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April 2005
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June 2005

A Safer Planet?

Ban guns, some say in the United States, and crimes of violence will decrease.

Listen now to the chorus in Britain: Ban the sale of long, pointed kitchen knives, and crimes of violence will decrease.

An editorial in a recent edition of the British Medical Journal notes that a third of all murder victims in England are stabbed to death. The authors want knives refashioned: Manufacturers should make them with rounded, blunt tips.

I am awaiting a similar campaign in Saudia Arabia.

"Cut off the hands of the people," a prince will no doubt announce. All crimes of violence are committed with hands. A handless people means a safer society.

I own no guns -- my wife will not permit it. But I do not believe that guns kill people. And neither do kitchen knives. We kill one another with the tools at hand for reasons as old as the story of Cain and Abel.

Want a safer world? Get rid of people.

Reefer Madness?

Memo to file: Under no circumstances shall you ever smuggle marijuana into Indonesia. It could get you killed.

Not by rival drug smugglers, mind you. No. It could yield the death penalty.

Twenty-seven year old Schappel Corby of Australia was spared death by an Indonesian court in an act of apparent leniency. The prosecution sought life behind bars; she was sentenced to 20 years. All this for nine pounds of marijuana. In New York City that amount might make the radar requiring incarceration.

I have long believed the sentences for narcotics offenses in the United States to be obscene. I still do. I simply believe things are even worse in Indonesia.

Eleventh Amendment and Title II

Bill M. and six other developmentally disabled adults (Plaintiffs) sued Nebraska and various Nebraska officials in their official capacities, alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and other federal and state law provisions. Plaintiffs asserted that they are each “eligible for, desire, have applied for or have attempted to apply for and have been denied home and community-based Medicaid-funded services.” Compl. at 2. They alleged that Nebraska’s withholding of funding to these services has left them without adequate services to meet their needs and placed them “at imminent risk of unnecessary institutionalization.” Id. Nebraska and the officials moved to dismiss on various grounds. The district court denied the motion.

This interlocutory appeal is limited to one aspect of the dismissal motion: Nebraska’s contention that Eleventh Amendment immunity precludes the district court from having subject matter jurisdiction over the Title II claim. Plaintiffs contend that Title II and related statutory provisions ostensibly abrogate Eleventh Amendment immunity with respect to a Title II claim. Nebraska argues, in response, that the extension of Title II to the states is unconstitutional under our circuit’s precedent. The United States has intervened to defend the statutory abrogation.

Bill M. v. Health & Human Serv., 04-3263 (8th Cir. May 27, 2005) (holding that Tennesse v. Lane does not apply in denial of access to welfare benefits cases).

Who's Writing Raich

A contributor of a message board asked:

Per SCOTUSblog: "For the December sitting, decisions are outstanding in Raich (medical marijuana) and Miller-El (Batson). Neither Justice Stevens nor Justice Souter has issued a majority opinion for the sitting, so they presumably are the authors."

If the Chief participated, why would he assign the majority opinion to Stevens or Souter when, presumably, Raich is a 9-0 opinion? Why not let Kennedy or Scalia write it?

Marty Lederman has an interesting response located here.

UPDATE: Mr. Lederman has another intriguing possibility here.

Oops, I forgot?

In 1992 an ambitious young lawyer hoping someday to become a judge signed his name to a letter to the Connecticut Supreme Court. The letter was written on behalf of Michael Ross, a man sentenced to death for rape-murder. The letter was written on behalf of the Connecticut Criminal Defense Lawyers Association (CCDLA) seeking permission to file an amicus brief. Permission was granted.

The writer's ambitions were fulfilled. He became a federal judge, but neither he nor the CCDLA ever wrote the brief.

The author's name? Robert N. Chatigny.

This year, Chatigny got his chance to speak out on Ross. Hours after the United States Supreme Court had eliminated the final legal impediment to execution, Judge Chatigny arranged a conference call with lawyers involved in the case, including T.R. Paulding, the lawyer Ross had selected to represent him to the very end. The judge threated Paulding with the loss of his law license if the execution were not stopped.

Ross decided to waive further habeas petitions. He faced opposition from just about every intermeddling moralist in the state who tried to intervene to block the execution.

