Holy Cross

Given the fabulous opinion of Crawford v. Washington, I thought I would share with you what Edward Bennett Williams described as the first transcript of a cross-examination. It comes from the Thirteenth Chapter of Daniel.

In Babylon there lived a man named Joakim, who married a very beautiful and God-fearing woman, Susanna, the daughter of Hilkiah; her pious parents had trained their daughter according to the law of Moses.

Joakim was very rich; he had a garden near his house, and the Jews had recourse to him often because he was the most respected of them all.

That year, two elders of the people were appointed judges, of whom the Lord said, "Wickedness has come out of Babylon: from the elders who were to govern the people as judges."

These men, to whom all brought their cases, frequented the house of Joakim.

When the people left at noon, Susanna used to enter her husband's garden for a walk.

When the old men saw her enter every day for her walk, they began to lust for her.

They suppressed their consciences; they would not allow their eyes to look to heaven, and did not keep in mind just judgments.

Though both were enamored of her, they did not tell each other their trouble, for they were ashamed to reveal their lustful desire to have her.

Day by day they watched eagerly for her.

One day they said to each other, "Let us be off for home, it is time for lunch." So they went out and parted; but both turned back, and when they met again, they asked each other the reason. They admitted their lust, and then they agreed to look for an occasion when they could meet her alone.

One day, while they were waiting for the right moment, she entered the garden as usual, with two maids only. She decided to bathe, for the weather was warm.

Nobody else was there except the two elders, who had hidden themselves and were watching her.

"Bring me oil and soap," she said to the maids, "and shut the garden doors while I bathe."

They did as she said; they shut the garden doors and left by the side gate to fetch what she had ordered, unaware that the elders were hidden inside.

As soon as the maids had left, the two old men got up and hurried to her.

"Look," they said, "the garden doors are shut, and no one can see us; give in to our desire, and lie with us.

If you refuse, we will testify against you that you dismissed your maids because a young man was here with you."

"I am completely trapped," Susanna groaned. "If I yield, it will be my death; if I refuse, I cannot escape your power.

Yet it is better for me to fall into your power without guilt than to sin before the Lord."

Then Susanna shrieked, and the old men also shouted at her, as one of them ran to open the garden doors.

When the people in the house heard the cries from the garden, they rushed in by the side gate to see what had happened to her.

At the accusations by the old men, the servants felt very much ashamed, for never had any such thing been said about Susanna.

When the people came to her husband Joakim the next day, the two wicked elders also came, fully determined to put Susanna to death. Before all the people they ordered:

"Send for Susanna, the daughter of Hilkiah, the wife of Joakim." When she was sent for, she came with her parents, children and all her relatives.

Susanna, very delicate and beautiful, was veiled; but those wicked men ordered her to uncover her face so as to sate themselves with her beauty.

All her relatives and the onlookers were weeping.

In the midst of the people the two elders rose up and laid their hands on her head.

Through her tears she looked up to heaven, for she trusted in the Lord wholeheartedly.

The elders made this accusation: "As we were walking in the garden alone, this woman entered with two girls and shut the doors of the garden, dismissing the girls.

A young man, who was hidden there, came and lay with her.

When we, in a corner of the garden, saw this crime, we ran toward them.

We saw them lying together, but the man we could not hold, because he was stronger than we; he opened the doors and ran off.

Then we seized this one and asked who the young man was, but she refused to tell us. We testify to this." The assembly believed them, since they were elders and judges of the people, and they condemned her to death.

But Susanna cried aloud: "O eternal God, you know what is hidden and are aware of all things before they come to be: you know that they have testified falsely against me. Here I am about to die, though I have done none of the things with which these wicked men have charged me."

The Lord heard her prayer.

[Enter the Cross-Examiner] As she was being led to execution, God stirred up the holy spirit of a young boy named Daniel, and he cried aloud: "I will have no part in the death of this woman."

All the people turned and asked him, "What is this you are saying?"

He stood in their midst and continued, "Are you such fools, O Israelites! To condemn a woman of Israel without examination and without clear evidence?

Return to court, for they have testified falsely against her."

Then all the people returned in haste. To Daniel the elders said, "Come, sit with us and inform us, since God has given you the prestige of old age."

[Enter the Crucible of Cross-Examination]
But he replied, "Separate these two far from one another that I may examine them."

After they were separated one from the other, he called one of them and said: "How you have grown evil with age! Now have your past sins come to term:

passing unjust sentences, condemning the innocent, and freeing the guilty, although the Lord says, "The innocent and the just you shall not put to death.'

Now, then, if you were a witness, tell me under what tree you saw them together."

"Under a mastic tree," he answered. "Your fine lie has cost you your head," said Daniel; "for the angel of God shall receive the sentence from him and split you in two."

Putting him to one side, he ordered the other one to be brought. "Offspring of Canaan, not of Judah," Daniel said to him, "beauty has seduced you, lust has subverted your conscience.

This is how you acted with the daughters of Israel, and in their fear they yielded to you; but a daughter of Judah did not tolerate your wickedness.

Now, then, tell me under what tree you surprised them together."

"Under an oak," he said. "Your fine lie has cost you also your head," said Daniel; "for the angel of God waits with a sword to cut you in two so as to make an end of you both."

The whole assembly cried aloud, blessing God who saves those that hope in him.

They rose up against the two elders, for by their own words Daniel had convicted them of perjury. According to the law of Moses, they inflicted on them the penalty they had plotted to impose on their neighbor: they put them to death. Thus was innocent blood spared that day.

Hilkiah and his wife praised God for their daughter Susanna, as did Joakim her husband and all her relatives, because she was found innocent of any shameful deed.

And from that day onward Daniel was greatly esteemed by the people.

Death penalty stuff

A year ago I counted heads in over 75 Supreme Court death penalty cases. I compiled this information into an Excel sheet to track whether and when a particular now-serving justice voted for death. If anyone wants it, email me (overpundit at yahoo dot com).

Also, I have the "final meal requests" of all inmates executed in Texas. This information was available online until the Texas DOC withdrew it as "tasteless."

Special annoucement from John Edwards today at 4

I recevied the below message in my email today:
"Senator John and Elizabeth Edwards will return home to share a special announcement with their family, friends and supporters in Raleigh, NC today. Tune in at 4:00pm EST for live cable coverage of the event."

Hmm...

BREAKING NEWS West to face criminal charges for gay marriages

New Paltz village Mayor Jason West will be charged with numerous misdemeanor counts for the gay marriages he performed Friday under a media spotlight and without standard paperwork.

Jeremy Blachman hits 100,000

Jeremy asks a favor:

"If you like something you read here, tell someone about it. If you really like it, tell two people. If you really really like it, tell that guy you know who works for that magazine, or that girl who works for that literary agency, or Jon Stewart's personal assistant."

I like it.

Doug Kmiec on Locke v. Davey...

...can be found here.

Fourth Amendment summary on exceptions to the warrant requirement.

This story (via CrimLaw) reminded me of this language:

"[T]he Court has vacillated between imposing a categorical warrant requirement and applying a general
reasonableness standard. Compare Thompson v. Louisiana, 469 U. S. 17, 20 (1984) (per curiam), with United
States v. Rabinowitz, 339 U. S. 56, 65 (1950). The Court has most frequently held that warrantless searches are
presumptively unreasonable, see, e.g., Katz v. United States, 389 U. S. 347, 357 (1967); Payton v. New York, 445
U. S. 573, 583 (1980), but has also found a plethora of exceptions to presumptive unreasonableness, see, e.g.,
Chimel v. California, 395 U. S. 752, 762–763 (1969) (searches incident to arrest); United States v. Ross, 456
U. S. 798, 800 (1982) (automobile searches); United States v. Biswell, 406 U. S. 311, 315–317 (1972) (searches of
“pervasively regulated” businesses); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523,
534–539 (1967) (administrative searches); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 298 (1967) (exigent
circumstances); California v. Carney, 471 U. S. 386, 390–394 (1985) (mobile home searches); Illinois v. Lafayette,
462 U. S. 640, 648 (1983) (inventory searches); Almeida-Sanchez v. United States, 413 U. S. 266, 272 (1973)
(border searches). That is, our cases stand for the illuminating proposition that warrantless searches are per se
unreasonable, except, of course, when they are not."
Groh v. Ramirez (Thomas, J. dissenting).

