We are very disappointed in today's Supreme Court 5-4 ruling upholding California's three-strikes laws under which felons convicted of a minor crime, such as stealing a few videos or food, can be sentenced to life in prison. The majority of the court said this does not violate the 8th Amendment ban against cruel and unusual punishment.

"The California law requires a sentence of 25 years to life in prison for any felony conviction if the criminal was previously convicted of two serious or violent felonies. It also permits judges to treat as felonies a third offense that would otherwise be a misdemeanor."

The dissenters were Stephen Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsburg.

The cases are Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978.

Leonardo Andrade, who received 50 years in jail as a punishment for stealing $153.00 of videos for his children to watch. Andrade has already served seven years for his shoplifting episode and will be 87 before he is due for release. Here's more on his case and the unfairness of the three-strikes laws.

Since the court has ruled these draconian laws are constitutional, it is up to the state legislature to change them. Efforts are underway. Visit Families to Amend California's Three-Strikes for more, including this latest development.

"After a lengthy and passionate debate, the Assembly Committee on Public Safety passed AB 112 (Goldberg) by a vote of 4-3. AB 112 would require that all strikes be serious or violent in order to subject a defendant to three strikes enhancement. The bill also sets up a process of re-sentencing for those who are currently serving a life sentence for a non-serious and non-violent felony. Channels 3, 10, and 13 covered the hearings. The bill will go next to the Assembly Committee on Appropriations, no hearing date been set in Appropriations."

Some of our prior coverage and objections to three-strike laws are here and here.

Received from People for the American Way:

People For the American Way Foundation Attorneys are Counsel to Plaintiffs in Internet Filtering Case Before Supreme Court

The Supreme Court is hearing arguments today in a case involving free speech
and Internet censorship in public libraries. Last year, a three-judge federal court ruled unconstitutional the Children's Internet Protection Act (CIPA). People For the American Way Foundation (PFAWF) and the law firm of Jenner & Block filed the lawsuit challenging CIPA on behalf of the American Library Association, other library associations, and library patrons.

CIPA, passed by Congress in 2000, would have required public libraries to install computers with filtering software to block access to material in cyberspace deemed to be "harmful to minors." If libraries failed to outfit their computers with the software, they stood to lose federal funding.

The three-judge court, sitting in Philadelphia, unanimously ruled that CIPA would have blocked all library patrons from gaining access via the Internet to an array of material that is protected by the First Amendment. The court also enjoined federal agencies from withholding funds from public libraries that have not installed the software on their computers.

The ACLU also challenged CIPA, and its suit was consolidated with the PFAWF-ALA suit for trial before the three-judge panel. Any appeal of the panel's decision will go straight to the Supreme Court.

"A jury's award to a former hotel manager who allegedly was fired by Leona Helmsley because he was gay was reduced Tuesday from $11.17 million to $554,000.

State Supreme Court Justice Walter Tolub said Helmsley is not a multibillion-dollar pinata "to poke a stick at in the hopes of hitting the jackpot." He ruled that Charles Bell was not entitled to $1.1 million in economic damages, and the $10 million in punitive damages was excessive."

The Supreme Court is considering the issue of Forcing Mentally Ill on Trial to Take Drugs. In an Amicus brief filed by the National Association of Criminal Defense Lawyers, a novel issue is raised:

In addition to due process and fair trial rights, Dr. Sell's supporters also raise objections under the First Amendment to involuntary mind-altering medication. A brief submitted by the National Association of Criminal Defense Lawyers tells the court that if Dr. Sell testified under the influence of medication, "his words would not be his own" but would be the government's.

NACDL's argument is this (quotes that follow are from the Amicus Brief, authored by preeminent Saint Louis defense attorney Burton Shostak, Grant Shostak and Deborah Westling):

Assuming, arguendo, the propriety of ordering that a defendant may be forcibly injected with anti-psychotic drugs for the sole purpose of restoring the defendant’s competency to stand trial, the trial court must conduct a pre-medication analysis to determine how the medication will affect defendant’s demeanor at trial and his ability to assist his attorney in presenting his defense....The involuntary medication of Dr. Sell could alleviate the very symptoms that would most likely convince a jury of his diminished capacity and thereby deprive him of a constitutionally protected defense. As Dr. Sell’s mental state at the time of the offenses charged will be at issue, a jury’s decision will certainly be guided by its observations of Dr. Sell during the trial. Any analysis performed after the medication regimen has begun may simply be too late.

