Tuesday, February 13, 2007

Z

The Legal Monthly

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

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


Contents

I. Capital Punishment: Cruel and Unusual

II. Clashing Perspectives On Habeas Corpus in the “War on Terror”--The Constitution versus the Statute

III. Consequences for Habeas of Wharton v Bockting? Teague, AEDPA, and Deference: Snips from Supreme Court oral argument and defendant's brief

IV. The Jones v Bock, Williams v Overton cases: Philosophy and Legal Reasoning in the Supreme Court

A. SCT Moving Right of Center?

B. The Onion's Take

C. Claiborne, Booker and Federal Sentencing--Senators' Brief

D. Adversarial or Inquisitorial? European or American? Boyd, Faulks, Trial Penalties (and federal sentencing)

I brought over a defendant this week who had notified the Court that he was having a problem with his lawyer. When I asked him why he was upset with his lawyer the defendant stood and said, "Judge, he's not lying for me.. he's lying to me." Judge Susan Criss, As the Island Floats (blog) via Grits for Breakfast (Scot Henson's Texas blog--“looks at the Texas criminal justice system and related topics, with a little politics and whatever else suits the author's fancy thrown in for good measure. All opinions are my own. The facts belong to everybody”)

Headshot of Judge Susan CrissJudge Susan Criss is the judge of the 212th District Court in Galveston, Texas. Judge Criss writes about justice and life on an island off of the Texas Gulf Coast. She presides over a court that handles criminal and civil cases. Judge Criss serves as Chairman of the Gulf Coast MHMR Task Force for Jail Diversion for the Mentally Ill. For more information about her see www.judgecriss.com and www.co.galveston.tx.us/judgecriss.


I. "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."

Justice Potter Stewart, Furman v. Georgia (1972). It really is morbid not just because morally questionable but also because that bad bankroll represents a huge and wacky enchilada of opportunity costs diverted from fighting injustices on many other fronts including wrongful convictions, education, probation, treatment and parole, DNA analysis and, of course, Non-Death Penalty Habeas Corpus. Prof. Berman notes excessive numbers of capital cases on the Supreme Court's ever shrinking docket. ACS Blog's Martin Magnusson has this piece, "The Dominance of the Death Penalty on the Decreasing Supreme Court Docket” echoing concerns about a SCOTUS docket "filled with criminal cases that have no impact on the vast majority of American inmates."

Doug continues: “Relatedly, [a Washington Post article] discusses comments by Chief Justice John Roberts about the court's shrinking docket. I found this quote especially notable: 'I regarded this as a matter of great concern when I was a practicing lawyer, somewhat less significant when I became a Court of Appeals judge,' Roberts said. And now that he has seen it from the high court's viewpoint, he says that at times, there just are not that many cases that merit the court's review. I guess this means that CJ Roberts and the other Justices will understand why, because I am a practicing lawyer particularly in the arena of non-capital sentencing jurisprudence, I am always eagerly rooting for SCOTUS to take more non-capital sentencing cases.” (emphasis mine). Also, review Coker v. Georgia, 433 U.S. 584 (1977) (the Supreme Court held that the Eighth Amendment categorically prohibits the death penalty for the crime of rape of an adult woman) and the syllabus:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery. The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded.
Capital punishment for sex offenses is not just of historical interest. A number of states (mostly southern states) have enacted or are actively debating making some child rape offenses death-eligible. In August 2003 Patrick O. Kennedy was sentenced to Louisiana's death-row for the rape of an eight-year-old child. Litigation over the death penalty for child rape seems like a certainty over the next decade. (Prof. Berman's SL&P). Before Furman, “as a practical matter, the death penalty had nearly withered away for crimes other than murder and rape. From 1930 to 1967, over 3,300 persons were executed for homicide, 455 for rape, and only 70 (or less than 2% of the total) for all other non-homicidal offenses, including robbery, burglary, attempted murder, kidnaping, assault by a life-term prisoner, carnal knowledge, espionage, assault with intent to rape and accessory to murder. In this era, executions for rape were carried out exclusively in the Southern states (including the border states of Oklahoma, Missouri and Delaware), and they were carried out predominately on black men convicted of raping white women. Of the 455 rapists executed, 405 (89%) were black. Prof Marvin Wolfgang's research on the death penalty for rape, reported as "Racial Discrimination in the Death Sentence for Rape" in William Bowers's Executions in America (1974), showed that over one-third of black defendants convicted of raping white victims received death sentences; in all other racial combinations of victim and defendant, only 2% received death sentences. Struck by Lightning: Louisiana's Electrocutions for Rape in the Forties and Fifties by Burk Foster (September 1996). (Appeared in Lane Nelson and Burk Foster, Death Watch: A Death Penalty Anthology, Upper Saddle River, NJ: Prentice Hall, 2001, pp. 188-207. Originally appeared in The Angolite, September/October 1996, pp. 36-47.) which brings us to,

