Questioning Judge Roberts

This piece raises some interesting points.

Questioning of Roberts missed mark
Sep 26, 2005 - The Harrisburg Patriot
Author(s): Adam S. Jones

Two unsettling lessons can be learned from the nomination and confirmation hearings of Judge John Roberts to the U.S. Supreme Court:

The excessive coverage of and reaction to his nomination indicates the Supreme Court has grown to be far too powerful, and, two, in all the chatter we hear the wrong questions concerning Roberts, showing Americans have a skewed expectation for the role of the court in our representative democracy.

Is it proper that so much excitement and trepidation should come from the appointment of one judge to a court of nine unelected justices? It is as if we are in the midst of a presidential election given all the fanfare. This is a clear indication there is far too much power in the vacant chair awaiting Judge Roberts, that the Supreme Court has grown to be much more than a "separate but equal" branch in our federal government.

Consider the concerns over the political views of Judge Roberts. Something is misaligned when we hear the terms "conservative" and "liberal" jockeyed around concerning a federal judge.

These are political terms that indicate a person's preferences on public policy. The emphasis on Roberts' politics shows we expect the court to be something it should not be: a political institution overtly or covertly implementing political party policy through its decisions.

Where is the concern over whether or not Judge Roberts will practice judicial restraint and not abuse this power as a justice?

There is no mention of "judicial review" -- that awesome power of overturning laws of Congress -- in the Constitution.

The court awaiting Roberts assumes for itself the power of overturning laws that are "unconstitutional," presumably in order to protect the constitution and therefore the liberties of the people. How will he handle such power?

A written constitution is itself a limit on the power of government. That is why everything is written down: to set the boundaries on the power of government so to protect the freedoms and rights of the people. It is ironic, then, if the power to interpret laws and the Constitution can become a near limitless power for the Supreme Court to rewrite the Constitution with every decision and set political policy that affects Americans lives, rights, and freedoms.

The major concern with Roberts should be over this immense power of the court. Activist groups and their pandering senators, however, only concern themselves with which side of political isle a justice falls and then getting the right activist on the court: Get a liberal on the court to keep abortion legal or get a conservative there to overturn Roe v. Wade.

The issue is whether or not justices, liberal or conservative, restrain themselves in deference to the people's representatives in Congress.

This is not an academic matter of squabbling over syntax; it is a civic concern that cuts directly to the heart of the American regime. Self-government is the primary civic right of any free people. The more political policy is set down by an unelected court and the less our representatives have to do with that policy, the less free we become.

Take a brief look at some political history: Presidential elections become more democratic in the early 1800s with direct voting by the people of the states. The U.S. Senate became more closely controlled by the people with the 17th Amendment passed in 1913, allowing for direct election by the people. The political parties became more democratic when the primary system allowed voters to choose their party's candidate for president.

But wait. Have you noticed that mass protests in the nation's capital rally to our nine constitutional nannies and congregate outside the Supreme Court while ignoring Congress across the street? Why do "We the People" on the one hand rightly desire control of our government and on the other hand ask an unelected court to control the policy that affects our lives? All we can do to the court is plead and beg like whining children before detached parents. We can, however, actually vote for the representatives in the capitol like a free and responsible people.

Why are we not asking Judge Roberts if he will or will not "leave us alone," constitutionally speaking? More importantly, why should "We the People" be left alone, or is that a matter for the Supreme Court to decide? ADAM S. JONES writes from Annville.

© Copyright 2005 Harrisburg Patriot

British Home Secretary Critical of Justice System

Justice: Clarke picks fight with judges after attack on legal system
By Nigel Morris, Home Affairs Correspondent
Published: 27 September 2005

Charles Clarke called for an overhaul in the legal system yesterday, accusing the courts of delays and inefficiency in the way they dispense justice.

He risked a fresh clash with the judiciary by claiming that the country's courts did not always provide "rapid and effective justice" across the board. The Home Secretary told a fringe meeting: "I don't actually think the legal system in this country is something to admire in every respect. I don't think it gives rapid and effective justice to people ... in the way it needs to. It needs to be reformed for a lot of that to happen. I do actually think the various rights embedded in the legal system are fundamental to our democracy, but they also have to be examined in the way people are or aren't protected more widely."

He did not spell out his planned reforms, but is understood to be frustrated by the time it can take from when people are charged to when they appear in court.

Mr Clarke's comments, as the Government faces accusations of undermining fundamental civil liberties, may also be seen as a warning to judges not to frustrate new anti-terror legislation.

His attack comes at a period of tense relations between government and judiciary. Tony Blair complained recently that the courts had blocked government attempts to implement anti-terror legislation. Days later senior judges responded by warning the Government that diluting the powers of the judiciary would undermine the basis of democracy.

Mr Clarke dismissed critics who said that civil liberties were being swept away by measures such as anti-terror legislation, identity cards and antisocial behaviour orders.

He said each was "appropriate and proportionate" for the state to defend fundamental rights.

But Shami Chakrabarti, director of Liberty, told the fringe meeting organised by The Daily Telegraph that the Government was "losing the appetite" for human rights.

"Democracy is not just majority rule. If we are to safeguard our democracy - whether from the terrorists who will seek to provoke us or from future governments, however well-intentioned - it is important to remember that we do need a small bundle of non-negotiable rights and freedoms."

Robert Marshall-Andrews QC, a Labour leftwinger, said: "Terrorism is a great enemy of our property and a great enemy of our lives, but the greatest threat of terrorism is the threat to our civil liberty.''

Mr Clarke will tell the Labour conference today that he wants reform across the gamut of Home Office responsibilities.

A central part of that will be speeding up criminal justice reform, alongside tougher sentences for the most serious offenders and reducing the re-offending rates of prisoners after they are released.

He will also promise to make the asylum system more transparent, and foreshadow change within the police service. Local "command units" will be brought with local government boundaries while the smaller county forces face mergers to make them more effective.

Charles Clarke called for an overhaul in the legal system yesterday, accusing the courts of delays and inefficiency in the way they dispense justice.

He risked a fresh clash with the judiciary by claiming that the country's courts did not always provide "rapid and effective justice" across the board. The Home Secretary told a fringe meeting: "I don't actually think the legal system in this country is something to admire in every respect. I don't think it gives rapid and effective justice to people ... in the way it needs to. It needs to be reformed for a lot of that to happen. I do actually think the various rights embedded in the legal system are fundamental to our democracy, but they also have to be examined in the way people are or aren't protected more widely."

He did not spell out his planned reforms, but is understood to be frustrated by the time it can take from when people are charged to when they appear in court.

Mr Clarke's comments, as the Government faces accusations of undermining fundamental civil liberties, may also be seen as a warning to judges not to frustrate new anti-terror legislation.

His attack comes at a period of tense relations between government and judiciary. Tony Blair complained recently that the courts had blocked government attempts to implement anti-terror legislation. Days later senior judges responded by warning the Government that diluting the powers of the judiciary would undermine the basis of democracy.

Mr Clarke dismissed critics who said that civil liberties were being swept away by measures such as anti-terror legislation, identity cards and antisocial behaviour orders.

He said each was "appropriate and proportionate" for the state to defend fundamental rights.

But Shami Chakrabarti, director of Liberty, told the fringe meeting organised by The Daily Telegraph that the Government was "losing the appetite" for human rights.

"Democracy is not just majority rule. If we are to safeguard our democracy - whether from the terrorists who will seek to provoke us or from future governments, however well-intentioned - it is important to remember that we do need a small bundle of non-negotiable rights and freedoms."

Robert Marshall-Andrews QC, a Labour leftwinger, said: "Terrorism is a great enemy of our property and a great enemy of our lives, but the greatest threat of terrorism is the threat to our civil liberty.''

Mr Clarke will tell the Labour conference today that he wants reform across the gamut of Home Office responsibilities.

A central part of that will be speeding up criminal justice reform, alongside tougher sentences for the most serious offenders and reducing the re-offending rates of prisoners after they are released.

He will also promise to make the asylum system more transparent, and foreshadow change within the police service. Local "command units" will be brought with local government boundaries while the smaller county forces face mergers to make them more effective.
Also in this section

* Gordon Brown: The man who would be Prime Minister
* Unions: Unions win first round of battle for employment rights
* Labour conference diary
* Fringe: Party must reconnect with voters, say ministers
* Blair asks for three more years to complete reforms

Crime stays at 2003 level

The web page itself has a wonderful table that would prove a great research asset.

washingtonpost.com
Crime Rate Remains at 2003 Level, Study Says
Justice Department Statistics at Lowest Mark Since 1973

By Mark Sherman
Associated Press
Monday, September 26, 2005; A02

The nation's crime rate was unchanged last year, holding at the lowest levels since the government began surveying crime victims in 1973, the Justice Department reported yesterday.

Since 1993, violent crime as measured by victim surveys has fallen by 57 percent and property crime by 50 percent. That has included a 9 percent drop in violent crime from 2001-2002 to 2003-2004.

