NYTimes:

Saying that it unfairly targets gay men and women, a federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing supporters of such unions a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.

[. . .] "Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause," wrote Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, who heard the case without a jury. "Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest."

The decision ((PDF).

Team Blago today filed another motion for a mistrial (there have been several throughout the trial, all denied.) This one (available on PACER) is based on the limits placed on Sam Adam Jr.'s closing arguments:

Determinations of credibility and findings of fact are the province of the jury. Throughout the closing argument of Attorney Sam Adam, Jr., the government objected approximately three dozen times, with improper objections.

The court, in an apparent endorsement of the government in front of the jury, erroneously ruled on the government‟s improper objections, making findings of credibility and fact. This violated Rod Blagojevich rights to due process, a fair trial, effective assistance of counsel and the right to present a defense case, in contravention of the United States Constitution, Amendments 5 and 6.

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U.S. District Judge Joseph Tauro in Boston has declared the 1996 Defense of Marriage Act (DOMA) unconstitutional in two cases. In one case, he found the statute violates the Tenth Amendment. In the other, he found it violates the equal protection guarantee in the Due Process Clause of the Fifth Amendment.

"The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid," Tauro wrote in a ruling in a lawsuit filed by Attorney General Martha Coakley.

In the second case, (opinion here)he ruled:

As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

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BTD has noted the dissent of Justice Stevens in today's decision in McDonald v. Chicago (opinion here) which holds, finally, that the Second Amendment is applicable to the States.

The majority opinion was written by Justice Alito. (This is probably the first time I've ever agreed with him.)

It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. [More...]

Some good news for Enron's Jeff Skilling and for Conrad Black: The Supreme Court has ruled in their favor on their challenge to the "honest services" portion of the fraud statute.

Section 1346, which proscribes fraudulent deprivations of “the intangible right of honest services,” is properly confined to cover only bribery and kickback schemes. Because Skilling’s alleged misconduct entailed no bribe or kickback, it does not fall within the Court’s confinement of §1346’s proscription.

The 114 page Skilling opinion is here. The Conrad Black opinion is here.

But, the court did not throw out the statute entirely, and it didn't reverse Skilling or Black's convictions, finding the error might be harmless and it will be up to the lower court or appeals court whether to overturn them. Justices Scalia, Thomas, and Kennedy would have found the statute unconstitutional.

But the justices, in an opinion by Justice Ruth Bader Ginsburg, said prosecutors may continue to seek honest services fraud convictions in cases where they put forward evidence that defendants accepted bribes or kickbacks. "Because Skilling's misconduct entailed no bribe or kickback," Ginsburg said, "he did not conspire to commit honest-services fraud under our confined construction" of the law. [More...]

In an opinion written by Chief Justice John Roberts, the Supreme Court today upheld the constitutionality of the material support to terrorism statute. The opinion in Holder v. Humanitarian Law Project is here.

According to the opinion, the plaintiffs were challenging specific provisions, including:

....material support—“training,” “expert advice or assistance,” “service,” and “personnel”—asserting violations of the Fifth Amendment’s Due Process Clause on the ground that the statutory terms are impermissibly vague, and violations of their First Amendment rights to freedom of speech and association. They claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities, including training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka.

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The Supreme Court today ruled against Percy Dillon in his challenge to to his sentence for crack cocaine. Details of the case are here.

[T]he issue is whether the two level reduction in federal sentencing guidelines for crack cocaine implemented a few years ago allows judges, when implementing the reduction, to conduct a complete resentencing.

Many defendants were sentenced to huge terms of imprisonment for crack when the guidelines were mandatory. Since Booker in 2005, they have become discretionary. So when a defendant files a motion to have his or her sentence reduced under the guideline amendment, shouldn't the Judge be allowed to resentence under current law, treating the guidelines as advisory only? Put another way, shouldn't Booker be followed for sentencing modification decisions?

The Supreme Court says "No." The opinion, written by Justice Sotomayor, is here.

The Supreme Court ruled today an employer can access and read an employee's text messages. The opinion is here.

The court said while doing so was a search, it was a reasonable one conducted for a legitimate work-related purpose.

In its first ruling on the rights of employees who send messages on the job, the Supreme Court rejected a broad right of privacy for workers Thursday and said supervisors may read through an employee's text messages if they suspect work rules are being violated.

The 9th Circuit Court of Appeals today said it's okay for police to taser a woman who is 7 months pregnant three times because she refused to sign a traffic ticket.

Here's the opinion (pdf). First the facts, as outlined in the dissent:

Malaika Brooks, a pregnant mother, as she was driving her son to school one day: Two, soon three, police officers surrounded her. The officers thought she was speeding in a school zone; she says she was not. Brooks provided her identification when asked, so there was no doubt who she was or where to find her. The officers wrote her a ticket but she refused to sign it. Refusing to sign a speeding ticket was at the time a nonarrestable misdemeanor;now, in Washington, it is not even that. Brooks had no weapons and had not harmed or threatened to harm a soul.

Although she had told the officers she was seven months pregnant, they proceeded to use a Taser on her, not once but three times, causing her to scream with pain and leaving burn marks and permanent scars.

What the majority said: [More...]

The ACLU scored a big win today in the 9th Circuit Court of Appeals. The case is al-Kidd v. Ashcroft. The upshot is that the court again rejected personal immunity for former Attorney General John Ashcroft over his post 9/11 policy of arresting and detaining people as material witnesses when there was no evidence those arrested were either involved in criminal activity or a flight risk. Today's decision, denying an en banc rehearing of the court's September decision, is here (pdf.)

In September, the 9th Circuit ruled that the federal material witness law cannot be used to detain or investigate suspects where no probable cause exists for criminal charges. The ruling also held that Ashcroft does not have immunity in this case and can be held personally liable for the wrongful detention of al-Kidd. [More...]

Bad news today for General Manual Noriega. The Supreme Court denied cert in his appeal of the 11th Circuit decision allowing France to extradite him to face trial on money laundering and drug charges there. (He was convicted in absentia but France has ordered a new trial.)

Scalia and Thomas would have granted cert. Noriega finished his 20 year drug sentence in 2007. He is the only prisoner in the U.S. classified as a "prisoner of war."

"Providing that guidance in this case would allow us to say what the law is without the unnecessary delay and other complications that could burden a decision on these questions in Guantanamo or other detainee litigation arising out of the conflict with al-Qaida," Thomas said in his dissent.

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In June, 2009, the Supreme Court decided Melendez-Diaz, (opinion here) holding that the defense had a right to live testimony of the Government's chemist in a drug trial under the 6th Amendment's right to confront witnesses.

In an unusual action, it decided to rehear oral arguments on the issue in Briscoe v. Virgina. The arguments were held two weeks ago.

Today the Supreme Court vacated the opinion in Briscoe v. Virginia and remanded the case. (Order here.)So Melendez-Diaz remains good law. The issue in Briscoe:

If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?