Saturday, April 9, 2005
A school district in a suburb of Cincinnati recently paid a PI company $60,000 to have a young-looking mole pose as a student for a semester and identify all the major drug dealers. The school said that drug dogs were no longer working, as the students had become saavy enough to avoid detection. The mole's work led to the arrest of 16 students, who were charged with selling X, mushrooms, prescription drugs and pot. Story . . . [Mark Godsey]
Friday, April 8, 2005
From the DPIC: "Legislation that would allow those convicted of
capital murder to be sentenced to life in prison without parole
recently failed to win a key procedural vote in the Texas Senate,
largely because of opposition from prosecutors and pro-death penalty
organizations who said it would result in fewer death sentences.
Although supported by a strong majority of the senators and the people
of Texas, the bill needed a 2/3 majority in order to be debated. The
Senate's failure to pass the bill means that Texas and New Mexico
remain the only two death penalty states in the nation to not offer
life without parole as an alternative sentencing option." Story . . . [Mark Godsey]
From MSNBC.com: "Are the 540 al-Qaida and other suspects held at the naval base at Guantanamo Bay, Cuba., entitled to prisoner of war status under the 1949 Geneva Convention?
A three-judge panel of the Court of Appeals in Washington wrestled with those questions Thursday during 90 minutes of oral arguments in the case of Salim Ahmed Hamdan, an alleged chauffeur and bodyguard for Osama bin Laden. With the national security stakes so high in Hamdan's case, it seems inevitably headed to the Supreme Court for final resolution." Story . . . [Mark Godsey]
Thursday, April 7, 2005
But I don't like lawyers badmouthing their clients. This criminal defense lawyer's press release (yes, press release) seems to highlight the minimal sentence the lawyer's skill achieved, in spite of the client's remarkable offense. [Jack Chin]
David A. Martin, a professor at the University of Virginia Law School and former General Counsel of the Immigration and Naturalization Service, will present a lecture titled "Courts and Military Detainees: The Overlooked Virtues of Deferential Review" on Monday, April 18, at the William & Mary Law School.
Martin will speak at 3:30 p.m. in Room 119 at the Law School on South Henry Street. The lecture is free and open to the public and is part of the Distinguished Lecture Series sponsored by the new Human Rights and National Security Law Program.
In his talk, Martin will propose a regime that would allow courts to give individualized consideration to challenges to detention at U.S. military bases. Under his proposal, which fills gaps left by the Supreme Court after its decision in Rasul v. Bush, courts would apply a deferential standard of review that would still provide a genuine check against executive overreaching.
In the Rasul case, the Supreme Court held that federal courts have jurisdiction over habeas corpus petitions filed by detainees at the U.S. military base at Guantanamo, but was silent on what rights detainees can claim, the standards and procedures that will apply to such petitions, and whether habeas jurisdiction also covers U.S. detainees at other foreign locations. Martin’s proposal attempts to leave room for a future Court holding applying habeas at other military sites while still assuring military effectiveness in the war on terror. [Mark Godsey]
From the DPIC: "According to a new report issued by Amnesty
International, the United States is among four countries that carried
out the vast majority of the 3,797 executions around the world in 2004.
Amnesty's report states that the nations carrying out the most
executioners last year were China (3,400), Iran (159), Vietnam (64),
United States (59), Saudi Arabia (33), Pakistan (15), Kuwait (9),
Bangladesh (7), Egypt (6), Singapore (6), and Yemen (6). The report
notes that the increase in executions in China is partly due to a new
way of estimating such executions since the government does not
publicly release this data. The use of the death penalty declined in
the U.S. in 2004 compared to 2003." To obtain the report, click here. [Mark Godsey]
Jeffrey Rachlinski of Cornell, Andrew Wistrich and Chris Guthrie of Vanderbilt have posted Can Judges Ignore Inadmissible Information?: The Difficulty of Deliberately Disregarding on SSRN. Here's the abstract:
Due process requires courts to make
decisions based on the evidence before them without regard to
information outside of the record. Skepticism about the ability of
jurors to ignore inadmissible information is widespread. Empirical
research confirms that this skepticism is well-founded. Many courts and
commentators, however, assume that judges can accomplish what jurors
cannot. This Article reports the results of experiments we have
conducted to determine whether judges can ignore inadmissible
information. We found that the judges who participated in our
experiments struggled to perform this challenging mental task. The
judges had difficulty disregarding demands disclosed during a
settlement conference, conversation protected by the attorney-client
privilege, prior sexual history of an alleged rape victim, prior
criminal convictions of a plaintiff, and information the government had
promised not to rely upon at sentencing. This information influenced
judges' decisions even when they were reminded, or themselves had
ruled, that the information was inadmissible. In contrast, the judges
were able to ignore inadmissible information obtained in violation of a
criminal defendant’s right to counsel and the outcome of a search when
determining whether probable cause existed. We conclude that judges are
generally unable to avoid being influenced by relevant but inadmissible
information of which they are aware. Nevertheless, judges displayed a
surprising ability to do so in some situations.
