Law in Plain English: Hall v. Florida

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Hall v. Florida

Argument: Mar 3 2014

Discussion: Freddie Lee Hall was tried and convicted for the 1978 murder of Karol Hurst. His conviction and sentence was upheld by the Florida Supreme Court on direct appeal. After multiple appeals, Hall filed a motion to vacate his sentence because Florida law prohibits the trial court from sentencing to death a mentally retarded defendant who is convicted of a capital felony. The Florida Supreme Court's interpretation of mental retardation mandates a cutoff IQ score of 70. According to several IQ tests, Hall's score was recorded at 73, 80, and 71. Florida law requires the defendant to show that the trial court's finding that Hall was not mentally retarded was not supported by competent, substantial evidence. The Florida Supreme Court found that there was competent, substantial evidence to support the trial court's finding that Hall is not mentally retarded. As a result, the Court denied his motion.

Issue: The questions before the Court is whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

Holding: In a 5-4 decision, the Supreme Court ruled that the state's threshold requirement as interpreted by the Florida Supreme Court is unconstitutional as a violation of the Eighth Amendment and disregards established medical practice.

Law in Plain English: McQuiggan v. Perkins

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

McQuiggin v. Perkins

Perkins was convicted of first degree murder and sentenced to life in prison. He lost on direct appeal. He then raised several post-conviction claims on collateral attack in state court, including ineffective assistance of counsel (IAC). Perkins lost again. He then filed a federal habeas petition raising the same claims. Although the Antiterrorism and Effective Death Penalty Act (AEDPA) provided a one-year statute of limitations claim, Perkins alleged a claim of actual innocence, which would overcome the statute of limitations and allow the court to hear the case (an extenstion of the courts' pre-AEDPA "miscarriage of justice" exception). ruling that Perkins had not acted with reasonable diligence. Then, the Sixth Circuit reversed, finding that diligence was not a prerequisite to the exception. The question before the Court was whether, under AEDPA, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.” In a 5-4 decision, the Supreme Court ruled that actual innocence, if proved, serves as a gateway through which a petitioner may pass if the expiration of the AEDPA statute of limitations is a procedural bar. As a result, Perkins's petition can go forward. The practical impact of this decision is to expand the exception to allow habeas petitioners to have their claims heard by the courts even when they are otherwise barred by statute.

United States v. Tsarnaev: Criminal Complaint

United States v. Tsarnaev by Michael Schearer

United States v Tsarnaev: Transcript of Initial Appearance

United States v Tsarnaev by Michael Schearer

Boston bombing roundup

This is a summary of the various posts I've put together on the Boston bombings and follow-on events this week.

This is a brief discussion of the initial bombing as a state or federal crime. Here is a follow-up to that post that identifies 18 USC § 2332a (Use of weapons of mass destruction) as the most likely top federal charge in the case (which carries the death penalty). EDIT: The criminal complaint is here; and § 2332a is indeed the top charge.

This is a brief summary of one woman's account of how the fear of the bombing has impacted her.

The Officer Down Memorial Page for MIT Patrol Officer Sean Collier is here.

Here is a brief summary of exigent circumstances, as seen after the assassination of RFK.

The case that gave birth to the "public safety exception" to Miranda is New York v. Quarles, 467 U.S. 649 (1984). The FBI's description of the public safety exception is here. Some analysis with particular relevance to this case is here. EDIT: The transcript of the suspect's initial appearance is here.

At 8:42 PM on Friday night, I reported the suspect in custody and reposted it here.

There is also imagery associated with these events: thermal imaging used in the final minutes (with raw video here), and the moment of capture, and the capture as announced via the scoreboard from the Reds/Marlins game.

Outside links of interest are Orin Kerr's posts on House-to-House Searches and the Fourth Amendment and Tsarnaev and Miranda Rights.

Facial recognition software didn't help identify the Boston suspects, even though images of both were in databases.

Reddit's involvement in trying to crowdsource the case are discussed here (from the perspective of the sister of a misidentified suspect) and here (discussing Reddit's impact on the FBI's official investigation).

Here's a video that seems to blur the line at when a consentual search takes place.

Finally, my post on the shortcomings of citizen journalism.

Is the Boston bombing a federal or state crime?

Massachusetts could obviously treat the crime as murders. But what about a federal crime?

