Kagan joins Liberal Bloc of SCOTUS in criminal justice case

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It is a statement on denial of petition for writ of certiorari in Gamache v. California. The case involves a jury that viewed video evidence improperly, at deliberations not trial.

The statement was written by Justice Sotomayor and joined by Ginsburg, Breyer, and Kagan. It is not a dissent from the decision of the 5 more conservative Justices to not hear the case but expresses concern "because the allocation of the burden of proving harmlessness can be outcome determinative in some cases." They did not write/join a dissent because the facts did not support it in this case:

"In this case, however, because it seems that the burden allocation would not have altered the court’s prejudice analysis, I do not disagree with the denial of certiorari."

http://www.supremecourt.gov/opinions/10pdf/10-5196.pdf

In other words, with a different set of facts this would have been a dissent or even a majority opinion to hear and potentially reverse convictions obtained unconstitutionally. The 4 liberal Justices wanted to send a message to the California legal system to get their act together. This is one of our first signs that Justice Kagan is following in Justice Sotomayor's footsteps, who as we have noted with glee, is doing her best to fill the vacuum left by Justice Stevens.

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1. I wanted to say that this is my reading of this opinion alone, I didn't read a press report so...

feel free to check it.

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2. Another interesting tid bit, Scalia and Alito got into it:

WASHINGTON — The Supreme Court on Tuesday expressed sympathy for a California law that aims to keep children from buying ultra-violent videogames in which players maim, kill or sexually assault images of people.

But justices seemed closely split on whether the restrictions are constitutional.

The high court has been reluctant to carve out exceptions to the First Amendment, striking down a ban on videos showing graphic violence to animals earlier this year.

California officials argue that they should be allowed to limit minors' ability to pick up violent video games on their own at retailers because of the purported damage they cause to the mental development of children. Some justices appeared to agree.

http://localtechwire.com/business/local_tech_wire/news/blogpost/8557161/

[mr_liberal]

3. There was another case like this about a month ago

where she joined the liberals in a death penalty case. They lost 4 to 5.

Its still waaay too early to tell much about her though, and about Sotomayor, although Sotomayor is starting to look like a reliable liberal vote.

Both seemed good in the free speech violent video games case too (oral arguments). Breyer was a big disappointment; thats not a totals surprise though.

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4. Breyer will find a middle ground on it

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5. Kennedy may even