law firm to bring it up with any force. But we in the Big Sky know all about it.

March Supreme Court Calendar

The March cases argued (Five of twelve are criminal matters).

No. 07-440, Rothgery v. Gillespie County - on whether criminal defendants brought before a magistrate have a Sixth Amendment right to counsel.

No. 07-290, District of Columbia v. Heller - on the constitutionality of the District’s firearms laws.

No. 06-11429, Burgess v. United States - on enhanced federal sentences based on prior state convictions for possession of cocaine.

Nos. 06-1666, Munaf v. Geren, and 07-394, Geren v. Omar - on whether courts have jurisdiction to hear habeas petitions filed by U.S. citizens held by the U.S.-led coalition in Iraq.

No. 07-455, United States v. Ressam - on whether federal sentencing law requires explosives to be carried in relation to the underlying felony.

No. 07-208, Indiana v. Edwards - on whether the Sixth Amendment grants a defendant found competent to stand trial the right to represent himself in a criminal proceeding.

Criminal Matters Upcoming

Certs granted from January 4:

Three of the six are criminal matters. How interesting!

Docket: 06-7517
Case name: Irizarry v. United States
Issue: Whether a judge must give both sides notice in advance of imposing a criminal sentence that departs from the Sentencing Guidelines.

Stanford student Erica Ross wrote the following preview of the second case to be argued on Tuesday, Irizarry v. US. Read her entire entry here, on SCOTUSwiki.

In Irizarry v. United States, No. 06-7517, the Court will consider whether a district court must provide the parties with notice that it is contemplating a departure from the applicable Sentencing Guidelines range on a ground not identified for departure in the presentence report or in a party’s prehearing submission. Petitioner Richard Irizarry argues that the district court violated Federal Rule of Criminal Procedure 32 when it failed to provide such notice. The United States agrees that Rule 32 requires a district court to provide notice, but argues that the failure to do so in this case was harmless error. A court-appointed amicus argues that Rule 32 does not require notice in these circumstances.

__________________

Docket: 07-210
Case name: John Bridge v. Phoenix Bond & Indemnity Co., et al.
Issue: Whether plaintiffs who did not rely on but were nonetheless harmed by false statements made to third parties can establish proximate cause in a civil RICO action.

__________________

Docket: 07-330
Case name: Greenlaw v. United States
Issue: Whether a federal circuit court may sua sponte increase a defendant’s sentence in the absence of a cross-appeal by the government.

__________________

Docket: 07-343
Case name: Kennedy v. Louisiana
Issue: Whether the Eighth Amendment bar on cruel and unusual punishment prohibits capital punishment for the crime of child rape.

• Opinion below (Supreme Court of Louisiana)

• Petition for certiorari

• Brief in opposition

• Petitioner’s reply

• Amicus brief of Louisiana Public Defender Offices in Parishes Impacted by Hurricanes Katrina and Rita (in support of the petitioner)

• Amicus brief of the National Association of Social Workers, et al. (in support of the petitioner)

• Amicus brief of the National Association of Criminal Defense Lawyers (in support of the petitioner)

Docket: 07-411
Case name: Plains Commerce Bank v. Long Family Land & Cattle
Issue: Whether Indian tribes’ courts have authority to decide a civil lawsuit that involves business dealings between a company owned by a member of the tribe and a bank that owns land on a reservation, but itself is not owned by a tribal member.

__________________

Docket: 07-552
Case name: Sprint Communications Company, et al. v. APCC Services
Issue: Whether a plaintiff assigned the right to pursue a legal claim, but which stands to gain no proceeds from the outcome of the litigation, has established standing under Article III. (Disclosure: Akin Gump represents the petitioner.)

New Petition: Tom Goldstein of Akin Gump, and crew, filed this petition for certiorari (and appendix) in Kay v. United States. They did the petition with the Stanford Supreme Court Litigation Clinic, along with co-counsel at Steptoe & Johnson (which represents one of the defendants). The Stanford team members were Rachel Lee, Erica Ross, and Patrick Nemeroff. The petition presents two issues. First, is the omission of an element of an offense structural error or instead subject to harmless error review? The Court granted certiorari to decide that question in United States v. Resendiz-Ponce, 127 S. Ct. 782 (2007), but did not reach it. Second, what degree of statutory ambiguity triggers the rule of lenity, and when will legislative history suffice to avoid application of lenity? Here, the court of appeals concluded that the statute remained ambiguous after considering the text, structure, title, statutory history, and legislative history. But it held that lenity was inapplicable because the ambiguity was not so extreme that it had to “guess” at Congress’s intent. The Court has before it significant briefing relating to lenity in Burgess v. United States (in which the Clinic represents the petitioner), but it is unclear to what extent the eventual opinion in that case will address the issue. Tom said, “I found this case particularly interesting because the court of appeals’ construction of the Foreign Corrupt Practices Act is the most strained that I think I’ve ever seen in the context of criminal statutes.” I am sitting up and taking notice, Scotusblog.

SOSEN: Law Struck Down for Disparate Treatment

Doc Berman's blog, Sentencing Law & Policy, and the comments – this time by “George” are usually of interest. Here it is: “Call me picky, but there is more than a little irony in all this rational basis talk when the ultimate premise is false:

"For certain, residents of local communities may have limited — if any — information about an out-of-state sexual offender. However, the same is likely to be true about in-state offenders. This lack of general information is one of the principal reasons Megan’s Law was enacted in the first place. Indeed, the crime that inspired the first Megan’s Law was committed by a twice-convicted, in-state sexual predator, a fact unknown to his new neighbors. See Paul P. v. Farmer, 27 F.3d 98, 99 (3d Cir. 2000) (citing E.B. v. Verniero, 119 F.3d 1077, 1097 (3d Cir. 1997)."

While it may be true the Kankas did not know, most neighbors did know:

"There is, however, considerable controversy regarding the question of whether the Kanka family may indeed have known that a sex offender (not necessarily Timmendequas, however) lived in the house across the street. Although the Kankas vigorously deny any such knowledge, evidence suggests that the criminal past of at least one of the residents of the house where Timmendequas lived was common knowledge in the neighborhood.

"Timmendequas lived in a house with two other convicted sex offenders with whom he had served time at the Adult Diagnostic & Treatment Center, the state's treatment-oriented correctional facility for sex offenders. One of the other offenders, Joseph Cifelli (who had been convicted of sexually abusing a 5-year-old girl), had lived in the same house as a child, and his past was well known in the community. According to a neighbor who lived on the same block:

"'When I read that in the papers [that neighbors had no knowledge that three sex offenders were living on the block], I was pissed. They all knew what Joey Cifelli did. It was common knowledge. How could those neighbors go to bed at night and sleep and say that they didn’t know that he was a pervert? [1] p. 37'

"Other neighbors also stated that they knew about the three men's pasts, including one neighbor who trimmed back tree branches so she could keep an eye on her granddaughter when she was playing by the men's house. Megan's father, Richard Kanka, also admitted to having heard "vague stories" about the men, but insists that he knew nothing of their pasts. Maureen Kanka has stated she knew nothing of the men's past, but has also asserted that people shouldn't have to rely on "gossip" and "rumors" about possible sex offenders living in the neighborhood, suggesting at least the possibility that she too had heard rumors about at least one of the men's pasts.[2]" (footnotes at the link).

Call me picky, but there is more than a little irony in all this rational basis talk when the ultimate premise is false

Yes, George, all neighbors always know when a sex offender moves into their neighborhood. Sometimes it's through Google, sometimes gossip, but sometimes it's just through a magical telepathic sex offender information transmission service. It's hard to imagine how judges and legislators could be so stupid as to think otherwise. It's a pity you're not in charge.

The background on this from Doc: “Thanks to this post at DotD, I see that divided panel of the Third Circuit in Doe v. Pennsylvania Board of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008) (available here), has struck down part of Pennsylvania's sex offender notification statute because its "disparate treatment of out-of-state offenders violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution."

A brief scan of the opinions in Doe suggests that Con Law folks ought to be interested in this ruling. For example, consider this final footnote from the majority's opinion:

An undercurrent to our dissenting colleague’s argument is that under rational basis review, the government always wins. That, quite simply, cannot be so. In fact, were that the case, our review of issues under this standard would be equivalent to no review at all. A necessary corollary to and implication of rationality as a test is that there will be situations where proffered reasons are not rational. That precise situation is graphically presented here. Put simply, every reason proffered by the Commonwealth for its disparate treatment of Doe in this case is meritless, and hence irrational. No reason the Commonwealth offers for disparate treatment can be considered “rational” because each is contrary to the promises it made to the other signatories when it signed-on to the Compact. Indeed, in the several instances, the stated purposes of the Interstate Compact itself contradict what the Commonwealth claims are its reasons for the disparate treatment it gives to in-state and out-of-state offenders.

To me, not requiring all felons to wear a bright yellow, orange and red armband branded with the crime of conviction is the travesty. You'd make so many friends that way. Just like walking your dog, it's a real conversation starter. The women are gonna luv it, too! Z hereby declares war on the dumb laws and the dumber politicians who pass them.

Ohio and AWA

I know you were wondering how 300 sex offenders could so quickly file court papers to contest the provisions of Ohio's implementation of the new federal Adam Walsh Act (and onerous, unconstitutional burdens placed on both the individuals and states) -- the Ohio Public Defenders website has useful looking sample motions and updates on the more than 300 cases filed in Ohio.

More Sosen News from Ohio

Doc Berman is on top of the Sosen related news. Here is how a recent post begins, with links to additional references: Surprisingly, or not so surprisingly, costs are escalating and AWA is not looking so good after all. You would think the legislatures have better things to do, and taxpayers would want better laws. Similar to the national “ID Act” program provoking rebellion in the states, this one isn't worth the candle.

AWA is just another way to kick felons after they are already down. Wouldn't the greedy and mean of heart just love to have another source of cheap unemployable "cash" labor? And we could build bigger bridges for housing the homeless ones too.

Terrorism: Skepticism on detention

The first civilian court review of the military’s four-year-old system seeking to justify detention of terrorism suspects produced a skeptical response to three of the government’s key legal defenses of that system. In a hearing on April 4 that ran considerably beyond the scheduled 40 minutes, the D.C. Circuit Court appeared to be harboring significant doubts about basic elements of the Justice Department arguments. The transcript of that hearing has just become available; it can be downloaded here. (NOTE: The transcript does not always identify the judges by name, and this version represents only the public session held on April 4. The judges later held a closed-door session to consider information treated by the Pentagon as classified.)In summary, the judges on the three-member Circuit Court panel reacted negatively to the government’s sweeping interpretation of the so-called 9/11 Resolution (the Authorization for Use of Military Force) that is one foundation of the Pentagon’s terrorism detention scheme. The judges also voiced concern that the government was trying to narrow the Circuit Court’s power to review that scheme. And they suggested that the government might be saying one thing to the Circuit Court and something quite different to the Supreme Court on what remedy a detainee could obtain with a successful challenge to a Pentagon detention ruling.

Those were among the signficant developments when the panel last week heard Parhat v. Gates (Circuit dockekt 06-1397). As matters have turned out, the case of Huzaifa Parhat became the first to be heard of more than 130 pending detainee appeals in the Circuit Court. Those appeals challenge detention rulings by Combatant Status Review Tribunals, set up by the Pentagon in 2004 after the Supreme Court ruled that some military system for examining captures had to be set up. The first line of civilian court review, in the D.C. Circuit, was set up in 2005 by the Detainee Treatment Act — the DTA — passed by Congress. Scotusblog. Read the rest of this entry »

“Yoo memo” goes to court

Lawyers for the only detainee still being held by the military inside the U.S. have asked the Fourth Circuit Court to consider the controversial March 2003 Justice Department advisory memo on terrorism law as part of that court’s coming ruling on the legality of this detention. In this filing on Monday in the Circuit Court, attorneys for Ali Saleh Kahlah Al-Marri enclosed the memo signed by former Justice Department legal counselor John Yoo, a document that the Justice Department declassified and released just last month. The lengthy text of the Yoo memo is available in two parts; the first can be found here, and the second here. (Thanks to Marty Lederman of Georgetown Law School and this blog for the links to the memo. Thanks to the Brennan Center for Justice for a copy of Monday’s filing.) Al-Marri is a Qatari national who was arrested in December 2001 at his home in Peoria, Ill., where he was attending Bradley University. He has since been declared an “enemy combatant,” and continues to be imprisoned in a Navy brig in Charleston, S.C. The Circuit Court, sitting en banc, held a hearing Oct. 31 on his challenge to his designation as an enemy. A decision is still being awaited. An earlier post discussing the case can be found here. In Monday’s filing, Al-Marri’s counsel argued that the Yoo memo “further demonstrates that al-Marri’s detention lacks legal basis.” It notes that the memo has been “repudiated by the Justice Department.” The filing also points out that the government has indicated that President Bush relied in part on the memo in deciding to name Al-Marri as an “enemy combatant.” “In sum,” the filing argues, “the President designated al-Marri an ‘enemy combatant’ based upon an erroneous legal analysis, and to uphold his detention is to endorse the result of an analysis that even the Justice Department has repudiated.”

In Theory: Here's this one concerning Theory: "Blinking on the Bench -- How Judges Decide Cases"

Z

The Legal Monthly

Vol. 2 No. 9 Read Z the Blog at http://zlegaltimes.blogspot.com/ Dec/Jan '08

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

***************************************

Editor's Note

Reflections

Enron: Skilling's Appeal

Re-Entry and Sentencing

Want More, Give More?

From California

Scotus Focus

From Grits

From Z Editor I can hardly believe this rag has been going for Fourteen issues. One or two new subscribers express an interest with each fresh vituperative slam. It feels like progress, even though bimonthly or quarterly instead of monthly has become the norm. Nonetheless, I hope you are enjoying the highlights of all the news and spin that's fit to font. It is distressing to fall behind with each new development, and so I've been resigned to skimming the highs and lows of what I think is “the big” news. I'm sorry I've been unable to keep up with all the circuit cases in advance as I tried once to do. And as always, a very warm welcome to all newbies. Merry Christmas and Happy Holidays and Happy New Year to all. May 2008 be long and prosperous. Or short, if you are up for release.

The Supreme Court is in the mid-term recess, and finally issued its first opinions of the term in December. Also, there have been some curious developments in the criminal sentencing, sex offender commitment and residency challenges areas. GPS monitoring has been in the spotlight as well. And, as always, more DNA exonerations and freeing of innocents jailed.

I was able to read “The Innocent Man” by John Grisham over a short Christmas break. I'm glad I did, even though I once thought it hit too close to home and avoided it. The main theme about the end of the presumption of innocence is sad but true: rotten apples in law enforcement have done untold harm in this arena. Overall, the book has my highest recommendation.

The Supreme Court affirmed the moratorium on lethal injection executions until Baze can be decided, and Boumedienne put habeas in the spotlight Wednesday (12/5). There was an interesting debate at the Federalist Society website on this. Tim Lynch (CATO Institute) asserted that the DTA/MCA (Detainee Treatment/Military Commissions Acts) is an unlawful suspension of the constitutional writ of habeas corpus. Marty Lederman joined in questioning the efficacy of the government's arguments. The voices from the “right” come from ex-government prosecutors and Bushies who cannot assume quickly enough that anyone arrested anywhere -- by feds, CIA, SpOp, Army, Marine or whomever -- must be, you guessed it, bad guys. What's so Kafkaesque is that when you ask for the evidence they just tell you its “classified” or “we can't tell you.”

Oh well. Just trust 'em. I, for one, will not trust one Republican politician with one more dollar ever again, not after what's happened in the past eight years of Republican rule. Carefully note the qualification as discrimination is not on party affiliation alone: Republican is okay by me, but don't be both, a politician too, because that's not kosher. They say Republicans don't handle power well, and isn't it curious that's what they're saying about Candidate Rudy Giuliani? Well okay, maybe I've been looking for just the right excuse not to pay my taxes this year.

In the words of one big-time attorney for the defendants, military commission hearings are “a joke”. If the commission finds that there isn't enough evidence to hold the guy they simply schedule another hearing until the guy loses. That is not some wacko talking but a lawyer, in some instances a former JAG officer. The inside scoop sends a very clear message about command pressure. It speaks ugly volumes about the guys responsible for running the place, and I don't just mean Gitmo. It speaks volumes about us generally, about America, and what we've become. A nation of laws, or a nation of flawed laws? A nation in need of fixing.

Speaking of scoop, apparently one tuff grandma (from Texas) has a son, a former White House Spokesman who claims he was mislead into making false statements to the public and thereby actually becoming the mouthpiece for the communication of lies to the public by, of all people, the President, Vice President and their closest aids. This seems another one of those, “if anybody should know ...” cases. But wait, try this one on for size, “if you can't trust the government whom can you trust?”

Speaking of trust, guess whom a congressional committee voted to hold in contempt of Congress: Gonzo Attorney General Gonzales, and gonzo top WH official and nominee to Supreme Court, Harriet -- I'm-so-good-at-writing thank-you-notes-to-my-boss-the-President -- Meiers.

