Alanis Morissette could have used this. It would have made more sense than a death row pardon that came too late.
Do you think RBG has taped a copy of this to Scalia's chamber door?
On the one hand, yes, god, that really is depressing. On the other hand, I'm not sure that the death penalty has anything to do with it. It would have been just as depressing if he'd spent 30 years in prison on a life sentence, instead of on death row. And what's most depressing is the fact that most people aren't in jail that long anyway, which means they don't have anyone working that long to prove their innocence. So they're just released after a few years and left to live the rest of their lives as convicted felons.
It would have been just as depressing if he'd spent 30 years in prison on a life sentence, instead of on death row
What I think is missing in your calculus is what happens after you're on death row.
4: If he hadn't been on death row, there probably wouldn't have been as much attention to exonerating him. If we could get rid of the death penalty, then we could turn our attention to exonerating all those unjustly sentenced to life imprisonment.
2: What would be the point? Scalia is infamous for not particularly seeing a problem with executing innocent people, so long as they got their shot at a trial.
Natilo Paennim strikes again!
And the scary (innocent) black man is coming to live in your neighborhood!
2- I'm sure he'd claim he doesn't remember that particular case. I don't know if it would be more depressing if he were lying or telling the truth about not remembering.
6: Which is part of the problem with the death penalty - the desire to have it perverts our system of justice, leading us to do things like restricting appeals so that we can get on with the business of executing people. If we didn't have the death penalty, do you think the question of whether actual innocence was grounds for judicial review would even be a serious question?
Yeah, Scalia is unreachable on death penalty issues. For the moment you have to focus on Kennedy.
I wouldn't be surprised if RBG (or Sotomayor - this is actually even more up her alley) had a clerk file this away for later use in a dissent, though (or, with luck, in a majority or concurring response to a Scalia dissent).
And where "defense attorney both drunk and unqualified" was a substantive procedural violation.
13: Kinda sorta reasonable, but in the actual real world, still pretty horrible.
13: So wait, does Scalia actually discount new evidence as a reason for an appeal?
17: Based on my extensive legal training, consisting mostly of vague recollections of the plots of movie versions of John Grisham books, I thought it was difficult to introduce new evidence on appeal, and that appeals are mostly intended to address procedural shortcomings of the original trial, or to challenge the legal reasoning behind the original decision. Is this correct, or just more Hollywood nonsense?
13: I'm not convinced. Why does a court judgement need to have finality, if we become convinced that the basis for it was fundamentally wrong, if not "so we can execute people and be done with it"? Sure, you want a reasonable threshold so that courts don't get tangled in perpetual litigation. But is anyone fundamentally opposed to overturning a person's conviction for theft if the supposedly stolen item turns up misplaced by the owner years later?
New evidence really isn't a reason for an appeal. That's not just Scalia talking; it's the general rule. If you find new evidence soon enough you can get the original judgment reopened. If you don't find it soon enough then you need some other procedural vehicle (such as showing that the new evidence proves you never received a fair trial in the first place, because the original lawyer was incompetent for not finding the evidence; then you can file a petition for habeas corpus).
The only area that's really open to dispute is whether there should be an exception to that rule in cases where the new evidence of innocence is really, really good -- so much so that no reasonable jury, seeing all the evidence, would never have convicted the defendant in the first place. That's the argument that Scalia is having with the other Justices.
Theoretically Scalia's position on this issue is all quite sound, and the question boils down to whether you'd rather have a sound theory or whether you'd rather have judges stop innocent people from being executed at the cost of a certain amount of theoretical fuzziness.
19: My uninformed understanding of the matter is that the remedy for "new evidence was found that proves (s)he is innocent" situations was supposed to be a pardon from the governor.
The trouble is that that rarely happens because governors are afraid that pardoning people makes them look "soft on crime".
the question boils down to whether you'd rather have a sound theory or whether you'd rather have judges stop innocent people from being executed at the cost of a certain amount of theoretical fuzziness you're a heartless monster.
See, I think it stings more if you let the reader draw that conclusion.
