Bump and Update: The Supreme Court has ruled in favor of a death row inmate.

The Supreme Court sided with a convicted killer in an important test of legal standards for death penalty cases, ruling Thursday that inexperienced lawyers failed their client at trial. The court, by a vote of 7 to 2, threw out the death sentence of Kevin Wiggins, a borderline retarded man convicted of drowning an elderly Maryland woman who employed him as a handyman.

Bump and Update:The Supreme Court has dismissed the Nike free speech appeal.

The U.S. Supreme Court dismissed on Thursday on technical grounds a Nike Inc. appeal on whether it can be sued for false advertising over a publicity campaign to defend itself against accusations that Asian sweatshops made its footwear. The high court, on the last day of its term, said the free-speech appeal was dismissed without reaching the merits of the dispute. The ruling means the lawsuit against Nike, the world's largest maker of athletic shoes, can go forward.

In another ruling, the Supreme Court ruled Thursday that the government cannot retroactively erase statutes of limitations, a defeat for prosecutors trying to pursue priests accused of long-ago sex abuse.

On a 5-4 vote, the justices struck down a California law that allowed prosecutions for old sex crimes. It was challenged by a 72-year-old man accused of molesting his daughters when they were children. The case was closely watched because of sex abuse problems in the Roman Catholic church, but it also has implications for terrorism and other crimes.

Update: The Supreme Court in a 6-3 decision in Lawrence v. Texas has struckdown the Texas law prohibiting consensual homosexual sodomy. The justices held that the law was an unconstitutional privacy invasion and violated due process.

From How Appealing:

Lawrence v. Texas (syllabus here; majority opinion here; opinion concurring in the judgment here; dissenting opinion here; additional dissenting opinion here;

From a Press Release from People for the American Way:

"The Supreme Court has recognized what most Americans regard as common sense - the government has no place regulating private sexual behavior between consenting adults. And the Court has recognized as law what most Americans see as basic fairness: being gay should not mean being a second-class citizen. This decision has not eliminated all the barriers to full equality for gay Americans, but it takes a major step towards dismantling those barriers."

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Today will be a big day for Supreme Court news. Decisions are expected in the Texas sodomy and Nike cases. There could be an announcement regarding retirement of one of the Justices. Be sure to check in with Howard Bashman of How Appealing and ScotusBlog for the latest news.

On a related topic, Eric at IsThatLegal has some sharp criticism for Justice O'Connor's extra-judicial comments on the affirmative action ruling made in a post-decision interview.

The Fourth Circuit Court of Appeals has dismissed the Government's appeal of the Moussaoui trial court judge's order allowing him to interview alleged al Qaeda member Ramzi Binalshibh.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., threw out the appeal on a technicality. It ruled that the Justice Department was premature in appealing the trial judge's order allowing Moussaoui to question Sept. 11 organizer Ramzi Binalshibh through a remote video hookup.

The appellate judges said U.S. District Judge Leonie Brinkema's order "clearly is not a final one," because Moussaoui has yet to stand trial. The judges said that appeals courts have jurisdiction only to hear appeals from final orders.

Our take: Get ready for the Government to dismiss the federal action and declare Moussaoui an enemy combatant, move him into military custody, and subject him to interrogation before providing him with a military tribunal trial at which the Government will be seeking the death penalty.

On another matter, our hosting company went down this morning for about an hour and we just got back up. We apologize for any inconvenience.

Update: The Moussaoui decision is here.

Inspector General Glenn Fine announced that his office will conduct an internal affairs-disciplinary type investigation into the treatment of detained immigrants in Brooklyn after 9/11.

The inspector general, Glenn A. Fine, briefed lawmakers on a highly critical report delivered by his office earlier this month on the treatment of Sept. 11 detainees, and said that investigators had "serious concerns" about a pattern of verbal and physical abuse faced by 84 illegal immigrants at the Metropolitan Detention Center in Brooklyn.

Investigators found that some guards slammed inmates against walls, dragged them by their arms, stepped on the chains between their ankle cuffs and made slurs and threats like "you will feel pain" and "you're going to die here," Mr. Fine told members of the Senate Judiciary Committee.

Ashcroft and the Justice Department refused to bring criminal charges against the guards. Bureau of Prison officials are still trying to justify the treatment of the detainees, saying any instances of misconduct were isolated. Even Orrin Hatch was upset at the treatment:

"Neither the fact that the department was operating under unprecedented trying conditions nor the fact that the 9/11 detainees were in our country illegally justifies entirely the way in which some of the detainees were treated," said Senator Orrin G. Hatch, Republican of Utah and chairman of the Judiciary Committee. (Clue for Mr. Hatch: Drop the word "entirely"--there is no justification period.)

