Tuesday, May 28, 2013
Stephanos Bibas (Penn) has posted "Justice Kennedy's Sixth Amendment Pragmatism," an essay written in conjunction with an appearance at a McGeorge Law Review symposium on Justice Kennedy's jurisprudence, on SSRN. Here is the abstract:
This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.
The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.
This essay will appear in the McGeorge Law Review's symposium edition in Volume 44.
Tuesday, May 21, 2013
Thirty years ago in Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court held in a divided opinion that opening legislative sessions with prayer did not violate the Establishment Clause. But can the government open such legislative sessions with prayers exclusively with one faith? The Supreme Court will decide this question next term in Town of Greece v. Galloway. Last May, the Second Circuit held in the case that the town's practice to begin council sessions with prayer exclusively of the Christian faith violated the Establishment Clause. Lyle Denniston at SCOTUSblog described the key holding in the circuit court's decision to be:
The Circuit Court stressed that it was not ruling that a local government could never open its meetings with prayers or a religious invocation, nor was it adopting a specific test that would allow prayer in theory but make it impossible in reality.
What it did rule, the Circuit Court said, was that “a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause.”
It emphasized that, in the situation in Greece, New York, the overall impression of the practice was that it was dominated by Christian clergy and specific expressions of Christian beliefs, and that the town officials took no steps to try to dispel that impression.
Since the Court announced the decision to grant certiorari earlier today, the case has generated substantial buzz in the press, print and online, and promises to a significant and closely watched decision in the October 2013 term.
Wednesday, May 8, 2013
In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness. Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.
The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6). The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.
The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes. Defendant argued that for this reason, the records were not business records - records kept for a business purpose. The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business. The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business." Slip Op. at 5.
Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights. The majority rejected this argument also. Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.
The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason. The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.
This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.
Monday, May 6, 2013
Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN. Here is the abstract:
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.
This Essay is forthcoming in the Yale Law Journal.
Thursday, April 25, 2013
Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days. I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here:
- Adam Goodman (Harvard Law Student), "How the Media Have Misunderstood Dzhokhar Tsarnaev's Miranda Rights" (The Atlantic).
- Erwin Chemerinsky (UC-Irvine Law), "Dzhokhar Tsarnaev Has Rights" (Los Angeles Times).
- Akhil Reed Amar (Yale Law), "What If Dzhokhar Tsarnaev Decides Not to Talk?" (Slate).
- Eric Posner (Chicago Law), "The New Law We Need in Order to Deal With Dzhokhar Tsarnaev" (Slate).
- Jeffrey Rosen (George Washington Law), "Do You Have the Right to Remain Silent? The Obama administration's radical view of Miranda rights was in place well before Boston" (The New Republic).
- Roger Pilon (Cato Institute), "The Constitution Ensures A Fair Trial For Dzhokhar Tsarnaev, But Miranda Has a Public-Safety Exception" (Forbes).
- Real Clear Politics, "Dershowitz: Authorities Will "Regret" Not Reading Boston Bomber His Miranda Rights" (video).
- Bloomberg Editorial, "Dzhokhar Tsarnaev’s Rights, and the Public’s" (Bloomberg View).
- Doug Mataconis, "Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception" (Outside the Beltway).
- Tom McCarthy, "Lindsey Graham: don't read suspect Miranda rights if arrest is made" (The Guardian).
Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments. As an aside, I predict a healthy increase in law review submissions by professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.
Tuesday, April 23, 2013
Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network. The article appears to have been accepted for later publication by the Yale Law Journal. This is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.
In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.
The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Roberts' article highlights proposed professional and ethical norms relating to plea bargaining. The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings. The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges. This article is recommended reading.
Sunday, April 14, 2013
The Northern Illinois Law Review will host a symposium titled "Eavesdropping and Wiretapping in Illinois" on April 19, 2013. Here is the announcement, which includes links for times, location, registration and agenda, among other things.
Friday, April 12, 2013
Since Padilla v. Kentucky, decided in 2010, expressly established a connection between criminal pleas and collateral criminal consequences, there has been growing discussion as to whether or not Sixth Amendment protections announced in the landmark decision Gideon v. Wainwright, celebrating its 50th Anniversary this year, should be extended to any degree to persons facing deportation.
For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum.
From the perspective of criminal defense, the changing role of Gideon-appointed counsel raises questions about the breadth and depth of immigration assistance that should develop under the defense umbrella. From the perspective of immigration legal services, the potential importation of a Gideon-inspired right to counsel requires consideration of the appropriate scope and design for an immigration defender system. This Essay does not attempt to resolve these challenging questions, but rather provides a framework for further reflection that is grounded in lessons learned from the criminal system’s implementation of Gideon.
