Remember when that partisan street fight broke out after Pamela Harris was nominated to the Fourth Circuit by President Obama? David Fontana wrote in The New Republic that “liberals should rally behind” then-nominee Harris because she – “more than any other Obama judicial nominee” (whew!) – would “be a sympathetic vote to liberal causes,” would “give rise to the next generation of liberal legal elites,” and would “be an eloquent and inspiring champion of liberal jurisprudence.” Carrie Severino blisteringly responded in National Review that the Senate “should be deeply skeptical of her ability to put the law ahead of her political views,” and National Review did multiple pieces attacking her candidacy. The questioning at her confirmation hearing tracked this line of attack. Confirmed with 50 votes (no filibuster after Harry Reid triggered the nuclear option), Judge Harris fortified Obama’s transformation of the Fourth Circuit.
A few years have passed – and were the commentators right? Is she a liberal lion and a conservative’s worst nightmare?
By Stuart Berman
In its 2008 decision in District of Columbia v. Heller, the Supreme Court revolutionized Second Amendment jurisprudence by holding unconstitutional the District of Columbia’s ban on possession of handguns in the home, as well as its requirement that all firearms in the home be stored in a manner that rendered them inoperable for immediate self‑defense. When the Court subsequently held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments, some observers predicted a string of decisions invalidating firearms prohibitions. Because the five states in the Fourth Circuit are home to a large population of firearms owners, and several of those states have loosened gun restrictions and even permitted “open carry” of weapons, firearms advocates had reason to hope the Fourth Circuit might to take the lead in reading Heller expansively. As a recent decision demonstrates, however, those hopes have not been fulfilled.
By John Grimm
The Court of Appeals recently held that defendants who plead guilty or enter an Alford plea are not eligible to request post-conviction DNA testing pursuant to Criminal Procedure § 8-201. Section 8-201 allows anyone convicted of a crime of violence to request DNA testing of evidence in their case, and § 8-201(d)(1) requires the court to order the requested testing if two conditions are satisfied:
(i) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and
(ii) the requested DNA test employs a method of testing generally accepted within the relevant scientific community.
Md. Code Ann., Crim. Pro. § 8-201(d)(1). If the results of the DNA test are favorable to the petitioner, the court must open or reopen a post-conviction proceeding, or order a new trial. Id. § 8-201(i)(2).
The case: Porter v. State, Sept. Term 2013, No. 1916 (Oct. 25, 2016)
The questions: Does Md. Code, Cts. & Jud. Proc. (“CJP”) § 10-916 permit a defendant implicated in a murder-for-hire scheme to introduce evidence of battered-spouse syndrome? Did the evidence in the case establish that the defendant had a subjective belief of an apparent imminent or immediate danger of death or serious bodily harm?
I’ve had the privilege of arguing three cases before D.C Circuit Judge Merrick Garland, who is President Obama’s nominee to the Supreme Court. The media and interest groups are scrutinizing his 19 years’ worth of appellate decisions for insight on his jurisprudence. Much of the criticism from criminal justice advocates (on both the right and the left) is that they see Judge Garland as predisposed to favor prosecutors in criminal appeals. Critics typically cite Tom Goldstein’s 2010 analysis of Judge Garland’s criminal opinions.
My experience, while not necessarily representative, is at odds with this conventional wisdom. Two of my arguments before Judge Garland were as defense counsel in criminal appeals, and he wrote the opinion both times. I would be happy for Judge Garland to be on my panel in every single criminal appeal. Read More…