October 2011 Term - United States Supreme Court

[mangxema]

Some of these seem very surprising to me as an outsider. For example, Rehberg v. Paulk: why should there not be a punishment for lying through your teeth to send an innocent man to prison?

 

[JollyRoger]

Some of these seem very surprising to me as an outsider. For example, Rehberg v. Paulk: why should there not be a punishment for lying through your teeth to send an innocent man to prison?

This is the one case this week that really jumped out at me. The Roberts Court has seemed hellbent on expanding immunity from civil suit to law enforcement. The officer could still potentially be charged criminally with perjury and the innocent individual might be able to get damages from the state. Still, this case worries me because if the Court gives immunity, there seems to be little incentive for a law enforcement officer not to perjure himself as there is a good shot that the local prosecutor will not aggressively pursue criminal perjury charges against a local law enforcement officer.

The October 31st cases seem like a good opportunity for the Court to split the baby on defense lawyer incompetence, though I think the defendant should be given the opportunity to get some relief due to attorney incompetence in both cases.

 

[7ronin]

Re: Howes vs. Fields. I'm not sure how this one got to the Supremes because there seems to be a lot of case law concerning Miranda. In the jurisdiction where I live, the Deputy Sheriff's who run the county jails are taught to ALWAYS Mirandize inmates prior to interviewing them. The only exceptions would be if the inmate was a witness and not a suspect or if the conversation involved topics not connected with criminal activity. From what I gather, officers from other agencies who come into the jails to interview inmates about alleged offenses committed outside of jail, also start their interviews with a new Miranda warning. It just makes sense and takes half a minute. Telling an inmate that "he is free to leave" or "you can stop talking anytime" or "you don't have to talk to us" are, in a jail house setting, transparent attempts to get around Miranda.

 

[JollyRoger]

Re: Howes vs. Fields. I'm not sure how this one got to the Supremes because there seems to be a lot of case law concerning Miranda.

Trimming back Miranda also seems to be an ongoing project of the Roberts Court - there seems to be several Supeme Court cases per year taking aim at Miranda - usually decided by 5-4 or 6-3 votes in one direction or the other. It would seem that Miranda warnings would be standard in such situations, but that is apparently not the case.

 

[7ronin]

Yes, that strip search case does seem interesting.

If the person was arrested for driving under the influence (of alochol), I think they should be searched for possible drugs.
For something like embezzlement, heck no.

I think we need to get our terms in order. Basically, there are three levels of searches:

1. Pat down: a quick check for weapons, contraband, etc., The subject does not disrobe, although he or she may be asked to remove shoes and outer clothing (e.g. jacket). The subject may or may not be asked to open his or her mouth.
2. Strip search: the subject disrobes and each item of clothing is individually examined.
3. Strip search accompanied by body cavity examination (justice Alito calls this "squat and cough": The subject disrobes as in #2 and the searchers determine if the subject is hiding anything in any of his or her body cavities.

When a subject is arrested in the field, he or she receives an initial pat down by the arresting officer(s). On arrival at jail, the corrections officers conduct another pat down of the subject prior to acceptance into custody. If an individual is booked and released (misdemeanors usually) or is booked and makes bail (could be misdemeanors or felonies) There are no further searches. Everyone else who goes into custody gets search #3. Where I live it is unusual for someone arrested for a minor offense to be jailed; there is just not enough room at the inn.

 

[DaveShack]

I don't understand the fixation (on the part of the people bringing the cases) on Miranda. I'd be perfectly satisfied with one Miranda reading per individual, lifetime. You have rights, you know what they are. Most people in the US can recite a fairly good rendition of the standard Miranda warning from the age of 12 or so.

On the flip side, I don't see any purpose in trying to fool someone into thinking their rights don't apply. Just say it, it takes all of 20 seconds and then you move on.

In the cases before the court, I'd have a much more basic question. In jail / prison the inmate is in custody continuously, right? Doesn't that mean that any previous Miranda is still in effect? This question isn't whether it's right or wrong to give the warning again, but on whether it's necessary. I'd say it's a good idea, but not necessary. And from the time they go though the door till the time they go out, anything they say or do should be evidentiary, except for possibly privileged conversations that are specifically designated as non-evidentiary. IE a private meeting with an attorney for the purpose of participating in one's defense should be the exception and be "anti-miranda", not the other way around.