The 2004 violent crime rate -- assault, sexual assault and robbery -- was 21.4 victims for every 1,000 people age 12 and older. That amounts to about one violent crime victim for every 47 U.S. residents.

By comparison, there were 22.6 violent crime victims per 1,000 people in 2003. The Bureau of Justice Statistics said the difference between the rates in 2003 and 2004 was statistically insignificant.

Homicide is not counted because the bureau's study is based on statements by crime victims. In a separate report based on preliminary police data, the FBI found a 3.6 percent drop between 2003 and 2004 -- from 16,500 to 15,910. Chicago was largely responsible for the decrease.

The survey put the rate for property crimes of burglary, theft and motor vehicle theft in 2004 at 161 for every 1,000 people, compared with 163 the year before.

Many explanations have been advanced for the decline in violent crime, including the record prison population of more than 2 million people, the addition of 100,000 police officers since the mid-1990s and a deterrent effect that terrorism might have had on street crime.

"Success has 1,000 fathers," said Mark A.R. Kleiman, an expert on crime control policy who is a professor at the University of California at Los Angeles.

Kleiman said the victim survey probably does not take sufficient account of a growing problem with gang violence that has been widely reported across the country. The leveling off of the crime rate also should be viewed as disappointing, he said.

"My sense is that complacency is not justified. This rate means we're down to about twice the level of crime when I was growing up in the 1950s," he said.

The Justice Policy Institute, an organization that advocates alternatives to incarceration, said the report offered good news and further reason to "begin investing in community-based policing and local organizations that succeed in increasing public safety."

The National Crime Victimization Survey is based on annual interviews by Census Bureau personnel with about 150,000 people at least 12 years old. The FBI does a separate crime study based on reports it receives from thousands of law enforcement agencies.
© 2005 The Washington Post Company

Interesting Thought: When is Justice Done?

Published on: 09/22/05

The Atlanta Journal Constitution

A man rapes and robs a woman one week, hides out for several days and then carjacks and kills another randomly chosen victim the following week. Is justice served when he is gunned down in the street by an eyewitness to the last crime?
The eyewitness is being hailed as a hero for bringing an end to Brian O'Neil Clark's violent crimes in north Cobb County on Sept. 12. The shooter, Shawn T. Roberts, said that Clark pointed a gun at him as Clark was running from the scene of a crash that took the life of 30-year-old Kimberly Boyd, the woman he had abducted and shot just a few moments earlier.
Clark is also thought to have raped and robbed an Acworth woman Sept. 6. The gun he used on Boyd, and that he pointed at Roberts after he wrecked Boyd's car, was taken from the home of his earlier victim, police said. They believe a DNA sample will conclusively link Clark to both crimes.
Police have not charged Roberts with a crime, but the shooting will likely be reviewed by the county district attorney and possibly a grand jury to determine whether he acted within the law.
It doesn't take a polling expert to predict how most people view Roberts' actions. Many would argue, convincingly, that he did the criminal justice system a favor. Clark, given his previous actions, may have tried to steal a car and abduct another victim. We'll never know.
What we do know is that there will be no appeal for justice in Clark's case now. It may be over, but does closure pass for justice?
Compare Roberts' actions to those of Ashley Smith last March. Accused killer Brian Nichols confronted her outside her Gwinnett County apartment in the middle of the night after she returned from buying cigarettes.
Armed only with her wits and her faith, she persuaded a killer to turn himself in and stand trial — though she knew from TV reports that he may have killed a Fulton County judge, a court reporter, a deputy sheriff and a federal law enforcement official only a few hours earlier.
Smith believed she could stop Nichols from hurting anyone else. Through simple acts of kindness — making him pancakes, encouraging him to take a shower, rest and talk — she diffused his anger and wore him down.
Even if a jury finds Nichols guilty and sentences him to death, it could be years before there is "closure" in his case.
Still, the higher voices in us would like to think this is the outcome that produces the best justice; that if we were so confronted, we too would try to persuade a murderer to turn himself in and let the criminal justice system — with all its flaws — prevail.
But there is a third option — one I suspect most of us wish for whenever those being sought for such heinous crimes are on the loose.
Over three days in July 1999, Mark O. Barton, a disgruntled day trader, killed 12 people. He bludgeoned his wife to death and hid her body in the closet, then came home the next day to kill his two children while they slept. On the final day he sprayed bullets around crowded Buckhead office buildings, killing nine more people and seriously injuring 13 others.
Were we wrong, in the silence of our pained hearts to be satisfied, even relieved, that Barton put a gun to his head and pulled the trigger?
No trial was necessary in his case, either. No unpredictable juries. No verdicts to appeal. No waiting on death row. In our quiet moments, we easily justify such an outcome as justice.
Even Nichols' mother — no doubt suffering from the emotional strain of a parent whose child had done the unthinkable — confided in a friend shortly after his arrest that she wished her son had turned a gun on himself.
But he didn't. He encountered Ashley Smith.
So justice for Nichols and his victims still must be served. Not the kind served up by a bystander with a gun or by the final violent act of a poisoned mind, but the much more difficult kind we must trust to a judge and a jury of citizens. They are responsible for carrying out justice on our behalf.
— Mike King is an editorial board member. His column runs Thursdays.

An interesting bit of history

The first national "Thanksgiving Day" was created by George Washington as a way of giving thanks for the Constitution. It was established on November 26th, 1789.

Some Research reveals that Washington proclamation was a one time event. Here is the history and the lead up to making it a day of thanksgiving for many blessings

This came from Encarta

Although there is record of earlier thanksgiving celebrations (most notably in 1619 at Berkeley Plantation, Virginia), Americans trace their traditional Thanksgiving holiday to one celebrated in 1621. This celebration was held at the Plymouth Colony, now in the state of Massachusetts. The English Pilgrims who had founded the colony marked the occasion by feasting with Native American guests—members of the Wampanoag tribe—who brought gifts of food as a gesture of goodwill. Although this event was an important part of American colonial history, there is no evidence that any of the participants thought of the feast as a thanksgiving celebration. Two years later, during a period of drought, a day of fasting and prayer was changed to one of thanksgiving because rains came during the prayers. Gradually the custom prevailed among New Englanders to annually celebrate Thanksgiving after the harvest.

Colonial governments and, later, state governments took up the Puritan custom of designating thanksgiving days to commemorate various public events. Gradually the tradition of holding annual thanksgiving holidays spread throughout New England and into other states. During the American Revolution (1775-1783) the Continental Congress proclaimed a national day of thanksgiving following the American victory at the Battle of Saratoga in 1777. U.S. president George Washington proclaimed another day of thanksgiving in 1789 in honor of the ratification of the Constitution of the United States. In 1817 New York State adopted Thanksgiving Day as an annual custom, and many other states soon did the same. Most of the state celebrations were held in November, but not always on the same day.

In the mid-19th century Sarah Josepha Hale, editor of Godey’s Ladies Book, led a movement to establish Thanksgiving as a national holiday. In 1863, during the American Civil War (1861-1865), President Abraham Lincoln proclaimed the last Thursday in November to be Thanksgiving Day in order to bolster the Union’s morale. After the war, Congress established Thanksgiving as a national holiday, but widespread national observance caught on only gradually. Many Southerners saw the new holiday as an attempt to impose Northern customs on them. However, in the late 19th century Thanksgiving’s emphasis on home and family appealed to many people throughout the United States. As a distinctly American holiday, Thanksgiving was also considered an introduction to American values for the millions of immigrants then entering the country.

During the 20th century, as the population of the United States became increasingly urban, new Thanksgiving traditions emerged that catered to city dwellers. The day after Thanksgiving gradually became known as the first day of the Christmas shopping season. To attract customers, large retailers such as Macy’s in New York City and Gimbel’s in Philadelphia, Pennsylvania, began to sponsor lavish parades. By 1934 the Macy’s parade, featuring richly decorated floats and gigantic balloons, attracted more than one million spectators annually.

The custom of watching football games on Thanksgiving Day also evolved during the early decades of the 20th century. As football became increasingly popular in the 1920s and 1930s, many people began to enjoy the holiday at a football stadium. Teams in the National Football League eventually established the tradition of playing nationally televised games on Thanksgiving afternoon.

In 1939 U.S. president Franklin Roosevelt shifted the day of Thanksgiving from the last Thursday in November to one week earlier. Retail merchants had petitioned the president to make the change to allow for an extra week of shopping between Thanksgiving and Christmas. Many Americans objected to the change in their holiday customs and continued to celebrate Thanksgiving on the last Thursday of the month. Roosevelt’s political opponents in Congress also opposed the break with tradition and dubbed the early holiday “Franksgiving.” In May 1941 Roosevelt admitted that he had made a mistake and signed a bill that established the fourth Thursday of November as the national Thanksgiving holiday, which it has been ever since.

Thanksgiving is also a legal holiday in Canada. Because Canada is north of the United States, its harvest comes earlier in the year. Accordingly, the Thanksgiving holiday falls earlier in Canada than in the United States. The Canadian Parliament set aside November 6 for annual Thanksgiving observances in 1879. In 1957 the date was shifted to an even earlier day, the second Monday in October.

