The much anticipated decision in Rita v. U.S. was released this morning. Early reports (here and here) from Sentencing Law and Policy tell us that the decision upholds a presumption of reasonableness at the appellate level for sentences that fall within the federal sentencing guidelines.

The more interesting question is whether sentences that are less harsh than the guidelines suggest may be viewed with greater skepticism on appeal simply because they fall well outside the guidelines. (Sentences that greatly exceed the guidelines seem rarely to trouble appellate courts.) That question would have been addressed in the Claiborne case if Claiborne hadn't been killed. We'll have to wait until next term for an answer.

Another ordinance designed to drive undocumented aliens out of town has been enjoined.

The [Farmers Branch, TX] ordinance would have required apartment managers to verify that renters are U.S. citizens or legal immigrants before leasing to them, with a few exceptions. Landlords would have faced fines of up to $500 for violating the measure with each day considered as a separate violation.

The mean-spirited idea seems to be that undocumented aliens should be forced to join sex offenders who, in the absence of legal housing alternatives, are forced to live under a bridge.

A similar ordinance in Hazleton, PA met a similar fate.

"Around the nation, every judge who has reviewed these local anti-immigrant ordinances has put a stop to them," said Nina Perales, the regional counsel for the Mexican American Legal Defense and Educational Fund who argued for the preliminary injunction. "Immigration reform is a federal responsibility and local anti-immigrant ordinances only hurt city economies and community relations."

The Supreme Court today decided Breslin v. California (opinion here, pdf) holding that passengers in automobiles have 4th Amendment rights to contest a search and seizure during a traffic stop. The first part of the ruling:

Held: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality. Pp. 4–13.

(a) A person is seized and thus entitled to challenge the government’s action when officers, by physical force or a show of authority, terminate or restrain the person’s freedom of movement through means intentionally applied.

Last Night in Little Rock has more at FourthAmendment.com.

The Supreme Court will decide "whether investors can pursue lawsuits to recover investment losses if they can prove collusion between Wall Street institutions and scandal-ridden companies." Seems like a no-brainer that investors should be entitled to sue the entities that helped defraud them, right? Not to the Decider.

"We think the SEC is the right entity to bring those lawsuits and make sure investors are protected," [economic advisor Al] Hubbard said in describing the president's views. "We are in a society that is overly litigious and it's very harmful to society, very harmful to investors."

The president wants to curb "unnecessary lawsuits," with "unnecessary" evidently defined as any lawsuit he doesn't personally authorize. The SEC disagrees.

The Securities and Exchange Commission voted 3-2 to ask the solicitor general to support shareholders in the pending court case.

Received by email, news that the Supreme Court granted certiorari in two sentencing case to replace Claiborne, which (as TalkLeft noted here) was rendered moot when Claiborne was shot to death.

Kimbrough v. United States, Case No. 06-6330 was a crack case in which the 4th Circuit reversed per curiam the defendant's below-range sentence, holding that "a sentence that is outside the guideline range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses," see United States v. Kimbrough, 174 Fed. Appx. 798 (4th Cir. 2006).

The Supreme Court also agreed to hear another case out of the 8th Circuit raising the same issue that had been raised by Claiborne: whether a court must have "extraordinary justifications" in order to impose an "extraordinary" below-range sentence. The case is Gall v. United States, No. 06-7949, and the 8th Cirucit's opinion can be found at United States v. Gall, 446 F.3d 884 (8th Cir. 2006).

I believe that jurors should be life-qualified not death-qualified to serve on a capital jury. But, that's not the law.

The Supreme Court today, in an opinion written Justice Anthony Kennedy, reinstated the death sentence of a Washington man whose sentence was overturned because a juror had said he would consider the death penalty only in limited circumstances.

The court, in a 5-4 decision, said that the Washington state judge who presided over the trial of Cal Coburn Brown properly used his discretion to excuse a potential juror who expressed equivocal views about the death penalty.

The juror in question was challenged by prosecutors because he indicated he would impose the death penalty only if the defendant were in the position to kill again. Jurors' options were limited: they could sentence Brown to death or life in prison with no parole.

The text of the opinion is here (pdf). As the 9th Circuit noted in deciding the case differently, the juror did not unequivocally impose the death penalty.

More...

