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Tag: U.S. Supreme Court

Trump Legal Team Preparing for Potential Supreme Court Showdown If President Is Subpoened

Rudy Giuliani, president Trump’s attorney.

By Steve Neavling
Ticklethewire.com

President Trump’s legal team is preparing for what could be a dramatic showdown in the U.S. Supreme Court if Robert Mueller subpoenas the president for a sit-down interview. 

Trump lawyer Rudy Giuliani, who has been negotiating terms for an interview between the president and special counsel Robert Mueller’s prosecutors, told the Washington Post that his legal team would “move to quash” a subpoena. 

Mueller’s team has tried for months to reach an agreement with Trump’s lawyers for an interview with the president over allegations obstruction of justice during the Russia probe. Mueller has said he is prepared to issue a subpoena if Trump won’t voluntarily sit down for an interview, which could include questions about obstruction of justice and collusion with Russia during the presidential campaign.

The case would be unprecedented because no high court has determined whether a president can be forced to be interviewed about a criminal investigation.

The Effect of Donald Trump’s Supreme Court Picks on Criminal Law Cases

supreme_court_us_2010

By Ross Parker
ticklethewire.com

One out of five voters said that the Supreme Court was the most important issue of the Presidential campaign. They voted overwhelmingly for Donald Trump. The President-elect has published two lists of about 20 possibilities for his Supreme Court appointees.

“Appointees” plural since there is one vacancy and three of the eight Justices are over or near 80 years old. Two are considered in the “liberal” wing (Ginsburg, Breyer) and one is a swing vote who sometimes votes with that group (Kennedy).

Since the pool of Trump picks are characterized as “conservative” or “libertarian,” the speculation by the pundits is that the effect of the appointments will be immediate and a strong re-direction to the right. Not that many of us put much faith in the predictions of the pundits and pollsters after the election. But in this case they are probably right. At least as to the hot-button issues like abortion, immigration, climate change, LGBTQ, gun rights, and affirmative action.

But what about cases involving criminal and law enforcement issues? This requires an assessment of how the current 8 Justices on these cases have voted.

In the 2015-2016 term, the Court handed down opinions in 28 cases involving these issues out of 81total cases. Categorizing each Justice’s vote as Pro-Government or Pro-Defendant results in the following order, from highest percentage of Pro-Government votes to the lowest:

Alito————79%

Thomas——–61%

Kennedy——-61%

Breyer———-57%

Roberts——–57%

Kagan———-54%

Ginsburg——50%

Sotomayor—-36%

Another interesting survey counted the percentage of time that each Justice voted with the majority in criminal cases, as opposed to voting with the dissent, or filing a concurrence with an entirely different rationale than the majority. That list from highest adherence to the majority to the lowest was as follows:

Kennedy——-96%

Roberts——–93%

Kagan———-89%

Ginsburg——86%

Breyer———86%

Alito———–71%

Sotomayor—71%

Thomas——-54%

Before the analyses, the caveats. These 28 cases were from a single term, not the entire history of a Justice’s votes. Some involved just following the Justice’s interpretation of precedent, as opposed to how he or she would have voted if not bound by precedent. Some of the cases were very complex, and there was some subjectivity in a few cases in deciding which box to put each of the votes in. But there is something to be learned from the exercise even with these limitations.

Looking at the Pro-Government listing, the two Justices at the top (Alito and Thomas) are considered to be the most “conservative” on the bench. The two on the bottom are considered to be in the “liberal” wing. But the four in the middle do not follow these labels. The list proceeds: swing vote (Kennedy), liberal (Breyer), conservative (Roberts), liberal (Kagan). Thus in criminal cases at least, the label does not determine the voting pattern for most Justices.

This conclusion is made even more apparent by a look at individual criminal cases even at the top and bottom of this ranking. For example Justice Thomas, rightly considered the dissenter on the bench, either dissented or concurred in the defendant’s favor in six cases, about a quarter of the criminal docket. This may well be because of his libertarian views on cases like those involving Second Amendment right to bear arms or the federal Hobbs Act, which he may perceive to invade states rights. On the other end of the list, Justices Sotomayor and Ginsburg each dissented in favor of the Government in two cases.

On a great many cases, it was difficult to predict how a Justice would vote on criminal cases. Voting groups on each side sometimes involved surprising voting buddies. On the great majority of cases, reading the opinions left the conclusion that the Justices more often voted their views on the applicable law rather than a particular ideology.

