Supreme Court:
The Term in Review.
An FJTN program for judges, staff
attorneys, and law clerks.
Now from the television studios of the
Federal Judicial Center in Washington,
D.C.,
your host,
John Cooke.
Hello, I'm John Cooke,
Deputy Director of the Federal Judicial
Center.
Welcome to this year's Supreme Court: The
Term in Review,
our annual look at the Court's
decisions most likely to affect
the day-to-day work of federal judges.
This year the Court decided
well-publicized cases dealing with
campaign finance,
class action suits, and the sale of
violent video games to children.
But it also decided less widely
known cases dealing with the
Confrontation Clause of the Sixth
Amendment,
interpretation of the federal Sentencing
Guidelines, and the Federal Arbitration
Act.
This term will also be remembered as the
first for Justice Elena Kagan, who joined
the Court after serving as the Solicitor
General of the United States.
In all, the Court decided 80 cases on
the merits this term.
In 38 of those 80 cases,
all justices who participated in the
case agreed on the result.
In 13 cases, the vote was 5 to
4.
Today we will examine 41 of the
decisions with our faculty of scholars.
We're fortunate again this year to be
joined by Erwin Chemerinsky, Dean of
the University of California Irvine
School of Law;
Evan Lee of the Hastings College of Law;
Laurie Levenson of Loyola Law School in
Los Angeles;
and Suzanna Sherry of the Vanderbilt
University Law School.
In the first half of our program, we will
consider decisions involving the First,
Fourth, Fifth, and Sixth Amendments,
criminal law,
prisoner litigation, sentencing, and civil
rights.
Then, after a short break, we will discuss
opinions dealing with federalism, the
federal courts, and federal
regulations and statutes.
The written materials that accompany
this program at our intranet site, FJC
Online, include an outline with a summary
of each of the decisions that we will
consider,
along with an appendix with summaries of
the remaining cases decided by the Court
this term.
The online outline contains links to
the full opinions.
Beth Wiggins will be here in a moment
to discuss the first set of decisions.
Hello. I am Beth Wiggins, and with me to discuss
a number of the Court's decisions this
term
are Laurie Levenson
and Erwin Chemerinsky.
We are going to start with three First
Amendment decisions, most of which were
eagerly anticipated.
Let's start with the Court's election law
decision in Arizona Free Enterprise
Club v. Bennett.
The law in question was an Arizona statute
that gave candidates
who chose to participate
public funds to conduct their campaigns.
If their opponents chose not to take
public financing,
then the publicly financed candidate
was given additional funds to match the
money spent by the privately funded
candidate and any independent groups
that supported him or her.
It was a dollar-for-dollar match,
minus 6 percent to account for the
fundraising expenses of the
privately funded candidates.
The public money topped out at twice the
amount the candidate was initially given
by the state
when he or she agreed to public funding.
Erwin, the Court found this system of
public funding
violated the First Amendment. Why? The
Supreme Court said that this decision was
controlled by its earlier ruling,
three years ago,
in Davis v. Federal Election
Commission.
In that case, the Supreme Court declared
unconstitutional the
so-called millionaire's provision
of the Bipartisan Campaign Finance
Reform Act.
That provision said that if a candidate
spent more than
$350,000
of his own money in a federal election
campaign,
opponents could take advantage
of higher contribution and expenditure limits.
The Supreme Court,
5 to 4, said
that this violated the First Amendment
because it imposed a penalty on those who
were spending their own money to get elected
and would thus have a deterrent--a chilling--
effect on people from
spending money on elections.
The Court said that the Arizona law,
in this case, had
exactly the same effect.
In fact, the Supreme Court said that the
Arizona law was worse than the federal
provision
struck down in Davis
because the amount of public funding in
Arizona would increase based on both
what an opponent would spend
but also what supporters of the opponent
would spend.
And the Court said that it was going to
use the strict scrutiny test to take a
look at this, and it didn't find that
there was a compelling interest.
In fact, it rejected the state's argument
that their interest was in preventing
corruption or even the perception of
corruption. The Supreme Court said is what
you're really trying to do here is level
the playing field, and that is not a
compelling state interest.
However, the majority also said that they
were not striking down all public
finance schemes. I mean, they said that
public spending cannot be in direct
response to spending by a
privately funded
candidate or independent group,
but you could have schemes that were
likely constitutional as long as the
candidates can opt in and the amount
of money is not increased by
the other's spending.
Now, another much awaited First Amendment
decision in a much different context:
this is Brown v. Entertainment
Merchants.
It involved a California state law
prohibiting the sale of violent video
games to minors.
The state argued that there was no sound
basis for treating offensively violent,
harmful material
with no redeeming value for children
any differently than sexually explicit
material.
The Court has allowed states to ban the
sale of sexually explicit materials to
minors,
but games manufacturers argue that unlike
explicit sexuality, violence is not and
never has been a taboo subject for
children.
So, Laurie, which argument did the Court
agree with?
Well, the Court agreed with the
manufacturers in this case. But, of course,
it's a little more complicated than that.
Once again, we have the Court using the
strict scrutiny standard here, and it said
that the law was not narrowly tailored
and there was no compelling state
interest.
First of all, they said minors do have a
First Amendment right,
and there's not the same history of
trying to shield minors from violence as
there is from sexually explicit
obscenity-type materials.
It also followed up on last term's
decision in Stevens v. United States
and said that it would reject
new categories of unprotected speech
because it was somewhat
too harmful.
And finally, the Court noted that this law
is underinclusive and overinclusive.
It's underinclusive because it doesn't
bar children from viewing violence on
television or other media sources,
and it's overinclusive because it bars
the sales to minors even if their
parents would allow it.
