A judge presiding over a volatile death penalty case in Colorado sharply questioned Monday whether a triple murderer can receive a fair sentence if a new jury is convened to decide whether he gets life or death.

When Paul Wolff, a first assistant attorney general for Colorado, told Arapahoe District Judge Robert Russell that such a jury would benefit Randy Canister, Russell challenged Wolff.

"That's a benefit?" Russell asked. "I don't think this judge is satisfied that your definition of benefit is within the commonly understood definition of benefit."

At issue is a new Colorado death penalty law the legislature passed after the U.S. Supreme Court ruled in June that juries, not judges, are the only ones who can impose the death penalty.

The Supreme Court is considering the issue of Forcing Mentally Ill on Trial to Take Drugs. In an Amicus brief filed by the National Association of Criminal Defense Lawyers, a novel issue is raised:

In addition to due process and fair trial rights, Dr. Sell's supporters also raise objections under the First Amendment to involuntary mind-altering medication. A brief submitted by the National Association of Criminal Defense Lawyers tells the court that if Dr. Sell testified under the influence of medication, "his words would not be his own" but would be the government's.

NACDL's argument is this (quotes that follow are from the Amicus Brief, authored by preeminent Saint Louis defense attorney Burton Shostak, Grant Shostak and Deborah Westling):

Assuming, arguendo, the propriety of ordering that a defendant may be forcibly injected with anti-psychotic drugs for the sole purpose of restoring the defendant’s competency to stand trial, the trial court must conduct a pre-medication analysis to determine how the medication will affect defendant’s demeanor at trial and his ability to assist his attorney in presenting his defense....The involuntary medication of Dr. Sell could alleviate the very symptoms that would most likely convince a jury of his diminished capacity and thereby deprive him of a constitutionally protected defense. As Dr. Sell’s mental state at the time of the offenses charged will be at issue, a jury’s decision will certainly be guided by its observations of Dr. Sell during the trial. Any analysis performed after the medication regimen has begun may simply be too late.

Accordingly, the district court erred in not considering the effects of the medication on Dr. Sell’s demeanor at trial and his ability to assist in his defense prior to ordering his medication.

The National Association of Criminal Defense Lawyers ( NACDL) is the preeminent organization in the United States advancing the mission of America’s criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL’s more than 10,400 direct members – and more than 80 state and local affiliate organizations with another 28,000 members – include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors, and judges committed to preserving fairness within America’s criminal justice system.

NACDL promotes study and research in the field of criminal law to disseminate and advance knowledge of the law in the area of criminal practice. NACDL seeks to defend individual liberties guaranteed by the Bill of Rights and has a keen interest in ensuring that legal proceedings are handled in a proper and fair manner. Among NACDL’s objectives is promotion of the proper administration of
justice. In furtherance of that objective, over the decade, NACDL has filed approximately ten amicus briefs per year with this court on criminal justice related issues.

NACDL members volunteer their time and skills to write these briefs. We are very proud to be an officer of this wonderful organization.

Can someone explain to us the allure of Florida Senator Bob Graham? We can't understand it. He is an avid supporter of the death penalty. Here is some of his voting record on crime and civil rights issues, as disclosed by Project Vote-Smart:

In 1999, Senator Bob Graham voted to pass S 254, the Violent and Repeat Juvenile Offender Act, introduced by Sen. Orrin Hatch (R-Utah). The bill allows U.S. attorneys to prosecute juveniles 14 or older charged with serious violent felonies or serious drug crimes as adults if they certify that there is a substantial Federal interest to warrant the exercise of Federal jurisdiction.

The bill also contains language allowing incarcerated juveniles to interact with adult prisoners where the contact is brief and inadvertent or accidental. (a terrible idea we'll come back to another day). The bill mandates criminal background checks for all gun purchases at gun shows.

After that, he voted to table, or kill, an amendment introduced by Sen. Patrick Leahy (D-VT) to increase funding for state juvenile court systems [including prosecutors, public defenders, and court staff], establish juvenile drug courts, and increase funding for certain law enforcement programs such as Community Oriented Policing Services [COPS].

In 1999, Graham voted yes on a proposal introduced by Sen. Orin Hatch (R-UT) for a constitutional amendment prohibiting the physical desecration of the U.S. flag. That year he also voted yes on a proposal to declare that erecting religious symbols and praying on public school campuses as part of a memorial service does not violate the First Amendment to the Constitution. Again, the bill was introduced by Orin Hatch.

In 1996 he voted to table or kill a motion by Sen. Daniel Moynihan to send S 735: The Terrorism Prevention Act, back to the joint House-Senate conference committee to have provisions limiting death penalty appeals deleted.

In 1995, Graham voted yes on an amendment to make it easier for law enforcement to do anti-terrorism wiretaps. (S 735: Comprehensive Terrorism Prevention Act). The Amendment was introduced by Joe Lieberman (D-CT).

