Archive: June 2006

A Declaration of Independence

There has been in the last 24 hours much thoughtful commentary on Thursday's landmark terror-law ruling by the United States Supreme Court. The Post's own David Ignatius, for example, chimed in with good analysis and venerable Supreme Court reporter Lyle Denniston offered a really solid read on what the Justices did not decide in the case. Slate's Emily Bazelon also chimed in with another angle on the ruling that's worth reading. I could go on and on. But in the end the decision is about one thing and one thing only: terrorism or no, we are still a nation of laws, and of rules, and of precedent, and of balanced government and that means that the President, or any president, doesn't get the final word on what is and what is not constitutional. For those of you who believe that yesterday's ruling was another element to be included in the...

By Andrew Cohen | June 30, 2006; 4:00 PM ET | Comments (6)

Top Ten Things You Can Say About Hamdan Case

By now you've probably heard a dozen or so pundits and scholars opine about today's landmark Supreme Court ruling in the Guantanamo Bay case. It's the worst decision ever. It's the biggest deal since Brown v. Board of Education. You get the idea. Yawn. So instead of going down that road (which, incidentally, I already have done here), I thought I would instead offer you, dear readers, a "talking points" memo about the case that you can use at cocktail parties and barbeques this weekend when you are celebrating the nation's birthday. Feel free to drop these into conversation at any point, especially after a few beers and brats. Here they are in no particular order of significance. 10. How about that Justice Clarence Thomas? You know you are on shaky legal ground when you stake out positions that even the parties in the case whose side you are supporting...

By Andrew Cohen | June 29, 2006; 4:32 PM ET | Comments (21)

Back to the Drawing Board

Even as it was hammering the Bush Administration with its most serious legal setback yet in the war on terrorism, the Court's majority in the Guantanamo Bay case made it perfectly clear that the White House and Congress have plenty of other routes to travel to ultimately get the result they want with those detainees down in Cuba. Justice Stephen Breyer wrote it out specifically on the first page of his concurring opinion: "Nothing prevents the President from returning to Congress to seek the authority he belives necessary." That's the direction this story now will head off toward-- Congress. The President now can ask Congress for more unambiguous and sweeping power to implement the use of those military tribunals. Or he can simply process the detainees at Gitmo using already-established military procedures that have worked well for centuries. Or he can selectively choose certain detainees to bring to trial in...

By Andrew Cohen | June 29, 2006; 12:18 PM ET | Comments (3)

No go on Gitmo

In a decision sure to infuriate conservative politicians and lawyers even as it receives praise abroad and from civil libertarians, a surprisginly fiesty U.S. Supreme Court this morning rejected the Bush Administration's use of military tribunals to process the Guantanamo Bay detainees. In a 5 to 3 vote, the Court's majority declared that both the Constitution and the mandate of the Geneva Convention outlawed the planned military tribunals that executive branch officials had come up to prosecute the men. So it's now back to the drawing board, for the second time, for an Administration that has come under ever-increasing political pressure to do something about the foreign nationals held captive in Cuba. The ruling is long. I will have more in a bit....

By Andrew Cohen | June 29, 2006; 8:47 AM ET | Comments (32)

The Story of Life and Death

Maurice Possley is one of the best investigative journalists in the nation, and one of the most thorough reporters I have ever met and known, and he has made a speciality recently of focusing upon the many substantive and procedural defects inherent in the nation's capital punishment industry. This week, he and co-writer Steve Mills, are out with a vital new special report "Wrongly Executed" for their newspaper, the Chicago Tribune, which raises fresh questions about whether we as a nation have in our recent history proceeded to execute an innocent man. The story of Carlos De Luna and Carlos Hernandez, as told by the two reporters, is a sadly familar one to those who follow closely the criminal justice system. The police do a shoddy job at the crime scene. Witnesses are duped into making positive identifications. The suspect acts irresponsibly. The prosecutors at trial gloss over exculpatory information...

By Andrew Cohen | June 29, 2006; 8:00 AM ET | Email a Comment

Good for the Goose, Good for the Gander

The Supreme Court's redistricting decision today is really many different rulings in one. And it is clear even from a cursory read of the 132-page ruling-- six of the nine Justices wrote their own opinions-- that there is nothing close to unanimity on how to proceed in these sorts of political cases much less how to fairly or completely resolve the partisan dispute the Texas cases represent. In the end, the law of the land, as expressed today by a thin majority of the Court, is that a political party in power in a state may solidify its power in Congress by enacting intensely partisan redistricting at any time unless opponents of the power play can prove a burden on their "representative rights," whatever that means. Justice Anthony Kennedy, who again emerged from the mist of the Court as the swing vote in the case, declared that since the Democrats...

By Andrew Cohen | June 28, 2006; 3:15 PM ET | Comments (23)

A Whole New Ballgame for Congress

This morning the U.S. Supreme Court sanctioned political chaos in state legislatures around the country. The Justices finally issued their decision in the Texas redistricting case and the result could mean revolving Congressional districts that change after every election depending upon the political power of the majority party in any state at any given time. In other words, what happened in Texas-- a raw power grab by the party in power to protect itself from future challenges-- could now become the rule and not the Tom-Delay-inspired exception. Some Democrats may claim a partial victory because the Court's majority did throw out one particular contorted Congressional district which did not recognize fairly the rights of Hispanic voters. But the GOP at least for now is the big winner of the war over redistricting. I will have much more on the ruling after I have had the chance to read the entire...

