Vol. 13, Nos. 47 & 48
Covering Cases Published in the Advance Sheets through Nov. 27, 2006

Is The Great Writ Being Legislated to Death?

Capital Punishment: Implementation of Death by Lethal Injection Held Cruel

Noteworthy Evidence Rulings

Discovery Order Reversed in Selective Prosecution Case Based on Race

The Career Offender Guidelines and Booker


Hamdan v. Rumsfeld, No. 04-CV-1519 (JR) (D.D.C. Dec. 11, 2006) (Judge Robertson)

In Hamdan v. Rumsfeld, 126 S.Ct. 2749 (June 29, 2006) (Hamdan I) (P&J, 05/29/06), a sharply divided Supreme Court held that President Bush did not have the legal authority to set up military tribunals at Guantánamo Bay to try the detainees being held there on terrorism charges, and that those military commissions violate the “Rule of Law.”

In response to that ruling, Congress quickly passed the Military Commissions Act of 2006 (“MCA”), which not only established a new set of procedures for trying enemy combatants, it also stripped the federal judiciary of the authority to hear challenges from such detainees, by denying access to the courts to "aliens" who are accused by the president of being terrorists or "unlawful combatants." At the time, critics of the MCA in the Senate argued that this provision was written so broadly that it took away from the nation's legal immigrants the traditional right of habeas corpus. (For more information on the MCA, see our special Military Commission Act Web page at fedcrimlaw.com/members/anti-terrorism/MilitaryCommissionsAct/Index-MCA.cfm).

In the first ruling by a Federal court on the constitutionality of the MCA, Judge James Robertson held that Congress had not validly suspended the historic writ of habeas corpus when it enacted the MCA; but he also found that Congress had legally ordered the dismissal of all pending habeas cases filed in U.S. federal courts by foreign nationals being held by the U.S. military. Judge Robertson also ruled that the petitioner, Salim Ahmed Hamdan (a Yemeni citizen who was captured in Afghanistan and who is alleged to be the onetime driver to Al Qaeda leader Osama bin Laden) had no constitutional right to challenge his detention in the federal courts, since he was an alien at the time of his capture with no voluntary ties to the U.S. Judge Robertson wrote:

"Congress's removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus. Hamdan's habeas petition must accordingly be dismissed for want of subject matter jurisdiction."

Judge Robertson’s ruling is significant, since it was his ruling, back in 2004, that President Bush’s order creating the war crimes tribunal was invalid, which led to the Supreme Court’s decision in Hamdan I. As a practical matter, Salim Hamdan will now probably face a war crimes trial before the newly established military commission; and many more legal challenges are expected after he is found guilty by the new military commission, as he certainly will be.

Probably the most intriguing aspect of Judge Robertson’s decision was his discussion of the suspension of the writ of habeas corpus. Judge Robertson agreed that Congress has the legal power to close U.S. courts to detainees at Guantánamo Bay. But he also noted that the Constitution protects the right of habeas corpus for anyone living in the United States; and he noted that this right may only be "suspended" during times of "rebellion or invasion."

He then emphasized that "Neither rebellion nor invasion was occurring at the time the MCA was enacted," and he observed that Congress did not claim otherwise. "Thus, the Great Writ has survived the Military Commissions Act," and any effort to block a person from going to court in this country "must be unconstitutional," he concluded.

Judge Robertson also did not rule on a broad array of constitutional issues that Hamdan's lawyers had raised when the case returned to him from the Supreme Court. For example, having found that Congress had withdrawn his jurisdiction to continue to review Hamdan's habeas case, Judge Robertson said he would express no view on whether Congress had provided an adequate substitute for habeas review, whether Congress had acted unconstitutionally in barring judicial enforcement of the Geneva Conventions on treatments of prisoners, whether the MCA is an invalid form of legislative punishment (a "bill of attainder"), or whether it violates constitutional guarantees of legal equality.

For an interesting commentary on this decision, see “The Bush Administration Wins a Round on Military Commissions, But the District Court Ruling May Have a Silver Lining for Detainees,” by Prof. Michael C. Dorf, as published on FindLaw’s Writ on Dec. 18, 2006.


