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Groovelord Neato posted:Them throwing a shitfit when Gorsuch actually properly applied textualism in Bostock was really funny. It was such a good lineup: GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.
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Mar 10, 2022 18:57
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 Opinion! Related to abortion bans, but more on a civil procedure side of the line. From March 3; I'm still catching up (something like 3-4 more to go).CAMERON, ATTORNEY GENERAL OF KENTUCKY v. EMW WOMEN’S SURGICAL CENTER, P. S. C., ET AL. TLDR: A state attorney general should be allowed to intervene in a federal appellate case to defend a state law as constitutional. Holding / Majority Opinion (Alito) This case concerns a state attorney general’s attempt to intervene in a federal appellate proceeding for the purpose of defending the constitutionality of a state law. The issue arose after a panel of the United States Court of Appeals for the Sixth Circuit affirmed a decision holding a Kentucky statute unconstitutional. The Kentucky official who had been defending the law decided not to seek any further review, but the Kentucky attorney general then moved to intervene for the purpose of taking up the defense. The panel denied that motion, but we granted review. In April 2018, the Kentucky Legislature adopted House Bill 454 (HB 454), which regulates the abortion procedure known as dilation and evacuation. EMW Women’s Surgical Center, a clinic that performs abortions, and two of its doctors filed this action in Federal District Court and sought to enjoin the enforcement of the new law. [To shortcut, the cabinet secretary for Health and Family Services handled the case until the appeal ended, and then decided not to file for rehearing or certiorari with SCOTUS. The attorney general tried to get into the case at this point, and the Sixth Circuit denied the motion for intervention.] We granted certiorari limited to the question whether the Sixth Circuit should have permitted the attorney general to intervene. In considering this question, we begin with respondents’ contention that the attorney general’s motion to intervene was jurisdictionally barred. Respondents never advanced this argument below, and the Sixth Circuit did not consider it. Nevertheless, we must assure ourselves that jurisdictional requirements are met at all stages of the cases that come before us for review. Respondents’ argument is narrow and somewhat complicated. While implicitly conceding that a court of appeals generally has jurisdiction to consider a non-party’s motion to intervene in a pending appeal, they claim that one narrow sub-set of non-parties is jurisdictionally barred: those non-parties that are bound by the district court judgment. Respondents’ argument goes like this. Non-parties who are bound by a judgment can obtain appellate review by filing a notice of appeal within the time prescribed by law. These time limits are jurisdictional. And because non-parties who are bound by a judgment can seek appellate review in this way, they cannot circumvent the jurisdictional time limits for filing a notice of appeal by filing a motion to intervene after the deadline for filing a notice of appeal has passed. Applying this theory, respondents contend that the Court of Appeals lacked jurisdiction to entertain the attorney general’s motion. Because the attorney general agreed to be bound by the judgment, respondents maintain, he could have filed a notice of appeal, but since he failed to do so within the time allowed by law, his motion for intervention should be treated like an untimely notice of appeal. This argument fails for the simple reason that no provision of law limits the jurisdiction of the courts of appeals in the way respondents suggest. We do not read a statute or rule to impose a jurisdictional requirement unless its language clearly does so. Here, respondents cite no provision of law that deprives a court of appeals of jurisdiction to entertain a motion for intervention that is filed by a non-party who is bound by the judgment that is appealed. … What respondents ask us to recognize is essentially a mandatory claims-processing rule. Such rules are not jurisdictional, and if a non-jurisdictional argument was not raised below, we generally will not consider it as an alternative ground for affirmance. … Assuming for the sake of argument that parties bound by a judgment are generally permitted to appeal that judgment, we do not think it follows that a party may do so regardless of the ground on which the party is bound. Here, respondents rely on the proposition that “[t]he Attorney General, like any other ‘person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement.’” . And when a non-party is bound by a judgment for this reason, it is hard to see why the non-party should be precluded from seeking intervention on appeal if the agreement preserves that opportunity. That is the situation here. In agreeing to be bound, the attorney general specifically “reserve[d] all rights, claims, and defenses . . . in any appeals arising out of this action,” and this language easily covers the right to seek rehearing en banc and the right to file a petition for a writ of certiorari. In addition, the stipulation of dismissal made clear that the judgment to which the attorney general agreed to be bound was the judgment that emerged after all appellate review concluded. For these reasons, we refuse to adopt a categorical claims-processing rule that bars consideration of the attorney general’s motion. In doing so, we do not attempt to set out a general rule governing the right of non-parties to appeal or to move for appellate intervention. … Having concluded that neither a jurisdictional requirement nor a mandatory claims-processing rule barred consideration of the attorney general’s motion, we turn to the question whether the Court of Appeals properly denied that motion. No statute or rule provides a general standard to apply in deciding whether intervention on appeal should be allowed. The Federal Rules of Appellate Procedure make only one passing reference to intervention, and that reference concerns the review of agency action. Without any rule that governs appellate intervention, we have looked elsewhere for guidance. Thus we have considered the “policies underlying intervention” in the district courts, including the legal “interest” that a party seeks to “protect” through intervention on appeal. … A State “clearly has a legitimate interest in the continued enforceability of its own statutes,” and a federal court must “respect . . . the place of the States in our federal system.” This means that a State’s opportunity to defend its laws in federal court should not be lightly cut off. Respect for state sovereignty must also take into account the authority of a State to structure its executive branch in a way that empowers multiple officials to defend its sovereign interests in federal court. In this case, although the secretary for Health and Family Services apparently enjoyed the authority under state law to defend the constitutionality of HB 454, the secretary shared that authority with the attorney general … Resolution of a motion for permissive intervention is committed to the discretion of the court before which intervention is sought. But a court fails to exercise its discretion soundly when it “base[s] its ruling on an erroneous view of the law,” and that is what happened here. The Sixth Circuit panel failed to account for the strength of the Kentucky attorney general’s interest in taking up the defense of HB 454 when the secretary for Health and Family Services elected to acquiesce. … The panel also erred in its evaluation of the other factors that bear on all applications for appellate intervention. The panel found that the attorney general’s motion was not timely because it came after years of litigation in the District Court and after the panel had issued its decision, but its assessment of timeliness was mistaken….Here, the most important circumstance relating to timeliness is that the attorney general sought to intervene “as soon as it became clear” that the Commonwealth’s interests “would no longer be protected” by the parties in the case…The attorney general sought to intervene two days after learning that the secretary would not continue to defend HB 454. The motion was also filed within a week after the Sixth Circuit issued its decision and within the 14-day time limit for petitioning for rehearing en banc. Although the litigation by that time had proceeded for years, that factor is not dispositive. The attorney general’s need to seek intervention did not arise until the secretary ceased defending the state law, and the timeliness of his motion should be assessed in relation to that point in time. … The panel’s finding on prejudice was similarly flawed. The panel argued that intervention would prejudice respondents because the attorney general’s rehearing petition pressed an issue (third-party standing) that had not been raised in the secretary’s briefs. But the lack of third-party standing was not the only argument advanced in the rehearing petition, and in any event, allowing the attorney general to intervene would not have necessitated that the third-party standing issue be entertained. If the secretary for Health and Family Services had not retired from the field, he could have raised that same argument in a petition for rehearing or in a petition for certiorari. In that event, the relevant court (the Sixth Circuit in deciding whether to grant en banc review and this Court in deciding whether to grant certiorari) could have considered whether the third-party standing argument should be considered despite the secretary’s failure to raise the issue at an earlier point in the litigation. That the issue was raised in the attorney general’s rehearing petition, as opposed to one filed by the secretary, was immaterial. … For these reasons, the Court of Appeals erred in denying the attorney general’s motion to intervene. That court’s judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Alito, joined by Roberts, Thomas, Gorsuch, Kavanaugh, and Barrett. Concurrence by Thomas. Concurrence in the judgment by Kagan, joined by Breyer. Dissent by Sotomayor. Concurrence by Thomas I join the opinion of the Court. I write to address another reason why respondents and their amici err in maintaining that the Court of Appeals lacked jurisdiction to consider Attorney General Cameron’s motion to intervene. As the Court explains, respondents now argue that Attorney General Cameron is jurisdictionally barred from intervening in the appeal because his predecessor, then-Attorney General Beshear, stipulated as a condition of his dismissal that the Kentucky attorney general’s office would be bound by the District Court’s final judgment. According to respondents, that stipulation required the attorney general to timely notice an appeal consistent with Federal Rules of Appellate Procedure 3 and 4 if he wished to challenge the District Court’s judgment on appeal. To allow intervention in the appeal, respondents posit, would circumvent the jurisdictional requirements of Federal Rules of Appellate Procedure 3 and 4. The Court rightly rejects respondents’ novel argument because the attorney general’s stipulation preserved his office’s right to participate in the appeal. But in addition to the infirmity the Court identifies, respondents’ jurisdictional argument suffers from another, more basic flaw: Rules 3 and 4 permit only “parties” to appeal a district court judgment, and the attorney general was not a “party” to the judgment after he was dismissed from the litigation. … Here, the attorney general was not a “party” to the District Court’s final judgment. Then-Attorney General Beshear was originally a “party” to this suit because he was named as a defendant in the complaint. But the District Court later dismissed Attorney General Beshear’s office from the litigation in May 2018—about a year before final judgment. A “party” dismissed from a lawsuit is no longer a “party” to it after his dismissal. Just as “intervention is the requisite method for a nonparty to become a party to a lawsuit,” dismissal is the quintessential (if not only) method for a party to become a nonparty. … The Office of the Kentucky Attorney General was not a named “party” to the District Court’s final judgment. The attorney general, accordingly, could not notice an appeal from that judgment under Rules 3 and 4. And because the attorney general could not appeal the District Court’s judgment, Attorney General Cameron moved to intervene and pursue “the requisite method for a nonparty to become a party to a lawsuit.” Far from evading the jurisdictional requirements of Rules 3 and 