Posted On: June 30, 2010

Developing an Addition to Your Blackberry in 13 Easy Steps

We recemty receoved the following e-mail from the ABA Judicial Division and are grateful for the opportunity to share this column by Judge Dixon with you our colleagues and friends.:

Judge Herbert Dixon's technology column, Developing an Addition to Your BlackBerry in 13 Easy Steps, is available free to the general public at

. The Judges' Journal staff and Editorial Board have concluded that certain articles have a short shelf life and are more valuable for generating interest in the Judicial Division if they are freely to the public rather than listing the articles for purchase. Please share the article with your colleagues and friends as a way to generate interest in the Judicial Division

Posted On: June 30, 2010

Second Circuit Court of Appeals Overturns Death Sentence for Killer of Two New York Police Department Officers in 2003

Ronell Wilson (Also known as Rated R) Defendant Appellant 07-1320-or

The New York Times has reported in an afternoon Alert that the U.S. Second Circuit Court of Appeals ruled on Wednesday April 30, 2010 that Ronell Wilson, convicted of killing two undercover police detectives on Staten Island in 2003, must be resentenced because of legal errors by the prosecutor and judge during his trial,the Associated Press reported. When he was sentenced in 2007, Mr. Wilson became the first federal defendant to receive the death penalty in New York City in more than five decades.

U.S. v. Ronell Wilson et. al. 07-1320-or

Posted On: June 30, 2010

ABA Case Update: U.S. Supreme Court Case Related to Criminal Justice

A Service from the ABA Criminal Justice Section (CJS) *,*


United States Supreme Court Decision: Decided: June 28, 2010

In a 5-4 decision, the Supreme Court held that the Fourteenth Amendment of the US Constitution protects an individual’s Second Amendment right to keep and bear arms from interference by state or local gun control legislation.

In 2008, the Court ruled in District of Columbia v. Heller, 554 U. S. ___ that the Second Amendment right for an individual to keep and bear arms for self-defense was infringed upon by a District of Columbia gun control law banning the possession of guns in the home. Immediately following the Heller ruling, this federal suit was filed in Chicago, alleging that the city’s law banning possession of unregistered handguns was violating the Second and Fourteenth Amendments. Petitioners argued that the Second Amendment right to keep and bear arms was protected by both the Privileges or Immunities clause and the Due Process clause in the Fourteenth Amendment. Noting that the Heller ruling had refrained from deciding whether the Second Amendment applied to state and local legislation, the District Court upheld the Chicago law while citing precedent from several previous handgun ban cases. The Seventh Circuit Court of Appeals affirmed.

The Court’s decision traced the evolution of previous Supreme Court rulings which sought to determine which elements within the Bill of Rights were protected by the Fourteenth Amendment against state and local infringement. The Court’s 1873 decision in Slaughter-House Cases, 16 Wall. 36, called for a very narrow view of the Fourteenth Amendment’s applicability to state law. Using Slaughter-House as precedent, the Court decided during the late 19th century in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535 that Second Amendment rights were not covered under the Fourteenth Amendment. Over time, the Court gradually widened its interpretation, later holding that an element in the Bill of Rights that was “fundamental to our Nation’s particular scheme of ordered liberty and system of justice” would be protected by the Fourteenth Amendment (Duncan v. Louisiana, 391 U. S. 145, 149). The Court also cited Heller’s holding that the right to self-defense, protected by the Second Amendment, was held to be a “fundamental” right as defined in Duncan. In addition, the Court noted that Congressional debates over the Fourteenth Amendment’s ratification “referred to the right to keep and bear arms as a fundamental right deserving of protection.” Accordingly, the Court held that the Fourteenth Amendment protects the Second Amendment right to keep and bear arms against infringement by state or local legislation.

Judgment reversed and remanded.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

Decision available at:

Authored by: Caleb W. Skeath, CJS Intern
*We both acknowledge and appreciate the efforts and dedication of the CJS Legal Intern Caleb W. Skeath in preparing the above commentary.

Posted On: June 30, 2010

Findlaw Case Summaries: Criminal Law and Procedure - June 21-25, 2010

To view the full-text of cases you must sign in to All summaries are produced by Findlaw

June 21-25, 2010.

U.S. Supreme Court, June 21, 2010
Holder v. Humanitarian Law Project, No. 08–1498
In a constitutional challenge to 18 U.S.C. section 2339B(a)(1), which prohibited knowingly providing material support or resources to a foreign terrorist organization, the Ninth Circuit's affirmance of partial judgment for plaintiffs is reversed in part where the material support statute was constitutional as applied to the particular forms of support that plaintiffs sought to provide to foreign terrorist organizations. .

U.S. Supreme Court, June 24, 2010
Skilling v. US, No. 08–1394
The Fifth Circuit's affirmance of defendant Jeffrey Skilling's honest-services fraud conviction is affirmed in part where pretrial publicity and community prejudice did not prevent Skilling from obtaining a fair trial, and he did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. However, the judgment is vacated in part where 18 U.S.C. section 1346, which proscribes fraudulent deprivations of "the intangible right of honest services," was properly confined to cover only bribery and kickback schemes, and Skilling's alleged misconduct entailed no bribe or kickback. .

U.S. Supreme Court, June 24, 2010
Black v. US, No. 08–876
The Seventh Circuit's affirmance of defendants' honest-services mail fraud convictions is vacated where: 1) per the ruling today in Skilling v. US, the honest-services component of the federal mail-fraud statute, 18 U.S.C. section 1346, criminalizes only schemes to defraud that involved bribes or kickbacks, and that holding renders the honest-services instructions given in this case incorrect; and 2) by properly objecting to the honest-services jury instructions at trial, defendants secured their right to challenge those instructions on appeal, and they did not forfeit that right by declining to acquiesce in the government-proposed special-verdict forms. Read more...

Continue reading " Findlaw Case Summaries: Criminal Law and Procedure - June 21-25, 2010 " »

Posted On: June 30, 2010

Findlaw Case Summaries: Constitutional Law - June 21-25, 2010

To view the full-text of cases you must sign in to All summaries are produced by Findlaw

June 21-25, 2010.

U.S. Supreme Court, June 21, 2010
Holder v. Humanitarian Law Project, No. 08–1498
In a constitutional challenge to 18 U.S.C. section 2339B(a)(1), which prohibited knowingly providing material support or resources to a foreign terrorist organization, the Ninth Circuit's affirmance of partial judgment for plaintiffs is reversed in part where the material support statute was constitutional as applied to the particular forms of support that plaintiffs sought to provide to foreign terrorist organizations. Read more...

U.S. Supreme Court, June 24, 2010
Doe v. Reed, No. 09–559
In a First Amendment challenge to the Washington Public Records Act based on its provision permitting the disclosure of referendum petition signers' names and addresses, the Ninth Circuit's reversal of the district court's preliminary injunction in favor of plaintiffs is affirmed where disclosure of referendum petitions does not as a general matter violate the First Amendment.

U.S. 1st Circuit Court of Appeals, June 21, 2010
Rodriguez-Garcia v. Miranda-Marin, No. 08-2319
In a municipal employee's suit claiming that she was transferred to another position in retaliation for testimony she gave before the Puerto Rico Government Ethics Office in violation of her rights under the First Amendment and Puerto Rico law, judgment of the district court is affirmed where: 1) the evidence presented at trial is sufficient to support a jury finding that plaintiff suffered an adverse employment action sufficient to support her section 1983 claim; 2) defendants would not have taken the same adverse employment action in the absence of her protected conduct; 3) the mayor was personally liable for retaliation under section 1983; 4) the municipality is liable under section 1983; 5) the court did not abuse its discretion in affirming the damages award in the amount of $350,000; and 6) the court's determination that plaintiff waived her Puerto Rico Law 115 claim was not an abuse of discretion.

Continue reading " Findlaw Case Summaries: Constitutional Law - June 21-25, 2010 " »

Posted On: June 25, 2010

ABA: U.S. Supreme Court Summaries - Mail Fraud and "Honest Services" - Three Cases

Supreme Court Case Summaries: Professor Rory Little’s Perspective

A Service from the ABA Criminal Justice Section,

These summaries are written by Professor Rory K. Little (, U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. They represent his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to members, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S.. Supreme Court Summaries – Criminal Cases June 24, 2010

Mail/Wire Fraud and “Honest Services” – Three cases:

Skilling v. United States,

Black v. United States,

Weyhrauch v. United Sates,

On June 24, the Court issued its long-awaited opinions in the trio of “honest services” mail and wire fraud cases. The Court (6-3) upheld the “honest services” statute, but limited it to schemes of “bribery and kickbacks.” Interestingly, in the lead case of former Enron CEO Jeff Skilling, the Court’s major effort was spent not on mail fraud, but on the pretrial-publicity juror bias claims that Skilling presented, and the Skilling opinion will stand more as a major decision in that constitutional area than on the statutory definition (which is changeable by Congress) of mail fraud. Each holding (due process and mail fraud) was a 6-3 vote, but different Justices were the dissenters on each. And, perhaps significantly or perhaps not, this is the first decision in which the two women on the Court disagreed in written opinions, Justice Ginsburg writing the majority and Justice Sotomayor dissenting on the due process-fair trial ruling.

The various Skilling opinions consume 114 pages. The Court also eclipses what probably was not a record of three days ago (the six-page syllabus in Humanitarian Law Prroject) with a nine-page syllabus here. Yes, there are a lot of pages here, but nine pages for an allegedly accessible “summary” of the opinion is, for the Court, pretty silly.

In Black, the Court applied its Skilling mail fraud ruling to hold that Conrad Black’s jury instructions were erroneous, and remanded for a harmless-error analysis (as it did in Skilling). The Court also reversed the Seventh Circuit’s ruling that Black had forfeited his jury instruction challenge by opposing the government’s more-precise special verdict form, and provides an important discourse on courts of appeal imposing sanctions that the Federal Rules of Criminal Procedure don’t specify, without notice.

Finally, in one sentence the Court simply vacated the Ninth Circuit’s ruling in Weyhrauch and remanded for further proceedings in light of Skilling.

Summaries of the various Justices’ opinions follow.

