How Appealing

Wednesday, September 13, 2006

"GOP Leaders Back Bush on Wiretapping, Tribunals": Thursday's edition of The Washington Post will contain this article.

And The New York Times on Thursday will report that "Panel in Senate Backs Bush Plan for Eavesdropping."
Posted at 11:52 PM by Howard Bashman



"Gays Renew Drive Against 'Don't Ask, Don’t Tell'": This article will appear Thursday in The New York Times.
Posted at 11:50 PM by Howard Bashman


"White House, senators bicker over how to try terror suspects": McClatchy Newspapers provide this report.
Posted at 11:48 PM by Howard Bashman


"Lawsuit Targets U.S. Aid for Faith-Based Counseling": This audio segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 11:44 PM by Howard Bashman


"Stream of Conscience: Why it matters what definition of torture we use." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 08:35 PM by Howard Bashman


"A judge overreacts": The St. Petersburg Times today contains an editorial that begins, "Pinellas-Pasco Circuit Court Judge Stanley Mills just flunked driver education."

And columnist Sue Carlton has a related op-ed headlined "Don't park there, 'cause here comes the judge."
Posted at 05:44 PM by Howard Bashman



"Matt Lauer sits down with Debra Lafave; NBC News exclusive with the notorious school teacher to air on 'Today' and 'Dateline,' Sept. 13": MSNBC provides this report. You can access the video segment from this morning's broadcast of the "Today" show by clicking here (Windows Media Player required).

And The Associated Press provides a report headlined "Former teacher: Sex with pupil 'really bad choice.'"
Posted at 05:12 PM by Howard Bashman



Death penalty volunteers not wanted, divided three-judge Ninth Circuit panel holds: A prisoner on Arizona's death row filed a federal habeas corpus petition challenging his conviction and resulting death sentence. Thereafter, however, the prisoner changed his mind and sought to withdraw his habeas action, thereby becoming what is colloquially referred to as a death penalty volunteer.

Today, Senior Circuit Judge Warren J. Ferguson issued an opinion, in which Circuit Judge Harry Pregerson joined, holding:

We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer's waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution. We therefore deny the State's and Comer's motions to dismiss the appeal and proceed to review the District Court's denial of Comer's federal habeas petition.

We hold that Comer's sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer's due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted.

Circuit Judge Pamela Ann Rymer issued a dissenting opinion that begins, "We need to -- and may only -- decide one question: whether death row inmate Robert Comer is competent to withdraw his appeal from denial of his petition for writ of habeas corpus and has done so knowingly and voluntarily. All of us agree that the answer to that question is yes * * *. This means that this case is over, because Comer's waiver of further review of his habeas claims leaves no live controversy remaining between Comer and the State of Arizona."

Today's ruling was foreshadowed last month by a procedural order that occasioned sniping between members of this very three-judge panel in this very case. My coverage from August 10, 2006 can be accessed here.

The majority's ruling today raises many interesting question. If the Eighth Amendment prohibits a state death row inmate from exercising his right to knowingly and voluntarily withdraw a federal habeas challenge to a death sentence, does a federal court within the Ninth Circuit have an affirmative obligation when reviewing a habeas challenge to a death sentence to consider all possible arguments for setting aside the sentence, whether or not raised by the inmate? If a state death row inmate becomes a death penalty volunteer before ever filing any federal habeas corpus action -- and as a result no federal habeas corpus action is filed by the inmate -- must the federal courts nevertheless affirmatively determine that no Eighth Amendment violation exists before the state may carry out the death sentence? And, why should this limitation on the right of a potentially-prevailing litigant's ability to withdraw a federal court claim be limited to death row inmates?

At his "Sentencing Law and Policy" blog, Law Professor Doug Berman has a post titled "Do you lose your right to die if sentenced to death row?"
Posted at 04:55 PM by Howard Bashman



Separation of church and appellate courtroom: The U.S. Court of Appeals for the Eleventh Circuit is soliciting "contractors to provide a quote to provide new pews to match existing pews" at the Frank M. Johnson, Jr. Federal Courthouse in Montgomery, Alabama. All the details are available via this link. Secular pews are preferred, but barring that they should be non-sectarian.
Posted at 04:32 PM by Howard Bashman


"May a state department of corrections be held liable for prison officials' failure to correct a hostile work environment that is the result of male prisoners' sexual harassment of female guards? We answer that question, 'Yes.'" So begins an opinion that Circuit Judge Stephen Reinhardt issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 04:28 PM by Howard Bashman


"[I]n cases where the police may lawfully transport a suspect to the scene of the crime in the rear of a police car, the police may carry out a departmental policy, imposed for reasons of officer safety, by patting down that person. Because the police must have a legitimate law-enforcement reason to transport a suspect, we see little danger that policies such as these might be used as a pretext for a suspicionless frisk." So concludes a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit in an opinion issued today. Today's ruling reverses a federal district court's decision which held that police officers were not permitted to frisk someone to be transported under these circumstances unless they had a reasonable suspicion that he was armed.
Posted at 04:08 PM by Howard Bashman


