Tuesday, November 15, 2005
From Law.com: Daily Business Review: Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. "We … exercise our supervisory authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional," the panel said in its unusual reprimand.
Defense attorneys, civil liberties groups and the news media celebrated the panel's words, which came in the course of upholding a drug lord's conviction and sentence of more than 30 years in prison. [In spite of the panel's reprimand, some observers believe the Southern District of Florida may still be supersealing cases.]..."How would you know?" asked Randall Marshall, legal director of the ACLU of Florida, which filed an amicus brief in the 11th Circuit case. "There could be others, definitely."
There is also another reason for concern about whether the federal courts have come clean on the secret dockets issue. In its 84-page ruling in U.S.A v. Juan Nicholas Bergonzoli and Fabio Ochoa-Vasquez, released Oct. 20, the 11th Circuit panel failed to acknowledge that the appellate court itself was deeply implicated in secret docketing.
The opinion was written by U.S. District Judge B. Avant Edenfield, a visiting federal judge from Savannah, Ga. Judge Frank M. Hull concurred. Judge Rosemary Barkett, who is based at the court's Miami branch, wrote a lengthy separate opinion in which she partly concurred and partly dissented. Two years ago, the 11th Circuit kept secret a docket and opinion in the habeas corpus case of a young Algerian waiter living in Deerfield Beach, Fla., Mohamed Kamel Bellahouel, who was detained in a terrorism-related investigation.
U.S. District Judge Paul C. Huck in Miami originally had sealed the case and ordered it kept off the public docket -- without ever issuing an order to explain the compelling government interest for doing so. Bellahouel appealed. The 11th Circuit's computer records then were altered to remove any information about the case. And an 11th Circuit panel in Miami closed its courtroom to the public and the news media in March 2003 to hear arguments in the supersealed case -- even keeping the names of Bellahouel's attorneys under wraps. The case only came to light because 11th Circuit clerks mistakenly allowed information about the case to briefly appear on the court's computer record. "There are some ironies to this," said G. Richard Strafer, a Miami appellate attorney who represents Ochoa. "[The 11th Circuit judges] certainly don't address their own use of secret dockets and opinions."...
Secret docketing makes it virtually impossible for anyone not involved in such cases to know of their existence. Even parties involved in the cases sometimes could not obtain copies of certain matters or access the docket so they could assure themselves as to what documents actually were filed with the court.
Criminal defendants lose the protection of public knowledge of their case. Without court information, there is no way for the public and the news media to hold the courts, prosecutors and parties accountable for their actions. And the public and the news media are deprived of information that could trigger public discussion of important public policy issues, such as the appropriateness of government national security actions.
While there are established procedures in the federal system for sealing information in a publicly docketed case on an individualized basis, there is no procedure for removing a case from the public docket and placing it in an alternative, deep-cover docket. [Mark Godsey]
On Monday the FBI published a report concluding that racial prejudice is the most prevalent motive underlying hate crimes. The number of racially-motivated hate crimes reported to the FBI in 2004 numbered 4,042, over half of the 7,649 total reported hate crimes. In other news, the 2,500 citizens of White Settlement, Texas voted by a 9-1 margin against a measure to change the town's name to something "a little easier to swallow" in order to attract outside investors. [Mark Godsey]
A memorial service will be held at 2:00 p.m. this Wednesday in Lee Chapel.
Groot joined the School of Law at Washington and Lee University in 1973, teaching criminal law and procedure and becoming one of the nation's top criminal law experts. In 1990 he was named Class of 1975 Alumni Professor of Law, and in 1999 he took over direction of the Virginia Capital Case Clearinghouse, a trial-level legal aid clinic focused on capital murder defense. Groot retired as director of the VCCC in 2004 but continued his distinctive career as a teacher, scholar and advocate. This summer Groot was appointed by Gov. Mark Warner to the newly formed Forensic Science Board, created by the General Assembly to establish policies, procedures and standards to guide the operations of the Virginia Department of Forensic Science. On leave from the School of Law at the time of his death, Groot had just completed a federal capital defense trial in which the defendant was sentenced to life without parole.
Roger Groot was born July 31, 1942, in Mt. Vernon, Wash., but grew up in south Texas. He attended Vanderbilt University as an undergraduate, graduating magna cum laude in 1962 with a degree in Russian. After serving six years in the Marine Corps, including a tour of duty in Vietnam, Groot attended law school at the University of North Carolina at Chapel Hill, graduating with high honors in 1971. He taught at the University of Georgia for two years before joining Washington and Lee.