Also the overall Government win percentage in criminal cases is 57% to 43% for the defendants. Not too shabby for the guys and gals wearing the white hats. Moreover, in 77% of the time the Justices agree with the opinion of the Court. So the present group has not been a hotbed of rancorous disagreement.

These numbers can be parsed and speculated about in other ways. But back to the original question—how will Trump appointees affect the Court’s criminal and law enforcement-related cases? For the first appointment, to replace Justice Scalia, the answer is probably not much. Justice Scalia regularly, but not always, voted for the government in these cases. And as shown above, most cases are not decided by the ideological label put on each Justice by the media.

The second appointee, and there will be another one for President Trump, will have a greater impact, particularly in categories like abortion, affirmative action, gun rights, business regulation, gay rights, campaign spending, and racial discrimination. However, a Justice’s views can change on the bench and can greatly disappoint the appointing President, like Chief Justice Warren, Justice White, and Justice Souter, to name a few.

In criminal cases, the effect of a second “conservative” like those mentioned by the President-elect will not be as great as these categories, but it will probably move the dial for some future columnist’s analysis toward the Government’s benefit. A more law and order bench, if you will. Justice Brennan, if he stays on the bench, would not be the swing vote. The Chief Justice may well get that label.

One category in criminal cases where such a development may be significant is death penalty cases, where the Court appears to have been sensing the population’s growing doubts about the efficacy and cost effectiveness of the ultimate penalty. Even the few states regularly employing the death penalty seem to be increasingly ambivalent. The recent trend seems to be to decide these cases in ways that lessen the prospect of execution. But that could change with two or more new Justices.

Finally there is, depending on your perspective, another good development in President-elect Trump’s plans. We will no longer be judged by the eastern elite from Harvard and Yale, raised on the coasts, especially New York. The Trump list comes from all over the country and from non-Ivy League law schools, which is good news for those of us who live in the wilderness of “fly over” states and for the lawyers who went to Midwest and southern law schools. Also good news for a more diverse and representative point of view on the highest court in the land.

Parker: The Effect of Donald Trump’s Supreme Court Picks on Criminal Law Cases

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.

supreme_court_us_2010

By Ross Parker
ticklethewire.com

One out of five voters said that the Supreme Court was the most important issue of the Presidential campaign. They voted overwhelmingly for Donald Trump. The President-elect has published two lists of about 20 possibilities for his Supreme Court appointees.

“Appointees” plural since there is one vacancy and three of the eight Justices are over or near 80 years old. Two are considered in the “liberal” wing (Ginsburg, Breyer) and one is a swing vote who sometimes votes with that group (Kennedy).

Since the pool of Trump picks are characterized as “conservative” or “libertarian,” the speculation by the pundits is that the effect of the appointments will be immediate and a strong re-direction to the right. Not that many of us put much faith in the predictions of the pundits and pollsters after the election. But in this case they are probably right. At least as to the hot-button issues like abortion, immigration, climate change, LGBTQ, gun rights, and affirmative action.

But what about cases involving criminal and law enforcement issues? This requires an assessment of how the current 8 Justices on these cases have voted.

In the 2015-2016 term, the Court handed down opinions in 28 cases involving these issues out of 81total cases. Categorizing each Justice’s vote as Pro-Government or Pro-Defendant results in the following order, from highest percentage of Pro-Government votes to the lowest:

Alito————79%

Thomas——–61%

Kennedy——-61%

Breyer———-57%

Roberts——–57%

Kagan———-54%

Ginsburg——50%

Sotomayor—-36%

Another interesting survey counted the percentage of time that each Justice voted with the majority in criminal cases, as opposed to voting with the dissent, or filing a concurrence with an entirely different rationale than the majority. That list from highest adherence to the majority to the lowest was as follows:

Kennedy——-96%

Roberts——–93%

Kagan———-89%

Ginsburg——86%

Breyer———86%

Alito———–71%

Sotomayor—71%

Thomas——-54%

Before the analyses, the caveats. These 28 cases were from a single term, not the entire history of a Justice’s votes. Some involved just following the Justice’s interpretation of precedent, as opposed to how he or she would have voted if not bound by precedent. Some of the cases were very complex, and there was some subjectivity in a few cases in deciding which box to put each of the votes in. But there is something to be learned from the exercise even with these limitations.

