News 2000

December 5
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December 5, 2000

  • Drug Checkpoints Violate Fourth Amendment
    Nearly unnoticed amid the election controversy, the Supreme Court decided a major Fourth Amendment case on November 28.  In Indianapolis v. Edmond, the high court decided that a road checkpoint set up to interdict unlawful drugs violates the Fourth Amendment.  The 6-3 decision by Justice O'Connor distinguished precedents on border and drunk-driving checkpoints.  Chief Justice Rehnquist and Justices Scalia and Thomas dissented. Read the decision in Edmond (in PDF format) on the Supreme Court website.
  • Amendments to Rules
    On April 17, the Supreme Court transmitted to Congress amendments to the Federal Rules of Criminal Procedure, Federal Rules of Evidence, and the Admiralty Rules (in the Civil rules).  The amendments take effect December 1, 2000.
    The Criminal and Admiralty amendments deal with forfeiture, including a new Criminal Rule 32.2.  The Evidence amendments deal with a variety of topics:
    • Rule 103, on preserving objections to evidentiary rulings.
    • Rule 404, on character evidence and opening the door by attacking the victim.
    • Rules 701-702 on experts and Daubert-related issues
    • Rule 703 on admissibility of factual basis of expert's opinion
    • Rules 803 & 902 on foundation for records

    The text of the rules can be accessed through the U.S. Courts Website.

October 13, 2000

  • The Statistical Assessment Service, which works for more accurate and effective presentation of research in the media, has an article on the misuse of statistics in the death penalty debate.  "Many of the statistical commonplaces about capital punishment fall apart when examined."  Read "Numbers Unreliable on Death Penalty" by Iain Murray, at

October 6, 2000


October 4, 2000

  • The Supreme Court will decide whether some prison inmates have a constitutional right to give legal advice to fellow inmates. The justices said they will use a Montana case to decide whether prison officials ever violate inmates' free-speech rights when they censor such communications. A federal appeals court ruled that Montana authorities wrongly disciplined an inmate over a letter in which he offered legal advice to another inmate. Other federal appeals courts, however, have ruled that no such free-speech right exists.
  • The Supreme Court agreed to decide whether some convicted killers facing the death penalty in South Carolina still have the right to tell jurors there is no chance they could be paroled if sentenced to life in prison. The justices said they will review a ruling by the state's highest court that such instructions no longer are needed when South Carolina murderers are sentenced. In a 1994 decision, the nation's highest court struck down a South Carolina law that barred jurors, many of whom might think a ``life sentence'' does not really mean a lifetime behind bars, from learning that parole was impossible for some defendants.


September 27, 2000

  • Former Attorney General Dick Thornburgh comments on a recent bill offered by Senator McCain that would make it a federal crime to "knowingly and willfully…introduce a motor vehicle or motor vehicle equipment into interstate commerce with a safety-related defect" that harms or kills someone. Senator Specter has offered a broader bill (S. 3014), making it a federal crime to knowingly manufacture and sell any product "dangerous to human life and limb beyond the reasonable and accepted risk with such or similar products lacking such a flaw." To read General Thornburgh’s New York Times editorial, visit:
  • The Cato Institute recently held a program concerning “Should the Death Penalty Be Abolished?” Panelists included Judge Alex Kozinski, U.S. Court of Appeals; Harvey Silverglate; Silverglate & Good; David Frum, Senior Fellow Manhattan Institute; and Jarett Decker, Adjunct Scholar, Cato Institute. To view the proceedings, visit:
    • The Federalist Society will be holding a briefing focusing on some of the various legislative initiatives proposed in the wake of the Firestone Tire/Ford Congressional investigation. The luncheon briefing will be held October 5 from 12 noon – 2 p.m. in the Senate Rules Committee Hearing Room, Russell Senate Office Building, Room 301.
    • The briefing will focus on proposed bills that would impose criminal penalties on the knowing and reckless sale and distribution of defective consumer products into interstate commerce. George Terwilliger – former Deputy Attorney General and Acting Attorney General of the United States – and George Mason University Law Professor Michael Krauss will be analyzing proposed legislation by Senators McCain, Specter, Kohl, Feingold, and Feinstein, along with a product liability bill offered by Representatives Tauzin and Upton. Terwilliger and Krauss will also discuss whether imposing civil liability is more effective than criminal liability in correcting wrongdoing in this case.
    • Child Support Recovery Act Declared Unconstitutional
      The Sixth Circuit has declared that Congress has no power to make the nonpayment of child support a federal criminal offense, at least when the state entering the order has not chosen to criminalize nonpayment.  The ruling is based on United States v. Lopez, 514 U.S. 549 (1995). Read the opinion of the Sixth Circuit in United States v. Fassee,


