The New York Times on President Bush's recess appointment of William Pryor to the 11th Circuit Court of Appeals:

Judge Pryor has testified before Congress in favor of dropping a crucial part of the Voting Rights Act, argued in favor of a Texas law that made gay sex illegal and taken outlandish positions on "federalism," a states' rights philosophy that seeks to undercut federal rights. He has reserved his most intemperate remarks for the issue of reproductive rights, declaring at one point that Roe v. Wade, the landmark ruling upholding abortion rights, had "ripped the Constitution and ripped out the life of millions of unborn children."

The recess appointment will last only until sometime in the fall of 2005. At that point, Judge Pryor will need Senate confirmation. Given his record, even that brief term seems much too long.

by TChris

In another victory for opponents of the death penalty, a New Jersey appellate court ruled that the state cannot execute any prisoners until it implements procedures for halting an execution after the process has begun, or proves that the process, once started, is irreversible.

In the "unlikely" but possible event of a reprieve being issued after the first of three lethal drugs has been injected, the court said, the state would owe the condemned inmate a duty to do everything possible to bring him back from the brink of death. The court said the current regulations assume, without medical evidence, that the process is irreversible.

The court also criticized prison regulations that prohibit contact between the news media and the condemned inmate during his final 72 hours. The regulations permit news media witnesses to see the condemned inmate only after he has been sedated and strapped to a gurney.

Appellate Division Judge Sylvia Pressler rejected the state's arguments that prison security required those restrictions. She added that there is "a significant public interest" in learning about executions.

"It is one thing for proponents and opponents to talk about capital punishment as an abstract proposition. It is quite another to see it carried out," Pressler wrote. She said giving the press and public greater opportunity to see what actually occurs during an execution is not just "a matter of voyeurism. We believe, to the contrary, that it is a matter of demonstrating to the public the reality of the choices it makes."

Since New Jersey has not eecuted anyone since 1963, has only 13 people on death row, and would not be likely to execute any of those in the near future, the ruling, in response to a lawsuit filed by New Jerseyans for a Death Penalty Moratorium, will have no immediate impact. It will nonetheless add fuel to the capital punishment debate, and may contribute to the erosion of public support for the death penalty.

Ralph Nader has said that he will announce shortly his decision whether to mount another third party candidacy during this Presidential election-- thus possibly throwing the election to the Republicans for a second time.

Please see this editorial from the Nation that eloquently explains why this action would betray the causes that Nader claims to stand for.

Please, call Nader's Exploratory Committee at 202-265-4000 and urge Nader not to go on this ego trip again!

by TChris

The United States Supreme Court announced today that it will decide whether American citizens arrested on American soil can be detained indefinitely as "enemy combatants" without access to lawyers or courts. The issue arises in the case of Jose Padilla, a U.S. citizen arrested nearly two years ago for allegedly participating in a plot to detonate a "dirty bomb" in the United States.

Not surprisingly, Attorney General John Ashcroft takes the position that the power to designate someone as an "enemy combatant" and to hold that person indefinitely, without the right to seek release in court or even to obtain legal representation, "is a vital part of the war on terrorism." Others quite properly view such action as a war on the Constitution, which guarantees that no person shall be deprived of liberty without due process of law and contains no express exception for persons viewed as a threat by a presidential administration.

"Because the president said `I think you're a bad man,' he's been in jail for two years," said Andrew Patel, one of Padilla's attorneys. "He hasn't had a chance to defend himself. That's not the way we do things in this country, when we're at war or when we're at peace."

The Court will also decide whether an American citizen captured in Afghanistan can be held indefinitely as an enemy combatant. The cases dovetail with another another case the Supreme Court recently accepted, in which it will decide whether foreign-born terror suspects may be held indefinitely at the military's prison camp at Guantanamo Bay, Cuba. The Court's willingness to decide these troubling issues may signal an unwillingness to accept the administration's cavalier disregard of the Constitution.

by TChris

President Bush will, for a second time, use a recess appointment to install a judicial nominee on the federal bench who failed to win Senate approval. Alabama Attorney General Bill Pryor will be appointed to the Eleventh Circuit this afternoon. Democrats opposed Pryor's appointment for reasons that TalkLeft reported last year.

Bush used a recess appointment last month to place Charles W. Pickering Sr. on the federal Court of Appeals for the Fifth Circuit. Both appointments will last until the next Congress takes office.

It seems likely that Bush made these appointments to appease conservatives who have been critical of the President's actions (and particularly his spending) outside of Iraq. Bypassing the Senate and appointing judges who are likely to favor conservative interests helps the President shore up his base of support.

The president used Democrats’ rejection of Pickering and Priscilla Owen in 2002 to urge his right-wing base to return Republicans to the majority in 2002. Following Republican success in that election, the judicial selection process began to be used in service of the president’s reelection effort. In an effort to shore up his right-wing base and recapture the White House, President Bush re-nominated all pending nominees in January 2003. And by nominating such lightning rods as Pryor and White House Counsel Brett Kavanaugh, the administration was offering more reassurance to the right wing that sympathetic judges would be appointed.

It is not clear that pandering to the right will help Bush in the general election, when he will need to appeal to moderate and independent voters. The President's desparate attempt to firm up conservative support illustrates his fear that even his core constituents won't be enthusiastic about voting or campaigning for him in November.

by TChris

A key witness against Martha Stewart admitted under cross-examination that she may have imagined some of the statements that she attributed to Stewart in yesterday's testimony. As TalkLeft reported yesterday, Stewart's friend, Mariana Pasternak, testified that she recalled Stewart saying "Isn't it nice to have brokers who tell you those things," an apparent reference to Stewart's alleged receipt of information that ImClone CEO Sam Waksal had been trying to dump his shares in the company. Today she isn't so sure.

