On the same day that Arkansas executes a mentally ill prisoner forced to take medication to become same enough to be executed, the California Supreme Court rules that former prisoners who are still in state custody for mental health reasons can't be forced to take medication:

Mentally ill former prisoners who are held in state hospitals after completing their sentences have the right to refuse psychiatric medication unless they are incompetent or dangerous, the state Supreme Court ruled Monday.

In a 6-1 decision, the court said ex-cons held for treatment under the state's Mentally Disordered Offender Act have the same right as current prisoners to reject drugs unless a judge decides they are incapable of making an informed decision, or recent incidents show they are dangerous to themselves or others.

Does anyone else see a disconnect here?

[Ed. name of court corrected--it was not the 9th Cir. but the Calif. Supreme Court]

Federal judges are showing their increasing willingness to balk at the Adminstrations' war on terror:

For many months after Sept. 11, 2001, the scales of justice consistently tipped in favor of the Bush administration's approach to fighting terrorism and detaining suspects deemed threats to national security.

Now, some civil rights groups and legal experts point to signs of a judicial backlash as cases inch closer to the U.S. Supreme Court. "The real change is that appellate courts are saying, `Wait a second, you can't do that,' " said Jim Ross , senior legal adviser for Human Rights Watch. "Historically," he said, "the further you get away from the notion that the nation is in immediate, imminent danger, the more courts have been inclined to step back and reassess."

The article recaps the recent 2nd Circuit decision on Jose Padilla and the 9th Circuit opinion on the Guantanamo detainees. [link via How Appealing.}

The 9th Circuit has ruled that it's legal, although deplorable, for prosecutors to convict two persons for the same crime when they know only one can be guilty.

In a 2-1 ruling Monday, the court upheld a 16-month increase in Jonathan Shaw's prison sentence for a 1995 restaurant robbery in Fairfield, based on the jury's conclusion that he held a gun to the restaurant manager's head.

In a separate trial more than two years later, prosecuted by the same Solano County district attorney's office, another jury found that a second participant in the robbery, Mango Watts, was the one who held the gun to the manager's head, a finding that added 10 years to Watts' sentence. That jury was unaware of Shaw's verdict.

Like other courts that have reviewed the case, the appeals court said only one of the two men could have wielded the gun, but no law prohibits prosecutors from making inconsistent arguments to different juries, as long as they don't falsify the evidence. "There is little doubt that the actions of the prosecutors in the case before us may be characterized as something between stunningly dishonorable and outright deplorable,'' said Judge Cynthia Holcomb Hall in the majority opinion.

We agree with the dissenting judge who said:

A disappointing decision today from Canada's Supreme Court, ruling 6-3 that the country's marijuana laws are constitutional and do not violate the nation's Charter of Rights and Freedoms. But, all is not lost, as the Court said Parliament could change the law:

"We conclude that it is within Parliament's legislative jurisdiction to criminalize the possession of marijuana, should it choose to do so," said the decision, co-written by Charles Gonthier and Ian Binnie. "Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marijuana laws that it no longer considers to be good public policy."

New Prime Minister Paul Martin has said he will reintroduce a bill in Parliament to eliminate criminal penalties, including potential jail time and lasting criminal records, for those caught with small amounts of marijuana. Penalties would remain, and possibly increase, for large-scale growers and traffickers.

Today's decision could have a wider application than just in Canada. According to an e-mail we received from NORML,

The Canadian Supreme Court decision indicates that signatories to the 1961 United Nation's Single Convention Treaty on Narcotics, which include Canada, can modify their domestic drug laws, notably marijuana laws, towards a Dutch-like system of decriminalization and tolerance for adult use of marijuana.

The text of the decision is here.

U.S. District Court Judge Emmet G. Sullivan (D.C.) has ruled that the military is in violation of federal law by administering mandatory anthrax vaccinations to military personnel without their informed consent. Judge Sullivan concluded that military personnel should not be used as the nation's "guinea pigs," and that the damage done to those who improperly received these shots may be irreparable. Bloviator , the terrific blog on all things medical, has the details and a thoughtful analysis.

Update: You can read the decision here (pdf file)

The D.C. Court of Appeals has handed a victory to those who share music files on the Internet. While it did not legalize the practice, it ruled that internet service providers do not have to turn over the names of its customers.

The U.S. Court of Appeals for the District of Columbia, basically says an Internet service doesn't have to reveal the name of a subscriber who is trading files illegally if the online service didn't store the information on its own network.

The ruling overturns a lower court decision that ordered Verizon Communications to reveal the name of a subscriber through a simple subpoena. The customer was trading files directly with other users on a peer-to-peer network, and the online service was ''acting merely as a conduit,'' the judges wrote.

The opinion is here (pdf). EFF (Electronic Frontier Foundation) has more.

5,000 panhandlers in Chicago filed a class-action lawsuit alleging they were unfairly ticketed or arrested while politely requesting money on the streets of Chicago. A federal judge has ordered a settlement in which each may receive up to $400.00.

The case, filed in federal court in 2001, focused on a local disorderly conduct law that let police arrest people on public streets for drunkenness, lewdness — and panhandling. If arrested, the person could face a fine of as much as $500.