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Monday, November 14, 2005
From NPR: Morning Edition, November 14, 2005 · A wheatfield in Georgia, a soybean field in Iowa, a cotton crop in West Texas, a tomato farm in Tennessee: These are crime scenes. The felons are a small group of farmers who falsely claim that weather ruined their crops so they can collect the insurance. The U.S. Department of Agriculture says they cheated the U.S. Treasury and insurance companies out of $160 million last year. An NPR investigation reveals this crime is growing in size and complexity, while some insurance companies look the other way. Listen to story here. [Mark Godsey]
From CNN.com: Washington (AP)--"The ranks of people sentenced to death and the number executed declined in 2004 as the nation's death row population kept shrinking, the government reported Sunday. Last year, a dozen states executed 59 prisoners, six fewer than in 2003, according to the Justice Department's Bureau of Justice Statistics. The report also said 125 people, including five women, who were convicted of murder received a death sentence last year. That was the smallest number since 1973. Last year, 22 death row inmates died of natural causes or committed suicide, while an additional 107 had their sentences commuted, tossed out or overturned...
Richard Dieter, executive director of the Death Penalty Information Center in Washington, said jurors increasingly are reluctant to recommend the death penalty. He cited recent cases where death row prisoners have been freed following media or legal investigations; the use of DNA evidence to exonerate those wrongly convicted; and the increased availability of life-without-parole sentences as an alternative to capital punishment. "The thing that stands out to me is the breadth of the decline," said Dieter, whose group has been critical of how the death penalty is applied. "I think if it were just one year or one of those numbers, it would be less consequential. What we're witnessing is a pullback from the death penalty across the country."
Today, 37 of the 38 states with death penalty laws allow juries to consider life without parole as an alternative. That option may come to have a large effect in Texas, which in 2004 executed 23 prisoners, or more than three times as many death row inmates than any other state. A Texas law that took effect Sept. 1 allows capital murder juries to consider life-without-parole for convicted offenders." [Mark Godsey]
Cornell Profs Author Amicus Briefs
In Holmes v. South Carolina, the U. S. Supreme Court granted certiorari to determine whether the South Carolina rule restricting evidence of the admissibility of the guilt of a third person violated Mr. Holmes' rights protected by the Due Process, Confrontation and compulsory process Clauses. In Holmes, Professors Garvey and Blume authored an amicus brief, filed in support of the petitioner, on behalf of a number of distinguished professors of Evidence Law. Professor Rossi was one of the amici.
In Day v. Crosby, the Court granted certiorari to determine whether, in a habeas corpus matter, the district court may raise a statute of limitations' issue sua sponte. In Day, an amicus brief was filed in support of the petitioner on behalf of a number of academic experts in habeas corpus law. In that case, Professor Blume was one of the amici. One of our alumni, Anne-Marie Luciano '01, now an associate at Dickstein Shaprio in D.C. was one of the authors of the brief.
CrimProf Clymer Appears Before Senate Judiciary Committee
The Senate Committee on the Judiciary convened a hearing on October 19 regarding "Reporters' Privilege Legislation: An Additional Investigation of Issues and Implications." Witnesses called to testify included Cornell Law School's Professor Steven D. Clymer along with David Westin, president of ABC News; Judith Miller, investigative reporter and senior writer for The New York Times; Anne Gordon, managing editor of the Philadelphia Inquirer; Dale Davenport, editorial page editor of The Patriot-News in Harrisburg, Pennsylvania; Joseph E. diGenova, founding partner diGenova & Toensing LLP; and Chuck Rosenberg, United States Attorney for the Southern District of Texas on behalf of the United States Department of Justice.
Sunday, November 13, 2005
Duke Law School students will be directly involved in researching and writing briefs and helping craft strategy for the military lawyers who are defending Guantanamo Bay detainees. In October, the Law School established the Guantanamo Defense Clinic, by special arrangement between the chief defense counsel for the detainees, Col. Dwight H. Sullivan, USMCR, Office of Military Commissions, Department of Defense, and Duke Law Professor Madeline Morris, an expert in international and humanitarian law who is serving as a legal adviser to Sullivan as well as directing the clinic. Sullivan and another member of his military defense team held an extensive meeting with the students on Oct. 27 at the Law School , briefing them on the status of the detainees' cases and brainstorming defense strategy. “Our students have the opportunity to address complex questions of American and international law that are unique to the war on terror, such as whether terrorism is a crime and the very legitimacy of the use of military commissions for trying civilians engaged in war-like acts,” said Morris, who also teaches the classroom component of the clinic.
