Modifying Opinions

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Nobody is perfect, and even the nation's highest courts sometimes make mistakes in their opinions.  When the California Supreme Court makes a mistake and needs to modify an opinion, it issues a modification order like this.

Not so at the U.S. Supreme Court.  Opinions come out in four forms.  There is the bench opinion used to announce the decision live in court.  That one has a shorter life span than a fruit fly.  Almost immediately we get the slip opinion.  That one is posted on the Court's website, and it is the one we link to on this blog for same-day commentary. 

After the slip opinion, unofficial versions are printed by the West Publishing Company (S.Ct.) and Lexis Law Publishing (L.Ed.2d), but the Court is not involved in these.

The slip opinion remains the official opinion until publication of the preliminary print, currently running about four years after the opinion date.  Why so long?  Beats me.  After another year or so we get the bound volume, which will be the final, official word on the shelf of the law library forevermore.  The BVs are also available in PDF form on Court's website, with the caveat that the dead-tree version and not the digital one is official, if there is any difference.

Sometimes there are changes between these versions, but there is generally not a public announcement.  Adam Liptak reports at the NYT:

Earth to Academia Re: Jones Certiorari Denial

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The defense bar is hopping mad about the denial of cert in the Jones case.  There, the Court declined to hear a challenge to the use of acquitted conduct in fashioning the sentence.  Kent discussed it here, and I did here.

There has been a good deal of fussing about it, as you might expect.  There have also been guesses galore about why the Court denied review.  The most remarkable I have seen is this one by University of Illinois law Professor Margareth Etienne (quoted in the National Journal):

Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.

With all respect to Prof. Etienne, a Yale Law graduate, her analysis is wildly and transparently incorrect.

News Scan

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Delaware Sets Execution Date for Murderer: A Delaware man convicted of raping and murdering a college student in 2005 is set to be executed for his crime December 4, 2014.  The Associated Press reports that 43-year-old James Cooke had his original conviction overturned in 2007 due to an error made by his public defender, he was then re-tried, convicted and sentenced to death again in 2012.  Cooke's most recent appeal to the state Supreme Court was denied in July 2014.

Teen Sentenced to Life in Prison: A Florida teen convicted of killing a security guard at an apartment complex in 2012 has been sentenced to life in prison with a possibility of parole.  WFTV News reports that Terrance Anthony was 16-years-old when he shot and killed the security officer.  Police reported that the victim had previously confronted Anthony because the teen did not live at the complex.  Anthony will be eligible for parole after his case is reviewed by a judge in 25 years.    

Murderer Challenges Prison Porn Ban: A Connecticut man convicted of murder and sentenced to more than 50 years behind bars is suing the state for his right to look at pornography in prison.  Pat Eaton-Robb of the Associated Press reports that 44-year-old Dwight Pink Jr. claims that the porn ban violates his constitutional rights, and that guards are using it as a way to deny him access to an art book that uses nude models to teach readers how to 'draw the human form.' The state maintains that Pink has not been harmed by the ban and that none of his rights have been violated.

Eric Holder's Biggest Regret

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Attorney General Holder was asked in a CNN interview what his biggest regret was looking back at his tenure in office.  John Hinderaker has this take on it:

Holder was asked by the interviewer, what was your biggest failure as Attorney General? He had so many to choose from! Politicizing the Justice Department, Fast and Furious, stonewalling the House of Representatives, allowing the legalization of marijuana contrary to federal law, failure to enforce the immigration laws, and lots more. But naturally, Holder didn't mention any of those failures.

Mr. Holder's answer was that his biggest regret was the failure to pass gun control (which he calls "gun safety") legislation.

The answer is incoherent on four levels.  First, someone should tell him the Justice Department doesn't pass legislation.  Second, if it did, further restrictions on civil rights (specifically Second Amendment rights) would be a poor idea.  Third, if such legislation were so desirable, it could have been passed (by Congress, that is) when Mr. Holder's party held super-majorities during his first two years in office. Fourth, the failure to secure gun legislation is nowhere near his biggest failure.

Other than that...............................

School Discipline and Criminal Law

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Gary Fields and John Emshwiller have this article in the WSJ on the overuse of police arrest and the juvenile justice system to deal with misbehavior that should be addressed with school discipline.

This article makes some very valid points, but it is disappointing in its failure to fully explore why the use of traditional school discipline has declined, and at one point it goes completely off the rails:

In recent decades, a new philosophy in law enforcement had been applied to schools. It was "deal with the small stuff so they won't go to the big stuff, and also it sent a strong message of deterrence," said James Alan Fox, the Lipman Professor of criminology at Boston's Northeastern University.

