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Lee Erwin (writer)

From Wikipedia, the free encyclopedia

Lee Erwin
Born(1906-09-12)September 12, 1906
DiedJune 4, 1972(1972-06-04) (aged 65)
OccupationTelevision screenwriter
Years active1953-1971

Lee Erwin (September 12, 1906, in Ada, Oklahoma - June 4, 1972 in Los Angeles, California) was a television writer from the 1950s to the 1970s. Erwin wrote for Mr. & Mrs. North, The Millionaire, Have Gun, Will Travel, The New Adventures of Charlie Chan and many other 1950s and 1960s TV shows. He is probably best known for his Star Trek episode "Whom Gods Destroy",[1] and his two-part Tarzan episode "The Deadly Silence". His episode of The Lieutenant, "To Set It Right", was controversial behind the scenes because the subject matter, racial prejudice, was taboo for entertainment television at the time. Despite claims that it never aired, Gene Roddenberry said it did, and the segment was reviewed by Daily Variety.[2] The episode was included in the 2012 DVD set The Lieutenant: The Complete Series, Part 2, from Warner Media, and a copy exists at The Paley Center for Media. Erwin's last work for television was the script for the All in the Family episode "Writing the President" (1971).

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  • Supreme Court: The Term in Review (2010-2011), Part 1 of 2
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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.

Filmography

Films

Year Film Credit Notes
1959 The Flying Fontaines Written By
1970 Tarzan's Deadly Silence Written By Co-Wrote screenplay with "John Considine", "Tim Considine", and "Jack H. Robinson"

Television

Year TV Series Credit Notes
1954 Mr. and Mrs. North Writer 10 Episodes
Captain Midnight Writer
1955 Tales of the Texas Rangers Writer
Sheena, Queen of the Jungle Writer 1 Episode
1955-56 Jungle Jim Writer 3 Episodes
1956 The Millionaire Writer 3 Episodes
Crossroads Writer 1 Episode
The Adventures of Wild Bill Hickok Writer 1 Episode
Tales of the 77th Bengal Lancers Writer 1 Episode
The Adventures of Rin Tin Tin Writer 3 Episodes
1956-57 Circus Boy Writer 12 Episodes
1957 Have Gun – Will Travel Writer 1 Episode
1957-58 Casey Jones Writer 2 Episodes
White Hunter Writer 5 Episodes
The New Adventures of Charlie Chan Writer 5 Episodes
1958-59 Sea Hunt Writer 10 Episodes
Whirlybirds Writer 2 Episodes
1959 Richard Diamond, Private Detective Writer 2 Episodes
The Man and The Challenge Writer 1 Episode
1959-62 Laramine Writer 12 Episodes
1960 M Squad Writer 1 Episode
1961 The New Bob Cummings Show Writer 1 Episode
1962 Frontier Circus Writer 1 Episode
The Dick Van Dyke Show Writer 1 Episode
1962-63 Ripcord Writer 6 Episodes
1963 The Alfred Hitcock Hour Writer 1 Episode
1963-64 The Lieutenant Writer 3 Episodes
1964-65 Flipper Writer 5 Episodes
1965 Please Don’t Eat The Daisies Writer 2 Episodes
Peyton Place Writer 7 Episodes
The F.B.I. Writer 1 Episode
1966 Bewitched Writer 3 Episodes
1966-68 Tarzan Writer 2 Episodes
1967 Felony Squad Writer 1 Episode
1968 The Big Valley Writer 2 Episodes
Maya Writer 1 Episode
1968-69 The Flying Nun Writer 3 Episodes
1969 Star Trek Writer 1 Episode
1971 All in the Family Writer 1 Episode
Make Room for Granddaddy Writer 1 Episode
Monty Nash Writer 1 Episode
1973 Love, American Style Writer 1 Episode, Segment: "Love and the Playwright"
1988 Alfred Hitchcock Presents Writer 1 Episode

References

  1. ^ Michael Okuda and Denise Okuda, The Star Trek Encyclopedia, Pocket Books, 1999, ISBN 0-671-53609-5.
  2. ^ Kaufman, David (February 24, 1964). "Telepix Followup, THE LIEUTENANT ("To Set It Right")". Daily Variety: 8.

External links


This page was last edited on 5 December 2023, at 06:27
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