By Andrew Cohen | June 28, 2006; 10:37 AM ET | Comments (23)

Long May She Wave-- And Burn

Good for the Post's Dana Milbank for going beyond the wire copy reports of yesterday's flag-burning debate and vote in the Senate. The reporter and columnist offered readers true insight into the dopeyness of the Congressional effort. It's truly must-reading for anyone who wants to understand why Senate leaders pushed for the vote, and why, ultimately, their efforts to outlaw flag-burning failed by a single vote. If Milbank's stuff was bright, there was plenty of dimness before, during and after the vote. Here are some of the highlights. Or lowlights. "Old Glory lost today," said Sen. Majority Leader Bill Frist (R-Tenn.), a candidate for president in 2008 and perhaps best known for diagnosing Terri Schiavo's brain condition last year based upon what he saw when he watched her on videotape. "Who gets the final word -- five justices on the Supreme Court or we the people?" Sen. John Cornyn (R-Texas)...

By Andrew Cohen | June 28, 2006; 9:00 AM ET | Comments (28)

President Says He is Just Practicing Penmanship

Just as the Senate Judiciary Committee was holding a mini-hearing today on the proliferation of the use of presidential "signing statements" to undercut legislation, a White House spokesman was downplaying the significance of the Administration's tactic. The President is just expressing his "reservations" about the legislation he is signing into law," Tony Snow told reporters today, and the statements really don't have any "teeth." What a load of hooey. Administration attorneys have not been wasting the President's time on approximately 750 occasions by having him sign a statement that has no effect. On the contrary, the statements are carefully designed to shape the course of the legislation once it has been signed into law. They reflect the official view of the White House, especially when that view contradicts the view of lawmakers, and thereby signals officials at administrative agencies as well as friendly judges that the law is suspect and...

By Andrew Cohen | June 27, 2006; 1:47 PM ET | Comments (14)

The Biggest Legal Story You've Probably Missed

One of the most under-reported and misunderstood legal stories of our time is the story of the White House's use of "signing statements" to try to undercut the effect of the legislation the President is triggering into law (but which he doesn't necessarily agree with). The strategy and tactic is particularly disturbing because it comes from an Administration that has made expanded executive-branch power (and concomittantly blatant disrespect for the other two branches of government) a cornerstone of its philosophy of governance. Today, the Senate Judiciary Committee will take a quick and hopefully tough look at the practice of "signing statements" which have been used by presidents for hundreds of years but never with quite the level of determination and frequency achieved by the current folks at the White House. "It's a challenge to the plain language of the Constitution," Committee Chairman Arlen Specter (R-Pa.) told the Associated Press. "I'm...

By Andrew Cohen | June 27, 2006; 11:00 AM ET | Comments (36)

Thou Shalt Keep Thy Monument

Less than one month after threatening an evangelical Christian group with legal action to force it to remove a Ten Commandments monument from private property (a front lawn) across from the U.S. Supreme Court, officials in the District of Columbia decided yesterday not to push the issue after all. The Washington Post is reporting this morning that DC sent a letter to the folks at Faith and Action saying no permit is required: "In view of the First Amendment interests reflected in the installation of the Ten Commandments sculpture . . . and upon further consideration of applicable law..." I've blogged about this story before. But after seeing the picture of the tiny monument in today's Post (click on the link in the first graph) I don't know why anyone would have bothered to make any sort of a big deal about this. The Justices aren't going to see the...

By Andrew Cohen | June 27, 2006; 8:11 AM ET | Comments (7)

Supreme Court Trawl

The final Monday in June has come and gone for the U.S. Supreme Court and we still are waiting for the two biggest decisions of the 2005-2006 term-- on congressional redistricting and the rights of detainees at Guantanamo Bay. But the Justices did manage both to wrap up some key cases on their docket and to schedule a real doozy for next term. The most important move by the Justices Monday was to accept for review a case for next term that will evaluate the Bush Administration's efforts, or lack thereof, in reducing greenhouse gas emissions that contribute to global warming. The case is about the Clean Air Act, and the Environmental Protection Agency, and whether the White House has a legal duty to enforce certain regulations. The case is likely to come down to what the true definition of "pollution" is under the law. The White House says that...

By Andrew Cohen | June 26, 2006; 2:45 PM ET | Comments (12)

NSA Compromise Begs the Question

I think it's wonderful that the White House and the Chairman of the Senate Judiciary Committee are reportedly close to some sort of a deal that would place for the time being the fate of the government's controversial domestic spying program into the hands of specially-appointed, specially-trained surveillance-court judges (who almost always side with the government anyway). I suppose that any movement toward a resolution of the vital legal questions raised by this program is better than no movement at all. But the purported deal is going to make a meaningful difference to you and me only if regular, ol' federal court judges, including ultimately the Justices of the U.S. Supreme Court, still in the end vigorously and independently evaluate the constitutionality of the National Security Agency's efforts. In other words, the compromise everyone seems to be hinting about only begs the question of whether President Bush has the constitutional...

By Andrew Cohen | June 26, 2006; 11:00 AM ET | Email a Comment

Remembering Patsy Ramsey

She goes to her grave a fundamentally ordinary person who created in other people through the lens of a camera and the shock of murder extraordinarily sharp opinions about herself. Millions of tabloid-friendly folks loved and admired Patsy Ramsey for raging at the machine after her daughter was killed and, only a littlle later, for courageously battling cancer year after year. And millions of people loathed Patsy Ramsey- for her lifestyle, for her affect-- but mostly because they think she had something horrible to do with her daughter's death. She came in this way to be a symbol, a totem seen differently from two different sides of the pole. And when Patsy Ramsey died this weekend she took with her a large part of the fuel that fed two contrasting fires for nearly ten years. She will forever be known as the mother of JonBenet Ramsey, the six-year-old, blonde beauty...

