Principles of a lower court's discretion according to SCOTUS

The decision in Beard, comparing the per curiam (unsigned) opinion in Michigan v. Fischer, Stevens and Sotomayor dissenting (opinion here); the Court swoops in to reverse the trial judge and appellate affirmation in Fischer ruling in favor of suppression motion while in Beard narrowly holds on the basis that discretion in the lower courts ought to be preserved.

Makes sense as long as one does not take into account principle too strongly.

Effective Assistance of Counsel

Here at this link is an article one kind reader called attention to. Called Effective Assistance of Counsel and Consequences of Guilty Pleas (2002), it represents slow if steady progress in the study of criminal law in general, and one of the pillars thereof, the right to a lawyer for your defense, which often means nothing more than advice to take a plea if you don't want to go to jail for a much longer time, pay out your life savings for legal fees, and/or both.

Section 1983, DNA, Claims of Innocence (and Potty Fodder for Newsletter)

Here is a new cert grant in a DNA evidence case, District Attorney’s Office v. Osborne (08-6) courtesy of SCOTUSBLOG. An implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

Fodder for the Newsletter, which I promise will be out before December. Now for the POTTY FODDER UPDATE, Dahlia Lithwick gives us the following in Slate: (Shit Doesn't Happen, The Supreme Court's 100 percent Dirt-Free Exploration of Dirty Words)

FCC v. Fox Television is not a First Amendment case. It's a First Amendment-minus case, in that while the various justices insist that it need not be decided on constitutional grounds, it nevertheless provokes one of the best First Amendment debates I have ever heard. Since the Supreme Court decided FCC v. Pacifica in 1978, which found the midday radio broadcast of George Carlin's "Filthy Words" monologue to be indecent, the FCC rule has been this: The agency may regulate a daytime broadcast of the sort of "verbal shock treatment" of the Carlin monologue, but it will overlook the "isolated use" of one-off potty words. A 2001 clarification of the FCC policy provided that a finding of indecency requires that the naughty word "describe or depict sexual or excretory organs or activities" and be "patently offensive as measured by contemporary community standards."

Enter Bono, who accepted his 2003 Golden Globe with the heartfelt (live) declaration that the honor was "really, really fucking brilliant." Oh. And Cher, who received her 2002 Billboard music award with the gracious, "I've also had critics for the last 40 years saying that I was on my way out every year. So fuck 'em." And the ever delightful Nicole Richie, who wowed them at the Billboard awards the following year with the observation that "it's not so fucking simple" to remove "cow shit out of a Prada purse."

Back to Basics: AEDPA and Clearly Established Law (?)

Here is my favorite comment from the barrel over at Orin Kerr's post on this week's dp cases:

All Penry relief is collateral. If there is not something in Penry that is "clearly established," Penry has no meaning at all, since it is not a claim that can be asserted on direct review. Indeed, whatever you might "think" about the clarity of the law, the court has decided several penry cases under 2254. There is established law there. Maybe you agree with the variety of Supreme Court decisions to the contrary, but then you just don't really care about precedent and there's not much to say.

I wouldn't get too sidetracked about this "congress has no business" argument. That's just not the issue, and it would be a disservice to the majority to act like that is the holding.

The law here is close - but it's close on the question of what is clearly established. Yes, it is "confused," but not in the traditional sense that it is confused on the straight-up merits question.

People like Kent S. would like to have everyone believe that just because it is not clear what is clearly established, that this is sufficient ambiguity to bar relief. This is, of course, ridiculous. There's no logical limit if you are going to stack "clearlies." Does the law have to be clearly established, or does it have to be clear what is clearly established. How about clear about what is clear about what is clearly established.

The "mess" was all about what law was clearly established, so you can't circularly cite confusion as to what was clearly established as a reason for holding nothing is clearly established at all, if 2254(d)(1) is ever to mean anything.

Also, the Texas Court of Criminal Appeals is simply off the reservation. For those unfamiliar with the way they do business, it's a real eye-opener. I think the Fifth Circuit sometimes gets a bad rap because they're applying deference to a state court that already delivers the most lazy, cryptic criminal opinions in the country. All righteous anger about federal interference in state adjudication sounds truly absurd if you have state adjudications that lack any indicia of reliability.

AND HERE are some persuasive reasons why the dissent(s) are discombobulational:

[OK Comments: C.F.W., I don't understand this comment. So in your view, the Supreme Court's job is to follow statutes if and only if the Justices believe that Congress "has business" in passing the law? I suppose I'm not surprised that Roberts missed that.]

Roberts wrote a dissent, and knew how the AEDPA came about - from Lundgren in CA trying to work around 9th Circuit cases. The idea was to put a thumb on the scales of justice - in favor of death. A good federal courts professor would have given a C to a student who did not at least mention what is wrong (or questionable, and possibly unconstitutional) about the structure of the law - making the circuits and district courts irrelevant as creators of precedent.

cfw: how was it the "key point" in this case that "Congress has no business freezing the law as it was decided by a particular date by the USSCT"? This was pretty much a straightforward AEDPA case, whether you agree with AEDPA or not. In fact, I'm sure the majority would have gladly just ignored AEDPA if it could have, but so long as AEDPA is on the books and not ruled unconstitutional (which was certainly not at issue here), the Court has to abide by it. And so long as it has to abide by it, the majority opinion is awfully implausible.

