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January 10, 2010

SCOTUS starts 2010 with lots of sentencing stories pending

The Supreme Court is back to in action Monday, and Tony Mauro has a preview of some of the biggest 2010 story lines in this piece headlined "High Court Returns to a Busy Schedule: As the new year begins, blockbuster opinions and maybe a retirement greet Supreme Court." Here are a few of the highlights, with an emphasis on criminal justice stories:

It wasn't exactly a lost fall for the U.S. Supreme Court, but, as the justices don their robes for the first oral arguments of 2010 starting today, there is a sense that the term is just now beginning to take shape. Blockbuster opinions, riveting oral arguments and a possible retirement loom in the next six months, all promising to make the Court's first three months in session fade quickly from view....

Also being argued this cycle will be a test of the legal status of sex offenders in U.S. v. Comstock, and a follow-up to last year's sleeper decision in Melendez-Diaz v. Massachusetts, which required in-person forensic testimony to satisfy the Sixth Amendment right of defendants to confront witnesses.  In the confrontation case Briscoe v. Virginia, "all eyes will be on Justice [Sonia] Sotomayor," said Roy Englert Jr. of Washington's Robbins, Russell, Englert, Orseck, Untereiner & Sauber. Sotomayor, a former prosecutor, has not ruled on the issue before.

Later this term the Court will hear cases applying the Second Amendment right to bear arms to state gun laws, testing the Alien Tort Statute and the law on "material support" for terrorists, and examining the rights of employee privacy for text messaging.

On March 1, the Court will hear Skilling v. U.S., the last in a closely watched trilogy of cases on the constitutionality of the "honest services" fraud law.  "We've seen a spectacular failure of government prosecutions over the last year," Blatt said.  "It will be quite a crushing blow to the government if the Court scales back or strikes altogether a tool that the government turns to time and time again for its prosecutions of high-profile public and private officials."...

And then there is the biggest imponderable of all -- the possible retirement of Justice John Paul Stevens by term's end in late June .  He has acknowledged hiring only one clerk for next term, and he still seems the most likely to go, though sporadic speculation has justices ranging from Ruth Bader Ginsburg to Antonin Scalia eyeing the exit door.

Notably, we are still awaiting rulings (and even argument) in 9 of the top 10 sentencing cases to watch that I listed here back in October . The Alvarez forfeiture case went away as moot. Also, the case concerning prosecutorial immunity, Pottawattamie County v. McGhee, has gone away because of the parties' settlement. But recent cert grants in cases involving crack retroactivity proceedings and calculating good time credits and other big and small sentencing issues has only increased the SCOTUS sentencing stories to watch over the next six months.

January 10, 2010 at 06:05 PM | Permalink


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Doug is right that this Term stands to be a blockbuster for federal sentencing afficionados. Though no single case is as huge as Booker, several could have a big impact on gun and drug prosecutions. In addition to Dillon (whether Booker applies to crack "resentencings") and O'Brien (whether gun type is an element under 524(c)), keep an eye out for Carachuri-Rosendo v. Holder (09-60)(whether non-citizen convicted of state misdemeanor can be removed and/or sentenced as “aggravated felon” based on hypothetical federal recidivism conviction), which presents an opportunity for the Court to overrule Almendarez-Torres. Also, watch for possible cert grant in United States v. Williams (09-466)(whether “except” clause in 18 USC 924(c) prohibits stacking of mandatory minimums) (to be considered in Jan 22 conference, postponed from Jan 8 conference).

Posted by: margy | Jan 10, 2010 8:28:14 PM

The technical minutia is offensive lawyer garbage utterance. The proper response is caning.

Blockbuster for the cult criminal perhaps. I guarantee the public, and crime victims will be further effed and harder by these horrible people.

This is the embodiment of the criminal cult enterprise hierarchy. They may not be at its top, but they are the most visible manifestation of the most powerful criminal syndicate in history. It has fully infiltrated the government of the United States. We talk about corruption in Mexico or Sicily. Here, the Mafia is the government. No corruption is needed. No bribes, no threats. Indoctrination is enough. They plunder all productive entities to fund their sinecures and the Roman Orgy lifestyle of the social parasites they have as clients. And nothing they do has the slightest validity, except at the point of a gun.