The Role of Chief Justice

The New York Times
September 18, 2005
The New Boss
By JEFFREY ROSEN

If John G. Roberts Jr. is confirmed as William H. Rehnquist's successor on the Supreme Court, the country will have not only a new chief justice but also a new political entity: the Roberts Court. We speak easily of the Rehnquist Court or the Warren Court, managing to identify those complex institutions with a single individual. But how does a chief justice put his stamp on the court?

At a political moment that is as polarized as any in recent memory, many Americans crave a court that, unlike the current White House and Congress, will follow a moderate path, and they are looking anxiously to Roberts's ideology for hints about the court's direction. A chief justice's judicial philosophy is important; but at the end of the day he has only one vote among nine. The most effective tools that a chief justice has at his disposal for shaping a court have less to do with his ideology than with his temperament, which shapes his personal skills as a cajoler, diplomat and unifier - in other words, as a boss for an unusually independent group of prima donnas.

Throughout history, the chief justices who have been best able to preserve the court's reputation and legitimacy have been those with the most judicious dispositions. A chief justice's responsibilities are mostly procedural and organizational; it's his prerogative, when he is in the majority, to write the opinion for the court or to assign the opinion to a justice he believes will reflect his legal views, as part of his broader efforts to build consensus behind the scenes. John Marshall, who served from 1801 to 1835 and is widely considered the greatest chief justice in American history, was especially deft in exercising these powers. Marshall took office without judicial experience (in fact, 11 of the 16 chief justices have been appointed to the court without previously serving on it as associate justices), but like John Roberts, he had a reputation for an ability to argue both sides of an issue, for his bipartisan friendships and, above all, for a lack of pretense and a good nature. ("I love his laugh - it is too hearty for an intriguer," wrote his friend and colleague Joseph Story.)

Marshall's skill in establishing convivial personal relations among his fellow justices helped him to cement the court's authority at a vulnerable moment in its early history. Recognizing the virtues of leading with a light touch, Marshall wore a simple black robe rather than the scarlet and ermine that were traditional at the time. And he insisted that his colleagues room together in the same boarding house, so that they could discuss cases over glasses of his excellent Madeira. As a result of his sensitivity to the views of his political antagonists (with the notable exception of Thomas Jefferson, whom he detested), Marshall was able to steer the court toward a middle ground and to speak for a unanimous court on the most divisive issues of his age.

If Marshall's modesty and geniality made him the prototype of the successful chief justice, his successor, Roger Taney, became the anti-type. Though an able lawyer, Taney was shy, frail and reticent where Marshall was gregarious, and he preferred to lead through indirection and behind-the-scenes intrigue rather than by cultivating sociable companionship. He was stubborn and had an inflated sense of judicial power, qualities reflected in the infamous and widely reviled Dred Scott opinion, in which he ruled that Congress had no power to ban slavery in federal territories. In a later case, after plausibly holding that Abraham Lincoln could not suspend habeas corpus without Congress's approval, he went out of his way to mock the president, circulating his opinion as widely as possible to embarrass the administration. Under Taney, the justices stopped boarding together, and the collegial and unanimous court fragmented.

Another unsuccessful chief justice was Rehnquist's predecessor, Warren Burger, who fancied himself a political statesman but was not smart enough to win the respect of his colleagues. His insecurity, vanity and pomposity were openly ridiculed by liberal and conservative justices alike (including, apparently, Rehnquist and a law clerk of his at the time, John Roberts). And his habit of changing his vote at the last minute in order to ensure that, as the senior justice in the majority, he could write the most important opinions for himself so infuriated his colleagues that some of them eventually vented their frustrations to the journalist Bob Woodward. The best-selling book that resulted, "The Brethren," exposed Burger and the court to public ridicule.

The most successful chief justices, in short, are modest, likable, efficient, capable of strategic compromise and at least as smart as their colleagues. Rehnquist had these qualities in abundance, which is why even liberal colleagues like William Brennan and Ruth Bader Ginsburg praised him as the best boss they ever had. Does Roberts have what it takes to preserve the court's collegiality and, by extension, its relative moderation? By all accounts, he is self-effacing, funny, affable and extremely intelligent. He has a knack for considering both sides of an argument and for getting along with people on both sides of the political spectrum. The one aspect of Roberts's personality that is hard to discern from the sometimes acerbic memos he wrote as a young Reagan administration official is his capacity for moderation, pragmatism and flexibility. Does he have the ability to temper his own conservative views in order to win majorities and persuade his colleagues to find principled compromises, when necessary, for the good of the court and the country? That's a skill that will be determined by his temperament, more than his ideology, and the success of the Roberts Court will depend on it.

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine.

* Copyright 2005 The New York Times Company

Protective Custody with a Twist

In Today's Crime and Justice News (see BCRCJ.blogspot.com for site), I read the following:

CA Prison 'Revolution': Protective Custody Against Gangs
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
A revolution in protective custody is slowly breaking the stranglehold of gang-imposed rules on California state prison life, reports the Los Angeles Times. Until now, protective custody has been for prison's pariahs — sex offenders, informants, homosexuals — who were locked in their cells most of the day. Gang members and other inmates viewed this as an unmanly and arduous way to do time. But in the last few years, California prisons have given inmates another choice by converting entire yards to protective custody. The result: Thousands of ex- gang members — serving time for murder, robbery and assault — have defected to these so-called sensitive-needs yards (SNYs), seeking a haven from gang life.

As on regular prison yards, SNY inmates live two to a cell and have the same exercise and meal routines. The only difference is that they live with other inmates whose lives, like theirs, would be in danger if they were in the general mix. Demand for SNY space is growing unrelentingly. Since 1998, when the practice of setting aside whole yards for protective custody began, the SNY population has grown from less than 1,000 to more than 13,000 — almost 9% of adult male inmates. Inmates requesting sensitive- needs yards must explain why they need protective custody, and their claims are investigated by prison staff. Though they don't keep statistics or cost estimates by yard, prison officials say fights, stabbings and riots are less common on SNYs, making them safer and less expensive to operate.

If you click on the title of this post, you will be taken to the full article which goes into more detail about how this works and the response from inmates.

CSI makes it difficult for prosecutors and police

Friday, September 16, 2005

A glance at the September 10 issue of New Scientist: TV forensics and the real thing

Television programs such as CSI: Crime Scene Investigation have raised enrollments in college forensics courses, but they have also made it more difficult for police investigators and prosecutors to convict criminals.

So concludes Peter Bull, a forensic sedimentologist at the University of Oxford, according to Rowan Hooper, a reporter. Mr. Bull has found that the television shows have convinced many jurors that forensic evidence should be ironclad, so that they "are not impressed with evidence presented in cautious scientific terms," Mr. Hooper reports.

Even law-enforcement officials, he says, have come to hold unrealistic expectations of the certainty of forensic evidence and of the speed with which it can be developed.

The TV programs also are making some forensics experts loath to cooperate with news-media and entertainment programmers, out of a fear that their expertise "informs criminals of the techniques the police employ to catch them," Mr. Hooper writes. So, for example, criminals increasingly don rubber gloves during break-ins, wear condoms during rapes, and dump cigarettes into stolen cars to confuse investigators about who has been in the vehicles.

The good news, one expert tells Mr. Hooper, is that skilled, patient investigators still are able to identify suspects because "it is extremely difficult not to contaminate a crime scene." Only a few moments' presence in a room is enough to contaminate it, and investigators have many tools to pursue that evidence, so that even a skilled forensics expert would be hard-pressed to conceal his presence, Mr. Bull tells Mr. Hooper.

"If you want to commit the perfect murder," Mr. Bull says, "there's one thing I'll ask you: 'Do you feel lucky, punk?'"

The article, "Television Shows Scramble Forensic Evidence," is online at http://www.newscientist.com/channel/being-human/mg18725163.800

Text Messaging and Jurors

There are plenty of issues in this articles, but the primary question to think about is to what extent the "do not discuss this case with others or amongst yourselves" during the course of a trial is totally actually adhered to and are cell phones with text messaging capabilities going to cause unforeseen problems in the years ahead -- during actual deliberations, for example

chicagotribune.com

http://www.chicagotribune.com/news/local/chi-0509130182sep13,1,1326544.story?coll=chi-news-hed
Jurors stay on Harris panel
Judge won't remove 2 who text-messaged in botched arrest case


By Carlos Sadovi, Tribune staff reporter. Tribune staff reporter Gary Washburn contributed to this report

September 13, 2005

Two jurors who admitted text-messaging each other will be allowed to continue serving in the civil trial in which a family is suing Chicago police over an 8-year-old boy's arrest for murder, a civil court judge ruled Monday.

Judge Randye Kogan reaffirmed her ruling of last Thursday that the male and female jurors could remain on the panel in the wrongful arrest suit stemming from a police investigation into the 1998 slaying of 11-year-old Ryan Harris.

