Thursday, May 24, 2012

Supreme Court: Retrial Does Not Violate Double Jeopardy

The Supreme Court ruled 6-3 today that retrying a defendant on charges on which the jury agreed that defendant was not guilty did not violate double jeopardy in an acquittal-first jurisdiction, where the jury deadlocked on lesser-included charges, and where the judge declared a mistrial.

The ruling, together with earlier Supreme Court cases, means that when a jury agrees that a defendant is not guilty of a greater offense, but when it deadlocks on a lesser-included offense, in an acquittal-first jurisdiction, the state can retry the defendant for the greater offense; but when a jury agrees that a defendant is not guilty of a greater offense, but when it convicts on a lesser offense, the state may not retry the defendant.

The case, Blueford v. Arkansas, arose out of the state's attempt to bring a second case against Alex Blueford for the death of his girlfriend's one-year-old child.  The state first charged Blueford with capital murder and the lesser offenses of first-degree murder, manslaughter, and negligent homicide.  The trial judge instructed the jury to consider the offenses as follows:

If you have a reasonable doubt of the defendant's guilt on the charge of capital murder, you will consider the charge of murder in the first degree. . . .  If you have a reasonable doubt of the defendant's guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter. . . .  If you have a reasonable doubt of the defendant's guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.

The court gave the jury a set of verdict forms, one for each charged offense and one to acquit.  Acquittal was all or nothing: the jury could not acquit on some charges but not others.

The jury reported, in open court, that it was unanimous against guilt on the capital and first-degree murder charges, but that it was deadlocked on manslaughter and had not voted on negligent homicide.  The judge sent the jury back for more deliberation, but the jury was still unable to reach a verdict.  The judge declared a mistrial.

The state sought to retry Blueford.  Blueford moved to dismiss the capital and first-degree murder charges as violating the Double Jeopardy Clause.  

Chief Justice Roberts wrote for the Court that the retrial did not violate double jeopardy.  He said that the jury didn't acquit Blueford of the capital and first-degree murder charges--"[t]he foreperson's report was not a final resolution of anything"--and may well have reconsidered its initial unanimous agreement when the judge sent the case back for further deliberation.  "The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses."  The Court also rejected Blueford's argument that the judge's mistrial declaration was premature, without sufficient effort to get the jury to come to a verdict.

Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.  Justice Sotomayor viewed the jury's report on its agreement on the capital and first-degree murder charges as sufficiently final to trigger double jeopardy.  She also argued for a rule under the Double Jeopardy Clause that a judge in an acquittal-first jurisdiction must grant a partial verdict on the defendant's request: "If a State wants the benefits of requiring a jury to acquit before compromising, it should not be permitted to deprive a defendant of the corresponding benefits of having been acquitted."


May 24, 2012 in Cases and Case Materials, Criminal Procedure, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

OWS Complaint for Destruction of Books Filed in Federal Court

The November 15, 2011 police "eviction" of members of Occupy Wall Street from Zucotti Park prompted quick legal action resulting in a TRO, and today, months later, a complaint in federal court raising constitutional and state law challenges to the confiscation of the materials in the OWS library.


In their complaint in Occupy Wall Street v. City of New York, the plaintiffs allege that city officials seized 3,600 books, only 1,003 of which were returned, and 201 of those very damaged.  The constitutional claims include a violation of the Fourth Amendment, a violation of procedural due process, and a violation of the First Amendment.  The plaintiffs also allege these violations occurred because of a lack of supervision and training, a claim that has become more and more difficult to sustain.  The plaintiffs also make parallel claims under the pertinent New York state constitution, as well as common law claims of conversion and replevin.

[image: OWS Zucotti Library via]


May 24, 2012 in Current Affairs, First Amendment, Fourteenth Amendment, Fourth Amendment, Procedural Due Process, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 23, 2012

CFP: AALS ConLaw Section

Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
UnderwoodKeyboardThe Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.

