| November 19 | November
2 | October 10 | September
7 | August 24 | |
July 23 | July 17 | June
8 | June 4 | May
30 | May 22 | May
16 | May 2 | April
4 | March 28 | March
15 | March 7 | February
20 | January 26 |
January 10 | January
November 29, 2001
- For an update on victims' rights cases, click HERE.
- Click HERE
for a link to the Federal Register notice of Attorney General
Ashcroft's order on the monitoring of inmate-attorney communications
in the cases of a few suspected terrorists.
November 19, 2001
- This link: http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html
is the press release, including text, of the President's order
on military tribunals.
- For an interesting examination of the role of precedent in
Anglo-American law, take a look at Hart v. Massanari, ___ F.3d
___, 2001 WL 1111647 (9th Cir. 9/24/01).
The following website has put together a web page devoted to
sources of information relating to the September 11 attacks
-- including legislation, government agency responses, and news.
They will continue to add new information: http://www.law.cuny.edu/library/libwebpgs/antiterrorism.html
A good article on prosecuting the terrorists: http://www.asil.org/insights/insigh77.htm
If you saw and believed the study that came out last year suggesting
that guns were not important to the founding of the American
west, you should read: Counting Guns in Early America
Here is a link to an interesting op-ed piece in the Detroit
News advocating a campaign of public-service announcements urging
airline passengers to forcibly resist hijackers.
Article about the Michigan Affirmative Action case and racial
Here's the new National Center for Justice and the Rule of
Law website. It is from the University of Mississippi and will
be most helpful with Criminal matters:
An interesting article contrasting support for the military
on academic campuses. http://www.orlandosentinel.com/news/opinion/orl-oped-brown101101.column?coll
has up to date information on all vacancies, nominations, hearings,
confirmations, as well as bios and letters of endorsement for
all judicial nominees.
This website is an amazing resource for research on the Constitution,
especially the Liberty Library of Constitutional Classics: http://www.constitution.org
An excellent summary of U.S. v. Emerson decision from USNews.com:
Jonathan Adler has a nice piece on the continuing importance
of federalism, and the opportunism of those who rushed to announce
its demise. It's at: http://www.nationalreview.com/comment/comment-adler110101.shtml
Great column on the Second Amendment by George Will:
November 2, 2001
- Read the testimony of Catholic University Dean Douglas Kmiec
before the U.S. Senate Judiciary Committee, Subcommittee on the
Constitution, on October 3, 2001, in support of the Attorney General's
proposed antiterrorism legislation. He argued that the civil liberties
and other concerns about the legislation were based "on constitutional
policy, not constitutional law, grounds." (p.2)
- Here is the testimony of Cardozo Law School Professor John McGinnis
before the U.S. Senate Judiciary Committee, Subcommittee on the
Constitution, on October 3, 2001, defending the constitutionality
of the Attorney General's proposed antiterrorism legislation.
He argued that "the bill as a whole adheres to a constitutional
line between the procedures appropriate to protect national security
and those appropriate for law enforcement." (p.1)
- The 2000 study by Columbia University Professor James Liebman,
et al. entitled "A Broken System: Error Rates in Capital
Cases, 1973-1995" received extensive media coverage when
it concluded that the implementation of the death penalty in the
United States is a "broken system" because two-thirds
of death penalty cases in the state and federal system were reversed.
John Jay College of Criminal Justice Professors Barry Latzer and
James Cauthen found that the study contained innaccurate and misleading
Note: The following contains a list of additional articles in
this regard and the professors' responses to each other. http://www.lib.jjay.cuny.edu/docs/capital.html
October 10, 2001
September 7, 2001
- Male prisoners have a constitutional right to procreate by means
of artificial insemination, the U.S. 9th Circuit Court of Appeals
ruled September 5. Gerber has a "fundamental right to procreate"
that "survives incarceration," wrote Judge Myron H.
Bright in a 2-1 decision. Prison officials can restrict that right
only if they can show that prison safety issues would make it
impossible for Gerber to proceed, the judges ruled. For the opinion
Gerber v. Hickman, click HERE.
Practice Group member Kent Scheidegger, legal director of the
Criminal Justice Legal Foundation, particpated in a discussion
of this case on CNN's Burden of Proof; read that HERE.
August 24, 2001
- New Jersey Court Report Finds No Bias in Death Penalty
Last year, the New Jersey Supreme Court adopted a system to
monitor whether the death penalty is being administered in a
discriminatory manner. See In re Proportionality Review Project
(II), 165 N.J. 206, 757 A.2d 168 (2000). The special master
has submitted and the court has accepted the first annual report
under that system. Among the master's findings are that, based
on the data, "we are extremely confident in our finding
that the administration of capital punishment in New Jersey
in terms of the race or ethnicity of the defendant is color-blind
and free from taint or prejudice."
