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Tuesday Open Thread

It's a jail day for me which means an open thread day for you.

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In a case that mentions Rambo and quotes from 12 Angry Men, a Ninth Circuit panel today in US v. Jimison, No. 06-30417 (9th Cir. July 16, 2007) (available here), limits the reach of a firearms enhancement under the federal sentencing guidelines.  Perhaps the fact that Hollywood is within the circuit helps account for the cinematic qualities of the decision in Jimison.

  • Libby Commutation update: Scotus Blog reports Victor Rita's lawyer is seeking a review in the Supreme Court. He wants the court to revisit Booker. Huh? Then what? You can read the text of the petition here (pdf)
  • Matt Yglesias on the Georgia Pardon Board's stay of Troy Davis' execution:

Wait, wait; it looks like the Board of Pardons and Paroles may not actually have the power to pardon, only to commute the sentence to life in prison. Oy. If the man's innocent, he's innocent.

Matt also makes this astute comment.

Someone or other mentioned to me yesterday that in a sick way Davis is lucky he got the death penalty since that meant some people were paying attention to the case and a minor ruckus eventually got raised. Suppose Davis had just been sitting in prison on a 20-to-life sentence, would anyone have even noticed? The extent to which the criminal justice system allows for the railroading of poor people with little means is simply off the charts, and the incredible reliance on wildly unreliable eyewitness testimony is a big part of the issue.

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  • Display: Sort:
    I delete my post on CPAC (5.00 / 1) (#2)
    by Big Tent Democrat on Tue Jul 17, 2007 at 01:17:15 PM EST
    because I made a huge error on the sponsorship list.

    My apologies to everyone involved. Especially all readers.

    And thanks to maximus (5.00 / 1) (#3)
    by Big Tent Democrat on Tue Jul 17, 2007 at 01:20:37 PM EST
    for straightening me out on this.

    An embarrassment for me and I again apologize to all involved.

    Parent

    DA (1.00 / 1) (#19)
    by jimakaPPJ on Tue Jul 17, 2007 at 09:58:21 PM EST
    Depends on how well the Demos taught..

    My guess is that it wasn't that good.

    ;-)

    DA (1.00 / 0) (#23)
    by jimakaPPJ on Wed Jul 18, 2007 at 08:21:36 AM EST
    Too busy fighting off ankle biters.

    Parent
    He's not paranoid, DA. (none / 0) (#26)
    by Edger on Wed Jul 18, 2007 at 09:43:55 AM EST
    They really are after him.

    Parent
    Speaking of paranoid, edger (1.00 / 1) (#28)
    by jimakaPPJ on Wed Jul 18, 2007 at 03:23:45 PM EST
    Tell us again how Bush and Rudi knew about the 9/11 attack in advance.

    Parent
    Let (5.00 / 1) (#32)
    by Edger on Wed Jul 18, 2007 at 07:55:34 PM EST
    Rudy tell you himself, in his own words.

    Giuliani warned in advance (Video)

    Giuliani tells ABC news he had warning of collapse


    Parent
    Edger - Here you go. The real thing. (none / 0) (#40)
    by jimakaPPJ on Thu Jul 19, 2007 at 01:54:33 PM EST

    Link to Edger May 14 2006 7:23PM. And please don't miss the link he provides to Lew Rockwell, who Edger no longer mentions.

    I can't imagine jumping from a building as tall as the WTC, and burning is one of my phobias. I would like to see the people responsible for 9/11 held accountable. And I doubt very much that Moussaoui was capable of this:

    Edger then quotes:

    Controlled demolition would have required unimpeded access to the WTC, access to explosives, avoiding detection, and the expertise to orchestrate the deadly destruction from a nearby secure location. Such access before 9/11 likely depended on complicity by one or more WTC security companies.

    What's next?? The moon landing was shot in Bush's living room??

    lol

    Parent

    Certainly More Credible (5.00 / 1) (#41)
    by squeaky on Thu Jul 19, 2007 at 02:20:17 PM EST
    Than your 24/7 bedwetter fantasy that the Islamic terrorists are going to take over America and make everyone follow sharia law.

