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December 29, 2006

Carey v. Musladin, a quick analysis ::
legal — tagged , , , and
3:00 pm

I must be feeling better because I find I have a reinvigorated interest in the activities of the Supreme Court. I note particularly the Court’s opinion in Carey v. Musladin, which presented the question of whether the California courts improperly upheld the conviction of a criminal defendant after the victim’s family members were allowed to wear buttons displaying photographs of the victim during the trial. The question was couched within the defendant’s subsequent federal habeas petition, and the Court’s majority opinion stuck to the narrow, technical question of whether upholding the conviction in spite of the buttons was “contrary to” or “an unreasonable application of” clearly established federal law. In a brief opinion by Justice Thomas, the Court quickly answered the question in the negative. But Justice Souter, concurring in the judgment, took a different approach in which he dealt with the question in a more substantive manner:

[O]ne could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper considerations. The display is no part of the evidence going to guilt or innocence, and the buttons are at once an appeal for sympathy for the victim (and perhaps for those who wear the buttons) and a call for some response from those who see them. On the jurors’ part, that expected response could well seem to be a verdict of guilty, and a sympathetic urge to assuage the grief or rage of survivors with a conviction would be the paradigm of improper consideration.

It’s interesting to compare the majority opinion with Souter’s concurrence. In an effort to build consensus and answer only a narrow, technical question, the majority seems to foreclose the possibility that private actors in a court room could ever do something that would prejudice a criminal defendant during trial. By contrast, Souter’s concurrence does a good job of being just as narrow of an opinion, but leaving open the possibility of prejudice against the defendant based on a different set of facts.

Update: Tony Mauro has an interesting article about Chief Justice Roberts that shades the oddly narrow and technical nature of the Court’s Carey opinion. I noted particularly this paragraph:

Nearly everywhere he goes, Roberts speaks of his desire to preside over a more cohesive and unanimous Court. But with resignation in his voice, he notes that he cannot achieve that goal without active help from his colleagues.

Given Roberts’ intelligence and his overwhelmingly technical mind, as well as this priority he seems to be sticking to, it could be that this opinion simply a product of the type of influence he has over the Court.

October 8, 2006

Cornell Law to help with Donald Fell appeal ::
legal — tagged , , , and
9:05 am

Back in the summer of 2005, I was posting pretty regularly on the Donald Fell capital trial. It was, for those who remember it, a big deal around here because capital punishment is rarely used in any of the Northeastern states, and because although Vermont doesn’t have a death penalty statute, the federal statute is still available for federal crimes. With that said, I found this AP piece about the law students at Cornell helping with Fell’s appeal.

September 27, 2006

The Devil and the White City by Erik Larsen ::
books — tagged , , and
1:27 pm

Here it is, The Devil and the White City, another in a long line of pop history books I love to read. And yes, as is the case with anything written by Simon Winchester or Mark Kurlansky, I read this book in something like three days. The speed with which I got through this was just as much a testament to my love of the pop history genre as it is to Erik Larsen’s mastery of writing within it. Which reminds me: I have this vision of the publishing industry employing armies of editors and marketing geniuses who hunt down these authors and vet them for exactly the right sort of talent and story ideas, and then run the story through an editorial machine in order to create another book that really is the same—if only in form, not subjectmatter—as all the others I’ve read. And I consume them like processed food.

But getting all that cynicism about marketing out of the way, the book was really quite gripping, and everything that all your friends said it was who talked to you about it at that last dinner party. The story is a study in contrasts, really—on the one hand you had Daniel Burnham, an accomplished yet decidedly non-Ivy-League-Educated architect with something to prove who is charged with building the World’s Columbian Exhibition in Chicago, on the other H. H. Holmes, a serial killer trained in medicine who used his knowledge and skills in some of the most gruesome ways imaginable. What tied the two worlds together was the utter lack of rules of Chicago in the 1890’s. It was only in such an environment that you could see the extremes of both individual and societal behavior that was emblematic of pre-progressive era America.

In many ways Chicago was a pioneer city of the time, where a lack of environmental, health and safety, and business regulations allowed the owners of the Worlds Fair to construct it so quickly and without regard to the impact it would have on those building it. And the lack of law enforcement allowed a serial killer to remain undetected and act so brazenly for so long. The lawlessness of the time made me appreciate the relative safety of our current regulatory state, and the increased quality of life it has brought. But it is in that crucible of extremes that a truly great story was able to take shape. So go and enjoy it.

