He Shoulda Armed Himself

by publius As you may have read, a Milwaukee mayor recently got beaten with a metal pipe while attempting to help a woman being attacked.  Apparently, this mayor had favored strict gun control efforts in the past.  The mayor's reasoning was the dense populated urban areas call for different restrictions than less populated places.  Radley … Read more

Keeping Perspective

by publius By now, I'm sure you've seen Barney Frank's most awesome town hall video (if not, Steve Benen has it).  This line was my favorite: You stand there with a picture of the president defaced to look like Hitler and compare the effort to increase health care to the Nazis[.] It's worth keeping this … Read more

The Davis Tremor

by publius

The following is a guest post from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law, who I discussed these issues with yesterday and who knows this stuff inside and out. In light of yesterday's great thread, I thought you might enjoy.  It spells out the problems with Scalia's position in ways I can't.  One interesting point he raises, for instance, is how DNA evidence poses a fundamental (and I'd say fatal) challenge to Scalia's position.
______________________

On Monday, the Supreme Court handed down an extraordinary three page order directing a federal district court in Georgia to determine whether newly-discovered evidence would establish that Troy Davis did not commit the murder for which he was convicted and is to be executed. The order provoked an explosive response from Justice Scalia, who wrote in dissent that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” He characterized the federal proceedings in Georgia as a “fool’s errand.” Justice Scalia’s dissent sparked considerable confusion and anger, with many outraged at the thought that he endorsed the execution of an innocent man.

The decision is stunning for two reasons: (1) for the procedural posture in which the Court made it (granting an original habeas petition) and (2) for the substantive legal possibility the original habeas grant implies (that a “freestanding” claim of “actual innocence” could be a basis for federal habeas relief). Explaining why this ruling is so important, and doing so in terms that non-habeas specialists can understand, is a daunting task that I execute very imperfectly below.

BACKGROUND

Davis was convicted in Georgia state court for murdering a police officer. After Davis was convicted, he filed a first federal habeas petition, alleging a variety of constitutional violations. Relief on that petition was denied. (Note: for the purposes of this discussion, a habeas petition is filed in federal court, and tests the constitutionality of a state prisoner’s conviction or sentence.)

Davis had been arrested after a highly publicized manhunt, and seven of the nine witnesses testifying against him have now recanted their testimony. Another man has admitted to approximately four other people that he – not Davis – committed the murder. Davis filed a second (“successive”) habeas petition, alleging a “freestanding” innocence claim – a naked claim that he is not guilty and that is not accompanied by an allegation of some other constitutional violation (such as ineffective assistance of counsel or the prosecution’s failure to disclose exculpatory evidence).

In 1996, Congress severely restricted the circumstances under which state prisoners could file successive petitions. One restriction requires the prisoner to seek “authorization” from a federal appeals court before proceeding on the merits of the claim in district court. Another restriction bars the Supreme Court from using a “writ of certiorari” to review that authorization ruling. Certiorari forms the basis of the Supreme Court’s jurisdiction to review a lower court. Certiorari is, by extreme orders of magnitude, the most frequently-invoked authority for reviewing lower-court decisions. Ninety-nine percent of the Supreme Court cases that law students read are decided on certiorari review.

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Why Reform Is Hard

by publius I'm glad Ezra Klein wrote this, because it helps provide context for increasingly disillusioned liberals who think Obama and the Dem leadership are blowing health care.  The upshot is that it's hard to say things like "if the bill isn't sufficiently progressive, we'll oppose it" when that's exactly what the other side wants.  … Read more

The Kitty Tweets

by publius Just a public service announcement (or warning, perhaps).  We've had a Twitter feed for some time — but it basically just notifies people that new posts are up.  But since all the cool kids seem to be tweeting these days, I'd figure I'd try it too. So, you should start following us if … Read more

Two Readings of Scalia

by publius

The Supreme Court did a rare thing yesterday — it ruled favorably on an original writ of habeas corpus (one that is initially filed at the Supreme Court).  Specifically, it ordered a district court in Georgia to review the defendant's "actual innocence" claim.  Original writs have been summarily rejected for decades.  This is a rare, strange bird we're seeing.

Scalia dissented.  And a commenter asked:

I
would be very much interested in any thoughts you have regarding
Scalia's recent dissent in a Georgia death penalty case in which he
argues that "This Court has never held that the Constitution forbids
the execution of a convicted defendant who has had a full and fair
trial but is later able to convince a habeas court that he is 'actually' innocent."

