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Wednesday, June 25, 2008 On this evening's broadcast of NPR's "All Things Considered": The broadcast contained audio segments entitled "High Court Rejects Death Penalty for Child Rape" (featuring Nina Totenberg) and "Supreme Court Cuts Exxon Valdez Oil Spill Damages." RealPlayer is required to launch these audio segments. Posted at 11:23 PM by Howard Bashman "Justices Cut Valdez Damages, Rule on Child Rape": This segment (transcript with link to audio) featuring Marcia Coyle appeared on this evening's broadcast of the PBS program "The NewsHour with Jim Lehrer." Posted at 10:50 PM by Howard Bashman Lyle Denniston of "SCOTUSblog" is reporting: He has posts titled "Death penalty options narrow"; "A new day on punitive damages law"; and "A way around the Giles rule." Posted at 09:02 PM by Howard Bashman "Justices Rule on Exxon Valdez, Rape Death Penalty": Earlier today, The Washington Post hosted this online chat with Tom Goldstein. Posted at 08:54 PM by Howard Bashman "U.S. Supreme Court reverses L.A. man's murder conviction; The 6-3 ruling in Giles vs. California makes it more difficult to use out-of-court statements and could be a blow to prosecutors in domestic violence cases": David G. Savage of The Los Angeles Times has this news update. And Thursday's edition of The Washington Post will contain an article headlined "Right to Face Accusers Is Affirmed in Unusual Case; Witness Was Murder Victim." Ninth Circuit Chief Judge Alex Kozinski is still getting the job done: Although he recently lost the opportunity to view alleged obscene videos as part of his day job, Chief Judge Kozinski remains hard at work. On Monday of this week, he presided over an eleven-judge en banc panel of the Ninth Circuit, which was hearing a case about whether a certain state law criminal conviction constituted "a crime involving moral turpitude" for purposes of federal immigration law. You can download the oral argument audio via this link (10.9MB Windows Media audio file). And yesterday, the Ninth Circuit issued this per curiam opinion, whose case citation style indicates that Chief Judge Kozinski was the opinion's author. "We hold that the hanging paragraph does not operate to deprive such undersecured '910 creditors' of their deficiency claims because the parties are bound to their contractual rights and obligations under operative state law, and the Bankruptcy Code does not command otherwise." In a decision issued today, another federal appellate court -- the U.S. Court of Appeals for the Fourth Circuit -- examines the effect of the so-called "hanging paragraph" found in 11 U.S.C. sec. 1325(a), added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Posted at 08:11 PM by Howard Bashman Warren Richey of The Christian Science Monitor is reporting: In Thursday's newspaper, he will have articles headlined "Supreme Court sharply limits use of death penalty; In a 5-to-4 ruling, the justices decide child rape isn't a capital offense"; "High court slashes Exxon Valdez oil spill damages; The ruling, a victory for Exxon, reduced the $2.5 billion punitive damages to about $500 million"; and "High court strengthens right to confront accusers; The case involved a California man who killed his ex-girlfriend after she complained to police." Posted at 08:00 PM by Howard Bashman "Supreme Court Rejects Death Penalty for Child Rape": Linda Greenhouse of The New York Times has this news update. Posted at 07:55 PM by Howard Bashman "Justices Cut Damages Award in Exxon Valdez Spill": Adam Liptak of The New York Times has this news update. Posted at 04:47 PM by Howard Bashman On today's broadcast of NPR's "Day to Day": The broadcast contained audio segments entitled "Supreme Court Rejects Death Penalty for Child Rape" (featuring Dahlia Lithwick) and "Supreme Court Slashes Exxon Damages." RealPlayer is required to launch these audio segments. Posted at 04:30 PM by Howard Bashman Reuters is reporting: James Vicini has articles headlined "Supreme Court strikes down death penalty for child rape" and "Exxon Valdez $2.5 billion oil spill ruling overturned." And an article reports that "Court won't allow statements by killer's victim." Greg Stohr of Bloomberg News is reporting: He has articles headlined "Death Penalty for Child Rape Barred by Top U.S. Court" and "Exxon Valdez Award Cut to $507.5 Million by Top Court." Posted at 03:25 PM by Howard Bashman "Conrad Black loses