Supreme Court: The Term in Review (2015–2016) Part 2 of 2
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Supreme Court: The Term in Review (2015–2016) Part 2 of 2


CHANCE: WE’RE HAPPY TO HAVE
PROFESSOR JAY THOMAS FROM GEORGETOWN LAW
WITH US AGAIN THIS YEAR. PROFESSOR THOMAS, THANKS FOR
BEING WITH US. THIS YEAR, THE COURT
DECIDED A CASE CONCERNING THE CIRCUMSTANCES
UNDER WHICH ENHANCED DAMAGES
COULD BE AWARDED IN WILLFUL INFRINGEMENT CASES. SO WHAT WAS THE LAW
OF WILLFUL INFRINGEMENT PRIOR TO HALO VERSUS
PULSE ELECTRONICS? THOMAS: SO THE PATENT ACT
JUST SAYS THAT DAMAGES CAN BE TRIPLED
OR TREBLED IN CASES OF
PATENT INFRINGEMENT. IT JUST SAYS “MAY.” THE CASE LAW FOR A LONG TIME
HAS HELD THAT APPROPRIATE CIRCUMSTANCES
FOR ENHANCING DAMAGES IS INDEED WILLFUL INFRINGEMENT. THE BIG CASE WAS
A 2007 DECISION FROM THE FEDERAL CIRCUIT
CALLED SEAGATE, AND IT SET UP
A TWO-PART STANDARD. THERE WAS AN OBJECTIVE SIDE AND THERE WAS
A SUBJECTIVE SIDE. THE OBJECTIVE TEST SAID THAT OBJECTIVELY, THE PATENT
INFRINGER SHOULD HAVE KNOWN THAT IT WAS ENGAGING IN CONDUCT
THAT WOULD INFRINGE A VALID PATENT AND SUBJECTIVELY,
ITSELF HAD TO KNOW THAT THE ACTUAL ACTOR ITSELF
HAD TO BE AWARE OF THIS POSSIBILITY. THE PATENT HOLDER HAD TO PROVE
BOTH OF THOSE AS FACTORS BY THE CLEAR AND CONVINCING
EVIDENCE STANDARD. CHANCE: SO WHAT’S THE IMPACT OF
HALO VERSUS PULSE ELECTRONICS? THOMAS: WELL, THE PRINCIPAL
IMPACT IS TO GET RID OF THE OBJECTIVE SIDE. SO EFFECTIVELY,
SUPREME COURT SAID HAVING THAT OBJECTIVE STANDARD
WAS INCONSISTENT
WITH THE STATUTE. THE TERM “MAY” GRANTED A LOT OF
DISCRETION TO THE TRIAL COURTS, THE SUPREME COURT SAID,
AND SORT OF SHOEHORNING INTO THE SUBJECTIVE STANDARD
WAS INAPPROPRIATE. THE COURT WAS ALSO
CONCERNED THAT THE FOCUS SHOULD BE WHAT
THE ACCUSED INFRINGER DID AT THE TIME OF INFRINGEMENT. IT WOULD BE TOO EASY
LATER IN TRIAL TO COME UP WITH SOME EXCUSE THAT THE PATENT WAS INVALID
OR NOT INFRINGED WHEN THAT WASN’T PART OF THE
DECISION MAKING AT THE TIME. ALSO, THE STANDARD
OF PROOF WAS LOWERED FOR BOTH–OR FOR THE NEW
SUBJECTIVE-ONLY TEST. CHANCE: HOW DID THE COURT
LOWER THE STANDARD OF PROOF? WHAT IS IT NOW? THOMAS: IT’S NOW JUST
A MERE PREPONDERANCE. IT USED TO BE THE CLEAR AND
CONVINCING HIGHER STANDARD. CHANCE: OK.
AND WHAT IS THE STANDARD FOR AWARDING ENHANCED DAMAGES? IS THAT THE CLEAR AND CONVINCING
OR IS IT– THOMAS: IT’S JUST
A PREPONDERANCE AT THIS POINT AND IT’S JUST
THE SUBJECTIVE TEST. SO THE ADJUDICATED INFRINGER HAD TO ENGAGE IN CULPABLE,
EGREGIOUS BEHAVIOR. IT HAD TO KNOW ABOUT
A VALID PATENT, IT HAD TO BELIEVE
IT WAS INFRINGING, IT HAD TO CONTINUE
ITS ACTIONS ANYWAY. THE COURT STRESSES THAT THESE
AREN’T FOR MINE-RUN CASES. IT’S GOT TO BE
SOMETHING SPECIAL. CHANCE: WERE YOU
SURPRISED BY THIS ONE? THOMAS: NOT AT ALL.
THERE WERE TWO 2014 CASES FROM THE COURT, AND THOSE DECISIONS DEALT
WITH A SISTER STATUTE ABOUT WITH THE AWARD
OF ATTORNEY FEES. AND THESE ARE OCTANE FITNESS
AND HIGHMARK, BY THE WAY. AND THE FEDERAL CIRCUIT HAD SET
UP A SIMILAR KIND OF STANDARD FOR THE AWARD OF ATTORNEY FEES, AND THE SUPREME COURT
KNOCKED THAT BACK. SO THIS WAS SORT OF
A PRETTY EASY FOLLOW-UP. IN FACT, THE SUPREME COURT
SEEMED A LITTLE IMPATIENT WITH THE FEDERAL CIRCUIT,
QUITE FRANKLY. CHANCE: OK. DO YOU THINK THAT
ENHANCED DAMAGES ARE GOING TO INCREASE
AS A RESULT OF THIS? THOMAS: ABSOLUTELY, BECAUSE
THE SUBSTANTIVE STANDARD FOR AWARDING THEM
IS MORE LENIENT, AND ALSO THE STANDARD
OF REVIEW ON APPEAL IS NOW ABUSE OF DISCRETION. SO I THINK IT’S EASIER
TO GET AN AWARD, AND I THINK THAT ONCE
THE AWARD IS GIVEN OUT, IT WILL BE SUSTAINED ON APPEAL
MORE EASILY. CHANCE: OK.
SO WHAT DO YOU THINK? IS THIS A GOOD DEVELOPMENT
FOR THE PATENT SYSTEM? THOMAS: WELL, IN A SENSE,
THE SUPREME COURT’S BEEN SEEN AS LEADING A CHARGE TO MAKE–
TO SOFTEN THE PATENT SYSTEM, OK, TO PULL BACK THE STRICT
PROPRIETARY RIGHTS THAT PATENTS HAVE
BEEN GRANTING. SO THIS KIND OF
BUCKS THAT TREND, BECAUSE IT MAKES PATENTS
A LITTLE MORE POTENT. THE DAMAGES CAN BE HIGHER. ON THE OTHER HAND,
THIS MAY PUT MORE STRESS ON THE ABILITY OR
THE WILLINGNESS OF TECHNOLOGY COMPANIES TO HAVE
TO OBTAIN ADVICE OF COUNSEL. CONGRESS RECENTLY
AMENDED THE PATENT ACT AND CASES HAVE BEEN DRIFTING
AWAY FROM THIS REQUIREMENT THAT BEFORE YOU ENGAGE
IN ANY ACTIVITY, YOU RESEARCH ON A PATENT AND GET
AN OPINION OF PATENT COUNSEL ABOUT THE VALIDITY
OF THE PATENT AND WHETHER YOU
INFRINGE IT OR NOT. SO IF THERE’S NO
OBJECTIVE TEST ANYMORE AND YOU’RE JUST LOOKING
AT THE SUBJECTIVE DECISION MAKING PROCESS
AT THE TIME OF INFRINGEMENT, I THINK IT PUTS
A LITTLE BIT MORE STRESS ON GETTING THESE
OPINION LETTERS AGAIN. CHANCE: OK.
WELL, NOW WHAT ABOUT THE OTHER PATENT CASE
THAT THE COURT TOOK UP? THAT WAS
CUOZZO SPEED VERSUS LEE. THOMAS: EXACTLY.
SO THAT ONE HAS A LITTLE BIT LESS TO DO WITH THE COURTS. IT’S MORE ABOUT
THE PATENT OFFICE. SO AT THE USPTO,
THERE IS A NEW PROCEEDING CALLED INTER PARTES REVIEW, AND IT’S AN ADMINISTRATIVE
PATENT REVOCATION PROCEEDING. THEY’VE PROVEN
FABULOUSLY POPULAR AND THEY’VE BEEN EFFECTIVE
IN STRIKING DOWN PATENTS. THERE WAS A CHALLENGE ABOUT WHAT THE STANDARD OF CLAIM
INTERPRETATION IS. PATENTS HAVE MANY CLAIMS
THAT SET OUT THE PROPRIETARY RIGHTS
POSSESSED BY THE PATENT OWNER, AND THE PATENT OFFICE
HAS BEEN INTERPRETING THEM UNDER THE BROADEST REASONABLE
CONSTRUCTION STANDARD. THAT DIFFERS WHAT
GOES ON IN THE COURT, WHICH IS THE ORDINARY
MEETING STANDARD UNDER THE FAMOUS MARKMAN CASE. SO THE PATENT OFFICE’S CLAIM
CONSTRUCTION STANCE WAS UPHELD, SO IT’S STILL BROUGHT
AS REASONABLE INTERPRETATION, AND ALSO THE SUPREME COURT HELD THAT THERE WAS NO APPEAL
FROM THE PATENT OFFICE’S INITIAL DECISION TO GRANT
AN INTER PARTES REVIEW IN KEEPING WITH THE STATUTE. CHANCE: SO WHAT ARE
THE IMPLICATIONS OF THIS CUOZZO DECISION? THOMAS: WELL, I THINK
THEY’RE GOING TO– INTER PARTES REVIEW ARE
GOING TO REMAIN VERY POPULAR FOR ACCUSED INFRINGERS
OR PATENT CHALLENGERS. AND I THINK CONGRESS
INTENDED THESE PROCEEDINGS TO SORT OF BE A SUBSTITUTE
FOR PATENT LITIGATION. BUT WHAT WE’RE SEEING IS
THEY PROCEED IN PARALLEL WITH PATENT LITIGATION,
SO IF YOU’RE ACCUSED OF INFRINGEMENT IN COURT,
YOU’LL OFTEN BRING THIS PROCEEDING AT
THE PATENT OFFICE. SO COURTS ARE STILL
GOING TO HAVE TO DEAL WITH THESE PARALLEL PROCEEDINGS
ON THE SAME PATENTS, GOING ON CONTEMPORANEOUSLY. CHANCE: OK.
WELL, THANKS FOR BEING WITH US AGAIN THIS YEAR, PROFESSOR. AND NOW, BETH WIGGINS
WITH A LOOK AT CRIMINAL LAW. WIGGINS: HELLO.
BEFORE WE START ABOUT THE CRIMINAL LAW CASES,
I WOULD LIKE TO CORRECT A SMALL MISTAKE WE MADE IN
THE FIRST PART OF THE PROGRAM. WE MISSPOKE A CASE NAME.
