A California appeals court has ruled that a person on probation for a felony can smoke marijuana for medical purposes.

This is the right decision. It would seem obvious that if a probationer had a medical marijuana certificate issued by the state, his use of the substance should be no different than taking any prescription drug while on probation. The problem arises in two ways. First, judges will arbitrarily decree that a probationer cannot use marijuana. Second, the terms of most state probation agreements specify that the probationer cannot violate any state or federal law, and the use of marijuana is a federal offense. Drug felons are subjected to urine analysis which shows if they smoked marijuana. The lab is obligated to forwards the positive report to the probation officer, and the rest is obvious.

We have faced this problem in our own cases. We're heartened to see this California decision, and hope other states will adopt its reasoning. [Thanks to Oakland attorney Dennis Roberts for the tip]

Here is the portion of the transcript from the Wednesday gubernatorial debate in California on the issue of the death penalty. [Ed. The source text was all in capital letters, so we changed it to lower case to make it more readable, but some uncapitalized letters will seem strange.]

Bottom line: Arianna and Canejo are opposed to the death penalty. Bustamante and the Republicans favor it. Camejo also opposes three strikes laws when minor crimes are the third strike.

Shandobil: the next question is from john myers, directed toward arianna huffington.

Myers: Ms. Huffington, one of the most solemn jobs of a governor is his or hers involvement in the sentence for death. You've called for a moratorium on capital punishment because of a racial disparity in the process and factually innocent people sentenced to death. Are you philosophically opposed to the death penalty or its application.

Huffington: I'm philosophically opposed to the death penalty and very opposed to the way it has been applied in california and across the country. At a time when new dna testing has known that innocent people are being put to death by government, I absolutely would want a moratorium. The only reason we do not have more elected officials asking for a moratorium is because they only follow the polling results and they are spineless to speak their own minds and hearts. That is we need independent discussion on the issues of death penalty and others in the state.

In an unexpected announcement, the Energy Department said it will decrease the number of polygraphs administered to employees with access to "nuclear secrets," particularly in the nation's weapons laboratories.

The deputy energy secretary, Kyle E. McSlarrow, said at a Senate hearing that the new policy was likely to reduce the number of people given polygraph tests to 4,500, mainly in sensitive arms and intelligence posts, from some 20,000 now.

McSlarrow said there has been increasing criticism of the techniques used in polygraphs and the department agreed with some of the critics. The increase in use was a result of the Wen Ho Lee case.

In 2001, Congress instructed the Department of Energy to adopt widespread polygraph screening in reaction to the case of Wen Ho Lee, the scientist at the Los Alamos weapons laboratory in New Mexico who was suspected of being a spy but was freed from jail in September 2000 after admitting to a security violation. That order raised an outcry from experts who ridiculed lie detector tests as pseudoscientific and a potential threat to national security.

Last October, in a report requested and paid for by the Energy Department, a panel convened by an arm of the National Academy of Sciences said polygraph testing was too flawed to use for security screening. The panel said lie detector tests did a poor job of identifying national security risks and were likely to produce accusations against innocent people.

The Senate panel conducting the hearing was chaired by Sen. Pete Domenici (R-NM) who added:

"This is a smart decision. I have been appalled by the D.O.E.'s continued massive use of polygraph tests in the wake of a national study condemning the reliability of these tests. Our national scientists deserve better."

We had hoped this lame theory of prosecution had been put out to pasture, but it's being raised this week in Miami. In their book, Actual Innocence, DNA gurus Barry Scheck and Peter Neufeld call it "the unidentified co-ejaculator" theory of prosecution: If new DNA testing excludes the defendant, the prosecutor claims the defendant is still guilty, he just didn't ejaculate, and there must have been more than one person who had sex with the victim--even though they can't identify the second perpetrator.

Here's the latest use of the theory, in which DNA tests have cleared a man in jail since 1983 for a rape of an 11 year old. Prosecutors say all the tests show is that the 11 year old victim had consensual sex earlier in the day with someone else.

... in court papers filed last week, Rundle's office argues that the DNA test results are irrelevant because the state never claimed the semen samples taken from the victim came from McKinley. The state says McKinley was caught by police in the act of raping the victim, that he never ejaculated and that the semen came from another male with whom the 11-year-old had had "consensual" sex earlier that day.

"The fact that another person's DNA was found in the victim's vaginal swabs does not establish that the defendant did not commit a sexual battery," argue Assistant State Attorneys Michael Gilfarb and Penny H. Brill in the motion. "It only provides, as the defense already knew, that the victim had sexual intercourse with someone else, sometime prior to the sexual battery."

