Supreme Court Term is over

There aren't many jobs where you get the entire summer off -- school teachers and.... Supreme Court Justices.

Here's Linda Greenhouse's summary of the October 2007 Term. She is retiring, so this may be her last article.

Here's a cool graphic from the article on the major cases of the Term:

News and Notes

1. We previously covered the plea/sentencing that went bad in the Shahrazad Mir Gholikhan's case. She was sentenced to 29 months a week after Judge Cohn sentenced her to credit time served. Today, that plea and sentence was vacated because everyone, including the prosecutor and the judge, believed that the guidelines were 0-6 when Gholikhan pleaded guilty. The Sun-Sentinel article is here. Trial coming up in August. Bill Barzee for the defense.

2. The Sun-Sentinel also covers this shocking case here. According to the civil defendants in this case, Florida is an "anti-gay" state. Here's the intro from the article:

The family vacation cruise that Janice Langbehn, her partner Lisa Marie Pond and three of their four children set out to take in February 2007 was designed to be a celebration of the lesbian couple's 18 years together.But when Pond suffered a massive stroke onboard before the ship left port and was rushed to Jackson Memorial Hospital, administrators refused to let Langbehn into the Pond's hospital room. A social worker told them they were in an "anti-gay city and state."Langbehn filed a federal lawsuit Wednesday charging the Miami hospital with negligence and "anti-gay animus" in refusing to recognize her and the children as Pond's family, even after a power of attorney was faxed to the hospital within an hour of their arrival.The case raises questions about the way hospitals deal with same-sex or unmarried partners of patients, which has led to controversy in the past. Hospital industry officials say they are constrained by patient privacy laws that can restrict giving visiting access and medical information to nonrelatives, a stance that some patient advocates have branded as discriminatory.

Local ex-AUSA shines during scandal

The Honors Program has been described as the "jewel" of the Justice Department because it used to have the brightest young lawyers in the country.

But a report was issued this week, explaining how during the Bush Administration, the Honors Program became politicized, screening out qualified applicants because they were members of organizations that appeared to be liberal (like American Constitution Society or Greenpeace) or had other items on their resumes indicating that they weren't staunch right wing Republicans.

There was one bright light, highlighted in the report -- Dan Fridman, a then-AUSA who was doing a detail at Justice in DC (in full disclosure, Dan is a friend of mine and I have blogged about him before here.). Dan was part of the committee chosen to screen applicants for interviews. Dan wanted to screen ... (take a deep breath!) ... based on merit (!!), but was told his job was to weed out the "wackos" (read: the liberals). Dan refused and continued to recommend candidates for interviews based on merit, not on ideology. The money quote of the 100+ page report:

In addition, we believe that various employees in the Department
deserve credit for raising concerns about the apparent use of political or
ideological consideration in the Honors Program and SLIP hiring
processes. For example, Daniel Fridman deserves praise for reporting
his concerns about the process in 2006 to both his supervisor and
Elston and for avoiding the use of improper considerations in his review
of candidates for the Honors Program and SLIP. A few DOJ political
employees also objected to the apparent use of political or ideological
considerations in the hiring process, such as Assistant Attorneys
General Peter Keisler and Eileen O’Connor, and they should be credited
for raising their concerns. Certain career employees, particularly in the
Tax Division and the Civil Division, also pressed concerns about the
hiring process. By contrast, we believe that others in the Department,
such as Acting Associate Attorney General William Mercer and OARM
Director Louis DeFalaise, did not sufficiently address the complaints
about the deselections.

There's a ton more here to read. I enjoyed reading the"Fridman criteria" for receiving an interview:

To identify a subset of highly qualified candidates, we relied on
criteria that one of the Screening Committee members, Daniel Fridman,
described as an indication that the candidates were so highly qualified
that they merited just a quick check before he approved them. Fridman
said that if candidates attended a top 20 law school, were in the top
20 percent of their respective classes, or were at a school that did not
rank students, he tended to approve them automatically unless they
had a C on their transcripts.30 We refer to these criteria as the
“Fridman criteria.”

