May 27 USA: Owen to join court tough on death penalty Texas Supreme Court Justice Priscilla Owen will join a federal appeals court already dominated by Republican judges with a record of toughness in death penalty cases but not easy to pigeon-hole on other constitutional issues. Owen was confirmed to the U.S. Court of Appeals for the 5th Circuit on Wednesday by a 55-43 Senate vote. She was the first of President Bush's court nominees to be confirmed since 14 senators agreed to avert a showdown on the filibuster, the maneuver that allows a minority to block votes. The court she joins handles disputes from Texas, Louisiana and Mississippi. In recent years, the U.S. Supreme Court has reversed a series of rulings by the 5th against criminal defendants. While the high court generally draws a hard line against prisoner appeals, it has found the 5th Circuit imposing stricter - and improper - standards. In 2004, the justices said the 5th Circuit wrongly denied the appeal of a man with an IQ of 67 who challenged his death sentence on the grounds that the jury failed to consider mitigating evidence. The high court said that "despite paying lip service to the (legal) principles" regarding inmate appeals, its analysis "proceeded along a distinctly different track." A year earlier, in 2003, the high court revived a condemned prisoner's claim that prosecutors systematically kept blacks off his jury. The justices said the 5th Circuit set too high a threshold standard for state prisoners trying to challenge their cases in federal court. That case of Thomas Miller-El, convicted in 1986 of murdering a hotel clerk, is back at the Supreme Court this term. The justices in December heard Miller-El's appeal of a subsequent 5th Circuit decision against him. Overall, the 5th Circuit has a conservative reputation, but it is not conspicuous among the 12 regional appeals courts. "It's a conservative court, but it's a court that mirrors the conservatism of the (Supreme) Court," says Thomas Baker, a law professor at Florida International University who taught at Texas Tech University law school for nearly 2 decades and studied the 5th. Abortion rights was at the forefront of Owen's hearings, partly because she had dissented from a 2000 Texas Supreme Court decision giving judges considerable latitude to grant a young woman's request to obtain an abortion without notifying her parents. The 5th Circuit in recent years has followed U.S. Supreme Court precedent on abortion rights. In 2000, it struck down a Louisiana law that banned a procedure known by its critics as "partial birth" abortion after the Supreme Court had invalidated a similar Nebraska law that had no exception for women who might need the procedure for health reasons. Owen has been a state court judge for 11 years, and it is difficult to know how she will fit in on the 5th Circuit. She also has no record on constitutional criminal matters because a separate court in Texas handles criminal appeals. (source: USA TODAY) ********************************** Federal appeals courts increasingly the final stop in legal battles Gay couples can't adopt children in Florida because a federal appeals court says the U.S. Supreme Court went too far in a 2003 gay rights ruling. In California, one court says the Constitution contains no protection of an individual right to bear arms, but another in New Orleans says it does. The appeals court in New York says it's OK to tell candidates for public office how much they can spend in their campaigns, despite a 1976 Supreme Court ruling that appeared to outlaw those kinds of limits. That's the power wielded by the nation's 13 federal circuit courts of appeal, and it's a potent reminder of why the Senate spent the last 2 weeks courting procedural Armageddon over 7 nominees to the bench. Many political observers and interest groups have cast the fight over Democratic threats to block some of President Bush's appeals court nominees as a prelude to the expected struggle over how to fill the next Supreme Court vacancy. But a look at the rising importance of the appeals courts shows how much is at stake for both sides in the confirmation battles for such nominees as Priscilla Owen, William Pryor and Janice Rogers Brown. Appeals courts are often the last stop for the vast majority of cases involving everything from abortion and affirmative action to election law and environmental regulations. The Supreme Court under Chief Justice William H. Rehnquist has been intervening in only about 80 cases each year, down from about 150 a year two decades ago, leaving tens of thousands to be decided by appeals courts that are increasingly shaping the nation's laws. "The appeals courts are critical decision-making bodies on a range of issues," said Thomas Mann, a senior fellow at the Brookings Institution. "As the Supreme Court takes fewer and fewer cases, the appeals courts are more frequently having final say. Both sides know this, so it forms the backdrop for the entire fight." Also in the background, experts say, is the overwhelming Republican dominance of the appeals courts, thanks to five Republican presidencies over the past three decades versus 2 Democratic ones. Republican-appointed judges now hold