Ross's lawyer. T.R. Paulding, buckled in the face of Chatigny's threat, special counsel was appointed, new hearings on Ross' competency were held, and, in the end, Ross got his way and was executed.

A grievance against Judge Chatigny is pending before the United States Court of Appeals for the Second Circuit, filed by state prosecutors. And the state legislature has contacted the United States Senate to ask for an impeachment inquiry. Nothing has happened to date.

Did the judge forget that he, too, had once sought to argue as an advocate on Ross' behalf? When confronted by the state's Attorney General's Office about sources of potential bias, he had this to say:

"You'll not find anything that suggests any ... [bias]," he said. "I feel fortunate to be in a situation to be able to address these issues without having to deal with a client, the public, the media, a boss or anything other than my own conscience."

Add two new categories to the things this lifetime appointee to the bench felt fortunate not to have to "deal with:" the law, and the Code of Judicial Conduct.

Does the judge think avoiding the appearance of impropriety is a mere option? Or does he honestly claim to have forgotten his prior advocacy on behalf of Michael Ross?

Port? (Bumped and Updated)

Who here enjoys a glass of port?  I haven't tried my first glass yet.  Any suggestions?

What should a rookie like me do? Granted, I don't have a lot of money to spend, but given my limited resources, should I try a) a more "expensive" port, or b) go with a bottle of the cheap stuff before moving up?  I know that with cigars, one should start smoking the nice ones first, as smoking a bad cigar can scorch a neophyte's smoking future.  Does the same hold true with port?

Must port, like wine, be drunk immediately after being opened; or is it a bit more robust?

What's your favorite cigar-port pairing?

Public Defender Told to Pay Up

Maybe I should think twice before applying to the Public Defender's Office.

A man who was falsely imprisoned after being shot and framed by corrupt Rampart gang officers nearly a decade ago was awarded $6.5 million in damages Wednesday by a jury that found his county public defender was negligent for failing to uncover the police misconduct.

Javier Francisco Ovando was paralyzed after he was shot by former Los Angeles police officers Rafael Perez and Nino Durden in 1996, but was later convicted and served 2 1/2 years of a 23-year sentence in state prison after the pair testified that he attacked them.

Here's the full story.

One quick thought: Who represented the Public Defender's Office and the PD?  Did the county rely on its usual (less than stellar) civil defense lawyers, or did they bring in a real trial lawyer?

The Grinch Wears a Badge

Someone help me out: isn't there a line of First Amendment cases holding that arresting someone for wearing a decorative mask is unconstitutional. 

City and county attorneys are defending Wheeling police who arrested a man for wearing a Grinch mask while walking along a city street.

Norman Eugene Gray, 42, was arrested Tuesday. He was arraigned and released on a personal recognizance bond.

Officers saw Gray about 8:45 a.m. Tuesday, told him to take the mask off and not put it on again. Gray removed it and asked why he could not wear it, according to Wheeling police reports. Officers told him wearing masks in public is illegal.

Gray said he felt he had a right to wear it and said it was not illegal. He put the mask back on and was arrested. The mask was confiscated.

Big Stinkin' Cigar Party

Vince Valvo, publisher of the Connecticut Law Tribune, is hoting a cigar, wine and port party at his West Hartford home on June 4th.  Though I won't be able to make it, Crime & Federalism readers are invited  I'm betting it will be a lot of fun. 

I’ve got lots of cigars to share, so let’s take a tip from the great man. We’ll tip our hat to Churchill, clip the tips off our cigars, and tip back a glass of smooth port wine.

Not a port fan? You want single malt scotch to go with your torpedo? You want a smooth, icy lager to cool the heat from your toro? You think a margarita is the perfect counterpoint to a maduro? You want to dip your little robusto into a little Hennessy? You’re covered. This may be an outdoor party, but we’ve got style, you know.

I’ll be doing the Patio Daddio bit, cooking up a bunch of food – like sirloin steak tips, paella, hamburgers, hot dogs, watermelon salad, sausages and peppers, potato salad, and who knows what else I’ll find on the Food Network’s “Boy Meets Grill.” We’ll have soft drinks and iced tea, juices and lemonade, cheeses and desserts. Bring the kids. They can have anything they want -- as long as it’s neither on fire nor combustible.

Here's the invitation.

Even if you don't plan to attend, check out Vince's blog, Vincenzo Smokes.