IT’S C-R-S-T VAN EXPEDITED, NOT C-S-R-T VAN EXPEDITED. OK. SO NOW
TO THE CRIMINAL CASES. CANONS OF STATUTORY CONSTRUCTION
ARE INTELLECTUAL DEVICES FOR HELPING JUDGES DECIPHER
LEGAL AMBIGUITIES. BUT THAT DOESN’T MEAN THE CANONS
THEMSELVES ARE SELF-EVIDENT. IN LOCKHART
VERSUS UNITED STATES, THE MAJORITY IN THE DISSENTERS DISAGREED ABOUT WHICH CANON
THEY SHOULD USE. AVONDALE LOCKHART WAS CONVICTED
OF POSSESSING CHILD PORNOGRAPHY IN VIOLATION OF 18 U.S.C.
SECTION 2252(A)(4). DEFENDANTS CONVICTED
UNDER THAT STATUTE ARE SUBJECT TO A 10-YEAR
MANDATORY MINIMUM SENTENCE AND AN INCREASED
MAXIMUM SENTENCE IF THEY HAVE, QUOTE,
A PRIOR CONVICTION UNDER THE LAWS OF ANY STATE RELATING TO AGGRAVATED
SEXUAL ABUSE, SEXUAL ABUSE, OR
ABUSIVE SEXUAL CONDUCT INVOLVING A MINOR OR WARD. LAURIE, WHAT WAS THE ARGUMENT
ABOUT HOW THIS STATUTE WAS APPLIED IN LOCKHART? LEVENSON: WELL, LOCKHART HAD A
PRIOR NEW YORK STATE CONVICTION FOR AGGRAVATED SEXUAL ABUSE
ON HIS ADULT GIRLFRIEND. HE ARGUED THAT THIS CONVICTION SHOULD NOT LEAD TO
THE ENHANCED SENTENCE BECAUSE IT DID NOT INVOLVE
A MINOR OR WARD. BUT THE COURT HELD
AGAINST LOCKHART, AND IT BASED ITS RULING ON THE
RULE OF THE LAST ANTECEDENT, WHICH SAYS THAT IF THERE’S
A MODIFYING PHRASE LIKE “INVOLVING A MINOR OR WARD,” IT MODIFIES ONLY
THE NOUN OR PHRASE THAT IT IMMEDIATELY FOLLOWS. SO IN THIS CASE,
THAT WOULD HAVE BEEN THE ABUSIVE SEXUAL CONDUCT. LOCKHART’S CASE WAS
ONE THAT INVOLVED AGGRAVATED SEXUAL ABUSE. IT WAS THE FIRST TERM
IN THE LIST OF OFFENSES AND THE FACT THAT
IT INVOLVED AN ADULT, NOT A MINOR OR WARD,
DIDN’T MEAN THAT IT DIDN’T QUALIFY
FOR THE ENHANCEMENT STATUTE APPLICABLE IN
THE PORNOGRAPHY CASE. JUSTICE SOTOMAYOR
WROTE FOR THE MAJORITY AND SHE SAID
THAT’S WHAT THE COURT TYPICALLY USES AND DOES
IN INTERPRETING STATUTES THAT INCLUDE A LIST OF TERMS
FOLLOWED BY A PHRASE THAT HAS A LIMITING CLAUSE. LEE: YEAH, JUSTICE KAGAN
WROTE THE DISSENT, AND SHE WAS JOINED BY
JUSTICE GINSBURG. SHE AGREED WITH LOCKHART THAT
THE PROPER CANON TO APPLY WAS THE SERIES QUALIFIER CANON. SHE WROTE THAT IT WAS CLEAR
FROM THE LANGUAGE OF THE STATUTE AND FROM CONGRESS’
LEGISLATIVE INTENT THAT THE LAWMAKERS MEANT
FOR THE QUALIFYING PHRASE “INVOLVING A MINOR OR WARD” TO APPLY TO ALL THE TERMS
IN THE LIST OF OFFENSES. AND EACH OF THE JUSTICES
HAD HER OWN COLORFUL EXAMPLE OF WHY SHE HAD APPLIED
THE CORRECT CANON. JUSTICE SOTOMAYOR SAID THAT IF THE GENERAL MANAGER
OF THE YANKEES HAD TOLD ONE OF
HIS SCOUTS TO FIND A DEFENSIVE CATCHER,
A QUICK-FOOTED SHORTSTOP, OR A PITCHER FROM
THE PREVIOUS YEAR’S WORLD SERIES WINNERS, IT WOULD BE NATURAL
FOR THE SCOUT TO LOOK FOR A PITCHER
FROM LAST YEAR’S CHAMPIONS, IN THIS CASE
THE KANSAS CITY ROYALS, BUT TO LOOK MORE BROADLY
FOR CATCHERS AND SHORTSTOPS. LEVENSON: YES, EVAN,
BUT JUSTICE KAGAN COUNTERED THAT IF A FRIEND TOLD YOU
THAT SHE HOPED TO MEET AN ACTOR, A DIRECTOR,
OR PRODUCER INVOLVED WITH THE NEW
“STAR WARS” MOVIE, YOU WOULD KNOW IMMEDIATELY THAT
SHE WANTED TO MEET AN ACTOR FROM THE “STAR WARS” CAST
AND NOT FROM A DIFFERENT MOVIE. LEE: SO, IN A SENSE, THE YANKEES
PREVAILED OVER THE EMPIRE. LAURIE: YOU GOT IT.
EVAN: YEAH. WIGGINS: OK. OUR NEXT DECISION,
MATHIS VERSUS UNITED STATES, WAS ALSO ABOUT WHETHER
A PREVIOUS STATE CONVICTION QUALIFIED AS A PREDICATE FOR
A HARSHER FEDERAL SENTENCE. THE ARMED CAREER CRIMINAL ACT,
OR ACCA, IMPOSES A 15-YEAR
MANDATORY MINIMUM SENTENCE ON A DEFENDANT CONVICTED
OF BEING A FELON IN POSSESSION OF A FIREARM IF THE DEFENDANT
ALSO HAS 3 PRIOR STATE OR FEDERAL CONVICTIONS
FOR A VIOLENT FELONY, INCLUDING BURGLARY, ARSON,
OR EXTORTION. TO DETERMINE WHETHER
A PRIOR CONVICTION IS FOR ONE OF THOSE 3 CRIMES, COURTS ASK WHETHER THE ELEMENTS
OF THE OFFENSE FORMING THE BASIS
FOR THE CONVICTION SUFFICIENTLY MATCH THE ELEMENTS OF THE GENERIC
VERSION OF THE CRIME. THIS IS CALLED
THE CATEGORICAL APPROACH. ELEMENTS ARE THE PARTS OF
THE CRIME’S LEGAL DEFINITION THAT MUST BE PROVED
BEYOND A REASONABLE DOUBT TO OBTAIN A CONVICTION. FACTS OR MEANS ARE SEEN AS
MERE WORLD–REAL-WORLD THINGS, THE DETAILS OF SPECIFIC CRIME–
CRIMES AND EXTRANEOUS TO THE CRIME’S
LEGAL DEFINITION. WHEN A STATUTE DEFINES
MULTIPLE CRIMES BY LISTING MULTIPLE
ALTERNATIVE ELEMENTS, COURTS USE THE SO-CALLED
MODIFIED CATEGORICAL APPROACH TO DISTINGUISH BETWEEN
ELEMENTS AND MEANS. THE MODIFIED
CATEGORICAL APPROACH ALLOWS COURTS TO LOOK AT
A LIMITED CLASS OF DOCUMENTS FROM THE RECORD OF
THE PRIOR CONVICTION TO DETERMINE FROM THE FACTS
WHAT CRIME WITH WHAT ELEMENT A DEFENDANT WAS CONVICTED OF BEFORE COMPARING
THAT CRIME’S ELEMENTS TO THE GENERIC OFFENSE. SO, EVAN, HOW DID THIS
DISTINCTION PLAY OUT IN MATHIS? LEE: WHEN MATHIS WAS
CONVICTED AS A FELON IN POSSESSION OF A FIREARM, PROSECUTORS SOUGHT
UNDER THE ACCA TO IMPOSE A 15-YEAR
MANDATORY MINIMUM BASED ON A NUMBER
OF THE CONVICTIONS THAT HE HAD SUFFERED UNDER
THE IOWA BURGLARY STATUTE. BUT THE PROBLEM HERE WAS THAT
THE IOWA STATUTE INCLUDES LAND, WATER,
AND AIR VEHICLES AS PLACES THAT CAN BE BURGLED, WHEREAS THE GENERIC
DEFINITION OF BURGLARY ONLY INCLUDES UNLAWFUL ENTRY
INTO FIXED STRUCTURES LIKE HOUSES. SO THE IOWA STATUTE WAS,
QUOTE UNQUOTE, OVERBROAD FOR PURPOSES OF THE ACCA. THE DISTRICT COURT
IN THIS CASE HAD USED THE MODIFIED
CATEGORICAL APPROACH. LOOKED AT SOME DOCUMENTS
IN THE RECORD AND DETERMINED THAT MATHIS
HAD BURGLED HOUSES AND NOT CARS OR BOATS. THE EIGHTH CIRCUIT AFFIRMED
THAT CONVICTION, SAYING THAT THE USE OF THE MODIFIED
CATEGORICAL APPROACH WAS PROPER, WHETHER
THE OVERBROAD TERMS IN THE IOWA STATUTE
CONSTITUTED ELEMENTS OR MEANS. LEVENSON: BUT JUSTICE KAGAN,
IN WRITING FOR THE MAJORITY, SAID THAT THAT
DISTINCTION BETWEEN ELEMENTS AND MEANS
MAKES ALL THE DIFFERENCE, AND THAT THE MODIFIED
CATEGORICAL APPROACH CAN ONLY BE USED IF THE
OVERBROAD TERMS ARE ELEMENTS. HERE, THE IOWA STATUTE,
THE TERMS WERE JUST MEANS, SO THEY COULD NOT BE USED,
AND THE COURT WAS BARRED FROM LOOKING DOWN
AT THE TRIAL RECORD TO SEE IF IN FACT
THESE PRIOR CONVICTIONS QUALIFIED AS PREDICATE CRIMES
UNDER THE ACCA. SHE SAID THAT THIS IS
THE FAIREST APPROACH AND THE ONE THAT COMPLIES
WITH APPRENDI. LEE: JUSTICES BREYER
AND GINSBURG DISSENTED. THEY SAID THAT
THE DISTINCTION BETWEEN ELEMENTS AND MEANS
OR ELEMENTS AND FACTS SHOULDN’T MAKE A DIFFERENCE
IN SENTENCING AND THAT IT WOULD BE
A DIFFICULT DISTINCTION FOR THE LOWER COURTS
