We hear federal judges all over the country are continuing (in layspeak: postponing) sentencing hearings as a result of the Supreme Court decision in Blakely this week (see here and here.) No one yet is certain how to apply it. In our federal court (Colorado), we have it on good authority that the following colloquy occurred yesterday between a judge and a terrorism prosecutor:

The Judge called Blakely a "cataclysmic event" in criminal law. He told an AUSA from the terrorism section in DC to read it on the plane ride home. He opined that "If the turbulance doesn't make you toss your cookies, Blakely will."

[hat tip DL, Esq.]

Update: Sunday's New York Times examines the impact of the decision here.

Prime Minister Tony Blair has made a secret plea to George Bush to return the four British detainees being held at Guantanamo.

The Guardian has seen court papers revealing the prime minister's direct plea to Mr Bush. They form the government's formal defence to a legal action brought by lawyers for two of the remaining prisoners seeking a court order compelling Britain to formally demand their return. The government's defence states: "The United Kingdom government is continuing to seek the return of the four remaining prisoners and the prime minister has made a di rect request to President Bush to that effect".

In no uncertain terms, Britain has criticized the plans for military tribunals:

Last night the attorney-general Lord Goldsmith said the military tribunals planned by the US at Guantánamo Bay broke international standards. In a speech made after months of talks with US officials, Lord Goldsmith said the right to a fair trial was inviolable. "We in the UK have been unable to accept that the US military tribunals proposed for those detained at Guantánamo Bay offer sufficient guarantees of a fair trial in accor dance with international standards," he said.

The Washington Post today reports on the many religious demoninations suppporting the legal use of marijuana for medical purposes.

The United Methodist Church, the Union for Reform Judaism, the Progressive National Baptist Convention, the Episcopal Church, the Unitarian Universalist Association, the Presbyterian Church (USA), the Evangelical Lutheran Church in America and the United Church of Christ have made statements supporting the controlled use of marijuana for medical reasons.

"According to our tradition, a physician is obligated to heal the sick," begins a resolution adopted in November by the Union for Reform Judaism. The statement acknowledges the medical use of marijuana as a 5,000-year-old tradition and encourages the federal government to change marijuana's status from a prohibited substance to a prescription drug.

The Bush Administration, the Justice Department and the White House Office of National Drug Control Policy remain adamantly opposed. Your vote in November could make a difference on this issue, as John Kerry has a far more progressive view on the issue.

Journalist and blogger Dave Cullen of Conclusive Evidence weighs in on the puritanical reaction to Jack Ryan's sexploits with his wife.

None of this was about his wife. It was all about the sex. Freaking Puritans.

A 'Romeo and Juliet' law is under attack in Kansas by the ACLU. What's that? It's a law prohibiting consensual sex between teenagers. In Kansas, the penalties are vastly greater for same-sex participants. Matthew Limon, a developmentally disabled teen, is serving a 17 year sentence for an offense that would have resulted in a 15 month term had his partner been a female:

In February of 2000, Limon and another male teenager were both students at the same residential school for developmentally disabled youth in Miami County, Kansas. A week after Limon’s 18th birthday, he performed consensual oral sex on the other teenager, who was nearly 15 years old – three years, one month and a few days younger. Because Kansas’s so-called “Romeo and Juliet” law gives much lighter sentences to heterosexual teenagers who have sex with younger teens but specifically excludes gay teenagers, Limon was sentenced to 17 years in prison. A heterosexual teenager with the same record would serve no longer than 15 months for the same offense.

...Under the Kansas “Romeo and Juliet” law, consensual oral sex between two teens is a lesser crime if the younger teenager is 14 to 16 years old, if the older teenager is under 19, if the age difference is less than four years, if there are no third parties involved, and if the two teenagers “are members of the opposite sex.”

Background on the case is here, which includes this description of the law:

by TChris

John J. Hatfield, the LAPD officer who beat Stanley Miller with a flashlight as another officer was placing Miller in handcuffs, claims the beating was justified because he was warned by the two officers who already had Miller under control that Miller had a gun in his pocket. The object in Miller's pocket turned out to be wire cutters -- a tool that bears not the slightest resemblance to a gun -- but the explanation, even if mistaken, doesn't justify kicking and hitting Miller. The most effective protection against a gun is to take the gun, not to beat a man who has already given up and who is being handcuffed by other officers.

by TChris

A man who may not live another year, and who clearly poses no continuing threat to society (if he ever did), hopes to be released from prison after almost 30 years. Maurice Carter has always maintained that he didn't commit the crime (shooting a Michigan police officer who survived five bullets) that resulted in his life sentence.

An all-white jury in 1976 sentenced Carter to life in prison for shooting the police officer, even though two key black witnesses insisted Carter was not the gunman.