But what about the state's evidence
of the need for the law?
Justice Scalia, who wrote the majority,
said that the evidence presented by the
state
was insufficient to meet strict scrutiny.
So the state couldn't prove a causal
relationship between renting
violent video games
and harmful social behavior.
In fact, he said the evidence didn't
demonstrate that
experiencing video games was more likely to cause
these harms than
engaging in other media.
It will also be pointed out that there is a
voluntary system of regulation in place,
and it is being basically complied with
and thus is adequate to protect children and
serve the state's interest.
There were both concurrences and dissents in
this case, weren't there, Laurie? That is
right, and Justice Alito--with the Chief
Justice--said in a concurrence that
they agreed that the law was overbroad and
it didn't provide fair notice. On the
other hand, they said they would not
apply the strict scrutiny test
that they could have in other
more narrowly drawn statutes that they
would find to be constitutional. I think
it's notable that Justice Alito's
position was not that adopted by the
majority.
Justice Alito in his concurring opinion--
concurring judgment--
would have declared the law unconstitutional
on vagueness and overbreadth grounds
but left open the possibility that states
could adopt more narrowly tailored laws
to deal with violent video games. Justice
Scalia's majority opinion is much broader than
that. It makes clear that such laws almost
inherently are
unconstitutional.
Our next decision was one of the most
emotionally charged cases brought before
the Court this term,
Snyder v. Phelps.
Here, the First Amendment rights of the
Westboro Baptist Church to
protest at the funerals of U.S. troops were
challenged.
Church members protested peacefully on
public land approximately 1,000
feet from the church where Marine Lance
Corporal Matthew Snyder's funeral was
being held.
They displayed signs saying,
"Thank God for dead soldiers,"
"Fags doom nations," and "You're going to
hell."
Westboro members believe that U.S.
servicemen who
fall in battle are God's revenge against
the United States for tolerating
homosexuality,
particularly in the military.
Laurie, how did this get to the Court?
This got to the Court because Snyder,
the father, sued the church leader, Fred
Phelps, in federal court.
And, in fact, he claimed intentional
infliction of emotional distress and was
able to get a 10 million dollar
judgment both in compensatory and
punitive damages.
Phelps, in turn, said he had a First
Amendment right and that the verdict
violated that right.
Did the Supreme Court agree?
The Supreme Court, 8 to 1, ruled in
favor of Phelps and the members of the Westboro
Baptist Church,
saying the speech was protected by the
First Amendment.
Chief Justice Roberts wrote the opinion
for the Court.
He emphasized that this was speech
involving matters of public concern.
There's a major national debate about
rights for gays and lesbians. He said
also with regard to the claim of
intrusion,
this wasn't a private
place, so there couldn't be a claim that there's
a captive audience.
Phelps and the members of the Westboro Baptist
Church at all times
were lawfully on public property. They were never
disruptive of the funeral.
But the Court also did say that there
are some things that states and
government can do to protect in this
situation as long as they are content-
neutral laws.
But they can have like buffer zones that
you see at reproductive health care
clinics.
I think this case stands for a very
basic proposition
that the government can't punish
speech or create liability just because
the speech is offensive,
even as here,
deeply offensive.
Laurie, Erwin, and I will be back to
discuss some Fourth Amendment decisions.
We have three Fourth Amendment decisions
to look at,
two that are more traditional
and another that arises in the qualified
immunity context.
The exigent circumstances exception to
the Fourth Amendment's warrant requirement,
as the name suggests, allows police to enter
a premise without a warrant if
circumstances require it.
In Kentucky v. King, the police pursued
a suspected drug dealer into an
apartment building,
but were not sure which apartment he
entered.
They smelled a strong odor of marijuana coming
from one apartment, and thinking that was
the right one,
knocked on the door and identified
themselves.
After hearing people moving around--
what they believed were the sounds of
physical evidence being destroyed--
they entered the apartment and found a
large quantity of drugs.
It was not the apartment of the person they
were pursuing.
When a perceived need to preserve
physical evidence is created by police
knocking on a door, is the exigent
circumstances exception triggered? Erwin?
And the Supreme Court said yes.
The Supreme Court said that the exigent
circumstances exception can be applied so
long as there is not an
actual or threatened violation of the
Fourth Amendment
by the police.
In this instance there was neither
an actual nor a threatened violation of the Fourth
Amendment.
The Supreme Court said if
police hear sounds
consistent with the destruction of evidence,
that allows them to go in so as to
preserve the evidence. The Supreme Court
said there's no Fourth Amendment right
to destroy evidence.
And it's behavior like this
that triggers the ability for police to go
in, as I said, to preserve the evidence.
So, the Supreme Court said so long as
the police are not engaging in
unreasonable conduct,
they can use the exigent circumstances
exception.
And now the bottom line here is that
it's probably going to make it easier
for the police to use this exception
and go in without a warrant.
In our next decision, Davis v. United States,
police involved in a routine traffic
stop arrested the car's driver, Stella
Owens, and her passenger, Willie Davis.
With Owens and Davis now handcuffed and
sitting in separate police cruisers,
police searched the car and Davis's jacket
on the front seat and found a gun in
one of the pockets.
Charged with being a felon in possession
of a firearm,
Davis tried to suppress the gun evidence
as being gathered in violation of the
Fourth Amendment.
The motion was rejected by both the trial
and the appellate courts.
But while the case was still on appeal,
the Court handed down its decision in
Arizona v. Gant,
which held that
"police may search a vehicle incident to
a recent occupant's arrest only
if the arrestee is within reaching
distance of the passenger compartment at
the time of the search or
it is reasonable to believe the vehicle
contains evidence of the offense
of arrest."