    Parent
    You left out the last few sentences. (none / 0) (#47)
    by Edger on Thu Jul 19, 2007 at 08:59:59 PM EST
    ...WTC security companies.
    These companies focus on "access control" and as security specialist Wayne Black says, "When you have a security contract, you know the inner workings of everything." Stratesec, a now-defunct company that had security contracts at the World Trade Center and Dulles International Airport, should be investigated, among others, because of the strange coincidence that President Bush's brother, Marvin P. Bush, and his cousin, Wirt D. Walker III, were principals in the company, with Walker acting as CEO from 1999 until January 2002 and Marvin reportedly in New York on 9/11. At least one report claims that a "power down" condition prevailed on September 8-9 (pdf, p. 45) at WTC to complete a "cabling upgrade," presenting an opportunity to plant explosives with low risk of detection. More...


    Parent
    And how 2/3 of the sites (5.00 / 2) (#37)
    by jondee on Thu Jul 19, 2007 at 11:10:59 AM EST
    you link to think Vince Foster and Ron Brown were murdered.

    Parent
    It's Not Conspiracy Theory (5.00 / 1) (#38)
    by squeaky on Thu Jul 19, 2007 at 11:24:53 AM EST
    If a GOPer says it. Just like it is not filibuster if the GOP does it, it is Dem obstruction.

    Some things don't change, Charles Dodgson nailed it.

    Parent

    And mineral exploration (5.00 / 1) (#39)
    by jondee on Thu Jul 19, 2007 at 11:25:13 AM EST
    in the M.E "based on Biblical prophecy" is, if not clinically paranoid, dangerously delusional.

    You've got 0 business playing shrink, ppj.

    Parent

    DA (1.00 / 0) (#34)
    by jimakaPPJ on Wed Jul 18, 2007 at 09:23:28 PM EST
    Actually he already has. I just enjoy giving him a chance to star.,

    Parent
    Update (none / 0) (#1)
    by Abdul Abulbul Amir on Tue Jul 17, 2007 at 12:56:54 PM EST

    Is there going to be an update on the Haditha hoax?

    it's only a 'hoax' if you read wrongwing opinions (5.00 / 1) (#4)
    by Sailor on Tue Jul 17, 2007 at 01:57:49 PM EST
    in reality it's murder of civilians ... and just because the militry has covered it up and given officers a free pass in nearly all occasions it's no reason to celebrate murder of innocent women and children.

    These are war crimes. And Murtha was right, they were murders.

    Parent

    YTB (none / 0) (#7)
    by Abdul Abulbul Amir on Tue Jul 17, 2007 at 03:05:21 PM EST
    That anyone is a murderer is yet to be determined.  Claims inconsistant with forensic evidence, Yikes!   People that have a strong political motivation to believe the charges.  A bit like the Duke hoax.

    A deeper blow came in a report made public Tuesday by Lt. Col. Paul Ware, a career Marine prosecutor who strongly urged that all charges against Lance Cpl. Justin Sharratt be dismissed.

    Sharratt is one of three Marines accused of going on a rampage against the 24 Iraqis after a roadside bomb killed a fellow Marine on Nov. 19, 2005.

    In his report, Ware labeled allegations against Sharratt "unsupported" and several times called them "incredible."

    He also suggested that some of the dead Iraqis were insurgents, as the defendants have maintained.

    Ware, who presided over the pretrial hearing for Sharratt last month, said accounts by Iraqi witnesses seemed inconsistent with the forensic evidence available.



    Parent
    that this is a hoax ... (none / 0) (#11)
    by Sailor on Tue Jul 17, 2007 at 05:10:19 PM EST
    ... is yet to be determined.

    And the forensic evidence was lacking or incomplete because there was a coverup and because for some odd reason the Iraqis don't trust the US and don't want them to dig the bodies of their loved ones up ... I'm just guessing it's because the military has lied to them all along.

    p.s. The soldiers have admitted to killing the women and children, their defense is they were just following orders. Sound familiar?

