April 08, 2013
Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage
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.
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.
April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack
February 22, 2013
Padilla Rule Does Not Apply Retroactively
The Supreme Court ruled this week in Chaidez v. United States that the rule announced in Padilla v. Kentucky (2010)--that a criminal defense attorney has to advise his or her client of the deportation risks of a guilty plea--does not apply retroactively to cases already final on direct review.
Retroactivity is governed by the rule in Teague v. Lane (1989). Under that case, a person whose conviction is already final may not benefit from a "new rule" announced in a subsequent case. That is: If the Court crafts a "new rule," it doesn't apply retroactively. Only the application of a settled rule applies retroactively. Thus the question here was whether the Padilla rule--that an attorney provides ineffective assistance of counsel under Strickland v. Washington by failing to advise the client that he or she could be deported if he or she pleads guilty--is "new."
The Court in Chaidez said that the usual Strickland/IAC case does not produce a new rule, and therefore would apply retroactively. But it also said that Padilla was a different sort of IAC case. It was different because the Court in Padilla had to first determine whether the Strickland/IAC analysis applied at all to a case like that--a case involving collateral, not direct, consequences of an attorney error. That was an open question before Padilla--and one that many states had resolved against the criminal defendant. Therefore when the Court announced its rule in Padilla, it broke new ground: it answered an open question, and it answered it in a way that cut against a good deal of state and lower federal court jurisprudence. This, it said in Chaidez, meant that Padilla set out a new rule, and that it would not apply retroactively.
Justices Sotomayor, joined by Justice Ginsburg, dissented, arguing that Padilla did not set out a new rule, but instead simply applied the Strickland rule to a new set of facts.
December 20, 2012
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]
October 30, 2012
Divided Ninth Circuit Panel Rules IAC at Sentencing for Death Row Inmate
A split three-judge panel of the Ninth Circuit ruled in Stankewitz v. Wong that a death row inmate's attorney failed to provide effective assistance of counsel at the penalty phase of his trial, in violation of his Sixth Amendment right to counsel, because his attorney failed to present certain mitigating evidence. The court ordered the state of California to either vacate and set aside the inmate's death sentence, unless the state initiates proceedings to retry his sentence within 90 days, or to resentence him to life without parole.
The case comes just three years after the Supreme Court reversed the Ninth Circuit in Wong v. Belmontes (2009), another IAC-at-sentencing case. That case held that Belmontes could not show that his attorney's performance at the penalty phase failed the prejudice prong of Strickland v. Washington because additional mitigating evidence would have been merely cumulative and because additional mitigating evidence would have opened the door to aggravating evidence that Belmontes was responsible for a second murder. The case says that a court in assessing an ineffective assistance of counsel claim at the penalty phase needs to examine both the pros and cons of introducing additional mitigating evidence, and that sometimes this evidence can be a two-edged sword.
The split on the panel, just three years after Belmontes, suggests that there's still some disagreement on the Ninth Circuit on how to assess an IAC claim at sentencing. Or, as Judge O'Scannlain wrote in dissent, "The Supreme Court took notice and repudiated [the majority's] reasoning in Wong v. Belmontes. Yet our circuit is already showing signs of backsliding." The case may give the Supreme Court yet another chance to clarify the standard.
Stankewitz is the longest-serving inmate on California's death row. He was convicted of killing a woman in a 1978 carjacking and sentenced to death. He argued on habeas that his attorney was ineffective at the penalty phase for failing to present mitigating evidence. The district court agreed, and the Ninth Circuit affirmed.
The majority (Judges Fisher and Bybee) wrote that Stankewitz showed prejudice for failure to introduce mitigating evidence at sentencing, because the available evidence was indeed mitigating, and any harm that might have come from it (i.e., the second edge to its sword) was merely cumulative of other aggravating evidence that the prosecution already introduced. According to the majority, the case thus looked more like Wiggins v. Smith and Williams v. Taylor (2000)--both finding IAC at sentencing based on counsel's failure to investigate and prepare--than Belmontes.
