by Kent Scheidegger · May 31, 2022 1:22 pm
Heather Knight reports for the SF Chronicle:
As [SF DA Chesa] Boudin faces a June 7 recall, it’s important for voters to understand what he promised and whether his office is delivering. And four former staffers and one current staffer in his Victim Services Division told me that victims are regularly not updated on progress in their cases, meaning their voices remain unheard as prosecutors work quickly to resolve them. Continue reading . . .
by Kent Scheidegger · May 30, 2022 6:03 pm
Today let us all remember that freedom is not free and honor those who gave their lives in its defense.
by Kent Scheidegger · May 24, 2022 1:51 pm
Along with the two Arizona capital cases decided yesterday (see this post), the Supreme Court turned down another, the case of one of the longest-term residents of death row.
Justice Breyer penned another of his opinions lamenting how awful it is for these murderers to have death sentences hanging over their heads so long. And once again he failed to acknowledge how much the Supreme Court itself is at fault for this situation. Continue reading . . .
by Bill Otis · May 23, 2022 12:09 pm
President Biden has had all manner of things to say about the mass murder in Buffalo by a white supremacist, but nothing to say about the only legal punishment we have that even remotely fits a crime of that nature — the death penalty.
Now maybe it’s that Biden ran on a platform of abolishing capital punishment — the first candidate of a major party to do so, and in the face of the contrary views held by his former boss, President Barack Obama, and (get this) of himself: Biden had been an unambiguous supporter of the death penalty for years, but when the mainstream of the Democratic Party drifted into abolitionism, he had neither the energy nor the principle to put up a fight.
That now seems like a manifestly foolish decision, as I explain in my Substack entry this morning, here, and my guess is he’ll have to backtrack.
by Kent Scheidegger · May 23, 2022 11:08 am
Are Acts of Congress the law of the land, to be respected by the courts and implemented as intended, or are they merely inconvenient obstacles to the policies preferred by judges, to be danced around at will? That was the unstated question beneath the case of Shinn v. Ramirez, No. 20-1009, decided by the Supreme Court today.
The case involves the long-standing policy question of when a federal court hearing a habeas corpus petition by a state prisoner can second-guess the judgment of the state courts in a case already fully litigated there. The answer to that question has ebbed and flowed throughout American history, as relative confidence in federal v. state courts has varied. The answer has varied from “never” (1789) to “nearly always” (1963) and various points in between. Congress and the Supreme Court have both had their roles, but on this aspect of habeas corpus the Court has always acknowledged that Congress is boss, at least nominally.
From the mid-1970s to the early 1990s, the Supreme Court was gradually tightening up on relitigation, pulling back reins that had been loosened in the 1950s and 1960s. In 1992, the Court decided in Keeney v. Tamayo-Reyes that a habeas petitioner who wanted an evidentiary hearing in federal court to present evidence that he could have presented in state court but failed to would not get one unless he showed good cause for his previous failure and resulting prejudice.
This is one of a number of rules that I call “speak now or forever hold your peace” rules. When the system provides a time and forum to make your claim, you have to make it then and there or lose it. Without such rules, Yogi Berra notwithstanding, a case isn’t over even when it’s over. More prosaically, these rules are called “procedural default rules.” Continue reading . . .
by Kent Scheidegger · May 20, 2022 9:48 am
LA Times political columnist George Skelton has this column on the race for California Attorney General.
The state’s “jungle primary” is June 7. The top two vote-getters, regardless of party, will advance to the November general election.
by Kent Scheidegger · May 16, 2022 9:20 am
In 1948, Congress decided that using habeas corpus for collateral attacks on federal criminal judgments presented too many practical problems, so it created a new “motion to vacate” procedure in 28 USC § 2255. Congress provided that the new motion would be available on any ground that made the judgment vulnerable to collateral attack. Then it barred use of habeas corpus for this purpose, but added a “safety valve” that resort to habeas corpus could still be had if the motion procedure was “ineffective or inadequate” to test the validity of the prisoner’s detention.
Collateral attacks on criminal judgments (habeas corpus for state prisoners and § 2255 for federal prisoners) grew like weeds for the next five decades until Congress clamped down in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Does the “safety valve” effectively negate the reforms for federal prisoners? Can they simply dance around the limits by saying the limits render the § 2255 remedy “ineffective or inadequate” and file a habeas corpus petition? The obvious answer is “no.” Congress does not enact laws with the intent that they be easily evaded. Yet, there is a circuit split, and today the Supreme Court took the question up. Continue reading . . .
by Bill Otis · May 12, 2022 6:31 am
There is an active recall campaign against the radical DA of San Francisco, Chesa Boudin. To his credit, Boudin, while running for office, didn’t make much of a secret about where his sympathies lay. He was with the George Soros “criminals-are-victims” agenda from stem to stern. His problem is that the reality of his tenure apparently is ringing a different bell with San Francisco voters than the high-sounding rhetoric of the campaign. So now, according to the KRON poll, Boudin is in big, big trouble.
by Bill Otis · May 11, 2022 3:45 pm
After the unprecedented leak of a draft of a possible SCOTUS decision on the case overruling Roe v. Wade, pro-abortion activists have decided it would be a good idea to flock en masse outside the neighborhood homes of the Justices to make sure they know that, if the “wrong” decision were handed come late June, they would, in Chuck Schmer’s words, “pay the price.”
Gathering in menacing mobs at the homes of Justices has been defended by exactly those people who, for four years, were loudly aghast at the “breaking of norms.” But as it turns out, the mob activity is not merely disgusting but illegal — or at least such is the view of that right-wing rag, the Washington Post. Its article is quoted in part below.
by Bill Otis · May 11, 2022 3:04 pm
The President today nominated a full slate of attorneys and judges for the US Sentencing Commission. The majority are Democrats, as is the President’s prerogative. I don’t know any of them, but I am familiar with the work on one of them, former US District Judge John Gleeson. Gleeson will be familiar to most readers as the amicus appointed by the district court in the infamous Michael Flynn prosecution, to argue in support of the court’s continuing with the prosecution notwithstanding the Justice Department’s wish to end the case on account of questionable (at best) prosecutorial behavior.
But there is another aspect of Gleeson’s behavior, undertaken while he was on the bench, that calls into question his ethical fitness. I wrote about this before, and regrettably, it is newly relevant today.
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