appeal of U.S. obstruction and fraud charges": The Canadian Press provides this report. The Chicago Sun-Times has a news update headlined "Appeals court upholds Conrad Black's conviction." And The Toronto Star has a news update headlined "Conrad Black loses appeal." Circuit Judge Richard A. Posner wrote today's ruling on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. This result comes as no surprise to anyone who credited the press coverage earlier this month of the appellate oral argument in this case. Update: At page 12, Judge Posner's opinion offers the following take on the so-called "ostrich" instruction: Three more issues need to be discussed. The first is whether an "ostrich" instruction should have been given. The reference of course is to the legend that ostriches when frightened bury their head in the sand. It is pure legend and a canard on a very distinguished bird. Zoological Society of San Diego, Birds: Ostrich, www.sandiegozoo.org/animalbytes/t-ostrich.html (visited June 12, 2008) ("When an ostrich senses danger and cannot run away, it flops to the ground and remains still, with its head and neck flat on the ground in front of it. Because the head and neck are lightly colored, they blend in with the color of the soil. From a distance, it just looks like the ostrich has buried its head in the sand, because only the body is visible"). It is too late, however, to correct this injustice.This misconception about ostriches appears at the start of question 1 of my "20 questions for the appellate judge" featuring (now senior status) First Circuit Judge Bruce M. Selya, where I wrote that "It would be struthian to contend that your command of obscure words is anything other than Babe Ruthian." Elsewhere, Law Professor Eugene Volokh advises against using the word "struthious." And while we are debunking canards (which, by contrast, are birds that can fly), allow me to question the use of the singular "head" in the following sentence from Judge Posner's opinion: "The reference of course is to the legend that ostriches when frightened bury their head in the sand." "New York's High Court Sides With Grasso": This article will appear Thursday in The New York Times. And Bloomberg News reports that "Grasso Wins Appeal on 4 of 6 Claims at Top N.Y. Court." My earlier coverage of today's ruling appears at this link. From the west coast feed of today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Key Rulings on Death Penalty, Damages, Witnesses" (featuring Nina Totenberg) and "Supreme Court Rules on Exxon Oil Spill, Child Rape." RealPlayer is required to launch these audio segments. Posted at 01:22 PM by Howard Bashman "Supreme Court Rejects Death Penalty in Child Rape Cases": Robert Barnes of The Washington Post has this news update. And Bill Mears of CNN.com reports that "Child rapists can't be executed, Supreme Court rules." "Supreme Court slashes penalty against Exxon for Valdez spill near Alaska; The justices reduce the punitive damages against Exxon to $507 million from $2.5 billion; The oil company has already spent $2.1 billion in cleanup costs after the 1989 Exxon Valdez spill": David G. Savage of The Los Angeles Times has this news update. Posted at 01:12 PM by Howard Bashman "Supreme Court: Thursday's the Final Day." Tony Mauro has this post at "The BLT: The Blog of Legal Times." Posted at 11:45 AM by Howard Bashman "Supreme Court rejects death penalty for child rape": Michael Doyle of McClatchy Newspapers has this report. Posted at 11:44 AM by Howard Bashman "Fired U.S. attorneys case hits judicial roadblock; A cautious judge may be good news for Bush officials in ongoing subpoena struggle": This article appears today in The Christian Science Monitor. Posted at 11:42 AM by Howard Bashman "Blind trusts will improve blind justice in the high court; They could help avoid judicial conflicts of interest": David A. Ridenour has this op-ed today in The Christian Science Monitor. Posted at 11:40 AM by Howard Bashman "Supreme Court strikes down La. rape penalty": The Times-Picayune of New Orleans provides this news update. Posted at 11:08 AM by Howard Bashman "Court slashes Exxon Valdez damages to $507.5 million": The Anchorage Daily News provides this update. Posted at 11:07 AM by Howard Bashman "A conversation with Justice Antonin Scalia": If you missed last Friday's broadcast of "The Charlie Rose Show," you can view the video online via this link. Posted at 10:58 AM by