By Andrew Cohen | June 26, 2006; 7:00 AM ET | Comments (2)

Here We Go Again

It is entirely possible that the government has just foiled a plot that would have led to immeasurable loss of life and property. It is also entirely possible that the government once again is trying to sell us a pig in a poke; trying to make much more out of a terrorism investigation than the facts warrant. Right now there is just no way to tell. The Justice Department announced today the arrests and indictments of seven men in Miami who have been charged with conspiring with a person they thought was an Al Qaeda operative (but who was in fact a government informant) to plan to blow up the Sears Tower in Chicago. But already doubts exist about how serious the plot was; how far along it got, and how much it really had to do with Chicago....

By Andrew Cohen | June 23, 2006; 3:44 PM ET | Comments (23)

A Costly Cross to Bear

San Diego's recent civic troubles have been well documented. So you might reasonably ask why the City keeps spending dollar after dollar in court after court to try to keep a large cross on top of a mountain in La Jolla. For 17 years, since 1989, the City has failed to offer a legitimate legal reason to keep the religious symbol on top of Mount Soledad. Judge after judge has found the display to be an unconstitutional endorsement of one religion over another under first amendment law despite the fact that the cross was erected as a Korean War Memorial in 1954 (the same year, incidentally, that the words "under God" were added to the Pledge of Allegiance). And now, in the wake of another adverse federal appeals court ruling, San Diego faces the prospect of being fined $5,000/day if it doesn't remove the cross by August 1st. So what...

By Andrew Cohen | June 23, 2006; 11:00 AM ET | Comments (4)

A Tough Road Ahead for Yates' Jurors

As expected, it took a Texas trial judge just 10 hours over one long day to select a jury in the murder retrial of Andrea Yates, the Houston mother who drowned her five children in the bathtub of their home in June 2001. This despite the fact that every single one of the 120 people chosen for voir dire said they were, in the words of the Houston Chronicle's Peggy O'Hare, "familiar with her case in some way." But defense attorneys are smiling anyway, at least for the time being, because of the some of the comments made by those jurors. The Associated Press reports that "about 20 potential jurors said they had already decided Yates was legally insane without hearing any evidence." Several other potential jurors, the AP says, "questioned the legal issue at the heart of the case, saying they disagreed with the state's definition of insanity." That...

By Andrew Cohen | June 23, 2006; 8:00 AM ET | Comments (1)

Supremes Save Best for Last

They are both brilliant and dramatic, your Supreme Court justices, because year after year, like television network executives, they leave the biggest and most contentious and most interesting cases for the very end of their term, the "sweeps" period of the judicial year. For as long as anyone can remember, the last week of June generates from the courthouse the water-cooler rulings that fuel the big law review articles as well as the gastro-rumblings of federal and state legislators. This year is no different. Amid much hype and speculation, the Justices issued five rulings today but did not yet tip their hands on the two cases-- the legitimacy of Tom Delay's redistricting plans in Texas and the constitutionality of the procedures the government wants to use in military tribunals for Guantanamo Bay detainees-- that most everyone cares about. I know. I know. Each time the Court resolves a case it's...

By Andrew Cohen | June 22, 2006; 2:30 PM ET | Comments (3)

Andrea, Again

Almost exactly five years later, the State of Texas still wants to put Andrea Yates into a prison instead of a mental health facility for the rest of her life for drowning her five beloved chlidren, one by one, in the bathtub of their home. Never mind that overwhelming medical evidence indicated during her first trial in 2002 that Yates when she killed was severely mentally ill, and suffering from post-partum depression, and had been taken off the only medication that had helped her. Never mind that prosecutors were never able to offer jurors any real motive, or even a decent or reasonable explanation, for why an otherwise attentive and patient mother would suddenly turn on her children and kill them in cold-blood. Never mind that the first trial ended in a conviction that was overturned when it was discovered that the lead prosecution expert witness made a grievous error...

By Andrew Cohen | June 22, 2006; 8:22 AM ET | Comments (6)

Mothers Make a Difference After Losing Their Kids

One year ago yesterday, a young woman named Vivian Wofe and her fiance, both 22, were shot and killed in Aurora, Colorado. Unfortunately, there is nothing remarkable about that. The young man, named Marshall Fields, was cooperating with prosecutors at the time as a witness in another shooting, one that had occured a year before that, and law enforcement officials believe that Fields was killed for being a snitch. Unfortunately, there is nothing terribly remarkable about that, either, in this age where gangs still are able on occasion to dispense their own brand of justice. What is remarkable is what happened next. The mothers of the young couple, Rhonda Fields and Christine Wolfe, decided to do something with their overwhelming grief. According to a good Javier Erik Olvera piece in today's Rocky Mountain News, the pair "have spent the better part of the year fighting for a law that would...

By Andrew Cohen | June 21, 2006; 10:00 PM ET | Email a Comment

The Justices Won't Close Gitmo

I think it's great after years of executive-branch bullying that President George W. Bush finally is conceding to the nation and the world that the federal courts have a vital, even dispositive role in determining how the detainees held at Guantanamo Bay ought to be handled. And, of course, the U.S. Supreme Court, perhaps as early as tomorrow, will have a lot to say about whether and to what extent our military tribunals can be used at Guantanamo to process the hundreds of warrior/criminal/terrorists/innocent victims held there. But no one, including the President, ought to expect the Justices to issue a ruling that forces Gitmo closed or does anything other than put the tribunal ball back into the hands of the U.S. military. And, anyway, rhetoric aside, there is nothing stopping the President now from giving the detainees the due process rights their attorneys are asking for. First, the case...

