On the Supreme Court's decision in Wiggins v. Smith , we recommend the analysis in Friday's Washington Post .

Yesterday's decision adds new specificity to the court's standards for attorney performance, signaling lower courts and state governments that the justices intend to keep a closer watch on the right to counsel. It also gives new legal ammunition to hundreds of death row inmates. In particular, the court referred to the American Bar Association's demanding guidelines for capital counsel performance as "well-defined norms."

Also take a look at Slate columnist and lawyer Dahlia Lathwick's piece on the death penalty and other cases decided Thursday, in which she notes that the opinions are decidedly liberal for a conservative court. An example:

Then we have Wiggins v. Smith, where, by a 7-2 vote, the same court that would ordinarily uphold any death penalty conviction—even if defense counsel had been hopped up on crack and dressed up as Cookie Monster—actually accepts an ineffective assistance of counsel claim. This court, which has blindly sided with the prosecution in the last few ineffective assistance of counsel cases, seems to have figured out (finally!) how shockingly bad/young/ inexperienced/overburdened some court- appointed defense counsel can really be.

In the same piece, Walter Dellinger writes that "the number of progressive results is close to stunning."

• The method of funding of Legal Services for the poor by "taking" the interest on lawyers trust accounts is upheld against a property rights challenge.
• The Family Medical Leave Act is upheld as applied to the states, in spite of strong case law on state sovereignty.
• Justice Powell's lone opinion in Bakke sustaining the use of race for diversity becomes the opinion of the court.
• A capital case is overturned because of ineffective assistance of counsel.
• The retroactive extension of the time for bringing sex abuse charges is held unconstitutional.
• Bowers v. Hardwick is overruled.

As an aside, no retirements were announced, except for that of the Supreme Court Librarian.

From Phoenix criminal defense attorney Nicholas Hentoff:

The Lawrence v. Texas decision on gay sex has important implications for Federal privacy challenges to enforcement of Federal laws to prosecute medical marijuana users.

bq. The majority in Lawrence cited the "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

bq. The same rationale can be applied to medical mariuana and makes the state by state fight to pass medical marijuana laws all the more important in blocking Ashcroft from subverting the State's rights to regulate medical marijuana use by their citizens. [ reprinted with permission.]

Hmmm.....the possibilities seem endless. Prostitution in the privacy of one's hotel room?

Update: A commenter just pointed out the court stressed the decision was applicable to non-commercial sex. Ok, that's today. But we can still see the rationale being applied to prostitution in the future. If the sex act occurs in the privacy of one's rented quarters, whose business is it if a gold bracelet or currency is the quid pro quo?

Update: The link to Mr. Hentoff's website now works. Our error, sorry.

Bump and Update: The Supreme Court has ruled in favor of a death row inmate.

The Supreme Court sided with a convicted killer in an important test of legal standards for death penalty cases, ruling Thursday that inexperienced lawyers failed their client at trial. The court, by a vote of 7 to 2, threw out the death sentence of Kevin Wiggins, a borderline retarded man convicted of drowning an elderly Maryland woman who employed him as a handyman.

Bump and Update:The Supreme Court has dismissed the Nike free speech appeal.

The U.S. Supreme Court dismissed on Thursday on technical grounds a Nike Inc. appeal on whether it can be sued for false advertising over a publicity campaign to defend itself against accusations that Asian sweatshops made its footwear. The high court, on the last day of its term, said the free-speech appeal was dismissed without reaching the merits of the dispute. The ruling means the lawsuit against Nike, the world's largest maker of athletic shoes, can go forward.

In another ruling, the Supreme Court ruled Thursday that the government cannot retroactively erase statutes of limitations, a defeat for prosecutors trying to pursue priests accused of long-ago sex abuse.

On a 5-4 vote, the justices struck down a California law that allowed prosecutions for old sex crimes. It was challenged by a 72-year-old man accused of molesting his daughters when they were children. The case was closely watched because of sex abuse problems in the Roman Catholic church, but it also has implications for terrorism and other crimes.

Update: The Supreme Court in a 6-3 decision in Lawrence v. Texas has struckdown the Texas law prohibiting consensual homosexual sodomy. The justices held that the law was an unconstitutional privacy invasion and violated due process.