TO CARRY OUT WITH RESPECT TO STATE
BURGLARY STATUTES LIKE IOWA’S. THEY FELT THAT IN THIS CASE, THE COURT DOCUMENTS,
THE RECORD MADE IT CLEAR THAT MATHIS WAS CONVICTED
FOR UNLAWFULLY ENTERING AN OCCUPIED STRUCTURE. AND THAT MET THE GENERIC
DEFINITION OF BURGLARY. WIGGINS: OK. IN LUNA TORRES VERSUS LYNCH, THE COURT HAD TO DECIDE
WHETHER IT MATTERED THAT A STATE STATUTE
THAT OTHERWISE SEEMED TO MEET THE DEFINITION OF
AN AGGRAVATED FELONY UNDER THE IMMIGRATION
AND NATIONALITY ACT, OR I.N.A., LACKED AN INTERSTATE
COMMERCE ELEMENT. THE I.N.A. DEFINES AGGRAVATED
FELONY BY LISTING VARIOUS CRIMES, MOST OF
WHICH ARE IDENTIFIED AS OFFENSES DESCRIBED IN SPECIFIC PROVISIONS
OF THE FEDERAL CRIMINAL CODE. FOLLOWING THAT LIST,
THE STATUTE PROVIDES THAT THE REFERENCED OFFENSES ARE
AGGRAVATED FELONIES WHETHER THEY ARE– AND HERE’S
THE IMPORTANT LANGUAGE– “IN VIOLATION OF FEDERAL, STATE,
OR FOREIGN LAW.” LUNA TORRES
WAS CONVICTED OF ARSON UNDER A NEW YORK STATE LAW THAT
WAS DEFINED IN THE SAME WAY AS A FEDERAL ARSON OFFENSE, EXCEPT THAT IT LACKED
THE INTERSTATE COMMERCE ELEMENT. THE SUPREME COURT HELD THAT
THAT DID NOT MATTER. JUSTICE KAGAN AGAIN WROTE FOR
THE MAJORITY OPINION, SAYING THAT THE I.N.A. USES A PHRASE,
“DESCRIBED IN,” TO DEFINE WHICH
STATE CRIMINAL LAWS ARE COVERED. AND THE SENTENCE THAT SAYS
THE LISTED OFFENSES ARE AGGRAVATED FELONIES,
WHETHER THEY ARE “IN VIOLATION OF FEDERAL, STATE,
OR FOREIGN LAW” MAKES IT CLEAR
THAT CONGRESS MEANT BOTH FEDERAL AND STATE STATUTES TO CONSTITUTE
AGGRAVATED FELONIES. THERE WERE TWO PETITIONERS
IN OUR NEXT CASE: STEPHEN VOISINE
AND WILLIAM ARMSTRONG. EACH OF THEM WAS CONVICTED UNDER
MAINE STATE LAW OF PHYSICALLY ABUSING THEIR
GIRLFRIENDS. AND BOTH WERE BANNED BY
FEDERAL LAW FROM POSSESSING FIREARMS AS
A RESULT OF THOSE CONVICTIONS. 18 U.S.C. SECTION 922(g)(9)
PROHIBITS ANY PERSON CONVICTED OF A MISDEMEANOR CRIME
OF DOMESTIC VIOLENCE FROM POSSESSING A FIREARM. THAT INCLUDES ANY MISDEMEANOR INVOLVING THE USE
OF PHYSICAL FORCE. VOISINE AND ARMSTRONG WERE
CONVICTED OF MISDEMEANORS, MAKING IT UNLAWFUL TO INFLICT NOT JUST KNOWING AND INTENTIONAL
BODILY INJURY BUT TO DO SO RECKLESSLY,
AS WELL. WHEN THEY WERE CHARGED WITH
UNRELATED FEDERAL CRIMES YEARS LATER, PROSECUTORS
FOUND OUT ABOUT THEIR PRIOR DOMESTIC VIOLENCE
CONVICTIONS AND THAT EACH OWNED FIREARMS. THAT LED THE PROSECUTORS TO ADD
CHARGES UNDER 922(g)(9). SO, LAURIE, WHAT DID
THE PETITIONERS ARGUE HERE? LEVENSON: WELL, THEY WERE
ARGUING THAT ONLY KNOWINGLY AND INTENTIONALLY
CAUSING INJURY QUALIFIED UNDER THE STATUTE. BUT THE SUPREME COURT DISAGREED. THEY SAID THAT WHEN THE STATUTE
USES THE WORD “USE” IN 922(g)(9),
IT DOES NOT EXCLUDE AN ACT OF FORCE THAT INVOLVES
A CONSCIOUS DISREGARD OF A SUBSTANTIAL RISK OF HARM AND THAT ASSAULTS THAT ARE
INVOLVING RECKLESSNESS ARE CATEGORICALLY DIFFERENT FROM THOSE THAT ARE JUST
MERE NEGLIGENCE OR AN ACCIDENT. FOR EXAMPLE, IF YOU HAVE SOMEONE WHO THROWS A PLATE
AGAINST A WALL, IT’S FORESEEABLE THAT WHEN
IT SHATTERS, IT MIGHT INJURE A SPOUSE. THAT’S DIFFERENT FROM JUST
DROPPING A PLATE BY ACCIDENT. LEE: YEAH, I THINK IT’S WORTH
POINTING OUT THAT THIS IS THE LATEST IN
A SERIES OF DECISIONS BROADLY CONSTRUING WHICH
DOMESTIC VIOLENCE CONVICTIONS QUALIFY FOR CRIMINAL– FEDERAL CRIMINAL AND IMMIGRATION
CONSEQUENCES. IN BOTH UNITED STATES
VERSUS HAYES IN 2009 AND THEN CASTLEMAN
VERSUS UNITED STATES IN 2014, THE COURT SEEMED TO WANT TO BE
INCLUSIVE IN FINDING STATE CONVICTIONS TO QUALIFY
FOR FEDERAL CONSEQUENCES IN A WAY THAT WILL PROTECT
DOMESTIC PARTNERS. WIGGINS: OK.
OUR NEXT 3 DECISIONS INVOLVE DIFFERENT ASPECTS OF
THE HOBBS ACT. BUT IN THE FIRST,
OCASIO VERSUS UNITED STATES, THERE WAS A BIT OF A TWIST. EVAN, CAN YOU TELL US
ABOUT THAT? LEE: YEAH. OCASIO WAS
A BALTIMORE POLICE OFFICER WHO DIRECTED CARS THAT WERE
DAMAGED IN TRAFFIC ACCIDENTS TO A PLACE CALLED
THE MAJESTIC AUTO REPAIR SHOP IN EXCHANGE FOR KICKBACKS
FROM THE OWNER. OCASIO WAS CONVICTED OF
OBTAINING THE MONEY FROM THE SHOP OWNER UNDER
COLOR OF OFFICIAL RIGHT, IN VIOLATION OF THE HOBBS ACT. AND ALL THE PARTIES AGREED
THAT THIS HOBBS ACT EXTORTION WAS THE FUNCTIONAL EQUIVALENT
OF TAKING A BRIBE. BUT THEN HE WAS ALSO CONVICTED– HE WAS CHARGED WITH
AND CONVICTED OF CONSPIRING TO VIOLATE
THE HOBBS ACT. OCASIO CHALLENGED THE CONSPIRACY
CONVICTION, ARGUING THAT AS A MATTER OF LAW, HE COULDN’T BE CONVICTED OF
CONSPIRING WITH THE SHOP OWNERS TO OBTAIN MONEY FROM THEM
UNDER COLOR OF OFFICIAL RIGHT. BUT THE COURT HELD AGAINST
OCASIO. THE MAJORITY WROTE THAT
A DEFENDANT COULD BE CONVICTED OF CONSPIRING TO VIOLATE
THE HOBBS ACT, YOU KNOW, SO LONG AS HE ENTERED
INTO A CONSPIRACY THAT HAS AS ITS OBJECTIVE
THE OBTAINING OF MONEY FROM ANOTHER CONSPIRATOR
WITH HIS CONSENT AND UNDER COLOR
OF OFFICIAL RIGHT. LEVENSON: AND, YOU KNOW,
THIS CASE IS A GREAT PRIMER ON CONSPIRACY LAW, THAT A DEFENDANT CAN BE GUILTY
OF CONSPIRACY. EVEN IF THE DEFENDANT HIMSELF COULD NOT COMMIT THE SUBSTANTIVE
CRIME, IT’S ENOUGH IF THE CONSPIRATORS
AGREE THAT THE UNDERLYING CRIME BE COMMITTED BY A MEMBER
OF THE CONSPIRACY WHO IS CAPABLE OF COMMITTING IT. AND THEY USED THE ANALOGY TO,
PERHAPS, PROSECUTION UNDER THE MANN
ACT OF A WOMAN, NOW, WHO–SHE’S BEING
TRANSPORTED FOR IMMORAL PURPOSES, WHICH VIOLATES THE STATUTE,
SHE CAN BE–PUNISHED FOR CONSPIRING TO WILLINGLY
PARTICIPATE IN THIS WITH OTHERS WHO ARE CROSSING
THE STATE LINE WITH HER. LEE: ALTHOUGH THE MAJORITY
CAUTIONED THAT ITS DECISION DOES NOT EXTEND TO CASES WHERE
THE PERSON PAYING THE BRIBE IS AN UNWILLING PARTICIPANT
IN THE SCHEME. IN A CASE LIKE THAT, THE OFFICIAL IS GUILTY OF
SIMPLE EXTORTION OF THE PRIVATE INDIVIDUAL AND THERE’S NO CONSPIRACY
BETWEEN THE TWO. WIGGINS: OK. THE HOBBS ACT PUNISHES ANYONE
WHO “IN ANY WAY OR DEGREE “OBSTRUCTS, DELAYS OR AFFECTS
COMMERCE “OR THE MOVEMENT OF ANY ARTICLE
OR COMMODITY IN COMMERCE BY ROBBERY…OR ATTEMPTS
OR CONSPIRES TO DO SO.” THE ACT DEFINES COMMERCE
BROADLY AS “INTERSTATE COMMERCE “AND ALL OTHER COMMERCE “OVER WHICH THE UNITED STATES HAS JURISDICTION.” IN TAYLOR
VERSUS UNITED STATES, THE PETITIONER WAS
ORIGINALLY CONVICTED OF VIOLATING THE HOBBS ACT BY
ROBBING TWO MARIJUANA DEALERS, HOPING TO OBTAIN LARGE AMOUNTS OF DRUGS,
CASH, AND OTHER VALUABLES. WHAT WAS TAYLOR’S ARGUMENT
IN THIS CASE, LAURIE? LEVENSON: TAYLOR’S ARGUMENT IS