Related:

September 25, 2006

The large abuses of tiny courts ::
legal — tagged , , , and
7:56 am

The New York Times has an interesting piece on the small, rather unceremonious courts of limited jurisdiction in New York State and the types of abuses that go on there. Since these courts lack the high profile of general jurisdiction courts and often have people substantially less qualified presiding over them, they do not get the same level of attention as the Supreme Court of New York. The article, noting first that “[n]early three-quarters of the judges are not lawyers…have scant grasp of the most basic legal principles, [and] never got through high school,” goes on to explain why the underqualified nature of these judges is such a Big Deal:

But serious things happen in these little rooms all over New York State. People have been sent to jail without a guilty plea or a trial, or tossed from their homes without a proper proceeding. In violation of the law, defendants have been refused lawyers, or sentenced to weeks in jail because they cannot pay a fine. Frightened women have been denied protection from abuse.

Given the lack of attention that these courts garner (who really cares how your challenge to that traffic ticket was resolved?) what springs to mind for me is the dialogue between Holmes and Watson in The Adventure of the Copper Beeches, in which Holmes notes that it is places isolated from greater society and hidden from public scrutiny that are ripest for abuses and crime:

But look at these lonely houses, each in its own fields, filled for the most part with poor ignorant folk who know little of the law. Think of the deeds of hellish cruelty, the hidden wickedness which may go on, year in, year out, in such places, and none the wiser.

January 30, 2006

Judge Cashman: a Denouement ::
legal — tagged , , , and
6:11 pm

One last follow-up for the Cashman debate. Remember back when Judge Cashman stated his reason for giving the 60-day sentence was because the defendant Mark Hulett was ineligible for sex offender counseling in prison? Well, according to This article in the Boston globe, the state took the judge’s comments to heart:

In the aftermath of Cashman’s ruling, Human Services Secretary Michael Smith ordered the Department of Corrections to change its policy to allow low-risk sex offenders to receive treatment in prison.

With the policy changed, Judge Cashman felt comfortable levying the sentence he did (3-10 years), now knowing that Hulett would receive sex offender treatment while in prison. And with that, I’ll temper the comments I made earlier about justice not being done when the judge handed down his second sentence. If the only thing preventing the judge from issuing the sentence was a bad state policy and that policy was changed, it doesn’t offend my sense of fairness so much when a judge changes the sentence.

At the end of all of this, I have to admit I’m pretty impressed with the way the executive and and judicial branches interacted over this case. Once I cut through all the bluster and puffery, it really sounds like both the executive branch and the judiciary tried at all times to do what was best under the law. If that results in Bill O’Reilly getting all up-in-arms for a couple of weeks then, well, I think it was a worthy price to pay.

January 27, 2006

Judge Cashman modifies sentence ::
legal — tagged , , , , and
5:36 pm

By way of TalkLeft, I found that Judge Cashman (previous posts: 1, 2) has, at the request of the prosecution, modified his sentence of Mark Hulett. After this modification, Hulett will serve 3 – 10 years in prison for his crime. I don’t have too much to add to the discussion, but I am concerned in cases where it seems that the decision of a court is based not on the facts of the case or the requirements of law, but rather on the shrill outcry of the public. This sentence modification is by no means the worst example of that happening, but, as far as I understand it, it’s also not justice.

January 14, 2006

Cashman update ::
legal — tagged , , , , and
3:45 pm

Regarding my previous post on Judge Cashman: two articles of interest, both found on Sentencing Law and Policy:

Interestingly enough, in the second article Representative Kainen made effectively the same argument I did in my previous post. Though I felt pretty comfortable making the arguments I did, it’s always nice to receive some validation.

Also, in an earlier post, Sentencing Law and Policy makes this good point about the inherent contradiction in the Libertarian/Conservative reaction to light sentencing:

I am always amazed to see a purportedly libertarian/conservative crowd show no real concerns about the problems of over-incarceration. By my lights (and also, I think, Justice Scalia’s as evidenced by his decision in Blakely), one of the greatest threats to liberty and freedom is the government having broad powers to lock people in small cages for very long periods of time. I am often disappointed that those who claim to champion liberty and small government are not leading campaigns against excessive punishments. Perhaps I should do a post entitled, “Why people are skeptical of libertarian/conservative concerns about liberty/freedom/small government.”