Here's Keith Olbermann on the whole thing (and he mentions Dan by name):



Of course, anyone who knows Dan, knows he would do the right thing. In fact, see our post here from January 2006:

Congrats to AUSA Daniel Fridman (from this District). He has accepted a special assignment to work with the Acting Deputy U.S. Attorney General Paul McNulty (the #2 guy at DOJ in DC) on shaping the administration's criminal and civil rights policy. Those that know Dan, know that he is a good and fair prosecutor and I hope he uses the time in DC to promote his even-tempered philosophy.

Dan is now at working at Lewis Tein. Congrats to him on how he handled himself in this mess...

Exciting week at the Supreme Court

This is the last week for Supreme Court action, and it has been an exciting one. SCOTUSblog is the place to be, and they've added to the drama with their live-blogging feature each morning at 10am. It's worth checking out -- you'll have to see it tomorrow as that will be the last day for decisions. The big one to be decided tomorrow is the gun case, Heller. Today was also big as the Court ruled that the death penalty cannot be imposed in a child rape case (and any other case) that does not result in death to the victim. 5-4, with Kennedy writing for the majority of usual suspects, and Alito writing for the 4 dissenters. The other big case today was the Exxon punitive damages case in which the Court found that punis were limited to compensatory damages.

Here is SCOTUSBlog on the child rape case:

Barring the death penalty for any crime that does not take the life of an individual victim, the Supreme Court ruled Wednesday that it is unconstitutional to impose the death penalty for the crime of raping a child. If the victim does not die and death was not intended, capital punishment for that crime violates the Eighth Amendment, the Court ruled in an opinion by Justice Anthony M. Kennedy. The case was Patrick Kennedy v. Louisiana (07-343). The broad declaration that death sentences should be reserved “for crimes that take the life of the victim” will apply, the Court said, to crimes against individuals — thus leaving intact, for example, a possible death sentence for treason.Part of the Court’s rationale for nullifying a death sentence for raping a child was that the child victim gets enlisted, perhaps repeatedly, to recount the crime, forcing on the child “a moral choice” that the youngster is not mature enough to make. “The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system,” Justice Kennedy wrote.
The decision split the Court 5-4. It nullified a Louisiana law that provided capital punishment for raping a child under age 12. The law was since amended to apply to raping a child under age 13. Five other states have similar laws.
At the close of Wednesday’s public session, Chief Justice John G. Roberts, Jr., announced that the Court will issue all remaining decisions for the Term at 10 a.m. Thursday. The test case on whether the Second Amendment protects an individual right to possess a gun is among those remaining (District of Columbia v. Heller, 07-290). The others still pending are cases on the constitutionality of the so-called “Millionaire’s Amendment” on campaign finance (Davis v. FEC, 07-320), and on federal regulators’ power to undo wholesale energy sales contracts (Morgan Stanley Capital v. Public Utility District, 06-1457, and a companion case).
Justice Kennedy’s majority opinion in the Louisiana capital case was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Samuel A. Alito, Jr., wrote for the dissenters; he was joined by Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas.
Justice Alito, rejecting the majority view that there is now a national consensus against executing one who rapes a child, argued that the focus should not be on the fact that only six states now have such laws. More might have taken the step, Alito argued, if the Supreme Court in barring execution for raping an adult in 1977 had not given state legislators “good reason to fear” that they never could pass such a law. The broad dicta in that case, Alito said, was not supported by all of those in the majority in Coker v. Georgia. Since then, the Justice added, state courts have read the Coker opinion in its widest sweep, “stunting legislative consideration” of the death penalty when a child was the victim.

Florida Supreme Court steps in on Conway settlement

We've covered Sean Conway's bar issue and proposed settlement before (He agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand).

Apparently, the Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment. According to this DBR article:

The Florida Supreme Court is questioning a proposed settlement brokered by The Florida Bar in a disciplinary case against a Fort Lauderdale criminal defense attorney for his critical comments about a judge. The court asked for more information from The Bar and attorney Sean Conway on Monday. It issued an order directing them “to show cause” by July 14 whether “any of the respondent’s comments should be considered protected speech under the First Amendment.”

I hope the Florida Supreme Court does the right thing in the end and dismisses the case brought by the Florida Bar. Kudos to the Court for not rubber-stamping this deal.