THAT HE CHALLENGED THE HOBBS ACT CONVICTION ON
THE GROUNDS THAT THE MARIJUANA HE
WAS ROBBING WAS JUST FROM A LOCAL GROWER AND THEREFORE DID NOT AFFECT
INTERSTATE COMMERCE. UH, JUSTICE ALITO HAD
NO PART OF THAT. HE SAID, WRITING FOR
THE MAJORITY, THAT THIS REALLY WAS
A STRAIGHTFORWARD CASE INVOLVING THE COURT’S DECISION
IN 2005 OF GONZALES VERSUS RAICH. THERE THE COURT HAD SAID THAT THE COMMERCE CLAUSE GIVES
CONGRESS, IN FACT, THE AUTHORITY TO REGULATE THE NATIONAL
MARKET–OF MARIJUANA. THAT MIGHT INVOLVE
JUST PRESCRIBING AGAINST PURELY
INTRASTATE PRODUCTION. AND SINCE THE HOBBS ACT
CRIMINALIZES ROBBERIES
AND ATTEMPTED ROBBERIES THAT AFFECT ANY COMMERCE
OVER WHICH THE U.S. HAS JURISDICTION,
THIS DID SATISFY THE HOBBS ACT. AND THE GOVERNMENT WOULD NOT
HAVE TO PROVE IN THE CASE THAT THE ROBBERY WAS AFFECTING
INTERSTATE COMMERCE. IT’S ENOUGH THAT IT WAS
THE LOCAL GROWERS. LEE: RIGHT. THE COURT EMPHASIZED THAT THIS DECISION APPLIED ONLY
TO ROBBERIES OF DRUG DEALERS WHEN THE ROBBER IS TARGETING
DRUGS OR OTHER DRUG PROCEEDS. WIGGINS: OK. WELL, FINALLY, WE HAVE THE MUCH
ANTICIPATED DECISION IN McDONNELL
VERSUS UNITED STATES. VIRGINIA GOVERNOR BOB McDONNELL
WAS CONVICTED OF WHAT AMOUNTED
TO BRIBERY UNDER THE FEDERAL HONEST SERVICES
FRAUD AND EXTORTION STATUTES FOR ARRANGING CALLS, MEETINGS,
AND EVENTS FOR BUSINESSMAN JONNIE WILLIAMS. WILLIAMS WAS TRYING TO GET
VIRGINIA’S PUBLIC UNIVERSITIES TO DO RESEARCH THAT WOULD HAVE
BENEFITED HIS BUSINESS. IN RETURN FOR THAT HELP,
McDONNELL AND HIS WIFE RECEIVED ABOUT $175,000 IN LOANS
AND LUXURY GOODS FROM WILLIAMS. UNDER THE HONEST SERVICES
FRAUD AND EXTORTION STATUTES, PROSECUTORS MUST PROVE OFFICIAL
ACTS WERE PERFORMED. I THINK EVERYONE KNOWS THAT
THE COURT OVERTURNED GOVERNOR McDONNELL’S CONVICTION. EVAN, WHAT WAS THE COURT’S
REASONING, THOUGH? LEE: WELL, THE GOVERNMENT HAD
ARGUED THAT ALMOST EVERYTHING THAT A PUBLIC OFFICIAL DOES
CONSTITUTES AN OFFICIAL ACT, INCLUDING THINGS LIKE ARRANGING
CALLS OR MEETINGS OR EVENTS. THE COURT UNANIMOUSLY REJECTED
THAT LINE OF ARGUMENT. IT HELD THAT AN OFFICIAL ACT
REQUIRES A DECISION OR AN ACTION ON A QUESTION OR MATTER
THAT INVOLVES A FORMAL EXERCISE OF
GOVERNMENTAL POWER, THAT IT HAS TO BE SOMETHING
SPECIFIC AND FOCUSED, THAT IS PENDING, OR THAT MAY BE BROUGHT
BEFORE A PUBLIC OFFICIAL. BUT IT WOULD BE SUFFICIENT. UH, THE COURT TOOK PAINS TO SAY
THAT IT WOULD BE SUFFICIENT IF AN OFFICIAL AGREED TO TAKE
SUCH AN ACTION, EVEN IF THAT ACTION WAS NEVER
REALLY TAKEN. LEVENSON: YEAH. YOU KNOW,
McDONNELL HAD ASKED THAT THE COURT ACTUALLY FIND THE HOBBS ACT
UNCONSTITUTIONALLY VAGUE BUT GIVEN THE NARROW FINDING
BY THE COURT THAT THEY DIDN’T HAVE TO REACH
THAT RULING. HOWEVER, I THINK THE BOTTOM LINE
HERE IS THAT PROSECUTORS HAVE BECOME VERY AGGRESSIVE
IN THE USE OF THE HOBBS ACT. THE COURT SENT THE MESSAGE
“WALK IT BACK.” OFFICIAL ACTS HAVE TO BE MORE THAN JUST SETTING UP
A MEETING OR AN INTRODUCTION. THEY ACTUALLY MUST BE EFFORTS
TO INFLUENCE ACTS IN SPECIFIC MATTERS PENDING
BEFORE AN OFFICIAL OR AN AGENCY. WIGGINS: THANKS, LAURIE.
AND THANKS, EVAN. I THINK WE HAVE A COUPLE
QUESTIONS. CHANCE: WE DO. UM,
THE FIRST ONE COMING IN IS, “AFTER THE MATHIS DECISION,
HOW DO WE DECIDE WHAT THE DIFFERENCE IS BETWEEN
ELEMENT AND MEANS?” LEVENSON: I THINK THAT’S
A GREAT QUESTION. AND, IN FACT, SOME OF
THE MEMBERS OF THE COURT WERE SAYING, “I’M NOT SURE
WE CAN DO THAT.” BUT I THINK ELEMENTS ARE SORT OF
THE BROADER TERMS OF WHAT HAVE TO BE PROVED, AND MEANS ARE MORE DESCRIPTIVE OF HOW YOU’RE GOING TO PROVE
THAT ACTION TAKING PLACE. WE’LL HAVE TO WAIT FOR THE LOWER COURTS TO MAKE
SOME DECISIONS IN THIS AREA. LEE: YEAH, I WOULD JUST ADD THAT
THE MAJORITY OPINION– JUSTICE KAGAN DID LAY OUT
SEVERAL DIFFERENT METHODS OF TELLING THE DIFFERENCE
BETWEEN ELEMENTS AND MEANS. CERTAINLY, YOU LOOK AT
THE TEXT OF THE STATUTE. THAT’S ONE CRITERION. SOMETIMES THE STATUTE IS WRITTEN
IN SUCH A WAY THAT IT MAKES IT–THAT
MAKES THAT FAIRLY CLEAR. BUT–IN THE LAST RESORT,
SHE SAID THAT THERE WAS A PEEK THAT IS AUTHORIZED, A PEEK FOR THE LIMITED PURPOSE– A PEEK AT THE RECORD FOR THE
LIMITED PURPOSE OF FIGURING OUT WHETHER IT INVOLVES ELEMENTS
OR MEANS. AND THAT’S KIND OF
THE LAST RESORT. CHANCE: OK, NOW WE HAVE ONE
ON THE McDONNELL CASE. IT’S, “DOES McDONNELL LIMITING
THE DEFINITION OF OFFICIAL ACT “UNDER 18 U.S.C. SECTION 201
IMPACT OTHER HONEST SERVICES “AND BRIBERY STATUTES, LIKE
18 U.S.C. 1346 AND 666 “THAT DO NOT EXPLICITLY DEFINE
OR REQUIRE AN OFFICIAL ACT?” ANY THOUGHTS? LEVENSON: I DON’T KNOW THAT WE
KNOW THE ANSWER TO THAT. I DO KNOW THAT, IN FACT, THE
COURT HAS BEEN QUITE CONCERNED RECENTLY WITH THE HOBBS ACT. WE’VE SEEN SEVERAL DECISIONS
IN THIS AREA. BUT I WOULD EXPECT LAWYERS
TO BE RAISING THAT QUESTION OF WHETHER THAT SAME LANGUAGE
HAS BEEN USED. AND A FEW YEARS AGO, WE DID HAVE
SOME CONCERNS ABOUT THE HONEST SERVICES
STATUTE. THAT’S ALWAYS BEEN
A BIT VULNERABLE TO ATTACK. IT’S GOING TO COME DOWN,
I THINK, TO HOW PROSECUTORS BRING
THESE CASES. IF THEY BRING THEM ON SORT OF
SIMPLE ACTIONS, YOU MIGHT VERY WELL SEE
THAT TYPE OF ARGUMENT MADE. CHANCE: ALL RIGHT. WIGGINS: THANK YOU. NEXT, WE’RE GOING TO TALK ABOUT SOME CRIMINAL PROCEDURE
DECISIONS. CHANCE: NOW FROM CRIMINAL LAW
TO CRIMINAL PROCEDURE. WE’RE GOING TO LOOK AT
5 OF THESE, STARTING WITH TWO CASES WHERE
THE COURT MADE THE RARE FINDING OF RETROACTIVITY. THE FIRST WAS IN
MONTGOMERY VERSUS LOUISIANA. IN 1963, AT AGE 17,
HENRY MONTGOMERY KILLED A DEPUTY SHERIFF AND WAS GIVEN A SENTENCE OF
LIFE WITHOUT PAROLE. NOW, 69 YEARS OLD,
MONTGOMERY ASKED THAT THE SUPREME COURT’S
2012 DECISION IN MILLER VERSUS ALABAMA
BE APPLIED RETROACTIVELY TO SENTENCES LIKE HIS THAT WERE FINAL BEFORE
MILLER WAS DECIDED. IN MILLER, THE COURT HELD THAT
SENTENCING JUVENILES TO LIFE WITHOUT PAROLE
WAS A VIOLATION OF THE EIGHTH AMENDMENT’S BAN ON
CRUEL AND UNUSUAL PUNISHMENT. ERWIN, WHAT WAS THE MAJORITY’S
RATIONALE FOR FINDING… MILLER APPLIED RETROACTIVELY–
IN MONTGOMERY’S CASE? CHEMERINSKY:
IN TEAGUE VERSUS LANE IN 1989, THE SUPREME COURT HELD THAT
ONE OF ITS DECISIONS ABOUT CRIMINAL PROCEDURE APPLIES
RETROACTIVELY IN TWO CIRCUMSTANCES. ONE IS IF IT’S A WATERSHED RULE
OF CRIMINAL PROCEDURE. SINCE 1989, NOTHING HAS BEEN
FOUND TO BE A WATERSHED RULE OF CRIMINAL PROCEDURE. THE OTHER, THE COURT SAID, IS
A SITUATION WHERE A SUPREME COURT DECISION
