Oral argument was held Monday in the Second Circuit Court of Appeals on the case in which U.S. District Court Judge Jed Rakoff of the Southern District of New York ruled the federal death penalty unconsitutional.

Judge Rakoff based his ruling on the "increasing number of exonerations of death row inmates through DNA and other evidence [showing] there was an "undue risk of executing innocent people" in violation of the constitutional right to due process." Here is more on Judge Rakoff's decison.

The Government argued that the death penalty cases that have been overturned through DNA testing have all occurred in state cases, and that the federal system is better because the lawyers are better, there is less pressure on the judges to make popular decisions since they are appointed not elected, and because the Justice Department carefully screens the cases.

We were just about to debunk the Government's argument when we noticed further down in the article that Barry Scheck has already done so.

"Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, said the conviction of innocent people in capital cases is "a far greater problem than we ever knew," and that the underlying causes of such wrongful convictions "apply just as much in federal court. "They're as prevalent as they are in state court," said Mr. Scheck, who appeared as a friend of the court. Mr. Scheck said such causes included mistaken eyewitness identifications, false confessions and lying witnesses."

One of the Judges hearing the appeal questioned why the issue was being raised for the first time in this case, implying that if the argument was valid, it would have been raised by other lawyers in prior federal cases. We disagree with that concept because novel arguments are raised all the time in legal cases. But we appreciated a portion of his comment (in italics):

"He cited the case of Timothy J. McVeigh, who was executed last year in the 1995 Oklahoma City bombing. "McVeigh had superb counsel, I think, by all accounts, and it didn't occur to them really to make this argument," he said."

There is a possibility the Second Circuit will sidestep the issue. "They asked whether the death penalty question was even properly before their court, given that neither of the defendants, Alan Quinones and Diego Rodriguez, has yet been tried, convicted, or sentenced to death."

The defendants' lawyer was ready for that one, answering (quite correctly in our view) that the issue was ripe for review because certain pre-trial procedures are very different in capital and non-capital cases, as Judge Rakoff had found.

For example, jury selection is very different. In order to serve on a death case, jurors have to say they would be willing to impose the death penalty. So all death penalty opponents are excluded from serving as jurors in capital cases. This skews the jury composition because people who support the death penalty are more likely to convict in the first place. If death is not being sought in a defendant's case, there is no reason to exclude death penalty opponents. By not making the ruling on the constitutionality of the death penalty until after trial, the defendant would get a death-qualified jury and face a greater likelihood of conviction. As defense lawyer Samuel Gross, also a law professor at the University of Michigan, told the Court, "Nobody seriously doubts that changes the courtroom in a momentous way."

Four Supreme Court Justices Monday declared their opposition "to executing juvenile offenders, a strong signal that sentiment is growing at the court for further restrictions on the death penalty in the United States. "

"The announcement by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- the court's most liberal members -- came in a written opinion dissenting from a 5 to 4 decision, in which the court's conservative majority refused to reconsider the question of whether executing murderers who committed their crimes at age 16 or 17 is "cruel and unusual punishment" prohibited by the Constitution."

In their dissent, authored by Justice Stevens, the four justices opined that the practice is "a relic of the past [that] is inconsistent with evolving standards of decency in a civilized society.... We should put an end to this shameful practice."

"It was the first time since the court upheld the execution of 16- and 17-year-old offenders in 1989 that four members of the court have gone on the record in favor of reversing that ruling. Executing anyone younger than 16 remains barred under a 1988 ruling by the court."

"Opponents of the death penalty said the opinion means the court could hear a different case on the same issue relatively soon, after more state legislatures -- whose views the court considers in determining whether a "national consensus" against a particular aspect of the death penalty has formed -- have passed pending legislation outlawing the death penalty for juvenile offenders."

The opinion by Stevens likened the death penalty for juvenile offenders to the execution of mentally retarded offenders. The court banned that practice last June by a vote of 6 to 3, finding that a "national consensus" had emerged against it.