II. Clashing Perspectives On Habeas Corpus in the “War on Terror”--The Constitution versus the Statute: The Constitution and a law that spells out the reach of habeas corpus sparked an exchange between Attorney General Alberto R. Gonza-les and the senators. Although everyone -- including, apparently, the attorney general -- agrees that the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right. That is the focus of a bill before Congress as well as cases involving "enemy combatants" headed to the Supreme Court. Many senators, including Judiciary Committee Chairman Patrick Leahy, D-Vt., and its ranking Republican, Arlen Specter, R-Pa., believe the right to habeas corpus should apply broadly and include alleged foreign terrorists held at Guantanamo Bay. But they lost last year when the issue came before Congress. In a 51-48 vote, the Senate joined the House in affirming the Bush administration's view that habeas corpus should not cover "aliens" held as terrorists or "enemy combatants."

The Military Commissions Act overturned a Supreme Court ruling extending habeas corpus rights to the Gitmo detainees. But the justices said they were ruling only on the statutory law, not on the Constitution. In 1789, two years after the Constitution was written, the first Congress adopted a law saying that judges may hear writs of habeas corpus. The law was later expanded to say "any person" who is deprived of liberty by the government may file a petition. Speaking for a 6-3 majority, Justice John Paul Stevens interpreted "any person" to mean that the men held at Guantanamo Bay had a right to appeal their detention in court. Now that Congress has overridden the court's view, the next round of litigation in the "war on terror" is focusing on the right to habeas corpus in the Constitution. Three years ago, in the case of Hamdi vs. Rumsfeld, the Supreme Court ruled that "the writ of habeas corpus remains available to every individual detained within the United States." But the constitutional rule is less clear for the detainees at Guantanamo Bay, since they are not within the territory of this country. When Gonzales went before the Judiciary Committee on Jan. 18, his written testimony objected to the bill sponsored by Senators Leahy and Specter that would restore habeas rights to "aliens." The new law "prevents terrorists captured on the battle-field from continuing to fight us in our courts," his statement said. That set the stage for a perplexing exchange between Specter and Gonzales. 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. 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?"
Gonzales refused to concede the point. "I meant by that comment the Constitution doesn't say every individual in the United States, or every citizen, is hereby granted or assured the right to habeas." Literally? Okay, so it also happens not to say that I am entitled to breathe a habitable mix of oxygen and nitrogen, either. Alas, oh well...expect more seeohtwo in your mixture very soon if you are lucky, and monoxide if you're not.
Later in the same hearing, the attorney general softened his tone. "I believe that the right of habeas is something that's very, very important, one of our most cherished rights," he said. Gee, somebody he knows must have just been arrested... Most constitutional scholars and legal experts reject Gonzales' view that the Constitution does not include an "express grant" of a right to habeas corpus.
"He is completely wrong on the history," said Eric Freedman, a Hofstra law professor and expert on habeas corpus. Added Pepperdine Law Professor Douglas W. Kmiec, "The historical consensus among scholars is contrary" to the attorney general's statement. At the Justice Department last week, two 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."

Precisely. The poem about the cake comes to mind . Little by little, bit by bit, crumb by crumb, the whole cake was gone. David G. Savage, Los Angeles Times, for the factual reporting. The opinion is wholly “my bad.” That's a “Rosy Original” if I ever heard one. Anybody know if she kicked Donald's ass yet? Because if anybody can it's her.