Judge O'Scannlain wrote in dissent that the majority may have distinguished Belmontes, but that the distinctions didn't show prejudice. Judge O'Scannlain argued that the court should have remanded to the district court to apply the Belmontes standard.
June 16, 2012
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.
March 22, 2012
Right to Counsel Applies to Consideration of Plea Offers That Lapse or Are Rejected
In a pair of cases this week, Missouri v. Frye and Lafler v. Cooper, a sharply divided Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. The rulings are a victory for defendants in criminal systems where upwards of 97% of all federal convictions and 94% of all state convictions are the result of guilty pleas.
Still, under the rulings, criminal defendants will have no easy time in showing that their attorneys are ineffective. That's because the Court requires them to show a reasonable probability that they would have accepted a lapsed plea, that the prosecutor wouldn't have revoked it, and that the court would have accepted it. They also have to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
And even if a defendant can jump through these hoops, there's still the question of the remedy. Under Cooper, the trial court could simply reinstate the final conviction and sentence, leaving the defendant no better than he was before the Supreme Court's rulings.
Frye arose out of a defense attorney's failure to tell his client about the prosecution's plea offer. The defendant went on to enter an open plea and received a higher sentence than the offer. The Court ruled that the attorney's failure to share the plea offer constituted deficient performance, satisfying the first prong of the Strickland test. But the Court remanded the case to the state court to determine the state law questions whether there was a reasonable probability that the prosecutor wouldn't have revoked the offer and that the court would have accepted it. If the defendant can't show a reasonable probability, there's no prejudice under the second prong of the Strickland test.
Cooper arose out of a defendant's rejection of a plea offer based on his attorney's erroneous advice that the prosecution would be unable to convict him of the charged crime. The defendant was convicted after trial and sentenced to a term 3.5 times longer than the term in the plea offer. The parties agreed that counsel's performance was deficient under Strickland's first prong, and the Court ruled that the defendant's higher sentence at trial constituted prejudice. As a remedy, the Court ruled that the state must reoffer the plea. The trial court can then vacate the convictions and resentence pursuant to the plea, vacate only some of the convictions and resentence accordingly, or leave the convictions and sentences undisturbed.
The Court in both cases emphasized that criminal justice is largely a process of plea, not trial, and that the plea process, including consideration of plea offers, is a critical stage triggering the right to effective assistance of counsel. The dissent in both cases emphasized that there's no right to a plea offer, and that the defendants in both cases were convicted after a free and fair open plea (in Frye) and a fair trial (in Cooper).
Justice Kennedy wrote for himself and Justices Ginsburg, Breyer, Sotomayor, and Kagan in both cases. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented in both.
December 15, 2011
Bill of Rights Day 2011
Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.
In his Presidential Proclamation last week, Obama stated:
On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.
Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.
Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.
Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."
The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights. Instead, they concerned Congress itself:
Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The latter became the 27th Amendment, ratified more than two centuries later in 1992.
- Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
- Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
- Amendment 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Amendment 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
- Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
- Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
[image from National Archives via]
December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | TrackBack
August 29, 2011
Alabama Immigration Law HB56 Enjoined by Federal Judge
In a very brief Order issued late today, Judge Sharon Lovelace Blackburn, Chief Judge of the Norther District of Alabama, enjoined the enforcement of HB56:
Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first.
The Order comes in the consolidated cases of Hispanic Interest Coalition of Alabama v. Bentley; Parsley v. Bentley, and United States v. Bentley. We've previously discussed each of these three lawsuits have been brought against the controversial HB 56.
The Hispanic Interest Coalition case began with a 118 page complaint filed early in July raises eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause; First Amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and two Sixth Amendment claims.
Parlsey v. Bentley is the clergy complaint centering on the First Amendment Free Exercise Clause.
United States v. Bentley marks the DOJ's entry into the controversy, raising Supremacy Clause arguments as might be expected.