Is this as insane as it sounds?

The answer is . . . maybe.  I'll explain below the fold (wonky).  And I appreciate the advice I've received on these matters from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law (all errors remain my own though).

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Nomination: Worst Post of 2009

by publius As you may know, Professor Dawn Johnsen (Obama's still-pending nominee to lead OLC) has been subjected to extremely unfair criticisms, largely because she was a vocal opponent of Bush's lawless OLC.  But this post from Powerline is just repulsive.  It relates to the course Johnsen is teaching while waiting for our bold Senate … Read more

Why Grassley’s Comments Matter

by publius I wanted to return to Grassley's comments last week in which he essentially embraced Palin's "death panels" falsehoods.  To me, these comments have very significant implications on various fronts. First, I think Grassley's comments show the real significance of the town hall protests.  The media coverage has focused primarily on how the protests … Read more

This Is Better

by publius Marc Ambinder: An administration official said tonight that Health and Human Services Secretary Kathleen Sebelius "misspoke"[.]  . . .  A second official, Linda Douglass . . . said that President Obama believed that a public option was the best way to reduce costs and promote competition among insurance companies, that he had not … Read more

Dropping The Public Option

by publius Obviously, I disagree as a matter of both policy and negotiating strategy.  But, the public option isn't the main part of the bill, and it's not the hill that health coverage reform should die on. But… if it's going to be dropped, then the White House and Dem leadership need to get something … Read more

The Horrors of Free Health Care

by publius It's heartening to see Britain rallying around its health care system in the face of egregiously dishonest attacks and accusations.  Of course, as this NYT essay explains, the British system has its problems.  But the general British complaints about their health care system are being misinterpreted on this side of the pond. It's … Read more

The Finance Committee’s Continuing Good Work

by publius I'm too busy at the moment with school starting to say what needs to be said about this: The Senate Finance Committee will drop a controversial provision on consultations for end-of-life care from its proposed healthcare bill, its top Republican member said Thursday. There really aren't words to describe not only how ridiculous … Read more

Well, What Did You Expect?

by Eric Martin When faced with a staggering, worldwide economic meltdown spurred on by the greed and excess of our financial sector, the Obama administration (picking up where its predecessor left off) chose to…trust that same financial sector to sort out the problems, with the sorting out to be facilitated by an enormous chunk of taxpayer money.  This money came … Read more

Bleg: So I’m Aboot to Go to Toronto…

by Eric Martin I'll only be in Toronto for one night (am travelling to a nearby destination for a wedding), and I have two blegs: 1.  What is the best hotel (with money not being an enormous object)? 2.  What/Where is the most fun to be had (and what restaurants are good/unique to Toronto)? Thank you in … Read more

A User’s Guide to Bad Faith Health Care Arguments

by publius One challenge in countering the attacks on the health care bills is that they come in many varieties.  Steve Benen had a good post a while back describing the diversity among the critics (the "Greedy," the "Wonks," etc.).  The attacks themselves, though, are also fairly diverse — and some of them are more … Read more

Ingrates Abound

by Eric Martin Some Afghan women don't seem to appreciate all the freedom and democracy that we've been bringing: The U.S. invasion has been a failure, and increasing the U.S. troop presence will not undo the destruction the war has brought to the daily lives of Afghans. …[T]he tired claim that one of the chief … Read more

The Invisible Hand

by publius Paul Krugman speaketh wisdom: So it seems that we aren’t going to have a second Great Depression after all. What saved us? The answer, basically, is Big Government.  . . .   All in all, then, the government has played a crucial stabilizing role in this economic crisis. Ronald Reagan was wrong: sometimes the … Read more

Things That Aren’t True

by publius RedState's Jeff Emanuel's has a post called "Health Care Bill Fact of the Day:  'You Can Keep Your Health Plan,' But Once You Change it, the Government is Your Only Option."  He writes: [B]eginning the year this bill takes effect, individuals who leave their current insurer for any reason – whether it be … Read more

I’m Creepin’ and I’m Creepin’

by Eric Martin Marc Lynch makes a very good point: Suppose the U.S. succeeded beyond all its wildest expectations, and turned Afghanistan into Nirvana on Earth, an orderly, high GDP nirvana with universal health care and a robust wireless network (and even suppose that it did this without the expense depriving Americans of the same things).  … Read more