Relatedly (stole this good non-word from Prof. Berman) how does the Spectrum of Abstraction, “Alice in Wonderland” stuff from last time tie together? The scope of habeas is surely related to its application, like stink on shit. Gutting habeas by shrinking the standard of review (AEDPA) into the size of a pinhead is a lot like shaving the “scope” which is nothing like “saving face.” Of course there's Congress, and there's the Constitution. Who wins? Tune in, read on, turn into a “court watcher” and see for yourself! “Major” Mori (“Z”) Goodbar will always be here to spoon-feed this stuff to you, you know...what I mean, jelly bean?

III. Consequences for Habeas of Wharton v Bockting? This sort of slipped under the radar – the issues are whether Crawford, 541 US 36 (2004)will be applied retroactively and if so whether such retroactive application is allowed in a federal habeas case. You would think not, off the cuff, because of the (unconstitutionally) restrictive requirement of AEDPA that the law be “clearly established as determined by the Supreme Court” and also because Teague might apply (whether the rule is “new” -- “waterhed rule” matters). Think again. This has everything and more you wanted to know about “deference,” “new” rules, and “clearly established law” in the Teague “retroactivity” (radioactivity?) context. Here is a summary of Bockting's argument snipped from his lawyer's merits brief:

AEDPA The deference provision of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1) does not preclude granting relief on a claim based on a new rule which this Court applies retroactively. Nothing in the text of § 2254 bars granting relief on such a claim. Lack of any clear and specific language in the statute prevents this Court from concluding that Congress intended to eliminate the pre-existing habeas jurisdiction of the federal courts to grant relief on such claims. The text of § 2254(d)(1), which refers to “clearly established Federal law,” must be read in conjunction with the explicit retroactivity provision that Congress included in AEDPA. Once this Court applies a new rule retroactively, that new rule takes the place of the former rule, and thus becomes nunc pro tunc, the “clearly established” rule to which section § 2254(d)(1) refers. That is the only con-struction of the statute that follows the technical and common sense meaning of “retroactive,” and that harmonizes the deference provision of § 2254(d)(1) with the retroactivity provisions in the statute, and thus gives effect to all of its provisions.

(heading omitted) The conviction in Mr. Bockting’s case became final in 1993. Accordingly, the Court must determine: 1) whether “the Constitution, as interpreted by precedent then existing, compels the rule”–whether the rule is actually “new;” 2) if the rule is new, whether it is nevertheless retroactive because it falls under one of two exceptions to nonretroactivity. Beard v. Banks, 542 U.S. 406, 411 (2004).


Source: Respondent's Brief pp 12-13.


Here are snips from the oral argument before the Supreme Court of Attorney General (Chanos):

Teague held that new rules of criminal procedure generally should not apply to cases on collateral review unless they fall within one of two narrow exceptions. The second exception, at issue here, is for those new watershed rules of criminal procedure without which the likelihood of an accurate conviction is seriously diminished, rules that alter our understanding of the bedrock procedural elements essential to a fair proceeding. Crawford is not a watershed rule of criminal procedure. (oral argument transcript, at 3)

***Crawford is not watershed because it is not a rule without which the likelihood of an accurate conviction is seriously diminished and it is not a rule which altered our understanding of the bedrock procedural elements essential to a fair proceeding(id., at 4, is this against the grain?)


Bockting filed for habeas corpus relief in federal court and lost at the district court level. During his appeal to the 9th Circuit, the Sup-reme Court decided Crawford which established a sixth amendment right to cross-examine in such situations. The 9th Circuit held that Crawford applied retroactively to Bockting's case (because convic-tion became final prior to Crawford) and held that he was entitled to habeas relief. It might mean that Justice Scalia is willing to make Confrontation Clause law retroactive in Whorton v. Bockting. (He wrote the Court's opinion in Crawford v. Washington but was part of a 5-4 majority deciding against "retroactivity" in Schriro v. Sum-merlin). Responding to a statement by Justice Ginsberg that “this Term might be very revealing” one commentator writing at the Volokh Conspiracy (Jan. 29) has this: “For criminal law practitioners, that would be more than "revealing." "Frightening" better describes its effect on prosecutors, while "Full Employment" describes its effect on the criminal defense bar.

Oral argument: 11/01/2006; The Solicitor General of the United States participated in this oral argument.