From How Appealing:

Lawrence v. Texas (syllabus here; majority opinion here; opinion concurring in the judgment here; dissenting opinion here; additional dissenting opinion here;

From a Press Release from People for the American Way:

"The Supreme Court has recognized what most Americans regard as common sense - the government has no place regulating private sexual behavior between consenting adults. And the Court has recognized as law what most Americans see as basic fairness: being gay should not mean being a second-class citizen. This decision has not eliminated all the barriers to full equality for gay Americans, but it takes a major step towards dismantling those barriers."

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Today will be a big day for Supreme Court news. Decisions are expected in the Texas sodomy and Nike cases. There could be an announcement regarding retirement of one of the Justices. Be sure to check in with Howard Bashman of How Appealing and ScotusBlog for the latest news.

On a related topic, Eric at IsThatLegal has some sharp criticism for Justice O'Connor's extra-judicial comments on the affirmative action ruling made in a post-decision interview.

The Ninth Circuit Court of Appeals has issued a decision on what constitutes internet libel under the 1996 Communications Decency Act.:

In a case where a "tipster" sent information about an alleged Nazi heir with old European paintings to the operator of a Web site that tracks art thefts, the divided three-judge panel found that site operators may be liable for Internet libel if they post information that a reasonable person would have known wasn't meant for publication.

In a 5 to 4 decision, the U.S. Supreme Court has upheld Michigan's affirmative action policy .

The Supreme Court on Monday upheld a university law school admissions policy that gives minorities an edge, ruling that race can be one of many factors that colleges consider when selecting their students.

The ruling in the law-school case preserves the concept of affirmative action for minorities who might otherwise be underrepresented on top campuses, but makes clear that racial preferences must be used sparingly.

The 5-4 ruling endorsed a program at the University of Michigan law school meant to ensure a "critical mass" of minorities on campus. The program is not an illegal quota, the high court said.

"The Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational
benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or §1981."

For analysis of the opinion, we recommend checking in with Howard Bashman of How Appealing and Scotusblog after they have had a chance to digest it.

The case is Grutter v. Bollinger and the opinion is available here.

People for the Amercian Way makes a great poiint about the decision:

This case was about the value of a diverse educational environment in a country where diversity was once unwelcome. By upholding affirmative action, this Court has protected opportunities for millions of Americans who are still victimized by the lingering effects of discrimination," said Neas. "This decision highlights how critical the next appointments to the Supreme Court will be. As demonstrated by this case, challenges to civil rights and other rights are increasing. The vote of a single justice can have a massive impact on Americans' rights."

In a companion case, Gratz v. Bollinger, the Court struck down the undergraduate admissions program. Reuters reports on the differing rulings:

But in the undergraduate case, Chief Justice William Rehnquist declared for the majority that the manner in which the university considered the race of applicants violated the constitutional equal protection provisions. In the undergraduate case, black, Hispanic and Native American applicants get 20 extra points out of a possible 150 points under a selection index that considers academics, test scores and other factors, including race. In the law school case, the admissions process does not involve a point system, but the university seeks the enrollment of a "critical mass" of minority students, which has ranged between 10 percent and 17 percent of each class.

The vote was 5-4 in the law school case and 6-3 in the undergraduate case.

Update: Clarence Thomas voted against affirmative action. Here are excerpts from the undergraduate decision--including Justice Ginsberg's dissent.

We wonder how many dollars the radical right spent wooing Norma McCorvey, the plaintiff in Roe v. Wade. McCorvey has filed suit to overturn the ruling in her case, aruging that new evidence shows abortion is harmful to women. Our view: a cheap stunt.

The Supreme Court today sharply limited the Government's ability to drug mentally ill defendants in order to render them competent to stand trial.

The Justices imposed conditions that the Government must meet before resorting to drugging defendants:

Justice Stephen Breyer, writing for the majority, said the government must show that involuntary medications ``will significantly further'' the goal of bringing the case to trial. And courts, in considering individual cases, must consider ``alternative, less intrusive treatments'' of defendants, he wrote.

The case required the court for the first time to balance the government's interest in punishing nonviolent crime with a person's constitutional right to control his or her body. Justices said that the Constitution allows the government to administer drugs ``in limited circumstances.''

Currently, the Government drugs hundreds of defendants every year to make them stand trial.

