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Tag: supreme court

Neil Gorsuch’s Participation In Supreme Court Could Make a Difference, Most Likely In favor of Protecting Officers

Judge Neil Gorsuch

Judge Neil Gorsuch

By Ross Parker
ticklethewire.com

The muddied area of the law in civil actions against police officers involved in a shooting is one where Justice Neil Gorsuch’s participation and vote could make a difference, most likely in favor of protecting the officers. The Supreme Court heard argument last week in County of Los Angeles v. Mendez, a Section 1983 action against the county and two LA Sheriff’s Deputies.

It is an old legal adage that bad facts make bad law. From a law enforcement perspective, the case presents that kind of context.

First the present atmosphere surrounding police shootings, particularly of minority members, particularly where a rule or policy violation is present,  is very unforgiving of split second decisions by police officers in the heat of situations reasonably perceived to be dangerous.  See The War on Cops by Heather Mac Donald. One publication has described the case as involving the question if the police can “troll you and then shoot you.”

Second the atmosphere was especially stacked where the victim was, after the fact, found to be an innocent who suffered serious injuries.

The deputies were seeking a parole violator in 2010 when they knocked and announced their identity at a house in Los Angeles and then entered and searched it. In violation of the 4th Amendment, they lacked either an arrest or search warrant. Finding no one, two of them were sent to check a dilapidated shack in the backyard behind the house. Without announcing their identity or purpose, they opened the door with guns drawn. Not knowing who they were, Mendez picked up a BB gun he used to kill rats but did not point it at the officers. The deputies opened fire with 15 shots wounding Mendez and his pregnant girlfriend. Mendez later had to have his leg amputated because of his injuries.

The “Provocation” Rule

At the conclusion of the federal bench trial, the judge sustained liability and awarded the plantiffs $4 million in damages. The 9th Circuit Court of Appeals upheld the judgment under the alternative theories that the officers had provoked the threatening situation and that their constitutional violation, under the circumstances, was the proximate cause of the excessive force causing the injuries.

The “provocation” rule is opposed by law enforcement because it ignores principles of qualified immunity and focuses on events prior to the reasonableness of the officers’ action at the time of the shooting. Such a rule would, they argue, encourage police to hesitate and thus result in increased danger to both them and the subjects. The legal analysis has been widely discredited by other appellate courts.

Plaintiffs argue that it is unfair to shield officers from liability for unreasonably dangerous situations which they created or contributed to by their own actions.

The wide gap in views on what legal principles and analysis should be employed by the parties and lower courts was reflected by the apparent attitudes by the 8 Justices during oral argument last week. Even the fundamentals of the law in this area are confusingly uncertain.

The case could very well end up in a 4-4 tie between the Justices who support a finding that an unconstitutional entry satisfied proximate cause for the injury (likely Kagan, Sotomayor, Breyer, and Ginsburg)  and those who could discern no proximate cause between any constitutional violation and the result (likely Roberts, Alito, Thomas and Kennedy). A tie would uphold the 9th Circuit’s affirmance of liability and damages. Of course predicting individual votes in a murky area of the law is a perilous course taken only by the most stalwart of columnists (who have nothing to lose).

Ominously the 13 Amicus Curiae briefs are split almost equally divided in their support of the two sides of the case.

Almost Justice Gorsuch’s disciplined and conservative approach could bring clarity in this area. Of course it is likely to be a clarity very unhelpful to the victims of police shootings.

U.S. Supreme Court to Decide Whether Mexican Nationals Can Sue Over Border Patrol Shootings

Border PatrolBy Steve Neavling
ticklethewire.com

The Supreme Court will begin hearing arguments today in a case involving a Border Patrol agent who fatally shot an unarmed 15-year-old across the border with Mexico.

The big legal question: Can the family of the teenager sue an agent for damages in the U.S.?

The shooting occurred between El Paso and Juarez. There have been 42 cross-border shootings between 2005 and 2013, marking a big increase over previous time periods, NPR reports. 

NPR wrote:

In June 2010, Sergio Hernández and his friends were playing chicken, daring each other to run up the incline on the U.S. side and touch the fence, according briefs filed by lawyers for the Hernández family.