The question before the Court in Davis
was whether to apply the exclusionary
rule when the police
conduct a search
in compliance with binding precedent
that is later overruled.
Did Davis win his argument, Laurie?
Well, Davis lost his argument here. What the Supreme
Court said is that you shouldn't use
the exclusionary rule
when the officers are relying in good
faith on prior Court precedent,
because the whole purpose of the
exclusionary rule is to deter police
from bad behavior. Here they were trying
to follow the law as it was set at the
time.
And what the Supreme Court said is that
you can separate in this case
the constitutional violation from the
remedy.
So even if there's a Fourth Amendment
violation here,
under the good faith exception, you don't
use the exclusionary rule.
It is important to emphasize that this wasn't
a case about retroactivity
because the Gant case came down while the
Davis appeals were pending.
Instead, this was a decision that said that
the exclusionary rule doesn't apply
in these circumstances because
the police where acting in good
faith at the time of the search.
I think this is one of a series of cases we've seen
for the last several years
of the Supreme Court cutting back on the
application of the exclusionary rule--the
Supreme Court holding that the
exclusionary rule applies only when it will have a
significant deterrent effect on illegal
police behavior.
So how does this case fit in with the prior
rulings?
Well, I think this case fits very much
with the prior decisions, especially in
Herring,
where the Supreme Court said the
exclusionary rule applies
only
to intentional or reckless violation of the
Fourth Amendment. It
doesn't apply if it is a negligent or good
faith violation of the Fourth Amendment. Here, the
Supreme Court says in essence
that is was a good faith violation
because the police couldn't have known
their conduct was impermissible
at the time that it occurred.
Our final decision,
Ashcroft v. al-Kidd,
involves a Fourth Amendment issue that
arises in the context of a civil suit
charging that then Attorney General John
Ashcroft
violated Abdullah
al-Kidd's rights in
misusing a material witness warrant.
Al-Kidd was a U.S. citizen on his way to
study in Saudi Arabia when he was
arrested at Dulles Airport
on that material witness warrant.
He then spent 16 days confined
and shackled
in high-security cells in detention
centers in three states.
After his release, by court order,
he was required to live with his wife
and in-laws, report to a probation officer,
and consent to home visits.
All this was done
so federal authorities could prevent
al-Kidd
from leaving the country while they
continued to investigate his acquaintance
to another person with alleged terrorist
ties.
Laurie, what was the holding here? The
Supreme Court held that the Attorney
General indeed had qualified immunity.
It went beyond that and said that there
really was no Fourth Amendment violation,
because he used a valid
material witness warrant and that he was
covered by qualified immunity
because there are no cases on point up
to that point that said that he couldn't
use a material witness warrant in this
way. So what the Supreme Court emphasized
is that the focus should not be on
the Attorney General's motive--whether
this was a pretext rule used on a
material witness warrant or not---
only on whether there was enough basis--
as you say, individualized suspicion--to
get such a warrant from the magistrate. So
the prosecutor's motive is
irrelevant to Fourth Amendment law? Generally
it's an objective standard under the Fourth
Amendment.
On the other hand, there are two areas
the Court noted where you might look at
the subjective purpose of the plan,
and that would be when you take a look
at administrative searches or checkpoints.
Erwin, this was an 8 to 0
decision, of course, with Justice
Kagan recusing herself.
But there were three concurrences
that raised some additional points and
disagreed with the reasoning of the
majority, weren't there?
Yes.
Two of the concurring opinions questioned
whether there really was a valid warrant in
this case.
They pointed out, for example, that it was
never disclosed to the magistrate judge
who issued the warrant
that al-Kidd was married to an American
citizen, his children were American citizens. It
was never pointed out to the judge who
issued the material witness warrant
that al-Kidd was fully cooperating with
federal authorities. It was never pointed
out to the magistrate judge who issued the
warrant that
there was never any desire to use al-Kidd
as a material witness.
Justice Kennedy wrote a concurring opinion
that three other justices joined
that might have even more far-reaching implications.
He questioned whether or not the
material witness statute could be used to
hold individuals under circumstances like
this. I think the courts will need to
revisit that question
in the foreseeable future.
Thanks. We'll be right back.
Turning to some Fifth and Sixth
Amendment decisions from this term,
we find the Court being called on to both
clarify some previous decisions
and break new ground.
In 2004, in Crawford v.
Washington, the Court held that an
out-of-court statement that is deemed
testimonial is not admissible at trial
unless the witness who made this
statement is unavailable and the accused
had a prior opportunity to cross-examine
the witness.
Although the Court found that after-the-
fact police interrogations are
testimonial, it held in a later
decision
that the interrogation was not
testimonial
if its purpose was to assist police
in meeting an ongoing emergency.
This term, in Michigan v. Bryant,
the Court returned to the question of
what is testimonial in deciding the
admissibility of the fatally wounded
Anthony Covington's accusation
that he was shot earlier at another
location by Richard Bryant.
Covington died that night, but his statement
was admitted into evidence
and helped convict Bryant.
Was the purpose of Covington's
accusation to assist police in an
ongoing emergency,
or did the time and distance from the
incident
make it an after-the-fact interrogation?
Erwin, where did the Court come down on this
question? The Supreme Court, in an opinion
by Justice Sotomayor, said it was
not testimonial
because the primary purpose of the police
was dealing with an ongoing emergency.
In Davis v. Washington, the case that
you alluded to, the Supreme Court
articulated this test where the focus has
to be on the
primary
purpose of the questioning.
