In response to Tuesday's ruling by the U.S. Circuit Court of Appeals for the Second Circuit, which overturned U.S. District Judge Jed Rakoff's July decision holding the federal death penalty unconstitutional due to errors in the system that have resulted in more than 100 wrongful death penalty convictions, Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, said that the Supreme Court should show courage and address the reversal of the Rakoff death penalty decision:

"The Second Circuit feels bound by precedent, but Judge Rakoff instead felt bound by the reality that innocent people will die under the current system."

"Across the country, 102 persons sentenced to death have been freed, many on incontrovertible scientific evidence of their innocence. Judge Rakoff's courageous decision recognized that there is more to go on now than in previous challenges: that the newly discovered evidence behind the spate of recent exonerations now proves that the killing of innocent persons by our flawed death penalty machine is inevitable. He was not wrong in concluding that these flaws amount to a violation of due process."

"Several Justices have shown concern for the same issues that led Judge Rakoff to reach his conclusions. We hope the Supreme Court will take this case and address these concerns as soon as possible. Innocent lives hang in the balance."

"NACDL is the preeminent organization in the United States advancing the mission of the nation'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 10,000 direct members -- and 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."

For an analysis of the opinion, go here. You can access the opinion directly here.

Update: Long Story, Short Pier has some comments critical of the reversal.

"The U.S. Supreme Court on Tuesday ruled unanimously that convicted felons could not go to federal court to seek restoration of their gun rights once Congress blocked and defunded an administrative procedure for doing so. In a ruling written by Justice Clarence Thomas, the Court studiously avoided mention of Second Amendment gun right issues that had been raised in some briefs in the case."

The case is United States v. Bean, and we posted a synopsis of it yesterday, here.

Here is the text of the opinion. And the Washington Post provides this view of the decision.

A final recount of Colorado ballots for its new congressional seat concludes with Republican Bob Beauprez winning the seat by 121 votes over Democrat Mike Feeley, making the race the closest congressional race of 2002.

In other election news, Rep. Elijah E. Cummings (D-Md.), a Baltimore lawyer and former Maryland state legislator, has been elected chairman of the Congressional Black Caucus. Cummings is a death penalty opponent.

"The 39-member, all Democratic caucus elected Rep. Sheila Jackson Lee (D-Tex.) as vice chair; Rep. Corrine Brown (D-Fla.) as second vice chair; Rep. Danny K. Davis (D-Ill.) as secretary; and Barbara T. Lee (D-Calif.) as caucus whip. "

We just received this email from Stephen Bright, Director of the Southern Center for Human rights, about a case that Chris Adams, a lawyer with the Center, just won. Chris is an outstanding lawyer, and we want to share his victory.

(from Stephen's email):

"About a year ago, we got a letter from a Albert Joe Ryans who had been in jail in Phoenix City, Alabama for two years facing capital murder charges and had seen his court-appointed lawyer only once for a few minutes. I asked Chris Adams to speak with him. When Chris got to the jail, Ryans was so glad that someone had come to see him that he broke down in tears. Chris took the case, tried to get the state to dismiss the charges, and finally persuaded the prosecutor not to seek the death penalty. This week, Ryans broke down again when the judge directed a verdict of acquittal. This is another great victory for Chris. newspaper story below. - steve bright"

Columbus, Ga., Ledger Inquirer, Dec. 06, 2002
Judge acquits man of murder - Greene rules state failed to provide enough evidence against Albert Joe Ryans

"The murder trial of Albert Joe Ryans ended abruptly Wednesday when Russell County Circuit Court Judge George Greene ordered a directed verdict of acquittal for lack of evidence linking him to the 1998 slaying of a Phenix City car wash attendant.

Ryans, 42, sobbed in relief and embraced defense attorney Chris Adams of Atlanta as relatives of the murder victim gasped and cried out in protest when Greene made his ruling.

Moments after District Attorney Kenneth Davis rested the state's case, Greene ruled that the prosecution's evidence failed to produce an overt act linking Ryans to the slaying committed by Johnnie Lee James, 42, who stabbed 79-year-old Edward Abernathy a dozen times during a Dec. 10, 1998 robbery at the Goo Goo Car Wash on Seale Road.

The state's case also presented no evidence that Ryans was aware of the robbery planned by James and codefendant Robin Diggins, 31, who gave James the knife used in the slaying, Greene said. The state's case showed Ryans was only told of the robbery plan by Diggins after James had left their car to go to the car wash, and that Ryans had been at a pay phone outside the car when Diggins and James talked of the robbery, the judge said.

