No Dice

as in , no roll of the dice--as in no trial.

The prosecutor came down a few years and dropped some aggravating factors, and suddenly the client remembered that he did commit the crime. In 4 years or so he will be eligible for parole. It's like college for criminals. A few years hard time, and a "go back to jail free" card in the form of parole violations.

I'm not saying this wasn't a good outcome. It is a pretty good deal if the guy did what he is now saying he did. If we lost at trial he most likely would have gotten more. Ten years is a long time, though, even if you only have to serve about half inside.

So *I* didn't lose, but I didn't win either. As for client, who knows?

Out again

I've been preparing for another trial lately, which should start today, meaning I will probably be sparse with blog entries for a while. Wish me luck.

Bush policy on "Enemy Combatants" Faces a New Setback

U.S. District Judge Colleen Kollar-Kotelly ruled that the Government cannot refuse detainees access to attorneys, and that it is not a matter of governmental discretion what limits there are on their meetings.

Decision here

SCOTUSblog

What is a Nonjusticiable Political Question?

When I was studying for the bar exam, one of the guaranteed answers you would see on the multistate was "The court cannot review this action because it is a political question." I was told to never choose that answer as a guess because it is never right. I guess we are going to see whether the judges in Texas set to decide on political gerrymandering decide to go with nonjusticiable or maybe just “C.”

In a case from last term (Vieth v. Jubelirer) and an older case (Davis v. Bandemer) the Supreme Court has indicated that there might actually be circumstances where political gerrymandering (redistricting for political purposes) might be constitutional. The opinion in Vieth was written by Scalia who is never afraid to call it as he sees it, and he points out that “[i]n Davis v. Bandemer, 478 U.S. 109 (1986), this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard to adjudicate them.”

Frankly I don’t understand Vieth, but it is coming back to haunt the recent re-districting in Texas. My prediction is that this is not going to change anything. It might even make it worse for Democrats in Texas. While I usually don’t vote Republican, I think I can tolerate it in the name of democracy. After all, the south has always been solid, but it hasn’t always been Republican.

In a final note, I just want to copy a footnote from the Vieth Opinion:

A delicious illustration of this is the one case we have found–alluded to above–that provided relief under Bandemer….In Republican Party of North Carolina v. Hunt,…the district court, after a trial with no less than 311 stipulations by the parties, 132 witness statements, approximately 300 exhibits, and 2 days of oral argument, concluded that North Carolina’s system of electing superior court judges on a statewide basis “had resulted in Republican candidates experiencing a consistent and pervasive lack of success and exclusion from the electoral process as a whole and that these effects were likely to continue unabated into the future.” In the elections for superior court judges conducted just five days after this pronouncement, “every Republican candidate standing for the office of superior court judge was victorious at the state level,” a result which the Fourth Circuit thought (with good reason) “directly at odds with the recent prediction by the district court,” causing it to remand the case for reconsideration.

Vieth, footnote 8

News: Chron; SCOTUSblog

High Court Grants Cert on Public Display

The Supreme Court of the US is going to review public display of religious documents for the first time in 25 years. The cases involved include a Texas case where the Ten Commandments were displayed on public grounds. The Fifth Circuit held that it was permissible because it was one of many monuments, and something about the secular value of the Ten Commandments. The other case is one from Kentucky where they displayed the Ten Commandments, but also added other secular historical documents.

This is going to be interesting. The general question likely to be answered is whether the display of a particular religious symbol can be made into non-endorsement by context. Randall Kallinen is quoted in the San Antonio Express (sub) saying that this case could affect the Harris County Bible Case. It will depend, however, on how the court defines the issue. The Bible, first of all, is not a historical legal document; it is unabashedly a religious text. The issue appealed by the County (as best I can tell) is whether an explicit religious symbol can be used in a monument without any other context.

I think the biggest losers in this case will be the Christian establishmentarians who have championed the posting of the Ten Commandments as a way to bring religion into public life. I think even if the court allows these displays, it will be for the express reason that the context removes the implication that religion is being brought into public life.