Howard Bashman "NY's top court affirms dropping 4 claims against Grasso": The Associated Press provides a report that begins, "New York's top court has affirmed dropping four claims against former chairman New York Stock Exchange Chairman Richard Grasso, dealing a major setback to the legacy of former state Attorney General Eliot Spitzer." You can access today's ruling of the New York State Court of Appeals at this link. Today's U.S. Supreme Court rulings in argued cases: You can access the live blogging of today's rulings from "SCOTUSblog" at this link. The Court will not be issuing its much anticipated Second Amendment ruling in District of Columbia v. Heller, No. 07-290, today. Rather, that decision will be issued at or soon after 10 a.m. eastern time tomorrow (Thursday). 1. The Court's first ruling issued in Exxon Shipping Co. v. Baker, No. 07-219. Justice David H. Souter delivered the opinion of the Court. You can access the opinion at this link and the oral argument transcript at this link. By custom, the Court's Justices announce opinions in argued cases in reverse order of the Justices' seniority. Thus, Justices Samuel A. Alito, Jr., Stephen G. Breyer, Ruth Bader Ginsburg, and Clarence Thomas will not be issuing any majority opinions today. 2. Today's second ruling issued in Kennedy v. Louisiana, No. 07-343. Justice Anthony M. Kennedy issued the decision, siding with his namesake, the petitioner. The case was decided by a 5-4 margin. You can access the opinion at this link and the oral argument transcript at this link. 3. Today's third ruling issued in Giles v. California, No. 07-6053. Justice Antonin Scalia delivered the opinion of the Court. You can access the opinion at this link and the oral argument transcript at this link. 4. Today's fourth and final ruling issued in Plains Commerce Bank v. Long Family Land & Cattle Co., No. 07-411. The Court decided the case by a 5-4 margin. The Chief Justice delivered the opinion of the Court. You can access the opinion at this link and the oral argument transcript at this link. In early news coverage, Mark Sherman of The Associated Press reports that "Court rejects death penalty for raping children" and "Court cuts judgment in Exxon Valdez disaster." The AP also reports that "Court bars use of victim's prior statements at murder trial" and "Justices restrict Indian courts' jurisdiction." And at "SCOTUSblog," Lyle Denniston has a post titled "Death penalty barred for child rape." The three argued cases in which decisions remain to be issued are: (1) Morgan Stanley Capital Group Inc. v. Public Utility Distr. No. 1 of Snohomish Cty., No. 06-1457 (access the questions presented here and here; access the oral argument transcript here); (2) District of Columbia v. Heller, No. 07-290 (access the question presented here and the oral argument transcript here); and (3) Davis v. Federal Election Comm'n, No. 07-320 (access the questions presented here and the oral argument transcript here). Decisions in these three cases will issue tomorrow at 10 a.m. eastern time. Unusual first name alert: Footnote one of yesterday's ruling of the U.S. Court of Appeals for the Tenth Circuit in United States v. Scott, No. 07-6111, states in full: Law enforcement officials involved in the case were never able to identify this individual by her legal name. Although she is referred to as both "Orgasm" and "Obsession" in the record, we will refer to her as "Obsession" for consistency.The opinion identifies the person in question as a prostitute. Given that the opinion mentions Obsession some twenty times, one presumes that had the Tenth Circuit chosen differently, the decision would have mentioned the word "Orgasm" more than any other reported federal appellate court ruling. A search of Westlaw's CTA database for the word "orgasm" returns only 50 federal appellate court rulings before yesterday's Tenth Circuit decision. Posted at 09:58 AM by Howard Bashman "Supreme Court meets Wednesday morning": The Associated Press provides this report. At 10 a.m. eastern time today, the U.S. Supreme Court will begin announcing decisions in some or all of the seven undecided cases argued earlier this Term. Stay tuned for complete coverage throughout the day. "Court tosses killer's death sentence": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A federal appeals court overturned a Los Angeles man's death sentence Tuesday for the fatal stabbing of his supervisor during a 1984 