First Monday in October

They're back.

It's the First Monday in October (title caps because it's a special day like Christmas Day or Flag Day or the Day of the Dead) which means the Supremes are in session.  (Well, the session is done for the day, but you know what I mean.)

God help the Republic.

As everyone who writes generally about the Court (think mainstream media) keeps pointing out, this year's docket, at least as so far set, seems to have less focus on corporations and big civil cases than in the last couple of years.  (Though the grizzly banging on the door is the Affordable Care Act.)  Rather, this is supposed to be the year (except for the Affordable Care Act) of criminal law.

God help the Republic.

Adam Liptak in his preview of the court's year (with reference to the Affordable Care Act), says that the focus is on First Amendment and criminal law.  He quotes Eric Freedman, law prof at Hofstra, fan of the First Amendment and important player in capital defense and especially capital habeas circles.

The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end.

Well, I suppose there's some truth to that.  Of course, it's also positioned itself to damage the quality of the criminal justice process from beginning to end.  (Not to mention, so I won't, the Affordable Care Act which of course is/isn't constitutional.)

Anyhow, as the term begins, a brief look at what will be up for oral argument this week.

Reynolds v. U.S. is a narrow issue.  

Because of how scared we are of them, sex offenders have to register and then there are all those notification provisions.  Along with the state requirements that are usually what we talk about, there are federal ones.  Reynolds registered as he was supposed to in Missouri, but when he moved to Pennsylvania, he didn't.  The feds said he had to, and brought charges. Reynolds said that the law can't be made retroactive to him until the Attorney General adopts rules that say it is, and while there is such a rule, he says it wasn't properly adopted.  (Does this seem sufficiently narrow?) 

The thing about narrow issues is that they sometimes morph.  The John Roberts who appeared before the Senate Judiciary Committee for confirmation hearings a few years ago emphasizing "judicial modesty" and the importance of not reaching out to get at issues not presented would never let that happen.  That John Roberts, of course, does not sit on the US Supreme Court.  The one who does, the one who's Chief Justice, has a different approach.

Of course, this case may generate a ruling exceptionally narrow and of little significance.  On the other hand.

Howes v. Fields deals with two things the Five Who Decide don't much like: Miranda and habeas.

OK, it's not really about habeas, that's just how the case got to the Court.  Here's the set up.  Randall Fields was doing time in a local Michigan jail for disorderly conduct when the corrections officers took him to a conference room where a couple of deputy sheriffs interrogated him about a sex offense with a minor.  They didn't give him Miranda warnings.

The formal rule of Miranda is that when you're in custody and questioned, the cops have to give you the warnings or what you say can't be used in court (and yes, it's more complicated than that and there are exceptions).  Clearly, Fields was in custody (he was in jail, after all).  But was he in custody for Miranda purposes?  You know, the kind of custody where he couldn't just leave.  After all, he could have just left.  Except he couldn't have.  Except the deputies told him he could.  Except that they also told him he could later - once corrections officers came to take him back to his cell where he would/wouldn't be in custody.

My head hurts.

Michigan courts didn't see a problem here.

The district court and the 6th Circuit did.

SCOTUS?  The smart money is that Fields will lose.  Why?  Because the He's-a-Fucking-Sex-Offender Rule which says he should never get relief will likely trump Miranda which the Five Who Decide thinks should never apply anyhow.  Oh, and it's the 6th Circuit, which always gets reversed.

Maples v. Thomas is the Cory Maples case I've written about before.

He's the guy who got screwed by high priced lawyers at Sullivan & Cromwell who dropped the ball on his case.  Maybe it's so egregious that SCOTUS will give him another shot.

But rules are rules and when your lawyer screws up, even if you didn't choose the lawyer and didn't want the screw up - well, somebody has to die.  And it ain't going to be the lawyers from S & C.

Martinez v. Ryan is about the right to counsel.