Waxman-Markey as National Security

by publius The military is increasingly worried about the national security threats posed by climate change.  The million dollar question, then, is whether these concerns will persuade skeptical, and/or industry-purchased, legislators to get behind bills like Waxman-Markey. The short answer is who knows.  But there's an interesting parallel here, I think, with the early civil … Read more

Why Size Matters

by publius David Frum is worried that politicians might learn the wrong lessons if the GOP "wins" health care.  He's specifically worried that Medicare will never again be touched.  At the American Scene, Conor argues that a better lesson for politicians to learn would be to "keep it simple": If health care reform is defeated, … Read more

Because Your Walls Need Some Spice

by publius Just wanted to give a quick shoutout to my friend Sarah Heller's new website.  She is a very talented artist and architect, and the site showcases her paintings.  It's very cool stuff, and you should check it out.

Death Panels – Sneak Preview

by publius Now that “death panels” have been added to the health coverage bill, the logical question is how to structure them most efficiently.  Personally, I hope Obama requires all death panels to be modeled after the Trial of Zod in Superman 2 (begin at 1:30):

It’s Evil, Alright

by publius Sarah Palin: The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama's "death panel" so his bureaucrats can decide, based on a subjective judgment of their "level of productivity in society," whether they are worthy of … Read more

Disintegration

by Eric Martin Robert Farley commenting on the Blackwater scandals as summed up in this highly recommended article by Jeremy Scahill: All that said, I wonder if the notion of a "civilized" mercenary company is simply an oxymoron. This is to say that, while we can identify situations in which a mercenary company might be … Read more

Defining Ransom Down

by Eric Martin It's Ralph Peters, so there's plenty wrong with this column, but this part in particular stuck out to me: Former President Bill Clinton crawled (well, flew in a Hollywood bigwig's jet) to Pyongyang to stroke the world's nuttiest dictator to free two journalists on ex-VP Al Gore's payroll. Glad the gals are … Read more

Waterloo Sunset

by Eric Martin He's got a point: As a columnist who regularly dishes out sharp criticism, I try not to question the motives of people with whom I don't agree. Today, I'm going to step over that line. The recent attacks by Republican leaders and their ideological fellow-travelers on the effort to reform the health-care … Read more

More Like This

by publius As I wrote earlier this week, the health coverage debate poses a fundamental David Simon-like challenge to the media.  Can the American media, as an institution, inform the public about what's really being proposed?  And can it do so in the face of sustained, outright falsehoods (not good faith policy disagreements). Well, this … Read more

Lessons of Sotomayor — They Ain’t All Good

by publius She's in.  So what exactly are the political implications of the debate we just saw?  To me, it seems like a mixed bag. Ed Kilgore thinks it's "lose-lose" for the GOP.  On the one hand, he argues that the GOP's opposition will hurt them with Latinos, an increasingly large and important demographic.  At … Read more

Help Me Not Go Insane

by publius Am I really supposed to take seriously this "snitch list"/"Big Brother" business from the same people who cheered on basically every single executive action during the Bush years?  I mean, massive secret interception of private communications is ok, but asking people to email misinformation is a "dissident database"? Help me understand — I'm … Read more

America’s Grassley Problem

by publius Chuck Grassley — the Democrats' point man on health care — was on Newshour yesterday.  (Best show EV-AH).  To put it mildly, I didn't get the sense that I was watching a man determined to make reform happened.  I think it was his repeated opposition to "government taking over health care" that made … Read more

Dangerous Misunderstandings

by publius Daniel Larison has an excellent post on the Russian submarines that appeared within a few hundreds miles of our coast.  You should read the whole thing. To me, his post illustrates one of the most dangerous, recurring problem in international relations — interpreting defensive maneuvers as offensive ones.  This misinterpretation occurs when we … Read more

The Pony Express Local, Part II

by Eric Martin In another example of the pushback against Colonel Reese's call for a slightly accelerated timetable for withdrawal from Iraq, The New Republic's Michael Crowley makes an appeal to the "tar baby conundrum," as I termed it back in March 2008: The tar baby conundrum goes something like this: If things in Iraq are chaotic and violent, well, … Read more