In some states, employees have only 180 days after a discriminatory act (a termination based on race, for instance) to file a claim under Title VII. In the rest of the states, employees have only 300 days. Those ridiculously short deadlines became even more burdensome after the Supreme Court decided this week to reject the Equal Employment Opportunities Commission's long-standing belief that claims based on discriminatory pay arise with each discriminatory paycheck. According to the Supreme Court's 5-4 decision, the discrimination occurs when the level of pay is first set, not when each subsequent check is received.

As the NY Times editorializes today, the majority "forced an unreasonable reading on the law, and tossed aside longstanding precedents to rule in favor of an Alabama employer that had underpaid a female employee for years." The decision makes it almost impossible to bring a disparate pay claim, since employees rarely know what other employees are making at the time their pay is set.

Congress should amend Title VII, both by making clear that discrimination in pay is a continuing act, and by lengthening the period for filing all discrimination cases.

She went to bed one night, in the bedroom she shared with her boyfriend, and a man she thought was her boyfriend got into bed and had sex with her. It turned out the man was her boyfriend's brother who pretended to be her boyfriend.

Is that rape? The Massachusetts Supreme Court says no. Sex by fraud and deceit that does not involve force is not rape. The state's rape law requires force.

Victims rights groups will be upset by the decision. I think it is the correct legal ruling. All the legislature has to do is change the law if it thinks sex by trickery should be punishable as a sexual assault.

The opinion is here.

It's rare that a federal circuit court of appeals issues its ruling on the day of oral argument. But that's exactly what happened in the case of Georgia Thompson, the Wisonsin state procurement supervisor who was convicted of depriving the state of her honest services based on a vote to award a contract to a travel consultant to a donor of Democratic Governor Jim Doyle.

According to one judge on the panel:

"I have to say it strikes me that your evidence is beyond thin," federal Appeals Judge Diane Wood told prosecutors. "I'm not sure what your actual theory in this case is."

From the Milwaukee Journal Sentinel:

Finally, the justice system has corrected itself and freed Wisconsin's unwitting political prisoner, Georgia Thompson. The former state procurement supervisor went to trial and to prison on the basis of evidence so flimsy it's scary. If such weak proof can put her behind bars, are any of us safe?

The larger question involves U.S. Attorney Steven Biskupic:

Is his quickness to put the heat on Democrats the reason he was spared in the purge of U.S. attorneys? Is he a "Bushie," as a White House aide called top prosecutors who toe the party line?

More...

Good news from New York. An appeals court has reversed a murder conviction because the Judge refused to allow an expert is eyewitness identification to testify. The 13 page opinion is here.

The holding:

For the reasons that follow, we hold that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror. Taking into account that trial courts generally have the power to limit the amount and scope of evidence presented, we nevertheless conclude that, in this case, the court erred when it precluded the testimony of defendant's eyewitness identification expert in its entirety.

A federal law criminalizes the "pandering" of child pornography. The pandering law is violated by one who promotes "material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material" visually depicts a minor engaging in sexually explicit conduct. Note that the "material" need not actually depict sexual conduct, or even a minor. Note also that the panderer need not actually believe, and need not intend to advertise the belief, that the "material" depicts minors engaging in sexual conduct. Seems like an awfully vague law that doesn't carefully target actual wrongdoers, doesn't it?

In this lengthy opinion (pdf), the Eleventh Circuit concluded that the law is overbroad. Congress, the court concluded, may not "burn the house to roast the pig." Echoing a concern that Sen. Leahy raised, the court worried that the law "federally criminalize[s] talking dirty over the Internet or the telephone when the person never possesses any material at all." The court was particularly troubled that the law criminalizes speech that "reflects the belief" that material is pornographic een when the belief is unsupported by reality, and thus infringes not only upon freedom of speech but upon freedom of thought.

The U.S. Supreme Court today agreed to review the Eleventh Circuit's decision, making another attempt to bring clarity to the murky world of child porn laws, which too frequently target material that isn't pornographic and that doesn't actually depict a child. The Court's prior child porn jurisprudence is summarized in the Eleventh Circuit decision, linked above.

RNC Regional Director James Tobin's phone jamming conviction has been reversed. It's remanded for a new trial. The opinion is here. (pdf).

Tobin was sentenced to 10 months in prison on charges of telephone harassment. But the 1st U.S. Circuit Court of Appeals in Boston ruled that the statute under which Tobin was convicted "is not a close fit" for what Tobin did and questioned whether the government showed that Tobin intended to harass. A Justice Department spokesman said prosecutors were reviewing the decision, and did not say if they planned to appeal.

The Government will now decide whether to appeal.