Justice Thomas failed to mention the good faith exception, which in practice is yet another exception to the Fourth Amendment Warrant Clause. Massachusetts v. Sheppard, 468 U.S. 981 (1984).

In good company when making mistakes...

"Every lawyer and every judge can recite examples of documents that they wrote, checked, and doublechecked, but that still contained glaring errors."

That goodie is contained in Justice Kennedy's dissent in Groh v. Ramirez (02-811), on pp. 3-4 in the slip opinion.

No one ever gets framed, really...

High School principal (with the "pal" at the end) attemted to frame a high school student, saying, "I know this isn't or wasn't ethical," but since "we both know he is dealing drugs, [ ] I wanted to catch him so I put drugs in the locker."

Sabri Reply Brief

...is available here. Note that one of the Brief's authors clerked first for Judge Richard Posner and then for Justice Antonin Scalia.

On children and puppies

At Crescat Sententia, a debate over whether to have children rages. (Well, "rages" isn't the right word).

My wife used to want to have children. Then we bought a puppy. Having to wake up early and stay up late (based on the whim of the puppy and how much he naps during the day), having to take the dog out 10 or 15 times a day (when we're lucky enough to catch him before he goes on the carpet), and having to be ready to jump up at a moment's notice to ensure the puppy does not destroy anything else has changed her mind. If having a puppy is this much stress, imagine what having a child would be like.

Pleasure reading

You can't go wrong reading Ken Starr on the Sixth Amendment.

Kid 'n Play

The Lock v. Davey decision is now available. It is a 7-2 decision written by C.J. Rehnquist. Rather than rely on the text of the Constitution, Rehnquist applies the "play in the joints doctrine." The doctrine "play in the joints" seeks to answer this question: Is it true that every time a funding decision would not violate the Establishment Clause then States must fund religious and non-religious groups equally or else violate the Free Exercise Clause? In other words, if a "faith-based" initiative would not violate the Establishment Clause, then must the State and Federal governments fund these initiatives because the Free Exercise Clause requires non-discriminatory funding?

Incidentally, this is not the first time "play in the joints" has been risent. See Groh v. Ramirez (No. 02-811), a Fourth Amendment case. Oral Argument Transcript at 40, Lines 20-24.
(Rehnquist asks: "Of course, that's really not what the Fourth Amendment says, is it? It just - it doesn't say you need - you need - I mean, surely there's some play in the joints, isn't there? It's - it categorically
prohibits unreasonable searches and seizures, right?")

Heck v. Humphrey & Section 1983

Muhammad v. Close makes clear that the Heck v. Humphrey bar against Section 1983 claims applies only where the action attacks the underlying conviction or determination of actual confinement time. (Slip Opinion at 4-5)("His §1983 suit challenging this action could not therefore be construed as seeking a judgment at odds with his conviction or with the State’s calculation of time to be served in accordance with the underlying sentence. That is, he raised no claim on which habeas relief could have been granted on any recognized theory, with the consequence that Heck’s favorable termination requirement was inapplicable.")

Lawyer loses $150 an hour for poor writing.

In a civil rights case (where the prevailing plaintiff is awarded attorney's fees), the lawyer was compensated $300 per hour for his trial work. But this rate was cut in half for his written work because of its poor quality.

No meal reimbursement for work on Christmas Day

This exchange is so sad, for so many different reasons.

Legal writing in Rush Limbaugh case...

Thanks to Criminal Appeal for this pointer.

Capitalism meets Christ

I am a Christian and I am a capitalist. But this makes me sick:

"Replicas of the nails used to hang Jesus on the cross have become the red-hot official merchandise linked to Mel Gibson's controversial new movie, "The Passion of the Christ."
Pendants made from the pewter, 2 1/2-inch nails - selling for $16.99 - all but flew out of the Christian Publications Bookstore on West 43rd Street as soon as they were put on display.

"Hundreds of stores across the country will be selling licensed items tied to the movie, a graphically violent depiction of the last 12 hours of Christ's life, which opens next week on Ash Wednesday.

"The souvenirs include a book, pins, key chains, coffee mugs and T-shirts.

Instead donating more money to one of the many deserving charities, these consumers are wasting money on trikets, junk, and other possessions of this world.

"Getting More from Google"

If you are a googlephile, you will enjoy this article. (Requires free registration to the MIT Technology Review. With a smart-sounding title like that, who wouldn't register).

Dead, but not forgotten

See this post at Legal Fiction for an example of Aristotle's Rhetoric to the Edwards and Kerry campaigns.

Every post I have read at Legal Fiction is intelligently written (And I say this even though I often disagree with 'em).

A new blog

From what I can tell, Criminal Appeal kicks ass.

Ex Enron CEO indicted

here.Jeff Skilling's lawyer is Daniel M. Petrocelli, a highly respected civil litigator. Petrocelli was lead council in the Simpson civil trial. I read his closing argument in that trial. His closing argument was among the best I have ever seen. The government has their hands full. One more reason to never be charged with a crime until you are very, very wealthy.

Breath out, start up.

CrimLaw links to an article discussing the New Mexico legislature's attempt to require all cars to have a device that requires the driver to blow into a breatalyzer before the ignition would start.

My hunch is this law would be invalid under the Dormant Commerce Clause as a undue burden on interstate commerce. I also think it would be invalid under a theory of field preemption due to the extensive involvement of the federal government.

The New Federalism?

ALAFAIR BURKE has a Findlaw column examining Sabri v. United States.

The United States surprised her (and me) when it argued that Congress had the power to enact the federal program bribery statute (18 U.S.C. 666(a)(2)) under the Necessary and Proper Clause.

Political advocacy in action - the filibuster that never was

I imagine someone could write an interesting human-interest piece about the Democrat filibusters of conservative nominees. What was it like for Miguel Estrada to be denied an up-or-down vote? How did his family feel seeing his integrity questioned? Did he grow stronger or weaker as a result of the experience? Is he cynical?

And what about Doug Kmiec? An article on him would have to be called: "The Filibuster that Never Was."


***December 9, 2002***
A balloon is thrown...

Legal Scholar Is Considered for Court
"President Bush is considering naming Douglas W. Kmiec, the dean of the law school at Catholic University and a prominent social conservative scholar, to the federal appeals court based in Washington, administration officials said today."

***DECEMBER 10, 2002***
The special interest groups attack...

Alliance for Justice Statement on Douglas Kmiec
Statement of Nan Aron, President of the Alliance for Justice, Regarding Possible Kmiec Nomination to Court of Appeals
"Washington, DC — The Alliance for Justice expressed grave concerns over reports that the White House is considering Professor Douglas Kmiec for a seat on the U.S. Court of Appeals for the District of Columbia. Alliance for Justice President Nan Aron noted: "Kmiec's record reflects an ultra-conservative philosophy opposing a woman's right to choose, bipartisan civil rights legislation and regulations on property. He would be a very poor, divisive choice for the D.C. Circuit."
The D.C. Circuit, widely viewed as the second most-important court in the country because of its unique jurisdiction and location in the nation's capital, is currently made up of four Democrat and four Republican appointees, with four vacancies. President Bush has previously nominated D.C. lawyers John Roberts and Miguel Estrada to the court. Battles over vacancies on the D.C. Circuit during the Clinton years were heated, with some Senate Republicans arguing that the workload of the court was such that the 11th and 12th vacancies did not need to be filled. On September 24, 2002, Senator Jeff Sessions reiterated his opposition to filling more than ten seats on the D.C. Circuit. Nonetheless, the White House is reportedly considering nominations, including Kmiec's, to fill the 11th and 12th seat.
Kmiec has stated that the Civil Rights Act of 1991 was likely to create racial quotas and should be declared unconstitutional. He has submitted Congressional testimony that "Abortion is more than the killing, it is also the coarsening of the American heart . . . . [A]bortion undermines all life." Kmiec has also written that many property regulations are unconstitutional unless they provide compensation to the property owners-a view that calls into question key environmental laws such as the Clean Air Act and the Clean Water Act.
Responding to rumors of Kmiec's nomination, Aron said, "not only would Kmiec's nomination fly in the face of Senate Republicans' own assertions that an 11th judge on the court was not necessary, it would make a mockery of administration pledges of conciliation and cooperation and of President Bush's claims to be a `uniter not a divider.' It would be further evidence that this administration is intent on packing the courts with ultraconservatives, in direct contravention of the interests and will of the American people."