Here's the basic rule (spoiler alert - I'm oversimplifying again).  You're entitled to a lawyer when you'recharged with a crime and can be locked up.  Once you're convicted, if you have an absolute right to an appeal, you're entitled to a lawyer for it.  If you have a right to a second appeal or any other sort of thing, you're not.  You may get one.  Courts might be generous.  The state might authorize it.  But you have no federal constitutional right.

Here's the other basic rule.  You have a right to effective assistance of counsel at that trial and from that lawyer on a first appeal, by the way.  You're not entitled to effective assistance from any other lawyer you might have.  The measure of effectiveness is preposterously low, but that's a different issue.

So here's what happened.  Luis Martinez was on trial and convicted.  He wanted to argue that he was denied effective assistance of counsel at trial.  The only way to do that under Arizona law was by a post-conviction proceeding, not by direct appeal.  He had a lawyer for that proceeding, but the lawyer didn't raise that issue.  He tried to raise it later, and the Arizona courts said that he should have raised it before, so he was out of luck.  He tried to argue that his post-conviction lawyer was constitutionally ineffective, but nobody gave a rats ass because he wasn't entitled to have that lawyer do even a marginally good job.

Except that was the only time he could complain about his constitutionally ineffective trial counsel.   Except he didn't.

Except that was because . . . .

Aw hell.  So far, Martinez has drawn the short straw every time.

There are other cases up for argument this week, but if you think I'm going to write about Medicaid or copyright or whether a religious school can discriminate against its teachers on the basis of the "ministerial" exception to the American's with Disabilities Act, you're nuts.

And of course, there's no need to mention the Affordable Care Act.

Anyway, they're back.

God help the Republic.

No, You Prove It

Once you've been found guilty, the rules change.  Of course, rules are iffy things to begin with.
Consider Miranda v. Arizona.  You know, the case that says:

1. When you're in custody, and
2. Police want to interrogate you,
3. They have to read you your rights, and
4. You have to understand your rights, and
5. You have to voluntarily agree to give them up, and
6. If you then say something incriminating,
7. It can be used against you in court.  But
8. Only if the government can satisfy a "heavy burden" of
9. Demonstrating by a preponderance of the evidence steps 3, 4, and 5.

Or, of course, not.
Because "custody" isn't what you or anyone else thinks it is.  According to the courts, a person is in custody when a reasonable person would believe himself free to leave.  When you've been stopped for speeding and the cop is asking if you've had much to drink?  Nope, not custody.  When the cops knock on your door and ask to speak with you?  Nope, not custody.  When they drive you down to the police station and put you in a little room with no windows and a door that a burly guy with a badge and gun is blocking but haven't actually told you you're under arrest?  Nope, not custody.  As Scott Greenfield said yesterday in a slightly different context,  judges know all that's nonsense, but it's what they choose to believe when they are in the courtroom being judges rather than out on the street being asked questions by a cop.
And then there's that whole understand your rights thing.  As if it matters.  Did you ask for an explanation?  No?  Then you must have understood.  Oh, wait, you did ask for an explanation?  Did the cops offer one?  Then you clearly understood.
Did you voluntarily give up those rights?  The cops lied and told me that they found my fingerprints on the gun when they didn't; so I gave up my rights based on false information; that's not voluntary.  Wrongo.  The cops promised me that I wouldn't be charged , you know, and said that I'd help myself if I told them.  So I did.  That can't be voluntary.  Wrongo.  The cops threatened to beat the shit out of me.  Maybe.  Though it's your word against theirs.  And they're likely more credible to the court than you are.  And they only have a "heavy burden of proving that your waiver was voluntary, so you have to prove it wasn't.
But you said, "I should speak to a lawyer."  And they kept after me.  Ah, but you didn't say you refused answer questions until you spoke to a lawyer.  It's magic words.  You have to say the right ones.  And nobody will tell you what they are.  (Norm Pattis did take a shot at it this morning.)
And, by the way, how many accused criminals understand, "Having had these rights explained to you, do you waive your rights and agree to speak with us?" as a question (if it happens to be asked) that amounts to "You gonna give it all up and say something now so we can hang you with it?"
So the truth is that the government's "heavy burden" of proving that any custodial statement was made only after a knowing and voluntary waiver of the rights to silence and counsel is, and pretty much has been for years, just so much bullshit.
And now it's official.  Yesterday, in Berghuis v. Thompkins the Supreme Court spoke and (albeit by a 5-4 vote) explained that the burden on the government is, indeed, heavy.  And that in order to prove that the defendant understood his rights and chose not to waive them, the government must . . . . Well, actually nothing.  The government carries it's heavy burden as long as the defendant doesn't prove that he said, "I will not speak to you."  
While the Court continues to insist that the burden of proof is on the government (and is "heavy") the Court explained that the government wins as long as the defendant doesn't prove that the government loses.  And the only proof that counts is that the defendant spoke magic words - while in custody.
But I don't really want to talk about Thompkins.  Read Pattis and Horowitz and Greenfield and Sarah if you want to know what we all think about it.
I want to talk about innocence, and that takes me back to where I began.

