Thursday news and notes

1.  Victory for Lewis Tein and its lawyer Paul Calli.  No perjury finding by Judge Dresnick.  Bottom line is that people shouldn't rush to judgment.

2.  Tom Goldstein has gotten press creds for reporter Lyle Denniston of SCOTUSBlog.  About time.  When does this blog get press credentials?

3.  Professor Berman examines how Judge Pryor will do on the Sentencing Commission:

Some comments to the prior post direct particular criticism directed toward Judge Pryor, perhaps because he was a controversial figure when appointed to the bench by President Bush.  I submit that, in this context, any assessment of Judge Pryor would be premature unless and until one has read Judge Pryor's own recent account of his history with sentencing and his perspective on the federal sentencing system.  That account appeared in the Spring 2011 issue of my own Ohio State Journal of Criminal Law as William H. Pryor Jr., Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011). I recommend that all sentencing fans read the entire OSJCL article by Judge Pryor. 

4.  The Supreme Court grappled yesterday with the meaning of silence and whether it can be used against a criminal defendant:

"It's a little scary to me that that an unanswered question is evidence of guilt," Justice Sonia Sotomayor said, calling it "a radical position."
Justice Ruth Bader Ginsburg said under Texas' reasoning, a savvy suspect pleading his Fifth Amendment rights would be protected from having his silence used in court, but someone who simply said nothing would be jeopardized.
"To make a difference between those two people on whether comment can be made on the failure to respond is troublesome," Ginsburg said.
Nevertheless, the state and the federal government argued that Salinas should have invoked his Miranda rights, and because he did not, his speech -- or silence -- was fair game.
Some of the court's conservative justices had less of a problem with that. Because police do not have to read Miranda rights until a suspect is in custody, his words, behavior and even silence have been fair game in court -- at least, until now.
"It would be up to the jury, wouldn't it?" Justice Antonin Scalia asked. "The jury might well agree with Justice Sotomayor that it doesn't prove anything ... The question is whether you can ask the jury to consider that."
But Jeffrey Fisher, Salinas' attorney, had the last words in court, and he used them to make what appeared to be an effective argument -- that silence is a right, not a confession.
"It evokes an inquisitorial system of justice," Fisher said of Texas officials' reasoning. "It effectively shifts the burden of proof onto the defendant, and it demeans individual dignity by conscripting the defendant as a product of his own demise."