Posted by: Supremacy Claus | Jan 10, 2010 8:43:28 PM

Who pissed in your Corn Flakes?

Posted by: Scott Forster | Jan 10, 2010 9:37:49 PM

About 90% of crimes go unanswered. When the criminal law gets a hold of the person, at least 20% of the time, it is the wrong guy. These incompetent rent seeking cult criminals give themselves total immunity from any accountability.

Imagine a car that did not start 90% of the time. When it did start, 20% of the time, it lunged forward destroying the garage. Should torts apply to such a product? These horrible cult criminals have dealt themselves absolute immunity.

You may be someone who is getting his from this bunko operation. That is why the self-evident is invisible.

Posted by: Supremacy Claus | Jan 10, 2010 10:10:56 PM

The idea that 9 nincompoops get to make the law of the United States on the widest variety of highly technical subjects is the height of folly. They know nothing about nothing. Worse, they believe themselves to be highly intelligent. All are mental cripples, with less sense than anyone with mental retardation, after that law school experience. They are insufferable in their incompetence combined with arrogance.

Posted by: Supremacy Claus | Jan 10, 2010 10:15:22 PM

i'm glad to see two sexoffender cases here and maybe a 3rd one if they take the one from that idiot DA in kentucky....Long past time they backed up their decision in dole v smith which makes just about ever law covering sex offenders passed in the last 9 years ILLEGAL.

before the 1,000,000 plus people they effect get fed up and do something drastic

Posted by: rodsmith3510 | Jan 11, 2010 2:36:23 AM

The idea that 9 nincompoops get to make the law of the United States on the widest variety of highly technical subjects is the height of folly.

I’m in the mood for a good laugh, so I will ask: If not them, then who?

Posted by: Marc Shepherd | Jan 11, 2010 8:46:24 AM

Before moving on to 2010 rulings, did anyone on this blog happen to notice the outcome of Pottawattamie County v. McGhee? There has been no mention of it & since the regulars here don’t seem to miss much………just curious.

The lack of a definitive ruling by SCOTUS may well be one of those damned if they do, damned if they don't situations. By hearing the case in the first place one would think that SCOTUS saw some room for discussion and the need for a definitive ruling. By making no ruling SCOTUS appears to have left intact the idea that, prosecutors can still be subject to civil rights lawsuits but are we sure that's what they meant?

One interesting post that I came across at http://bit.ly/6gQEKG, says that the answer is still "Blowin' In The Wind." I tend to agree.
We won't know for sure until another prosecutor(s) commit(s) an act of prosecutorial misconduct egregious enough to make the difficult trip back to the Supreme Court and the court actually makes a ruling. Will it take another 26 years?

Until that time are prosecutors like Jason Ferguson in the Shelnutt case, http://bit.ly/4vjkXw Kenneth Kohl, Blackwater http://bit.ly/5Isnaf and the prosecutors in the Broadcom case http://bit.ly/8jvJnN among others, free to continue their practice of conviction by any means at any cost approach to justice? Judges with their eyes wide open stopped these three this time but what about next time? How many more lives must be destroyed before the injustice is stopped and prosecutors are told once and for all that if they lie, fabricate evidence they will be held liable?

Posted by: T Kinney | Jan 11, 2010 1:27:02 PM

Marc: Supremacy Clod apparently would like to see an American Khmer Rouge that takes out anyone who dares peep inside a casebook. The benefits of implementing this type of system would definitely mean lower taxes. The downside is that any tax savings would be redirected to outfitting one's bomb shelter with anti-cannibal barriers and electricity-generating treadmills.

Personally I can fake illiteracy and ignorance pretty easily (I went to a 4th tier law school) and I don't wear glasses -- so I'll survive the purges. Too bad for the rest of you!

Posted by: Ferris Bueller | Jan 11, 2010 3:14:00 PM

Marc: You know the standard high school answer. It is just not coming to you for some reason.

The legislature.

Say they know nothing about ships or electric utilities. They have the time and resources to learn about ships or electric utilities, to get both sides of a controversy, and to determine the public interest. They have the imprimitur of being elected to do that and to be held accountable for their mistakes.