Accordingly, the district court erred in not considering the effects of the medication on Dr. Sell’s demeanor at trial and his ability to assist in his defense prior to ordering his medication.

The National Association of Criminal Defense Lawyers ( NACDL) is the preeminent organization in the United States advancing the mission of America’s criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL’s more than 10,400 direct members – and more than 80 state and local affiliate organizations with another 28,000 members – include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors, and judges committed to preserving fairness within America’s criminal justice system.

NACDL promotes study and research in the field of criminal law to disseminate and advance knowledge of the law in the area of criminal practice. NACDL seeks to defend individual liberties guaranteed by the Bill of Rights and has a keen interest in ensuring that legal proceedings are handled in a proper and fair manner. Among NACDL’s objectives is promotion of the proper administration of
justice. In furtherance of that objective, over the decade, NACDL has filed approximately ten amicus briefs per year with this court on criminal justice related issues.

NACDL members volunteer their time and skills to write these briefs. We are very proud to be an officer of this wonderful organization.

The Supreme Court agreed Monday to hear a case that calls upon them to decide whether police are personally liable for mistakes they make on search warrants.

Law officers are ordinarily immune from lawsuits over their conduct on duty, but the high court has allowed exceptions when the officer violated someone's constitutional rights. The question this time, in a case involving a 1997 ranch in rural Montana, is whether a mistake on the search warrant opened the door for a lawsuit, when there was no specific previous case that would have put an ATF agent on notice that he was at risk.

The case is Groh v. Ramirez, 02-811. Fourth Amendment.com provides this information about the decision being appealed:

The Ninth Circuit held that the rank and file officers at the scene had immunity but the supervisors did not for a clear failure of particularity in a search warrant. Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9th Cir. 2002), pet. for cert filed Nov. 22, 2002 (02-811), cert. granted Mar. 3, 2003 (will not be argued until Fall 2003).

Congratulations to Miami criminal defense lawyer Neal Sonnett for his big win in the Bermuda Short money laundering trial--based on a Government sting operation. His client, Jack Purdy, was found . The jury decided the snitch was lying and Mr. Purdy was entrapped by the Government. This was a big loss for Florida prosecutors.

"The Supreme Court sided Tuesday with a black Texas death row inmate who claimed prosecutors stacked the jury with whites and said he was not allowed to present evidence of the alleged bias."

"The high court ruled 8-1 that Thomas Miller-El should have been given an opportunity to present his evidence during his federal appeals. The court's action does not mean Miller-El will ultimately win his case. The justices sent the case back to a lower court, where Miller-El could get a new hearing on his claims that prosecutors used their power to challenge specific jurors as a way to eliminate 10 out of 11 potential black jurors before Miller-El's trial...."

The Court sharply criticized the Texas trial judge and the 5th U.S. Circuit Court of Appeals for dismissing Miller-El's claims without affording him a full hearing.

Former NBA star Jayson Williams' trial on aggravated manslaughter charges has been put on hold by the New Jersey Supreme Court, which has agreed to hear an appeal by Williams' attorneys as to whether the Prosecution violated Williams constitutional rights before the grand jury.

Williams' attorneys, Joseph Hayden Jr. and William Martin, had argued to [trial judge] Coleman that [prosecutor] Lember violated Fifth Amendment and other constitutional protections by repeatedly referring to their client's decision not to speak with police and to his statements that he would remain silent until he consulted with a lawyer. Lember discussed Williams' silence at least five and possibly six times, directly or through law enforcement witnesses. Hayden and Martin filed their appellate brief on Jan. 9, saying the case "involves a novel issue never decided by the Appellate Division or the New Jersey Supreme Court: whether an indictment should stand where a prosecutor repeatedly brings to the grand jurors' attention the fact that the defendant consulted counsel and declined to be interviewed, thereby prejudicing the defendant ... by inflaming its members."

The Washington Post gets it right today in its editorial Prison Blues : the problem with bad law in seemingly inconsequential cases is that it becomes precedent and subsequently adversely impacts other cases in which a more significant right is at stake.

The influential D.C. Circuit Court of Appeals ruled today that prisoners do not have a consitutional right to have electric guitars in prison. (As an aside, Brett C. Kimberlin, the prisoner who sued is the one who accused Dan Quayle of buying pot from him). Represented by the ACLU, Kimberlin contested the consitutionality of a 1996 law forbidding federal money to be spent on "the use or possession of any electric or electronic musical instrument" in prisons. It seems the government construes this law as a flat ban on inmates owning musical instruments, even if they purchased the instruments themselves. Kimberlin argued the ban violates his First Amendment right to free musical expression.

