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He became an important force for good on the SCOTUS, at least when it came to fundamental fairness to criminal defendants.  Which, as we have noted many times, is probably the most important and “core function” of courts. As you might imagine, then, in his later years on the court he primarily dissented.  The intellectual earth had shifted dramatically during his professional life towards what we sometimes refer to here as “post-modernism”, or as…
Sometimes we think a subject we visited previously deserves another mention or two.  We have wondered about the constitutional principle of “separation of powers” with regard to public prosecutors, who are members of both the executive and judicial branches of government. How, we have wondered, can that be? It appears that the question simply isn’t asked.  Or hasn’t been.  Except around here. In practical terms we note that in the UK, lawyers are not permitted…
(SIGNIFICANT CORRECTION APPEARS AFTER THE BREAK) The term is coming to an end and we’re still stuck in it.  A faint effort to clarify things took place with McDonough v. Smith.  We weighed in with an amicus brief* and a motion for divided argument.  Good thing, too, because the Solicitor General also weighed in – very surprisingly on the same side of the “v” with us, and accordingly at the same time –…
So the SCOTUS issued its opinion in Gamble v. United States this morning. 7-2 in favor of retaining the rule that the federal government can prosecute you for the same thing the state government prosecuted you for (and vice versa), without violating the rule against “Double Jeopardy”, because the state and federal governments are “separate sovereigns” Ugh.  We opined on the illusory nature of our double jeopardy “guarantee” before.  The decision in Gamble doesn’t help…
So, let’s take the occasion of Amanda Knox’s return to Italy to tell a different story based on the same evidence. This is the most important exercise in dealing with circumstantial evidence, which is great if it has only one plausible explanation, and worthless if it has more than one.  We recall seeing one of those lawyer type movies about just such an exercise at some point in our youth. We begin with the…
We have no idea why the SCOTUS would be so interested in this case. It’s habeas.  It’s pro se.  Still.  And it’s Brady.  And that means it’s a dangerous case for the SCOTUS to be looking at so closely. It’s been relisted 8 times.  How did this get by us for so long?  We have no idea. Why is the SCOTUS so interested? Who among the Justices is/are? We have no idea. It would…
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The SCOTUS decides every case that is argued and submitted before the end of the term.  The end of the term is the end of this month. They’ve got a lot of work to do: We’re especially interested in two outcomes:  this case and this case.  But we’re not going to go on and on about it.  At least, not this morning.      …
Why, in the context of court proceedings, do we say “eyewitness” instead of just “witness”?  Feel free to speculate in the comments. We don’t care much for either type of evidence, unless it’s corroborated by something more solid – and by more solid, we don’t mean more “eyewitnesses” and “confessions”.  We mean things like phone records, cell tower pings, medical records.  Some contemporaneous record made by someone completely uninvolved with the controversy at hand. Of…
We hope the feds know what they are doing. Here’s a summary from the Buffalo News. “Ponzi-scheme” allegations don’t seem at all fair.  Here’s one definition: a form of fraud in which belief in the success of a nonexistent enterprise is fostered by the payment of quick returns to the first investors from money invested by later investors. Non-existent enterprise? Morgan (or related entities) has 92 properties, just in New York.  There are 48 …
It’s amusing, this “sovereignty” stuff with states and whatnot. So on Monday you have the SCOTUS overruling its previous decision that the constitution did not require one state’s courts to grant sovereign immunity to another state.  Now we know that the constitution does so require. That was the only question.  Not, dear reader, whether it’s a good idea for one state to extend sovereign immunity to another, which it usually does as a matter of…