Once you've been found guilty, the rules change.

See, up to the moment when the jury says the defendant is guilty, up to that moment, the prosecution has the burden of proving guilt beyond a reasonable doubt.  That's true (at least in theory) in federal court, in state courts, in municipal courts, in military courts martial, in pretty much everywhere.  Oh, the rules of evidence vary a bit from place to place, and procedures change, but the fundamental rule - they gotta prove it - that's core.  (Once again, I'm talking theory here.)
But once the jury (or the judge where there is no jury) says "Guilty," that all changes.  That rule, the presumption of innocence, the "They-gotta-prove-it," disappears.  From that moment on, even in theory, the burden is on the defendant to show something else.  And that burden is especially high if the something is innocence.
Take Kevin Keith.  He's on death row in Ohio.  He was convicted of shooting six people, three fatally, in revenge for a member of the family being a police informant in a drug investigation.  As happens, the case was appealed and the Ohio Supreme Court affirmed the conviction and death sentence.  The state's case was, frankly, shaky to begin with, though it was enough to convince the jury.  But as it happens, there's a wealth of evidence, most of which the state knew and concealed at the time of trial, indicating that (1) Keith didn't do it, and (2) Rodney Melton did.
Here's a sample. Melton apparently was hired to do the killing.  Melton knew information only the killer could have known.  At least one survivor explicitly and insistently said that Keith wasn't the killer.  The state presented perjured testimony, asserting that a nurse who did not exist told police that one of the victims named the killer as Kevin.  (The actual nurse, one who did and does exist, says she was never told any name.)  And he had a substantial alibi.
OK, as I routinely say at this point, I don't know what happened that evening in February 1994.  What I know is that if it heard all that evidence, it's remarkably unlikely a jury would have found Keith guilty; and it's even less likely he would have been sentenced to die.
But now he's got to prove his innocence, and the courts have been, shall we say, unwilling to let him do that.  Gee, the courts said, there was enough evidence at trial to convict him, so there's no need to look at evidence that shows he's innocent.  (I'm paraphrasing, but not making it up.)  So Keith's case wandered through the Ohio courts.  Yesterday, the Supreme Court refused to hear his appeal.
He's scheduled to be executed September 15.
Keith, at least, is still in the system.
Kamau Marcharia's been out of it for nearly 40 years.  Except he's not.
Back in 1964, when he was 19 (or maybe 16, 17, or 18), and living in New Jersey, Marcharia (whose name back then was Robert Lewis) was convicted of rape, kidnapping, assault, and maybe a couple of other charges.  Here, taken from a 1973 law review article on the case by attorney and crime fiction novelist Andrew Vachss, is a summary.

