Using a novel theory, several North Carolina criminal defense lawyers are asking the court in that state to declare a moratorium on the death penalty. They argue that elected judges cannot fairly decide capital cases because they have a personal stake in them

Bruce Cunningham is the lead lawyer in the challenge. He argues that "trial and appellate judges running for election -- partisan or not -- have to win popular votes, so they're under political pressure to rule for the prosecution and to campaign as tough on murder."

In the motions, the lawyers detail specific instances of judges ..."all the way up to a former chief justice, asking for political support for the way they've ruled on murders and other crimes."

"A judiciary that mixes highly publicized murder cases, elective politics and campaign fund-raising is fundamentally unjust, the defense lawyers maintain. They argue that operating a court system anchored by judges with an eye on the ballot box deprives defendants of their federal constitutional rights to procedural fairness, effective legal counsel, and rational punishment."

"The solutions they propose are either to exempt their clients from the death penalty or to create a parallel court system for capital cases, one with judges who are appointed instead of elected -- a change that might require a state constitutional amendment."

The Supreme Court will hear arguments on October 16 on whether federal courts have authority to grant gun rights to felons.

"Although felons may petition the Bureau of Alcohol, Tobacco and Firearms to restore their right to own firearms, Congress has eliminated the ATF's funding to review such requests. On Oct. 16, the U.S. Supreme Court will hear arguments on whether federal courts have the authority to grant gun rights to felons. The case has put gun-rights advocates in the unusual position of disagreeing with John Ashcroft's Justice Department."

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The Supreme Court will review four death penalty cases in its next session.

The juvenile death penalty issue is not one of the cases. All of the cases focus on how the death penalty is carried out rather than on the constitutionality of the death penalty itself.

The Court also agreed to revisit the issue of ineffective assistance of counsel claims which could impact many on death row.

The criminal cases accepted today are Woodford v. Garceau, 01-1862, and Massaro v. United States, 01-1559.

With the senate confirmation hearings behind us on Michael McConnell (for the 10th Circuit Court of Appeals) and Miguel Estrada (for the D.C. Circuit Court of Appeals), the new battle may well be over Dennis Shedd, a nominee for the 4th Circuit Court of Appeals.

In a passionate op-ed article in today's Atlanta Journal-Constitution, the Rev. Joseph Lowery argues that seating Shedd would be a setback for civil rights.

"The civil rights stakes could not be higher with the Shedd nomination. Home to more African-Americans than any other circuit, the 4th Circuit has led the conservative counterrevolution with its narrow interpretations of civil rights laws and, even worse, its wholesale invalidation of federal legislation in the name of "states' rights."

"For victims of discrimination, for innocent defendants, and for persons wrongly sentenced to death, the prospect of receiving justice before this court has become bleak...."

Despite its large African-American population, until 2 years ago, when President Clinton finally succeeded in desegregating it with a recess appointment, the Fourth Circuit Court of Appeals was all-white--in fact it was the last all-white appeals court in the country.

Lowery says Bush needs Shedd, who is white and a former aide to Strom Thurmond, to regain "complete ideological control" over Fourth Circuit decisions. Shedd takes a narrow view of civil rights and believes strongly in state's rights over the power of Congress. Lowery says we should all be watching when the Judiciary Committee takes up Mr. Shedd. We agree.

The LA Times has an in-depth article today outlining the tough-on-crime cases that will be at the forefront of the Supreme Court's fall session.

"The Supreme Court, which opens its new term next week, will take up constitutional challenges this fall to two popular tough-on-crime measures of the 1990s: Megan's Laws, which alert the public to sex offenders who were released from prison, and three-strikes laws, which can keep three-time felony offenders in prison for life."

"Judges in California, Connecticut and Alaska have ruled that these laws sometimes go too far. They say Megan's Laws brand as dangerous all former offenders, even if their crimes were long in the past. And in California, shoplifting can be the third strike that sends a two-time offender to prison for life."

There are two sex offender registration cases, one from Alaska and one from Connecticut and two California cases challenging the state's "three-strikes" law.

"In the Connecticut case, the court will decide whether ex-offenders are entitled to a hearing to determine whether they are still dangerous. In the Alaska case, the court will decide whether Megan's Law can be applied to ex-offenders whose crimes occurred before the law was enacted."

The California cases include those of Leandro Andrade, a 37-year-old heroin addict who was sentenced to 50 years in prison for a third strike of shoplifting videotapes from K-Mart, and Gary Ewing who was sentenced to a term of 25 years to life for stealing three golf clubs.

Here are ten reasons to oppose three strikes laws.

Here and here are some reasons to oppose mandatory, life-long sex offender registration laws and in particular, those that broadcast names on the internet.

In a very strong editorial Sunday, Judging Michael McConnell, the New York Times urges the Senate to reject the nomination of Michael McConnell to the 10th Circuit. The concerns of the NY Times are similar to the ones we've been expressing.

The Times acknowedges, as do we, that Mr. O'Connell possesses the personal qualifications to be a federal judge.

