RARE EVENTS

Today/Tonight is the winter solstice (when the sun is at the lowest point in the northern sky for the year) and a lunar eclipse!

"So what's so special about that?" you say? Well, it happens about once every two thousand years. According to the Washington Post, the last time both events occurred on the same day was in 1638 or perhaps 1544 (either way it was a long time ago, even before there were lots of Starbucks. )

OUR LAWLESS 11th CIRCUIT COURT OF APPEALS:

Speaking of rare events, Judge Scalia is upset and he's dissenting from a denial of certiorari in Allen v. Lawhorn. First, let us say that once again we are forced to confront activist judges who want to legislate from the bench and thank goodness there were five level headed judges who were wise and "conservative" enough to let the lower court ruling stand.

Lawhorn is an inmate who was sentenced to death by the great state of Alabama (motto: "commit a crime here and die") . The 11th Circuit overturned the sentence finding that Lawhorn's trial counsel for the sentencing phase was ineffective.

The mistake at issue is that Lawhorn's counsel waived closing argument in the sentencing phase of the trial under the mistaken belief that waiving would have prevented the prosecution from giving a closing argument. Lawhorn's counsel objected when the prosecution went to give a closing argument but the objection was overruled. The 11th Circuit found that the error was not a reasonable strategic decision but an erroneous belief. The US Supreme Court refused to grant cert, so the decision stands, and DOM's favourite judge and "best-est" friends to defendants everywhere just can't sleep at night knowing another one has slipped through his fingers.

Scalia's beef (a legal term meaning "what really bothers someone when they lose...")?

That the AEDPA (anti terrorism and effective death penalty act) requires federal courts to give state courts great deference in interpreting the law, and that great deference combined with the fact that the supreme court has never held that a failure to give a closing argument is ineffective assistance of counsel under Strickland v. Washington, is such that no reasonable federal court anywhere could ever grant any defendant sentenced to death any relief after his claim has been denied by a state court.

Put another way, Scalia is saying : "We all know Congress meant to say that a defendant's habeas claims should never be granted, especially in death penalty cases, and this case is an intolerable example of a defendant winning. No defendants should ever win a habeas claim. Ever. That's why they call it the 'great writ' "

In raging against his brethren Scalia takes time out to diminish the impact of closing arguments ("not evidence" and mere fiddle-faddle) while conveniently overlooking that even without a closing argument, one juror had recommended life and in Alabama at that time three jurors were enough to recommend a life sentence.

And what about the very clear mistake Lawhorn's counsel made in waiving a closing argument by mistake? To Scalia it's a mistake that can be reasoned away. For the rest of the educated universe, most of us are not comfortable with the government killing a citizen based on a proceeding in which a fundamental process was fumbled away in error.

Scalia just can't live with a court system not geared to kill its litigants as this passage makes abundantly clear:

It has been over 21 years since Lawhorn was sentenced to death. Alabama should be not barred from carrying out its judgment based on a federal court’s lawless speculation. I would not dissent from denial of certiorari if what happened here were an isolated judicial error. It is not. With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are “contrary to, or involv[e] an unreasonable application of, clearly estab- lished Federal law, as determined by the Supreme Court of the United States,” 28 U. S. C. §2254(d)(1) (emphasis added). We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand. We should grant Alabama’s petition for certiorari and summarily reverse the Eleventh Circuit’s judgment.

So there you have it: What does Justice Scalia think of our 11th Circuit? "Lawless speculators." If we called them that you can bet the Marshals would be hunting down our ISP address so we could be hauled before the Court in irons to explain ourself. But if Scalia calls them that, well......