Continue reading " ABA: U.S. Supreme Court Summaries - Mail Fraud and "Honest Services" - Three Cases " »

Posted On: June 24, 2010

New York County District Attorney: New Policy Regarding Prosecution of Business Entities and Organizations

Manhattan District Attorney Cyrus R. Vance, Jr., has announced the District Attorney's Office's (DANY) new policy on the prosecution of businesses and organizations. Below are links to the DANY Press Release announcing the new policy and the May 27, 2010 DANY memorandum which contains the actual policy Press Release June 1, 2010 Memorandum "Considerations in Charging Organizations" May 27, 2010

Posted On: June 24, 2010

ABA Case Updates: U.S. Supreme Court Cases Related to Criminal Justice Decided June 24, 2010

A Service from the ABA Criminal Justice Section (CJS),*

United States Supreme Court Decisions: Decided: June 24, 2010

1)Black v. United States No. 08-076

2)Skilling v. United States

3)Magwood v. Patterson

Black v. United States No. 08-076

In a 9-0 decision today, the Supreme Court held that a criminal defendant does not forfeit his or her objection to an honest-services fraud jury instruction simply by (1) opposing the Government’s request to use special verdict forms, or (2) failing to make his or her own request for special verdict forms.

Defendant-petitioners in this case—executives of the publicly-held U.S. company Hollinger International, Inc. (Hollinger)—were originally indicted on three counts of mail fraud under 18 U.S.C. §§ 1341, 1346, as well as other federal crimes. During trial, the Government asserted two alternative mail fraud theories: (1) that Petitioners stole millions from Hollinger by fraudulently paying themselves bogus “noncompetition fees,” and (2) that by failing to disclose those fees, Petitioners failed to provide Hollinger with their honest services. Prior to the commencement of jury deliberations, the Government suggested the use of special verdict forms (interrogatories) in order to allow the jury to specify which theory they used as the basis of their verdict. Petitioners refused the use of special verdict forms, opting instead for the use of general verdict forms. Ultimately, the Government agreed.

Prior to deliberation, the District Court instructed the jury on both of the Government’s alternative theories. With regard to the second theory of honest-services fraud, the District Court explained to the jury (over Petitioners’ timely objection) that “a person commits honest-services fraud if he ‘misuse[s] his position for private gain for himself and/or a co-schemer’ and ‘knowingly and intentionally breach[es] his duty of loyalty.’” The jury ultimately returned guilty verdicts on all three mail fraud counts, recording their decision on general verdict forms.

On appeal, Petitioners asserted that the honest-services fraud jury instruction was invalid. Based on the rule established in Yates v. United States, a general verdict can be set aside “where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” 354 U.S. 298, 312 (1957). The Court of Appeals for the Seventh Circuit ruled that by opposing the Government’s suggestion for the use of special interrogatories and by failing to make their own request for special interrogatories, Petitioners had forfeited their right to object to the honest-services fraud instructions given to the jury.

The Supreme Court held that Petitioners did not need to request special interrogatories or acquiesce in the Government’s request for discrete findings by the jury in order to maintain their challenge on appeal. Because Petitioners made a timely objection at trial, they adequately preserved their right to challenge the jury instructions. Moreover, the Court of Appeals effectively sanctioned Petitioners without providing notice (via a federal law or the Federal Rules of Criminal Procedure) that resisting the Government’s special verdict request would result in forfeiture of their right to challenge the honest-services fraud jury instructions. According to Criminal Rule 57(b), no such sanction can “be imposed for noncompliance with any requirement not in federal law [or] federal rules . . . unless the alleged violator was furnished with actual notice of the requirement before the noncompliance.”

Judgment reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment.

Decision available at:

By: Ashley N. Southerland, CJS Legal Intern

Skilling v. United States No. No. 08–1394
United States Supreme Court Decision: Decided: June 24, 2010

Today, the Supreme Court denied Jeffrey Skilling’s arguments that pretrial publicity prevented him from receiving a fair trial, but held that the jury improperly convicted him on the charge of conspiracy to commit “honest services” wire fraud. The vote was unanimous in regard to the “honest services” question, although three justices would have ruled that the statute is unconstitutional.

Skilling, former Enron CEO, had been previously charged with 25 substantive counts of securities fraud, wire fraud, making false representations and insider trading. In November 2004, Skilling was denied a change of venue despite hostility in Houston surrounding the downfall of Enron; the District Court contending that evidence of hostility did not warrant a presumption that Skilling would be unable to obtain a fair trial. After a four month trial in Houston, the jury found Skilling guilty of 19 counts, including honest-services fraud and conspiracy but not guilty of 9 insider-trading counts.

On appeal Skilling made two arguments. First, that pretrial publicity and community prejudice prevented him from obtaining a fair trial. Second, he contended that the jury improperly convicted him of conspiracy to commit honest-services wire fraud contending that 18 U. S. C. § 1346 (1988) was unconstitutionally vague in context.

In regards to jury contamination the court held that the pretrial publicity did not establish a presumption of juror prejudice or that he was convicted by a biased jury. Utilizing the Rideau v. Louisiana standard for jury contamination due to pretrial publicity the court noted distinct differences in the instant case. 373 U.S. 723 (1963). First, Houston is the 4th largest city and suggestions that twelve unbiased jurors were not available were difficult to sustain. Second, the court noted that unlike the swift trial following the bank robbery in Rideau, there was a four year lapse between the highly public Enron bankruptcy and Skilling’s trial. Finally, the court noted that mere evidence of negative media attention, even in the magnitude evident before the Enron trial, is not enough to inevitably lead to an unfair trial. The court further contended that there was no actual jury prejudice shown; describing the fair and balanced voir dire process utilized that would have adequately detected and defused juror prejudice.

While sustaining the constitutionality of §1346 the court still reversed Skilling’s honest-services wire fraud convictions. The “honest services” theory of fraud notes that an offender may profit from a fraudulent scheme by loss of the offenders’ “honest services,” creating actionable harm—despite no loss of actual property or money. The court noted that as codified in §1346 this honest services fraud is not unconstitutionally vague on its face, but should be read strictly to reach only bribery and kickback schemes. Under this strict interpretation, Skilling did not violate §1346 since the Government charged that Skilling conspired to defraud Enron’s shareholder’s by misrepresenting financial data, but never alleged that he solicited or accepted side payments from a third party in exchange for these misrepresentations. Whether or not the reversal on the conspiracy count would touch the other convictions, or whether the error is harmless, is to be determined upon remand.

Judgment affirmed in part, vacated in part, and remanded.

Additionally, in a per curiam decision the court vacated judgment in Weyhrauch v. United States (No. 08–1196) and the remanded to the 9th Circuit for further consideration in light of the Skilling decision.

GINSBURG, J., delivered the opinion of the Court, Part I of which was joined by ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, and ALITO, JJ., Part II of which was joined by ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., and Part III of which was joined by ROB-ERTS, C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined, and KENNEDY, J., joined except as to Part III. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which STEVENS and BREYER, JJ., joined..

Decision available at:

By: Caitlin E. Huggins, CJS Legal Intern

Magwood v. Patterson, No. 09-158

United States Supreme Court Decision: Decided: June 24, 2010

In a 5-4 decision today, the Supreme Court reversed the Eleventh Circuit’s holding that the petitioner’s challenge to his new death sentence was an unreviewable “second or successive” change under 28 U.S.C. § 2244(b) since he had the opportunity to present the same challenge to his original death sentence. Instead, the Court ruled that because the petitioner’s habeas application “challenges a new judgment for the first time,” it is not “second or successive” under the statute.

Petitioner Billy Joe Magwood was indicated by a grand jury for the murder of an on-duty sheriff, a capital offense under Alabama Code § 13-11-2(a)(5) (1975). While incarcerated for a drug offense, the petitioner, who had a long history of mental illness, murdered a sheriff because he believed that the sheriff had imprisoned him without cause. Alabama courts affirmed the death sentence, and the petitioner filed a writ of habeas corpus. After the District Court ordered that he be released or resentenced, the state trial court again sentenced him to death. He filed a second federal habeas application, challenging this new sentence on the grounds that he previously did not receive fair warning that his conduct was death eligible under Alabama law and that his attorney was ineffective during resentencing. After the District Court conditionally granted the writ, the Eleventh Circuit reversed, holding that the petitioner’s challenge to his new death sentence was an unreviewable “second or successive’ challenge per 28 U.S.C. 2244(b) because he had the option to raise his fair-warning claim in his first habeas application.

The underlying question was whether the petitioner’s application to challenge his death sentence, as imposed per the District Court’s resentencing, is subject to § 2244(b)’s “second or successive” habeas application constraints. The State contended that although the phrase “second or successive” applies to “application[s],” it “is a claim-focused statute,” and that “[c]laims, not applications, are barred by § 2244(b).” They contended that the phrase implies that “a prisoner is entitled to one, but only one, full and fair opportunity to wage a collateral attack,” and that the petitioner’s fair-warning claim was successive because he had an opportunity to raise it in his first application. The petitioner contended that § 2244(b) applies only to a “second or successive” application challenging the same state-court judgment, and therefore, his resentencing led to a new judgment. Thus, his application challenging the new judgment was not “second or successive.” The court agreed with the petitioner and found that the phrase “second or successive” refers to all § 2254 applications filed second or successively in time.

Reversed and remanded.

THOMAS, J., delivered the opinion of the Court, except as to Part IV– B. SCALIA, J., joined in full, and STEVENS, BREYER, and SOTOMAYOR, JJ., joined, except as to Part IV–B. BREYER, J., filed an opinion concurring in part and concurring in the judgment, in which STEVENS and SOTOMAYOR, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and GINSBURG and ALITO, JJ., joined.

Case is available at:

By: Stacey L. Sklaver, CJS Legal Intern
* We both acknowledge and appreciate the efforts and dedication of the CJS Legal Interns, Ashley N Southerland, Caitlin E. Huggins, and Stacey L Sklaver in preparing the above commentary.

Posted On: June 23, 2010

Findlaw Case Summaries: Criminal Law and Procedure

To view the full-text of cases you must sign in to All summaries are produced by Findlaw

June 14 - 18, 2010.