"Having a blanket prohibition like that isn't legal," said Mark Weinberg, one of the attorneys who represents the panhandlers. "You can ask me for help to cross the street. You can ask me for the time. But if you asked me for a dollar, the city could throw you in jail."

....On Friday, federal Magistrate Nan R. Nolan approved a settlement that calls for Chicago to pay $99,000 in damages. The city, which admits no wrongdoing, also will pay an additional $375,000 to cover the prosecution's legal fees and the cost of distributing the money.

About 5,000 people are estimated to qualify to share in the settlement proceeds. The offending law has since been repealed.

The Second Circuit Court of Appeals issued a stunning decision in the case of so-called "Dirty Bomb Suspect" Jose Padilla, who, although an American citizen, has been held by the Bush Administration (Department of Defense) for two years without charges and without access to counsel. The Court ordered Padilla to be released within 30 days:

President Bush does not have power to detain American citizen Jose Padilla, the former gang member seized on U.S. soil, as an enemy combatant, a federal appeals court ruled Thursday. The decision, which ordered that Padilla be released from military custody within 30 days, could force the government to try the "dirty bomb" plot suspect in civilian courts. The White House said the government would seek a stay.

In a 2-1 ruling, a three-judge panel of the 2nd U.S. Circuit Court of Appeals said Padilla's detention was not authorized by Congress and that Bush could not designate him as an enemy combatant without the authorization.

The former Chicago gang member who converted to Islam was arrested in May 2002 Chicago's O'Hare airport as he returned from Pakistan. Within days, he was moved to a naval brig in Charleston, S.C.

The Court said that Padilla could be moved to a civilian court if criminal charges are brought against him--and that he could be held as a material witness in a grand jury proceeding. But not as an enemy combatent:

As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," the court said.

"But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress," it added.

We share the reaction of these civil libertaries experts:

In a major blow to the Justice Department, the 9th Circuit Court of Appeals today ruled that the federal drug crime statute does not apply to those simply using medical marijuana with a doctor's recommendation:

A federal appeals court ruled today that a law outlawing marijuana may not apply to sick people with a doctor's recommendation in states that have approved medical marijuana laws.

The 9th U.S. Circuit Court of Appeals, ruling 2-1 in a rare late-afternoon filing, said prosecuting these medical marijuana users under a 1970 federal law is unconstitutional if the marijuana isn't sold, transported across state lines or used for non-medicinal purposes.

``The intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is, in fact, different in kind from drug trafficking,'' Judge Harry Pregerson wrote for the majority.
The court added that ``this limited use is clearly distinct from the broader illicit drug market, as well as any broader commercial market for medical marijuana, insofar as the medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.''

The case is Raich v. Ashcroft, 03-15481, the decision is here.

Update: Randy Barnett, a blogger over at Volokh, argued the case. Here's his description of the ruling....warning, it's in legalese:

The police pull you over for a traffic stop. Drugs are found in the car. No one claims them. The Supreme Court decided today that the cops can then arrest all occupants of the vehicle.

Some criminal justice experts say the court's ruling, a short, unanimous opinion penned by Chief Justice William H. Rehnquist, gives the nod to police dragnets that could snare innocent people with the guilty.

"People get into cars all the time and have no idea what the driver or someone else may have put in the vehicle," said Tracey Maclin, a Boston University law professor who wrote a brief for the National Association of Criminal Defense Lawyers in the case. "This will apply to people like the coed who's at a party late at night and accepts a ride home from a group of friends. If that car is stopped and police find drugs, 10 out of 10 police officers will now arrest everyone to find out whose they are."

John Wesley Hall of FourthAmendment.com has the details. The case is Maryland v. Pringle and you can read the decision here.

The Supreme Court has agreed to hear the case in which Vice President Dick Cheney has refused to turn over documents pertaining to secret contacts with energy officials.

The court agreed to hear an appeal from the administration, which is fighting a lawsuit brought by watchdog and environmental groups over the energy task force Cheney assembled. The panel met for several months in 2001 and issued a report that favored opening more public lands to oil and gas drilling and proposed a range of other steps supported by industry.

The lawsuit seeks to force the administration to provide details about the panel's records and inner workings. The groups allege the industry representatives in effect functioned as members of the government panel, which included Cabinet secretaries and lower-level administration employees.

The watchdog group Judicial Watch and an environmental organization, the Sierra Club, had won permission from a lower court to gather records related to the energy task force.

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Who would have thought it? Justice Scalia pulled the stop switch on the texecution of Kevin Lee Zimmerman yesterday due to a pending lawuit over whether the combination of lethal injection drugs used to kill inmates violates the cruel and unusual punishment ban of the 8th Amendment.

This is the second texecution stopped in the past two days over this issue. The drug at issue is pancuronium bromide, and we have written about the controversy several times, including here .

Pancuronium bromide paralyzes the skeletal muscles but does not affect the brain or nerves. A person injected with it remains conscious but cannot move or speak. The drug has been banned in Tennessee--for use by vetinarians performing euthanasia on animals. Yet Tennesse and 30 other states use it to kill inmates.

Scalia's order came with only 20 minutes to spare. Zimmerman was not happy.

"I'm disappointed," Zimmerman told Texas Department of Criminal Justice spokeswoman Michelle Lyons. "I was ready to go. The stay only means 18 more months of this crap."