Wow, that's not something I understood at all in my almost non-existent legal education. That's deeply depressing. :-(
20 isn't wrong, but concedes way too much to Scalia in my view. There's a perfectly sound constitutional argument that, where a criminal defendant, especially in a capital case, can show either (a) that no reasonable jury could have convicted him beyond a reasonable doubt if the new evidence had been available (Justice White's standard in Herrera v. Collins) or maybe (b) that new evidence exists that affirmatively shows that it is "probable" that the person is innocent (Justice Blackmun's standard in Herrera v. Collins), it's a constitutional violation to execute them.
The arguments for introducing post-conviction evidence of actual innocence are at least as "sound" theory legally as Scalia's theory is, and are equally supported by constitutional law principles. Scalia is basically just making up constitutional law from his instincts and his ass here -- at any rate not any less so than the more liberal justices. The liberal arguments to the contrary aren't more "fuzzy" legally, they're just different. It always rubs me the wrong way when people confuse harsh rules with correct legal rules, or accept Scalia's claims to be rigorously applying the law at face value. Those professions from him are almost always wrong.
Which points out the contrast with judges who don't have a soft spot for the innocent ones.
I can see how "Nazis" gets you into the free-associative vicinity of "hate speech" (sort of), I find it hard to believe that cops are a protected class (except for, you know, the consequence-free murdering).
The cops are the most protected class, no?
I'll make one concession to 26, which is that I should have said "clear" rather than "sound," which implies substantive agreement with Scalia. I think it's sound to decide cases on the basis of precedent; precedent in this area is nothing if not fuzzy, because judges have been grappling with these issues for a long time; it follows that fuzziness can be sound.
That said, the shocks-the-conscience test (on which Blackmun would have relied in Herrera) really is fuzzy, and involves a good deal more judicial fiat than I would generally prefer to see in most areas of the law. Same for evolving standards of decency. And yet it is wrong to execute innocent people; so judges should read the Constitution so as to recognize that, if the political branches won't do it by legislation or clemency.
I really don't like "fuzzy" as a stand-in for "procedural protection provided by a court." This is partly a matter of personal taste in language use but it's also a matter of principle. Also, you're wrong about Blackmun in Herrera -- he would have required an affirmative showing of more-probable-than-not affirmative innocence before a habeas petition on 8th amendment actual innocence could have been heard. Not just a purely amorphous "shock the consciensce" test. That's a legal standard that requires more judicial discretion than a rule that we never reopen convictions based on new evidence, no matter what (which, by the way, has never been Anglo-American law but whatever), but it's not a "fuzzy" standard, it's the general standard used to make findings of fact in American law.
28: Don't forget Jonesboro too, or the FACE prosecution of Bash Back!, or the AETA 4...
It's always something. You can't be too cynical.
I don't actually like arguing Scalia's side of this issue at all, so I'm going to stop now before I get drawn into doing that by the heat of the argument. (Also I have a draft that I have to get back to.) Let it stand that Halford has successfully defended Justice Blackmun's honor and rigor.
In the UK they used to hang people inside a month to avoid having to worry about this kind of thing.
AETA 4
Oh, the people who showed up with masks on the front lawns of over a dozen private residences of various UC faculty and firebombed two of them? Shocking how they magically got in the crosshairs of law enforcement for that.
Justice Blackmun's honor and rigor
This is a euphemism for an erection that you all learned in law school?
See, the problem with the whole "cruel and unusual" standard is 1) by formal logic it has to be both to violate (and instead of or) 2) If you fuck up something enough by, say, executing a bunch of people who had evidence of innocence but weren't allowed to present it, such cases are no longer unusual and are therefore constitutional.
36: Has anybody actually claimed the AETA 4 firebombed anybody? The only stuff I could find was about protests which the government claimed went over the line, without really saying how. According to the judge who dismissed the charges for vagueness, the most specific the government got in its indictment was this:
A. On or about October 21, 2007, defendants BUDDENBERG, POPE, STUMPO, and others known and unknown to the Grand Jury, engaged in acts involving threats, criminal trespass, harassment, and intimidation at a bio-medical researcher's residence in the East Bay;
B. On or about January 27, 2008, defendants BUDDENBERG, KHAJAVI, POPE, STUMPO and others known and unknown to the Grand Jury, engaged in acts involving threats, harassment, and intimidation at several bio-medical researchers' residences in the East Bay;
C. On or about July 27, 2008, defendants POPE, STUMPO and another person known to the Grand Jury used the Internet to find information on bio-medical researches at the University of California at Santa Cruz.
