Another Man Released in Texas on DNA Evidence

These stories are too depressing to write about.

Today, the Dallas County District Attorney’s (DA) Office announced that Patrick Waller, 38, is the County’s latest wrongfully convicted citizen. Waller, who is represented by Gary Udashen, has spent the past 16 years in prison and was serving a life sentence for aggravated robbery with a deadly weapon, along with two 30-year sentences for aggravated kidnapping which arose from the same incident. He is the 18th person in Dallas County cleared of crimes by DNA evidence.

From Grits:

Unless Waller was simply a dead ringer for one of the actual perpetrators, which can certainly happen, it's hard not to think that biased interviewers somehow influenced these eyewitness IDs, and that the lack of double-blind identification procedures may have contributed to Waller's false conviction.

Faulty eyewitness identifications are the leading cause of wrongful convictions nationwide, but I've never before heard of a case where four different witnesses misidentified the same man in varying versions of police lineups!

Just Released a Terrorist!

Oh, nope. Just finally getting around removing Nelson Mandela from the U.S. terror watch list.

On this one, Condi and I agree completely (from RawStory):

US Secretary of State Condoleezza Rice recently said it was "embarrassing" to still have Mandela's name on the watch list.

I'm not sure how it came to be, but Mandela while he was still imprisoned was one of my heros growing up. Nobody ever really spoke about him with me, but you just have to hear his story once to understand the absolutely amazing result of one of the longest individual protests against a singular injustice this planet has ever seen.

Heat Burst

When I read about the "heat burst" that hit Nebraska yesterday, it was the first time I had heard of the phenomenon and thought I'd pass the strangeness along. It seems that these would be especially dangerous in cities like Phoenix.

"Cozad residents woke this morning to a weather phenomenon as a heat burst rolled through town. Temperatures rose 20 degrees in a matter of minutes while winds reached speeds of 75 miles per hour."

This is what Wikipedia has to say about heat bursts:

A heat burst is a rare atmospheric phenomenon characterised by gusty winds and a rapid increase in temperature and decrease in dew point. Heat bursts typically occur during night-time and are associated with decaying thunderstorms. While this phenomenon is not fully understood, it is theorized that the event is caused when rain evaporates (virga) into a parcel of cold dry air high in the atmosphere making the air more dense than its surroundings.[1] The parcel descends rapidly, warming due to compression, overshoots its equilibrium level and reaches the surface, similar to a downburst.[2] Recorded temperatures during heat bursts have reached well above 90 °F (32 °C), sometimes rising by 20 °F (11 °C) or more within only a few minutes. More extreme events have also been documented, where temperatures have been reported to exceed 130 °F (54 °C), although such extreme events have never been officially verified. Heat bursts are also characterised by extremely dry air and are sometimes associated with very strong, even damaging, winds.

The strange thing is that these heat bursts weren't documented until the middle of last century.

The Absurdity of the Marriage Amendment

I read lots of news stories which I find to be absurd or completely unbelievable, but I've never quite seen a story that is so completely open to ridicule.

It appears that Senator Craig, (yes, the gay bathroom Senator), and Senator Vitter, (yes, the D.C. madame Senator), are the co-sponsors of the new "Marriage Protection Act."

S.J. Res. 43 is a Constitutional Amendment that states:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.'.

I suppose that these two Senators incorporate the zeitgeist that they wouldn't be gay or prone to seek out prostitutes if all those people out there wouldn't taunt them with their sin.

If there weren't other gay men to give him pleasure, then there would be no reason for Senator Craig to be attracted to men.

And if it weren't so easy to call up a prostitute, then there would be no reaon for Senator Vitter to fell compelled to call them up.

This Constitutional Amendment is a clear opportunity for Senator Craig to make sure gays can't get married; which in turn protects him from possibly running off with a gay man to California.

This is the most pure example of why it is dangerous to legislate morality. Some people feel that they have to legislate certain issues to protect themselves from their own desires and motivations. It is like the alcholic that can't have just one drink telling everyone that they can't drink because he can't resist his own urge to drink if they do.

