You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford one, one will be appointed for you.

These warnings and rights have been the law in this country since 1966 when the Supreme Court decided Miranda v. Arizona. Yet the Court has revisited the opinion fifty times since then. Why?

In 2000, the Supreme Court refused to overturn the decision. Yet, this week, it will revisit three cases, from Missouri, Colorado and Nebraska, and a verdict for the police in any one of them will sound the death knell for Miranda.

None of the three cases will overturn Miranda directly.

The new cases pose a different and still unresolved question: What happens if the police either deliberately or inadvertently do not warn a suspect of his or her rights before questioning? If there is no penalty for violating the Miranda rights, police will not follow them, the rule's defenders say.

For all practical purposes, Miranda will be a dead letter" if the justices side with police and prosecutors in all three cases, said Stephen Schulhofer, a law expert at the Brennan Center for Justice in New York. University of Michigan law professor Yale Kamisar agrees. "They would be overruling Miranda without saying so," he said.

The first case , Missouri v. Siebert, will decide whether police can question first and warn later. At issue is the dubious police practice of two-part interrogations used to deliberately sneak around the Miranda requirement:

The police questioned Patrice Seibert without a Miranda warning until they got her to make an admission. Then, after a break long enough to claim that a new interrogation had begun, they gave her a Miranda warning and resumed questioning. They referred to her prior admission and got her to acknowledge it.

The Missouri Supreme Court threw out the confession in the case:

Two-part interrogations allow the police to put off the Miranda warning until the hard part is over. If police officers can do this, the court concluded, Miranda will be "meaningless."

The second case "tests whether police and prosecutors may use physical evidence, such as a gun or drugs, despite a Miranda violation."

The third case involves the police questioning an accused after he had been charged without giving him Miranda warnings or allowing him to consult with his lawyer before deciding whether to answer them.

For the facts of the three new cases along with historical context, we recommend Richard Willig's article in USA Today.

For the reasons the Supreme Court should refuse to weaken Miranda, we recommend Don't Make Miranda Meaningless by former FBI Director William Sessions (under Reagan and Bush I) and James E. Johnson, the Treasury Department's undersecretary for enforcement during the Clinton administration.

Our best wishes go out to Ozzy Osbourne who was seriously injured in an ATV accident today:

Ozzy Osbourne suffered serious injuries in an all-terrain vehicle accident on Monday (12/8), and was undergoing emergency surgery at an undisclosed hospital in England, according to a statement issued by his publicist.

Osbourne is said to have broken his collarbone, six ribs and a vertebra in his neck. Doctors were working to lift his collarbone, which was thought to be impacting a major artery and limiting the flow of blood to his arm. Surgeons were also trying to stop some "bleeding into his lungs," according to the statement. The injuries were not considered to be life-threatening, his publicist added.

Osbourne was riding the ATV on his property in Buckinghamshire, England, when the accident occurred. He had been in the U.K. to promote the British release of "Changes," a duet with his daughter Kelly. No further information was immediately available.

The National Commission on Terrorist Attacks Upon the United States (also known as the 9-11 Commission) held its sixth public hearing today on Capitol Hill. The focus of the hearing was “Security and Liberty.”

Former Deputy Atttorney General Larry Thompson defended the Patriot Act and the Government's terror war:

Larry D. Thompson, a former deputy attorney general, told the commission investigating the Sept. 11 attacks that counterterror laws should be strengthened so suspected terrorists could be denied bail and prosecutors could move with more confidence against those who provide material support to terror organizations. Thompson urged the government to make permanent several time-limited provisions of the Patriot Act, which expanded the government's surveillance and detention power.

Two law professors, Stephen J. Schulhofer of NYU and Philip Heymann of Harvard and a deputy attorney general under former President Clinton, disagreed:

[Schulhofer] countered that more than a dozen government initiatives ``are demonstrably not justified as a response to 9-11.'' Limited resources that should be devoted to U.S. intelligence are being misspent on unnecessary new legal procedures, Schulhofer said. ``The common thread that runs through these measures,'' he said, ``is the erosion, and in many instances the complete obliteration, of traditional checks and balances.''

[Heymann in written testimony] said Congress should reject several assertions of authority invoked by the Bush administration in the name of security. They include the power to order military tribunals for U.S. residents who are not citizens and the power to collect information from an individual's associates while compelling the associates to keep the inquiry secret...

The commission will submit a report to Congress by May 27, 2004:

Congress created the bipartisan commission to study the nation's preparedness before the Sept. 11, 2001, attacks and its response to them. It also is to recommend safeguards against similar disasters.