At some point U.S. border agent Jesus Mesa, patrolling the culvert, arrived on a bicycle, grabbed one of the kids at the fence on the U.S. side, and the others scampered away. Fifteen-year-old Sergio ran past Mesa and hid behind a pillar beneath the bridge on the Mexican side.

As the boy peeked out, Agent Mesa, 60 feet or so away on the U.S. side, drew his gun, aimed it at the boy, and fired three times, the last shot hitting the boy in the head.

Although agents quickly swarmed the scene, they are forbidden to cross the border. They did not offer medical aid, and soon left on their bikes, according to lawyers for the family.

Supreme Court to Decide Whether Killed Mexican Teen Has Constitutional Protections

Border PatrolBy Steve Neavling
ticklethewire.com

The U.S. Supreme Court is expected to decide whether a Mexican teenager is permitted to sue the Border Patrol agent who shot him.

“This raises fundamental questions about the reach of protection under the Constitution,” Deepak Gupta, a lawyer working on behalf of the teenager’s family,”  told the Dallas Morning News.  “It’s hard to understate how fundamental it is.”

In the summer of 2010, Sergio Hernandez, then 15, was allegedly throwing rocks at Border Patrol officers along the border between El Paso and Juarez.

Agent Jesus Mesa Jr. fired at Hernandez, killing him.

The central question in the court case: Does a Mexican have constitutional protections against the use of deadly force by federal officers – a protection afforded to Americans?

A Border Patrol lawyer says Hernandez does not have constitutional protections.

“To say he did would create a very litigious border,” Ortega said. “We’d be, in effect, expanding the jurisdiction of the Constitution of the United States into sovereign areas.”

Supreme Court’s November Cases and the Continued Search for the Evolving Standards of Decency in Criminal Punishment

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

US_Supreme_Court

By Ross Parker
ticklethewire.com

With only a pair of criminal cases on the Oral Argument docket in November, the Court will primarily focus on civil and administrative cases. One of the criminal cases, Beckler v. United States, involves a question of interest probably only to some prosecutors and judges: whether the career offender sentencing guidelines defining a “crime of violence” warranting a sentence enhancement is unconstitutionally vague. The Court last year invalidated a similar clause (violent felony) in the Armed Career Criminal Act on that ground.

The other case, Moore v. Texas, involves yet another 8th Amendment Cruel and Unusual Punishment issue on the permissible medical standards for intellectual disability regarding a defendant’s fitness for execution.  The case involves another question which will probably not be resolved because of the absence of a Justice to fill Antonin Scalia’s seat. That question is whether long term solitary confinement on death row is itself unconstitutional as cruel and unusual.

In 1980 Bobby James Moore, age 20, shotgunned a grocery clerk to death in a robbery attempt. He was convicted and sentenced to death. Since that time he has spent more than 35 years in solitary confinement in a 60 square foot iron cell for 22 and ½ hours a day. He has no TV or association with other inmates. The medical and psychological effect of this kind of incarceration has been studied extensively, and some of the results show a deterioration ranging from mild mental disability to psychosis. In short some experts consider this to be a modern version of torture.

But can the time expended on repeated postponements caused by the defendant’s own pursuits in the Byzantine appeals process in capital cases be equated with government “torture?”

It is a gruesomely fascinating exercise to trace the evolution of torture as a means to punish. Four thousand years ago the Code of Hammurabi codified punishments for particular crimes. Various penalties were prescribed, including an “eye for an eye,” ripping tongues out for false testimony, and skinning perpetrators alive.

A few centuries later the ancient Hebrews employed crucifixion, being thrown off cliffs, stoning, being burned alive, and being sawn in half. The classical Greeks used the Rack, the Wheel, and an early version of the Iron Maiden as forms of punishment. In their time the Romans imposed punishments of whipping, strappado, and a very inventive one involving being placed in a bag with poisonous snakes and dropped into the water. Trials by ordeal were encouraged by the Roman Catholic Church during the Middle Ages, as well as water boarding and mutilation by various specially designed tools.

During the 1700s almost all forms of torture were abolished in most European countries, but as late as a decade ago Human Rights Watch and the United Nations reported that dozens of countries still use torture as punishment. Today over three dozen nations have abolished the death penalty, but about 60 countries still include the ultimate punishment. Some of them, however, use it sparingly.