4, Cameron’s motion to intervene was his only legitimate option to both comply with those Rules and participate in the appeal as a party. For this reason, as well as those given in the opinion of the Court, respondents’ jurisdictional argument fails. Concurrence in the judgment (Kagan, joined by Breyer) I agree with the Court that the Sixth Circuit should have allowed the attorney general to intervene in this suit after another state official ceased defending the challenged Kentucky law. And my reasons for reaching that conclusion partly overlap with the Court’s. But I would differently frame and respond to the serious threshold issue that respondent EMW raises. I also see no need to rely on “constitutional considerations” to resolve the intervention question before us. No jurisdictional rule, the Court and I agree, directly bars the attorney general’s intervention here. … The argument EMW makes—and it is a serious one— rests on the idea that litigants should not be allowed to use intervention procedures to end-run jurisdictional rules. Consider a hypothetical to illustrate the problem. Suppose a party (or a non-party having a right to appeal) misses the 30-day deadline to file a notice of appeal from a judgment. On the 31st day, he regrets his negligence and attempts to intervene in another party’s appeal in the same case. Should the appellate court allow the intervention? Our precedent, along with common sense, suggests not—even though the timely-appeal rule, as noted above, does not address issues of intervention. … But the anti-circumvention rationale for denying intervention does not sensibly apply here because of the change in circumstances between the time to appeal and the time of the motion to intervene. Recall that the attorney general, by agreeing early on to the dismissal of the claims against him, effectively handed off defense of the challenged law to the health secretary. fter the District Court ruled, the secretary continued to perform that function, appealing the court’s decision to strike down the law. Assume here, as EMW argues, that the attorney general also could have appealed.* Even if so, the attorney general had no reason to take that step: The secretary was handling the appeal, just as he had handled the trial court proceedings. It was only once the Sixth Circuit ruled and the secretary ceased defending the law—choosing not to seek en banc or Supreme Court review—that the (now new) attorney general had an urgent reason to rejoin the suit: If he did not, the law would be invalidated. The motion to intervene, then, was not an attempt to escape the consequences of failing to adhere to appellate deadlines, as in the hypothetical offered above. The motion was instead a response to a major shift in the litigation, creating a new demand for the attorney general’s participation. And that real-world fact answers EMW’s argument. Granting the motion would not countenance an end-run around the timely-appeal rule by giving the attorney general a do-over. It would simply recognize that only after the time for appeal had come and gone had a need arisen for the attorney general to reenter the suit. With that threshold objection answered, the issue becomes how the factors bearing on intervention motions play out. I agree with much of what the Court says on that issue (and also with its view that the attorney general’s agreement did not preclude his intervention). But I see no reason to cast the analysis, even partially, in constitutional terms. Our longstanding practice is to avoid unnecessary discussion of constitutional questions. And contra the majority, no invocation of, or lofty observations about, the Constitution are here needed. The considerations governing intervention motions—applying equivalently to any person seeking to intervene, including the attorney general—show why the Sixth Circuit went wrong in closing off the suit. … So I arrive, if via a somewhat different path, at the same endpoint as the Court. In my view, the attorney general’s motion to intervene was not an end-run around the timelyappeal rule. And with that issue out of the way, this is a textbook case for intervention. The Sixth Circuit should have allowed the attorney general to step into the litigation to defend the challenged law. Dissent (Sotomayor) In every case, there must be a “point of time when litigation shall be at an end.” To effectuate that endpoint, our legal system requires parties to abide by representations made in a lawsuit regardless of later regrets. In this case, the attorney general of Kentucky stipulated to his own dismissal as a party in the District Court and agreed to have another official represent Kentucky’s interests. Only years later, and after the Court of Appeals affirmed the District Court’s judgment, did the attorney general ask the Court of Appeals to allow him to return based on a position he had disavowed when securing his dismissal earlier in the litigation. The Court of Appeals refused his request to intervene. … I have no quarrel with the Court’s holding that no jurisdictional bar precluded the attorney general’s intervention. On the facts of this case, however, I disagree with the Court’s determination that the Court of Appeals’ denial of the attorney general’s motion to intervene constituted an abuse of discretion. The Court reaches that result only by giving short shrift to a critical and unusual aspect of this case: The attorney general’s motion to intervene was based on arguments he had eschewed below and was filed only after judgments had been rendered by both the District Court and the Court of Appeals. The attorney general’s change in position alone requires affirmance. … The attorney general sought to intervene in the Court of Appeals “to ensure that [the State’s] interests with respect to H. B. 454” were “fully defended.” In the District Court, however, the attorney general took a different view. There, he represented that he had no interest in the case because “H. B. 454 does not confer upon the Attorney General the authority or duty to enforce the provisions as enacted,” and insisted that the law “does not provide the Attorney General with any regulatory responsibility or other authority to take any action related to the Act.” Based on this representation, respondents entered into a stipulation agreement with the attorney general, and the District Court entered its dismissal order. As a general matter, “‘where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.’” … The Court’s failure to acknowledge the attorney general’s switch in position leads it to an erroneous result. The Court primarily faults the Court of Appeals for “fail[ing] to account for the strength of the Kentucky attorney general’s interest in taking up the defense of HB 454.” All agree that States and their authorized officials have substantial sovereign interests in defending their laws. The Office of the Attorney General, however, previously represented that it had no interest in these proceedings. Had the attorney general been a private litigant, that decision would have been binding: This Court regularly “has . . . refused to consider a party’s argument that contradicted a joint ‘stipulation [entered] at the outset of th[e] litigation.’” The question in this case is not whether a state attorney general may intervene, after a federal court of appeals already has rendered its judgment, for the purpose of defending a state law where no other state actor will do so. At issue is a more specific question: whether the Court of Appeals acted within its discretion by denying this attorney general leave to intervene when his office previously stipulated to dismissal on grounds that contradicted his argument for intervention. Under these circumstances, I would not disturb the “sound discretion” of the court below. I respectfully dissent. https://www.supremecourt.gov/opinions/21pdf/20-601_new_g20h.pdf
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Mar 13, 2022 20:41
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are anybody else's eyes turning inside out with the logic of both the construction of the test and the application of the test for hypothetical claims processing rules here?
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Mar 14, 2022 21:27
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Potato Salad posted:are anybody else's eyes turning inside out with the logic of both the construction of the test and the application of the test for hypothetical claims processing rules here? Nah. This one seems simple: 1. While the statute was being defended, the attorney general tapped out. 2. When the statute stopped being defended, the attorney general came back in to defend the statute. This happened while there was still time for an appeal. I'm really not seeing any significant prejudice or processing problems.
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Mar 15, 2022 16:09
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Opinion! We all knew this Court was gonna let the Boston Marathon guy get the death penalty. March 4. UNITED STATES v. TSARNAEV TLDR: Tsarnaev can get the death penalty for the Boston Marathon bombing, even if (a) the District Court didn’t ask about the kind and degree of each prospective juror’s media exposure and (b) the District Court excluded evidence concerning Tamerlan’s possible involvement in the Waltham murders (which Tsarnaev was trying to offer to put Tamerlan forward as the mastermind). Holding / Majority Opinion (Thomas) On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev planted and detonated two homemade pressure-cooker bombs near the finish line of the Boston Marathon. The blasts hurled nails and metal debris into the assembled crowd, killing three while maiming and wounding hundreds. Three days later, the brothers murdered a campus police officer, carjacked a graduate student, and fired on police who had located them in the stolen vehicle. Dzhokhar attempted to flee in the vehicle but inadvertently killed Tamerlan by running him over. Dzhokhar was soon arrested and indicted. A jury found Dzhokhar guilty of 30 federal crimes and recommended the death penalty for 6 of them. The District Court accordingly sentenced Dzhokhar to death. The Court of Appeals vacated the death sentence. We now reverse. … A federal grand jury indicted Dzhokhar for 30 crimes, 17 of which were capital offenses. In preparation for jury selection, the parties jointly proposed a 100-question form to screen the prospective jurors. The District Court adopted almost all of them, including many that probed for bias. For example, some of the District Court’s questions asked whether a prospective juror had a close association with law enforcement. Others asked whether a prospective juror had strong feelings about Islam, Chechens, or the several Central Asian regions with which the Tsarnaevs were connected. Still others asked whether the prospective juror had a personal connection to the bombing. Several questions also probed whether media coverage might have biased a prospective juror. One question asked if the prospective juror had “formed an opinion” about the case because of what he had “seen or read in the news media.” Others asked about the source, amount, and timing of the person’s media consumption. Still another asked whether the prospective juror had commented or posted online about the bombings. The District Court did reject one media-related question. The proposed questionnaire had asked each prospective juror to list the facts he had learned about the case from the media and other sources. Concerned that such a broad, “unfocused” question would “cause trouble” by producing “unmanageable data” of minimal value that would come to dominate the entire voir dire, the District Court declined to include it in the questionnaire. After Dzhokhar objected to the removal, the District Court further explained that the question was “too unguided.” … After the District Court seated the jury, the case went to trial. Dzhokhar did not contest his guilt and the jury thus returned a guilty verdict on all counts. During the sentencing phase, the Government argued that Dzhokhar’s crimes warranted the death penalty. Dzhokhar’s mitigation theory centered on the idea that Tamerlan masterminded the bombing. According to Dzhokhar, he was not sufficiently culpable to warrant the death penalty because his older brother had pressured him to participate. To prove Tamerlan’s domineering nature, Dzhokhar sought to introduce hearsay evidence of a crime Tamerlan allegedly had committed years earlier. Specifically, FBI agents investigating the bombings had come to suspect that Tamerlan’s friend, Ibragim Todashev, possessed information about an unsolved triple homicide in Waltham, Massachusetts, where a non-Muslim acquaintance of Tamerlan’s and two others were found