The zero-tolerance approach started as part of the 1994 Gun-Free Schools Act, Mr. Fox said, but it expanded to other weapons, then to drug contraband and "finally into ordinary violations of school rules, disrespect, skipping. It eventually became an across the board response to discipline."
Fox is seriously trying to equate "broken windows policing" with "zero tolerance" nonsense?  The two are nearly diametric opposites.

But the primary emphasis here should be understanding why traditional school discipline has declined and fixing it.  School administrators just don't want to punish misbehaving kids like they used to.  When they do punish, their instrument of choice is suspension, exactly the wrong thing to do with a kid who doesn't want to be in school anyway.  Suspension has gotten so absurd that some schools suspend kindergarteners.  What are these people thinking?

Ferguson, from Tragedy to Farce

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Rich Lowry of National Review Online takes a look at Ferguson, Mo., as that unfortunate town becomes a staging ground for increasingly exotic protests. Here's a sample:


It wasn't so long ago that Ferguson, Mo., was supposed to be an American morality tale of racism, the militarization of police, and all manner of other evil. For a few weeks in August, the attention of the national media focused on the suburb of St. Louis, and MSNBC practically broadcast nothing else. President Barack Obama even mentioned Ferguson at a U.N. speech in the context of terror groups that behead people and sectarian conflicts that kill hundreds of thousands of people.

While the media long ago moved on, the protests have persisted, entering their late, decadent phase of self-indulgent triviality. Cornel West got arrested last week, and Al Sharpton is heading back to Ferguson at the end of the month to pump up attention for what styles itself a movement, although it is more tinny by the day.

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

In nearby St. Louis [recently], an off-duty cop working as a private security guard shot to death a teen who had fired at him with a Ruger 9mm. It turned out the gun had been stolen two weeks earlier, and the teen, monitored with an ankle bracelet, had been awaiting trial on a felony concealed-weapon charge. This event was nonetheless filtered through the lens of Ferguson. Protesters took the streets to demonstrate against what would strike most people as a legitimate act of self-defense, chanting the inapt "Hands up, don't shoot!"


Ten Questions for the Next Attorney General

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Roll Call is slightly to the left for my tastes, but it has a short, intelligent and spot-on article today listing ten questions the Senate is likely to ask the next nominee for Attorney General.

CJLF Newsletter

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For readers interested in following CJLF's work, the present and previous editions of our quarterly (more or less) newsletter, the Advisory, are available online.  Links are maintained in the Publications section of our main web site.

Hard copies of the Advisory are mailed to all CJLF contributors upon publication.

News Scan

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Accused Murderer Faces Death Penalty in Two States: An Illinois man who sparked a two-state manhunt last month will now face death penalty trials in both Ohio and Kentucky for his crimes.  Jill Drury of WDTN News reports that 41-year-old Terry Froman is accused of murdering a teenager in Kentucky and then kidnapping the boy's mother and driving her to Ohio, where he shot and killed her as well.  Froman will face murder charges in Kentucky first, then face kidnapping and murder charges in Ohio, he is being held on $1 million bond.

Convicted Sex Offender Identified as Murder Suspect: An Indiana man is behind bars and facing murder charges after confessing to killing at least seven women.  CBS Chicago reports that 43-year-old Darren Vann, who is a registered sex offender in Texas, allegedly told police that the murders date back to as many as 20 years ago, and so far, all of his victims appear to be women.  Vann claims to have victims in other states as well, but is only choosing to discuss his Indiana victims because the state has the death penalty and he wants to be executed for his crimes.

Parole Denied for Convicted Cop Killer: One of the men convicted of murdering a Massachusetts police chief will remain behind bars after being denied parole for the second time since being convicted two decades ago.  Scott J. Croteau of The Telegram reports that 42-year-old Kenneth B. Padgett, along with two co-defendants, were breaking into homes and stole a vehicle on the morning of February 1, 1994, when the officer pursued them one of the men fired several rounds piercing his lung and heart, leaving him for dead.  Since being incarcerated, Croteau has had several disciplinary issues and involved himself in a white supremacist gang.  His next parole hearing will be in a few years.
We often hear that non-violent offenses, of which white collar offenses are a significant part, should seldom or never earn jail time.

I have previously argued that non-violent offenses can be terribly harmful and often merit imprisonment.  Swindling an elderly couple out of their life savings or selling heroin to a teenage addict are among numerous examples.

