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Tag: supreme court

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?

 

Parker: Supreme Court Opens the Term with Criminal Case Arguments

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.

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?

Ross Parker

Ross Parker

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.

Read more »

Justice Department Drops Charges Against Ex-Virginia Gov. Bob McDonnell

Ex-Gov. Bob McDonnell

Ex-Gov. Bob McDonnell

By Steve Neavling
ticklethewire.com

Former Virginia Gov. Bob McDonnell was sentenced to two years in prison in 2014 for allegedly accepting gifts from a businessman promoting a tobacco-based dietary supplement.

But his sentence was on hold as he appealed the case.

Now, the Justice Department is dismissing the 11 felony counts after the Supreme Court ruled 8-0 in June that prosecutors mishandled the case by mixing evidence of illegal activity with routine courtesies, Politico reports. 

The Justice Department said the Supreme Court has made it too difficult to retry McDonnell.

McDonnell and his family went on vacations and received gifts and loans valued at $177,999 from the dietary supplement businessman, Johnnie Williams.

The Supreme Court ruled that prosecutors failed to show that McDonnell intended to provide help to William in exchange for gifts and loans.

“After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further,” said a statement issued Thursday by the Justice Department. “The department thanks the trial team and its investigative partners for their outstanding work on this case.”

McDonnell’s legal team applauded the victory.

“We have said from the very first day that Bob McDonnell is an innocent man. After a long ordeal traversing the entire legal system, that truth has finally prevailed. We are thrilled Governor McDonnell can finally move on from the nightmare of the last three years and begin rebuilding his life,” McDonnell lawyers Hank Asbill, John Brownlee and Noel Francisco said in a statement.

FBI Asked to Investigate Trump’s Alleged Violent Threat Against Clinton

donald trump rallyBy Steve Neavling
ticklethewire.com

Concerns over Donald Trump’s suggestion that second-amendment supporters could stop Hillary Clinton from making Supreme Court picks were forwarded to the FBI.

The super PAC Democratic Coalition Against Trump contacted the FBI after believing Trump was encouraging violence against Clinton. The PAC sent this to the FBI:

The Democratic Coalition Against Trump immediately reached out to senior officials from the FBI to raise alarms about this call to violence, and to demand that Trump face felony charges under 18 U.S.C. § 879 for making these threats.

“There is no place in American politics for this kind of disgusting rhetoric,” said the organization’s senior advisor, Scott Dworkin. “Donald Trump should immediately drop out of the race, and he should be arrested for committing a federal crime. He’s proven himself to be nothing more than a thug, and anyone supporting him after this grotesque display should be publicly shamed. It’s truly abhorrent and we must all stand united – regardless of party affiliation to say loudly that Americans reject this kind of hateful and dangerous rhetoric.”

The question is whether Trump intended to incite violence against Clinton. Trump quickly said he was misunderstood when he said second-amendment supporters could stop Clinton.

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