Scottish Justice Secretary Kenny MacAskill defied pressure from Washington and the relatives of many of the 270 victims to order the release.

He said the Scottish people pride themselves on their “humanity” and that al-Megrahi was now facing a sentence from a “higher power”.

He added: “Mr al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days.

“But that alone is not a reason for us to deny compassion to him and his family in his final days. Our justice system demands that judgment be imposed but compassion be available.”

What it actually turns out to demand is outright fraud on behalf of mass murderers.  It appears that. lo and behold, Mr. al-Megrahi will live indefinitely.  The “three months” was, um, you know, kind of a guess.  Or, somewhat less generously,  it seems that the whole thing was a pack of lies.

Moral of story:  When you start to hear the braying about compassion, watch your wallet.

Until the late 1990s, the murder rate of SF generally tracked that of the state as a whole. It tended to be somewhat above the statewide rate, and there was a spike in 92-93. For 89-98, San Francisco was on average 12.5% above the state as a whole.  From 1999 to 2003, San Francisco pulled away from the statewide rate and was persistently higher, 28.8% higher on average. For 2004-2008, San Francisco’s homicide rate jumped while the state’s declined. The SF rate is a whopping 84% higher for the 5 year range and more than double in 2007 and 2008. Preliminary data for 2009 do show a substantially larger drop for SF than for the state as a whole, but not enough to bring it back into the ratio it had circa 1990.

What should we make of the long term trend diverging from the state several years after the change in policy and persisting and expanding as time goes on? The trend is consistent with my hypothesis of how deterrence works. That is, it is a general awareness among the crime-prone whether the jurisdiction does or does not have the death penalty and, if it does, whether it does or does not enforce it. Many studies in the area measure only the recency effect, measuring change shortly after a publicized execution, for example. I think the long-term effect is the more important one.

Of course, we can’t draw definite conclusions from this one example. There are way too many uncontrolled variables. This is more of an illustration than a proof. Still, the piece fits in the overall puzzle.

The second force, which we created, is the force of legal precedent that essentially invites captured killers and would-be killers  –  terrorists and others  –  to clam up.  This is the 1966 Miranda decision.  Miranda requires the police to tell suspects in custody that they have the right to remain silent and to the services of an attorney during questioning.  This is a virtual invitation to stonewall.  Every now and again, the suspect will decide to talk anyway.  But banking on that serendipity is foolhardy.  If the authorities violate Miranda, the suspect’s statement is automatically suppressed, even if voluntarily given, seriously complicating the chances of obtaining a deserved conviction.

In recent days, the Attorney General has pointed out that there is an “emergency exception” to the Miranda rule, one that allows the police to question a suspect when public safety is in immediate danger.   Apparently, the roughly three hour-long unMirandized questioning of the Times Square bomber was undertaken in the hope that the courts will see fit to apply this exception.  Maybe they will, but it’s hardly a sure thing.  In the case in which the exception was created, New York v. Quarles, 467 U.S. 649 (1984),  the unMirandized questioning lasted less than a minute.  Again, the Administration appears to be banking on a combination of (1) hope and (2) the good sense of people more serious than it is.

That is irresponsible as a matter of security policy and mistaken as a matter of Constitutional law.  Following the break, I describe what needs to be done.

One change to the bill strengthens restrictions against using race or ethnicity as the basis for questioning and inserts those same restrictions in other parts of the law.

Changes to the bill language will actually remove the word “solely” from the sentence, “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.”

Another change replaces the phrase ”lawful contact” with “lawful stop, detention or arrest” to apparently clarify that officers don’t need to question a victim or witness about their legal status.

Regardless of where one stands on the law itself (and CJLF hasn’t taken a position), these appear to be salutary changes. The “lawful contact” language particularly bugged me. Simply talking to a person on the sidewalk with no basis for suspicion whatever is a “lawful contact,” but I suspected that was not what they meant. They meant Terry stops, traffic stops, and arrests. I haven’t been able to find the actual amendment yet, but it appears from the story that they did fix this particular problem.

I appreciate the virtues of consistency, but in this instance I think consistency needs to yield to the institutional function of the court. The primary reason why the Constitution provides for “one supreme court” is have definitive answers to legal questions. Splintered opinions that fail to provide such answers constitute a failure of the institution. Many times judges must accept decisions they believe to be incorrect. Lower court judges must accept the decisions of higher courts. Federal courts must accept the interpretation of state law by the state high court.

