General Ashcroft must be plenty happy today. The one-sided, secret FISA Appeals court has reversed the lower FISA court's ruling that required separation of the intelligence and crime prosecuting arms of the Justice Department, and stricter requirements on eavesdropping warrants in cases under criminal investigation.

The changes Ashcroft claimed were allowed under the Patriot Act permit wiretaps when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose," of an investigation. The objection to this position is that it allows the government to "use the change as a loophole to employ espionage wiretaps in common criminal investigations."

We explained what the fuss is all about here.

The full opinion is here. The lower court's opinion is here.

We have written a lot on this case and the issues involved. You can read them here, here, here and here

The ACLU also has comprehensive coverage on the issue.

Some good news out of the Supreme Court today. It has agreed to hear a death row case where the issue is ineffective assistance of counsel:

"The Supreme Court broadened its review of the death penalty Monday, agreeing to consider when death row inmates with bad lawyers deserve a second chance."

This is critical because bad lawyering is a chief cause of wrongful convictions. According to the Innocence Project:

"Mirroring prosecutorial misconduct, ineffective or incompetent defense counsel have allowed men and women who might otherwise have been proven innocent at trial to be sent to prison. Failure to investigate, failure to call witnesses, inability to prepare for trial (due to caseload or incompetence), are a few examples of poor lawyering. The shrinking funding and access to resources for public defenders and court appointed attorneys is only exacerbating the problem."

The Innocence Project lists some policy suggestions that would help remedy the problem of bad lawyering:

"Ensuring adequate pay for public defenders and competitive fees for court appointed attorneys would attract competent attorneys to staff these offices and take cases. Public defenders and prosecutors in any given area should receive commensurate pay.

Caseloads for public defenders should never exceed the standards of the National Legal Aid and Defenders Association. If attorneys are forced to proceed with too many cases, ethical complaints should be lodged with the appropriate state bar.

Every jurisdiction should establish standards of adequate defense. The public should be informed and educated about the requirements of an adequate defense. Standards would also provide notice to all defense attorneys of how much work is expected of them.

Federal funds for defense services should be relative to the amount of funding provided to prosecutors' offices in any given jurisdiction. "

Update:

In an opinion released today, the 8th Circuit Court of Appeals has held that that the federal District Court in Minnesota erred in suppressing e-mails seized by Yahoo! technicians from the company's California-based servers pursuant to a Minnesota state court warrant. The Appeals court held that the search was reasonable even though no police officers were present at the time the technicians executed the faxed warrant. The case is 11/18/02 USA v. Dale Robert Bach.

The Supreme Court heard arguments Wednesday on the constitutionality of Megan's laws. Most of the justices appeared largely untroubled by the laws, which vary from state to state but generally publicize names, addresses and photos of convicted sex offenders on the Internet.

At issue are laws in Connecticut and Alaska, neither of which " make individualized determinations before posting names. The cases are Connecticut Department of Public Safety v. John Doe, No. 01-1231, and Otte v. Doe, 01-729. Signaling the Bush administration's interest in defending the laws, Solicitor General Theodore Olson argued as amicus curiae in support of both state laws."

One minute before being led to the execution chamber, the Supreme Court stayed the execution of mentally ill Texan James Blake Colburn who had been denied relief by the Supreme Court earlier today. Justice Anton Scalia granted the stay and referred it to the full Court. As of this writing, the grounds upon which he granted the stay are not known.

"The Supreme Court granted a last-minute reprieve tonight to a death-row inmate who suffers from severe mental illness, halting his execution as prison officials were preparing to lead him to the gurney to be injected with lethal fluids."

"Lawyers for the inmate, James Blake Colburn, filed an appeal before the Supreme Court at 5:59 p.m., one minute before Mr. Colburn was scheduled to be lead to the death chamber. It asked the court to stay the execution on the grounds that Mr. Colburn was incompetent to be executed and had been denied his constitutional rights during proceedings in state court."

No one disputes Mr. Colburn is mentally ill. But while the Supreme Court has outlawed execution of the retarded, it has not done so for the mentally ill.

"Psychiatric problems were first diagnosed in Mr. Colburn when he was 14. He began suffering hallucinations and hearing voices at 17, not long after he was raped while hitchhiking. He bounced between mental health programs, and his medical records note that he was voted out of one support group after he tried to kill himself. In all, Mr. Colburn has tried to commit suicide at least 15 times. His medical records say his chronic paranoid schizophrenia has often left him hearing voices that command him to harm himself or others."