U.S. Supreme Court, June 14, 2010
Dolan v. US, No. 09–367
In a prosecution for assault resulting in serious bodily injury, the Tenth Circuit's affirmance of the district court's untimely restitution order is affirmed where a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution, at least where, as here, that court made clear prior to the deadline's expiration that it would order restitution, leaving open (for more than 90 days) only the amount.

U.S. Supreme Court, June 14, 2010
Holland v. Fla., No. 09–5327
In a capital habeas matter, the Eleventh Circuit's affirmance of the denial of petitioner's habeas petition is reversed and remanded where: 1) 28 U.S.C. section 2244(d), the AEDPA statute of limitations, is subject to equitable tolling in appropriate cases, and the per se standard employed by the Eleventh Circuit was too rigid; and 2) the district court incorrectly rested its ruling not on a lack of extraordinary circumstances (which may well be present), but on a lack of diligence. .

U.S. Supreme Court, June 14, 2010
Carachuri-Rosendo v. Holder, No. 09–60
The Fifth Circuit's denial of petitioner's petition for review of the BIA's order holding that petitioner was not eligible for cancellation of removal is reversed where second or subsequent simple possession offenses are not aggravated felonies under 8 U.S.C. section 1101(a)(43) when, as in this case, the state conviction was not based on the fact of a prior conviction

Continue reading " Findlaw Case Summaries: Criminal Law and Procedure " »

Posted On: June 23, 2010

Findlaw Case Law Summaries: Constitutional Law

To view the full-text of cases you must sign in to All summaries are produced by Findlaw

June 14 - 18, 2010.

U.S. Supreme Court, June 17, 2010
Stop the Beach Renourishment, Inc. v. Fla. Dept. of Env. Protection, Inc., No. 08–1151
In an action challenging the Florida Department of Environmental Protection's approval of permits to restore a portion of beach eroded by several hurricanes, the Florida Supreme Court's holding that the approval of the permits did not unconstitutionally deprive plaintiffs of littoral rights without just compensation is affirmed where there could be no taking unless petitioner could show that, before the Florida Supreme Court's decision, littoral property owners had rights to future accretions and to contact with the water superior to the State's right to fill in its submerged land.

U.S. Supreme Court, June 17, 2010
City of Ontario v. Quon, No. 08–1332
In an action by police officers against the city employing them, claiming that defendants violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of plaintiff-officer’s pager messages, the Ninth Circuit's reversal of summary judgment for defendants is reversed where, because the city's search of plaintiff’s text messages was reasonable, defendants did not violate plaintiffs’ Fourth Amendment rights.

U.S. 1st Circuit Court of Appeals, June 17, 2010
Cortes-Reyes v. Salas-Quintana, No. 08-2210
In a political discrimination suit brought by thirty-six former Ranger cadets of the Puerto Rico Department of Natural and Environmental Resources, claiming they were terminated due to their political affiliation with the New Progressive Party, district court's judgment is affirmed in part and vacated in part where: 1) jury's finding of a due process violation and a related award of compensatory damages is vacated as the defendants were entitled to qualified immunity on the due process claim; and 2) jury's finding of a First Amendment violation and the award of nominal and punitive damages are affirmed

Continue reading " Findlaw Case Law Summaries: Constitutional Law " »

Posted On: June 23, 2010

Can Some Forms of Grand Larceny Be Viewed as Hate Crimes?

Apparently prosecutors in Queens County New York think so. This month Queens prosecutors have charged two women with stealing more than $30,000 from three elderly men they had befriended separately. The women were charged with grand larceny as a hate crime.

This strategy of treating some hate crimes as larcenous behavior is considered a novel approach. Indeed Kathleen Hogan, president of the New York State District Attorneys Association and Scott Burns, executive director of the National District Attorneys' Association have both said they had not heard of another jurisdiction using this Queens County approach to hate crimes.

According to a New York Times article by Anne Barnard, A Novel Twist for Prosecution of Hate Crimes, "the legal thinking behind the novel method is that New York's hate crime statute does not require prosecutors to prove defendants 'hate' the group the victim belongs to, that they commit the crime because of some belief, correct or not, they hold about the group."

This is different than the standard public perception of hate crimes as resulting an animus against or "hate" of a particular ethnicity, as described in "Hate Crimes and Revealing Motivation Through Racial Slurs" as posted in the September 2009 The Jury Expert: The Art As Science of Litigation Advocacy, September 2009, "hate" of a particular sexual orientation, or similar strong, negative feelings toward a particular individual or group.

Posted On: June 22, 2010

ABA Criminal Justice Section: U.S. Supreme Court Brief Prepared by Professor Rory Little

Holder (Attorney General) v. Humanitarian Law Project et. al. 08-1498

A Service from the ABA Criminal Justice Section,

This summary has been created by Professor Rory K. Little (, U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S. Supreme Court Summaries – Criminal Cases June 21, 2010

Holder (Attorney General) v. Humanitarian Law Project et al.,

On June 21, although the Court reversed the Ninth Circuit in all four decisions it issued (!), only one was a criminal case. Humanitarian Law Project addresses the long-running attack on the “material support to a foreign terrorist organization” criminal statute, 18 U.S.C. § 2339B. Setting a record (I think) for the longest “syllabus” ever (six tiny-type pages), the Court upheld the statute, 6-3, as applied to the facts before it, while reserving decision as to possible future “as applied” questions based on hypotheticals not presented by these plaintiffs. Interestingly, Justice Stevens did not join Justices Breyer, Ginsburg, and Sotomayor in dissent, and a paragraph near the end of the majority opinion (pages 33-34) addressed to a hypothetical statute “prevent[ing] American citizens from training the Japanese Government” during World War II, seems self-consciously to be designed to keep Justice Stevens in the majority fold. It worked.

FIRST AMENDMENT (criminal statute prohibiting provision of “material support” to foreign terrorist organizations upheld in the face of First Amendment and Fifth Amendment vagueness challenges).

Holder (Attorney General) v. Humanitarian Law Project et al., No. 08-1498, 130 S.Ct. ___ (June 21, 2010), reversing in part, affirming in part 552 F.3d 916 (9th Cir. 2009).

Holding (6-3): Statute criminalizing provision of “material support to foreign terrorist organizations” upheld as not unconstitutionally vague or violative of the First Amendment, even as applied to certain “training” activities for such organizations directed at peaceful activities, so long as such support is “independent” and not “directed by or coordinated with” the foreign terrorist organization. Constitutional objections regarding other, hypothetical applications to other activities or speech are reserved.

Facts: In 1996 as part of the AEDPA statute, Congress made it a crime to provide “material support or resources” to a designated foreign terrorist organization (“FTO”). In response to this and other constitutional challenges, Congress subsequently amended the statute twice, to more clearly define “material support” as including “services,” “personnel,” “expert advice or assistance,” and “training … designed to impart a specific skill as opposed to general knowledge;” and to require “knowledge” of the “terrorist designation or the group’s commission of terrorist acts.” Congress also made clear that “individuals who act entirely independently of the foreign organization” were not subject to prosecution, at least under the “personnel” part of the statute.

In 1997, the Secretary of State designated 30 groups as FTOs, Two of the groups filed this challenge to the statute (one group also separately challenged its FTO designation, which was upheld by the DC Circuit and is not at issue here). Both groups alleged that they also engage in non-terrorist “political advocacy” and “humanitarian activities,” and other plaintiffs here alleged that they wanted to assist these organizations in only their lawful, non-violent activities. Specifically, they wanted to provide training to the FTOs “on how to use … international law to peacefully resolve disputes;” “how to petition … the United Nations for relief,” and “political advocacy” on behalf of certain groups allegedly oppressed by the governments of Sri Lanka and Turkey. The plaintiffs alleged that the material support statue was unconstitutionally vague, in that they could not determine which if any of their activities would violate the statute; and also violated the First Amendment as chilling their rights to speech and to association. In a series of opinions issued over a decade, the district court and Ninth Circuit ruled that the statute was unconstitutionally vague insofar as “training, service, or expert advice or assistance” reached “protected advocacy,” but that the statute was not overbroad under the First Amendment.

Roberts (joined by Stevens, Scalia, Kennedy, Thomas, and Alito): First, the lawsuit is justiciable (as one might hope after 12 years of litigation)” as a preenforcement review of a criminal statute that presents “a credible threat of prosecution.” Second, we cannot interpret the statute as limited only to persons who provide material support with a specific intent to further the FTO’s terrorist activities, because it would be “inconsistent with the text of the statute.” Congress expressly added a mental state of “knowledge” to the statute, and we cannot rewrite that merely to “avoid” the constitutional issues (as the dissent suggests).

Third, the Ninth Circuit “did not adhere to [our previously announced] principles” for a due process vagueness attack. Such a challenge cannot be “merged” with the First Amendment issues, and cannot be based on hypothetical facts when the plaintiff “engages in some conduct that is clearly proscribed.” “That rule makes no exception for conduct in the form of speech.” We think that as clarified by Congress’s amendments, the statute “provides a person of ordinary intelligence fair notice of what is prohibited.” At bottom, plaintiffs simply disagree with application of the statute against their proposed training and advocacy activities – but those activities are plainly within the compass of the statute. The government concedes that mere membership in an FTO is not prohibited. [Ed. Note: why this is true is unanalyzed by the majority as well as the dissent – presumably the government had to make this concession to avoid running afoul of the Communist Party membership cases of the 1950s.] And “independent advocacy” is not proscribed by the statute; providing service or personnel is prohibited only if the person or service is “under th[e FTO’s] direction or control,” which includes “in coordination with” the FTO. Hypothetical line-drawing difficulties under these definitions are simply not before the Court. They involve “sheer speculation” and “must await a concrete fact situation” (Zemel v. Rusk, 381 U.S. 1 (1965).) The statute is not impermissibly vague on these facts.

The statute also does not violate the First Amendment. It “does not prohibit independent advocacy or expression of any kind.” It does not bar association since it does not prohibit membership. And while it may reach some speech, it is “carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” We agree that a “more demanding standard” of review than O’Brien (1968) applies to this statute, because the statute clearly reaches some speech. But it survives that review.