In response, the Bureau of Prisons did not argue that the ban was necessary to control noise or keep order in the prison. Instead, "they asked the court to uphold the rule on the grounds that it made prison life more miserable and therefore advanced the cause of punishment. "

But as the Post correctly points out, "That, of course, is true of any restriction on constitutional rights and would presumably justify banning pens, paper and reading material as well as guitars."

The Court, in ruling against Kimberlin and another inmate, adopted a different but equally disturbing rationale: It upheld the ban on the ground that "the First Amendment is not an entitlement program."

But as Judge Tatel argued [in dissent], almost any activity in a prison "requires electricity, guard supervision, or other prison resources," because the entire environment is created and maintained by the government. If Congress can forbid incidental infrastructure expenditures on electric guitars without implicating First Amendment concerns, there is nothing it cannot ban."

The Post says, "The law in this circuit now implies that prisoners have no right to read if doing so costs pennies Congress wishes not to spend. The full court, or the Supreme Court, should make sure that this does not remain law."

We can't help but wonder which way Mr. Miguel Estrada would have voted had he been sitting on the Court. There's little way to know for sure since he refuses to release any information about his true position on issues, but we strongly suspect he would have sided with the majority. Just one more reason in our opinion to keep that filibuster going--the devils we know are bad enough, we don't need one we don't know. And if he's not a devil, he should come out and say so.

Update: The D.C. Circuit opinion discussed in the editorial below can be found here.

In a first of its kind filing, a coalition of civl liberties and Arab-American groups, including the ACLU and the National Association of Criminal Defense Lawyers ( NACDL), have asked the U.S. Supreme Court to review the secret FISA Review Court's ruling on government wiretapping and the sharing of information between intelligence agencies and law enforcement.

The case offers the first opportunity for the Justices to consider government actions in the wake of September 11 that severely restrict civil liberties in the name of national security.

"On behalf of all Americans, we are urging the Supreme Court to reject the extreme notion that Attorney General Ashcroft can suspend the ordinary requirements of the Fourth Amendment to listen in on phone calls, read e-mails, and conduct secret searches of Americans%u2019 homes and offices," said Ann Beeson, Associate Legal Director of the American Civil Liberties Union.

The ACLU filed the appeal together with the National Association of Criminal Defense Lawyers (NACDL), the American-Arab Anti-Discrimination Committee (ADC) and the Arab Community Center for Economic and Social Services (ACCESS), a Michigan-based organization.

[link via How Appealing]

Attorneys in the case are Beeson, Jameel Jaffer and Steven Shapiro of the ACLU and Joshua L. Dratel, John D. Cline and Tom Goldstein of NACDL, acting on behalf of their organizations and as counsel to ADC and ACCESS.

The case is In Re: Sealed Case Of The Foreign Intelligence Surveillance Court Of Review No. 02-001.

The Motion to Intervene is online here.. The Petition of Certiorari is online here .

Here is the transcript of the Fisa Review court oral argument.

Our multiple prior criticisms of the ruling and the secret FISA review court are here.

Remember the one-sided FISA review court that heard the appeal of the lower FISA court decison on the information sharing between law enforcement and intelligence agencies under the Patriot Act?

You can now read online the transcript of this first ever oral argument before the U.S. Foreign Intelligence Surveillance Court of Review. The court's subsequent ruling, issued last November, is available here. (Big thanks to How Appealing for the link.)

You can access most of our prior coverage and criticism of the FISA lower and review court decisons among the entries here.

A federal jury has awarded $1.5 million to two narcotics agents.

[The agents]claimed the Pennsylvania attorney general retaliated against them because they uncovered a drug-trafficking ring they said diverted profits to a CIA-backed Dominican presidential candidate.....

McLaughlin and Micewski said they uncovered a drug-trafficking ring operating in Philadelphia, New York and other Eastern cities that funneled drug profits to the left-wing Dominican Revolutionary Party, which they claimed was supported by the CIA and State Department.

They said the U.S. government allowed the party's presidential candidate, Jose Francisco Pena Gomez, to return to the Dominican Republic after a 1995 fund-raising swing through New York with $500,000 in alleged drug profits.

The agents said that shortly after they made their allegations, the Philadelphia district attorney and U.S. Attorney's office stopped prosecuting their drug cases. More than 125 cases were dismissed or dropped after prosecutors accused agents of fabricating evidence and lying on the stand. McLaughlin, Micewski and other agents were transferred and removed from street duty.

The Government plans an appeal.