***DECEMBER 12, 2002***

The "mainstream" media begins throwing mud. [Do we really care if the guy put D.C. plates on his car within 30-days of his moving from California to D.C.? Even I don't care, and I am pretty intolerant of inconsistencies.]

Judge Scofflaw?

"After the New York Times claimed Tuesday that Catholic University Law School Dean Douglas W. Kmiec is on President Bush's short list for a coveted seat on the Washington federal appeals court, one of Kmiec's Northwest D.C. neighbors helpfully pointed out to us that he keeps California plates on his cars."

***DECEMBER 19, 2002***

The "mainstream" media coincidentally argues that maybe we don't need any new judges on the D.C. Circuit. [Do a survey. Ask any federal judge you know if he or she is "underworked".]

How Many Judges?
Thursday, December 19, 2002; Page A40
"YOU MIGHT NOT expect that the question of how many judges a court needs would become a festering political problem. But how to staff the U.S. Court of Appeals for the D.C. Circuit is threatening to become just that -- again. The court, which is one of the most important in the country, has 12 authorized judgeships. But during the Clinton administration, Republican senators blocked qualified nominees to its 11th and 12th seats; its declining workload made additional judges unnecessary, they said. Now President Bush, poised to win confirmation of nominees John G. Roberts and Miguel A. Estrada to the vacant ninth and 10th seats on the court, wants to fill the additional slots as well. An ugly fight could await the nominees, whoever they turn out to be."

***DECEMBER 19, 2002***
In the Wall Street Journal, Kmiec asks in vain that you...

Judge Me By My Work, Not By My Faith
"Last week, the New York Times reported that President Bush was considering
nominating me to the U.S. Court of Appeals for the District of Columbia
Circuit. While many friends from my days in the Justice Department, former
students now practicing at law firms across the country, and sitting judges
wrote or called to encourage this development, a stark, inside-the- Beltway
question emerged from the report: Can an avowedly pro-life Catholic actually
serve on such court?"

[NOTE: I have the full-text of these articles. I do not know enough about Copyright to know if I can post them.]

Unauthorized practice of law in California

Ouch.

Commercial speech and Do-Not-Call

...case upholding the do-not-call registry is available here.
Via How Appealing.

Man serves 4-hour detention for daughter.

"On the morning of Friday January 30, Hatton said he decided it was too cold for his children to go to school that day. But the Lovington High School Handbook does not list "parental concern for a child's safety" as one of six excused absences in their handbook."
***
"Lovington High School Principal Kevin Van Meter said the Hatton's 16 year old daughter's absence was unexcused, and punished her with five days detention. He based the punishment on a provision in the Lovington High School Handbook which states, “The student will be considered truant for all unexcused absences. The student will make up all time for unexcused absences unless the administrator deems the absence to be unavoidable.”

The principal sentenced the daughter to a 4-hour detention. Her father is serving the sentence instead.

Can you see why so many of us hate(d) school?

I can't seem to spot the issue...

"Private sector lawyers are joining forces with the San Francisco city attorney's office to defend the city's move last week to issue same-sex marriage licenses."

The licenses were issues in violation of state law.

A political subdivision is subordinate to the state. Local officials may not violate state law. When the municipal employees issued marriage licenses, they violated the law. Period.

I am sympathetic to civil disobediance, especially when the protester willinlyg suffers the consequences of em's actions, as Thoreau did when he sat in a jail cell rather than pay his taxes.

It creates a different problem when city officials begin breaking the law. I spent last summer in San Francisco. I paid over $200 in parking tickets. (I recieved a $100 ticket for not having a front license plate on my car). I obeyed the law and paid my fine. Had I refuse to pay, the city would have placed a "boot" on my car.

Why must I follow the law when city officials themselves disregard the law? I am to the city what the city is to the state, namely, bound by the law.

By the way, has anyone else noted how this situation parallels former-Judge Roy Moore's putting up the Ten Commandments monument? Why has the illegal conduct of local officials not causes a similar media outcry?

Eugene wonders...

..about this story (where it seems a fellow was either wearing face paint to rob a house or face paint to make fun of dark-skinned people), "[I]ts suggestion that the real explanation (burglary) is less serious than the apparent one (blackface), strikes me as out of place, unless I'm picking up a subtext that isn't really there."

Could be the burglary was going to be a college prank. The facts say that the person wearing the face paint was a new inductee in a fraternity. Maybe he was going to "rob" another frat house.

Section 1983 case

"The appeals court found that while the Supreme Court has established a right under the 14th Amendment of mentally competent individuals to decline life-sustaining measures, that does not apply to patients like Pouliot who were never able to express their wishes."

What is most amazing is that the Second Circuit denied the AG's claim of absolute immunity for their acts. See page 12 of the slip opinion for an excellent discussion of the immunity doctrines in Section 1983 cases.

The case is Blouin v. Spitzer (02-7997) and it was decided on 02/02/04.

DOJ Reading Room

I am not sure if I posted this yet. Anyhow, here is a link to the DOJ reading room, where it's top-notch AUSA manauls are available for public study.

Martha stewart and phone logs

See the Smoking Gun for another reason to remember: it is almost always easier to explain the truth, than to explain why you lied about the truth.

In a job market where many students can't find jobs...

...law firms are having an overly difficult a time enticing the top students. The solution?

"After fielding complaints from a number of large law firms, a task force at the National Association for Law Placement has recommended shortening the time in which law students have to respond to employment offers."

I'll file this under "Reasons for hating the arrogance of those in the law profession" file.

Handy dandy federalism quotes

"[T]he constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in the cases enumerated. This principle, which distinguishes the national from the State governments, is derived from the nature of the constitution itself, as being a delegation of power, and not a restriction of power previously possessed; and from the express stipulation in the 10th amendment, that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature. Gibbons v. Ogden, 22 U.S. 1, 33 (1824).
(footnotes omitted)

***

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961).

***

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).

***

“[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” (internal citations and quotation marks omitted). United States v. Morrison, 529 U.S. 598 (2000).

***

“Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance between federal and state power lies at the heart of liberty.” Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991).

***

I have dozens more if you care to see them.

The Feeney Amendment. Part I. Sex Crimes.

Below please find some of my notes on the Feeney Amendment. If you have any other questions, I can e-mail you a draft of a paper that, by the way, will be included in the CLE materials of a national bar association. I am not yet sure who will hold the copyright. And so I refrain from posting the entire document online. Indeed, what follows are notes taken from the paper using different language and syntax than in the draft for publication.

There is no express or implied warranty of habitabiliy. This is also not legal advice.

Sex Crimes

In all cases brought under 18 U.S.C. §1201 involving minors, and all offenses committed under §1591 or Chapters 71, 109A, or 117, of Title 18, several changes apply.

A judge may not issue a downward departure (Ed Note: I don't care about upward depatures.) based on an unenumerated circumstance. U.S.S.G. §5K2.0(b)(1). An unenumerated circumstance is one that has not been "affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines." Id. and Application Note. Departures are proper only if based on factors articulated in Chapter 5, Part K. U.S.S.G. §2G2.2(b)(5)(A)-(D).

There are several factors that the sentencing court may no longer rely upon. Age may be used as a factor to downward depart only to the extent that age may be used under 5H1.1. An extraordinary physical impairment is relevant for a downward departure only to the extent that physical condition may be relied upon under 5H1.4. Aberrant behavior is no longer a proper reason for a downward departure. Family ties and responsibilities are never a reason for a downward departure. United States v. Galante, 111 F.3d 1029, 1035 (2d Cir. 1997) is therefore overruled. This amends 5H1.6, which provides that family ties are not ordinarily relevant. Gambling dependence is no longer a factor a court may consider as a for a departure. 5H1.4.

Chapter 4, Part B1.5, Application Note 4(b)(i) changes the definition of pattern of sex crimes: now two or more sex acts with the same minor is a pattern of sexual misconduct. Previously, two separate offenses against two separate victims were required to qualify the defendant for a 4B1.5 base level increase.

