Author: Kent Scheidegger

SCOTUS Reinstates Marathon Bomber’s Death Sentence

by · Mar 4, 2022 7:29 am

Opinion here. CJLF brief here. Prior post here. The prior post is an extended discussion of the evidence point in this case, while the brief is addressed primarily to the jury question. The issues are described in the prior post, so I will copy some of that material here.

In July of 2020, the U.S. Court of Appeals for the First Circuit in Boston reversed the death sentence and some of the convictions (though not on the capital offenses) of Dzhokhar Tsarnaev, the survivor of the pair of brothers who committed the horrible bombing of the Boston Marathon in 2013.

The Court of Appeals’ primary reason for reversal was its finding that during jury selection the trial court violated its half-century old rule in Patriarca v. United States, a precedent never mentioned by either party in the trial court or in the Court of Appeals’ pre-trial reviews of jury selection.
The court also said it would “address other issues (even if just briefly) because we know they are likely to resurface on remand.” One of those was a claim that the judge erred in not allowing hearsay evidence of an earlier, unrelated murder that the older brother was alleged to have been involved in. The six-Justice majority today disposed of both holdings without much difficulty. Continue reading . . .

Defending a State’s Laws in Court When State Officials Disagree

by · Mar 3, 2022 4:26 pm

For some time now, I have been concerned about a threat to the separation of powers in state governments. A governor or other executive officer cannot, of course, repeal a statute. But executive officers can sometimes decline to appeal a court decision holding a statute unconstitutional, which in practice has the same effect. In that way, the executive branch could override the decision of the legislature or, in states with the initiative, the people themselves.

The U.S. Supreme Court made this subterfuge more difficult today in Cameron v. EMW Women’s Surgical Center, No. 20-601. The statute at issue relates to abortion, a matter that CJLF takes no position on. What is important for our work is that Supreme Court allowed the Attorney General of the state to intervene to defend a statute after the state department head—no doubt on orders from the Governor—declined to seek further review of a decision holding a statute unconstitutional. Continue reading . . .

Predicting the Path of the New Justice

by · Feb 28, 2022 10:42 am

Ruth Marcus has this column in the WaPo (behind a paywall) on the impact of Judge Ketanji Brown Jackson on the Supreme Court. Ms. Marcus has covered the high court for many years.

In addition, justices, male or female, aren’t fungible. Even if they can be placed into broad categories of liberal or conservative, they bring different passions and different life experiences to the bench. Jackson’s experience as a criminal defense lawyer, member of the U.S. Sentencing Commission and trial court judge gives her a perspective different from that of her colleagues. It’s reasonable to imagine Jackson emerging as an ally of Justice Sonia Sotomayor, especially on criminal law issues, where Breyer and Justice Elena Kagan have been slightly more moderate. And, as I wrote the other day, she also could emerge as another powerful voice in dissent, joining Sotomayor and Kagan in a forcefulness and passion that Breyer didn’t always display. Continue reading . . .

Re-Registration Needed For Some Users

by · Jan 18, 2022 5:58 am

It has come to my attention that a software glitch may have resulted in some users not being presented with the correct form at registration. If you registered without seeing a form with real name as a required field, it will be necessary for you to re-register before commenting.

My apologies for the inconvenience.

Is the Ferguson Effect Real?

by · Jan 17, 2022 2:32 pm

There is hypothesis that a pullback in policing activity following high-profile arrest incidents and subsequent protests and riots causes an increase in crime. This has been dubbed the “Ferguson Effect,” after the location of one particularly high-profile incident.

But is it real? Charles Fain Lehman has this article in the City Journal reviewing two recent studies. Continue reading . . .

SCOTUS Takes Up Three Crime-Related Cases

by · Jan 17, 2022 1:45 pm

At its conference last Friday, the U.S. Supreme Court took up three cases related to crime and law enforcement. One raises the question of whether a police officer’s failure to give Miranda warnings creates a civil liability, in addition to making the confession inadmissible in a criminal case. A second involves a challenge to a state’s method of execution, offering an alternative not authorized by state law. A third involves proceedings in federal district court to develop evidence for a habeas corpus petition without regard to whether the evidence could even be considered in deciding the case. Continue reading . . .

Cal. Supreme Court Rejects Parole for Violent Felons with Determinate Terms

by · Jan 3, 2022 3:19 pm

The California Supreme Court today rejected an interpretation of California’s Proposition 57 that would have allowed convicted felons with a determinate sentence for a mix of violent and non-violent felony convictions to seek parole, when those with only a single violent crime conviction could not. That such a bizarre result is even a plausible reading goes only to show how poorly written and poorly conceived this initiative was.

The opinion in In re Mohammad, S259999 is here. Don Thompson has this story for Associated Press. CJLF’s brief by Kym Stapleton is here. Our press release is here.

UPDATE (by CJLF staff):  CJLF Legal Director Kent Scheidegger appeared on LA’s KFI John & Ken Show discussing the Court’s decision.  Here’s the link to listen to Hour 2.  Kent comes on about 4 minutes into the broadcast. 
Continue reading . . .

Sunshine for the Shadow Docket

by · Dec 24, 2021 10:38 am

The U.S. Supreme Court has been criticized for its “shadow docket” — summary orders that grant or vacate stays or preliminary injunctions without oral argument and often without an opinion of the Court. Although these orders are preliminary matters, they often control events for an extended time. Sometimes they determine the outcome as a practical matter, such as denying a stay of execution in a capital case.

In a change from the usual practice, the Court will hold oral argument on Friday, January 7, in two sets of applications requesting stays in matters involving Covid mandates. Continue reading . . .

Notice, Comment, and Exhaustion

by · Dec 20, 2021 4:04 pm

In recent years, CJLF has been involved in a number of civil cases, some of which involve administrative law.* In administrative law, there is generally a requirement to exhaust administrative remedies before turning to the courts. There are also requirements in various laws for hearings and public comment before adopting certain measures.

Is a party who does not comment on a proposal forever banned from filing a lawsuit challenging its legality? We have been hit with that argument a couple of times. For one particular kind of hearing/comment law, the California Supreme Court has said no. The case of Hill RHF Housing Partners, L.P. v. City of Los Angeles, S263734 involves business improvement districts. “The opportunity to comment on a proposed BID does not involve the sort of ‘clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties’ [citation]  that has allowed us to infer an exhaustion requirement in other contexts.” I think that is correct. Continue reading . . .