Read more »

Parker: The Supreme Court’s November Cases and the Continued Search for the Evolving Standards of Decency in Criminal Punishment

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

US_Supreme_Court

By Ross Parker
ticklethewire.com

With only a pair of criminal cases on the Oral Argument docket in November, the Court will primarily focus on civil and administrative cases. One of the criminal cases, Beckler v. United States, involves a question of interest probably only to some prosecutors and judges: whether the career offender sentencing guidelines defining a “crime of violence” warranting a sentence enhancement is unconstitutionally vague. The Court last year invalidated a similar clause (violent felony) in the Armed Career Criminal Act on that ground.

The other case, Moore v. Texas, involves yet another 8th Amendment Cruel and Unusual Punishment issue on the permissible medical standards for intellectual disability regarding a defendant’s fitness for execution.  The case involves another question which will probably not be resolved because of the absence of a Justice to fill Antonin Scalia’s seat. That question is whether long term solitary confinement on death row is itself unconstitutional as cruel and unusual.

In 1980 Bobby James Moore, age 20, shotgunned a grocery clerk to death in a robbery attempt. He was convicted and sentenced to death. Since that time he has spent more than 35 years in solitary confinement in a 60 square foot iron cell for 22 and ½ hours a day. He has no TV or association with other inmates. The medical and psychological effect of this kind of incarceration has been studied extensively, and some of the results show a deterioration ranging from mild mental disability to psychosis. In short some experts consider this to be a modern version of torture.

But can the time expended on repeated postponements caused by the defendant’s own pursuits in the Byzantine appeals process in capital cases be equated with government “torture?”

It is a gruesomely fascinating exercise to trace the evolution of torture as a means to punish. Four thousand years ago the Code of Hammurabi codified punishments for particular crimes. Various penalties were prescribed, including an “eye for an eye,” ripping tongues out for false testimony, and skinning perpetrators alive.

Ross Parker

Ross Parker

A few centuries later the ancient Hebrews employed crucifixion, being thrown off cliffs, stoning, being burned alive, and being sawn in half. The classical Greeks used the Rack, the Wheel, and an early version of the Iron Maiden as forms of punishment. In their time the Romans imposed punishments of whipping, strappado, and a very inventive one involving being placed in a bag with poisonous snakes and dropped into the water. Trials by ordeal were encouraged by the Roman Catholic Church during the Middle Ages, as well as water boarding and mutilation by various specially designed tools.

During the 1700s almost all forms of torture were abolished in most European countries, but as late as a decade ago Human Rights Watch and the United Nations reported that dozens of countries still use torture as punishment. Today over three dozen nations have abolished the death penalty, but about 60 countries still include the ultimate punishment. Some of them, however, use it sparingly.

Read more »

Supreme Court to Decide Whether Border Patrol Agent Can Be Sued for Killing Mexican Teen

border patrol 3By Steve Neavling
ticklethewire.com

Can a Border Patrol agent be sued for shooting and killing a Mexican teenager?

The Supreme Court decided Tuesday it will take up the case of a Border Patrol agent who shot and killed a Mexican teenager who was playing with friends, the Los Angeles Times reports. 

The victim of the 2010 shooting was an unarmed 15-year-old named Sergio Hernandez.

The central question: Does the 4th Amendment extend beyond the U.S. border patrolled by Border Patrol agents?

Lawyers for the parents of the teenager argue that the 4th Amendment’s ban on unreasonable seizures and the unjustified use of deadly force extends beyond the border where agents patrol.

Hernandez “was killed in a culvert the U.S. officials patrol and effectively control,” the lawyers wrote in their appeal to the high court.

The Supreme Court, Police Shootings and Black Lives Matter

By Ross Parker
ticklethewire.com

Have the frenzied media coverage of incidents involving police shootings of African Americans and the protests of Black Lives Matter activists affected the Supreme Court?  The Court has not addressed a case involving race and the criminal justice system in some time, but two such cases are scheduled for oral argument this month.

Coincidence or a legitimate attempt to weigh in on a crisis jeopardizing law enforcement lives and the faith of minority Americans in the fairness of the criminal process?