majorities on 10 of the 13 appeals courts, and the pace of appointments is accelerating as new seats are created and other judges retire. In five years in office, for example, President Bush has managed to appoint a majority of the judges who now sit on the 8th Circuit Court of Appeals in St. Louis. "I think a number of Republican political figures have made it a priority over the past few decades to change the ideological tendency of the federal courts, and that's evident in a number of ways," said University of Chicago law professor Cass Sunstein. "Democrats have become concerned about this in recent years, so they're pushing back in the only way they can. That's what's going on." Sunstein said that while most judges follow the law rather than making it, it's also true that Republican and Democratic appointees to the bench approach some of the most potent social issues with distinct differences. In a Virginia Law Review article he authored with two other law professors, Sunstein says a study of judges' voting patterns on issues such as affirmative action, abortion, discrimination, property rights and capital punishment shows that the party of the president who appointed the judge correlates strongly with the decision. "Democratic-appointed judges were more sympathetic to affirmative action, more likely to uphold environmental regulations, more willing to set aside death sentences," Sunstein said. "Republican-appointed judges tended to come out on the opposite side." Sunstein said partisans who care about those issues have learned that appeals courts are where they can have their most dramatic impact. And while the Supreme Court remains a focus, it's not everything. "Lower courts are important in and of themselves," he said. Even beyond the hot-button social issues, the effect these courts have on Americans' lives is formidable, said University of Pennsylvania law professor Nathaniel Persily. "They're deciding the power of administrative agencies to enforce regulations, how strictly or loosely laws are interpreted and who can or cannot get access to courts to pursue," Persily said. Of critical importance is the federal appeals court for the District of Columbia, which handles cases that arise from challenges to congressional acts or administrative procedures. Litigation involving the Americans with Disabilities Act, work safety and scores of other federal regulations goes through this court and often ends there without ever getting a Supreme Court review. "They're in the best position to rein in or expand the power of agencies to interpret and enforce federal statutes dealing with health, education, environment, labor relations, civil rights, you name it," Persily said. "These are fundamental questions over how much government intrusion into the economic life of the country will be allowed by courts." Other circuits issue critical opinions as well and often do so in defiance of a Supreme Court that doesn't act to stop them. The 11th Circuit in Atlanta last year upheld a Florida law that prohibits gay couples from adopting children, saying that the Supreme Court's 2003 decision in a case about sodomy laws went overboard in establishing rights to sexual privacy. "Nowhere," wrote Judge Stanley F. Birch Jr. for the three-judge panel that heard the challenge to the Florida law, "did the court characterize this right as 'fundamental.' Nor did the court locate this right directly in the Constitution." Birch said he was "particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis." It was an opinion that seemed to beg for high-court review, but the justices refused to get involved earlier this year. So Birch's opinion is now law in the three states that make up the 11th Circuit - Alabama, Florida and Georgia. In general, says Sunstein, it's "not a terrible thing for appeals courts to decide many issues." Most of their work, in fact, is applying well-established points of law to a particular conflict. But "the complexity and amount of federal law is a lot higher than it was 50 years ago," Sunstein said. "And the federal bureaucracy has increased, raising new questions about the role of government and the relationships between different parts of government. Meanwhile, the high court is taking fewer cases and offering less guidance about these things." And that's leading to different rights for citizens in different parts of the country. "That's what the system is supposed to try to avoid," Sunstein said. (source: Knight Ridder Newspapers) MARYLAND: Death row inmate granted new hearing due to ineffective counsel, judge rules An Anne Arundel County judge granted death row inmate Lawrence Michael Borchardt Sr. a new sentencing hearing yesterday, ruling that an attorney who defended the convicted killer at a capital sentencing hearing in 2000 provided ineffective counsel. In a 95-page opinion, Judge Pamela L. North found that defense attorney William W. Kanwisher erred in not calling as witnesses the psychiatric social worker and psychologist who had evaluated Borchardt and by striking an agreement with prosecutors that limited the testimony of a neurologist who examined Borchardt. The judge also found that Kanwisher hurt his client's case with the order in which