PUTS A MATTER BEYOND THE CONSTITUTIONAL REACH
OF THE CRIMINAL LAW. THE COURT SAID A SUBSTANTIVE
CHANGE IN THE LAW WILL APPLY RETROACTIVELY WHERE A PROCEDURAL CHANGE
IN THE LAW WON’T APPLY RETROACTIVELY. A SUBSTANTIVE CHANGE IN THE LAW
INCLUDES IF THE SUPREME COURT SAYS
THAT A PARTICULAR PUNISHMENT VIOLATES THE EIGHTH AMENDMENT, IS APPLIED TO A PARTICULAR CLASS
OR GROUP OR STATUS. CHANCE: SO WHEN A STATE ENFORCES
A PENALTY THAT’S BARRED BY
THE CONSTITUTION, THEN THAT CONVICTION OR SENTENCE
IS, BY DEFINITION, UNLAWFUL. CHEMERINSKY: EXACTLY. AND THAT’S WHAT
THE SUPREME COURT HELD IN MONTGOMERY
VERSUS LOUISIANA. MILLER VERSUS ALABAMA
HELD THAT IT’S CRUEL AND UNUSUAL PUNISHMENT VIOLATION
OF THE EIGHTH AMENDMENT TO HAVE A MANDATORY SENTENCE OF
LIFE WITHOUT PAROLE FOR A HOMICIDE COMMITTED
BY A JUVENILE. THE COURT, ON MONTGOMERY, SAYS THAT’S A SUBSTANTIVE CHANGE
IN THE LAW. THEREFORE,
IT APPLIES RETROACTIVELY. CHANCE: NOW, LAURIE,
JUSTICE SCALIA WROTE A PRETTY FORCEFUL DISSENT IN
THIS CASE, DIDN’T HE? LEVENSON: I BELIEVE HE DID. IN THIS CASE, HE SAID THAT
THE RULING IN TEAGUE, FRANKLY, IS NOT CONSTITUTIONALLY
REQUIRED. HE WROTE THAT THE DECISION IN
MILLER WAS A PROCEDURAL CHANGE, BUT IT DIDN’T COMPLETELY BAN
A LIFE IMPRISONMENT SENTENCE FOR A JUVENILE. IT JUST MANDATED
A CERTAIN PROCESS TO BE FOLLOWED BEFORE YOU FIND WHETHER THAT
DEFENDANT IS INCORRIGIBLE. MOREOVER, JUSTICE SCALIA SAID,
YOU KNOW, IT’S VERY DIFFICULT FOR JUDGES 50 YEARS LATER TO GO
BACK AND MAKE THAT TYPE OF ASSESSMENT OF WHETHER MONTGOMERY SHOULD
HAVE GOTTEN THAT SENTENCE. CHEMERINSKY: I THINK
THIS CASE IS IMPORTANT IN A COUPLE OF WAYS.. OBVIOUSLY, FOR ANYONE WHO
RECEIVED A MANDATORY SENTENCE OF LIFE WITHOUT PAROLE FOR A HOMICIDE COMMITTED
BY A JUVENILE BEFORE MILLER VERSUS ALABAMA,
THEY NOW CAN GET RELIEF. THE OTHER IS,
THE COURT CLARIFIED THAT SUPREME COURT DECISIONS
APPLY RETROACTIVELY IF THEY’RE SUBSTANTIVE
RATHER THAN PROCEDURAL. THE PROBLEM, THOUGH, IS
THAT THE DISTINCTION BETWEEN SUBSTANCE AND PROCEDURE
IS OFTEN VERY ELUSIVE. CHANCE: LAURIE, HOW DOES OUR
NEXT DECISION– NEXT DECISION IN
WELCH VERSUS UNITED STATES, HOW DID THAT APPROACH
THE RETROACTIVITY QUESTION? STEVENSON: JIM, IN VERY
MUCH THE SAME WAY, FRANKLY. LAST TERM, AS YOU’LL RECALL,
IN JOHNSON VERSUS UNITED STATES, THE SUPREME COURT RULED THAT
THE RESIDUAL CLAUSE OF THE ARMED CAREER
CRIMINAL ACT, OR THE ACCA, WAS
UNCONSTITUTIONALLY VAGUE. THE ACCA INCREASES THE SENTENCE FOR A FELON IN POSSESSION
OF A FIREARM FROM 10 YEARS TO A MANDATORY
15 YEARS TO LIFE IN PRISON IF THE OFFENDER HAS
3 PRIOR CONVICTIONS FOR A SERIOUS DRUG OFFENSE
OR A VIOLENT FELONY. NOW, THE DEFINITION OF
A VIOLENT FELONY HAS THIS RESIDUAL CLAUSE. AND WE HAVE IT UP ON THE SCREEN,
I THINK. AND IT SAYS THAT IT IS
ANY FELONY THAT “OTHERWISE INVOLVES
CONDUCT THAT PRESENTS A SERIOUS POTENTIAL RISK
OF INJURY TO ANOTHER.” THAT’S THE CLAUSE THAT
THE COURT FOUND TO BE UNCONSTITUTIONALLY VAGUE. IN JOHNSON, THE COURT
AGAIN APPLIED, AS ERWIN WAS TALKING ABOUT,
THE TEAGUE VERSUS LANE STANDARD HERE IN WELCH, AND FOUND THAT
WHEREAS PROCEDURAL RULES ARE NOT RETROACTIVE, HERE WHAT WE HAD WAS ANOTHER
SUBSTANTIVE RULE CHANGE. AND IT FOUND THAT JOHNSON
WAS A NEW SUBSTANTIVE RULE BECAUSE IT ALTERED THE RANGE OF
CONDUCT OR THE CLASS OF PERSONS WHO
COULD BE PUNISHED UNDER THE LAW. SO JOHNSON HAD THE EFFECT OF
BASICALLY PUTTING OUT OF REACH THE USE OF THIS STATUTE. AND IT WASN’T JUST
JUDICIAL PROCEDURE, AND, THEREFORE, IT WOULD BE
RETROACTIVE. CHANCE: ALL RIGHT. SO WHAT DO
THESE TWO DECISIONS, TAKEN TOGETHER, SAY TO YOU? STEVENSON: I THINK THEY ACTUALLY
SIGNAL A GREATER WILLINGNESS BY THE SUPREME COURT TO FIND
AREAS IN CRIMINAL PROCEDURE TO BE RETROACTIVE BY SAYING THAT
THEY ARE A SUBSTANTIVE CHANGE IN THE LAW,
NOT JUST PROCEDURAL. CHEMERINSKY: I THINK IT’S ALSO
WORTH MENTIONING THAT THE COURT DID NOT DISCUSS,
EVEN ALLUDE TO, HOW JOHNSON AND WELCH
MIGHT APPLY TO OTHER FEDERAL STATUTES
USE IN LANGUAGE OR THE SENTENCING GUIDELINES. IT WAS DISCUSSED
IN ORAL ARGUMENT, BUT THE COURT JUST DIDN’T SPEAK
TO IT. CHANCE: ALL RIGHT. OUR THIRD
DECISION DEALS WITH WHAT IS OFTEN
THE MEAT AND POTATOES OF CRIMINAL PROCEDURE– FOURTH AMENDMENT
SEARCH AND SEIZURE ISSUES. IT IS UTAH VERSUS STRIEFF. SALT LAKE CITY NARCOTICS
DETECTIVE DOUGLAS FACKRELL WAS SURVEILLING AN ALLEGED
DRUG HOUSE WHEN HE SAW
EDWARD STRIEFF COME OUT AND WALK TO THE LOCAL
CONVENIENCE STORE. FACKRELL STOPPED STRIEFF IN
THE STORE’S PARKING LOT, IDENTIFIED HIMSELF, AND ASKED STRIEFF WHAT HE WAS
DOING IN THE HOUSE. FACKRELL HAD
NO REASONABLE SUSPICION ON WHICH TO STOP STRIEFF AT
THIS POINT. AFTER GETTING STRIEFF’S NAME
FROM HIM, FACKRELL FOUND OUT
FROM THE DISPATCHER THAT STRIEFF HAD AN OUTSTANDING
ARREST WARRANT AGAINST HIM FOR A TRAFFIC VIOLATION. FACKRELL TESTIFIED–NO,
HE ARRESTED STRIEFF ON THAT WARRANT. AND INCIDENT TO THE ARREST,
HE SEARCHED STRIEFF AND FOUND DRUGS
AND DRUG PARAPHERNALIA IN STRIEFF’S POCKET. AT HIS TRIAL, STRIEFF ASKED
THE COURT TO APPLY THE EXCLUSIONARY RULE AND
SUPPRESS ADMISSION OF THE DRUGS AS EVIDENCE BECAUSE THEY WERE THE FRUITS OF
AN UNLAWFUL SEARCH. SO, ERWIN, HOW DID THAT
WORK OUT FOR HIM? CHEMERINSKY: THE UTAH SUPREME
COURT SAID THAT THE EVIDENCE SHOULD HAVE BEEN
EXCLUDED AS THE FRUIT OF
THE POISONOUS TREE, BUT THE UNITED STATES
SUPREME COURT IN A 5-3 DECISION REVERSED THE UTAH SUPREME COURT. THE SUPREME COURT HELD THAT THE EVIDENCE SHOULD
HAVE BEEN ADMITTED. JUSTICE THOMAS WROTE THE OPINION
FOR THE COURT. AND HE FOCUSED
ON THE ATTENUATION EXCEPTION TO THE EXCLUSIONARY RULE. LEVENSON: AND USING THAT
ATTENUATION EXCEPTION, THE COURT SET UP A 3-PART
STANDARD TO MAKE THE DETERMINATION OF
WHETHER THE SEIZURE IS THE RESULT OF
THIS ILLEGAL STOP. IT SAID, “LOOK, WE’VE GOT
3 THINGS: 1–TEMPORAL PROXIMITY. IN OTHER WORDS,
HOW MUCH TIME HAS PASSED SINCE THE TIME OF
THE UNCONSTITUTIONAL ACTION AND WHEN THEY OBTAINED
THE EVIDENCE? THE SECOND IS
INTERVENING CIRCUMSTANCES. DID SOMETHING HAPPEN BETWEEN
THE UNCONSTITUTIONAL ACTION AND FINDING THAT EVIDENCE? AND THE THIRD THING IS, WAS THERE PURPOSE AND FLAGRANCY
OF THE POLICE MISCONDUCT? DID THE OFFICERS KNOW THAT THEY
WERE OBVIOUSLY DOING SOMETHING UNCONSTITUTIONAL? NOW, THE COURT SAID,
“HERE. LOOK. “GIVEN THE TEMPORAL PROXIMITY,
WE KIND OF HAVE TO ADMIT THAT THAT WAS VERY CLOSE.” THEY STOPPED THE GUY.