“Everyone agrees” that the objective of combating terrorism is a compelling interest. But we disagree with the plaintiffs that this statute is not “necessary” to further that interest, and we disagree with the dissent that more “specific” facts are necessary to sustain it. In this area, the judiciary should give the other branches deference, without abandoning our independent role. Congress and the Executive have made findings that “any contribution” to an FTO ultimately “facilitates” the organization and its objectives. Even teaching peaceful negotiation and petitioning concepts could be used, by an FTO to further its unlawful objectives. Congress was “justified” in rejecting the view that “ostensibly peaceful aid would have no harmful effects.” It can help “legitimate” a terrorist organization, and also interfere with the United States’ diplomatic and foreign affairs efforts. “Common sense” as well as the evidence supports this view (footnote 6). Congress has indicated that it is “conscious of its own responsibility” to consider constitutional concerns. It has drawn the statute narrowly, and allowed FTOs to judicially challenge their designation. It has excluded the provision of medicine and religious materials from the statute. But “the particular speech plaintiffs propose to undertake” is “wholly foreseeable” as potentially useful to the FTOs, and “the dissent fails to address the real dangers at stake.”

Now, “all this is not to say that any future applications” of the statute “will survive First Amendment scrutiny.” But on the factual allegations presented, the statute does not violate the First Amendment. Finally, Congress may rationally distinguish aid to terrorist organizations from aid to other types of groups. The Constitution proclaims that government is established to “provide for the common defence.” This statute pursues that objective consistently with the Constitution.

Breyer dissenting (with Ginsburg and Sotomayor): I agree that the statute is not unconstitutionally vague. But I don’t think the government has borne the heavy burden required to justify criminalizing speech activities. There is no hard evidence that peaceful activities of the sort proposed here actually benefit an FTO, as opposed to leading toward peaceful resolutions. I would interpret the statute (based on the word “material”) to apply “only when the defendant knows or intends that [his] activities will assist the organization’s terrorist activities.” Otherwise, “the risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent,” and “there is no natural stopping point” to the Court’s “legitimizing” argument. Certainly even completely “independent” advocacy can further the goals of an FTO and help “legitimize” it. Meanwhile, there is no real showing here that the peaceful teachings and advocacy that plaintiffs propose will actually aid the FTOs in their terrorist goals – and the fact that the law treads upon political speech should heighten our need for hard evidence. Thus in the 1950s, we struck down statutes that criminalized Communist party membership by those “intending to further only its peaceful activities.” [Ed. Note: Of course, here, the government has conceded that membership is allowed under 2339B – although why that is not “material support” is unexplained, other than by the need to distinguish the Communist Party cases.] “What is one to say about … arguments that would deny First Amendment protection to the peaceful teaching of international human rights law”? The government and the majority “stretch [their arguments] beyond constitutional limits” – indeed, even the government has never offered the hypothetical “legitimizing” arguments that the majority adopts. Today’s ruling “gravely and without adequate justification injure[s] interests of the kind the First Amendment protects.” I would remand the case for further proceedings under my proposed interpretation. Because the majority also changes the analysis used by the lower courts, it too should remand rather than simply upholding this statute. “The Court has failed to examine the Government’s justifications with sufficient care” and “ultimately deprives the individuals before us of the protections that the First Amendment demands.”

Posted On: June 21, 2010

New Jersey: Report of the Special Master on Eyewitness Testimony is Released

Retired New Jersey Appellate Division Judge Geoffrey Gaulkin released his report in State v. Henderson today June 21, 2010. . The New Jersey Supreme Court appointed judge Gaulkin in May 2009 to serve as special master and to hold hearings and issue a report "to test the validity of our state law standards on the admissibility of eyewitness identification." According to news comments, the report suggests that eyewitness testimony should be treated more like physical evidence and be subjected to pretrial hearings to assess how reliable it is.

According to a June 21, 2010 New York Times article " Use of Eyewitnesses in New Jersey Courts Needs Change, Ex-Judge Says" by Richard PÉREZ-PEÑA, the report recommends that"Courts should do more to gauge the accuracy of witnesses to crimes, and to let juries know how flawed their testimony can be, according to a former appellate judge assigned by the New Jersey Supreme Court to review the matter....In particular, [judge Geoffrey Gaulkin] wrote, judges should assess factors that might limit a witness’s reliability in picking someone out of a lineup, either in person or in a photo array..."

Click on the link below the see the complete report:

Click here to view the report at NJ

Posted On: June 18, 2010

U.S. Supreme Court Case Briefs: The Perspective of Professor Roy Little

NOTE: This posting includes Professor Little's perspective on City of Ontario v. Quon, the cfase whch includes interesting discussion about whether public employees have a reasonable expectation of privacy regarding text messages went on government owned equipment during working hours.

A Service from the ABA Criminal Justice Section,

This summary has been created by Professor Rory K. Little (, U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S. Supreme Court Summaries – Criminal Cases

Two decisions: June 18, 2010

Dillon v. United States;

City of Ontario v. Quon

On June 17, the Court issued two decisions related to criminal law. In Dillon, the majority’s opinion presents what would appear to be a straightforward account of federal sentencing statutes and guidelines to affirm an old, 23-year guidelines sentence. But Justice Stevens in dissent raises much larger separation-of-powers questions, post-Booker, to challenge (on very sympathetic facts) “what I have come to view as an exceptionally, and often mindlessly, harsh federal punishment scheme.”

Meanwhile, in Quon the Court addresses, but then avoids deciding, the sensitive issue of expectations of privacy regarding electronic text messaging. In a fact-specific setting of a law enforcement officer using his government-provided pager during work hours to send personal messages, the Court rules that an employer review of the messages for budgetary reasons is “reasonable” under the Fourth Amendment.

1) FEDERAL SENTENCING (upholding mandatory limit on sentence reductions for new, retroactive guidelines).

Dillon v. United States, No. 09-6338, 130 S.Ct. ___ (June 17, 2010), affirming 572 F.3d 146 (3d Cir. 2009).

Holding (7-1, Alito not participating, presumably because it is an old case from his Circuit): The Sentencing Commission policy statement that limits the amount of reduction a defendant can receive, when the Commission later revises a guideline and makes it retroactive, is not made “advisory” by Booker.

Facts: [Ed. Note: There are always more ways than one to present “facts.” One way is to start with the “legal facts” (statutes and such); another is to start with the defendant’s personal facts. The majority takes the former approach, but I’ll try the latter here. Most of the sympathetic facts come from Justice Stevens’ dissent. See if it makes a difference to you.]

Dillon was convicted in 1993, when he was 23, of a crack cocaine offense and a § 924(c) firearms offense, which by statute required a mandatory minimum of 15 years total (10 for the crack, consecutive 5 for the gun). The Sentencing Guidelines, however, recommended a higher 262-327 months for the crack offense, based on the amount of drugs and criminal history (Dillon had two prior misdemeanor convictions). The sentencing judge gave the bottom of the range (22 years), plus 5 years for the gun, for a total of 322 months, and the Third Circuit affirmed. But at Dillon’s original sentencing, the district judge said “I personllay don’t believe that you should be serving 322 months, but I feel I am bound by those Guidelines. ….I don’t think they are fair.” The Guidelines are “entirely too high for the crime committed,” and a five-year sentence would be appropriate, said the judge.

Of course, two decades later in Booker the Court made the guidelines “advisory, and in 2007 in Kimbrough the Court ruled that disagreement with the crack guidelines could support a “reasonable” below guidelines sentence. If Dillon had received the mandatory minimum 15 years, he would be out of prison today. Meanwhile, in prison Dillon has been a pretty extraordinary “good” prisoner. He has participated in the development of youth outreach programs, with two different universities, to steer youth away from drugs and violence. “Without his insight and advice, our project would not have succeeded and grown,” said one program coordinator. Dillon also completed a GED degree, taken vocational classes, “and has job prospects awaiting him upon release.”

After Kimbrough, the Sentencing Commission amended the Guidelines to reduce the crack offense levels by two points, and ordered that the amendment be retroactive. But the Commission also issued a “policy statement” directing that any reduction must not be “less than the minimum for the amended guideline range.” The amended Guidelines that permit a retroactive reduction for crack offenses are an exception to the normal statutory rule that a federal court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).

Dillon moved for the sentencing reduction, and the district judge reduced his 262 months for crack to 210 months, the bottom of the amended range. But Dillon asked the court to go lower, arguing that the guidelines were now advisory under Booker and that the new sentencing proceeding permitted the court to sentence freely under Kimbrough and § 3553. The district court, however, found no authority permitting it to ignore the mandatory limit on the sentencing reduction found in the policy statement, and the Third Circuit affirmed.

Sotomayor (joined by all Justices except Stevens, who dissents, and Alito who did not participate in the review of his old Circuit’s decisions): The limited sentencing reduction permitted for a retroactive amended Guideline is not a general “resentencing,” so the wide-open, discretionary sentencing authority under § 3553 and Booker does not come into play. Congress has made it clear that an imprisonment sentence may not be modified except in limited circumstances, and the exception for reductions when Guidelines are amended is “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Section 3582(c) authorizes a reduction only “if such a reduction is consistent with applicable policy statements.” Here, the policy statement limits the reduction to the bottom of the amended guideline range. Booker does not require or permit us to eliminate the mandatory limits on reductions that Congress and the Commission have announced. (“We do not respond” to Justice Stevens’ separation of powers discussion, which was not briefed and is not within the question presented here.) There is no constitutional right to a reduction, and the reduction proceeding itself does not implicate Booker or Apprendi, because the judge in a reduction proceeding only exercises discretion within the statutory range. “None of the confusion or unfairness that led us” to the Booker remedy is present here. The constitutional errors, if any, in Dillon’s original sentencing (i.e., basing the Guidelines sentence on facts not found by the jury such as the amount of drugs, and thinking that the Guidelines were mandatory) “are outside the scope of the [sentencing reduction] proceeding.”