From the Carpetbagger:

. . . the funny part is looking over the list of the 10 original sponsors. Most of the names are predictable — Brownback and Inhofe, for example — but there are two others whose names stand out: Sens. David Vitter (R-La.) and Larry Craig (R-Idaho).

Yes, two of the principal sponsors of a constitutional amendment to “protect” marriage include one far-right Republican who hired prostitutes and another far-right Republican who was arrested for soliciting gay sex an airport men’s room.

(AmericaBlog must be credited with creating this picture.)

Justice Sleeping on the Job

Jim Lindgreen at Volokh seems to be surprised that Justice Ginsburg fell asleep while on-the-job, and even more surprised that she had done so before.

Really? Are any of you surprised?

Facebook Settlement to be Enforced

From Jurist:

A judge in the US District Court for the Northern District of California [official website] Wednesday granted a motion [order, PDF] to enforce a previous settlement agreement between two social networking websites, Facebook [corporate backgrounder] and ConnectU [corporate website]. The ruling effectively ends the two companies' ongoing legal battle [case materials] concerning ownership of source code forming the basis of Facebook. The two sides had agreed on a settlement in February, but ConnectU had sought to annul that agreement [Bloomberg report], arguing that Facebook had committed fraud in the procurement, material terms were missing, and the agreement did not reflect the parties' intentions.

RFID is Dangerous

Looks like they are going to need to revise the way that RFID is being placed in everything. (Go here to read an abtract from the Journal of the American Medical Association here.)

From redOrbit:

Dutch researchers reported Tuesday that radio frequency identification chips (RFID) used by many hospitals to keep track of medical products and equipment could cause the breakdown of critical medical care devices such as ventilators, pacemakers and kidney dialysis machines.

One U.S. patient-safety expert called the study "of urgent significance", and urged hospitals to immediately respond to the “disturbing” results. In their report, the researchers called on hospitals to conduct further safety tests.

. . . . .

U.S. Food and Drug Administration spokeswoman Peper Long told the AP the agency is aware of the potential problem but has not received any reports of injuries directly caused by electronic interference with hospital medical devices.

Senator "Big Bad John" Cornyn

I just saw this ad for Senator Cornyn's reelection campaign.

A Testament to Stupidity

My favorite crazies have declared that George Carlin is in hell. I think he would have enjoyed being called a "pottymouth."



I'm really not sure why Carlin is put in the same catagory as "fellow filth-monger Jerry Seinfield," and really not sure why Fred Phelps signs off by telling the listener that he/she is going to hell as well, but it is rather amusing.





The following is Carlin on stupid people:

Breaking: You have a Right to a Gun

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditional lawful purposes, such as self-defense within the home.

The opinion in District of Columbia v. Heller is here.

Syllabus:

District of Columbia law bans handgun possession by making it a crime
to carry an unregistered firearm and prohibiting the registration of
handguns; provides separately that no person may carry an unlicensed
handgun, but authorizes the police chief to issue 1-year licenses;
and requires residents to keep lawfully owned firearms
unloaded and dissembled or bound by a trigger lock or similar device.
Respondent Heller, a D. C. special policeman, applied to register a
handgun he wished to keep at home, but the District refused. He
filed this suit seeking, on Second Amendment grounds, to enjoin the
city from enforcing the bar on handgun registration, the licensing requirement
insofar as it prohibits carrying an unlicensed firearm in
the home, and the trigger-lock requirement insofar as it prohibits the
use of functional firearms in the home. The District Court dismissed
the suit, but the D. C. Circuit reversed, holding that the Second
Amendment protects an individual’s right to possess firearms and
that the city’s total ban on handguns, as well as its requirement that
firearms in the home be kept nonfunctional even when necessary for
self-defense, violated that right.