bound, robbed, and murdered with a knife. When agents went to interview Todashev about a month after the bombings, Todashev initially denied any involvement. Yet, when pressed, he told the agents that Tamerlan had hatched a plan to rob the three Waltham victims of drug proceeds on the night of September 11, 2011. According to Todashev, he and Tamerlan traveled to Waltham, held the men at gunpoint, and duct-taped their hands, feet, and mouths. After taking the money, Tamerlan insisted on killing the three men. According to Todashev, after he disagreed, Tamerlan told him to wait outside while Tamerlan cut their throats with a knife. The agents offered Todashev a pen and paper to write out his confession. Todashev instead attacked the agents, who killed him in self-defense. The FBI later used Todashev’s statement to obtain a search warrant for a follow-on search of Tamerlan’s car. In the lead-up to trial, the prosecution told Dzhokhar’s counsel what Todashev had said but did not turn over the recording of the interview or the FBI reports. … The Government filed a motion in limine to exclude any reference to the Waltham murders, contending that the evidence was irrelevant, or at least so lacking in probative value and so likely to confuse the issues that the court should exclude it. The District Court granted the Government’s motion in limine. As the District Court saw things, the evidence did not show what Tamerlan’s role was and, with Todashev dead, no further line of inquiry remained. The available information was “without any probative value” and “would be confusing to the jury and a waste of time.” When the sentencing proceedings finished, the jury concluded that Dzhokhar warranted the death penalty for 6 of the 17 death-penalty-eligible crimes, despite Dzhokhar’s argument that Tamerlan was more culpable. The District Court accordingly sentenced Dzhokhar to death. The Court of Appeals vacated Dzhokhar’s capital sentence on two grounds.First, the Court of Appeals held that the District Court abused its discretion during jury selection by declining to ask every prospective juror what he learned from the media about the case. According to the panel, such questions were required by that court’s 1968 decision in Patriarca v. United States, 402 F. 2d 314 (CA1), which had mandated this voir dire rule “in the exercise of [the court of appeals’] discretionary supervisory powers, not as a matter of constitutional law.” The Court of Appeals ruled that the District Court’s failure to comply with Patriarca was “an error of law and so an abuse of discretion.” Second, the panel held that the District Court abused its discretion when it excluded from sentencing the evidence concerning Tamerlan’s possible involvement in the Waltham murders. The panel believed that the evidence was sufficiently probative of Tamerlan’s ability to influence Dzhokhar. … The Sixth Amendment guarantees “the accused” the right to a trial “by an impartial jury.” The right to an “impartial” jury “does not require ignorance.” Notorious crimes are “almost, as a matter of necessity, brought to the attention” of those informed citizens who are “best fitted” for jury duty. A trial court protects the defendant’s Sixth Amendment right by ensuring that jurors have “no bias or prejudice that would prevent them from returning a verdict according to the law and evidence.” We have repeatedly said that jury selection falls “‘particularly within the province of the trial judge.’” That is so because a trial “judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record,” such as a “prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.” A trial court’s broad discretion in this area includes deciding what questions to ask prospective jurors. … As [the Court of Appeals] saw things, its decision nearly 50 years prior in Patriarca had, pursuant to its “supervisory authority,” required district courts presiding over high-profile cases to ask about the “‘kind and degree of [the prospective juror’s] exposure to the case or the parties.’” And because Patriarca purportedly set forth a “rule,” the District Court’s failure to follow it was “an error of law and so an abuse of discretion.” It is true that some of our precedents describe a “supervisory authority” that inheres in federal courts. But the Court’s precedents have also identified clear limits when lower courts have purported to invoke that authority. For example, supervisory rules cannot conflict with or circumvent a constitutional provision or federal statute. Nor can they conflict with or circumvent a Federal Rule. Finally, and most relevant here, lower courts cannot create prophylactic supervisory rules that circumvent or supplement legal standards set out in decisions of this Court. Payner exemplifies this last limit. There, a Federal District Court asserted supervisory power to suppress illegally seized evidence even when the seizure violated a third party’s Fourth Amendment rights, and the Court of Appeals affirmed the decision. This Court reversed, explaining that its Fourth Amendment jurisprudence had “established beyond any doubt” that a defendant could not assert a third party’s Fourth Amendment injury in order to suppress evidence. “Were we to accept this use of the supervisory power,” the Court reasoned, “we would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing.” Simply put, “the supervisory power does not extend so far.” Nor does any supervisory power extend as the Court of Appeals appears to suggest in this case. This Court has held many times that a district court enjoys broad discretion to manage jury selection, including what questions to ask prospective jurors. As the Court of Appeals acknowledged, our cases establish that a reviewing court may set aside a district court’s questioning only for an abuse of discretion. The Court of Appeals declined to apply that settled standard of review. Rather than ask whether media-content questions were necessary in light of the District Court’s exhaustive voir dire, the Court of Appeals resurrected Patriarca, handed down a purported legal rule that media-content questions are required in all high-profile cases, and then concluded that the District Court committed a legal error when it failed to comply with that rule. But a court of appeals cannot supplant the district court’s broad discretion to manage voir dire by prescribing specific lines of questioning, and thereby circumvent a wellestablished standard of review. Whatever the “supervisory power” entails, it does not countenance the Court of Appeals’ use of it. The Court of Appeals’ second reason for vacating Dzhokhar’s capital sentences—that the District Court erred in excluding from the sentencing proceedings evidence of the Waltham murders—fares no better. The Federal Death Penalty Act (FDPA) sets out a comprehensive scheme by which federal district courts adjudicate, review, and impose death sentences. Section 3593 provides that, at the sentencing phase of a capital trial, “information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor.” “Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials.” That said, FDPA proceedings are not evidentiary free-for-alls. The district court may exclude information under the FDPA “if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” We review these evidentiary exclusions for abuse of discretion. Here, during sentencing, Dzhokhar sought to introduce evidence linking Tamerlan to the unsolved Waltham murders. He argued that the evidence supported his mitigation defense that Tamerlan was the ringleader. The District Court acknowledged Dzhokhar’s rationale but excluded the evidence because it was “without any probative value” and “would be confusing to the jury.” That conclusion was reasonable and not an abuse of the District Court’s discretion. Dzhokhar sought to divert the sentencing jury’s attention to a triple homicide that Tamerlan allegedly committed years prior, though there was no allegation that Dzhokhar had any role in that crime. Nor was there any way to confirm or verify the relevant facts, since all of the parties involved were dead. As the District Court explained, “there simply [was] insufficient evidence to describe [any] participation Tamerlan may have had” or “tel[l] who played what role, if they played roles.” The District Court did not abuse its discretion when finding that the evidence lacked probative value, would confuse the jury, and ultimately would be nothing more than “a waste of time.” Dzhokhar and the dissent offer several counterarguments, none of which is convincing. First, Dzhokhar suggests that §3593(c) violates the Eighth Amendment if its balancing test operates to exclude any relevant mitigating evidence…Dzhokhar suggests that a district court violates the Eighth Amendment under these precedents if it excludes any marginally relevant mitigating evidence that fails the §3593(c) balancing test. … Our cases do not support Dzhokhar’s extreme position. “‘Lockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all.’” … Section 3593(c) sets up a highly permissive regime that allows criminal defendants to introduce a wide range of normally inadmissible evidence. The statute channels that evidence through an individualized balancing test that affords a capital defendant every reasonable opportunity to place relevant mitigating evidence before the penalty-phase jury…Put simply, §3593(c) “does not deny the defendant a full and fair opportunity to apprise the sentencer of all constitutionally relevant circumstances.” It therefore does not offend the Eighth Amendment. Dzhokhar alternatively disagrees with the balance that the District Court struck here under §3593(c), arguing that the Waltham evidence was “highly probative” to his mitigation defense. On his telling, the evidence showed that Tamerlan was a leader who pressured others to commit violence. But the District Court considered that argument and rejected it after reasonably explaining that “[t]here’s just no way of telling who played what role, if they played roles,” from the sparse and unreliable information before the court…no matter how Dzhokhar presented the evidence, its bare inclusion risked producing a confusing mini-trial where the only witnesses who knew the truth were dead. The District Court did not abuse its discretion by declining to lead the jury into this evidentiary detour. Finally, Dzhokhar argues that since the Government apparently considered Todashev’s statement to the FBI agents reliable enough to justify its reference in a search warrant affidavit, Todashev’s statements were necessarily reliable enough to be presented to the jury as mitigating evidence. We fail to see why. The District Court here did not sign the warrant or the affidavit. Whatever probable-cause assessment the FBI agent and the Magistrate Judge made, the District Court was free to evaluate the information independently when deciding whether to admit it under §3593(c). As explained, that evaluation was not an abuse of discretion. … Dzhokhar Tsarnaev committed heinous crimes. The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one. The judgment of the United States Court of Appeals for the First Circuit is reversed. It is so ordered. Lineup: Thomas, joined by Roberts, Alito, Gorsuch, Kavanaugh, and Barrett. Concurrence by Barrett, joined by Gorsuch. Dissent by Breyer, joined by Sotomayor and Kagan except as to Part II-C. Concurrence (Barrett, joined by Gorsuch) In this case, the First Circuit asserted “supervisory power” to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred. I write separately to note my skepticism that the courts of appeals possess such supervisory power in the first place. Article III’s grant of “[t]he judicial Power” imbues each federal court with the inherent authority to regulate its own proceedings. This authority permits federal courts to handle a range of matters, big and small, that fall in the gaps of governing statutes and formally adopted procedural rules. But here, the First Circuit did not adopt a rule regulating its own proceedings—it adopted a blanket rule that all district courts in its jurisdiction must follow on pain of reversal. In fairness to the First Circuit, we have suggested that the courts of appeals possess authority to dictate procedural rules for district courts. Understandably, then, the First Circuit followed our lead. But before we go further down this road, we should reexamine the map. Not only have we failed to identify a source for this supposed authority, it is unclear that any exists. To be sure, this Court has squarely asserted supervisory power to regulate procedure in lower federal courts. While we have not justified this power either, it has an at least arguable basis: the Constitution’s establishment of this Court as “supreme,” as distinct from the “inferior Courts” that Congress has discretion to