Today, I saw a story in the ABA Journal about a white collar offense  -- insurance fraud  --  in which the defendant had additional things in mind to see to it that he'd become one of the "exonerated":

Already facing a 50-count indictment, a jailed defendant in a California insurance fraud prosecution is now facing 10 new charges concerning nine witnesses he is accused of targeting for murder in the Contra Costa County case.

District Attorney Mark Peterson said a witness "hit list" found by investigators not only lists the nine witnesses allegedly targeted by Charles Waldo, 37, but specifies the order in which they were to be killed and the methods by which they were to be slain, the Bay Area News Group and KTVU report.

The methods included fatal drug overdoses and staged car accidents, as well as slayings during robberies "gone bad," the DA said.

The Journal story noted that the articles don't include any comment from the defendant or his counsel.  I have no trouble believing that.

Looks like criminal law and law enforcement are going to be a bigger part of this Term of the U.S. Supreme Court.  The Court's Monday orders list took up for full briefing and argument three criminal and related cases:

Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala.   The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus.  If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.

Los Angeles v. Patel, No. 13-1175:  Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can?  There are a lot of heavily regulated industries that have such requirements.  The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example.  No warrant or particularized basis of suspicion required.  How about hotels?

Henderson v. United States, No. 13-1487:  What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?
Question:  When can a judge ethically be an advocate for a party in his court?

Answer:  Pick one  --  (a) never; or (b) when the party is a violent criminal serving the sentence he earned.

Until Saturday, I didn't know anyone who would pick (b) over (a).

On that day, however, I learned that it might be OK for a judge to be an advocate for a party, at least in a case where he has "a strong vision of legal justice and then acts in service to that vision."

That's the answer I believe is suggested by Prof. Doug Berman, a distinguished lawyer and law professor who sees things from the defense perspective.

I respectfully dissent.  It is precisely when the judge feels most strongly that he must be most disciplined.  The credibility of the judicial branch, and indispensable public confidence in its neutrality, require nothing less.  The notion that the judge can be an advocate for one side is toxic to the core idea of what it means to be a judge at all.
Last year, the Legion of Whiners was in good form, trying to intimidate speech not conforming to their views.  Indeed, they marched beyond the typical snarling reception given conservative speakers, and filed a formal complaint against Judge Edith Jones of the Fifth Circuit for her talk at a Federalist Society function at the University of Pennsylvania Law School.  The gist of the complaint, as reported below, was that the Judge's remarks were  --  ready now?  --  racist, and inappropriately favorable to the death penalty.

The complaint was widely reported, see, e.g., this NYT story and this one from CBS.  It was also reported on legal blogs, see, e.g.,  this entry.

The complaint was referred by Chief Justice Roberts to the DC Circuit.  After a lengthy and thorough investigation, the Court rejected the complaint in its entirety, with no dissent.  Its order is here.  Hat tip to Judge Richard Kopf on his blog Hercules and the Umpire.

I have been writing recently about left wing attempts to silence dissenting conservatives, basically by false and disgusting accusations.  The Jones complaint was of a piece with this New McCarthyism.........as is the relative silence about its dismissal.

Congratulations to Judge Jones.  May she serve many more years on the bench, and continue to defy the Politically Correct Brownshirts who would silence her.


SCOTUS Denies Stay of Texas Voter ID

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Consistently with its recent pattern of not making major election changes close to the election, noted here, the U.S. Supreme Court has denied the application to lift the Fifth Circuit's stay of an injunction against that state's voter ID law.  In other words, the ID law will be in effect for the coming election.

The vote was apparently 6-3, with Justices Ginsburg, Sotomayor, and Kagan dissenting.

The Legalization Lobby Parodies Itself

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Those preferring to see more widespread use of pot are, naturally, for legalizing it, thus removing one of the barriers to broad consumption.

In the course of their campaign (upon which CJLF takes no position), they have claimed that pot affirmatively makes you healthier.  Indeed, it's something of a wonder drug!

Thus I guess this was bound to happen, but I still feel like I should pass it along:  "Smoking Marijuana Can Protect You From Ebola."

I swear I am not making this up.
President Obama yesterday named DC lawyer Ron Klain as the Ebola "czar."  I know Mr. Klain only very slightly, from when I was moving out of the White House at the end of the GHWB administration and he was helping the Clinton administration move in.  I found him intelligent, thoroughly pleasant and a gentleman.  Our contacts were slight and fleeting, and I haven't seen him in more than 20 years. 