Kogan's latest ruling came after an anonymous letter last week singled them out for allegedly using their cellular phones to text-message each other. Last week she decided to keep the two on the jury while Cook County sheriff's investigators scoured their cell phones to ensure they did not discuss the case.

Kogan noted Monday for the record that the city disagreed with her rulings and offered the city a chance to file a written brief objecting to the decision.

Michael Sheehan, a lawyer for the city, said the city believes the jurors should be removed, but attorneys are looking into the law before deciding whether to issue a written brief. Monday's court hearing was markedly tamer than Friday's, when the city's request to have Kogan reconsider her decision resulted in a lawyer from each side briefly thrown out of court.

Andre Grant, a lawyer for the boy, asked Kogan to get law officials involved in finding the author of the letter. Grant suggested in court Friday that police may have been behind the anonymous letter. Lawyers for the city reacted sharply.

"I request that the court do something to determine the source and authenticity of the letter we read last week. It says that it came from a juror, yet all have denied it," Grant said Monday. "We may have a juror that is dishonest. We have to determine the source of the letter. Otherwise, our jury is tainted."

Kogan said she would take Grant's request under consideration.

Jury selection in the case began on Aug. 1 and testimony began on Aug. 9, seven years to the day that the 8-year-old and a 7-year-old boy were arrested for Ryan Harris' 1998 slaying.

Lawyers for the plaintiffs argued that removing the jurors would disrupt the racial balance of the jury. There are four African-Americans, four Hispanics and four whites on the jury.

The male juror in question is African-American and the woman is Hispanic. Two of the alternate jurors who would take their places are white.

City lawyers last week argued the letter was cause to have both jurors removed because they have made up their minds before the trial has ended.

"We have some jurors who feel it necessary to speak about the case, the young lady and young man text message each other in the [jury] room after each break and make remarks such as, `He's guilty,' or, `Explain what the lawyer meant by ...' [They] need to stop talking so much," the letter read.

After the jury was brought into court Monday, Kogan reminded them not to use cell phones or send text messages while sitting in the jury box. They can use their phones outside court, she said, but only for private conversations and not to discuss the case.

Last week, Kogan said she did not find anything related to the case on their phones after making a cursory review but asked the sheriff's office to put a rush on her request for text-messaging records.

The trial is in its sixth week. The family of the 8-year-old, now 15, is suing the city, retired Chicago police Detective James Cassidy and Detective Allen Nathaniel over the child's August 1998 arrest.

Murder charges against the boy and a friend were dismissed after forensic tests determined that the girl's underwear had semen on it that could not have come from boys so young. Also on Monday, the City Council's Finance Committee discussed settling the case. The committee took no action as Ald. Edward Burke (14th), committee chairman, called for more consideration of the matter before the full City Council meeting scheduled for Wednesday.

Burke reminded the committee that an assistant corporation counsel who spoke last January on behalf of a $2 million settlement in the case of the 7-year-old boy said a jury award could have resulted in a payout by the city of as much as $50 million.

"You don't know what the jury is going to do here," said Ald. Ed Smith (28th). "I think the City Council would be wise to find a way to settle this case."

----------

csadovi@tribune.com

Copyright © 2005, Chicago Tribune

Lessons of the Constitution

The New York Times
September 11, 2005
Constitutional Lessons, Old and New, on Display
By JASON DePARLE

PHILADELPHIA - The National Constitution Center has something for everyone: life-size statues of the document's framers, slave shackles beside the Dred Scott display and a copy of the 1962 petition from Clarence Earl Gideon, the Florida drifter whose legal battle won every accused criminal the right to a lawyer.

Late last month, one of the museum's chief boosters walked through, looking weak from Hodgkin's disease but showing no signs at age 75 of waning tenacity. His blue suit crisp, his few hairs white, he proceeded to an exhibit on the separation of powers, where models of the White House, Capitol and Supreme Court sit in precarious balance. Then the visitor, Senator Arlen Specter, declared that in real life things were out of whack.

"The balance of power is not being maintained in America today," said Mr. Specter, Republican of Pennsylvania. "The Supreme Court is interpreting the Constitution in derogation of Congressional authority."

The clash between a headstrong chairman of the Judiciary Committee and an assertive bench is just the kind of moment the museum might explore. Outside its walls, constitutional fissures are deep, growing and bound for public view as the Senate convenes its first hearings in 11 years on a Supreme Court nominee. And standing among the exhibits on fissures past, Mr. Specter announced a plan to make the hearings "a forum to, in effect, take on the court."

Agreeing to a reporter's request for a tour, Mr. Specter, who helped get $65 million in federal financing for the museum and whose wife, Joan, now works as a fund-raiser there, rang various constitutional alarms, including the treatment of foreign prisoners at Guantánamo Bay and the jailing of Judith Miller, a New York Times reporter he recently visited in Virginia, where she is serving a sentence for refusing to reveal a confidential source to a grand jury.

But his main theme was the court's battle with Congress. He has written two letters to the nominee, Judge John G. Roberts Jr., seeking his views on the court's "really disrespectful statements about Congress's incompetence." In a series of 5-to-4 rulings, starting with United States v. Lopez in 1995, the court has constricted Congressional authority, invalidating measures as different as antigun laws and civil rights remedies for disabled people. In one of those rulings, U.S. v. Morrison in 2001, Chief Justice William H. Rehnquist, whose death on Sept. 3 created a new vacancy, questioned Congress's fact-finding ability and its "method of reasoning."

The thought made Mr. Specter's blood boil. "Who are the justices to say that their method of reasoning is superior to those in the Senate or the House of Representatives?" he said.

He called the second-guessing an undemocratic power grab. "Supreme Court justices really get a great plum," he said, wandering past the exhibits. "I've had to be elected five times. It's really not a plum, believe me - it's a lot of work."

With a vibrant display of constitutional history, from the Magna Carta to Bush v. Gore, the two-year-old museum, an inkwell's toss from Independence Hall, offered a fitting backdrop for Mr. Specter's remarks. Started by Congress in 1988, it struggled for years to raise money and find common ground between liberal advisers, who feared hagiography, and conservatives who feared a warts-and-all approach would focus on warts alone. Yet since opening in 2003, it has put forward a vision of constitutional history both left and right have embraced.

Even Justice Antonin Scalia.

"It's a great place, isn't it?" he said in a telephone interview. One of three justices who played an advisory role, Justice Scalia, an "originalist" who believes constitutional meaning is fixed, said he initially feared that the exhibit would instead portray a flexible "living Constitution" but came away assuaged.

"It's a rare encounter with a constitutional interpretation that I can walk through without coming out with hard feelings," he said. "I had none at all."

Certainly there are warts aplenty: blacks are enslaved, Cherokees removed and Japanese-Americans interned - all despite the Constitution's pledge to "secure the blessings of liberty." Then again, framed by a twisting tower of law books sits Mr. Gideon's simple letter, which cranked its way tough the courts and brought Americans a fundamental new right.

The conservative columnist George Will called it a "jewel of America's civic life," while a liberal reviewer in The Journal of American History called it "already at its birth, one of the nation's greatest museums." Citing such unlikely convergence, Richard Stengel, the museum's president, argues, "The country is not nearly as polarized as the politicians are."

Richard DeVos, a founder of Amway and a major contributor to conservative causes, donated $10 million, and the exhibit hall bears the name of him and his wife, Helen. Mr. DeVos said the museum reflected the patriotism he felt in 1949 when he started his giant sales company. "Those were days when everybody said, 'God is dead,' free enterprise is dead, communism is the wave of the future,' " Mr. DeVos said. "We got very interested in protecting this Constitution and holding it high."

A leading liberal scholar of the Constitution, Kathleen Sullivan, is equally enthusiastic.

"It reminds us that the Constitution is an aspiration and an ideal, and we've executed it so imperfectly in our history that we have to come back and ask, 'Whose oppressions are we ignoring today?' " said Ms. Sullivan, a Stanford law professor.

Indeed, the call for current vigilance was among Mr. Specter's themes. "Every time you turn around, there's some abomination," he said. "And that's what Congress is supposed to do - to have oversight."

Known for having elbows as sharp as his mind, Mr. Specter won a fifth term last November in a perilously close election. A supporter of abortion rights, he then nearly lost his committee chairmanship after angering conservatives by questioning the ability of anti-abortion nominees to get confirmed to the federal bench.

The hearings on Judge Roberts to succeed Chief Justice Rehnquist may be a defining moment of Mr. Specter's career. He angered the right in 1987 by voting against Judge Robert H. Bork, the conservative whose nomination to the court was defeated, 58 to 42. He may have then angered liberals even more in 1991, with a withering cross-examination of Anita Hill, the witness who accused another nominee, Clarence Thomas, of sexual harassment. With Mr. Specter's support, Mr. Thomas squeaked by.

Walking through the museum, he stopped before a display on Marbury v. Madison, the 1803 case that established the court as the final word on constitutional authority. For all his anger at the court, Mr. Specter has vigorously defended that doctrine against some conservatives who want to eliminate court jurisdiction in certain areas, including school prayer and busing. As a young lawyer, Mr. Roberts wrote memorandums supporting such a court-stripping view.