Mr. Colburn's lawyers have 90 days to file a Petition for Writ of Certiorari to the full Court. If the petition is denied, another execution date will be scheduled within 30 days.

The Supreme Court heard arguments in a death penalty case yesterday that were highly technical in nature. Charles Lane of the Washington Post does a good job of explaining the issue in Arguing 60(b): a Rule of Life or Death?"

"Abdur'Rahman is a death-row inmate in Tennessee, convicted of murder and sentenced to death in 1987. He says he was the victim of a dishonest prosecutor who hid exculpatory evidence. No Tennessee nor federal court has ruled on the merits of that claim."

"If Abdur'Rahman's filing in federal court was a Rule 60(b) motion, as his lawyers insist, then he could be entitled to such a hearing, which might lead to a reversal of his sentence. But if, as lower federal courts have ruled, it was a second or successive petition for habeas corpus -- that is, one that raises an issue another court has dealt with -- it would be forbidden under a 1996 federal law designed to streamline death-row litigation. The way to execution would be clear."

The arguments started out rough for the defense, but Justice Stevens later "all but took over" the hearing, and some of the other justices seemed to come over to his side.

"He noted that the key point in Abdur'Rahman's argument is that the District Court that rebuffed his request for a new hearing on his claim of prosecutorial misconduct was unaware of an obscure Tennessee law that permitted Abdur'Rahman's request. Abdur'Rahman's attorneys and the state's were also in the dark, he said."

"Since the Tennessee Supreme Court clarified the law in a subsequent regulation, Stevens asked, why shouldn't Rule 60(b), a catchall provision designed to let courts correct serious mistakes, apply? He's not asking for a second consideration of a claim; he's asking for consideration of a claim that's never been litigated," Stevens said.

"Other members of the court picked up on Stevens's theme. "You're saying he's just out of luck," Justice Stephen G. Breyer said to Paul Summers, the Tennessee prosecutor arguing the case. Yes, sir," Summers conceded. "That seems terribly unfair," Breyer observed."

Stevens and Breyer make a good point. If the man asserts he is innocent, or was convicted unfairly due to prosecutorial misconduct, he deserves at least one hearing on the issue. No artificial procedural rule, even if it was enacted by Congress, should be allowed to deny a hearing when death is at issue. If the state courts and the lower federal courts refused to consider his claim, we think the Supreme Court ought to--or at least issue an order remanding the case back to the lower courts to do so.

In an unusual action, the Supreme Court summarily reversed three Ninth Circuit decisions on Monday. The Ninth Circuit Court of Appeals is generally considered to be the most liberal appeals court in the country. Two of the decisions involved habeas corpus petitions in murder cases.

The article quotes Howard Bashman of How Appealing:

"Summary reversals are an extraordinary result in the U.S. Supreme Court, because they are usually reserved for cases in which the result below was unquestionably wrong," said Philadelphia appellate attorney Howard Bashman. "And three on one day, directed at the same federal appellate court, could be understood as sending a strong message of disapproval."

But Hastings College of the Law professor Rory Little, also an appellate lawyer, disagreed. "[The Supreme Court] knows how to write a strong rebuke," Little said. "It's not a strong rebuke."

"Significantly, two reversed the 9th Circuit in habeas corpus appeals from California state courts. In each case, the high court said the circuit decision "exceeds the limits imposed on federal habeas review." Judge Harry Pregerson, one of the 9th Circuit's most liberal jurists, was the principal author of each opinion."

For the record, we have a great deal of respect for Howard Bashman and read his blog almost daily. But we think Judge Pregerson is a fine jurist and agreed with his decisions.

Vikram Amar, a Hastings Law Professor "also said the 9th Circuit has nothing to hang its head about. "

University of Pittsburgh School of Law professor Arthur Hellman, who follows the 9th Circuit's record at the Supreme Court, acknowledged that three reversals are rare, but pointed out that the Court let another Ninth Circuit decision stand Monday--one in which the Circuit Court had ruled logging protesters could sue the Humboldt County Sheriff's Department for swabbing pepper spray in their eyes. We agree with that Ninth Circuit decision as well.

The three cases are: Early v. Packer, 02 C.D.O.S. 10897; Immigration and Naturalization Service v. Ventura, 02 C.D.O.S 10898; and Woodford v. Visciotti, 02 C.D.O.S. 10900.

Findlaw presents another free, valuable online resource for the U.S. Supreme Court Cases - November 2002 .