Where the Gitmo guys could go upon being released is a really good question. One (facetious) response is that they'd come aboard and apply for political asylum. After six years of Gitmo they're really in need of some R and R, and maybe that should be someplace near an Iranian nuclear facility. I'll bet we could arrange that. How about this: a convoy of cruise missiles with Gitmo guys strapped on? It's not like we've treated them honorably the way we'd treat real POWs. What's that story about killing two birds with one rocket? Convenience. Buy now, pay later.

How pissed off would you be if, just if, you really were innocently swept up in Afghanistan, or in the current case, Algerians found in Bosnia after the Supreme Court there found insufficient evidence and ordered your release? We've picked up Canadians and German residents as well and rendered them. Say, I've got a really great idea. Take all the “illegal” immigrants we can find and do them like that. Very target rich environment exists right here at home. And we won't really have to worry except perhaps housekeepers and nannies and ag and meatpacking workers will have to be replaced, along with the good cheap construction labor. That's the bad news. The good news, and there is always good news along with the bad, is that due to the recent ailment of the biggest “subprime” mortgage lenders, we won't need much homebuilding labor for a time. We won't need manufacturing labor either because that's all being done in China and parts East.

Apparently we threatened Bosnia with termination of diplomatic relations if they refused to cooperate in the “arrest” of these guys after the Bosnian Supreme Court ordered their release. WOW. I wonder what the real evidence is against them.

Now, I'm starting to get worried about getting calls from overseas because it might just provide the excuse for feds to start scanning all my mail, email and cellphone calls. Recently some a--hole from Nigeria, get this, he's pretending to be a Japanese pharmaceutical executive (the company supposedly sells meds for upset stomach, aches and pains!) appoints me “agent” then calls me and says they want my bank account information so they can wire me money. That's a good one! Do I look like a complete and total imbecile? Don't answer that question. Sorry, but after I started talking to the guy in Japanese I had to tell him I was calling the FBI on him it made me so mad. Lucky for me I know the language. So anyway, at that point he really started to sound a lot more like a Nigerian guy than an oriental. Orientals have that distinctive accent. You can't miss it. But those Nigerians, they're sharp. They've got oil too. I wondered then if these guys actually knew I'd been in Japan and was actually part Japanese. Naturally, I'm getting pretty good at detecting Nigerian accents. It's definitely an essential skill for making it on the outside. And Remember Bruce singing “Born in the USA” a few years back. You can't always take that stuff personally if you are Nigerian or Japanese, or an immigrant or something. Say, wasn't Pele from Nigeria? Bruce, Bruce came to a frat house in college one winter and blasted us out. Awesome. Black Sabbath came one year too. They played in the auditorium. Now, music is on electronic jukeboxes in all your neighborhood dives. Push the buttons on screen and music menus magically appear.

In fact, I actually expect to be rendered any day now. See y'all. The black helicopters are starting to swarm the neighborhood again.

There was a rally at the Ohio State House against repressive legislation that in effect if not by intent is designed to create a new class of homeless, jobless Americans. We are talking about the so-called “residency restrictions.” As if it wasn't idiotic enough to require “registration” and publish your personal information, predictably inviting vigilantes and witch-hunting, murder, mayhem and mutilation.

What has become of America?

Citing “fiscal responsibility” the President keeps vetoing children's health care bills (SCHIP) while asking for increases in the trillions for military authorizations in Iraq. In defense of what? Wholesale violations of privacy, usurious credit card and mortgage companies, killer toy importers, foreign oil barons. It is undisputed that during the six years of the Bush II imperium, imperium not in the sense of superpower which is fine by me (I like living in superpower-dom), but in the resemblance of martial law and arbitrary military rule, not to mention repressive economic policies that have been opening a Grand Canyon, okay, Texas-size income gap. Sadder and wiser should be the people. But what have we learned?

How to vote against our own self interests, that's what. Can Obama be the ticket to save America from a Bush/Clinton/Bush/Clinton reign of Yaley friends and family: Skull and Bones? It's all good if you went to one of those elite universities. The top Fortune 500 companies boasts only one minority CEO, and he recently got ousted (Parsons). That sounds like a “good ol' boy club” to me. White, black, yellow, red ... doesn't matter to me, but I do recognize the signs of dictatorial rule. Curiously, Chavez of Venezuela (the state owner of Citgo, the national oil company there) sought to pass a law to appoint himself president-for-life. The vote failed -- good for the people. Again, some people don't handle power well. Of course, Venezuela's Citizen's Oil, as it's called, offers to provide heating fuel to Americans who've fallen on hard times and can't afford to buy it. At least that's what their TV ad says.

Reflections Just a few final reflections for the year. My last letter went out late in October and seven or eight short weeks have passed. It is called overcome by events. First, Thanksgiving. Now Christmas. And New Years of course.

As I have been thinking about the Holidays, events of the past year, what's happened and has not happened, where I've been and have not been, I think we all do this reflectivity “subconsciously,” whether or not we take the opportunity to express it outwardly in some fashion. For some, it might simply be a “Happy Holidays” or “Merry Christmas”. Here goes my list for 2007:

We have not gotten into another war.

We have come close to an economic recession: In fact we may be heading into one.

The rich have gotten a lot richer.

The Presidential candidates have been spending money like drunken sailors.

The Democrats seem to be having a good year in terms of raising money, for candidates and in polls.

The nation is still divided almost fifty/fifty between Red and Blue.

The Political Independent movement seems to be a growth phenomenon.

New electronic gadgets are racing to market faster than anybody can buy them (or figure out how to use them).

We are still guzzling gasoline at record rates. So is China, but even faster than us.

Global Warming seems to have become an accepted reality: Unfortunately nobody knows what to do about it.\

Tragically, Pakistan's democratic contender, Benazir Bhutto, was assasinated in the final week of 2007.

Reggie's team (my junior in high school) won the State 3A soccer title. It was only because of all the hooting and hollering I did personally, from the sidelines.

We took a vacation to Maine in July.

Life on the outside has gotten both simpler and more complicated, for me. As I become committed to “working” as some people call it -- making money, a living, whatever -- I have less time for other more interesting pursuits, like writing this newsletter.

I wish I could describe the scenery around here better, but here's a stab: Brunswick is a railroad town on the Potomac just below the Shenandoah River's confluence, where Harper's Ferry sits. Sharpsburg, Shepardstown, Antietam, Gettysburg are within striking distance. The C&O Canal runs from D.C. through Brunswick up to Cumberland and, presumably, all the way to the Ohio River. Lots of history here. Maryland Heights, which housed naval batteries overlooking Harpers Ferry and the Canal is one of my favorite short hikes. The view is awesome from the overlook. At the top, a good three hour round trip, is the remains of an old stone fort. Pres. Lincoln is said to have climbed up to a point and exclaimed the path was nearly vertical in places. It is. One can only imagine how many men it took to haul big guns up these paths. War sure is a labor intensive business.

That said, here is Prof. Berman's top ten for 2007. “By any measure, 2007 has been an amazing sentencing year, and I am not sure how to rank the significance of all these events:

-New USSC reduced crack guidelines

-USSC decision to to make its new guidelines retroactive Supreme Court's post-Booker decisions in Rita and then Gall and Kimbrough

-The "celebrity" sentencings of Conrad Black, Paris Hilton, Lewis Libby and Michael Vick

-Commutation of Lewis Libby's sentence by President Bush

-Hub-bub and eventually striking down of Genarlow Wilson's mandatory sentence

-Continued hub-bub over the former border agent's mandatory sentences

-California and other states' on-going struggles with its prison over-crowding problems

-Sex offender GPS tracking become more common and thus more costly

-Georgia state supreme court striking down state's sex offender residency restriction

-Heightened debate over child rape as a death-eligible offense

-Abolition of the death penalty in New Jersey

-De facto moratorium on executions as a result of Baze case before the Supreme Court”

Enron: Skilling's Appeal Marches On Thanks to White Collar Crime Prof Blog, the 162-page reply brief(!) filed by Jeff Skilling's legal team in his Fifth Circuit appeal is accessible online. The sentencing arguments begin on page 143, and these disparity arguments are developed starting at page 152. Recall that Andy Fastow got six after plea agreement to ten.

Re-Entry and Sentencing: The next issue of Federal Sentencing Reporter is focused on re-entry issues. The introductory essay for this issue (FSR Volume 20, No. 2) available at SSRN is entitled "The Second Chance Act and the Future of the Reentry Movement." From the abstract: Recently passed by the House of Representatives with strong bipartisan support and currently awaiting action in the Senate, the Second Chance Act of 2007 (H.R. 1593) would authorize about $340 million in new spending on programs that support the reintegration of returning prisoners to their communities. If enacted, the SCA would represent a new milestone in the growing influence of the prisoner reentry movement, which has focused public attention on the daunting obstacles facing returning prisoners who seek to rebuild their lives as productive citizens. This essay critiques aspects of the SCA, considers the implications of the reentry movement for sentencing, and argues that reentry-based reforms should not be conceptualized primarily as recidivism reduction measures, but as opportunities to fulfill ethical obligations to some of the most marginalized and disadvantaged members of society.

Although decreased crime rates are certainly a plausible and desirable consequence of devoting more attention and resources to offenders during their transition from prison, conceptualizing the reentry “problem” as a law enforcement issue misses many of the most important social welfare and social justice concerns implicated in the treatment of returning prisoners, and threatens to reinforce, rather then supplant, the legalist mindset that fuels mass incarceration.

I wonder where that money is going to end up? And who is going to get a slice of the pie?? Guesses, anybody? My money is on “the government” -- state gov't programs, federal gov't programs; Churches and community action agencies; employment agencies, education and training. Prisoners released from prisons: zero. So here it is:

I. The Second Chance Act

As passed by the House, the SCA authorizes about $340 million in reentry-related

spending over two years, most of which would be distributed in the form of grants to state, local, and tribal authorities. In itself, this would represent a significant new infusion of resources into reentry programs, for instance, more than doubling the annual funding provided under the SVORI. Additionally, because the grants require substantial matching contributions by the recipients, the SCA may also induce significant increases in reentry-related spending at the state and local level. On the other hand, when assessed against the number and needs of the 1.3 million or so prisoners who will be released over the two-year period (or, for that matter, the nation’s nearly $50 billion in annual spending on corrections10), the SCA’s commitment of funds can hardly be regarded as dramatic. The SCA’s single largest authorization ($55 million per year) is intended for adult and juvenile offender demonstration projects. The program’s requirements exemplify the SCA’s general approach to reentry. Grant recipients (state, local, or tribal agencies) must develop a reentry strategic plan containing measurable performance outcomes, one of which must be a 50 percent reduction in recidivism rates over five years.11 Other required performance measures include increased employment, education, and housing opportunities for offenders released back into the community.12 Grant recipients must collaborate with corrections, health, housing, child welfare, education, substance abuse, victims services, employment services, and law enforcement agencies, and convene reentry tasks forces comprised of diverse agencies and community organizations.13 Priority must be given to applicants who provide prerelease reentry planning and continuity in the provision of services.14

In another notable provision, discussed by Eric Miller in his contribution to this issue,15

the SCA also authorizes $20 million in grants for state and local reentry courts.16 Such courts, modeled on the specialized drug treatment courts that have been implemented in many jurisdictions over the past 15 years, would give judges a pivotal role not only in monitoring returning offenders, but also in ensuring that returnees are provided with “coordinated and comprehensive reentry services,” including substance abuse treatment, housing assistance, education, employment training, and the like.17 To that end, courts receiving grants are specifically required to consult and coordinate with law enforcement, social service, and community agencies. Throughout, the SCA emphasizes recidivism reduction as a primary legislative purpose, but recognizes that this objective is not just a matter for the courts and law enforcement agencies. Rather, the bill contemplates that assistance for returning prisoners in such areas as housing, employment, education, and substance abuse treatment will also contribute to crime prevention goals. Moreover, in promoting the delivery of such services, the SCA also recognizes the importance of planning (at both a global level and an individual prisoner level), multiagency collaboration, and continuity through pre- and post-release stages. In short, the SCA repudiates

the notion that recidivism reduction is best achieved through deterrent threats alone and calls for the delivery of services to former prisoners, not in a minimal or grudging way, but in a systematic, proactive fashion.

II. Reentry and Sentencing

As exemplified by the SCA, a core (perhaps the core) principle of the reentry movement

is that successful reintegration of an offender often requires the thoughtful collaboration of

diverse actors over an extended period of time. The movement’s logic, as Michael Pinard suggests in his contribution to this issue, must inevitably direct attention to the actors who dominate the front end of the process, including the lawyers and judges who control sentencing decisions.18 And, indeed, as Ryan King indicates in his contribution, one of the most provocative recent developments in state-level sentencing law has been the adoption of legislation in New York and Oregon that requires consideration of reentry needs at the time of

sentencing.19 The remainder of this Part discusses four ways that a reentry focus might affect sentencing.

A. Punishment Culture and Overall Severity A reentry focus may contribute to a fundamental shift in the culture of punishment. Elsewhere, I have argued that American criminal justice policy has been dominated in recent decades by a legalist mindset.20 Legalists draw sharp moral distinctions between legal and illegal conduct, heap moral condemnation on lawbreakers, and emphasize consistent, severe penal responses to deter crime and reinforce law-based moral norms. Legalism is premised on the assumptions that criminals freely choose to break the law, that a choice to break the law constitutes a basic rejection of the entire system of shared responsibilities that holds society together, and that the criminal thereby surrenders any strong claim that he or she might otherwise have to the respect or support of others in his or her community. This legalist approach to

criminal justice might be contrasted with a harm-reduction approach. Harm-reductionists eschew unrestrained moral condemnation, recognize that criminal acts may sometimes represent a failing of society as much as a failing of the criminal, and emphasize constructive social responses to crime that are intended to minimize future harm (including the harm suffered by the criminal as a result of the conviction and sentence).

The reentry movement adheres more to the harm-reduction than to the legalist paradigm.

Indeed, the whole notion of delivering services to offenders is, at some basic level, inconsistent with legalism. Establishing an affirmative role for others, in addition to the offender himself or herself, in addressing recidivism risks dilutes the legalist message that avoiding crime is a simple matter of making good choices between clear right and wrong. Moreover, systematic efforts to plan for an offender’s reentry—particularly at the early stages in the process, such as sentencing or plea bargaining, before the offender has had much opportunity to demonstrate remorse and a genuine commitment to do better in the future—implies that the offender is entitled to return and resume membership in the community, thereby undercutting the legalist project of moral condemnation and harsh deterrence. Finally, the reentry movement’s call for individualized planning and treatment of offenders is in tension with legalism’s emphasis on consistency in punishment and its assumption that all similar offense conduct has the same moral significance,

regardless of the offender’s personal history and characteristics. In short, the reentry movement has the potential to join other growing movements in the criminal justice system with a harm reductionist flavor (e.g., therapeutic jurisprudence, restorative justice, problem-solving courts, and, to some extent, victims’ rights) in weakening legalism’s hold over penal law and policy (which is best exemplified by truth in sentencing, mandatory minimums, and the federal sentencing guidelines).21 THE SECOND CHANCE ACT AND THE FUTURE OF THE REENTRY MOVEMENT, Michael M. O’Hear, pp 3-5.

Z's NB. The biggest bang for the buck would be to “legalize” drugs, esp. marijuana and probably also cocaine, which was at one time freely available in Coca Cola, which would immediately and automatically eliminate half or more of all crimes and the opportunity for crime. Regulate, don't criminalize: Amsterdam and Vancouver, B.C. provide the examples. Only then could we get down to the real business of fighting crime, terrorism, etc. Opportunities in the illegal international drug trade are just too vast and inviting. We should simply let the foreign drug cartel(s) do business legally, but with the US government, which controls the intra- national drug trade. Whom could possibly be opposed to this reform? Possibly, just possibly, only those who benefit from the current system: organized crime groups and the law enforcement agent(s/ies) who make a career of purportedly enforcing those obsolete and ineffective drug laws.

Want More, Give More? RIO DE JANEIRO, Brazil (AP) -- Arrested on a charge of theft, a teenage girl was locked up in an Amazon jail for weeks with 21 men who would only let her eat in return for sex. Feminist Law Professors post.