On November 7 five detainees were newly charged with war crimes, bringing to nine—out of a total of 505—the number of prisoners with cases pending before the military commissions authorized by President George W. Bush. The four cases on which students received briefings involve Ali Hamza Ahmed Sulayman Al Bahlul, an alleged al Qaeda propagandist; Ibrahim Ahmed Mahmoud Al Qosi, alleged to have been a long-time associate, accountant and bodyguard of Osama bin Laden; David Hicks, an Australian national alleged to have trained and fought with the Kosovo Liberation Army and with al Qaeda in Afghanistan; and Salim Ahmed Hamdan, a former driver for Osama bin Laden.
Charges levied against the detainees vary, but include conspiracy to commit attacks on civilians, murder and terrorism. Briefs drafted by clinic students have already been filed in various motions pertaining to Hicks' defense. On Monday, the United States Supreme Court said it would hear a defense challenge to the legality of the military commissions in the case of Hamdan. While the military commissions will likely be stayed pending a ruling in that case, Morris said the defense team -- and the clinic students -- will use the time to prepare for future proceedings in all nine cases.
“I wouldn't miss this,” said third-year law student Audry Casusol, one of five students enrolled in the clinic, which will expand to accommodate 24 in the spring semester. “We are not defending any acts the detainees are alleged to have done, but their rights. The system must be fair.”
Added David Thompson, a second-year law student participating in the clinic , “ I believe the international and domestic legal questions that emanate out of the United States ' decision to detain suspected terrorists in Guantanamo Bay are incredibly important. Not only do these issues have bearing on American and global security, but they also have tremendous bearing on the character of American jurisprudence.”
Duke Law Dean Katharine T. Bartlett said the establishment of the Guantanamo Defense Clinic provides a great opportunity for students and fits well with one of the school's strengths. “We are without doubt one of the strongest law schools in the country in the area of national security law, and we are on our way to being one of the strongest clinical schools as well. This is a unique opportunity for Duke and I am thrilled that Madeline Morris, with her expertise in both criminal law and human rights, was positioned to be able to take advantage of it.”
For more information, contact Frances Presma (919) 613-7248 or firstname.lastname@example.org .
|(1)||186||Rescue Without Law: An Empirical Perspective on the Duty to Rescue |
David A. Hyman,
University of Illinois College of Law,
Date posted to database: September 7, 2005
Last Revised: September 20, 2005
|(2)||120||Property Rules and Liability Rules, Once Again |
Keith N. Hylton,
Boston University School of Law,
Date posted to database: October 5, 2005
Last Revised: November 2, 2005
|(3)||105||Home as a Legal Concept |
Widener University - School of Law,
Date posted to database: September 16, 2005
Last Revised: September 16, 2005
|(4)||98||Prisons of the Mind: Social Value and Economic Inefficiency in the Criminal Justice Response to Mental Illness |
Amanda C. Pustilnik,
Covington & Burling,
Date posted to database: August 26, 2005
Last Revised: September 8, 2005
|(5)||80||Separation of Powers and the Criminal Law |
New York University - School of Law,
Date posted to database: September 21, 2005
Last Revised: October 7, 2005
Inmates at the Hillsborough County, Florida Jail are spicing things up with an original recipe for hot sauce. The inmates had been growing hot peppers on the jail's 6-acre farm as part of a horticulture program at the jail for about a year when the one of the inmates suggested turning the peppers into a sauce. After a year of trials, errors, and taste-tests, they perfected their very own Jailhouse Fire hot sauce, which already has been integrated into the inmates' diet and sold for $3.25 per five-ounce bottle to priority customers, like the county sheriff. It may go on sale to the general public as early as next year, with proceeds from the sauce going to the jail's culinary and horticulture programs.