By Andrew Cohen | June 21, 2006; 2:28 PM ET | Comments (5)

Jose Can You See?

Remember Jose Padilla, the American street punk who John Ashcroft later called a "dirty bomb" terrorist for Al Qaeda? Remember how the Attorney General beamed the news of Padilla's radiological bomb plot back to us via satellite from Russia, as if it were the most vital victory ever in the war on terrorism? Remember how Padilla was locked up for years as an "enemy combatant" without proper access to an attorney or the ability to communicate with anyone in the outside world? Remember how long it was that he was held, without charges, as the executive branch and the judicial branch squared off over his status? Remember how the feds finally caved to legal pressure and released Padilla from military custody on the eve of a Supreme Court hearing into the matter? And remember how they neatly placed him in an existing terror-support case in Florida, one that had absolutely...

By Andrew Cohen | June 21, 2006; 9:00 AM ET | Comments (2)

Suicide on Trial

Here is a case you probably haven't heard much about. In Colorado, a man named Phillip Effland was charged with killing his wife and assisting in his daughter's suicide. Shocking as this may seem, it's not terribly unusual. What is unusual is that prosecutors, the judge and defense attorneys were unable last week to pick a jury last week because so many people were willing to accept suicide as an end-of-life option. And yesterday, reports the Denver Post, 140 more prospective jurors were excused before the judge and the lawyers could agree on 12 jurors and one alternate. The Post's Mike McPhee did a nice job in his brief article today detailing some of the responses potential jurors offered when asked whether they could sit in judgment on a man, Effland, who is charged with making a suicide pact with his wife and daughter last summer and then carrying it...

By Andrew Cohen | June 20, 2006; 2:15 PM ET | Email a Comment

Another Year, Another Trial

Almost exactly one year after he was acquitted on molestation charges, Michael Jackson is back in the news and back in court. Well, not literally. He's not likely to show up in person to defend himself in a civil case against a former employee who says that the King of Pop owes him millions. It is a trial that will in many ways be as bizarre and nasty as last year's criminal case was. It also will be a trial that sheds new light on how Jacko steered his finances right straight into the ground. For that reason alone it is worth following. It is also worth following because of nuggets like this. The Associated Press' doyenne of court coverage, Linda Deutsch, reported this last night: "In a bizarre detail, Jackson maintained he got his spending money by leasing cows that lived on his Neverland ranch. During the deposition there...

By Andrew Cohen | June 20, 2006; 11:00 AM ET | Email a Comment

The Judges and the Judged

If you are interested in learning a bit more about the dire relationship these days between judges and the people they judge then check out this blog offered by the Reno Gazette-Journal, the hometown newspaper in a place where an angry litigant a few weeks ago allegedly murdered his ex-wife and then shot the judge who was handling his divorce and custody case. The judge, Chuck Weller, apparently has generated no small amount of anger among other parties before him during his years in family court. But many of the comments on the Reno Gazette-Journal's blog suggest a level of passion and hatred that is truly remarkable, coming as it does against a shooting victim whose conduct, whatever you think of it, has never generated any action by the state's Commission on Judicial Discipline. Just because the guy may be a jerk doesn't mean he deserved to get shot. Imagine...

By Andrew Cohen | June 20, 2006; 8:00 AM ET | Comments (2)

As Fractious as Ever

Forget all that talk about the Supreme Court becoming all warm and fuzzy under the direction of the new Chief Justice, John Roberts. Monday morning's big environmental ruling reminds us that the Justices are just as fractious now as they have been in the past when it comes to the truly contentious issues of our day. Chief Justice Roberts may be a dazzlingly smart and politically-savvy man. But he's still only one vote out of nine. The Court's four horsemen of conservatism, Justices Scalia, Thomas, Alito and the Chief Justice, voted in a case out of Michigan for a narrow interpretation of the phrase "waters of the United States" in a way that helps owners and developers who want to build on wetlands. The Court's more liberal lions and lioness, Justices Breyer, Souter, Ginsburg and Stevens, voted for a broader interpretation of the Clean Water Act. Justice Anthony Kennedy, once...

By Andrew Cohen | June 19, 2006; 2:30 PM ET | Comments (2)

I was a (Minor) Threat to National Security

I am back Stateside from Canada but not before an intense confrontation with border officials. No, really. It wasn't that bad. But I did get caught. I honestly declared on my U.S. Customs' form that I intended to bring back a small amount of cooked, vacuum-sealed "smoked meat" (pastrami, for you Yanks) from a certain deli in Montreal and was told by a particularly humorless border guard that I could not do so as all types of "meat" from Canada is quarantined for entry into the U.S. "But it's for a sandwich for my father, I pleaded," as if that argument trumps federal regulatory law. Not impressed, the Custom official then said, perhaps hoping to get me for perjury as well as pastrami smuggling, "sir, is it a sandwich or a whole brisket?" I copped to a whole brisket, from the famous Schwartz's deli in Montreal, and swear I could...

By Andrew Cohen | June 19, 2006; 7:00 AM ET | Comments (7)

A Letter from Montreal

Judging from the torrent of emails I've received over the past few days, many of you are wondering why the Bench Conference hasn't been as active as it usually is. The answer is simple. Your humble scribe is in Montreal, the city of my birth, visiting friends and family and checking up on various other things in La Belle Province. So, since it is Friday, and since there isn't much law-news going on aside from the fact that we are learning that Lee Boyd Malvo and John Allen Muhammad, the Beltway snipers, may have murdered more people than initially thought, I figured I would offer a week-ending series of snippets from across the border. Of course, if major legal news breaks later in the day I'll post again. If you haven't been to Montreal, you should go, at least once and for a few days. It's a cheap, easy way...

