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Colo Appeals Court: No Medical Marijuana While On Probation

The Colorado Court of Appeals has ruled persons on probation may not use marijuana, even if they have a valid state license to do so. The opinion is here.

The Court based its decision on federal law which it says outlaws possession and use of marijuana. (Actually, federal law only bans possession, not use of a controlled substance but no one seems to raise creative ways one could use marijuana without actually or constructively possessing it.)[More...]

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9th Circuit Affirms Unconsitutionality of Prop 8

Update: The 9th Circuit has affirmed the lower court's ruling that Prop 8 is unconstitutional. The 128 page opinion is here.

The 2-1 decision found the ban -- known as Proposition 8 -- "served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationship and families as inferior to those of opposite-sex couples." That violates the 14th Amendment's guarantee of equal protection under the law, the decision states
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PA AG Seeks Exclusion of Centre County Jurors for Sandusky

The Pennsylvania Attorney General has asked the court to empanel jurors from outside Centre County for the Jerry Sandusky trial. It says, in addition to pre-trial publicity, the Penn State Community and Centre County are "philosophically and economically” intertwined."

Sandusky's lawyer says he will fight the motion.

“Jerry’s case has drawn national attention, as a result of which we feel there’s no better place than Centre County from which to select fair-minded individuals to sit as jurors in Jerry’s case,” Amendola said. “We will vehemently oppose the commonwealth’s motion for a change of venire.”

In other words, the state wants to keep the trial in Centre County, but import jurors from other counties to decide the case. The judge will decide on Feb. 8.

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Supreme Court Rules GPS Monitoring Requires Warrant

Good news today. The Supreme Court has ruled in the case of Antoine Jones that GPS monitoring requires a warrant. While there were concurring opinions, the justices were unanimous in the decision, which you can read here. The issue:

Whether the attachment of a GlobalPositioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

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10th Circuit Blocks Oklahama Ban on Sharia Law

Voters in Oklahoma approved a ban of Sharia law that said:

State courts "shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law."

The Council on American-Islamic Relations sued.

Today, the 10th Circuit blocked the law from taking effect. The opinion is here. [More...]

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9th Circuit Allows Wiretap Suit Against NSA to Proceed

While the 9th Circuit upheld the consitittuionality of telecom immunity for warrantless wiretapping in one case today, in another case, it ruled a complaint against the NSA and Government officials for conducting "a communications dragnet of ordinary citizens" can proceed. The case is Jewell vs. NSA, and the opinion is here.

The complaint by plaintiff Carolyn Jewell and others (the case is a potential class action) alleges that the NSA attached surveillance devices to AT&T's network, diverting communications into "SG3 Secure Rooms" at AT&T facilities around the country, creating "an unprecedented suspicionless general search" throughout the AT&T network. The suit alleged the NSA and other government defendants performed or aided and abetted the scheme. (AT&T was not sued in the case.)

The district court had dismissed the case holding the plaintiffs didn't have standing to challenge the scheme, but the 9th Circuit disagreed and reversed. [More...]

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9th Circuit Upholds Telecom Immunity Under FISA in NSA Lawsuit

The 9th Circuit Court of Appeals today upheld the constitutionality of FISA's grant of immunity to telecom companies assisting the Government in terrorism investigations. The opinion is here.

The statute is § 802 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1885a, known as the FISA Amendments Act of 2008.

The complaints were filed in the wake of news reports in December 2005 that President Bush had issued an order permitting the NSA to conduct warrantless eavesdropping. Under a program known as the Terrorist Surveillance Program (“TSP”), the NSA “had obtained the cooperation of telecommunications companies to tap into a significant portion of the companies’ telephone and e-mail traffic, both domestic
and international.”

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9th Circuit Rules Doctor's Recommendation for Marijuana No Defense

Roshaja Harvey was found to have violated the terms of his supervised release for using marijuana. Harvey appealed, contending that because he had a doctor's recommendation to use marijuana in California pursuant to the California Compassionate Use Act of 1996, he did not violate the possession prohibition of the Federal Controlled Substances Act. He also argued a doctor's "order" was different than a "prescription."

The 9th Circuit has rejected his defense, affirmed the trial court's order, and added:

Whatever else “order” might mean under § 844(a) of the Controlled Substances Act, it does not include a mere recommendation from a physician pursuant to the Compassionate Use Act.