It's kinda hard to figure out what the government thought the defendants were doing (except for the utterly damning "used the Internet" piece, of course); but I don't see how firebombing could come into it.
Unsurpisingly, Dahlia Lithwick uses the opportunity to sharpen her quill:
It never fails to astonish me that the same conservatives who argue that every last aspect of big government is irreparably broken and corrupt inevitably see a capital punishment system that is perfect and just.
I'm having trouble finding info not from activists, but it seems there were some firebombings of researchers, likely from animal rights groups, but no one was ever charged for them. Apparently we're to understand a vague prosecution of protest activity as a proxy for an unproven crime on the time-honored legal principle "c'mon, who else could it be?"
41: You participate in a campaign to terrorize people at their homes and and maybe you catch a charge. People who pull that shit don't get to fucking cry about it after.
People get to do a lot of things. It's a free country!
Is it? They tell you it's free, and then you find you're locked into an exclusive two year contract.
39: and let's not forget that America has a long and noble tradition of concerned citizens (sorry, Concerned Citizens) putting on masks and gathering on undesirable's lawns in order to threaten, terrorise and intimidate them. I believe they may on occasion also have set things on fire.
38: Is there in fact a problem with punishments that are uncruel but unusual?
46: I suppose they allow more scope for judicial bias and unfairness. If you say "this offence is a third-class felony and if you do it we'll bang you up for a year" then it's a clear benchmark. Prison is prison. Start allowing unusual punishments and there's a risk that, every time a black guy gets caught speeding, he has to spend the night nailed up in a barrel full of herring, while white guys get let off with just having to dress up as Judge Learned Hand and sing the entire score of "Oklahoma!" while standing on a box in the public square.
I probably could have done that from memory fifteen or twenty years ago, if you weren't fussy about my being on key. By now, though, I've lost half the words to "The Farmer and the Cowman Should Be Friends." I'd probably have to opt for the herring.
How do you handle the cases where people were convicted on the basis of bloodtype when the DNA doesn't match. That's not new evidence, just a new tool for interpreting evidence. You could have met every procdural requirement just fine, and it would still be unjust.
48: the implied admission here is that LB's Halloween costume is indeed "Sexy Judge Learned Hand".
How do you handle the cases where people were convicted on the basis of bloodtype when the DNA doesn't match. That's not new evidence, just a new tool for interpreting evidence.
IANAL, but the argument here might be that the evidence is not the blood sample per se, but the blood-type or DNA analysis report.
It takes a special kind of person to make an off-key performance of "I'm Just A Girl Who Cain't Say No" in judicial robes sexy.
42: You participate in a campaign
Guilt by association much?
to terrorize people at their homes
On second thought, I'm eagerly anticipating the prosecution of every SWAT team in the country.
I thought he'd promised not to tell anyone about that weekend.
38: Is there in fact a problem with punishments that are uncruel but unusual?
I think this comes up on occasion with punishments like a wayward judge who loves to make teenagers wear sandwich boards saying that they shoplifted from the store they're standing out in front of.
iCloud isn't secure.
Nor is it, the Daily Mail has felt it necessary to remind its readers, an actual cloud.
http://macdailynews.com/2014/09/03/the-daily-mail-apples-icloud-is-not-an-actual-cloud/
Having looked up some photos, I now realise that a Judge Learned Hand costum would simply be a nice suit and a pair of fake Groucho Marx eyebrows.
Seriously, if eyebrows were a secondary sexual characteristic, this guy would have been the Jayne Mansfield of the federal bench.
51 is correct. The evidence would be the DNA analysis, or the expert report explaining that analysis; it would be "new" in the sense that it could not have been obtained earlier because of technological limitations.
To 50 et seq., there is a joke involving the phrase "judicial restraint" around here somewhere, and possibly "spirit of liberty."
Nor is it, the Daily Mail has felt it necessary to remind its readers, an actual cloud.
Not only is it not a literal, fluffy cloud, it's not even a dropbox-type file storage space. It's a total scam. It just syncs your devices. So if you increase your icloud storage - which I did, when my freebie storage was used up, I started paying $5/month - I was just increasing how much it let me sync per month, which barely makes any sense, and mostly just meant I had too many files on my phone.
When I finally figured out that you couldn't go browse your icloud space anywhere is when I finally realized it was misrepresenting itself, at best.
