Wisconsin banned the death penalty 150 years ago. That doesn't mean anything to Attorney General John Ashcroft, who is considering directing his minions to file federal death penalty charges in a Wisconsin kidnapping-murder case, whether they want to or not.

That's because the case is being prosecuted in federal court, where U.S. Attorney General John Ashcroft makes the final decisions on whether to seek capital punishment. Since Ashcroft took office in 2001, he has overturned local U.S. attorneys' decisions not to seek the death penalty 31 times - often in places like Wisconsin, where the maximum punishment in state court is life in prison.

"It appears that the attorney general is trying to impose his personal beliefs on areas of the country that are less enthusiastic about the death penalty than he is," said Kentucky attorney Kevin McNally, who helps run the Federal Death Penalty Resource Counsel Project.

Every time U.S. attorneys prosecute an offense for which the federal death penalty is an option, they must report to the attorney general whether they wish to seek the death penalty and why. A federal committee reviews each case and may consult with the U.S. attorney and defense counsel before making its own recommendation. Ashcroft has the final say and may disagree with the U.S. attorney, the committee, or both.

The LA Times editorializes about the High Court's Martinez decision yeterday in Justice Takes A Beating.

Three cases before the court next term could push at the boundaries of permissible evidence in criminal cases. The Martinez case turns back the clock, and the coming cases could multiply the harm to a civilized justice system.

Our thoughts on the case are here, but make sure you read through the comments to see how splintered the court was and the inconsistency of positions.

Update: Steve Chapman in the Chicago Tribune has some good criticism of the decision here.

Neil Lewis of the New York Times writes a lengthy article on his review of the documents in the cross-burning case involving Bush judicial nominee Charles Pickering of Mississippi.

While we wrote a long post on this yesterday, Lewis's article contains some new information, so we recommend you read the whole thing.

The prosecutors, documents and interviews show, agonized over how to deal with a hostile federal judge.

Among other steps Judge Pickering took, he threatened to order a new trial. When prosecutors asked him on what basis he could do so, he replied, "Any basis you want."

When federal prosecutors from the same Jackson, Miss., office came before him in other unrelated cases, he hectored them, asking them repeatedly what their office was doing with regard to his request to reduce the sentence in the Swan case. Justice Department officials at the time said Judge Pickering was making it especially difficult for Mr. Lacy, a senior trial lawyer in the office who would have to appear many times before him.

In a sealed order, Judge Pickering ordered the prosecutors to take up the Swan case with Attorney General Janet Reno, an unusual demand they did not comply with and one he did not enforce.

Judge Pickering also telephoned Frank Hunger, a friend who was then a senior Justice Department official, to complain. His call may have violated the canons of judicial ethics, several legal experts say. Mr. Hunger said he listened but did not take any action on the complaint.

The New York Times reports that the medical examiner in New York has ruled the heart attack death of 57 year old Alberta Spruill a homicide. Spruill suffered the heart attack when the police threw a grenade into her apartment during a drug raid. They had the wrong house. [link via FourthAmendment.com]

Ninth Circuit Court of Appeals Judge Harry Pregerson is bucking the trend in California Three-Strikes cases. He refuses to go along with life sentences for non-violent third-strike offenses. His view of "stare decisis" and his obligation to follow the dictates of the Supreme Court differs from that of some more conservative judges.

In good conscience, I cannot vote to go along with the sentence imposed in this case," Pregerson wrote in one typical dissent.

"I think the Three Strikes law should only be applied to a defendant whose criminal history, including his last offense, demonstrates that he needs to be taken off the streets because he poses a realistic threat to the health and safety of the community," Pregerson explained Tuesday. "There are cases where a long term in prison is justified and cases where it is not."

One appeal involved a 25-years-to-life sentence for stealing a $130 television from a Lake Elsinore Wal-Mart. Another involved a third-strike conviction for passing bad checks. In yet another, the defendant was convicted of receiving a stolen .22-caliber handgun.

....Pregerson is described by many as a compassionate liberal. He has been honored for his extensive work with veterans and the homeless. Pregerson said former Supreme Court Chief Justice Earl Warren would always ask one question. "Very simple -- 'Is it fair?'" Pregerson said. "That's it. Our system has to be grounded in fairness."

We had the pleasure of meeting and speaking with Judge Pregerson at some length in Los Angeles last October at the swearing-in party for LA Police Chief William Bratton. The Judge is charming, vivacious and a great conversationalist. His conscience does him proud. [link via How Appealing]

Our new ally, Uzbekistan is torturing Islamists and the U.S. is looking the other way.

Independent human rights groups estimate that there are more than 600 politically motivated arrests a year in Uzbekistan, and 6,500 political prisoners, some tortured to death. According to a forensic report commissioned by the British embassy, in August two prisoners were even boiled to death. (emphasis supplied.)

The US condemned this repression for many years. But since September 11 rewrote America's strategic interests in central Asia, the government of President Islam Karimov has become Washington's new best friend in the region.

The US is funding those it once condemned. Last year Washington gave Uzbekistan $500m (£300m) in aid. The police and intelligence services - which the state department's website says use "torture as a routine investigation technique" received $79m of this sum.

Counterspin has more.

A new poll shows Bill Clinton is the third most popular president in history.

Only Abraham Lincoln (chosen by 15%) and John F. Kennedy (13%) finished ahead of Clinton (11%) in the April poll, which asked Americans who was "the greatest" president. George W. Bush managed to tie Clinton for third place.

