The New York Times takes a hard line on Bush judicial nominee Miguel Estrada in an editorial today. Estrada's confirmation hearing is scheduled for Thursday. The Times says,

"This is an administration that loves secrecy, on issues ranging from war in Iraq to Vice President Dick Cheney's energy task force. And it seems to think that if Congress is ignored, it will simply go away. Congress must insist on getting the documents it needs to evaluate Mr. Estrada, and it should not confirm him until it does."

Major objections from the Democrats have been expected for some time. The problem seems to be since Estrada has never been a judge, and apparently hasn't published much under his own name (as opposed to writing things for his various superiors,) no one knows where he stands on anything. So there are rumors he is too right-wing for an appellate judgeship on the influential DC Court of Appeals--and general feelings he is too inexperienced for the position, but nothing concrete to hold against him.

Judicial Nominee Michael McConnell, whose ultra-conservative views and posturings were made widely known through his prolific writings, did not cause the Democrats as much concern as Estrada. This is partly due to the general consensus that McConnell wouldn't be much of a threat to the nation because the Tenth Circuit is no great national policy maker. On the other hand, Estrada is a cause for concern because the DC Circuit is considered to be among the most influential of circuits. Even more of a concern is speculation that as both a hispanic and D.C. appeals judge, Estrada might get tapped for the Supreme Court.

The Washington Post said recently,

"If confirmed, Estrada would immediately become a leading candidate to be named the first Hispanic on the Supreme Court. Such a historic appointment could help Bush not only tilt the high court to the right, but also make political gains among the fast-growing ranks of Hispanic voters."

As of now, we have no reason to oppose Mr. Estrada. Like everyone else, we just don't know enough about him. But we did read in the same Washington Post article one thing about him we liked:

"Despite his career on the government's side of criminal cases, he took on a Virginia death row inmate's case pro bono in 1999, arguing unsuccessfully before the Supreme Court that the man should get a new trial because he had been denied access to information that would have cast doubt on key evidence against him."

House Majority Leader Dick Armey (R-TX) was called on the carpet today by two House members for what they say are ignorant and disparaging remarks about Jews.

At a campaign stop, Armey was asked about the split between liberal and conservative Jews. Armey replied "I always see two Jewish communities in America: one of deep intellect and one of shallow, superficial intellect."

He was quoted in the Florida paper as also saying conservative Jews were drawn to "occupations of the brain," in the sciences, while liberal Jews gravitated toward "occupations of the heart," like the arts.

Two Jewish members of the House Democratic leadership Representatives, Martin Frost of Texas and Nita M. Lowey of New York, issued a joint statement calling Armey's remarks "breathtaking in their ignorance."

Armey, in our view, also isn't smart enough to know when to keep his mouth shut. When asked about the statements, which he doesn't deny making, he said they"reflected his long-held view that conservatives were smarter than liberals"...."Liberals are, in my estimation, just not bright people," he said. "I have not been impressed with the intellect of the left since I was a freshman in college."

The event at which he made the remarks was hosted by Katherine Harris. They were seeking to woo Jewish voters from the democratic sector to the Republican sector.

Sorry, Dick. We don't think this is the way.

If only they would do this in restaurants and on airplanes. Actually, the only place we've ever seen it happen is in a courtroom.

In a document filing today in support of the government's request to admit two tapes of cockpit recordings pertaining to Flight 93 against Zacarias Moussaoui at trial, federal prosecutors allege a link between Moussaoui to Flight 93 Hijacker Ziad Jarrah

The Government said the voice of one of the hijackers on the tape has been identified as Zaid Jarrah. "They said they could link Jarrah to Moussaoui because they found one of Jarrah's business cards in the rubble in Pennsylvania with a phone number written on back. Phone records showed Moussaoui had called that number, they said."

Moussaoui and his lawyers argue that playing the recording in court would be "highly inflammatory."