On the other side, was Sen. Chuck Schumer (D-NY) "who warned against exaggerating the inspector general's findings and placing overly burdensome restrictions on law enforcement." (Schumer recently suggested Arlen Specter be considered for the Supreme Court. Schumer is one of the most law and order Democrats out there.)

Sen. Russ Feingold (D-WI)had the correct analysis--he labeled the conduct disclosed by the Inspector General's report an "abuse of power" by the Justice Department.

The Center for Public Integrity today has released a report showing a pattern of misconduct by local prosecutors nationwide.

The report is called "Harmful Error," a play on the term "Harmless Error" used by appellate courts when they find that prosecutorial misconduct occurs, but does not prejudice the defendant so acutely that the guilty verdict must be reversed.

"This is the most extensive investigation into prosecutorial conduct that has ever been carried out in this country," said Charles Lewis, executive director of the Center. "The findings in this report will be discussed in legal circles for years to come."

Judges have ruled in at least 2017 cases out of over 11,000 cases reviewed from 1970 through mid-2003 that prosecutors' behavior inside or outside the courtroom prejudiced juries or judges against the defendant. As a result, the judges reversed a guilty verdict, ordered a new trial, or took other actions to correct a wrong. The report also documents cases in which prosecutorial misconduct has played a role in convicting innocent women and men.

Three new criminal justice bills have been introduced in Congress:

S 1322 (Schumer, D-NY), to require states to make certain information regarding sexually violent predators accessible on the Internet, to Judiciary. S8439, CR 6/24/03.

HR 2574 (Kucinich, D-OH), to abolish the death penalty under federal law, to Judiciary. H5813, CR 6/24/03.

And -- just for kicks:

HJ Res 61 (Johnson, Sam, R-TX), proposing an amendment to the U.S. Constitution to abolish the federal income tax, to Judiciary. H5814, CR 6/24/03.

You can get more information on any of the bills at Thomas, the Federal Legislation Server.

Many legal experts have declared that the rules for proposed military tribunals are unfair and stacked in favor of the prosecution.

The guidelines for the military terrorism trials allow suspects and their civilian lawyers to be barred from some proceedings, restrict defense investigations and don't allow for review by independent courts, said military law experts and human rights groups opposed to the system.

Donald Rehkopf, co-chair of the military committee of the National Association of Criminal Defense Lawyers, called the planned military commissions ``an embarrassment to democracy.''

``This is a show. It's a kangaroo court of the worst sort,'' he said, describing the rules as crafted to guarantee convictions, compel guilty pleas and make it as easy as possible to get the death penalty.

"These (rules) are fundamentally contradictory to the American tradition of a fair trial," said Michael Noone, a professor at Catholic University's law school and a retired Air Force colonel.

We agree. Among the more troubling provisions:

- One rule requires defendants to prove they were justified in taking actions the government says are war crimes. Critics say that erodes the presumption of innocence that underlies American civilian and military trials. "That's an inversion of the burden of proof," said Gary Solis, a former Marine Corps judge who teaches a course on the law of war at Georgetown University.

- Decisions by the tribunals can be appealed only to a special panel of judges appointed by the Defense Department, and then directly to the president. "Bush, through his designees, can serve as prosecutor, judge and jury, and executioner. There's no independent judicial review of verdicts," said Wendy Patten of the group Human Rights Watch.

- Defendants and their civilian lawyers may be excluded from some proceedings where secret evidence is discussed.

- Civilian defense lawyers are not paid by the government and must do their defense work from the site where the military tribunals will be held.

Grant Lattin is a retired Marine Corps lawyer who has applied to be a civilian defense attorney for the tribunals. He astutely notes, "It's difficult to get civilian attorneys willing to go to Guantanamo Bay and spend a month or longer to defend these people on your own dime."

The rules for military tribunals are accessible here.

A new CNN-USA Today-Gallup poll shows that Bush's re-election support has dropped to 50%.

In a recent CNN-USA Today-Gallup poll, 50 percent said they would vote for Bush and 38 percent backed the unknown Democratic candidate, with the rest undecided. Those numbers aren't very different from those garnered by Bush's father in June 1991, when the commander in chief was praised for the U.S. success in the Persian Gulf War and the Democrats were scrambling for a candidate. Bill Clinton defeated George H.W. Bush in the 1992 election.

Expert consensus on the reason for the drop: the Economy.