This case is important in clarifying that
test, saying it's an objective inquiry
that looks at the primary purpose of the
participants in the discussion. But, Erwin,
in this case, the Supreme Court did give
prosecutors a pretty lenient standard
as to what would be
nontestimonial, and as you pointed out,
under Davis, the standard is whether
the primary purpose was to serve an
ongoing emergency.
Here, the shooting had taken place a half-
hour before, the shooter was not nearby,
and there could have, in fact, been mixed motives
by the police. Nonetheless, the Supreme
Court said this would meet the ongoing
emergency test.
I think you're right, and I think the key
inquiry for trial courts all over the
country is going to be,
How do you determine what was the
primary purpose of the questioning?
There will obviously be clear cases where it
was dealing with an emergency, and clear
cases where it's in-custodial
questioning and less testimonial. But there
is such a myriad of situations where it is
unclear and the courts are going to have to grapple
with. So I think the Supreme Court is going to have to return to this
issue and provide more clarity still.
In its 2009 decision
in Melendez-Diaz v.
Massachusetts,
the Court held a forensic laboratory
report was deemed testimonial
under the Confrontation Clause and that a
prosecutor could not introduce it at trial
without offering a live witness
competent to testify to the substance of
the report.
This term, in Bullcoming v. New
Mexico, the Court was asked to decide
whether the Confrontation Clause allowed
prosecutors in the DUI trial
of Donald Bullcoming to introduce a lab
report on his blood alcohol level
through the testimony of a supervisor
who did not perform or observe the
reported test.
So, Laurie, was this another decision
favorable to the prosecution? Not at all.
I actually think this will make it
harder for the prosecutors
because they can't just put on these
forensic reports without calling
the person who actually did the tests or
at least the
certifying analyst.
In this case, the certifying and testing
analyst wasn't available. He was on
unpaid leave for reasons we don't even
know. And the defendant complained and said,
What about my right to cross-examine--my
confrontation rights?
The Supreme Court agreed. It wasn't good
enough
for them to send a supervisor from the
lab who didn't actually have contact
with this testing.
There were some separate opinions that tried to
lessen the harsh impact on prosecutors
that Laurie describes.
Justice Ginsburg, in a part of her opinion that was
joined just by Justice Scalia,
said, well,
the government can save some of the
specimen for retesting and thus avoid the
problem
by having a new analyst test it and
thus be able to testify. She also suggested
that it's only a relatively small number of
cases being issued
because usually a defendant is willing to
stipulate
to allowing the testimony of the
evidence to come in.
Justice Sotomayor wrote a
concurring opinion that could prove to be very
important.
She said there's many things that aren't
being considered in this case. So, for
example, this isn't a situation where the
testing was done for non-law enforcement
purposes,
like for a medical purpose.
So this isn't the situation where the person
is offering expert evidence--expert
testimony to evidence that was not
admitted. And she said that there were
other circumstances as well where the
evidence might be able to come in,
like if it was a supervisor who is
testifying about something that he or she
observed.
Finally, our Fifth Amendment decision:
J.D.B. v. North Carolina.
In this case, 13-year-old J.D.B.
was taken out of class by a detective and
questioned in a school conference room
about some local burglaries.
Besides the juvenile and the detective,
an assistant principal, a school resource
officer, and an intern were present during
questioning.
The door was closed but not locked.
J.D.B. was not given his Miranda
rights until after he was questioned, and
later moved to have his confession
thrown out on those grounds.
So, Laurie,
could a court consider
the age
in determining whether a reasonable
person in the juvenile's position would
have felt comfortable terminating this police
inquiry?
Beth, not only could a court,
but the Supreme Court says a
court should--that, in fact, even though we
have this
objective standard for determining
whether somebody's in custody for
Miranda purposes, what we really have to
consider is
who's the reasonable person in that
situation, and age is an
objective enough factor to do it here.
That you don't need to have advanced
psychology training for courts to use
this as the standard.
That, therefore, the police, if they know
the suspect's age or they reasonably should
know the suspect's age, can use that to
determine
whether the person's in custody and
should be given Miranda rights.
The problem, though, is that the Court doesn't
clarify
how police and courts are to determine the
relationship between age and
whether a person is in custody.
This is what Justice Alito objects to
in his dissent.
He said the virtue of Miranda is it gives
clear bright-line rules to police.
Here, it's uncertain how police are to
determine whether or not somebody's then
age sufficient and whether the person is in
custody or not in custody.
Thanks, Erwin.
Thanks, Laurie.
Mark Sherman will be talking about some
criminal law decisions next with Laurie
and Evan Lee.
Hello. I'm Mark Sherman,
and with me to talk about three of this
term's criminal law decisions are Laurie
Levenson and Evan Lee.
Our first decision,
Sykes v. U.S.,
deals with what constitutes a violent
felony under the Armed Career Criminal
Act,
or specifically,
whether fleeing police in a car after
being told to stop
constitutes such a crime.
Criminals with three violent felony
convictions receive harsher penalties
under the ACCA.
Marcus Sykes already had two.
Sykes failed to stop after being told to
do so by a police officer in Indiana.
That's normally a Class A misdemeanor
in that state, but it is upgraded to a
Class D felony
if the car is used to commit a crime.
Sykes was convicted of using the car to
knowingly or intentionally flee from a
police officer
after being ordered to stop.
Sykes objected to the application of the
enhanced penalty provision of the ACCA,
arguing it conflicted with then current
Supreme Court jurisprudence in the area.
Laurie, this statute offers some
examples of violent felonies that
trigger harsher sentences. But the
decision hinged on the majority's reading
of the residual clause, didn't it? Oh,
that's right. I mean the law itself sets
forth some crimes that are crimes of
violence, and those include
burglary, arson,
extortion, and crimes using explosives.