The canceling of a law is law making. That is assigned to the legislative branch by Article I Section 1 and the state equivalents. Judicial review is an insurrection and lawless. I am not a hopeless idealist or tax resistor type. I understand this principle is established. Only drastic circumstances and remedies will change it. Yet, this is the crime of the appellate judiciary, and justifies their mass arrests, once the public has had enough of their rent seeking tyranny.

Examples of judicial review, all quite lawless, and quite harmful. Dred Scott, the first and biggest whopper in judicial history ranking with the mistakes of the German judiciary allowing the unlawful extermination of the Jews, and the confiscation of their assets. The German judiciary was given the choice of ruling in favor of the Nazi Party or of being shot. That is an excuse, at least. I am certain most of those judges perished either in the war, or were hanged after the war. They paid the proper price for their "legal realism."

Before getting too uppity and feeling superior to the Nazi judiciary, Roe v Wade, killed millions of viable babies. We can agree that was legislature grade law making.

Legal realism and the Nazi judiciary both originated in the Free Law Movement of Germany. The German Llewellyn of contracts fame trained Cardozo in its principles. Legal realism is the ideology that is the Trojan Horse for rent seeking, and the plunder of our economy by the greatest criminal syndicate in history. It is not corrupting our government as they are doing in Mexico or Sicily. It is running it, making 99% of the policy decisions, usually in favor of rent seeking.

I think you will agree those decisions alone justify the arrest of the insurrectionists. Lincoln signed the arrest warrant for Taney. A federal marshal waited outside the door. A lawyer persuaded Lincoln to not hand it out. Union Soldiers pistol whipped a federal judge on the bench when he refused to go with them. He was handing out habeas orders to release Southern agents in Baltimore. They threw him into a stinking jail. To deter.

Posted by: Supremacy Claus | Jan 12, 2010 9:01:12 AM

Ferris: Take it easy. I am not advocating any Khmer Rouge extermination of intellectuals.

I am advocating obeying the simple and clear language of the Constitution. For example, judicial review is prohibited by Article I Section 1. Supernatural core doctrines are prohibited by the Establishment Clause. These come from the Catholic Catechism. How would you like Sharia law as the basis of our laws? You would scream. Why is a Catholic jurisprudence any more acceptable? If it worked, one could look the other way. However, every self-stated goal of every law subject is in failure. The atavism to 1275 AD is a potential explanation.

I love the lawyer, and all this is for your personal welfare. If the public is oppressed by the criminal cult enterprise hierarchy, the lawyer is doubly so, and the ordinary judge, triply so.

Posted by: Supremacy Claus | Jan 12, 2010 9:12:51 AM

T Kinney you must have missed where there was a settlement of 12 million dollars so the case was withdrawn after the arguments but before a decision.


The U.S. Supreme Court will not decide the question in Pottawattamie County v. McGhee, whether prosecutors can be liable for fabricating evidence, coaching witnesses, concealing exculpatory evidence, and sending an innocent person to prison for 25 years of his life, because the government has settled the case before SCOTUS had the opportunity to rule.

Posted by: rodsmith3510 | Jan 12, 2010 10:34:43 PM

rodsmith3510, thanks for your reply but I didn't miss anything. That was the point of my asking, "did anyone on this blog happen to notice the outcome of Pottawattamie County v. McGhee?" I know darn well that all of the regulars here are aware of the outcome. It just struck me as curious that, in light of the comments on every other issue under the sun, there were no "opinions" given when the issue is about lying lawyers. Maybe it just hits too close to home.

Does 12 million buy silence as well as a settlement? Sure looks like it.
I will again refer to the post at http://bit.ly/6gQEKG The answer is "Blowin' in the Wind” The answer, it seems, will continue Blowin' in the Wind and prosecutorial misconduct will continue, business as usual except for the few that are stopped by judges such as those referenced.

Posted by: T Kinney | Jan 13, 2010 1:17:50 PM

LOL got me. I was sure you were asking about it since you didnt' know. Teach me to real the WHOLE post!

Posted by: rodsmith3510 | Jan 13, 2010 10:23:56 PM

Not a problem. Happens to me more and more in my old age but I would still like to hear from the "experts"

Posted by: T Kinney | Jan 14, 2010 11:56:24 AM

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