    August 31, 2000

    • Kent Scheidegger of the Criminal Justice Legal Foundation just wrote a piece on recent habeas developments. Click Here


    August 16, 2000

    • "Hate Crime" Decision May Impact Drug Sentences
      On June 26, the United States Supreme Court decided in Apprendi v. New Jersey that the facts establishing a sentence enhancement, other than a prior offense, above the statutory maximum must be found by a jury beyond a reasonable doubt. The Apprendi case involved a "hate crime" enhancement, but its holding was not limited to hate crimes.At the time, the decision was thought to have little impact on federal prosecutions, because it did not strike the "guidelines" approach, where factors found by the judge serve to structure the sentence within the range set by the statute. However, on July 18, the Eighth Circuit held in United States v. Sheppard, that sentencing under the main federal drug statute, 21 U.S.C. § 841, may in some cases be subject to the Apprendi limitation. The circumstances in which jury findings for quantity of drugs, normally a judge-found sentencing factor, may be constitutionally required are discussed in the opinion.

    Links to opinions (require Adobe Acrobat):
    Supreme Court opinion in Apprendi.
    Eighth Circuit opinion in Sheppard.

    • Study Shows Brady Act Did Not Reduce Homicides
      An article in the August 2 issue of the Journal of the American Medical Association reports that implementation of the Brady Act did not reduce homicide rates. The results for suicide reduction are mixed.Read Ludwig & Cook, Homicide and Suicide Rates Associated with Implementation of the Brady Handgun Violence Prevention Act, 284 JAMA 585 (2000) on JAMA's Web site in HTML or PDF.
    • Police Alcohol "Sniffer" Raises New Questions
      Virginia State police are employing the PAS III "Sniffer" to detect drunk drivers at checkpoints and traffic stops. Surreptitiously concealed inside a flashlight or a clipboard, the device automatically checks the blood alcohol level of all drivers and has alarmed many civil libertarian groups. For more information:

    June 30, 2000

    • Victims Rights Amendment Tabled
      At the end of April, sponsors of the Victims Rights Amendment withdrew the proposal from Senate consideration after it became clear that they did not have the necessary super majority support to limit debate on the proposal. The Amendment, sponsored by Senators Jon Kyl (R. Ariz.) and Dianne Feinstein (D. Cal.) would have provided a "bill of rights" for crime victims. Victims would have been assured of the right to notice of court hearings, to attend those hearings, and to speak at bail hearings, plea hearings, and sentencing hearings. Thirty-nine state attorneys general supported the proposed Amendment, as did a broad coalition of crime victims' and law enforcement organizations.  
      Backers of the Amendment were particularly disappointed by the failure of the Clinton Administration to honor its promise to support the Amendment. Roberta Roper, Co-Chair of the National Victims Constitutional Amendment Network noted that supporters of the Victims Rights Amendments had agreed to make three of the four language changes requested by the Administration. The fourth unresolved issue dealt with language regarding the relationship between victims' rights and defendants' rights. "The failure to win Administration concurrence with your [the President's] announced approach to the victims'/defendants' rights issue was the culmination of a frustrating struggle. For nearly two years, in overture after overture, we sought to have a meeting with Justice Department officials to discuss the issue. None of these requests received an answer."