But then there is, as you said, a
residual clause that finds a state law
to be a violent felony if it is
punishable by more than one year
imprisonment and "involves conduct
that presents a serious potential risk
of physical injury to another."
And how does the trial judge make that
finding, Evan?
Well, the majority seems to be employing
a test that asks first what
an ordinary or typical commission of
this offense
looks like,
and then it takes that and it asks whether
that
imagined offense presents the serious
potential risk
of physical injury.
And, in this case, the majority found that
fleeing the police in an automobile met
that description?
Yes, because when somebody flees in a car
and then the police
often chase after them, and then all
sorts of dangers are created to
the point where
the fleeing car might be 20 percent
more dangerous than either an arson or
a burglary,
which is one of the stated
crimes in the statute. So what's the test
after this decision? Well, I think Laurie
just said it. It has to do with statistics.
I think a district judge has to
consider
the statistics on the rate of injury
for whatever felony is in
question.
If that rate of injury is close to the
rate of injury for
burglary or arson, the enumerated
felonies in the ACCA, then--
then it's violent.
Unless
it's
non-purposeful
and non-aggressive, such as a DUI,
which was the holding in
Begay v.
U.S.,
which the Court seemed to back off of a
little bit but it's not clear, you know,
that it backed off of it completely.
In DePierre v. U.S., the
question was, again,
centered on an enhanced sentencing statute,
this time involving the ongoing question
of how to deal with so-called crack
cocaine.
The issue: whether an enhancement for
possession of 50 grams or more of
cocaine base, which carries a 10-year
minimum sentence, refers to any form of
cocaine that is chemically classified as
a base or is limited to crack cocaine.
The unanimous decision carefully parsed the
statute's text and decided that the law
made the most sense if "cocaine base" is
interpreted to include all forms of
cocaine in its alkaloid form,
not just crack cocaine.
The Court suggests that if its
holding leads to some sentencing
disparities, it will be the result
of the differences between the
fixed minimum sentences Congress imposed
by statute
and the graduated scheme set by the
Sentencing Guidelines.
And finally,
in Fowler v. U.S.,
the Court was asked to decide whether, to
prove a criminal violation of the
federal witness tampering statute when a
defendant allegedly kills a
witness, the government must prove that
the victim
would have provided information
regarding a crime
to a federal court or law enforcement
officer.
Charles Fowler was convicted of killing
Florida police officer Christopher
Horner.
The federal grand jury indicted Fowler in
part
for murdering Horner "with the intent to
prevent
any person from communicating with a
[federal] law enforcement officer or judge
of the United States
about the commission or possible
commission
of a federal offense."
Fowler argued that in order to charge him
under that statute, the government was
required to prove that Horner would
have transferred information to federal
officers
if he had not been killed.
The government had offered
no proof to that effect at trial.
Laurie, what did the majority say that the
government has to prove
to make its case under the statute?
Well, let's start with what the Court
said the government does not have to
prove.
And the government does not have to
prove beyond a reasonable doubt that
the hypothetical communication would
have been made directly to a federal
officer.
On the other hand, the government does
need to prove more than an indefinite
intent
to prevent a communication to any type of
law enforcement officer.
Otherwise, I think that this decision
would note that the scope of the
statute would cover all sorts of what
would be purely state witness tampering
violations. So where does that leave federal
prosecutors, Evan?
Well, I think prosecutors have to prove
that if
the victim
had communicated with
law enforcement
officers,
there's a reasonable likelihood
that at least one of those law
enforcement officers would have
been a federal law enforcement officer.
In the Court's words, the likelihood of
the communication
to a federal officer has to be "more than
remote, outlandish,
or simply hypothetical."
It can be hypothetical; it just
can't be
purely hypothetical.
Thanks.
Laurie, Evan, and I will turn next to
discussing the Court's decisions involving
prisoner litigation.
Hello. The decision in this group that
generated the most discussion
was Brown v. Plata.
Here, five justices upheld the injunction of a
federal district court that ordered
California to reduce its prison
population
by 46,000 prisoners
in order to remedy a number of Eighth
Amendment violations.
Laurie, this case has a long history. Can you
remind us of some of that?
Yes, Mark, it certainly does. You know the
California prisons were designed to
accommodate about 80,000
prisoners.
And it ended up having twice as many
prisoners, and that caused many serious
problems, including--from the overcrowding--
mental health problems, physical health
problems. So over the course of the last
21 years,
federal courts have repeatedly found
that there are serious constitutional
violations, and that there's been a deliberate
indifference to the conditions of
the prisoners. Then what happened
is that there was the three-judge court
under the Prison Litigation Reform Act,
and that court heard extensive testimony,
made findings of fact, and ordered the
state to reduce its prison population
to only 137 1/2 percent
over its maximum,
and gave it two years to do so.
So the question for the Supreme Court was
whether that three-judge court exceeded
its authority
under the statute. So how big a
decision is this, Laurie?
I actually think that this is a landmark
decision under PLRA. It put some
real teeth into that statute.
Evan, what do you think influenced the
Court to reach the decision that it did?
Well, I think it was the expert testimony
regarding the conditions in the
prisons,
which the Court recounted in great and
graphic detail in some cases. For example,
there was a story about a mentally
ill inmate who was held
in a cage for 24 hours, standing
in his own waste,
waiting for treatment. There was
another case
where there were 50 sick inmates who
were held in a cage that was 12
by 20 feet
for--
I think it was 5 hours waiting for treatment.
Justice Kennedy even took the
unusual step of including photographs
of some of these conditions in the
Supreme Court opinion.
But the question, of course, was not
whether the conditions were horrendous;
even California conceded that.