After deliberating five hours, a jury found Rep. Bill Janklow (R-SD) guilty of manslaughter. He faces up to ten years in prison and a House ethics committee investigation.

Update: Janklow resigned. There will be no ethics investigation.

Al Gore will endorse Howard Dean tomorrow.

Update: Joe Lieberman has issued this statement regarding Gore's upcoming Dean endorsement:

I was proud to have been chosen by Al Gore in 2000 to be a heartbeat away from the presidency -- and am determined to fight for what’s right, win this nomination, and defeat George W. Bush next year.

“I have a lot of respect for Al Gore -- that is why I kept my promise not to run if he did. Ultimately, the voters will make the determination and I will continue to make my case about taking our party and nation forward.”

Josh Marshall at Talking Points thinks Lieberman is slamming Gore with the "that's why I kept my promise" language. Atrios agrees.

We don't see it that way. We rank Lieberman at the bottom of our list of favored Democratic contenders, so our view is not an endorsement of him by any means, but we think it's a classy statement, free of criticism. He says he kept his promise because he respects Al Gore.

Maybe Lieberman is trying to say that his late entry into the race (out of deference to Al Gore's possible run) resulted in his campaign failing to take off. In which case, we think it's so subtle a criticism that the voters won't even pick up on it. We also think he'd be wrong to think that. Lieberman is the past. He wouldn't have made it no matter what.

Tim Russert thinks Al Gore is endorsing Dean in order to be in a position to run in 2008 if Dean loses. If he goes to bat for Dean and Dean loses, Russert says the Dems will owe him.

We do agree with just about everyone that Dean seems to have the nomination sewn up. As to whether he can beat Bush, we think he needs a very strong vice presidential candidate with a lot of foreign policy experience. And it's not Bob Graham.

In February, we wrote about cancer patient Steve Kubby, a transplanted Calfornian and medical pot activist, who was seeking aslyum in Canada. Kubby, a former California Libertarian gubernatorial candidate, was diagnosed with malignant adrenal gland cancer in the early 1970's. "In the span of a few years, he underwent four surgeries, chemotherapy and radiation. Nothing seemed to stop his steady decline." Except medical pot. Then he got charged with a pot offense in California, convicted and ordered to do 120 days. He fled to British Columbia in 2001 to avoid the jail sentence. He filed a refugee claim to avoid being deported from Canada to the U.S., and sought asylum.

Kubby has now lost his bid for asylum.

Canada's Immigration and Refugee Board ruled that Steve Kubby did not have a well-founded fear of being persecuted or tortured, or that there was any risk to his life, if he returned to his home state of California. Kubby had said the 120-day jail term he was ordered to serve in California on minor drug charges would be a death sentence. He claimed if he did not smoke pot every hour, he would die from complications from adrenal cancer.

The opinion is here.

The trial of South Dakota Congressman and former Governor Bill Janklow is in the jury's hands. Here are the details of the defense closing argument. Among the issues the jury will be deliberating are these.

Florida's Secretary of State Glenda Hood does not favor paper trails for touch screen voters and even though they may be available, says they will be optional only.

Paper trails are essential as a safeguard to the system. As EFF says, your vote counts, but only if its counted.

Check out this New York Times editorial today on the subject:

Too many elections teeter on a few hundred votes, and candidates rightly expect human beings to be able to double-check the results. America's election apparatus needs to move firmly and quickly into the computer age. But the public must feel secure that each vote is really counted. At this stage, a voter-verified paper trail offers the public that necessary security .

Alarming summaries of independent research by Johns Hopkins and Rice University, MIT, the Electronic Frontier Foundation and even Congress echo critics' concerns. Here are some links to get you up to speed on the issue.

http://www.eff.org/Activism/E-voting/20030724_evote_research_report.pdf

http://www.vote.caltech.edu/Reports/

http://www.eff.org/Activism/E-voting/20030723_eff_pr.php

http://www.epic.org/privacy/voting/crsreport.pdf

The full extent of the threat to our electoral process has been documented in Beverly Harris's explosive expose, "Black Box Voting", which can be downloaded free of charge here [thanks to Eric Smith, a journalist and IT instructor in Tokyo, for the links].

The defense suffered a setback today when the Judge refused to allow a defense psychologist to play a power point presentation showing John Lee Malvo's life and views --evidence of his state of mind. The Judge sided with the prosecution and ruled it was filled with inadmissible evidence. The psychologist was allowed to testify--but without the video evidence.