Judge Cashman ::
legal — tagged , , , , and
2:31 pm

So, the whole controversy surrounding Vermont District Judge Cashman’s sentencing a sex offender to 60 days in prison has totally slipped under my radar, since I’ve spent the past three days getting acclimated to the new semester at school. But already it’s become clear to me that the real story here is not the sentence that Judge Cashman imposed, or his supposed statement to the effect that he no longer believes that punishment works. Rather, the real story here is that sloppy reporting has led to a public uproar and has effectively created a story out of something that is not actually a story at all.

The idea that any judge anywhere would make a statement as brazenly anti-punishment as “I discovered it accomplishes nothing of value[; i]t doesn’t make anything better” was just too off the charts to accept. Jessamyn astutely observed, anyone who would think that wouldn’t be a judge. So to better understand what actually did happen, I thought there might be some subsequent articles out there worth reading.

Rama Schneider, over at the Times Argus blog, pointed out that the Judge Cashman’s statement, which initially caused all the uproar, was actually quite ambiguous. For example, when the judge says “it doesn’t make anything better,” we can’t tell from the quoted text what “it” refers to. It could be punishment, or it could be something else not included in the pulled text. So it seems that it would help to see what the initial transcript was all about.

Enter the AP, which ran a not-quite-a-retraction story today, in which they state in no uncertain terms that the hearing transcript show that Cashman did not say he did not believe in punishment. Rather, Cashman “said a sentence of lengthy jail time with no rehabilitation was the opposite of what the Legislature wanted. ‘They do not want traditional sit-in-the-jail-and-do-nothing sentences[.]’” That sounds a lot more tempered than the initial stories suggested. And my guess is that, while it might be a somewhat non-traditional sentencing decision, it is still a reasonable one, and probably not one that is actually worth telling. Unless, that is, your real interest is to start a public outcry.

August 7, 2005

The anti-fringe ::
politics, legal — tagged , , and
10:29 pm

I wanted to post something thoughtful about the new anti-fringe laws implemented by the British government after the bombings of last month, but it seems that the author of Legal Fiction has beat me to it. Although I understand the fear and desire for protection that inspired the new laws, the central problem with them is that they allow the very same government that came up with them to determine how they will be limited. such a system is ripe for abuse. Pubilus asks all the right questions:

Do we have enough trust that the government will only criminalize speech that is dangerous and won’t chill or limit legitimate dissent that is the lifeblood of a democracy? I don’t—for the same reasons I don’t trust Bush to decide who is or isn’t an “enemy combatant” to whom the Constitution doesn’t apply. And for the same reason I don’t trust America to be sole arbiter of whether its use of military force is justified. That’s what law and process are for—to check power and encourage deliberation and legitimacy. If it were possible to draw the line just right, I might be ok with it. But laws are administered by men, and these laws will inevitably be used for other purposes. When a line gets drawn, people (especially Muslims) will be less likely to express dissent for fear of being seen as approaching that line.

The funny things low polls make you do ::
politics — tagged , , , and
6:50 pm

First off, it’s been an excellent weekend. Lots of time outside, going swimming, hiking, and bike riding. The only downside is that I’m completely sore. Ouch!

I haven’t been reading the news too much over the past couple of days. However, I came across a couple of related issues that, when read together, create the potential for an interesting story regarding the future of the Plame investigation. First off, the nice people over at TalkLeft posted about the future of special prosecutor Fitzgerald’s investigation of the Plame controversy. Namely, they suggest that the whole reason Fitzgerald has gotten as far as he has is because of Deputy Attorney General James Comey, who took over oversight of the investigation after Attorney General Gonzalez recused himself. But Comey will be leaving his post, and will be replaced with Robert McCallum, a long-time acquaintence of President Bush. To reproduce the relevant part of the Newsweek article on which TalkLeft based its piece:

Comey was the only official overseeing special counsel Patrick Fitzgerald’s leak investigation. With Attorney General Alberto Gonzales recused, department officials say they are still trying to resolve whom Fitzgerald will now report to. Associate Attorney General Robert McCallum is “likely” to be named as acting deputy A.G., a DOJ official who asked not to be identified because of the sensitivity of the matter tells NEWSWEEK. But McCallum may be seen as having his own conflicts: he is an old friend of President Bush’s and a member of his Skull and Bones class at Yale.

So, one of two things might happen. McCallum might recuse himself as well, citing his past relationship with the President. Or he might decide that personal relationship would not materially limit his ability to oversee the case. If McCallum chooses the first option, it probably wouldn’t raise any eyebrows. If he decides to oversee the case, however, it will probably gain some attention. His actions will most likely be even more scrutinized if he then chooses to call off the investigation altogether.

