by TChris

Lawyers for Salim Ahmed Hamdan have asked the Supreme Court to reverse a ruling from the D.C. Circuit that permits Hamdan to be tried before a military tribunal. Terming the decision (in which Judge Roberts joined) “extreme,” Hamdan’s lawyers accuse the circuit panel of disregarding established law.

"Its decision vests the president with the ability to circumvent the federal courts and time-tested limits on the executive," wrote Neal K. Katyal, a law professor at Georgetown University who represents Mr. Hamdan. "No decision, by any court, in the wake of the Sept. 11, 2001, attacks has gone this far."

The Hamdan decision is frighteningly deferential to the executive branch of government. The court held that Hamdan has no right to enforce the Geneva Conventions in court, and that, in any event, “the 1949 Convention does not apply to al Qaeda and its members.” Hamdan denies membership in al Qaeda, but the court left that determination up to the president.

by TChris

Miranda v. Arizona was decided in 1966. Since that time, a whole lot of courts have decided a whole lot of cases refining the requirement that persons in custody be told of their rights to counsel and silence before they are interrogated. The resulting Miranda warning is so routine that a television junkie can recite it from memory. Suprising, then, that Homeland Security can't get it right.

U.S. Magistrate Judge Lurana Snow ruled that statements made by four men accused of smuggling cocaine aboard a cruise ship could not be introduced in court because the Miranda warning failed to spell out that they could have an attorney present during — not just before — interrogation by authorities.

"From a legal standpoint, the warnings on the Homeland Security form are ambiguous, at best," Snow said in her 16-page decision.

Defense attorney Ellis Rubin has a message for Homeland Security: "Somebody has to tell these people, 'Hey, wise up.'" And that's exactly what Rubin and Magistrate Snow did.

by TChris

U.S. District Judge Leonie Brinkema was able to reduce sentences she imposed on three Muslims, but mandatory minimum sentencing laws required her to impose sentences she still considers unjust. The men were guilty of playing paintball to train for a holy war.

As a result, Khan's sentence was reduced only to life plus 45 years. Chapman, 32, had his sentence reduced from 85 years to 65 years. There is no parole in the federal system, so both will have to serve the vast majority of their terms.

"I have a limited ability to impose what I consider to be an appropriate sentence," Brinkema said. "These statutes are really draconian. I've said it before and I'll say it again."

The sentence reductions could be useful to Khan and Chapman only if the firearms convictions are overturned on appeal. If that occurs, each would serve only a 10-year sentence, which Brinkema said she considered appropriate.

by TChris

Thomas Oliphant argues that it's time for the government to dump its lousy case against Ken Conley. He's right.

One thing that has not changed over the decade is the hideousness of the incident, involving as it did not only race but the infamous blue wall of police silence and the withholding of evidence from the accused. Police officers chasing a shooting suspect encounter an undercover cop, of color, and beat him to the point of disability before he can identify himself. None of them is ever convicted, all the penalties are administrative, but the one conviction in the case is of Conley, who actually arrested the suspect and has never wavered in his insistence that while he was apprehending the bad guy he never saw his brother officer being beaten.

Conley's conviction has been attacked repeatedly on direct appeal and in collateral proceedings, most recently resulting in a decision (upheld on appeal) vacating the conviction on the ground that the government withheld critical evidence from Conley: an FBI report of an interview in which a key witness retracted the statement that was used to secure Conley's conviction. Now the government needs to decide whether to take Conley to trial again.

by TChris

Keyse Jama, a legal resident of the United States, participated in a bar fight. A Minnesota judge sentenced Jama to a year in jail, but he spent six years behind bars. Yesterday, an appellate court finally set him free.

Jama's conviction led to a deportation order, and Jama remained incarcerated during his appeal. This January, the Supreme Court (5-4) rejected his claim that he shouldn't be deported to Somalia, a country with no functioning government that could not agree to accept him in advance of the deportation. In April, Jama was flown to Somalia, but Somalia wouldn't take him.

The necessary remedy when no government will lay claim to a man without a country is freedom. Jama richly deserves to get his back.

by Last Night in Little Rock

The U.S. Court of Appeals for the Eighth Circuit yesterday in Carhart v. Gonzalez (pdf) affirmed the District of Nebraska and struck down the Partial-Birth Abortion Ban Act adopted in November 2003, and signed into law with appropriate conservative fanfare. It barred a method of abortion generally used after the first trimester without regard to preservation of the health of the pregnant mother, and that was its flaw. Under the Act, a partial birth abortion was a two year felony for the physican. 18 U.S.C. § 1531(a). See the N.Y. Times story here.

