The NY Times has an article today about the suppression of evidence in criminal trials based on police officers’ violation of a suspect’s Fourth amendment rights.  I did not realize this before reading the article, but the US is the only country in the world that excludes all evidence that a suspect can show was obtained in violation of their fourth amendment rights.  The article points to Canada, Britain, and Australia which all use some version of a balancing test weighing the police conduct against the gravity of the crime committed.  The article also goes through the history of suppression, which I found to be fascinating.  The suppression of evidence in federal cases began in 1914, and was not extended to the states until 1961 in a decision by the Warren Court.

As part of my judicial internship this summer I am working on a narcotics case with a suppression motion that has a chance of succeeding.  I’ve struggled with the case a lot emotionally and intellectually.  An allegedly significant distributor of Oxycontin in Vermont is seeking to suppress all evidence obtained from two searches; one conducted by a TSA officer at an airport and a second conducted by two police officers at the airport.  The evidence obtained that evening was likely the basis for all other investigations of this suspect and his brother.  One interesting thing to note about the suppression of evidence is that the brother of this suspect can not have this evidence suppressed in his trial because his constitutional rights were not violated.

Part of what I have struggled with on an emotional level is how on earth can you decide that its a good idea to let a big drug dealer (or any other serious criminal) go just because the police had a little less than reasonable suspicion for a Terry stop?  And of course the intellectual or flip side of that question is that if we’re so concerned about police behavior (which we should be–one of my other cases this summer is a Civil Rights action against a police officer who has a number of prior fourth amedment violations) why on earth do we allow the evidence to be used against the brother?

The article did not help me figure this out either way, but it comforted me to know that other people question the wisdom of excluding all of this evidence.  In the end, I think I’d rather have a strict rule that holds police to the highest level of behavior possible, since they have so much power.  Any other thoughts?  I’m not wedded to one side or the other on this and would love to hear from other people.

The RNC is trying to stop CafePress.com’s customers from designing t-shirts that use the trademarked “Official Elephant Logo” and the acronym “GOP.”  (Public Citizen’s blog and Politico).  Most of the “infringing” material, however, appears to be in support of the GOP.  Interestingly, the commentators agree that claims against the pro-GOP material actually have a better chance of suceeding since they are “diluting” the RNC’s official products, and clearly not parody like the anti-GOP material.

Is this a fight the RNC really wants to make?  And during an election year no less?  Not only is this fight potentially harmful to the GOP’s own supporters, it comes at a time when the GOP is practically incapable of courting young voters.  Any litigation on this issue could be perceived by web-savvy youth as another example of the GOP’s inability to relate to issues that greatly affect the young internet generation.

I’ll admit it.  I’m thoroughly confused about the whole economic meltdown that is apparently happening all around me.  I don’t have a car, I don’t own a house, and I don’t invest in the stock market, so I’m immune, at least directly, to most of the craziness.  But when I read about people in California waiting in lines to get their money from failed banks, I get worried.  So I did what I always do in these situations: I turned to my trusted anonymous source, who summed it up for my untrained economic mind.

Lots and lots of banks bet lots and lots of money that people who couldn’t afford to buy houses could afford to buy houses, based on the assumption that house prices go up.  And then, lots of banks bet lots of money that those mortgages would make lots of money.  And then lots of banks bet that those banks would make lots of money.  And apparently all of their risk analysis measures are based on the most recent rate of return, so that as the bubble was growing, their numbers told them that the risk of losing money was actually going down.  So they ended up not properly supporting their heavily leveraged positions with unleveraged ones, and lost a lot of money.  So that’s bad for the economy.  And at the same time the dollar has been plunging and oil surging, which is also bad for the economy.

So should I put my next paycheck under my mattress instead of in the bank?

Accounts of up to $100,000 are federally insured: in case of bank failure the government will pay you back.  It just might take a really long time.  And it’s not terribly likely that any major banks will fail… although with each bank that fails the chance of other banks failing increases.  Everything’s connected. 

Okay, so what’s next?

As for what’s actually going to happen in the future, no one knows.  I’ve been of the opinion that the “crisis” is mostly restricted to the financial and banking sectors.  But the falling dollar and rising oil, if it continues, could cause steeper inflation, which isn’t good for anyone, and could make people spend less.  Which, since we rely on consumer spending for something like 70% of the economy, would be bad.  But I think in the mid-term oil will at least not increase too much more, and the dollar will rebound.  But what do I know.

Corrections?  Questions?  Discussion?  Post in the comments.