When Justice Scalia was nominated in 1986, Mr. Specter asked him about the landmark Marbury case.

"He wouldn't answer a question about whether Marbury v. Madison was good law," Mr. Specter said. "I thought it was horrible."

"No comment," chuckled Justice Scalia, voluble on the subject of the museum but discreet on relations with members of Congress. "I leave them alone, and they generally leave me alone."

Polite evasions may work less well for Judge Roberts. "I'm looking to hear what his view of Congressional authority is," Mr. Specter said. He added, "He doesn't have to agree with me to be confirmed."

Mr. Specter said Judge Roberts described his judicial philosophy to him by choosing the words "modesty" and "stability."

"I like that, and I think that gives people reassurance on Roe v. Wade and woman's right to choose," Mr. Specter said.

An exhibit on Earl Warren, the chief justice who secured a unanimous decision ending legal segregation in 1954, prompted Mr. Specter again. "That's another thing I'm going to get into - I think that the court does not make a sufficient effort to get a consensus," he said. "Warren took over that court and got them to agree, unanimously, on the most vexing issue of the day. Perhaps of the century." With the 5-to-4 decisions that abound today, Mr. Specter said, "you can't figure out what the law is."

The end of his stroll took Mr. Specter, who was born in Kansas, to a lifelike bronze statue of another out-of-towner made good in local politics, Benjamin Franklin. "Carpetbagger like I am," he said. "Great man."

He admonished a schoolboy for rubbing Franklin's hands, then set off to prepare for the Roberts hearings and the next chapter of constitutional history.

* Copyright 2005 The New York Times Company
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Which picture of Judge Roberts should you believe?

The following editorial reminds us of the importance of the Confirmation Hearings and some logical thoughts on how to get a more balanced view of his views.

U.S. SUPREME COURT; A bar just lifted higher
Sep 6, 2005 - Milwaukee Journal Sentinel
Author(s): Pimentel

Depending on to whom you're listening:

Chief Justice nominee John Roberts is a right-wing activist judge, quivering with excitement to make this a school-praying, anti- abortion, anti-privacy, anti-woman, states' rights nation, one that is anxious to execute death-row inmates whether they're guilty or not. Look for votes and direction tailor-made to make Phyllis Schlafly swoon.

Or he's a straight-arrow, balanced, fair, by-the-book, in-the- mainstream legal scholar, who is unwilling to overturn settled law and who, though conservative, is not hungering to make the Supreme Court the catalyst for renewed culture wars. Look for votes and direction that make him more akin to Justices Sandra Day O'Connor and Anthony Kennedy than to Judges Roy Bean and Dredd.

And the truth is?

Finding out is why we have Senate confirmation hearings. But finding out was just made all the more important Monday after President Bush nominated Roberts, whose name was first put forward to replace O'Connor, to be the nation's next chief justice. The bar has just been lifted higher for confirmation.

Hearings before the Senate Judiciary Committee, on which both of Wisconsin's U.S. senators sit, had been scheduled to begin today. Because of the unexpected death Saturday of Chief Justice William H. Rehnquist, those hearings have now been postponed to Thursday or beyond.

It would be better, of course, if the Roberts hearings could transpire without the background cacophony. We know that those days are long past. Don't be fooled by the noise, however. It is premature to make conclusive judgments about Roberts without such hearings, where he will be able to thoughtfully answer questions thoughtfully posed.

That's exactly what should happen in these hearings. But it only can if Roberts answers as many questions as possible without tap dancing and without taking refuge behind the dodge that he cannot answer because this will cause him to "pre-judge" cases.

Questions can be posed generally enough to get at judicial philosophy. And answers can be given generally enough to satisfy the crucial question: Is Roberts qualified to be chief justice? This question has little to do with whether he is dependably liberal or conservative. The question really has to do with whether he is knowledgeable enough about the law and the Constitution and whether within his judicial philosophy lies any agenda other than the basics: law, justice, rights and adherence to due process.

Of course Roberts is a conservative. A conservative won the last presidential election. It was unreasonable to expect Bush to nominate anything other. The question that will be before the committee is simply whether Roberts will ably lead the court, applying settled law fairly and creating new legal direction for the court based on fair readings of congressional intent, the Constitution and precedent.

There could indeed be wrong answers that should properly compel filibuster. These hearings are Roberts' opportunity to allay fears that he will take the country in a direction far outside of mainstream thought, a fear now heightened because Bush will have at least one more Supreme Court nomination. Roberts must not squander the opportunity with evasiveness.

Judiciary Committee members for their part should be less interested in gotcha questions than in useful lines of inquiry that can answer key questions on several important issues.

And, yes, abortion is among them, correctly posed in a question to Roberts on his views on the Constitution and privacy.

But there are also the issues of the death penalty, women, gay and civil rights generally, church-state separation, campaign financing and limits of federal power, whether the White House, Congress or the states should make the calls, depending on the issue.

There are indeed points in Roberts' writings and background that should prompt properly phrased, civil questions. Some say they've found the veritable smoking gun in those writings.

We're not so sure.

Getting the broader and true view is why the Senate has hearings. And discovering the truth is all the more crucial now that Bush has nominated Roberts to be chief justice.

Copyright 2005, Journal Sentinel Inc. All rights reserved.

Learning More About the Role/Job of Chief Justice

Few people realize the size of the federal judiciary. Even fewer probably are aware that it is the Chief Justice who selects the judges to sit on the surveillance act court that decides on search warrants.

The New York Times
September 6, 2005
A Court Choice Well Schooled in Chief Justice Job's Pitfalls
By LINDA GREENHOUSE

WASHINGTON, Sept. 5 - As a Supreme Court law clerk to William H. Rehnquist decades ago, John G. Roberts Jr. learned how not to be chief justice.

Now that President Bush has chosen him for the position, he will, if the Senate confirms him, have the rare chance to put those lessons into practice.

His boss back in 1980-81 was an associate justice, one who often chafed under the leadership style of Chief Justice Warren E. Burger and who freed, even encouraged, his law clerks to poke fun at what they saw as the chief justice's pomposity and penchant for self-aggrandizement.

Robert M. Weisberg, who clerked during the same term for another justice, said Monday that he would never forget walking down a corridor at the court and coming upon Justice Rehnquist and his law clerks, who were all peering through a window into an inner courtyard, where Chief Justice Burger was supervising preparations for a reception.

"It was very funny to see Rehnquist and his clerks just spontaneously cracking up at the sight of the chief justice directing the proper placement of the silver," Mr. Weisberg said.

Later, when Mr. Roberts was working in the White House counsel's office, memorandums from that period show, he devoted considerable attention to knocking down various proposals from Chief Justice Burger, including one for a new tribunal to ease the Supreme Court's workload.

In a 1983 memorandum, to Fred F. Fielding, the White House counsel, he said a Burger request for authority to name an administrative "chancellor" for the federal courts was "the silliest" of various proposals and added, in a reference to the Anglophilia for which the chief justice was well known around the court, "The bill does not specify whether the Chancellor will wear a powdered wig."

Justice Rehnquist, upon becoming chief justice in 1986, promptly made changes that clearly reflected his own disapproval of how Warren Burger had run the court. For example, he converted the job of administrative assistant to the chief justice into a two-year appointment rather than a permanent position, to avoid the empire-building that had become evident during the Burger years.

The very different Rehnquist management style, straightforward and unadorned, was much appreciated within the court, as reflected in the statements the associate justices issued after Chief Justice Rehnquist's death on Saturday night. Justice Ruth Bader Ginsburg called him "the fairest, most efficient boss I have ever had."

As a law clerk, Judge Roberts, who now sits on the federal appeals court here, would not have been in a position to observe the justices' conference, the twice-weekly closed-door sessions that only the justices themselves attend. But he certainly knew how frustrating Justice Rehnquist found the meandering and confusing way in which the conference proceeded under Chief Justice Burger's leadership.

Among the papers that Justice Harry A. Blackmun left to the Library of Congress is a letter Justice Rehnquist sent to Chief Justice Burger that began: "Dear Chief: I had a feeling that at the very close of today's Conference we may have fitted Matthew Arnold's closing lines in 'Dover Beach' wherein he refers to those 'Swept with confused alarms of struggle and flight/Where ignorant armies clash by night.' "

Justice Rehnquist then went on to "take the liberty of stating my understanding" of what had taken place. When he became chief justice, he streamlined the conference considerably, and justices rarely came away with any doubt about what had occurred.

Running the conference is only one of a chief justice's many functions that are not visible to the public. Indeed, the job is somewhat like an iceberg, with much of it below the surface. And it is confusing: there is no one place to look for a definitive description of the job.

The modern chief justiceship is "a mix of custom, practice and statute," according to Judith Resnik, a professor at Yale Law School who has made a close study of the federal judiciary and the role of the chief justice in particular. In an interview on Monday, Professor Resnik noted that there were dozens of federal statutes that mention the chief justice, with "half a dozen that really matter." The Constitution itself did not even establish the office except by implication, mentioning it only in connection with presiding over impeachment trials conducted by the Senate.