18 USC § 844(d) is at least one federal statute that seems to contemplate this sort of situation:

Whoever transports or receives, or attempts to transport or receive, in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined under this title, or both; and if personal injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned for not more than twenty years or fined under this title, or both; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.

Massachusetts does not have the death penalty, but the federal law does.

Of course, there may be other more relevant federal statutes that cover this crime that will emerge as more details come out.

Law in Plain English: Johnson v. Williams

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Johnson v. Williams

Williams was in prison for first degree murder. He appealed in state court and raised, among other things, a Sixth Amendment claim because one of the jurors had been dismissed during deliberations at his trial. The state appeals court found that the juror was properly dismissed, but did not specifically address if it was a Sixth Amendment claim. He later sought habeus relief in federal court (he was challenging the lawfulness of his imprisonment; habeus proceedings are very common among prison inmates--thousands are filed every year). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) says that a federal court considering a habeas petition may not grant relief to a state prisoner whose claim has already been “adjudicated on the merits in State court” (unless other conditions are met, that don't apply here, see comment). The issue in this case then is whether Williams's claim had been “adjudicated on the merits” for purposes of AEDPA where the appeals court denied relief in their decision but did not expressly acknowledge the Sixth Amendment basis for the claim. The Supreme Court ruled that when the  state appeals court ruled against Williams, the federal court considering his habeus petition should presume that his federal claim was adjudicated on the merits. The practical impact of this decision is that state prisoners filing habeus claims will have a more difficult time getting review in federal courts.

Seven reasons why I don't support #occupywallstreet

Let me start out with the immediate caveat that I fully support the right to peaceful, non-violent, non-disruptive protest. On the other hand, blocking traffic, for example, is disruptive. It prevents the freedom of movement of other people. It might be peaceful, but it is disruptive and unlawful. So don't be surprised if that gets you arrested. But enough of that.

A second caveat: this is my response to #occupywallstreet as it is seen through social media, specifically Twitter and Facebook, and also some other related Internet sites. I am not on the ground, I haven't been there, and I don't intend to go there. With a few exceptions, I have tried to stay away from the "news" and "MSM" coverage since that itself is a huge issue. So if you have issue with my view of how things are going down, perhaps your independent media types need to do a better of crafting the message.

Let me also state up front that I expect many people to disagree with me. I'm not trying to convince you to abandon your side. I'm just explaining my side. I don't claim to speak for 1% or 99%. I speak only for myself. Oh, and please send your intelligent responses to this guy.

Tim O'Reilly wrote a post a while back about #occupywallstreet and generally lamented that

 the people who were there were the wrong people...It seems so odd to me that the Tea Party isn't out in force at this protest. It seems so odd that government largesse aimed at rich corporations seems to be OK with them, while government largesse aimed at the disadvantaged ought to be cut. I would have loved to see blue collar Americans out in force at this protest, not just college students.

I've never self-identified myself as "Tea Party" but I might as well be. I'm a married white male in my mid-30s, a conservative-libertarian who isn't afraid to criticize the Republican Party when they stray too far from the party's principles. I'm one of the types of people that Tim O'Reilly thinks should be out protesting on Wall Street. But I'm not, so this post is meant to explain why.

First, my back-story.

I was born in Reading, Pennsylvania, which had the recent distinction of being named the poorest city in the United States. It wasn't quite that bad when I was born, but Reading is a blue-collar industrial place that rise and fell with the railroad. It has never quite been the same since then.

I was fortunate, at a very young age, when my parents moved us just outside the city limits. Rather than having to survive the rough streets of Reading, I grew up in an otherwise nondescript middle class neighborhood and grew up mostly middle class. By the time my brothers and I were in school, my mom went back to work and both parents worked. We had enough.

Throughout school, I worked; first delivering newspapers. Then at a farmer's market. Then at K-Mart. Then at the local hardware store. None of these jobs were beneath me.

I did well enough in high school to get decent grades without working very hard. I enjoyed sports more than school. My sights, instead, were set on college.

I started college in a small, liberal arts school in Virginia. It was expensive, but there was financial aid and student loans. I could do this. Things started out OK, but very soon it became apparent that a butt-load of the financial aid I had been promised was not going to appear. As a result, after one single semester in Virginia, I transferred to Bloomsburg University, a state school back in Pennsylvania that would cost me considerably less. Despite the transfer, I worked hard and graduated in 3 1/2 years total.