However, the detective at trial 20 years ago testified that there was semen in the girl's underwear which was "consistent with" defendant Richard McKinley's blood type.

McKinley testified that he had seen the girl at an arcade that night. But he denied assaulting her. He said he was urinating in the alley when approached by the police officers and started running because he didn't know what was happening.

Cheers to the Indiana Supreme Court for this decision. It ought to be the law everywhere:

Criminal investigators can't keep a lawyer waiting at the jailhouse door while his or her client is inside being questioned by police.

That's the unmistakable command given Wednesday by the Indiana Supreme Court, which unanimously ruled that a detained person must be told immediately if a lawyer is waiting to see that suspect.

The decision means police officers can't extract a confession from a suspect while his lawyer is waiting at the front desk.

This ruling is a victory for criminal suspects and defense attorneys in Indiana, who say it's not uncommon for police to keep the two separated while investigators try to get the suspect to waive the right to speak with a lawyer.

Death and Justice, released Tuesday, is a new book exposing the corruption and injustice in the application of the death penalty in Oklahoma. The big surprise to us is the book's principal author: Former OJ cop, Mark Fuhrman.

We spoke with Fuhrman for about 20 minutes last night while we were both in the green room at Fox News in New York waiting to go on Hannity and Colmes. We are delighted to report that he is close to being born-again on the topic of the injustice in the death penalty system. He began the project as a death penalty supporter, thinking any mistakes that were made were few and far between and unintentional. He ended up believing the system is so untrustworthy, there should be a national moratorium until it can be determined whether the system can be fixed.

Fuhrman made four trips to Oklahoma while writing the book and interviewed dozens of officials, prosecutors and defense attorneys. Furman said he couldn't believe what these officals told him--and they weren't even ashamed.

Fuhrman said he absolutely believes there are more innocent people on death row in Oklahoma. He was shocked at what he found. In our conversation, he talked a lot about Joyce Gilchrist, the discredited police chemist. 11 people have been executed based on her work. Here's a paragraph from the book about Gilchrist (link below):

In 2001, the same year that the state of Oklahoma was executing inmates at an unprecedented rate, a series of high-court rulings, of ficial investigations, memos, and reports, as well as the usual chorus of outraged defense attorneys, had criticized Gilchrist for lying under oath "enhancing "the value of the evidence in her testimony and mismanaging the OCPD crime lab. Gilchrist had been a forensic chemist for more than twenty years. She had worked on more than fifteen hundred felony cases. Cops and prosecutors loved her; defense attorneys didn't.

"Joyce Gilchrist is a kick-ass expert witness, "Assistant District Attorney Richard Wintory told me. "That's why everybody is out to get her."

"Joyce Gilchrist is the most lyingest, cheatingest bitch on this earth, " said one prominent Oklahoma defense attorney …

Fuhrman told us there's only two options: Either Gilchrist is an incompetent chemist or a corrupt one. Either way, he said, the 1.500 felony cases she worked on are suspect.

You can read an excerpt of Chapter One of Furman's book, Frontier Justice, here.

We are impressed with Fuhrman and the work he did on this book. People change. We've met Fuhrman before and debated him numerous times, sometimes cordially, sometimes not--but we believe he's for real and we hope the book is a huge success--we 're glad to have him on our side on this one. The innocent people on death row in America really need this story told.

Death and Justice:
An Expose of Oklahoma's Death Row Machine
by Mark Fuhrman and Stephen Weeks

Just got word of this today --a conference for grass roots activists in October called Grassroots America Defends the Bill of Rights National Conference:

The September 11th tragedy became the pretext for the hastily passed USA PATRIOT Act and a series of federal executive orders, guidelines, and procedural changes, many of which undermine civil liberties without demonstrably enhancing national security. Such sweeping changes have evoked grave concerns among Americans across the political spectrum.

Soon after the Act was passed, individuals and small groups in a few U.S. cities who were concerned about threats to our freedoms began local grassroots organizing that launched a movement to channel apprehension and anger about rollbacks of civil liberties. Today, a nationwide, broad-based movement of local efforts to restore civil liberties guaranteed under the Constitution and Bill of Rights holds the promise of deepening community involvement in civil liberties.

A broad coalition of organizations (see list below) will convene a national organizing conference in Washington, D.C., in the fall of 2003. The conference will assemble representatives of independent grassroots groups; coalitions involved in related legal and legislative action; Muslim, Arab, Hispanic, and other constituencies that have been disproportionately affected by the new laws, and others who want to join the growing movement.

The primary goal of the weekend conference is to advance the movement's impact on national policy... [See the site for more details.]