create. Much like the grant of “[t]he judicial Power” carries with it inherent authority over local procedure, this Court’s designation as “supreme” might carry with it some inherent authority to prescribe procedural rules for inferior federal courts. In the end, this argument might be unsupported by the Constitution’s structure and history. Still, the text of Article III makes it plausible. Yet whatever the status of this Court’s supervisory authority, it is difficult, if not impossible, to find any comparable constitutional hook for such power in the courts of appeals. Nor does any statute grant them this general authority. And while it is tempting to roll supervisory authority into the power of appellate review, the two are analytically distinct. A court engaged in appellate review in this context determines whether a lower court exceeded its inherent authority to make a procedural choice. A court asserting supervisory authority imposes its own procedural choice on the lower court. In other words, supervisory authority is not necessarily a lesser included power of appellate review. This case does not require us to resolve whether the courts of appeals have supervisory authority over district courts. Either way, the First Circuit erred. At some point in the future, however, it would be worth revisiting our dicta. Dissent (Breyer, joined by Sotomayor and Kagan except as to Part II-C) During the sentencing phase of his murder trial, Boston Marathon bomber Dzhokhar Tsarnaev argued that he should not receive the death penalty primarily on the ground that his older brother Tamerlan took the leading role and induced Dzhokhar’s participation in the bombings. Dzhokhar argued that Tamerlan was a highly violent man, that Tamerlan radicalized him, and that Dzhokhar participated in the bombings because of Tamerlan’s violent influence and leadership. In support of this argument, Dzhokhar sought to introduce evidence that Tamerlan previously committed three brutal, ideologically inspired murders in Waltham, Massachusetts. The District Court prohibited Dzhokhar from introducing this evidence. The Court of Appeals held that the District Court abused its discretion by doing so. This Court now reverses the Court of Appeals. In my view, the Court of Appeals acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce this evidence. [Dzhokar admitted the bombing and focused on mitigation] Dzhokhar argued in mitigation that his conduct was less serious than Tamerlan’s and that Tamerlan’s radicalizing influence was a major reason that Dzhokhar participated in the bombings. In support of this theory, the District Court allowed Dzhokhar to argue that: (1) Dzhokhar “acted under the influence of his older brother” Tamerlan; (2) Dzhokhar “would not have committed the crimes but for [his] older brother Tamerlan”; (3) Dzhokhar “was particularly susceptible to his older brother’s influence,” “[w]hether because of Tamerlan’s age, size, aggressiveness, domineering personality, privileged status in the family, traditional authority as the eldest brother, or other reasons”; (4) Tamerlan “planned, led, and directed the Marathon bombing”; and (5) Tamerlan “became radicalized first, and then encouraged his younger brother to follow him.” The District Court also allowed Dzhokhar to introduce certain evidence in support of this mitigation theory. This included evidence that Tamerlan had behaved aggressively in the past, and that Dzhokhar looked up to Tamerlan. But the court did not allow Dzhokhar to introduce evidence of Tamerlan’s participation in the Waltham murders. The “Waltham murders” refers to the killing of three drug dealers in Waltham, Massachusetts. The murders took place on September 11, 2011, the 10th anniversary of the 9/11 terrorist attacks, and about a year and a half before the Boston Marathon bombings. The evidence relating to the Waltham murders came primarily from FBI agent interviews of Ibragim Todashev, a friend of Tamerlan’s. During the FBI interviews, Todashev (who attacked the agents and was killed midinterview) initially denied participating in the murders but later said that he and Tamerlan had committed them. In particular, Todashev said that it was Tamerlan’s idea to rob the drug dealers, one of whom was Tamerlan’s close friend. Todashev said that they both went to the drug dealers’ house, threatened the drug dealers at gun point, bound them with duct tape, and searched the house for money. Tamerlan then beat up the dealers and, in an attempt to get more money, threatened to stab them. Todashev also said that Tamerlan insisted on killing the drug dealers (even though Todashev “‘begged him not to’”), and that Todashev, feeling like he had no “way out,” waited outside the house while Tamerlan slit their throats. Finally, Todashev said that Tamerlan called him back inside to help clean up after the drug dealers were dead and that the two left with about $40,000 of stolen money. The FBI relied on Todashev’s statements to obtain a search warrant for Tamerlan’s car, which agents believed was the car used to drive to and from the drug dealers’ house. … Other evidence uncovered during the FBI’s investigation of the Boston Marathon bombings also related to the Waltham murders. Dias Kadyrbayev, a friend of Dzhokhar’s, stated that a few months before the bombings Dzhokhar learned of Tamerlan’s involvement in the Waltham murders. Kadyrbayev said that Dzhokhar described Tamerlan’s participation in the murders as “‘commit[ting] jihad.’” Investigators also found al Qaeda propaganda on Tamerlan’s computer that advocated stealing money from non-Muslims as a way to support jihadist principles. Dzhokhar was prohibited from introducing any of this evidence during the sentencing phase of his trial. At the end of his sentencing proceeding, and without hearing any evidence about the Waltham murders, eight jurors found that Tamerlan had become radicalized before Dzhokhar and encouraged Dzhokhar to follow his example. Three found that Tamerlan planned, led, and directed the bombings. Three also found that Dzhokhar acted under Tamerlan’s influence, that he was particularly susceptible to Tamerlan’s influence, and that he would not have committed the bombings but for Tamerlan. The jury nonetheless unanimously recommended the death penalty for Dzhokhar in respect to those counts involving the bomb that he himself—and he alone—had placed. The District Court then sentenced Dzhokhar to death. Dzhokhar appealed. As the Court explains, the Court of Appeals held that the District Court had to conduct a new sentencing proceeding for two independent reasons. First, the trial court had not adequately questioned potential jury members about the content of the pretrial publicity they had seen. Second, the trial court did not permit Dzhokhar to introduce evidence about the Waltham murders during the sentencing phase of his trial. I disagree with the Court’s decision (and I agree with the Court of Appeals) at least as to the second reason. … As the majority points out, district courts have significant discretion in deciding how to apply and weigh the statute’s factors. But “abuse-of-discretion review is not toothless; and it is entirely proper for a reviewing court to find an abuse of discretion when important factors . . . are ‘slighted.’” And here, we review for abuse of discretion in the context of “a matter so grave as the determination of whether a human life should be taken or spared.” I therefore apply the standard with care. … I have reviewed the record keeping in mind the reasons the District Court gave: (1) no probative value; (2) insufficient evidence to corroborate Tamerlan’s role in the murders; (3) waste of time; and (4) jury confusion. Reading the record in light of these factors, I believe that the Court of Appeals was correct that the District Court abused its discretion by excluding the Waltham evidence. The record does not adequately support exclusion for the District Court’s stated reasons. … 1. Relevance/Probative Value The District Court was wrong when it described the Waltham evidence as lacking “any probative value.”...The Waltham evidence tended to show that Tamerlan was involved in a brutal triple murder, possibly over Todashev’s objections, a year and a half before the bombings…Evidence that Tamerlan participated in (and potentially orchestrated) one set of ideologically motivated murders in 2011 supports the claim that Tamerlan was the violent, radicalizing force behind the ideologically motivated bombings a year and a half later. … 2. Corroboration/Reliability The Waltham evidence was corroborated and sufficiently reliable to warrant presentation to the jury. Dzhokhar’s friend Kadyrbayev said that Dzhokhar believed Tamerlan was involved in the Waltham killings. Kadyrbayev also said that Dzhokhar told him that Tamerlan “had committed jihad” in Waltham….Further, the Waltham evidence was sufficiently reliable for the Government to conclude (via FBI affidavit) that it helped to establish probable cause that Tamerlan committed the Waltham murders. It was reliable enough for a federal judge to issue a search warrant for Tamerlan’s car to look for evidence of those murders. … 3. Waste of Time/Need The Waltham evidence was not simply cumulative of other mitigation evidence. And it was critically important to Dzhokhar’s mitigation defense…Participation in a robbery and triple murder is much stronger evidence of Tamerlan’s violent nature than [the low grade evidence Dzhokar had of domestic abuse and yelling incidents]. … 4. Jury Confusion In my view, the District Court’s strongest reason for excluding the Waltham evidence, and the majority’s best argument for reversing the Court of Appeals, is that admitting the evidence might have confused the jurors by prompting a “minitrial” about what actually happened in Waltham and what role Tamerlan played. … Two reasons convince me that…concerns about jury confusion notwithstanding, the District Court abused its discretion by excluding the evidence. First, death penalty proceedings are special. Unlike evidentiary determinations made in other contexts, a trial court’s decision to admit or exclude evidence during a capital sentencing proceeding is made against the backdrop of a capital defendant’s constitutional right to argue against the death penalty….The [FDPA] tips the balance in favor of admitting mitigating evidence, even if admission means increasing the length of a proceeding by inviting some “minitrials” over subsidiary issues. … Second, and perhaps of greater importance, a sampling of other death penalty proceedings indicates that the prosecution often introduces evidence of a defendant’s prior criminal behavior in support of the death penalty, including evidence that poses a similar risk of jury confusion. Trial judges admit this evidence under the same admissibility standard that governs the admission of mitigating evidence. And trial courts admit this evidence not because the defendant’s past criminal behavior is directly relevant to the crime at issue but because it supports an “aggravating” deathpenalty-related factor such as a defendant’s risk of future dangerousness. If courts admit evidence of past criminal behavior, unrelated to the crime at issue, to show aggravating circumstances, why should they not do the same to show mitigating circumstances? … Three courts including this Court have now examined this record with care. Why? Why are appellate courts so deeply involved in what is, after all, a trial-based evidentiary matter? The reason, in my view, lies in part in the nature of the underlying proceeding. It is a death penalty proceeding. And where death is at stake, the courts (and Congress) believe that particular judicial care is required. That same care applies on abuseof-discretion review, just as it does for any other standard. The extra time that close examination takes is part of the procedural price that a judicial system allowing the death penalty will inevitably exact. … [Part II-C, Breyer on his own saying the death penalty is unconstitutional] I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty. This case provides just one more example of some of those problems. … In my view, the Court of Appeals was correct in its Waltham evidence conclusion. For that reason, the District Court should conduct a new sentencing proceeding. I need not, and do not, reach the pretrial publicity question. … For these reasons, with respect, I dissent. https://www.supremecourt.gov/opinions/21pdf/20-443_new_2d8f.pdf
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Mar 15, 2022 16:09
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How many years of being trapped in a supermax prison without hope of anything better before you start begging for death anyway? Don’t they have to put people in weird restraint slings so they don’t bash their heads open on the walls?