Edit: clarified something to make it more RD worthy

 

[7ronin]

In the cases before the court, I'd have a much more basic question. In jail / prison the inmate is in custody continuously, right? Doesn't that mean that any previous Miranda is still in effect?

Generally no. Mr. X is in jail awaiting trial after having been arrested for offense A. While in custody he commits offense B, is rearrested and booked for that additional offense even though he has technically never left custody. Or, while investigating offense A, the police gain evidence of additional crimes. They obtain a warrant and Mr. X is arrested for offenses B and C. Again, he has never left custody. Even though he's been Mirandized for A, he must still receive a Miranda warning if anyone wishes to interview him regarding B and C. Suppose Mr. X is interviewed several times by several different persons. Should one warning suffice for all? I don't think so.

I have been a peace officer and I don't think it hurts to give a person more than one reading of their "rights." Everybody has heard the words but you would be surprised at the number of people who seem confused by them. Also, every interview is different. Law enforcement needs to remind people that they may remain silent and so forth even if that cuts across the law and order grain.

 

[DaveShack]

Well, I'm not against the reminder. I am heavily against throwing out evidence. Suppose Mr X blabs about B and C before investigators can even open their mouths? Technically it's before that reminder was given -- do we throw it out? Or do we say that Mr X knew exactly what he was doing and the evidence should stay. Is there a standard of reasonableness to apply here? What if there is a 5 minute break in an interview -- is a re-reading required? How about a 2 hour break?

More on point of the thread, does the court set that standard by ruling on these cases? Should it perhaps rule on the substance of the individual case without making precedent on the standard?

 

[say1988]

Any ruling will set a precedent. No matter how strictly you establish the circumstances there will be future cases where it needs to be considered. Further, the Supreme Court usually tries to establish groundrules. I doubt it would have been accepted if not looking to establish an overall rule (though there still can beexceptions).

 

[JollyRoger]

Well, I'm not against the reminder. I am heavily against throwing out evidence. Suppose Mr X blabs about B and C before investigators can even open their mouths? Technically it's before that reminder was given -- do we throw it out? Or do we say that Mr X knew exactly what he was doing and the evidence should stay. Is there a standard of reasonableness to apply here? What if there is a 5 minute break in an interview -- is a re-reading required? How about a 2 hour break?

More on point of the thread, does the court set that standard by ruling on these cases? Should it perhaps rule on the substance of the individual case without making precedent on the standard?

Most of the issues you have brought up have been addressed by the Court in one way or another. The trend right now is to narrow the circumstances in which Miranda is applicable and to not be so quick to toss evidence.

 

[DaveShack]

The GPS locator one is interesting to me too. In my opinion, the key question should be "how is the GPS locator different in effect than traditional eyeball surveillance?" It would seem to me, at least on the surface, that the GPS locator doesn't achieve anything more than eyeballs could, if the government were willing to spend enough money. In fact, the GPS evidence is technically weaker than traditional surveillance, as there is the potential for reasonable doubt whether the locator was attached to the vehicle for the entire duration, and clear doubt whether the suspect is with the vehicle. So attacking it on grounds of the lack of a warrant is questionable to me.

If the approach of the case is instead related to "entering property without a warrant", then a different problem arises with the case. The property is not entered, the device is placed on the outside. Now, if a private garage were entered without a warrant in order to place the device outside the vehicle, that would be different.

Is this one of those cases that ends up 9-0 and you wonder why it was even pursued?

 

[say1988]

I can see a huge difference between visual surveillance and GPS tracking.
Attaching something to your private property is fairly significant, and I would expect something like that to be restricted.

 

[JollyRoger]

The GPS case is set to answer one unanswered question from a similar 1983 case - is the installation of device a "seizure" under the 4th Amendment - and to examine the scope of allowed survellience in using such a device (the device is more sophisticated and the tracking far more extensive in amount of time than in the 1983 case where th Court upheld use of the device).

If decided broadly, it make give guidance on law enforcement use of mobile phone tracking and other new possibilities as technology now allows.