The WSJ has an editorial today about the Klain appointment.  Its title is, "Ebola Political Contagion," and it begins:

President Obama bowed to the growing Ebola political furor on Friday and named a so-called Ebola czar, though maybe the better label is apparatchik. His man isn't a military general, despite the troops in West Africa, or even someone with so much as nominal expertise in disasters or infectious disease. He's the political operative Ron Klain.

The Attorney General has directed that appeal waivers in plea agreements should no longer require that defendants waive the right to raise ineffective assistance of counsel claims.  The story is covered here on SL&P, and the Deputy Attorney General's memo is here

As the SL&P entry notes (in the comments section), I am the inventor of appeal waivers.  I litigated their validity for the first time in federal court in US v. Wiggins, 905 F.2d 51 (1990).  That case, and all subsequent cases on the question in the courts of appeals, upheld the waiver.  Probably because the resolution is so obvious, and the appellate courts unanimous, the Supreme Court has never addressed the issue.  I will bet $1,000 here and now on the outcome if it ever does.

The reason the issue is obvious, as explained by Judge Wilkinson in the Fourth Circuit's seminal opinion, is easy to summarize:  If a defendant can waive his constitutional right to a trial, something that has been established forever, he can waive his mere statutory right to an appeal.

DOJ's new modification makes little difference, to the small extent there has been a modification at all.  Accordingly, it's not causing me a lot of heartburn.


News Scan

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Rapist/ Murderer Released from Prison: An Oregon man convicted of raping and murdering a high school classmate more than two decades ago has been released from custody.  Emily E. Smith of The Oregonian reports that Conrad Engweiler, who was 15-years-old at the time of the killing, was convicted of raping and strangling Erin Tonna Reynolds to death in 1990, he was originally sentenced to life in prison with a minimum of 30 years but that sentence was eventually reduced after several parole hearings.  Engweiler will be required to register as a sex offender and will be supervised for a minimum of three years.

Prosecutors to Seek Death Penalty Against Accused Killers
: Prosecutors in Georgia intend to seek death sentences for a pair of men accused of kidnapping and murdering a young couple in August 2014.  Steve Visser of the Atlanta Journal-Constitution reports that the two men are accused of kidnapping a man and his pregnant wife for ransom.  The couple was later found shot to death just miles away from their home.  One of the suspects, 40-year-old Cleveland Gay, was released on parole earlier this year after serving nearly 22 years of a life sentence he received in 1992 for murdering two people when he was 15-years-old.

Murderer Sentenced to Life: A Washington man convicted of murdering two people and nearly killing a third has been sentenced to spend the rest of his life behind bars without the possibility of parole.  KOMO News reports that 39-year-old Aaron Livingston agreed to plead guilty to two counts of first-degree murder and one count of attempted murder for the beating death of his girlfriend and a man he suspected she was having and affair with.  After the murders, Livingston tried to kill a 60-year-old family friend by strangling her with an electrical cord. 

News Scan

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Ex Con Charged With Murder: A repeat felon has been arrested and charged with killing a Northern California man and then shooting the man's mother earlier this year.  KTVU News reports that 34-year-old Demond Spikes shot the man in the abdomen and the head before turning the gun on his mother and shooting her through a sliding glass door.  If convicted, Spikes faces a possible life sentence since he already has two prior felony convictions and this would become his third strike.

Prosecutors to Seek Death Penalty for Accused Killer: Prosecutors in Kansas have announced their plans to seek the death penalty for a man accused of murdering his adoptive parents.  Tim Potter of the Wichita Eagle reports that 19-year-old Anthony Bluml began resenting his parents after he was kicked out of the home for smoking marijuana.  Police believe he killed his parents in order to gain access to the couple's life insurance.  Bluml is just one of four defendants charged in the murder.  His biological mother also participated in the killings and has also been charged with two counts of first-degree murder.

Realignment Offender Linked  to Car Theft Ring: A California man currently on Post-Release Community Supervision (PRCS) for a vehicle theft conviction has been arrested yet again for stealing more vehicles and knowingly receiving stolen property.  Allison Gatlin of The Californian reports that 45-year-old Gary Dean had been arrested at least six times between 2006 and 2011 on a variety of charges.  IN 2011 he was arrested after leading police on a high-speed chase in a stolen vehicle.  He was released on PRCS after serving time behind bars.  Dean is currently being held in county jail on a number of charges including vehicle theft, possession of stolen property, and possession of stolen vehicles.