From California, (AP article) an "advisory panel created by Gov. Arnold Schwarzenegger considered Thursday how to fix the sex-offender law passed last year because it fails to say who is responsible for tracking offenders' whereabouts once they complete parole." Here are more details: The initiative, known as Jessica's Law, was approved by 70 percent of voters in 2006. It stiffens penalties for sex offenders, prohibits released offenders from living within 2,000 feet of a school or park and requires that they wear satellite tracking devices for the rest of their lives. But the law doesn't specify whether the state, counties or local police departments should have jurisdiction over offenders once they are off parole. It also does not include money to pay for lifetime GPS monitoring and has no penalty for ex-parolees who simply remove the ankle bracelets.... Representatives of county sheriff's and local police departments said they do not have enough money or staff to take over the monitoring program. The corrections department estimates it could cost about $7 per day to monitor each offender with a minimal GPS monitoring system. The state's more extensive GPS system costs about $33 per offender per day, but that includes the cost of the parole agents. "We don't know what it's going to cost, and the conservative estimates are hundreds of millions of dollars" as more offenders complete parole, said Nancy O'Malley, chief assistant district attorney in Alameda County. There are so many interesting and telling dimensions to this story: the public's broad support for GPS tracking without concern for the costly particulars; the inevitability of techno-corrections being impeded by cost concerns; the willingness of Gov. Schwarzenegger to create a commission to study this issue while he opposed the creation of a much-needed sentencing commission for his state.

SCOTUS Focus In the January Calendar, (here thanks to SCOTUS blog) seven of the twelve cases so far scheduled are clearly criminal, including the lethal injection case. The Supreme Court will open with constitutional issues surrounding the lethal injection method of execution Jan. 7, Baze v. Rees (07-5439), the Kentucky case raising three issues about the three-drug protocol for execution, now used in 36 states. Two combined cases from Indiana on requiring photo IDs to vote will be heard in the first hour on Wednesday, Jan. 9.

Monday, Jan. 7 Baze v. Rees (07-5439) — constitutionality of lethal injection protocol. Dada v. Mukasey (06-1181) –postponement of agreement for alien to voluntarily leave U.S.

Tuesday, Jan. 8 Gonzalez v. U.S. (06-11612) — waiver of right to Article III judge to preside over jury selection when counsel agreed to have a U.S. magistrate instead

Boulware v. U.S. (06-1509) — taxation on diversion of corporate funds to shareholder of a firm that has no profits

Wednesday, Jan. 9 Crawford v. Marion County Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25) — constitutionality of requiring voters to show a photo ID before they may vote (Cases consolidated for one hour of argument)

Kentucky Retirement Systems v. EEOC (06-1037) — scope of age bias in disability benefits packages

Monday, Jan. 14 Virginia v. Moore (06-1082) — lawfulness of search following an arrest that violates state law Preston v. Ferrer (06-1463) — federal preemption of arbitration agreement on talent agent’s fees

Tuesday, Jan. 15 U.S. v. Rodriquez (06-1646) — crimes that qualify for enhanced sentence under armed career criminal law; specific issue involves state drug crime conviction Begay v. U.S. (06-11543)– whether felony drunk-driving is a violent felony for purposes of enhanced sentencing under armed career criminal law

Wednesday, Jan. 16 Quanta Computer v. LG Electronics (06-937) — definition of exhaustion of patent rights when licensee sells products containing the patent Meadwestvaco Corp. v. Illinois Department of Revenue (06-1413) — validity of state tax on sale of investment in LexisNexis

I looked briefly at (a link) the Fourth Amendment case and the Virginia Supreme Court was right on this one. If states refuse to provide a remedy for violation of state law, law that is "within the scope or reach" of a (intentionally) similar provision of the Bill of Rights, they should be held to the federal remedy. The states should not be invited to re-write the Bill of Rights and fail to enforce the revision.
The Gitmo Detainee Cases march on: here is link to reply briefs.
The fallout from Carey v Musladin is beginning to hit the ground, as seen here, in a brief in opposition to certiorari, involving defendant's habeas relief under either Cronic or Strickland. The brief does an exceptional job of clarifying the notion of "clearly established law"... as well as the distinctions among Hill, Cronic, Strickland lines of ineffectiveness of assistance of counsel claims.

SCOTUSblog details "petitions to watch" at the Justices' private conference scheduled for January 4, 2008:

Docket: 07-61 Case name: Mathias v. United States-Issue: Whether an escape conviction following a failure to return to a work release program is a violent felony for purposes of the Armed Career Criminal Act. (Note: similar issues are presented in No. 06-10751, Golden v. United States, and No. 06-11206, Chambers v. United States.)

Docket: 07-343 Case name: Kennedy v. Louisiana-Issue: Whether the Eighth Amendment bar on cruel and unusual punishment prohibits capital punishment for the crime of child rape.

Docket: 07-452 Case name: Schriro v. Lambright-Issue: Whether, under Tennard v. Dretke (2001), a court may consider the lack of any causal connection between potential mitigating evidence and the crime in determining whether the failure to introduce the evidence prejudiced the defendant.

Docket: 07-478 Case name: Hartmann v. Burris-Issue: Whether seeking discretionary state court review of a criminal conviction tolls the one year filing requirement under AEDPA.

From Grits: Sign Our Judicial Complaint Against Judge Sharon Keller. If you are as shocked as we were by Judge Sharon Keller saying "We close at 5" and refusing to accept an appeal 20 minutes after 5 PM by lawyers representing a man about to be executed, then sign on to this complaint. We will submit this complaint to the State Commission on Judicial Conduct on November 16, 2007, which is also the day we will have a protest at the Texas Court of Criminal Appeals at 4:45pm. Anyone can sign the complaint. In order for your name to count on the complaint for the submission, you must provide all the requested contact information, including your phone number and occupation. If you would like to download a copy of the complaint for your records, click here. If you would like to help us with a donation, please click the button to the left or send a check made out to Texas Moratorium Network to 3616 Far West Blvd, Suite 117, Box 251, Austin, Texas 78731. Donations are not tax-deductible. If you have questions, please call 512-302-6715.

"quis custodiet ipsos custodes?"

- "Who will guard the guards?" wrote the Roman poet Juvenal. Citing numerous instances of CEO robbing the public coffers with huge payoffs to self after losing billions of shareholder $$$, so also asks William Lerach, Plaintiff's lawyer and shareholder advocate, here, as he prepares to go to jail to serve a one year sentence for boldly stepping over the line in his advocacy, as he put it: “in my zeal to stand up against this kind of corporate greed over the years, I stepped over the line.” It turns out that the legal system is a lot tougher on shareholder lawyers than it appears to be on Wall Street executives.

fini

Z

The Legal Monthly

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

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

Contents

The Costs of Justice

First Take TNR

JEC Rap Sheet

Dworkin: “The Supreme Court Phalanx”

Scotus Focus

A Prediction

A Cute, if Sardonic, Irony

Human Rights Watch Report

Sentencing

Retroactivity

Oral argument

Sex Offender Residency Restrictions

Mailbag

From Z Editor (and Mail) I can't blame it on the finances this time ... it's just that I have a lot going on. With a tween and teen and a new business going up I don't know where the time goes. September was crazy.

Country Mart's doughnuts — fried fresh daily in the store — sell for just 52 cents each. That is why the "shoplifters will be prosecuted" signs are displayed in aisle 4 with the pricey pain and allergy pills, and not in aisle 5 beside the glass doughnut case with its tiger tails, jelly-filleds and eclairs. Then one man's sweet tooth got the better of him. He stole a doughnut. A single dough-nut. Authorities called it strong-arm rob-bery. The "doughnut man," as the suspect is now known, faces five to 15 years in prison for his crime. And Farmington, a town of 14,000 people about 70 miles south of St. Louis, has been buzzing about it ever since. "That someone would take just a single doughnut, not something very expensive or extravagant, that's unique," supermarket assistant manager Gary Komar said, smiling. Scott A. Masters, 41, is accused of shop-lifting the pastry and pushing a store worker who tried to stop him. The worker was un-hurt. But with that shove, his shoplifting turned into a strong-arm robbery. Masters, who appeared in court Friday, is stunned. The prosecutor shows no signs of backing down. In fact, because Masters has a prior record, he could get a sentence of 30 years to life.

The Costs of Justice, American Style

JOINT ECONOMIC COMMITTEE TO EXAMINE ECONOMIC COSTS OF SURGE IN U.S. PRISON POPULATION AND POSSIBLE SOLUTIONS – U.S. Senator Jim Webb (D-VA) held a Joint Economic Committee (JEC) hearing to explore the economic consequences and causes of and solutions to the steep increase of the U.S. prison population.

The hearing entitled, “Mass Incarceration in the United States: At What Cost?” was Thursday, October 4, 2007 at 10:00am in Room 216 of the Hart Senate Office Building.

United States has 25 percent of the world’s prisoners,despite having only 5 percent of the world’s population. The JEC examined why the United States has such a disproportionate share of the world’s prison population, and ways to address this issue that responsibly balance public safety and the high social and economic costs of imprisonment.
Expert witnesses have been asked to discuss the costs of maintaining a large prison system; the long-term labor market and social con-sequences of mass incarceration; whether the increase in the prison population correlates with decreases in crime; and what alternative sentencing strategies and post-prison re-entry programs have been most successful at re-ducing incarceration rates in states and local communities. The witness list included:
• Dr. Glenn Loury, Economics and Social Sciences Professor, Brown University
• Dr. Bruce Western, Director Inequality and Social Policy Program, Harvard University
• Alphonso Albert, Executive Director, Second Chances
• Michael Jacobson, Executive Director, Vera Institute for Justice
The Joint Economic Committee, established under the Employment Act of 1946, was created by Congress to review economic conditions and to analyze the effectiveness of economic policy.

First Take on Hearing from TNR

It's eleven-thirty on a Thursday morning in the Senate Hart building, and the House-Senate Joint Economic Committee is doing something fairly unprecedented -- it's talking about prison reform. Not prison reform in the sense of why-we-need-to-build-more, but why-we-need-to-build-fewer.

Curious as to how this came about--as a rule, Congress only gets "tough" on crime, never "soft"-- I had asked a staffer, who explained that Chuck Schumer, the com-mittee chair, was letting each member hold his or her own hearing on whatever topic they so desired. Senator Jim Webb, who had reported on the Japanese prison system as a journalist in the 1980s, picked this critical issue. And so five experts put forward over-whelming evidence that the sprawling U.S. prison state--essentially a $200 billion per year social program that rivals the New Deal in size and scope--is devastating inner cities, deepening poverty, and making the crime problem worse, not better. But now it comes time for questions, and the congressional chairs are mostly empty. Only Webb and fellow freshman Bob Casey of Pennsylvania are still hanging around. Critical, indeed.

Back in 1958, sociologist Gresham Sykes prefaced his classic study of life inside a New Jersey maximum-security prison with a bitter note: "The 'prison problem' would seem to be a hardy perennial, unfortunately, for it has managed to survive every new storm of public indignation." Sykes was writing at a time when the U.S. prison system had only 200,000 inmates; his peers were mostly interested in what took place inside prisons. Today, after three decades of the war on drugs and harsh mandatory-minimum sentencing laws, that number has ballooned to 2.2 million, and social scientists are now focusing on how mass incarceration affects and shapes the outside world--how prisons become "engines of inequality," as Princeton sociologist Bruce Western puts it.

But will anyone listen? To be fair, Webb and Casey weren't the only members of Congress who showed up on Thursday. Four representatives exited early for a House vote--three liberal Dem-ocrats, Carolyn Maloney, Bobby Scott, and Maurice Hinchey, as well as Phil English, a Republican who has expressed interest in prisoner-rehabilitation legislation. Sam Brownback had also swung by earlier, to voice support for programs that help prisoners reenter society. That was it, though. And, watching Webb and Casey sit there, alone, one couldn't help but wonder if the "prison problem" won't weather this latest storm of public indignation just as easily.

At the heart of the case against the bloated U.S. prison system are statistics--lots of them. Staffers at the hearing inundate reporters with sheet after sheet filled with numbers and charts. A sample: The United States incarcerates 750 inmates per 100,000 persons, besting even Russia and China and dwarfing the world average of 166 per 100,000. Prison spending is now the fastest-growing item on most state budgets. Some 62 percent of black high-school dropouts born since the late 1960s have a prison record by the age of 34. Said prison record lowers one's lifetime earnings by 10 to 30 percent. So what are we getting for this staggeringly expensive social ex-periment? Not much: Criminologists mostly agree that the increased use of prison was, at best, responsible for only 20-25 percent of the crime decline in the 1990s. And, given that prisons themselves can serve as a breeding ground for criminals, while ripping apart families and perpetuating racial and income inequality, it's no stretch to say that excessive incarceration can actually increase crime in some cases.

A barrage of stats, though, is no match for personal experience, and perhaps the most compelling witness is Pat Nolan, a former Republican lawmaker in California who served 29 months in federal custody after getting caught accepting bribes in an FBI sting. Like Chuck Colson, the Watergate crook who now runs a prison ministry, Nolan had his come-to-Jesus moment behind bars. And, in the course of making his case for programs to help prisoners reenter polite society, he dips into the memory well, asking his audience to imagine a released offender who has just stepped off the bus: "Where will he live? Where will he find a meal? Where will he look for a job? How will he get a job interview?" He notes that most prisons don't even give inmates an identi-fication card upon release: "In Alabama, they give you a check for $50 but no I.D. How are you even supposed to cash the check?" Little wonder, he adds, that two-thirds of all prisoners are rearrested within three years of their release--a major reason why prisons keep swelling.

What can be changed? On the bright side, Congress is close to passing the Second Chance Act, a bill sponsored by politicians as diverse as Brownback and John Conyers that would provide $100 million to fund training and support programs for ex-prisoners. A Senate staffer told me that support for Brownback's bill on the Republi-can side is "nearly unanimous." In the past, Democrats have been wary that the GOP would try to fund faith-based prison programs with the bill, but this time around, it may well pass. Even if the bill itself is relatively modest, it does represent a break from three decades of increasingly strict sentencing laws, and an unerring faith that more prison is always the answer.

But what happens after that? During his testimony, Glenn Loury, an economist at Brown, takes a detour from discussing the social costs of mass imprisonment to broach drug laws. If prison reform has long been taboo in Congress, speaking out against the war on drugs is extra taboo. Loury goes ahead anyway and points to a graph showing that, even as drug arrests have skyrocketed, the price of heroin and cocaine has been plum-meting, while emergency room admissions for drug use continue to rise. Loury also notes, strikingly, that black men are four times as likely to be arrested for a drug offense as white men, despite the fact that drug usage is actually lower for blacks. Part of this, he explains, comes from the fact that, in urban areas, drugs tend to be sold in open-air markets, whereas suburban drug sales tend to take place indoors.

Webb is impressed by this point, but Casey raises a "devil's advocate" question: Why shouldn't the police lock up people selling drugs in public? Michael Jacobson, a former New York city corrections commissioner, chimes in to explain that "it's not appropriate to use jails for every behavior," arguing that putting a street-level dealer in prison for a few years won't solve anything--someone else will just step in to sell, and prison will only "harden" the person arrested. All of the experts agree with Loury that mandatory minimums for drug offenses do more harm than good, and other, less punitive measures would work better. But Casey, though appre-ciative, seems vaguely discomfited by where this is all heading, muttering, "I like the focus on reentry programs."

For his part, Webb doesn't seem to mind rolling up his sleeves and going beyond talk of chipping away at the recidivism rate. His questions are sharp, as when he asks whether lengthening prison sentences actually deters crime. Both Western and Jacobson agree that the length of a prison sentence is less impor-tant for deterrence than the swiftness of apprehension. "Right," Webb replies, almost as if leading a class discussion, "criminals mostly just worry about getting caught." Jacobson adds that the rise of unduly long prison terms--especially the explosion in life sentences handed out under "three-strikes" laws--keeps people in prison long past the age at which they tend to commit crimes. (Bruce Western quips that the United States is the only place where "prison geronto-logist" is a career.) To this, too, Webb seems receptive.

Reentry programs are one thing; talk of drastically reducing prison sentences, however, is still a radical notion for Con-gress. To his credit, Barack Obama recently vowed, in a speech at Howard University, that he would "review mandatory minimum drug sentencing" as president. That's about as far as any mainstream candidate can go, and Obama, perhaps wisely, kept the details vague. Webb, however, could be a convin-cing crusader here--after all, it's hard to accuse a man who once tried to bring a gun into the Senate of being a typical bleeding-heart liberal. Indeed, Webb emphasizes several times that he's not soft on crime, and, as if to prove it, reiterates his desire to "break the backs of gangs" and so forth. "But," he adds at the end, "I do hope my colleagues can better understand the impact of what we're doing here." By the time he says this, though, he's the only politician left in the room. By Bradford Plumer (an assistant editor at The New Republic).