By Andrew Cohen | June 16, 2006; 10:00 AM ET | Comments (4)

An "Equal Protection Free Zone" in New York?

A federal trial judge in Brooklyn yesterday issued an important ruling in the war on terror, one that constitutional scholars, lawyers, judges and politicians surely will be fighting over for months to come. The decision allows the government to detain indefinitely non-citizen immigrants based upon their race, religion or national origin but it also allows key challenges to that policy to proceed further along the path toward trial. It's a ruling that almost certainly will be appealed by one side, or the other, or both, and could ultimately wind up before the U.S. Supreme Court. U.S. District Judge John Gleeson ruled that the government can round up and detain people "of a particular country" or race or religion so long as their "eventual removal" was "reasonably forseeable." This, some experts say, gives the government all the legal authority it needs following the next terror attack to detain without probable cause...

By Andrew Cohen | June 15, 2006; 9:15 AM ET | Comments (1)

Another Pol Drinks the Kool-Aid

Another week. Another lame politician whining about a judicial decision he doesn't like by calling it "arrogant." This time, it's Colorado Governor Bill Owens stomping his foot and threatening to call legislators back into special session so that they can try again to take many state services away from illegal immigrants. The last effort was rejected by the Colorado Supreme Court, which earlier this week ruled that an anti-immigrant ballot measure violated the state constitution because its language was too broad, too capable of differing interpretations, and too unfocused to comport with legal requirements. Never mind that the "public policy" debate can continue without a ballot measure, and that a valid voter initiative can be placed before voters during a future election, the Governor is in a judge-blaming mood because the third branch of government didn't let him have his way. "Yesterday, our State Supreme Court ignored years of legal...

By Andrew Cohen | June 14, 2006; 9:30 AM ET | Comments (1)

Bagels On the Bench a Bad Idea

Who would you rather have sitting in judgment on you? An excellent judge with a difficult-to-pronounce, foreign-looking name? Or a bagel-shop owner who only recently reactivated her license to practice law? A seasoned jurist who had over 20 years on the bench won the respect of her peers? Or a former commercial litigator rated "not qualified" by her local bar association? Last week, California voters selected the bagel-shop owner, Lynn Diane Olson, and rejected the sitting judge, Dzintra Janavs, in an election contest marred by allegations of prejudice and vote-buying. The good news is that Gov. Arnold Schwarzenegger immediately after Janavs' election loss declared that he would reappoint her to the bench as soon as possible. The bad news is that California's judicial election laws permit this sort of bizarre result. The good news is that the contest between Janavs and Olson was so one-sided, experience- and qualifications-wise, that is...

By Andrew Cohen | June 13, 2006; 2:30 PM ET | Comments (5)

More on Karl Rove's Good Day

Not surprisingly, White House advisor Karl Rove was reportedly elated and relieved to hear last night that he will not be indicted for his role in the disclosure of the identity of Valerie Plame, who was a CIA agent at the time. I don't blame him. He was able to dodge a determined and focused investigation that for months now has been aimed directly at him. You are likely to hear a lot of legal and political spin about this development. Please talk it with a bag of salt and remember a few things as you trawl through the web. First, the perjury and obstruction of justice case against former Administration official I. Lewis "Scooter" Libby is not a slam-dunk case and the case against Rove would have been even weaker. In the Libby case, there are a half-dozen or so evidentiary "bank shots" in a case that is full...

By Andrew Cohen | June 13, 2006; 11:30 AM ET | Comments (2)

"Turd Blossom" Gets a Break

It is the first day of the rest of his life for Karl Rove, the venerable Republican operative who learned just a few hours ago that he won't be charged as a result of his role in the public disclosure of the identity of a CIA agent. The man the President has called "Turd Blossom" and "Boy Genius" and "the Architect" now presumably is free to spend his waking hours plotting the continued demise of the Democrats and a miraculous recovery for his GOP clients. Already conspiracy theorists are claiming that Rove avoided indictment by Patrick Fitzgerald as part of a cover up or a push for leniency or special treatment by the prosecutor. Even though Fitzgerald is a Republican appointee I don't buy this at all. I think the real answer here is the simplest answer here: Fitzgerald didn't indict Rove because he didn't think he could convict Rove...

By Andrew Cohen | June 13, 2006; 8:01 AM ET | Email a Comment

NSA Court Hearing Ends

As expected, the first in-court hearing over the National Security Agency's controversial domestic surveillance program has ended without a ruling by U.S. District Judge Anna Diggs Taylor. By most accounts the hearing had what one attorney called "an Alice in Wonderland quality to it." The government said that the case should be dismissed because the plaintiffs-- the ACLU, representing scholars, lawyers and journalists-- could not conclusively prove that they were the subject of warrantless eavesdropping. The plaintiffs said this was so because the government is unwilling to share with anyone any such proof. "On the one hand, the government is saying: `You have to show your clients have been targeted.' They're also saying: `We're not gonna tell you whether or not they've been targeted,"' Kary Moss of the ACLU said after the hearing. Meanwhile, according to the Associated Press, federal attorney Anthony J. Coppolino told the judge that any substantive...