Stevens dissenting: “Neither the interests of justice nor commonsense” support this result. “I thought Booker had dismantled the mandatory Guidelines regime. The Court ought to finish the job.” Moreover, the idea that the Commission can, in a mere “policy statement,” mandatorily order district courts in this instance, despite Booker, is of “dubious” constitutionality -- Justice Scalia’s criticisms of the Commission on separation of powers grounds in Mistretta might well apply here. “I do not think the Commission’s authority encompasses the ability to promulgate binding guidelines via policy statements.” [Ed. Note: However, neither Justice Breyer, who wrote Booker, nor Justice Scalia, who dissented in Mistretta saying the entire Sentencing Commission was unconstitutional on separation of powers grounds, joins or comments on Justice Stevens’ discussion of those two cases here.]

Although I joined the majority in Mistretta, “it became apparent during the next two decades” that the mandatory guidelines “produced a host of excessively severe sentences” and also deprived defendants of “long-settled constitutional protections” (thus leading to Apprendi and Booker). And although I dissented in Booker, the fact that Congress has allowed it to stand “demonstrates not only that Justice Breyer is more clairvoyant than I … but also that Congress has acquiesced to a discretionary Guidelines regime.” We should not leave in place the “narrow sliver” of mandatoriness in the policy statement at issue here. Finally, the Commission makes the “subtle threat” that if we remove its limit on sentencing reductions, it won’t make amended Guidelines retroactive in the future. We ought not be influenced that in our decision here, and it seems unlikely.

2. FOURTH AMENDMENT (reasonableness of searching electronic text messages of public employees sent on government–owned equipment during work hours)

City of Ontario, California, v. Quon, No. 08-1332, 130 S.Ct. ____ (June 17, 2010), reversing 529 F.3d 892 (9th Cir. 2008).

Holding (9 (7-1-1) to 0): Without deciding generally whether public employees have a reasonable expectation of privacy in their text messages sent on government-owned equipment during work hours, the review of Quon’s messages here, for a legitimate work-related purpose and not excessive, was reasonable under the Fourth Amendment.

Facts: Quon’s city police department employer gave him a text-messaging device for use in his work as a member of the SWAT team. The city made it clear that texts could be monitored and that he should have no expectation of privacy regarding them. However, when the city became concerned that it was paying too much for “overages” on its plan, Quon’s supervisor told Quon that, if Quon paid for the overages, then his texts would not be “audited.” Quon then started paying monthly overage charges himself, and says this created a “reasonable expectation of privacy” that his messages would not be reviewed. Later, however, the city became tired of being a “bill-collector” and decided to audit the texts to see whether the level of messages paid for was adequate for the policing job. The city restricted its review to text messages sent during work hours, and only for two months. Still, it found that Quon was sending lots of texts for personal reasons (they revealed his romantic, and sometimes sexually explicit, messages), and he was disciplined. Officer Quon and other people he messaged with sued, alleging their Fourth Amendment rights were violated by this government “search” of their messages. The district court rejected the claim after a jury found that the audit was conducted for a legitimate government purpose, but the Ninth Circuit reversed and remanded, finding that “less intrusive means” could have been used to achieve that purpose.

Kennedy (for all Justices except Scalia in one Part): This case “touches issues of far-reaching significance,” and we “must proceed with care when considering the whole concept of privacy expectations in” modern electronic mechanisms. “It is not so clear that courts are at present on so sure a ground” so as to opine authoritatively on these issues. “Prudence counsels caution before the facts of this case are used to establish far-reaching premises.” (The Court cites to Olmstead, which early on held that wire-tapping was not a constitutional issue, which took some 45 years to reverse in Katz (1967).)

Meanwhile, this Court has disagreed as to the proper analysis for workplace Fourth Amendment concerns. In O’Connor v. Ortega (1987), the Court agreed that a worker in a government office does not necessarily lose all privacy expectations. However, only a plurality said that “operational realities of the workplace” must be examined. Justice Scalia rejected this idea, and said that “reasonable” workplace searches should simply be upheld. We do not resolve this dispute here. Even assuming that Quon had a reasonable expectation of privacy in his text messages here, we think the review of his messages was reasonable. It was for a “legitimate work-related” purpose, and it was not excessive. Quon had only a “limited expectation of privacy” at best, because “a reasonable employee” in a law enforcement job would know that his messages might be reviewed. [Ed note: Here the Court appears to be answering the questions, at least in part, that it said it would not answer, above.] It was error for the Circuit to rule on a “less intrusive means” analysis, because a hindsight court “can almost always imagine some alternative means,” and we have “repeatedly refused to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment” (Vernonia, 1995).

Stevens, concurring: I want to point out that Justice Blackmun, in dissent in O’Connor, offered a third approach, more protective of workplace privacy, and his approach is not yet “foreclosed.” However, “Quon, as a law enforcement officer who served on a SWAT team, should have understood that all of his work-related actions – including all of his communications on his official pager – were likely to be subject to public and legal scrutiny.”

Scalia, concurring in part and in the judgment: First, Justice Blackmun’s approach is foreclosed, he was the losing dissenter in O’Connor. More importantly, the “operational realities rubric” of the O’Connor plurality is “standardless and unsupported,” so I can’t join that part of the majority’s discussion. And finally, the Court’s “digression” on the general issue is “unnecessary,” “exaggerated,” and “self-defeating” because it “underscores the unworkability of that standard.” [Ed. Note: Justice Scalia is particularly unhappy with the majority’s speculation that electronic “gadgets” might be necessary, even in the workplace, for “self-expression, even self-identification,” which does indeed seems like an unnecessary, and typically Kennedy-ian, poetic description.]


Posted On: June 18, 2010

The Ethics of Engaging in Extrajudical Activity While Advancing Pro Bono

American Bar Association Judicial Division

Can judges give testimony before a legislative body? Is it permissible for
judge to participate in a family business as the company’s lawyer? Can a
judge charge for giving a speech to a civic organization? What role can
judges play in supporting and participating in activities that promote a culture
of pro bono and access to justice within the legal profession?

Off the Bench: The Ethics of Engaging in Extrajudicial Activity While Advancing Pro Bono
A Two Part Workshop

Join the ABA, for this two part, highly interactive workshop, as we discuss important restrictions and provide guidance on particular situations while addressing the role of judges in the context of the Model Code.

9:00 a.m. — 10:30 a.m.
Part I: Judges Advancing Pro Bono as Champions of Justice

10:30 a.m. — 12:00 p.m.
Part II: Off the Bench: The Ethics of Extrajudicial Activity

Sponsored by:
The ABA Judicial Division Committee on Ethics and Professionalism
The ABA Judicial Division Lawyers Conference
The ABA Standing Committee on Pro Bono and Public Service


Posted On: June 18, 2010

NISO Announces Six Recommended Practice Development Projects for Information Standards

Ellen McGrath of the Charles P.Sears Law Library at the University of Buffalo has forwarded the following announcement from the National Information Standards Organization (NISO). We are posting it here in recognition and appreciation of the importance of NISO's ongoing work to the library community:

David Badertscher

Date: Fri, 18 Jun 2010 10:24:09 -0400
From: Cynthia Hodgson
Subject: NISO Announces Six New Standard or Recommended Practice Development Projects - Programs at ALA 2010 Annual Conference to provide more

The National Information Standards Organization (NISO) has launched six new standard or recommended practice development projects in the past six months. There are now more development projects underway than at any time in NISO’s history. Experts from interested and affected organizations have volunteered to participate on working groups to develop consensus
standards or best practice recommendations for each of the six projects.

“The rapid pace of new development projects,” states Todd Carpenter, NISO’s Managing Director, “is an indication of both the need for standards and recommended practices in the NISO community and the community’s confidence in NISO as the organization that can best bring together all the parties needed to find innovative and practical solutions.”

“Many of the new projects are joint efforts with other organizations,” Karen Wetzel, NISO Standards Program Manager, points out, “or are expansions on work begun by others in our community. This is a reflection of NISO’s outreach in recent years to organizations working in related areas.”

The six new project working groups are:

E-journal Presentation & Identification – Chaired by Steve Shadle
(University of Washington), this working group will develop a NISO Recommended Practice for the presentation and identification of e-journals to improve the title listings and supporting metadata on journal websites and to particularly address the issue of titles that change names or publishers.

Improving OpenURL Through Analytics (IOTA) – Chaired by Adam Chandler
(University of Cornell), this working group is investigating the feasibility of creating industry-wide, transparent, and scalable metrics for evaluating and comparing the quality of OpenURL implementations across content. It builds on work begun at Cornell University as part of a
2008/2009 Mellon Planning Grant. The results of this investigation and follow-up recommendations will be published in a NISO Technical Report.

RFID in Libraries Revision
‑ Co-chaired by Vinod Chachra (VTLS) and Paul
Sevcik (3M), this working group will produce a revision of the NISO Recommended Practice, RFID in U.S. Libraries (NISO RP 6-2008). The related ISO standard on RFID in libraries is in the final stages of development, with publication expected in late 2010. The NISO RP revision will ensure that the recommendations are up-to-date and provide U.S. implementers of
RFID tags in libraries with sufficient guidance to conform to the ISO work.

Standardized Markup for Journal Articles Working Group ‑ Co-chaired by
Jeff Beck (National Library of Medicine) and B. Tommie Usdin (Mulberry Technologies), this working group will take the currently existing National Library of Medicine (NLM) Journal Archiving and Interchange Tag Suite version 3.0, the three journal article schemas, and the
documentation and shepherd it through the NISO standardization process.

NISO/NFAIS Supplemental Journal Article Materials – Following a NISO/NFAIS roundtable meeting on the topic, a two working groups – one to focus on business issues, the other on technical issues -- were launched to together develop a Recommended Practice for publisher inclusion, handling, display, and preservation of supplemental journal
article materials. The business working group will be co-chaired by Linda Beebe (American Psychological Association) and Marie McVeigh (Thomson Reuters). The technical working group will be co-chaired by Dave Martinsen (American Chemical Society) and Alexander (Sasha) Schwarzman (American Geophysical Union).

NISO/UKSG Knowledge Bases and Related Tools (KBART) Phase 2 ‑ Co-chaired by Sarah Pearson (University of Birmingham) and Andreas Biedenbach (Springer Science+Business Media), this working group takes up the outstanding items that were identified in the January 2010 recommended practice, KBART: Knowledge Bases and Related Tools (NISO RP-9-2010). The group will develop a second recommended practice focusing on the more advanced, complex issues that cause problems in utilizing OpenURL knowledge bases. The group will also deliver a centralized information portal to support educational activities.