Two young people were the victims of a connected series of particularly vicious and senseless crimes. Indictments were returned against seven defendants, two females and five males. Both females, and two of the males were apprehended at the scene of the crime. Another male was arrested nearby, allegedly in act of escape. The remaining two defendants, Esaw Mitchell and Robert Lewis, were brought to trial seven months later. Their cases were not severed. The male victim of the crimes placed Lewis at the original scene based on some highly dubious observatory techniques. The female victim of the crimes placed Lewis at the original scene, but not at the scene of the kidnapping and the rape which followed. One of the previouslyconvicted rapists placed Lewis at the original scene and also testified that Lewis left prior to the kidnapping and rape. One of the female defendants did place Lewis at the scene of the kidnapping and rape . . . .

The State did not even contend that Lewis raped the victim, but charged that he could be convicted as an "aider and abettor" of the crimes.

Robert Lewis was convicted of atrocious assault on the male victim, of the kidnapping and rape of the female victim, and carrying a concealed weapon (found in the car of the other defendants when Lewis was not present).

If you look at that and go, "Huh?", you're not alone.
In fact, Marcharia was released in 1973, placed on parole with no conditions.  He spent 35 years as a community organizer.  Since 1998 he's had a seat on the County Council in Fairfield County, South Carolina.  He is, by most accounts, a respected, responsible, honored member of the community.  (Disclosure, I learned about Marcharia from an old friend of mine who's a friend of his.)
But see, there's that 1964 conviction.  And the rape thing.  And South Carolina's sex offender registration and notification law, which is the sort of thing nobody'd even thought of in 1964, is being used against him.  And because he's running for the state legislature, and because he's successful but not part of the establishment, there are serious efforts underway to undermine him.  And to pass laws making him ineligible for public office.
The remedy?  Why, prove he's innocent.  Or get him an unconditional pardon.  Or something.  Which has proved, for some years now, a daunting task.  Though if the case were tried today, with what we know, he'd probably be acquitted.  Which is, once again, the point.
And of course there's Cameron Todd Willingham.  If Rick Perry and John Bradley get their was, it's unlikely we'll ever really get to the bottom of his case.
And how many others?
But they've been convicted.  That means the burden's officially on them.  And the government sets it up so that they pretty much can't meet it.
There's a kind of logic at work here.  It's probably fair that once you've been convicted you don't get to keep making the government prove its case again and again.  You want to undo it, you have to show a reason.  I don't have a problem with that.
My problem is that the system (state, federal, whatever) is geared to ensure that your reasons won't get heard.
It's not enough to be innocent.  You have to have an angle.  And some resources.  And a hell of a lot of luck.
Too few do.
Ask Kevin Keith (while you still can).  Ask Kamau Marcharia.  I'd tell you to ask Todd Willingham, but it's too late for that.




Read more about Kevin Keith's case here.
Read more about Kamau Marcharia here and here.

Miranda, Continuity of Counsel, Fundamental Fairness, Jamie West and Scott Turow

I've got something of a love/hate relationship with Scott Turow.  And it's all about the rule of law.

Like virtually every other soon-to-be law student, I read One L, his fictionalized account of his first year at Harvard Law School. Perhaps it's because I was older, preparing to switch sides in the university classroom from teacher to student, but unlike many readers and soon-to-be law students, I didn't find the book frightening.  I found Turow's responses so naive and annoying that they overwhelmed the nastiness.  In any event, it left me less than enthusiastic.

On the other hand, I thought Presumed Innocent, despite the weirdly contrived plot gimmick, to be absolutely terrific.  The courtroom scenes were rendered brilliantly, the prose just enough of a touch above the norm for crime fiction.  I was a fan.

Then Turow wrote an article for the New York Times Magazine discussing legal ethics and legal education.  Along the way, he mentioned the ethics charges that had been brought against him as an AUSA.