The defendant will be subject to a 4 level enhancement if convicted with material depicting minors engaged in sadistic or masochistic acts. 2G2.2(b)(3)

There is now a sliding scale for a base level increase in cases involving multiple pornographic images. U. S.S.G. §2G2.2(b)(6)(A)-(D). Ten to 150 images will subject the defendant to a 2 level base increase. U.S.S.G. §2G2.2(b)(6)(A). From 150 to 300 images will subject the defendant to a base level increase of 3. U.S.S.G. §2G2.2(b)(6)(B). From 300 to 600 will subject the defendant to a 4 level increase. U.S.S.G. §2G2.2(b)(6)(C). A defendant found with 600 or more images will have his base level increased by 5 levels. U.S.S.G. §2G2.2(b)(6)(D).

The Post-Feeney Guidelines are available here.

McNab v. United States, or: Why I like it when rich people get charged with crimes.

How Appealing posts links to McNab briefs here.

Miguel Estrada is council for petitioner. Seth Waxman (Solicitor General during the Clinton administration) is amicus in support of petitioner.

Whatever the Supreme Court decides to do in this case, at least we can sleep well knowing that it was handled by the best.

Maybe there is a reason the parents don't want you around?

"The [Michigan] state Senate on Wednesday unanimously approved a bill intended to protect grandparent visitation that would change a state law recently ruled unconstitutional."

The Sixth Amendment means free representation...

"The Minnesota Supreme Court on Thursday struck down mandatory fees the Legislature imposed last year on defendants who use public defenders."

More proof that it's the lawyer that counts

Criminal defendant gives medical records to his lawyer. Lawyer turns over these medical records to the D.A. D.A. uses the information in these records to put nails in the defendant's coffin.

Pre-law? File a lawsuit!

"Three white applicants denied entry to the University of Washington School of Law asked a federal appeals court yesterday to overturn an earlier decision ruling out discrimination."

The law of marriage in California

California Family Code Section 308.5 defines marriage: "Only marriage between a man and a woman is valid or recognized in California."

Above the law

"In an open challenge to California law, city authorities performed scores of same-sex weddings Thursday and issued a stack of marriage licenses to gay and lesbian couples."

Criminal Law & the Supreme Court, an Update

For your convenience, I am going to provide links to the briefs, oral arguments, and opinions in criminal and Section 1983 cases heard before the United States Supreme Court. I hope that Tom Goldstein will do something similar, since he would have the time and resources to do a better job. At his blog, they timely post documents. However, they do not arrange the relevant material by case.

Also, case summaries will follow as time allows.

Fellers v. United States (02-6230) (Sixth Amendment): opinion, oral argument, briefs

Maryland v. Pringle (02-809) (Fourth Amendment): opinion, oral argument, briefs

Illinois v. Lidster (02-1060) (Fourth Amendment): opinion, oral argument, briefs

United States v. Banks (02-473) (Fourth Amendment): opinion, oral argument, briefs

Mitchell v. Esparza (02-1369) (habeas): opinion

Yarborough v. Gentry (02-1597) (habeas): opinion

[Mitchell & Yarborough were summary dispositions]

How can I not support Bush's amnesty plan?

"The Mexican crowd hooted 'The Star-Spangled Banner.' It booed U.S. goals. It chanted 'Osama! Osama! Osama!' as U.S. players left the field with a 2-0 victory."

Via Legal Fiction

McNab v. United States

A superb discussion of the send 'em to jail for undersized lobster tails case is here.

What frustrates me the most is that the United States wants to send to prison for 5-10 years people who contribute hundreds of thousands of dollars a year in income and corporate taxes.

Wesley Clark drops out of campaign.

Breaking news...

Howard "How Appealing" Bashman on becoming an appellate advocate...

... can be found here.

I was irony my BDU's today

Here is someone else criticizing John Kerry for making anti-war statements.

As a young man John Kerry faced combat in Vietnam. His boat came under heavy fire and his squad member fell into the river. Kerry dived into the river to save his friend.

Kerry is anti-war.

All able-bodied males under 35 years old are eligible to fight in the Iraq War. Many of these young men remain at home, living in luxury, where they vociferously proclaim their "support" for the war.

I think that's ironic.

Please click here to show true support for the troops.

What would Patton do?

Peter Kirsanow, a member of the U.S. Commission on Civil Rights, provides this analysis on General Patton and affirmative action.

Pepperdine Professors Kmiec and Scarberry on impeachment

"Interestingly, Massachusetts judges are also subject to removal under a procedure known as a bill of address. The Massachusetts legislature can remove renegade judges from office by a simple majority in both legislative chambers with the concurrence of the governor and his advisory council. Under the bill of address, the legislative and executive branches need not specify the grounds of removal at all."

It would amuse the hell out of me if the Goodridge authors were impeached by some obscure legal principle that would not have been unearthed but for the decision.

Big award in civil rights case.

"LONGMONT, Colo. (AP) A federal jury has awarded a man $190,000, saying two Longmont police officers illegally entered his home while investigating a noise complaint three years ago."

Who says growing old doesn't have advantages?

New HIV tests spots first college outbreak

Federal Judicial Center - FREE Books

The Federal Judicial Center offers many publications for free download. I have read several of these books. They have all been top quality.

Inglewood Police Officer indicted on federal charges

I think this violates Double Jeopardy. And yeah, I know the theory and cases behind allowing a successive federal court prosecution.

Famous Trials website

Please check out the Famous Trials website. There is a wealth of original documents from many famous trials, including a closing argument by Max Steuer. Who is Max Steuer? Well, Irving Younger, in the famous NITA videos, said that Max Steuer was the greatest trial lawyer of the 20th Century; and second to Clarence Darrow for all-time greatest.

Judicial economy and persuasion

Ernie the Attorney has an excellent post on the role judicial economy plays in persuasion.

I was at a CLE where trial legend Tom Girardi told us how he was able to obtain more than the usual 15 minutes for voir dire. (In California state court, judes rarely give the attorneys more than 15 minutes to conduct voir dire).

Mr. Girardi would say, "Your honor, if I do not know my jury, then I have to put on more evidence than I would if I knew the jury. I just can't tell what will appeal to certain jurors. But if you give me and defense counsel half-a-day to conduct voir dire, I promose you, as an officer of the court, that I will shave three days off trial time." (Emphasis in original).

More often than not, Mr. Girardi would get that half-day. [Of course, he had established credibility earned from years of practicing law. Thus, YMMV.]

Eugene Volokh on the Feeney Amendment

Eugene Volokh, at the VC, posts this op-ed on the Feeney Amendment.

The radical liberal, Renhquist, C.J., had this to say about the Feeney Amendment:

"It is, of course, the prerogative of Congress to determine what to consider in enacting a statute. But it surely improves the legislative process at least to ask the Judiciary its views on such a significant piece of legislation.
* * *
"For side-by-side with the broad authority of Congress to legislate and gather information in this area is the principle that federal judges are not to be removed from office for their judicial acts. The subject matter of the questions Congress may pose about judges' decisions, and whether they target the judicial decisions of individual federal judges, could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."(1) (emphasis added).

The emphasized material, as anyone who has read much of the Chief's work knows, is VERY strong language.

William H. Rehnquist, 2003 Year-End Report of the Federal Judiciary (January 1, 2004), available here.

Application of the Fourth Amendment to federal grand jury proceedings

Question Presented
Whether a person subpoenaed before a grand jury to present physical evidence has a Fourth Amendment right to have the reasonableness of the request reviewed by a neutral and detached magistrate?

Summary of Arguments
The Fourth Amendment protects a person's privacy interest in her bodily integrity so long as the privacy interest sought is reasonable. DNA contains confidential information that a reasonable person would want to keep confidential. The desire to keep medical information confidential has long been recognized by society as reasonable. Consequently, Jane Doe (a pseudonym) is reasonable to request that a neutral and detached magistrate review the reasonableness of the grand jury subpoena because she does not surrender her Fourth Amendment right to bodily integrity simply because she is subpoenaed before a grand jury.

I. A Search Conducted Without Probable Cause Is Per Se Unreasonable Under the Fourth Amendment.

The Fourth Amendment provides that a person shall be secure in her person from unreasonable searches and seizures. United States v. Katz, 389 U.S. 347 (1967). The constitutional prohibition against unreasonable searches and seizures must liberally construed in order to safeguard this right of privacy. Boyd v. United States, 116 U.S. 616, 635 (1886) (“[C]onstitutional provisions for the security of person and property should be liberally construed. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."). The Fourth Amendment protection against unreasonable searches and seizures is so important that evidence obtained from an unreasonable search is excluded from evidence at trial. Weeks v. United States, 232 U.S. 383 (1914) (establishing exclusionary rule in federal courts for illegally obtained evidence); Mapp v. Ohio, 367 U.S. 643 (1961) (applying exclusionary rule to state court proceedings).