US_Supreme_Court

The Court exercises discretion in at least three ways: what cases to accept for hearing (only about 1% are heard), the timing of oral argument (these cases were set for the first month of the 2016-2017 term), and in the individual votes and opinions of the Justices). The first two seem to demonstrate a special sensitivity to this subject which is embroiling race relations in America.

However, the other related question is whether the open seat on the Court from the death of Justice Scalia will affect the Court’s ability to decide these cases and to resolve conflicts in the lower courts. A 4-4 vote will mean that the lower court decision will stand. In these two cases the lower courts both rejected the petitions of minority defendants on racial issues.

The first of the two cases is Buck v. Davis, a death penalty appeal which has bounced around the Texas state courts, the federal district court in Houston and the 5th Circuit since Buck’s sentence of death in 1996. Buck was convicted of capital murder of his ex-girlfriend and a man at her house in a jealousy-fueled shooting spree. During the penalty hearing his defense attorney, who had a notoriously bad record in capital cases, called a psychologist to testify on the subject of Buck’s likelihood of posing a danger in the future.

In Texas the jury must unanimously conclude that the defendant poses a danger of violence to warrant the verdict of death. The defense psychologist testified that the fact that he was Black made him statistically more likely to be dangerous. Ultimately, however, the psychologist was of the opinion that he was at a lower probability of being dangerous. His report, which included the race analysis, was admitted as a defense exhibit. The prosecutor reiterated this race opinion in cross-examination and the witness’s conclusion in his closing argument.

On the most recent appeal, the 5th Circuit concluded that, although racial appeals had long been unconstitutional in criminal trials, the defendant had not met the standard of a substantial showing of prejudice to justify a Certificate of Appeal. There had been no proof that the result would have been different without the expert’s testimony in view of the defendant’s callous actions and his lack of remorse. The defense showing on appeal was not extraordinary and the prejudice de minimis.

This particular psychologist had repeated this race-based statistical opinion in six other capital cases, and the Texas Attorney General announced in a press conference that it would not oppose re-sentencing in all of those cases. However, a new Attorney General reneged on this promise as to Buck’s case.

In addition to the race-based issue, the case illustrates the tension in capital cases between two important principles. In cases involving the death penalty errors in the trial are painstakingly reviewed and appellate opinions often reach to achieve due process. On the other hand, there is a need for finality in the resolution of criminal cases. The length of time capital defendants sit on death row today is considered by some to be a failure of finality in the system.

Read more »

Supreme Court Opens the Term with Criminal Case Arguments

By Ross Parker
ticklethewire.com

US_Supreme_Court

The Supreme Court opens the 2016-2017 term on Monday with only 8 Justices because of the death last spring of Justice Scalia. The conventional wisdom is that the Court will do its best to avoid the confusion of 4-4 voting splits by postponing controversial cases another Justice is confirmed. Of course that is not always possible, particularly when the case had already been accepted while the Court was at full strength or when a case is unavoidable. An example of the latter would be a voting controversy after the Presidential election such as the 2000 case which confirmed George W. Bush’s election. God forbid the only thing that could make this election any crazier.

The Court has broad discretion in deciding what cases to accept for decision. Certiorari is granted in only about 80 of the 8,000 odd petitions that are filed. Oral arguments occur about 5 or 6 days a month from October to April. After the argument the Justices meet privately and take a preliminary vote. If the Chief Justice is in the majority, he will assign the author of the opinion. If he is in the minority, the senior Justice does so.

October’s case selections are somewhat unusual in that of the 8 cases scheduled for argument, 6 of them are criminal. Moreover, one of the two civil cases involves an issue of the liability of law enforcement agents who are sued for unconstitutional searches. Usually criminal cases comprise a third or less of the full opinion docket, about half that number of oral arguments in a month.

The first case scheduled for oral argument in the term, Bravo-Fernandez and Martinez-Maldonado v. US, involves a Puerto Rican Senator and businessman convicted of bribery in connection with gifts (Las Vegas boxing match tickets) provided to the Senator who then proceeded to vote in favor of legislation which benefitted the businessman. However, during the same prosecution, the jury also acquitted the two of other charges directly related to the issue of bribery. The verdict was irreconcilably inconsistent. On appeal the substantive bribery convictions were vacated due to erroneous instructions. The government seeks to re-try the vacated counts.