But that isn't enough. The Senate must also consider "whether the nominee's views on substantive legal matters are consistent with the nation's needs. There is no single litmus test to apply, but a constellation of positions to consider on key issues: racial and other kinds of equality, a woman's right to a safe and legal abortion, civil liberties, and federalism."

"Mr. McConnell disapproves of the Supreme Court's decision in the 1983 Bob Jones University case in which the justices rightly decided that banning interracial dating among the college's students was racial discrimination. He would require the government to subsidize, through tax deductions, schools like Bob Jones. He has also spoken out against the Supreme Court's one-person, one-vote decisions, which overhauled the nation's discriminatory legislative districting."

"The Senate must also be highly skeptical of nominees who do not acknowledge a woman's right to abortion. Mr. McConnell has not merely expressed abstract reservations about the Roe v. Wade ruling, but has also actively crusaded against it. He signed a statement arguing that fetuses deserved constitutional protection. "

"On the critical issue of federalism, Mr. McConnell wants to cut back the power of Congress to protect people from things like discrimination, pollution and unsafe working conditions and to insulate state government from lawsuits when they engage in wrongs of that kind."

"....Mr. McConnell's musings nearly all point in one direction, and that is the reason the administration nominated him. It is the reason the Senate should reject him."

The Democrats should not confirm a judge if they believe the judge's ideology will prevent him or her from adhering to established precedent on civil rights and individual liberties. They should not vote to confirm a judge solely because the judge is less objectionable than a previously rejected nominee, e.g., they should not vote to confirm McConnell only because he is not as bad as Priscilla Owens and they don't want to appear intransigent on all of the Bush nominees.

We are entitled, as a nation, to judges that will uphold the law. So far, Bush's nominees have had outlandish and extreme right-wing beliefs that have no place on a federal bench. It is Congress' duty to reject every single one of these nominees. The future of the rule of law depends on it. Intimidation and the fear of appearing partisan are cosmetic considerations that pale in comparison with the danger Bush's extremist nominees pose to American jurisprudence.

Press Release:

"The <a href="National Association of Criminal Defense Lawyers filed a brief today asking the appeals court which operates under the Foreign Intelligence Surveillance Act to affirm the decision of the lower FISA court that tends to limit the act's relaxed search standard to cases dealing with foreign intelligence.

John Cline, an Albuquerque criminal defense lawyer who authored the brief on behalf of NACDL, says the Justice Department's interpretation of USA PATRIOT Act provisions which amended FISA deprives ordinary citizens of Fourth Amendment protections.

"FISA was designed to allow a lower standard for searches in foreign intelligence cases," said Cline. "Previously, FISA searches, which do not require traditional warrants based on probable cause, took place only under the direction of foreign intelligence agents. Criminal investigators were called in only when the searches led to incidental discovery of ordinary criminal activity.

"Now, the Justice Department's interpretation of the amendments to FISA allow supervision of the relaxed-standard searches by regular criminal investigators if they can claim any non-trivial connection to foreign intelligence," Cline said. "It allows for greatly broadened use of FISA searches in cases where normal Fourth Amendment protections should apply."

To ordinary citizens, particularly those who do business internationally, that means that criminal investigators can eavesdrop on their conversations or search their businesses, homes, phone records, and e-mail correspondence without the requirement that investigators convince a judge that there is some reason to suspect criminal activity, said Joshua Dratel, a co-chair of NACDL's Amicus Curiae Committee who assisted on the brief. "There might as well not be a Fourth Amendment for people who have international dealings."

Word just reached us that Lisl Auman has lost her appeal to the Colorado Court of Appeals of her felony murder conviction and life sentence. Here is the opinion. We haven't read the decision yet, but will certainly have some comments later. Lisl was in police custody at the time of the crime and yet she serves a lifetime prison term. The National Association of Criminal Defense Lawyers filed an Amicus (friend of court) brief on her behalf.

In the meantime, here is our prior coverage of the case from our sister site Crimelynx.

Also look for journalist Hunter Thompson who has been a big supporter of Lisl to have some excoriating comments about the decision. And check out Lisl's website as well.

Aileen Wuornos, 44, one of the nation's first known female serial killers, was convicted of fatally shooting six middle-aged men along Florida highways in 1989 and 1990. Her story has been portrayed in two movies, three books and an opera. She is now on death row in Florida, scheduled to be executed on October 9.

At the time of the killings, Wuornos was working as a highway prostitute. She said all of the men violentlyattacked her. She was only tried once for the murder of one of the men. Her lawyer had her plead guilty to the other five. Here are details of her case which some believe indicate she acted in self-defense and didn't receive either a fair trial or effective assistance of counsel. Her supporters also say sexism, anti-lesbian and anti-prostitute prejudice were used to condemn her to death.

Wuernos wants to die. In April she received permission from the Court to drop her appeals and fire her lawyers.

But she has a civil suit pending against her prison guards. And the Court appointed a lawyer, Raag Singhal, to represent her. Raag Singaal is chair of the Prisons Committee for the National Associatoin of Criminal Defense Lawyers. Raag says in papers filed recently in the U.S. Supreme Court that he has grave concerns about Wournos' competency.

