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).
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.
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.
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)
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.
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.
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 »
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"
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