Like most political science majors, I wasn't really sure what I wanted to do. I was leaning toward law school, and that became plan A. Beyond that, there was no plan B. Yet on a whim, I applied to Georgetown University's National Security Studies program and (somehow) got accepted. This was my new plan A, but it was Georgetown. One semester at Georgetown was more expensive than three years at Bloomsburg. I kept working hard, took on a part time job, and got my Master's Degree in only three semesters. But the student loans kept on mounting. I was digging myself into some serious debt by the time I graduated.

That was 1999. Fast-forward 12 years to the present. I'm still paying off my student loans, can you believe it?! I'm paying off a mortgage that is probably worth more than the current value of my house. If I wanted to move now, it would be very difficult, if not impossible. I opposed bailouts across the board.

So why I am not at #occupywallstreet?

1. Rhetoric. I've mentioned this before, but the rhetoric is over-the-top and largely fringe leftist in nature. Revolution, occupation, solidarity, comrades. I grew up at the peak of the Cold War. This language is not foreign to me. Yes, they're just words, but words mean things. And I don't like the things that these words mean. Additionally, the strong anarchist, socialist and anti-capitalist tones aren't going to attract me, either.

Closely related, the other bit of rhetoric that bothers me is the constant class warfare. It permeates everything that I see about #occupywallstreet and ties it all together. 1% vs. 99% is a perfect example of it. Seriously, put down the Karl Marx. It didn't work then and it won't work now.

The rhetoric is so over-the-top that I totally whiffed on @The99Pct, which I understand now (in embarrassed hindsight) is a parody account. Sadly, many of the posts aren't too far from what I've seen (especially online).

Like it or not, this point alone will keep people away. Viva la revolucion! But very few on the Right are going to join you, even if they agree on the core issues.

2. Message. People keep saying that #occupywallstreet is leaderless, but they shouldn't have to. It's pretty obvious. Many groups showed up making sure to get their message out. Against Bush, against the wars, against this or that or  the other thing. They, collectively, are against so many things I've lost track. And that's sort of the point. What is the message? The "official" demands keep growing and changing. At one point, the demands included references to Troy Davis and the elimination of the death penalty. It has nothing to do with Wall Street. It's an attempt to link a supposedly populist cause to the "occupation."  This is an example of what the military would call mission creep.

I've talked before about the negative connotations you send when you use words like "demand." This goes hand in hand with the point I mentioned above about rhetoric, but it applies equally here.

Among their declaration and demands, they claim that corporations "have sold our privacy as a commodity." Yet they're using corporations to get their message out. Facebook is perhaps the most notorious social network for privacy violations, yet #occupywallstreet has a home there.

3. Hypocrisy. One of the many themes espoused by those at #occupywallstreet is to decry the influence of money in politics. They seem to hate Citizens United and the whole idea of corporate personhood. I understand this. In some ways, I am sympathetic to the cause. However, the same people who despise the influence of money in politics are happy to welcome the support of multiple unions (re-read that Citizens United link; it doesn't just protect corporate funding of independent spending for political broadcasts, but also union funding). And it's known that the biggest spender in the 2008 election cycle were not corporations, but unions. So it seems hypocritical to complain about the influence of corporate political spending, while cozying up to unions, who actually spend more on politics.

And then recently, #occupywallstreet welcomed the support of MoveOn.org. It has been well-documented that MoveOn has been heavily funded by the billionaire George Soros. It seems further hypocritical to scream bloody murder every time the Koch Brothers spend a dime on politics, but just shrug away the same sort of political spending by George Soros. This inconsistency in the message reeks of hypocrisy.

Don't claim (without evidence) that corporate donations to the NYPD are buying off the police, but that Michael Moore and MoveOn support to #occupywallstreet are somehow beyond question.

4. Antisemitism. Despite the "leaderless" claim, there are still groups behind #occupywallstreet. One of them is Adbusters, has been accused in the past of antisemitism. A freelance writer by the name of Nathalie Rothschild wrote an article about her experiences at #occupywallstreet:

But the responses I got to my article were even more astonishing than the carry-ons in the Financial District. I received a string of indignant emails and tweets about my Jewish, kleptocrat banking connections; demands that I reveal the details of my pay checks and that I come clean about my not-so-hidden agenda. I was told that my family name disqualifies me from having any opinion about the protest and that I have 'the karma of a demon'. One reader posted my article online, headlining the post 'Journalist & Jew - Nathalie ROTHSCHILD'.