In 1994, Graham voted to pass HR 3355: The Violent Crime Control and Law Enforcement Act of 1994, which included included provisions to build more prisons; hire 100,000 new police officers; allow death sentences for more federal crimes; ban 19 semi-automatic assault weapons; and institute 'three strikes and you're out' provisions, among other components.

In 1995, he voted yes on an amendment to S 1935: Congressional Gift Reform Act that rejected the Racial Justice Act provisions, which would have enabled prisoners appealing death penalty sentences to argue racial discrimination using sentencing statistics as part of their appeal.

In 1994, he voted yes on a proposal to mandate confererees to HR 3355, the Ominibus Crime Control Act to insist that states provide for truth in sentencing by requiring that violent felons serve at least 85% of the prison time imposed.

He did vote against the confirmation of Attorney General Ashcroft and against the impeachment of President Clinton, but that's about all we found favorable. What are we missing?

The Chicago Tribune is two for three today in our book. They call for the videotaping of interrogations and castigate the Sheriff's office for corruption.

The San Francisco police scandal resulting in the Indictment of the police chief and 9 other officers has pitted San Francisco DA Terence Hallinan against San Francisco Mayor Willie Brown. Brown came out in support of Police Chief Earl Sanders after the Indictments were disclosed. He asked the Police Commission to allow Sanders to stay on the job while the case proceeded throught the courts. Now, Brown may be backing away from Sanders.

Regardless of where Brown ends up, we are firm in our support of DA Hallinan. Here's an article about Hallinan we found in the Feb. 20, 1996 Washington Post. It's no longer on line so we're reprinting it in full below. (You also can access it on Lexis.)

Sunday night we posted that we thought Ramzi Binalshibh had cooperated with his interrogators in a foreign country and ratted out Khalid Shaikh Mohammed . This article in Monday's Washington Post agrees and describes how it happened. Time magazine has a different version.

Sources tell Time that agents had been led to his hideout through the earlier arrest of an Egyptian in Quetta who had been in contact with Mohammed. Neighbors, wary of the lone Arab who appeared in their working-class area, tipped off the police, hoping for a reward. Phone records led them to Rawalpindi, where investigators say Mohammed had been hiding for 10 days before his arrest.

The London Sun shares Time's view and has an article describing the neighbor informant and the 17 million pound reward money he is receiving, saying he chose to relocate to Leiceister in England over going to the U.S. And that Osama has put out a contract on the informant.

It's difficult to reconcile such inconsistent versions of what led to Mohammed's capture. And on the topic of Mohammed's interrogation, we've seen articles announcing there would be no torture; there would be psychological torture only;and they would stop just short of torture.

It seems like there is some dissembling going on.

The Supreme Court agreed Monday to hear a case that calls upon them to decide whether police are personally liable for mistakes they make on search warrants.

Law officers are ordinarily immune from lawsuits over their conduct on duty, but the high court has allowed exceptions when the officer violated someone's constitutional rights. The question this time, in a case involving a 1997 ranch in rural Montana, is whether a mistake on the search warrant opened the door for a lawsuit, when there was no specific previous case that would have put an ATF agent on notice that he was at risk.

The case is Groh v. Ramirez, 02-811. Fourth Amendment.com provides this information about the decision being appealed:

The Ninth Circuit held that the rank and file officers at the scene had immunity but the supervisors did not for a clear failure of particularity in a search warrant. Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9th Cir. 2002), pet. for cert filed Nov. 22, 2002 (02-811), cert. granted Mar. 3, 2003 (will not be argued until Fall 2003).

The Judge in the case of accused juvenile sniper suspect John Lee Malvo has denied a motion by the defense seeking to declare the Va. death penalty unconstitutional . At a court hearing Monday, the judge also banned cameras from the courtroom. A motion to suppress Malvo's reported confession will be heard at a later date.

Earl Sanders, Chief of the San Francisco Police Department took paid medicial leave Monday as a result of the recent Indictment against him and six of his top command officers being charged with obstruction of justice in the alleged coverup of beatings committed by three off-duty police officers, one of whom is the son of the Assistant Chief of Police. The other indicted six top ranking officers stepped down without pay.

Terence Hallinan, the San Francisco DA at whose instance the officers were brought before the grand jury and indicted, has promised to keep prosecuting the case.

Media Horse debunks Ari Fleisher's assertion that capturing Mohammed is more significant than capturing Osama.

Brett over at Marstonalia raises some interesting questions about the recent arrest of three central New York men who have been accused of violating sanctions against Iraq by collecting money for Iraqi children. He's concerned about the implications of the Justice Dept.'s announcement which is not backed up by the Indictment. This is connected to the suspension of the prison chaplain last week.

Instapundit tells us the Justice Department is considering making a new crime out of using encryption in or during the course of commission of a different and unrelated crime. It's a bad idea and he has all the reasons, after which he concludes, "And the more the Justice Department uses "anti-terrorism" as a slogan for grabbing more power against ordinary crimes, the more convinced a lot of people will become that the Justice Department isn't serious about terrorism at all."