JEC Rap Sheet

The United States has the highest reported incarceration rate in the world. While the United States currently incarcerates 750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons. Russia, the country with the second highest incarceration rate, imprisons 624 per 100,000 persons. Compared to its democratic, advanced market economy counterparts, the United States has more people in prison by several orders of magnitude. Although crime rates have decreased since 1990, the rate of imprisonment has continued to increase.
* Growth in the prison population is due to changing policy, not increased crime. Many criminal justice experts have found that the increase in the incarceration rate is the pro-duct of changes in penal policy and practice, not changes in crime rates. Changes in sen-tencing, both in terms of time served and the range of offenses meriting incarceration, underlie the growth in the prison population.
* Changes in drug policy have had the single greatest impact on criminal justice policy. The Anti-Drug Abuse Act of 1986 created mandatory minimum sentences for posses-sion of specific amounts of cocaine. The Act instituted a 100-to-1 differential in the treat-ment of powder and crack cocaine, treating possession of 5 grams of crack cocaine the same as possession of 500 grams of powder cocaine. Crack cocaine is typically con-sumed by the poor, while powder cocaine, a significantly more expensive drug, is con-sumed by wealthier users. Mandatory mini-mum sentences for low-level crack-cocaine users are comparable (and harsher in certain cases) to sentences for major drug dealers.
* The composition of prison admissions has also shifted toward less serious offenses, characterized by parole violations and drug offenses. In 2005, four out of five drug arrests were for possession and one out of five were for sales. The crime history for three-quarters of drug offenders in state prisons involved non-violent or drug offenses.
* The prison system has a disproportionate impact on minority communities. African Americans, who make-up 12.4 percent of the population, represent more than half of all prison inmates, compared to one-third twenty years ago. Although African Americans constitute 14 percent of regular drug users, they are 37 percent of those arrested for drug offenses, and 56 percent of persons in state prisons for drug crimes. African Americans serve nearly as much time in federal prisons for drug offenses as whites do for violent crimes.
* The U.S. prison system has enormous economic costs associated with prison construction and operation, productivity losses, and wage effects. In 2006, states spent an estimated $2 billion on prison construction, three times the amount they were spending fifteen years earlier. The combined expenditures of local govern-ments, state governments, and the federal government for law enforcement and cor-rections total over $200 billion annually. In addition to these costs, the incarceration rate has significant costs associated with the productivity of both prisoners and ex-offenders. The economic output of prisoners is mostly lost to society while they are impri-soned. Negative productivity effects con-tinue after release. This wage penalty grows with time, as previous imprisonment can reduce the wage growth of young men by some 30 percent.
* Prisons are housing many of the nation’s mentally ill. Prisons are absorbing the cost of housing the nation’s mentally ill. The number of mentally ill in prison is nearly five times the number in inpatient mental hospitals. Large numbers of mentally ill inmates, as well as inmates with HIV, tuber-culosis, and hepatitis also raise serious questions regarding the costs and distribution of health care resources.

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

Dworkin: “The Supreme Court Phalanx” Not last nor least, here's Ronald Dworkin (beating - not bleating) about the bleeding Supreme Court (appearing in New York Review of Books). So, from his analysis, forget about your chances for habeas relief. On the bright side there is always this: The Sixth Circuit in Stewart v. Erwin, No. 05-4635 (6th Cir. Oct. 8, 2007) grants habeas relief to a state prisoner because he was de-nied access to certain information used at his sentencing. Here are the highlights from the start of the opinion (from Doc Berman):

After exhausting his state remedies, Stewart filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254, alleging, inter alia, that he was denied due process of law because he was not given the opportunity to review, rebut, and explain the entire body of information that the sentencing court relied upon to justify its imposition of an eight-year prison term. The district court denied the habeas petition but, on the same day, granted Stewart’s motion to expand the habeas record and ordered the State of Ohio to file, under seal, the pre-sentence report and victim impact state-ments from Stewart’s case. The custodian of these documents has thus far refused to comply with the district court’s order, and these documents do not appear in the record on appeal. The district court also subse-quently granted a certificate of appealability as to Stewart’s due process challenge, and this is the sole claim presently before us.

As explained below, we agree with the district court that there is no clearly established federal constitutional right to full disclosure of all information used by a trial judge in determining a defendant’s sentence. Nonetheless, we recognize, as did the court below, that there is a clearly esta-blished federal due process protection against a trial court’s reliance on materially false information at sentencing. Unlike the district court, we find ourselves unable to ascertain whether this latter sort of due process violation might have occurred here, where a portion of the materials used in determining Stewart’s sentence has been withheld from federal court review, and where the limited record before us suggests a reasonable possibility that at least some of this sentencing information might have been erroneous. Consequently, we reverse the district court’s order denying Stewart’s petition for a writ of habeas corpus and remand for additional proceedings, with further instructions that the writ should be granted if the State fails to supplement the record as ordered by the district court within forty-five (45) days of the date of this opinion.

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

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

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

They need a fifth vote to win the day in particular cases, and they most often per-suade Justice Anthony Kennedy to join them. Kennedy has taken Sandra Day O'Connor's place as the swing vote on the Court. Twenty-four cases—a third of the Court's decisions—were decided by 5–4 votes last term, nineteen of them on a strict ideological division. Kennedy voted on the winning side in all twenty-four of them. He joined with the right-wing justices in thirteen of the ideological cases; he voted against them and with the four more liberal justices—John Paul Stevens, David Souter, Ruth Ginsburg, and Breyer— in the remaining six cases, including four death penalty appeals from Texas. He showed deplorable partisan-ship when he voted with the majority in the Court's intellectually disreputable 2000 decision to elect Bush president.[2] He wrote a poor and insensitive majority opinion this year in the Court's so-called partial-birth abortion case. (I discussed his opinion in these pages earlier this year.)[3] But in 1992 Kennedy joined O'Connor and Souter in the key opinion upholding abortion rights in principle and providing a firmer constitutional basis for them,[4] and in 2003 he wrote a strong opinion for a 6–3 majority, relying on that earlier abortion decision, ruling that states cannot make homosexual acts criminal.[5] He therefore offers hope—slim, but real—of some moderating influence on the Jacobins; lawyers who argue important cases before the Court in the next few years will presumably frame their arguments to convince him.

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

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

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

The US Appeals Court for the District of Columbia Circuit ruled that habeas corpus does not apply to foreign nationals being held at Guantanamo Bay because it is not US soil. Professor AE Dick Howard, of the University of Virginia School of Law, said the Guantanamo cases would be "front and centre" of the new session. Laura Smith-Spark BBC News, Washington. Nb. If the detainees "win" is that a conserative or liberal outcome? Hint: is the Consti-tutional right to habeas corpus a conservative or liberal notion? Hint 2: Is supporting tyranny conservative or liberal?

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

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

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

Equally or more important when considering the potential elect-oral consequences of the Term, the leading cases will be ones in which the more liberal position is distinctly - even profoundly - unpopular with conservatives, creating the prospect that the Court will serve as a rallying cry to mobilize the electorate. Even if the left ultimately does not win all of the five most significant cases of this Supreme Court Term, that wing of the Court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession. First, consider the existing docket. The most prominent decision, by far, will come in the cases brought by detainees held at Guantanamo Bay as accused terrorists. The conventional wisdom is that the detainees will win. I agree. ***
The next-highest-profile case involves the crack-powder disparity in sentencing (Kimbrough v. United States). This is something of a "throwback" case; crack is not as prominent an issue as it once was. Nonetheless, it is one with which the public is familiar. The parti-cular question presented is whether, in the wake of the holding of Booker v. United States that the Sentencing Guidelines are advisory rather than mandatory, district judges can refuse to follow the crack Sentencing Guideline (which imposes a 100:1 ratio to cocaine sen-tences by weight) on the ground that they disagree with the policy judgment underlying it. I think that the government is over-whelmingly likely to lose. ***

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

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

NB. But in Ditech's words "people are smart" -- I think we're beginning to see through the right-wing "conservative philosophy" yoyo bullshit, don't you? The argument is that people are stupid—too stupid to see through the spin and discern the shadow of fairness. I respectfully disagree.

A Cute, if Sardonic, Irony “RATS in robes”

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

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

1 concentrated Republican executive power good,

2 unchecked corporate power good,

3 environmental law/regulation bad,

4 human rights bad,

5 property rights good,

6 free speech bad,

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

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

-- comment by “Slackie Onassis” somewhere on the blog-a-sphere

Human Rights Watch Report on laws, registries and restrictions for sex offenders:

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

Retroactivity Danforth v. Minnesota (06-8273) -- a case examining state courts' authority to expand retroactivity of Supreme Court criminal procedure rulings, is scheduled for argument on October 31: the petitioner's brief is by the Minnesota Public Defender's office; Amicus briefs from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers in support of the petitioner; an amicus brief from Alaska and ten other states in support of the respondent; and an amicus brief from Kansas in support of neither party. Curiouser and curiouser.

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

I should think so. If true, and even if not true, the allegation alone, rumor only perhaps but not likely, presents untold harm to the reputation and moral standing of the United States among the community of nations. Cover that up, and bring lots of dirt to do it with. That's mud, as in "dragging through the mud" -- as in the reputation of the former AG, whose worst day according to his own admission, was better than his own father's best day. I'm so glad I'm not his dad. Aren't you?

Oral argument in Watson v. United States (06-571) 10/9 Federal law makes it a crime to "use" a gun during a drug offense. But what if an unloaded gun is merely payment for the drugs? That's the question set for argument at the US Supreme Court next Tuesday in the case of a Louisiana man who traded 24 doses of the prescription drug OxyContin for a .50 caliber Desert Eagle pistol. At issue in Watson is how to define the word "use" in a statute that outlaws the "use" of a gun in a drug crime. Although the case sounds unique, it is becoming increasingly common in sting operations for undercover agents to introduce or suggest a gun as a form of payment in a drug deal. Under the law as written by Congress, the gun adds an automatic five years in prison – and sometimes much more – to any drug charges. "It is a very heavy stick," says Mark Stancil, a Washington, D.C., lawyer and adviser to the University of Virginia School of Law Supreme Court Litigation Clinic, which is assisting in the Watson case.

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

Sex Offender Residency Restrictions A federal judge in Akron has ruled in favor a sex offender in a residency case. Lane Mikaloff filed a lawsuit after he was ordered out of his home because he lives too close to a school.

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The Legal Monthly

Vol. 2 No. 7 Read Z the Blog at http://zlegaltimes.blogspot.com/ Aug/Sep 2007

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

Contents

Toobin's Eulogy of Habeas Corpus -- the last word?

The Fall 2007 Short List - AUSA should avoid six things

Not Criminal, Yet Political of The Court

Scotus: Past as Prologue, Sharp Rights, U- Turns Ahead?

Sentencing: Bush Commutes Scooter's Time

In George W. Bush's U.S. Supreme Court

About "Apprendi's Domain"

International Law

GPS tracking

Results of habeas study

Are You Kidding: the Twenty-Three Year BJ

Registration causes more problems than it solves.

USA Patriot Improvement and Reauthorization Act

Hourly Rates: Top That

From My New Favorite Blog

An Easy Hundred Thou?

From Z Editor (and Mail) A financial crisis narrowly avoided caused Z delay to send this issue to the printer. The good news, however is (there's always that) this is a double issue! (That means it took twice as long to produce as usual. Haa--gotchya!) Whew, it's been a hot summer. I really feel for you guys in the fields. Many letters have been received, a new address or two added to the distribution list. Unfortu-nately, Z has not been able to personally call, write, or otherwise harass the PTB (powers-that-be) at this time. Patience, those of you soon-to-be-released, the long nightmare will soon be over. Keep those grievances going!

Toobin's December Eulogy of Habeas Corpus -- the last word?

“During the Presidency of George W. Bush, the executive branch, with the eager acquiescence of its Republican allies in Congress, has essentially dared the courts to defend the rights of the suspected Al Qaeda terrorists, who have been held at Guantánamo, some for as long as four years. The Supreme Court has twice taken up that challenge and forced the Administration to change tactics; the new law represented a final attempt to remove the detainees from the purview of the Court. Now, of course, Republicans no longer control Congress, but the change in the law of habeas corpus may be permanent.” Fast-backwards in time, facing rebellion of the Peace Democrats in Maryland, and a real chance that Washington would be surrounded and the White House captured, Lincoln arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, so that they couldn’t vote to secede from the Union. Suspensions of Habeas have been rare in American history. The most recent occasion was in 1871, when President Ulysses S. Grant sent federal troops to South Carolina to stop attacks by the Ku Klux Klan against newly emancipated black citizens. This fall (2006) however, Congress passed, and President Bush signed, a new law banning the four hundred and thirty detainees held at the American naval base at Guantánamo Bay, and other enemy combatants, from filing writs of habeas corpus.

Was that really so novel? How does it compare with the AEDPA? Effective since 1996, that law knocked the teeth out of Habeas and allows states to ignore all but the most blatantly obvious miscarriages of justice involving US citizens (and subjects) in our state and federal prisons.

The Fall 2007 Short List - AUSA should scrupulously avoid these six things, at a minimum: 1.If you can't beat'em with a stick, shoot'em, (no, Mr. Prosecutor, you can't shoot first and ask questions later; 2.Pursuit of Gun Control, and other ambitious “Lefty” Advocacy; 3.Failure to prosecute Washington State Democrats following a close election; 4.Being targeted for a contract killing, and/or Sour Grapes; 5.Aggressive Investigation of a fellow AUSA's Murder; and 6.The Short List of Already-Fired Federal US Attorneys. Finally, did I mention this one: Don't commit an alleged suicide (See below, under topic of MISSING GLOCKS). Source: The New Yorker Magazine, “An Unsolved Killing: What does the firing of a U.S. Attorney have to do with a murder case?” by Jeffrey Toobin.

Not Criminal and Yet Transparently Political of The Court: House Democrats would reverse just one of the more eggregious, sexist and pro-business Supreme Court decisions of the 06-07 Term. Showing no compassion toward the discriminated-against (women) in the workforce the President threatens veto of any such law.

Scotus Focus: Past as Prologue, Sharp Rights, U Turns Ahead? It can be said that the law changes slowly -- except when it doesn't -- in which case it changes, well, suddenly. Of course there are consequences, as surely follow they must, just as night follows day. But will the consequences follow as suddenly as the changes in the law that were wrought? Also, what will be the unintended consequences of these changes in the law? Bright and thorough thinkers the justices (and their clerks) must be, things always pop up unexpectedly and not only because wholly unforeseeable. Such is life. For instance, it was not entirely unforeseeable that removing a dictator, Saddam, would cause a power vacuum, but it is pretty well assured that a future war against Iran is not a necessary consequence even if a probable one arising out of the invasion of Iraq and the decapitation of Saddam Hussein's regime. Incidentally, Condy Rice was recently named THE most powerful person in Washington and also designated the last great hope that the U.S. won't attack Iran before the current president leaves office. Due to very unfortunate, if unintended consequences and events “on the ground” it follows that drawing out the occupation of Iraq for yet another year or two will almost certainly require the institution of a draft to ensure that our armed forces can be viewed as an effective deterrent against possible hostile action by certain of our enemies and potential enemies. Also abundantly clear is that neither the size, nor strength nor quality of the present-day armed forces are sufficient or effective to deter terrorists and suicide bombers. Also, on topic of continuity or change, will the GOP-inspired Court continue to bash the little guy and evade the pursuit of freedom, equality, opportunity? Will it continue to grant favors to big oil, big insurance, big police and big corporations? They say that the Court's “ideological” direction follows the electoral returns, and the new “Roberts Court” seems to be doing just that. Both of the newly minted justices, (“CJ” and “Sammy”) appear to be very reliable votes for “conservative” “right wing” and “law and order” -- so let's see how, and what, they did. And speaking of big police and big corporations, there seems to be the small matter of EIGHT THOUSAND, some say that it is actually more like EIGHTY THOUSAND, MISSING GLOCK SIDEARMS in Iraq that have been traced back to original U.S. custody. Guess who has them now? Hint: it ain't the Iraqi military we are supposed to be training to defend Iraq so we can leave. Hint again: it's the BAD GUYS. Also mysteriously, an Army man is now dead, allegedly having committed suicide while investigating the disappearances of these firearms. So this is how our tax dollars are being spent: siphoned off in illegal, under-the-table arms deals brokered by “private contractors” dealing with the enemy. The pistols go for about $500 in the U.S. but fetch up to $3,500 over there, on the black market. That's a pretty nice mark-up. Yup.

The Supreme Court dedicated nearly a third of its docket to criminal cases (including habeas) during the recently completed term, ruling against defendants almost twice as often as in their favor. Unlike business cases, which produced relatively little dissent, the criminal docket highlighted the Court’s increasing ideological divide. More than 45% of criminal cases were decided 5-4 – all but one along ideological lines – versus 33% of the docket as a whole. The Chief Justice and Justice Alito compiled nearly identical voting records in their first full term together on the bench, aligning almost always with Justices Scalia and Thomas. We'll start calling them the Bushie twins. Meanwhile, the left-leaning Justices also recorded higher than normal rates of agreement.

-- In 2000, the old Court threw out a state ban on late-term abortions by a 5-4 vote. This year, the new Court upheld such a ban by 5-4.

-- In 2003, the old Court upheld the McCain-Feingold campaign finance law by 5-4. This year, in a 5-4 vote, the new Court struck down the section of that law restricting pre-election issue advertising.

-- In 2003, by 5-4, the old Court allowed the use of race as a criterion for admission to schools of higher education. This year, by 5-4, the new Court struck down the use of race as a criterion for placing students in public schools.