    As far as the truthiness of the military goes, they're still lying and stonewalling about the death of Pat Tillman, an American.

    Parent

    Haditha: ::Hoax story:: a hoax? (none / 0) (#12)
    by Edger on Tue Jul 17, 2007 at 05:15:46 PM EST
    Jurist, Thursday, July 12, 2007:
    [JURIST] An investigating officer in the probe of 24 Iraqi civilian deaths [JURIST report] at Haditha [USMC timeline; JURIST news archive] in November 2005 has recommended that Lt. Col. Jeffrey R. Chessani [JURIST news archive], commander of 3rd Battalion, 1st Marines [official website], should face a court-martial for dereliction of duty and violation of a lawful order, according to a report obtained Wednesday by the Associated Press. The report faulted Chessani for his failure to visit the scene immediately after learning of the civilian deaths, and also his refusal to investigate the killings despite being ordered by regimental commanding officer Col. Stephen Davis.

    Chessani, the most senior officer to face an Article 32 hearing [JAG backgrounder] in the largest US military prosecution involving civilian deaths in Iraq, has testified that he did not order an immediate investigation of the incident himself because he "did not see any cause for alarm" [JURIST report] and believed the civilian casualties resulted from lawful combat. Chessani has also said that when he first learned of allegations that the civilians were killed intentionally, he thought that the claims were "baseless."

    In June, a US Marine Corps staff sergeant testified that a superior officer ordered the deletion of photographic evidence [JURIST report] taken hours after the killings to keep it out of a report being prepared for top-ranking officers and a reporter. Four officers have been charged [list of charges] with dereliction of duty offenses and an additional three Marines have been charged with unpremeditated murder. AP has more.



    Parent
    So what? (1.00 / 1) (#13)
    by Abdul Abulbul Amir on Tue Jul 17, 2007 at 05:49:37 PM EST
    This guy is not being tried for murder, or accessory to murder.  This is sloppy workmanship at worst.  

    In June, a US Marine Corps staff sergeant testified that a superior officer ordered the deletion of photographic evidence [JURIST report] taken hours after the killings to keep it out of a report being prepared for top-ranking officers and a reporter.

    OMG!  You mean he edited a pile of raw data down to what he thought was a meangingful summary of the action.  Is that a hanging offense or his job?

    Parent

    edited a pile of raw data? (none / 0) (#15)
    by Edger on Tue Jul 17, 2007 at 05:52:50 PM EST
    No.

    a superior officer ordered the deletion of photographic evidence


    Parent
    Don't (none / 0) (#16)
    by Edger on Tue Jul 17, 2007 at 05:59:37 PM EST
    think about it, abdul.

    The leader of a battalion involved in the killings of 24 Iraqis in Haditha should face a court-martial for dereliction of duty, the investigating officer recommended in a report obtained Wednesday by The Associated Press.

    "The fact that one fireteam was solely responsible for 24 deaths in all direct fire actions should have solicited more than passing interest from the senior leadership of the battalion."

    Chessani would be the most senior U.S. serviceman since the Vietnam War to face a court-martial for actions or decisions made in combat, said Gary Solis, a former Marine Corps prosecutor and judge who teaches law of war at Georgetown University Law Center.

    Link

    Parent
    Silly old evidence (none / 0) (#31)
    by Repack Rider on Wed Jul 18, 2007 at 07:52:14 PM EST
    You mean he edited a pile of raw data down to what he thought was a meaningful summary of the action.

    "Editing evidence" is generally described as "obstructing justice."

    I guess the Libby trial made obstruction of justice a patriotic act, but only for Republicans.

    Parent

    MoDo (none / 0) (#5)
    by squeaky on Tue Jul 17, 2007 at 02:06:48 PM EST
    Hits it with a biting op ed comparing the Chimp to the guy in CHina who was recently executed for taking bribes from drug cos. He evidentially wrote a mea cupla in prison while awaiting execution.