The issue before the Court is whether the factual conclusions underlying the acquittals should work to preclude the retrial under the Collateral Estoppel doctrine of the Double Jeopardy Clause. That is, should the jury’s acquittals prevent the government from retrying the defendants a second time on the charges of the vacated convictions?

As a general rule the government cannot re-litigate fact issues resolved against it in a previous prosecution. However, an exception to this rule is made in the case of inconsistent verdicts. The question is whether vacated convictions can be considered under double jeopardy to decide if the verdicts were inconsistent.

Four amicus briefs have been filed in support of the defendants’ arguments. The appeal is a prime example of why amicus briefs should be read to fully understand the issue and what is at stake in the case. One of them in particular filed on behalf of the Cato Institute is a good example of this practice ignored by most lawyers who follow Supreme Court cases. It was authored by Cato’s counsel on the appeal, David Debold, and it presents a thoughtful and erudite discussion on why the history of double jeopardy should preclude the re-trial on the vacated counts. Those of us who have worked beside Mr. Debold can only smile appreciatively at his use of an obscure theory of quantum physics to explain his point that a vacated conviction does not exist legally and so cannot be used to support the proposition that the verdicts are inconsistent.

However persuasive the theory of the defense argument, the fact remains that juries in the United States have always been able to render inconsistent verdicts based on irrational considerations, compromises, or desires to reduce the punishment involved. Or just to get the hell out of the jury room. If some part of a jury agrees to vote to return completely inconsistent verdicts out of a desire to end an interminable jury service, to effect a compromise with the other part of the jury, or because they believe they will be cutting the defendant a break, they have always had a historical right and power to do so. Nullification acquittals by juries to avoid a mandatory death penalty by the theft of a loaf of bread only a couple centuries ago are a related example of this time-honored principle.

Prediction: The defendants’ convictions will be affirmed. The defendants have to prove that the jury necessarily decided the factual bribery issue by their acquittals on some counts, but this is impossible when the verdicts are inconsistent. The general authority of prosecutors to retry a conviction after it has been set aside on appeal because of trial error is so entrenched in the criminal justice system that even a skillful argument on the protections of double jeopardy will not persuade the Court to abandon the practice.

The second case, Shaw v. US, also to be argued on Tuesday, involves the question of whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argues. That seems like it should be a simpler issue than the former case, but it is one which has bedeviled the Courts of Appeals for years.

A minority of the Circuits, 3 of them, hold with the government’s argument that the statute requires only proof of an intent to deceive the bank in connection with something of value, even if the bank suffers no harm, no loss of a monetary value. The defendant counters with the Circuit majority that there must be proof of an intent to improperly obtain property owned by the bank, not just the property of one of its customers. But how should “property rights” be interpreted, narrowly as the bank’s own assets, or more broadly, as assets owned or possessed by the bank, as it holds deposits by its customers?

Both sides argue that the plain meaning of the statute supports their interpretation, but if there is one thing I have learned practicing law, nothing is ever plain when lawyers are arguing.

Shaw openly admitted in his trial that his intention was to cheat one of the bank’s customers out of the $300,000 he stole through a fraudulent Pay Pal scheme and that the government would have gotten a conviction if it had charged under the correct statute. Only the customer and Pay Pal lost money, not the bank. But should the statute require that we parse a thief’s state of mind as to the technical issues of bank law which surround reimbursement by a bank of lost depositor assets?

Prediction: The Court will affirm the defendant’s conviction. But don’t bet the mortgage money on this prediction. Safe money would go the other way as 9 Courts of Appeal have chosen to go. But I have always thought that, once I deposit my meager government pension check, those dollars now belong to the bank subject to its obligation to return part of it at the ATM machine (“hit the buttons” as my friend Jim King is wont to say).

The next column will discuss two of the remaining October oral arguments. Both involve aspects of one of the current important issues of the day—whether African American and Latino defendants can get a fair shake in the American criminal justice system. Were the Justices motivated to decide these cases early in the term, perhaps to weigh in on the controversy?

Who says Justices don’t watch the evening news? The question is, is it Fox or MSNBC?

 

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