By Andrew Cohen | June 12, 2006; 3:30 PM ET | Comments (1)

The Supreme Court Tugs at Capital Cases

The Supreme Court this morning issued two rulings that open the door-- but just a crack-- to the possibility of major changes in capital punishment law. In one case, the Justices allowed a Florida man to challenge the manner of his execution-- lethal injection-- outside of the normal appellate process. And in the other case, the Justices allowed a Tennessee man to use DNA evidence to challenge his capital conviction 20 years after the fact. Neither of the two cases guarantees or even suggests that the men will ultimately make it off death row. But both cases suggest that the recent trend on the Court toward ensuring procedural protections in capital cases may have survived the transition from Sandra Day O'Connor to Justice Samuel A. Alito, Jr. And that bodes well for both proponents and opponents of capital punishment, groups which each have a stake in ensuring that capital suspects...

By | June 12, 2006; 12:35 PM ET | Comments (2)

Domestic Spy Case Comes to Court

The most active front today in the legal war on terrorism won't be in New York or in Washington. It will be in the Eastern District of Michigan, where U.S. District Judge Anna Diggs Taylor will preside over the first in-court challenge to the National Security Agency's controversial domestic surveillance program. Expect lofty rhetoric from plaintiffs' lawyers inside that courtroom. Expect defiance from federal lawyers. Expect skepticism from the judge. But don't expect any simple answers or quick resolution. Five months ago, the ACLU filed a complaint seeking to halt the program as a violation of federal law and the first amendment and fourth amendment rights of lawyers, scholars and journalists who have reason to contact people in the Middle East free from worry that their conversations will be monitored by law enforcement officials without a court order. No need to go to trial, these plaintiffs alleged, because all of...

By | June 12, 2006; 7:00 AM ET | Email a Comment

Making a Bad Situation Worse in Chicago

I wouldn't know R. Kelly if the singer came up to me and handed me his CDs. And quite frankly I really didn't intend to follow closely his child pornography case which is apparently based upon a videotape of Kelly allegedly having sex with a girl who was 13 or 14 at the time. It's just not my kind of case. But that has changed somewhat in light of a disappointing ruling today by a Chicago judge who intends to show the videotape to the public in open court during Kelly's trial over the objections of both defense attorneys and prosecutors. That's right. If you get to court early enough that day, you'll be able to see free child pornography courtesy of the Illinois state courts....

By | June 9, 2006; 4:00 PM ET | Comments (21)

A Friday Potpourri

From the crap tables of Las Vegas to the corridors of power in Washington; from North Carolina's lacrosse fields to a federal courthouse in Tampa, Bench Conference brings you today the world of the law, such as it is. No single major story worth a half-dozen graphs of coverage of commentary. But there was this.... The Los Angeles Times' second of a three-part series on judicial ethics-- or the lack thereof in Las Vegas-- is just as powerful as Part I was yesterday. Today's piece focuses upon federal judge James C. Mahan who, according to the fine reportage of Michael J. Goodman and William C. Rempel of the Times, "first as a state judge and now as a federal judge, he has approved more than $4.8 million in judgments and fees during more than a dozen cases in which a recent search of court records found no statement that he...

By | June 9, 2006; 11:00 AM ET | Comments (3)

Slow John

The National Journal's Murray Waas yesterday afternoon posted an important story about a still unexplained delay by former U.S. Attorney General John Ashcroft in recusing himself from the investigation into Valerie Plame-CIA Leak case. While the story does not represent any sort of a "smoking gun" against Ashcroft, it certainly doesn't give any reasonable reader the impression that the Attorney General was either particularly sensitive to the inherent conflict he found himself in during the fall of 2003 or particularly interested in doing anything dramatic (read: ethically responsible) about it. The main theme of Waas' long take is that John Ashcroft stayed in charge of the Plame investigation for several months after he learned from the FBI that investigators "suspected White House aides Karl Rove and I. Lewis "Scooter" Libby of trying to mislead the FBI to conceal their roles in the leak." This, legal experts quoted in the piece...

By | June 9, 2006; 8:00 AM ET | Comments (1)

A Scandal in the Nevada Courts

The Los Angeles Times today in the first of a three-part series has a fascinating and important story about "justice" in Las Vegas where, the Times' reports, judges "routinely rule in cases involving friends, former clients and business associates-- and in favor of lawyers who fill their campaign coffers." The piece (and the two others to follow Friday and Saturday) are a must-read for judges, lawyers, clients and legislators everywhere. From the reporting of Michael J. Goodman and William Rempel we get this: "This is a juice town, some Las Vegaas attorneys openly concede. Financial contributions 'get you juice with a judge-- an 'in' " And there is this: "At the heart of the Las Vegas court system are 21 state judges who hear civil and criminal cases, and who can be assigned anywhere in Nevada, but who are called district judges because they work out of courthouses in the...

By | June 8, 2006; 2:00 PM ET | Comments (5)

Betrayal in the Buffet Line

Vice President Dick Cheney knew at lunch on Tuesday that he had pulled the string on the Senate Judiciary Committee's plan to subpeona telephone company executives; knew that he had lobbied Republican Committee members behind the back of their Chairman, Arlen Specter (R-Pa.); knew that he had advised the phone execs not to answer relevant questions. But did he share this information with Specter so the Senator would not be taken by surprise just hours later when he found out he didn't have the votes to subpoena? Here's the Senator's answer, written in a public letter sent to Cheney : "I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senate caucus lunch yesterday and I walked directly in...

By | June 8, 2006; 11:00 AM ET | Comments (12)

Schiavo Without Tears

Fifteen months after the fact, a law professor at Washington University School of Law is chiming in with his view of the legal machinations surrounding the sad demise of Terri Schiavo, the comatose woman who died amid great controversy last Spring after her feeding tube was removed. The paper by Samuel R. Bagenstos is getting a little bit of notoriety online because it concludes, without the usual conservative vim, that the federal courts "rushed the case, and in so doing failed to provide meaningful consideration" of the claims of Schiavo's parents that their daughter's rights were being violated under the Americans with Disabilities Act. Never mind the fact that courts had been wrangling over Schiavo for years and years before the final acts unfolded. The problem with the professor's paper, and his argument, is that he then determines that Schiavo probably didn't have any such rights under the ADA anyway...

