Crime & Federalism

You heard it here first: Tom DeLay will plead guilty to one count of criminal conspiracy in Texas.

The House Speaker was indicted by a Texas grand jury today. He is charged with conspiracy to violate campaing financing laws. Two political associates of DeLay's were also indicted.

A spokesman for DeLay was quick to blame partisan politics for DeLay's newfound status as defendant. "They could not get Tom DeLay at the polls. They could not get Mr. DeLay on the House floor. Now they're trying to get him into the courtroom," huffed Kevin Madden, a DeLay mouth-for hire.

Let's be real. Only Tom got Tom. He is no victim of a conspiracy. He is accused of taking corporate cash, laundering it through the Republican National Committee, and then having it distributed to Texas Republicans in violation of Texas law. Sooooooee, said Tommy.

So why am I so sure he'll plead? A line in the indictment notes that his lawyer waived the statute of limitations on the conspiracy charge during grand jury proceedings. Why would a competent lawyer waive a complete defense? Because worse was on the way if he did not.

Initiates know the practice as charge-bargaining. You see a funnel cloud barreling at you and you ask your local prosecutor, quietly, "on what charges are you willing to take my client if he pleads?" I suspect DeLay will enter a plea late in the year.

DeLay gets time to step aside. House Republicans get a chance to regroup and spin the cancer out of their midst.

I wonder if Karl Rove will offer Delay a job supervising intelligence operations. A hatchet like Tom's is hard to find.

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The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause...."  At issue in  United States v. Grubbs (read Orin Kerr's summary) is whether anticipatory warrants, which issue before there is probable cause, are unconstitutional.  If the Justices are consistent, then the answer is clearly, "No."

Last Term, in Groh v. Ramirez, seven Justices (Rehnquist, Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer) expressed the view that a search warrant that did not comply with the Fourth Amendment's textual requirements was invalid under the Fourth Amendment.  In Groh, a federal agent forgot to attach the appendix to a search warrant: the appendix contained the persons and things to be searched and seized.  Thus, the warrant did not "particularly describ[e] the place to be searched, and the persons or things to be seized." Although Justices Kennedy and Rehnquist disagreed with the majority over whether the federal agent could be held liable for forgetting to attach the appendix, they agreed that a warrant that does not comply with the text of the Fourth Amendment is unconstitutional.  A dissenting Justice Kennedy wrote:

I agree with the Court that the Fourth Amendment was violated in this case. The Fourth Amendment states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  The warrant issued in this case did not particularly describe the things to be seized, and so did not comply with the Fourth Amendment.  

Anticipatory warrants do not comply with the Constitution's text, and thus according to at least six (or five, if O'Connor's replacement is named before the case is decided) sitting members of the Supreme Court, are unconstitutional.  Of course, I don't think things are this easy.  But I'll be anxious to see whether any Groh Justice change his or her mind and refuses to apply the Fourth Amendment's text to anticipatory warrants.

And in case you're wondering, our favorite textualists, Justices Scalia and Thomas, are quasi-textualists when it comes to search warrants.  Dissenting in Groh, Justice Thomas wrote:

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  The precise relationship between the Amendment’s Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While "it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness," California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring in judgment), the text of the Fourth Amendment certainly does not mandate this result.

Thus, U.S. v. Grubbs will be very interesting.  Will Justice Breyer, unlike in Groh, decide that the Fourth Amendment's literal text need not be obeyed?  Will Justices Scalia and Thomas decide that searches conducted pursuant to anticipatory warrants are reasonable, since warrants aren't required under the Fourth Amendment?

During Katrina, New Orleans jailers left pretrial detainees to drown in their cells.

This appears to be a very interesting cases raising the availability of relief under the Alien Torts Act for an arrested foreign national who was never informed of his right to meet with his consulate.  Jogi v. Voges, No. 01-1657 (7th Cir. Sept. 27, 2005).

"Clarence Darrow calling collect. Will you accept?"

This has to be a joke. Bored, I take the call.

"Yo, Clarence. Wassup?"

"I'm in Hell," a deep baritone responded. I heard what sounded like unearthly howling in the background.

"Yeah, me, too." I said. Who is this, I wondered.

"They're trying my case again. I've been given one call to warn the plaintiffs to back off," he said.

"What plaintiffs?"

"The Scopes case is being tried again in Harrisburg, Pennsylvania."

"You mean that `intelligent design' gobbledy gook?"

"Be careful what you say." The voice sighed with such weariness. "Recall that I lost that case on Earth; and," he paused, "again in the afterlife."

The call ended as abruptly as it began.

The creationists did win the Scopes trial, a fact forgotten by most. Scopes was convicted of teaching evoluntion. But times have changed. Now proponents of something called intelligent design are defending the right to teach high-gloss religion in science classrooms.

