Quotes of the day

In case you missed some of the coverage of the Supreme Court from last week, the Court heard a case testing the extent to which defendants are allowed to represent themselves in court. The case, Indiana v. Edwards, involves a defendant on trial for attempted murder who was ruled to be sane enough to stand trial, but too mentally disturbed to represent himself. The trial judge did not want the trial to devolve into a farce.

OK, onto the funny stuff:

Stancil (who represented the defendant Edwards before the high court) said at other times, though, that Edwards provided lucid answers to legal questions from the judge.

Justice Anthony Kennedy was not impressed by Stancil's observation. "There are all kinds of nuts who can get 90 percent on the bar exam," Kennedy said.

Feeling a little bitter about your experience teaching at McGeorge, are we?

"He can plead guilty if he wishes and that's OK," Scalia said. "Only he can't put on an incompetent defense?...The state still has to prove his guilt beyond a reasonable doubt."

Indiana Solicitor General Thomas Fisher said the right to self-representation is not absolute. "It is within the state's authority to override self-representation when the defendant can't communicate coherently," Fisher said.

Scalia shot back, "I sometimes think lawyers can't communicate coherently."

And sometimes even the great Justice Scalia can't communicate coherently. See, e.g. Scalia's memo explaining his refusal to recuse himself from Cheney v. United States District Court.

Yes, a mentally disturbed (according to Family Guy, the preferred nomenclature is "mentally hilarious") guy might turn a trial into a farce. But would it be any worse than this, or this, or even this?

Yale nabs Linda Greenhouse

The so-called Tenth Justice of the Supreme Court is heading to the Yale University Law School. Linda Greenhouse, who has covered the Supreme Court for the New York Times for three decades will be leaving the paper as part of an employee buyout program. And yesterday, Yale announced that she will become the journalist-in-residence and will help develop their Law and Media Program.

I'm glad Greenhouse has landed on her feet. Not only is she a top-flight journalist, but she was incredibly generous to me personally. I am currently writing a political science journal article, and I got the idea for this paper from one of her NYT articles. I sent her an email asking for some help in directing my research. She emailed me some great comments in the middle of her summer vacation. I am very grateful for her kindness.

Quote of the day

Tuesday was an historic day for the United States Supreme Court. Screw the D.C. gun case! More Dictalicious was an opinion they handed down in the case Washington State Grange v. Washington State Republican Party. That case involved a challenge to the structure of the Washington State primary election system. At issue was allows candidates to list their party preferences on the ballot. While this sounds innocent on its face, the problem arises when voters confuse "preference" with "endorsement." In other words, Joe Crazypants may want to be associated with the Democratic Party, but the Party may not to associate itself with that candidate. In a 7-2 the Court sanctioned this primary system, rejecting the political parties' claim of freedom of association.

OK here's why it warrants a post on this blog.

The Chief Justice wrote in his concurring opinion:

If the ballot is designed in such a manner that no reasonable voter would believe that the candidates listed there are nominees or members of, or otherwise associated with, the parties the candidates claimed to “prefer,” the I–872 primary system would likely pass constitutional muster. Assuming the ballot is so designed, voters would not regard the listed candidates as “party” candidates, any more than someone saying “I like Campbell’s soup” would be understood to be associated with Campbell’s.

To which Justice Scalia responded in dissent:

And finally, while THE CHIEF JUSTICE earlier expresses his awareness that the special character of the ballot is what makes these cases different, ante, at 2, his Campbell’s Soup example seems to forget that. If we must speak in terms of soup, Washington’s law is like a law that encourages Oscar the Grouch (Sesame Street’s famed bad-taste resident of a garbage can) to state a “preference” for Campbell’s at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations.

N.B. This is the first time in Supreme Court history that Oscar the Grouch has been mentioned in an opinion. Justice Scalia is nothing if not hilarious.

Great case name...or greatest case name?

As you may know, the Dicta loves cool case names. Well I think we have an all-time winner, courtesy of the good folks over at Decision of the Day. The case is...

U.S. v. Approximately 64,695 Pounds of Shark Fins, 05-56294 (9^th Cir., March 17, 2008)

Hang on, I'll wait for the hilarity to sink in...

Done laughing? OK, we will continue. The reason for the bizarre name is that this is an asset forfeiture case where the defendant listed is the property that has been seized. Why? Because lawyers should never be allowed to invent new systems (see, e.g. The Bluebook).

So this case involves shark fins. A company chartered a boat out of Hawaii that picked up the shark fins from other boats in international waters and transported them to Guatemala. That is illegal under the Shark Finning Prohibition Act of 2000 (don't you love how Congress spends its time?).