-- On the old Court, three reliably conservative justices—William Rehnquist, Antonin Scalia, and Clarence Thomas—were frequently joined by Anthony Kennedy, a moderate conservative. Four reliable liberals—Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens—were sometimes joined by Sandra Day O'Connor, a swing vote. On the new Court, Bush has replaced Rehnquist with John Roberts, an even more reliable conservative. He also replaced O'Connor with Samuel Alito, a reliable conservative. Alito's vote, along with that of Kennedy, shifted the Court's majority to the conservatives. The four liberal justices are now almost always in the minority on close votes.

-- Perhaps what is most notable about the civil rights subset of this term’s docket is that Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito found themselves in the majority in every case. When it came to civil rights this term, there is no question that the conservatives carried the day.

“Faux judicial restraint is paying off for Justice Scalia even if he would prefer to change the Constitution his way.” In the unusually few cases it decided in the last term — 68 — the court specifically reversed only three previous cases, including one that had stood as settled law since 1911. But it doesn't have to be specific to make a U-turn. Chief Justice Roberts' opinion in the McCain-Feingold case left room for Justice Kennedy to say, in his concurring opinion, that there are some cases in which the law still would hold. No one can identify any, nor are prosecutors likely to try to enforce the law after this term's decision. But the court never said it reversed its 2003 opinion upholding the law. Likewise, when the chief wrote that school districts may not consider race to integrate schools, he cited the 1954 school desegregation case as if it were the precedent he was upholding. That left room for Justice Kennedy to write that there are still cases when school districts can consider race. Again, nothing formally changed. It will be a miracle, though, if school districts can find one of Justice Kennedy's hypothetical exceptions to stay integrated after what Chief Justice Roberts wrote about the two districts that were integrated in a way the court had approved of for 50 years. AND,

In George Bush's U.S. Supreme Court, the big guys win, you lose -- unless, of course, you are one of the big guys, in which case, congratulations. If you are a customer, tough. Manufacturers may go back to barring retailers from underselling the price a manufacturer wants. If you are a mere taxpayer, tough again. You are barred from challenging government expenditures on faith-based programs as possible violations of church-state separation. If you are convicted of a crime and your lawyer files your appeal three days late, too bad -- even though the lawyer filed on the date the judge (mistakenly) directed. Justice David Souter, in dissent, put it plainly: "It is intolerable for the judicial system to treat people this way." If you suffer a troubled pregnancy, sorry. Lawmakers may bar you from the medically safest abortion. Women's health no longer governs abortion issues. Expect a festival of harassing legislation next year in the manner of the ban on "partial-birth abortion" -- a term made up for political purposes -- which the court endorsed in its recently completed session.

If you are a woman and discover that for years your employer has been paying men more for the same work you do, you're out of luck unless you filed a complaint within 180 days of the first time that happened. Sources: William Schneider/National Review; Adam Chandler/Scotusblog; Tom Blackburn/lufkindailynews.com; The Wichita Eagle/kansas.com.

Sentencing: Bush Commutes Scooter's Time Ya really are immune when ya work for the Pres. VERY curiously, I. Lewis "Scooter" Libby, will have to live with the criminal record and must report for probation/parole instead of prison. The special prosecutor in the CIA leak case and the White House's top staff lawyer agreed that the former vice presidential aide must serve a term of supervised release following his conviction for lying to federal investigators and a grand jury. Special Counsel Patrick J. Fitzgerald, the prosecutor, and White House Counsel Fred F. Fielding told a federal judge that President Bush's nullification of prison time for Libby did not affect the former aide's obligation to serve the part of his sentence that involves supervision by federal correction officials. Libby's personal attorneys said he accepted the White House view.

The goal of the sentencing guidelines was to rectify these sentencing disparities and treat "defendants with similar records who have been found guilty of similar criminal conduct" in like fashion. Last week, the president of the United States commuted I. Lewis "Scooter" Libby's 30-month prison sentence. His commutation statement noted that Libby's prison sentence, which fell within the sentencing guidelines, was "excessive." The president took this bold step less than two weeks after the Supreme Court ruled in Rita v. United States, at the urging of the Bush administration, that a similar sentence for a similarly situated defendant must be presumed "reasonable."

-- With one dramatic stroke of his executive pen, the president unwound more than two decades of effort to rationalize sentencing in federal courts.

-- Victor Rita was convicted of making false statements to a federal grand jury investigating whether the buyers of a gun parts kit could use the kit to make illegal machine guns. Rita, like Libby, had an exemplary background marked by service to his country. He served more than 25 years in the armed forces, during which he received 35 commendations, medals or awards. He had no relevant criminal history. Applying the federal sentencing guidelines, the judge sentenced Rita to 33 months in prison. Rita appealed his sentence on the ground that it was not reasonable in light of his sterling background. Arguing on behalf of the Bush administration, the solicitor general of the United States urged the Supreme Court to uphold Rita's prison sentence on the ground that it fell within the sentencing guidelines and therefore appellate courts must presume the sentence to be reasonable. The Supreme Court agreed and upheld Rita's 33-month prison sentence. Chief Justice John Roberts and Justice Samuel Alito, the president's reliably conservative appointees to the court, agreed with the administration's position and voted to uphold Rita's sentence. Libby was convicted after a jury trial of lying to the grand jury and federal law-enforcement officers conducting an investigation of the unauthorized disclosure of classified information concerning the employment of Valerie Plame by the CIA. High-ranking government officials compromised Plame's identity in retaliation for her husband's criticism of one of the president's justifications for the Iraq war.

Many former and current CIA officials publicly condemned the "outing" of Plame, noting that it exposed CIA operations and assets to significant risks. At the outset of the investigation, the president himself referred to it as "a very serious matter" and promised, "our administration takes it seriously."

Under the sentencing guidelines, Libby faced a range of 30 to 37 months in prison for his offenses. The judge chose 30 months, the lightest sentence in the range. Libby's 30-month prison sentence was within the guidelines, as was Rita's 33-month sentence. Yet, Libby's guidelines sentence was deemed by the president to be "excessive" while Rita's sentence was deemed by the lawyer representing the president's views to be "reasonable." So much, then, for avoiding sentencing disparity. Source: Robert S. Mahler,Special to The Seattle Times

About "Apprendi's Domain"

Jonathan Mitchell, a visiting professor at the University of Chicago Law School, has posted "Apprendi's Domain" on SSRN. Among other things, Professor Mitchell argues that in its Sixth Amendment jurisprudence, the Supreme Court has improperly tied the presentation of all facts that increase a sentence beyond a statutory maximum to proof beyond a reasonable doubt. Instead, he argues that such facts, whether mitigating or aggravating, should be presented to a jury, but that prosecutors should not be required to prove them beyond a reasonable doubt. With the Court's interest in Sixth Amendment issues seemingly not waning (e.g., Gall, Rita), Professor Mitchell advocates a provocative new approach to the Sixth Amendment. SCOTUSBLOG

International Law: Over the past few decades, international law scholars and advocates have widely supported the use of domestic United States courts to independently enforce and implement international tribunal judgments, even over the opposition of the President. The Supreme Court's decision in Sanchez-Llamas v. Oregon represents a potentially serious setback for this burgeoning movement. This contribution defends and elaborates the reasons for the Court's refusal in Sanchez-Llamas to give effect to judgments of an international tribunal absent a clear and explicit authorization by Congress or the Senate.

GPS tracking "technocorrections" is all the rage in the law enforcement and criminal justice arenas. But just like early adopters of computer gadgetry that quickly becomes anachronistic, some solutions like ubiquitous camera surveillance and GPS tracking of probationers haven't always delivered as advertised. According to today's London Telegraph:

The practice of electronically tagging criminals, suspects and alleged terrorists on control orders is being undermined every time the mobile phone system crashes, it was claimed yesterday.

***

Electronic tagging devices for people released from prison, as a "low risk," or suspects on bail, was introduced by the Government in 1999.

"The picture that emerges is one that includes regular equipment breakdowns, offenders breaching their curfew with little apparent consequence and of monitoring officers struggling to actually locate the people who they should be tagging," Panorama said.

That doesn't sound like a great track record, does it, for a program that's been in place eight years? I'm reminded that victim advocates at the Texas Association Against Sexual Assault (TAASA) more or less predicted such problems in legislative testimony critical of Texas' new Jessica's Law.

Results of habeas study released Aug 21, 2007 led by Nancy King, Lee S. and Charles A. Speir Professor of Law at Vanderbilt University, finds that fewer state convictions and sentences are being ruled unconstitutional by federal courts.

Are You Kidding Me: the Twenty-Three Year BJ The trial of 41-year-old mother-of-two, Phill Raije Rian, for sexual assault of a 16-year-old neighborhood boy concluded in August. Rian allegedly performed oral sex on the teen, who she knew because he mowed her lawn, on three occasions, each of which lasted between 15 and 30 minutes. Say, I want one. Is it illegal to receive? Rian was reportedly sentenced to 23 years in prison for these crimes. Will sanity never rule?

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

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

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

"Sex offenses and sex offenders fall into a really broad range," Levenson says. "Everybody who is convicted of drunk driving is not an alcoholic. Everyone who is convicted of a sex offense is not a sexual predator." Ignorance can make the problem worse, and so can an ill-considered law. "It reinforces that myth of stranger danger," Levenson says. "These laws are passed in response after abductions and murders. They're terrible; all those cases are really frightening and troubling to all of us. It really shakes our sense of safety and security. But sex offender registration is likely to do very little to prevent those kinds of things because most children are sexually abused by people they know."

With up to 95 percent of all sex crimes committed by a person known to the victim, what does a sex offender registry actually accomplish? Nobody knows. Singleton says the one thing it does for sure is make it harder for people to rejoin society. "It drives people underground and destabilizes them," he says. "It stands in the way of a lot of offenders who aren't dangerous ever returning to their lives and getting back on their feet and being productive in our community -- which is what we should all want. "This is bad policy, and this is unfair. It's counterproductive. No one wants to hear that in this community. They want to know that they're safe. This isn't going to make them safe. It can actually be counterproductive -- it makes them more unsafe ... because it gives them a false sense of security." Citybeat.com

USA Patriot Improvement and Reauthorization Act Under a provision of the USA Patriot Improvement and Reauthorization Act, states may ask the attorney general to approve their programs for providing lawyers to death row inmates who appeal their convictions in federal courts. As the Los Angeles Times first reported last week, states whose programs are certified by the attorney general will then have the right to fast-track those appeals. After exhausting their appeals, inmates would have six months to file federal habeas corpus petitions; they now have one year, although that deadline is often ignored or extended. AG Gonzales resigned Monday, Aug. 27. Here's how the Washington Post put it the previous Wednesday -- ASKING Attorney General Alberto R. Gonzales to be the arbiter of the quality of legal representation for death row inmates is a little like asking the head coach of the Dallas Cowboys to pick the starting lineup for the Washington Redskins, just before the two teams are set to play.

Hourly Rates: Top That The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma. Yet, many attorneys are still reluctant to charge $1,000 an hour. "There is a perception issue between $1,050 and $950," says Hugh Ray, a partner at Andrews Kurth LLP in Houston. "At some point, you look bad if you go too high." Mr. Boies says psychology in part has held him back from charging more than $880 per hour, noting, "When I started practicing law in 1966, my billing rate was considerably under $100." "Frankly, it's a little hard to think about anyone who doesn't save lives being worth this much money," says David Boies, one of the nation's best-known trial lawyers, at the Armonk, N.Y., office of Boies, Schiller & Flexner LLP.

Here's the rest of the story, as Paul Harvey would say: Law firms say the boosts aren't just about lining partners' pockets. They're partly a response to booming costs, which in recent years have included skyrocketing associate salaries -- first-year lawyers in many firms make $160,000 a year -- and expenses associated with geographic expansion.

For matters such as bet-the-company deals, intricate patent disputes, huge bankruptcies or complex antitrust litigation, firms often feel they can raise fees for name-brand partners without upsetting clients. Plaintiffs trial lawyers often bill on a contingency-fee basis, earning a share of a settlement or verdict -- an amount that can dwarf top rates. "It represents an opportunity cost when I am working by the hour," says Mr. Susman, Susman Godfrey LLP, who last year raised his hourly fee to $1,100. He did it in part, he says, "to discourage anyone hiring me on that basis."

From My New Favorite Blog: badcopnews.com/ --- ALBUQUERQUE, NEW MEXICO — A trucker has sued the Drug Enforcement Administration, seeking to get back nearly $24,000 seized by DEA agents earlier this month at a weigh station on U.S. 54 in New Mexico north of El Paso, Texas. Anastasio Prieto of El Paso gave a state police officer at the weigh station permission to search the truck to see if it contained “needles or cash in excess of $10,000,” according to the American Civil Liberties Union, which filed the federal lawsuit Thursday. Aug 25.

An Easy Hundred Thou? The government's terrorist screening database flagged Americans and foreigners as suspected terrorists almost 20,000 times last year. But only a small fraction of those questioned were arrested or denied entry into the United States, raising concerns among critics about privacy and the list's effectiveness. A range of state, local and federal agencies as well as U.S. embassies overseas rely on the database to pinpoint terrorism suspects, who can be identified at borders or even during routine traffic stops. The database consolidates a dozen government watch lists, as well as a growing amount of information from various sources, including airline passenger data. The government said it was planning to expand the data-sharing to private-sector groups with a "substantial bearing on homeland security," though officials would not be more specific.

Few specifics are known about how the system operates, how many people are detained or turned back from borders, or the criteria used to identify suspects. The government will not discuss cases, nor will it confirm whether an individual's name is on its list. Slightly more than half of the 20,000 encounters last year were logged by Customs and Border Protection officers, who turned back or handed over to authorities 550 people, most of them foreigners, Customs officials said. FBI and other officials said that they could not provide data on the number of people arrested or denied entry for the other half of the database hits. FBI officials indicated that the number of arrests was small. The government says the database is a powerful tool for identifying and tracking suspected terrorists and for sharing intelligence, and that its purpose is not necessarily to make arrests. But the new details about the numbers, disclosed in an FBI budget document and in interviews, raise questions about the database’s effectiveness and its impact on privacy, critics said. They argued that the number of hits relative to arrests was alarmingly high and indicated that the threshold for including someone on a watch list was too low, potentially violating thousands of Americans’ civil liberties when they are stopped.

David Sobel, senior counsel with the Electronic Frontier Foundation, a privacy organization, said the numbers “suggest a staggeringly high rate of false positives with respect to the identification of supposed terrorists.” He added that “this really confirms the long-standing fear that this list is inaccurate and ultimately ineffective as an anti-terrorism tool.” Francisco "Kiko" Martinez, a Colorado lawyer and civil-rights activist, said he was detained twice in recent years by police officers who pulled him over on traffic stops and held him in one case more than three hours, and in another, in handcuffs. Through legal proceedings, Martinez obtained police reports that revealed his watch-list status. "A driver's license check revealed [Martinez] as a possible individual having ties with terrorism," a state trooper wrote after a 2004 stop near Chicago, according to one report.

Last year, Martinez sued the federal government, claiming that he was unlawfully detained and that he was included on a watch list as a result of his political activities.

Last month, he won a $106,500 settlement from federal, state and tribal authorities. Though the settlement did not address any of the underlying constitutional claims, Martinez asserted that it "shows that I shouldn't have been on this terrorism watch list in the first place" and that "the government is misusing this so-called war against terrorism to target its domestic political opponents." Ellen Nakashima, Washington Post.

An Innovative Innocence Project -- Not everyone convicted of a crime claims to be innocent. Z will start collecting data for an online listing of all who swear upon penalty of perjury to their innocence. An application form will be sent to all subscribers for wider distribution. Thank you, reader, for the suggestion! A sampling:

Deliberate Fraud, Due Process and Civil Rights Violations;

The Entire Trial Was Rendered A Farce and Mockery;

The Police, FBI and State have Perpetrated a Conspiracy;

I Was Coerced into Pleading Guilty (e.g., Senator Larry Craig)

Grievances: The nurse saw me carrying my crutches and my typewriter to law library and took away my crutches. Damn, I now wish I'd kept that third hand growing out of my elbow!

• I got a serve all, moved to the buildings and out to the fields after 3 years in the soap factory with High Performance Evals and no disciplinaries. What gives?

Mailbag: A War on Spin,

When exactly did the U.S. Lose its majesty and begin slipping into the vortex of social decay it is now in? Sociologists have undoubtedly asked that question many times. There are incidents in the past one could point to, both external and internal, but I suggest it was caused by a far more sinister foe—spin.

Spin is a twist (or change) in the presentation of material designed to show the material in a desired fashion. One may put positive, negative, or no spin on a presentation, thus encouraging a favorable, unfavorable, or unbiased impression on one's audience respectfully. An example would be declaring war on an abstract (i.e. War on crime, war on terror, war on poverty, etc.). By using the owrd war, politicians are using spin to further their agendas on social issues. A famous exdample is “December 7, 1941. A date that will live in infamy” -- the actual speech read “live in history.” President Roosevelt changed (or 'put spin on') the words for greater emphasis.