The question was what did the
three court--did the
three-court judge--
three-judge court
overstep its authority in issuing
the injunction
to the state to
reduce its population?
The Court said that under the PLRA,
a three-judge court may not enter a
population reduction decree
unless overcrowding is the "primary cause"
of the constitutional violations.
Now, does that mean the only cause?
The Court said no.
Here it was the main cause,
and that was good enough.
And the justices found that the remedy was
narrow enough and that there really
was no other remedy that would solve
those problems.
Moreover, it gave the State of California
two years to reduce its overpopulation.
Our second decision, Walker v. Martin,
may make it a little harder for
prisoners in California to gain their
freedom.
Under the Court's
precedent,
federal habeas relief is unavailable
to those convicted in state court if, first,
a state court has declined to address a
prisoner's federal claims because the
prisoner had failed to meet a state
procedural requirement,
and, second,
the state judgment rests on an
independent state--
independent and adequate state procedural
grounds.
Charles Martin waited nearly five years
after his conviction
before filing a state habeas petition
for ineffective assistance of counsel.
He gave no reason for the delay,
and the California Supreme Court denied
his petition as untimely.
When Martin filed a federal habeas
petition based on the same grounds, the
federal district court dismissed it
because of Martin's failure to seek
relief in state court "without
substantial delay."
But because California directs
petitioners to file known claims
"as promptly as the circumstances allow,"
instead of setting statutory filing
deadlines for determining timeliness,
Martin argued that it did not qualify as
an independent state ground adequate to
bar habeas relief in federal courts.
A unanimous Court
held that even though the
California rule allows courts
discretion
to decide the question of timeliness,
the rule was an adequate and
independent state ground for denying
federal habeas relief.
The Court said that the rule--that this
rule was
in line with its 2009
decision in
Beard v. Kindler,
where it wrote that a rule can be "firmly
established" and "regularly followed"
even if the appropriate exercise of
discretion permits consideration of a
claim
in some cases but not in others.
However,
the Court was careful to say
that it could reach this decision
because Martin did not allege that
California used this rule, either by
design
or in operation,
to discriminate against federal claims
or claimants.
A federal court may
only grant
habeas relief on a claim that was adjudicated
on the merits in state court
if the federal court determines
that the state court decision involved
an objectively unreasonable application
of federal law.
But, of course,
that determination is dependent on the
facts to which
the state court
applied the federal law.
So, is the federal court limited to the
facts
that were before the state court when
it applied the federal law, or
may the federal court hold an evidentiary
hearing
where it
hears new facts not previously
before the state court?
That was the question before the Supreme
Court
in Cullen v. Pinholster. And how
did the Court answer it, Evan?
Well, the majority held that a
federal court's
review
of the habeas claim is limited
to the record
before the state court when that court
adjudicated the merits of the claim. The Court
said
it doesn't make any sense
to say that the state court unreasonably
applied
the law to facts
that weren't before it.
So, Laurie, can a federal court still hold
an evidentiary hearing on a claim
that was not adjudicated on the
merits in state court?
Only if it meets the standards set forth
in 2254(e)(2) of the
Criminal Code,
which requires that there is either a
new rule of constitutional review that's
been made retroactive to the case or, second,
that the claim depends on a
factual predicate that could not have
been discovered with due diligence
and that that claim would be sufficient
to establish by clear and convincing
evidence that but for the constitutional
error, the defendant would not have been
found guilty.
So, Evan,
what's the significance of this decision
for state court defendants seeking habeas relief?
Well, I think petitioners are going to
have to present everything
in state court, or they're likely
to be barred from presenting it in
federal court.
Frankly, I'm not sure what is left
for the
petitioners to present in
federal
evidentiary hearings on habeas corpus
that might be held at this point.
Our next decision,
Wall v. Kholi, again deals with the
effect of state law on the availability
of federal habeas relief.
Under AEDPA, "a
properly filed application for state
post-conviction or other collateral
review
with respect to the pertinent
judgment or claim"
tolls the one-year limitation
period for filing a federal habeas
petition.
Khalil Kholi filed and lost numerous
appeals in state court.
One of them was a motion to reduce his
sentence under Rule 35 of the
Rhode Island Superior Court Rules of
Criminal Procedure.
While that last motion was still pending
Kholi filed an application for state
post-conviction relief
challenging his conviction.
That motion was also denied.
The question that brought the case into
federal court
asked whether Kholi's Rule 35
motion
triggered the tolling provision.
The Court held unanimously that it did.
The justices said that collateral means
lying aside from the main subject,
and since
the Rule 35 motion was not part
of the
direct review,
it came under AEDPA's definition and tolled
the limitation period.
In Skinner v. Switzer,
the Court sought to answer a question
that it failed to resolve two terms ago
in District Attorney's Office for the
Third Judicial Circuit v. Osborne.
The question was,
May a convicted--
convicted state prisoner seeking
DNA testing
of crime scene evidence
assert that claim in a civil rights
action under 18 U.S.C. section
1983, or
is such a claim cognizable in
federal court only when asserted
in a petition for a writ of habeas
corpus under 28 U.S.C. section
2254?
Henry Skinner was convicted of
murder
in a Texas state court.
His post-conviction challenges included
an attempt to have DNA tests run on
evidence police collected at the crime
scene.
Even though Texas had a statute allowing
prisoners post-conviction DNA testing
in limited circumstances,
Skinner's claims were denied.
Finally,
Skinner named Lynn Switzer,
the district attorney who handled his
prosecution, in a section
1983 suit,
alleging that Texas violated his
Fourteenth Amendment right to due
process
by refusing to provide the DNA
testing he requested.
What did the lower
federal courts say, Evan?
