Two years ago, in Ring v. Arizona, the Supreme Court said juries, not judges, must decide the factual basis for imposition of the death penalty. Today, the Supreme Court hears a case in which the question is whether that decision should be retroactive. Scotus Blog profiles the case here. We last wrote about the case here. Today's AP article is here.

Update: Here is a news article on today's oral argument.

Update: Dalia Lathwick of Slate, here on the case which she writes is about "the lusty lawyer, the hangman and the pot-smoking judge--she envisions Uma Thurman and Ben Affleck in the movie.

by TChris

Federal oversight of internal investigations of misconduct by the New Jersey state police, implemented in 1999 after the state admitted that troopers engaged in racial profiling to make traffic stops, will end in response to a joint request made by the U.S. Justice Department and the state attorney general's office. Those agencies say that an internal affairs unit is doing an admirable job of handling complaints against officers and no longer needs oversight. Monitoring of other functions of the state police would continue under the judge's order.

Critics, including State Senator Nia Gill, complain that they weren't given notice of the proposal to end the monitoring and didn't have a chance to respond. Sen. Gill believes that all concerned parties should be heard before the judge decides whether to end the monitoring.

Minority leaders and civil rights groups plan to challenge the ruling, saying the consent decree that mandated the overall monitoring should not be lifted piecemeal. They also claim that questions remain about whether the internal affairs unit has truly reformed its practices.

by TChris

The view that an offender who paid his debt to society should be given the chance to return to a productive life has been supplanted by what seems to be society’s unquenchable thirst for vengeance. Years of “tough on crime” policies have replaced forgiveness and rehabilitation with unending punishment. To many, there is no such thing as a "reformed" criminal or an "ex" offender. One mistake now defines a man for the rest of his life.

A new study, soon to be released on the web, demonstrates the need for change.

The new study, from the Legal Action Center, a criminal justice policy group, identifies laws in all 50 states that hamper former offenders' ability to re-enter society. These excessively punitive laws, which must be modified or repealed before ex-convicts have a real chance at jobs, homes and mainstream lives, bar them from scores of professions that require state licenses but are unrelated to their crimes.

California's Supreme Court has upheld the state's fetal murder law:

The state Supreme Court strengthened California's fetal-murder law Monday, declaring that the killing of a pregnant woman counts as two homicides even if the perpetrator was unaware the victim was pregnant. The 6-1 decision overturns a 2002 lower court ruling that said a killer must know the victim was pregnant to be guilty of murdering the fetus.

San Francisco's medical pot guru Ed Rosenthal won a civil suit and damages as a result of a pot club owner turning his plants (grown with a local license) over to the DEA. Rosenthal was tried in federal court, convicted and given a one day sentence. The jurors complained to the judge afterwards that they weren't told Rosenthal had a state license:

On Friday, San Francisco Superior Court Commissioner Catherine Lyons ruled that pot club owner Bob Martin must pay Rosenthal $4,500 for medical marijuana plants confiscated by the federal government in February, 2002 during a Drug Enforcement Administration raid at a Sixth Street medical pot club.

Here's the two sides, first Martin, then Rosenthal:

In a win for privacy rights of medical marijuana patients, a Los Angeles appellate court has ruled a doctor does not have to comply with a subpoena seeking production of his patient records.

The Medical Board of California must present more than “speculations, unsupported suspicions, and conclusory statements” to justify subpoenaing patient records from a doctor suspected of indiscriminately prescribing marijuana, this district’s Court of Appeal ruled yesterday. Justice Laurence D. Rubin of Div. Eight said Los Angeles Superior Court Judge Dzintra Janavs erred in ordering Dr. David Louis Bearman to comply with an administrative subpoena seeking records of his treatment of a patient identified by the court only as “Nathan.” The board sought the records after park rangers found marijuana and smoking pipes in Nathan’s possession at the Lake Piru Recreation Area. Nathan presented Bearman’s letter stating he was medically certified to use marijuana to control his migraine headaches.

When Nathan wouldn't produce his own records, the medical board tried to get them from his doctor. The Court held:

“When the Medical Board seeks judicial enforcement of a subpoena for a physician’s medical records, it cannot delve into an area of reasonably expected privacy simply because it wants assurance the law is not violated or a doctor is not negligent in treatment of his or her patient.”

A federal judge has ordered several government agencies to release documents related to Cheney's energy task force.

