All Blog Posts from Courtwatch

The United States Supreme Court Monday tackles a sensitive legal issue that has taken on both great political and economic relevance this past year.

At a time when budget shortfalls are causing state and local bureaucrats to release prisoners early from over-crowded and expensive jails, the Justices have chosen to decide whether the Eighth Amendment's prohibition against "cruel and unusual punishment" precludes life sentences without parole for juvenile offenders who have not committed capital crimes.

Two Florida cases bring the topic to the High Court. In one, a 17-year-old was sentenced to life without parole after he was convicted for taking part in an armed home invasion while he was on parole for another crime. In the other, a 13-year-old was sentenced to life without parole after he was convicted for raping an elderly woman.

According to the Sentencing Project, an advocacy organization which tracks such things, of the 111 juveniles around the nation currently serving life sentences without parole for non-capital crimes, 77 are in Florida.

Terrance Jamar Graham and Joe Harris Sullivan, the two young men who are challenging the lengths of their sentences, argue simply that the punishment did not fit their crimes given their respective ages. Lawyers for Sullivan, only 13 when he was sentenced, state the core of his case this way: "Life imprisonment without parole sentences for children of 13 are so vanishingly rare as to make their repudiation by contemporary American society unmistakable." They are thus emphasizing the "unusual" in "cruel and unusual" punishment.

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And so it came to pass that on the day before Halloween 2009 we all were reminded that most of the biggest tricks of the past decade were on us.

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It is easy both to overstate and understate the meaning of the Justice Department's decision Monday to alter its policy toward medical marijuana.

The Obama Administration's ballyhooed shift away from federal prosecution for state-sanctioned pot sales and use does not necessarily signal a turning point in the effort to legalize (and tax) marijuana. We are probably still a generation or two away from that. But the new White House policy is no small matter, either, for it means that tens of thousands of Americans now are free from federal persecution and prosecution for conduct that is completely legal in their own states.

Federal prosecutors now will get little internal blame for failing to bring criminal charges against people who are lawfully selling or using medical marijuana. Nor will federal lawyers necessarily get kudos within the department if they aggressively pursue medical marijuana cases. Forget all the nonsense about federal funding and national endorsements of drug use. The official government position now reverts simply to something akin to legal neutrality: if you smoke it, we won't come, because we have more important things to do with our time.

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Larimer County Sheriff Jim Alderden (left) was just trying to make the best of a bad situation this past Thursday afternoon when he was called to the chaotic home of Richard and Mayumi Heene in Fort Collins, Colorado.

Now, a few days and countless hours of television face time later, he's just as earnestly trying to save his face and cover his butt.

If the Front Range's ill-fated "balloon ride" were a screenplay, it would have been a remake of "It's a Mad, Mad, Mad, Mad World."

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Citing anonymous sources, The New York Daily News told us Tuesday morning that federal officials are thinking about bringing to New York for trial alleged 9/11 mastermind Khalid Sheik Mohammed. The concept is a good one—our federal courts are perfectly capable of prosecuting terror suspects like Mohammed—but the purported choice of venue is weak. The trial of the century for the most important Al Qaeda member ever captured ought to take place in Virginia or Pennsylvania, not New York, for a number of very good reasons.

Bringing Mohammed to trial in New York in a capital case certainly has historical, political and narrative appeal—it would take place just blocks from where the World Trade Center once stood. But locating a death penalty case in downtown Manhattan would immediately give Mohammed's lawyers a trenchant argument to change venue because of the possibility of an unfair trial due to pretrial publicity. If Timothy McVeigh couldn't be assured a fair trial in Oklahoma City before the age of the Internet how in the world could Mohammed be tried fairly today in New York City, which bore the brunt of the 9/11 attacks?

Bringing Mohammed to trial in the Eastern District of Virginia—Alexandria, to be exact—or to the Western District of Pennsylvania—Shanksville, to be exact—would also create live change-of-venue arguments for his lawyers. Northern Virginia was the scene of the crash of Flight 77 into the Pentagon. Somerset County saw the demise of Flight 93. But those arguments wouldn't be nearly as strong as the change-of-venue motion filed in New York. The media in those other places does not remotely saturate the market or drive public conversation the way the media does in Manhattan. So why not start the trial where it is likely to end up? Why not preclude a strong venue challenge?

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The Supreme Court's 2009-2010 term is already shaping up to be an odd one.

First, it started four weeks before the first Monday in October, when the Justices in a September session took up federal campaign finance laws. Based upon the questions (and answers) during a rare summer oral argument, it is virtually a lock that a majority of the Justices will vote to overturn the Court's own precedent and dramatically reduce the impact and effect of the McCain-Feingold law. And if this occurs it will probably be the biggest decision of the term.

Meanwhile, the Court's work this fall, winter and spring is almost entirely devoid of "traditional" hot button cases. I can't remember the last time that occurred. At least at the moment, subject to the addition of new cases to be heard early in 2010, there is no grand abortion case, no Second Amendment tussle, no dynamic environmental law fights over owls or whales or snails, not even a resonant showdown between employee and employee a la Lily Ledbetter. Right now, there isn't even a good, solid, terror law case set for review, although that is likely to change as the Justices round out their calendar.