Members of the Abernathy family erupted in angry tears and loud protests upon hearing the decision. Although Ryans is likely to soon be a free man, Adams and defense co-counsel Joel Collins said he will first be returned to a south Alabama prison, where he has spent most of the last four years serving time for revocation of a prior conviction for a credit card fraud charge. Adams said Ryans has never been involved in violent offenses."

We add our congrats to Chris and Joel, Mr. Ryans and the Center.

Black leaders in Congress have rejected the apology of Republican Senator Trent Lott.

"Members of the Congressional Black Caucus on Tuesday rejected Senate Republican leader Trent Lott's apology for saying that America would have been better off if Strom Thurmond had won the U.S. presidency in 1948, when he ran as a segregationist."

"His remarks require minimally a much larger apology ... a meeting with the black caucus ... and whatever else the caucus may decide," said Rep. Sheila Jackson Lee, a Texas Democrat."

"The three dozen members of the caucus, all black Democrats in the House of Representatives, plan to consider options, which also appeared to include pushing for a Senate censure and even asking for Lott's resignation as Senate Republican leader."

Maxine Waters, a prominent Democrat and member of the Black Caucus, criticized Tom Daschle for so readily accepting Lott's "apology."

J.C. Watts, outgoing African-American Congressman from Oklahoma, actually defended Lott's statements, saying no racism was intended.

Kwesi Mfume, a former Democratic Congressman and current head of the NAACP, said, "Senator Lott's statement is the kind of callous, calculated, hateful bigotry that has no place in the halls of the Congress." The NAACP has called for Lott's resignation.

And over at the Drudge Report, a headline screams that Lott has said the same thing before:

"After a fiery speech by Strom Thurmond at a Mississippi campaign rally in November 1980, Lott, then a congressman, told a crowd: 'You know, if we had elected this man 30 years ago, we wouldn't be in the mess we are today'... MORE... Quotation appeared in an account of the rally on Nov. 3, 1980, in Clarion-Ledger in Jackson, Miss... , in 1980."

Update: Washington Post confirms the 1980 Lott story, here.

Daily Kos ranks the Democratic Contenders this week. And he's added Gary Hart to his "watch list."

Kos is also looking for contributors to his new collaborative blog, Political State Report. You can read about it here. It is scheduled to go live after the new year. He needs conservative or libertarian writers from pretty much every state except Texas. I need left-leaning writers from AL, AR, AZ, AR, DE, GA, HI, IA, KS, KY, LA, ME, MA, MI, MN, MS, MT, NE, NV, NJ, NM, NY, ND, OK, RI, SC, SD, VT, WA, WI, and WY.

Cursor is back from hiatus, and we are glad. It's a great source of progressive news written blog-style. It's also got a very readable format.

Nan Aron, President of Alliance for Justice, guest blogs for Eric Alterman today at Altercation on judicial nominations and the fate of the courts. Lots of information and we agree with her views. Here's a piece of Nan's column.

" At the end of the congressional session, all nominations are returned to the White House. We anticipate the president will make known his nominations for the next Congress early in the new year. With the Republicans at the helm in the Senate, it is likely that the process will be accelerated. But the standards for evaluating judicial nominees must remain high — no matter which party controls the process.

In light of the election results, there has been some speculation that the president will renominate those already defeated by the Committee. This would be an insult to the institution of the Senate, which has already performed its constitutional duty. The president has insisted he wants to work in a bipartisan fashion for the good of the country. The morning after the election, President Bush continued to reinforce his “uniter” message by saying, “I’ve talked to leaders of both parties and assured them I want to work with them.” We take him at his word; however, we will most certainly watch his deeds. To force the Senate to reconsider these nominees after it has done its work would be an ultimate politicization of the process.

The Alliance for Justice will continue to fight for cherished rights on behalf of the American people who do not want judges who favor big business against the interests of consumers and workers, who will restrict reproductive freedom, and who seek to roll back progress made in the areas of civil rights and environmental protection."

Nan also recommends Independent Judiciary.com

UNITED STATES V. BEAN (01-704)
Web-accessible at: http://supct.law.cornell.edu/supct/html/01-704.ZS.html

Argued October 16, 2002 -- Decided December 10, 2002
Opinion author: Thomas

===============================================

Because of respondent's felony conviction, he was prohibited by 18 U.S.C. sect. 922(g)(1) from possessing, distributing, or receiving firearms or ammunition. Relying on sect. 925©, he applied to the Bureau of Alcohol, Tobacco, and Firearms (ATF) for relief from his firearms disabilities. ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon such applications. Invoking sect. 925©'s judicial review provision, he filed suit, asking the District Court to conduct its own inquiry into his fitness to possess a gun and to issue a judicial order granting relief. The court granted the requested relief, and the Fifth Circuit affirmed.

Held: The absence of an actual denial by ATF of a felon's petition precludes judicial review under sect. 925©. The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain preconditions are met, and an
applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investigate or act upon the applications. Section 925©'s text and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction.