So what's wrong with spin? On the surface, nothing appears wrong, however, let's look closer at what spin actually is. Spin is a relatively new term for a very old technique. It's twisting or changing the way something is presented tomake it appear better or worse than it actually is. It's been known by many different names in the business and legal professions, but it boils down to misrepresenting truth for impact. In a nutshell, spin is selling a lemon.

Therein lies our foe. There have been countless political figures in the past and present that have 'sold a lemon' to the American people. Ever notice how many politicians are either very successful busienss people, lawyers, or both? One may argue management skills or wisdom, but is it really? Or is it just a matter of who has the best spin to sell the lemon? We, as citizens of the U.S. And the world have a duty to declare “War on Spin” and start looking at the truth.

G.J.S. aka Schmitty

Cataracts A class action waiting to happen

CAJA, Citizens Against Judicial Abuse, about which more will soon be written, lord willing

Homicide - To Address the question about “criminal negligent homicide” from a reader. In the Maryland Criminal Code, a murder is in the first degree if it is a “deliberate, premeditated, and willful killing.” A murder that “is not in the first degree is in the second degree.”

In the Virginia Code, unintentional killings are further defined. So that one whom “unintentionally causes the death of another person, is guilty of involuntary manslaughter.” And, “If, in addition, the conduct of the defendant was so gross, wanton, and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter.”

NB. It's late but I hope it helped.

Abuse of Power: A Tall Texas Tale

One could simply write a story about being in prison without mentioning how one got there. But that would leave far too many questions unanswered. So, one should devote a few words to the preliminary how before going on to the what of having been there. Call me Ishmael, but don't call me late for dinner. My wife and I were threatened with jail, and I was actually wrongly convicted by a couple of big words called inducement and coercion, so that I was wrongly imprisoned -- that's right, wrongly imprisoned -- for five years. My story is fearfully more common than any of you would care to believe. At least, that is, if you are not from Siberia, or Mars. The American Gulag is only just now in the process of discovery: Guantanamo Bay, Cuba; the suspension of Habeas Corpus; policies permitting torture and renditions – and the invasions of privacy, proliferation of registries, of sex offenders living under bridges -- all mere symptoms of the end of empire. Th'ar she blows!

The events that resulted in this travesty and my personal miscarriage of justice follow.

I.

The nightmare began when my wife over-reacted one Friday night in October. Over-acted might have been closer to the truth. We had just moved to Houston, Texas, and nobody knew us from Adam, or so any ordinary proverbial “reasonable” man or woman would have thought. What I'm saying is this: how could anybody, no matter how evil, hold a grudge for over twenty, much less thirty years – oh yes, evil exists.

I ran into Harriet that Autumn and she seemed to know a little too much about me than a stranger should, by rights, but then she was no stranger—as it turns out, I just didn't know it. Our thread wanders already.

By setting out in a snit to take the children to a nearby hospital emergency room at the hour that she did, Faith, my wife, could not have realized the opening which that ill-fated act would present for certain unscrupulous and mean, lazy and truly crazy foster care people and the police. The other major players in this story are the prosecuting attorneys, and being the good lawyers that they are they did no more or less than any other lawyer, which is to say, whatever the politics of the situation demanded, as well as whatever the client or superior who paid the salary or retainer or completed the personnel evaluation -- as the case may be -- told them to do and not what a proper investigation, and the evidence, would have led any truly honorable person to do. Aside, did you know that they used to call the legal profession the honorable profession? Ah, the “village people,” Faith called them. That would be Rice Village, I suppose. Not to bring any dishonor upon that venerable institution of higher education, Rice University after which the Village is named. Oh, did you know the venerable AG Gonzalez went there? So anyway, it was 10:00 p.m. on a Friday night in October: too close to Halloween for comfort if you are superstitious or anything like that. I'm not. Back, back ... to our story.

Faith was extremely, and I do mean extremely, in a paranoid and psychotic kind of way, p o'd at me for having drank too much, and yes, I had imbibed a bit much but that was all. Well, I did have the stereo playing pretty loud. It was Beethoven. But after all, it WAS Friday night. And I had been alone. That's when it happened.

Faith and the girls came home around eight. Nancy and Kris and I were goofing around in the living room and the next thing I knew N came in and said, “Dad, did you touch K?”

“What are you talking about?” I said, puzzled.

She left for a moment and came back and said, “Dad ... I think you're in trouble.”

And Faith came into the room demanding to know WHAT HAPPENED, and accused me of something terrible, of something that I had not done. Something which I vigorously denied immediately. To no avail then. Or ever.

And so that's how they left the house that Friday night in October. Nancy had been in the room the whole time with K and me. She knew something was not right and protested vigorously about going to the hospital. More than me. Me, who probably said something stupid like, “fine, nothing happened, so go ahead.” Little did we know what evil fruit that innocent effort to ascertain WHAT HAPPENED was to bring to bear upon us. Or was that effort quite so innocent? Water under the bridge.

Alas, in any event then, when they got to the E.R. this whole thing just happened. The entire family, Mom (Faith), big sister (Nancy) and “victim” (Kristin) were literally forced, coerced, threatened and made to wait into the wee morning hours, and consequently became completely sleep-deprived before anybody even looked at them. Topping that, they were threatened and told not to leave or they would all be arrested. All of this, simply because Faith had been curious, or furious or both.

Which is to say, what had our five-year-old, Kristin, said? And had she been completely truthful in what she had told Faith. Faith, obviously, who was a grown woman, a mother by choice, and not sexually naïve. Not in contrast to Kristin certainly, who was just getting ready to turn six. Faith immediately thought the worst. The worst, of course, about which Kristin absolutely could not have had any clue. The worst, which alleged happening, if mom had given even an ounce of thought to it at the time, could not, objectively, have occurred given the contemporaneous and immediate readily observable, facts. Facts that a simple and common sense visual investigation among girls could have readily revealed. Period. Which fact, later, actually did become evident to Faith, but by then it was already too late.

I, on the other hand, despite my relatively pickled condition knew at once, because of my experience as a lawyer in a previous life, that what our precious little daughter had done then and there was to allege that a rather serious criminal infraction had occurred and that I committed it. Even a touching, no matter how slight, is a serious matter these days. The first year law student will learn that just a slightest touch might constitute “assault and battery” according to something called “common law.” They call it common because being unwritten and not “statutory” or legislated it is judge-made and simply handed down from the bench over time. Judges at one time had a lot of power. They still do.

To Be Continued ...

As always your comments are important to me, are encouraged, and will be published in my discretion. Keep them coming! I welcome any and all special interest “scoops” and stories--confidentiality is assured. My pub is not “legal advice” -- it is strictly informative and, hopefully, entertaining. Your subscription dues are even more important to me (just kidding! But it's true). I need $$$ in order to keep reaching out, especially to the indigent guys who really can't even afford a stamp—and when I really start to rake in the cash I can actually start doing stuff that real innocence projects do, filing motions and requests in court, and investigating cases. The Innocence Project continues actively seeking funding and partnerships, volunteers, and individuals to serve on the Board of Directors -- IRS 501(c)(3) exemption registration are imminently in progress. Please send your contribution today.

Subscriptions and Donations: Habeas Corpus Institute

928 E A Street, Brunswick MD 21716

A Gold Rope & Brass Ring Enterprise

Publisher and Editor: “Major” Mori Goodbar

Weblog, current, and back-issues of Z--The Legal Monthly at http://zlegaltimes.blogspot.com/

301-591-2490

Free to indigent prisoners (and free download) Subscriptions: Twelve dollars per year

Z

The Legal Monthly

Vol. 2 No. 6 Read Z the Blog at http://zlegaltimes.blogspot.com/ July 2007

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

Contents

From Z Editor

Quarterman v. Nelson

Habeas Corpus

Scooter Sentenced, Appeals

Genarlow Sentence Vacated

Nifong on Trial

Thunderhorse, et. al. vs. Owens, et. al waiting Certification

Registry, Restrictions and Recidivism

Amicus from Ohio: restrictions

Bloodsworth's Case

Subpoenas issued in Justice Investigation over Firing

Sex Makeover

Still in Hot Water: Race to the Bottom or, Will the Frog Ever Jump?

Z Corner Office

All too soon it is that time of the month, to perform the ritual and, as always, there is way too much to say and too little space in which to say it. You will notice June's issue is skipped but the numerical ordering is flawless, of course. Because of some feedback in which I learned that some of Z's letters are not reaching you for up to two weeks I've decided to advance the month so the paper does not appear perennially late. There's precedent for this: I just received my July/August Atlantic Monthly. I guess they actually take off a whole month and pick up in September, writing in August fresh from Cape Cod vacations (or wherever Yankee Liberal establishment types go). Speaking of which, Senator Hilary is definitely going to be our next president and Edwards, VP.

Even Republicans are concurring. They've already thrown GWB over the side and there's no turning back. Romney, Thompson and the rest don't have a chance. Nope, you heard it first here. All because of our misadventure in Iraq and stupidity. It's Humpty Dumpty all over again, shattered and can't be fixed. Egg on face, scrambled, FUBAR, etc. Do call in the Snipers: History Channel has an awesome special.

Global Warming, Immigration, Trade, Prison and ReEntry issues are heating up the atmosphere, in which CO2 is a big culprit, and it's not just coming from talking heads.

Gasoline prices have never been higher.

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

Independent investigator Michael Bromwich outlined a series of steps officials should take to determine what role blood-typing and DNA evidence played in securing convictions against as many as 600 defend-ants including 14 already executed, whose cases were processed at the Houston Police Department's crime lab between 1980 and 2002. Police Chief Harold Hurtt, Mayor Bill White and Harris County District Attorney Chuck Rosenthal agreed that hundreds of cases will require further scrutiny and possibly new testing, but they rejected Bromwich's suggestion that a "special master" be appointed to oversee the process.

The $5.3 million investigation of the lab, where bad management, undertrained staff and inaccurate work -- first exposed 4 1/2 years ago -- has cast doubt on thousands of convictions and unsettled the criminal justice system in Houston and beyond. In the absence of a "special master," the committee of community representatives that oversaw Bromwich's investigation, known as the stakeholder committee, will check on progress. The committee's presence, coupled with assistance from nonprofits such as the Innocence Project to represent defendants' interests, eliminates the need for an independent supervisor of the serology review, Hurtt said. Barry Scheck, a founder of the Innocence Project, said his group will help but that a special master would be more effective. However well-motivated HPD and the District Attorney's office may be, the Chron editorial puts it well:

Local officials understandably want to put the crime lab scandal behind them now that all the lab's divisions have been certified as satisfactory and are processing evidence. However, hundreds of convicts remain in prison, some more than a decade after trials in which evidence presented might have been erroneously tested. Many no longer are represented by lawyers and will need more assistance than a small advocacy group such as the Innocence Project, with limited resources, can swiftly provide. ZNB: Nice try guys, but the blame ought not fall only upon DNA sampling. Think: it is outrageous miscarriage of justice that the DNA is all going the wrong way? Nope. Did it ever exonerate the wrong guy? Of course it did. Every time. The innocent got convicted only when the guilty went free. That this could happen continuously for years means that the DNA guys were just dupes, following in the footsteps of the real culprits, lazy incompetent police and indifferent lawyering by City, County and State prosecutors. Policy at the top set the tone for this.

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

It's not that it's impossible for this to work without there being an outsider in charge, as the example of Dallas DA Craig Watkins shows. Watkins is basically an outsider, just one who has since gotten himself officially embedded. He has a mandate for what he's doing that neither Rosenthal nor Hurtt have. Let a special master get this done. It really is the best way. [Grits has more and more on this. The final report itself is available here (PDF).]

Off the Kuff: April 18.

Lisa Falkenberg, one half of a duo filling in for Rick Casey while he's off doing whatever it is that he's doing right now has a comparison of how Dallas County DA Craig Watkins and Harris County DA Chuck Rosenthal deal with claims of innocence. The ending sums it up nicely:

How can it be ethical to acknowledge the possible incarceration of innocent people and then do little to find and free them?

I admire Rosenthal's compassion for victims; he says he decided long ago that if alleged rape victims braved stigma to come forward, he would stand by them until evidence proved otherwise. Why not the same compassion for victims of incompetent counsel and mistaken eyewitnesses? Rosenthal should follow Watkins' example in Dallas: Throw open his doors to the innocence attorneys and allow them to test whatever evidence exists in disputed cases. He has nothing to lose, except his pride, but much to gain. For every innocent person in prison, there is a murderer or rapist who escaped justice.

Kuff says, “Couldn't have said it better myself. Watkins has the benefit of a save everything policy that has aided the efforts of those who seek to overturn past convictions, but there's no reason Rosenthal can't institute a similar policy, if such a thing were to interest him. Needless to say, I wouldn't count on that happening.” and, Feb 21:

I loved this profile of new Dallas County District Attorney Craig Watkins that ran in yesterday's Chron. It's truly refreshing to see a DA who's more interested in getting it right than in racking up statistics. When DNA evidence exonerated James Waller last month, freeing him from the crushing and false accusation that he raped a 12-year-old boy in 1982, newly installed District Atty Craig Watkins was in the courtroom to express his regret. "When you send someone to prison for something they didn't do, you go down there and apologize, and you don't let it happen again. I don't want to be apologizing 20 years from now," Watkins said in an interview last week. [Prior DA Henry] Wade prided himself on a high conviction rate and stiff sentences, but along with the office's hard-nosed reputation came accusations of a win-at-any-cost attitude and a history of wrongful convictions that shadows it to this day. In addition to Waller, 11 others have been exonerated since 2001 through new DNA testing, more than in any other U.S. county. Nine of those date to Wade's administration. "I'm not part of that failed system," said Watkins, who twice tried for a job in the office. "I'm fresh. I have nothing to protect."
Here's the thing: Truly being "tuff on crime" necessarily implies a strong commitment to take injustices, both past and future, seriously. Every time the system, through neglect, incompetence, disregard for due process, or just plain bad luck, locks up a James Waller, it's not just putting an innocent person in prison. It's leaving a guilty person on the streets to keep doing what he or she has been doing. Every James Waller represents a tolerance for and an indifference to the crimes that will be committed and the people that will be victimized by the person who should have been punished but wasn't. Fighting to keep a James Waller in prison in the face of real excuplatory evidence for whatever the reason isn't being tuff on crime, it's being myopic and pigheaded about it. Watkins doesn't just get this, he knows how to communicate it:

In his first weeks on the job, he has worked to assure a skeptical public that his new approach does not mean he is soft on crime in the nation's most crime-plagued major city. Watkins said he is seeking the death penalty in the retrial of Thomas Miller-El, a case that shed light on the office's one-time practice of excluding minorities from juries.

Miller-El was sentenced in 1986 to die for the robbery and murder of an unarmed Irving motel clerk, but the U.S. Supreme Court overturned the conviction in 2003 because the jury selection was "suffused with bias."

"This person who killed two people heinously, who should have been dealt with a long time ago, he's getting a break because those prior administrations didn't see fit to do it right," Watkins said as he leaned over his desk in a spare office, its walls filled with bare spots and empty picture hooks. "We're going to do it right." Hey, this Watkins guys must be pretty smart.

Habeas Corpus

Although the very point of habeas corpus is to review the facts, literally “produce the body” in Latin, this is no longer true. Federal habeas has become a paper chase, a game of how law clerks dream up ways to dismiss without actually getting to the substance (facts tending to show the conviction is infirm) of the claim, a game which all good lawyers play regardless of the kind of case whether civil or criminal. That is why it is called “civil procedure” and “criminal procedure”. The only difference is that some states courts would reach the substance sooner, but because of the removal of teeth from federal habeas the states have become increasingly reluctant to take a serious cut, knowing their decisions will be deferred to in nearly every instance. Here is the ace, taken from an earlier Z blog post:

The Constitution and a law that spells out the reach of habeas corpus sparked an exchange between Attorney General Alberto R. Gonzales and the senators. Although everyone -- including, apparently, the attorney general -- agrees the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right. The senator incorrectly said the Supreme Court had already ruled the Constitution protects the habeas rights of detainees at Guantanamo. Gonzales responded by suggesting the Constitution does not protect habeas corpus at all.

"The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away," he said. [nb. Boy, talk about offering a mile and taking an inch...] "Now, wait a minute," Specter interrupted. "The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus?" (excellent point: you can't take away what you never had, or ... maybe, if anybody can, the “top cop” would figure out a way to do that).

Lawyers delicately tried to explain what the attorney general meant. "This didn't come out as cleanly and crisply as we might have hoped," said one, who spoke on the condition that he not be identified. "The question is not whether Americans have a right to habeas corpus. That is undisputed. What's at issue is the scope of the right."

