Constitutional Law Prof Blog

Daily Read: The Terrorism Exception to the Constitution?

Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?

ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).

Abrams argues for a something less than a wholesale exception:

The expression, “cabined,”  is  meant to signify not extending  all the way up the ladder of police  interrogation  methods, but only applying to a limited, non  -  extreme set of interrogation  methods, albeit methods that under current law might lead to a  determination of involuntariness.  A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as  established by the Supreme Court, but only up to a point, and not to the  point where the methods used are extreme.

For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling.  But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.  

RR

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
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Ninth Circuit Reverses Death Sentence Because of Unconstitutional Actions of Police Officer and Prosecution

The Ninth Circuit has granted a writ of habeas corpus to Debra Jean Milke, a woman on Arizona's death row for the 1990 death of her four year old child, in its opinion today in Milke v. Ryan.

The opinion is noteworthy not only for the grant of the writ in a death penalty case, but for its portrayal of police and prosecutorial practices and for the work it took to uncover the problems.  At the heart of the case is what the panel describes as essentially a "swearing contest" between the then 25 year old Debra Jean Milke (pictured right) and Phoenix Police Detective Armando Saldate, Jr.  The Detective testified that Milke was given MIranda warnings and confessed to the murder of her son.  Ms. Milke contended that she requested a lawyer, never confessed, and was innocent.  There was no signed Miranda waiver, no tape of the interrogation or confession, and no evidence other than the Detective's oral statements linking Ms. Milke to the crime.  Milke has maintained her innocence. At trial, Milke's attorneys requested the personnel files of Detective Saldate, but the state judge quashed the subpoena.  The prosecution never disclosed the evidence despite Brady v. Maryland, 373 U. S. 83 (1963) which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment.

Detective Saldate's file would have included not only numerous disciplinary actions against him for untruthfulness, but also the major cases he had worked on, including those that had appellate opinions reversing convictions based upon Saldate's violations of constitutional rights or dishonesty.  The appendix to the panel opinion lays out eight cases and one internal affairs investigation with specific findings regarding Saldate's "lying under oath" or Fourth or Fifth Amendment violations.

Also of note is the manner in which Saldate's transgressions were ultimately discovered:

Milke was able to discover the court documents detailing Saldate’s misconduct only after a team of approximately ten researchers in post-conviction proceedings spent nearly 7000 hours sifting through court records. Milke’s post-conviction attorney sent this team to the clerk of court’s offices to search for Saldate’s name in every criminal case file from 1982 to 1990. The team worked eight hours a day for three and a half months, turning up 100 cases involving Saldate. Another researcher then spent a month reading motions and transcripts from those cases to find examples of Saldate’s misconduct.

Although Judge Kozinski wrote the panel opinion, he also wrote a concurring opinion that expressed his more personal views:

No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.

Indeed, given Saldate’s long history of trampling the rights of suspects, one wonders how Saldate came to interrogate a suspect in a high-profile murder case by himself, without a tape recorder or a witness. And how could an interrogation be concluded, and a confession extracted, without a signed Miranda waiver? In a quarter century on the Ninth Circuit, I can’t remember another case where the confession and Miranda waiver were proven by nothing but the say-so of a single officer. Is this par for the Phoenix Police Department or was Saldate called in on his day off because his supervisors knew he could be counted on to bend the rules, even lie convincingly, if that’s what it took to nail down a conviction in a high-profile case?

It’s not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again.

From the rendition of the facts in both the panel and concurring opinions, Ms. Milke was the victim of a grave injustice.  But recall the Supreme Court's 5-4 opinion in Connick v. Thompson regarding the standard by which Brady violations should be evaluated:  the "state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training.""

 RR

*updated correction

Update on the Jacket in the United States Supreme Court Building

No, not John Paul Cohen's jacket about the draft, central to the 1971 case of Cohen v. California.

This jacket was worn a little over a year ago and prompted an arrest as we discussed then. 