    MoDo ghost writes apologies for the Chimp and his Keeper. The only criticism that I have with her piece is that it is several thousand pages too short.

    Rita rehearing application (none / 0) (#6)
    by scribe on Tue Jul 17, 2007 at 02:31:03 PM EST
    I read the petition, and am thunderstruck.  A brilliant piece of lawyering, that.

    The brief revolves around two legal concepts - judicial estoppel and equal justice to all.  A short note on what these mean.

    "Judicial estoppel" is a recently (i.e., in the last 20 years or so) highlighted, though by no means new, development in the field of law.  The sum and substance of the doctrine is that an estoppel arises (a fancy lawyer way of saying "a prohibitive bar is raised") against a party arguing "Not A" now, when it has argued "A" previously.  Many cases describe judicial estoppel as arising when "a party seeks to have his cake and eat it, too".  Many more are quite clear in stating that the doctrine's central purpose is "to prevent parties from playing fast and loose with the legal system".  Those quotes come from the cases - judges get seriously p'd when a situation calling for applying judicial estoppel arises - because one litigant's been a jerk.

    Now, as to those thinking about why Booker is implicated, let's go back a year or two to when Booker was decided.  You'll remember there were two parts to the Booker opinion, the "merits" or "constitutional violation" portion, and the "remedial" portion.  These attracted different 5-4 majorities.  Courtesy the Federal Public Defenders in Wisconsin by way of Sentencing Law and Policy, here's an excerpt the PDs wrote from a booklet (pages 3-4):

    What did the Supreme Court say in Booker/Fanfan?

    The Court said two things. First, the Supreme Court said that the Apprendi/Blakely rule does apply to the Federal Sentencing Guidelines. This means that facts that increase sentences such as drug amount, loss amount, role, obstruction, or upward departures must be either admitted by the defendant or proven to a jury beyond a reasonable doubt. This is so because of the Sixth Amendment right to a jury trial.  This part of the Booker opinion is referred to as the "merits" portion or the "constitutional violation" portion.  Justice Stevens wrote that portion for a five- member majority.

    Second, the Supreme Court said that the Guidelines are now advisory. This means that a judge has to consult but is not bound by the Guidelines in arriving at a reasonable sentence. This part of the opinion is referred to as the "remedy" portion of the opinion.  Justice Breyer wrote that portion for a different five-member majority.  Only one member of the Court, Justice Ginsburg, joined both the Stevens and the Breyer opinion.

    In some ways, federal sentencing will look very much like sentencing before Booker/Fanfan. There will still be Guidelines calculations and pre-sentence reports. Clients and lawyers will still need to calculate exposure under the Guidelines. But, a sentencing judge will also have to look at other factors in sentencing.  Those factors are listed in 18 U.S.C. § 3553(a).

    FWIW, Breyer would have upheld as constitutional the mandatory guidelines which applied prior to Booker, and then wrote the remedial opinion - how to apply them constitutionally.  Arguably, he got his seat on the S.Ct. because he headed the Sentencing Commission and helped create the Guidelines.  So, it is not unreasonable to think he'd vote against Rita, here.  The Guidelines are his baby, after all, and he's already kept them alive against the Sixth Amendment once.

    Mr. Rita is attacking the remedial portion of Booker. That had evolved over a couple years to a point where, in short, Rita  held that a within-guidelines sentence was presumptively reasonable.  Rita appears to be saying (now, beyond what he said before) that judges cannot be held to be presumptively reasonable in issuing a within-guidelines sentence, when the intellectual and logical bases for the guidelines - excluding a lot of personal traits of the defendant from guideline calculations - have been reintroduced as the very reasons why the Executive thought Scooter's sentence was unreasonably harsh.

    Do I think Rita will win?  No.  Unless the presumption of reasonableness is "conclusive", rather than "rebuttable", there will always be a case in which the within-guidelines sentence is too harsh.  It's just that Scooter's happened to be that one.  If the presumption of reasonableness were "conclusive", then Rita would have been an effective overruling of the merits portion of Booker, and at least part of Blakeley.