Evans v. Thompson, Civ. No. 04-12205 (WGY) (D. Mass. Dec. 11, 2006) (Judge Young)

In this lengthy decision, Judge Young has produced another in a long list of signature masterpieces. (See, e.g., U.S. v. Kandirakis, 441 F.Supp.2d 282 (D.Mass. 2006) (P&J, 07/10/06); and U.S. v. Green, 346 F.Supp.2d 259 (D.Mass. 2004) (P&J, 05/31/04). Here, in the context of a relatively mundane case - an attempt by the petitioner, Jimmy Evans, to gain Federal habeas review of his state court conviction for murder - Judge William Young has written another significant and powerful ruling - a detailed and thought-provoking call to arms that details the demise of two of the most historically significant bulwarks of the American judicial system: the Great Writ of Habeas Corpus and the role of the American jury.

Among other arguments, Evans challenged the constitutionality of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), claiming that “the statute's restrictions constitute a suspension of the writ, substitute a new remedial regime that differs from United States Constitution, Article I, section 9, clause 2 and also violates the Due Process Clause by failing to protect the freedom from bodily constraint.” Evans also claimed that "Article III prohibits federal court deference to state court rulings on interpreting and applying federal law."

In the end, Judge Young concluded that Evans’ constitutional challenges “are foredoomed to failure”; but not before he also concluded that “the Great Writ is no longer.”

With patience and scholarship, Judge Young traced the recent and accelerating drive by Congress to strip the courts of their power to intercede against the tyranny of Executive and the ill-thought, politically-motivated ramblings of a Legislative Branch gone haywire. Here are a few samples from this must-read decision:

“In recent years, successive Congresses have expressed their displeasure with the courts by consistently narrowing the protections of the Writ and stripping the courts of their jurisdiction to entertain habeas issues. AEDPA is only one of a number of such legislative rebukes. . . . More recently, Congress enacted the Real ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302, stripping the district courts of habeas jurisdiction over alien removal orders. Most recently, the Supreme Court declared that our captives in Guantanamo, some of whom apparently have been the victims of torture, may avail themselves of the privilege of habeas corpus, Hamdan v. Rumsfeld, 548 U.S. , 126 S. Ct. 2749, 2764 (2006), and Congress promptly suspended the Writ as to these captives and ousted all the courts from affording collateral judicial review. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, 2623-24.” (Footnotes and internal citations omitted).

In one footnote, he stated:

It would be difficult to overstate the moral force of the Hamdan decision (or the need for the Great Writ):

[O]n June 29, 2006. . . . the [Supreme] Court said something profound about America. A man with a fourth-grade education from Yemen, accused of conspiring with one of the world's most evil men, sued the most powerful man in the nation (if not the world), took his case to the highest court in the land, and won. The Court's profound commitment to the rule of law is a beacon for other countries around the world. In no other country would such a thing be possible.

The Hamdan decision reflects the genuine promise of America--a promise embodied in the words of Justice Rutledge, dissenting in the last great military commission case, In re Yamashita [327 U.S. 1 (1967)]:

More is at stake than General Yamashita's fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law. In this stage of war's aftermath it is too early for Lincoln's great spirit, best lighted in the second inaugural, to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become too late.

This long-held attachment marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered. [Id. at 41-42 (Rutledge, J., dissenting)]

In this decision, Judge Young also examined the demise of the role of the jury in America, stating at one point: “The American Jury system is withering away. This is the most profound change in our jurisprudence in the history of the Republic. As district judges, we ought be in the forefront of a national debate concerning this matter. We are not. In fact, we operate as though we don't much care.”


Morales v. Tilton, No. 5:06-cv-00219-JF (N.D.Cal. Dec. 15, 2006) (Judge Fogel)

This is another death penalty case. However, in crafting this “Memorandum of Intended Decision”, Judge Fogel made clear:

“This case is not about whether the death penalty makes sense morally or as a matter of policy: the former inquiry is a matter not of law but of conscience; the latter is a question not for the judiciary but for the legislature and the voters. Nor is it about whether California's primary method of execution--lethal injection--is constitutional in the abstract: the arguments and evidence presented by the parties address the specific manner in which California has implemented that method and proposes to do so in the future. Nor is it about whether the Constitution requires that executions be painless: binding precedent holds that the Eighth Amendment prohibits only "the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (plurality opinion), and procedures that create an ‘unnecessary risk’ that such pain will be inflicted, Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004). . . .