By | June 8, 2006; 8:00 AM ET | Comments (5)

Pledged to Go On and On and On

It would be easy to say that Michael Newdow is back. But the truth is that the famous atheist who put the Pledge of Allegiance on the constitutional ropes a few years ago never really left. The litigation, the one that made it to the United States Supreme Court in 2004, and generated a procedural ruling there that ended the national debate on the subject, is still alive and now back before the 9th U.S. Circuit Court of Appeals. Why? Because a federal trial court judge ruled that the original appellate court ruling still has prececential value over people within its jurisdiction despite the pronouncement by the Justices in Washington. Apoplectic federal lawyers say the trial judge got it completely wrong; that the Supreme Court even with its limited ruling on standing grounds foreclosed in 2004 the possibility that lower courts could block the Pledge from being recited. And the...

By | June 7, 2006; 3:00 PM ET | Comments (4)

When Judges Attack!

Want to know what happens when judges are required to run like politicians for their jobs? This. There was a Republican primary in Alabama for the position of Chief Justice of the state's Supreme Court. And it was about as nasty as any political campaign you are ever likely to see. And now, both of those pit-bull campaigners will go back onto the bench (the incumbent won) and tell litigants that they intend to dispense justice evenly and fairly and dispassionately to all. What a joke. The race was between incumbent Chief Justice Drayton Nabers and Associate Justice Tom Parker. According to the Atlanta Journal-Constitution, Parker, a disciple of Judge Roy Moore, the former Chief Justice who ignored the law and tried to wedge a Ten Commandments monument into his courthouse, called Nabers a "Jimmy Carter-style liberal" who "backs legal abortion up to the day of delivery." That forced Nabers...

By | June 7, 2006; 11:00 AM ET | Comments (5)

A Day in the Life of the Judiciary Committee

To offer a little more detail on my last post... The Associated Press last night reported that a frustrated Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) reluctantly agreed to a deal yesterday with the White House that allows telephone company executives to avoid for the moment being subpoenaed to discuss whatever role they may have played in the latest domestic surveillance controversy. The White House, the AP reported, agreed to try to work with Sen. Specter on legislation that would bring the other two branches a little closer to the action in the domestic spying game. No promises, however. Meanwhile, Commitee Democrats are furious at the White House for another reason. Earlier Tuesday, during a hearing into the government's professed interest in prosecuting journalists for publishing classified information, a Justice Department official, Deputy U.S. Attorney Matthew W. Friedrick, was so unforthcoming when questioned even by Republican senators that he prompted...

By | June 7, 2006; 7:00 AM ET | Comments (2)

Speaking Too Soon on Spector

Just moments after my last post, Senate Judiciary Committee Arlen Spector and his Republican colleagues on the panel declared that they would not for the time being subpoena any telephone company executives over the sharing of private phone-call records with the government. Apparently, Commitee Republicans agreed to hold off on the subpoenas in exchange for a White House promise to keep an open mind about pending legislation involving the National Security Agency and its domestic surveillance programs. The "deal," such that it is, promptly caused Committee Democrats to howl in anger and frustration....

By | June 6, 2006; 3:07 PM ET | Comments (7)

Snarlin' Arlen on a Hot Streak

Senate Judiciary Committee Arlen Spector (R-Pa) is having a good week. Yesterday, just a few week after he scrapped with Committee Democrats over whether to allow the controversial measure to get to the floor, he courageously came out against his party's push to amend the Constitution to ban same-sex marriage, quoting Barry Goldwater and saying that the "government ought to be kept off our backs, out of our pocketbooks and out of our bedrooms." Then, this morning, he took on the White House and the Justice Department for even talking about prosecuting journalists for publishing classified information under century-old espionage statutes.``It's highly doubtful in my mind that that was ever the intent of Congress,'' Judiciary Committee Chairman Arlen Specter said about the 1917 legislation.' The hearing this morning also highlighted the Administration's uncooperative relationship with the Congress when it comes to its aggressive (and in this case completely odious) law-enforcement...

By | June 6, 2006; 1:16 PM ET | Email a Comment

Tale of Two Robinsons

Good morning. As much as I would like to talk in depth about Thomas Robinson this morning, I feel compelled instead to share with you a brief story about Vernon Robinson, who is a Republican challenger in a Congressional district in North Carolina. Thomas Robinson, for those of you who haven't already read the New York Times this morning, is an accounting professor in Florida who has just been determined to be the first American identified as a direct descendant of Genghis Khan. Imagine using that line-- and meaning it-- at a singles bar. Vernon Robinson, for those of you who didn't read the Washington Post on Saturday, has brilliantly (and when I say "brilliantly" I really mean "insanely") cobbled together the immigration and same-sex marriage issues to produce what has to be the worst political ad of the early campaign season....

By | June 6, 2006; 9:00 AM ET | Email a Comment

Activist Shmactivst

Of all the lies and half-truths that spring from the mouths of politicians, the pernicious and pervasive use of the phrase "activist judges" to demean well-intentioned jurists surely is one of the worst. Even the late, great Supreme Court Chief Justice William Rehnquist hated the phrase. Everytime a judge makes a decision, any decision whether you like it or not, that judge is "acting." Even when the Supreme Court decides not to review a case it is "acting." To judge-- to choose between competing arguments-- is to act. Every judge every day, therefore, is an "activist judge" in the honest meaning of the word and, therefore, no judges are the sort of creepy "activist judges" that President Bush and his cronies in Congress want you to be afraid of. Anytime you hear someone call a judge an "activist judge" all it means is that the person doing the calling didn't...