"Thomas M. Hardiman, of Pennsylvania, to be United States Circuit Judge for the Third Circuit, vice Richard L. Nygaard, retired": The White House has formally made this nomination today. My earlier post previewing this nomination can be accessed here.
Posted at 03:52 PM by Howard Bashman


"Texas Court to Reconsider DeLay Charge": The Associated Press provides a report that begins, "Texas' highest criminal appeals court said Wednesday it would consider reinstating a dropped conspiracy charge against former House Majority Leader Tom DeLay, further delaying his trial on felony money laundering and conspiracy counts."
Posted at 10:40 AM by Howard Bashman


"The myth of Dem, GOP justice; Surprisingly little political poison on the federal bench": Martin J. Siegel had this op-ed Sunday in The Houston Chronicle.
Posted at 10:35 AM by Howard Bashman


"Hewlett-Packard Lawyer Dinh Gives Washington the 'Viet-Spin'": The September 18, 2006 issue of The New York Observer contains an article by Anna Schneider-Mayerson that begins, "On the fifth anniversary of the Sept. 11 attacks, Viet Dinh, one of the lead architects of the controversial Patriot Act, was standing in his Washington, D.C., office, waxing poetic about Supreme Court Justice Sandra Day O'Connor. 'Justice O’Connor, I love her so much.' the 38-year-old law professor said. 'I love her so much. She's the best.' As if to return the compliment, her image, in the form of a photo portrait signed to her former clerk 'with respect and affection,' smiled back at him. Hugs all around!"
Posted at 10:30 AM by Howard Bashman


"Depends What the Meaning of 'Judicial Activism' Is": Matthew J. Franck has this essay today at National Review Online.

And "Patterico's Pontifications" provides a post titled "New York Times Performs Sleight of Hand on 'Judicial Activism.'"

The editorial that The New York Times published Monday on this subject can be accessed at this link.
Posted at 10:22 AM by Howard Bashman



"Senate Considers Attorney-Client Privilege": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 10:15 AM by Howard Bashman


"Court ruling may affect crack cases": The Philadelphia Inquirer contains this article today. Earlier coverage can be accessed via this link.
Posted at 08:35 AM by Howard Bashman


"House GOP Leaders Fight Wiretapping Limits": This article appears today in The Washington Post.
Posted at 08:33 AM by Howard Bashman


"Blogs are liberating the profession from dull writing; They're emerging as a powerful tool for lawyers and law professors": Law Professor Doug Berman has this essay (free access) in this week's issue of The National Law Journal.
Posted at 08:30 AM by Howard Bashman


"Missouri Plan for Executions Rejected Again; The revised process for lethal injections fails to prevent unnecessary pain, a federal judge says; The state has until Oct. 27 to resubmit it": Henry Weinstein has this article today in The Los Angeles Times.

The Kansas City Star reports today that "Missouri death penalty protocol to change; But a judge removes a requirement that has halted lethal injections in Missouri."

And The Associated Press reports that "Judge Says Mo. Must Redo Execution Plan."

I have posted online at this link yesterday's ruling of the U.S. District Court for the Western District of Missouri.
Posted at 08:27 AM by Howard Bashman



"Maker of 'Girls Gone Wild' Runs Afoul of Law on Minors": This article appears today in The Los Angeles Times.

And Bloomberg News reports that "'Girls Gone Wild' Pleads Guilty in Exploitation Case."

My earlier coverage appears at this link.
Posted at 08:15 AM by Howard Bashman



"Justice Alito Pays Tribute to Reagan; During a speech at library near Simi Valley, the jurist credits the 40th president with shaping his conservative philosophy": The Los Angeles Times contains this article today.

Today's edition of The Ventura County Star contains an article headlined "Principles must rule, Alito says in Simi; He says Reagan held fast to beliefs."

And The Associated Press reports that "Alito describes 'out of body experience' of court appointment."
Posted at 07:55 AM by Howard Bashman



"Deal Reported Near on Rights of Suspects in Terror Cases": This article appears today in The New York Times.

The Washington Post reports today that "Cheney, Senators Discuss Detainees."

And The Los Angeles Times reports that "GOP Senators Seek to Meld Detainee Plan, Geneva Treaty; The administration's proposal would avoid a key part of the historic protections; But critics say that would send the wrong message." In addition, the newspaper contains an editorial entitled "Tortured logic."
Posted at 07:50 AM by Howard Bashman



"Lawsuit Against Microsoft Set for Court": From Iowa, The Associated Press provides a report that begins, "One of the last remaining consumer class-action antitrust lawsuits filed against Microsoft Corp. in a state court is set to go to trial in November, and the company's co-founder and chairman is on the witness list to testify."
Posted at 07:42 AM by Howard Bashman


"Lawsuit Challenges Use of Federal Aid for Bible-Based Counseling": This article appears today in The New York Times.
Posted at 07:40 AM by Howard Bashman


"Recent legal rulings favor grandparents; Supreme courts in three states grant visitation rights": Joan Biskupic has this article, in which I am quoted, in today's issue of USA Today.
Posted at 07:25 AM by Howard Bashman


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