Now, on to the second issue. If we lived in a world where Bush’s approval ratings were soaring, and such a boldfaced move might be more acceptable. But as Kos points out, the president’s approval rating continue to slump. Not only that, “[o]nly 12 percent think the Bush administration is telling the entire truth about the [Plame leak]” (emphasis mine—sorry!). Given that, if the President wants to get anything done in the last three years of his term, he has burden to show some level of honesty about the investigation. And you know, bringing in an old croney to oversee the special prosecutor does nothing to help him carry that burden. In fact, it would be counter-productive. So unless we see some drastic turnaround in the next month, I think there will be significant political pressure on the White House—and by extension, the Justice Department—to allow the investigations to continue.

This might get more than one person in the White House to shout in exasperation, “Oh, politics! How hard you make it for us to do what we want!” Of couse, they’ve probably been shouting that for quite some time now.

August 5, 2005

Suit challenging random NYC subway searches ::
legal — tagged , , and
10:34 am

New York Newsday, The New York Times, and the Paper Chase all reported yesterday on the suit filed by the New York Civil Liberties Union challenging the new random searches program implemented in the New York subway system after the London bombings of last month.

Random searches are a fascinating debate within Foruth Amendment search and seizure law. Like many other policies implemented in times of heighted worry, they do very little to protect public safety by preventing a bomb attack, while clearly violating the protections of the Fourth Amendment.

To show you what I mean by their ineffectiveness, here’s a hypothetical. Imagine, if you will, a group of determined suicide bombers. All of them attempt to enter a subway system. Police are in the subway system, performing random searches. Some of the may be captured by the random searches, some of them may get scared and choose not to entre. But, assuming they maintain their resolve, all of them stand a good chance of getting through the random search point. One bomber getting through means the security system failed. As the IRA once said,

[t]oday we were unlucky, but remember we only have to be lucky once. You have to be lucky always.

Ultimately, this lawsuit is a good thing, because it will force the city of New York to discern between those security measures that only appear to provide added security, and those that actually have the effect of preventing future attacks. So this suit is helpful not only because it protects civil liberties, but also because it will have the effect of helping make us all safer.

Here’s the complaint filed by the ACLU in the case (PDF). It contains significant amount of facts, but only an assertion that the search policy violates the Fourth And Fourteenth amendments. So the precise application of the law will, I presume, be worked out during the preliminary hearings.

August 1, 2005

Harmless error? ::
legal, vermont — tagged , , , and
10:54 pm

So, I had a chance to read the recent Vermont Supreme Court opinion for State v. Wigg, which deals in part with the issue of the wholesale exclusion of expert testimony that called into doubt the reliability of the complainant’s testimony. The complainant was an eleven year old girl, whose testimony consisted of answers given to a police officer during questioning.

Although Justice Dooley spends a lot of his intellectual power explaining why such exclusion is fundamentally at odds with established law, at the end of it all he holds that the trial court’s error was effectively harmless. His specific conclusion was:

Overall, we agree that the testimony of the expert witness linking the evidence already presented was highly unlikely to change the result. By rejecting the sexual assault charge, the jury was clearly aware of the reliability questions surrounding [the complainant’s] testimony.

Such intellectual acrobatics leading to the rather straightforward conclusion (i.e., in the end, the verdict was cool) seems out of balance. It also seems at odds with the requirement that courts follow the dictates of past decisions. Which in turn makes me wonder: can the doctrine of harmless error evolve from a tool that encourages judicial economy into one that encourages courts to dodge some of the tougher legal questions that, if answered honestly, would allow the obviously guilty to go free?

Patriot Act renewal ::
politics, legal — tagged , , and
9:40 am

On Saturday, the Washington Post reported that the Senate passed legislation renewing the USA PATRIOT ACT. The Post suggested that the renewal focused on some limited provisions of the original bill, rather than allowing for a wholesale expiration of the law’s more egregious components. As the article states:

The Senate legislation would tighten the requirements that must be met in order to seize business records, allow people to challenge warrants issued by the secret intelligence court, and require that the subjects of secret searches be notified within seven days unless an extension is approved by a judge.

Sounds like some promising changes. I’d be interested in learning more about the Senate bill, which seems to restrict government’s investigatory power more than the one passed by the House. (And of course, the fact that there are now two bills means that they will head to a conference committee to resolve any discrepancies between the two; logic would dictate that the final bill sent to the President will be somewhere between the two current versions.)