In the civil lawsuit, "Wuornos accuses prison guards of trying to harass her 'to death' and drive her to suicide. In her 25-page handwritten court filing, Wuornos also accuses prison staff of tainting her food, spitting on it and serving her potatoes cooked in dirt."

Singhal tells the Court, "The specific claims she raises ... if untrue appear to be evidence of delusional behavior." He also says, "Wuornos acted strangely, laughed and cried unexpectedly and obsessed on unimportant points during the hours he met with her over the summer."

Singhal is seeking to have Wuornos examined by court-appointed psychologists.

Governor Bush's position: He "... 'absolutely' believed Wuornos was competent when he signed her death warrant Sept. 5."

We are not comfortable with Governor Bush as the final arbiter on the matter. We hope the Supreme Court orders her examined. The state of Florida should not engage in either state-assisted suicide or the killing of a mentally ill woman. Why are we still sinking to these levels?

The New York Times takes a hard line on Bush judicial nominee Miguel Estrada in an editorial today. Estrada's confirmation hearing is scheduled for Thursday. The Times says,

"This is an administration that loves secrecy, on issues ranging from war in Iraq to Vice President Dick Cheney's energy task force. And it seems to think that if Congress is ignored, it will simply go away. Congress must insist on getting the documents it needs to evaluate Mr. Estrada, and it should not confirm him until it does."

Major objections from the Democrats have been expected for some time. The problem seems to be since Estrada has never been a judge, and apparently hasn't published much under his own name (as opposed to writing things for his various superiors,) no one knows where he stands on anything. So there are rumors he is too right-wing for an appellate judgeship on the influential DC Court of Appeals--and general feelings he is too inexperienced for the position, but nothing concrete to hold against him.

Judicial Nominee Michael McConnell, whose ultra-conservative views and posturings were made widely known through his prolific writings, did not cause the Democrats as much concern as Estrada. This is partly due to the general consensus that McConnell wouldn't be much of a threat to the nation because the Tenth Circuit is no great national policy maker. On the other hand, Estrada is a cause for concern because the DC Circuit is considered to be among the most influential of circuits. Even more of a concern is speculation that as both a hispanic and D.C. appeals judge, Estrada might get tapped for the Supreme Court.

The Washington Post said recently,

"If confirmed, Estrada would immediately become a leading candidate to be named the first Hispanic on the Supreme Court. Such a historic appointment could help Bush not only tilt the high court to the right, but also make political gains among the fast-growing ranks of Hispanic voters."

As of now, we have no reason to oppose Mr. Estrada. Like everyone else, we just don't know enough about him. But we did read in the same Washington Post article one thing about him we liked:

"Despite his career on the government's side of criminal cases, he took on a Virginia death row inmate's case pro bono in 1999, arguing unsuccessfully before the Supreme Court that the man should get a new trial because he had been denied access to information that would have cast doubt on key evidence against him."

A second federal judge has ruled the federal death penalty unconstitutional.

Judge William Sessions of Vermont found the federal death penalty statute a threat toward due process as well as the Sixth Amendment's guaranteed right to a fair trial.

Because of jurisdictional issues, today's ruling by U.S. District Judge William Sessions does not strike down the federal death penalty, nor does it challenge individual state statutes. The opinion in USA v. Fell and is accessible here

In a press release today, Stephen Hawkins, Executive Director of the National Coalition to Abolish the Death Penalty said:

"Today's ruling should come as a warning and an admonishment to Attorney General John Ashcroft and his aggressive pursuit of the federal death penalty across the country, even in non-death penalty states such as Vermont . Wrongful convictions matter - they stain our judicial system and dishonor our unshakeable commitment to due process."

In his ruling, Judge Sessions wrote, "If the death penalty is to be part of our system of justice, due process of law and the fair trial guarantees of the Sixth Amendment require that standards and safeguards governing the kinds of evidence juries may consider must be rigorous, and constitutional rights and liberties scrupulously protected."

In July, U.S. District Judge Jed Rakoff in New York became the first federal judge in modern history to declare the 1994 Death Penalty Act unconstitutional. He cited the number of innocent people who have been sent to death row and later exonerated due to actual innocence.

How Appealing explains in detail the 11th Circuit's decision yesterday that a prisoner may pursue a federal civil rights claim for access to DNA evidence that could establish his innocence.

This now creates a split in the circuits making it more likely the issue will reach the Supreme Court.

Central to the issue is whether the claim is made as a habeas petition (and therefore subject to strict limitations regarding timeliness of filing and on filing successive petitions) or as a civil rights claim. The trial court had found the inmate's civil rights claim to be the "functional equivalent" of a habeas petition. The 11th Circuit reversed, ruling the suit was properly brought as a section 1983 civil rights claim because the inmate's request for the production of DNA evidence did not attack the validity of his conviction and sentence.

The case is Bradley v. Pryor and you can read the full opinion here