Monday, May 10, 2010

Overwhelmed By the News Cycle

I was going to do an Ohio update.
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We have a government murder scheduled for Thursday morning.  Michael Beuke is due to be poisioned.  If there's a problem with the thiopentol (the anesthetic that's the basic killing method here now), then they go to Plan B.  But Plan B is problematic for Beuke, as Andrew Welsh-Huggins reported for the AP.
Beuke says a barbiturate he takes for a seizure disorder could limit the effectiveness of midazolam, the first drug called for in the backup method which injects drugs into muscle.
Of course, nobody's ever used the back-up plan, so if it does get used - whether on Beuke or someone else - Ohio will be conducting human experiments in murder.
There'll be a hearing in Beuke's case Monday afternoon in Columbus.
Joseph Mengele's ghost will be watching.
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Former Ohio Attorney General Marc Dann entered Alford pleas on Friday to a pair of ethics violations.  The claim is that he illegally funneled campaign and office transition funds to staffers.  He was fined $1,000 and ordered to do 500 hours of community service.
Dann was in office just briefly, forced to resign after stories of sexual harassment and frat party behavior by Dann and his staff.  There's really not much to it.  Hubris, immaturity, foolishness.  He and his pals were little more than an additional embarrassment to a state who's prior governor paid $4,000 in fines as a result of his admission of ethics violations.  
Maybe that's why the plea got so little coverage in the media.  But it should have gotten more.  Government corruption takes many forms.  There's the great and the petty.  Dann's was petty, small potatoes.  But the Attorney General is the chief law enforcement officer of the state.  Corruption there is never minor, should never be seen as trivial.
If the Rule of Law (one of the themes of this blawg, it seems) is to be meaningful, it has to be top down.  And, frankly, ethics violations by government officials are more troubling than the slap-on-the-wrist sentences they typically draw.
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Anthony Sowell's alleged home, the place where they supposedly found all those bodies, is the subject of the latest litigation in his case.  Sowell, you'll recall, is facing 85 counts derived from the discovery, it is alleged, of 11 bodies of raped and murdered women in his home.  We learned a couple of weeks ago that Judge Saffold had been removed from the case.  On Thursday, newly assigned judge Dick Ambrose had his first hearing in the case.
He rescheduled the trial, which was pretty much a given.  He's taken under advisement the request to issue a gag order.  But as I said, Sowell's home is the focus of the most interesting jockeying.  Karen Farkas from the Plain Dealer explained.
The judge also did not rule on a request to reduce protection of Sowell's home, which was filed by assistant county prosecutors Richard Bombik and Pinkey Carr.
The prosecutors said a fence costing more than $15,000 was put up around the home after Sowell was arrested and the Cleveland Police and Cuyahoga County Sheriff's Department are sharing a 24/7 detail outside the house. They would like to modify that to nighttime hours.
Sims said after the hearing the house needs to be protected because of threats to burn it down. 
Cleveland's broke, which could help focus the decision.  It wouldn't be the first time that fair trial stumbled over finances.
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Like I say, I wanted to write about Ohio.  But then Obama decided that he needed to jump into the Miranda fray.  And then we learned that the rumors are true and Elena Kagan is to be nominated to the Supreme Court in the morning.
Kagan is, by all accounts, smart.  She's likely to get confirmed without too much trouble.  And she's never been on the bench, which is a nice change of pace.  She's also, alas, yet another creature of the east coast educational elite who's never represented real people.  No surprise there, of course.
The last Justice who'd ever practiced what a friend used to describe as "little guy law" was Thurgood Marshall.  Representing the little guy is not, after all, its own reward.
On Saturday, the New York Times got together 10 prominent and formally diverse (woman, Asian, gay, veteran, immigrant) voices to advance their theory of the sort of person who should be appointed to the the Supreme Court.  As Orin Kerr pointed out at The Volokh Conspiracy yesterday, many of these folks demonstrate the point that
when someone makes an argument that a President should select a Supreme Court nominee with a particular experience or worldview, there is a very highly likelihood that the person making the recommendation has that exact experience or worldview.
That much said, Norm Pattis, trial lawyer, has led the blawgosphere demands of a trial lawyer for the court.  I happily seconded the notion, though with not even a hint of expectation it would happen.  Presidents in general, and Obama in particular, may make appointments for diversity, but it's diversity aimed at satisfying interest groups, not at fundamentally changing the game.  Norm's Gerry Darrow was never going to be appointed.  Oh, sure, Obama wouldn't want the fight that would go with the appointment.  More to the point, though, he has no interest in rocking boats.
His "change" was to be one of style, manner (and of course pigmentation and backstory).  To think that it was going to be systemically revolutionary?  Nah.
You say you want a revolution?  (We all want to change the world.)  Think populism.  Think tea party.  Then imagine Sarah Palin for the Court.
Of Kagan?  Apparently a moderate liberal.  No serious concern for civil liberties.  No serious concern for checking the power of the executive.  How do we know?  Not from her speeches or law review articles and not from her filings as Solicitor General.  We know because if she were a firebrand with ideas and commitments outside the institutional mainstream, if she were genuinely interested in the little guy as more than an academic construct, if she were something other than a smart, establishment, lawyer with an ivy league (or equivalent) background, she would have been dangerous.
The one thing nobody in power wants to put on the Court, is someone dangerous.  And we define "dangerous" in this context as "someone who doesn't think - at least in broad terms - the way the power elite do.  And we measure that by searching for someone like us - or like those of our base we want to placate.
Elena Kagan.  You get what you elected.  And you shouldn't have expected anything else.
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Which brings us to the final piece of the news.  Here's the beginning of the story from the Times.
The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights.
I haven't weighed in on the debate over whether interrogators properly decided they should read Faisal Shahzad his Miranda warnings after several hours of interrogation.  Obviously, the warnings didn't stop him from talking.  Equally obviously, it seemed to me, they should have read him his rights - if they wanted to use his words against him in court.
I don't know how many times clients have explained to me that they can't be prosecuted because they weren't read their rights.  Were you interrogated?  I ask.  They never asked me nothing.  Then so what?  They don't get it.  
Doesn't every cop on TV have to read a Miranda card immediately upon arresting someone?  Sure.   But it's a literary trope.  Let me be clear.  Miranda is a constitutional requirement only for a person (1) in custody (courts find almost nobody to be in custody for Miranda purposes, but we're talking judicial theory here, not judicial practice), (2) being interrogated, and (3) from whom the authorities hope to get a statement that they will use at trial.
The law does not require Miranda before questioning in non-custodial settings.  The law does not require Miranda when there is no interrogation.  And most emphatically, the law does not prohibit custodial interrogation without Miranda warnings.  All it says is that statements made during such interrogation cannot be used at trial (with certain exceptions).  And, of course, even that rule doesn't apply when the "public safety exception" of New York v. Quarles comes into play.
And yet.
Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.
He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions. 
Please.  No, they really don't.  Not unless we're talking about exceptions to the quasi-policy against waterboarding. 
And, frankly, as Orin Kerr explains, it's very far from clear that Congress can make any such exceptions and have them survive constitutional muster (not that such niceties seem to be much of a concern to either Presidents or Congress).
As I suggested above, those who believed Obama had any interest in change that was actually revolutionary, were delusional.  (I only suggested that above; I'm saying it now.)  One had hoped, though, that he was not so much interested in leading from the rear.

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