"It's basically a role that has developed over the 20th century, as the federal judiciary has developed into a kind of administrative agency," Professor Resnik said. For example, Chief Justice Burger established, and Chief Justice Rehnquist continued, the practice of issuing an annual "state of the judiciary" report to give voice to the concerns of federal judges and the chief justice's own priorities.

The chief justice presides over a corps of some 2,000 federal judges, including 1,200 with life tenure and the rest, including magistrate and bankruptcy judges, who serve for fixed terms. The judicial branch includes a staff of 30,000, with the chief justice picking the most important central administrators, and runs on an annual budget of $5.4 billion. The chief justice also picks the members of important policy-making judicial committees and of specialized courts, including the 11-member Foreign Intelligence Surveillance Act Court, which issues special national security surveillance warrants.

In addition, the chief justice leads the Judicial Conference of the United States, a group of judges who make policy for the federal courts and who present the judiciary's views to Congress. The Judicial Conference has its roots in an organization created by Congress in 1922 at the behest of Chief Justice William Howard Taft, the former president, who carved out an active policy role for the chief justice. He shaped the modern court by lobbying successfully for legislation to give the court discretion in choosing which cases to hear.

As a student of American history, Judge Roberts may find none of this a surprise. Nor is it a surprise that Professor Resnik and other scholars are beginning to ask whether this array of powers, having grown bit by bit over the years, with hardly anyone noticing, really belongs in the hands of a single, unelected, life-tenured official.

"As a democracy, we generally don't believe that power should be centralized in one person for so long," she said, while offering the concededly audacious suggestion that the chief justiceship might rotate every four years or so.

Perhaps that is a conversation that might move from the recesses of the legal academy to the public, sometime during the 25 or 30 years that Chief Justice Roberts would be likely to serve.

* Copyright 2005 The New York Times Company

Important Rhenquist Decisions

Supreme Court Justice Rehnquist's Key Decisions

washingtonpost.com Staff
Sunday, September 04, 2005

June 23, 2005: Kelo v. City of New London
Chief Justice William H. Rehnquist dissents from an opinion that allows local governments to force property owners to sell and make way for private economic development when officials decide it would benefit the public, even if the property is not blighted and the new project's success is not guaranteed.


May 31, 2005: Arthur Andersen LLP v. United States
The court unanimously overturns the 2002 criminal conviction of Enron Corp.'s accounting firm.

Dec. 10, 2003: McConnell v. Federal Election Commission and other FEC cases
The court endorses the key provisions of the McCain-Feingold campaign finance law, issuing a strong affirmation of Congress's authority to regulate the flow of money in politics.


June 23, 2003: Grutter v. Bollinger, Gratz v. Bollinger

Affirmative Action for Diversity Is Upheld

May 27, 2003: Nevada v. Hibbs
Rehnquist rules that state workers have the right to sue their employers over violations of the Family and Medical Leave Act of 1993.

March 5, 2003: Ewing v. California and Lockyer v. Andrade
Rehnquist votes in favor of California's "Three-Strikes" law, as the court decides that long prison terms are legal for multiple offenders.

Jan. 5, 2003
Rehnquist, in his year-end report, warns of a crisis in federal courts and calls for an increase in judicial salaries and reform of the judicial nominations process.

June 27, 2002: Zelman v. Simmons-Harris
Rehnquist writes the majority opinion of a divided court, which upholds a Cleveland school voucher program that provides scholarships to send children to religious or private schools.


Dec. 12, 2000: Bush v. Gore
Rehnquist votes with four other justices in favor of George W. Bush, the key decision that settled the 2000 election and made Bush the 43rd president of the United States.

June 28, 2000: Stenberg, Attorney General of Nebraska v. Carhart and Hill v. Colorado
Rehnquist votes against down a Nebraska law banning "partial birth" abortions; he votes with the majority to uphold abortion clinic protest restrictions.


June 26, 2000: Dickerson v. United States
Rehnquist, court reaffirms the landmark ruling that police have to inform criminal suspects of their rights.

High Court Upholds Miranda Rights, 7-2

June 24, 1999: Alden v. Maine
Rehnquist joins with the majority in a divided ruling that people seeking to enforce a federal right cannot sue state governments.

Jan. 7, 1999
Rehnquist presides over the impeachment trial of President Bill Clinton.

October 1998
Rehnquist publishes "All the Laws But One: Civil Liberties in Wartime."

May 27, 1997: Clinton v. Jones
A unanimous court rules that a private civil lawsuit against a sitting president can proceed.

June 24, 1997: Agostini v. Felton
Rehnquist joins O'Connor in allowing public school teachers to provide remedial education in parochial schools.


April 26, 1995: U.S. v. Lopez
Rehnquist writes a majority opinion that invalidates a congressional ban on guns near schools and limits Congress' authority to regulate commerce.

Jan. 25, 1993: Herrera v. Collins
Rehnquist, court cut back the rights of criminal defendants, ruling that condemned prisoners who have exhausted their appeals and then produce new evidence that could prove their innocence have no right to be heard by a federal court.

June 29, 1992: Planned Parenthood of Southeastern PA v. Casey
Rehnquist dissents as the court declines to eliminate abortion rights in a 5-to-4 vote.

May 1992
Rehnquist publishes "Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson."

June 11, 1990: United States v. Eichman
Court rules that flag burning is protected by the First Amendment. Rehnquist dissents.

June 11, 1990: Texas v. Johnson
Rehnquist dissents, as the court protects a citizen's right to burn a flag.

June 29, 1988: Morrison v. Olson
Rehnquist delivers the court's opinion upholding Congress' right to create an independent counsel.

September 1987
Rehnquist publishes "Supreme Court: How It Was, How It Is."

April 22, 1987: McCleskey v. Kemp
Rehnquist joins with the court in upholding capital punishment.

Sept. 26, 1986
Rehnquist is sworn in as Chief Justice.

June 4, 1985: Wallace v. Jaffree
Rehnquist dissents from the court's decision that moments of silence in public school are unconstitutional because it promotes prayer.

June 28, 1978: University of California v. Bakke
Rehnquist joins four justices in maintaining that federal law does not permit a university's consideration of race in admissions.

July 2, 1976: Gregg v. Georgia
Rehnquist, court refuse to rule that capital punishment is unconstitutional in all circumstances, upholding a new generation of state death penalty laws.

Jan. 22, 1973: Roe v. Wade
Rehnquist dissents in Roe v. Wade, in which the majority based a woman's right to an abortion on a constitutional right of privacy.


June 29, 1972: Furman v. Georgia
Rehnquist dissents from the Supreme Court conclusion that many state laws on capital punishment are capricious and arbitrary and therefore unconstitutional.


Jan. 7, 1972
Rehnquist is sworn in as an associate justice.

Oct. 21, 1971
President Nixon nominates Rehnquist as an associate justice.

© 2005 The Washington Post Company

Unexpected Consequences

THE NATION
Two Registered Sex Offenders Are Slain
Police in Bellingham, Wash., suspect a man who posed as an FBI agent. The case renews concerns about laws to register such criminals.
By Tomas Alex Tizon
Times Staff Writer

September 4, 2005

BELLINGHAM, Wash. — The three men who lived in the light-green house on Northwest Avenue hardly ever spoke to neighbors, but the neighborhood knew all about them: their names, backgrounds and crimes.

The men were registered sex offenders.

Police had notified residents when the first of them moved into the quiet Columbia neighborhood, north of downtown, about three years ago. Schools handed out fliers warning students of their presence.

Late Aug. 26, two of the men were shot to death in their home while the third was away at work. Police say the killer, still at large, had knocked on their door claiming to be an FBI agent warning of an Internet hit list.

On Wednesday, the local newspaper received a letter from someone claiming responsibility for the slayings and threatening to kill all Whatcom County sex offenders designated as Level III, considered the most likely to commit similar crimes again.

Now, as Bellingham police investigate what appears on the surface to be a case of vigilantism, local leaders and activists have renewed the debate over the 1990 state law requiring sex offenders to register their addresses.

The victims' address had long been posted on the city's website.

"If this is a case of revenge or vigilantism, then it brings to light the question, 'Are there unintended consequences of this well-intentioned law?' " said Bellingham Mayor Mark Asmundson, an attorney.

Washington was the first state to pass such a law, which is intended to help the public keep track of dangerous sexual predators. In 1994, Congress mandated that states create registers of sex offenders. Now all 50 states have their own version of Washington's Community Protection Act.

Such monitoring and public notification have made it difficult for many sex offenders to find places to live once released from prison. In one highly publicized case in 1993, a sex offender notified authorities of his plan to move into a family home south of here, in Snohomish County. Before he could move in, someone burned the house to the ground.

Many databases provide the general location of sex offenders, but Bellingham and Whatcom County websites provide exact addresses with photos of the offenders and descriptions of their crimes.