Whether the world began by chance and circumstance or was the product of design is the sort of debate that never ends. It is also a debate about metaphysics and the great beyond. The traditional arguments for the existence of God settle nothing.  Faith, we are told, is the substance of things hoped for, not inferences based on circumstantial evidence.

God, Laplace once amously observed, is a hypothesis without use in terms of explaning what occurs in the natural world. Intelligent design is merely a parallel possible universe. Is it possible that it is true? I suppose. It is also possible that we are reincarnated and that those of us who practice law were destined to this trade for misdeeds done in prior life. But what is the cash value of this sort of silliness in terms of charting cause and effect?

It is deeply satisfying for some to talk about God, and to pray, to meditate and to meet together to share their beliefs. I don't begrudge anyone the right to face the unknown with the creed of their choice. But intelligent design isn't science and it does not belong in a science classroom any more than does faith healing in a medical school curriculum.

Did God create the world, designing its shape and contents? Beats me. Whether the spark of life was ignited by chance and space, time and even the notion of cause are mere contents of minds craving order is the stuff of profound philosophy and deep faith. I've never read a scientific paper in which "God", "intelligent design" or an article of faith contributed anything that was not disposable.

Intelligent design is clutter that should best be reserved for Sunday school are religious training. Whether God exists or not is not science, and it demeans religious sensisbility to suggest otherwise.

I guess I'll be seeing Darrow in Hell.

Inspired by the comments to this post, I'm going to define some terms.  I'll be working on this during breaks.

Circuit split: A disagreement between one or more federal circuit court of appeals on an issue concerning federal statutory or constitutional law.  The Court has lately become obsessed with resolving circuit splits, and will frequently grant cert. to resolve the split, so long as the split is direct and involves an important federal issue.

CVSG: "Calls for the Views of the Solicitor General."  When someone is litigating the meaning of a federal statute, the Court will "invite" the Solicitor General to provide the federal government's view of what the law means.  The Court likes to do this in patent cases.   Milbarge discusses CVSG here.

DIG (or "digged): "Dismissed as improvidently granted."  That is, the Court granted a petition for writ of certiorari and later realized that it should not have granted the cert. petition, usually because of a jurisdictional defect.In other words: "Hey, we screwed up.  We don't have jurisdiction to hear the case.  Go away."  See    Nike, Inc. v. Kasky.

GVR: "Grant, Vacate, and Remand."  Let's say the Court decides a case that might affect other cases where parties have petitioned for certiorari.  The Court will GVR the case, that is, grant   the petitioner's petition for a writ of certiorari, vacate the lower court's opinion, and remand the case for consideration in light of the Supreme Court's new case. Sometimes lower courts apply the Supreme Court’s precedent.  Other times they ignore it and hope that since the Court just heard a similar case, it won't grant cert. and bench slap them.

Stern & Gressman: The original co-authors of Supreme Court Practice, which is now in its eighth edition.  Supreme Court Practice is, according to Kenneth Star, an "indispensable treatise for the Supreme Court practitioner. Both scholarly and practical, brimming with insights for the academic and the practicing lawyer, the treatise richly deserves a highly prominent place on the practitioner’s desktop."  Supreme Court Practice, referred to as Stern & Gressman, is also known as "the Bible."

Term: Orin Kerr nicely defines "Term" in this post:

It occurs to me that some readers probably find it pretty confusing when they come across references to Supreme Court "Terms," "October Terms," and the like. To clarify, the Supreme Court works on a yearly calendar schedule. The first day of the Supreme Court's annual schedule is the first Monday in October, as set by a federal statute. To simplify a bit, everything the Court does starting on that day in October until the same day the next year is part of the "October Term" of that year. The Court generally starts hearing oral argument for the cases on its docket on that day, and generally hears cases on and off until the early spring. The Court then tries to get (and under Rehnquist, succeed[ed] in getting) all of those cases decided and published by the end of June.

Other terms that require a definition:

• brief in opposition
• conference
• cert. worthy
• long conference
• merits brief
• petition for certiorari/cert. petition
• petitioner's brief
• reply brief
• respondent's brief

If you know of a place already defining these terms, please let me know.

Mary Neumayr has this enlightening article from the Oct. 2002 issue of Engage.  Ms. Meumayr also published a "white paper" (a long article) entitled "An Examination of the Criminalization of Commercial Activity."

Courtesy of the White House.  (Via incredulous)

This is an easy one, but hey, I gotta grab 'em when I can.  I predict that at the Court's conference tommorrow, the Court will GVR U.S. v. Maxwell (the Commerce Clause/child p*rn case).  Cert. petition here; reply brief here; docket entry here.