The page includes the issues for each case, the decisions of the lower courts and the briefs of each party. For those of you without access to Lexis or Westlaw, free legal research doesn't get much better than this.

The Supreme Court will hear oral arguments Tuesday on California's Three-Strikes laws. Sasha Abramsky, a Soros Justice Media Fellow and the author of the recently published book, "Hard Time Blues: How Politics Built a Prison Nation," has an excellent op-ed piece in Sunday's Washington Times on the topic:

The Court will be deciding whether a life sentence for shoplifting is a violation of the 8th Amendment's ban on cruel and unusual punishment. Two inmate's cases are before the court: "One, a repeat-burglar named Leandro Andrade struck out for stealing $153.54 worth of videotapes from two K marts; the other, Gary Ewing, who had prior convictions for robbery and burglary struck out for stealing three golf clubs."

Sasha's opinion (with which we agree):

"Tragically, however, as more and more states moved toward the imposition of catch-all mandatory minimum sentences and Three Strikes laws, so more and more Americans, overwhelmingly from poor backgrounds, disproportionately either African-American or Latino, have been subjected to exactly the kind of double-indemnity punishments, and disproportionately severe sentences, handed down to Ewing and to Andrade. Most of the most than 7,000 men and women now serving life sentences in California prisons on Three Strikes convictions, have been convicted on nonviolent, relatively minor crimes, which in and of themselves would generally warrant at most a few years behind bars. Many of these individuals were convicted of their first two "strikes" before the Three Strikes law was even on the statute books."

"California's Three Strikes law, crafted amidst rising public hysteria about a supposed breakdown in societal mores, ought never to have been passed. That it was, and that California's political leaders have used it to prove their tough-on-crime credentials to fearful electors, is a true stain on our country's history. It is past time for that stain to be removed. The Supreme Court has that chance. Let's see if they have the guts to strike out Three Strikes."

Instapundit makes some very valid points on the jury nullification measure confronting voters next week in South Dakota:

"I'VE MENTIONED SOUTH DAKOTA'S PROPOSED CONSTITUTIONAL AMENDMENT ON JURY NULLIFICATION BEFORE, but here's an article by Stephanie Simon in the Los Angeles Times on the subject. I think that this is the most telling passage:"

"Opponents, meanwhile, have been afraid to do much public campaigning. Lawyers have debated the amendment at forums across the state—including one here last week at the University of South Dakota law school. They worry that advertising might backfire. Voters tend to be suspicious of attorneys—so they might reason that if the state bar opposes Amendment A, it must be good."

"With all due respect to my own profession, this states a serious problem. The article is pretty balanced overall, but omits the single biggest issue in my opinion: people get exercised at the idea of giving a jury unreviewable discretion to let someone go when they've violated the law, but police and prosecutors do that all the time. The question is, is there any reason to trust juries less? I haven't seen anyone address that, much less answer it satisfactorily. And given that the criminal law has become so complex and unpredictable that prosecutors can almost always find something to charge someone with, there's a lot of unsupervised discretion on that end, too. It only seems fair to give juries authority to police this exercise of prosecutorial discretion, especially as courts are basically unwilling to do so."

"The answer the legal establishment gives to charges that prosecutors might misbehave is basically: "trust us." But they don't trust juries, and they haven't given any very persuasive reasons why they're more trustworthy than juries are. And there are some good institutional reasons to suggest that they're less so. For more on this, you can read my review of Clay Conrad's book, here".

We hope South Dakotans pass the law recognizing the right of juries to return a verdict based upon their sense that the law at issue is not one for which punishment should be imposed.

The Ninth Circuit Court of Appeals ruled today that Doctors Can Recommend Marijuana and that the federal government cannot revoke their physicians' licenses for doing so.

California, Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington have medical marijuana laws.

"The government argued that doctors were aiding and abetting criminal activity for recommending marijuana because it's an illegal drug under federal narcotics laws."

"But the appellate court said doctors could be liable only if they actually assisted patients in acquiring marijuana. Merely recommending the drug "does not translate into aiding and abetting, or conspiracy" according to the new ruling.

You can read the full opinion here.

From the 5th Circuit Court of Appeals (Oct. 18, 2002) deciding an NRA sticker on a pickup-truck is not enough to justify a search of the truck for a gun.

"Indeed, if the presence of an NRA sticker and camouflage gear in a vehicle could be used by an officer to conclude he was in danger, half the pickups in the state of Texas would be subject to a vehicle search."

The case is Estep vs. Dallas County. You can read the full opinion here.