Inside of US Supreme Court Building

 

Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone.  And although the charges were dropped against last year's  jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.

In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest."   Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building.  Recall that the Supreme Court has upheld the constitutionality of §6135.

While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.

RR
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Sotomayor Focuses on Prosecutor's "Racially Charged" Remark

Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark." 

Defendant Calhoun's intent to participate in a drug conspiracy was a central issue and the defendant took the stand.  As Sotomayor explains:

The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."

But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari.  But a strong statement it certainly was:

I hope never to see a case like this again.

RR

Stop and Frisk in the Bronx Enjoined by Federal Judge

In her 200 plus page opinion in Ligon v. City of New York, federal district judge Shira A. Scheindlin enjoined "stop and frisk" practices of the NYPD in the Bronx.  The stop and frisk practices by law enforcement have been increasingly controversial, including arrests of persons attempting to document the practice.

The problem in Lignon is a relatively simple one.  The standard for stop and frisk is reasonable suspicion, established by Terry v. Ohio (1968).   In the Bronx, there was a practice of Terry stops on the basis of reasonable suspicion of trespass outside buildings in the Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was formerly known in the Bronx as Operation Clean Halls.  Seemingly, the building, rather than any activity by people, gave rise to the "suspicion" and many people were subject to a Terry stop and frisk outside their own residences. 

The judge concluded

while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.

The judge made it clear that she was

not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily enrolled private buildings. My ruling today is directed squarely at a category of stops lacking reasonable suspicion.

Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.

But she did rule that the "NYPD is ordered immediately to cease performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass."   Judge Scheindlin also ordered consolidation of the hearing on some other remedies with the remedies hearing in Floyd v. City of New York, a stop and frisk challenge involving the entire city and not only the borough of the Bronx.

RR
[image from protest against stop and frisk via]

 

Second Circuit on Middle Finger

Although the Second Circuit panel opinion in Swartz v. Insogna does not refer to the First Amendment, the court implicitly relies on free expression principles to reverse the district judge and allow the plaintiffs' civil rights action against two law enforcement officers to proceed.

As Judge Jon Newman, writing the unanimous opinion, explained, the case began as the result of an "irate automobile passenger's act of 'giving the finger,' a gesture of insult known for centuries, to a policeman," prompted by the officer's use of a radar device. Although the plaintiffs' car was not speeding, the officer followed the car and initiated a "traffic stop."  Mr. Swartz was subsequently arrested for disorderly conduct (seemingly because of a statement describing himself in unflattering terms) and made three court appearances before the charges were ultimately dismissed on speedy trial grounds. 

At issue was whether the original stop was reasonable under the Fourth Amendment.  But underlying this determination depended on the meaning of the "middle finger" expression.  As Judge Newman wrote:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation.  And perhaps that interpretation is what prompted [Officer] Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.  This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Judge Newman cites LawProf Ira Robbin's wonderful 2008 article, Digitus Impudicus: The Middle Finger and the Law, published in the UC Davis Law Review and available on ssrn.  While the citation is to Robbins' discussion of the first recorded use of the gesture in the United States in 1886 (hint: think baseball), Judge Newman's opinion does seem influenced by Robbins' article, which extensively discusses the First Amendment aspects of the gesture and their relationship to criminal justice.  

RR
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Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

At issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

Complaint Against NYPD Alleging Right to Record Police Officers

The First Amendment right to record public police interactions with "smartphones" is the basis of a complaint filed yesterday in Charles v. City of New York.  The facts as alleged by plaintiff Hadiyah Charles are not dissimilar to those in Glik v. Cunniffe in which the First Circuit in 2011 found a First and Fourth Amendment violation and denied qualified immunity to the officers involved. (Compare the Seventh Circuit decision earlier this year).