Whatcom County, a mountainous, mostly rural region about 75 miles north of Seattle, has 31 registered Level III offenders. Bellingham, the county seat, had six Level III offenders in a population of 71,000.

Among them were Hank Adolf Eisses, 49, convicted of child rape; Victor Manuel Vasquez, 68, convicted of child rape and molestation; and James Russell, 42, released a month ago after serving time for child molestation.

Eisses owned the house on Northwest Avenue and rented rooms to the other two. The house is a small, boxy cottage with a white picket fence and a well-tended yard. Across the street is a home-turned-law office. Police said the three men had been law-abiding since moving into the neighborhood. Neighbors said the men kept to themselves.

"Everybody knew they were there, but they didn't talk to us and we didn't talk to them," said Angel Gonzalez, 16, who lives with his mother two houses away. "I always saw them walking by. That's my bedroom. I see everything that passes my window. They'd walk by and then come back holding [grocery] bags."

Gonzalez said there was talk in the neighborhood about "something happening to them," but the murders shocked him.

It was a quiet Friday night about 9 p.m. when a white man in his late 40s and wearing a blue jumpsuit and black baseball cap with an FBI logo knocked on the door of the house, according to police.

The man said he was there to warn the three about the hit list. Soon after, with the man still at the house, Russell left for work. When he returned about 3 a.m., he found Eisses and Vasquez dead of gunshot wounds. Police have discounted Russell as a suspect because it was confirmed that he was at work during the estimated time of the deaths. Neighbors also reported seeing the man with the FBI cap at the house.

Eisses and Vasquez had committed their crimes in Whatcom County, and some city employees speculated that one motive could be revenge rather than random vigilantism. Police have refused to disclose more details of the case.

"We haven't ruled out any motive," said Lt. Craige Ambrose. At the same time, he said the department was warning all local Level III sex offenders of the death threat relayed by the Bellingham Herald newspaper.

Earlier in the week, Police Chief Randall Carroll told the Seattle Times that "if sex offenders were targeted and attacked because of their offense, the Legislature could decide they could repeal our sex-offender notification law."

Retired law professor John Q. La Fond said that would be the correct course of action. La Fond, who was on the faculty at the University of Missouri-Kansas City, argued on behalf of the American Civil Liberties Union against the state's notification law. He said public notification virtually "invites society to take the law into their own hands."

La Fond said research showed that public notification laws did not prevent sexual violence or make sexual crimes easier to solve. He called the laws "symbolic but futile gestures" made by a society groping for a way to deal with a complex problem.

State Sen. Dale Brandland, a Republican from Whatcom County and a former county sheriff, said there was virtually no possibility that Washington's notification law would be repealed as a result of the murders. Given the climate of anxiety regarding sexual predators, he said, the Legislature might even make notification laws more stringent.

Brandland referred to the recent case of Joseph Edward Duncan III, a 42-year-old convicted sex predator from Tacoma, Wash., who is being investigated in the deaths of six children and two adults across four states, including California. Duncan is being held in Kootenai County, Idaho, in the murders of four people and the kidnapping of two children in May near Coeur D'Alene, Idaho.

"People here were outraged that he was loose and that terrible crime was allowed to happen," Brandland said.

"If there was any kind of leaning by the public, it would be to make the law stricter and to make it even tighter for sex predators. There's very little sympathy for people who prey upon defenseless children."

Asmundson, the mayor, said friends in Bellingham had told him, "Too bad they didn't get the third one."

There's been a trickle of sympathy for Eisses and Vasquez. Although the city has held no public memorials for the slain sex offenders, some people have dropped off bouquets of flowers and handwritten cards at the front gate of their house. On one blank sheet of paper next to a wilting orchid, someone had scrawled the words, "It is wrong to kill. The end."

Must Judges Issue Rulings

This article raising the important issue of whether judges are required to follow the law despite personal beliefs on the subject before them.

The New York Times
September 4, 2005
On Moral Grounds, Some Judges Are Opting Out of Abortion Cases
By ADAM LIPTAK

MEMPHIS - A pregnant teenager went to the grand and imposing county courthouse here early in the summer, saying she wanted an abortion. The circuit court judge refused to hear the case, and he announced that he would recuse himself from any others like it.

"Taking the life of an innocent human being is contrary to the moral order," the judge, John R. McCarroll of Shelby County Circuit Court, wrote in June. "I could not in good conscience make a finding that would allow the minor to proceed with the abortion."

The teenager was in court because Tennessee, like 18 other states, requires minors to obtain a parent's permission before they can have an abortion.

But the state also allows another option. The teenagers can ask a judge for permission to decide for themselves.

Judges, however, are starting to opt out. Other judges of the Shelby Circuit Court have recused themselves like Judge McCarroll, and now, according to one judge, only four of the nine judges on the court hear such abortion applications.

Judges in Alabama and Pennsylvania have also said they will not take such cases.

The actions, similar in some ways to pharmacists' refusal to dispense drugs related to contraception or abortion on moral grounds, have set off a debate about the responsibilities of judges and the consequences of such recusals, including political ones when judges are elected rather than appointed.

Judge McCarroll's decision prompted 12 experts on judicial ethics to write to the Tennessee Supreme Court in late August. The experts called his action lawless and said they feared that his approach could spread around the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce.

"Unwillingness to follow the law," the letter said, "is not a legitimate ground for recusal."

Helena Silverstein, who teaches government and law at Lafayette College in Easton, Pa., and has studied how parental-consent laws work, said those experts might be right in the abstract. But Professor Silverstein wondered about the consequences of forcing judges to act.

"If you require judges to hear these cases when they are morally and, maybe, religiously opposed to abortion," she said, "they are likely to impose their views on the minor. And that happens."

There are no comprehensive national statistics for abortion applications from minors, and Tennessee, like most states, does not collect them.

Van Sturdivant, the chief administrative officer of the court here, said its judges had heard 14 applications since January, when the juvenile court judge who ordinarily deals with them began a medical leave. Mr. Sturdivant said he could not say how many applications were granted, citing the secrecy of the proceedings.

In Alabama, according to statistics compiled by Professor Silverstein, women younger than 18 had abortions with parents' permission 16,000 times in the 12 years ending in 1999. In the same years, minors had 200 abortions after judges granted bypass applications. Information on denied applications was not available.

The president of Memphis Regional Planned Parenthood, Barry Chase, said it was too soon to evaluate the effects of the recusals here.

"It's probably more difficult for a young woman" to obtain a judge's permission to make her own decision, Mr. Chase said.

In addition to the states that require a parent's permission, 15 states require that a parent be notified before a minor's abortion, according to the Alan Guttmacher Institute, a research and advocacy group that supports abortion rights. All but one notification state also allow minors to seek a judge's permission not to tell a parent. The exception is Utah.

One issue in recusals in these abortion cases is the workload of the court. Judge D'Army Bailey, another judge on the circuit court here, said in an interview that he had been hearing more than his share of minors' applications since Judge McCarroll and other judges began recusing themselves. Judge Bailey said he had considered "three or four" applications since June and had granted all of them. The proceedings are secret, to protect the minors' privacy.

"I can see good reasons why a teenager would not want to be saddled at that early age with having and raising a child," Judge Bailey said. "It can create a blueprint for disaster for both the mother and child."

He said he put aside his personal views in hearing the applications.

"I didn't swear to uphold all of the laws of Tennessee except for X, Y and Z," Judge Bailey said. "You're sworn to uphold the law whether you agree with it or not."

He said he worried that the varying approaches of the judges at his court could have political consequences.

"I hope that how I handle these questions of allowing these young women to get abortions does not lead to my defeat in the next election," in 2006, he said. "If it does, so be it. I can't keep a job constantly fearing that I'm going to lose it."

Judge McCarroll was on vacation and did not respond to several requests for an interview through the court, his clerk and an e-mail message. In his statement, he said that recusal was not only appropriate, but also required.

"A judge should recuse himself or herself," he wrote, "if there is any doubt about the judge's ability to preside impartially or if the judge's impartiality can reasonably be questioned."

Although only Judge McCarroll has said so publicly, four other judges on the nine-judge court have also declined to hear applications, Judge Bailey said. The other judges declined to comment or did not respond to requests for interviews.

There is reason to think that judges in Alabama and Pennsylvania have also recused themselves from bypass proceedings on moral grounds, Professor Silverstein said.

In counties with a single judge, she added, that meant that teenagers had to travel to another county to find a judge to hear their applications.

Prof. Susan P. Koniak, who teaches legal ethics at Boston University and signed the letter to the Tennessee Supreme Court, said judges were free to express their moral disagreement with a law but were not free to decline to enforce it.

"I expect them to bring their moral sense to a case," Professor Koniak said in an interview. "But the law comes first."

Judge McCarroll's sole lawful options, the law professors' letter said, are to enforce the law or resign from the bench.

A spokeswoman for the Tennessee court system, Sue Allison, said the Tennessee Supreme Court would not act on the letter. Ms. Allison said the professors could file a formal complaint with the Tennessee Court of the Judiciary, which investigates cases involving judicial ethics and can sanction judges.