In an opinion released late on Wednesday, U.S. District Judge Paul Friedman ordered seven government agencies including the Department of Energy, Department of the Interior and Bureau of Land Management to hand over pertinent documents by June 1. He was ruling on a Freedom of Information Act lawsuit brought by Judicial Watch and the National Resources Defense Council. The two groups had sued to force the various departments involved in the energy task force to release documents related to the task force and its deliberations. Friedman said the agencies had an obligation to release the data.

by TChris

Under the federal sentencing guidelines, a defendant's sentence is enhanced if the defendant used a "special skill" to commit the crime. Lawyers and accountants, for instance, might use special skills to steal from clients. (Please, no lawyer jokes.)

Federal prosecutors in California convinced a judge that sharp eyesight is a special skill. Jing Bing Liang was sentenced for casino racketeering, based in part on his ability, with the help of others, to see cards as they were being dealt.

In arguing to increase Liang's sentence, federal prosecutors said the San Francisco gambler had "extraordinary eyesight," and that he had become specially adept at peaking at cards.

The creativity of the argument would be admirable if not for the months it added to Liang's sentence. The Ninth Circuit was less impressed than the district judge, and Liang will be resentenced as if he had normal eyesight.

The International Court of Justice in the Hague is the U.N.'s highest court, often referred to as the World Court. It issued a historic decision today in the case of 52 Mexican nationals on death row in the U.S. who alleged they hadn't been provided with their right to consular assistance pursuant to the Vienna Convention. The Court ruled that the United States violated the rights of 51 of the prisoners and ordered their cases be reviewed.

The text of the judgment is here (pdf.).

Major Kudos to Sandra Babcock, who did amazing work to get the Mexican government to file the case --after which she prepared it, argued it and won it!

[comments now closed]

The International Court of Justicein the Hague will issue its decision Wednesday in the case of 51 Mexican nationals on death row in the U.S. The case is Avena and Other Mexican Nationals (Mexico v. United States of America). The suit concerns the U.S.’s failure to comply with the Vienna Convention’s guarantee of allowing foreign nationals access to consular officials prior to interrogation. From one of our earlier posts on the case:

The government of Mexico, in a direct challenge to the Bush administration, asked the International Court of Justice today to block the executions of 51 Mexicans on death row in the United States. The court, the highest tribunal of the United Nations, sits in The Hague. It has no enforcement powers. But if it issues an injunction, the United States must choose whether to respect or defy its judgment.

From John Wesley Hall at Fourth Amendment.com:

The Supreme Court held today that the border exception does not require reasonable suspicion for a gas tank search. The reasonable suspicion standard for searches of the person was imported by the 9th Cir. into overly intrusive vehicle searches, and the Supremes declined to extend the rule that far. The fact of a delay at the border of 1-2 hours is not
unreasonable and "to be expected." United States v. Flores-Montano, 2004
WL 609791 (U.S. 2004).

In the overall scheme of things, this will not have much effect because customs officers do not have the time to search every car, and they will usually have reasonable suspicion before they do an overly intense search of the car. We lost, but I don't think that this is a big deal.

John is the author of the text book, Search and Seizure (3d. Edition), published by Lexis.

If you live in Louisiana, Texas or Mississippi, you just lost an important right: the right to be free from an intrusion and search of your home unless the police have a warrant. In a ruling two dissenting justices called "the road to hell," the 5th Circuit Court of Appeals has ruled that police may search homes and buildings for evidence without a warrant.

The 5th U.S. Circuit Court of Appeals ruled that police do not need an arrest or search warrant to conduct a swift sweep of private property to ensure their own safety. Any evidence discovered during that search now is admissible in court as long as the search is a "cursory inspection," and if police entered the site for a legitimate law enforcement purpose and believed it may be dangerous.

Prior to this ruling, police were only allowed to make a cursory inspection of someone's property if they were there to arrest someone.

"I have no doubt that the deputy sheriffs believed they were acting reasonably and with good intentions," Judges Harold DeMoss Jr. and Carl E. Stewart wrote. "But the old adage warns us that 'The road to hell is paved with good intentions.' "

The ACLU weighs in:

"This decision is the latest roll-back of safeguards to protect the people from being at the mercy of a police state," said Joe Cook, executive director of the ACLU of Louisiana. "Allowing law enforcement to search homes without probable cause or any warrant makes a dramatic and dangerous departure from one of our most fundamental American freedoms."

The case is United States v Gould (2004, CA5 La) 2004 US App Lexis 5505 (pdf).

The Supreme Court has said, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980). We think this ruling runs afoul of that principle.