This could be one of the more significant US Supreme Court terms for criminal law in recent memory. We've already had two major decisions on 4th Amendment law, Herring v. US (discussed here) and Arizona v. Johnson (here), and in the pipeline is Arizona v. Gant (here). This past week, the Court had oral argument in two more. Boyle v. US concerns the issue of what constitutes an "enterprise" for purposes of the Racketeer Influenced and Corrupt Organizations Act (RICO); the defendant argues that the enterprise must have some ongoing structure and existence beyond the commission of the racketeering acts. As I mentioned earlier, given the frequency of RICO prosecutions, this will be a signficant decision.
Kansas v. Ventris involves the issue of whether a defendant's statements to a jailhouse informant who was specifically recruited by the police to surreptitiously obtain incriminating information can be used for impeachment purposes. Although evidence obtained in violation of Miranda can be used for impeachment, the use of an informant in this manner is a violation of defendant's Sixth Amendment right to counsel, not his Fifth Amendment right against self-incrimination. There's some interesting contrasts between those two rights, and I'll have more on it when the decision comes down.
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Speaking of the Supreme Court, attention has begun to focus on what kinds of justices Obama is likely to nominate. Of course, that depends on vacancies opening up, and helpful here is this paper entitled "Modern Departures from the Supreme Court: Party, Pensions, or Power?" You can skim over to page 32 to view the Cox Proportional Hazards Results matrix to see the likelihood of retirement of Supreme Court justices from 1953 to 2007, or you can take the authors at their word that justices don't normally retire in order to ensure an ideologically-suitable successor, so the idea that 89-year-old Justice Stevens, arguably the most liberal member of the Court, was fighting to stay on the bench until a Democratic president was elected isn't likely.
Meanwhile, Balkinization has an article on what types of nominees Obama is likely to pick for the lower rungs of the judiciary. Academic research on the topic shows that Senate control by the opposite party is the biggest constraint on nominations, and Obama doesn't have that problem.
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There's much ado recently about Olympic medal-winner Michael Phelps having a hit or two of marijuana. The publication of the picture at right led to the normal public handwringing by Olympic officials and Phelps' corporate sponsors, and was quickly followed by Phelps' abject mea culpa about his "bad judgment," coupled with promises that he had seen the error of his ways. The always-reliable Radley Balko has a letter he thinks Phelps should have written instead. An excerpt:
Here's a crazy thought: If I can smoke a little dope and go on to win 14 Olympic gold medals, maybe pot smokers aren't doomed to lives of couch surfing and video games, as our moronic government would have us believe. In fact, the list of successful pot smokers includes not just world class athletes like me, Howard, Williams, and others, it includes Nobel Prize winners, Pulitzer Prize winners, the last three U.S. presidents, several Supreme Court justices, and luminaries and success stories from all sectors of business and the arts, sciences, and humanities.
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Sure, it was two below zero when I got out to my car yesterday morning, but at least there's some things I didn't have to worry about on my ride in to work.
See you Monday.