All of the new projects will be discussed at various programs during the American Library Association 2010 Annual Conference in Washington, D.C.from June 25-27. Visit the NISO @ ALA webpage ( for a complete list of these programs. More information about all of the active NISO working groups can be found on the workrooms webpage (
). Public interest group e-mail lists are available for most NISO working
groups; visit to sign-up or review the list archives.

For More Information, Contact:

Victoria Kinnear
Business Development and Operations Manager, NISO
Phone: 301-654-2512
Email :

Karen A. Wetzel
Standards Program Manager, NISO
Phone: 301-654-2512

Posted On: June 17, 2010

2010 ABA Silver Gavel Award Presentation

This is indeed the season for presenting awards. The ABA Silver Gavel Awards honor those in media and the arts that foster a better understanding of the law. All are invited to the Gavel Awards presentation at the National Press Club, Washington, D.C. on July 7 at 5:00 p.m. The event is preceded by a reception and registration is required [

Here are the event details sent to us by the ABA:

Event Details
Wednesday, July 7, 2010
5:00 - 6:30 P.M.
National Press Club
Ballroom, 13th Floor
529 14th Street, NW
Washington, DC

(Business attire recommended)

Awards Presenter
ABA President Carolyn B. Lamm

Guest Speaker
Daniel Zwerdling
National Correspondent, National Public Radio

Registration is required. Register at .

Refreshments will be served

2010 Honorees Scheduled to Attend Include:


> MAGAZINES - Trial by Fire, The New Yorker, New York, New York
David Grann, Staff Writer

> NEWSPAPERS - Presumed Guilty: The Story Behind the Headlines of the Greatest Miscarriage of Justice in Nebraska's Modern Legal History, The Lincoln Journal Star, Lincoln, Nebraska
Peter Salter, City Editor
Catharine Huddle, Assistant City Editor
Joe Duggan, Reporter

> TELEVISION - Juvenile Rehabilitation, ABC News Primetime, New York, New York
Chris Cuomo, Correspondent
Joseph Diaz and Anna Sims-Phillips, Producers

> RADIO - California's Three Strikes Law: 15 Years of Controversy, National Public Radio, Washington, DC
Ina Jaffe, Correspondent
Amy Walters, Producer
Bill Craven, Logistical Manager

> WEBSITES - SCOTUSblog, Washington, DC
Tom Goldstein, Publisher
Amy Howe, Editor
Erin Miller, Manager


> BOOKS - Snitching: Criminal Informants and the Erosion of American Justice, New York University Press, New York, New York
Alexandra Natapoff, Author

ABA Silver Gavel Awards
The American Bar Association [ ] has presented these awards since 1958 to recognize products in media and the arts published or presented during the preceding year that are exemplary in fostering the American public's understanding of law and the legal system. Eligible categories include books, newspapers, magazines, commentary, documentaries, drama and literature, radio, television programs, and websites. The Silver Gavel Award is the ABA's highest honor in recognition of this purpose and no more than one Silver Gavel is presented in each category. In addition, Honorable Mention citations may also be presented. The Gavel Awards are highly selective-this year the ABA is presenting only 5 Silver Gavels and 3 Honorable Mentions among nearly 200 entries received in all eligible categories. Find out more details about the winning entries. [ ].

We gratefully acknowledge the generous support of Vinson & Elkins [ ] for the Silver Gavel Awards program.

Posted On: June 17, 2010

AALL Award Winners 2010

Catherine Lemann, President of the American Association of Law Libraries (AALL) has announced the winners of the 2010 AALL awards that will be presented at the AALL Annual Meeting in Denver. These awards provide recognition to achievements of law librarians based on services to the library profession and contributions to legal literature and materials. AALL is to be commended for this Awards Program. We offer our congratulations to all the winners.

Here is a list of the AALL Awards and nmes of the recipients::

The Marian Gould Gallagher Distinguished Service Award

Marie E. Whited, Law Library of Congress

The Joseph L. Andrews Bibliographical Award

Kent C. Olson, University of Virginia Law Library, Principles of Legal Research

AALL Spectrum Article of the Year Award

James M. Donovan, University of Georgia School of Law Library, "Back Away from the Survey Monkey! Optimize Research Results with an Honest Assessment of Methodology," AALL Spectrum, November 2009

Law Library Journal Article of the Year

Stephanie L. Plotin, UCLA Hugh and Hazel Darling Law Library, "Legal Scholarship, Electronic Publishing, and Open Access: Transformation or Steadfast Stagnation," 101 Law Library Journal 31 (2009)

Law Library Publications Award

Nonprint Division: Rutgers University Law School Library, Same-Sex Marriage: A Selective Bibliography of the Legal Literature

The AALL/LexisNexis Call for Papers Awards Program

Open Division:

Carol A. Parker, University of New Mexico School of Law, "The Need for More Uniform and Consistently Rigorous Standards for Assessing Law Librarian Performance in Tenure and Continuous Appointment Policies"

New Member Division:

Daniel J. Baker, O'Quinn Law Library, University of Houston Law Center, "Citations to Wikipedia in Law Reviews"

Student Division:

Benjamin J. Keele, Indiana University School of Library and Information Science, "What if Law Journal Citations Included Digital Object Identifiers?: A Snapshot of Major Law Journals"

Deborah E. Shrager, The Catholic University of America, School of Library and Information Science, "Moving Past Web 2.0h! An Exploratory Study of Academic Law Libraries"

Minority Leadership Development Award

Sean H. Crane, University of Arizona, Cracchiolo Law Library

AALL Public Access to Government Information Award

Legal Information Institute, Cornell Law School, Ithaca, New York

Robert L. Oakley Member Advocacy Award

Ohio Regional Association of Law Libraries County Law Library Special Interest Group

Chapter Professional Development Award

One-Time Program: Northern California Association of Law Libraries (NOCALL), Clearing the Economic Fog: Understanding the Issues and Moving Forward in the Economic Crisis, 2009 Spring Institute

Excellence in Marketing Awards

Best Brochure: Lillian Goldman Law Library, Yale Law School, Yale Law School, Lillian Goldman Law Library - Biennial Report 2007-2009

Best Campaign: Riverside County Law Library, Legal Research 102

Best Newsletter: K&L Gates Library & Research Services, ASKtheLibrary: News from K&L Gates Library & Research Services

Best PR Toolkit: Thomas M. Cooley Law Libraries, Food for Fines offered by the Thomas M. Cooley Law Libraries

Best Use of Technology: Ross-Blakley Law Library, Arizona State University, Sandra Day O'Connor College of Law, Ross-Blakley Law Library Indian Law Portal

Best New Product Award

Fastcase, Inc., Fastcase Legal Research iPhone App

Emerging Leader Award

Sarah K.C. Mauldin, Smith, Gambrell & Russell, LLP

Innovations in Technology Award

Trudi Busch, Oppenheimer Wolff & Donnelly LLP, and Jennifer Doyle, Robins, Kaplan, Miller & Ciresi, BuildingBridges With Technology: VLC Wiki (Volunteer Librarians Coalition Wiki - Supporting the Volunteer Lawyers Network)

Volunteer Service Award

Kathleen Kelly, Lockridge Grindal Nauen P.L.L.P.

Brian D. Striman, University of Nebraska-Lincoln, Schmid Law Library

Posted On: June 11, 2010

U.S.A v. Justin K. Dorvee: Second Circuit U.S. Court of Appeals Decision

On October 1, 2009 I posted an appalant brief for U.S.A v. Justin K. Dorvee on this blog. The Brief was prepared by Paul F. Angioletti, attorney for the defendant-appellant.

Mr. Angioletti has now informed me that the Court of Appeals Second Circuit issued an opinion on the Dorvee appeal on May 11, 2010. In this posting we are including a paragraph from the Second Circuit decision which summarizes the conclusion that the sentence imposed on Dorvee by the District Court was "substantively unreasonable", therefore vacating the judgment and remanding the case to the District Court for resentencing.;


Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation
of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the
Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing.


I recently received an e-mail from Mr. Angioletti which included some brief comments about this case. He also expresses appreciation regarding the legal research facilities and staff at the New York Supreme Court Criminal Term (New York County) Law Library. We are certainly pleased that he found the library facilities helpful and the service supportive. Here is an excerpt:

Dear Mr. Badertscher:

Last year you posted the brief in United States v. Dorvee on the library blog. The case was assigned to me under the Criminal Justice Act by the Second Circuit Court of Appeals. On May 11, the Second Circuit issued an opinion vacating my client's sentence as unreasonable, and remanding the case for resentence. The case has gotten a lot of national attention, because it is one of the few cases to find a within-guidelines sentence substantively unreasonable.

The brief involved a lot of fairly sophisticated research, including legislative history. All of the research was conducted on the 17th floor library, both electronically through Lexis, and the old-fashioned way-- with the books....

Click here to see U.S.A v. Justin K. Dorvee 09-0648-cr

Posted On: June 8, 2010

Cataloging and Acquisitions: Library of Congress Offers Examples for Resource Description and Access (RDA) - Compared to AACR2

According to George Prager, Head of Cataloging at the NYU Law Library, the examples offered by the Library of Congress illustrate differences between Anglo American Cataloging Rules Second Edition (AACR2 )and Resource Description and Access (RDA). Some examples have only a few fields; others are more complete. Some are made-up examples. Some examples illustrate more than one category but only appear in one category. RDA citations and other comments accompany some examples.

To see the various categories of examples offered, with commentary, go to:

Posted On: June 8, 2010

ABA: U.S. Supreme Court Updates

A Service from the ABA Criminal Justice Section,

Received: June 8, 2010.

· Barber v. Thomas (No. 09-5201)

· United States v. Juvenile Male (No. 09-940)


Barber v. Thomas (No. 09-5201)

United States Supreme Court Decision: Decided: June 7, 2010

In a 6-3 decision today the Supreme Court determined that the Bureau of Prison’s (BOP) current method for calculating good time credit proscribed in 18 U.S.C. §3624(b)(1) is both lawful and correct. The government maintained that under §3624 time for good behavior is calculated at the conclusion of each year. In contrast, petitioner argued that calculation should be based upon the term of imprisonment that the sentencing judge imposes, not the length of time actually served.