Thursday, April 4, 2013
Charleston Law Review is hosting a symposium on April 15, 2013, titled "In Search of A 'Grand Unified Theory': Thirty Years with the Endorsement Test." Scheduled speakers include The Honorable Sandra Day O'Connor, Associate Justice of the United States Supreme Court (ret.), who is slated to deliver the keynote address. For more, including a conference agenda and registration information, click here.
Tuesday, March 26, 2013
The Thurgood Marshall School of Law in Houston will host a two-day conference April 4-5 titled "The Constitutionalization of Immigration Law" (brochure here). I am honored to be included among the speakers at this conference. I will be on the panel for "Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus," which will be presented Thursday afternoon. I will be joining Naomi Jiyoung Bang, Senior Attorney at FosterQuan LLP in Houston (and also a Clinical and Adjunct Professor of Law at South Texas College of Law) and Franklin Bynum, from the Harris County Public Defender's Office, on this particular panel. Topics covered in the conference are:
- Pleanary Power - Supreme Court Deference to the Executive and Legislative Branches: Brief History of the Chinese Exclusion Cases;
- Fifth Circuit Practice Pointers - A View from the Bench;
- Washington Insiders View on Immigration Reform, DACA, Stateside Waivers, and Path to Citizenship;
- Fifth Amendment - Due Process Rights to Counsel in Immigration Proceedings: Matter of Lazada, Compean I & II, MAM and Circuit Court Decisions;
- Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus;
- Sixth Amendment Right to Effective Assistance of Counsel;
- Fourth Amendment Search and Seizure in Immigration Proceedings;
- Restitution and Compensation for Victims of Human Trafficking in the United States; and
- Round Table Clinicians Luncheon - Infusing Best Practices in Immigration Law School Clinics.
Thank you to Professor Fernando Colon-Navarro, Director of LLM and Immigration Development at Thurgood Marshall for this invitation. I am honored to participate in the comprehensive and timely conference.
Tuesday, February 5, 2013
The Congressional Research Service issued an important report documenting that if the NLRB Noel Canning decision is correct, then over three hundred recess appointments since 1981 would be declared invalid. A copy of the report is available here and it is worth a read for those interested. NY Times commentary on this important issue is available here.
Mitchell H. Rubinstein
Monday, November 19, 2012
A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein
Friday, October 26, 2012
In a major family law decision, the Supreme Court of Kentucky yesterday, relying on Troxel v. Granville, 530 U.S. 57 (2000), held that a fit parent is presumed to act in the best interest of the child and that a grandparent seeking child visitation against the parent's wishes must overcome the presumption by clear and convicing evidence that allowing the grandparent visitation is in the child's best interest. Walker v. Blair, No. 2012-SC-000004-DGE (Ky., Oct. 25, 2012).
In this case, paternal grandparent filed for visitation of her grandchild after her son, the grandchild's father, committed suicide under a pre-Troxel state law. Mother opposed the visitation. The Supreme Court held the pre-Troxel grandparent visition statute to be constitutional and interpreted the law to comply with Troxel's requirement that fit parents be presumed to act in the child's best interest. Because the trial and appellate courts in this case placed the parent and grandparent on equal footing and did not give the parent's decision to deny visition the special weight required by Troxel, the Supreme Court reversed and remanded for further proceedings.
See also: Louisville Courier-Journal story here.
Saturday, October 6, 2012
Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein
Wednesday, September 26, 2012
The Fifth Circuit Court of Appeals Tuesday issues a 3-0 decision upholding the Texas Open Meetings Act (TOMA) over a First Amendment free speech challenge. The case is Asgeirsson v. Texas Attorney General, No. 11-50441 (5th Cir. Sep. 25, 2012).
TOMA provides that most government meetings be open to the public, and provides that violations are punishable by a $500 fine and up to six months in county jail. Asgeirsson and other municipal officials challenged this penalty as violating free speech. The appellate panel rejected the argument, finding the prohibitions against private meetings to be a permissible, content-neutral time, place or manner restriction. The court also rejected claims that the TOMA public meeting requirement is unconstitutionally overbroad or vague.
Wednesday, September 19, 2012
The case is Moss v. Spartanburg Cnty. Sch. Dist. Seven, ___F.3d____ (4th Cir. Jun. 28, 2012). The court held that a South Carolina school district policy allowing students to earn academic credit for off-campus religious instruction does not violate the First Amendment’s Establishment Clause. After concluding that only one of the three plaintiffs had standing, the panel determined the school district’s policy survived the three-part test laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).. The circuit court held that there was no religious entanglement problem as the school district’s policy relied exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodated the genuine and independent choices of parents and students to pursue such instruction.
Law review commentary on this important issue would be most welcome.
Mitchell H. Rubinstein
Saturday, September 8, 2012
In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution. The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).
Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor. The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use. The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test. The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.
The Arizona Court considered three approaches to the issue: (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis. Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.