The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.

The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
Deadline Date for Submission: August 1, 2012
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT


May 23, 2012 in Affirmative Action, Conferences, Race, Recent Cases, Reconstruction Era Amendments, Scholarship | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 22, 2012

Court Says Detention Authority Violates First Amendment

Judge Katherine B. Forrest (SDNY) ruled last week that the detention authority in the National Defense Authorization Act likely violates free speech.  Judge Forrest granted the plaintiffs' motion for a preliminary injunction in Hedges v. Obama and thus enjoined enforcement of Section 1021.

The case is notable in that the government could easily have side-stepped the whole thing: It simply could have taken the position that the plaintiffs, based only on their affidavits and testimony, did not fall within Section 1021.  This would have taken away the plaintiffs' standing (as Judge Forrest noted) and undermined the suit.  (The government need not have said anything about whether the plaintiffs would have been covered by Section 1021 if additional evidence arose.)  But it refused, suggesting that it keeps open the possibility that Section 1021 could apply to a remarkably wide swath of individuals, notwithstanding the President's efforts to limit it upon signing the NDAA.  More on this below.

The ruling is the first against the controversial detention authority in the NDAA.  The section at issue, Section 1021, defines a detainable person broadly (and vaguely, as it turns out) and apparently authorizes indefinite detention.  The Section, titled Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force, provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

But President Obama, upon signing the NDAA, issued a signing statement that said that Section 1021 did nothing to existing government detention authority under the AUMF and that the Section was therefore unnecessary.  In short, according to the President, Section 1021 changed nothing.  As to indefinite detention, the President wrote: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."

Moreover, while the White House issued a policy directive that included procedures for detention under Section 1022 (relating to military custody of foreign al-Qaeda terrorists), it issued no such directive on Section 1021--further suggesting that, in its view, nothing changed.

A group of writers, reporters, and activists brought suit, claiming Section 1021 could be interpreted to include them based on their reporting and writing on terrorist groups, including al-Qaeda, and terrorist activities; that they feared detention under Section 1021; and that Section 1021 chilled their further speech.  They said that Section 1021 was overbroad and vague in violation of the First Amendment.

Judge Forrest agreed.  In a lenghty and careful ruling, she wrote that the plaintiffs had standing, and that Section 1021 likely violated the First Amendment based on its overbreadth and vagueness.  

The ruling was based as much on the govenrment's stubborn position that it couldn't rule out detaining the plaintiffs based on their affidavits and testimony as it was based on the law.  The government refused to say that the plaintiffs wouldn't be detained under Section 1021 based on their affidavits and testimony, even though it also said that the plaintiffs' fears of detention were unreasonable.  And in a remarkable set of exchanges, reproduced in the opinion (at pages 31 to 34), government lawyers were unable to define phrases like "substantially support" or "directly support," or to give examples, or to assure the court that these plaintiffs, based on their affidavits and testimony alone, would not be subject to detention under Section 1021.

Outside the government's inability to define terms, give examples, or say whether the plaintiffs would be detainable, the court was also concerned about the lack of mens rea in Section 1021--an authority that it viewed as criminal-like, because of the potential for physical detention.  The problem is that a person could violate Section 1021 without intending to, even without knowing.  This, it said in addition to the government's inability to define key terms, rendered the Section unconstitutionally vague, in violation of due process.  

The court said the government's position was strongest on the definition of "associated forces"--a phrase that the government said is rooted in the laws of war.  But even so, "that does not resolve plaintiffs' concerns since they each testified to activities with or involving individuals or organizations that are 'associated forces' as defined by the Government."  Op. at 55-56.  The plaintiffs had the better of the case on "substantially," "direct," and "support."

If the government maintains its positions, keeping its options fully wide open under Section 1021, it's hard to see how an appeals could could rule any differently in this case.