News: AP; Chron

Harris County Bible Case Pre-Season Report:

No real news on the Harris County Bible these days, but I thought I would put out some of the background stats on the players.

The case is currently pending in the 5^th circuit court of appeals, docket Nos. 04-20667, 04-20732, and 04-20742. Kay Staley’s attorney Randall L. Kallinen is still on the case (and also a big player in the local ACLU, though I don’t think the ACLU is officially involved in this case). Also filing an appearance on her case is Ayesha Khan and Richard Brian Katskee, both of whom are affiliated with Americans United for Separation of Church & State, a D.C. based group that advocates separation issues.

Ayesha Khan is the legal director of the organization, and has been lead counsel on several similar cases including Doe v. Foster (about school prayer in Louisiana), and recently heavily involved in part of Glassroth v. Moore, the case that brought about the removal of the Alabama courthouse ten commandments and its advocate Justice Roy Moore. Richard Katskee is the assistant director of the organization. He is formerly of Mayer, Brown, Roe and Maw (their bio of him here), and has been a law clerk for the 9^th and 2^nd circuit. These three certainly have credentials out the wazoo.

On the other side is Harris County Attorney Mike Stafford (R), represented by Bruce S. Powers, Assistant County Attorney. Unfortunately I can’t find any info about Bruce Powers right now. (Disclosure: I voted for Stafford, and I probably will again).

Also associated is the Star of Hope Mission, who’s unsuccessful attempt to intervene produced this rather scathing order. It is represented by Benjamin W. Bull and Josua William Carden (apparently with local counsel Michael G.Tapp) of the Alliance Defense Fund Law Center, an organization devoted to opposing ACLU action related to Church and State (really--read this). I do not have the actual documents, but it appears that SOH has been kicked from the lawsuit on appeal as well, though one of the cases on the docket might be their appeal of that order.

So metaphorically we are in the pre-season of the appeal. The attorneys and their clients are pretty much set, but the arguments are just being formulated. You (and I) should be prepared for a couple of years before this issue is really settled, unless the county decides to settle. (I say county because I see little chance that Staley will change her mind). Hurry up and wait.

No reason to fear a lawyer-president

A nice (for lawyers) editorial in USA today about the next potential president and the history of lawyer-executives.

SCOTUS blog is reporting on the US response to the Supreme Court ruling that it cannot indefinitely detain individuals without charges. Apparently the legal strategy of the US is to argue that they didn't really lose, and that the only thing they have to do is tell the court that they think someone is an enemy combatant and then they have the right to hold them indefinitely.

This issue came to my attention a while ago (from the same blog) when I discovered that the "tribunals" that were set up not only prohibited the accused from having a lawyer, but actually (I kid you not) required that people who might be involved swear that they were not a lawyer. Yes, the Bush administration has determined that lawyers are so evil that they cannot be present under any circumstances, even when other third parties can.

This pisses me off. Lawyers are not evil and their very presence does not make anything worse off. There are bad lawyers and good ones. Remember it is not only private lawyers that are prohibited, but government lawyers, military lawyers. I fear that this rule only contemplates the horrible truth that lawyers advocate for unpopular clients and--more importantly--force the powerful to follow the rules they create. If these trials are anywhere in the vicinity of fair, they would have nothing to fear from lawyers being present.

While I am the first to admit that lawyers can be a burden to a society, it is no different than the burden imposed by the very rules the lawyers enforce. The government’s position in these cases is scary because it shows the willingness of the government to dispense will all rules and procedures in order to accomplish their secret goals. We are not talking about giving up some civil rights for security; we are talking about completely refusing to protect even the most fundamental rights of individuals. The government is asking to court to validate its claim that it can do anything it wants. That includes holding them, torturing them, raping them, sadistically mutilating their bodies. “No rights” means anything goes.

All I can say to that is that some truths are self-evident, “…that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Supreme Court recognized this in Hamdi and Rasul, and I am embarrassed that my government still refuses to accept it.