    June 22, 2000

    • Paul Cassell's analysis from the Wall Street Journal of the widely-reported recent report claiming that there is a 68 percent "error rate" in capital cases. Cassell identifies numerous flaws in the report, and concludes: "The report continues what has thus far been a glaringly one-sided national discussion of the risk of error in capital cases. Astonishingly, this debate has arisen when, contrary to urban legend, there is no credible example of any innocent person executed in this country under the modern death-penalty system. On the other hand, innocent people undoubtedly have died because of our mistakes in failing to execute." To read more on this subject, click here.

    May 23, 2000

    • An Alternate Viewpoint on the Diallo Case
      On April 4, the Practice Group featured an article by Timothy Lynch of the Cato Institute on the Amadou Diallo case.  For an alternate view, see the article by Fox News Channel's Bill O'Reilly on the APBNews site, The Diallo Effect: More Killings.  O'Reilly believes that aggressive policing is necessary for people beseiged by crime, especially in the city's poorest neighborhoods, and that overreaction to the Diallo incident has resulted in the deaths of innocent people.

    May 17, 2000

    • Violence Against Women Act Ruled Unconstitutional: On May 15, the Supreme Court ruled 5 to 4 that Congress exceeded its powers in enacting the Violence Against Women Act, 42 U.S.C. § 13981. Providing a civil remedy for an act of rape by a private person (i.e., no "state action") comes within neither the Interstate Commerce power nor the power to protect civil rights from infringement by states under section 5 of the Fourteenth Amendment. Read the full text of this major federalism decision, United States v. Morrison, at the Supreme Court website.

    April 18, 2000

    • "Notes on the Columbine Anniversary"
      As the anniversary of Columbine High shooting approaches, here are a couple of Web pages worth reading:
      • The Heritage Foundation features a lecture by Colorado Governor Bill Owens asserting that the changes needed to address the underlying problems are cultural, not a new wave of gun laws.
      • On our own site, we have the Panel Discussion from August 13 at the National Press Club, titled "Did the Law Cause Columbine?"
    • "High Court Forbids Squeezing Passenger Luggage"
      On Monday, April 17, the Supreme Court decided 7-2 that it violates the Fourth Amendment for police officers to squeeze bus passengers' luggage, looking for drugs, without a basis of individualized suspicion.  Chief Justice Rehnquist wrote the majority opinion, invalidating the search.  Justice Breyer wrote the dissent.  Read the opinions on Cornell's web site.
    • "Tennessee Execution Set for Wednesday"
      The execution of Robert Coe in Tennessee is back on, now scheduled for Wednesday, April 19.  The federal district court rejected his attacks on Tennessee's procedure for determining mental competence to be executed, and the Court of Appeals for the Sixth Circuit affirmed.  The web site for the Tennessee Supreme Court has a collection of interesting documents, including .pcx image files of unpublished documents.

