Friday, June 5, 2009


Much as I try, there's just too much out there for me to carry on at length about everything that catches my eye. So here's a bits and pieces collection from the last few days.

Credit Doug Berman over at Sentencing Law and Policy for finding this article in the Wall
Street Journal on how Sonia Sotomayor's "Criminal Rulings Tilt to the Right of Souter's." That won't be a surprise to anyone who's been reading and believing what I've written about her here and here and here. As the Journal notes,
New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.
Maybe that's why. Maybe it's tied into that background of struggle and bootstraps that makes her so (what's the word? Oh, yeah) empathetic. However she got there, She
"has contributed greatly to law enforcement in New York" as a judge, said Leroy Frazer Jr., first assistant district attorney in Manhattan and a former colleague of Judge Sotomayor.
A friend likes to point out of judges that "none of them were put there to help us." But, gee, we could have hoped that Obama would have found one who wasn't going to make things worse.

You thought prison was a growth industry? Maybe so. But you can always cut back on some things. It's tough, maybe to balance the budget of a prison system by buying fewer paper clips. But surely you can save on the really unimportant stuff - like feeding the inmates. At FindLaw, they've posted this AP report about how prison systems around the country (Georgia, Alabama, Tennessee, and our own Ohio are examples they cite) are "slimming down inmate meals." This follows the news (here and here) that in January a Sheriff in Alabama was jailed for serving insufficient food to inmates and pocketing the difference between what the state gave him for food and what he spent. (Alabama law actually allows that.)

Gruel, anyone?
It almost never happens, but twice in the last week federal courts have granted habeas corpus relief because there just wasn't enough evidence of guilt.

Gerald Brown was convicted of aggravated murder in Franklin County Common Pleas Court for aggravated murder and a variety of other offenses including aggravated robbery, with each count of the indictment accompanied by firearm specifications. (The case was charged as a death penalty case, but the panel that heard it decided on a life sentence.) The federal district court denied all relief in habeas corpus, but the Sixth Circuit said, in Brown v. Konteh, that even with AEDPA deference a couple of the firearm specifications were supported by no evidence whatsoever and granted relief on those. It's hard to see how the partial win will do Brown any good, and that may be (an unspoken) part of the reason the court was willing to grant that limited relief. Still, it isn't every day that you see a habeas court grant relief on the basis that the evidence doesn't support the conviction.

Or maybe it is every day. In 1988, in Ocean County, New Jersey, Paul Kamienski was convicted of murder. Last week, in Kamienski v. Hendricks, the Third Circuit said that even with all the deference to New Jersey courts required by AEDPA, and looking at the facts and drawing inferences most strongly in favor of the prosecution,
no reasonable juror could conclude that the evidence admitted against Kamienski at his trial established that he was guilty of murder or felony murder beyond a reasonable doubt, and the New Jersey courts’ conclusion to the contrary is an unreasonable application of clearly established Supreme Court precedent.
It's an extraordinary decision, not least because it flies in the face of the Heinous Crime Rule. (If the crime is sufficiently heinous, there's no such thing as reversible error.)
In Chicago, the public defender is out of money for death penalty cases and asking to have death taken off the table in some 60 cases. Stories about this have been circulating for a couple of months (see here, for instance), but it's big news right now.

The problem of underfunding public defense - and especially capital defense - is real and nationwide. I talked about it here, and it will surely come up again because it's not going away anytime soon (say, within our lifetimes). But let's give some praise to the Cook County PD for taking this step. The problem may not be the fault of the courts, but the courts have to do something about it.

Finally, at least for the moment, The BLT: The Blog of Legal Times reports that
Two former Alaska state representatives who were convicted on corruption charges in the probe that ended the political career of Sen. Ted Stevens should be released from prison because the Justice Department has found information that should have been disclosed to the defense prior to trial, government lawyers announced.
And so, we have more in the extraordinary and continuing saga of the Obama adminstration's Justice Department demonstrating that the Bush administration's Justice Department violated discovery rules right and left in its investigation and prosecution of Republican officials and office holders in Alaska.

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