The recitation of facts in Charles' complaint link her actions to the controversial "stop and frisk" policy of the NYPD that she sought to record.  Her allegations also include failure to train law enforcement officers to abide by the department's Patrol Guide as well as the First Amendment.  Ms. Charles was arrested, held for some time, her phone searched, released with a charge of disorderly conduct that was ultimately dismissed.  The complaint also contains allegations that police officers derided Ms. Charles for being a "street lawyer." Ms. Charles is not an attorney, but an HIV activist who has been recognized as a "Champion of Change" by the White House.

A report in Gothamist has more details. 

And for those who plan on replicating Ms. Charles' activities, NYCLU has an "app" for that: “Stop and Frisk Watch” includes the ability to record, provide information, and transmit it to the NYCLU. 

RR
[image: screenshot from NYCLU video via].

Daily Read: Bradley Manning's Attorney on C-Span

Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.

Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs.   The introduction of Coombs starts at 22:40.  Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing.  He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client.   Interestingly absent is any discussion of Manning's sexuality.

.

 

This is definitey worth a listen!

RR

District Court Upholds Federal Ban on Body Armor

Judge Thomas Johnston (WDWV) ruled in U.S. v. Mark that the federal ban on body armor possession by a convicted felon did not violate the Second Amendment or Due Process Clause, and that Congress did not exceed its authority in enacting the ban under the Commerce Clause.

Mark brought his challenge after he was charged and convicted of possession of body armor by a felon under 18 U.S.C. Secs. 931 and 921(a)(35).  Federal marshalls found the body armor, along with a cache of weapons, in a protective sweep of his home after his arrest. 

Judge Johnston ruled that the statutes did not violate the Second Amendment, because there was no indication that the Framers intended to protect body armor in the Second Amendment, and there was no case law on body armor providing any additional guidance.  He wrote that the statutes were not unconstitutionally vague under due process in defining "body armor," because Section 931 gives a definition "that is readily understandable to the ordinary person."  Op. at 19.  And he held that the jurisdictional element in Section 931 was indistinguishable from the jurisdictional element in 18 U.S.C. Sec. 922(g)(1), the statute penalizing possession of firearms by convicted felons and upheld by the Fourth Circuit--on the basis of its jurisdictional element.

Judge Johnston also ruled the marshalls' search, a protective sweep of the home after arrest, didn't violate the Fourth Amendment.

SDS

Daily Read: Reporting the MSK Trial at Guantanamo

In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al.  We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.  

Recall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters.  Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover the proceedings, meant signing the 13-page Media Ground Rules document:

Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word includes and sets no upper limit on what Protected Information might be.

The geographical restraints also limit reportial opportunities:

For the most part, News Media Representatives are confined to a few acres of Guantánamo, an area known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.

And then there is the trial itself, with the imposition of a 40 second sound delay.

This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.

RR

Daily Read: Cassandra Robertson on the Constitutional Right of Appeal

Professor Cassandra Robertson (pictured left) argues that we might be forgiven for thinking that there is a constitutional right to appeal, the practice is so ubiquitous and well-established in procedural rules.  But in her article, The Right to Appeal, forthcoming in the North Carolina Law Review, and available in draft on ssrn, Robertson reminds us that "appellate review is not constitutionally guaranteed; in some jurisdictions, the losing litigant may be forced to go without any review of the trial court’s verdict at all,"  illustrating her conclusion with a civil and a criminal case, both from West Virginia.

Robertson argues:

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position.

Even if the cases in which there is no access to direct appeal are "few in number," she argues that constitutional due process should protect the "unusual or rare case in which justice is denied."

Robertson's argument skillfully combines doctrinal, practical, and constitutional considerations.  The "expressive power of constitutional recognition," she writes, would be especially helpful for marginalized groups and outlier cases (for example, in juvenile cases).

For law profs who teach both constitutional law and procedure courses, this is definitely a must-read.

RR

Daily Read: Felon Disenfranchisement in Comparative Perspective

The current controversy in the UK over voting by persons who are presently incarcerated and the imminent US election again raise questions regarding the general US policy of disenfranchisement by persons convicted of felonies (even if not incarcerated), a topic we've previously addressed here and here.