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Mar 15, 2022 16:14
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I AM GRANDO posted:How many years of being trapped in a supermax prison without hope of anything better before you start begging for death anyway? Don’t they have to put people in weird restraint slings so they don’t bash their heads open on the walls? Judging by the amount of people on death row trying desperately to get off of it, this isn't a major thing! Anyway the Supreme Court will always go to any lengths to make sure that someone gets executed (it's the only thing they'll ignore freedom of religions claims on) so not at all surprising
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Mar 15, 2022 16:19
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A lot of those people are innocent, though.
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Mar 15, 2022 16:23
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Remember when texas executed a man for burning down his home with his kids inside based upon fire inspector voodoo. Even though he was innocent and actual science based investigation showed it was a spaceheater that cause the blaze, Governor Rick Perry put him to death. Factually innocent people get put to death with alarming frequency in this nation. Also, Barrett’s concurrence is terrifying. All circuit supervisory rules dumpstered and only the conservative rear end scotus is able to set any rules.
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Mar 15, 2022 16:31
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ulmont posted:Nah. This one seems simple: thanks. just couldn't parse it
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Mar 15, 2022 16:46
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Mr. Nice! posted:Also, Barrett’s concurrence is terrifying. All circuit supervisory rules dumpstered and only the conservative rear end scotus is able to set any rules. "You can't make 'supervisory rules' that have the force of law for other courts" doesn't sound that terrifying. ...I mean, the circuit court could have just found that the 6th or 8th demands the question be asked, and that would have had just as much force of law and been just as reversible by the Supreme Court, so I really think the supervisory rule bit is a red herring, since "you can't make a supervisory rule but you can interpret the underlying law to require X" is just dumb.
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Mar 15, 2022 16:56
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I don’t see it as a red herring. It’s a way for conservative justices on the SCOTUS to effectively take control over places like the 9th Circuit and get rid of any rules they don’t like for all federal courts. It’s a way to overturn a shitload of circuit precedent nationwide without having to actually rule on cases that would overturn them.
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Mar 15, 2022 17:05
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Opinion! Narrow unanimous holding that FISA didn’t get rid of the state secrets privilege. This one is from March 4; one more to post, from March 7, and I'll be caught up again. FBI v. FAZAGA TLDR: The Foreign Intelligence Surveillance Act of 1978 (FISA), which provides special procedures for use when the Government wishes to conduct foreign intelligence surveillance and a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and order specified forms of relief, does not get rid of the “state secrets” privilege. That doesn’t necessarily mean that Fazaga is going to lose, but it’s certainly not a good sign. Holding / Majority Opinion (Alito) In this case, we consider the relationship between the longstanding “state secrets” privilege and a provision of the Foreign Intelligence Surveillance Act of 1978 (FISA), that provides a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and may thereafter order specified forms of relief. See §1806(f ). This case was brought in federal court by three Muslim residents of Southern California who allege that the Federal Bureau of Investigation illegally surveilled them and others under FISA because of their religion. In response, the defendants (hereinafter Government) invoked the state secrets privilege and asked the District Court to dismiss most of respondents’ claims because the disclosure of counter-intelligence information that was vital to an evaluation of those claims would threaten national-security interests. The District Court agreed with the Government’s argument and dismissed the claims in question, but the Ninth Circuit reversed, reasoning that §1806(f) “displaced” the state secrets privilege. We now hold that §1806(f) has no such effect, and we therefore reverse. This Court has repeatedly recognized “a Government privilege against court-ordered disclosure of state and military secrets.” The present case requires us to determine whether FISA affects the availability or scope of that long-established privilege. Electronic surveillance for ordinary criminal law enforcement purposes is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, but foreign intelligence surveillance presents special national-security concerns, and Congress therefore enacted FISA to provide special procedures for use when the Government wishes to conduct such surveillance. FISA established the Foreign Intelligence Surveillance Court to entertain applications for and, where appropriate, to issue orders authorizing such surveillance. When information is lawfully gathered pursuant to such an order, §1806 permits its use in judicial and administrative proceedings and specifies the procedure that must be followed before that is done. Under §1806(c), “[w]henever the Government intends to enter into evidence or otherwise use or disclose . . . against an aggrieved person” in any court proceeding any information obtained under FISA, the United States must “notify” both “the aggrieved person and the court.” Subsection (e) then allows anyone against whom the Government intends to use such information to move to suppress that evidence on the ground that it was “unlawfully acquired” or that “the surveillance was not made in conformity with an order of authorization or approval.” §1806(e). The specific provision at issue here, subsection (f ) of §1806, establishes procedures for determining the lawfulness and admissibility of such information. That subsection permits a court to make that determination “in camera and ex parte” if the “Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.” §1806(f). … Once §1806(f)’s in camera and ex parte procedures are triggered, the court must review the “application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” If the court finds that the evidence was unlawfully obtained, it must “suppress” the evidence or “otherwise grant the motion of the aggrieved person.” But if the court finds that the evidence was lawfully obtained, it must “deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.” Respondents Yassir Fazaga, Ali Malik, and Yasser Abdel Rahim are members of Muslim communities in southern California who claim that the Federal Bureau of Investigation illegally surveilled them because of their religion. … In 2011, respondents filed this putative class action against the United States, the FBI, and two FBI officials in their official capacities. Respondents claimed that the Government’s unlawful information-gathering operation violated their rights under the Establishment Clause; the Free Exercise Clause; the Fourth Amendment; the equal protection component of the Fifth Amendment’s Due Process Clause; the Religious Freedom Restoration Act, 42 U. S. C. §2000bb et seq.; the Federal Tort Claims Act, 28 U. S. C. §1346; FISA, 50 U. S. C. §1810; the Privacy Act, 5 U. S. C. §552a; and California law. The Government moved to dismiss all those claims and argued, among other things, that the state secrets privilege required dismissal of most of them. [The district court dismissed; the Ninth Circuit found that the § 1806 procedures replaced the state secrets privilege.] Much of the parties’ argumentation in this Court concerns the correct interpretation of §1806( ). The Government contends that the Ninth Circuit erred because §1806(f) is “‘relevant only when a litigant challenges the admissibility of the government’s surveillance evidence.’” But respondents interpret that provision more broadly. Respondents do not dispute that §1806(f) applies when the Government seeks to introduce evidence and a private party seeks to prevent such use, but they argue that §1806(f) is also sometimes triggered when “a civil litigant seeks to obtain such secret information.” And they say that §1806(f) applies in this case for two reasons. First, they note that §1806(f) is triggered not only when the Government gives notice that it intends to “enter into evidence” information obtained by means of covered surveillance but also when it notifies the court that it “intends to . . . otherwise use” such information. Respondents argue that the Government “use[d]” information gathered under FISA when it invoked the state secrets privilege and asked the District Court to dismiss some of respondents’ claims pursuant to that privilege. In respondents’ view, the attempt to leverage a claim of privilege into a dismissal constitutes a “use” of FISA information against them. … We need not resolve this dispute about the meaning of §1806(f) because we reverse the Ninth Circuit on an alternative ground—namely, that even as interpreted by respondents, §1806(f) does not displace the state secrets privilege. We reach this conclusion for two reasons. First, the text of FISA weighs heavily against respondents’ displacement argument. FISA makes no reference to the state secrets privilege. It neither mentions the privilege by name nor uses any identifiable synonym, and its only reference to the subject of privilege reflects a desire to avoid the alteration of privilege law. The absence of any statutory reference to the state secrets privilege is strong evidence that the availability of the privilege was not altered in any way. Regardless of whether the state secrets privilege is rooted only in the common law (as respondents argue) or also in the Constitution (as the Government argues), the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language. Even if respondents’ interpretation of §1806(f) is accepted, nothing about the operation of that provision is at all incompatible with the state secrets privilege. … As an initial matter, it seems clear that the state secrets privilege will not be invoked in the great majority of cases in which §1806(f) is triggered. Section 1806(f) is most likely to come into play when the Government seeks to use FISA evidence in a judicial or administrative proceeding, and the Government will obviously not invoke the state secrets privilege to block disclosure of information that it wishes to use. Section 1806(f) is much more likely to be invoked in cases of this sort than in cases in which an aggrieved person takes the lead and seeks to obtain or disclose FISA information for a simple reason: individuals affected by FISA surveillance are very often unaware of the surveillance unless it is revealed by the Government. With these cases out of the way, what is left are cases in which an aggrieved party, rather than the Government, triggers the application of §1806(f), but even under respondents’ interpretation of that provision, there is no clash between §1806(f) and the state secrets privilege. The statute and the privilege (1) require courts to conduct different inquiries, (2) authorize courts to award different forms of relief, and (3) direct the parties and the courts to follow different procedures. First and most importantly, the inquiries required by §1806(f) and our state secrets jurisprudence are fundamentally different. Under §1806(f), the central question is the lawfulness of surveillance. Courts are instructed to determine “whether the surveillance of the aggrieved person was lawfully authorized and conducted.” §1806(f) By contrast, when the state secrets privilege is asserted, the central question is not whether the evidence in question was lawfully obtained but whether its disclosure would harm national-security interests….We have never suggested that an assertion of the state secrets privilege can be defeated by