    Late Night (none / 0) (#8)
    by squeaky on Tue Jul 17, 2007 at 04:15:05 PM EST
    Think Progress will be live blogging the filibuster. Go Reid.

    Tonight, Sen. Harry Reid (D-NV) will keep the Senate "working through the night" in an effort to force conservatives to stand and filibuster the Levin/Reed plan for the withdrawal of American troops from Iraq.

    The same conservatives filibustering tonight were singing a different tune two years ago. When Democrats held up the confirmation of a few of President Bush's right-wing judicial nominees, conservatives repeatedly complained of "obstructionism."

    Senate conservatives had threatened to deploy the "nuclear option," which would have eliminated the traditional Senate practice of filibustering.

    think progress

    More (none / 0) (#9)
    by squeaky on Tue Jul 17, 2007 at 04:32:53 PM EST
    From digby

    Parent
    We need to stop this. (none / 0) (#10)
    by Edger on Tue Jul 17, 2007 at 04:40:30 PM EST
    We have gone on too long assuming that our right-wing opponents are, in all times and places, unchangeable and unchanging. Yes, their arguments are confoundingly short on evidence and fact. Yes, their logic loops are closed up so tight as to be frustratingly impervious to reason. Yes, they absolutely do mean to do us -- and our democracy -- grievous harm.

    Here's the good news. That Great Wall that separates our little reality-based community from The Fantasyland Next Door is not a monolith. Nor are the inmates of that Otherworld necessarily locked in there for all time and eternity. There's evidence -- from scientists, from experience, from history -- that there are cracks in that wall. They are small and subtle, to be sure (that's why nobody's ever noticed them before): at this point, they are mere hairlines, faint traces that are hard to spot without a good flashlight in the hands of someone who knows where to look.
    ...
    It will be slow, thoughtful, methodical work. What I'm offering here is just an opening tour of the rockwork, an explanation of where the cracks are and why they formed. At first, actual opportunities to exploit these weaknesses will be small and fleeting. But my hope is, with time and practice, we'll get more observant, and more creative, and more adroit in taking advantage of them when they appear. That's the goal of this series.
    ...
    Conformity also feeds their sense of themselves as more moral and righteous than others -- a perception that's usually buttressed by the use of magical absolution techniques that they use to "evaporate guilt," in Dean's words. Because they confessed, or are saved, or were just following orders, they can commit heinous crimes and still retain a serene conscience and sense that they are "righteous people." On the other hand, when it comes to outsiders, there is no absolution. Their memory for even minor transgressions is nothing short of elephantine (as Bill Clinton knows all too well).

    Cracks In The Wall, Part I: Defining the Authoritarian Personality

    edger (1.00 / 1) (#20)
    by jimakaPPJ on Tue Jul 17, 2007 at 10:00:28 PM EST
    Do you think these people actually take themselves seriously??

    Parent
    Except in your case. (5.00 / 0) (#21)
    by Edger on Tue Jul 17, 2007 at 10:11:00 PM EST
    Permanent Filibuster (none / 0) (#14)
    by squeaky on Tue Jul 17, 2007 at 05:52:12 PM EST
    Brought to you by the party that recently said it was unconstitutional and immoral.

    You can't help but be impressed by the sheer audacity of their strategy. Since the November election, in every situation, the Republicans have responded by not compromising, negotiating or capitulating in even the most minor ways. They have instead aggressively upped the ante.

    snip

    By running circles around the Dems with obnoxious disregard for the congress and gleefully flouting their own precedents and rhetoric, the president and the Republican minority are almost daring the Democrats to try and stop them. Which is the point. They are going for the big narrative, which is the old stand-by that the Democrats are too soft to run the country: "If they can't stop Mitch McConnell and Lindsay Graham, how can we trust them to stop Osama bin Laden?"

    digby

    squeaky - Congraulations (1.00 / 1) (#17)
    by jimakaPPJ on Tue Jul 17, 2007 at 08:44:07 PM EST
    Brought to you by the party that recently said it was unconstitutional and immoral
    .