Congressman Barney Frank (D-MA) has introduced the Restoration of Freedom of Information Act of 2003 in the House of Representatives, as a companion to S. 609, introduced by Senator Patrick Leahy, to restore aspects of the Freedom of Information Act modified by the Homeland Security Act of 2002.

The Restoration of Freedom of Information Act of 2003 would clarify that the Homeland Security Act only covers certain records the government does not already have a legal right to obtain. The bill would also remove restrictions on the government’s ability to act in response to information it receives. Finally, the Frank bill would restore whistleblower protections by removing criminal penalties on disclosure.

Deputy Defense Secretary Paul Wolfowitz will be in charge of military tribunals, CNN reports. Rumsfeld has delegated his authority.

Individuals brought before the tribunals would have no right to a jury trial, no right to confront their accusers and no right to judicial review of trial procedures or sentences, which could include death.

Wolfowitz will be the one to decide who faces trial.

After the chief military prosecutor drafts charges against a detainee, Wolfowitz will have the authority to approve those charges and send the detainee to trial.

How's this for a review process.....instead of judicial review,

Wolfowitz, a review panel and Rumsfeld would examine the sentence before it went before Bush.

The War on Our Freedoms: Civil Liberties In An Age of Terrorism

While we were out of town last week, we had a chance to read this excellent new book, The War on Our Freedoms: Civil Liberties in an Age of Terrorism. It is a compilation of articles authored by many experts and journalists--one is even a civil rights attorney.

In each generation, for different reasons, America witnesses a tug of war between the instinct to suppress and the instinct for openness. Today, with the perception of a mortal threat from terrorists, the instinct to suppress is in the ascendancy. Part of the reason for this is the trauma that our country experienced on September 11, 2001, and part of the reason is that the people who are in charge of our government are inclined to use the suppression of information as a management strategy.

These essays by top thinkers, scholars, journalists, and historians lift the veil on what is happening and why the implications are dangerous and disturbing and ultimately destructive of American values and ideals. Without our even being aware, the judiciary is being undermined, the press is being intimidated, racial profiling is rampant, and our privacy is being invaded. The "war on our freedoms" is just as real as the "war on terror"--and, in the end, just as dangerous.

It is published by the not-for-profit, non-partisan Century Foundation. We really think you will like it and learn from it. So go, buy. With the 4th of July coming up, Independence Day, what book could be better suited?

The European Union and the United States will sign an extradition agreement today that allows terrorism suspects to be handed over to U.S. authorities.

First, the good news:

The laboriously negotiated deal, part of Europe's response to the September 11 attacks, makes it clear that anyone likely to face execution will not be surrendered.

Other provisions of the agreement allow:

US and EU law enforcement agencies access to bank accounts in the fight against crime and terrorism, complementing the arrangements on cooperation between the FBI and Europol, the EU's police agency..... and the US to search containers leaving EU ports.

The Bush Administration's decision to drop a federal criminal action against Qatari student Ali Saleh Kahlah al-Marri one month before his trial, and transfer him to military custody in a South Carolina brig where he awaits a decision as to whether he will be tried in a military tribunal proceeding, marks a change in Administration policy according to Administrative officials and experts.

The move does not bode well for Zacarias Moussaoui, whom experts predict will also be declared to be an enemy combatant and removed from the federal criminal justice system.

The Administration claims the move of Mr. Marri is intended to allow them to interrogate him about al Qaeda.

Critics of the Bush administration tactics said today that they believed the decision to declare Mr. Marri an enemy combatant set a dangerous precedent and exposed inconsistencies in the administration's treatment of terrorist suspects.

By declaring Mr. Marri an enemy combatant, the administration also sends a message to other terrorist suspects now in the criminal system about what could happen if they do not cooperate with investigators, officials said.

Defense lawyers for some criminal defendants in terrorism cases in Lackawanna, N.Y., and elsewhere have complained that prosecutors used the threat of enemy combatant status to coerce pleas. Justice Department officials have denied such a tactic, saying it would be unethical. But a senior F.B.I. official said today that the Marri decision held clear implications for other terrorism suspects. "If I were in their shoes, I'd take a message from this," the official said.

....Civil liberties advocates and military law experts said they were troubled by the decision to declare Mr. Marri an enemy combatant less than a month before his trial. They said he posed no imminent threat to the United States because he had been in custody more than 18 months. "The fact that a person is removed from the framework of the federal district courts and thrust into a legal environment with few if any protections can't help but be disturbing," Eugene Fidell, president of the National Institute of Military Justice, said.

You can read the text of Bush's Executive Order declaring Mr. Marri an enemy combatant here.