Indeed, the most dismal -and disappointing - moment I have endured as a lawyer arose last year in a sharp dispute over ethical duties. In June 1987, a Federal appellate court in Georgia rebuked me severely for my role as a United States prosecutor in allowing a defense lawyer who was seeking to cooperate with the Government to secretly tape-record a conversation with one of his clients about a drug-selling scheme that the lawyer admitted he and the client were planning. When I protested, the court responded by suggesting that my conduct regarding the defense lawyer might have constituted obstruction of justice. Various public officials and scholars spoke out in my defense, and, after a full investigation, the Public Integrity Section of the United States Department of Justice publicly vindicated me and my superiors in the Justice Department who had directed my actions, stating that the conduct in question fully complied with Federal law. I believed - and continue to believe - that neither clients nor lawyers have the right to plan crimes secure from government law-enforcement efforts.

When I read that back in 1988, I was in my first year as a lawyer in private practice. I was struck then, and am struck now, reading it again, that when your boss declares you behaved ethically in doing his bidding, that's vindication. It's not that I think Turow did in fact breach the ethics of the profession. I don't know nearly enough about the situation to weigh in on it. But I knew then, and know now, that there was something wrong with Turow's analysis. I wrote a lengthy letter to the Times laying out my position. They published three short paragraphs.

I agree with Scott Turow's call for serious exploration, in the law schools and out of them, of ''an understanding of the moral issues that govern law.'' But I am also concerned about what seems to me a misunderstanding, by Mr. Turow and much of the profession, of what those moral issues are.

When Mr. Turow reports his public vindication from charges of unethical conduct and provides as evidence a statement by the public integrity section of the Justice Department that he and his superiors in the Justice Department had not violated any law, he shows a blindness to the issues he addresses. It is the same blindness that former Attorney General Edwin Meese 3d showed in his similar declaration that he was vindicated when the independent prosecutor decided not to seek an indictment against him.

It doesn't matter, here, whether Mr. Turow or Mr. Meese actually did violate any rules, laws or ethical standards. What matters is that neither one can see that it is possible to adhere to every rule and code around and still be immoral.

I'm not sure I was particularly fair to Turow in those paragraphs (or in the much longer letter which I cannot check because I no longer have a copy - or cannot find it if I do), though I think the point itself sound.

Some years later, Turow wrote Ultimate Punishment, which I think one of the very best books on why capital punishment should be abolished.  If the state is going to be in the business of killing people, it should bear the burden of proof regarding the need/virtue/wisdom/something for doing so.  Starting as an agnostic on the question of abolition, Turow studied the death penalty in the real world and concluded that the state could not meet that burden.  Amen.

All of that is by way of explanation for my love/hate relationship.  If it seems a set up for a review of Turow's new book, Innocent, it's not.  I intend to read Innocent, but I have not yet done so.  Perhaps a review will come in time.   But not today.

No, what led me to this today is that the Times just reprinted on-line (is that an oxymoron? a mixed non-metaphor?) an op-ed Turow wrote back in 2000 shortly after the Supremes decided Dickerson v. United States, holding that Miranda warnings were constitutionally mandated.

Turow praised Dickerson's conclusion.  He noted that despite years of whining and posturing, Miranda seems to have had little real-world consequence.  Those arrested still confess an astonishingly large percentage of the time.  (That's true even of innocent arrestees, but it's a wholly different issue.)  And those confessions are admitted in court nearly always.

Nor is my experience idiosyncratic. After a couple of hours of computer research, I could not find a single reported decision in Illinois in the last 12 months in which a confession was suppressed or a conviction reversed because of a Miranda violation.

To a great extent, as the court recognized on Monday in Dickerson v. United States, courts and cops have accommodated themselves to the rule. The more conservative justices who ascended to the Supreme Court after the Warren years have narrowed the decision's grand mandate, refining, for example, what amounts to interrogation for Miranda purposes, or sometimes allowing subsequent statements to be admitted even if a defendant initially claimed his Miranda rights.