The law was scheduled to go into effect September 1.
[image: Map of Alabama, circa 1832, via]
August 29, 2011 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Interpretation, Preemption, Race, Sixth Amendment, Speech, Supremacy Clause | Permalink | Comments (2) | TrackBack
August 27, 2011
Hurricane Irene and the Constitutional Duty to Protect the Incarcerated
As New York City braces for Hurricane Irene, with the transit system being halted since noon today, and 300,000 people ordered to evacuate low-lying areas in the five boroughs, according to NYC Mayor Michael Bloomberg there are absolutely no plans to address the situation of inmates at the city's main detention center on Rikers Island.
Rikers Island (pictured right) is indeed an island; it is located in the East River between Queens and the Bronx, due east of Manhattan. It practically touches the runways of LaGuardia airport, from which all flights have been suspended today and Sunday.
As Solitary Watch reported yesterday:
more than three-quarters of Rikers Island’s 400 acres are built on landfill–which is generally thought to be more vulnerable to natural disasters. Its ten jails have a capacity of close to 17,000 inmates, and normally house at least 12,000, including juveniles and large numbers of prisoners with mental illness–not to mention pre-trial detainees who have yet to be convicted of any crime. There are also hundreds of corrections officers at work on the island.
Today, the Center for Constitutional Rights (CCR) urged the City to act immediately to protect the prisoners.
In Lessons from Hurricane Katrina: Prison Emergency Preparedness as a Constitutional Imperative, published in University of Michigan Journal of Law Reform and available on ssrn, Professor Ira Robbins considers the fate of the more than 8,000 residents of the Orleans Parish Prison (OPP) when Hurricane Katrina struck. Robbins notes that despite a "mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP. When the inmates were finally evacuated from OPP, they suffered further harm, waiting for days on a highway overpass before being placed in other correctional institutions, where prisoners withstood exposure to the late-summer Louisiana heat and beatings at the hands of guards and other inmates"
Robbins argues that the situation was not merely tragic, but was unconstitutional - - - violating the prisoners Sixth and Eighth Amendment rights, as well as international human rights standards. He advocates that change should occur through a mix of litigation and legislation, including the establishment of emergency courts "to enable the administration of justice to resume promptly following serious natural or man-made disasters."
In his 2008 article, Robbins urged government officials to "internalize the lessons of Hurricane Katrina, which demonstrated the consequences of inadequate preparation and planning for prisoners' safety during and after a major emergency."
New York City does not seem to be heeding Professor Robbins' advice.
[aerial photo of Rikers Island via]
April 16, 2011
Footnote of the Day: Plurality Footnote on Habeas for State Prisoners
Article I, section 9, of the United States Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." However, Congress has often restricted habeas corpus, especially for state prisoners. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, (AEDPA), placing a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners. In 28 U.S.C. § 2254(d)(1) Congress prohibited a federal court from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.''
In Williams v. Taylor, 529 U.S. 362 (2000), the Court considered an ineffective assistance of counsel claim under Strickland v. Washington in the penalty phase of a capital case tried in Virginia. The trial court granted the state post-conviction relief, the state Supreme Court reversed, and in subsequent federal habeas proceeding, the district judge granted habeas relief and the Fourth Circuit reversed.
With such a history, it is perhaps no surprise that the United States Supreme Court opinions were fractured. Justice Stevens delivered the Opinion for the Court, except for Part II of his Opinion.
Justice O'Connor delivered the Opinion of the Court in Part II, except for "the footnote," with which Justice Scalia disagreed. The cause of the disagreement between Justices Scalia and O'Connor seems a bit anticlimactic:
The legislative history of § 2254(d)(1) also supports this interpretation. See, e.g., 142 Cong. Rec. 7799 (1996) (remarks of Sen. Specter) (``[U]nder the bill deference will be owed to State courts' decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court's decision applying the law to the facts will be upheld''); 141 Cong. Rec. 14666 (1995) (remarks of Sen. Hatch) (``[W]e allow a Federal court to overturn a State court decision only if it is contrary to clearly established Federal law or if it involves an `unreasonable application' of clearly established Federal law to the facts'').