Breyer said forced medications may be permitted only rarely. Some groups had called on the court to use the case to ban forced medication outright. ``Hopefully, courts will use this test carefully to protect against coercive drugging,'' said Judith Appel, an attorney with the Drug Policy Alliance, which contends that people -- not government -- should decide what drugs they take.

The federal government puts hundreds of defendants on medication each year to make them competent to stand trial. Most take the drugs willingly. In a recent 12-month period, 59 people were medicated against their wishes and about three-fourths were restored to competency, the government has said.

The Bush Administration is pressing the Supreme Court to accept review in an important alien detention case.

The Sixth Circuit, following Supreme Court precedent in Zadvydas v. Davis, ruled that the Government cannot indefinitely detain excludable or deportable aliens whose countries do not want them back.

The current case is Snyder v. Rosales-Garcia. The Government argues that the ruling in Zadvydas does not apply to aliens already in this country, as opposed to aliens trying to enter the U.S.

The Sixth Circuit, en banc, disagreed,

...finding that "excludable aliens -- like all aliens -- are clearly protected by the due process clauses of the Fifth and Fourteenth Amendments."

Judge Karen Nelson Moore, writing for a 6-3 majority, added, "If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States could not torture or summarily execute them."

We agree with the Sixth Circuit. We have always appreciated the Court's ruling in Zadvydas that:

... the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

The Supreme Court will decide Thursday whether to accept review of the case.

Max Factor Heir Andrew Luster lost his appeal of his conviction and 124 year sentence for rape and drug crimes. Luster vanished during his trial. He was convicted and sentenced in abstentia. The California appeals court threw out his appeal saying he forfeited his right to appeal when he jumped bond.

We hear that Luster may be found very soon, by this man. We know Dog, and have no doubt he'll get his man.

The Indiana Court of Appeals ruled this week that police cannot force drivers who have been involved in accidents to take blood tests.

The court overturned the conviction of a repeat drunk driver who got in an accident in which two people were killed. He was arrested by the Marion County Sheriff's Department which has a policy that directs deputies to take a blood sample from drivers involved in serious crashes, "by force, if necessary."

The court ruled such a policy is a violation of the Fourth Amendment.

The requirements of the Fourth Amendment cannot be lowered based upon the heinousness of the particular crime," Judge Michael Barnes wrote for the court. The ruling said that legally obtaining blood is a "relatively simple matter" that would require officers to ask drivers to voluntarily give blood or obtain a warrant from a judge.

For daily updates on Fourth Amendment cases, don't miss John Wesley Hall's FourthAmendment.com

Hooray for Ed Rosenthal! The convicted "guru of ganja" was sentenced in San Francisco to one day in jail--which he had already served--so he's free.

A big and well-deserved slap in the face to Ashcroft.

U.S. District Judge Charles Breyer sentenced convicted marijuana grower Ed Rosenthal to one day in federal prison with credit for time served, essentially setting him free.

Rosenthal was convicted in January of three marijuana cultivation and conspiracy charges. He faced more than 80 years in federal prison and $2.5 million in fines. The Federal Probation Department had recommended that Rosenthal be sentenced to two 21-month sentences to be served concurrently.

Charles Breyer prevented him from using California's Prop. 215 as a defense in his case. Prop. 215, which is not recognized by the federal government, allows critically ill patients to grow, posses and consume cannabis with a doctor's recommendation. When the jurors who convicted Rosenthal later discovered that he had been growing starter plants for patients, they renounced their guilty verdict and announced that they had been misled.

The Attorney General of California and eight of the jurors in the case wrote the Judge asking for leniency for Rosenthal. U.S. District Judge Charles Breyer said Rosenthal genuinely believed that what he was doing was not against the law. "He was unaware his conduct was not immunized from federal prosecution," the judge said.... Federal law does not permit legalization of marijuana for medical use, although Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington allow it.

Our full coverage of the case is here.

For those of you who represent high-rollers, or who want to, here's a new and favorable decision from a New York Judge :

Conversations between a public relations firm and lawyers for the target of a grand jury investigation are protected by the attorney-client privilege, as long as they relate to the handling of the client's legal problems, a federal judge in New York ruled in the case of an unnamed company's high-profile legal troubles. The privilege can also extend to talks between the target and the PR firm that are "for the purpose of obtaining legal services."