But if you want the real thing, you'll have to go to Hillsborough County Jail yourself, as a visitor of course. According to the jail's Horticulture Program director, the inmates themselves prefer a "considerably hotter" version of Jailhouse Fire than will be commercially available. Just don't say, "I can eat the hottest pepper" unless you're ready to prove it. Which inmate can eat the hottest pepper has become the source of intrajail competition and jailhouse pride. [Mark Godsey]
LawProf Darian Ibrahim of the University of Arizona has posted a very interesting paper, The Anticruelty Statute: A Study in Animal Welfare on SSRN; the article is forthcoming in 1 J. Animal L. & Ethics __ (2006), published at Penn Law. His description of the paper: "Animal anticruelty statutes, which are criminal statutes on the books of every state, contain general and broadly worded prohibitions on cruelty similar to child protection statutes. In this paper, [the author] argues that anticruelty statutes are, and will continue to be, ineffective in policing against animal suffering for two main reasons. First, many of these statutes explicitly exempt the activities that cause 99% of animal suffering (e.g., food production, hunting, and animal experimentation) and will continue to do so as long as society accepts these activities as legitimate. Second, even when anticruelty statutes do not explicitly contain these exemptions, courts have interpreted them in, and indeed must continue to do so to satisfy fair warning requirements. This article contends that anticruelty statutes, while noble in theory, are ineffective in practice precisely because they do not challenge the underlying exploitation of animals, but focus instead on unworkable notions of “humane treatment”." Paper here. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=759264
National District Attorney's Association, National Governor's Association, Issue Policy Statement on Prisoner Reentry
On November 10 the Senate, in what may not be its final vote on the matter, approved an amendment to a military budget bill that would deprive the enemy combatants at Guantanamo Bay of federal habeas corpus. The bill would overturn the June 2004 Supreme Court opinion in Rasul v. Bush, 542 U.S. 466. This action of the Senate has excited much interest as a possible violation of the Suspension Clause of the Constitution, Article I, Section 9, Clause 2:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
I propose that “habeas corpus” in this provision is not the same, and is in fact of smaller scope, than the statutory phrase “habeas corpus” in the Rasul decision, which construed 28 USC 2241, subdivision (a), granting federal courts power to grant writs of “habeas corpus”. Rasul did not actually focus on the phrase “habeas corpus”; it was concerned with other phrases from the habeas chapter of the United States Code, such as “within their respective jurisdictions”. But the Court was concerned with the scope of the writ. We know, or think we know, what “habeas corpus” in the statute is, but is it the same as “habeas corpus” in the Suspension Clause?
The case for the negative is, to put it in the language of talk radio, the guys in the powdered wigs would have flipped over the idea that habeas extends to foreigners we are in combat with who have been captured and are being held by us abroad. While this crude formulation may hardly be equal to the scholarship the issue demands, it is hard to brush the conclusion off inelegantly though it may have been stated. If statutory habeas does extend to the Guantanamo detainees (an unarguable proposition, given that the Supreme Court is the ultimate authority on the meaning of a federal statute) does it ineluctably follow that Congress may not narrow the reach of the statute without running afoul of the Suspension Clause?
I maintain that Congress can constitutionally exclude the detainees, at least insofar as the core of the Suspension Clause is concerned (collateral issues involving tampering with jurisdiction over pending cases and the like are other matters): First, the Rasul decision, or more properly, given the convention that the Court only divines Congressional intent, Congress itself, has extended habeas far beyond what anybody alive during the ratification of the Constitution would have envisioned. True, Rasul cited a variety of cases seemingly showing that the common law understanding of the reach of habeas extended outside of what we think of a country’s territory (but none of these cases seemed to involve non-citizens allegedly in combat with the sovereign. Did the framers intend to constitutionalize a reach of habeas to alien prisoners of war being held abroad? Unlikely.
Second, if the Rasul Court goofed (if it did not correctly divine Congressional intent) it is a commonplace to be encouraged that Congress politely correct the Court by amending the statute. Could such a correction be what the Framers envisioned when they strove to preserve the Great Writ by prohibiting its “suspension”?
Rasul noted that habeas has evolved over the past two centuries: the habeas statute clearly has expanded the writ "beyond the limits that obtained during the 17th and 18th centuries. 542 U.S. at 474. But why would the Suspension Clause automatically grow in tandem with all expansions of statutory habeas no matter how far-fetched in the eighteenth century? A built in ratchet would mean that the framers intended any expansions due to temporary conditions, or even the product of colossal legislative mistakes, to be irremediable, frozen in time absent constitutional amendment. Bitter experience with an ill-conceived expansion of habeas would be of academic interest only, and while I myself am an interested academic, I see the Constitution as more concerned with governance than with intellectual stimulation.