Held:

1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.
Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation
of the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in
order to disable this citizens’ militia, enabling a politicized standing
army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear
arms, so that the ideal of a citizens’ militia would be preserved.
Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous armsbearing
rights in state constitutions that preceded and immediately
followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious
interpretive worth, reveals three state Second Amendment proposals
that unequivocally referred to an individual right to bear arms.
Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts
and legislators, from immediately after its ratification through the
late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individualrights
interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban
on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the standards of scrutiny
the Court has applied to enumerated constitutional rights, this
prohibition—in the place where the importance of the lawful defense
of self, family, and property is most acute—would fail constitutional
muster. Similarly, the requirement that any lawful firearm in the
home be disassembled or bound by a trigger lock makes it impossible
for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional. Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbitrarily
and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home. Pp. 56–64.
478 F. 3d 370, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined.

KENNEDY V. LOUISIANA

You would have to be hiding under a rock not to have heard that the U.S. Supreme Court has ruled that the death penalty for rape of a child violates the 8th Amendment.

Majority opinion here.

Dissent here.

Transcript of oral argument.

Brief for Petitioner.

Brief for Respondent.

Reply Brief.

Here is the Syllabus:

SUPREME COURT OF THE UNITED STATES
KENNEDY v. LOUISIANA

certiorari to the supreme court of louisiana
No. 07–343. 

Argued April 16, 2008—Decided June 25, 2008

Louisiana charged petitioner with the aggravated rape of his then-8-year-old stepdaughter. He was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12. The State Supreme Court affirmed, rejecting petitioner’s reliance on Coker v. Georgia, 433 U. S. 584 , which barred the use of the death penalty as punishment for the rape of an adult woman but left open the question which, if any, other nonhomicide crimes can be punished by death consistent with the Eighth Amendment . Reasoning that children are a class in need of special protection, the state court held child rape to be unique in terms of the harm it inflicts upon the victim and society and concluded that, short of first-degree murder, there is no crime more deserving of death. The court acknowledged that petitioner would be the first person executed since the state law was amended to authorize the death penalty for child rape in 1995, and that Louisiana is in the minority of jurisdictions authorizing death for that crime. However, emphasizing that four more States had capitalized child rape since 1995 and at least eight others had authorized death for other nonhomicide crimes, as well as that, under Roper v. Simmons, 543 U. S. 551 , and Atkins v. Virginia, 536 U. S. 304 , it is the direction of change rather than the numerical count that is significant, the court held petitioner’s death sentence to be constitutional.

Held: The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death. Pp. 8–36.

1. The Amendment’s Cruel and Unusual Punishment Clause “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86 . The standard for extreme cruelty “itself remains the same, but its applicability must change as the basic mores of society change.” Furman v. Georgia, 408 U. S. 238 . Under the precept of justice that punishment is to be graduated and proportioned to the crime, informed by evolving standards, capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ” Roper, supra, at 568. Applying this principle, the Court held in Roper and Atkins that the execution of juveniles and mentally retarded persons violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime. The Court also has found the death penalty disproportionate to the crime itself where the crime did not result, or was not intended to result, in the victim’s death. See, e.g., Coker, supra; Enmund v. Florida, 458 U. S. 782 . In making its determination, the Court is guided by “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” Roper, supra, at 563. Consensus is not dispositive, however. Whether the death penalty is disproportionate to the crime also depends on the standards elaborated by controlling precedents and on the Court’s own understanding and interpretation of the Eighth Amendment ’s text, history, meaning, and purpose. Pp. 8–10.

2. A review of the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, demonstrates a national consensus against capital punishment for the crime of child rape. Pp. 11–23.

(a) The Court follows the approach of cases in which objective indicia of consensus demonstrated an opinion against the death penalty for juveniles, see Roper, supra, mentally retarded offenders, see Atkins, supra, and vicarious felony murderers, see Enmund, supra. Thirty-seven jurisdictions—36 States plus the Federal Government—currently impose capital punishment, but only six States authorize it for child rape. In 45 jurisdictions, by contrast, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 in Enmund that prohibited the death penalty under the circumstances those cases considered. Pp. 11–15.