(Needless to say, this in no way constitutes any sort of financial or legal advice.  You’re on your own there, kids.)

The Washington Post is reporting on a plagiarizing law prof who the White House recently nominated to be a federal judge.  The George Mason prof, Michael O’Neill (BYU-Yale), claims that his use of materials without attribution was inadvertent and the result of carelessly copying and pasting from his notes.  Regardless of whether the plagiarism was an accident, it was serious enough for him to withdraw his coveted tenure position with George Mason.  And despite all of this, both he and Arlen Specter still think he should have a lifetime appointment on the federal bench.  O’Neill says that he has to “own up to [his plagiarism]” but that it’s nothing “to kill somebody’s career for.”  Right.

Students, what would happen to us if we had “inadvertently” plagiarized significant portions of our appellate briefs last year?  What kind of grade do you think Michael O’Neill would give you if you “inadvertently” plagiarized a large portion of your final paper?  I can guarantee that justice would be swift and harsh.

The city of Seattle’s suit against the Seattle Supersonics basketball team was settled last week.  After waiting for Judge Marsha Pechman to issue her ruling, it was announced that the two sides had reached a settlement.  Clay Bennett, the leader of the ownership group that owns the Sonics, will pay the city of Seattle $45 million immediately.  Additionally, Bennett could be forced to pay the city an additional $30 million if (a) the Washington state legislature authorizes at least $75 million in funds to renovate Key Arena by 2009, and (b) the city of Seattle does not obtain an NBA franchise by 2013.

Bennett had initially offered the city a $26 million settlement.  The $45 million (at least) that the city of Seattle agreed to is significantly more than this initial offer, but still seems to indicate that the city realized that there was little chance of forcing the Sonics to play out their lease at Key Arena through the 2010 season. 

The former owner of the Sonics, Howard Schultz, still has a suit against the Sonics seeking to rescind the original contract he made with Bennett’s ownership group in 2006.  Even initially, this suit seemed to have little chance of succeeding as courts would not look kindly on undoing a contract formed two years ago for over $350 million. 

However, in an interesting turn of events, the NBA filed a motion to intervene in the Schultz-Bennett case Tuesday.  The NBA made two main points in their motion.  First, that under the agreement entered between the city of Seattle and Bennett, if Schultz wins his suit against Bennett, the team will return to Seattle.  The NBA argued that if Schultz did win and the Sonics were to be received by a court-appointed receiver before transfer back to Seattle, the NBA constitution allows the for the league’s owners to put the team “under the management and control” of Commissioner David Stern.  Second, the NBA argues that when the league approved the sale of the Sonics by Schultz to Bennett in 2006, that Schultz signed a release preventing the former owners from suing Bennett’s ownership group. 

With this new NBA intervention it seems that Seattle’s chance of keeping the Sonics is roughly the same as the Los Angeles Clippers winning the NBA title next year (slim and none).  In the meantime, the Sonics franchise has begun their new life in Oklahoma City.  The NBA summer league opened on Monday, and the former Sonics franchise took the court in black jerseys and shorts with “Oklahoma City” across the chest.  Bennett has said that the new team name and logo will be announced “shortly.”

-Doug Nehm

From the portal:

This month, The George Washington University Law School became the first law school to participate in the Law Office Climate Challenge, an initiative created by the American Bar Association (ABA) and U.S. Environmental Protection Agency (EPA) to promote environmental sustainability….  GW’s Law School is meeting the challenge by participating in the “Best Practices for Office Paper Management” program. It now uses 30 percent recycled content paper for copying and printing, has requested its staff to use double-sided copying in most instances, and has provided recycling receptacles for all offices with the goal of recycling 90 percent of mixed office paper. Because the life cycle of one ton of paper results in the release of 11 tons CO2 to the atmosphere, conserving and recycling paper can help in the effort to deal with climate change.

How about getting in some printers for students that allow double-sided printing?  We could use an upgrade from the dinky little ones we have now, and it’d be nice to carry around half as much paper.

This is old news, but in a legal error worthy of an overwhelmed first-year law student, there was a significant goof in the Supreme Court’s decision in Kennedy v. Louisiana, the decision holding that the death penalty for raping a child is unconstitutional.  As part of its argument, the Court argued that the death penalty is becoming increasingly rare, citing the “fact” that out of 37 jurisdications that have the death penalty, in only 6, the federal government not included, can a child rapist can receive the death penalty.  The problem is that just two years ago Congress provided that a child rapist in the military could be executed in the Uniform Code of Military Justice.  Oops.

