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.

A major roundup is beginning. The feds have a new program in place to detain immigrants facing deportation proceedings.

The nationwide expansion would help security officials hold as many as 8,000 more suspected illegal immigrants a day. The current population of about 22,000 detainees represents the fastest-growing segment of America's federal prison population.

More space is needed, security officials say, for an accelerated effort to round up 400,000 of the estimated 8 million to 11 million illegal immigrants in the country.

The 400,000 are immigrants who have been ordered out of the country by judges but may have failed to comply....The government's goal is to catch and deport all of them within five years.

Three of the defendants cleared in the Central Park Jogger case will file suit Monday seeking $50 million in damages.

In addition to New York City, the men will sue the New York Police Department, current and former police officers and the Manhattan district attorney's office.

Jonathan Moore, who is representing the three men, said the charges will be "malicious prosecution" and "conspiracy to cover up the truth."

Is Ashcroft overstating the success of his terror war? A new study of post-9/11 terrorism prosecutions, Criminal Enforcement Against Terrorists and Spies in the Year After the 9/11 Attacks shows that the cases often fizzle:

About 6,400 people were referred by investigators for criminal charges involving terror in the two years after the attacks, but fewer than one-third actually were charged and only 879 were convicted, according to government records reviewed by Syracuse University's Transactional Records Access Clearinghouse.

The median prison sentence was just 14 days, according to a study by clearinghouse co-directors David Burnham and Susan P. Long. Only five people were sentenced to 20 years or more.

Critics seized on the numbers to question whether Attorney General John Ashcroft and other top law enforcement officials have been overstating the success of their anti-terrorism efforts.

We've lobbied against the Victims Rights Amendment for several years. The Washington Times has an article on it today, one for which we were interviewed on behalf of the National Association of Criminal Defense Lawyers (NACDL) a few months ago.

The D.C.-based National Association of Criminal Defense Lawyers also opposes an amendment. The group, which represents more than 38,000 lawyers, claims an amendment would give "undue power" to influence and impede the decisions of judges and prosecutors in courts nationwide, said Jeralyn Merritt, a spokeswoman for the association. "At great financial cost, it would leave us with a judicial system no longer dedicated to determining guilt or innocence, but preoccupied with airing rage and seeking retribution," Ms. Merritt said.

Here's why we oppose it: (from our 1997 article):

• Its package of government-guaranteed entitlements for crime "victims" for an opportunity to fully participate and object to bail and plea bargains at the accusatory stage of the proceedings, before a defendant has been found to be the perpetrator of the crime, effectively undermines the presumption of innocence which lies at the very core of our criminal justice system.

• It greatly adds to the powers of accusation against which the unpopular citizen accused must defend -- governmental and private -- and substantially increases the risk of injustice.

• It is so ambiguous that it fails to provide a workable definition of the key terms "victim" and "crime of violence." This will result in substantially unnecessary, and costly, litigation over rudimentary standing issues -- further clogging already over-burdened courts.

• It thrusts the ventilation of victims' hurt and anger to the center of all public criminal proceedings, threatening to overwhelm the courts' ability to fairly and effectively perform important administrative and judicial functions on behalf of not only the citizen accused, but all users of the publically financed justice system -- including victims of crime.

• It constitutionally and inflexibly forbids judicial deployment of the ancient rule of witness sequestration. Of course, this rule is a crucial protection measure against the tailoring of witness testimony to statements heard from a previous witness, and is a crucial aid in detection of testimony that is less than candid. Wigmore himself refers to sequestration in his famous treatise on evidence as ". . . one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice."

NACDL is not "anti-victim." In fact, the organization has consistently urged that victims of crime be treated with dignity, fairness and respect. However, NACDL submitted testimony to Congress opposing the amendment as unnecessary, unwise, and dangerous.

NACDL past President Robert Fogelnest best articluated the position:

No one is counting Green Party candidate Matt Gonzalez out of the San Francisco mayor's race. Two good articles in the weekend news on the candidates: San Francisco Chronicle and New York Times.

Gavin Newsom, businessman and candidate for mayor, lives in a large house in the city's fashionable Pacific Heights neighborhood. He is the son of a retired state appeals court judge and owns a wine shop and several other businesses, many of them with the financial backing of a family friend, Gordon P. Getty.

Matt Gonzalez, lawyer and candidate for mayor, shares a rented apartment with a roommate in the city's offbeat Western Addition neighborhood. He boasts in his campaign literature that he was twice jailed for contempt of court when working as a public defender. His father, who sold dental equipment in Texas, never went to college.

Could the coverage sink any lower than this?

A recent article in The San Francisco Chronicle characterized the race as a "babe competition" and described both men as "major hotties." The newspaper whittled the choice to this: Dapper Dan vs. the Socialist Stud.

We asked a couple of male S.F.'s 60's lefties this weekend who they were voting for: They were unenthusiastic but probably going for Newsom. Then we asked a couple of 30-somethings: Definitely Matt Gonzalez.

How different are they?

"It is amazing," Mr. Newsom said. "Only in San Francisco you can be pro-choice, pro-gay marriage, anti-death penalty, pro-gun control, pro-rent control and be considered a conservative or moderate. I would be left on any national scale."

Though the mayor's election is nonpartisan, the Democratic Party has pumped money and big-name resources into the race. The state party expects to spend at least $120,000 on Mr. Newsom's behalf, even though he has spent $4 million so far, compared with about $400,000 by Mr. Gonzalez.

If the underdog voters come out, Gonzalez stands a real chance. The election is Tuesday, stay tuned.

Utah U.S. District Court Judge David Sam in tossing the charges in the Olympics bribery trial:

"Several times during the history of this case I have heard counsel for the United States represent themselves as the protectors of our moral values here in the state of Utah and protectors of the sacred standards of the Olympic charter. How commendable and noteworthy. But when considered in the light of the government's evidence in this case, how misplaced," he said from the bench.

In what is being reported as an unprecedented action by a presidential candidate, Sen. John Kerry used the "f" word in attacking Bush's war policy in an interview with Rolling Stone:

"I voted for what I thought was best for the country. Did I expect Howard Dean to go off to the left and say, 'I'm against everything'? Sure. Did I expect George Bush to f - - - it up as badly as he did? I don't think anybody did," Kerry told the youth-oriented magazine.

Brookings Institution presidential scholar Stephen Hess said he can't recall another candidate attacking a president with X-rated language in a public interview.

Kerry was accurately quoted in Rolling Stone, said spokesman David Wade, adding the X-rated language reflects the fact that Bush's Iraq policy "makes John Kerry's blood boil."

Good for Kerry. Better late than never. [link via Instapundit.]

Update: Bush's chief of staff says Kerry was out of line.

Turn it on if you're by a tv. Sharpton rocks!