The dissent also argued that "like the mentally retarded, adolescents lack the impulse control of adults, and are thus neither deterred by the threat of death nor fully morally culpable for their actions. Society recognizes the immaturity of adolescents by forbidding them to vote, marry, drink or serve on juries, he wrote."

The opinion noted "a 'national consensus' repudiating executions of juveniles, in part because of poll data and also because no state has lowered its minimum age for execution since 1989 while five states have raised the age to 18."

Now for some facts:

The Supreme Court today refused to accept a case that raised the issue of the constitutionality of juvenile offender executions. Last term some members of the Court indicated they wanted to revisit the issue of capital punishment for those who were 16 or 17 at the time of the crime. Today, in a 5 to 4 split, the Justices refused to do so.

"Four justices said the court should continue a reexamination of the death penalty begun in earnest last year. But the court passed up a chance to reopen the question of whether executing very young killers violates the Constitution's ban on "cruel and unusual punishment." Currently, states that allow the death penalty may impose it on killers who were 16 or 17 at the time of their crimes. The dissenting justices called it a "shameful practice."

The Court also turned down two police search cases "that posed an important question for drivers: can officers freely search your car without getting a warrant if you don't show them identification or registration papers?"

Howard Bashman has more over on How Appealing.

In Gun Dealer's Case Raises Larger Issue , Washington Post reporter Charles Lane presents both the facts and the legal issues in the case to be argued before the Supreme Court today on restoration of a felon's right to bear arms.

This week the issue of a felon's right to bear arms moves to the Supreme Court.. The justices will hear arguments on whether a felon's right to bear arms can be restored by a federal judge.

Update: We linked to an incorrect url earlier today, it's now fixed. Thanks to Howard Bashman of How Appealing for calling it to our attention.

A lawsuit brought by Illinois Attorney General and Gubernatorial candidate Jim Ryan,against Governor George Ryan, seeking to block Gov. Ryan's plan to hold 135 clemency hearings back to back in 30 minute intervals has been thrown out of court.

For more on the Ryan v. Ryan controversy, go here.

When we last left Calvin Burdine, the death row inmate who was granted a new trial by the 5th Circuit Court of Appeals because his lawyer slept through his trial, the Judge presiding over his re-trial, Joan Hoffman, finally reversed herself and agreed to continue his trial until March so that his newly appointed lawyer would have more than 90 days to prepare for a case that has lasted 20 years.

For the details, see our prior posts here and here.

But the Judge still would not let Burdine have his choice of counsel at his new trial, that being Robert McGlasson, the Georgia public defender who represented him for the last fifteen years and who was responsible for overturning his conviction.

Judge Hoffman kicked McGlasson off the case even though he is an experienced death penalty litigator because he wasn't on the list of "approved capital defenders" for Harris County, Texas.

So the ACLU filed a lawsuit for Mr. Burdine against Judge Hoffman in federal court to force her to reinstate McGlasson. The federal judge ordered the state court judge into mediation with Burdine's ACLU lawyer.

The mediation was held Tuesday, without success. The parties are at an impasse, and now the federal judge will decide who represents Burdine at his retrial. He will also rule on a motion Judge Hoffman filed to dismiss Burdine's lawsuit, alleging, among other grounds, that indigent defendants aren't entitled to their counsel of choice. Federal Judge David Hittner has scheduled a hearing next week on the case and ordered Judge Hoffman to attend.