Many are noting that so far the Malvo defense team has not presented evidence of remorse, which was a key factor to the Muhammad jury. Will that make the critical difference? Possibly, in our view. Jurors may be more willing to accept the indoctrination defense as a mitigator if they believe he's over it now. If he hasn't repudiated Muhammad, the prosecution may be able to convince the jury that Muhammad is likely to be a future danger while in prison, even if only to other inmates.

The Supreme Court granted cert today on one issue in No. 03-167, United States v. Benitez - regarding guilty pleas.

"Whether, in order to show that a violation of Federal Rule of Criminal Procedure 11 constitutes reversible plain error, a defendant must demonstrate that he would not have pleaded guilty if the violation had not occurred."

[link via ScotusBlog]

Update: Here is what the case is about and what's at issue in non-lawyer terms.

The article contains an interesting statistic from Solicitor General Ted Olson who filed the Government's cert petition: 95% of all federal convictions resulted from guilty pleas last year.

The Supreme Court hears the Delma Banks case today. The issues: prosecutorial misconduct and bad defense lawyering. There's a good article on it in today's Christian Science Monitor:

It took Delma Banks and his lawyers 19 years to discover the truth. State prosecutors at his 1980 murder trial allowed two key witnesses to lie to the jury that sentenced Mr. Banks to death. But even after the deception was uncovered, a federal appeals court said it didn't matter.

On March 12, 2003, Texas corrections officers strapped Banks to a gurney and prepared a lethal injection. Then, with 10 minutes to go, word of a stay came from the US Supreme Court. Monday, the justices take up the Banks case to determine whether the misconduct of prosecutors and the ineffectiveness of Banks's own lawyer were so significant as to require the invalidation of his death sentence.

New York Times columnist Bob Herbert discussed the Delma Banks case in Pull the Plug in April, 2003, concluding:

Lying witnesses. Lousy lawyers. Corrupt prosecutors. Racism. The death penalty is broken and can't be fixed. Get rid of it. "

Herbert notes there is an issue in the Banks case that the Supreme Court refuses to address: race

A study on race and the death penalty in the U.S. that is being released today by Amnesty International notes the following: "Since 1976, blacks have been 6 to 7 times more likely to be murdered than whites, with the result that blacks and whites are the victims of murder in about equal numbers. Yet 80 of the more than 840 people put to death in the U.S.A. since 1976 were convicted of crimes involving white victims, compared to the 13 who were convicted of killing blacks."

The Amnesty report asserts, correctly, that studies have consistently found that the criminal justice system "places a higher value on white life than on black life."

Our Delma Banks coverage is here.

New York's federal judges are speaking out against Congress' recent changes to federal sentencing law.

The Feeney Amendment, tacked onto the Amber Alert bill, is part of the PROTECT act. It limits the instances in which judges can grant downward departures from the federal sentencing guidelines, stripping the judges of their ability to impose individualized sentences when they deem it appropriate. It also creates a very objectionable reporting system, which is likely to be used as a blacklist of judges.

Like the Patriot Act, the law was passed without hearings and without meaningful debate. It was passed over the objections of the Chief Justice of the Supreme Court, the U.S. Sentencing Commission, the Judicial Conference, the ABA and the majority of prosecutors and defense lawyers who deal with the guidelines every day.

One federal judge, John Martin, has taken early retirement in protest of the "unjust nature of the sentencing process." Second Circuit Judge John M. Walker Jr. and 26 other judges from around the country have issued a statement calling for repeal of the new law.

And in perhaps the boldest criticism of the law, another federal judge in Brooklyn, Sterling Johnson Jr., who was New York City's special narcotics prosecutor from 1975 until 1991, recently issued a wide-ranging order that directly contradicts the law's provision granting Congress more direct access, without the need for judicial permission, to a variety of case documents. Judge Johnson placed a blanket seal on all such documents in cases before him, forbidding Congress to examine these materials without his approval.

It's not just the liberal judges that object to the law. Judge John F. Keenan, a Reagan appointee says, "Even I recognize that this administration has taken a step too far."

We're glad that these judges refuse to be intimidated by Congress. The Feeney Amendment violates the separation of powers doctrine and in essence creates a blacklist of judges who won't go along. We hope that judges around the country follow the example of these outspoken New York jurists and "just say no" to Feeney.

Sen. Edward Kennedy has introduced S. 1086, The JUDGES Act, to repeal Feeney. Contact your Senators and urge support for the bill.