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I will get to the two opinions from the First sometimes this weekend or Monday. In the mean time, you can get a taste of them here:
DotD points to a decision from the 6th Circuit which holds that if the state courts, pre-Atkin concluded that someone was retarded to be killed by the state but nevertheless could be killed by the state, post-Atkins, the state can’t relitigate the issue of just how retarded the prisoner is on habeas.
I have often been criticized for being isolated from non-lawyers. After all, like most of my readers, since non-lawyers have very little contact with non-lawyers, we simply don’t know much about their simple, yet ancient and beautiful culture. It seems that there is more to their culture than simply being a crack whore or an expert witness. After extensive and detail-oriented research, we have found out this startling fact: many of them will be born, get married, and die without ever taking a deposition!
We didn’t find out much about their “jobs” but we did
discover these two fascinating occupations of people that are not involved in appellate litigation.
Muniz v. Sabol, Nos. 06-2692, 06-2693. The First Circuit holds that “the Bureau of Prisons (BOP) may, through rulemaking, deny placement in a community corrections center (CCC) Footnote to all prisoners during the first ninety percent of their sentences.” The First defers to the government, admitting that it is creating a circuit split.
Initially, there was a memo from the Office of Legal Counsel that purported to do this. However, position was rejected by the courts. Then, the BOP adopted 28 C.F.R. § 570.21(a). Read on. For Justice!
Continue reading "CA1: BOP’s regulations denying placement in halfway houses valid" »
School Union No. 37 v. Ms. C., No. 06-2261. In yet another IDEA case, the school District wins. This time the school district claims that the administrative decision requiring the school to pay for the private schooling of someone that needed education was wrong. The First explains that “Reimbursement is an equitable remedy.” Therefore, it is subject to laches, and the District Court found that the parents waited too long to seek reimbursement, and there are some facts in the record that support this, and that it suffered prejudice.
Does this mean that criminal restitution is now subject to equitable defenses, too?
Detail-oriented real lawyers (i.e. our fans) will recall our coverage of Sherri Jefferson. (Even more of our coverage here.) Well, A Public Defender tells us that the contempt conviction of public defender, Sherri Jefferson was reversed by the George Supreme Court. As the real lawyers amongst us will recall, Ms. Jefferson, was a public defender in a fairly new office in a jurisdiction which has not really worked out what it is like to have a static public defender agency. Strangely, rather than just telling the trial court to stop being so petty (or at least stop using the power of contempt to fight its political battles), the George supremes lay out some guidelines (and provide an overview of the substance of the law of contempt) for when trial courts can hold lawyers in contempt.
...And Russians take a break from producing spam and pretending they have a democracy to make this cool video of Gmail.
Lessard v. Wilton-Lyndeborough, No. 07-1860. Selya does an Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1491 (2000) case, and the parents lose. This essentially comes down to an (Individualized Eduation Plan) IEP fight. Selya seems to envision the standard of review as “somewhere between the highly deferential clear-error standard and the non-deferential de novo standard.” He holds that 20 U.S.C. § 1414(d)(1)(A)(vii) doesn’t require that statements of “transition services’ be articulated in a separate component of the IEP, and he says that in the absence of behavior problems 20 U.S.C. §§ 1415(k)(1)(A) & (B)(I) do not requie a “behavioral plan.” The result is that there was no procedural problem.
This case might be relevant for looking at the way to review a District Court review of an administrative proceeding (not subject to the APA), where the District Court takes additional evidence.
Selya describes how the School District tried to provide a plan and the mother didn’t actually lodge specific objections. I don’t know if this is what really happened.
The rest of the decision is a lot of IDEA nerdery dealing with the school’s obligations under the IDEA, and I don’t have the patience to deal with it today.
US v. Cardona-Sandoval, No. 07-1748. This is a return of property appeal under Fed.R.Crim.P. 41(g). The District Courts seem to be screwing these things up quite a bit. See United States v. Cardona-Sandoval, No. 05-1022 (1st Cir. Mar. 17, 2006) (unpub) (strange, I don't seem to remember reading this, and I read just about every court of appeals case from every circuit) for the underlying case. Even though he is serving 135 months, he sought the return of [a] “GPS Yellow Garmin, Blue Agenda (date book), Black Watch, Belt, Nine Thousand Colombian Pesos, and other personal articles.” The government responded with, well, something pretty amazing, “ Pursuant to agency regulations, the defendant's personal items were destroyed on or about April 28, 2006 by the DEA because the defendant and/or his representative refused to accept responsibility for the items.” What! The government destroyed a GPS! Couldn’t they at least auction that off?
The District Court didn’t seem to take the motion seriously.
The government “does not claim that the items requested in Cardona's motion are contraband, subject to forfeiture, or needed as evidence.” The First says that the governmnent’s blanket statement is not enough “as to these items, the motion was decided in the absence of any evidence or even any relevant statement by the government.” Moreover, the fact that the District Court didn’t notify the defendant of when his "other personal articles" would be destroyed didn’t establish that he actually refused such a option to obtain his personal property.
There is a survey of other circuit’s caselaw on this issue and the First Cites its unpublished decision in United States v. Uribe-Londono, 238 Fed. Appx. 628, 629-30 (1st Cir. 2007)(unpub) (our coverage here) for another example of a District Court screwup on these motions.
The First indicates that a hearing is not necessarily required. There could be affidavits submitted.
Sexcrime Defender points to an interesting account of Senator Clinton’s representation of a defendants in criminal matters. She really seems to have done it all: 1) aggressively represented defendants in front of courts that were hostile to both her and her clients; and 2) obtained favorable results. She even seems to have earned the respect of the “victims” who understood that she was doing her job. This is a far cry from Rudy or Mitt's kind of "lawyering."
To be clear, Obama represented people, too, and wrote some motions. I don’t know much about them, but if someone wants to tell an Obama story, please do so. In looking at McCain’s biography on Wikipedia, it appears that he didn’t go to law school. I don’t know much about what non-lawyers do, so I can’t really equate his "experiences" to Hillary or Obama’s.
Finally, please don't take this as an endorsement of any candidate. Y'all can vote for anyone you damn well please. See if I care.
SCOTUSblog says that Supremes grant cert. in Carcieri v. Kempthorne (our coverage -- 1330 words of it -- is here). Gladys Kravitz says this is all about the casinos.
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