The California Supreme Court today in a much-anticipated decision, People v. Kelly, ruled for medical marijuana patients and caregivers and invalidated part of a legislative amendment to the state's medical marijuana law that imposed limits on the amount of pot one could grow or possess in order to raise the state statute as an affirmative defense in a criminal case.

Today's decision also affirms protection from arrest and prosecution for patients who both possess a state-issued identification card and comply with state or local personal use guidelines.

"The California Supreme Court did the right thing by abolishing limits on medical marijuana possession and cultivation," said Joe Elford, Chief Counsel with Americans for Safe Access, the country's largest medical marijuana advocacy group. "At the same time, the Court may have left too much discretion to law enforcement in deciding what are reasonable amounts of medicine for patients to possess and cultivate."

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Supreme Court Justice Sonja Sotomayor's issued her first signed criminal opinion this morning in Wood v Allen, upholding the death penalty for a man with a borderline IQ. It affirms the 11th Circuit's denial of habeas relief, deferring to the Alabama Supreme Court's decision under AEDPA that defense counsel was not ineffective, because he made a "strategic decision" not to present evidence of the mental deficiencies.

Justice Stevens and Kenney dissented. (Opinion here.) [More...]

The Massachussetts Supreme Court today upheld the child sex assault conviction of defrocked Roman Catholic priest Paul M. Shanley. Shanley was prosecuted by Martha Coakley based on repressed memory evidence. Not only was the conviction upheld, but the Court officially validated the dubious evidence considered by many to be junk science.

"In sum, the judge's finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record, not only by expert testimony but by a wide collection of clinical observations and a survey of academic literature,'' Justice Robert Cordy wrote for the SJC.

As amicus brief author R. Christopher Barden, a psychologist and attorney.one of the amicus brief authorspsychologist says: [More...]

Good news for Ben Kuehne and the defense bar today. The 11th Circuit has upheld the trial court's dismissal of a money laundering charge against prominent defense attorney Ben Kuehne. (Background here.) The opinion is here. The SDFla Blog has more here.

The issue was the the meaning of the exemption in § 1957(f)(1), whose plain language excludes from the statute’s scope “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” Both sides agreed the funds in question were used to pay attorneys' fees. [More...]

A head-scratcher of an opinion (text here, pdf) from the MN Supreme Court today: Bong Water is an illegal drug.

Sarah Ruth Peck had 2.5 tablespoons of bong water in her bong. The water contained traces of Meth. The state charged her with a Class 1 drug offense, carrying a presumptive penalty of 86 months in prison, because the water weighed 37 grams, over the 25 gram threshold.

The trial court threw it out. The Court of Appeals affirmed the trial court. In a split decision today, the MN Supreme Court reversed and concluded the bong water is a mixture containing a controlled substance and reinstated the charge.

From the dissenting judge's opinion (which was joined by two other judges): [More...]

The issue in a 6th Circuit case decided yesterday upholding a search warrant for a home computer (opinion in U.S. v. Frechette here):

The issue in this case is whether it is probable that someone who pays approximately $80 for a subscription to a web site is likely to use that subscription.

The majority opinion finds probable cause, even though the subscription was ordered 16 months earlier and never renewed. The dissent is what makes the opinion worth reading. [More...]

Illinois drivers will continue to drive free of anti-abortion messages staring at them on license plates. The Supreme Court rejected a petition by Choose Life, Inc. to force the state to offer "Choose Life" plates.

The high court on Monday left in place a federal appeals court ruling that state officials were within their rights in trying to keep viewpoints on abortion off of Illinois license plates. Choose Life Illinois, Inc. sued to force the state to issue the plates.

The 7th Circuit ruled it's not a free speech issue, because the plates are issued by the Government. The state government in Illinois said it does not want people to think it is taking a position on abortion.

"Choose Life" plates have been upheld in many states. Only two states have pro-choice plates:

Montana has a plate that says “Pro-Family, Pro-Choice,” and Hawaii has an official decal that says “Respect Choice.”

The Supreme Court today rejected without comment former Qwest CEO Joe Nacchio's cert petition seeking review of his insider trading conviction.

Nacchio has been in prison since April, serving a six year sentence. The 10th Circuit, while rejecting his arguments about the exclusion of his expert witness, did rule the trial court miscalculated the amount of loss resulting from his stock sales by using the wrong standard and he should be resentenced. (Opinion here.)That hasn't happened yet.

He also has a motion for a new trial pending in the trial court.

In the baseball steroid cases, the 9th Circuit has issued a lengthy opinion finding the Government violated the 4th Amendment when issuing grand jury subpoenas and search warrants for drug testing records of all tested baseball players.

Investigators looking into steroid use by professional baseball players obtained search warrants and subpoenas for the drug tests results on 10 major league players, but they took the results on 104 players.

The opinion is here. The court provides guidelines for future cases in which the Government is seeking records stored on computers. [More...]

These posts about the prosecution of Lori Drew sparked considerable controversy among our commenters. Drew participated in creating the bogus MySpace profile of a 16-year-old boy so she could learn whether a 13-year-old girl who lived nearby was spreading rumors about Drew's daughter. The fictitious boy expressed interest in the girl before later sending her a message -- "the world would be a better place without you" -- that triggered the girl's suicide.

The posts criticized Thomas O'Brien, the grandstanding U.S. Attorney in Los Angeles, who made it his mission to prosecute Drew (a resident of Missouri) for computer fraud. Apart from his dubious attempt to stretch the concept of fraud to include lies told on a MySpace profile, and his unseemly eagerness to charge a crime that allegedly occurred far from Los Angeles (and that wasn't being charged by the U.S. Attorney in Drew's district), O'Brien failed to persuade the jury that Drew created the fake profile to inflict emotional distress on the girl -- and was apparently surprised when his star witness contradicted that claim. To save face after failing to secure felony convictions, O'Brien bragged about the misdemeanor convictions the jury returned for Drew's alleged "unauthorized access" to MySpace.

Drew was scheduled to be sentenced yesterday. She wasn't. Instead, the judge threw out the misdemeanor convictions after correctly concluding that violating MySpace's terms of service agreement didn't constitute unauthorized access. So much for O'Brien's proud victory. [more ...]

The 7th Circuit ruled Thursday that a death row inmate has no right to be interviewed by the media. The majority opinion is here (pdf).

The majority opinion in Hammer v. Ashcroft, written by Chief Judge Frank Easterbrook, based its decision heavily upon the concept that the news media has "no constitutional right of access to prisons or their inmates beyond that afforded to the general public," citing Pell v. Procunier. However, in Hammer it was not a reporter, but a prisoner, who asserted a right to interview.

BOP instituted the ban in 2000 after Timothy McVeigh gave an interview to 60 Minutes. Hammer has quite an interesting history.

Since all federal death row inmates are housed at Terre Haute which is in the 7th Circuit, this ruling will apply to all of them.

The Supreme Court today decided Melendez-Diaz v. Massachusetts (opinion here.) It ruled for the defense, which had objected to the state's reliance on an affidavit to prove a substance was cocaine. The defense said it was entitled to the live testimony of the chemist so it could cross-examine him or her. The Court agreed with the defense that live testimony was required under the Sixth Amendment's right to confront witnesses.

At petitioner’s state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted.

Petitioner objected, asserting that Crawford v. Washington, 541 U. S. 36, required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. ....

Held: The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him.

In my view, too many defense lawyers stipulate to the chemical evidence rather than take on a chemist. Maybe this decision will encourage more of them to challenge the evidence. [More...]