We hope Judge Hittner takes the position that the Houston Chronicle did in a recent editorial we quoted in our earlier post:

"Until Thursday, Huffman declined to grant a continuance to allow Burdine's new lawyer, Danalynn Recer, to prepare. The trial is now set for a reasonable March 3, instead of Oct. 7. "

"Judge Huffman's behavior to date exhibits either callous indifference to fairness or the indulgence of personal pique unbecoming of a judge. What would cause Huffman to reason that Burdine, undefended by a sleeping lawyer in his first trial, deserves a weaker than necessary defense at his second? What made her hesitate to grant a reasonable continuance? "

"State District Judge George Godwin, chief administrative judge of criminal district courts in Harris County, accused Burdine's supporters of whining, but there's no shame in decrying injustice. The shame is in ignoring it, as Godwin seemed eager to do. "

"Judge Huffman could easily correct her mistake by appointing McGlasson to assist in Burdine's defense, just as she gave in and granted the defense time to prepare. No state law prohibits Huffman from giving Burdine a fair trial. Duty and the Constitution compel her to give him a fair trial, at least the second time around."

The 3rd U.S. Circuit Court of Appeals has reversed a lower court ruling and said the attorney general has the right to close terrorist- related deportation hearings for reasons of national security.

The Third Circuit is now in conflict with the Sixth Circuit which ruled the hearings must be open ("Democracies die behind closed doors").

We agree with Howard Bashman of How Appealing that this likely means the issue will reach the Supreme Court.

The Supreme Court refused to review Terry Nichols' conviction in the OKC bombing case today. The basis of his appeal was the government 's withholding of information that could have helped his defense and improper jury instructions.

Nichols is serving a life sentence for the conviction. He is also facing a trial in state court in Oklahoma where he could receive the death penalty if convicted. The state case repeatedly gets stalled because the state won't pay his court appointed lawyers.

As we reported here, as of August his lead court-appointed lawyer had not been paid in over 11 months, hadn't made a house payment in four months, and reported his staff had deserted him.

Via Instapundit, we learn that Jurist, the excellent law professor site, has a Supreme Court Previews page devoted to the new Supreme Court term, with articles and updates by noted professors and commentators. We recommend bookmarking it now.

We recommend Jeffrey Rosen's op-ed in today's New York Times on what to expect from the Supreme Court this term as it strives to balance liberty and security.

"Current Supreme Court precedents don't clearly require proportionality between crime and punishment, or between searches and seizures. This may emerge as a central issue as the justices begin to review cases arising out of the Sept. 11 investigation. In the U.S.A. Patriot Act, for example, Congress gave the president new powers to detain aliens and to investigate citizens. If these powers were limited to the investigation of terrorism, they might be viewed as reasonable. But many of these new powers apply to the investigation of all crimes. As a result, they allow the federal government to collect personal data in search of wrongdoing."

"In evaluating the constitutionality of the U.S.A. Patriot Act as well as new technologies of surveillance adopted after Sept. 11, the court will have to determine whether the Constitution requires that the most intrusive searches be reserved for the most serious crimes."

Rosen is fairly pessimistic about the Supreme Court choosing liberty on many issues, but his analysis is a good one.

Among the issues the Supreme Court will consider this term are:

SEX OFFENDERS – A review of states' use of Internet sites to list information about sex offenders who have finished their sentences and comprehensive registries of those offenders, both involving so-called "Megan's laws." Smith v. Doe, 01-729, and Connecticut Department of Public Safety v. John Doe, 01-1231.

CRIME & PUNISHMENT – Whether three-strikes-and-you're-out sentencing laws result in unconstitutionally harsh prison terms. Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978.

DEATH PENALTY – Four death penalty cases involving the mechanics of imposing capital punishment, not major constitutional issues. Woodford v. Garceau, 01-1862; Miller-El v. Cockrell, 01-7662; Abdur'Rahman v. Bell, 01-9094; and Sattazahn v. Pennsylvania, 01-7574.

IMMIGRATION DETENTION – The government's practice of jailing immigrant criminals without bail to make sure they don't flee before deportation. Demore v. Kim, 01-1491.

CROSS BURNING – The constitutionality of a 50-year-old Virginia law outlawing cross burning. Virginia v. Black, 01-1107.

INTERNET LIBRARIES – A look at copyright protection that could determine when many books, songs and movies will become available over the Internet. Eldred v. Ashcroft, 01-618.