Sure, there will be decisions we'll all be talking about when they come down. There always are. In fact, one of the very first cases of the October term is one of those made-for-cable conflicts involving a series of dog-fighting videos and the first amendment. It's got lots of sound, lots of fury, but it's not likely to change your life or mine (unless you are into such things, in which case shame on you). Lucky for her, Justice Sonia Sotomayor's debut term sure doesn't figure to posses much of the political and partisan steam its recent predecessors have had.

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The government slapped another one of its cards down on the table Thursday morning when it charged the most famous airport shuttle driver in American history, Najibullah Zazi, with conspiracy to use a weapon of mass destruction (really: conspiracy to detonate a bomb). The new count brings with it the possibility of a life sentence, without parole, and thus is of a more serious magnitude than the original charge, lying to federal agents, with which Zazi had been tagged last weekend in Denver.

The case against Zazi now becomes a true terror case—it won't be long before terror support charges are added to the blend-- and at first blush it seems much sounder than many of the other terror cases we've seen over the past half decade. For example, the allegations against Zazi and "unknown others" are much more detailed, and specific, than were the allegations and evidence presented against Jose Padilla, the once-upon-a-time-dirty bomber who ultimately was convicted of terror support (after the briefest of jury deliberations) in Florida.

For example, the feds say they have videotape of Zazi, and others, purchasing large quantities of hydrogen peroxide and acetone from Colorado beauty shops—ingredients, government lawyers say, that other terror suspects have tried to use to make bombs. They say they found a suspicious scale in his apartment and incriminating bomb-making instructions on his computer. They say they've found backpacks that might have been used in an attack. And they say they have evidence of Zazi attending a terror training camp in Pakistan.

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Ninety years ago, in the shadow of the Great War, long before the invention of cable news and bloggers, the great American writer and journalist Walter Lippmann wrote in Liberty And The News that:

The world about which each man is supposed to have opinions has become so complicated as to defy his powers of understanding. What he knows of events that matter enormously to him, the purposes of governments, the aspirations of peoples, the struggles of classes, he knows at second, third or fourth hand. He cannot go and see for himself.

Americans could not go see for themselves the effects of the Bush Administration's torture policies. There are no commuter flights to Guantanamo Bay, Cuba and the train doesn't run on time to Baghdad's Abu Ghraib prison. The digital cameras that recorded the degradation of Iraqi prisoners at the prison were never supposed to see the light of day. And the video recordings of the Gitmo interrogations were improperly destroyed by the CIA so that they never would.

We were blind but now we begin to see. Slowly, a clearer picture is emerging of the legal and political path from the "torture memos" authorized by the Office of Legal Counsel (by men like John Yoo and Steven Bradbury and Alberto Gonzales) to the reported water-boarding (simulated death by drowning) of Khalid Sheik Mohammed not once or twice but 183 times. What began in 2002 as faux legal ambiguity (about the legality of torture) turned into official military policy and then into a moral and diplomatic disaster and now has become, as almost all facts always do, a part of history.

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It’s been fascinating over the past week to watch federal agents and lawyers, working with state and local counterparts 1,600 miles away, choreograph the events leading to the arrests late Saturday night of Najibullah Zazi and his father, Wali Mohammed Zazi, on federal "false statement" charges. Is this the "first al-Qaeda terror cell" discovered in the United States since 9/11 or is it something far less sinister? Even the feds don’t really know for sure.

That didn’t stop them, however, from clicking off all of the elements of their perennial song-and-dance number in terror-plot cases; this time from New York to Denver to Washington and back. The prejudicial leaks from law enforcement; the prompt (and promptly repeated) links to al Qaeda; the dramatic headlines, the identification of a "person of interest;" the assurances that no particular target had been specified; the intercession of an overwhelmed defense attorney; the denials, the meetings, the breakdown in talks, and, finally, the arrest (late at night, but with the tipped-off news cameras hovering above and about).

We’ve seen various iterations of the perp-walk parade hundreds of times before, in cases that merited the attention or not, and certainly dozens of times since Sept. 11, 2001. Often, way too often, the government has in the end been able or willing to prove far less than the initial (and often hysterical and hysterically received) allegations — distributed (typically without challenge) via cable television and the Internet — suggested.

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If you want to know what I really think about the injustice Texas is currently perpetuating upon the person of one Charles Dean Hood, at left, let me put it to you this way: even if Osama bin Laden himself were on trial for mass murder, with Hitler, Stalin and Timothy James McVeigh as his co-defendants, I still would think it was wrong to allow a capital trial where the judge and the prosecutor were or had been lovers.

The Texas Court of Criminal Appeals Wednesday whitewashed -- poof, like pixie dust!-- one of the worst examples of conflict-of-interest I have ever seen. The same court that recently defied the United States Supreme Court dismissed in a three-page, fact-less, analysis-free opinion an appeal by lawyers for a convicted murderer who, like any one of us accused (or convicted) of murder, has a right to a fair trial by unbiased and professional agents of the government.

I have little sympathy for Hood. It may be that jurors in his second trial convict him as quickly as jurors in his first trial did. He may be guilty beyond all doubt, let alone reasonable doubt. I don't know. And really, it doesn't matter.

His guilt or his innocence does not and should not excuse the solemn duties of prosecutor and judge to grant him a trial free of even the perception of gross impropriety or unfairness. All of us deserve that right, including those of us who are accused of the most heinous crimes. In fact, those people probably need it most.

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