The "interpretation" being supported is "Indeed, we used the almost identical phrase ``application of law'' to describe a state court's application of law to fact in the certiorari question we posed to the parties in Wright [v. West, 505 U.S. 277(1992)]."*
While this may not seem worthy of a disagreement, this is not the first time Justices Scalia and O'Connor could not reach an accord over a footnote. In the next segment of "footnote of the day," April 17, a more substantive disagreement between the Justices.
April 13, 2011
Footnote of the Day: Bill of Rights Provisions Incorporated Against the States
In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause?
The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.
As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12:
With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).
With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).
With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).
With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).
With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).
In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:
the Sixth Amendment right to a unanimous jury verdict;
the Third Amendment’s protection against quartering of soldiers;
the Fifth Amendment’s grand jury indictment requirement;
the Seventh Amendment right to a jury trial in civil cases;
the Eighth Amendment’s prohibition on excessive fines
In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.
April 13, 2011 in Cases and Case Materials, Due Process (Substantive), Establishment Clause, Federalism, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Games, History, Interpretation, Second Amendment, Sixth Amendment | Permalink | Comments (0) | TrackBack
March 01, 2011
Right to Counsel in India
Article 21, Protection of life and personal liberty, provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Court described Article 21 as the "heart and soul" of fundamental rights and "the most important feature of our Constitution." But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.
The Court even drew on its own brand of originalism:
The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal). Many of them were lawyers by professor, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
The Court extended the right to appeals, even though the case involved only the right to counsel at trial. In the U.S., it took a second case, Douglas v. California, to extend the right to counsel to appeals. Douglas and Gideon came down the same day, March 18, 1963, but Douglas was announced from the bench first. As Anthony Lewis wrote in Gideon's Trumpet:
A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals. To any informed listener it was obvious that the same rule must apply at trials . . . . Those who had before them the printed opinions in the California case--page boys bring them around to a few newspaper reporters and the Solicitor General as they read--knew from the text that they were about to hear the Gideon case decided, because there was a reference to "Gideon v. Wainwright, decided today."
But unlike Gideon and Ali, which both sounded in process, Douglas sounded in equal protection. Citing and quoting Griffin v. Illinois, the Court in Douglas wrote:
In either case, the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."
March 1, 2011 in Comparative Constitutionalism, Criminal Procedure, Equal Protection, International, News, Opinion Analysis, Procedural Due Process, Sixth Amendment | Permalink | Comments (0) | TrackBack
November 25, 2010
Access and the Right to an Interpreter
The Georgia Supreme Court ruled earlier this week in Ling v. State that a criminal defendant who spoke Mandarin Chinese, and not English, "may be effectively incompetent to proceed in a criminal matter and rendered effectively absent at trial if no interpreter is provided." Op. at 2.
The court connected English language skills and meaningful access to the legal system through Drope v. Missouri and mental incompetence. The court explained:
A criminal defendant's "right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings" is guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment to the U.S. Constitution. The due process clause also precludes trial and conviction of an accused while he or she is mentally incompetent. . . . In Drope . . . for example, the U.S. Supreme Court discussed the history of the prohibition against trying mentally incompetent individuals, noting that some have viewed it "as a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself. . . . One who is unable to communicate effectively in English and does not receive an interpreter's assistance is no more competent to proceed than an individual who is incompetent due to mental incapacity.
Op. at 5-6. In short: A non-English-speaking criminal defendant is denied access every bit as much as a mentally incompetent defendant, unless the State provides an interpreter. (The court quoted its 2005 case, Ramos v. Terry: "The use of qualified interpreters is necessary to preserve meaningful access to the legal system for persons who speak and understand only languages other than English." Op. at 3.)
The court remanded "to apply the standard in Drope and to state its findings on the record."