The Court noted that the movement under the Sentencing Reform Act of 1984 towards a retrospective reward* of reduced time justified the current reading of ‘term of imprisonment’ whereby good behavior is awarded at the end of each term served. Currently under the BOP methodology well-behaved prisoners are given 54 days of credit for each full year of imprisonment and these days are compounded to reduce the overall length of a prisoners stay based on a deduction of these days at the end of a prisoner’s term.

Petitioners, two federal inmates, argued instead that the days should be credited right away and therefore recalculate the start of the prisoners second year by 54 fewer days. The underlying question was whether ‘term of imprisonment’ should be construed to mean the entire term imposed by the judge (resulting in a prospective overall sentence reduction of 15%) or the time already served (resulting in a yearly reduction of a up to 54 days). Petitioners maintain that on average, prisoners lose seven days of good behavior per year under the current model.

The Court rejected this argument noting the plain language of §3624 contemplated that the prisoner would receive credit “of up to 54 days at the end of each year subject to the determination of the BOP that, during that year, the prisoner” had behaved in an exemplary fashion. Barber v. Thomas, 560 U.S. ___ (2010). Additionally, the Court noted that the BOP’s methodology furthers the objectives of awarding good behavior credits for the preceding year of imprisonment, or time served.

Judgment affirmed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, THOMAS, ALITO, and SOTOMAYOR, JJ., joined. KEN-NEDY, J., filed a dissenting opinion in which STEVENS and GINSBURG, JJ., joined.

Decision available at:

Posted On: June 8, 2010

Findlaw Case Summaries: Criminal Law and Procedure

To view the full-text of cases you must sign in to All summaries are produced by Findlaw

May 31 - June 4, 2010.

U.S. Supreme Court, June 01, 2010
Carr v. US, No. 08–1301
The Seventh Circuit's affirmance of defendant's conviction for failure to register as a sex offender in Indiana under the Sex Offender Registration and Notification Act is reversed where 18 U.S.C. section 2250 did not apply to sex offenders whose interstate travel occurred before SORNA's effective date.

U.S. Supreme Court, June 01, 2010
Berghuis v. Thompkins, No. 08–1470
In a murder prosecution, the Sixth Circuit's reversal of the district court's denial of petitioner's habeas petition is reversed where the state court’s decision rejecting petitioner’s Miranda claim was correct under de novo review and therefore necessarily reasonable under the Antiterrorism and Effective Death Penalty Act's more deferential standard of review because petitioner's silence during his interrogation did not invoke his right to remain silent.

U.S. 1st Circuit Court of Appeals, June 02, 2010
US v. Roa-Medina, No. 08-2490
District court's denial of defendant's motion to modify his sentence of 72-months for crack and other drug related offenses is affirmed where: 1) defendant was sentenced to a term of imprisonment that was "based on a sentencing range" of 120 months to 135 months, and his reduced sentence represented a 40% deviation from the bottom of that range; and 2) defendant's sentencing range has not been "lowered" within the meaning of section 3582(c)(2).

Continue reading " Findlaw Case Summaries: Criminal Law and Procedure " »

Posted On: June 8, 2010

Findlaw Case Summaries: Constitutional Law

To view the full-text of cases you must sign in to All summaries are produced by Findlaw

May 31 - June 4, 2010.

U.S. Supreme Court, June 01, 2010
Levin v. Commerce Energy, Inc., No. 09–223
In an action by independent natural gas marketers (IMs) who offered to sell natural gas to Ohio consumers against the Ohio Tax Commissioner (Commissioner), alleging discriminatory taxation of IMs and their patrons in violation of the Commerce and Equal Protection Clauses, the Sixth Circuit's reversal of the district court's dismissal of the action is reversed where, under the comity doctrine, a taxpayer’s complaint of allegedly discriminatory state taxation, even when framed as a request to increase a competitor’s tax burden, must proceed originally in state court.

U.S. 1st Circuit Court of Appeals, June 03, 2010
Chaparro v. Ruiz-Hernandez, No. 08-1989
In a 42 U.S.C. section 1983 suit brought by a group of twenty-two contract employees against a Puerto Rican municipality and its officers, a grant of plaintiffs' motion for summary judgment is affirmed in part, vacated in part and remanded where: 1) plaintiffs had a reasonable expectation of continued employment; 2) a one-year term of employment with Puerto Rican government bodies is generally considered a protected property interest for procedural due process purposes; and 3) defendants' claim that plaintiffs were not deprived of protected property interests without due process of law because the process Puerto Rico provided was adequate is rejected.

U.S. 2nd Circuit Court of Appeals, June 04, 2010
Harrington v. Cty. of Suffolk, No. 09-3911
In an action pursuant to 42 U.S.C. section 1983 asserting that defendants deprived plaintiffs of a property interest protected by the Due Process Clause by conducting an inadequate investigation into their son's fatal traffic accident, the dismissal of the action is affirmed where plaintiffs had no property interest in an adequate police investigation.

Continue reading " Findlaw Case Summaries: Constitutional Law " »

Posted On: June 7, 2010

Resources for Librarians Participating Online: Videos, Tip Sheets, Guidelines, Articles, and More

Jaclyn McKewan, Virtual Services and Training Librarian at the Western New York Library Resources Council in Buffalo writes:"People not picking up instant messages is continuing to be a problem, so I created a 7-minute Camtasia video that shows people what to do when they get that message on the screen saying "New IM has arrived." It covers receiving the message, sending, and a bit of info on transferring patrons. I originally created it for our Ask Us 24/7 librarians, but figured that everyone else may find it useful as well"

Actually Jaclyn is being very modest regarding her efforts. As important as the Instant Messaging component is it is only a small part of this fine resource that she has created. Areas covered include receiving and sending instant messages (IM), finding articles online, finding books online, reference sources, and search techniques. It is a multi-featured resource, useful to all librarians (both experienced and inexperienced) involved in any type of virtual reference and research. After reviewing her material I contacted Jaclyn and am posting it here with her permission.

David Badertscher

Posted On: June 4, 2010

New York State's Highest Court Upholds Merger of Two Bronx Courts, IDV Courts

In an earlier posting on this blog we reported that on February 23, 2010 a divided Panel of the Appellate Division, First Department, New York Supreme Court ruled in People v. Correa (2010 NY Slip Op. 01533) that the 2004 merger of the criminal courts in the Bronx into a single court with jurisdiction to handle both felonies and misdemeanors is unconstitutional. That Appellate Division ruling has now been overturned by the New York Court of Appeals in a single 6-0 opinion on June 3, 2010 that decided three cases--People v. Correa, People v. Fernandez, and People v. Mack, upholding administrative experiments that have New York State Supreme Court judges presiding over misdemeanor cases as well as felonies within a merged Bronx Supreme Court Criminal Division and an Integrated Domestic Violence (IDV) Court in Brooklyn.

The high court's ruling regarding IDV Courts also applies to 44 other IDV Courts throught the State of New York. that centralizes the handling of all aspects of domestic disputes, including criminal charges, in one court. The judges noted that neither the New York Constitution nor its statutes call into question the legality of either court addressed in this opinion.

See also the following articles which discuss this New York Court of Appeals opinion and its implications:

Article VI of the New York Constitution — the Judiciary Article — created a "unified court system for the state" (NY Const, art VI, § 1) and vested the ...

High Court Upholds Merged Bronx Criminal Part, IDV Courts
New York Law Journal
The creation of the unified court system "was prompted in part by the uneven ... it usurped the role of the New York Criminal Court under Article VI, §15, ...

State's highest court upholds merger of two Bronx courts
New York Daily News
"The New York Constitution vests Supreme Court with the power to hear any case that any other court in the (Unified Court System) could hear," Judge ...

Ruling Averts Chaos in Bronx Courts - City Room Blog -
New York's highest court ruled Thursday that a 2004 merger of the Bronx's Criminal Court and Supreme Court was constitutional, overruling a lower court decision that the state's former chief judge had overstepped her bounds. The decision averted the chaos ... “We hold that the administrators of the unified court system were empowered under our State Constitution and the judiciary law to adopt these rules,” the Court of Appeals, the state's highest court, ruled Thursday. ...

Posted On: June 3, 2010

U.S. Supreme Court Case Briefs (Berghuis, Carr): Professor Rory Little's Perspective

Berghuis v. Thompkins June 2, 2010

United States v. Carr

A Service from the ABA Criminal Justice Section,

Introduction by ABA Criminal Justice Section:

This summary has been created by Professor Rory K. Little , U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

Professor Little's Summaries:

June 2, 2010.

Yesterday the Court issued opinions in two criminal cases, summarized below. Perhaps not coincidentally, both had opinions authored by Justice Sotomayor. In Carr, she wrote the majority, while in Thompkins, she wrote a vigorous dissent. The Justices seem to be “courting” the newest Justice, dropping stray compliments for her opinions (a tactic embedded some 35 years ago by Justice Brennan’s early praise of Justice Blackmun’s opinions, including Brennan’s favorable (and usually unnecessary) citation of Justice Blackmun’s Eighth Circuit decisions). Thus Justice Scalia, while not entirely agreeing with Justice Sotomayor’s majority in Carr, mentions “the Court’s thorough discussion,” and Justice Kennedy remains respectful of her dissent in Thompkins, even as Justice Sotomayor (who clearly is not holding back) describes Justice Kennedy’s majority as “a substantial retreat,” one that “flatly contradict[s] our longstanding views.” Only Justice Alito (himself relatively new to the Court) seems not to be showing the newest Justice any deference, saying that Justice Sotomayor’s conclusion in Carr “makes no sense” (twice), is “thoroughly unsound,” and “flies in the face” of accepted statutory drafting principles.


Berghuis v. Thompkins, No. 08-1470, 130 S.Ct. ___ (June 1, 2010), reversing 547 F.3d 572 (6th Cir. 2008) (on habeas), thereby affirming 683 N.W.2d 676 (Mich 2004, table).

