Archive for June 2006


June 30, 2006

I’m going out of town and I’m gonna try not to blog – at least nothing law or politics related – until I return on the fifth.

I love the Fourth of July. Hands down the best holiday. No cards to send or presents to buy, just lots of food and beer. Flag waving, Star Spangled Banner playing, fireworks exploding; damn its a good time.

So enjoy the holiday: Fly the flag and be glad you live in a country where you can burn it, watch some baseball and enjoy the Tour de France, remember our troops and raise a cold one to Hamdan, watch 1776 and listen to ol’ Ben Franklin remind us that “those who would trade their liberty for a little temporary security deserve neither liberty nor security.”


Maybe Hamdan Ain’t So Great

June 30, 2006

The good news is that Hamdan affirmed that Congress has a big role to play in the GWOT; the bad news is that Hamdan affirmed that Congress has a big role to play in the GWOT.  

As an example of Congressional wisdom and clear thinking, here is Senator Trent Lott’s view on Hamdan (emphasis added; h/t Think Progress):

I think some people are probably laughing at us. This is ridiculous and outrageous. Now in legal speak, let me say, I have not read the entire opinion, nor the dissents. But preliminarily my opinion is they probably didn’t even have jurisdiction. They shouldn’t have ruled the way they did. This is not a bunch of pussycats we’re talking about here. These are people that have made it clear in many instances that they would kill Americans if they got out. This is Osama bin Laden’s driver. And this is one other example of why the American people have lost faith in so much of our federal judiciary. This is a very bad decision in my opinion.

Now, Senator, in common sense speak, let me say, if you have not read the opinion, then you ought to STFU.

Furthermore, that you are scared of the big bad terrorists does not mean this is a bad decision. You may be willing to bend over and grab your ankles for the president every time he says “threat to national security,” but the rest of us would like some cogent explanation for his actions.

Why, exactly, will the world end if he has to follow the law and provide legal proceedings designed to discover the truth, as opposed to acting unilaterally and creating legal proceedings designed to deliver heads on platters? In either case, the guilty are punished. The difference is that in the former case only the guilty are punished. All Hamdan does is make the president provide us his reasons for choosing the latter.

If you like the explanation, you can change the law so that it no longer requires truth. The ball is in your court.

Le Tour

June 30, 2006

I am man enough to admit that I started riding a road bike because of Lance Armstrong. I’d always ridden the mountain bike, but never ‘got’ the road thing until I watched he and Marco Pantani battle it out in 2000.

Lance retired, though. So I have to find someone else to support. I had just about decided on Jan Ulrich – the Buffalo Bills of cycling – when I found out he and Ivan Basso, another favorite to win, aren’t going to be racing. What else, but doping.

The bright side is that Basso is on the same team as Dave Zabriskie. Zabriskie is an American and a very strong rider. He won last year’s opening time trial, beating even Armstrong. This year, his role would have been to support Basso. But now that Basso is out, the team ought to be Zabriskie’s.

I don’t know, maybe I’ll root for Zabriskie. Regardless of my choices, this ought be great race. Lance was awesome, but it made the whole thing seem fore-ordained. Think MJ and the Bulls in the mid-nineties. This year, anything could happen.

The Apocalypse Is Upon Us

June 30, 2006

In the news today:

Interest payments on college student loans will take a big jump Saturday, continuing the ripple effect from the Federal Reserve’s recent spurt in rate hikes that has caused borrowing costs to soar the past two years.

The rate on Stafford loans will climb from 5.3 percent to 7.14 percent. New loans issued beginning Saturday will start at 6.8 percent, according to, a Florida-based research firm. The loan rate for Plus college loans will climb from 6.1 percent to 7.94 percent. Plus loans issued starting Saturday will begin at 8.5 percent.

In my in-box on Tuesday:

[written over a fiery red mushroom cloud background and around a picture of attractive young people staring at a computer with mouths agape in shock]

This Saturday, July 1, student loan interest rates are going to EXPLODE, and they’re taking thousands of your dollars with them.

Interest rates are rising by nearly 2% this Saturday—doesn’t sound like a lot, does it? But that tiny 2%, when compounded, is going to burst into a mushroom cloud of ever-expanding debt, enveloping you and your loved ones in smothering monthly payments and detonating your dreams of financial prosperity.