The case reached the Ninth Circuit, and guess what? The Shark Fins won! The Court ruled that the company making this transaction was not given adequate notice that its conduct was prohibited under the Shark Finning Prohibition Act. Thus the federal government is not entitled to seize these assets.

Sounds like good news, right? Well this litigation has been in the works since 2002. I am not an expert in shark fins, but wouldn't they have gone bad over the past five years?

But that's not the point. The point is that Shakespeare was wrong when he questioned, "What's in a name?" My response: everything that matters!

A word of advice in the gun ban case...

Yes, the day is finally here. The Supremes will be hearing oral argument in the D.C. gun ban case, which is District of Columbia v. Heller. The opinion will likely be handed down in June.


N.B. Sorry I didn't post last week. I took my first vacation in a full year! But I'm back now (although still very busy at work).

The most under-reported story of the week

This past Monday night, Hillary Clinton held a rally in Austin, TX to make a last minute appeal to voters before the primary. Of course, a large press contingent follows Sen. Clinton wherever she goes, and they need facilities to file their stories. Where did the press corps get set up during this rally? In the bathroom at a adjoining building.

A Clinton campaign spokesperson notified reporters: “For the record, these accommodations should in no way be taken as a commentary on the quality of our media coverage.” Bull-#$&%! I can't think of a more insulting gesture to the press. It's one thing to cover a White House that only makes the president available for a press conference once every blue moon. But this if freackin' ridiculous. The press should not have to put up with this crap. Literally, and figuratively.

The only possible way this arrangement could make some sense is if the event was in Idaho, not Texas. If that were the case, at least the press could interview Larry Craig.

How U.S. News really makes its law school rankings

Take a gander over at Concurring Opinions. Fantastic stuff.

Could you wait until July to commit your crime, please?

Death penalty opponents have found a novel way to prevent executions in Georgia.

Shut down the criminal docket.

See, what happened was, Georgia created a state-wide public defender system run by a state agency. This year, the Governor (generous of heart that he is) asked for $3.6 million for the public defender's office (what they actually thought they needed to run their operations). The Legislature has approved $513,000. Of which $475,000 is owed to appointed counsel in capital cases.

So, if the public defender's office runs out of money, the director has said that she will send her entire staff on furlough for the month of June. Sure, maybe a few of them will come into the office once in a while, but let's be serious - if you're working on a public defender's salary, can you afford to just take a month off and not get paid? No - they'll be out beating the bushes for paying civil work that doesn't conflict.

What does this mean? First of all, obviously, the capital docket goes out the window. You can't have effective assistance of counsel where there's no counsel. But, more importantly, what about a 72-hour hearing?

For the non-lawyers reading this (Hi, So DC), a 72-hour hearing is an initial hearing where the accused appears before the judge, is informed of the charges against them, and has any argument for or against bond. Bond may also be set, or the judge may take the arguments under advisement and issue a ruling on bond later. A defendant has an absolute right to a 72-hour hearing - which, as the name implies, MUST take place within 72 hours of the arrest. The state literally can't hold a person for longer than 72 hours unless it notifies them of the basis of the detention.

And you have an absolute right, conferred by the Sixth Amendment, to have a lawyer present to represent you at the 72-hour hearing. So what happens when suddenly no lawyers are around from the public defender's office?

The Dicta suspects that hundreds of possible (or hell's bells, actual) criminals are going to be walking the streets of Hot-lanta, rather than being in jail during June. So, summer associates at firms like Alston & Bird LLP, or Kilpatrick Stockton, might want to rethink that cheap Midtown apartment with a quick commute to the office. Or, conversely, just quit. I'm sure that little firm in Podunk, State Where You Go To Law School (you know, the one you snorted at and thought, "I'm too good for them"? Yeah, that one), would just LOVE to have you around now.

The moral of the story is: Georgia sucks. And has lots of crime. Especially this June.

Today in Legal History

March 3, 1879 - First Woman Admitted to Practice Before U.S. Supreme Court

Belva Ann Bennett Lockwood becomes the first female attorney admitted to practice before the U.S. Supreme Court. In 1876, because of the Court’s refusal to admit women to practice before it "until such a change is required by statute," Lockwood will undertake three years of Congressional lobbying, resulting in passage of H.R. 1077 "to relieve certain legal disabilities of women.". A lawyer, author, and women’s rights activist, Lockwood will run for election as President of the United States in 1884 and 1888.