The dissent is not persuasive unless it at least touches on the idea that telling judges what they can and cannot cite as precedent is unconstitutional (blurring lines between Article III and other parts of the US Const.). The dissent is materially incomplete, and the CJ knows it (from his days as an advocate - or assistant to advocates - in a DP case).

This may be getting just a bit cynical, but why doesn't congress just pass a law saying that only the Tennessee courts, or just pick any state, are the only courts from which precedent can be drawn? Then, of course, we'll pack the TN courts with Supreme Court level justices and "away we go" (Johnny lives on, or was that Jackie?).

VERY interesting CRIMINAL day in SCOTUS

At 10 AM eastern, the Court released opinions in three criminal cases, Smith v. Texas, Abdul-Kabir v. Quaterman, and Brewer v. Quarterman. The opinions are here, (via SCOTUSblog--who else can keep up with that?).

The comments on Prof. Berman's SL&P are most interesting: in essence, the Court has no clue as to what it is doing, and a few justices (the "swingers") are at once principled and totally out in left field depending upon whether the right to abortion or the death penalty is in issue.

ALSO: The AP's Frederic J. Frommer reports here on this morning's oral argument in the campaign finance cases; Kristin Jensen and Greg Stohr have this article at Bloomberg; in the Washington Post, Robert Barnes reports here that a majority of the justices appeared skeptical about a key provision of the McCain- Feingold campaign finance act; and Rick Hasen has this post discussing his initial reactions to today's oral argument in FEC v. Wisconsin Right to Life (No. 06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (No. 06-970) at the Election Law blog. (Thanks, SCOTUSblog! You may not be the greatest, but you come close).

What is "Violent Felony" getting 15 yr mandotory minimum sentence?

Here's Doc Berman (again--he's the GREATEST!): (the dissents are always the most interesting and informative--so much for "consensus" -- the five-to-four splits are always the most controversial too)

Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the 5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James. Here is the basic early report from SCOTUSblog on James:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Based on the unusual vote line-up and the outcome, I suspect James will provide many tea leaves about future Sixth Amendment cases. I will, of course, post and comment on the opinion once it is available.

UPDATE: The James opinion can now be accessed here. It runs 44 pages total (including the syllabus). Here is the dissenting line-up: "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion." Why can't my printer go faster!!

Other Stuff of Interest: (from How Appealing and Howard Bashman--again--he's the goto news guy on the blawgershpere!)

"Microsoft Settles Iowa Lawsuit": The Associated Press provides a report that begins, "Microsoft Corp. agreed Wednesday to pay Iowans up to $180 million to settle a class-action lawsuit that claimed the company had a monopoly that cost the state's citizens millions of dollars extra for software products."

and

Access online the transcript of today's U.S. Supreme Court oral argument in Tennessee Secondary School Athletic Assn. v. Brentwood Academy, No. 06-427: The transcript can be accessed here. In coverage of the oral argument, The Associated Press reports that "Court Considers Football Recruiting Case."

and

Access online today's (now yesterday's) U.S. Supreme Court ruling in the partial-birth abortion ban cases: You can access the decision at this link. Justice Anthony M. Kennedy delivered the opinion of the Court, in which the Chief Justice and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr. joined. Justice Thomas also filed a concurring opinion in which Justice Scalia joined. Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer joined.

Although the cases were argued separately (access the oral argument transcripts here and here), the Court disposed of the cases by means of a single opinion.

In his concurrence, Justice Thomas states: "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution." It is worth noting that the Court's two newest Justices -- the Chief Justice and Justice Alito -- did not join in Justice Thomas's concurring opinion.

Panetti in the Supreme Court Wednesday

From SL & P and Prof. Doc Berman:

Because the issue involves a somewhat crazy issue about a possibly crazy killer, the Panetti case to be argued before the Supreme Court on Wednesday is getting significant media attention. (See my prior post here along with more recent coverage from the AP, from the Houston Chronicle, and from the San Antonio Express.)

SCOTUSblog will also have more on this.

Uttecht and Criminal Jury trial(s) in Supreme Court Tuesday

Via SCOTUSblog:

The Supreme Court will hear oral argument (Tuesday, 4/17) in No. 06-413, Uttecht v. Brown. Lyle Denniston's preview of the case can be found here. A collection of other blog commentary on the case is below:

In Cornell Law School's Legal Information Institute Bulletin, Kelly Cooke & Heidi Guetschow preview the capital case here. Ross Runkel has this preview and prediction at the Supreme Court Times. Here, the Death Penalty Information Center gives a brief synopsis of the jury selection case.