    Looks like your side convinced them it wasn't.

    Success is getting what you want.

    Happiness is wanting what you get.

    Parent

    standard wrongwinger hypocrisy (5.00 / 1) (#25)
    by Sailor on Wed Jul 18, 2007 at 09:38:20 AM EST
    threaten to go nuclear and change the rules of the senate, the dems play fair and the rethugs once again do the very actions they complained about.

    Always projection from this group of corrupt criminals.

    Parent

    sailor (1.00 / 1) (#27)
    by jimakaPPJ on Wed Jul 18, 2007 at 03:21:40 PM EST
    Well, the Repubs got lucky and the rules didn't get changed, or else the comment would have applied to them.

    As for "fair," your comment reminds me a skilled commentator named  Squeaky once said:

    Posted by Squeaky at September 19, 2005 11:19 PM
    Rove never needed proof for his smear machine, why should I.


    Parent
    PPJ Lies Again (5.00 / 1) (#29)
    by squeaky on Wed Jul 18, 2007 at 03:29:04 PM EST
    Just like any good Republican operative:

    Accuse others of what you do, repeat and repeat, and repeat.
    PPJ is the smear king. Out of context quotes are his speciality. As we all know all to well.

    Parent

    squeaky - Out of context? (1.00 / 1) (#33)
    by jimakaPPJ on Wed Jul 18, 2007 at 09:18:28 PM EST
    You jest. Here is the follow on.

    ppj does as ppj does (none / 0) (#30)
    by squeaky on Sat Mar 03, 2007 at 09:58:35 PM EST

    I had written: "So because Rove is doing wrong, it is okay for you to do wrong?"

    Squeaky replied: "I have no problem with alleging that Rove's grandparents were Nazi's. Even if they were not, he uses Goebbels' propaganda techniques as a bible and may as well be a born and bred Nazi."

    You prove my point. Thanks.

    Parent

    Yes (5.00 / 1) (#35)
    by squeaky on Wed Jul 18, 2007 at 11:13:07 PM EST
    Out of context. But that is your forte. A Rove wannabe but none to bright to pull it off.

    Parent
    Hey everybody, look! (1.00 / 1) (#36)
    by jimakaPPJ on Thu Jul 19, 2007 at 11:03:09 AM EST
    First you claim to not have facts, and then you confirm it.

    Wow.

    Parent

    Breaking: Judge dismisses Plame's civil suit. (none / 0) (#42)
    by squeaky on Thu Jul 19, 2007 at 02:27:19 PM EST
    Decision here

    via thinkprogress

    Take a wild guess. (none / 0) (#43)
    by Edger on Thu Jul 19, 2007 at 02:55:09 PM EST
    Who nominated Judge John D. Bates for appointment to the DC District Court.

    Parent
    If Congree did any oversight with real teeth (none / 0) (#44)
    by Edger on Thu Jul 19, 2007 at 02:56:22 PM EST
    they might think about looking into possible collusion.

    Parent
    Update (none / 0) (#45)
    by squeaky on Thu Jul 19, 2007 at 05:15:01 PM EST
    UPDATE II: Flashback -- Judge John D. Bates, the judge who dismissed today's suit, also dismissed the lawsuit over Dick Cheney's energy task force records:
    Judge John D. Bates of Federal District Court found that Comptroller General David M. Walker, the head of the General Accounting Office, did not have sufficient standing to sue the vice president.
    Mr. Walker had asked the judge to order the White House to reveal the identities of industry executives who helped the administration develop its energy policy last year.
    In declining to do so, and in dismissing Mr. Walker's suit, Judge Bates said that granting the G.A.O. chief's request "would fly in the face of the restricted role of the federal courts under the Constitution."

    thinkprogress

    Parent

    Yes (none / 0) (#46)
    by Edger on Thu Jul 19, 2007 at 08:43:45 PM EST
    Jason Leopold wrote a good article about Cheney and the task force today:

    Cheney Suppressed Evidence in California Energy Crisis

    Parent