There is one way to save yourself from this student loan apocalypse: Finish your consolidation application now.

As you know, student loan consolidation is a financial bomb shelter where you can lock in a low interest rate for the life of you loans, saving them from the mayhem of rising rates forever. Your friends and neighbors may be hemorrhaging cash in the flaming whirlwinds of financial “aid,” but you and your money will be safe for the remainder of your student loan repayment.

I used to say “I may be a lawyer, but at least I’m not a politician or car salesman.” I think I’ll add marketing specialist to the list.

You Know What They Say About A Man Who Represents Himself,

June 30, 2006

That he has a fool for a client.

That is the gist of this story:

A judicial panel has denied an appeal from a Colbert County death row inmate who represented himself in his capital murder trial, then appealed his conviction based partly on ineffective counsel.

Thinking the opinion would be an interesting discussion of how ineffective assistance of counsel standards apply when the ineffective counsel was the petitioner, I read the opinion. Unfortunately, the court did not reach the merits; the appeal dealt exclusively with procedural issues. The defendant – Thomas Arthur – did not file his state post conviction petition until 5 years after his conviction became final. The limit is two years, so the petition was untimely. That also barred federal habeas review.

The case, though, did raise an interesting issue. Arthur argued that the federal court should excuse the untimely state filing and hear the claim because the reason for the late filing was Arthur’s inability to find a pro-bono attorney. He could not afford counsel, and thus could not file the petition.

The Eleventh Circuit rejected the argument, stating [emphasis added]:

Such an exception is unnecessary, however, because Alabama provides for the appointment of counsel for a petitioner seeking postconviction relief.

An indigent petitioner, who desires the assistance of counsel, may seek appointment of counsel if the petitioner’s postconviction relief petition is not summarily dismissed. Ala. R. Crim. P. 32.7(c).

Similarly, an indigent federal habeas corpus petitioner, seeking relief from a judgment punishable by death, has a mandatory statutory right to appointed counsel from the district court upon filing a motion requesting such appointment. 21 U.S.C. 848(q)(4)(B), 28 U.S.C. §§ 2254(h) and 2261; 18 U.S.C. § 3006A(a)(2)(B); McFarland v. Scott, 512 U.S. 849, 858-59, 114 S. Ct. 2568, 2573-74 (1994).

They may be right to reject the exception, but I’m sceptical about their reasoning. Let’s look a bit closer at these two “similar” provisions. In Alabama, the rule for Rule 32 appointments is:

If the court does not summarily dismiss the petition, and if it appears that the petitioner is indigent or otherwise unable to obtain the assistance of counsel and desires the assistance of counsel, and it further appears that counsel is necessary to assert or protect the rights of the petitioner, the court shall appoint counsel.

So, in addition to being poor, in order to receive appointed counsel, the petitioner must: 1) file the petition; 2) convince the court it is meritorious, i.e. convince the court not to summarily dismiss it, and; 3) convince the court counsel is needed to protect the rights of petitioner.

In federal court, however, counsel is appointed when the petitioner requests it, even if that is before the petition is filed. To the uninitiated, that may not seem like a big deal, but listen to what Scotus said when they considered whether or not habeas appointments should be made like Alabama’s – only after a meritorious petition is filed [emphasis added]:

the right to appointed counsel adheres prior to the filing of a formal, legally sufficient habeas corpus petition . . . . 

This interpretation is the only one that gives meaning to the statute as a practical matter. Congress’ provision of a right to counsel under 848(q)(4)(B) reflects a determination that quality legal representation is necessary in capital habeas corpus proceedings in light of “the seriousness of the possible penalty and . . . the unique and complex nature of the litigation.” 848(q)(7).

An attorney’s assistance prior to the filing of a capital defendant’s habeas corpus petition is crucial, because “[t]he complexity of our jurisprudence in this area . . . makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law.” . . .