 

[JollyRoger]

Some action on Monday:

Justice Thomas dissents in the Court's refusal to hear a case on the Constitutionality of roadside crosses:

Today the Court rejects an opportunity to provide clarityto an Establishment Clause jurisprudence in shambles. A sharply divided Court of Appeals for the Tenth Circuit hasdeclared unconstitutional a private association’s effortsto memorialize slain police officers with white roadsidecrosses, holding that the crosses convey to a reasonable observer that the State of Utah is endorsing Christianity. The Tenth Circuit’s opinion is one of the latest in a long line of “‘religious display’” decisions that, because of this Court’s nebulous Establishment Clause analyses, turn onlittle more than “judicial predilections.” See Van Orden v. Perry, 545 U. S. 677, 696, 697 (2005) (THOMAS, J., concurring). Because our jurisprudence has confounded thelower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess, I would grant certiorari.

http://www.supremecourt.gov/opinions/11pdf/10-1276.pdf

Thomas then gives 19 pages worth of his jurisprudence on the matter. Bottom line is that by the Supreme Court not granting review of this case, the American Atheists won. Hard to believe.

The other action is a smackdown of the 9th Circuit for overturning a conviction with Ginsburg, Breyer, and Sotomayor in dissent:

http://www.supremecourt.gov/opinions/11pdf/10-1115.pdf

From the majority:

The opinion of the Court in Jackson v. Virginia, 443
U. S. 307 (1979), makes clear that it is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground ofinsufficient evidence only if no rational trier of fact couldhave agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decisionwas “objectively unreasonable.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marksomitted).

Because rational people can sometimes disagree, theinevitable consequence of this settled law is that judgeswill sometimes encounter convictions that they believe tobe mistaken, but that they must nonetheless uphold. The Court of Appeals in this case substituted its judgment for that of a California jury on the question whether theprosecution’s or the defense’s expert witnesses more persuasively explained the cause of a death. For this reason, certiorari is granted and the judgment of the Court ofAppeals is reversed.

From the dissent:

In sum, this is a notably fact-bound case in which theCourt of Appeals unquestionably stated the correct rule of law. It is thus “the type of case in which we are most inclined to deny certiorari.” Kyles v. Whitley, 514 U. S. 419, 460 (1995) (SCALIA, J., dissenting). Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands. See ante, at 8. I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.

But even if granting review qualified as a proper exercise of our discretionary authority, I would resist summary reversal of the Court of Appeals’ decision. The factintensive character of the case calls for attentive review of the record, including a trial transcript that runs over 1,500 pages. Careful inspection of the record would be aided by the adversarial presentation that full briefing and argument afford. See, e.g., R. Fallon, J. Manning, D.Meltzer, D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1480 (6th ed. 2009) (posing question whether summary reversal would “smack of unfairness to the losing party unless an opportunity wereafforded for the filing of briefs on the merits” Gressman, Supreme Court Practice §6.12(c), p. 417, and n. 46 (questioning the Court’s reliance on its own examination of therecord in summarily reversing, without at least affording the parties, “particularly the respondent,” an opportunityto brief the critical issue and identify the relevant portions of the record). Peremptory disposition, in my judgment, isall the more inappropriate given the grave consequences of upsetting the judgment below: Smith, who has already served ten years, will be returned to prison to complete a sentence of fifteen years to life. Before depriving Smith of the liberty she currently enjoys, and her family of hercare, I would at least afford her a full opportunity to defend her release from a decade’s incarceration.

The facts make for a sympathetic defendant. Even the majority hints that a pardon/commutation could be proper. I'm not so sure if I agree with the dissent on the merits (which I have not quoted), but I do agree that this should have received full argument before the Court.

None of the argued cases have been decided.

 

[7ronin]

Besides GPS, other technical issues currently being argued in the courts are the use of infra-red technology to see inside a building or dwelling and the use of photo enforcement at traffic intersections (red light cameras).

 

[JollyRoger]

To be argued this upcoming week:

November 7

M.B.Z. v. Clinton

Issue: (1) Whether the political question doctrine deprives a federal court of jurisdiction to enforce a federal statute that explicitly directs the Secretary of State how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport; and (2) whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns.