“In fact, this case presents a very narrow question: does California's lethal-injection protocol--as actually administered in practice--create an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment?

To that narrow question, Judge Fogel ruled that California’s lethal-injection procedure is “intolerable” and “broken” and, as presently administered, it violates the Eighth Amendment’s ban against cruel and unusual punishment. He wrote that

“Defendants' implementation of California's lethal-injection protocol lacks both reliability and transparency. In light of the substantial questions raised by the records of previous executions, Defendants' actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation.”

As one example of the callous indifference of the California Department of Corrections to its flawed procedures, Judge Fogel cited the execution of Stanley Tookie Williams, which state officials admitted had been “bungled.” Despite that admission, one member of the execution team described Williams’ execution as nothing more than “shit does happen, so.”

In sum, while Judge Fogel’s decision is not a ruling that the lethal injection method of execution is per se unconstitutional, it is a strong and well-documented condemnation of the sloppiness of the implementation of the death penalty in California, including such matters as the lighting, design, and crowdedness of the room in which the execution occurs; the recordkeeping procedures used during executions; the procedures for screening of members of the execution team; and the training and oversight of the team. His decision also demands the state to inform him within 30 days whether and how it plans to change its execution procedures in light of his findings.

For some interesting perspectives on this decision, see "Major California ruling on lethal injection protocol," by Prof. Doug Berman, as posted on Sentencing Law and Policy, on Dec. 15, 2006.

 


“Sexually Dangerous Persons”


In the January 2, 2007 edition of his CJA News, David Beneman the Federal Defender from Maine has provided a wealth of information about the Federal Government’s latest officially designated category of enemies of the state - namely persons who are designated as “Sexually Dangerous Persons” (SDPs) pursuant to the provisions of the recently enacted 18 U.S.C. § 4248.

The SDP designation is the latest concoction of Congress in its battle to devise new weapons for the ever expanding fight against pornography and child-sex crimes. The SDP designation was given birth in the 83-page long Adam Walsh Child Protection and Safety Act of 2006, one of those election year wonders that Congress hastily passed, with little debate, this past summer. (See P&J, 09/11/06).

As Mr. Beneman explained in his newsletter, the “BOP has a new tool authorized this summer as part of the Adam Walsh Act. [The] BOP may now ‘certify’ inmates as ‘sexually dangerous persons.’ Certification can occur prior to sentencing, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence.” Then, with undisguised understatement, he warns: “We will all need to pay attention to the risk of this new federal SDP designation.”

Later in his newsletter, Mr. Beneman gives some examples of his concerns: “We need to be advising clients charged with sex offenses or with any hint of sexual impropriety in their record that anything they disclose in the sentencing process, or in sex offender or substance abuse ‘treatment,’ or anything they might say to a BOP counselor or caseworker may (will) be used against them for a possible SDP civil commitment under 18 U.S.C. § 4248. Advise clients on the risks of participating in any voluntary treatment program, the choice not to participate, the option of remaining silent in any mandatory management program, and the remind them of the 5th Amendment rights regarding sexual misconduct or thoughts during any interaction or conversations with BOP personnel.”

Because the inexorable expansion of Federal laws, rules, and regulations relating to persons charged with and convicted of sex offense crimes, we have established a new Sex Offense Resource Center on the Internet which contains a current and comprehensive listing of resources that we hope will be of value to the criminal defense bar. For example, we have posted on that Web page the full text of Mr. Beneman’s newsletter and its attachments.

For further information on this topic, we also recommend the Sex Crimes Blog, at http://sexcrimes.typepad.com/sex_crimes/, which is maintained by Corey Rayburn Yung, Esq. Of New York.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
90
2,547
26,385
District Courts
58
1,290
14,732

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