Monday, September 25, 2006

All my blogs

WINNING FEDERAL CRIMINAL CASES - http://winning-federal-criminal-cases.blogs
Dissenting Opinions -
Winning Federal Criminal Cases -
Ineffective Assistance of Counsel -
Interesting Criminal Cases -
Winning SSI Disability Cases -
Homeless in Heaven -
Habeas Corpus Winners
Montana Winning Cases http://montana
Winning Daily Decisions
Daily Decisions - MarkGivenPhotographs

Wednesday, September 20, 2006

Sounds like a dissent to me...

BARKETT, J., specially concurring
No. 05-11329 D. C. Docket No. 03-80094-CR-DTKH UNITED STATES OF AMERICA, NATHAN DESHAWN FAUST, “There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account,” especially in the formulation of trial strategy. Winship, 397 U.S. at 364 (citing Speiser v. Randall, 357 U.S. 513, 525 (1958). Our Circuit’s Duncan rule severely compromises defendants’ ability to properly account for this margin of error, tailor an optimal trial strategy, or indeed formulate any minimally satisfying strategy whatsoever. Faced with multiple allegations supported by evidence of varying persuasiveness, Faust’s largely successful effort to escape guilt beyond a reasonable doubt could not preclude, and, in its successs, actually might have contributed to, his punishment for those acquitted offenses under a lesser standard of proof. I do not believe the Constitution permits this cruel and perverse result.

“[T]he government's ability to make its case vastly exceeds a defendant's ability to rebut
it. The financial resources of the prosecution and the ability of prosecutors to access police, informants, and experts usually are much greater than those of defendants' counsel. . . . [P]resentence reports often rely excessively on the prosecutor's files for their information . . . and hearsay evidence [there]in . . . or from confidential informants is difficult and costly to rebut. The absence of equal litigation resources thus makes the preponderance of evidence standard generate even more errors – errors that fall primarily on the side of deprivations of liberty for
individuals.” Restrepo, 946 F.2d at 675 (Norris, J., dissenting).

Tuesday, September 12, 2006

death penalty is fairly and rationally imposed in this country is a farce.

Moore v. Parker, 425 F.3d 250 (6th Cir. 2005)(MARTIN, J delivered a separate dissenting opinion.
I have been a judge on this Court for more than twenty-five years. In that time I have seen many death penalty cases and I have applied the law as instructed by the Supreme Court and I will continue to do so for as long as I remain on this Court. This my oath requires. After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair. I have no delusions of grandeur and I know my place in the judiciary. My oath requires me to apply the law as interpreted by the Supreme Court of the United States. I will continue to do as I am told until the Supreme Court concludes that the death penalty cannot be administered in a constitutional manner or our legislatures abolish the penalty. But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce.

Public Defender’s Office were leaking information

Plumlee v. Sue Del Papa, 426 F.3d 1095 (9th Cir. 2005)(state supreme court unreasonably applied clearly established federal law when it determined petitioner was not deprived of his Sixth Amendmentright to counsel).(Plumlee had reasonable and in good faith believed that members of the Washoe County Public Defender’s Office were leaking information about his case to another suspect in the case and to the District Attorney). Of course, under the majority’s decision, the Nevada courts may retry Plumlee and seek a new conviction. Yet after thirteen years, memories fade, evidence grows cold, and witnesses disappear. The majority releases Plumlee—thirteen years into his two life sentences without possibility of parole —by refusing to follow congressional command and by fashioning a new, unworkable rule which raises to constitutional dimensions a defendant’s unfounded suspicions and refusal to cooperate with his appointed attorneys. I cannot agree with such an unsupported decision. Accordingly, with respect to my colleagues, but with the utmost regret for their misguided opinion, I dissent. BEA, Circuit Judge, dissenting