Plain English Issue: Whether courts can enforce a federal statute governing how the Secretary of State is to record the birthplace of American citizens on passports and related documents; and (2) whether a federal law instructing the Secretary of State, if requested to do so, to record the birthplace of U.S. citizens born in Jerusalem as Israel interferes with the President's authority under the Constitution to recognize foreign nations.

November 7

Kawashima v. Holder

Issue: (1) Whether the Ninth Circuit erred in holding that Petitioner's convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and Petitioners were therefore removable.

Plain English Issue: Whether a person can be deported for filing a false statement on a corporate tax return under a statute that allows the government to deport anyone convicted of an aggravated felony involving fraud and deceit?

November 8

United States v. Jones

Issue: (1) Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

Plain English Issue: Whether the Constitution allows police to put a tracking device on a car without either a warrant or the owner's permission; and whether the Constitution is violated when police use the tracking device to keep track of the car's whereabouts.

November 8

Smith v. Cain

Issue: 1) Whether there is a reasonable probability that the outcome of Smith's trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith's Brady and Giglio/Napue claims.

Plain English Issue: Whether the state courts in this case erred in concluding that any violation of the defendant's constitutional rights at his criminal trial was harmless.

November 9

National Meat Association v. Harris

Issue: (1) Did the Ninth Circuit err in holding that a presumption against preemption requires a narrow interpretation of the Federal Meat Inspection Act's express preemption provision, in conflict with this Court's decision in Jones v. Rath Packing Co. (1977) that the provision must be given a broad meaning? (2) When federal food safety and humane handling regulations specify that animals (here, swine) which are or become nonambulatory on federally inspected premises are to be separated and held for observation and further disease inspection, did the Ninth Circuit err in holding that a state criminal law which requires that such animals not be held for observation and disease inspection, but instead be immediately euthanized, was not preempted by the FMIA? (3) Did the Ninth Circuit err in holding more generally that a state criminal law which states that no slaughterhouse may buy, sell, receive, process, butcher, or hold a nonambulatory animal is not a preempted attempt to regulate the premises, facilities, [or] operations of federally regulated slaughterhouses?

Plain English Issue: Whether the Federal Meat Inspection Act which requires slaughterhouses to hold animals that become unable to walk for observation for evidence of disease preempts a state law that requires such animals to be immediately killed.

November 9

Kurns v. Railroad Friction Products Corp

Issue: Did Congress intend the Federal Railroad Safety Acts to preempt state-law based tort lawsuits?

Plain English Issue: Do federal laws governing railroad safety prohibit lawsuits against railroads under state law for injuries allegedly caused by the railroads?

 

[JollyRoger]

Monday's action:

A 5 page love letter from the Supremes to arbitration:

Agreements to arbitrate that fall within the scope andcoverage of the Federal Arbitration Act (Act), 9 U. S. C. §1 et seq., must be enforced in state and federal courts. State courts, then, “have a prominent role to play as enforcersof agreements to arbitrate.” Vaden v. Discover Bank, 556 U. S. 49, 59 (2009).

The Act has been interpreted to require that if a disputepresents multiple claims, some arbitrable and some not,the former must be sent to arbitration even if this will lead to piecemeal litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 217 (1985). From this it follows that state and federal courts must examine with care the complaints seeking to invoke their jurisdiction in orderto separate arbitrable from nonarbitrable claims. A court may not issue a blanket refusal to compel arbitration merely on the grounds that some of the claims could beresolved by the court without arbitration.

http://www.supremecourt.gov/opinions/11pdf/10-1521.pdf

11 pages of hate mail to Habeas Corpus:

Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus froma federal court “must show that the state court’s ruling onthe claim being presented in federal court was so lackingin justification that there was an error well understoodand comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562

U. S. ___, ___ (2011) (slip op., at 13). The Court of Appealsfor the Sixth Circuit purported to identify three suchgrievous errors in the Ohio Supreme Court’s affirmance of respondent Archie Dixon’s murder conviction. Because it is not clear that the Ohio Supreme Court erred at all, much less erred so transparently that no fairminded juristcould agree with that court’s decision, the Sixth Circuit’s judgment must be reversed.

http://www.supremecourt.gov/opinions/11pdf/10-1540.pdf

Alito, Scalia, and Breyer v. Sotomayor and Kagan on the the world's most unhelpful defense witness:

Statement of JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE BREYER join, respecting the denial of certiorari.