Ruvi Ziegler's 2011 article, Legal Outlier, Again? US Felon Suffrage: Comparative and International Human Rights Perspectives, 29 Boston University International Law Journal 197, available on ssrn, situates the US practices and doctrine within international human rights and comparative constitutional law perspectives. 

Ziegler concludes that defending the "rights of convicts is hardly a popular task. However,defending their right to vote means, inter alia, defending the substantivedemocratic legitimacy of criminal law, which labels certain community members as convicts by proscribing their acts and which sanctions the imposition of punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed."

This is worth a read for any scholar or student pondering the relationship between the fundamental right to vote and punishment.

RR
[image via]

Daily Read: The Case of the Arabic Flash Cards

Being argued today in the Third Circuit is George v. TSA, a case seemingly about Arabic language flash cards as a rationale for airport detention by the TSA and Philadelphia police officers with obvious First Amendment implications.

The government has appealed from the denial of its motion to dismiss.   

 

Plaintiff Nick George is represented by the ACLU, and the organization not only has an informative case page with documents, but an effective video:

 

 

 

RR
[image of flash cards for sale at Amazon via]

University of California Settles UC Davis "Pepper Spray" Lawsuit

Arising from the now infamous video (below) of a UC-Davis officer seeming to casually pepper spray students as they sat on campus during a protest, the University of California has wisely settled a lawsuit alleging constitutional violations filed by the ACLU.  The UC Davis suit is one of a number of complaints challenging police practices during Occupy and Occupy-type actions last year.

 

 

As reported by the LA Times, the approved settlement includes:

$30,000 to each of the 21 students and alumni who were pepper-sprayed;

$250,000 attorneys' fees;

set aside of $100,000 to pay up to $20,000 to any other individuals who were pepper-sprayed;

written formal apology by UC Davis Chancellor Linda Katehi to each of the students and alumni who were pepper-sprayed or arrested.

The ACLU Northern California reports additional terms, including compensation to ACLU of $20,000 for work with the university to develop "new policies on student demonstrations, crowd management, and use of force to prevent anything like the November 18 pepper spray incident from ever happening again" and to "protect free speech and free expression on campus."  Additionally, the University promised to "assist students whose academic performance was adversely affected by the incident in applying for academic records adjustment."

Of course, the video was an important aspect of the case and settlement, even as controversies about constitutional rights to record police officers continues (our latest post is here). 

 

ConLawProf Cruz Reynoso

Additionally, the 190 page report of a Task Force appointed by the university was strongly condemnatory of the incident. The Task Force was chaired by ConLawProf Emeritus Cruz Reynoso (pictured above) and included  ConLawProf Alan Brownstein, who was nominated by the Academic Senate, and Law Student William McKenna, who nominated by the Law Students Association), , service on such a Task Force was a time-consuming endeavor and one that too often goes under-appreciated, so kudos to Brownstein and McKenna.

The University's actions in creating a Task Force also merits recognition, although one wonders whether such a Task Force would have been created absent the video and the attention it generated.

RR

Portions of Arizona's SB 1070 Now in Effect

In a one page Order, Judge Susan Bolton has dissolved the preliminary injunction she issued regarding Section 2(B) of S.B. 1070, the so-called "show me your papers" provision.

This was inevitable given her opinion earlier this month ruling that it would be premature to declare the provision unconstitutional, resting her conclusion - - - perhaps erroneously as we discussed - - - on the United States Supreme Court's opinion in Arizona v. United States last June.

RR

 

Judge Bolton Declines Pre-Enforcement Injunction Against Arizona's SB1070's "show your papers" Provision

Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, including the controversial "show me your papers" provision, section 2(b), has issued a new order and opinion in del Sol v. Whiting, refusing to enjoin section 2(b) in light of the Supreme Court's decision in Arizona v. United States last June. 