The issue will be ruled upon by Judge Leonie Brinkema who previously has indicated that she thinks the recordings are of marginal value and are highly prejudicial.

A second federal judge has ruled the federal death penalty unconstitutional.

Judge William Sessions of Vermont found the federal death penalty statute a threat toward due process as well as the Sixth Amendment's guaranteed right to a fair trial.

Because of jurisdictional issues, today's ruling by U.S. District Judge William Sessions does not strike down the federal death penalty, nor does it challenge individual state statutes. The opinion in USA v. Fell and is accessible here

In a press release today, Stephen Hawkins, Executive Director of the National Coalition to Abolish the Death Penalty said:

"Today's ruling should come as a warning and an admonishment to Attorney General John Ashcroft and his aggressive pursuit of the federal death penalty across the country, even in non-death penalty states such as Vermont . Wrongful convictions matter - they stain our judicial system and dishonor our unshakeable commitment to due process."

In his ruling, Judge Sessions wrote, "If the death penalty is to be part of our system of justice, due process of law and the fair trial guarantees of the Sixth Amendment require that standards and safeguards governing the kinds of evidence juries may consider must be rigorous, and constitutional rights and liberties scrupulously protected."

In July, U.S. District Judge Jed Rakoff in New York became the first federal judge in modern history to declare the 1994 Death Penalty Act unconstitutional. He cited the number of innocent people who have been sent to death row and later exonerated due to actual innocence.

Altercation today features an exchange between Eric Alterman and Michael Moore on Lynne Stewart. Eric says he didn't know much about Lynne Stewart before the profile of her in the Sunday New York Times Magazine.

Lynne Stewart is a 62 year old New York lawyer whose conversations with her client, the blind Sheik Abdel Rahman, serving a 65 year sentence for conspiring to blow up New York landmarks, were recorded by prison officials during their attorney-client visits.

Stewart has been charged with conspiring to aid terrorists, lying and breaking an agreement with the Bureau of Prisons.

She is being represented by legendary lawyer and American University Law School dean Michael Tigar, who defended Terry Nichols in the Oklahoma City Bombing trial.

Last month, a federal judge issued an adverse pre-trial ruling in her case, here are the details.

Monitoring attorney-client conversations in jail is one of the unacceptable practices instituted by Ashcroft after September 11. Here are the reasons why, from the National Association of Criminal Defense Lawyers. The American Bar Association also strongly objects to the practice and Senator Patrick Leahy sent off a fiery letter opposing the practice last November.

[Ashcroft's regulation, 66 Fed. Reg. 55062 (Oct. 31, 2001)]

According to this article in the Hartford Courant, the marijuana legalization movement is quiet but gathering steam. While medical marijuana captures all the headlines, the drive to legalize recreational usage of pot is making steady gains.

Three states, Nevada, Arizona and Ohio will be voting on some form of legalization in November.

Nevada's measure has the most attention. It would allow adults to possess up to three ounces of marijuana in their homes. How much is three ounces? The article quotes Keith Stroup, Executive Director for NORML, as saying it's enough "to roll about 90 joints the thickness of a pencil."

"Arizona will consider scrapping arrests for possession and cultivation of small amounts of marijuana. In Ohio, where possession of up to 100 grams of pot was decriminalized in the 1970s, voters will decide whether all non-violent drug users should get treatment instead of prison for their first two offenses."

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Attorney General John Ashcroft released new guidelines yesterday for sharing information between federal law enforcement agencies and the U.S. intelligence gathering community. The Guidelines apply to Sections 203 and 905 of the U.S.A. Patriot Act.