CBS4 in Denver has this story with the above title.

A victim of the Aurora theater massacre said he believes defense lawyers and anti-death penalty groups have tried to use him like a pawn.

News Scan

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Murderer Sentenced to Nine Life Terms: A California judge has sentenced the leader of a notorious Mexican drug trafficking gang to nine life terms without the possibility of parole after being found guilty on multiple counts of murder and kidnapping.  KUSI News reports that 35-year-old Juan Estrada Gonzalez was sentenced to 29 years in prison in Mexico in 2003, but he escaped and came to the United States, where prosecutors say he murdered six people between 2004 and 2007.  Estrada Gonzalez's co-defendant was also sentenced to life in prison without the possibility of parole.

NJ High Court Upholds Attempted Murder Conviction: The New Jersey Supreme Court has upheld the attempted murder conviction for a man found guilty of shooting a police officer in 2012.  WMUR News reports that Myles Webster was sentenced to 60 years to life in prison for shooting the officer multiple times at close range, leaving him critically injured.  Webster appealed his conviction based claiming that he was wrongly identified by the officer and witnesses interviewed at the scene of the crime.     

Prosecutors to Seek Death Penalty Against Florida Man: Prosecutors in Florida will seek the death penalty for a man charged with the of killing his girlfriend's one-year-old son.  The Tampa Bay Times reports that 24-year-old Austin Hamilton allegedly beat the young boy repeatedly with a belt before dropping him on his head, resulting in his death.  Hamilton admitted to police that he 'lost control' while changing the boy's diaper and hit him multiple times with a belt, but has pled not guilty to first-degree murder and aggravated child abuse charges.

Jennings v. Stephens Argument, Continued

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The argument transcript in Jennings v. Stephens is now available.

On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on.  If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one.  See pages 9 and 14 of CJLF's brief.  He seeks to assure the Supreme Court this scenario would be rare.  I don't know about Texas, but it is certainly not rare in capital cases in California.  Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno.  It's all part of the strategy to throw as much sand in the gears as possible.

Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court.  The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial.  The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.

The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal.  This is called issue preclusion or collateral estoppel.  A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus.  In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others.  The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period.  Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them.  Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.

Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel.  I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case.  That would simplify things considerably, and Justice Breyer notes our brief  to that effect at pages 48-49.

Update, 10/17:  Rory Little has this analysis of the argument at SCOTUSblog.

Jennings v. Stephens Argument

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The U.S. Supreme Court is hearing argument today in Jennings v. Stephens. We noted this case in the week preview last Friday.  Rory Little has a preview at SCOTUSblog, with some complimentary things to say about CJLF's brief.

The transcript should be available this afternoon.

Chemerinsky and the Supreme Court

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UC Irvine Law Dean Erwin Chemerinsky's new book attacking the Supreme Court has caused Volokh Conspirator Orin Kerr to "wonder[] if he was just criticizing the Supreme Court for not agreeing with his policy preferences."

Orin has this Q-and-A with Dean Chemerinsky in which Chemerinsky attempts to answer that question "no," but even the left-leaning commenters on the post mostly agree that he ends up demonstrating that the answer is "yes."

Texas Voter ID

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As predicted in this post, the Fifth Circuit Court of Appeals has followed the Supreme Court's pattern and stayed an injunction against Voter ID.  The pattern is that the high court disallows late changes, whichever way they go.

Early voting in Texas begins on Monday, October 20. On Saturday, October 11--just nine days before early voting begins and just 24 days before Election Day--the district court entered a final order striking down Texas's voter identification laws. By this order, the district court enjoined the implementation of Texas Senate Bill 14 ("SB 14") of the 2011 Regular Session, which requires that voters present certain photographic identification at the polls. The district court also ordered that the State of Texas ("State") instead implement the laws that were in force before SB 14's enactment in May of 2011. Based primarily on the extremely fast-approaching election date, we STAY the district court's judgment pending appeal.
Lyle Denniston has this post at SCOTUSblog.

Assigning Judges to Cases

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In most courts below the level of the Supreme Court (state or federal), most cases are heard by something less than all the judges of the court.  How do judges get assigned to cases?  Can assignments be manipulated?  Are they?

Presently, there is a big controversy in the Ninth Circuit regarding assignments to the same-sex marriage cases.  Josh Blackman has this post at his eponymous blog.  It seems Judges Reinhardt and Berzon get assigned to these panels at rates far beyond what can plausibly be explained by chance.  CJLF takes no position on the underlying issue in these cases, but the fairness of judicial assignments is something that does concern us.