Recall that the Court held several sections of SB1070 preempted by federal law (thus essentially affirming Judge Bolton's initial decision, as affirmed by the Ninth Circuit), but found that Section 2(b) could be read to avoid the concerns of conflict.  While section 2(b) requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully, the Court provided several instances where 2(b) might be compatible with federal law and thus refused a pre-enforcement injunction.

Thus, on the preemption challenge, Judge Bolton's opinion is squarely within the dictates of Arizona v. United States.

However, the challengers also raised Equal Protection and Fourth Amendment challenges.  Bolton's opinion subsumes these into the preemption challenge based on the Supremacy Clause.  She quotes the Court in Arizona v. US as stating that its "opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” adding emphasis.  Yet it is unclear how the Court's opinion could possibly foreclose the "other constitutional challenges" even pre-enforcement given that the issue before the Court was solely preemption (a limitation Justice Roberts stressed at the start of the oral arguments). 

Bolton's opinion states that she "will not ignore the clear direction in the Arizona opinion that subsection 2(B) cannot be challenged further on its face before the law takes effect," but certainly the Court could not give direction, clear or otherwise, regarding issues that were not before it.

RR
[image via]

Ninth Circuit Grants Petition for Writ of Habeas Corpus of Death Row Inmate on Equal Protection and Due Process Grounds

In a divided opinion in Ayala v. Wong, the Ninth Circuit today granted a petition for a writ of habeas corpus based on equal protection and due process grounds.  

As the opinion describes, during the

selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his counsel were excluded. The trial judge then accepted the prosecution’s justifications for its strikes without disclosing them to the defense or permitting it to respond.

The failure to disclose the prosecution's rationales and allow defense counsel to demonstrate they were pretextual violates the process the Court mandated in Batson.  In Alaya's case, this was compounded by what the opinion labels  "the state’s later loss of a large portion of the record."  This portion included juror information and the court concluded that because "the state’s loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process."

In a dissenting opinion as lengthy as the majority, Judge Consuelo M. Callahan accuses the majority of not honoring the procedural obstacles to Alaya's claim, of making unwarranted suppositions, and of opening the floodgates.  She writes:

In essence, the majority holds that because the record does not affirmatively negate the existence of a possible racial bias, the existence of such a bias may be assumed. Under this approach all Batson challenges in federal habeas petitions must be granted because no one can disprove a negative.

Yet the converse would also be true, of course.  If Alaya's petition were not granted, it would allow judges to deny all litigants, including criminal defendants, the ability to refute the proffered race-neutral explanation, and to absolutely insulate a Batson claim from appellate review.

RR
[image: The Jury by John Morgan, 1861, via]

Saturday Evening Review: What's the Difference Between Equal Protection and Fair Cross-Section?

What's the difference between the Fourteenth Amendment's Equal Protection Clause and the Sixth Amendment's Fair Cross- Section protection?   

In a word: "intent." 

But in other words: "not much," at least according to most courts.

Nina W. Chernoff (pictured right) tackles this issue in Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, available on SSRN and forthcoming in Hastings Law Journal.  She demonstrates the consistent mistake courts make by not honoring the doctrinal distinction between equal protection (requiring intent) and fair cross-section (not requiring intent) when considering impartial jury claims.  The cost of this mistake is a high one paid by criminal defendants.

Consider this: a computer error excludes every African-American from the jury pool.  If there was no human intent, then there is no equal protection violation.  But the criminal defendant would nevertheless be denied the posibility of a jury drawn from a fair-cross section of the community.  Chernoff discusses similar cases and shows how courts conflation of equal protection and fair cross-section doctrine denies defendants relief in such situations.

This article should be of special interest to ConLawProfs who teach Criminal Procedure.  But it's worth reading for anyone interested in the limits of current equal protection doctrine.  The article is further discussed as my selection for the Jotwell Equality section; it's the best article I've read on constitutional equality in the last year. 

My selection last year for the Jotwell Equality section was Julie Nice's terrific article on Christian Legal Society (CLS) v. Martinez.

RR