July 23, 2001
The Polygraph as Evidence
Congressman Gary Condit's recent,
well publicized, polygraph examination has sparked renewed public
interest in the polygraph. In United States v.
Scheffer, 523 U.S. 303, 140 L.Ed.2d 413, 118 S.Ct. 1261
(1998), the Supreme Court considered a claim that due process
required admission of polygraph evidence, i.e., that a rule
of evidence categorically excluding polygraphs is unconstitutional.
This is, of course, a different issue from the policy question
of whether to promulgate such a rule. Here are links to
the opinion and two of the briefs, discussing the value and
limitations of polygraphs:
(from Cornell's site)
Brief of the Criminal
Justice Legal Foundation (supporting the government)
Brief of the Committee
of Concerned Social Scientists (supporting the defendant)
July 17, 2001
June 8, 2001
June 4, 2001
- The Report of Governor Bill Owens' Columbine Review Commission
has just been published and is on-line at http://www.state.co.us/columbine.
The Federalist Society held a program, "Did the Law Cause
Columbine?" in 1999. Transcripts for this program can be
May 30, 2001
Also of interest is a thoughtful article on the implications
of this study by Stuart Taylor in the National Journal: http://nationaljournal.com/taylor.htm
May 22, 2001
- On May 22, the Federalist Society Criminal Law and Procedure
Practice Group co-sponsored, along with the Cato Institute, a
forum on the "drug war." You can see the event in "Real
Video" or listen to it in "Real Audio" on Cato's
Web site: http://www.cato.org/events/010522pf.html
- In the Spring 2001 issue of "City Journal," Heather
Mac Donald writes on "The Myth of Racial Profiling."
She writes, "There's no credible evidence that racial profiling
exists, yet the crusade to abolish it threatens a decade's worth
of crime-fighting success." See http://www.city-journal.org/html/11_2_the_myth.html
May 16, 2001
May 2, 2001
April 4, 2001
March 28, 2001
- ABA's Special Judicial Selection Role Terminated
22, the Bush Administration announced it was ending the American
Bar Association's role of screening potential judicial nominees
before the announcement of their nomination. Here are
some links regarding this issue:
from White House Counsel Al Gonzales to the ABA, from White
House Web site.
from Mr. Gonzales to Senators Leahy and Schumer.
by ABA President Martha Barnett, from ABA Web site.
Street Journal editorial
York Times editorial
March 15, 2001
March 7, 2001
- University of Alabama at Birmingham Board of Trustees, et
al. v. Patricia Garrett, et. al.,
On February 21, 2001 the United States Supreme Court decided
the consolidated Americans with Disabilities Act (ADA) cases filed
by two state employees against the State of Alabama. A registered
nurse, Patricia Garrett, and a security officer, Milton Ash, alleged
violations of the ADA because the state employer would not accommodate
their disabilities. Alabama argued that it should be immune from
such suits, and while the District Court agreed, the Court of
Appeals for the Eleventh Circuit reversed this decision.
Following a familiar five-to-four split decision pattern, the
United States Supreme Court reversed and held that the Eleventh
Amendment barred state employees from suing a state employer for
damages under Title I of the ADA. The Chief Justices majority
opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia,
Anthony M. Kennedy and Clarence Thomas. Justice Kennedy, joined
by Justice OConnor, also filed a concurring opinion. Justices
John Paul Stevens, David H. Souter and Ruth Bader Ginsburg joined
Justice Breyer's dissenting opinion. The Court declined to consider
the Title II claims (relating to access to programs).
The Court found that the Eleventh Amendment barred these claims
for monetary damages because Congress lacked the power to create
substantive rights pursuant to the Fourteenth Amendment. Rather,
Congress could enact remedial legislation that prohibited otherwise
lawful state conduct only where there was pattern of constitutional
violations by the states. The ADAs legislative record failed
to establish such a pattern. In effect, the Court ruled that the
instances of discrimination were not sufficiently numerous to
constitute a "pattern" of conduct by the states. Thus
the Court did not reach the issue of whether the particular discriminatory
acts in the legislative record arose to the level of "irrational"
discrimination precluded by the Cleburne decision. See
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432
(1985) (holding that legislation that discriminates against the
disabled must meet "rational basis" review).