    April 4, 2000

    March 31, 2000

    • Tennessee Execution Stayed for Competency Determination, Again
    • Supreme Court ADA Cases Dropped
      On February 28, 2000 the United States Supreme Court dismissed Alsbrook v. Arkansas, 99-423 and Florida Department of Corrections v. Dickson, 98-829. These cases presented the questions whether Congress could abrogate the States' immunity from suits by private parties under the Americans with Diabilities Act (ADA). Both of these cases settled and were dismissed pursuant to Supreme Court Rule 46.
      The Supreme Court had granted certiorari in Alsbrook and Dickson to resolve a split among the courts of appeals concerning the constitutionality of the ADA. The fundamental issue before the Court was whether the ADA was actually "remedial" legislation designed to remedy constitutional rights or whether it was an improper attempt to grant "substantive" rights. Many court watchers believed that the Supreme Court would bar private ADA suits against the states. Five members of the Court (Rehnquist, O'Connor, Kennedy, Scalia and Thomas) had recently voted to strike down other federal legislation on similar grounds. See City of Boerne v. Flores, 521 U.S. 507 (1997) (Religious Freedom Restoration Act) ttempt to grant substantive rights), College Savings Bank v. Florida Prepaid Post-Secondary Education Expense Board, 119 S.Ct 2219 (1999) (Trademark
      Remedy Clarification Act); Florida Prepaid Post-Secondary Education Expense Board v. College
      Savings Bank, 527 U.S. 627 (1999) (Patent Remedy Act); Kimel v. Board of Regents, 120 S.Ct 631 (2000) (ADEA).
      In the wake of Justice O'Connor's strong opinion in Kimel, the Plaintiffs and disability law groups pushed hard to settle these Supreme Court cases. In the same week, the ACLU settled a Fourth Circuit case (scheduled for en banc rehearing on February 29, 2000) that raised the identical issue. The general consensus is that the disability groups are seeking to avoid the current 5-4 conservative majority on this federalism issue. It is believed that they are looking to the upcoming presidential election and hoping that the court's majority could change if there is a departure by one of the five majority members. Nevertheless, there are other petitions for certiorari pending in the Supreme Court that raise the constitutionality of the ADA.

    March 17, 2000

    • The DBMS Designer Blunders, and the Car Thief Goes Free
          "The criminal is to go free because the constable has blundered.  ...  A room is searched against the law, and the body of a murdered man is found.  ...  The privacy of the home has been infringed, and the murderer goes free."  People v Defore, 242 NY 13, 21, 23-24, 150 NE 585, 587, 588 (1926).  Judge Cardozo's famous denunciation of the exclusionary rule resonates to this day, with modern technology providing variations on the theme.
          In People v. Spence, C028033 (Mar. 10, 2000), the California Court of Appeal, Third District, has held, in essence, that the criminal goes free because the DBMS designer blundered.  Spence was a convicted auto thief given probation, and a computerized report by the probation department showed that he was subject to a search condition.  However, the report designer failed to include in the report any indication of the limits of each probationer's search condition.  Police searched his residence for drugs, believing they had authority to do so, but in fact he had only consented to searches for stolen property.  The court found that Arizona v. Evans, 514 U.S. 1 (1995) was distinguishable, and it ruled that the evidence had to be suppressed.
          Fortunately for society, this case does not involve a murderer, but only a car thief and crank-head.  Click to read the opinion in Microsoft Word or Adobe Acrobat.
    • Miranda, Congress, and the Supreme Court

    March 14, 2000

    • California Juvenile Crime Initative
      California voters on March 7 overwhelmingly approved a juvenile crime initiative.  According to the Secretary of State, Proposition 21 "(1) requires more juvenile offenders to be tried in adult court, (2) requires that certain juvenile offenders be held in local or state correctional facilities, (3) increases penalties for gang-related crimes, and (4) expands the list of violent and serious offenses for which longer prison sentences are given."
      The Califonria Secretary of State Web site has a summary of the initiative, with links to the full text, analysis, and arguments for and against.  The site also has the election results, showing statewide and county-by-county votes.  The initiative was approved 62% to 38% statewide, with majorities in 54 of California's 58 counties (all but 4 in the San Francisco area).  Apparently "tough on crime" propositions remain popular with the voters, even on the "Left Coast."
    • Justice Department Document on White Collar Crime: Prosecuting Corporations
    • Summary and Analysis of Department of Justice Federal Prosecution of Corporations Guidelines

    February 7, 2000

    • California Juvenile Crime Initiative
      California voters on March 7 overwhelmingly approved a juvenile crime initiative.  According to the Secretary of State, Proposition 21 "(1) requires more juvenile offenders to be tried in adult court, (2) requires that certain juvenile offenders be held in local or state correctional facilities, (3) increases penalties for gang-related crimes, and (4) expands the list of violent and serious offenses for which longer prison sentences are given."
      The California Secretary of State Web site has a summary of the initiative, with links to the full text, analysis, and arguments for and against.  The site also has the election results, showing statewide and county-by-county votes.  The initiative was approved 62% to 38% statewide, with majorities in 54 of California's 58 counties (all but 4 in the San Francisco area). 