IV. Jones v Bock, Williams v Overton, (549 U.S. ___, Jan.22, 2007)(consolidated PLRA /1983 cases from the 6th Circuit). Here are important prisoners' rights decisions that, with Cunningham, can be tallied in the Wins column in favor of prisoners' rights, going against the grain of the "tuff on offenders" trend. One supposes that either of these could easily have gone the other way. The opinion was unanimous, however, so maybe I spoke too soon and was overly cynical about the Court's inclination to be politicized and results-oriented.

But you might ask how the Sixth Circuit could be so wrong on this? Lawyers in the Fifth Circuit also try to get the courts to ignore Leatherman and the simplified pleading rule in §1983 cases as well. My hunch is they do so to carry out what they think is the mandate from congress under PLRA to make it harder to sue, placing that above the other very legit objective expressed below, which is to raise the quality of the claims. Here is the Court (some cites omitted):

Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law. The challenge lies in ensuring that the flood of nonmeritorious claims does

not submerge and effectively preclude consideration of the

allegations with merit. Congress addressed that challenge in the PLRA. What this country needs, Congress decided, is fewer and better prisoner suits. See Porter v. Nussle, 534 U. S. 516, 524 (2002) (PLRA intended to “reduce the quantity and improve the quality of prisoner suits”).


As Prof. Berman suggests, maybe prison and criminal justice reform is morphing into the leading edge of civil rights issues of our time. I just hope, as I try to stay current on developments in criminal procedure and the sex offender registration and residency/activity restriction arena, that reform does not mean a continuation of the trend toward indifference and ignorant (stupidity is perhaps not too strong a word here) witch-hunting that we have seen in the past.

Here is the Court's (Roberts, CJ) reasoning:

The minority rule, adopted by the Sixth Circuit, places the burden of pleading exhaustion in a case covered by the PLRA on the prisoner; most courts view failure to exhaust as an affirmative defense. See n. 2, supra. We think petitioners, and the majority of courts to consider the question, have the better of the argument. Federal Rule of Civil Procedure 8(a) requires simply a “short and plain statement of the claim” in a complaint, while Rule 8(c) identifies a nonexhaustive list of affirmative defenses that must be pleaded in response. The PLRA itself is not a source of a prisoner's claim; claims covered by the PLRA are typically brought under 42 U. S. C.

§1983, which does not require exhaustion at all.

Petitioners assert that courts typically regard exhaustion as an affirmative defense in other contexts, see Brief for Petitioners 34-36, and nn. 12-13 (citing cases), and respondents do not seriously dispute the general proposition. We have referred to exhaustion in these terms, see, e.g., Wright v. Universal Maritime Service Corp., 525 U. S. 70, 75 (1998) (referring to “failure to exhaust” as an “affirmative defens[e]”), including in the similar statutory scheme governing habeas corpus, Day v. McDonough, 547 U. S. ___, ___ (2006) (slip op., at 8) (referring to exhaustion as a “defense”). The PLRA dealt extensively with the subject of exhaustion, see 42 U. S. C. §§1997e(a), (c)(2), but is silent on the issue whether exhaustion must be pleaded by the plaintiff or is an affirmative defense. This is strong evidence

that the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense.

In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns. Thus, in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163 (1993), we unanimously reversed the court of appeals for imposing a heightened pleading standard in §1983 suits against municipalities. We explained that “[p]erhaps if [the] Rules . . . were rewritten today, claims against municipalities under §1983 might be subjected to the added specificity requirement . . . . But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Id., at 168 (isn't it interesting for the CJ to suggest how “they” should do it).

In Swierkiewicz v. Sorema N. A., 534 U. S. 506 (2002), we unanimously reversed the court of appeals for requiring employment discrimination plaintiffs to specifically allege the elements of a prima facie case of discrimination. We explained that “the Federal Rules do not contain a heightened pleading standard for employment discrimination suits,” and a “requirement of greater specificity for particular claims” must be obtained by amending the Federal Rules. And just last Term, in Hill v. McDonough, 547 U. S. ___ (2006), we unanimously rejected a proposal that §1983 suits challenging a method of execution must identify an acceptable alter-native: “Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal courts.” (opinion at 11-12)(some citations omitted)

***As noted, that is not to say that failure to

exhaust cannot be a basis for dismissal for failure to state

a claim. It is to say that there is no basis for concluding

that Congress implicitly meant to transform exhaustion

from an affirmative defense to a pleading requirement by

the curiously indirect route of specifying that courts

should screen PLRA complaints and dismiss those that

fail to state a claim. (at 15).