"I do not know if the statement was made by Martha or if it was thought in my mind," Pasternak said. She also said she previously told prosecutors that she was not sure about that recollection.

The prosecution is expected to rest its case (or what's left of it) later today.

Update: The prosecution did indeed rest this afternoon. As expected, Stewart's attorney, Robert Morvillo, moved to dismiss the charges against her. The judge, Miriam Cedarbaum, will not decide that motion until Monday, but indicated that she viewed the securities fraud count as "the most problematic" (read: shakiest) of the charges against Stewart.

by TChris

A Texas grand jury investigating the activities of Texans for a Republican Majority, or TRMPAC, has subpoenaed the campaign records of Tom Craddick, the Texas House Speaker whose efforts at redistricting caused Democratic lawmakers to flee Texas twice last year.

The grand jury has been investigating whether TRMPAC, a political action committee begun by U.S. House Majority Leader Tom DeLay, illegally used corporate donations to aid GOP candidates in 20 key Texas House races during the 2002 elections.

A victory in 15 of those races led to a Republican takeover of the lower chamber for the first time in more than 130 years. With the GOP majority, Mr. Craddick won his speakership and pressed a Republican-favored congressional redistricting plan that Mr. DeLay championed.

Although the grand jury investigation initially focused on whether money raised from corporations was spent to aid political candidates (a felony under Texas law), District Attorney Ronald Earle announced that the investigation broadened after "possible criminal conduct in connection with the race for Speaker of the Texas House of Representatives was uncovered." Craddick's lawyer, Roy Minton, said that prosecutors told him last week that Craddick was not a target of the investigation. It seems that things have changed.

by TChris

Jeff Skilling, former CEO of Enron, shook his head "no" and then entered "not guilty" pleas to 35 counts charging him with fraud, insider trading, cooking the books, and other crimes related to his alleged deception of Enron investors. Charges were also brought against former Enron chief accountant Rick Causey.

Former Chairman Ken Lay, for years the public face of the company and a close political ally of President Bush, has not been charged and was not mentioned in the Skilling indictment.

Skilling's attorney, Daniel Petrocelli, called Skilling a "scapegoat" and said that he had passed a lie detector test. Given the complexity of the charges and the massive amount of discovery that defense lawyers will need to review, this case is unlikely to proceed to trial any time soon.

We're in San Antonio, a great city, for a meeting of the National Association of Criminal Defense Lawyers (NACDL). We have a great two track program going on for the next few days--Responding to the Ashcroft Agenda (Capital Litigation and Corporate Investigation.) The white collar speakers are among the best in the country. Abbe Lowell from D.C., John Keker from San Francisco, Barry Tarlow from LA; Jerry Lefcourt from New York; Hal Haddon from Denver; Gerry Goldstein from San Antonio. We just ran into Judge Edward Prado, recently appointed to the 5th Circuit Court of Appeals (and the only Bush judicial nominee we championed, see why, here).

There are a host of stellar defense lawyers here, some of our favorites from arouind the country. Many that we consider to be personal heroes. Given the Bush/Ashcroft agenda that is permeating our criminal justice system, it's great to be among like minds who fear for the future as much as we do.

Today the rights that are being taken away belong to the disenfranchised, the poor and the non-citizens among us. Tomorrow it could be us. Boot Bush.

TChris will be back guest blogging at TalkLeft this weekend--we'll be checking in periodically. Be sure also to check out the great blogs on our blogroll--this is a community we feel privileged to be a part of.

With friends like these, who needs enemies?

Just days after selling her ImClone Systems stock, Martha Stewart said she knew that ImClone CEO Sam Waksal had been trying to dump his shares in the company, a close friend of the domestic style maven testified Thursday. The revelation by Mariana Pasternak, a friend of Stewart for more than 20 years, was perhaps the most damaging testimony yet against Stewart, who claims she sold the stock for an entirely different reason.

Pasternak said Stewart told her about the Waksal sale on Dec. 30, 2001, just three days after Stewart sold her 3,928 shares of ImClone. They were on a terrace at a Mexican resort where they were vacationing. Pasternak said Stewart recalled Waksal "was selling or trying to sell his stock, that his daughter was selling or trying to sell his stock."

A 2000 Senate report on misconduct by FBI agents that has been sitting in the wings is ready for release:

A leading Republican senator charged Wednesday that the Federal Bureau of Investigation may have long tolerated egregious, even criminal conduct by some of its agents, including rape, embezzlement and extortion.

The senator, Charles E. Grassley of Iowa, released an internal report prepared by the F.B.I in 2000, which examined 107 instances of serious and sometimes criminal misconduct by its agents over a 16-year period.

The shocking report is a laundry list of horrors," Mr. Grassley said in a letter to the F.B.I., "with examples of agents who committed rape, sexual crimes against children, other sexual deviance and misconduct, attempted murder of a spouse, and narcotics violations, among many others."

The reaction of the FBI?

Cassandra Chandler, an F.B.I. spokeswoman, said that the agency "takes seriously its commitment to holding its employees to the highest standards of conduct" and had taken strong steps to strengthen its disciplinary process.

And this from an unnamed FBI offiical:

You won't find any organization that doesn't have problems. People have weaknesses, and when the bureau becomes aware of that, we act on it."

[comments now closed]

A study in the Journal of Empirical Legal Studies finds that Nevada hands down more death sentences than any other state. Between 1976 and 1998, death sentences were imposed in 6% of all murder cases. In Texas, the rate was only 2%. But don't let Texas off the hook--Nevada's death sentences are rarely carried out. Since 1977, Nevada has executed 9 prisoners, while this year alone, Texas has killed 7 inmates.