Nader is off the Ballot in Texas

Well it is pretty much official. The Fifth Circuit has denied the Nader appeal leaving Mr. Nader off the Texas ballot for the November election. The only possible event now would be intervention by the SCOTUS, which I find to be as likely as Mr. Nader winning the election in November.

FSGs Out?

Tom Goldstein at SCOTUSblog seems to think the Federal Sentencing Guidelines will not be maintained in their current state, and based on the other blog news (How Appealing, Sentencing Law, Blakely Blog) that seems to be where this is headed. There will probably be some sort of middle ground, but the real question remains what are they going to do about all the cases that have already been decided or are currently on appeal? There are a lot of people in prison and on their way that will be directly and substantially affected by the court’s decision in this case.

Blakely's Back - First Monday

The Supreme Court of the United States is back in session, and is hearing a case that should decide whether Blakely spells the end of the federal sentencing guidelines. While this issue has not been felt as keenly in Texas (due to our archaic dependence on those curious petit jurors), this will have a substantial effect on the entire country's criminal policy. This issue is very well covered at the Sentencing Policy blog or a brief summary of the opinion and its effect on criminal justice by Professor Douglas A. Berman (as well as a compilation of usefull information and links).

Keep a lookout, however, for news on this very important subject.

[On a related note, in a previous post I misspelled Blakely v. Washington as Blakley v. Washington. Normally I would simply ignore my spelling errors (of which there are many, I assure you), however I have had significant search engine traffic from that misspelling. Hopefully this post will serve to correct to forlorn as well as note my own problem with syntax.]

I'm Back

Yes, I have returned to scan the internet for more legal news and offer my badly spelled opinions on it.

On a personal note, I have received a great victory through no particular fault of my own. It is an interesting part of my profession that one can win without really trying, and one can try without any hope of winning. At least this time, however, my client is happy and I am happy.

Hiatus

The purveyor of this fine literature is unavailable due to professional reasons. All signs point to a very trying time.

"Terri's Law" is Illegal

Once again, I find myself straying into the territory of foreign jurisdictions. The Florida Supreme Court issued a ruling yesterday invalidating Jeb Bush’s law which prevented the legal guardian of Theresa Schiavo from removing the feeding and hydration tubes from Ms. Schiavo, thereby causing her death. (Opponents call this “starving her to death,” which is also true; difficult decisions such as this can always be cast in a drastically different light using synonyms with different connotations.)

The court held that the law in question:

…as applied in this case, resulted in an executive order that effectively reversed a properly rendered final judgment and thereby constituted an unconstitutional encroachment on the power that has been reserved for the independent judiciary. P15-16

They also found that “the Act is unconstitutional on its face because it delegates legislative power to the Governor.” P18

This was a particularly compelling opinion for me, especially at the end when the court waxed philosophical about the role of law in society. It is particularly relevant in this current time of contempt for the judiciary, where every day someone is attacking judges for exercising their role as arbiters of the Constitution. Difficult, unpopular decisions must be made by someone, and it is inappropriate to respond with a knee-jerk “activist” label every time a judge makes a decision one disagrees with.

My compliments to the Florida Supreme Court, and good luck in the coming fallout.
Justitia fiat coelum ruat.

Bush v. Schiavo

News:

BBC NEWS Americas Coma woman intervention 'illegal'
Newsday.com - National News
NPR : Florida High Court Rules Against 'Terri's Law'
New York Times

A Statement by Ms. Schiavo's Non-custodial family

Harris County Bible Update

Below is an editorial by an anti-judge activist mentioning our local fight. She seems to think, however, that the answer lies in jurisdiction stripping...or removing the jurisdiction of federal courts to hear these cases.