There is a bit more, and I found this opinion very interesting because it referred to several cases that I referenced in briefs to the Fifth Circuit Court of Appeals in my own §1983 case.


Examine the reasoning carefully to discover the process by which

the Court decides, and in so doing learn how the law “gets made.” This is a lot like (a) “connect the dots,” (b) “what is missing from this picture?” and (c) consulting the Delphic Oracles on your magic carpet made out of Tarot cards. If you are able to follow and recreate the court's reasoning, sometimes called “rationale,” in your mind's eye and it does not have you playing “Twister”® in knots trying to understand why, (does it makes sense to you?) then the decision is probably “correct” or “right”. If not . . . oh well. But in this case it seems right. A comparative technique often heard is, the result was correct but the reason(s) were wrong. Usually the critique along those lines is because the decision was too narrow or too broad, depending on the subjective viewpoint. Justice Roberts is said to favor decisions on narrow grounds hoping to obtain “con-sensus” and avoid badly split and dissenting opinions. This has provided much “grist for the mill” in the blogosphere and the MSM for that matter. The writers covering the Supreme Court have been very busy of late, as have the justices making an unusual number of public appearances and speeches. I'll try to put some highlights together in a future issue.


A. SCT Moving Right of Center?

Gay rights, race-based decision making, abortion, religion are areas in which liberals use the constitution to protect minority rights. It's been increasingly tricky for the court's liberals to explain their philosophy in a sound bite. "Active liberty," as it turns out, requires a whole hour with Charlie Rose to unpack. Dalia Lithwick writes:

The one unifying theme in most of the judicial speeches this past year has been this one: The power belongs to the people. Whether it's Breyer urging citizens to engage in government or Scalia insisting that it's the job of the people, not the court, to modify the Constitution, the universal message of the justices is not to fear the court, but rather to become more involved in the legislative process. But that's only half the story, and the justices know it. The really tough cases are, invariably, the hardest to explain. As Justice Scalia continues to prove, the taut lines of his theory of "originalism" tend to be an easier sell than the blurriness of a "living Constitution." Which may be why some of the justices sometimes talk the loudest when they say nothing at all. (writing in Slate, Jan. 27))

B. Check the Onion's Take on SCT I could not resist adding this:

Son, could you come in here for a second? Well, I'm sorry, but that newspaper's just going to have to wait, because we really need to talk. Son, your mother and I have been worried about you. Your grades have been slipping, you've been spending less time with your friends, and you've been shutting yourself in your room for hours at a time. Now, I know it may make you feel uncomfortable to talk about it, but this Supreme Court obsession of yours has become a problem. (Dec. 8, 2006)


And for those of us who really have no life at all here's another ir-resistable take:

BAGHDAD—According to members of his squad, 22-year-old Army Pfc. Casey Schreiner, who has been stationed in Iraq's Sunni Triangle for nearly a year and a half, is nearing completion of his psychological withdrawal from the war that constantly surrounds him. "The timetable for his exit certainly isn't optimal—we still need him to stay with us," said Cpl. Chris Oswald, adding that Schreiner began pulling out mentally little by little as members of his platoon were killed by roadside bombings, sniper shootings, and various personnel carrier and helicopter crashes. "At this rate, I think he'll be completely gone by spring." U.S. and coalition commander in Iraq Lt. Gen. David Petraeus said Schreiner is just one of thousands of troops who have experienced a phased cerebral withdrawal, adding that throughout the next year an estimated 20,000 more are expected to stage a retreat from reality. (Feb. 7, 2007)


Can anybody think of more good withdrawal jokes? How about along these lines, (writing about the Maouloud Baby case decided last year by the Maryland Court of Special Appeals):


Mel Feit, executive director of the National Center for Men, a male-advocacy group based in Old Bethpage, N.Y., says biology is a factor. "At a certain point during arousal, we don't have complete control over our ability to stop," he says. "To equate that with brutal, violent rape weakens the whole concept of rape." His group has created a "consensual sex contract" to be signed before intercourse.