THEY DID–FOUND THE WARRANT. AND THEY DID THE SEARCH,
GOT THE EVIDENCE. SO THAT ONE GOES IN FAVOR OF
HIS–OF HIM. ON THE OTHER HAND, THE COURT
FOUND THAT THERE WERE THESE INTERVENING ACTS, WHICH WAS AN ARREST BASED UPON
A LAWFUL WARRANT, WHICH ALLOWS FACKRELL TO DO
EXACTLY WHAT HE DID. AND THEN THE COURT BASICALLY
SAID THAT EVEN THOUGH THE GOVERNMENT HAD CONCEDED
THIS WAS AN UNLAWFUL STOP, IT WAS ONLY NEGLIGENT. IT WASN’T A FLAGRANT VIOLATION OF STRIEFF’S–
CONSTITUTIONAL RIGHTS. AND THEREFORE,
THEY WERE GOING TO USE THE ATTENUATION DOCTRINE,
NOT THE EXCLUSIONARY RULE. CHANCE: AND THERE WERE A COUPLE
OF DISSENTS IN THIS CASE, INCLUDING A PRETTY REMARKABLE
ONE FROM JUSTICE SOTOMAYOR. CHEMERINSKY: JUSTICE SOTOMAYOR
WROTE A POWERFUL DISSENT. SHE TALKED ABOUT HOW MANY OUTSTANDING
ARREST WARRANTS EXIST, INCLUDING FOR MINOR CRIMES. SHE TALKED OF HOW DEGRADING
IT IS TO BE STOPPED BY A POLICE OFFICER. SHE TALKED ESPECIALLY ABOUT
THE EFFECT OF THIS IN MINORITY COMMUNITIES. IN FACT, I THINK WE CAN PUT
ON THE SCREEN SOME OF THE LANGUAGE FROM
JUSTICE SOTOMAYOR’S DISSENT IN WHICH SHE SAYS, “THIS CASE ALLOWS THE POLICE TO
STOP YOU ON THE STREET, “DEMAND YOUR IDENTIFICATION, “AND CHECK IT FOR OUTSTANDING…
WARRANTS– EVEN IF YOU ARE DOING
NOTHING WRONG.” “IF THE OFFICER DISCOVERS
A WARRANT FOR A FINE “YOU FORGOT TO PAY, COURTS WILL
NOW EXCUSE HIS ILLEGAL STOP “AND WILL ADMIT INTO EVIDENCE
ANYTHING HE HAPPENS TO FIND BY SEARCHING YOU AFTER ARRESTING
YOU ON THE WARRANT.” LEVENSON: YEAH. JUSTICE KAGAN
ALSO WROTE A SEPARATE DISSENT IN THIS CASE. AND SHE SAID THAT EVEN IF WE
USE THESE FACTORS– THE MAJORITY HAD MISAPPLIED
THE FACTORS– THERE ARE SO MANY WARRANTS
OUT THERE. THERE ARE COMMUNITIES WHERE
70% OR MORE OF THE PEOPLE MIGHT HAVE SOME TYPE OF
OUTSTANDING WARRANT, MAYBE FOR A LOW-LEVEL OFFENSE,
LIKE A TRAFFIC OFFENSE. AND POLICE ROUTINELY CHECK
FOR THESE WARRANTS. SO HOW MUCH OF AN INTERVENING
ACT CAN THAT REALLY BE IF THE POLICE KNOW
THEY’RE ALWAYS GOING TO DO IT AND IT ALWAYS IS GOING
TO HAPPEN? SHE SAID IT WAS PREDICTABLE
AND IT WAS INTENTIONAL ON THE OFFICER’S PART. AND, THEREFORE, THEY SHOULD NOT BE USING
THIS ATTENUATION DOCTRINE. CHEMERINSKY: I THINK
THE IMPORTANT ISSUE FOR THE LOWER COURTS
WILL BE, WHEN IS POLICE CONDUCT
SO FLAGRANT THAT THE ATTENUATION EXCLUSION
WON’T APPLY AND THE EXCLUSIONARY RULE WILL
HAVE TO BE APPLIED? CHANCE: ALL RIGHT. THANK YOU. THE SCOPE OF THE SEARCH INCIDENT
TO ARREST EXCEPTION WAS ALSO A MAJOR FOCUS OF OUR NEXT
DECISION– BIRCHFIELD
VERSUS NORTH DAKOTA. BIRCHFIELD IS ACTUALLY 3 CASES
DECIDED TOGETHER, ASKING WHETHER WARRANTLESS BREATHALYZER
AND BLOOD TESTS THAT ARE GIVEN
TO SUSPECTED DRUNK DRIVERS VIOLATE THEIR
FOURTH AMENDMENT RIGHTS. IN ONE OF THE 3 CASES, THE DRIVER REFUSED
TO TAKE A BLOOD TEST. IN THE SECOND, THE DRIVER
WAS ARRESTED AND CHARGED WITH REFUSING TO TAKE
A BREATH TEST. AND IN THE THIRD CASE, THE DRIVER AGREED TO HAVE
BLOOD DRAWN BUT THEN SUBSEQUENTLY ARGUED THAT HIS CONSENT
HAD BEEN COERCED. NOW, ALL 50 STATES HAVE LAWS
REQUIRING DRIVERS, AS A CONDITION
OF OPERATING A MOTOR VEHICLE WITHIN THE STATE, TO GIVE IMPLIED CONSENT TO BLOOD ALCOHOL CONCENTRATION
TESTS IF THEY ARE ARRESTED OR DETAINED ON SUSPICION OF DRIVING UNDER
THE INFLUENCE. IF THEY REFUSE TO TAKE THE TEST, SUSPENDING OR REVOKING
THEIR LICENSE IS THE STANDARD CONSEQUENCE. BUT SOME STATES HAVE NOW PASSED
LAWS MAKING IT A CRIME TO REFUSE THE TESTING. SO AFTER THIS DECISION,
I’M WONDERING IF, UH, POLICE NEED WARRANTS BEFORE TESTING
DRUNK DRIVERS. LAURIE? LEVENSON: SOMETIMES YES.
SOMETIMES NO. UH, THE MAJORITY REVIEWED THE SEARCH INCIDENT
TO ARREST DOCTRINE AND WAS BALANCING, FRANKLY,
THE PRIVACY INTEREST OF DRIVERS AGAINST VERY STRONG
GOVERNMENTS’ INTEREST IN STOPPING AND DETERRING
DRUNK DRIVING. AND THEY CAME TO THE CONCLUSION THAT AT LEAST WITH REGARD
TO BREATH TESTS, IT’S A NEGLIGIBLE INTRUSION
ON THE DRIVER’S PRIVACY RIGHT. YOU BLOW INTO A STRAW; IT DOESN’T REALLY GIVE
THE POLICE ANY MORE INFORMATION THAN WHETHER YOUR
BLOOD ALCOHOL LEVEL WAS OVER THE AMOUNT PERMITTED,
BUT THAT’S ABOUT IT. THAT’S WITH REGARD
TO BREATH TESTS, AND THEREFORE THOSE ARE ALLOWED. CHANCE: AND WHAT ABOUT
THE BLOOD TESTS? CHEMERINSKY: JUSTICE ALITO,
WRITING FOR THE COURT, SAID THAT BLOOD TESTS ARE DIFFERENT. HE SAID BLOOD TESTS INVOLVE
PIERCING THE SKIN. HE SAID A GREAT DEAL MORE CAN
BE LEARNED BY ANALYZING A PERSON’S BLOOD THAN JUST
WHAT WILL BE LEARNED FROM SOMEBODY’S BREATH. SO WHEN IT COMES TO BLOOD TESTS,
THE COURT HAS SAID THE POLICE CANNOT DRAW BLOOD UNLESS THERE’S
EITHER A WARRANT OR EXIGENT CIRCUMSTANCES. CHANCE: WHAT ABOUT CONCURRENCES?
DISSENTS? WERE THERE IN THIS CASE? CHEMERINSKY: THERE WERE A COUPLE
OF OPINIONS THAT WERE BOTH CONCURRENCES AND DISSENTS. JUSTICE SOTOMAYOR HAD AN OPINION
CONCURRING AND DISSENTING, JOINED BY JUSTICE GINSBURG. JUSTICE SOTOMAYOR SAID
FOR BOTH BREATH AND BLOOD TESTS, A WARRANT SHOULD BE REQUIRED
ABSENT EXIGENT CIRCUMSTANCES. SHE STRESSED HOW EASY IT IS
TO GET A WARRANT. JUSTICE THOMAS WROTE AN OPINION,
CONCURRING AND DISSENTING, COMING TO EXACTLY THE OPPOSITE
CONCLUSION. HE SAID THERE SHOULDN’T NEED TO
BE A WARRANT FOR EITHER BLOOD TESTS
OR BREATH TESTS. HE SAID IN ALL DRIVING UNDER
THE INFLUENCE CASES, THERE’S EXIGENT CIRCUMSTANCES
THAT JUSTIFY ALLOWING THE POLICE TO GO
FORWARD. LEVENSON: YOU KNOW, I THINK
THERE WERE 2 BIG TAKEAWAYS FROM THIS CASE. THE FIRST IS
ABSENT EXIGENT CIRCUMSTANCES– YOU NEED TO GET A WARRANT
FOR A BLOOD TEST, NOT FOR A BREATH TEST. BUT I THINK THE SECOND IS THAT
THIS DECISION DOES NOT PRECLUDE STATES
FROM HAVING THOSE LAWS THAT SUSPEND LICENSES
OR IMPOSE CIVIL SANCTIONS OR ADMINISTRATIVE SANCTIONS FOR REFUSING TO TAKE
ANY TYPE OF TEST. CHANCE: THERE WAS
STRONG LANGUAGE IN OUR NEXT DECISION,
FOSTER VERSUS CHATMAN, AND THIS TIME
FROM THE CHIEF JUSTICE. WHEN TIMOTHY FOSTER,
A BLACK MAN, WAS TRIED FOR CAPITAL MURDER, THE PROSECUTOR
PEREMPTORILY STRUCK ALL 4 BLACK PROSPECTIVE JURORS. FOSTER OBJECTED AT TRIAL THAT THOSE STRIKES WERE
RACIALLY MOTIVATED IN VIOLATION
OF THE COURT’S RULING IN BATSON VERSUS KENTUCKY. THE TRIAL JUDGE OVERRULED
THE OBJECTIONS. FOSTER WAS CONVICTED
AND SENTENCED TO DEATH. AND WHILE FOSTER’S STATE
HABEAS PETITION WAS PENDING, HE OBTAINED COPIES THROUGH
THE GEORGIA OPEN RECORDS ACT OF THE FILE USED BY
THE PROSECUTION. ONE OF THE DOCUMENTS IN THAT
FILE WAS THE JURY VENIRE LIST, ON WHICH THE NAME OF EVERY
POTENTIAL BLACK JUROR WAS HIGHLIGHTED TO DENOTE
THE RACE. ANOTHER DOCUMENT WAS A DRAFT
AFFIDAVIT FROM AN INVESTIGATOR COMPARING PROSPECTIVE
BLACK JURORS AND POINTING TO ONE THAT– TO ONE THAT “MIGHT BE
OK IF THE PROSECUTORS HAD TO PICK ONE OF THEM.” OTHER NOTES HAD THE CAPITAL
LETTER “N,” MEANING NO, NEXT TO THE NAME OF
EVERY BLACK JUROR. OTHER FINDINGS SUGGESTING
RACIAL MOTIVATIONS FOR THE PEREMPTORY STRIKES
ALSO EXISTED. SO, LAURIE, REMIND US NOW ABOUT
BATSON VERSUS KENTUCKY FIRST. STEVENSON: YOU KNOW,
AS YOU SAID, BATSON WAS THE SUPREME COURT’S
DECISION HOLDING THAT JURORS CANNOT BE
STRUCK FOR RACIAL REASONS. AND SINCE THEN, THAT’S BEEN APPLIED
ON THE BASIS OF GENDER AS WELL. AND THE COURT SET OUT A 3-STEP
PROCESS FOR DETERMINING WHETHER THIS HAS HAPPENED. THE FIRST STEP WILL BE FOR
A DEFENDANT TO MAKE A PRIMA FACIE CASE THAT THERE
HAVE BEEN PEREMPTORY CHALLENGES MADE ON THE BASIS OF RACE. THEN, SECOND, THE PROSECUTION
OFFERS A RACE-NEUTRAL REASON FOR
EXERCISING THEIR STRIKE. AND, FINALLY, AND IMPORTANTLY,
THE COURT MUST DECIDE WHETHER THE DEFENDANT
HAS BEEN SUBJECT TO THIS
PURPOSEFUL DISCRIMINATION BY THE PROSECUTION. AND, ACTUALLY, WHAT WE’RE
TALKING ABOUT HERE IS THE JURORS’ RIGHTS REGARDLESS
OF THE RACE OF THE DEFENDANT. CHANCE: ERWIN, SO DID
THE SUPREME COURT FIND THAT THE PROSECUTION HAD VIOLATED MR. FOSTER’S RIGHTS
IN THIS CASE? CHEMERINSKY: WITHOUT A DOUBT. CHIEF JUSTICE ROBERTS WROTE
THE OPINION FOR THE COURT. HE SAID IT VIOLATES
THE CONSTITUTION FOR EVEN ONE PROSPECTIVE JUROR TO BE EXCLUDED
ON THE BASIS OF RACE. HE SAID THE COURT COULDN’T
TURN A BLIND EYE TO THE EVIDENCE IN THIS RECORD. HE FOCUSED ON THE THIRD PRONG
OF THE BATSON TEST THAT LAURIE JUST DESCRIBED. HE LOOKED AT TWO PARTICULAR
JURORS AND SAID THAT THE EVIDENCE WAS
OVERWHELMING THAT THEY HAD BEEN EXCLUDED
ON THE BASIS OF RACE. LEVENSON: YOU KNOW, ERWIN,
I THINK THIS IS A REALLY IMPORTANT CASE BECAUSE
IT REAFFIRMS BATSON AND IT SENDS A MESSAGE
TO EVERYBODY THAT RACIAL DISCRIMINATION
IN JURY SELECTION SHOULD NOT BE TOLERATED,
FRANKLY, ON EITHER SIDE. ON THE OTHER HAND, I DON’T KNOW
IF OTHER DEFENDANTS ARE GOING TO BE SO LUCKY TO FIND
THE TYPE OF RECORD THAT THEY FOUND IN THIS CASE. CHANCE: THANK YOU, ALL. WIGGINS: WE HAVE A QUESTION.