One morning in July 1995, petitioner Duane E. Buckwent to his ex-girlfriend’s house with a rifle and a shotgun. After killing one person and wounding another, Buck chased his ex-girlfriend outside. Her children followed and witnessed Buck shoot and kill their mother as she attempted to flee. An arresting officer testified that Buckwas laughing when he was arrested and said “[t]he deserved what she got.” 28 Tr. 51 (May 6, 1997).

Buck was tried for capital murder, and a jury convicted.He was sentenced to death based on the jury’s finding that the State had proved Buck’s future dangerousness tosociety.
The petition in this case concerns bizarre and objectionable testimony given by a “defense expert” at the penalty phase of Buck’s capital trial. The witness, Dr. Walter Quijano, testified that petitioner, if given a noncapitalsentence, would not present a danger to society. But Dr. Quijano added that members of petitioner’s race (he isAfrican-American) are statistically more likely than the average person to engage in crime.

Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr.Quijano was a defense witness, and it was petitioner’sattorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.

http://www.supremecourt.gov/opinions/11pdf/11-6391Alito.pdf

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins,dissenting from denial of certiorari.

Today the Court denies review of a death sentencemarred by racial overtones and a record compromised bymisleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.

Duane E. Buck was convicted of capital murder in a Texas state court. During the penalty phase of Buck’strial, the defense called psychologist Walter Quijano as awitness. The defense sought Quijano’s opinion as to whether Buck would pose a continuing threat to society—afact that the jury was required to find in order to sentence Buck to death. Quijano testified that there were several “statistical factors we know to predict future dangerousness,” and listed a defendant’s past crimes, age, sex, race,socioeconomic status, employment stability, and substance abuse history. 28 Tr. 110–111 (May 6, 1997). As to race, Quijano said: “Race. It’s a sad commentary that minorities, Hispanics and black people, are over represented in the Criminal Justice System.” Id., at 111. The defense then asked Quijano to “talk about environmental factors if [Buck were] incarcerated in prison.” Id., at 111–112. Quijano explained that, for example, Buck “has no assaultive incidents either at TDC or in jail,” and that “that’s agood sign that this person is controllable within a jail orprison setting.” Id., at 115. He also explained that Buck’s“victim [was] not random” because “there [was] a preexisting relationship,” and that this reduced the probability that Buck would pose a future danger. Id., at 112. Ultimately, when the defense asked Quijano whether Buck was likely to commit violent criminal acts if he weresentenced to life imprisonment, Quijano replied, “Theprobability of that happening in prison would be low.” Id., at 115.

http://www.supremecourt.gov/opinions/11pdf/11-6391Sotomayor.pdf

Still no decisions on argued cases.

 

[madviking]

At least two more cases decisions were released.

http://www.law.virginia.edu/html/news/2012_spr/hosanna_tabor.htm

The Supreme Court on Wednesday issued a unanimous opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a major religious liberty case argued by University of Virginia School of Law professor Douglas Laycock.

In the opinion written by Chief Justice John Roberts, the justices sided with Laycock's arguments, finding that the First Amendment guarantee of freedom of religion limits the ability of religious institution employees from suing for employment discrimination.

...

In another decision released Wednesday, Supreme Court Justice Sonia Sotomayor cited two University of Virginia law professors in her dissenting opinion in Perry v. New Hampshire, a case on eyewitness reliability. The justices voted 8-1 that courts are not required to exclude eyewitness testimony when identifications are made under suggestive circumstances that are not orchestrated by the police. Judges currently can bar testimony when the police intentionally influence a witness to identify a suspect.

 

[say1988]

For the religious one, the article I read says it was a much more limited ruling. The worker in question was deemed to have held a ministerial job, and this ruling only applies to such jobs not to other jobs with religious employers.

 

[Incodcito]

For the religious one, the article I read says it was a much more limited ruling. The worker in question was deemed to have held a ministerial job, and this ruling only applies to such jobs not to other jobs with religious employers.

Just a slight tear in the constitution...