(b) Respondent’s argument that Coker’s general discussion contrasting murder and rape, 433 U. S., at 598, has been interpreted too expansively, leading some States to conclude that Coker applies to child rape when in fact it does not, is unsound. Coker’s holding was narrower than some of its language read in isolation indicates. The Coker plurality framed the question as whether, “with respect to rape of an adult woman,” the death penalty is disproportionate punishment, id., at 592, and it repeated the phrase “adult woman” or “adult female” eight times in discussing the crime or the victim. The distinction between adult and child rape was not merely rhetorical; it was central to Coker’s reasoning, including its analysis of legislative consensus. See, e.g., id., at 595–596. There is little evidence to support respondent’s contention that state legislatures have understood Coker to state a broad rule that covers minor victims, and state courts have uniformly concluded that Coker did not address that crime. Accordingly, the small number of States that have enacted the death penalty for child rape is relevant to determining whether there is a consensus against capital punishment for the rape of a child. Pp. 15–20.

(c) A consistent direction of change in support of the death penalty for child rape might counterbalance an otherwise weak demonstration of consensus, see, e.g., Atkins, 536 U. S., at 315, but no showing of consistent change has been made here. That five States mayhave had pending legislation authorizing death for child rape is not dispositive because it is not this Court’s practice, nor is it sound, to find contemporary norms based on legislation proposed but not yet enacted. Indeed, since the parties submitted their briefs, the legislation in at least two of the five States has failed. Further, evidence that, in the last 13 years, six new death penalty statutes have been enacted, three in the last two years, is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. See id., at 314–315. Respondent argues that this case is like Roper because, there, only five States had shifted their positions between 1989 and 2005, one less State than here. See 543 U. S., at 565. But the Roper Court emphasized that the slow pace of abolition was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders. See id., at 566–567. Here, the fact that only six States have made child rape a capital offense is not an indication of a trend or change in direction comparable to the one in Roper. The evidence bears a closer resemblance to that in Enmund, where the Court found a national consensus against death for vicarious felony murder despite eight jurisdictions having authorized it. See458 U. S., at 789, 792. Pp. 20–22.

(d) Execution statistics also confirm that there is a social consensus against the death penalty for child rape. Nine States have permitted capital punishment for adult or child rape for some length of time between the Court’s 1972 Furman decision and today; yet no individual has been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963. Louisiana is the only State since 1964 that has sentenced an individual to death for child rape, and petitioner and another man so sentenced are the only individuals now on death row in the United States for nonhomicide offenses. Pp. 22–23.

3. Informed by its own precedents and its understanding of the Constitution and the rights it secures, the Court concludes, in its independent judgment, that the death penalty is not a proportional punishment for the crime of child rape. Pp. 23–35.

(a) The Court’s own judgment should be brought to bear on the death penalty’s acceptability under the Eighth Amendment . See, e.g., Coker, supra, at 597. Rape’s permanent and devastating impact on a child suggests moral grounds for questioning a rule barring capital punishment simply because the crime did not result in the victim’s death, but it does not follow that death is a proportionate penalty for child rape. The constitutional prohibition against excessive or cruel and unusual punishments mandates that punishment “be exercised within the limits of civilized standards.” Trop, 356 U. S., at 99–100. Evolving standards of decency counsel the Court to be most hesitant before allowing extension of the death penalty, especially where no life was taken in the commission of the crime. See, e.g., Coker, 433 U. S., at 597–598; Enmund, 458 U. S., at 797. Consistent with those evolving standards and the teachings of its precedents, the Court concludes that there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but “in terms of moral depravity and of the injury to the person and to the public,” they cannot compare to murder in their “severity and irrevocability,” id, at 598.The Court finds significant the substantial number of executions that would be allowed for child rape under respondent’s approach. Although narrowing aggravators might be used to ensure the death penalty’s restrained application in this context, as they are in the context of capital murder, all such standards have the potential to result in some inconsistency of application. The Court, for example, has acknowledged that the requirement of general rules to ensure consistency of treatment, see, e.g., Godfrey v. Georgia, 446 U. S. 420 , and the insistence that capital sentencing be individualized, see, e.g., Woodson v. North Carolina, 428 U. S. 280 , have resulted in tension and imprecision. This approach might be sound with respect to capital murder but it should not be introduced into the justice system where death has not occurred. The Court has spent more than 32 years developing a foundational jurisprudence for capital murder to guide the States and juries in imposing the death penalty. Beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of death. Pp. 24–30.

