Via Sentencing Law and Policy, here's a welcome decision (pdf) by a federal judge in New Hampshire criticizing the DOJ's threatened use of the recidivist hammer in a drug case to get an overly harsh mandatory minimum sentence. The case is US v. Taliaferro, No. 08-cr-7-1-SM (D.N.H. Sept 1, 2009). As Prof. Berman writes, the beginning and the end of the opinion tell the story:

In this case, the government has effectively removed the court from the sentencing process, and dictated the sentence to be imposed. Exercising its considerable charging discretion in the context of applicable statutory mandatory minimum sentences, the government extended an offer that the defendant could hardly refuse: be subjected to a mandatory minimum sentence of 20 years in prison, or accept a binding plea agreement providing for a sentence of 15 years (based upon a drug charge carrying a mandatory minimum of 10 years, with the government declining to file a notice of prior conviction under 21 U.S.C. § 851, which would trigger the mandatory sentence of at least 20 years)....

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The Justice Department filed a brief yesterday in a case challenging the Defense of Marriage Act (DOMA). While it says Obama opposes DOMA and thinks it should be repealed, it still recommended the challenge at issue be dismissed.

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

Denver District Court Judge Larry Naves has vacated the jury verdict finding controversial professor Ward Churchill was improperly terminated.(Background here.) You can read the opinion here.

Naves ruled the Board of Regents had acted in a quasi-judicial role and had absolute immunity. I'm no expert in civil procedure, but wouldn't you expect him to rule on that before the trial, like at the summary judgment phase, to spare everyone (including us taxpayers) the expense of a trial?

As a result of the jury's verdict, Naves had the option of reinstating Churchill's job or ordering "forward pay" for him. The verdict should also have resulted in an award of legal fees for Churchill's lawyer. (The legal fees were about $1 million.) In addition to vacating the verdict, Judge Naves refused to order Churchill reinstated and refused to give him any "forward pay." And I guess because the verdict was vacated, no legal fees were awarded. So a jury finds Churchill was improperly terminated for his political views and he gets nothing. Nice going. (/sarcasm.)[More...]

Language evolves, as does the United States Constitution, which after all in physical form is just an assemblage of words. Linguists and English teachers have identified a complex set of rules to govern language just as judges have divined constitutional rules that govern your rights. The rules of English, like judicial precedent, sometimes reach a nonsensical endpoint. At those times you just have to stop pretending there are rules.

The British government, as custodian of the Queen's English, has decided that children shouldn't learn "I before E except after C" because, even if you account for neighbor and weigh with an additional rhyme, you're left with sufficient and weird. Here's the argument in support of teaching the rule even if it's incomplete:

[S]upporters say the ditty has value because it is one of the few language rules that most people remember.

The lesson we should learn: If judges crafted rules of law in easy to remember rhymes, Americans would be more likely to understand their Constitution. [there's one more amusing fact ...]

A federal grand jury has issued a subpoena to the Las Vegas Review Journal seeking the identity of anonymous online commenters:

The subpoena seeks the identities and personal information about people who posted comments on the story. The newspaper said prosecutors told the judge in the case that some comments hinted at acts of violence and the subpoena was issued out of concern for jurors' safety.

The grand jury is investigating possible tax offenses against business owner Robert Kahre. The paper said it will fight the subpoena. [More...]

The oddest legal question of the day might be this: Does gardening in barely legal, scanty attire constitute a public nuisance?

The renters of a home in Boulder are upsetting their neighbors by gardening in a state of nature -- or at least as close as they can get without breaking the law. The nudist couple, Catharine and Robert Pierce, don thongs when they venture outside; Catharine adds pasties. Some of the neighbors complain that the Pierces can be seen by the children who attend a neighborhood school or play in nearby parks. The couple's landlord is threatening eviction for violating a lease term that prohibits nuisance behavior if the Pierces don't begin to dress "appropriately."

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The FTC is going after a company that uses those annoying (and illegal) robocalls to market its extended vehicle warranties. The company -- Florida based Transcontinental Warranty Inc. -- wasn't easy to find. Employees are instructed not to disclose the company's name, and they're fired if they break that rule.

Fortunately, a former employee got fed up after only four days on the job and contacted the FTC. The information he provided corroborated customer complaints about the company's deceptive practices.

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And now for some good news:

The Obama White House on Wednesday undid a Bush administration policy that used federal health and safety regulations to limit the ability of injured consumers to sue companies in state courts.

This will irritate the Chamber of Commerce types who have no interest in "states' rights" when those rights include a consumer's right to sue businesses under state law. Business interests persuaded the Bush administration (and have often persuaded federal courts) that state law should be preempted by federal law to spare businesses the burden of complying with 50 different standards of liability. Of course, businesses aren't forced to do business in 50 different states, and it hardly seems unfair that they be subjected to the laws of those states in which they choose to do business.

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Via Raw Story, a liberal activist group has filed complaints with the state bars in the District of Columbia, New York, California, Texas and Pennsylvania, seeking disbarment of 12 lawyers who served in Bush Administration and were involved in defending torture policies. The lawyers are:

[F]ormer White House Legal Counsel attorneys John Yoo, Jay Bybee and Stephen Bradbury; former Attorney Generals Alberto Gonzales, John Ashcroft and Michael Mukasey; former Homeland Security Secretary Michael Chertoff; former chief of staff to Vice President Dick Cheney David Addington, Alice Fisher, William Haynes II, Douglas Feith and Timothy Flanigan

The complaints are available at DisbarTortureLawyers.

If you're a criminal defense lawyer, come join us in Aspen June 6 to 8 for the annual NORML Legal Seminar on defending drug cases. You'll get 15 CLE credits and have a great time. (The video is one I made of the 2006 seminar.) Here's the agenda.

My topic this year: "High Hopes and Modest Expectations: Drug Law Reform under President Obama and a Democratic Congress." [More...]

Don't miss this article in the Washington Times about an upset juror. Here's his letter to the Court (pdf) which is causing quite a stir.

The jury had acquitted the defendants of all but some small drug sales. Juror #6 learned from a press release the defendants could still get 40 years.

I write because I recently saw a press release from the US Attorney’s Office which states that Gregory Bell and Joseph Jones were sentenced to 16 years and 15 years, respectively, “for their roles in this case”. It also states that Antwuan Ball, Desmond Thurston, and David Wilson “each face up to 40 years imprisonment for the narcotics crimes for which they were convicted.”

Can this be true? We as a jury found these individuals guilty of somewhere around 20 instances of selling drugs, but as I remember it, most of these were very small amounts. And this was over a period of nearly 10 years. Now
I’m not a lawyer, but after 30 years of living in the District, I believe people selling small amounts of crack on the street usually end up with probation or only a year or two in prison if they have a previous offense.

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When the federal government brings its awesome powers to bear down upon you, it wreaks havoc with your life and can jeopardize not only your freedom but your faith in justice.

My faith in justice was renewed today when a judge ruled in favor of my client who had been subjected to a traffic stop and vehicle search on the interstate -- and suppressed the 12,000 ecstasy pills found in the car, because as important as it is to stop the flow of the drugs, it's just as important to uphold the Constitution.

I couldn't have won the case alone. These days, it takes a village to win. [More...]