One witness recanted at the trial, saying he identified Carter to save himself from a drug conviction. The other witness, the store clerk at the shop who waited on the gunman for 10 minutes, also testified that Carter was not the gunman.

Gov. Jennifer Granholm granted Carter a medical commutation of his sentence, giving him a chance to receive a liver transplant that he probably wouldn't have had while in prison. Carter's release may be delayed, however, if the officer's family members continue to object.

Whether or not Carter is innocent, it makes no sense to force the elderly or infirm to die behind bars. They pose no threat to society, and the opportunity to die with dignity should outweigh society's desire for retribution.

by TChris

Terry Jones puts the infamous March 6, 2003 torture memo in perspective by applying its reasoning to parental discipline of children.

The March 6 memo, prepared for Mr. Rumsfeld, explained that what may look like torture is not really torture at all. It states that: if someone “knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.”

What this means in understandable English is that if a parent, in his anxiety to know where his son goes after choir practice, does something that will cause severe pain to his son, it is only “torture” if the causing of that severe pain is his objective. If his objective is something else—such as finding out where his son goes after choir practice—then it is not torture.

In fact, the report went further. It said, if a parent “has a good-faith belief [that] his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture.” So all you’ve got to do to avoid accusations of child abuse is to say that you didn’t think it would cause any lasting harm to the child. Easy peasy!

by TChris

Some jurisdictions make it a crime to utter a public profanity (at least if the profanity disturbs or might disturb others) -- laws of dubious constitutionality that some courts have nonetheless upheld. Dick Cheney is leading the way toward a new defense to such charges: profanity as therapy, a form of self-defense or medical necessity.

Cheney admits he "probably" tossed the F-word at Senator Leahy this week, but says he "felt better afterwards." Good for him. And good for all the criminal defense lawyers who can now say in a closing argument: "If the Vice President can say that word in the Senate chamber as a stress reliever, how can my client be guilty of disorderly conduct for saying the same word? Isn't he entitled to a little therapy too?"

A big thanks to Dick Cheney for making clear a fact we've always known: even Republicans swear, and it's not a big deal -- making it an effing shame that people sometimes get charged with a crime for using language that others find disagreeable.

It's official...Jury selection in Kobe Bryant's trial on a sexual assault charge begins August 27. The Judge expects jury selection to last four to five days. The trial likely will last between two and four weeks.

In other case news, the court reporter made a big mistake and sent transcripts of sealed hearings to 7 media outlets. The Judge ordered the media to destroy the transcripts and not distribute them.

The trial should be over by the beginning of basketball season. Reporters have been asking us if we think there is any chance of a plea bargain. In our view, the only deal that would be acceptable would be a misdemeanor plea to a non-sex offense. The only way we can see that being put on the table is if the Judge were to rule Kobe's statements inadmissible --and the accuser's contemporaneous sexual activity and medical history admissible.

The setting of a trial date suggests to us that several key rulings, including on the three issues just mentioned, will be released shortly. More hearings are set for July 19 - 21.

by TChris

The best remedy for detested speech is the counterforce of opposing speech. More power, then, to the Michael Moore foes who want to showcase conservative documentaries at the American Film Renaissance (a/k/a The Right Wing Film Festival) in Dallas. Filmmakers bankrolled by some "big-time conservative donors" will show films like "Michael Moore Hates America" -- generating even more publicity for Michael Moore and his documentary as he hits the media to answer his critics. This is the way the marketplace of ideas is supposed to work, making the film festival a more reasoned response to Moore than the effort to suppress advertisement of his documentary reported yesterday.

Update (by TL): SKBubba saw Moore's film today and gives it a great review.

by TChris

Last week, TalkLeft wrote about Bernard Baran, a gay man who was swept up in the nationwide hysteria generated by false accusations of child molestation in daycare centers during the 1980's. The good news for Baran in his bid for a new trial is that he's represented by an excellent team of lawyers.

Led by attorneys John G. Swomley and Harvey A. Silverglate, with the assistance of Pamela Nicholson, Baran’s lawyers have discovered more evidence of potentially unreliable testimony by Baran’s accusers, alleged prosecutorial misconduct, and an ineptly presented defense — all of which speak to Baran’s innocence.

You can read about the compelling new evidence of Baran's innocence here.

Speaking of Silverglate, you may enjoy reading his comparison between John Ashcroft's version of justice and the show trials (i.e., coerced guilty pleas) favored in the former Soviet Union.

See the emerging picture? It’s an endless series of faux prosecutions in which defendants are threatened to "cooperate" and plead guilty, or face indefinite incommunicado imprisonment, with all the physical and psychological terrors that accompany finding oneself in a bottomless legal pit. ... None of the "evidence" ever gets to be heard and evaluated by a jury of honest Americans, but the march of prosecutions and guilty pleas rolls onward, and the Bush administration’s war on terror is palmed off on the public as a huge success.