Absent exigent circumstances or consent, a search going beyond a Terry stop and frisk, Terry v. Ohio, 392 U.S. 1 (1968), is per se unreasonable if conducted without probable cause. Zurcher v. Stanford Daily, 436 U.S. 547 (1978) ("[T]he Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates.")

A. Analyzing DNA from hair is a "search" under the Fourth amendment.

In Skinner v. Railway Labor Executive's Ass'n, 489 U.S. 602 (1989), a case involving federal regulations that mandated drug and alcohol testing of any railroad employee involved in a train accident, the Supreme Court addressed the issue whether a breathalyzer or urinalysis were "searches" under the Fourth Amendment. Answering in the affirmative, the Court said that although the collection and testing of urine do not entail any intrusion into the body, they nevertheless constitute searches, since they intrude upon expectations of privacy as to medical information that society has long recognized as reasonable. Id. at 616.

B. Jane Doe's privacy interest in the confidential medical information contained in her DNA is one society recognizes as reasonable.

In Skinner, above, the Court affirmed a principle long before understood by society as reasonable: Namely, a person has a privacy interest in her medical information. Skinner at 618. Doctors have codified this privilege in the Hippocratic Oath. Oath of Hippocrates, Fourth Century, B.C.E. (“Whatsoever things I see or hear concerning the life of men [ ] I will keep silence thereon, counting such things to be as sacred secrets.”).

At law, "The physician-patient privilege is applicable in criminal prosecutions." Charles E. Torcia, Wharton's Criminal Evidence, § 519 (Fourth ed.) (collecting cases). The policy underlying the physician-patient privilege is that medical information is among those things we keep most private. Whalen v. Roe, 429 U.S. 589 (1977). Few people would take pleasure in having his medical records read by sixteen people, which is what the grand jury seeks to here. Indeed, most jurisdictions provide a cause of action for such egregious breaches of privacy.

DNA is even more revealing than a medical chart, urine, or breath. A person's DNA tells more about a person than outward physical characteristics such as hair color or voice tone. A person's DNA reveals the very essence of a person's being. That insurance companies wish to obtain valuable DNA information on potential insureds has rallied not only privacy groups such as the ACLU: It has awoken the sleeping majority of American citizens. And Congress has responded. H.R. 1910, The Genetic Nondiscrimination in Health and Employment Act.

Society has long recognized that a person has the right to keep some things confidential. DNA falls into this category. Jane Doe is therefore very reasonable to jealously guard the secrets of her very life being.

C. Jane Doe does not willingly reveal her DNA to the public and thus has not surrendered any expectation of privacy in it.

The Fourth Amendment provides no protection for what a person knowingly exposes to the public. United States v. Dionisio, 410 U.S. 1 (1973). Characteristics that a person exposes to the public include "[t]he physical characteristics of a person's voice, its tone and manner … or handwriting." Fraser v. United States, 452 F.2d 616 (7th Cir. 1971). Thus, the Fourth Amendment does not protect these non-private characteristics.

However, Jane Doe has not knowingly or freely exposed her DNA to the general public. Rather, she fights hard to protect her privacy. Indeed, she prays that this court will not allow her right to privacy in her DNA be violated without probable cause.

D. There are no exigent circumstances allowing for an exception to the Fourth Amendment's no search without probable cause requirement.

In Schmerber v. California, 384 U.S. 757 (1966), the Court found no violation of the Fourth amendment when a police officer took a blood sample of an unconscious driver whom the officer had reason to believe was drunk. The Court, in affirming Schmerber's conviction, held that the officer's belief that a delay in obtaining a search warrant would lead to the destruction of evidence - the dilution of the blood-alcohol ratio - was reasonable under the facts of the case. Indeed, the officer's belief was reasonable, as the liver would have synthesized the alcohol and thus "destroyed" evidence of intoxication. But here, Jane Doe is in a much, much different situation.

Jane Doe's DNA is not going to change, morph, or disappear while the prosecution or grand jury applies to a neutral and detached magistrate for a search warrant. Jane Doe's liver is not going to re-configure her DNA or synthesize it through her liver. Her DNA will be the same tomorrow, as it is today, as it was yesterday. There is, quite frankly, absolutely no risk that any evidence risks being destroyed. As such, no exigent circumstances warranting an exception to the Fourth Amendment warrant requirement are present.

II. A Grand Jury Does Not Have Unbridled Power to Obtain the Evidence it Seeks.

The grand jury's purpose was to stand as a protective bulwark between an overzealous prosecutor and ordinary citizen. Fraser v. United States, 452 F.2d 617 (7th Cir. 1971). Unfortunately, today a grand jury is the strong arm that the prosecutor uses to overpower the Fourth amendment. W. Thomas Dillard, et al., A Grand Façade: How the Grand Jury was Captured by the Prosecutor, Policy Analysis, No. 476 (available for free download at: www.cato.org/pubs/pas/pa476.pdf). But the grand jury's power is not limitless.

Although a grand jury "must be free to pursue its investigations unhindered by external influence or supervision," it may do so only, "so long as it does not trench upon the legitimate rights of any witness called before it." United States v. Dionisio, 410 U.S. 1 (1973). Jane Doe has a legitimate interest in keeping confidential the information contained in her DNA.

Jane Doe’s argument is unlike those made in other cases, where courts have allowed grand juries to demand handwriting samples and voice exemplars only because the Fifth Amendment does not apply to voice, handwriting, or other physical characteristics that are non-testimonial in nature. United States v. Dionisio, 410 U.S. 1 (1973). Jane Doe does not assert that her DNA is "testimonial." Rather, she claims that it is private. Therefore, the Fourth Amendment applies, even to grand juries.

A. A person subpoenaed before a grand jury has not surrendered her right to privacy as
a grand jury subpoena is not even a Fourth Amendment “seizure.”

A pretrial detainee or prisoner has limited Fourth Amendment protections. Lanza v. New York, 370 U.S. 139 (1962). A free person walking the street has full Fourth amendment protections, absent reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968). A subpoena to appear before a grand jury is not a "seizure" under the Fourth amendment. Dionisio, 410 U.S. at 1-2. Accordingly, Jane Doe, unlike a pretrial detainee or prisoner, has a legitimate Fourth Amendment right to keep her DNA confidential.

If Jane Doe has not even been seized within the meaning of the Fourth Amendment, how can one make a straight-faced argument that she has surrendered her Fourth Amendment right to be free from unreasonable searches and seizures? The fact is that Jane Doe's level of privacy exists on the continuum somewhere between a free person walking the street and that of a prisoner. She is not in custody, but she is certainly not free to ignore a subpoena. (!) Thus, she has Fourth Amendment protections, although those protections are not limitless. She has a Fourth Amendment protection in those characteristics most private, such as the confidential information contained in her DNA.
B. Jane Doe is not a convicted sex offender, prone to recidivism, the only other group whose DNA is not considered private.

Recent Supreme Court cases have held that a state may have a DNA database of convicted sex offenders. The justification for these DNA databases is the strong evidence of recidivism. Connecticut Dept. Pub. Safety v. Doe, 538 U.S. 1 (2003). In other words, there is, based on medical evidence, "probable cause" to believe that a convicted sex offender is likely to molest a child again. Because probable cause exists, and because the person entered into the DNA database was already convicted, this is not a "search" violative of the Fourth Amendment.

However, there is no evidence showing that Jane Doe is a "recidivist" since she has not even been convicted of any crime. (!) Jane Doe clearly does not fall into the category of people whose DNA the state may collect and maintain. Moreover, DNA database registries are a narrow exception, inapplicable here.


III. The Relief Sought By Jane Does Is Quite Reasonable Under the Circumstances.

Jane Doe does not request that this court enjoin a grand jury or any other federal actor from compelling her to provide a hair sample to have its DNA analyzed. Rather, Jane Doe merely seeks her protection under the Fourth Amendment. The grand jury or prosecution can apply to a neutral and detached magistrate to determine is probable cause exists for the search of her hair for DNA.