Friday, August 31, 2012
When a condemning authority exercises its eminent domain power, the Federal and (usually) State Constitutinos require that authority pay fair market value to the property owner for the property taken at the time of taking. Fair market value is determined by the property's highest and best use of the property, and the property's current use is the presumed highest and best use. Courts may not include in the fair market value, however the value to the condemning authority, also known as special value to owner, or value-to-the-taker. The compensation should reflect what the landowner lost, not what the condemnor gained. Boston Chamber of Commerce v. City of Boston, 217 U.S. 189 (1910). This value-to-the-taker rule serves to keep an owner from receiving a windfall based on the property's special or unique value to the condemnor.
The Avinger family in Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, ___ S.W.3d ___ (No. 10-0950, August 31, 2012) (6-3 decision) owned vacant land in a gas producing area uniquely situation for a gas production plant. In 1973, the Avinger family leased a 23-acre property to Tonkawa Gas Processing Co., a private concern, for construction of a gas plant. There were several lease renewals on agreed terms until 2007, when the parties could n on longer agree on renewal terms. Tonkawa then merged with Enbridge Pipelines, an entity with condemning authority. Enbridge petitioned to condemn Avinger's interest in the property (all improvements belongs to the gas company); the commissioners awarded Avinger $45,580 at the commissioner's hearing. Avinger appealed.
At trial Enbridge submitted an appraisal with a value for the Avinger tract being $47,940 on a highest and best use of rural residential construction. Avinger's expert valued Avinger's interest to be $20,955,000 using a highest and best use as industrial property - gas processing plant.
Avinger's expert included in his valuation that savings to Enbridge by being able to condemn the property. Because the lease provided that Enbridge could remove the plant from the land and restore the land to its original condition, Avinger's only interest in the property was the vacant land. However, the expert included Enbridge's cost savings by not having to tear down and relocate the plant; a cost Enbridge saved by condemning the property. The Court held that because the appraisal includes value-to-the-taker as part of the value of the comdenmee's value, the appraisal should have been excluded.
The Supreme Court also affirmed the appeallate court's decision to affirm the trial court's exclusion of Enbridge's appraiser. That appraiser established the highest and best use despite the presumtion that the law presumes the property's use for the last almost 40 years would be the highest and best use. The Court noted the property was uniquely situated for operating a gas plant due to pipelines and roads accessing and crossing the property.
With both appraisals found wanting, the Court remanded the case back for a new trial, possibly with different appraisers, or at least new appraisal methodologies. As a general rule, when two appraisals come in with a difference of 43,600%, the red flags should be flying high for any court.
The dissent reportED that the majority errED by referenceing Avinger's expert report because that report was never admitted into evidence. The dissent claims the testimony from the appraiser was adequate to affirm the lower court's decisions. The dissent makes a good point regarding the state of the evidence, perhaps, but their view did not carry the day with the nine justices that mattered.
Monday, August 20, 2012
Last Thursday, the California Supreme Court unanimously overturned a 110-year to life sentence against a juvenile offender on Eighth Amendment grounds. Citing Graham v. Florida, 130 S.Ct. 2011 (2010) (holding the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole), the court held that such a sentence against a juvenile for a nonhomicide offense violates the juvenile's right against cruel and unusual punishment.
The case is People v. Caballero, No. S190647 (Cal. Aug. 16, 2012), and may be found here.
Hat tip: Sentencing Law and Policy
Wednesday, August 15, 2012
Robin Charlow (Hofstra) has posted "Batson 'Blame' and its Implications for Equal Protection" on SSRN. Here is the abstract:
Twenty-five years ago Batson v. Kentucky held that equal protection is violated when attorneys exercise racially discriminatory peremptory jury challenges and supply pretextual explanations for their strikes. Findings of Batson violations are tantamount to rulings that attorneys have discriminated and lied. Not only do Batson findings potentially subject violators to sanction under standards of professional ethics, but they also amount to imputations of personal fault or “blame” for socially undesirable conduct. This article explores, from both practical and theoretical perspectives, the problem of the attribution of personal fault to attorneys that is inherent in a finding of a Batson violation. On the practical side, although the blaming effect seems inevitable, it may prove counterproductive to Batson‘s goal of eliminating racial discrimination in jury selection. In terms of constitutional theory, Batson enforces the Constitution’s equal protection guarantee, and blame appears to be an inexorable consequence of either of the two dominant theories of equal protection analysis: “anticlassification” theory, used by the Supreme Court’s majority, and “antisubordination” theory, urged by Supreme Court dissenters and many academics. Assuming blame is unavoidable under either current theory, and yet that it interferes with rooting out discrimination, this Essay explores a third possible alternative view of equal protection — “antibalkanization” — which might resolve the problem of discriminatory peremptory strikes without necessarily implicating personal blame.
The Iowa Law Review has accepted the paper for publication.