by TChris

In a unanimous opinion, the Supreme Court decided today that a lawyer in a death penalty case who concedes her client's guilt during the trial's guilt phase (at least when evidence of guilt is overwhelming) in order to preserve her credibility in making a case against death during the penalty phase does not automatically fail to provide the effective assistance of counsel required by the Sixth Amendment. A syllabus of the decision in Florida v. Nixon is here (pdf).

The Court also decided that the reasonableness of an officer's use of deadly force was sufficiently murky (in light of Fourth Amendment precedent in existence in 1999) to shield the officer from a lawsuit. The officer shot a man in the back as he was attempting to elude an arrest for drug offenses and property crimes. In a per curiam opinion, with only Justice Stevens dissenting, the Court held that the officer was immune from suit, regardless of whether the shooting was unreasonable under the Fourth Amendment (a question the Court unhelpfully chose not to decide), because the law was insufficiently clear to place the officer on notice that he shouldn't have killed the fleeing man. The decision is here (pdf).

Update: No decision today in Booker or FanFan--it will be January at the earliest.

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The potentially biggest criminal law decision in the past 20 years could come down this morning from the Supreme Court. Booker and Fanfan will determine the fate of the U.S. Sentencing Guidelines in the post-Blakely nation.

It may not be good news, either way. If the Supreme Court invalidates the guidelines, many think Congress already has the bills drafted to create mandatory minimum sentences for every federal crime.

TalkLeft's frequent contributing blogger TChris is counsel for Mr. Booker and argued the case in the Supreme Court. He must be on pins and needles....Good luck, TChris. He did an outstanding job for his client.

Check in with Law Prof Doug Berman at Sentencing Law and Policy for late-breaking developments. ScotusBlog and How Appealing as well.

The New York Times has an article that begins, "What was Bernie Kerik thinking?" Much of the article is about Rudy Giulani, and it's not flattered to the ex-Mayor and former prosecutor:

Most of America knows the heroic Rudolph W. Giuliani, celebrated for his masterful leadership after Sept. 11. But before the terrorist attacks, Mr. Giuliani's popularity had dropped at home. Even fans had tired of his aggressive style.

On the premise that it took tough leadership to tame New York, the former mayor conducted himself with unapologetic hubris, surrounding himself with a deferential inner circle - including Bernard B. Kerik as commissioner of correction and then commissioner of the police.

The insular Giuliani team could be secretive, could play loose with people's rights and would even violate the law, attracting lawsuits that City Hall usually lost.

The Supreme Court Friday let stand a decision by the 10th Circuit Court of Appeals allowing members of a New Mexico church to drink a hallucinogenic tea as part of its Christmas service.

The legal battle began after federal agents seized 30 gallons of the tea in a 1999 raid on the Santa Fe home of the church's U.S. president, Jeffrey Bronfman. Bronfman sued the government for the right to use the tea and the church won a preliminary injunction, which was upheld by 10th U.S. Circuit Court of Appeals in Denver.

The Bush administration then took the case to the Supreme Court.

"They're delighted," attorney Nancy Hollander said of the church members she represented. "They're so thrilled that they can celebrate Christmas for the first time since 1998."

The state of New Jersey has the purest heroin in the nation according to a new report by the DEA. Runners up: Philadelphia, New York, Baltimore and San Francisco. Agents speculate the reason is because New Jersey is a first stop for traffickers.

The Newark DEA has made the drug its top priority, devoting half its manpower to root out heroin dealers. Heroin seizures have increased 600 percent in the past five years, Pasterchick said.

The newest Jeb Bush appellate judicial pick favors rock and roll executions:

Brad Thomas, Gov. Jeb Bush's long-time public safety policy coordinator, is leaving to take a judgeship on the 1st District Court of Appeal in Tallahassee. He was named Thursday to the appellate court to fill the vacancy created by the retirement of Judge Anne Booth.

Thomas' previous attempts to secure a circuit and county court judgeship were unsuccessful. Thomas, who has advised Bush on the death penalty, crime policy and other issues, caused a stir in 2000 when he urged a more streamlined system of appeals for death row inmates, telling the St. Petersburg Times, "Bring in the witnesses, put them on a gurney, and let's rock and roll." He later apologized for the comment.