Conclusion
Analyzing Jane Doe's hair for DNA evidence is a search within the meaning of the Fourth amendment. There are no exigent circumstances mandating that she be compelled to give her hair sample without probable cause as her DNA will be the same next week as it is today. A grand jury does not have unbridled discretion in seeking evidence and is bound by the Fourth amendment. Thus, Jane Doe has the right to have the reasonableness of the request for her hair reviewed by a neutral and detached magistrate, who will then determine whether probable cause exists for this search.

I like this guy's style.

Mark provides million-dollar legal advice.

Even better than TV

The CATO Institute archives most of their events in RealAudio format.
Something fun to watch tonight after work (if your work ever does end) is available here.

Why the goverment almost always wins

From time to time people groan that the government wins around 45% of its cases before the Supreme Court. Many times, these same people allege some sort of conspiracy between the OSG and the Court.

However, after listening to at least 100 oral arguments at Oyez, and reading at least 100 briefs before the Court, I know why the government almost always wins: Their briefs and oral arguments are always top flight.

Unfortunately, although every constitutional case before the Supreme Court affects us all; the rules we live often result because of sub-par advocacy. Let's face it, almost no lawyer would turn down the opportunity to argue before the Supreme Court. And of course, no lawyer could ever comprehend his (in)ability to argue before any tribunal. Thus, we get stuck with poor advocacy for a position with which we might agree. We lose because a lawyer put his interest (the bragging rights or other perks of arguing before the Court) above his client's interest. WHen the case was a constitutional one, the lawyer put his own interest above the rights of every American.

Fortunately, the Respondent's brief in Yarborough v. Alvarado (No. 03-1684) (which asks whether age should be a factor in determining whether someone is "in custody" under Miranda), is first class. Alvarado should matter to every person who has a child or younger brother or sister. We teach our children to respect the police, to turn to them we they need help. What we don't teach them is that when the police want to talk to you; your only option is to pull out your bust card.

I know of one case where young person shot a drug dealer. Em then ditches the gun; goes to the police station to them what happened; and gives a full statement. The reward for em turning to the police was that the prosecution sought and obtained the statutorily allowed maximum sentence. The irony is that had em lawyered-up and kept quiet, the prosecution would have offered a sweetheart deal because the only eye-witness was the girlfriend/crack-***** of the drug dealer.

A good chuckle.

One of the reasons the government offers in its brief for allowing the police to search and seize a car after an arrest is that, were the court to not allow them to do this, there would be the danger that "if the arrestee appeared to get out of the car voluntarily, the arrestee nevertheless [might have done] so to avoid the application of Belton []."

If people had this nuanced understanding of con law, the government's conviction rate would decrease by at least 25%. Anyone who has worked around criminal defendants can recount dozens (or hundreds depending upon the number of years in the field) of examples where clients consent to searches, give incriminating statements, allow the police to enter their house 'just to talk' (which allows the police to both elicit incriminating statements as well as conduct a 'plain view' search of the suspect's home). In fact, I doubt many non-criminal defense lawyers know the holding in New York v. Belton.

It is pretty funny to think that many people likely buy into such reasoning.

"Students host coming out day"

These days, coming out as a Republican is more dangerous than coming out for being gay.

Congress and federal crimes.

A great exercise in studying Constitutional Law is to do the following: Read the Constitution to find examples wherein Congress is given the power to define or punish crimes, or both. Then pick up Title 18 of the United States Code. Which one is bigger?

Challenge to Sentencing Rules Rebuffed

...So begins this article on the Feeney Amendment.

Yet another reason to stay out of federal court. Now, if only some activist judge would limit Congress to its constitutionally enumerated powers.

Job Opening

The National Federation of Independent Business has a job opening for a licensed attorney with 1-3 years of experience. For further details, contact them at: "Attention: Legal Foundation, 1201 F Street, NW, Suite 200, Washington, DC 20004, Email: resumes@nfib.org"

I don't know anything else about the position or the organization. Nor am I one of their representatives. I simply received the notice from the Fed-Soc mailing list and thought I would further it to you non-Fed-Soc types.

SSA SDRAWKCAB.

This person , who said: "The 'overly-restrictive view of individual rights and liberties' is called a written Constitution and the rule of law", in reference to this interview, should read this book.

Anyhow, the poster has things backwards. The written Constitution was meant to limit the powers of the Federal Government. The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961) (“The powers delegated by the proposed Constitution to the federal government are few and defined.”). The powers of the state were also limited. See, for example, Article IV, U.S. Const.

However, Congress and the States ran wild because the Court did not construe their powers narrowly. Thus, individual rights had to be "created." Yes, their creation is false. But it is no more false than allowing states to breach contracts and deny the right to privileges and immunities. And certainly no more false than allowing Congress to enact thousands of federal criminal laws. See, generally, Title 18 of the United States Code.

Annoyed

It annoys me to find myself agreeing with almost everything a person says. But yet again, CrimLaw makes very valuable points.

I have said for years that if the Democrats ruled the world, we would all be assigned a psychologist. After all, anyone who disagrees with their social platform must be mentally ill. If Republicans ruled the world, we would all be assigned a probation officer. Everything to them is a crime. We would all be convicted felons. Unless, of course, we were William Bennett.

As a fiscal conversative, the Republicans love for criminalizing conduct enrages me. I can cite to dozens of examples where a taxpayer is arrested at work (and thereafter fired) for some bs offense that ends up getting dismissed. Often, these are petty drug crimes. So what have we wrought?

We have taken a taxpayer from accounts receivable because he was arrested at work, fired, and therefore no longer paying taxes. We have placed him (and his wife and children) into accounts payable because now that their dad is out of work, the family must apply for welfare. Worse, we often send people to jail for petty drug offenses or other bs crimes. Thus, we must pay for the person to sit in jail or prison. We must feed him, clothe him, and provide him shelter. And of course, we have to pay for the prisons to be constructed, etc. Plus, once dad is in prison, the children begin getting into more and more trouble, until we are paying for them to sit in jail, too.

Tell me again why we accuse the Democrats as being in favor of the welfare state? When will the fiscal conservatives of the world unite?

Legal Humor?

View this article here on Amicus Humoriae, which is pretty funny.

Also, check out LAW HA HA.com.

More on recess appointments from the Office of Legal Counsel, circa. 1992.

Scroll down to the bottom of this link to access an advisory opinion from the Office of Legal Counsel dated Jan. 14, 1992 regarding recess appointments. The conclusion? "The President may make interim recess appointments during an intrasession recess of eighteen days."

While not dealing with judges, it does talk about the Recess Appointments Clause.

Howard "How Appealing" Bashman's Press Release for his new firm

... is available here.

Can you hear it, "And in the blue corner, weighing in with 12-point Book Antiqua font, is Howard HOW APPEALING Bashman!"

"Free Martha Now"

Interesting commentary on the Martha Stewart case is provided here. Free registration is required.

Poisoned well? Or frivolous lawyer gets cat scratch fever?

CrimLaw discusses the cat-scratch case, where a plaintiff sued for 1.5 million dollars because a cat scratched his guide dog.

The losing lawyer unhappily said:

"After that first juror (in jury selection) said the word 'frivolous,' and so did the next five, I thought the whole panel should have been thrown out. I truly think the well got poisoned right there."

This shows me that the plaintiff's lawyer wasn't any good. One of the best things that can happen in jury selection is to get the jurors hostile to your case, talking. Perhaps this lawyer should attend the Trial Lawyers College to find out why.

UPDATE: CrimLaw rightly informed me that the plaintiff proceeded pro se. Thank you.

Working on this blog, if nothing else, has provided me a deep sense of empathy. I won't so quickly assume that those who don't get the facts right are motivated by an intent to deceive.

Prison loaf.

Ugh. Via CrimLaw, I was linked to this recipe for something called prison loaf.

Never, and I do mean NEVER, talk to the police.

Part of the persecution's theory in the Martha Stewart case is that she lied to them. It common for the police to ask someone a question about a crime. If they don't like the answer, they will often arrest the person for "obstructing justice." This happens even when the person tells the truth because the police only need probable cause to believe the person is lying. Think about it.