The district court denied his
petition
on the grounds that under
governing circuit precedent, a
post-conviction request for DNA
evidence
could only be heard in
habeas corpus hearings, and
the Fifth Circuit, of
course, affirmed that.
So what did Switzer argue?
Switzer--well, Texas in the person of
Switzer--argued that Skinner's challenge
was
jurisdictionally barred by something
called
the Rooker-Feldman doctrine.
Laurie, could you remind us
of what that is?
Absolutely. It comes from two Supreme Court
cases--first,
Rooker v. Fidelity Trust Company and,
then, the District of Columbia Court of
Appeals v. Feldman--and basically
together they say that the district
court lacks subject matter jurisdiction to
overturn state court judgments. Only the
Supreme Court has the jurisdiction to do
that. And so did that bar Skinner's claim in
federal court?
Well, actually no, because the Court said
that the Rooker-Feldman doctrine only
applies
to state court judgments, not challenges
to a state court statute, as there was
here. Yeah, and the Court also cited a
2005
decision,
Wilkinson v. Dotson,
where it affirmed that habeas was the
exclusive remedy
for a prisoner who seeks
either immediate or speedier release
from confinement.
But where the claim would not
necessarily speed
release, the suit can be brought under
section 1983. The
majority also found that its decision
was not barred by its earlier
decision in Heck v. Humphrey
because
a favorable ruling in Skinner's case,
his 1983 claim,
would not necessarily imply
the invalidity of his underlying
conviction or underlying sentence.
All it would do is
give him access to DNA testing.
Our final decision in this group,
Sossamon v. Texas,
deals with the Religious Land Use and
Institutionalized Persons Act, or RLUIPA.
Harvey Leroy Sossamon sued Texas,
claiming it violated his rights under
RLUIPA when it prevented him from attending
religious services while on cell
restriction
for disciplinary infractions and would not
allow him to use the prison chapel for
religious worship.
These were general policies of the
prison.
Sossamon sued under RLUIPA's private cause
of action section,
seeking injunctive and monetary relief.
Evan, how did the lower courts respond to the
claim?
The district court held that sovereign
immunity barred Sossamon's
claims for monetary relief. And the Fifth
Circuit
affirmed,
saying that
Texas hadn't
waived its
sovereign immunity
simply on the ground that it
had accepted federal funding. And what
did the Supreme Court rule?
The Court said that although RLUIPA
provides for a private cause of action
"for appropriate release--
relief
against a
government,"
that phrase
is ambiguous
with respect to money damages.
But I think the Court emphasized that sovereign
immunity is an important
constitutional limitation
on the federal courts and that, therefore,
the test must be a strict one to see
if the states have waived it. In other words,
Congress must have a very clear
indication that they meant to have
damages. Yeah, the majority reiterated
its precedents that a state's consent to
sue
in federal court for damages must be
"unequivocally expressed"
on the face of the statute. So, Mark,
I think overall that this decision will
sort of lessen the burden of RLUIPA
on the states.
Thanks, Laurie. Thanks, Evan.
Erwin and Susanna Sherry have joined me to
talk about some of the term's sentencing
decisions.
The defendant in Pepper v. United States
was originally given an
approximately 75 percent
downward departure
from the U.S. Sentencing Guidelines
after pleading guilty
in a conspiracy to distribute
methamphetamine.
Reversed and remanded for resentencing by the
appellate court,
the district court, hearing testimony
about Pepper's completing a drug
rehabilitation program,
beginning college, and reconciling with
his father, sentenced Pepper to time
served.
The most important question before the
Supreme Court was,
When the defendant's sentence is set aside
on appeal,
may a district court at resentencing
consider the defendant's
post-sentencing rehabilitation? Erwin?
Yes, Justice Sotomayor, writing for the
Court, said that
a federal district court judge
may consider post-sentencing rehabilitation
when deciding the appropriate sentence.
First, the Sentencing Reform Act, which
created the guidelines,
allows judges to consider the defendant's
background,
character,
and conduct.
And second, to the extent that the
Sentencing Reform Act
precludes sentences
outside the guideline range,
that's now been declared
unconstitutional
in the Booker case,
which says that the judges have
to have discretion and
the guidelines are just advisory. But
that does leave one question: If the
guidelines are advisory rather than
mandatory--if they are not mandatory--how should
judges
treat them?
The majority didn't really answer that
question.
But Justice Breyer wrote a concurrence
suggesting that it's a two-step approach.
First, he decided that a judge
can in general consider post-sentence
rehabilitation
in departing from the guidelines,
and then he asked whether this
particular judge in this particular case
was reasonable in considering the post-
sentence rehabilitation.
The case is so important in reaffirming
the discretion that judges have
under Booker,
but there's an ongoing debate
about how
easy it should be for judges to depart
from the Sentencing Guidelines, and this
is something that I think we're going to hear a lot
more about
in future cases in future years.
Our next decision, Tapia v. United States,
is also about the relationship between
rehabilitation and the length of a
prison sentence.
Only in this case, the question is if a
judge may lengthen the sentence,
not shorten it.
The district court sentenced Tapia to
the top of the guidelines range for
smuggling unauthorized aliens into the
country, indicating that it was giving
this sentence
so that Tapia would be in prison long
enough to qualify for the drug
rehabilitation program offered there.
The question before the Supreme Court:
Does the Sentencing Reform Act preclude
federal judges from imposing or
lengthening a prison sentence in order to
facilitate a defendant's
rehabilitation?
What did the Court decide, Suzanna? The
Court decided that the Act does indeed
preclude a federal court from either
imposing or lengthening
a defendant's sentence in order to promote
rehabilitation because the judge
can look at the factors that the Act
lists
to the extent that they are
applicable,
but noted that the Act also says, and the
judges have to recognize,
that "imprisonment is not an
appropriate means of promoting
correction and rehabilitation."