CHANCE: GREAT. WIGGINS: AND THAT IS, UM, “DOES THE DECISION IN
FOSTER VERSUS CHATMAN “MEAN THERE WILL BE
LESS DEFERENCE TOWARD STATE COURTS ON
BATSON CHALLENGES?” LEVENSON: I DON’T THINK,
NECESSARILY, THAT’S WHAT IT MEANS AT ALL. THIS WAS A PRETTY EXTREME CASE. I DO THINK THAT WHEN YOU HAVE
THESE THINGS IN WRITING, IT’S REALLY HARD. ON THE OTHER HAND, THERE
WAS A CONTROVERSY IN THE COURT ABOUT WHETHER ENOUGH–DEFERENCE
WAS GIVEN. CHEMERINSKY: I THINK THE COURT
IS TRYING TO SEND A MESSAGE TO STATE AND TO FEDERAL COURTS
TO BE MORE VIGILANT IN MAKING SURE THAT RACE AND SEX
ARE NOT IMPERMISSIBLY USED IN EXCLUDING PROSPECTIVE JURORS. I AGREE WITH LAURIE THAT THERE’S
EXTREME FACTS HERE. HOW OFTEN WILL A DEFENDANT
FIND DOCUMENTS LIKE THIS? BUT I THINK THE COURT IS
TRYING TO SEND A MESSAGE. IT WANTS THEM TO TAKE BATSON
MORE SERIOUSLY. CHANCE: THANK YOU. AND NOW LET’S TAKE A LOOK AT
SOME SIXTH AMENDMENT DECISIONS. WIGGINS: THE SIXTH AMENDMENT TO
THE U.S. CONSTITUTION GUARANTEES CRIMINAL DEFENDANTS AMONG
OTHER THINGS A QUICK AND SPEEDY TRIAL BEFORE
AN IMPARTIAL JURY AND THE ASSISTANCE OF COUNSEL
FOR THEIR DEFENSE. THE QUESTION OF HOW TO INTERPRET
AND APPLY THESE RIGHTS IN ACTUAL CRIMINAL CASES WAS
BEFORE THE SUPREME COURT IN OUR NEXT 4 DECISIONS. IN HURST VERSUS FLORIDA, IT WAS THE RIGHT TO BE
JUDGED BY A JURY THAT OCCUPIED THE JUSTICES. TIMOTHY LEE HURST WAS CONVICTED OF MURDERING HIS COWORKER,
CYNTHIA HARRISON. A PENALTY-PHASE JURY RECOMMENDED
7-5 THAT HURST BE EXECUTED. BUT FLORIDA LAW
REQUIRED THE JUDGE TO HOLD A SEPARATE HEARING
TO DECIDE WHETHER THERE WERE SUFFICIENT
AGGRAVATED CIRCUMSTANCES TO JUSTIFY THE DEATH PENALTY. THE JUDGE FOUND
THAT SUCH CIRCUMSTANCES EXISTED AND THEN SENTENCED
HURST TO DEATH. HURST ARGUED THAT THAT WAS
A VIOLATION OF THE SIXTH AMENDMENT RIGHT. WHAT DID THE COURTS DECIDE,
EVAN? LEE: THE COURT RULED IN FAVOR
OF HURST 8-1. THE COURT REITERATED, UM… THE HOLDING OF ITS 2002 DECISION
IN RING VERSUS ARIZONA, WHICH HAD BEEN BASED
ON APPRENDI VERSUS NEW JERSEY, THAT A CAPITAL DEFENDANT HAS
THE RIGHT TO HAVE A JURY AND NOT JUST A JUDGE
FIND ALL FACTS NECESSARY TO IMPOSE THE DEATH PENALTY. NOW, FLORIDA ARGUED THAT
THE JURY’S RECOMMENDATION OF THE DEATH PENALTY INCLUDED
WITHIN IT AN IMPLIED FINDING
OF AGGRAVATED CIRCUMSTANCES. BUT THE JUSTICES REJECTED
THAT ARGUMENT… AND POINTED OUT THAT THE FLORIDA
CAPITAL SENTENCING PROCEDURE EXPLICITLY REQUIRES FINDINGS
BY THE JUDGE TO IMPOSE DEATH. LEVENSON: AND JUSTICE SOTOMAYOR
NOTED THAT JUST LIKE IN RING, THE MAXIMUM–SENTENCE HURST
COULD HAVE RECEIVED BASED JUST ON THE JURY’S
RECOMMENDATION WAS LIFE WITHOUT THE POSSIBILITY
OF PAROLE. SO THAT REALLY DID REQUIRE
THE JUDGE TO FIND THOSE FACTS THAT WOULD BE NECESSARY
TO IMPOSE DEATH. AND, AS EVAN SAID, THAT’S WHAT
VIOLATES THE SIXTH AMENDMENT. LEE: AND THE COURT HERE
EXPRESSLY OVERRULED TWO OF ITS OWN PRE-RING
VERSUS ARIZONA DECISIONS THAT HAD PREVIOUSLY UPHELD
THE CONSTITUTIONALITY OF FLORIDA’S CAPITAL SENTENCING
SCHEME. UM… TIME AND SUBSEQUENT DECISIONS
LIKE RING HAD “WASHED AWAY THEIR LOGIC,”
SAID THE COURT. LEVENSON:
BUT THERE WAS A DISSENT BY JUSTICE ALITO IN THIS CASE. HE ARGUED THAT THE DECISION DID
NOT FOLLOW FROM RING BECAUSE THERE WERE DIFFERENT ROLES OF THE JUDGE
AND THE JURY IN EACH CASE. AND HE SAID, EVEN IF THERE WAS
A CONSTITUTIONAL VIOLATION, THE HARMLESS ERROR DOCTRINE
SHOULD APPLY. WIGGINS: OK. THE RIGHT TO
A SPEEDY TRIAL WAS THE FOCUS OF OUR NEXT DECISION,
BETTERMAN VERSUS MONTANA. BRANDON BETTERMAN WAS JAILED FOR
OVER 14 MONTHS WHILE WAITING TO BE SENTENCED
ON A BAIL JUMPING CONVICTION. THE DELAY WAS INSTITUTIONAL. THE PRE-SENTENCE REPORT TOOK
NEARLY 5 MONTHS TO COMPLETE. THE TRIAL COURT TOOK SEVERAL
MONTHS TO DENY TWO PRE-SENTENCE MOTIONS. AND THEN THE COURT WAS SLOW IN
SETTING A SENTENCING HEARING. BETTERMAN
WAS EVENTUALLY SENTENCED TO 7 YEARS IMPRISONMENT
WITH 4 OF THOSE SUSPENDED. ON APPEAL, BETTERMAN CLAIMED THAT THE 14-MONTH DELAY BETWEEN
CONVICTION AND SENTENCING VIOLATED HIS SIXTH AMENDMENT
SPEEDY TRIAL RIGHT. LAURIE, DID THE COURT AGREE? LEVENSON: NO. THE COURT DID NOT. THE COURT BASICALLY DIVIDED THE
CRIMINAL PROSECUTION OF CASES INTO 3 PHASES. IT SAID THAT IN THE FIRST PHASE,
WHICH IS THE PRE-CHARGE PHASE, A DEFENDANT’S RIGHTS
ARE PROTECTED BY STATUTE OF LIMITATIONS. THE SECOND PHASE, WHICH IS POST-CHARGES UNTIL
THE TIME OF TRIAL, THAT’S WHAT’S PROTECTED BY
THE SPEEDY TRIAL CLAUSE. AND THEN FINALLY
THAT THIRD PHASE FROM THE CONVICTION
BY THE JURY OR A GUILTY PLEA UNTIL SENTENCING, THAT’S TO BE PROTECTED BY
THE DUE PROCESS RIGHTS, NOT BY SPEEDY TRIAL. AND THE DEFENDANT COULD ARGUE
THAT PERIOD OF TIME WAS CONSTITUTIONALLY EXCESSIVE. LEE: AND THE COURT SAID THAT
IN AN APPROPRIATE CASE, DUE PROCESS MAY PROVIDE
THE SOURCE OF SOME SORT
OF “TAILORED RELIEF.” UM, WHICH PRESUMABLY IS
SOME KIND OF AN ORDER TO ENTER A SENTENCE WITHIN
A CERTAIN PERIOD OF TIME. BUT THE PROBLEM HERE WAS THAT
BETTERMAN DIDN’T PRESERVE THAT DUE PROCESS
ARGUMENT IN FRONT OF THE SUPREME COURT. AND AS THE COURT SAID, THE SPEEDY TRIAL RIGHT
DOESN’T APPLY IN THE SENTENCING PHASE. CHEMERINSKY: JUSTICE SOTOMAYOR
WROTE A CONCURRING OPINION DIRECTED TO THE LOWER COURTS. SHE SAID, IF A LOWER COURT IS
HEARING A DUE PROCESS CHALLENGE TO DELAY, IT SHOULD APPLY
THE TEST OF BARKER VERSUS WINGO. AND THAT’S A 4-PART TEST THAT LOOKS AT THE LENGTH
OF THE DELAY, THE JUSTIFICATION DELAY,
THE DEFENDANT’S OBJECTIONS, AND THE DEGREE OF PREJUDICE
TO THE DEFENDANT. AND SHE SAID THE LOWER COURTS ARE ALREADY USING THIS
UNDER DUE PROCESS. WIGGINS: OK.