showing that the evidence was unlawfully obtained. Second, in accordance with the fundamentally different inquiries called for under §1806(f) and the state secrets privilege, the available relief also differs. Under §1806, a court has no authority to award any relief to an aggrieved person if it finds that the evidence was lawfully obtained, whereas a court considering an assertion of the state secrets privilege may order the disclosure of lawfully obtained evidence if it finds that disclosure would not affect national security (assuming that the information is otherwise subject to disclosure). And under §1806(f), as interpreted by respondents, a court must award relief to an aggrieved person if it finds that the evidence was unlawfully obtained, but under the state secrets privilege, lawfulness is not determinative. … Third, the inquiries under §1806(f) and the state secrets privilege are procedurally different. Section 1806(f) allows the Attorney General to obtain in camera and ex parte review of the relevant surveillance evidence if he “files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.” By contrast, the state secrets privilege may be invoked not just by the Attorney General but by “the head of the department which has control over the matter, after actual personal consideration by that officer.” … The procedures used to evaluate assertions of the state secrets privilege may also, in some circumstances, be more protective of information than the procedures prescribed by §1806(f). Subsection (f) allows “review in camera and ex parte” of materials that are “necessary to determine” whether the surveillance was lawful. Nothing in that subsection expressly provides that the Government may shield highly classified information from review by the judge if the information is “necessary” to the determination of the legality of surveillance. Reynolds, on the other hand, expressly states that examination of the evidence at issue, “even by the judge alone, in chambers,” should not be required if the Government shows “a reasonable danger that compulsion of the evidence” will expose information that “should not be divulged” in “the interest of national security.” Thus, the state secrets privilege, unlike §1806(f), may sometimes preclude even in camera, ex parte review of the relevant evidence. For those reasons, we conclude that Congress did not eliminate, curtail, or modify the state secrets privilege when it enacted §1806(f). We reiterate that today’s decision addresses only the narrow question whether §1806(f) displaces the state secrets privilege. Because we conclude that §1806(f) does not have that effect under either party’s interpretation of the statute, we do not decide which interpretation is correct. Nor do we decide whether the Government’s evidence is privileged or whether the District Court was correct to dismiss respondents’ claims on the pleadings. According to respondents, the state secrets privilege authorizes dismissal only where the case concerns a Government contract or where the very subject of the action is secret. The Government, by contrast, relies on lower court cases permitting dismissal in other circumstances. The Ninth Circuit did not decide those questions, and we do not resolve them here. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Alito, unanimous. https://www.supremecourt.gov/opinions/21pdf/20-828_5ie6.pdf
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Mar 17, 2022 16:57
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Constitutional rights? gently caress that, we have this police state law that supersedes all of those pesky things because it gives us a convenient excuse to not defend our actions.
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Mar 17, 2022 17:37
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Evil Fluffy posted:Constitutional rights? gently caress that, we have this police state law that supersedes all of those pesky things because it gives us a convenient excuse to not defend our actions. "State secrets" privilege isn't a "police state law" so much as it's literally tradition, which we often times call the common law.
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Mar 17, 2022 19:26
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Opinion! Basically unanimous but everyone wants to write their own opinion. But now I’m caught up! WOODEN v. UNITED STATES TLDR: Even if you rob 10 different storage units at the same time and get convicted of 10 different burglaries as a result, that’s one “occasion” for purposes of the Armed Career Criminal Act sentencing enhancement. Holding / Majority Opinion (Kagan) In the course of one evening, William Dale Wooden burglarized ten units in a single storage facility. He later pleaded guilty, for that night’s work, to ten counts of burglary—one for each storage unit he had entered. Some two decades later, the courts below concluded that those convictions were enough to subject Wooden to enhanced criminal penalties under the Armed Career Criminal Act (ACCA). That statute mandates a 15-year minimum sentence for unlawful gun possession when the offender has three or more prior convictions for violent felonies like burglary “committed on occasions different from one another.” The question presented is whether Wooden’s prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously. The answer is no. Convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA. … [For Wooden, the difference between an ACCA enhancement and not is about 13 years in prison. He naturally appealed this up as far as he could.] … Framed in terms of this case, the disputed question is whether Wooden committed his crimes on a single occasion or on ten separate ones. The Government answers ten, relying on a legally fancified version of the Sixth Circuit’s timing test. In the ACCA context, the Government argues, an “occasion” happens “at a particular point in time”—the moment “when [an offense’s] elements are established.” So offenses “occur on different ‘occasions’ when the criminal conduct necessary to satisfy the offense elements occurs at different times.” Applying that elements-based, “temporal-distinctness test” to this case, the Government explains that Wooden’s burglaries were “quintessentially sequential, rather than simultaneous.” After all, a person can satisfy the elements of burglary only by entering (or remaining in) a structure with criminal intent. And it would have been “physically impossible” for Wooden to have entered (or remained in) multiple storage units “at once.” Brief for United States 12. Each of Wooden’s ten entries thus counts (so says the Government) as another “occasion,” triggering ACCA’s stringent penalties more than three times over. We think not. The ordinary meaning of the word “occasion”—essentially an episode or event—refutes the Government’s single-minded focus on whether a crime’s elements were established at a discrete moment in time. And ACCA’s history and purpose do so too: The origin of the “occasions” clause confirms that multiple crimes may occur on one occasion even if not at the same moment. Wooden’s night of crime is a perfect case in point. His one-after-another-after-another burglary of ten units in a single storage facility occurred on one “occasion,” under a natural construction of that term and consistent with the reason it became part of ACCA. … By treating each temporally distinct offense as its own occasion, the Government goes far toward collapsing two separate statutory conditions. Recall that ACCA kicks in only if (1) a §922(g) offender has previously been convicted of three violent felonies, and (2) those three felonies were committed on “occasions different from one another.” In other words, the statute contains both a three-offense requirement and a three-occasion requirement. But under the Government’s view, the two will generally boil down to the same thing: When an offender’s criminal history meets the three-offense demand, it will also meet the three-occasion one. That is because people seldom commit—indeed, seldom can commit—multiple ACCA offenses at the exact same time. Take burglary. It is, just as the Government argues, “physically impossible” for an offender to enter different structures simultaneously. Or consider crimes defined by the use of physical force, such as assault or murder. Except in unusual cases (like a bombing), multiple offenses of that kind happen one by one by one, even if all occur in a short spell. The Government’s reading, to be sure, does not render the occasions clause wholly superfluous; in select circumstances, a criminal may satisfy the elements of multiple offenses in a single instant. But for the most part, the Government’s hyper-technical focus on the precise timing of elements—which can make someone a career criminal in the space of a minute—gives ACCA’s three-occasions requirement no work to do. [Thomas / Alito / Barrett don’t join this part because it talks about legislative history.] Statutory history and purpose confirm our view of the occasions clause’s meaning, as well as our conclusion that Wooden is not a career offender. For the first four years of its existence, ACCA asked only about offenses, not about occasions. Its enhanced penalties, that is, kicked in whenever a §922(g) offender had three prior convictions for specified crimes—in the initial version, for robbery or burglary alone, and in the soon-amended version, for any violent felony or serious drug offense. Congress added the occasions clause only after a court applied ACCA to an offender much like Wooden—a person convicted of multiple counts of robbery arising from a single criminal episode. … For the reasons stated, Wooden’s ten burglary convictions were for offenses committed on a single occasion. They therefore count only once under ACCA. We reverse the judgment of the Sixth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Lineup: Kagan, joined by Roberts, Breyer, Sotomayor, and Kavanaugh, and by Thomas, Alito, and Barrett as to all but Part II-B. Concurrence by Sotomayor. Concurrence by Kavanaugh. Concurrence (Sotomayor) I join the opinion of the Court because on the facts of this case, it is clear that Wooden’s prior convictions did not take place “on occasions different from one another,” as required for the sentencing enhancement to apply. JUSTICE GORSUCH raises questions about the clarity of the record below, but in my view, those questions only underscore the Government’s failure to carry its burden of proving the enhancement’s application. I agree with JUSTICE GORSUCH, however, that the rule of lenity provides an independent basis for ruling in favor of a defendant in a closer case, and I join Parts II–IV of his opinion concurring in the judgment. Concurrence (Kavanaugh) I join the Court’s opinion in full. In light of JUSTICE GORSUCH’s thoughtful concurrence in the judgment, I write separately to briefly explain why the rule of lenity has appropriately played only a very limited role in this Court’s criminal case law. And I further explain how another principle—the presumption of mens rea—can address JUSTICE GORSUCH’s important concern, which I share, about fair notice in federal criminal law. A common formulation of the rule of lenity is as follows: If a federal criminal statute is grievously ambiguous, then the statute should be interpreted in the criminal defendant’s favor. Importantly, the rule of lenity does not apply when a law merely contains some ambiguity or is difficult to decipher. As this Court has often said, the rule of lenity applies only when “‘after seizing everything from which aid can be derived,’” the statute is still grievously ambiguous. The rule “comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Our repeated use of the term “grievous ambiguity” underscores that point. Properly applied, the rule of lenity therefore rarely if ever plays a role because, as in other contexts, “hard interpretive conundrums, even relating to complex rules, can often be solved.” And if “a reviewing court employs all of the traditional tools of construction, the court will almost always reach a conclusion about the best interpretation of the [law] at issue.” In short, because a court must exhaust all the tools of statutory interpretation before resorting to the rule of lenity, and because a court that does so often determines the best reading of the statute, the rule of