Victims' rights activists don't buy the loss-of-control argument. "It's insulting to men to say they can't stop," says Lisae C. Jordan, legislative counsel for the Maryland Coalition Against Sexual Assault. "Any one of us who's had a toddler walk in on them knows that that's not true. Or a teenager who's had a parent walk in--they stop pretty quickly." Still, even advocates concede it's hard to set a time frame in which sex must cease after consent is taken back. "I don't know where that bright line is," says Scott Berkowitz of the Rape Abuse and Incest National Network. "We'll leave that to juries to decide what's reasonable in each case."

(Time Magazine, Feb. 1, 2007)


Here's another vision of the Court:

Reading tea leaves is usually a fool's errand. Certainly, if I could do so I would be investing full-time in the futures market and not practicing law at all. The speculation on Justice Kennedy is interesting and likely the most accurate, particularly if he now sees himself as the Court's "Middle." I foresee a strengthening of the second amendment. More tolerance for religion and government interaction, but also a more narrow definition of what is protected free speech. The 14th amendment will probably now be properly read as opposing racial preferences rather than mandating them. A lot more attention paid to the 10th Amendment, but more decisions under the 4th, 5th, and 8th amendments that favor government rather than defendants or the public. Oh, and copies of the Bill of Rights that don't have a 9th Amendment at all (a view shared by most liberal Justices as well). Overall, we'll win some freedoms and lose some others. “Angus” on Volokh.


C. Claiborne, Booker and Federal Sentencing

In addition to the bottom-side briefs, Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein have filed a "Brief in Support of Affirmance in Claiborne v. United States." (Sentencing Law & Policy blog. Jan. 23, 2007)

D. Adversarial or Inquisitorial? European or American? Boyd, Faulks, Trial Penalties (and federal sentencing)

The incomparably prolific professor of law supreme, Doug Berman (Harvard Law, now teaching at Ohio State Univ.), confesses: “A great chat with a colleague in the economics department about Judge Posner's work in Boyd helps me see why that decision so troubles me. The reason links to my work seeking cert in US v. Faulks and my concern with huge "trial penalties" and take me back to “my long-ago insights” about what Blakely is really about: a battle between an adversarial and inquisitorial model of criminal justice. *** As I discussed [here, (sic)] way back in September 2004, in Blakely, five Justices champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt. The Blakely dissenters, in contrast, embrace an inquisitorial model of where, in Justice Scalia's words, "a lone employee of the State" makes all critical findings and determinations. (Sentencing Law & Policy, Jan. 31, 2007)

Here is a preview of Faulks. The implications for state revocation proceedings are enormous. The United States waived response but the Court requested one filed by March 9:

In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years’ supervised release. Seven

years later, as Faulks’s term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release. Faulks denied

the allegation. At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof.

Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment.

This case presents two questions:

1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year

term of imprisonment based solely on the judge’s disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.

2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).



VII Parole in Texas: Notes from Austin -- Justice Center staff presented a report before Texas House and Senate Criminal Justice Committee on Tuesday, January 30, 2007. The Texas Senate Criminal Justice Committee and the House Committee on Corrections held a joint hearing to review correctional policies in the state. At the invitation of Senator John Whitmire (D-Houston), Chairman of the Senate Criminal Justice Committee, and Representative Jerry Madden (R-Plano), Chairman of the House Corrections Committee, the Council of State Governments Justice Center, along with its senior research consultant Dr. Tony Fabelo, presented a report to the Committee entitled “Justice Reinvestment: A Framework to Improve Effectiveness of Justice Policies in Texas.” This report outlined two justice reinvestment scenarios: provide more tools to the Parole Board to enhance the use of parole and increase the availability of treatment services. According to the report, state policymakers could avert spending $377 million for construction of prisons for 5,000 more inmates. In addition, according to the report, projected savings from 2009-2012 is upwards of $50 million.

You save two ways by not locking people up. And yes, it is better for the quality of life overall. Educational achievement is a good predictor of who goes to prison. The plan is to target those communities in which educational achievement is demonstrably lacking, and institute a “Diversion Program” away from prison and toward achievement, citizenship, legitimate jobs, cf. drug running, snorting up, burglery, etc.