Professor Koniak said she and her colleagues would consider whether to take that step.

Abortion applications by minors are typically brief, Professor Silverstein said, often taking a half-hour.

Judge Bailey said that teenagers were sometimes accompanied by a brother or grandmother and that they gave him what he said were good reasons for keeping their decisions from their parents.

"One felt it would place too much stress on her mother," the judge said. "One felt it would damage her relationship with her mother so badly that the damage would be irremediable."

* Copyright 2005 The New York Times Company

Terms that you will hear during Confirmation Process and what they mean

Posted on Thu, Sep. 01, 2005


Guide to legal terms in Supreme Court hearings

BY STEPHEN HENDERSON
Knight Ridder Newspapers

WASHINGTON - (KRT) - Many Americans will watch the confirmation hearings for Supreme Court nominee John G. Roberts, which begin Tuesday, expecting to learn what he thinks about hot topics such as abortion, affirmative action and the environment.

But judicial confirmations are less about policy than the law, and a fairly technical discussion of constitutional law at that.

With that in mind, what follows is a quick guide to some of the terms that will come up repeatedly during the hearings, along with their definitions, the court's current thinking about them and how they relate to the issues people care about.

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"Originalism" vs. "Living Constitution"

What are they? The two pre-eminent theories of constitutional interpretation.

Originalists see the constitution through the prism of the founders' specific words and intent. They would oppose abortion rights, for example, because the Constitution says nothing about them. Those who believe in a living Constitution say it must be interpreted according to modern legal and cultural standards.

The Rehnquist court: The court has only two justices who can be called originalists, Antonin Scalia and Clarence Thomas, and they're the most frequent outsiders in rulings. President Bush cites them as his favorites and calls their approach "strict constructionism." The court has resisted strict originalist interpretation in the vast majority of cases, most notably last term when the justices ruled that executing minors is unconstitutional because of evolving standards.

The questions: Roberts has said he isn't a devout adherent to any school of constitutional interpretation, but Senate Democrats will press him to distance himself from Thomas and Scalia.

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Federalism

What is it? The balance of power between the states and the federal government, as outlined in the Constitution. In the last few decades, it's also come to describe a movement - chiefly among conservatives - aimed at deferring more to the states' role in that relationship.

The Rehnquist court: A willing, if sometimes inconsistent, advocate of federalism, the Rehnquist court has drawn liberal ire for striking down or curtailing more acts of Congress than any court in history.

The questions: On everything from civil rights and disability law to economic regulation and criminal law, federalism's advocates say states' authority is being trampled by unconstitutional federal action. Senate Democrats will try to discern how closely Roberts' views align with that.

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"Due process" and "Substantive due process"

What are they? The due-process clauses of the Constitution ensure that citizens' legal rights are protected when the government seeks to deprive them of life, liberty or property. They're a procedural restraint on government action. But the court also has long recognized that the idea of due process prevents the government from infringing on certain rights altogether, such as the right to marry, the right to raise children and sexual privacy. Those rights are covered by what's called substantive, rather than procedural, due process.

The Rehnquist court: Like all courts before it, the Rehnquist court has struggled to define where procedure ends and substance begins for due process. Notably, though, it was the first high court to recognize sexual privacy under substantive due process, giving gay citizens formidable protection from discrimination.

The questions: The battle over procedural versus substantive due process is one of the pivotal legal arguments, because it's a proxy for discussions about which rights are constitutionally protected and which aren't. Conservatives, for example, argue that the court has gone overboard with "rights creation," largely through substantive due process. Liberals say those rights are understood in the constitution's general guarantees of liberty. Roberts will be asked to give his view on the scope of individual rights, and how the high court should interpret them.

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Roe v. Wade and the right to privacy

What are they? Roe v. Wade is the 1973 ruling that prohibited states from outlawing abortion. It's based on the right to privacy, which the court has recognized since 1965 as one of the Constitution's "unenumerated" rights. It's not mentioned in the text, the court said, but it falls under a "penumbra" of rights associated with liberty.

The Rehnquist court: While the court has embraced some abortion restrictions, such as parental notification, it hasn't managed to overturn Roe itself or substantially curtail the right to privacy. Even without Sandra Day O'Connor, there are five votes to uphold Roe.

The questions: The right to privacy is perhaps the most controversial right of substantive due process, given its connection to the abortion issue. Conservatives want to roll back Roe and the right to privacy, but haven't been successful despite a 7-2 Republican advantage on the high court. Roberts probably won't be asked about Roe v. Wade directly, because judicial nominees for the past decade have refused to share their views on it. But when he's asked about the right to privacy, Senate Democrats will take his answers as a proxy for his views on abortion.

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The commerce clause

What is it? The provision of the Constitution that gives Congress - and Congress alone - the right to regulate interstate commerce.

The Rehnquist court: The court, like most in history, has a mixed record on this issue. It's reined in Congress' ability to stretch its commerce-clause powers to regulate areas only tangentially connected to commerce. It struck down a law that made gun possession near any school a federal crime, because Congress didn't require proof that the guns had been sold or carried across state lines. But it's also said the Controlled Substances Act could be employed to prevent the use of medical marijuana that's grown and sold within one state.

The questions: The commerce clause is Congress' hook into many of the social issues it deals with, including civil rights, the environment and even domestic violence. Conservatives tend to take a dim view of that kind of regulation, and have complained that Congress' appetite for regulation has outgrown its constitutional bounds under the commerce clause. When senators ask Roberts about the commerce clause, they're trying to determine how permissive he might be concerning congressional power to shape American life.

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The establishment and free exercise clauses

What are they? The two religion clauses of the First Amendment. The establishment clause prohibits government adoption or endorsement of specific religious beliefs; the free-exercise clause prohibits government from infringing on the individual right to practice those beliefs.

The Rehnquist court: The court has a mixed record on these issues, focusing intently on very narrow distinctions: striking down public school-graduation prayers while upholding vouchers for religious schools; embracing Ten Commandments monuments that have a nonreligious context, while rejecting others with specific religious intent.

The questions: O'Connor, whom Roberts will replace, was a pivotal vote on church-state issues and devised the court standard for acceptable government interaction with religion. The tension between personal religious freedom and government endorsement is an ongoing and tense battle on the court as well as in the country. Senate Democrats will try to determine how Roberts, who's expressed more permissive views of government acknowledgement of religion, might bring a different perspective to the court.

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Standing

What is it? The doctrine that determines under what circumstances plaintiffs may sue in court.

The Rehnquist court: The court has been aggressively limiting access to federal courts, requiring specific foundations for a suit in the Constitution or a congressional act.

The questions: Access to courts is an issue that touches on many areas of law that are dear to liberal hearts. Environmental suits, for example, can easily be attacked on the grounds that private citizens have no standing to sue to protect certain endangered species. Suits against states under many civil rights laws also can be vulnerable when Congress fails to specifically enable them. In a law review article in the early 1990s, Roberts endorsed a very limited view of standing, casting doubt even on whether Congress could grant it. Senate Democrats will press him on the issue.

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© 2005, Knight Ridder/Tribune Information Services.

The unseen costs of Katrina

Thursday, September 01, 2005

Louisiana legal system devastated by Hurricane Katrina
Jamie Cortazzo at 11:36 AM ET

[JURIST] Among many other things, Hurricane Katrina has devastated the legal system [AP report] in New Orleans, causing major disruption of legal services across the state of Louisiana and beyond. The storm has interrupted business in local courts [US District Court bulletin], including the state Supreme Court, although the extent of damage to its building on Royal St. in the French Quarter is unclear. Also ravaged by the storm, the US Court of Appeals for the Fifth Circuit is currently making plans to relocate [Texas Lawyer report] to a city close to New Orleans so business can continue. Its website contains instructions [PDF text] for attorneys and litigants to follow during the emergency.

New Orleans lawyers - approximately one-third of all the lawyers in Louisiana - have lost all their files and are unable to access their offices. The American Bar Association [group website] has offered the help of the ABA Young Lawyers Division and lawyers from several other ABA sections to assist Katrina victims [ABA press release] with insurance claims, home repair contracts, wills, and similar issues. Additionally, the Louisiana Committee of Bar Admissions is flooded and it is possible that the July state bar exams, scheduled to be reviewed in two weeks, have been destroyed.

In other law-related news, the two law schools in New Orleans have been severely disrupted and are struggling to maintain contact between students and faculty at what was to have been the start of their fall terms. Tulane Law School has set up a temporary emergency website under the auspices of Atlanta's Emory Law School to share information over the upcoming weeks. Read an official announcement from Dean Larry Ponoroff. Ponoroff has already authorized other US law school deans to accept any Tulane 3Ls who contact them as transient students for the semester. A post-hurricane blog has been established for the Loyola-New Orleans Law School community.

12:49 PM ET - A spokesman for the federal judiciary [official website] said Thursday that Congress must pass emergency legislation next week to allow federal courts based in New Orleans to move to a different location. Current law does not allow district courts to operate outside of their geographic area. AP has more.