Capital Defense Weekly has this post discussing Uttecht v. Brown; Doug Berman of Sentencing Law and Policy weighs in on the Court's decision to grant certiorari in this case here; Edward Bills has this post discussing the Seattle case at the Bodily Injury Blog.

UPDATE: The oral argument transcript in Uttecht v. Brown is now available here.

Quaint Thoughts About Criminal Procedure

A Very Interesting Telephone Conversation

nb. Here is an interesting item I just found, entitled, "Recidivism and Reform, Competing Views of the State's Role in Prison" (by Jordan Ballor)--you will also find this very interesting pdf, "The State of the Law, 2006: Legal Developments Affecting Government Partnerships with Faith-Based Organizations" (by Ira Lupu and Robert Tuttle, of George Washington University's School of Law)
The Acton Institute's article was so good that I have added them to my list of links to Foundations. It is the Power Blog that you might want to sniff around in.

Yesterday I spoke to a kind and generous guy who shall remain anonymous. This person is a fellow attorney and member of the local county bar association. When I told him that the primary “target” of my project was prisoners, he kindly informed me that this group is not his primary concern, and that he sought rather to be serving the unmet legal needs of people outside of prison, making a special point to mention that these are people who have not been convicted of a crime. I should add the term not “yet” been convicted.

It was curious, thinking back now, that he would point out the fact of the conviction rather than the incarceration. So wait, do all prisoners fall into the category of needing to be locked up? Alternatives may be just as effective in some cases. That’s point number one.

It is far too easy for us to think of prisoners as richly having deserved to be imprisoned. In many cases true desserts is justified. In more than a few cases it’s not. An example is drug crimes and morality crimes. But we stray. Focusing on the crime makes it far easier to justify the prisons, to justify building, maintaining and expanding them. But when the price is paid, the sentence is carried to its full conclusion, the prison doors are opened and the prisoners become “free” again.

The attitude on the other end of my anonymous conversation clearly indicates the general nature of the prejudice that all prisoners face as a class, seeking to return to society when they are freed, in hurdling the barrier to “normalcy,” whether or not they needed to be imprisoned. That means in most cases needing a living wage and job, gainful employment. They could just as well have been whipped or put in stocks and sent on their way, back to work, or whatever. Probation for first time offenders is like this. Mandatory minimum sentences changed all that. Has it made society any better, safer, more, well, improved?

Imprisonment is actually banishment. Try moving to a new place and remaking your life. That in itself is punitive. Then try doing this after having slept, like old Rip Van Winkle, for a hundred years (okay, I exaggerated), locked away. All but forgotten.

Not only that, my caller demonstrated the hurdle that we all face, you and me, when seeking not to be charged with a crime, initially, even at the investigative stages, and when seeking to defend against charges of crime after they have been brought against the individual. The prejudicial character of this slice of American life is very strong, and this slice of American life is not insignificant.

The preference to look away is perfectly understandable. At the same time I now find it surprising coming from someone who should have, but clearly has not considered the matter very carefully. I must confess that I was one of those who had failed in an earlier life to consider this matter more carefully, even as I embarked on a career that included a bit of indigent defense work.

It was distasteful, admittedly, (I can not quite say why--perhaps I was rightly or wrongly thinking of raising my family, for their safety, or just of what I could choose or not choose to expose them to as part of my own career, or of my own childhood--maybe these are just excuses--I really do not have the answer, except perhaps to blame it on prejudice) and I chose to try to get away from it. But I can not look the other way any more. I’ve had what some might call a conversion or epiphany. Now I understand the importance of this particular section of American life.

To make a long story short I suggested to my very generous anonymous lawyer, generous for letting me talk to him for so long, that he consider the fact that people in the prisons have at a minimum four (4) (parents, siblings, grandparents, and children) individual immediate family members (and on further thought, four classes of family members) who are more than likely feeling the immediate impact of their situation, that is, of knowing somebody actually locked away in prison.

It is the needs of this cohort or group of American citizens that the Innocence Project hopes to serve the most. At the same time these efforts benefit all of the individuals who have been charged, as well as those who will be charged in the future , because the rights to habeas corpus and other “quaint” matters of criminal and constitutional procedure have a way of directly affecting the way in which the fundamental rights to Criminal Trials, and Appeals are vindicated. I hesitate to say it, but there could well be consequences whether intended or not for related areas of (non-criminal) constitutional law and federal civil procedure. The very nature of all of all of our fundamental rights are at stake when we tinker with habeas corpus, criminal procedure, and the Constitution.

Whenever a fundamental right is at stake you had better believe that it affects you in ways that you might never understand, until one day you wake up and discover that it is gone. When you hear of people given to complaining about the fact that “new” constitutional rights are being “made up” by the “personal preferences” of “activist judges,” you should well consider who is behind these efforts to take away certain hard-won and well established constitutional rights that have been around for so long a time already. Then consider who is trying to save them. Then, after that, think about who benefits.