Mushy shit, this business about habeas & scope. Yes, even federal judges can get it wrong: Observe for yourself, U.S. V Allen, (10^th Cir. May 31, 2007) (No. 06-6111) here, how easy it is to make unreasonable decisions in cases involving uncharged (sex) offenses. It seems, the very thought of a sex crime drives otherwise rational individuals to extremes of irrationality, if not unreasonableness (oooh nooo, not that). Equally interesting is the interaction between uncharged, conduct unrelated to the offense and sentencing.

Quarterman v. Nelson (docket 06-1254). The fililngs in the case are linked in this post.

The Court, according to its docket, considered the case at its Conference on Thursday (June 14), and thus could issue an order on it as soon as Monday. Since 2002, Nelson's lawyers have been pursuing a federal habeas challenge, with emphasis on his claim that the jury in his case did not have a chance to fully weigh defense evidence of a mental disorder, abusive childhood and substance abuse history. The claim relies primarily upon an intepretation of the Supreme Court's 1989 ruling in Penry v. Lynaugh, and the Court's later discussions of the scope of the Penry ruling. The Fifth Circuit, in its en banc ruling in December, read those precedents in Nelson's favor, nullifying his death sentence. The Circuit Court majority concluded: "At the time that Nelson's conviction became final, the Supreme Court had clearly established that the relevant inquiry is whether there was a reasonable likelihood that the jury would interpret the Texas special issues in a manner that precluded it from fully considering and giving full effect to all of the defendant's mitigating evidence."

Scooter Sentenced, Appeals

Will report for 30 month sentence at BOP.

Genarlow Sentence Vacated

But not released pending state's appeal.

Nifong on Trial Interesting to watch prosecutors making the arguments against the former prosecuting atty in special Saturday session today (June 16), the one who brought the Duke “rape case.” Rare to see one of their own prosecuted. That said, they did a nice job concerning inflammatory statements about “the accused”. Another issue was the withholding of the exculpatory DNA tests. Justice has two faces: one that gets you and one that saves you. Unfortunately, the one that gets you is a whole heckuvalot bigger and badder than the other. Will this never change? I am hopeful that the thumb should be released from the weights on the side of the scales of death, and can't help feeling satisfaction from Nifong's overreaching brought to justice. If the defendants had not been wealthy he would probably never have been caught. Sad, isn't it? Perhaps, prosecutors will be more careful in the future. A lot of damage has already been done to the credibility of “the system” and it isn't getting any better.

Waiting Certification of Class

According to the update of 23 March 07 the class has not yet been certified. Not everybody will have a claim in this action, however, it bears watching. All persons eligible for parole are potentially affected. Here is a letter from a former inmate that can be found on the website of Atty Norm Sirak, “Fixtexasparole.com”, who filed the case:

All people make mistakes. No one is exempt from error in their lives. When a bad choice takes place in one’s life, consequences soon follow. Unfortunately, some mistakes are illegal and the judicial system has a duty to invoke punishment so that a debt to society is paid.

When I committed my illegal mistake, consequences followed. At sentencing, my judge boldly stated that I would do six flat years. Twelve flat years later; four set-offs; four parole attorney’s, and $12,000.00 in the red for litigation fees it became blatantly apparent that being a model inmate, with two college degrees and high dollar lawyers, was not the formula the Texas parole board was seeking for a rehabilitated offender. I was slapped in the face with the hand of reality that in the eyes of the parole board, there was no winning formula for being a rehabilitated inmate in Texas. In fact, rehabilitation didn’t matter at all. My judge wrote letters (plural) recommending my release. Those letters fell on deaf ears at the parole board. The Texas parole board had taken the liberty to transition themselves into my “new” judge, jury, and sentencing team.

My true sentencing judge, my trier of fact, said I would do 6 flat years. But, the parole board flagged my file, determining that I would do 20 flat years. Luckily, a legislator found this out; but, would not come forth because it would cause too many waves in political arenas.

There were things in my parole file that were incorrect. But, no one in administration would take the time to verify the facts and correct the errors. Writs of habeas were filed and dismissed. All of my set-offs were for the nature of offense and criminal histor, two denial reasons that I couldn’t change or improve upon. My hope diminished as each year passed me by. My children became adults and my parents aged rapidly from worry. As for me, my debt to society was working in overtime mode and my payment was no where to be seen.

For prisoners, there is very little hope in a captive environment. However, when I read the offender funded Complaint filed by Attorney Norman Sirak, hope swelled like a beacon in the night. This class action lawsuit addresses the multi-faceted issues of parole board abuse. Some of the issues raised are: 1) good time and work credits, 2) the modification and alteration of trial court findings in a prejudicial manner, 3) involuntary servitude, 4) due process violations, and 5) ex post facto claims. Finally, someone has gotten their arms around the illegalities of the Texax Parole Board’s mode of operation. And, finally, someone is willing to take these issues head on. Thank you, Attorney Sirak!

(The offender funded class action lawsuit was filed on December 5, 2005, in the U.S. District Court, Western Division, in Austin, TX. The case is captioned, “Thunderhorse, et. al. vs. Owens, et. al.”. The case number is: A05CA1009SS. The Judge is the Honorable Samuel Sparks.)

Registry, Restrictions and Recidivism: Visions from the Old School Archipeligo Pennsylvania is considering "Robin's Law" for persons convicted of a crime of domestic violence. The trend of naming a law based upon an unusual crime victim continues. Professor Berman tentatively supports the idea based upon the success of sex offender registries in aiding law enforcement. I've always been a bit torn about registries. I think registries as a law enforcement tool are an entirely sensible idea. However, I think community notification provisions and universal access to registries has really created some significant negative effects for these laws. And as states consider creating registries for other crimes, I think it is important to remember that the private effects of notifying the public about every registered crime are significant. Convicts struggle to reintegrate into communities due to vigilantes, difficulty gaining employment, and problems with stable housing. Notification tends to exacerbate these difficulties. So while I think registries are generally a good idea for law enforcement (and limited private uses), the community notification provisions that necessarily follow tend to increase the drawbacks to these laws. Jun7. Sex Crimes blog.

Amicus from Ohio: restrictions

This link to an amicus brief that was sent to the Ohio Supreme Court. Here is a portion of the brief discussing the way in which the statute may increase recidivism:

Additionally, the Ohio statute may increase the risk of recidivism by forcing many sex offenders to move from supportive environments that reduce the offenders' risk of re-offending. See, e.g., JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY (2003) (concluding that positive social support is critical to the success of released offenders.). In Mr. Porter's case, he and his wife lived in their home for fourteen years. Mr. Porter lived with his family and was well established in his community. In forcing Mr. Porter to vacate his residence, the State requires him to leave much more than the physical location where he lives, it asks him to leave the support network and potentially his source of services. Such phenomenon is seen throughout the country as sex offenders are required to leave their homes in the face of residence restrictions.

Ohio has been a key battleground state in the courts concerning residency restrictions. The lower-level appellate courts have entered several opinions about the legality and constitutionality of residency restrictions. We should all be very interested to see how this Ohio Supreme Court case turns out. SL&P blog

Kirk Bloodsworth's case was the first capital conviction in the United States to be overturned as a result of DNA testing. Kirk, a former Marine and crab fisherman with no criminal record, was convicted of the rape and murder of a nine-year-old girl and sentenced to death in Maryland in 1984. In 1993, after years of fighting for a DNA test, state and federal labs concluded that Kirk's DNA did not match any of the evidence from the crime scene. By the time of his release, Kirk had spent nearly nine years in prison, including two on death row. Today, as a Program Officer for The Justice Project, Kirk travels the country telling his story, which serves as a powerful illustration of the systemic failures within the criminal justice system that can and do lead to wrongful convictions of innocent people.

John F. Terzano, President of The Justice Project, facilitates national and state criminal justice reform by fostering a dialogue among policymakers, practitioners, legal organizations, local law enforcement agencies and others around recommendations that will enhance the fairness and accuracy of our nation’s criminal justice systems. John has worked on issues of social justice for more than twenty-five years both here and abroad. The dramatic story of Kirk’s 20-year journey is chronicled in the best-selling book “Bloodsworth: The True Story of the First Death Row Inmate Exonerated by DNA” written by attorney Tim Junkin, who will be appearing along with Kirk and John. A book signing will also take place following the event. Additional background materials on Kirk’s case can be found on the Justice Project website.

SEX MAKEOVER

AT least since Ovid, sex has been the theme music in much of Western literature, played at variable volume in all its many keys: sex as fate, as fun, as tedium and emotional torture, as stand-in for religious devotion and, until not that many decades ago, as the fastest way in fiction to lose honor, home and head. Lately, though, it seems that a slight virginal breeze has been blowing through the worlds of publishing, theater and Hollywood. Poet Philip Larkin (“Annus Mirabilis”) established sarcastically: Sexual intercourse began / In nineteen sixty-three / (Which was rather late for me) / Between the end of the Chatterley ban / And the Beatles’ first LP. There is a sense that these recent artistic creations are partly a response, maybe partly unconscious, to the current state of sex in our society, where it can often feel like just another form of the cheap entertainment and distraction that now pushes in from all sides. That impression is fed by proliferating cable channels and the Internet, where the leak of the latest celebrity sex video already seems like a weary ritual, not more much momentous than the latest short-lived reality series.

sociologist Alan Wolfe, who has conducted hundreds of interviews over the last two decades for books about the country’s beliefs and politics, said he saw a reflection in such works of the way people seem to struggle now for a greater sense of societal structure. “They do want to go back to a more conventional sexuality, morality, whatever,” said Mr. Wolfe, director of the Boisi Center for Religion and American Public Life at Boston College. “But they do not want to go back to an era of repression. So a kind of muddled, middle position is where it seems to me that most Americans are these days.” NYT

Still in Hot Water: Race to the Bottom or, Will the Frog Ever Jump? [White Collar Crime Blog] The "no confidence" motion on Attorney General Alberto Gonzales may have just whetted the appetite to pursue the investigation of the firing of nine U.S. Attorneys in 2006. The House and Senate Judiciary Committee chairmen launched subpoenas to two former senior aides to President Bush, former Counsel to the President Harriet Miers (here) and former Director of Political Affairs Sara Taylor (here), to discuss their roles in the decision. The subpoenas are for documents and testimony, and the White House also received a document subpoena. Taylor is supposed to appear before the Senate Committee on July 11, and Miers before the House Subcommittee on Commercial and Administrative Law on July 12 -- each Committee gets its moment in the spotlight, apparently. Bush aide Karl Rove has not been subpoenaed, but that too may be in the offing. A letter from White House Counsel Fred Fielding warned the Committees again that sending subpoenas would not be a welcome development. His letter (here) concludes, "[I]t is our strong hope that the Committees will not feel compelled to elevate the stakes by pursuing the path of subpoenas and compulsory process referrer to in your recent letters, which will only prolong this debate . . . ." Senate Committee Chairman Patrick Leahy wrote back to Fielding in a cover letter to the document subpoena (here) stating: The White House cannot have it both ways -- it cannot withhold documents and witnesses and thereby stonewall the investigation and, at the same time, claim that the facts about the White House’s improper influence over federal law enforcement have not been revealed in detail. The White House’s continued stonewalling leads to the obvious conclusion that the White House is hiding the truth because there is something to hide. Because the White House has continued its refusal to provide the requested information to the Senate Judiciary Committee on a voluntary basis, I am issuing subpoenas." That sounds like the gauntlet being thrown down by Congress. Former interim U.S. Attorney Bradley J. Scholzman, who took the place of the ninth fired U.S. Attorney, Todd Graves, in the Western District of Missouri, sent a letter (here) to the Senate Judiciary Committee clarifying a misstatement in his recent testimony. Scholzman testified about the prosecution of four members of a liberal voter registration organization called ACORN that was filed right before the 2006 election, and said that he had been "directed" to file the case by an career official in the Elections Crime Branch of the Department of Justice's Public Integrity Section. In his letter, Scholzman writes, "I want to be clear that, while I relied on the consultation with, and suggestions of, the Elections Crime Branch in bringing the indictments when I did, I take full responsibility for the decision to move forward with the prosecutions related to ACORN when I was the interim U.S. Attorney." Yet another Emily Litella moment in the U.S. Attorney imbroglio.

*************************

As always your comments are important to me, are encouraged, and will be published in my discretion. Keep them coming! I welcome any and all special interest “scoops” and stories--confidentiality is assured. My pub is not “legal advice” -- it is strictly informative and, hopefully, entertaining. Your subscription dues are even more important to me (just kidding! But it's true). I need $$$ in order to keep reaching out, especially to the indigent guys who really can't even afford a stamp—and if I really start to rake in the cash I can actually start doing stuff that real innocence projects do, filing motions and requests in court, and investigating cases. The Innocence Project continues actively seeking funding and partnerships, volunteers, and individuals to serve on the Board of Directors -- IRS 501(c)(3) exemption registration are imminently in progress. Please send your contribution today.

Subscriptions and Donations: Habeas Corpus Institute, c/o Prison Innocence Project

928 E A Street, Brunswick MD 21716

A Gold Rope & Brass Ring Enterprise

Publisher and Editor: “Major” Mori Goodbar

Weblog, current, and back-issues of Z--The Legal Monthly at http://zlegaltimes.blogspot.com/

301-591-2490

Free to indigent prisoners (and free download) Subscriptions: Twelve dollars per year

Z

The Legal Monthly

Vol. 2 No. 5 Read Z the Blog at http://zlegaltimes.blogspot.com/ May 2007

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

Contents

Story of a Moray: Aristides according to Plutarch

New USSC Cocaine Report

Supreme Court Prisoner Litigation

Habeas: Back to Basics: AEDPA and Clearly Established Law (?)

Abdul-Kabir v. Quarterman and Brewer v. Quarterman

Meddling Thru Presidential Powers: Medellin

The Military Prisoner cases: Boumediene and Al Odah

Criminal Causes: James and "Violent Felony"

Civil Rights: Adam Walsh

Top News Update

McNulty, Number Two Man at Justice, Resigns

AG Gonzalez and White House strong-armed former AG Ashcroft

Report on Prisoner Reentry Issues

Modus Operandi: More Texas "justice" ...
Prison Upgrades: Will Texas Get With the Program?

A Story of a Moray: But Aristides, who was the principal man of Greece, through extreme poverty reduced some of his to get their living by jugglers' tricks, others, for want, to hold out their hands for public alms; leaving none means to perform any noble action, or worthy his dignity. Yet, why should this needs follow? since poverty is dishonourable not in itself, but when it is proof of laziness, intemperance, luxury, and carelessness; whereas in a person that is temperate, industrious, just, and valiant, and who uses all his virtues for the public good, it shows a great and lofty mind. For he has no time for great matters who concerns himself with petty ones; nor can he relieve many needs of others, who himself has many needs of his own. What most of all enables a man to serve the public is not wealth, but content and independence; which, requring no superfluity at home, distracts not the mind from the common good. God alone is entirely exempt from all want: of human virtues, that which needs least is the most absolute and most divine... [Plutarch's Lives, The Comparison of Aristides with Marcus Cato]

The Newest QA: SL&P May 15--

The new USSC cocaine report provides so much to discuss (basics here), I am not sure where to start. In the hope generating a lawyerly debate, I'll start with these provocative questions:

1. Should the Justices now just simply remand the Claiborne case — which concerns the reasonableness of a below-the-old-crack-guideline sentence — to the Eighth Circuit for reconsideration in light of the new USSC report and amendments?

2. Should the Justices request letter briefs on this issue from the parties and/or should Claiborne's lawyer or the Solicitor General request a remand?

One Very Interesting Criminal day in SCOTUS--Wednesday, April 25, 2007, the Court released opinions in three criminal cases, Smith v. Texas, Abdul-Kabir v. Quaterman, and Brewer v. Quarterman.
Major Question: Reach of Presidential Power: Monday, April 30, the Supreme Court granted cert. in Medellin v. Texas, which raises a major question about the limits of executive power. Last November, Texas' highest state criminal court ruled that the President did not have the authority to direct the state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S. In January, Medellin's lawyers filed a new appeal to revisit the issue.

Back to Basics: AEDPA and Clearly Established Law (?)

Here is “Righty” Kent Scheidegger on Landrigan: (Crime & Consequences, May 14):

Today's decision in Schriro v. Landrigan notes, correctly in my view, that the habeas reforms of the Antiterrorism and Effective Death Penalty Act of 1996 must be interpreted bearing in mind the purpose of Congress to shorten the very lengthy reviews of capital cases (Oh, yeah, let's just execute them all, quickly and quietly—in fact, we don't need to have trials for this, much less fair ones). One of the most important issues to decide in the early stages of federal habeas review is whether a redetermination of facts is required. If the state court has already found the facts (oh, yeah, and the lawyer was fast asleep, btw, AND, he was the biggest fuck-up in Texas too, to boot, if that's possible) and the federal court need only decide if the application of law to those facts is "reasonable," the proceeding can be considerably streamlined (yeah, that's really reasonable). Today's decision says, "Because the deferential standards prescribed by §2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate." (A what? Do they have those in Texas? In the continental U.S and/or its possessions and territories, inclusive of Iraq? Look out Venezueala, you're next, and everybody is watching Iran? Ha!!)
If the case was decided on the merits (on what? That word is not in the vocabulary grasp of most state court and lower court judges) by the state court and neither the factual findings nor the application of the law to those facts was unreasonable or contrary to Supreme Court precedent, the federal case is over. See 28 U.S.C. §2254(d). So, what should a district court do when the state court has made a factual finding (AND not the finding that the lawyer was sleeping, unscrupulous, a thief, or anything like that) that absolutely negates the petitioner's claim? "It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Proceeding with a hearing in such a case would defeat the purpose of the reform.