(b) The Court’s decision is consistent with the justifications offered for the death penalty, retribution and deterrence, see, e.g., Gregg v. Georgia, 428 U. S. 153 . Among the factors for determining whether retribution is served, the Court must look to whether the death penalty balances the wrong to the victim in nonhomicide cases. Cf. Roper, supra, at 571. It is not at all evident that the child rape victim’s hurt is lessened when the law permits the perpetrator’s death, given that capital cases require a long-term commitment by those testifying for the prosecution. Society’s desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. There are also relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a “special risk of wrongful execution” in some cases. Cf. Atkins, supra, at 321. As to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim. Pp. 30–35.

4. The concern that the Court’s holding will effectively block further development of a consensus favoring the death penalty for child rape overlooks the principle that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society,” Trop, 356 U. S., at 101. Confirmed by the Court’s repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life. P. 36.

957 So. 2d 757, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

We Got a Terrorist!

Ok, not really. What we got was a sick man who was committed to a phychiatric unit when he made threats against the president. I'm sure that crazy people rarely threaten to kill famous people.

Way to go.

From Raw Story:

A mentally ill homeless man will serve 57 months in federal prison for threats he made against President Bush.

Timothy Wade Pinkston threatened in August to go to Washington and shoot Bush. At the time, the 48-year-old was committed to a hospital psychiatric unit.

Court records say he repeated the threat to Secret Service agents, saying he didn't like the president's foreign policy or his handling of the war in Iraq.

Marijuana is Anti-Cancer

Who would have thunk it? There maybe actual medical uses for marijuana although our government would probably prefer that you never hear about it.

This is a freakishly sad commentary on politics in the U.S. We would rather punish people for recreational drug-use than try and help people dying of cancer. I can't think of a better way to show the lack of reason that has swept our nation.

From Huffington:

. . . the first experiment documenting pot's potent anti-cancer effects took place in 1974 at the Medical College of Virginia at the behest federal bureaucrats. The results of that study, reported in an Aug. 18, 1974, Washington Post newspaper feature, were that marijuana's primary psychoactive component, THC, "slowed the growth of lung cancers, breast cancers and a virus-induced leukemia in laboratory mice, and prolonged their lives by as much as 36 percent.

"Despite these favorable preliminary findings (eventually published the following year in the Journal of the National Cancer Institute), U.S. government officials refused to authorize any follow-up research until conducting a similar -- though secret -- preclinical trial in the mid-1990s. That study, conducted by the U.S. National Toxicology Program to the tune of $2 million, concluded that mice and rats administered high doses of THC over long periods had greater protection against malignant tumors than untreated controls.

However, rather than publicize their findings, the U.S. government shelved the results, which only became public after a draft copy of its findings were leaked to the medical journal AIDS Treatment News, which in turn forwarded the story to the national media.

In the years since the completion of the National Toxicology trial, the U.S. government has yet to authorize a single additional study examining the drug's potential anti-cancer properties. (Federal permission is necessary in order to conduct clinical research on marijuana because of its illegal status as a schedule I controlled substance.)

Ignoring Email the New Ostrich Metaphor

It used to be that we woul say you were "hiding your head in the sand" if you just tried to ignore the problems that you are facing. Nw we'll have to use a new term; how about "ignoring your email"?

Apparently this is a good way to ignore the U.S. Supreme Court.

From the NYTimes:

The White House in December refused to accept the Environmental Protection Agency’s conclusion that greenhouse gases are pollutants that must be controlled, telling agency officials that an e-mail message containing the document would not be opened, senior E.P.A. officials said last week.

The document, which ended up in e-mail limbo, without official status, was the E.P.A.’s answer to a 2007 Supreme Court ruling that required it to determine whether greenhouse gases represent a danger to health or the environment, the officials said.