Those of you who don't regularly read The Washington Times may have missed the launch of a four-month series of the "Funky Winkerbean" comic (it started Labor Day and runs until Christmas) focusing on capital punishment. It raises a range of issues including ineffective assistance of counsel, jail house snitches, mistaken eye-witness identification, clemency, and more.

The comic, syndicated by King Features, runs in four hundred papers nationally. Those who can't find it locally can read it on a two-week delay on their web page, here.

From the press release:

"FUNKY WINKERBEAN" ADDRESSES THE ISSUE OF CAPITAL PUNISHMENT

National Syndicated Comic Strip Sheds a Personal Light on the Death Penalty

According to the U.S. Department of Justice, Bureau of Justice Statistics, 38 states and the federal government have capital statutes. Beginning on Monday, September 1, the controversial subject of capital punishment will be explored in more than 400 newspapers nationwide - not in the news section, but on the comics pages. The nationally syndicated comic strip Funky Winkerbean, created by cartoonist Tom Batiuk, will introduce a gripping four-month storyline, entitled "The Danny Madison Casebook," examining the complex personal issues behind a death penalty case.

From this afternoon's edition of Congressional Quarterly (subscription only):

SENATE PANEL BACKS CONSTITUTIONAL AMENDMENT ON VICTIMS' RIGHTS

The Senate Judiciary Committee approved today a proposal to amend the Constitution to specify certain rights for crime victims. The committee voted 10-8 to approve the bill, capping a markup that stretched over a series of meetings in recent months. The panel began marking up the measure (S J Res 1) before the August recess, but struggled to keep a working quorum. The resolution will not see Senate floor action for at least two months, if at all. The proposed amendment, sponsored by Jon Kyl, R-Ariz., and Dianne Feinstein, D-Calif., would give victims or their representatives the right to be heard at public release, plea sentencing and other proceedings. It also would require judicial officials to consider victims' safety when deciding the fate of defendants.

If it goes to a full senate vote, it may be close. 66 votes (2/3) are needed to pass a constitutional amendment. The ACLU's Senate tally indicates 35 are opposed or likely opposed and 51 are in favor or likely in favor. Senate floor action before recess is unlikely because of the busy fall agenda. In the House, there likley will be a subcommittee hearing this fall.

Contact your elected officials now and oppose this amendment. It's the wrong answer to victim's rights. Here's more.

[Thanks again to Kyle O'Dowd, Legislative Director of the National Association of Criminal Defense Lawyers (NACDL) for the update.]

We just returned home to Denver and the first news we see is good news--Bush judicial nominee Miguel Estrada has withdrawn his name from consideration for a federal judgeship on the powerful D.C. Circuit Court of Appeals.

The Democrat's filibuster worked. Estrada came up for a vote six times and each time the Republicans failed to get the necessary 60 votes.

From People for the American Way's (PFAW) press release:

Estrada’s withdrawal highlights the importance of continued Senate scrutiny of President Bush’s judicial nominations.

Estrada had been blocked by a courageous Democratic filibuster based on his troubling right-wing record and his refusal, and the refusal of the Bush administration, to answer many legitimate questions about his record and judicial philosophy.

We continue to urge the Bush administration to engage in bipartisan consultation, cooperation, and compromise in naming judges to these important courts. Unfortunately, the administration’s most recent nominees to the very same DC appeals court – Brett Kavanaugh and Janice Rogers Brown – reflect a rejection of that path. The administration continues to pursue a strategy of confrontation and resist any meaningful bipartisan dialogue on judges.

Gen. Wesley Clark has announced he's a Democrat-- many analysts take this as a sign he's inching closer to entering the race for the Democratic nomination for President.

Clark spoke at NYU. Among the comments we found inspiring:

"I fought for the right of people to disagree. I fought for the right of people to protest. I fought for the right of people to question the president, and not just to question, you know, what did he eat today and how far did he run."

"I fought for the right of privacy," he went on. "I fought for freedom from government intrusion of our personal lives. I fought for the belief that every American is a human being who is worthy of respect and who should be treated fairly and equally, regardless of race, religion, creed, sexual orientation or any other discriminating factor."

We think Wesley Clark belongs on the Democratic ticket--either as presidential nominee or as VP to whoever gets the nomination. We hope he's been meeting with Dean and Kerry in recent weeks.

Stay tuned, we think an announcement will be made within the next ten days or so.

Ted Barlow has joined the group blog, Crooked Timber, and has this lengthy post debunking the Bustamante and MEChA story. Thanks to Matt Yglesias for the link. Matt, by the way, has started his new job at American Prospect and can be found blogging at Tapped. He will continue his blog with items that would not fit in there. Good luck with the new job, Matt.