The Judge presiding over the Martha Stewart case ruled in her favor today. At issue was an e-mail she sent to her lawyer, indisputably privileged. But, then she forwarded the e-mail to her daughter. Martha argued forwarding the e-mail did not vitiate its confidentiality and the Judge agreed. She upheld it under the attorney work-product doctrine.

Stewart composed an e-mail for attorney Andrew Nussbaum of Wachtell, Lipton, Rosen & Katz on June 23, 2002, outlining her version of events on the ImClone sale. She forwarded the same e-mail to her daughter, Alexis Stewart, the next day ....Analyzing the work-product doctrine in the context of an "unusual set of facts," Southern District Judge Miriam Goldman Cedarbaum said that "although the e-mail to Stewart's daughter does not realistically risk revealing the thought processes of Stewart's attorneys, I conclude that it is protectible as preparation for litigation."

Mother Jones reports on the Top 10 Activist Campuses:

Number one is the University of Tehran, followed by California community colleges, NYU, Howard University and the University of Michigan. Berkeley is number nine and Yale is number 10.

[link via Hamster.]

This came via email from the ABA:

The ABA Justice Kennedy Commission Hearings
Washington, D.C.
November 12, 13, and 14, 2003

ABA President Dennis Archer appointed “The ABA Justice Kennedy Commission” to examine issues raised by United States Supreme Court Justice Anthony Kennedy in his historic speech to the ABA at its annual meeting on August 9, 2003 in San Francisco. President Archer has asked the Commission to prepare recommendations and a report for consideration by the ABA at its next annual meeting -- to be held in Atlanta in August 2004. For the Commission to meet the deadline set by President Archer, it needs the immediate help of knowledgeable and concerned individuals and groups. The issues we shall consider include:

• Whether the use of mandatory minimum sentencing at the state and federal levels should be repealed.
• Whether sentencing guidelines have unduly limited judicial discretion in sentencing and require revision.
• Why more than 40 percent of our 2.1 million prison population are people of color and more than 20 percent are Hispanic.
• Whether prison conditions encourage rehabilitation and reentry after prison or promote recidivism and require revision.
• Whether the pardon process at the state and federal levels should be reinvigorated.

The Commission has scheduled three days of hearings in the Moot Court Room of the George Washington University Law School on Wednesday, Thursday, and Friday, November 12, 13 and 14. The hearings will be open to the public, and attendance of interested parties is encouraged. Because of time constraints, the Commission cannot hear oral testimony from all individuals and groups who might like to testify. The Commission is anxious, however, to receive written submission from any individual or group with experience, expertise and interest in the issues described above. Written statements should be submitted by 5 p.m., Wednesday, November 5, 2003

Time Magazine this week has a long report on how the Moussaoui case crumbled. Uncommon Thoughts says the FBI knows Moussaoui is not guilty.

Here is the transcript of sniper case defendant John Muhammed's opening statement today. The Washington Post has this article on why it's rarely helpful for defendants to represent themselves.

We think Muhammed is making a big mistake. He has excellent court appointed lawyers. He can't know what evidence is objectionable or how to preserve error for appeal.

Tomorrow at 3pm ET, in a Washington Post online chat , we'll be discussing the issue of whether Muhammed's self-representation could make a difference in the death penalty phase of the trial (assuming he's found guilty of the murder).

Self-Representation in a death case....Is Mr. Muhammed crazy or crazy like a fox?

Conventional wisdom tells us that sniper case defendant John Muhammed is crazy to represent himself at trial. The evidence against him reportedly is substantial, and the crime is so horrendous that even the most skilled death penalty lawyers would have a difficult time convincing even one juror to vote for life if he is found guilty.

Is there a flip side to the argument? There are ten women jurors on the case. Women may be more empathetic and compassionate in a death case. A major goal in any death penalty trial is to get the jurors to see your client as a human being, to find something about your client that will touch them in a way that makes them unable to vote to kill him. What better way for this to happen than for the jurors to hear and see Mr. Muhammed every day for weeks? Assuming he keeps his demeanor respectful, and doesn't turn hostile and obstreperous, perhaps one juror will say to themselves and their fellow jurors, "I just can't vote to kill him."

If you're online tomorrow between 3 and 4 ET, please join in.

Not surprisingly, the Judge issued its ruling today finding probable cause to make Kobe Bryant stand trial. Here is the ruling.

The Judge defines the probable cause standard as evidence, that when viewed in a light most favorable to the prosecution, would induce a reasonable belief that the defendant committed the charged crime.

Update: Our view:

Jeralyn Merritt, a Denver defense lawyer and legal commentator, said this "was one of the weakest findings of probable cause I've seen."

"This order sends a clear message to prosecutors - that they better have something substantially more significant than what they presented at the preliminary hearing or the case is going nowhere."

The CIA issued a report today stating that the tape released this past weekend, purportedly by Osama bin Laden, threatening more violence against the U.S. probably is authentic.

"Following a technical analysis of an audio tape aired on al Jazeera on Oct. 18, the CIA assesses that the voice is likely that of Osama bin Laden," the spokesman said.