As for the police, the court is right when it says that law enforcement practices have adjusted to Miranda's strictures. As a prosecutor, I never noted that federal agents much resented Miranda, even though some, like those in the Internal Revenue Service, were required to give warning when simply questioning someone.

In eight years, I never had a statement excluded from evidence because of the Miranda rule. The agents accepted the standard and often applied it skillfully. I remember a veteran F.B.I. agent dispensing the Miranda warnings to a suspect before we took him before a grand jury, a practice required by the Justice Department. As one of my colleagues commented, the warning sounded so avuncular, you just about expected the agent to put his arm around the prospective defendant's shoulders. 

Turow's point was clear.  The bad guys don't go free because of Miranda.  Indeed, even Miranda did not.  After the Court threw out his confession, he was tried again and convicted again because he had confessed another time - in a setting to which Miranda  did not apply.  Or consider the alleged would-be bomber of Times Square who apparently confessed for days, at length, warnings (which were eventually given, after a period of interrogation Miranda permits) be damned.
But Turow's point wasn't that Miranda should remain the law because it's worthless.  Rather, he said, it's vital.  Miranda, he says, "is an expression of some fundamental concepts about the law we all should hold dear."  He mentions equality (everyone gets the warnings, rich and poor, educated or not, powerful or powerless) and then gets to the meat of the matter.

But cops should recognize that no matter how noisy their protests, or how much they chafe, they are always going to be subject to civilian authority. Catching bad guys is important, but it is not the only thing this society values; we also care about certain minimal standards of decency in the government's treatment of citizens and limits on the authority of the state.

The requirement to recite Miranda is an important reminder to the police that the war on lawlessness is always subject to the guidance of the law. This week's decision, by a court that is not perceived as particularly hostile to law enforcement, is a needed reaffirmation of that message.

Which is, of course, the real point.  More relevant now than ever, perhaps, as the war on drugs morphs into the war on sex and into the war on terror - all of which are variants on the war-on-whatever-we-can-be-made-to-fear.
And which brings me to Georgia and the prosecution of Jamie Weis.  He's been sitting in jail in Georgia, awaiting trial, presumed innocent, for more than four years.  The State wants to kill him one of these days.  For some time, he was represented by Robert Citronberg and Thomas West, Atlanta capital defense lawyers.  Then the state ran out of money to pay them.  What to do?
In November 2007, the prosecutor had an idea: Take Citronberg and West off the case and appoint the state public defender to represent Weis.  According to Marcia Coyle, writing in the National Law Journal, Judge Johnnie Caldwell thought that a good plan.

"This court is going to do something it has never done, which I believe it has the inherent authority to do under the Constitution of this State, as well as under the rules of the Uniformed Rules of the Superior Court, and that is in this instance I am going to remove defense counsel from this case," said Caldwell, who resigned last month amid an investigation into allegations he sexually harassed a female divorce lawyer.

Weis is now before the Supreme Court.  He claims that he's been denied his right to counsel and his right to a speedy trial.  The speedy trial issues are what they are.  The right to counsel claim is something else, and a matter of grave importance.

Weis wants the justices to make clear that "lawyers are not fungible," said lead counsel Stephen Bright of the Southern Center for Human Rights in Atlanta.

Indigent defendants, Bright said, have the same Sixth Amendment right to continuity of counsel once the attorney-client relationship is established as do those defendants with the means to hire lawyers. That right, he and his colleagues contend, was violated in the Weis case, when two appointed attorneys were removed because the state ran out of money to pay them. "I think we have the complete breakdown in this case," Bright said. "The legislature just didn't put enough money into the system and it ran out of gas."

Indigent defendants may not have a right to counsel of their choice, Bright argues, but once they have counsel, the state cannot remove them at its convenience.