Imagine the police belive that A knows where B is. The police ask A where B is. A replies, "I have not seen B in over 3 months." Well, the police now have probable cause to arrest B. Sounds fun.

Michael ALVARADO was another victim of police lies. They told him: “Now all I’m simply doing is giving you the opportunity to tell the truth." What they really meant was, "Please tell us something that we can use to charge you with a crime." Since Michael was only 17, the Court must decide whether his age should be a factor in the ole "would a reasonable person feel free to leave?" test.

Give me a break. A 17-year old kid was taken into the back room at a police station where he was interrogated for over 2.5 hours. I am over 17 and I will say that under those circumstances, I would not have felt free to leave. Maybe the most important right we have is the right to remain silent.

"Unable to Duck the Issue"

An article on demands that Scalia recuse himself is here.

I think this controversy is silly. If Scalia and Cheney wanted to predetermine the result of this case, there are plenty of D.C. backrooms wherein they could have made this agreement. Besides, Scalia is a supporter of a strong executive. I doubt he would force the Vice President to make public the notes from the energy task force. For crying out loud, we are not talking about Watergate. Politicians meet with their cronies all the time. The Right has big business. The Left has Trial Lawyers, Inc. At least these interest groups care enough about their welfare that they lobby. So many Americans sit at home, doing nothing. Remember what Benjamin Franklin said, "This is a republic, if you can keep it."

I'd hire him, too.

This is the most impressive resume I have ever seen.

Howard Dean, the un-democratic Democrat.

On Page 50 of the Feb. 5, 2004, Rolling Stone, the following exchange occurs:

Question: "But what about the fact that voters in nine states have said they want medical marijuana made legal?"

Howard Dean's answer: "I don't like legalizing medicinal marijuana by referenda."

In other words, we the people should let Howard decide what is best for us.

I echo his sentiments: I don't like legalizing Howard Dean by referenda, either.

Dangerous Case, Thornton v. United States (No. 03-5165).

An important property rights case, framed as a Fourth Amendment case, is Thornton v. United States (No. 03-5165). The government's brief can be found here.

The issue in Thornton is whether the police may search and seize your car, even when you are not in your car at the time they stop to talk to you.

In Thornton, Mr. Thornton pulled into a shopping center parking lot. Unknown to him, a cop was on his tail. Thornton did not give any indication that he knew a cop was behind him. The cop had not turned on his sirens or otherwise indicated that he was behind Mr. Thornton.

Mr. Thornton stepped out of his car; closed his car door; and started to walk towards the store. The police officer jumped from his car and ran towards Thornton to ask him some questions. Naturally, Mr. Thornton was nervous. Most people are nervous when questioned by the police, especially when the police officer is trying to get your attention. Nervousness amounts to reasonable suspicion in all cases; and probable cause for most.

The cop conducted a pat-down search. He found a bulge in Thornton's pocket. The bag contained weed.

The police officer then went to Mr. Thornton's property, that was parked in a private parking lot, opened the car door, and searched the car.

If the Supeme Court decides this case the way I think it will, then the police will be able to search your car anytime they stop you. The police will be able to seize your car, even if you are stopped while outside your car. I think it is safe to say that none of your property is "private" once you step outside of your house. The police are encroaching closer and closer to your house too.

Pretty soon, you will have no privacy. Maybe that is what you want.

Am I the only conservative who is torn?

President Bush has increased federal spending; wants to grant amnesty to illegal aliens; is unconcerned with civil liberties; and refers to dissenters as enemies of the state.

What do I have to lose by voting for a Democrat, John Edwards, for example? We will still have a huge federal budget; talks of amensty for illegal immigrants; a thought police (ala the PC-crowd). But at least I gain a president who cares somewhat about my civil liberties.

I can not find a reason to vote for Bush. By the way, I am hardly a whiney liberal: I voted for Pat Buchanan in the 2000 primaries.

I'd hire him.

Howard Bashman announces the start of his new law firm here.

Best of luck.

Speaking Schedule for Randy Barnett

Randy Barnett has posted his speaking schedule over at the VC.

If you get a chance, check him out.

Chicken Little?

Was Scalia right in Lawrence v. Texas?

The U.S. Attorney's Manual on outrageous government conduct.

Here is what the USA has to say about outrageous government conduct.

The U.S. Attorney's Manual on outrageous government conduct.

Here is what the USA has to say about outrageous government conduct.

What is outrageous government conduct?

Although the government may infiltrate existing criminal enterprises without running afoul of the Due Process Clause of the 5th Amendment, it may not create new crimes solely to catch a particular defendant. The government engages in outrageous conduct when it, among other things, creates a criminal enterprise solely for the purpose of ensnaring an otherwise law abiding citizen in the scheme or artifice.

Outrageous government conduct (OGC) under the “creation” test.

The concept of OGC was born in 1973. In United States v. Russell, the United States Supreme Court said, “We may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government for invoking judicial processes to obtain a conviction.” 411 U.S. 423, 431-32 (1973). Such conduct, to rise to the level of OGC, must violate “fundamental fairness, shocking to the universal sense of justice.” Id. at 432. Although OGC is a pliable concept, the Ninth Circuit recognizes two situations wherein OGC is present.

First, government conduct rises to the level of OGC when the government encourages criminal conduct by engaging in brutal physical or psychological coercion. United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986), vacated on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986)(vacating only as to other defendant). Second, government conduct rises to the level of OGC when government agents “engineer and direct the criminal enterprise from start to finish” so that the “conduct constitutes, in effect, the generation by police of new crimes for the sake of pressing criminal charges against the defendant.” Bogart, 783 F.2d at 1436. See also, United States v. So, 755 F.2d 1350 (9th Cir. 1985).

In United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), the Third Circuit reversed Twigg’s conviction from charges stemming from illegal manufacture of methamphetamines because the police had created the meth lab, provided all the supplies to create the meth, and then themselves created the meth. It was constitutionally outrageous to prosecute Twigg when the government itself had created the drug scheme under which they sought to prosecute Twigg.

Outrageous government conduct under the Ninth Circuit’s 6-part test.

Another way a court may found OGC is by applying the 6-Part Green test.
The Ninth Circuit applies a 6-part test in determining whether government conduct rises to the level of outrageousness.

In Green v. United States, 454 F.2d 783, 787-787 (9th Cir. 1972), the Ninth Circuit found outrageous government conduct where the informant (1) contacted the defendant; (2) engaged in prolonged criminal activity with the defendant; (3) was substantially involved with the criminal enterprise; (4) applied pressure against the defendant; (5) established the criminal enterprise; and (6) acted as the only customer of the criminal enterprise. “None of the factors we pointed to as significant would necessarily require reversal of a conviction. In our view it is the combination that is important.” Id. at 787.

New Feature.

From time to time I will post memos on certain issues of law. I think that the internet is a wonderful time-saving tool. If only everyone would post their briefs and memos! Again, my posting a memo of law is NOT, in any way, an attempt to give legal advice. This web site does not, and will not, provide legal advice.

Moreover, I am posting these memos as much for my own selfishness. Although I recently purchased a cruzer mini (which is indispensible since I work from several different computers), I do not yet enjoy a virtual drive. And so, my posting these memos allows me to access my research from a remote location.

"20 Questions for Randy Barnett"

Randy Barnett, both scholar and advocate, answers 20 Questions at Crescat Sententia, here.

Sabri Respondent's Brief.

The Respondent's brief in Sabri v. United States is now available.

Dr. Gene Scott.

By far, the most interesting, entertaining, and insightful minister is Dr. Gene Scott.

Writ of Habeas Corpus.

I was once instructed to file a writ of habeas corpus for a client who had been convicted in federal court but not yet sentenced. I said that I could not do so. Em became grouchy and asked, "Why not?"

Two cases you can show your boss are Mitchell v. Esparza (No. 02-1369) and Yarborough v. Gentry (No. 02-1597). These cases provide great rules statements for use in a memo. A law student would be prudent to have these rule statements in mind before taking a Federal Courts exam.

The Feeney Amendment and Separation of Powers.

I have a new legal challenge to the Feeney Amendment. Please share your thoughts with me.