The correct course, in my view, is to dissent from the jurisdictional holding but then acknowledge that the decision of the majority is now the law on the jurisdictional point and proceed to the merits. In this case, in my view, Justices Scalia and Thomas should have dissented from part II but then gone on to say whether they concur in part III. If they concurred, part III would be the “opinion of the Court,” and there is some good stuff in it.

“Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality.” I plan to quote that in future briefs. Alas, I will have to follow the cite with “(plurality opinion).”

Overall, the case is a smackdown of a District Court judge who (1) failed to understand the difference between his injunction and the actual requirements of the Constitution, and (2) failed to modify the injunction when a subsequent enactment (arguably) conflicted with the injunction but not with the Constitution. The case is reminiscent of the recent Ninth Circuit Valdivia case on California parole revocation procedures, except that the Ninth got that one right. (See prior post.) It did strike me as odd, though, that today’s opinion lashed the district judge and said almost nothing about the Court of Appeals opinion affirming his order.

The rule is usually stated, as the 11th did here, that the facts are “[v]iewed in the light most favorable to the non-movant,” in this case the plaintiff. See Harris v. Coweta County, 433 F.3d 807, 810 (CA 11, 2005). So viewed, “The use of deadly force is not ‘reasonable’ in a high-speed chase based only on a speeding violation and traffic infractions where there was little, if any, actual threat to pedestrians or other motorists, as the roads were mostly empty….” Id., at 815.

There is just one minor problem. The videotape shows beyond reasonable question that the non-movant is a shameless, bald-faced liar. The road was far from empty. There were many cars coming the other direction, and this reckless fool passed multiple cars going his direction under conditions that would be illegal and dangerous even at normal speeds in broad daylight, not to mention at high speed at night. Today’s opinion holds that such assertions, blatantly contradicting irrefutable evidence, do not raise a genuine issue of fact for the purpose of Rule 56(c). Robert Barnes has this story on the case in the Washington Post.

This case illustrates the value of video recording in police work. With video recording equipment vastly cheaper and more compact than in the past, the resources spent putting cameras in the locations where disputed events are most likely to occur, including cars and interrogation rooms, are well invested.

In America, anyone can sue anyone for anything. Summary judgment is often the procedure for getting rid of baseless claims. One problem is that it is often not summary enough. The expense of litigating a case to the point where a judge will grant summary judgment can be crushing for an individual and a substantial expense for an organization or municipality. For civil rights cases, at least, it is high time to reconsider the asymmetric rule on awards of attorneys’ fees. Although the law has special solicitude for victims of civil rights violations, not all civil rights plaintiffs are victims. At the very least, where the evidence shows clearly that the plaintiff has just flat-out lied to make his claim, judges should award attorneys’ fees to falsely accused defendants every bit as readily as they do to plaintiffs with valid claims.

Qualified immunity is an element of the Supreme Court’s efforts to strike a balance between providing redress for people injured by police misconduct and the need for vigorous law enforcement. Because the line between legal and illegal is often fuzzy and may be determined only long after the fact, exposing police and correctional officers to personal liability for crossing a fuzzy line would result in timid enforcement, staying far away from the line, with resulting harm to innocent victims. The doctrine of qualified immunity gives the officer a shield from liability if his actions did not violate a right that was clearly established at the time of the action.

But a lawsuit is damaging even if the officer prevails. For this reason, the Court has been generous in providing officers with the right to seek summary judgment and to appeal from denial of summary judgment. Summary judgment is a procedure for avoiding trial, allowing a court to decide that even if we assume all genuinely disputed facts in the plaintiff’s favor, the defendant still wins as a matter of law, so no trial is needed.

Is there any reason to allow an appeal of denial of a summary judgment motion when the defendant did not immediately appeal but instead went to trial, received an adverse jury verdict, and then appealed?

Bob Egelko has this story in the SF Chron, saying, “The U.S. Supreme Court on Monday upheld California judges’ authority to count adult felons’ convictions in juvenile court in determining whether to sentence them to life in prison under the state’s ‘three strikes’ law.”

Not quite. “Upheld” implies there is now a U.S. Supreme Court precedent to that effect. Denial of certiorari does not set a precedent binding on other courts. The denial does end the case for Nguyen, and it leaves the Cal. Supreme case as precedent binding on California courts, but it has no effect in the other 49 states.