In the U.S. Supreme Court, Bright argues this is not a counsel-of-choice issue but an issue of continuity of counsel. Only Georgia, Louisiana and two federal circuits -- the 2nd and 6th -- refuse to recognize that, once the attorney-client bond of trust and confidence has been established, counsel cannot be removed absent some extreme circumstances. "There's a whole string of [lower court] cases saying, unless the lawyer is just disabled or engages in contemptuous behavior, you can't sever the relationship," Bright said. "This wasn't about Weis' seeking preference of counsel but opposing counsel moving to remove counsel. I think the Court will be offended by that."

Criminal law scholar Joshua Dressler of Ohio State University Michael E. Moritz College of Law and ethics scholar Monroe Freedman of Hofstra University School of Law said Bright's distinction is an important and valid one. Freedman is more emphatic, saying, "It is so clear this was a violation of fundamental rights that it should be the easiest of cases and should never have occurred in the first place."

We're talking here, as Turow was in the Times Magazine and the op-ed and Ultimate Punishment  (see how I cleverly wind back to where we began) about the rule of law and a sense of fundamental fairness.
All the more reason to suspect that the Court won't hear the case.  Or that, if it does, Weis will lose.
And if he does, we all do.
Which is, once again, what Turow was saying back in 2000 on the op-ed page of the Times.



H/t John Wesley Hall

Overwhelmed By the News Cycle

I was going to do an Ohio update.

* * * * * * *

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.

* * * * * * *

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.

* * * * * * *

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.

* * * * * * *

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.

* * * * * * *

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.

Sex, Guns, & Terrorism

The Supreme Court is ready to crank up for the year (actually, it already cranked with the unusual early argument in Citizens United v. Federal Elections Commission). Next week it will be hearing oral argument in nine cases, four of them criminal:

• Maryland v. Shatzer - regarding just how long an invocation of Miranda rights lasts
• United States v. Stevens - where the government asks for a new exception to the First Amendment for videos of animal cruelty (blawged about here)
• Johnson v. United States - concerning the Armed Career Criminal Act and state convictions for battery
• Bloate v. United States - about how to calculate time for purposes of the federal Speedy Trial Act

In the weeks after that, the Court will hear a number of other cases we'll keep an eye on. But the news today is that the court added ten cases to its docket just two days after Adam Liptak wrote in the Times about the Court's "plummeting" docket. Moreover, six of those cases are criminal and all six deserve special attention here:

• Carr v. United States concerns the retroactive application of the federal sex offender registration and notification law. Specifically, Carr asks the Court to say that prosecution for failure to register when the relevant acts predated the law is unconstitutional. Retroactive application of Ohio's law (and a congeries of related issues) will be argued in the Ohio Supreme Court on November 4.
• McDonald v. Chicago asks whether the Second Amendment prohibits the states from unduly infringing the right to bear arms as it prohibits the federal government. The Court decided the federal issue last year in District of Columbia v. Heller, but application to the states remains an open question.
• Holder v. Humanitarian Law Project & Humanitarian Law Project v. Holder are cross appeals concerning the constitutionality of the law making it a crime to provide material aid to terrorists. The always-ripe-for-reversal 9th Circuit said part of the law was unconstitutional and parts were not. The Supremes will decide whether it was wrong about either or both of those decisions.
• U.S. v. O'Brien & Burgess raises a technical question involving application of a sentencing enhancement for use of a machine gun in a crime. But the answer may indicate how the Court, and in particular now-Justice Sotomayor, will continue to view Apprendi/Blakely/Booker-type issues.
• Berghuis v. Thompkins asks whether police can try to talk someone out of waiving Miranda rights.
• Berghuis v. Smith looks at questions regarding a jury of one's peers. That phrase doesn't mean a jury like you, of course. It means a jury that's a "fair cross section" of the community, and that pretty much means that the jury system can't be designed to exclude, say, disproportionate numbers of African Americans. But how do you establish that it is so designed? Smith may say.

As Bette Davis didn't quite say, fasten your seatbelts; it's going to be a bumpy ride.