May 22, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Music, Opinion Analysis, Standing, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, May 21, 2012

Catholics Sue Government Over HHS Abortion, Contraception Regs

Forty-three Catholic institutions filed 12 separate suits today against HHS Secretary Kathleen Sebelius to halt HHS regulations that they say would require them to "provide, or facilitate the provision of, abortion-inducing drugs, sterilization, and contraceptive services to its employees in violation of the centuries' old teachings of the Catholic Church."

The move is the latest in the ongoing debate between the church and the administration over new HHS guidelines under the Patient Protection and Affordable Care Act that require insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."  The plaintiffs reject the White House's February 2012 compromise--to exempt religious organizations that have religious objections from directly paying for those services--as insufficient.

The University of Notre Dame filed one such suit in the Northern District of Indiana.  The University's complaint is here; the President's statement is here

Notre Dame's complaint alleges violations of the First Amendment religion and speech clauses, the Religious Freedom Restoration Act, and the Administrative Procedures Act.  It seeks declaratory and injunctive relief and attorneys' fees. 

As to its religion clause claims, Notre Dame alleges that the government has no compelling interest in the requirement, that the requirement substantially burdens its religious exercise; that the requirement excessively entangles government in religion (because it requires a government determination of whether the purpose of the organization is to inculcate people into its tenets in order to qualify for an exemption); and that the requirement discriminates among religions (because it treats those religions that do not oppose "abortifacients" differently than those that do).

As to its speech claim, Notre Dame argues that the requirement and counseling are viewpoint-based compelled speech in violation of the First Amendment.

Notre Dame claims that under HHS regulations it has to provide "contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" itself, and not through a third-party insurer.  That's because Notre Dame does not contract with a separate insurance company for its employees' health insurance; instead, it offers self-insured plans.  It also claims that it doesn't qualify for an exemption, because it's not a church or an exclusively religious activity--the exemptions in Section 6033(a)(3)(A)(i) and (iii), respectively, of the IRC.


May 21, 2012 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, May 20, 2012

Sunday Book Review: Mantel's New Novel

If you missed the first installment, Hilary Mantel's bestselling and Man Booker Prize winner, Wolf Hall, the second in the trilogy can nevertheless be started post-haste.  It's the just-released Bringing Up The Bodies. Stellar reviews appear in the NYT, and LA Times.  Novelist and intellectual Margaret Atwood, in The Guardian, noted that although this volume centers on the fall of Anne Boleyn, like its predecessor, it's really about "the deep, dark, labyrinthine, but strangely objective mind of Thomas Cromwell."



As Atwood wrote:

The historical Cromwell is an opaque figure, which is most likely why Mantel is interested in him: the less is truly known, the more room for a novelist. Cromwell rose from obscure and violent origins through a life abroad – sometime soldier, sometime merchant – to become England's top go-to man, the prime maker-and-breaker of fortunes and spines, secretly hated and despised, especially by aristocrats. He played Beria to Henry VIII's tyrannical Stalin: he did the dirty work and attended the beheadings, while Henry went hunting.

But what Atwood doesn't mention is that Thomas Cromwell (pictured above in the famous Hans Hoblein portrait which is discussed in Mantel's novels) is a lawyer.  A consumate lawyer.  In many ways, Cromwell is witness, and perhaps midwife, to the rise of English law, although law will not be sufficient to save him (presumably in volume III of the trilogy).

While some ConLawProfs find novels a guilty pleasure (or even not pleasurable!), the legal machinations and historical resonances of Bringing Up The Bodies make this novel a great summer read that could inform teaching and scholarship.

And for those who prefer to listen to books, the audiobook is available, with a sample (and a great description of Cromwell starting after about a minute, and including the description of the painting) here:


BringUpThe Bodies


[Portrait of Thomas Cromwell by Hans Holbein, circa 1533, via]

May 20, 2012 in Books, Comparative Constitutionalism, History | Permalink | Comments (0) | TrackBack (0)