OUR FINAL 2 DECISIONS DEAL WITH THE SIXTH AMENDMENT’S
RIGHT TO COUNSEL. IN THE FIRST,
LUIS VERSUS UNITED STATES, WE HAVE A PLURALITY OPINION
WRITTEN BY JUSTICE BREYER FOR HIMSELF, THE CHIEF JUSTICE,
AND JUSTICES GINSBURG AND SOTOMAYOR. JUSTICE THOMAS CONCURRED IN
THE JUDGMENT, AND JUSTICES KENNEDY, ALITO,
AND KAGAN ALL DISSENTED. SO, EVAN, WHAT WERE THE FACTS
IN QUESTION BEFORE THE COURT? LEE: LUIS WAS CHARGED
BY A GRAND JURY WITH HEALTH CARE FRAUD AND SOME RELATED CRIMES. THE GOVERNMENT SAID THAT SHE’D
MADE NEARLY $45 MILLION FROM HER CRIME AND THAT SHE’D ALREADY SPENT
MOST OF IT. THE GOVERNMENT HOPED
TO PRESERVE THE $2 MILLION THAT LUIS
STILL HAD IN ORDER TO COVER RESTITUTION
AND OTHER CRIMINAL PENALTIES IN THE EVENT THAT SHE WAS
CONVICTED. AND THESE KINDS OF FUNDS ARE
CALLED CRIMINAL FORFEITURES. AND THEY CAN INCLUDE ASSETS
NOT RELATED TO THE CRIME AS WELL AS TAINTED ASSETS. UM, SO IN ORDER TO PRESERVE
THE $2 MILLION, THE GOVERNMENT SOUGHT
A PRETRIAL ORDER TO KEEP HER FROM–AND THIS IS
THE LANGUAGE OF THE ORDER– “DISSIPATING OR OTHERWISE
DISPOSING OF ASSETS “REAL OR PERSONAL UP TO
THE EQUIVALENT VALUE OF THE FEDERAL HEALTH CARE
FRAUD.” IN OTHER WORDS,
UP TO $45 MILLION. UH, NOW, BOTH SIDES AGREED THAT
THE ORDER WOULD PREVENT LUIS FROM SPENDING HER OWN FUNDS UNRELATED
TO HER CRIMINAL ACTIVITY TO HIRE COUNSEL TO DEFEND HER. SO THE QUESTION BEFORE
THE COURT WAS WHETHER THE PRETRIAL RESTRAINT
OF A CRIMINAL DEFENDANT’S LEGITIMATE, UNTAINTED ASSETS
THAT WERE NEEDED TO RETAIN COUNSEL OF CHOICE VIOLATED THE FIFTH
AND SIXTH AMENDMENTS. WIGGINS: SO WHAT DID
THE PLURALITY SAY? LEE: IT RULED IN FAVOR OF LUIS
ON TWO DIFFERENT GROUNDS. FIRST OF ALL, IT DISTINGUISHED
THIS CASE FROM A COUPLE OF PREVIOUS
DECISIONS– CAPLIN & DRYSDALE
VERSUS UNITED STATES AND THEN MONSANTO
VERSUS UNITED STATES. THE COURT SAID THAT LUIS’ CASE
WAS DIFFERENT BECAUSE THE ASSETS
THAT WERE FROZEN IN THOSE TWO PREVIOUS CASES WERE
TRACEABLE TO THE ALLEGED CRIMES. WIGGINS:
WHAT WAS THE SECOND REASON? LEVENSON: THE SECOND REASON,
WE’RE BASICALLY LOOKING AT THE COMPETING INTERESTS
IN THE CASE. ON ONE HAND, YOU HAVE LUIS’ SIXTH AMENDMENT
RIGHT TO COUNSEL. IT’S AGAINST THE SECOND, WHICH IS THE GOVERNMENT’S
INTEREST IN OBTAINING RESTITUTION FOR THE VICTIMS. BUT THE FIRST ONE,
THAT RIGHT TO COUNSEL, IS CONSTITUTIONALLY PROTECTED. AND THE COURT ALSO LOOKED BACK
AT COMMON LAW, LEGAL TRADITION, AND FOUND THAT, BASICALLY,
THE RIGHT TO THE FORFEITED GOODS WAS TRUMPED BY THE
CONSTITUTIONAL RIGHT TO COUNSEL. THE PLURALITY NOTED THAT THERE
HAD ALREADY BEEN TOO MUCH EROSION OF THE RIGHT
TO COUNSEL, THAT THIS WOULD ADD BURDEN
TO FEDERAL PUBLIC DEFENDERS, WHO ARE ALREADY OVERWORKED
AND UNDERPAID, AND THAT, FRANKLY, IT FELT
CONFIDENT THAT THE PROSECUTORS
AND THE COURTS, IF YOU FOLLOW THAT CLEAR LINE
OF ALLOWING THE SEIZURE OF TAINTED ASSETS
BUT NOT UNTAINTED ASSETS, WOULD BE A WORKABLE STANDARD. WIGGINS: AND WHAT ABOUT
THE CONCURRENCE, EVAN? LEE: JUSTICE THOMAS CONCURRED
IN THE JUDGMENT, BUT HE REJECTED THE PLURALITY’S
BALANCING TEST. HE RELIED INSTEAD ON
THE LACK OF A COMMON LAW HISTORY OF THE GOVERNMENT SEIZING
UNTAINTED ASSETS BEFORE TRIAL. WIGGINS: AND THE DISSENT, ERWIN? CHEMERINSKY: THERE WERE TWO
DISSENTING OPINIONS. JUSTICE KENNEDY WROTE
A DISSENT JOINED BY JUSTICE ALITO. HE SAID THAT HE BELIEVED THAT
THE CAPLIN & DRYSDALE AND MONSANTO CASES RESOLVED
THIS ISSUE. HE EXPRESSED GREAT CONCERN THAT
THIS WOULD GIVE DEFENDANTS AN INCENTIVE TO DISSIPATE
THEIR ASSETS SO THEY WOULDN’T BE AVAILABLE
FOR RESTITUTION. JUSTICE KAGAN WROTE A SEPARATE
DISSENTING OPINION, MAKING BASICALLY
THE SAME POINTS. WIGGINS: OK. WELL, FINALLY, WE WANT TO TELL
YOU ABOUT THE DECISION IN UNITED STATES
VERSUS BRYANT. RESPONDING TO THE HIGH
INCIDENCE OF DOMESTIC VIOLENCE AGAINST NATIVE AMERICAN WOMEN, CONGRESS PASSED A LAW IN 2005
AIMED AT SERIAL OFFENDERS. THE LAW MADE IT A FEDERAL CRIME FOR ANY PERSON TO COMMIT
A DOMESTIC ASSAULT WITHIN INDIAN COUNTRY
IF THAT PERSON HAS AT LEAST TWO PRIOR
FINAL CONVICTIONS FOR DOMESTIC VIOLENCE RENDERED BY FEDERAL, STATE, OR INDIAN
TRIBAL COURT PROCEEDINGS. MICHAEL BRYANT HAD MULTIPLE
TRIBAL COURT CONVICTIONS FOR DOMESTIC VIOLENCE,
FOR WHICH HE WAS IMPRISONED BUT NEVER FOR MORE THAN A YEAR. BRYANT MAINTAINED THAT
HIS TRIBAL-COURT CONVICTIONS DID NOT COUNT UNDER FEDERAL LAW BECAUSE HE WAS NOT REPRESENTED
BY COUNSEL IN THOSE PROCEEDINGS. WHILE THE SIXTH AMENDMENT
GUARANTEES APPOINTED COUNSEL
TO INDIGENT OFFENDERS IN FEDERAL AND STATE COURT, TRIBAL COURTS,
UNDER A SEPARATE SOVEREIGN, ONLY REQUIRE APPOINTMENT OF
COUNSEL IF A SENTENCE OF MORE
THAN ONE YEAR IS TO BE IMPOSED. SO BRYANT’S UNCOUNSELED
CONVICTIONS IN TRIBAL COURT FOR TERMS OF LESS THAN ONE YEAR
WERE VALID WHEN ENTERED AND COULD BE USED
AS PREDICATE OFFENSES UNDER CONGRESS’ 2005
ANTI-DOMESTIC VIOLENCE LAW, ACCORDING TO THE SUPREME COURT
IN THIS DECISION. NOW, HERE’S JOHN COOKE
WITH SOME FINAL WORDS. COOKE: THAT’S OUR PROGRAM FOR
THIS YEAR. WE HOPE YOU FOUND IT USEFUL
AND INTERESTING. PLEASE TAKE THE TIME TO FILL OUT
THE ONLINE EVALUATION FORM THAT YOU’LL FIND
ON THE SAME PAGE AS THE WRITTEN MATERIALS AT
OUR WEBSITE. IT’S THE ONLY WAY FOR
US TO KNOW HOW WE CAN IMPROVE THIS PROGRAM AND MAKE IT EVEN MORE
USEFUL FOR YOU IN YOUR WORK FOR THE COURTS. I THANK OUR FACULTY FOR, AGAIN,
HELPING US EXAMINE THESE DECISIONS AND EVERYONE HERE AT
THE FEDERAL JUDICIAL CENTER RESPONSIBLE FOR
PRODUCING THIS PROGRAM. I’M JOHN COOKE.
THANK YOU FOR WATCHING.

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