The Eighth Circuit is not, by any means, a liberal court. It is heavily stacked with Republican appointees. This panel had a Reagan senior judge, a Bush I, and a Clinton appointee (2 of 11 active judges are Republican appointments).

The Times article notes that this is the first appellate ruling on this statute, and it comes right at the time Justice O'Connor's vote would be missing when [and not if] the case gets to the Supremes, which it will.

What can we expect with political and procedural maneuvering? What happens next?

by TChris

By legislation or court decision, a handful of states have required the police to record interrogations of criminal suspects to improve the administration of the criminal justice system. Among other benefits, the practice prevents police interrogators from placing their own "spin" on a suspect's words (and from deliberately lying about the suspect's statement) while forestalling disputes in court about what the suspect actually said and whether the statement was voluntarily made. Illinois requires interrogations to be recorded in murder investigations when the questioning occurs in a police facility, but there are good reasons to extend the requirement to other cases, as well.

Children, in particular, are easily swayed to make false confessions. Recording police interviews of children is essential to guard against that harm. The Wisconsin Supreme Court today mandated that police interrogations of children must be recorded when feasible, and must always be recorded when they occur in a police facility. According to the court:

Experiences in Minnesota, Alaska, and hundreds of other jurisdictions that now voluntarily record demonstrate that the benefits of such practice greatly outweigh the costs, both real and perceived.

People for the American Way have prepared a report of this term's Supreme Court decisions. The link should be up on their site shortly. It finds:

The Supreme Court decided a number of important cases concerning civil rights and civil liberties in its 2004-2005 term. Overall, the Court protected key civil rights and liberties, and disappointed those seeking to expand property rights and limit Congress’ power – often by narrow margins – though some narrow decisions regarding access to justice and immigrant rights were disappointing. In fact, many of the key rulings, discussed in further detail below, were decided by narrow margins of 5-4 (or 5-3 due to the absence of Chief Justice Rehnquist), emphasizing the significance of future vacancies on the Supreme Court.

The choice of a replacement for any of the Supeme Court Justices has never been more important.

From Defense Attorney John Wesley Hall (author of Search and Seizure Textbook, among others):

....the Republicans decry judicial activism at every turn, but, in Kelo v. City of New London (pdf), the "liberal" majority engages in judicial passivity to permit a taking by local government to use private property for a "public purpose" by granting near total deference to the determination of local officials.

The label "judicial activism" always applies to the judges aligned with the other guy. When it's their guys doing it furthering their agenda, "well, that's just the way it goes, citizen, suck it up." When you think about it, the only mouths the words "judicial activism" come out of are from the Right, but with an agenda to threaten judges with impeachment or a constitutional amendment limiting terms. Note that they didn't think of that when Reagan-Bush packed the federal courts with about two-thirds of its active members in that twelve years.

And I sit here, with my divining rod, trying to forecast where the Court is going in the next constitutional case.

In other Kelo news, developers want to seize Justice Souter's home. Law Prof Eric Muller of IsThatLegal has some thoughts on this and a lot of links to other law profs discussing it.

Update: Skippy has a blog roundup of opinion on the case from both sides.

Via Scotus Blog: The Court rules against Grokster and StreamCast:

The Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet.

News coverage of decision here.

File-sharing services shouldn't get a free pass on bad behavior, justices said.

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Justice David H. Souter wrote for the court.

The text of the decision is here. (pdf)

Update: The Wall St. Journal has an ongoing discussion on the decision by several legal experts. The free link to the discussion is here.

Update: You can access the opinions in today's court decisions here.

Update: Ruling in one Ten Comandments Case, via Scotus Blog:

Splitting 5-4 in the first of two rulings on government displays of the Ten Commandments, the Supreme Court on Monday upheld a federal court order against a display of the religious document on the wall of a courthouse in Kentucky.

AP coverage here.

Ruling in second Ten Commandments case goes the other way:

by TChris

Was former Harvard student Alexander Pring-Wilson using reasonable force to defend himself from an attack, or was he the aggressor? A jury found Pring-Wilson guilty of voluntary manslaughter, but Superior Court Judge Regina Quinlan tossed the conviction yesterday in light of a recent state supreme court ruling permitting the defense to introduce evidence of a victim's history of violence if it supports a self-defense claim.

Unless the prosecution prevails in an appeal of the ruling, Pring-Wilson will have a second chance to persuade a jury that his use of deadly force was justified to repel an attack. Bail will be set for Pring-Wilson on Monday.