The Court said if
Congress wanted judges to be able to
consider the possibility for
rehabilitation
in deciding the sentence, they would have
given to the judges the ability to
ensure
that the defendants actually participate in rehabilitative
programs.
And it didn't.
The Court also explicitly didn't
decide whether a sentence could be shorter
in order to promote rehabilitation, which
I think is interesting in
light of the discussion that we
just had about the Pepper case. And there is an
irony, if not a tension, between these
two cases. In Pepper,
the Court is talking about the importance of
discretion of the judges and wanting
to promote rehabilitation.
In the Tapia case, the Court is talking about
the need to limit the discretion of the
judges, and
it seems to reject the importance of
rehabilitation. I don't know if it's
an inconsistency,
but it's certainly a tension between these
cases.
In McNeill v. United States,
the Court once again is trying to
clarify the meaning of the Armed Career
Criminal Act.
Under the ACCA,
a felon unlawfully in possession of a
firearm
is subject to a 15-year minimum
prison sentence
if he has three prior convictions for a
violent felony or serious drug offense.
The Act defines a serious drug offense
as one for which the law prescribes a
maximum term of imprisonment of 10 years
or more.
McNeill received the enhanced sentence
because at the time of his state
convictions,
the maximum sentence was 10 years or
more, and he was sentenced to 10 years.
But after he received those state sentences, the
state law changed
and those sentences would've been less
than 10 years.
So the question in this case for
purposes of the ACCA
was,
Does a federal court look at the
state law penalties at the time of
conviction or subsequently?
The Court held that a sentencing judge
should look at the law at the time of
conviction for the previous offense, not
to subsequent developments.
Otherwise, some convictions would
effectively disappear for ACCA
purposes,
or a sentence might depend on the exact
timing of a federal sentencing
proceeding.
And one final decision in this area:
United States v. Abbott.
Federal law makes it a separate offense
to use, carry, or possess a deadly weapon
in connection with any crime of violence
or a drug trafficking crime.
The minimum prison term for this offense
is five years, to be served consecutively,
except--and this is the language that the
Court was asked to parse---
"to the extent that a greater minimum
sentence is otherwise provided."
The question before the Court was,
Otherwise provided for what?
The Court held that the most logical
reading of the statute
refers to a greater mandatory minimum
provided for other provisions of the
U.S. Code that punish possession,
carrying, or use of a gun
during violent or drug trafficking
crimes.
So the fact that there was a higher
mandatory minimum
for the underlying crimes did not spare
the defendant
from the additional five years for
carrying a weapon during those crimes.
John Cooke is up next with some civil
rights decisions.
The Court decided three cases dealing
with civil rights that we want to tell
you about now.
Los Angeles County v. Humphries involved
a section 1983 action
against LA County
seeking damages, an injunction, and a
declaration that the defendants had
deprived plaintiffs of their
constitutional rights.
The Court's 1978
decision in Monell v. New York City
Department of Social Services
held that a municipality could only
be liable under section 1983
when
"execution of the government's policy or
custom . . .
inflicts the injury."
The question before the Court in the
Humphries case was whether its decision
in Monell, which dealt only with
monetary damages, applied to a case that
involved prospective relief,
like injunctions and declaratory
judgments.
Yes.
The Court held that in any section
1983 suit,
regardless of the type of relief sought,
a local government may be held liable
only for actions in execution of a
governmental policy
or custom.
In Thompson v. North American Stainless,
Eric Thompson and his fiancee, Miriam
Regalado,
both worked for North American Stainless.
Regalado filed a sex discrimination
charge against the company.
Three weeks later Thompson was fired.
He sued North American Stainless under
Title VII,
charging that it had fired him to
retaliate against his fiancee for filing
her charge.
Two questions before the Supreme Court
were, first,
Did the company's firing of Thompson
constitute unlawful retaliation,
and second,
If it did, does Title VII grant
Thompson a cause of action?
If the facts as they were alleged below
are true, the Court wrote,
then Thompson's firing was indeed
unlawful retaliation.
The Court said that a "reasonable worker"
might be dissuaded from claiming
discrimination if she knew that her
employer would retaliate against her
fiance.
This reasonable worker standard is the
one the Court set out for retaliation
claims in its
2006 decision
in Burlington v. White.
The Court also held that an employee who
was terminated for his fiancee's filing a
Title VII claim
has a cause of action
because he falls into what the Court
calls
the "zone of interests"
protected by the statute.
Our final decision here is Staub v.
Proctor.
Vincent Staub, a technician at Proctor
Hospital, drilled one weekend a month and
trained for two or three weeks a year in
the U.S. Army Reserve.
Both his immediate supervisor, Janice
Mulally, and her supervisor, Michael
Korenchuk, disapproved of Staub's
service, seeing it as a strain on the
department.
Based on their disciplinary actions and
accusations against Staub,
the hospital's Vice President of Human
Resources
fired him.
Staub sued for violation of a federal
statute
protecting reservists from hostile
employment actions taken because of
their service.
The question: Was the hospital liable for
violating the statute where Mulally's and
Korenchuk's antimilitary animus
influenced someone else to fire Staub?
The answer: Yes.
Where the supervisors' animus was
intended to cause the adverse decision
and was its proximate cause, the employer
is liable.
While this decision was about a
different statute,
it is likely to have an effect on Title
VII cases because they also have the
same
motivating factor language.
That's it for the first half of our
program. We will be back to discuss
decisions regarding federalism and the
federal courts, among other topics.