By | June 5, 2006; 5:00 PM ET | Comments (26)

Alito in Action

The Supreme Court this morning announced that it would hear two, related affirmative action cases next fall, setting up another showdown over the controversial use of race as a factor in determinoing public school assignments. Coming just three years after the Justices reviewed two other affirmative action policies in the school context of schools, and with a key switch in the makeup of the Court in the meantime, the news is as unwelcome to supporters of affirmative action as it is welcome to folks who want to do away with the practice. Why in the world would the Justices want to revisit this issue if not to change the law and undercut their own 2003 precedent? That's the question folks on both sides of this debate will be asking themselves in the nine months or so between today and the day the Court finally tells us what it thinks about...

By | June 5, 2006; 2:15 PM ET | Comments (34)

A Marriage Between Cynicism and Futility

Good morning. With the war in Iraq heating up for summer, immigration policy in chaos, gas prices as high as they have ever been and the deficit soaring, the White House and Congress today are back at the same-sex marriage issue, trying gamely (some say lamely) to gin up support for an amendment to the Constitution that would declare that marriage under the laws of our land may only be between a man and a woman. Is it because there is a great outcry across the land to "fix" this "problem" first before all of the others that plague us? Is it because same-sex marriage in Massachusetts has wrought chaos there or anywhere else? Of course not. It's because political leaders in Washington want to shore up their base heading into an off-year election campaign. But what's unusual about this latest push to change the Constitution is how transparently political...

By | June 5, 2006; 9:00 AM ET | Comments (7)

Awake and Alert

I have now been blogging for the past month and for those of you still with me, or for those of you who have come a little late to the party, thank you. I try to read each and every comment that you take the time to make and trust that you will believe me when I tell you that I'm working every day to make this the best darn legal blog around. The learning curve is tremendous. And no post I've done since I've started proved that point more than the post I did on Monday afternoon-- Memorial Day-- when I wrote about Kimberly Dozier and the attack that wounded her and killed two other CBS News colleagues. People are still commenting on that post four days later and the surprise for me hasn't been that people are passionate about the topic. It's been the fact that people have...

By | June 2, 2006; 3:00 PM ET | Email a Comment

When Jurors Go Bad

The big news in Chicago this morning-- the big news in Chicago for the past six weeks, actually-- is the story of the push by former Gov. George Ryan's attorneys to seek a new trial for their client based upon jury misconduct during this corruption trial earlier this year. I have seen plenty of defense attorneys argue plenty of post-trial motions based upon jury problems, real or perceived. But I don't think I have ever seen the level of chaos that this surrounded this jury. The former governor, convicted of all 18 charges against him, has a better-than-average chance to get a new trial if even some of the allegations against jurors are true. This may not happen before the federal, trial udge, who already is on record as saying she doesn't believe the juror misconduct was serious enough to force another marathon trial. But surely the 7th U.S. Circuit...

By | June 2, 2006; 9:00 AM ET | Comments (6)

Exxon Mobil Should Pay Up and Soon

Last year, Exxon Mobil reportedly paid its Chief Executive Officer $147 million in compensation and benefits. That amount is $55 million more than what the State of Alaska and three federal agencies announced today that they are seeking from the company in new damages from the 1989 wreck of the Exxon Valdez oil tanker in Prince William Sound. After posting a record $36.1 billion in profits last year-- that's right, billion with a "b"-- and with Congress making noise about windfall-profit legislation, there is no legitimate reason for the company not to quickly and happily pay the damages. It is, pardon the pun, a drop in the ocean compared with the money that routinely passes through the company's coffers. And the demand comes at a particular pregnant moment-- with company shareholders in meetings about the company's future....

By | June 1, 2006; 4:30 PM ET | Comments (13)

Coalition of the Candid

The Supreme Court of Spain today threw out a 9/11 conspiracy conviction after prosecutors acknowledged that the case against an Al Qaeda follower was weak. Think Zacarias Moussaoui without the confession and the political push to make him a scapegoat and the dilapidated case of Imad Yarkas is what you get. Our ally in the war on terror, a nation in the "coalition of the willing," Spain took the extraordinary (and extraordinarily brave) action after local prosecutors conceded that the 9/11 conspiracy case against Yarkas was "inconsistence, almost nonexistent." Yarkas still will serve a lengthy prison sentence for a less significant conspiracy conviction but now the official and honest legal position of Spain is that he was not involved in specific planning for the terror attacks on America. Good for Spain....

By | June 1, 2006; 2:00 PM ET | Email a Comment

Thou Shalt Drop it Already

Here we go again. The Washington Post is reporting this morning that an evangelical group is planning to send a religious message to the Justices of the United States Supreme Court by placing a Ten Commandments monument on the group's private property across the street from the Courthouse. The move should not spark the sorts of legal fights we've seen lately over the placement of such monuments on public property. The land upon which the monument would rest is not public property. However, the folks at Faith and Action, which the Post describes as a "D.C.-based evangelical Christian group," apparently have to get some sort of "public space" permit from City officials and also perhaps approval from the City's Historic Preservation Review Board. And so far they have been unsuccessful. It's only a matter of time, it seems to me, before this stare-down makes it to court. Uh, that's to...

By | June 1, 2006; 8:30 AM ET | Comments (30)

 

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