HUMAN EVENTS ONLINE :: God and the Activist Judges by Phyllis Schlafly

That is a bunch of bullshit. That would mean only state courts can now rule on the first amendment issues? Or better yet, it would mean that the government can now establish an official state religion by simply preventing an article III judge from hearing the issue. There is a potent force in the current government that wants to do just that with many social issues. They seem to think that it will be permissible to violate the constitution by preventing the judiciary from reviewing their actions, and apparently they haven't read Marbury or any other damn court case. It is clear that what they want is a religious government, not to exercise any sort of equality. Funny thing, the founders of our country expressly rejected a religious government. Therefore, there will be no Sharia in the US, and no council of vicars, and no Pope.

The reality of the situation is that judges wrestle with complex problems and almost every single one of them (and certainly the ones at the top) do the very best they can in any given situation. This spate of jurisdiction stripping bills is probably nothing more than a publicity stunt, but it is also a symptom of a society that is pushing the limits it made for itself. Every time someone says the courts should not be able to decide this matter need to review the way the system works.

If you don't like the constitution, change the constitution. Quit trying to figure out end-around methods of bypassing the method already established to do that. If it fails, then you will be forced to worship the Ten Commandments on your own time.

That rant aside, I would like to point out that the actual appeal on the Harris County Bible case is only about whether the monument on the courthouse grounds was put there to show a preference for Christianity, or was it placed there by a third party to memorialize a Christian’s contribution. All this other stuff is nothing but sound bites.

Of course it got me worked up, so maybe they are accomplishing what they wanted.

Appellate Antics

Brought to you by The Legal Reader;

While I usually restrict my posts to Texas and national issues, here is a fascinating opinion on the delicate art of getting one's appeal heard on the merits. This hits very close to home for me as I am currently facing a loss on the appellate level due to an action by the trial court that was unforseeable and may well be jurisdictional.

DeLay aides indicted

A grand jury in Austin Texas has returned 32 indictments including 3 top aids to Tom DeLay and several major corporations including Sears for fundraising activities. The District Attorney in Travis county (where Austin is) is not known to fear Tom DeLay (or anyone else), so we can be sure there will be something to come from this, although probably not before the next election.

HoustonChronicle.com - Republican fund-raising leads to indictments of 3 DeLay aides
Austin American Statesman

Also Check out Roman Candles and Daily Kos and Off the Kuff for some indie views

"Unusual" probation

Dallas Morning News is reporting what it calls "unusual probation." It seems a man got probation in his trial and the judge was a little upset, enough to include a year of jail and some rather strenuous requirements including a limit on the horsepower his vehicle may have.

While I understand the strange and creative terms some judges have for probation, I wonder mostly about these limitations in the context of Blakely. Has the judge in this case offered such constricting probation requirements, including a year in jail (six months real time), so as to constitute an enhancement? Keep a look out for cases like this. While I feel certain the Texas CCA will come down in the most conservative position, even they are bound by Federal law. Watch for an appeal on this.

Here is something from SCOTUS blog about the McCorvey case.

Roe v. Wade II fails at the 5th Circuit

The Fifth Circuit has denied Norma McCorvey's (formerly known as Jane Roe) petition to re-litigate Roe v. Wade. This is the second death of the case, which I would liken to digging up grandpa and begging him to go home with you. The method her lawyers chose to contest Roe v. Wade was a rule 60(b) motion, which allows the party of a suit to petition for relief after judgment has been entered, primarily due to changed circumstances, new evidence, or something like that.

Basically, the court said that Texas had repealed the statutes criminalizing abortion by implication, and therefore Ms. McCorvey has no case or controversy thereby prohibiting the court from even considering her appeal (i.e. it was moot). There was a concurring opinion which basically blasted Roe v. Wade for evidentiary reasons, but otherwise simply said what almost everyone in the legal community already knew. That case is over with.

It remains to be seen if the Supreme Court will choose to accept this case. I would put tremendous odds on them declining any cert, but they COULD if they wanted to. What is particularly interesting (or perhaps ironic) is that Roe v. Wade was decided by the Supreme Court because they created a new exception to the doctrine of mootness for that case. Will they do it again? My money is on no.


Court's Opinion
HoustonChronicle.com - Bid to reopen landmark Roe v. Wade case fails