From the Justice Department Press Release:

"Before passage of the USA PATRIOT Act, a prosecutor was not permitted to disclose federal grand jury and electronic, wire, and oral interception information to federal law enforcement, intelligence, protective, immigration, national defense, or national security officials, even if that information indicated that terrorists were planning a future attack, unless such officials were assisting with the criminal investigation itself. "

"Section 203 of the USA PATRIOT Act allows the dissemination of that information to assist these officials in the performance of their official duties, such as protecting the nation's security, even if unrelated to the criminal investigation. Today's guidelines establish procedures for the disclosure to the intelligence community of grand jury and electronic, wire, and oral interception information that identifies a United States person, as defined by federal law."

"Section 905(a) of the USA PATRIOT Act requires federal law enforcement agencies, pursuant to guidelines developed by the Attorney General, to disclose expeditiously to the Director of Central Intelligence foreign intelligence acquired in the course of a criminal investigation."

"Today's guidelines formalize the procedures and mechanisms already established for the Department of Justice and other federal law enforcement agencies that may acquire foreign intelligence in the course of a criminal investigation. "

"The Attorney General also announced guidelines pursuant to section 905(b) of the USA PATRIOT Act, which address the procedures by which the Criminal Division of the Justice Department notifies the Director of Central Intelligence of its intent to commence or decline criminal investigation of possible criminal activity involving foreign intelligence sources or potential foreign intelligence sources."

Many thanks to South Knox Bubba for its praise of TalkLeft's "updates on the latest assaults against our constitution and civil rights" and our Sunday CNN discussion of the Buffalo Six, enemy combatants and military tribunals.

Seymour Hersh writes a very long profile on Zacarias Moussaoui in the new issue of The New Yorker available here. Hersh tackles the question, "Has the Justice Department mishandled the case against Zacarias Moussaoui?" In other words, would we have been better off if we had made a deal with Moussaoui to spare his life in exchange for his information on Al Qaeda rather than bring him to a public trial where some of our sensitive information gets broadcast to the world?

In answering, Hersh begins by outlining the differences in conduct between Moussaoui and the 19 hijackers:

The New York Times criticizes the gag order aspect of the Louima/Schwarz plea deal in its editorial today, An End to the Louima Case.

"An unfortunate aspect of last weekend's deal is the gag order attached to it. The prosecutors, Mr. Schwarz, his wife and his lawyers are barred from talking publicly about what happened. That may be satisfactory for the defendant and the prosecutor, but it is not in the public's interest."

We disagree. Silence most definitely is in the public interest. It was clear that Schwarz was never going to admit he was the second cop in the bathroom with Volpe as Volpe attacked Louima. It was equally clear the Government would not abandon its theory Schwarz was that second cop. Louima has said all along he can't positively identify the second cop. Wiese, who Schwarz claims was the second cop in the bathroom with Volpe, isn't talking because he still has (and likely always will have) a fifth amendment privilege on the issue.

As to Justin Volpe, serving 30 years for committing the brutal attack, who in their right mind would believe what he has to say? Especially after the tapes of Volpe talking to his father in jail surfaced at Schwarz' last trial--tapes of Volpe saying he was only testifying for Schwarz because he thought there was something in it for him, like less time.

We think silence is preferable to and far more in the public interest than the alternative--having to listen to ex-cop Schwarz proclaim his innocence and unjust persecution and prosecution until the end of time. Since we're never going to know the real truth, it's fitting that we take away both sides' soapbox.

How Appealing explains in detail the 11th Circuit's decision yesterday that a prisoner may pursue a federal civil rights claim for access to DNA evidence that could establish his innocence.

This now creates a split in the circuits making it more likely the issue will reach the Supreme Court.

Central to the issue is whether the claim is made as a habeas petition (and therefore subject to strict limitations regarding timeliness of filing and on filing successive petitions) or as a civil rights claim. The trial court had found the inmate's civil rights claim to be the "functional equivalent" of a habeas petition. The 11th Circuit reversed, ruling the suit was properly brought as a section 1983 civil rights claim because the inmate's request for the production of DNA evidence did not attack the validity of his conviction and sentence.

The case is Bradley v. Pryor and you can read the full opinion here