The LA Times editorializes about the High Court's Martinez decision yeterday in Justice Takes A Beating.

Three cases before the court next term could push at the boundaries of permissible evidence in criminal cases. The Martinez case turns back the clock, and the coming cases could multiply the harm to a civilized justice system.

Our thoughts on the case are here, but make sure you read through the comments to see how splintered the court was and the inconsistency of positions.

Update: Steve Chapman in the Chicago Tribune has some good criticism of the decision here.

Anthony E. Bragdon served ten years of a 30 year sentence for assault with intent to rape and use of a firearm in a violent crime before beingd. In 2001, prosecutors revealed that FBI Agent Michael Malone gave false testimony at his trial and covered up exculpatory evidence. The Court of Appeals has reversed his conviction.

``I did all that time. That is a major part of my life,'' Bragdon said in a telephone interview Tuesday. ``When I went to prison I was just 19. This was my first adult conviction. I had never been locked up. ... So they never gave me a chance to establish myself in the real world as far as getting a job.''

Bragdon's case is not the only one affected by the FBI lab scandal.

Bragdon's freedom is an outgrowth of a sweeping investigation in the 1990s prompted by FBI whistleblower Frederic Whitehurst's allegations that his FBI lab colleagues had performed shoddy work and shaded the truth to help prosecutors.

The Associated Press reported in March that a review had identified about 3,000 cases that could have been affected by the shoddy work but only 150 defendants had been notified of problems.

Even after discovering Malone's misconduct, the FBI didn't fire him. They transferred him to another division where he remained until his retirement. He now resides in Virginia. In 2001, Malone told the St. Petersurg Times,

``Nobody's convinced anybody in a black robe that I've done anything wrong. I did the best I could. Crime labs aren't perfect. People aren't perfect.''

In setting aside the conviction, the judge wrote that Malone's testimony made a difference.

Remember the sad case of Oliver Martinez?

Martinez, a 29 year old farm worker, was riding his bicycle home from his work picking strawberries. Police were looking for a narcotics suspect they wrongly believed was selling drugs in a field. When Martinez passed, they demanded he stop, get off his bicycle and 'assume the position.' One officer located Martinez' strawberry knife. A struggle of some sort ensued, although police have conceded Martinez never struck or kicked them. One of the cops opened fire on Martinez, pumping him with five bullets, leaving him blind in one eye and paralyzed. He is now 34 years old and resides with his father in a one room trailer. He has a wheelchair and wears dark glasses to cover his missing eye. Oxnard has refused to pay for any therapy for him. He has not been charged with a crime.

The Supreme Court decided his case today--ruling against him. The full opinion in Martinez v. Chavez is here.

The Court reversed the ruling of the 9th Circuit appeals court which had held:

...Chavez’s coercive questioning violated Martinez’s Fifth Amendment rights even though his statements were not used against him in a criminal proceeding, and that a police officer violates due process when he obtains a confession by coercive conduct, regardless of whether the confession is subsequently used at trial.

By finding that the cop had not violated Martinez's consitutional right against self-incrimation, the cop retains qualified immunity from being sued for the injuries he caused Martinez. So Martinez stays in his diminshed condition without recourse against the officer who caused it.

The issue posited in the case was whether the Fifth Amendment conveys a "constitutional right to be free of coercive interrogation," or just a right not to have forced confessions against them at trial.

The Supreme Court held, (according to the syllabus):

"A judge authorized doctors Friday to perform an abortion on a 28-year-old disabled woman who has the cognitive skills of a 4-year-old."

"Circuit Judge Arthur Rothenberg allowed doctors to do a tubal ligation so the woman cannot become pregnant again. He also ordered doctors to take a DNA sample from the nearly 6-month-old fetus to help identify the father. Police believe the woman was likely raped more than once.
The woman's lawyer said she appeared to be pleased with the ruling. ``She can't verbalize much of anything, but you can see by her actions that she is happy,'' said attorney Lewis H. Fogle Jr."

This is the second such case in Florida in recent weeks. In a case involving an Orlando woman, Gov. Jeb Bush made headlines by calling for a guardian to be appointed for the fetus.

A Colorado judge has overturned the death sentence of a man convicted of a brutal murder because the jury read and referred to bibles during its deliberations.

While noting that [Robert] Harlan's crimes ``were among the most grievous, heinous and reprehensible'' he had seen in 18 years on the bench, Adams County District Judge John J. Vigil said court officials failed to properly sequester the jury.

Jury members stayed in a hotel during deliberations and court officials made sure newspapers were not delivered to their rooms, but the jurors did find bibles in the rooms.

In a five-day hearing last month, Harlan's attorneys argued that several jurors consulted biblical scripture during jury deliberations, particularly two Old Testament passages from Leviticus that read, ``fracture for fracture, eye for eye, tooth for tooth, as he has caused disfigurement of a man, so shall it be done to him.'' And, ``whoever kills an animal shall restore it, but whoever kills a man shall be put to death.''

``The jury supervision performed in this case was extremely negligent and appallingly lax,'' Vigil wrote in his ruling. ``Jury resort to biblical code has no place in a constitutional death penalty proceeding.''

The prosecution said it will appeal.

An appellate court in Colorado has ruled that Neglect Laws Don't Apply to Fetus:

"There are no remedies in the (Colorado Children's) Code appropriate to an unborn child or designed to restrict the conduct of a pregnant woman," the ruling said. The appeals court said a contempt charge is the only remedy Colorado courts have to punish pregnant women who ignore a court order to stop taking illegal drugs or engaging in other harmful activity.

In ruling, the Colorado court examined the opinions of state courts around the country and found a general consensus that there is a lack of jurisdiction over the fetus in dependency and neglect proceedings.