Polygraphs Still Used by Defense Attorneys

Someone emailed me this link today and I foud some of the information quite interesting. Seems that the polygraph has become the tool of the defense bar.

Probably the most interesting thing is the fact that pre-trial negotiations can turn on the polygraph. Although it can't be admitted into court, it seems that the prosecutors might feel that if you can pss the polygraph you are actually innocent.

From Massachusetts Lawyers Weekly:

Although inadmissible in most courts, polygraph results are still being used by some criminal defense and even civil lawyers to leverage out-of-court settlements.

"I use polygraphs a lot," said William D. Matthewman, a criminal defense lawyer and partner in Coral Springs, Fla.

. . . . .

. . . . . for Matthewman, the most common use of polygraph results is during pre-trial negotiations.

"A number of criminal defense attorneys use polygraphs to determine whether they have someone they believe is innocent," Vaughan said. "They take the polygraph evidence to the DA and try to convince the DA the charges are without merit, or to leverage a better plea agreement."

In one case, a client of Matthewman's who was charged with first-degree murder in Puerto Rico underwent a polygraph test. The results - which were favorable to his client - were submitted to the federal prosecutor, who dismissed the case in part based on the polygraph results.

DOJ Misconduct

The DOJ hired layers based on their conservative credentials.

Is anyone really surprised by these findings? We all know that this type of bis exists. That is why I omit my Federalist Society credentials when applying for a position with a firm or judge that is "liberal" and omit my American Constitution Society credentials when applying for a "conservative" job.

When reading this report, all I could think was so what? Now what? I mean, geez these guys must be pretty shook up that they were criticized in public. Maybe we should send a note home to their mothers.

I guess this is the New America; break the law and get a stern letter sent to the media.



From the WSJ:

This just in: A report from the inspector general — the result of an investigation into DOJ hiring practices over the last six years — alleges that “many qualified candidates” were rejected from an elite recruitment program because of perceived liberal bias. Here’s a story from the NYT’s Eric Lichtblau, and here’s an AP report. Click here for the 115-page report.

The hiring practices, which reportedly took place under both AG Ashcroft and AG Gonzales, “constituted misconduct and also violated the department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations,” the report says. The report singled out two Gonzales aides for criticism.

Kozinski Videos

These videos are certainly not safe for work. Seriously. Don't look at them unless you are prepared to see what can only be classified as pornography. Mostly I get the impression that people want to see them for voyeristic reasons, but there are enough people out there that just want to see for themselves what all the fuss is about.

Some of it is straight pornography. After seeing it, I have the impression that maybe Judge Kozinski might not be the best person to be deciding what is obscene.

However, how do you draw the line? Clearly, Kozinski did nothing illegal. If a judge goes home and drinks alcohol, shoul he recuse himself from an alcohol advertising case? What if he uses the actual product? What if he is a Coke drinker and Coke brings a case? What if Pepsi brings the case?

What if you are a judge who happened to buy a Playboy? Does that mean you can't sit on a panel to decide what obscenity means? (Since Playboy can be bought at the public market we have to assume it isn't obscene -- likewise for these videos. Go to an adult store and they are tame by comparison.)

I think that at some level we have to asume that those people whom we have designted to life appointments are willing and able to differentiate between their own likes and dislikes and what the law is. That is why we have to be so careful when we pick them for the job.

Unless they do something obnoxious, (like if Kozinski had been running a porn site for some part-time cash), there is no reason for people to get so up-in-arms.

Water Powered Car

Ok, so if you haven't invested in water yet, it may be time. The price of water has been going up as the supply has dwindled due to contamination and population explosion.

In fact, T. Boone Pickens has been investing in water for some time because he is sure that water is the new oil.

Now, water has become the new gasoline according to this Reuter's piece. If true, just like corn prices, water is going to become much more valuable.

Nutri-loaf

Looking for the most unappetising thing on the planet in order to punish your children for not finishing their meals? Well, here you have it. Government tested and prisoner approved; nutri-loaf. This is the food they give to punsh prisoners for not behaving.