To obtain a copy of the paper, click here. [Mark Godsey]
Wednesday, April 6, 2005
Incoming FSU CrimProf Dan Markel (located in what he calls "Sweet Sassy Tallahassee, aka Funky T-town") and incoming Hastings lawprof Ethan Leib have a new blog that looks very interesting: http://prawfsblawg.blogs.com/ The blog is "A group of young legal turks and turkeys offering their thoughts on law and the things that really matter in life." Too bad the Law Professor Blog Network is going to have to sue them for the rather blatant trademark infringement. [Jack Chin]
CrimProf Arnold Loewy of North Carolina published the following editorial titled Judicial Activism When Convenient in the Raleigh News & Observer:
During the recent presidential campaign, President Bush expressed his abhorrence of activist judges. When asked for an example, he referred to the Ninth Circuit judges who invalidated the daily recitation in elementary school of the Pledge of Allegiance because it contained the words "under God" in it. Less than six months later, this same President Bush, now safely ensconced for another four years, successfully urged Congress to involve Federal judges in the fate of Terry Schiavo. While one might sympathize with the President’s strong pro-life stand, it is hard to reconcile his attack on judicial activism in the Pledge case with his singular endorsement of unprecedented judicial activism in the Schiavo case.
Let us compare the cases. In the Pledge case, the Ninth Circuit was confronted with a claim that atheist children were compelled to pledge (falsely in their mind) that this Nation is under God. Their only alternative was to opt out and appear unpatriotic. After carefully examining prior Supreme Court precedent (as a non-activist lower court is supposed to do), the court concluded that the Establishment of Religion clause of the Constitution precluded confronting an atheist student with such a cruel dilemma. Ironically, when the case reached the Supreme Court, Justice Thomas (Bush’s paradigm of a non-activist judge) concluded that the Ninth Circuit had correctly read prior precedent. He, however, would have reached the opposite conclusion by overruling the prior precedent (a rather activist thing for a judge to do).
Now let us consider Schiavo. The issues are either factual (is she or isn’t she persistently vegetative) or questions of State law (who has the right to speak for Terry). The only conceivable Federal questions have already been resolved: (1) she has a right to live and (2) she has a right to be free of invasive artificial nutrition and hydration devices. Because the rights are mutually exclusive, she cannot exercise both. Consequently, the questions are which right will be chosen for her and who will do the choosing. And, both of those questions are questions of State, not Federal, law.
With no Federal questions, would it not be the height of judicial activism for a Federal court to pretend that there were? And, even if we could excuse Federal judicial activism where the State courts had thwarted the will of the people, that is hardly the case here. In fact, the latest polls show that a substantial majority of the populace would not want to live under the unfortunate circumstances that have befallen Terry Schiavo. Perhaps more than anything, this explains why all of the Federal courts that have heard the case have refused to intervene. The courts understand the importance of judicial restraint and the consequent limits on their power. Unfortunately for the President, this time he does not.
So, what can we conclude from the president’s simultaneous denunciation of juduical activism and his endorsement of the special bill to involve the Federal judiciary in the Schiavo case. As a great constitutional theorist of an earlier generation once said in another context: "I cannot admire both the candor and the capacity of" a man who would maintain these two positions simultaneously.
My own view is that Mr. Bush is lacking in candor. He is fine with judicial activists so long as their activism supports a philosophically conservative agenda. I suppose that saying: "I support judicial activism if, but only if, the judges are on my side" is an unspeakably pompous position for a President to maintain. Unfortunately, at least for this President, it is not too pompous a proposition upon which to act.