In essence, the report tells us what many of us already know. The bathtub is full and you need to get a bigger one or reduce conviction rates, the rates of incarceration per convic-tion, and find ways to increase participation in probation and alternative treatment pro-grams, as well as parole rates, for “non-violent-low-risk” offenders. The trends indicate that building prison beds only results in filling them as fast as the construction budget permits. Consequently, it is no surprise that everything else, probation, treatment, alternative to prison incarceration, and parole is neglected, and education and diversion/treatment also neglected. REMINDER TO THE LEGISLATURE: INCARCERATION IS THE MOST EXPENSIVE METHOD OF DEALING WITH CRIME. INCARCE-RATION RESULTS IN LOWER STAN-DARDS AND QUALITIES OF LIFE FOR EVERYBODY BY LOWERING THE BOTTOM rungs of society and making it more inclusive. Instead we should be trying to raise the bottom and pulling citizens out of there and into decent, and rising, standards of living.


On December 3, 2006, the Council of State Governments (CSG) board voted to transform the Eastern Regional Conference’s (CSG-ERC) criminal justice program into a national Justice Center. Founded in 1933, CSG serves the executive, judicial and legislative branch-es of state government through leadership education, research and information services.

CSG's national headquarters is in Lexington, Ky. The address is 2760 Research Park Drive, P.O. Box 11910, Lexington, Ky 40578-1910. The phone number is (859) 244-8000 and the fax number is (859) 244-8001.

I can make copies of the report available for cost plus. Sorry but as much as I would like, I cannot send everybody a free copy! Maybe they could...it is really quite a good report.

Hat Tip”: SH at Grits for Breakfast

Circuit Blurbs

Salinas v. Gonzales, No. 05-60878 (5th. Cir. 1/23/2007) (5th. Cir., 2007)

Sonnier v. Quarterman, No. 06-70003 (5th. Cir. 1/22/2007) (5th. Cir., 2007) IAC refusal to consent to lawyers more extensive and in-depth discussions with family and acquaintances to determine the nature and extent of the mitigation evidence available is not reasonable grounds for the failure to do so.

Moody v. Quarterman, No. 02-21245 (5th. Cir. 1/17/2007) (5th. Cir., 2007) district court failed to give proper deference to the Texas Court of Criminal Appeals' findings of fact pursuant to 28 U.S.C. § 2254, the order granting petition on equal protection claim is VACATED.

Wright v. Vaughn, No. 04-3457 (3rd Cir. 12/26/2006) (3rd Cir., 2006) (IAC fail to call witness) ;

Eddleman v. McKee, No. 05-1493 (6th Cir. 12/14/2006) (6th Cir., 2006) ([P]resents the question of what type of deference we owe on collateral review to a state court's harmless-error determination. David Eddleman was convicted of second-degree murder and a firearm offense in a Michigan state court. On direct review, the Michigan Court of Appeals affirmed his conviction, concluding that the trial court erred in admitting his coerced confession but that the error was harmless. Eddleman petitioned for a writ of habeas corpus in federal court. The district court granted the writ, and warden Ken McKee appealed.

We affirm. We hold that, when a state court has found an error to be harmless, we should ask on collateral review whether the state court's harmless-error decision was contrary to, or an unreasonable application of, the clearly established federal rule that a trial error is harmless only if it is harmless beyond a reasonable doubt. Applying this standard of review to the case at hand, we hold that the Michigan Court of Appeals's harmless-error determination was an unreasonable application of the Supreme Court's decisions Chapman v. California, 386 U.S. 18 (1967), and Arizona v. Fulminante, 499 U.S. 279 (1991)).


Innocence Projects--These tend to be “black holes” but somebody could get lucky:

2. What is the procedure for having a case considered by TIN?

Due to the volume of incoming requests, TIN accepts cases by mail only. TIN does not accept cases by telephone or e-mail.

There are no exceptions to this policy. Please address all mail to:

Texas Innocence Network

University of Houston Law Center

100 Law Center

Houston, Texas 77204-6060

Please include the inmate’s name, number, address, crime convicted of, and reason(s) they are innocent of the crime. Do not

send any additional documentation. TIN will not return any documents or exhibits sent by inmates or their agents.

3. Must an inmate write the letter, or can it come from someone else?

An inmate or an inmate’s agent can initiate a request. Frequently, the agent who initiates a request is an inmate’s spouse,

parent, or child. Regardless of who initiates the request, TIN will open a file for an inmate when it receives a letter containing the required information (see FAQ #2). However, once TIN receives a request, its future communications will be directly with the inmate.

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