The appeals court said a contempt charge is the only remedy Colorado courts have to punish pregnant women who ignore a court order to stop taking illegal drugs or engaging in other harmful activity.

We'll put up the link to the opinion when we find it.

The Supreme Court has rejected an appeal by the Guantanamo detainees challenging their confinement. The Court let stand a lower court decision holding that the parties that brought the suit on behalf of the detainees, a coalition of lawyers, professors and clergy, lacked standing.

The lawsuit claimed the detainees have been held without due process, have not been told the charges against them and have no access to lawyers. It said their captivity violated the U.S. Constitution and the Geneva Convention.

A federal judge in Los Angeles and the California-based appeals court had dismissed the lawsuit. The appeals court ruled the coalition failed to show any relationship with the detainees.

You can read more about the case and the initial ruling here. The full text of the lower court decision is available here.

Feel like smoking pot legally this weekend? Head to Ontario, Canada where the Globe and Mail reports that:

Canada has no laws prohibiting marijuana possession, an Ontario Superior Court judge said yesterday in a ruling that will be binding on judges in the province and may soon be picked up across the country.

"For today, and for the Victoria Day weekend, it's a very pleasant state of affairs for recreational pot smokers," said criminal lawyer Paul Burstein, who helped argue the case successfully.

The proposed decriminalization law may be unnecessaryif this ruling is upheld and broadened across the country. In fact, some say under this court ruling, the new decriminalization law would actually recriminalize pot possession by allowing fines for pot possession.

Ed Rosenthal, convicted of cultivating marijuana in federal court despite having a state license to do so, was denied a new trial Friday.

Rosenthal wanted to argue that he was cultivating the drug as an "officer" for the city of Oakland's medical marijuana program approved by California voters. Judge Charles Breyer did not allow defense lawyers to introduce testimony on that issue because growing marijuana for any reason is a federal offense.

Some of the jurors later said they would not have convicted Rosenthal had he been allowed to explain his medical focus in growing the marijuana.

"It is simply not relevant to the question of guilt or innocence," Breyer wrote in denying the appeal for a new trial. "The Court concluded that there was no evidence from which a jury could conclude that the federal government's conduct led the defendant to believe that he was immune from criminal liability."

...."It was not a shock because this judge has consistently ruled for the prosecution," Rosenthal told Reuters. "I think in the end I'll be exonerated and the people who are persecuting me and, by proxy, medical marijuana users, will be hanging their heads in shame."

Rosenthal will be sentenced on June 4, and then will appeal the conviction to the 9th Circuit Court of appeals. You can access all of our prior coverage of the case here.

The Connecticut Supreme Court Wednesday ruled that a fetus is a "body part- like teeth, skin and hair - that is eventually shed. The decision has both sides of the abortion debate up in arms.

Anti-abortion groups applauded the court's protection of the fetus, but criticized the identification of a fetus as a body part.

The Chief Justice of the Court, in a separate opinion, wrote that a fetus may be entitled to legal protection.

"Any time I hear about giving rights to fetuses, I get concerned," said Elaine Werner, executive director of the Connecticut chapter of the National Abortion and Reproductive Rights Action League. "That's the slippery slope to eroding Roe vs. Wade."

An appeal is certain. You can read the opinion here.

The Ninth Circuit Court of Appeals has refused to rehear a controversial gun decision that upheld a ban on assault weapons. The underlying issue, whether the Second Amendment conveys an individual right to bear arms, is likely to reach the Supreme Court.

Justice Alex Kozinski penned a sharp dissent to Tuesday's decision not to rehear the challenge to the California ban, taking particular issue with the notion that arming citizens in order to maintain a militia was an outdated relic of the Colonial period that did not apply to modern society where gangs and shootings are rampant in some areas.

In his lengthy and eloquent opinion, Kozinski said that all amendments of the Constitution were to be held in equal esteem. "It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us," Kozinski said. "As guardians of the Constitution, we must be consistent in interpreting its provisions."

The Texas Court of Criminal Appeals has upheld a warrantless search of a man's buttocks.

The majority opinion, written by Judge Mike Keasler, said that in December 1997 a police officer received a tip from a "concerned citizen," saying that McGee and two juveniles were selling crack cocaine at a particular intersection. The tipster gave officer Steven Rowan the names of McGee and one of his companions, provided a detailed description of the clothing worn by all three individuals and alleged that McGee was hiding crack cocaine between his buttocks, Keasler wrote.

According to the opinion, Rowan and his partner went to the location and found three men who matched the description provided by the tipster. The opinion said Rowan testified that he smelled marijuana, saw blue smoke surrounding the trio and found a cigar containing marijuana on the ground near McGee. Rowan testified that he and his partner handcuffed the three men, placed them in a patrol car and drove them to a fire station, where McGee was required to drop his pants, bend over and spread his buttocks, the opinion said.

Rowan testified that he saw several rocks of crack cocaine wrapped in red plastic lodged between McGee's buttocks and that McGee tried to push the cocaine into his anus, the Court of Criminal Appeals noted in the opinion.

Legal experts say among the questions raised by this decision is what happens when the suspect is a female? One commented, "If officers can do this, no telling where this will stop. It easily could have been a female who was told to spread her legs and got searched."

A law professor, George Dix, pointed out that the probable cause for the arrest was the defendant smoking pot with two of his buddies. It's two separate things -- selling cocaine from an inventory in your rear and smoking dope with your buddies."

This type of search is known as a "full cavity body search." There was a similar case in Denver last year, which lawyers referred to as the "crack crack case." The defendant ultimately took a plea and avoided having the Court decide the legality of the search.

One judge in the Texas case dissented saying there was no evidence that the crack cocaine between the man's buttocks would have been destroyed during the time necessary to obtain the warrant.