Also, if you’re just arriving to the PATRIOT ACT discussion (you probably aren’t if you’re a regular reader of this site), you should take Jessamyn’s advice and check out the CRS report on the legislation’s effect on libraries.

July 18, 2005

Watergate Day ::
politics — tagged , , , and
12:07 am

After surveying the news stories and blog entries dealing with Karl Rove today, I think it is appropriate to call July 17, 2005 “Watergate Day.” This was, as near as I can tell, the first day that the Rove/Plame scandal reached the a level comparable to the early stages of Watergate.

Remember that Watergate was not just about a single burglary. It was instead about a Whitehouse that, to paraphrase a top official in the Nixon Administration, tried to find an unethical way of doing just about everything. As Frank Rich notes in his OpEd piece today:

we shouldn’t get hung up on [Karl Rove]—or on most of the other supposed leading figures in this scandal thus far. Not Matt Cooper or Judy Miller or the Wilsons or the bad guy everyone loves to hate, the former CNN star Robert Novak. This scandal is not about them in the end, any more than Watergate was about Dwight Chapin and Donald Segretti or Woodward and Bernstein. It is about the president of the United States. It is about a plot that was hatched at the top of the administration and in which everyone else, Mr. Rove included, are at most secondary players.

Josh Marshall also backs this up in his post:

this isn’t about Valerie Plame or Joe Wilson or even Karl Rove. It’s not about exposing a CIA agent. That’s merely the tear in the fabric, the third-rate burglary, if you will. This is about a president who knowingly took his country to war on the basis of lies and the war on the homefront against anyone and everyone who’s tried to peel back the lies and expose the truth.

Indeed, Watergate Day must be the day that any president dreads. The day that the inquiry becomes broader, and is not isolated to a single official. After today, it could be that that the Rove/Plame problem becomes dramatically more unmanageable.

Now with all that, keep in mind that I stand by my previous post. From a political standpoint this is not manna for the Democrats—it could prove poisonous if Karl Rove is not indicted. More importantly, the problem this case represents goes beyond the politics of any single party. Anyone who is truly concerned about national security—not to mention the survival of a healthy democracy—should be concerned whenever government officials use their power as public servants to meet their own political ends.

July 15, 2005

Fell verdict reactions ::
legal, vermont — tagged , , , and
12:22 pm

The news world is replete with stories of the Fell trial. Here’s a list of stories I found most relevant, mostly by searching Google News:

The Rutland Herald has this piece in which Professor Michael Mello responds to the death sentence. He notes particularly that the chances of reversal are slim:

While he calls capital punishment law and procedures the most complicated, contradictory and inconsistent area of law he had ever encountered, Mello said Sessions handled the penalty phase so well he would be surprised if the sentence is reversed on appeal.

This assessment is consistent with other accounts of the penalty phase of the trial I have heard. If one shred of good news comes of this story, it is that Donald Fell’s trial was conducted in a fair manner consistent with Due Process.

The Vermont Standard has this piece noting that the Fell case has reinvigorated the capital punishment debate in the state.

Despite such arguments, public opinion across the state has not been convincingly assessed in years. The most recent published poll, taken by State Sen. William Doyle on Town Meeting Day 1999, suggested that the state is divided: 48 percent of those who responded said the death penalty should be restored, with 41 percent opposed. Although Doyle’s poll reached thousands of people, it only included the opinions of those who chose to participate, and the question was posed as neighboring Massachusetts debated a death penalty bill.

The Standard also notes that Howard Dean—who many regard as a left-wing ideologue—was a supporter of Capital Punishment during his tenure as Governor:

Sensing the absence of a statewide consensus, recent Vermont governors have straddled the fence. In the midst of the state’s 2001 debate on the issue, then-Gov. Howard Dean said he wouldn’t introduce a death penalty bill, but added that he wouldn’t veto one that reached his desk. In 2003, during his bid for president, Dean told Meet the Press, “The problem with life without parole is that people get out for reasons that have nothing to do with justice.”

On a national level, the Boston Globe has this thoughtful article on the Fell case, which includes a good timeline of the case.

The New York Times, the LA Times, the Washington Post, the Chicago Tribune, and the Guardian (UK) all have articles on the verdict as well, though from what I could gather they were mostly rehashed wire stories.

And finally, and possibly most relevant at this point, is the Burlington Free Press article on what’s next in the Fell case.

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