Does vesting significant sentencing decisions in the hands of the executive impermissibly abrogates the judicial power? Under the American constitutional system, there is to be a strict separation of powers between each co-equal branch of government. But in practice, "[w]hile people sometimes refer to the three branches of the federal government as a three-lawyer cake, it is more accurate to think of it as a marble cake." John E. Nowak & Ronald D. Rotunda, Constitutional Law §3.5 (6th ed. 2000). Thus, a prosecutor's decision on what charges, if any, to bring will ultimately impact the available options at sentencing. Bordenkircher v. Hayes, 434 U.S. 357 (1978) (finding no Due Process violation when a state prosecutor reindicts defendant on a more serious offense when the defendant did not plead guilty to the crime with which he was originally charged.) And the prosecution holds almost absolute discretion in this area.

However, the Feeney Amendment conditions the trial court's sentencing decision upon prosecutorial approval. For example, under §5K3.1 the judge may issue a four-level early disposition downward departure only "[u]pon motion of the Government" and when "authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides." Under §3E1.1(b)(1), the trial court may give the defendant an additional base level increase of one only "upon motion of the government [ ]." This conduct seems to confer upon the executive power beyond its proper prerogative and almost amounts to an "executive veto" of judicial sentencing decisions. And like the "legislative veto" Congress improperly reserved for itself in INS v. Chadha, 462 US 919 (1983), the executive's effort to dictate sentencing decisions should be struck down as unconstitutional.

Curfews & the First Amendment: Hodgkins v. Peterson, No. 01-4115, (7th Cir. 2004)

A clear and brilliant exposition on the application of the First Amendment to state and local curfew laws can be found here. This case should be included in all First Amendment casebooks. And its propositions should be arrows in the quivers of criminal defense lawyers.

In Hodgkins v. Peterson, the Seventh Circuit answers in the affirmative this question: Does a curfew law, so broad that it allows a police officer to arrest a minor who is returning from a political protest, violate the First Amendment even where it allows the minor to assert a First Amendment affirmative defense at trial? The reasoning for this outcome is as follows.

A person has standing to challenge a law when they have suffered, or reasonably will suffer, an actual or apparent injury. The plaintiff (in this case an individual plaintiff and plaintiff class) has standing because they are likely to be arrested if out past 11 p.m. on weekdays, or 2 a.m. on weekends. Hodgin had standing to challenge the law under the overbeadth doctrine because the law impinged upon a significant amount of protected speech. For a person to state a claim under the First Amendment, they must prove that their speech was actually chilled. The plaintiffs could show this because fear of criminal prosecution would have, or did, prevent them from going to late night protests; political rallies; or church events. The case was not moot, even though Hodgin was no longer liable under this statute at the time of the opinion because a class action takes on an existence of its own.

The State argued that the law was not defective because the aggrieved party could assert a First Amendment affirmative defense. In other words, the minor could say in opposition to a citation, "I was returning from a political rally."

This affirmative defense did not cure the defect in the statute, however, because under 4th Amendment jurisprudence, the arresting officer does not have a duty to investigate or to seek exculpatory evidence. The officer only needs probable cause to believe that someone is committing a crime.

Applied here: Cop arrests minor. Minor says, "But I was returning from a political rally." Cop says, "Tough shit. Tell it to a judge." This arrest, under this statute and under the U.S. Supreme Court's jurisprudence, would be proper. It is hardly fair to force the child (or his parents) to have to hire a criminal defense lawyer to avoid being punished for exercising a constitutional right. And so, the statute is unconstitutional.

The case also ponders, but does not answer: Do curfew laws violate the substantive due process rights of parents by impinging upon their right to allow their child to remain out past a certain hour?

Every criminal defense (and Section 1983) lawyer, should be familar with this case.

Illinois v. Lidster.

Last week I woke up an optimist. Then I read Illinois v. Lidster.

Were criminal law and civil rights not my passion, I would avoid reading the Court's criminal procedure cases. Reading these cases makes my blood pressure rises. I get angry. I become afraid. I ask myself, Is America is becoming a police state?

But before I read a Supreme Court decision, I - unlike the Rehnquist Court - read the constitutional amendment at issue. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [ ]." Let's look at this amendment in the context of Lidster.

Illinois cops set up a roadblock on a Saturday night at 12-midnight. The sole reason for this roadblock was to determine if anyone had seen an accident the week before. Lidster had to stop in traffic as he approached this roadblock. Lidster then had to stop his vehicle to talk to a cop.

Being stopped in traffic because of state action is a seizure. We know this because, but-for the roadblock, Lidster would have been home sooner. In other words, the roadblock slowed what the rate of traffic would otherwise have been. Being forced to stop in front of a police officer against your will is also a seizure. Is it reasonable to be stopped in traffic simply because the cops want to fish for information? It sure isn't reasonable to me. Nonetheless, the Court upheld these types of seizures.

The Supreme Court said that this roadblock was reasonable because "information-seeking highway stops are less likely to provoke anxiety or to prove intrusive. The stops are likely brief. [ ] And citizens will often react positively when police simply ask for their help as “responsible citizen[s]” to “give whatever information they may have to aid in law enforcement.” (Slip opinion at 4).

Those are very good policy reasons in support of the stop. If I witnessed a hit-and-run, I would likely do everything in my power to determine the killer. But this has nothing to do with the 4th Amendment. We must presume that the Founders of this country had such policy discussions before they described the scope or our rights. But the Rehnquist Court believes that each case causes the 4th Amendment to come before it tablua rasa, in the new. Scalia, too, joined this oppinion, in contradiction to the principles articulated in his book.

What offends me most is the intellectual dishonesty. The Court says that police are free to solicit are help in apprehending criminals. This is true. However, I do not see how it thus follows that: "[I]t would seem anomalous were the law (1) ordinarily to allow
police freely to seek the voluntary cooperation of pedestri but (2) ordinarily to forbid police to seek similar voluntary cooperation from motorists." (Id. at 4-5). This, my friends, as you learned in your Jr. year of High School, is a fallacy. It is easy to reason our way around this Court-created fallacy. Namely, our answer would be, "The police may seek the help of pedestrians in solving crimes. But they may not violate the Constitution in doing so." The police could knock on the doors of local homes and businesses. The police could hand out flyers. There are several other ways to seek information that do not require a rights violation.

Since the Court has the finest legal minds working for them as law clerks, I can only draw the conclusion that Lidster's reasoning is based on a deliberate indifference or disregard for truth.

Another point that bothers me. A lot of people will say, "I would love to stop to help the police. These roadblocks don't bother me." My answer to you is that IT DOESN'T MATTER WHAT YOU DO WITH YOUR OWN RIGHTS. I, little old me, hold the right to be free from these unlawful seizures. I do not want to surrender these rights. You should not be able to force me to do so. You may, however, amend the Constitution. Until you do so, please, start taking rights seriously.

Final Meal Requests.

The Texas Department of Corrections used to post on its website the final meal requests of soon-to-be executed inmates. As Bashman noted in an article cited here, the TX DOC took down these details.

Fortunately for y'all, I downloaded these meal requests before they were taken down. Since these are public records, I figured I would post a few at at time. If you want to see more (or less) of these, e-mail me, as I have the original list in the same format as from the website.

Larry Hayes. Two bacon double cheeseburgers, French fries, onion rings, ketchup, cole slaw, two diet Cokes, one quart of milk, one pint of rocky road ice cream, one pint of fried okra, salad dressing, tomato, and onion

Allen Janecka. Chicken fried steak, gravy, French fries, ketchup, salad, blue cheese dressing, iced tea with lemon, two sodas, rolls, and butter

Cedric Ransom. None requested

Christopher Black, Sr. One steak (medium well), fried chicken (wings and thighs), French fries, mushroom gravy, mixed steamed vegetables, chocolate fudge cake, peach cobbler, sweet tea, bread, and chef salad with Italian dressing

Hilton Crawford. Twelve beef ribs, three enchiladas, chicken fried steak with cream gravy, crisp bacon sandwich, ketchup, a loaf of bread, cobbler, three Cokes, three root beer, French fries, and onion rings

Kia Johnson. Four fried chicken breasts, onion rings, fried shrimp, French fries, fried catfish, double-meat cheeseburger with grilled onions, strawberry fruit juice, and pecan pie

"Republicans Don't Care to Enforce the Law."

Please see this article here about the so-called "law and order" political party. I wonder how Republicans would react if a Democratic administration refused to enforce the federal drug laws?

Return.
I am back after 5 days on the road.