robbery, saying the defense lawyer ignored blood evidence that might have shown that someone else was the killer." You can access yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. "Probe finds illegal hiring at Justice Department; Promising lawyers and law students were rejected because of their political and ideological views, internal investigators say": This article appears today in The Los Angeles Times. The Washington Post reports today that "Ideology-Based Hiring at Justice Broke Laws, Investigation Finds." The New York Times reports that "Report Assails Political Hiring in Justice Dept." And The Washington Times reports that "Lawyers tied to liberals rejected in hiring; Report finds political bias." "Nichols says DA in on cover-up": Today's edition of The Atlanta Journal-Constitution contains an article that begins, "Brian Nichols is accusing Fulton County District Attorney Paul Howard of covering up misconduct by a prosecutor and is asking the trial judge to throw out the death penalty and certain evidence. Nichols has entered a mental health defense to four killings in the Fulton County Courthouse shooting case, which happened when Nichols escaped from custody during his rape trial March 11, 2005." Posted at 08:40 AM by Howard Bashman "Another Rebuke on Guantanamo": This editorial appears today in The New York Times. And at National Review Online, Andrew C. McCarthy has an essay entitled "Welcome to Boumediene World: A federal court overrules the commander-in-chief on enemy combatants." "Facebook in legal fight for its future; CEO's classmates who say he stole their ideas want settlement revisited": Yesterday's edition of The San Jose Mercury News contained an article that begins, "A long-running legal battle over whether Facebook founder Mark Zuckerberg ripped off Harvard classmates in launching his social-networking Web site shifted to a San Jose federal courtroom Monday as high-powered legal teams squared off in a fight that could have huge consequences for the company's future." Posted at 08:25 AM by Howard Bashman "Four out of Nine Ain't Bad: Here's how the Supreme Court's left-leaning justices can fight back against the conservative majority." Nicholas Stephanopoulos has this essay online today at The New Republic. Posted at 08:12 AM by Howard Bashman "Detainee fight gets bigger, costlier for long-battling Boston law firm; Six Algerian terrorist suspects held at Guantanamo Bay for more than six years without charges have won the right to petition for release, increasing the stakes for their pro bono defenders": The Boston Globe today contains an article that begins, "The Wilmer Hale law firm, one of the largest and most respected in Boston, has a reputation for championing unpopular causes: President Nixon during impeachment. The US Army during the McCarthy hearings. Even defending serial killer Ted Bundy. But the firm's past efforts pale in comparison with the free legal assistance that it has given to six Algerian terrorist suspects held without charge at Guantanamo Bay. Since 2004, lawyers with the firm have provided 35,448 billable hours of legal help, worth an estimated $17 million, making this case the largest pro bono effort in the 90-year history of the firm." Posted at 08:02 AM by Howard Bashman "Kozinski's Spirit": This editorial appears today in The New York Sun. Posted at 08:00 AM by Howard Bashman "Banning Loaded Words at Criminal Trials: A Well-Meaning But Foolish Approach to Protecting Defendants." Sherry F. Colb has this essay online at FindLaw. Posted at 07:54 AM by Howard Bashman "Michigan judge named to U.S. appeals court": The Detroit News today contains an article that begins, "Ending a bitter partisan feud that dates from 1997, the U.S. Senate took less than two hours Tuesday night to confirm a controversial Michigan judge to sit on the federal appeals court that handles cases for the Midwest. The final vote to give Helene White, a Michigan state appeals court judge, the lifetime appointment to the 6th U.S. Circuit Court of Appeals was 63-32." And The Associated Press reports that "Senate approves Michigan judicial nominees." In addition to confirming the nomination of Helene White (click here and scroll down for bio) to the U.S. Court of Appeals for the Sixth Circuit on a roll call vote, the U.S. Senate yesterday also confirmed Raymond Kethledge to the Sixth Circuit on a voice vote.  
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