Ross Parker

Ross Parker

Looking at the Pro-Government listing, the two Justices at the top (Alito and Thomas) are considered to be the most “conservative” on the bench. The two on the bottom are considered to be in the “liberal” wing. But the four in the middle do not follow these labels. The list proceeds: swing vote (Kennedy), liberal (Breyer), conservative (Roberts), liberal (Kagan). Thus in criminal cases at least, the label does not determine the voting pattern for most Justices.

This conclusion is made even more apparent by a look at individual criminal cases even at the top and bottom of this ranking. For example Justice Thomas, rightly considered the dissenter on the bench, either dissented or concurred in the defendant’s favor in six cases, about a quarter of the criminal docket. This may well be because of his libertarian views on cases like those involving Second Amendment right to bear arms or the federal Hobbs Act, which he may perceive to invade states rights. On the other end of the list, Justices Sotomayor and Ginsburg each dissented in favor of the Government in two cases.

On a great many cases, it was difficult to predict how a Justice would vote on criminal cases. Voting groups on each side sometimes involved surprising voting buddies. On the great majority of cases, reading the opinions left the conclusion that the Justices more often voted their views on the applicable law rather than a particular ideology.

Read more »

Parker: The Supreme Court, Police Shootings and Black Lives Matter

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

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.

Ross Parker

Ross Parker

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.

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Supreme Court Refuses to Hear Appeal of Ex-Detroit Mayor Kwame Kilpatrick

Featured_kwamekilpatrick-connectedinteractive_8707

By Allan Lengel
ticklethewire.com

DETROIT — Ex-Detroit Mayor Kwame Kilpatrick’s travels through the federal court system came to an end on Monday when the U.S. Supreme Court rejected without comment his request to appeal his conviction.

A federal jury in 2013 convicted Kilpatrick, 46, of public corruption charges. He was sentenced to 28 years in prison and is currently serving his time in a federal prison in El Reno, Okla.

He appealed his case to U.S. Court of Appeals, which refused to overturn the conviction.

The odds were against the Supreme Court taking the case. It takes so few and usually looks to see if a case brings up new legal issues that need clarification.

One key issue of the appeal, his attorney Harold Gurewitz argued, was that the trial judge gave federal agents too much latitude by letting them interpret for jurors written communications involving Kilpatrick.

 

Parker: Three Key Criminal Cases Before U.S. Supreme Court in January

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.

Ross Parker

Ross Parker

By Ross Parker
ticklethewire.com

The Supremes will consider three criminal cases in oral arguments scheduled for January 12 and 13. The effect of the decisions are not broad, but the cases illustrate the Court’s responsibility to keep the criminal justice system as construed by the lower courts consistent, rational, and based on precedent.

Those who are not part of the criminal justice system are often surprised when they learn that Double Jeopardy does not prevent separate sovereigns from launching separate prosecutions for the same conduct by a defendant. The most common example is when a defendant faces charges from a single course of conduct in both state and federal court. An acquittal or conviction in one jurisdiction does not preclude charges in another since each has the right to define and punish offenses committed in its jurisdiction.

Puerto Rico v. Sanchez Valle will decide whether that territory and the federal government are separate sovereigns permitting dual prosecutions. First, a bit of history. The United States obtained the island from Spain after the Spanish American War in 1898. It was a “splendid little war” which made the U.S. a colonial power and made Teddy Roosevelt the President. What could establish his executive qualifications better than the ability to lead a bunch of cowboys and polo players up San Juan Hill?

After the treaty in 1899 Congress established a civil government there with the Governor and the Supreme Court of Puerto Rico appointed by the President and any laws passed by the legislature submitted to Congress for potential annulment. In 1950 Congress offered Puerto Rico a “compact” of self-government. The islanders passed a Constitution in 1952, which was approved by Congress and President Truman. The Constitution removed the oversight powers of the President and the United States Congress, and Puerto Rico was empowered to make its own criminal laws.

Sanchez Valle was charged with illegal sale of firearms by Puerto Rican authorities. While the case was pending, however, he pled guilty to the federal version of the same offense and was sentenced to 5 months in prison, a much lighter sentence than the one he faced by the territorial charges. The trial court dismissed those latter charges as violating Double Jeopardy. The Puerto Rican Supreme Court agreed, holding that Puerto Rico was not a separate sovereign from the United States government.

The case comes down to whether the source of Puerto Rico’s authority to pass and enforce criminal laws is the 1952 Constitution or the ratification of this Constitution by Congress. Is Puerto Rico a sovereign part of the federal system in the same sense as states or an Indian tribe or is there enough of a vestige of colonialism to make the federal government the ultimate source of public power?