November 01, 2010
Court to Hear Right to Counsel Case
The Supreme Court today granted cert. in Turner v. Price, a case from the South Carolina Supreme Court rejecting petitioner's claim that he had a constitutional right to counsel in a civil contempt proceeding.
Petitioner Michael Turner appeared in South Carolina family court in 2008 on a rule to show cause why he should not be held in contempt for failure to pay child support. (He owed nearly $6,000 and hadn't made a payment in 18 months.) He was not represented by counsel. The court found him in willful contempt of the child support order and sentenced him to twelve months in a detention center, "which sentence he could purge himself of and avoid by full payment of his child support arrearage."
The South Carolina Supreme Court rejected Turner's argument for court-appointed counsel under the Sixth and Fourteenth Amendments. The decision turned on Turner's ability to avoid the sentence altogether:
Here, the family court judge found Appellant in willful contempt of the support order and sentenced him to twelve months in a detention facility, stating, "He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release." This conditional sentence is a classic civil contempt sanction. Therefore, Appellant is not constitutionally entitled to appointment of counsel.
. . .
Because Appellant may avoid the sentence altogether by complying with the court's previous support order, he holds the keys to his cell door and is not subject to a permanent or unconditional loss of liberty.
The court acknowledged that it was adopting the minority position on the issue.
Remarkably, especially considering the federal constitutional claims, the court did not cite a single U.S. Supreme Court case. (It cited precious few cases at all, and no federal cases outside the footnotes.)
The U.S. Supreme Court directed the parties to brief a second issue in the case: whether the Court has jurisdiction to review the decision at all. (Turner served out his contempt sentence, and it's not clear that the state courts ruled on all his claims now before the Supreme Court.)
November 1, 2010 in Courts and Judging, Fourteenth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Reconstruction Era Amendments, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack
September 26, 2010
Miranda and Television: Anthony Franze, Justice Sotomayor, and the Roberts Court
Miranda warnings are a staple of "TV cop shows," and have become so ubiquitous that persons arrested in Canada, Australia, the U.K., and presumably other nations, reportedly protest when they do not receive their "Miranda warnings." The warnings are, of course, derived from the United States Supreme Court case of Miranda v. Arizona, decided in 1966. But are the protections about to be relegated to television, as one attorney has suggested, or perhaps to the bygone "television era"?
In an article just published in Harvard Law and Policy Review Online, Anthony Franze makes a compelling argument that Sotomayor's comment is incorrect, and indeed quotes Sotomayor's dissenting opinion in support of his position:
To borrow from Justice Sotomayor’s Berghuis dissent, the new rules “turn Miranda upside down,” reflect “a substantial retreat from the protections against compelled self-incrimination,” “ignore the important interests Miranda safeguards,” and “bode poorly for the fundamental principles that Miranda protects.”
Franze considers Berghuis, as well as Florida v. Powell and Maryland v. Shatzer, and concludes that these cases reaffirm that the Court will not overrule Miranda in a single, headline-grabbing decision. Rather, the case has been condemned to a death by a thousand cuts." As for the future, Franze sees Sotomayor as the Justice "who may turn out to be the most forceful, if unexpected, advocate for Miranda in Stevens’s absence," because although she joined the majorities in Powell and Shatzer," giving "early signals were that her years as a prosecutor and judge may have left her no friend of Miranda," it is " those practical experiences that may, as in her vigorous dissent in Berghuis, render her loath to place further limits on Miranda."
As for the newest Justice, Franze discusses Kagan's record, but notes that her views as Solicitor General do not necessarily predict her views as Supreme Court Justice.
There has certainly been much discussion about last term's Miranda cases, including an excellent article by Professor Kit Kinports, available on ssrn here, and commentary by our colleagues over at CrimProfBlog.
Franze's article adds to the literature, certainly, but it also serves as a great overview for ConLawProfs who may have not fully engaged with constitutional criminal procedure developments last term.