I found this story on Slate about taste-tsting this stuff. The story revolved around the fact that prisoners are constantly challenging the constitutionality of food, and a case is currently pending in Vermont. (Oral argument of the Vermont case here.) The author makes a few different types of loaf and trys them out with some friends.

Pretty funny stuff since we know it tastes horrible without haing to eat it, and t brings up a funny line of cases that clearly couldn't win.

However, I'm poking around the internet to get an idea what this loaf is like and I find that the A.V. Club, (the non-satiricle portion of the Onion), had already done a similar piece back in April. However, they give you an actual recipe.

Check it out, bring it to parties, and punish your little ones with food that is so bad it may be unconstitutional.

Supreme Court Rules Death Penalty Is 'Totally Badass'

This Onion video parody is pretty funny, but the language is probably NSFW. I particularly liked the part where Justice Kennedy says life without parole would be better because it is more brutal.


Supreme Court Rules Death Penalty Is 'Totally Badass'

Juveniles Entitled to Jury Trial

Of all the stories I noticed over the weekend, the Opinion from the Supreme Court of Kansas, (In the Matter of L.M.), struck me as one of the most important decisions to come out of the courts in 2008.

It isn't often that you see a state supreme court declare that they don't have to follow U.S. Supreme Court precedent.

In 1971, the U.S. Supreme Court found that juveniles were not entitled to a jury trial. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976 (1971). Judge Rosen in The Matter of L.M. distinguishes McKeiver and the previous Kansas Supreme Court ruling (Findlay) by noting the similarities juvenile justice now has with the the adult justice system. He then writes:

These changes to the juvenile justice system have eroded the benevolent parens patriae character that distinguished it from the adult criminal system. The United States Supreme Court relied on the juvenile justice system's characteristics of fairness, concern, sympathy, and paternal attention in concluding that juveniles were not entitled to a jury trial. McKeiver, 403 U.S. at 550. Likewise, this court relied on that parens patriae character in reaching its decision in Findlay. However, because the juvenile justice system is now patterned after the adult criminal system, we conclude that the changes have superseded the McKeiver and Findlay Courts' reasoning and those decisions are no longer binding precedent for us to follow. Based on our conclusion that the Kansas juvenile justice system has become more akin to an adult criminal prosecution, we hold that juveniles have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments. As a result, K.S.A. 2006 Supp. 38-2344(d), which provides that a juvenile who pleads not guilty is entitled to a "trial to the court," and K.S.A. 2006 Supp. 38-2357, which gives the district court discretion in determining whether a juvenile should be granted a jury trial, are unconstitutional.

I'm going to quote that one line again:

. . . because the juvenile justice system is now patterned after the adult criminal system, we conclude that the changes have superseded the McKeiver and Findlay Courts' reasoning and those decisions are no longer binding precedent for us to follow.

It is important to note that McKeiver was a plurality opinion, so it isn't wholly inapropriate in this instance for a state supreme court to claim that U.S. Supreme Court precedent is no longer precedent, but still it is a pretty bold given the disagreements the other courts have with this logic. Judge Rosen points them out:

In reaching this conclusion, we are mindful of decisions in other jurisdictions rejecting the argument that changes to the juvenile justice system have altered its parens patriae character. See Valdez v. State, 33 Ark. App. 94, 801 S.W.2d 659 (1991); In re Myresheia W., 61 Cal. App. 4th 734, 72 Cal. Rptr. 2d 65 (1998); In re L.C., 273 Ga. 886, 548 S.E.2d 335 (2001); State, ex rel. D.J., 817 So. 2d 26 (La. 2002) (dissenting justice concluded changes to system required a jury trial); State v. Gleason, 404 A.2d 573 (Me. 1979) (concluding new juvenile code retained beneficent and rehabilitative purposes of prior code); State v. Lawley, 91 Wash. 2d 654, 591 P.2d 772 (1979) (three dissenting justices concluded changes in system shifted focus from offender to offense and so policy arguments in McKeiver were not controlling); State v. Schaaf, 109 Wash. 2d 1, 10, 12-13, 743 P.2d 240 (1987) (noting rehabilitation was still purpose of juvenile code and differences continued to distinguish juvenile proceedings, which were not criminal proceedings, with one justice dissenting because juvenile code was punitive like criminal system).