61: I don't see how that's a scam, even if it isn't really what you wanted. It's still storage in the cloud.
53: Guilt by association much?
Well, guilt by association actually is a valid concept, at least if you're talking about things like "conspiracy" and "joint endeavour". As I say, if you're arguing that it should be legal to put on masks and gather on people's lawns for the specific purpose of intimidating and terrorising them, then great, just give me a minute to tell the Klan, they'll be delighted.
Speaking of judicial restraint, DC Circuit grants en banc rehearing and vacates earlier judgement. Orals on December 14th.
63: So you're arguing that systematic terror that reinforces societal norms and is endorsed by the governing elite is comparable to this instance? Bad faith called and said stop embarrassing it.
Shorter me: Analogy ban, reasons for.
It doesn't matter if people making terroristic threats "reinforce societal norms", if they are terrifying and go unpunished.
"you couldn't go browse your icloud"
Yes, this- I'm backing up my photos but can't see them from any other device? Actually I think I could but only if I paid to upgrade whatever Life applications like photo came for free with my desktop and laptop. So I have to pay to store them and pay to read them.
Also, I'm not sure but I think the sync included apps- if my phone dies can't I just get the apps from the store again? Are there millions of copies of the plants vs. zombies app backed up in cloud accounts? Or maybe it was just app data so I can safely recover the fact that I've beaten the shit out of zomboss several times.
iCloud isn't secure.
It doesn't look like there was a specific flaw in icloud that was exploited, at least according to Apple, and why would they lie? But it seems that people were specifically targeted and had their passwords hacked, whether through phishing or social engineering, I don't know.
As an Apple Developer©™, I felt obligated to be humorless.
Prescient CA Leg is prescient - or rather, the "revenge porn" bill in the news some months ago appears to cover this situation too. (Although the bill won't take effect until next July, it's just been passed in final form by both houses unanimously.)
70 doesn't really let Apple off the hook, since their password reset flow is horrendously insecure.
Is anyone else just a little bit sceptical that this time all those nude pictures of celebrities really were leaked/stolen, unlike all the other times in the past when other celebrities have leaked this kind of thing (and much worse) themselves deliberately in order to get publicity?
76: Dozens of unrelated celebrities all at the same time?
We actually know what happened here, so 76 is crazy conspiracy theory mongering. You think J-Law hired people to fake a bunch of 4chan posters and had them break into other celebrities stuff for cover? That they all got together and decided to make a huge joint leak which instead of going public was kept within a small circle for months before someone in that circle decided to start selling for bitcoin? 76 is birther level crazy.
53: Guilt by association much?
Ajay beat me to it, but yes. Sheesh.
76, 77, 78, 79: Yeah, no, not even the tiniest bit.
79: I think it's real hacking, but I don't much care about this one. The fact that anything on the net isn't private and secure is how old now?
It doesn't look like there was a specific flaw in icloud that was exploited, at least according to Apple, and why would they lie?
Presumably the question is not intended seriously.
You seed the cloud, and nude pictures of celebs rain down.
You seed the cloud
Rule 34, here I come.
Even if a couple dozen celebrities decided to collude and leak photos, you'd expect them to be more flattering than a lot of these are.
63: Well, guilt by association actually is a valid concept, at least if you're talking about things like "conspiracy" and "joint endeavour".
But generally the government gets it together to allege some specific action, even in completely bogus conspiracy accusations. Did the prosecutors in this one come back with a more specific indictment after the judge threw out the first one for vagueness? I can't find any reference to that on the web.
I don't see how that's a scam, even if it isn't really what you wanted. It's still storage in the cloud.
No, it doesn't store things. It just syncs them. Which your devices already do.
What we have here, is failure to communicate.
72: to the blog.
I want to read this in an orange-post title "to the ramparts!" kind of way.
"A celebrity has just died! To the blog!"
77 et seq: I admit that I don't actually know the details of what happened here except insofar as a celebrity took nude pictures of herself and then apparently they leaked online and everybody got to know about it, and apparently unlike literally every other time in history when a celebrity took nude pictures of herself and then apparently they leaked online and everybody got to know about it, this time it really was a leak and not a publicity stunt.
91: For some reason a lot of the coverage has been very Jennifer Lawrence-centric but the leaks involved literally dozens of celebrities, many of whom I have never heard.