Habeas corpus petitions must meet heightened pleading requirements, see 28 U.S.C. 2254 Rule 2(c), and comply with this Court’s doctrines of procedural default and waiver, see Coleman v. Thompson, 504 U.S. ___ (1992). Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face, see 28 U.S.C. 2254 Rule 4, and to deny a stay of execution where a habeas petition fails to raise a substantial federal claim, see Barefoot v. Estelle, 463 U.S. 880, 894 (1983).

Moreover, should a defendant’s pro se petition be summarily dismissed, any petition subsequently filed by counsel could be subject to dismissal as an abuse of the writ. See McCleskey v. Zant, 499 U.S. 457, 494 (1991). Requiring an indigent capital petitioner to proceed without counsel in order to obtain counsel thus would expose him to the substantial risk that his habeas claims never would be heard on the merits. 

All of Scotus’s reasoning applies with equal force to Alabama. The majority of the work is done in preparing the petition: Factual investigations, reading the record and appeals, research, writing, editing. It is a task easily screwed up by a trained professional, and almost impossible for the average defendant. Never mind the complex laws, how is an incarcerated defendant supposed to conduct an investigation into the facts? Forcing them to go it alone guarantees that most petitions will be dismissed, regardless of the merits. That all but ensures the claims will never be heard, even in federal court.

So, saying, as does the Eleventh Circuit in this case, and Troy King in this editorial, that Alabama provides counsel for Rule 32 petitioners is misleading at best and dishonest at worst.

More On Hamdan

June 29, 2006

First, if you want commentary from smart people you can find it here, here, here, here, here, and here.

Second, the Court did not hold that the Geneva Conventions apply across the board to Al Quaeda and the GWOT. As I read Hamdan, only one Article of the Conventions was involved, and then only because Congress had incorporated that section into a statute.

In other words, Hamdan does not mean that GITMO detainees can go to court and argue that Dubya is in violation of the Conventions. The Court expressly refused to rule on whether or not the Conventions are judicially cognizable. They may be, but Hamdan does not say.

The reason part of the Conventions figured so large in the case was that the statute covering military commissions invoked the Convention Article as a standard for the commissions. Hence, to decide if they were up to snuff, the Court had to examine the incorporated Article.

Third, this is still a big decision. A statute laid out some requirements for military commissions. The President said he is not bound by statutes when he is acting as Commander in Chief. The Court said, “yeah you are.” So, though nothing in the decision forbids Dubya from creating kangaroo courts, it means he has to ask Congress for permission.

Hamdan’s holding that the Dubya cannot act contrary to statutes means the administration’s justifications for torture and wiretapping have also taken a big hit. In each instance, statutes prohibit the administration’s actions. In each, Dubya argued that, as CINC, he could do whatever he wanted. Scotus shot that down here, so they ought to do the same in the other instances.

Another one of the aforementioned really smart people agrees with me:

To appreciate what a severe blow this opinion struck to the broad outlines of the Bush administration’s theory of executive power, compare the Court’s holding that the President “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers” — powers which include its own “war powers” — with the authoritarian claim of unlimited power asserted in the infamous Yoo memorandum:

Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

More than anything else, the Court’s opinion today is the opposite of — a clear rejection of — the crux of the Yoo Memorandum. The Court held that Congress most certainly does have a role to play in the exercise of war powers, and that such decisions are most certainly not “for the President alone to make.”

Fourth, the truly shocking part about Hamdan is that the holding is newsworthy at all. All it says it that the president needs to act in concert with the legislature. You know “take care that the laws be faithfully executed,” rather than picking and choosing the ones he likes while ignoring the rest. Even in war, he does not get to reject Congressional mandates. The result? We all get a voice in the GWOT. Outrageous, truly outrageous.

Finally, there are already some idiots out there debating who is going to score the most political points off of Hamdan. Right now, I couldn’t give a rat’s a** about which of the two major parties will most benefit from the decision. What matters is that Hamdan was a big win for the United States, democracy and the rule of law.


June 29, 2006

I was all ready to send in my resume for U.S. Attorney. But it looks like prosecutors will keep their jobs:

Former HealthSouth CEO Richard Scrushy was found guilty on six counts of bribery, conspiracy and mail fraud in the conspiracy trial against him and former Gov. Don Siegelman.

Siegelman was found guilty on seven counts of bribery, mail fraud and obstruction of justice.