Ronald Reagan, a conservative icon, garnered 10% of the vote, followed by Franklin Roosevelt, George Washington, Harry Truman and Jimmy Carter. Bush's father, the 41st president, was chosen by just 2% of the respondents, tying with Theodore Roosevelt and Thomas Jefferson.

Clinton was considered the best president by 29% of 18- to 29-year-olds. Only 10% of that group picked Bush.

Link via Oliver Willis, who says, "Silly Clinton. All you did was provide peace and prosperity - why would we ever want that again?

In other Clinton news, rumors are flying that Clinton may challenge Michael Bloomberg to be Mayor of New York

Emma over at Notes On the Atrocities analyzes the prose of various blogs. First there is the "ur-blog/news-digest model"--efficiency and economy--think Atrios:

Atrios is to blogging what haiku is to poetry--economy and efficiency...The style accentuates immediacy....It’s quick and pithy. The speed of news and communication is palpable on Eschaton, and he treats his readers with a prose style that underscores this ethos.

Then there are the essayist blogs. Go read which ones Emma selects to dissect. And then there are the activist blogs. Emma says TalkLeft, like Tom Tomorrow, is an activist blog.

Tom and Jeralyn might make some changes if their blogs were going into the New Yorker. But that’s not really the point. Their directness and candor speak volumes. The posts are more like personal emails mailed out to friends than official publications. We understand that it’s more important for the posts to get posted than it is for them to be posted error-free.

Thanks, Emma!

Bad news for civil liberties:

"The Supreme Court gave the Bush administration a major legal victory in the war on terrorism Tuesday, rejecting a challenge to secret deportation hearings held for hundreds of foreigners detained after the Sept. 11 attacks."

"The court declined to hear an appeal from New Jersey newspapers seeking information about the detainees, but attorneys for the newspapers said they still hoped the administration would change its policy. The Supreme Court has been told the policy is being reviewed and probably will be revised."

"The court's refusal to intervene was the third such victory for the government in Sept. 11 cases. Like the others, Tuesday's action was not a ruling on the merits of the case. "

The media outlets had argued:

...the public deserves to know ``how, and how fairly, its government uses the power of detention and deportation.'' ``That is especially true at this moment, when the government itself has expressly drawn a link between deportation proceedings and the war on terrorism and has frequently cited the number of non-citizens it has detained as evidence of the investigation's progress,'' they told justices.

The case is North Jersey Media Group v. Ashcroft, 02-1289.
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Anthony E. Bragdon served ten years of a 30 year sentence for assault with intent to rape and use of a firearm in a violent crime before beingd. In 2001, prosecutors revealed that FBI Agent Michael Malone gave false testimony at his trial and covered up exculpatory evidence. The Court of Appeals has reversed his conviction.

``I did all that time. That is a major part of my life,'' Bragdon said in a telephone interview Tuesday. ``When I went to prison I was just 19. This was my first adult conviction. I had never been locked up. ... So they never gave me a chance to establish myself in the real world as far as getting a job.''

Bragdon's case is not the only one affected by the FBI lab scandal.

Bragdon's freedom is an outgrowth of a sweeping investigation in the 1990s prompted by FBI whistleblower Frederic Whitehurst's allegations that his FBI lab colleagues had performed shoddy work and shaded the truth to help prosecutors.

The Associated Press reported in March that a review had identified about 3,000 cases that could have been affected by the shoddy work but only 150 defendants had been notified of problems.

Even after discovering Malone's misconduct, the FBI didn't fire him. They transferred him to another division where he remained until his retirement. He now resides in Virginia. In 2001, Malone told the St. Petersurg Times,

``Nobody's convinced anybody in a black robe that I've done anything wrong. I did the best I could. Crime labs aren't perfect. People aren't perfect.''

In setting aside the conviction, the judge wrote that Malone's testimony made a difference.

VoteLaw is the latest to leave Blogger for MT. Ed Still has created a very nice design for the election-law related blog, so be sure to update your bookmarks.

Remember the sad case of Oliver Martinez?

Martinez, a 29 year old farm worker, was riding his bicycle home from his work picking strawberries. Police were looking for a narcotics suspect they wrongly believed was selling drugs in a field. When Martinez passed, they demanded he stop, get off his bicycle and 'assume the position.' One officer located Martinez' strawberry knife. A struggle of some sort ensued, although police have conceded Martinez never struck or kicked them. One of the cops opened fire on Martinez, pumping him with five bullets, leaving him blind in one eye and paralyzed. He is now 34 years old and resides with his father in a one room trailer. He has a wheelchair and wears dark glasses to cover his missing eye. Oxnard has refused to pay for any therapy for him. He has not been charged with a crime.

The Supreme Court decided his case today--ruling against him. The full opinion in Martinez v. Chavez is here.

The Court reversed the ruling of the 9th Circuit appeals court which had held:

...Chavez’s coercive questioning violated Martinez’s Fifth Amendment rights even though his statements were not used against him in a criminal proceeding, and that a police officer violates due process when he obtains a confession by coercive conduct, regardless of whether the confession is subsequently used at trial.

By finding that the cop had not violated Martinez's consitutional right against self-incrimation, the cop retains qualified immunity from being sued for the injuries he caused Martinez. So Martinez stays in his diminshed condition without recourse against the officer who caused it.

The issue posited in the case was whether the Fifth Amendment conveys a "constitutional right to be free of coercive interrogation," or just a right not to have forced confessions against them at trial.

The Supreme Court held, (according to the syllabus):