This principle accords with AEDPA’s acknowledged purpose of “reduc[ing] delays in the execution of state and federal criminal sentences.” [Citations] If district courts were required to allow federal habeas applicants to develop even the most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts. With these standards in mind, we turn to the facts of this case.

The finding by the state habeas judge (who was the original trial judge) that Landrigan waived all mitigating evidence was a stone-cold claim killer (Really, a gem). "If Landrigan issued such an instruction [not to offer any mitigating evidence], counsel’s failure to investigate further could not have been prejudicial under Strickland." The Ninth Circuit brushed this aside with the astonishing claim that the judge had taken out of context the colloquy she had personally conducted.
If the finding of fact in this case does not preclude relitigation on federal habeas, it is hard to imagine one that would. Limiting relitigation is what AEDPA was all about. (No, let's cut to the chase here—why bother with any sort of appellate review at all, then, when lower courts are always correct in their factual findings? Law and procedure matter nought. Ahh, but that's exactly how they used to string 'em up, by the neck, you know, bulging veins and all).
It is disappointing that the dissent got four votes in this case. Apparently, four Justices were actually impressed with Landrigan's far-fetched psychological argument. There are enough psychologists and psychiatrists in America who are viscerally opposed to the death penalty that it is likely every inmate on death row can find one who will swear he has some kind of serious mental problem (naturally, this is the kind of bullshit the righties love to use—of course their own experts are always on the up and up ethically speaking and never grind their axes). If that were enough to brush aside all the limits Congress has placed on relitigation, then it would never be possible to have an effective death penalty. That is, of course, exactly what the opponents want. (Naturally, then we could get to all of the other cases of travesties of justice not involving capital punishment—no we've gotta have the dp to suck up all the judicial resources possible for as long as possible—there is no way around it). All their other arguments having failed with the American people, they seek to convince the people that reform is hopeless, and that capital punishment will forever be bogged down in endless appeals. The New Jersey Legislature might actually buy this argument. Hopefully, reforms will bear fruit in enough states to disprove the claim before any other state legislatures do.

Justice is Just One Vote Away, Just a Vote Away...

Here is my favorite comment from the barrel at Orin Kerr's post on the week's (April 25) death penalty cases:
All Penry relief is collateral. If there is not something in Penry that is "clearly established," Penry has no meaning at all, since it is not a claim that can be asserted on direct review. Indeed, whatever you might "think" about the clarity of the law, the court has decided several penry cases under 2254. There is established law there. Maybe you agree with the variety of Supreme Court decisions to the contrary, but then you just don't really care about precedent and there's not much to say.
I wouldn't get too sidetracked about this "congress has no business" argument. That's just not the issue, and it would be a disservice to the majority to act like that is the holding.
The law here is close - but it's close on the question of what is clearly established. Yes, it is "confused," but not in the traditional sense that it is confused on the straight-up merits question.
People like Kent S. would like to have everyone believe that just because it is not clear what is clearly established, that this is sufficient ambiguity to bar relief. This is, of course, ridiculous. There's no logical limit if you are going to stack "clearlies." Does the law have to be clearly established, or does it have to be clear what is clearly established. How about clear about what is clear about what is clearly established.
The "mess" was all about what law was clearly established, so you can't circularly cite confusion as to what was clearly established as a reason for holding nothing is clearly established at all, if 2254(d)(1) is ever to mean anything.
Also, the Texas Court of Criminal Appeals is simply off the reservation. For those unfamiliar with the way they do business, it's a real eye-opener. I think the Fifth Circuit sometimes gets a bad rap because they're applying deference to a state court that already delivers the most lazy, cryptic criminal opinions in the country. All righteous anger about federal interference in state adjudication sounds truly absurd if you have state adjudications that lack any indicia of reliability.

AND HERE are persuasive reasons why the dissent(s) are discombobulational (my word! Still working on getting supercalifrag...in proper context--Chief Justice Roberts wrote a vigorous consolidated dissent in the two cases-Abdul-Kabir v. Quarterman and Brewer v. Quarterman, that accused the majority of being "revisionist" in light of AEDPA's deferential standard. According to Roberts, the majority was fudging the AEPDA standard to provide relief)

[OK Comments: C.F.W., I don't understand this comment. So in your view, the Supreme Court's job is to follow statutes if and only if the Justices believe that Congress "has business" in passing the law? I suppose I'm not surprised that Roberts missed that.]

Roberts wrote a dissent, and knew how the AEDPA came about - from Lundgren in CA trying to work around 9th Circuit cases. The idea was to put a thumb on the scales of justice - in favor of death. A good federal courts professor would have given a C to a student who did not at least mention what is wrong (or questionable, and possibly unconstitutional) about the structure of the law - making the circuits and district courts irrelevant as creators of precedent.

cfw: how was it the "key point" in this case that "Congress has no business freezing the law as it was decided by a particular date by the USSCT"? This was pretty much a straightforward AEDPA case, whether you agree with AEDPA or not. In fact, I'm sure the majority would have gladly just ignored AEDPA if it could have, but so long as AEDPA is on the books and not ruled unconstitutional (which was certainly not at issue here), the Court has to abide by it. And so long as it has to abide by it, the majority opinion is awfully implausible.

The dissent is not persuasive unless it at least touches on the idea that telling judges what they can and cannot cite as precedent is unconstitutional (blurring lines between Article III and other parts of the US Const.). The dissent is materially incomplete, and the CJ knows it (from his days as an advocate - or assistant to advocates - in a DP case).

This may be getting just a bit cynical, but why doesn't congress just pass a law saying that only the Tennessee courts, or just pick any state, are the only courts from which precedent can be drawn? Then, of course, we'll pack the TN courts with Supreme Court level justices and "away we go" (Johnny lives on, or was that Jackie?).

"Violent Felony" gets 15 yr mandatory minimum sentence --

(the dissents are always the most interesting and informative--so much for "consensus" -- the five-to-four splits are always the most controversial too). Says Doc Berman:

Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the 5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James. Here is the basic early report from SCOTUSblog on James:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

UPDATE: The James opinion runs 44 pages total (including the syllabus). Here is the dissenting line-up: "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion." Why can't my printer go faster!!

Doc Berman (the GREAT): Thursday, April 19, 2007

Other Stuff of Interest: (from How Appealing and Howard Bashman--again--he's the goto news guy on the blawger-sphere!) "Microsoft Settles Iowa Lawsuit": AP reports, "Microsoft Corp. agreed Wednesday to pay Iowans up to $180 million to settle a class-action lawsuit that claimed the company had a monopoly that cost the state's citizens millions of dollars extra for software products."

and

Gonzalez v. Carhart, (“partial birth” abortion ban upheld) April 18, Justice Anthony M. Kennedy delivered the opinion of the Court, in which the Chief Justice and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr. joined. Justice Thomas also filed a concurring opinion in which Justice Scalia joined. Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer joined.

Although the cases were argued separately (access the oral argument transcripts here and here), the Court disposed of the cases by means of a single opinion.

In his concurrence, Justice Thomas states: "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution." It is worth noting that the Court's two newest Justices -- the Chief Justice and Justice Alito -- did not join in Justice Thomas's concurring opinion.

Following the Court's Stenberg v. Carhart, 530 U. S. 914, decision that Nebraska’s “partial birth abortion” statute violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Roe v. Wade, 410 U. S. 113, Congress passed the Partial-Birth Abortion Ban Act of 2003 (Act) to proscribe a particular method of ending fetal life in the later stages of pregnancy.

Very curiously, Congress responded to Stenberg in two ways. First, it found that unlike this Court in Stenberg, it was not required to accept the District Court’s factual findings. What is so very curious is that the congress which passed AEDPA was so certain that lower court factual findings are nearly always correct as to give them great, if not the greatest, unlimited deference. Of course, with one we are dealing with convicted felons, albeit ones who are claiming to be wrongly convicted, and on the other hand we are dealing with...abortion. Is the fetus worth more than the life of a grownup, possibly wrongly convicted felon? WTF?

Adam Walsh—The first federal sentence for sex offender failing to register: Here's why such laws are such an ineffective waste of time and money (time is money) for Congress, for prosecutors, for police and law enforcement generally. Doc Berman and Corey Yung of Sex Crimes blog report on the first sentence ever under the Act. This case is likely to continue to make headlines (Orlando Sentinel):

With no precedent to rely on, an Orlando federal judge on Wednesday declined to send a New York sex offender to prison under a tough new law that punishes those who fail to register when they move across state lines. Following through on comments he made at Wilfredo Madera's plea hearing three months ago, Senior U.S. District Judge G. Kendall Sharp sentenced him to four years of probation and fined him $500.

At a Jan. 11 hearing before Madera pleaded guilty as part of a deal with prosecutors, Sharp said he was inclined to dismiss the case or give Madera no prison time. Sharp, at the time, criticized the government's case and told Madera he would throw out the case if the felon registered the next day. But an exasperated prosecutor reminded Sharp that he had "no legal standing" to do that and the judge reversed himself, acknowledging his error. He then called the law "constitutional" as written and denied a defense request to dismiss the case.

Madera, who was arrested in October as part of a nationwide crackdown on sex offenders by the U.S. Marshals Service, was the first person in the nation to be convicted under the Adam Walsh Child Protection Act. On Wednesday, he became the first to be sentenced under that law.

Assistant U.S. Attorney Cynthia Hawkins immediately protested Sharp's sentence and said her office will likely take the case to the 11th Circuit Court of Appeals in Atlanta. "The government will object to the sentence imposed as being unreasonable and not taking into account the seriousness of the offense and specifically the defendant's past criminal history," Hawkins told Sharp. Hawkins said a pre-sentence report prepared by the federal probation office showed Madera could have received 24 to 30 months in prison.

Doc Berman reports here, on the first sentence ever under the Act.

Top News Update

More Texas "justice" ... A baffling Texas Supreme Court ruling could make juries irrelevant

by Anthony Zurcher (Texas Observer, May 4, 2007)

The soft drink business in East Texas was a relatively friendly affair when Jerry Dudley started out 40 years ago. Family-owned companies bottled colas and fruit drinks, and sold them to local grocers or mom-and-pop convenience stores. There was competition, but it wasn’t cutthroat. There weren’t international conglomerates trying to muscle you out of the market, and maybe drive you out of business.

But in the early 1990s, that all began to change. Dudley, president and general manager of Harmar Bottling Co. in Paris, Texas, began seeing his soft drinks nudged from prime shelf space—even out of stores entirely—to make way for a competitor’s products. He watched local bottlers disappear one by one, losing the struggle to stay in business.

It got so bad that Harmar and some of his fellow independent bottlers banded together and sued the heavyweights of carbonated beverages—Coca-Cola Enterprises Inc. and Coca-Cola Inc., Pepsico Inc. and Pepsi’s bottler, Delta Beverage Group—claiming that in their zeal to dominate the region’s soft drink market, the corporate titans had broken Texas law by engaging in predatory, anticompetitive business practices.

Pepsi settled before trial. Coke—with its never-say-die litigation strategy—fought the suit. In 2000, after a six-week trial, a jury in Daingerfield, Texas, found Coca-Cola Enterprises—a bottling company 40 percent-owned by Coca-Cola—guilty of breaking state antitrust laws. Although a far cry from the $100 million they were hoping for, Harmar and the other regional bottlers won a $15.6 million judgment. Almost seven years later, they have yet to see a dime.

In late 2006, after sitting on the case for nearly two years, the Texas Supreme Court finally ruled on Coke’s appeal of the suit. By a 5-4 vote, the state’s highest civil court threw out the verdict.

Reversing a multimillion dollar judgment is not out of character for a court packed with conservative judges, six of them appointed by Gov. Rick Perry before winning pro forma elections. But the legal reasoning that the slim majority used to justify its ruling was so alarming—and sets such an unappetizing precedent—that it has spawned incredulity in Texas legal circles.

In effect, the court reviewed the evidence and decided the jury was wrong. It was a remarkable reach beyond the court’s usual exercise of power.

Ordinarily, appeals courts give great deference to a jury’s conclusions. Jurors, after all, are the ones who hear the witnesses, review evidence, and deliberate the case. A court usually has a compelling reason when it decides to disregard the jury’s conclusions.

What that reason might be is not clear in this case. More than a few scholars argue that the state Supreme Court doesn’t have a sound legal principle with which to justify its decision. Worse, they fear it opens the door for other Texas courts to begin arbitrarily tossing aside jury verdicts with which they disagree. If the high court continues on this course, they say, the constitutional right to a civil jury trial could be in jeopardy.

Dudley and the bottlers have asked the court to reconsider its decision, because they’d still like to get their money. Law professors from across the state have joined that request, arguing there is now much more at stake then who sells the most diet sodas in East Texas.

“It’s elitism versus egalitarianism,” says Nelson Roach, who represented Harmar Bottling during trial. “It’s whether or not you believe that ordinary people have the capability to collectively judge the facts of the case. There is a movement that has been very hostile to the rights of juries to make decisions, and this case is part and parcel of it.”

The “Major” can smell the streets of Houston now...the sweet smell of hot asphalt in the morning.

SL&P, April 19. John Pfaff has a fascinating new article that examines the theories and the empirical literature on the forces driving prison growth in the US over the past three decades. The paper is entitled "The Growth of Prisons: Toward a Second Generation Approach" -- Here is the abstract:

Over the past three decades, the US prison population has soared from 300,000 inmates to 1.5 million. In recent years, many scholars have devised rigorous empirical models to try to determine what forces have been most responsible for this impressive growth. This article reviews these studies and finds that all suffer from important shortcomings that limit the extent to which they accurately identify causal mechanisms. The problems are both technical and conceptual. Technically, most studies either fail to control for several significant empirical defects ― such as endogeneity, omitted variable bias, and colinearity ― or so do unconvincingly. Conceptually there are several issues. In some instances, for example, it is unclear whether the variable chosen to test a particular causal theory is an effective or accurate proxy; in others, the theory itself does not appear to be formulated correctly. This article sets forth the problems with the current studies and suggests technical and conceptual improvements for future work.

Let the “Major” just add one thing here, and entirely appropriately, this is precisely why the professors get the big $$$$$$$$$$!!!!!!!!!!

Prison Upgrades Available: Will Texas Get With the Program? So Your'e Going To Jail? What the ***? Upgrades?
The new wave...not for ladies only. Compare this:
“I have never run into this,” said Ken Kerle, managing editor of the publication American Jail Association and author of two books on jails. “But the rest of the country doesn’t have Hollywood either. Most of the people who go to jail are economically disadvantaged, often mentally ill, with alcohol and drug problems and are functionally illiterate. They don’t have $80 a day for jail.”
New York Times ROCKS. Thanks to Jennifer Steinhauer.

Club Fed No More ?

The American has this fascinating piece discussing the imprisonment experience of white-collar offenders entitled "Enter a 'Hellish Place,'" and has this teaser: "Tougher rules and longer sentences mean that prison for white-collar inmates is no longer Club Fed. Prisoner No. 20532-050 tells his eyewitness story to Luke Mullins."

Report on Prisoner Reentry Issues--An awesome new report from the Urban Institute is now available on reentry, thanks to a knowledgeable source who shall remain anonymous (for now. A brief description:
Returning Home is a longitudinal study of prisoner reentry in Maryland, Illinois, Ohio, and Texas based on personal interviews with prisoners before and after their release from prison. Previous reports from the Ohio project examined prisoners' expectations for life after prison and their experiences in the first few months after release. This final report—"One Year Out: Experiences of Prisoners Returning to Cleveland"—describes the lives of nearly 300 former prisoners at least 12 months after release, including their ability to find stable housing and reunite with family, and identifies factors associated with getting a job, and avoiding substance use and return to prison (recidivism).

Kill Death in Texas? SL&P April 15. Though I doubt this development will matter much politically, it still is noteworthy that today the Dallas Morning News has this editorial entitled "Death no more: It's time to end capital punishment." Emphasizing innocence concerns, here is a portion of the pitch:

And that uncomfortable truth [about an executed man's possible innocence] has led this editorial board to re-examine its century-old stance on the death penalty. This board has lost confidence that the state of Texas can guarantee that every inmate it executes is truly guilty of murder. We do not believe that any legal system devised by inherently flawed human beings can determine with moral certainty the guilt of every defendant convicted of murder. That is why we believe the state of Texas should abandon the death penalty ― because we cannot reconcile the fact that it is both imperfect and irreversible.

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