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
ContentsStory 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"
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.
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.
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
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