[hat tip Rochelle R., Tampa.]

Afghan President Karzai says Osama is nearby and will be caught. The U.S. and Pakistan say the trail is cold. How can both be true?

Just because you haven't flown lately, or worked at an airport or on a cruise ship, don't think you are home free. The U.S. has contracted with WorldCheck, a private, overseas company to compile a financial watch list--a list of people who, in the company's judgement, are likely to commit financial crimes. The assessment is based on an assortment of public records and data.

"There's a real risk in a situation like this because there's really no accountability," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, an advocacy group based in Washington devoted to privacy issues. "People can find themselves on a watch list incorrectly, and the consequences can be very serious."

Mr. Rotenberg likened the trial program at the department to a Pentagon operation disclosed last year in which JetBlue airlines agreed to turn over data on millions of its passengers to a private contractor doing antiterrorism work for the military. In both cases, Mr. Rotenberg said, government officials effectively "outsourced" the job to private firms "in order to develop profiles on people and circumvent U.S. privacy laws."

Aliakbar and Shala Afshari worked at the National Institute for Occupational Safety and Health. They have been in the U.S. for 18 years, working and raising a family. On May 5, they were fired suddenly--being told only that they had The failed a secret background check.

What does that mean?

They have been told they were fired for national security reasons that remain secret. When their lawyer requested the documents used to justify the action, he was told none existed. When he asked for copies of the agency's policies relating to the background checks, he received a generic personnel handbook.

Finally, they sued.

U.S. Staff Sgt. Jeremy Horne has pleaded guilty to unpremeditated murder of a 16 year old Iraqi. Horne and another soldier came upon the wounded teen in a burning vehicle and Horne either ordered the teen shot or shot him himself to put him out of his misery. Horne received a three year sentence, a demotion to private, loss of wages and a dishonorable discharge.

The charges relate to the Aug. 18 killing of a 16-year-old Iraqi male found in a burning truck with severe abdominal wounds sustained during clashes in Baghdad's Sadr City, an impoverished neighborhood that was the scene of fierce fighting between U.S. forces and Shiite rebels loyal to anti-U.S. cleric Muqtada al-Sadr. A criminal investigator had said during an earlier hearing that the soldiers decided to kill him to "put him out of his misery."

Staff Sgt. Cardenas J. Alban, 29, of Inglewood, Calif., is also charged in the death. His case is pending.

Human rights groups have condemned the illegal killings of Iraqis either civilians or wounded fighters by the U.S. military, saying such acts amount to violations of international humanitarian rights and should be dealt with as war crimes. Critics also say poor understanding by young U.S. troops of the rules of military engagement leads to the killing of civilians.

"It doesn't help you win the hearts and minds of the public if you put a bullet in their hearts and another in the minds," said Mark Garlasco, senior military analyst for Human Rights Watch.

The teen was 16-year-old Qassim Hassan, who was working with relatives collecting rubbish. More details here.

The Supreme Court has agreed to hear the case of Jose Medellin, a Mexican national on death row in Texas whose case was heard by the World Court (International Court of Justice in the Hague) last year. Medellin was denied the right to speak with the Mexican consulate after his arrest. The case has important international implications.

The question is whether the federal government can permit Texas to execute a Mexican whose rights under a binding international treaty were violated when he was tried and sentenced to death without Mexican officials being notified.

On March 31, the International Court of Justice ordered the United States to undertake "an effective review" of the convictions and sentences of the inmate, José Ernesto Medellín, and 50 other Mexicans under death sentences in nine states. The court, usually known as the World Court, ruled that all 51 had been deprived of their right under the Vienna Convention on Consular Relations to meet with Mexican government representatives.

Mexico was not notified that Mr. Medellin had been sentenced to death until three years after he arrived on death row. Mexico then sued in the World Court. The World Court did not reverse the conviction, but ordered the U.S. to review each case individually.

Yesterday it was airline passengers. Tomorrow, it will be airport and cruise ship employees.

The change, included in the intelligence bill passed by Congress this week, means hundreds of thousands of additional names will be compared with those on two lists - one for people suspected of terrorism, the other for people the government says require additional scrutiny for some other reason.

What other reason?