This is pretty sickening stuff. Please, it's about time for someone at #occupywallstreet to stand up and condemn this stuff. But they won't, because...

5. There is no accountability. I've talked about this before in regards to Anonymous. Anonymity allows people to take credit for anything good that happens while simultaneously reject all bad things as "someone else." Anyone can do something in our name, they say, so we can't be responsible. The same goes for a "leaderless" organization. No one is accountable. No one will stand up to the antisemitism that Nathalie Rothschild faced. Multiple wepay.com pages are set up for #occupywallstreet, collecting thousands of dollars in donations with little or no accountability in how that money is being spent.

6. There is no accuracy. Claiming the top 1% don't pay any taxes is as silly as those people at the town hall meetings a few years back who told the government to stay away from their Medicare. The truth is that the top 1% of earners pay over 38% of all income taxes. They pay 23.27% of their income to federal income taxes. On the other end, the bottom 50% of earners pay less than 3% of all income taxes and are taxed, on average, 2.59%. In fact, most of the bottom 50% pay no federal income taxes at all.

When you start out your argument with a claim like this, it shows you as being uninformed. I stop listening to anything else you have to say. The truth is that we have a highly progressive income tax system already.  A Buffet tax (a proposal of the President and also one of the demands) won't even hurt the man it's named after because most of his income is through capital gains, not salary. Your demands are built on claims that wash away like a sand castle built right up against the water at low tide.

7. I have a job. This isn't meant to be cruel to the unemployed, but I do in fact have a job. In fact, I have my own business. I can't spent weeks marching around New York City because I actually go to work everyday. I don't mean this to sound harsh, but sleeping on cardboard and eating pizzas paid for by someone else is not contributing to our economy. From an economic perspective, you are not contributing to the collective, common good. You're not doing your fair share.

Despite signs to the contrary, you do not have a "right" to a job. And the job you might land might be at Wal Mart or McDonald's. If you think working a retail or fast food job is beneath you, then maybe you're at the wrong protest. Wear our your shoes pounding the pavement looking for a job instead of waving a sign. Don't bitch that the 99% pay too much in taxes if you're not working; because if you're not working, you're obviously not paying income taxes.

I welcome your comments, criticisms, and questions below this post or via Twitter.

The West Memphis Three, the ACLU, and the death penalty

The ACLU says that the

[r]elease of wrongly convicted #WestMemphis3 underscores need for death penalty repeal.

If the death penalty was not an option, wouldn't the West Memphis Three still have been in prison until now? In all likelihood, the three would have been sentenced to life in prison. How does the death penalty change that?

What it does show is that our system, however imperfect, does work. Don't get me wrong--if they are truly innocent, they got screwed. But that doesn't have any impact on the death penalty. Using the situation for political gain to abolish the death penalty is a cheap political trick.

The death penalty

Yes, I'm up a little late tonight (or is that, this morning). Couldn't sleep.

I just finished the book Conviction by Richard North Patterson. The book follows the post-conviction death penalty litigation surrounding the fictional Rennell Price. Will the Paget family of lawyers save Rennell Price from execution? Or will the justice system finally put an end to seemingly endless appeals? Of course, you'll have to read the book to find out.

Patterson's book is clearly opposed to the death penalty, and the Pagets make explicit their abhorrence and frustration of a law passed in 1996 called the Anti-Terrorism and Effective Death Penalty Act. At issue is the writ of habeus corpus, specifically how AEDPA severely limits the writ (federal habeas corpus is the statutory procedure, 28 U.S.C. 2241 et seq., under which state and federal prisoners may petition the federal courts to review their convictions and sentences to determine whether the prisoners are being held contrary to the laws or Constitution of the United States1). AEDPA is their primary hurdle in trying to save Rennell's life.

As a proponent of the death penalty, for me it is always interesting to read something written by the "other side," especially when it is intelligently researched and well-written. My only disappointment is Patterson's almost blanket portrayal of liberal judges as compassionate, and conservatives (especially the Supreme Court Justice Anthony Fini as a thinly-veiled Antonin Scalia) as conniving and heartless, but sadly, I guess this is to be expected. I may not agree with Patterson's politics, but it's a good book, worthy of your time.

Reminds me that I still ought to have gone to law school...