Grammatically, the phrase "denied by the Secretary" references the Secretary's decision on whether an applicant "will not be likely to act in a manner dangerous to public safety," and whether "the granting of the relief would not be contrary to the public interest." Such determination can hardly be
construed as anything but a decision actually denying the application. Under sect. 925©'s procedure for those seeking relief, the Secretary, i.e., ATF, has broad authority to grant or deny relief, even when the statutory prerequisites are satisfied. This procedure shows that judicial review cannot occur without a dispositive decision by ATF.

First, in the absence of a statutorily defined standard of review for action under sect.925©, the Administrative Procedure Act (APA) supplies the applicable standard. 5 U.S.C. sect. 701(a), 706(2)(A). The APA's "arbitrary and capricious" test, by its nature, contemplates review of some action by another entity.

Second, both parts of sect. 925©'s standard for granting relief--whether an applicant is "likely to act in a manner dangerous to public safety" and whether the relief is in the "public interest"--are policy-based determinations and, hence,
point to ATF as the primary decisionmaker. Third, sect.925© allows the admission of additional evidence in district court proceedings only in exceptional circumstances. Congressional assignment of such a circumscribed role to a district court shows that the statute contemplates that a court's
determination will heavily rely on the record and the ATF's decision. Indeed, the very use in sect. 925© of the word "review" to describe a court's responsibility in this statutory scheme signifies that it cannot grant relief on its own, absent an antecedent actual denial by ATF. Pp. 2-7.

253 F.3d 234, reversed.

Thomas, J., delivered the opinion for a unanimous Court.

Here is what it means.

Comments, anyone?

Through a comment posted here by Skippy, we learn that 8 protesters were arrested December 4 at Colorado Senator Wayne Allards's office in Englewood Colorado. Here's the report, verbatim (scroll down to last entry):

Wednesday, 4th December, 2002: Englewood, CO: Eight Activists Opposed to War Arrested at Senator Allard’s Office

Eight nonviolent anti-war activists were arrested at Senator Wayne Allard’s office in Englewood, CO Wednesday evening. They went to his office to insist that the Senator hold a public forum with his constituents and respond to their concerns regarding the possibility of further military action in Iraq. The protestors, some affiliated with the Rocky Mountain Peace and Justice Center in Boulder, CO, began the peaceful sit-in at 10 a.m. on Wednesday, December 04, 2002, pledging to remain in the office until the Senator agreed to attend the forum. The Senator’s staff agreed to hold a "regular 60 minute-long Town Meeting", but not one exclusively dedicated to the looming war against Iraq.

Vowing to stay until the Senator agreed to a meeting exclusively dedicated to the topic of the war, the activists issued this statement to the Senator’s staff:

"We are disappointed that Senator Allard has decided not to hold a one hour forum with his constituents on the urgent issue of war with Iraq. This minimizes the issue, and all the Coloradoans who are disturbed by the immoral actions being taken by our government. We are committed to staying here until Senator Allard agrees to a one-hour Town Meeting dedicated to this crucial issue."

Refusing to change their position, Senator Allard’s staff had the activists arrested and taken to Arapaho County Jail for booking. "We feel that Senator Allard ignored the will of the people whom he represents when he voted to give President Bush the permission to preemptively start another war with Iraq," noted Andrew Tirman, a spokesperson for the group. The affinity group, named "Collateral Damage", is opposed to an increased military involvement in Iraq for many reasons, "We are here because we feel that the human and economic costs of Bush’s proposed war are much too great. We refuse to accept the Bush administration’s excuse of ‘regime change’ to cover for the
American imperialist quest for hegemony over the world’s oil fields," Tirman said.

For more information contact: Carolyn Bninski, Rocky Mountain Peace and Justice Center, (303) 444-6981 bninski@qwest.net

Bad news. Judge Jed Rakoff of the Southern District of NY has been reversed on his decision declaring the death penalty unconsitutional.

From an email we received:

"USA v. Quinones, 02-1403(L), 02-1405

"2d Circuit panel unanimously rules: We hold that (1) we have jurisdiction to entertain this appeal, (2) the constitutional challenge was ripe for consideration prior to trial, (3) to the extent the defendants claim relies upon the Eighth Amendment, it is foreclosed by the Supreme Court's decision in Gregg v. Georgia, 428 U.S. 153 (1976),and (4) the Federal Death Penalty Act does not violate the Due Process Clause of the Fifth Amendment. "

The full text is likely available on Findlaw.

The New York Times has this article on the case.

A big thanks to Jeanne D'Arc of Body and Soul and Lisa English of Ruminate This for their praise today. What a way to start the day!