Have you ever had that feeling a few hours after an exam where the facts are still fresh in your mind, and you think of a case or an issue that you forgot to mention?  I bet the clerk who worked on Kennedy’s opinion had a “D’OH!” feeling kind of like that, only a million times worse.  So next time you encounter that overwhelming anxiety that you made a big legal blunder, just remember, you’re not alone!

Sua Sponte joins the chorus in congratulating recent GW grad Jonathan Bond on his clerkship with Justice Scalia.  Apparently he is the fifth GW grad in the past six years to win one of the 37 coveted SCOTUS clerkships.  From what I’ve read so far, in addition to being a very good human being, Bond was first in the 2008 class, won the 2007 Van Vleck competition, and was Senior Articles Editor on the GW Law Review.  So, GW students aiming for SCOTUS clerkships, that’s probably what you have to do to have a real shot.  Don’t say we didn’t warn you!

For more on SCOTUS hiring (and some discussion on GW), check out Above the Law and, generally, the Clerkship Notification Blog.

In case you hadn’t already heard, SCOTUS released their opinion in DC v. Heller today, (unsurprisingly) striking down DC’s handgun ban as unconstitutional.  You can find the opinion and a ton of analysis over at SCOTUSblog.  As you can imagine, the law blogs are afire, so check out the links on the right for more.

So now what?  It’ll take a while for new regulations to be put in place, but presumably you’ll eventually be able to purchase a handgun and properly register it.  There’ll be an amnesty period so people who already had handguns can register then without liability.

The NYTimes reports: “Justice Department officials over the last six years illegally used ‘political or ideological’ factors to hire new lawyers into an elite recruitment program, tapping law school graduates with conservative credentials over those with liberal-sounding resumes, a new report found Tuesday.”

From a quick skim of the report, it seems that the DOJ changed its hiring process for its Honors Program and Summer Law Intern Program in 2002 so that the programs could better compete with higher-paying law firm jobs for the highest-quality candidates.  These changes involved more Department officials - including political appointees, rather than career attorneys - in the hiring for the Honors Program and SLIP.  Individual DOJ components would select candidates from their applicant pools, and a Screening Committee would review the candidates for final approval.  Between 2003 and 2005, the Office of Attorney Recruitment and Management (OARM) received a few, but not many, complaints about the process or decisions of the Screening Committee.  But in 2006, the Screening Committee rejected, or “deselected,” an unusually large number of applicants to the Honors Program and SLIP, and took 2 weeks, instead of 2 days, for its review.  The OARM got many more complaints, and DOJ changed its hiring process in response. 

You can see the data in the report for yourself.  Based on the 2002 data, candidates with apparent Democratic Party or liberal affiliations were deselected at a significantly higher rate than candidates with Republican Party, conservative, or neutral affiliations.  But, there was no other evidence that the Screening Committee intentionally considered these affiliations in their decisions.  The report didn’t find evidence that Screening Committees from 2003 to 2005 used political or ideological affiliations as a basis to accept or reject candidates: the deselection decisions could reasonably be explained by class rank, grades, and law school tier.

2006 is a different story.  Not only did the data demonstrate that the Screening Committee inappropriately used political or ideological affiliations to approve or reject candidates, but also there were some significant complaints from within the DOJ’s components about the number and types of candidates being deselected.  The complaints were made public in a letter from “A Group of Concerned Department of Justice Employees” to the House and Senate Judiciary Committees.  I’d like to summarize the report’s conclusions here, but there’s just too much information, and if you’re interested I highly recommend reading the report (Section III-D). 

This is all sort of old news, because in 2007 DOJ again changed their hiring policies.  Now, the screening process is conducted by career employees instead of political appointees, and the selection criteria is officially limited to “merit-based” criteria.  I’m sure it’s cold comfort to the qualified but rejected candidates in the 2006 selection process who had their hearts set on working for DOJ (though they probably didn’t have trouble finding work elsewhere).  I can only hope that the bad publicity generated by this report will deter DOJ officials - under any administration - from pulling the same sort of tricks in the future.  (Hat tip: Above the Law.)

PS: For what it’s worth, upon closer reading it’s pretty clear that one of the Selection Committee members - the one who resigned from DOJ and refused to be interviewed for the report - is the designated fall guy (or, in this case, girl).  Though if it’s true that she did cross off applicants because they had “activist” judicial views or were members of “lefty” organizations, I’m sure glad she’s gone. 

PPS: Also, keep in mind that the deselected candidates were rejected before they were interviewed, solely based on their paper applications.  I think this makes a big difference, but you might disagree.