    February 2, 2000

    • Supreme Court Clarifies Rules Re Counsel on Appeal
      The Supreme Court has issued two decisions clarifying the role of counsel on appeal.  In Smith v. Robbins, 98-1037, Jan. 19, 2000, the Court held that the much-criticized procedure of Anders v. California, 386 U.S. 738 (1967) is only one method of dealing with the problem of meritless appeals.  The procedure laid out by the California Supreme Court in People v. Wende, 25 Cal.3d 436, 600 P.2d 1071 (1979) is also acceptable.  California's Attorney General's Office breathed a huge sigh of relief, as thousands of Wende-briefed cases would have to be re-appealed if the Ninth Circuit's decision had stood.
      In the other case, the high court ruled that the constitutional right to represent oneself at trial does not extend to appeal in Martinez v. California Court of Appeal, 98-7809, Jan. 12, 2000.  In the process, the Court clarified that the Sixth Amendment does not apply to appeals.  The right to counsel on appeal identified in previous cases rested on equal protection and due process, not the Sixth Amendment.
      The third leg of this year's appeal "trilogy,"  Roe v. Ortega, 98-1441, is still pending.  That case involves the question of whether trial counsel must file a notice of appeal in the absence of any arguable issues, when the defendant has neither requested nor waived an appeal.
      For more detail, see the amicus briefs of the Criminal Justice Legal Foundation in Robbins, Martinez, and Ortega.
    • California to Reconsider Gun-Maker Liability
      The California Supreme Court has granted review of a controversial Court of Appeal decision regarding gun manufacturer liability for a notorious 1993 rampage in a San Francisco law office.  ("Review" in California is similar to "certiorari" in the U.S. Supreme Court.  It is discretionary review granted to resolve conflicts among the lower courts or for questions of special importance.)  The questions presented (typically phrased by the petitioner for review, not by the court) are: "1) whether, in the absence of a special relationship, the victim of a shooting may state a claim against the manufacturer of a legal and nondefective gun based on breach of a claimed duty to use due care not to increase the risk beyond that inherent in the presence of firearms in our society, and, if so, 2) whether plaintiff’s evidence raised a triable issue of causation."
      The case is Merrill v. Navegar, Inc., S083466.  (A079863; 75 Cal.App.4th 500, mod. 75 Cal.App.4th 1037c, 89 Cal.Rptr.2d 146.) Court of Appeal Opinion in  Microsoft Word or Adobe Acrobat .
    • The Americans with Diabilities Act and State Prisons, episode II
      In 1990, Congress passed the Americans with Disabilities Act, imposing far-reaching requirements on all state-run "programs."  See 42 U.S.C. § 12132.  In Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998), the Supreme Court held that the ADA by its clear language applied to state prisons.  However, the Court did not reach the constitutional question of whether Congress could impose this mandate on states, because the point had not been properly preserved.  See id., at 212-213.  The issue is presently before the Fourth Circuit en banc in Amos v. Maryland Dept. of Public Safety, 96-7091.
      The constitutional question may be decided in another case, ironically one brought by a prison guard rather than a prisoner.  In Florida Dept. of Corrections v. Dickson, 98-829, the state challenges the constitutionality of the ADA in an employment context.    The case may be decided on the reach of Congress's substantive power under the Commerce Clause and Fourteenth Amendment, or possibly on its power to abrogate the state's Eleventh Amendment immunity, an area of much Supreme Court activity recently.  The Eleventh Circuit rejected Eleventh Amendment immunity in both Dickson's ADA case and a joined age discrimination case, but the latter holding was recently reversed by the Supreme Court.  See Kimel v. Florida Bd. of Regents, 98-791, Jan. 11, 2000.

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