he called defense witnesses at the sentencing hearing and by failing to solicit testimony regarding the unlikelihood that Borchardt posed a future threat. Kanwisher, who began working in the capital cases unit of the state public defender's office in 1987 and now maintains his own private practice in criminal defense, declined to comment on the ruling yesterday, saying he had not seen the judge's opinion. Baltimore County Deputy State's Attorney Stephen Bailey said yesterday that he will speak with prosecutors in the state attorney general's office to decide whether to appeal the ruling. "I'm disappointed with the decision because I don't believe Judge North applied the correct standard of review," the prosecutor said. "The Constitution requires that defendants receive a fair trial, and I think this opinion reflects the belief that defendants are entitled to perfect trials. There are no such things." Borchardt, 53, of Rosedale was convicted of fatally stabbing Joseph and Bernice Ohler at their Rosedale home on Thanksgiving Day 1998. The couple had twice given money to Borchardt, a heroin addict who was going door to door claiming that his wife needed cancer treatments. He killed the couple when they told him they didn't have any more money to give. The case was moved from Baltimore County to Anne Arundel County after Borchardt's lawyers requested a venue change. (source: The Baltimore Sun) LOUISIANA: Confession roils N.O. murder trial----Man say he, not defendant, did it The Orleans Parish district attorney's office thought it had the right defendant when prosecutors came to court this week prepared to try 20-year-old Jamaal Lacaze on a first-degree murder charge in the shooting death of an acquaintance last fall in Gentilly. But another man is now insisting it was he, not his friend Lacaze, who fatally shot Andrew Holmes, 19, in front of the Park Royal Apartments on Encampment Street early Sept. 1. Criminal District Court Judge Calvin Johnson postponed the trial until midsummer so prosecutors and defense attorneys can sort things out. Lloyd Burns, 20, gave the defense a sworn statement saying he shot and killed Holmes, who had threatened him, according to Clyde Merritt, one of Lacaze's attorneys. The slaying followed a fight between the 2 men the previous weekend, Merritt said. Ike Spears, who served as Burns' in-court counsel Monday, said Burns likewise told him he shot Holmes in self-defense and that Lacaze wasn't present when that happened. Prosecutors had asked Johnson to appoint a lawyer to represent Lacaze so the proceedings would not be tainted. "I put it on the record that against my advice, he wanted to testify because he was full of guilt . . . that someone not involved was about to go to trial" for Holmes' slaying, Spears said. Assistant District Attorneys Michael Morales and Tiffany Peters, who are prosecuting Lacaze, heard from police May 19 that Burns, under arrest on a stolen car charge, was saying he killed Holmes, District Attorney Eddie J. Jordan spokeswoman Leatrice Dupre said Tuesday. "The defense attorneys a couple of months ago mentioned a possible witness to us who would identify himself as the actual perpetrator, but they would not give us his name," Dupre said, adding that by law they are not required to do so. Figuring Burns was that witness, prosecutors questioned him a week ago, but he denied any involvement in Holmes' death, Dupre said. "At this point," she said, "all the evidence indicates that Jamaal Lacaze is the actual perpetrator of the homicide." But between now and July 18, the new trial date, prosecutors "will look at all the evidence again and speak with eyewitnesses, in addition to working with NOPD," Dupre said. If that investigation points to someone other than Lacaze, the office will change its view, she said. Meanwhile, Merritt and attorney Dwight Doskey are gearing up to convince a jury that their client is the victim of misidentification. Merritt said a witness who got only a three-second look at the shooter says the gunman was Lacaze, whom she had seen a few hours earlier. But at the time the witness claims she saw Lacaze late the night before the slaying, he was dining out with four other people, Merritt said, and when Holmes was killed, Lacaze was at home in bed with his wife. Police said Holmes and a 19-year-old woman sitting with him in front of a residence at the Park Royal were caught in a hail of bullets and sought shelter in a nearby courtyard. Holmes died at the scene, and the woman was critically injured. Jamaal Lacaze is a brother of Rogers Lacaze, who was convicted with former New Orleans police officer Antoinette Frank, a cousin, of killing three people in a 1995 robbery at the Kim Ahn Restaurant in eastern New Orleans. Rogers Lacaze and Frank were sentenced to death by the Criminal District Court jury that convicted them of fatally shooting two children of the restaurant's owners as well as NOPD officer Ronnie Williams, Frank's one-time patrol partner, who was working a security detail at the restaurant. Lacaze and Frank are both on death row, he at Louisiana State Penitentiary at Angola and she at the Louisiana Correctional Institute for Women at St. Gabriel. (source: Times-Picayune)