The Courts ruling was limited to the portion of the ADA
requiring employers to make "reasonable accommodations"
for disabled employees, but may foreshadow future decisions regarding
accessibility of government services and programs. Title II claimants
will find it difficult, in light of Garrett, to show that
Congress had an adequate record of a pattern of constitutional
violations by the states against the disabled. This ruling continues
a trend in recent Supreme Court Eleventh Amendment decisions limiting
the power to Congress to create substantive rights pursuant to
its powers under Section 5 of the Fourteenth Amendment.
February 20, 2001
January 26, 2001
- Comments Due February 15 on Proposed Rule Amendments
Last August the Judicial Conference's Advisory Committees on Appellate
Rules, Bankruptcy Rules, Civil Rules, and Criminal Rules each
proposed a set of amendments. The most important to criminal
law practitioners are, of course, the appellate and criminal.
The deadline for comment on these proposals is February 15.
The criminal rule proposals are divided into two sets: a
comprehensive style revision not intended to make substantive
change and a separate set of substantive changes.
Several of the criminal rule changes deal with the use of live
video in criminal cases. Rules 5, 10, and 43 deal with appearances
by the defendant. Rule 26 deals with video testimony by
witnesses. Another potential source of controversy is Rule
41, which would authorize warrants for covert observation.
Appellate Rule 26 would be modified to go to a business day, rather
than calendar day, basis for computing short deadlines.
Review and comment on the proposals at the U.S.
January 10, 2001
- State "Retroactivity" Case Fizzles
Almost two years ago, the Supreme Court granted certiorari in
Fiore v. White, 98-942 to review a decision of the
Third Circuit that "state courts are under no constitutional
obligation to apply their decisions retroactively" for the
benefit of a prisoner whose appeal is already final. On
January 9, 2001, that case ended with a whimper rather than a
bang, as a routine application of Jackson v. Virginia,
443 U.S. 307 (1979).
Fiore and Scarpone were convicted together of violating a Pennsylvania
environmental statute. Their appeals took different paths.
After Fiore's case had been affirmed by an intermediate appellate
court and become final, the Pennsylvania Supreme Court decided
in Commonwealth v. Scarpone, 634 A.2d 1109 (Pa.
1993) that they had been prosecuted under the wrong statute.
However, the state courts denied collateral relief to Fiore, and
the Third Circuit decided that nonretroactivity of the Scarpone
interpretation of the statute was not unconstitutional.
The United States Supreme Court certified to the Pennsylvania
Supreme Court the question of whether the Scarpone interpretation
was a change or the correct interpretation all along. Fiore
v. White, 528 U.S. 23, 145 L.Ed.2d 353, 120 S.Ct. 469 (1999).
The state court answered, "Scarpone did not announce
a new rule of law. Our ruling merely clarified the plain
language of the statute...." That answer eliminated
the retroactivity question from the case. The evidence at
Fiore's trial plainly failed to establish an element of the offense,
and hence he was entitled to relief under the well-established
rule of Jackson.
per curiam, unanimous (PDF format) from Supreme Court Web
- Extra Jail Time Need Not Be "Significant" for Ineffective
The Supreme Court on January 9 further clarified the standard
for evaluating "prejudice" in connection with claims
of ineffective assistance of counsel. For claims that counsel
were ineffective in sentencing proceedings, there is no requirement
that the amount of extra jail time be "significant"
in relation to the rest of the sentence to meet the "prejudice"
requirement of Strickland v. Washington, 466 U.S.
668 (1984). The high court reversed a holding that a federal
prisoner moving to correct his sentence could not show "prejudice"
because the amount of time at issue was only 6 to 21 months out
of an 84 month sentence.
"Authority does not suggest that a minimal amount of additional
time in prison cannot constitute prejudice. Quite to the contrary,
our jurisprudence suggests that any amount of actual jail time
has Sixth Amendment significance."
by Justice Kennedy, unanimous, in PDF format from Supreme Court
January 4, 2001
- Attorney General-designee John Ashcroft and the Ronnie White
One of the principal controversies surrounding the nomination
of Senator John Ashcroft to be Attorney General has been his opposition
to the nomination of Ronnie White to the federal bench.
The links below point to pages of the Congressional Record where
Senator Ashcroft explains his reasons. These are in PDF
format. The last link points to the decision of the Missouri
Supreme Court, including Justice White's dissent, in State
v. Johnson, 968 S.W.2d 123 (Mo. 1998), one of the decisions
cited by Senator Ashcroft as the basis for his opposition.
Record, October 4, 1999, page S11871
Record, October 4, 1999, page S11872
Record, October 4, 1999, page S11873
Record, October 5, 1999, page S11932
Record, October 5, 1999, page S11933