We are also mindful that many of the state courts that have addressed this issue in one form or another have declined to extend the constitutional right to a jury trial to juveniles. See, e.g., David G. v. Pollard ex rel. County of Pima, 207 Ariz. 308, 314, 86 P.3d 364 (2004) (concluding trial court erred when it allowed a jury trial for a juvenile charged with traffic offenses because forcing a juvenile to be tried by a jury did not promote informality and flexibility of juvenile system and subjected juvenile to very stigma legislature sought to prevent); A.C., IV v. People, 16 P.3d 240, 244-45 (Colo. 2001) (upholding statute that allowed trial court discretion in determining whether to allow a jury trial); In re J.T., 290 A.2d 821(D.C.), cert. denied 409 U.S. 986, (1972) (upholding statute that required trial court to hear and adjudicate juvenile cases without a jury); McMullen v. Geiger, 184 Neb. 581, 584, 169 N.W.2d 431 (1969) (holding juveniles do not have right to jury trial because it is a civil proceeding under State's parens patriae authority, four justices dissented); R.V. Cory, 353 N.Y.S.2d 783, 44 App. Div. 2d 599 (1974) (holding a 15-year-old juvenile sentenced to an adult facility is not entitled to jury trial; dissent reasoned State is required to give child same constitutional rights given to criminals if it is going to treat child like a criminal); In re R.Y., 189 N.W.2d 644, 651-53, 655 (N.D. 1971) (upholding statute that required juvenile trials to be heard by the court; concurring justice acknowledged that if juvenile code became only a punitive tool, then a jury trial might be justified under state constitution); State v. Hezzie R., 219 Wis. 2d 848, 887, 889-90, 919, 580 N.W.2d 660 (1998) (holding juveniles do not have constitutional right to a jury trial but striking down statute that allowed juveniles to receive adult sentence without a jury trial; three justices dissented, reasoning juveniles should be entitled to a jury trial under all cases because changes to juvenile justice code treated juveniles like criminals).

I don't think you can be the state Attorney General and not apply for certiorari. The logic of the opinion MUST be either affirmed or denied by the U.S. Supreme Court. I can't imagine that the U.S. Supreme Court would not like an opportunity to address the issue of whether high state courts can ignore their precedent. However, the U.S. Supreme Court is probably not to keen on trying to determine if Kansas alone has changed its system so radically that juveniles now should have a right to a jury trial.

Maybe the U.S. Supreme Court will finally acknowledge that all juveniles need justice.

McCain Strategist Says Terror Attacks Would be an "Advantage"

I'm not sure why everyone is getting so worked up about this statement. Of course it is incredibly stupid, but read in context it isn't all that controversial. Charlie Black is essentially saying that McCain has more knowledge about security issues and any event that allows McCain to show off that knowledge gives hm an advantage.

This is probably true. However, as many of us know, just being able to regurgitate a bunch of facts does not show leadership.

If it is true, doesn't it seem like it would be painful to be the candidate that is relying on conflict to get you elected.

I don't really care about the politics of the issue, it just seems like if true, McCain should be hoping to lose because he should be hoping that bad things don't happen to Americans.

That seems like a sad position to be in.

From The Raw Story:

For example, Black told Fortune that the assassination of former Pakistani prime minister Benazir Bhutto last December was an “unfortunate event,” but it enabled McCain to secure a crucial victory in the New Hampshire primary, because “his knowledge and ability to talk about it reemphasized that this is the guy who’s ready to be Commander-in-Chief. And it helped us.”

Black went on to agree with the interviewer that another terrorist attack on US soil would also work in McCain’s favor. “Certainly it would be a big advantage to him,” Black stated.

Judge Kozinski Hires Defense Lawyer