Read more »

Supreme Court: Secret Service Agents Immune from Protest Lawsuit Involving President Bush

Steve Neavling
ticklethewire.com

The Supreme Court halted a lawsuit that alleges unequal treatment by Secret Service agents.

The Washington Post reports that the court unanimously ruled that agents were immune from the lawsuit because they were responsible for distancing protesters from then-President George W. Bush following a 2-0-4 campaign event in Jacksonville, Ore.

“The maintenance of equal access makes sense in the situation the agents confronted,” Justice Ruth Bader Ginsburg wrote for the court.

During the event, the Secret Service moved protesters away while allowing supporters to stay close.

Seven protesters and two Secret Service agents filed suit, claiming unequal treatment of their free-speech rights.

Parker: Supreme Court to Decide Who Gets to Define “Mentally Retarded” for Purposes of the Death Penalty


Ross Parker

 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
The cut-off IQ for the death penalty in Florida is 70 or less. Freddie Lee Hall scored a 71. He has been on death row for 35 years.

Hall was convicted of killing a pregnant woman and a deputy sheriff and, following the jury’s recommendation, the trial judge sentenced him to death. For 25 years he sat in his death row cell while his lawyers filed various appeals, all without success. Then the U. S. Supreme Court handed down Atkins v. Virginia in 2002, a 6-3 decision which held that the evolving standards of decency under the 8th Amendment prohibition against cruel and unusual punishment barred the execution of mentally retarded defendants. The case, however, left to the states the details of determining who was mentally retarded.

(Medical professionals rarely use the “retarded” term any more, preferring “intellectually disabled.” Since the cases and statutes continue to use the former term, I will too for the sake of clarity.)

The reasoning of Atkins was that the mentally retarded do not act with the same level of moral culpability because they lack the reasoning, judgment, and impulse control of normal adults. Although they still deserve sanctions for their crimes, executing them would not further the retribution and deterrence rationales which justify the ultimate penalty.

There were, perhaps, two subtexts in Atkins. First, the case was one more step in the growing public consensus in America that the application of the death penalty should either be eliminated or severely limited. It was one more chip in the capital punishment edifice that is incrementally crumbling.

Atkins was an important case in this evolution. Not only did it exempt another class of persons from the death penalty, but it recognized the development of a public consensus as a basis for doing so. The Court surveyed state legislatures and found 18 which had banned the practice. Add that number to the 13 which had at that time abolished the death penalty altogether, plus several others that had done so de facto and a trend became a consensus. Additionally the opinion included a provocative footnote suggesting a growing broader consensus against capital punishment. This the dissent vehemently decried, with Justice Scalia remarking that “seldom has an opinion of this Court rested so obviously on the personal views of its members.”

I wrote two columns earlier this year that in my view the death penalty was slowly dying and that outside of a small handful of states it has already become an anachronism. Full disclosure then and now, my personal view is that the death penalty in the 21st Century is morally wrong in a civilized society; that it can be freakishly wanton in its selection of people to execute; that its no-recourse finality strains the entire criminal justice system; that it provides precious little or no deterrence to craven impulsive murderers; and that there continues to be a possibility of a botched and inhumane administration of the instrument of death.

Most Americans, however, are increasingly concluding for entirely practical reasons that the application of the death penalty is simply too expensive, the appellate delays too laborious and uncertain, and the ultimate result too fraught with the intrusion of outside factors like race, poverty, unavailability of lethal drugs and the like.

More than any subjective factor of morality, the future of the death penalty is being determined by the growing sentiment that we simply cannot afford it. Even though a majority of Americans probably continue to believe that capital punishment is justified for the mass murderers we hear about on the news with disturbing regularity, they are no longer willing to pay the increasing price. Just as likely, pragmatic considerations in an era of economic insecurity affect those moral and practical decisions on whether as a society we need capital punishment.

The other point implied in Atkins is that the criminal justice system cannot guarantee a fair, reliable, and consistent result in capital cases involving an accused whose mental abilities are seriously subpar. Their limited ability to communicate and contribute to their own defense compromises even an effective defense counsel’s job. The result is that, either they plead to a non-capital sentence without a full consideration of their defenses, or they disproportionately face the one penalty which, if wrong, is unforgiving. Death.

Atkins seems to assume in its dictum that states will use the diagnostic criteria of the American Psychiatric Association. Most of the ones which at least nominally still have capital punishment do so. Juries, legislatures, judges, and governors have on quite a few occasions either rejected or overruled the death penalty for mentally retarded defendants.

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