Holding: (1) A person in custody must clearly invoke his right to remain silent after Miranda warnings, or police may continue questioning; and (2) after a suspect has been informed of his Miranda rights and indicates understanding, an uncoerced statement by the suspect “establishes … waiver” (even here, where the suspect refused to answer interrogation questions for almost three hours before saying something incriminating).

Facts: Thompkins was arrested on suspicion of murder, and was interrogated by two officers for about three hours. [Can we deny that the fact that there was a lot of other evidence indicating Thompkins guilt, not mentioned until the last page of the Court’s opinion, that inevitably colors our assessment of this case?] He was fully advised of his Miranda rights, and he declined to sign the rights form. However, he also did not say that he wished to remain silent. Instead, Thompkins simply sat “largely silent” for 2¾ hours, offering non-committal one-word responses (and one remark that “the chair he was sitting in was hard”). Finally, an officer asked Thompkins if he believed in and prayed to God, and when Thompkins said “yes” and started to cry, the officer asked “Do you pray to God to forgive you for shooting that boy down?” Thompkins said yes, looked away, and refused to make any written statement. The officers ended the interrogation and used the final remark against Thomkins at trial, where he was convicted for murder and sentenced to life without parole.

A secondary issue was that a compatriot of Thompkins (Mr. Purifoy) was previously tried as an accomplice to the same murder but acquitted. Purifoy then testified at Thompkins’ trial, and the prosecutors asked the jury “did Purifoy’s jury make the right decision?” The defense did not object or request a limiting instruction, and Thompkins now claimed ineffective assistance.

The Michigan appellate court affirmed, the Michigan Supreme Court denied review, and on federal habeas, the district court denied relief. But the Sixth Circuit reversed, finding no valid waiver of Miranda (thus suppressing the “pray to God” response), and finding ineffective assistance on the jury issue.

Kennedy (for five Justices):

The Sixth Circuit was bound to apply the deferential federal habeas standard (“unreasonable application of clearly established federal law”). But because we find that the Circuit was wrong even under de novo review, we don’t examine the habeas standard further. [Ed Note: The dissent says that this procedural dodge makes the rest of the Court’s opinion “unnecessary to the decision,” that is, dicta. Says Justice Sotomayor, if the Circuit was not properly deferential, and the state court’s application of federal law was not “unreasonable,” then the Court should reverse and not rule finally on the substantive questions presented. It is highly unlikely, however, that anyone will view the next 12 pages of Justice Kennedy’s majority opinion as non-binding “dicta.”]

First, it is settled under Miranda that custodial questioning must cease once the “right to remain silent” is “invoked.” However [and this is a new ruling], silence alone is not “invocation” of the right not to be questioned. A suspect must “unambiguously” invoke his right to remain silent, just as we have held regarding the right to have an attorney present (Davis 1994).

Second, although Thompkins declined to sign a waiver form or make a written statement, his incriminating response to the police after 2¾ hours of questioning demonstrates an “implied waiver.” When proper Miranda warnings have been given and understood, the right to remain silent has not been invoked, and there is no other “coercion,” a response “establishes [a] waiver.” There is no authority for the claim that an interrogation of under three hours, after full Miranda warnings, is “inherently” coercive, and the “police are not required to rewarn suspects from time to time.” We have not previously answered this question, although Miranda itself did say that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or … the fact that a confession was in fact eventually obtained.” The “heavy burden” to show waiver remains on the prosecution. But Butler (1979) established that a “course of conduct” can show waiver; and there is no rule that a waiver must be obtained before questioning can occur (even though a number of police manuals say this). “After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived.”

[Editor’s opinionated note: Up to this point, Justice Kennedy’s opinion is straightforward. However, on page 16 he engages in what can only be described as an unrealistic civics lesson (not to mention truly dicta) about police interrogations. “Interrogation provides the suspect with additional information” so that he “has the opportunity to consider the choices he or she faces, and to make a more informed decision.” Given that police are permitted to lie to suspects about the evidence, this is simply silly – “informed” decisions require accurate information, not trickery. It is possible to imagine that Justice Scalia is actually responsible for the ideas in this paragraph, which discusses the perceived benefits of custodial interrogation without telling the suspect any more than the initial Miranda warnings. It sounds like Scalia ideas expressed in Kennedy language.]

On the second question, “it seems doubtful that the failure to request the [limiting] instruction … was deficient representation, but” even if it was, Thompkins cannot show prejudice in the sense of a “reasonable probability that the outcome would have been different.” It would not “have made any difference in light of all the other evidence of guilty,” including a victim ID of Thompkins, a surveillance camera photo, a friend who said Thompkins confessed to him, and other evidence showing consciousness of guilt.

Sotomayor, dissenting (joined by Stevens, Breyer and Ginsburg): The Court’s opinion is a “substantial retreat” from Miranda protections, is “inconsistent with fair-trial principles,” and “bodes poorly for the fundamental principles that Miranda protects.”

First, the Court should not even make the substantive rules it announces today. All it properly should do is reverse because the Circuit was wrong under the deferential principles of AEDPA habeas review. Also, the Sixth Circuit ruled only on the waiver question, and did not answer the invocation question, so we should remand to them rather than rule in the first instance on invocation.

On waiver, there was no express waiver and the police never asked for one. Thompkins “remained almost completely silent and unresponsive” for three hours. This clearly indicated his desire not to talk, and the prosecution did not sustain the “heavy burden” to prove a “voluntary and knowing” waiver. The Court’s ruling contravenes statements in Miranda (such as “a waiver will not be presumed simply from silence”) as well as other such precedents. We said in Miranda that “the fact of lengthy interrogation … is strong evidence that the accused did not validly waive. …[T]he fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of voluntary relinquishment….” For the Michigan courts to conclude otherwise was, in fact, “objectively unreasonable under our clearly established precedents.” And the majority’s contrary rulings (unnecessary to decision as they may be) “flatly contradict” these precedents. The Court “overrules sub silentio” some essential aspects of Miranda.

Regarding invocation, it is true that it might be “difficult to include” that the Michigan court’s decision was “unreasonable,” since we have never answered the question. However, I “cannot agree with the Court’s much broader ruling that a suspect must clearly invoke his right to silence by speaking.” This “invites police to question a suspect at length” without waiver, “in the hopes” of getting something incriminating. Extending Davis, which was about the right to counsel, to this different right under Miranda, is wrong as well as unnecessary. “The Miranda warnings give no hint that a suspect should use … magic words” to invoke. A rule more faithful to Miranda and its fairness rationales would be to require the police to ask for a clear answer to the question whether a suspect wants to talk, and to not allow questioning until a clear response is received.

2. FEDERAL STATUTES (sex offender registration crimes)

Carr v. United States, No. 08-1301, 130 S.Ct. ____ (June 1, 2010), reversing 551 F.3d 578 (7th Cir. 2008).

Holding (6-3), Sotomayor (Scalia not joining the legislative history subsection); Alito dissenting with Thomas and Ginsburg: As a matter of statutory construction, the federal law making it a crime for sex offenders to fail to register after travelling in interstate commerce requires that the interstate travel occur after the date the federal statute was enacted.

Facts: This is purely a case of statutory construction. In 2006, Congress enacted a statute making it a federal crime for person who is (1) required to register as a sex offender and (2) who “travels in interstate or foreign commerce,” to (3) knowingly fail to register in the new State. 18 U.S.C. § 2250(a). These elements undisputedly have to happen in sequence; the only question presented is whether the “travel” has to happen after the date of enactment, or whether a sex offender who moves to another state before the date of enactment, and then fails to register, can also be reached by this federal law. Carr was convicted in 2004 in Alabama and registered there, but then moved to Indiana before 2006 and did not re-register there. The Seventh Circuit created a Circuit split by ruling that the travel did not have to occur before the date of the federal law, so long as the failure to register did (and that this construction also presented no ex post facto problem, a question not reached by the Court today).

Sotomayor (for six Justices, although Scalia does not join the legislative history subsection): The plain language of the statute, using the present tense “travels” as opposed to “has travelled,” settles the issue: the travel must occur after the date of enactment. [Interesting side-note: Justice Sotomayor uses the word “omnitemporality” in footnote 5 to describe the rejected argument that the present tense can also include the past and future tenses.] Statutory context and legislative history confirms this view. The government’s argument that our reading leaves a “gap” unintended by Congress (sex offenders who escape state sex registration requirements by moving out of state before 2006) does not overpower this clear text – moreover, we think it is consistent with Congress’s apparent decision to leave most sex offender registration issues to the States. This is materially different than the federal firearms statute that permits the interstate element of “felon in possession” to occur at any time (Scarborough 1977).

Scalia, concurring in part: I don’t join the subsection that addresses legislative materials, because “the Court’s thorough discussion of text, context, and structure demonstrates that the meaning of [the statute] is plain” and we should examine “only the text Congress voted on.”

Alito, dissenting, joined by Thomas and [surprisingly?] Ginsburg: The Court “misinterprets” the statute and “hobbles” Congress’s clear intention to track down and criminalize sex offenders who move between States to avoid registration requirements. Why would Congress have wanted to criminalize only those offenders who moved after 2006, as opposed to all such persons who knowingly fail to register after that date? The offense that causes the registration requirement can occur before the date of enactment – why not the interstate travel? As for the present tense of the verb “travels,” “modern legislative drafting” manuals recommend drafting this way: the tense refers to the date on which the statute is read (not the date of enactment). [This is not a reach: Justice Alito cites the U.S. Senate Legislative Drafting Manual and two pages of similar authorities that support the proposition.] The Court’s conclusion to limit the reach of the federal statute “makes no sense,” and it is “perverse” to allow offenders like Carr to escape federal prosecution. The legislative history shows that Congress was clearly concerned about all sex offenders who move out of state and then fail to register. “Interstate travel was dangerously undermining the effectiveness of state sex-offender-registration laws.”

Posted On: June 3, 2010

Murdoch On How to Get People to Pay for Content

In a video of an interview with his Fox Business Network, Rupert Murdoch, News Corp. Chairman discusses what he considers the future of media and the Company's plan to charge for content. During the interview Mr. Murdoch said that in order to get people to pay for content online you simply "...turn them off. They've got to sign on. They give you their credit card number. And that's it. And then you e-mail them and say you're putting the price up or you're taking it down or whatever."

Click here to listen to the interview.