In civil litigation affecting the criminal justice system, we have seen manipulations of the "related case" rules to funnel the prisoner rights cases and the cases blocking implementation of an important reform of capital habeas corpus to the most prisoner-friendly judges.  The three-judge panel that heard the California overcrowding case was the prisoners' dream team.  If I were representing the prisoners and could choose any three judges from the entire federal judiciary, those are the three I would have chosen.

The next Congress should take a good, hard look at judicial assignment policies.  This is too important to leave to local rules of court.
Nedra Pickler has this story for AP, incorrectly headlined Obama waiting for midterm to name Attorney General. As the text of the story makes clear, he is not going to wait for the midpoint of his term, January 20, but instead is only waiting until the election is past.

President Barack Obama does not plan to announce his choice for attorney general before the November elections, shielding the nomination from the midterm election politics while setting up a potential year-end showdown with the lame duck Senate.
Shielding the nomination from politics?  My, doesn't that sound noble?  Reality is more like shielding the Democratic candidates in close races from having to answer to the people, which is how our representative democracy is supposed to work.

There wouldn't be any need to "shield" if the President were planning to nominate a solid, non-divisive candidate.  So this timing tends to indicate that another divisive, partisan nominee who will continue the politicization of the Department of Justice is headed our way.

News Scan

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Realignment Offender Suspected of Murder: Police in Barstow, CA believe that the person responsible for murdering a man Monday night is on active Post-Release Community Supervision (PRCS), a form of probation started under Governor Brown's Realignment legislation.  Jose Quintero of the Desert Dispatch reports that 22-year-old Andrew Gallegos, a known gang member, stabbed his victim to death Monday evening just after 8:00 p.m.  Police have yet to locate Gallegos and are warning citizens not to approach him as he is believed to be armed and dangerous.

Rapist Denied Release: An Ohio man scheduled for release from prison this week will remain behind bars after his DNA linked him to five unsolved rapes.  Sean Rowe of Fox Columbus reports that 54-year-old Dwayne Wilson, who was already serving a five-year sentence for a separate sexual assault conviction, will now be charged with nine counts of rape and five counts of kidnapping after DNA linked him to assaults against five women between 1994 and 1997.  Ohio Attorney General Mike DeWine recently launched a campaign to test thousands of rape kits that had gone un-tested across the state, so far, the campaign has resulted in over 1,000 hits to DNA already in a nationwide database.   

FL Supreme Court Upholds Death Sentence: Florida's highest court has upheld the death sentence for convicted rapist and murderer William Davis III.  Desiree Stennett of the Orlando Sentinel reports that Davis kidnapped a 19-year-old receptionist from her workplace before raping and strangling her to death.  Davis never denied his involvement in the murder and actually requested that he be sentenced to death during his trial. His attorneys have not announced whether they will appeal to the U.S. Supreme Court.

If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026.  Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.

Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime."  Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt.  What is "substantively unreasonable" you might well ask?  Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case.  "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.

I think that is stretching "elements" way too far.  The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.

Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.

P.S.: Looks like Bill and I were writing on this at the same time.  I'll leave them both up, so readers get two perspectives on the case.

No New SCOTUS Cases, Part II

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Among the cases to which cert was denied today was a very big sentencing case, Jones v. US, No. 13-10026.  The basic issue was whether a sentencing judge could take account of "acquitted conduct."  The DC Circuit, in conformity with others, said yes, and the Supremes allowed its judgment to stand.

There were three votes for cert  --  Scalia, Thomas and Ginsburg.  Doug Berman, one of the leading voices pushing for SCOTUS review, has this post on it at SL&P.  

I cannot go into detail about this right now  --  other duties call  --  but I agree with the denial of cert.  The issue is all but governed by the Court's decision in Watts, decided 17 years ago. Despite Apprendi, a convicted criminal has no right to a determination beyond a reasonable doubt of facts used to fashion a sentence that is within the statutory range.  Jones's sentence was within the range.

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker.  Two remedies were on the table in that case:  Requiring a jury's judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can't have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

Second, contrary to the wide misconception among laymen, an acquittal does not mean the defendant didn't do it.  It means only that the jury was not convinced beyond a reasonable doubt that the government proved every element of the offense.  If defendants should be sentenced on the whole of who they are and what they do  --  as the defense bar routinely insists in every other context  --  then there is no injustice in sentencing them based in part on conduct they actually undertook, whether or not they got convicted for it. 

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