...Qatar-based Arabic television station Al Jazeera broadcast two audio tapes Saturday purportedly from bin Laden that vowed more suicide attacks inside and outside the United States and warned all countries backing Washington over Iraq were targets. The speaker urged Iraqis to wage a holy war against American "crusaders" in Iraq until an Islamic government was set up.

The tape could have been made six months ago.

Perhaps taking a page from the Zacarias Moussaoui playbook, sniper suspect John Muhammed asked for and was granted permission to represent himself at his trial. Opening arguments were delayed a bit this morning while the Judge considered the request. His lawyers will remain on as standby counsel.

Update: Real time reporting of opening arguments is here, provided by reporter Kerry Sipes of the Virginia Pilot.

We're scheduled to do an online chat for the Washington Post tomorrow at 3pm EST, subject to change of course depending on breaking events in the case.

The Washington Post got some great quotes from capital defense lawyers in this article on opening statements in the Sniper case trial that will be heard today.

Death penalty trials are as grueling as it gets for lawyers. The initial statements are the first public glimpse of months of behind-the-scenes preparation, so intense that attorneys often turn their neighbors and relatives into sounding boards, alter their diets and forgo sleep. In the days before openings, some attorneys cut themselves off from the world as they prepare. Others wake up in the middle of the night, their hearts racing.

As a defense attorney, it's like being the producer, director and conductor for an opera that will run one night, and if the critics don't like the show they are going to kill your leading man," said South Carolina lawyer David Bruck, a veteran of high-profile capital cases.

Translation: First impressions count. Opening arguments are the first chance the lawyers have to present their case, using themes and theories they will raise again and again throughout the trial. They are often presented using a story-telling format.

Opening arguments are very important. Studies show that 75% of the time the final result in a trial is the same as the tentative conclusion held at the end of opening statement. Utilizing theme and theory, the opening statement is like a preview of coming attractions. It frames the issues, focuses the case, and tells the story in a powerful way that will make the rest of the case highly persuasive.

UPI reports that the Pentagon will investigate a report by one of its reporters that returning Iraqi vets are receiving substandard medical care back in the U.S.

WASHINGTON, Oct. 19 (UPI) -- A United Press International report that wounded Iraqi war veterans are getting substandard medical care has sparked a federal investigation. The Pentagon will dispatch a team to investigate claims that hundreds of sick and wounded soldiers at Fort Stewart, Ga., are waiting, sometimes for months, to see doctors, the Drudge Report said Sunday.

A UPI report last week described the horrible conditions imposed on National Guard and Army Reserve soldiers upon their return to the U.S. from Iraq. The report told of deplorable, squalid living quarters for approximately 600 sick and wounded soldiers who are forced to wait weeks to even see a doctor. The soldiers are on "medical hold," while the Army decides how sick or disabled they are and what benefits, if any, they should get as a result. Some soldiers said they have waited weeks or months without getting a diagnosis or proper treatment.

Our original post on this is here.

Here is Senator Patrick Leahy's October 17 statement explaining why he voted against the Iraq-Afghanistan Supplemental Appropriations Bill. [link via Buzzflash.]

I know that I will be among a small minority. But for me, this is a matter of principle, and after a great deal of thought I have concluded that I can not support this proposal. I did not support the policy that got us into war alone. I do not support the tactics the White House has used to get this Supplemental passed. And I do not support appropriating so much money, at one time, for an oil rich nation when the responsible thing would be to approve a portion of the money today and to revisit this again next year.

... If...I thought the Administration was being honest with the American people about its motives and its policy in Iraq and the Middle East; if this Supplemental were designed to implement a credible plan to internationalize our policy rather than to continue a unilateral approach; and if this had not been a one-time only, take-it-or-leave-it, partisan approach in which almost every amendment offered by Democrats was defeated along party lines, my vote today might be different.

Don't miss Sen. Robert Byrd's comments on his opposition to the bill in The Emporer Has No Clothes.

Back in July, we wrote about an article buried in the New York Times concerning Minnesota's new law charging Public Defenders. Today, the Washington Post reports that the Minnesota law, which went into effect July 1, is under attack. And that due to budget deficits, other states, such as Arkansas, Ohio, New Jersey and Maryland, have implemented similar laws.

The danger is that people will not avail themselves of the right to counsel to avoid the charge," said Norman Lefstein, dean emeritus at the Indiana University School of Law at Indianapolis. "It really is an effort to squeeze every last cent [from the poor] without regard to the consequences. It's inconsistent with the fundamental right to counsel."

Here are the details of the Minnesota law. Daniel Homstad, an assistant defender in Hennepin County, writes that under the new law, the state has jumped a $28.00 fee that could be waived by a judge, to mandatory, non-waivable fees in amounts up to $200.00. Homstad says:

The problem with the law lies in its flat-rate schedule and the removal of the judge's discretion to determine whether the copay would work a manifest financial hardship upon the defendant. Absent a fair, means-tested rate schedule, the public defender copays will really become application fees that many will be unable to pay. These copays will lead some truly indigent people to choose to forgo counsel.