1. US Supreme Court
Following up on a previous entry (8/4/08), in Kennedy v. Louisiana, 07-343, the Supreme Court issued an order yesterday inviting briefs on the underlying merits, not just whether the motion for rehearing should be granted:
So it looks like the fact that no one mentioned the current state of federal statutory law last time around could have significant ramifications. As mentioned in my previous entry, this underscores the perils of wading outside the direct trial record and interpretation of the statute or Constitutional provision at question. Here, Justice Kennedy was describing the status quo globally on the death penalty issue before the Court. His description was not entirely correct, leading to this flap and subsequent review. No one had mentioned the federal statute informing the status quo – no party, no amicus — and apparently none of the flocks of clerks each Justice has picked it up either. When this sort of thing slips through the cracks under these circumstances, only greater cautionary flags could be raised for courts with fewer resources to base their decisions on this sort of extra-record investigation.
In another previous entry, I noted that, for a price, a disc could be purchased from the First Circuit of oral arguments. Well, apparently the people have spoken, because the arguments are now available on line on the Court’s cite, i.e. for free. The arguments are not streamed on line (as some other courts do), but should be posted by 4 pm of the date of the argument. You will need an RSS reader to access them (I have no idea what that means, but my techno-savvy assistant said to say this).
3. Maine SJC
The Court issued an interesting decision regarding interlocutory appeals, holding that denials of attorney recusals can be appealable prior to final judgment. The SJC had previously ruled that grants of recusals are immediately appealable; previousl SJC precedent had been mixed about denials; and elsewhere some courts find denials not immediately appealable. Here, the SJC rules that when a serious basis for recusal has been asserted that involves alleged previous communication of confidential information, then the matter probably meets the "death knell" exception allowing for immediate review:
The SJC has issued other orders in the not too recent past on the issue of interlocutory appeals. For example, it is increasingly clear that anyone wanting immediately to appeal a ruling by the Superior Court to remand to the administrative body in a Rule 80B or 80C case, will not fare well except in the most extraordinary circumstances. Anyone wanting the case law, the list of exceptions, and discussion of the same, this will be one of my topics in the MSBA 80B-80C seminar next Tuesday in Freeport, and the accompanying written materials includes lots on this issue.