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9th Circuit Reverses Conviction for Prosecutor's Inflammatory Comments

The 9th Circuit has reversed a conviction in a drug case because of the prosecutor's "inflammatory comments" during closing argument in a drug trial. Even though the defendant didn't object at trial, the court found plain error. The opinion is here.

The defendant, a U.S. citizen living in Mexico, brought drugs across the border. His defense was duress. He said the traffickers threatened his family. He said he didn't want to transport the drugs because he had a 2005 drug conviction. When he was caught, he asked the border patrol to check on his family, but they say he did not explain it was because they had been threatened.

In closing, the prosecutor delivered these objectionable "send a memo" comments: [More...]

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Supreme Court to Hear Arguments on Ineffective Counsel in Plea Bargainss

Tomorrow the Supreme Court will hold oral arguments in two cases in which the defendants' lawyers were ineffective at the plea bargaining stage, resulting in the clients turning down plea bargains and getting much more severe sentences after losing at trial.

There is no constitutional right to a plea bargain, but there is a constitutional right to effective assistance of counsel.

Considering that 97% of all federal convictions result from plea bargains rather than trial, the significance of the Supreme Court ruling will be big. [More...]

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Amanda Knox: Plane Lands in Seattle

Update: 6:43 pm MT: It's over. Amanda had a range of emotions from happy to teary. Here's Amanda walking from the plane into the terminal with lawyer Ted Simon; Here's Ted speaking at the press conference; Here's Amanda speaking.

Update: 6:10 pm MT: The plane has landed. It's now arrived at the gate. Here's a picture of the media waiting. [More...]

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RightHaven Loses Copyright Troll Suit in Colorado

U.S. Senior District Court Judge John Kane has granted summary judgment to a blogger-defendant in a copyright infingement lawsuit filed by Righthaven. The opinion is here.

Kane also ordered Righthaven to pay the blogger's legal fees and costs, which undoubtedly will be tens of thousands of dollars.

Righthaven filed 57 lawsuits in Colorado and 275 nationally. When it said these dismissal rulings might cause it to file bankruptcy, one enterprising blogger-defendant in Nevada filed a motion asking it be allowed to "seize Righthaven’s “bank accounts, real and personal property, and intangible intellectual property rights” so the company can't just "slither away." Another blogger is planning to go after Stephens Media. [More...]

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11th Cir. Rules Individual Mandate in Health Care Bill Unconstitutional

Obama's health care bill took a hit today.

A federal appeals court in Atlanta on Friday struck down a key provision of the Obama administration's health care reform law, ruling that Congress exceeded its authority in mandating that most Americans buy health insurance by 2014 or face a penalty.

A divided, three-judge panel of the 11th Circuit Court of Appeals ruled that the individual mandate was "breathtaking in its expansive scope" and therefore unconstitutional. The "individual mandate," they wrote, "exceeds Congress's enumerated commerce power."

The opinion is here.

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CA Bankruptcy Court Rules DOMA Unconstitutional

Decision here (PDF). The key grafs:

The Debtors have demonstrated that DOMA violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution, either under heightened scrutiny or under rational basis review. Debtors also have demonstrated that there is no valid governmental basis for DOMA. In the end, the court finds that DOMA violates the equal protection rights of the Debtors as recognized under the due process clause of the Fifth Amendment.

No one expressed the Debtors’ view as pertinent to this simple bankruptcy case more eloquently and profoundly than Justice William O. Douglas in the concluding paragraph of his opinion for the majority in Griswold v. Connecticut, 381 U.S. 479, 486 (1965):

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not in political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Id.

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MA Supeme Court Restricts Police Searches Based on Odor of Marijuana

Now that possession of marijuana for personal use is no longer a crime in Massachusetts, the Supreme Court has ruled police cannot order occupants of a vehicle to exit the car just because they smelled marijuana. From today's ruling:

"Without at least some other additional fact to bolster a reasonable suspicion of criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order...."Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute,

The ACLU, which participated in the case, says:

“Today’s ruling is a strong statement that police cannot treat decriminalized conduct as if it were a serious crime. Heavy-handed police enforcement in the face of minor drug infractions not only wastes public resources but disproportionately affects communities of color.”

What happened, according to the opinion (link is only temporary, the case is Commonwwealth vs. Benjamin CRUZ. SJC-10738. April 19, 2011):

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