lenity rarely if ever comes into play. In other words, “if lenity invariably comes in ‘last,’ it should essentially come in never.” As I see it, that explains why this Court rarely relies on the rule of lenity, at least as a decisive factor. I would not upset our rule of lenity case law by making the ambiguity trigger any easier to satisfy. For example, I would not say that any front-end ambiguity in the statute justifies resort to the rule of lenity even before exhausting the tools of statutory interpretation. One major problem with that kind of ambiguity trigger is that ambiguity is in the eye of the beholder and cannot be readily determined on an objective basis. Applying a looser front-end ambiguity trigger would just exacerbate that problem, leading to significant inconsistency, unpredictability, and unfairness in application. For those reasons, I would not alter our rule of lenity case law. That said, I very much agree with JUSTICE GORSUCH about the importance of fair notice in federal criminal law. But as I see it, that concern for fair notice is better addressed by other doctrines that protect criminal defendants against arbitrary or vague federal criminal statutes—in particular, the presumption of mens rea. The deeply rooted presumption of mens rea generally requires the Government to prove the defendant’s mens rea with respect to each element of a federal offense, unless Congress plainly provides otherwise. In addition, with respect to federal crimes requiring “willfulness,” the Court generally requires the Government to prove that the defendant was aware that his conduct was unlawful. To be sure, if a federal criminal statute does not contain a “willfulness” requirement and if a defendant is prosecuted for violating a legal prohibition or requirement that the defendant honestly was unaware of and reasonably may not have anticipated, unfairness can result because of a lack of fair notice. That scenario could arise with some malum prohibitum federal crimes, for example. But when that fair notice problem arises, one solution where appropriate could be to require proof that the defendant was aware that his conduct was unlawful. Alternatively, another solution could be to allow a mistake-of-law defense in certain circumstances—consistent with the longstanding legal principle that an act is not culpable unless the mind is guilty. In sum, I would not invite the inconsistency, unpredictability, and unfairness that would result from expanding the rule of lenity beyond its very limited place in the Court’s case law. I would, however, continue to vigorously apply (and where appropriate, extend) mens rea requirements, which as Justice Robert Jackson remarked, are “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Concurrence in part and concurrence in the judgment (Barrett, joined by Thomas) I join all but Part II–B of the Court’s opinion. I agree with the Court’s analysis of the ordinary meaning of the word “occasion” and its conclusion that Wooden’s burglaries count only once under the Armed Career Criminal Act. But I do not share the Court’s view that Congress ratified the Solicitor General’s brief confessing error in United States v. Petty, 798 F. 2d 1157 (CA8 1986), when it amended the Act to add the occasions clause. This argument depends on two flawed inferences: first, that Congress specifically intended to reject the Eighth Circuit’s initial decision in Petty, and second, that it embraced the former Solicitor General’s reasoning for why that decision was wrong. The latter error, in particular, is likely to work mischief down the line. As an initial matter, the Court errs in asserting that the occasions clause was crafted to reject the result that the Eighth Circuit initially reached in Petty. (Recall that the Eighth Circuit changed its view on remand after the Solicitor General confessed error in this Court.) The Court’s evidence for that proposition consists of nothing but a short analysis that Senator Byrd submitted for the Congressional Record in calendaring the proposed amendment. Petty’s tenuous tie to the statute distinguishes this case from the many in which we have recognized that a judicial decision or line of decisions has provided the impetus for legislation. In some instances, enacted findings have explicitly connected the statute to a prior decision. In others, a well-established legal backdrop has revealed Congress’ reasons for acting. But here, no enacted language mentions Petty, and the Court wisely does not portray the case—a single, subsequently vacated court of appeals opinion—as part of the settled legal landscape against which ACCA was amended. The only thread connecting the occasions clause to Petty is legislative history, and the problems with legislative history are well rehearsed. … The Court’s approach will likely have downstream effects because it invites both litigants and lower courts to mine the Solicitor General’s brief for guidance on the scope of the occasions clause—as the parties did in this case. To be sure, the most important indicators of whether crimes occurred on a single “occasion”—proximity in time and location—will matter most. But on top of that, lower courts may place weight on the buzzwords that the Court highlights in the Solicitor General’s brief: “repeat offenders,” “habitual offenders,” “recidivists,” “revolving door offenders,” and “three time loser[s].” And that could sow unnecessary confusion. Take a case involving three drug sales that occurred at 8 o’clock on three consecutive evenings at three different locations. Applying the ordinary meaning of the text seems straightforward enough: The three offenses are separate occasions because they occurred a day apart and at different locations, notwithstanding the similarity of the crimes. Yet factor in the details of the Solicitor General’s brief, and the result is not so clear. Is a defendant who committed three crimes over the course of three days really a “revolving door offende[r]” or a true “recidivis[t]”? Ibid. (internal quotation marks omitted). Maybe not—those labels evoke a distinct inquiry. And though the labels may capture what Congress was getting at, the statute chooses a particular way of getting there: the text of the occasions clause. We should leave it at that. The Court glosses this statute by leaning on weak evidence of Congress’ impetus for amending the statute, followed by still weaker evidence that Congress embraced the reasoning of a brief filed by the Solicitor General. I would impute to Congress only what can fairly be imputed to it: the words of the statute. Crimes within a spree like Wooden’s do not count as separate ACCA predicates because of the statutory language, not because those who drafted the amendment had either Petty’s case or the Solicitor General’s prose in mind. Concurrence in the judgment (Gorsuch, joined by Sotomayor as to Parts II, III, and IV) [Sotomayor doesn’t join yet] Once more we confront the Armed Career Criminal Act. Disputes over the statute’s meaning have occupied so much of this Court’s attention over so many years that various pieces of the law and doctrines associated with it have earned their own nicknames—the Elements Clause, the Residual Clause, the Categorical Approach. Now comes the Occasions Clause. This subsection requires courts to impose 15-year mandatory minimum prison sentences on individuals who unlawfully possess a gun if they also have three or more prior convictions for certain crimes “committed on occasions different from one another.” For years, lower courts have struggled with the Occasions Clause, reaching contradictory judgments on similar facts. We took this case hoping to bring some clarity to at least this particular corner of the ACCA. What do we resolve? The Court rejects the Sixth Circuit’s rule that crimes occurring sequentially always occur on different occasions. Sometimes, the Court holds, crimes committed one after another can take place on a single occasion. No one doubts that William Wooden had to break through wall after wall dividing 10 separate storage units to complete his crimes. Or that, by the end of it all, he committed 10 distinct criminal offenses. But, the Court explains, none of this automatically dictates the conclusion that his crimes occurred on different occasions. Beyond that clear holding, however, lies much uncertainty. Rather than simply observe that sequential crimes can occur on one occasion and return this case to the Court of Appeals for resolution, the Court ventures further. It directs lower courts faced with future Occasions Clause cases to employ a “multi-factored” balancing test in which “a range of circumstances may be relevant.” … The Court’s multi-factor balancing test may represent an earnest attempt to bring some shape to future litigation under the Occasions Clause. But it is still very much a judicial gloss on the statute’s terms—and one that is unnecessary to resolve the case at hand. Multi-factor balancing tests of this sort, too, have supplied notoriously little guidance in many other contexts, and there is little reason to think one might fare any better here. In fact, many lower courts faced with Occasions Clause cases already look to the same “multiplicity of factors” the Court prescribes today, including geographic location, the nature of the offenses, the number of victims, the means employed, and time. So far the results have proven anything but predictable given the almost infinite number of factual permutations these cases can present. And all of this has yielded a grave problem: Some individuals face mandatory 15-year prison terms while other similarly situated persons do not—with the results depending on little more than how much weight this or that judge chooses to assign this or that factor. … Respectfully, all this suggests to me that the key to this case does not lie as much in a multiplicity of factors as it does in the rule of lenity. Under that rule, any reasonable doubt about the application of a penal law must be resolved in favor of liberty. Because reasonable minds could differ (as they have differed) on the question whether Mr. Wooden’s crimes took place on one occasion or many, the rule of lenity demands a judgment in his favor. [Sotomayor joins now. Presumably she was ok with the multi-factor balancing test.] The “rule of lenity” is a new name for an old idea—the notion that “penal laws should be construed strictly.” The rule first appeared in English courts, justified in part on the assumption that when Parliament intended to inflict severe punishments it would do so clearly. In the hands of judges in this country, however, lenity came to serve distinctively American functions—a means for upholding the Constitution’s commitments to due process and the separation of powers. Accordingly, lenity became a widely recognized rule of statutory construction in the Republic’s early years. … Doubtless, lenity carries its costs. If judges cannot enlarge ambiguous penal laws to cover problems Congress failed to anticipate in clear terms, some cases will fall through the gaps and the legislature’s cumbersome processes will have to be reengaged. But, as the framers appreciated, any other course risks rendering a self-governing people “slaves to their magistrates,” with their liberties dependent on “the private opinions of the judge.” From the start, lenity has played an important role in realizing a distinctly American version of the rule of law—one that seeks to ensure people are never punished for violating just-so rules concocted after the fact, or rules with no more claim to democratic provenance than a judge’s surmise about legislative intentions. It may be understandable why the Court declines to discuss lenity today. Certain controversies and misunderstandings about the rule have crept into our law in recent years. I would take this opportunity to answer them. Begin with the most basic of these controversies—the degree of ambiguity required to trigger the rule of lenity. Some have suggested that courts should consult the rule of lenity only when, after employing every tool of interpretation, a court confronts a “grievous” statutory ambiguity. But ask yourself: If the sheriff cited a loosely written statute as authority to seize your home, would you be satisfied with a judicial explanation that, yes, the law was ambiguous, but the sheriff wins anyway because the ambiguity isn’t “grievous”? If a judge sentenced you to decades in prison for conduct that no law clearly proscribed, would it matter to you that the judge considered the law “merely”—not “grievously”—ambiguous? … Where did the talk about “grievous” ambiguities begin? The problem may trace to Huddleston v. United States, 415 U. S. 814, 831 (1974). That decision came during a “bygone era” characterized by a more freewheeling approach to statutory construction. Nor did the decision pause to consider, let alone overrule, any of this Court’s preexisting cases explaining lenity’s original and historic scope. Indeed, in the years that followed Huddleston, this Court routinely returned to a more traditional understanding. And even in Huddleston itself, the discussion of “grievous” ambiguities was dicta—the Court found no ambiguity of any kind in the statute at issue. These peculiar circumstances hardly supply any court with a sound basis for ignoring or restricting one of the most ancient rules of statutory construction— let alone one so closely connected to the Constitution’s protections. A second and related misunderstanding has crept into our law. Sometimes, Members of this Court have suggested that we possess the authority to punish individuals under ambiguous laws in light of our own perceptions about some piece of legislative history or the statute’s purpose. Today’s decision seemingly nods in the same direction. In a sentence in Part II–A, the Court says that statutory purpose is one factor a judge may “kee[p] an eye on” when deciding whether to enhance an individual’s sentence under the Occasions Clause. The Court then proceeds to discuss the Clause’s legislative history at length in Part II–B. It may be that the Court today intends to suggest only that judges may consult legislative history and purpose to limit, never expand, punishment under an ambiguous statute. But even if that’s so, why take such a long way around to the place where lenity already stands waiting? The right path is the more straightforward one. Where the traditional tools of statutory interpretation yield no clear answer, the judge’s next step isn’t to legislative history or the law’s unexpressed purposes. The next step is to lenity. As Justice Story explained, because “penal statutes are construed strictly . . . forfeitures are not to be inflicted by straining the words so as to reach some conjectural policy.” … The rule of lenity has a critical role to play in cases under the Occasions Clause. The statute contains little guidance, and reasonable doubts about its application will arise often. When they do, they should be resolved in favor of liberty. Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” https://www.supremecourt.gov/opinions/21pdf/20-5279_new_h315.pdf
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Mar 17, 2022 19:26
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Man you know what would be a dope idea, some kind of bill of rights or something that could list out sacrosanct civil and human rights against arbitrary surveillance powers carried out by authoritarian governments that rely on hundreds of years of cruft built up under traditions of despotism USER WAS DRAGGED TO THE STAR CHAMBER FOR THIS POST VitalSigns fucked around with this message at 02:02 on Mar 20, 2022 |
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Mar 20, 2022 01:58
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Rejoice, a Clarence Thomas health scare. https://www.cnn.com/2022/03/20/politics/clarence-thomas-hospitalized/index.html
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Mar 21, 2022 02:17
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Dick Jones posted:Rejoice, a Clarence Thomas health scare. I hope his suffering is short and that he never gets sick again. It would only be fair.
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Mar 21, 2022 02:45
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Hospitalization is a socialist trap; doctors helping you is actually keeping you down. Bootstraps yourself, fix your own lovely heart.
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Mar 21, 2022 03:03
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Clarence Darrow posted:I have never killed any one, but I have read some obituary notices with great satisfaction.
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Mar 21, 2022 14:07
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I'm pretty sure we didn't have modern hospitals when the country was founded. Thomas should ride this out at home, maybe take some cocaine if he is feeling sluggish.
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Mar 21, 2022 18:04
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He should receive only the medical attention that Thomas Jefferson thought old black people deserved.
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Mar 21, 2022 22:56
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Mr. Nice! posted:Remember when texas executed a man for burning down his home with his kids inside based upon fire inspector voodoo. Even though he was innocent and actual science based investigation showed it was a spaceheater that cause the blaze, Governor Rick Perry put him to death. Even if I didn't think capital punishment is barbaric and wrong the three words "Cameron Todd Willingham" defeat any pro-death penalty argument. Though Scalia argued it wouldn't be wrong to execute a factually innocent person so I guess I'm wrong thinking that. Groovelord Neato fucked around with this message at 13:49 on Mar 22, 2022 |
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Mar 22, 2022 13:45
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Groovelord Neato posted:Though Scalia argued it wouldn't be wrong to execute a factually innocent person so I guess I'm wrong thinking that. Did he? I thought he only argued that it wouldn’t be unconstitutional.
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Mar 22, 2022 14:35
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raminasi posted:Did he? I thought he only argued that it wouldn’t be unconstitutional. He did not discern a difference between "morally wrong" and "unconstitutional". Also he was incorrect about both things.
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Mar 22, 2022 14:56
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He went out of his way to write a concurrence pointing it out:quote:Antonin Scalia joined the majority, but added in passing that he found no basis, either in the Constitution or in case law, to conclude that executing an innocent but duly convicted defendant would violate the Eighth Amendment. He sharply criticized the dissenting justices' appeal to conscience:
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Mar 22, 2022 16:00
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That's one of many things that underscores how Scalia was a vile and irredeemably evil person who made the world worse through his presence in it. It always said a lot about RBG that she touted her friendship with him (and made her views on Kaep's kneeling unsurprising).
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Mar 22, 2022 16:14
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But it's not. A person is innocent until proven guilty in a court of law with a fair trial by a jury of their peers. But once convicted, that person is, in the eyes of the law, guilty. I'm not going to defend that process as infallible, it certainly is not. But that is the process. If your argument is executions are unconstitutional because the process is infallible, focus on improving the process and addressing the weaknesses therein (mostly the people involved). Capital punishment is directly addressed in the constitution, and you aren't going to win any argument saying they are wholly unconstitutional.
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Mar 22, 2022 17:30
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The Supreme Court defines the process though, nowhere in the Constitution does it say you only get X appeals and if you exhaust them your life is forfeit. The court has taken upon itself to define what due process means, the guy at the top saying "gosh nothing we can do, things just happen" is absurd, if they don't want to be responsible they should overturn Marbury v Madison then and defer to the legislature and the executive on everything. They want to overturn stuff that offends them, it's only when they aren't offended that they're like "oh ho ho things are the way they are, we can't change it because you think it's immoral". They certainly have some loving opinions about whether people should be punished just because it's the law when it comes to say qualified immunity VitalSigns fucked around with this message at 17:42 on Mar 22, 2022 |
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Mar 22, 2022 17:39
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ilkhan posted:But it's not. My position is that the American legal system is not capable of providing a fair trial, especially to black or brown defendants.
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Mar 22, 2022 17:46
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Hieronymous Alloy posted:My position is that the American legal system is not capable of providing a fair trial, especially to black or brown defendants. Yeah, if it weren't already problematic enough that the state is performing revenge killings, this makes it completely morally indefensible.
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Mar 22, 2022 17:47
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How is Thomas feeling today?
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Mar 22, 2022 17:53
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Hieronymous Alloy posted:My position is that the American legal system is not capable of providing a fair trial, especially to black or brown defendants.
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Mar 22, 2022 18:07
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I teach government in high school so we watched some of the morning hearing. I explained what’s as going on and then the students started working on an assignment with it on in the background. They were getting angry about Lindsey Graham and could not figure out why he would be asking those questions instead of asking what she believes in. When he said “On a scale of 1 to 10…”, I finished his line with “how much faith do you have?” before he had finished. I meant it as a joke of what a dumb thing to say would be. When he finished his line exactly like that, I just could not take it. My students saw me mentally have my brain broken. drat it Graham.
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Mar 22, 2022 18:12
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There's an interesting tension in originalism because they justify everything lovely with an appeal to tradition and well that's how they did it in 1790 so we have to keep doing it but if you resurrected Thomas Jefferson and told him our modern legal philosophy is to do whatever our great-grandfathers were doing because it's tradition regardless of whether it's right or wrong he'd smack you in the mouth for being a moronThomas Jefferson posted:Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
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Mar 22, 2022 18:27
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ilkhan posted:I disagree, but it's an opinion worth debating. Yeah. Just briefly off the top of my head -- -- most of our legal standards (e.g., M'Naughten) date from the same era as phrenology and are about as scientifically valid; -- we know from surveys of jurors that they just fundamentally don't understand concepts like "reasonable doubt" or expert testimony ; see, e.g., https://www.washingtonpost.com/politics/2022/02/05/joshua-mounts-murder-trial-medical-examiners/ ; --similarly judicial instructions to ignore or not consider things have the effect of just reinforcing those exact things -- virtually every "lineup ID" case I've ever worked it turned out my dude was provably innocent via ironclad alibi (e.g., locked up in jail in a different county the entire week of the alleged incident, or wearing a GPS monitor that proved he was in a different state, etc.). Yet things like lineups continue to be relied on for prosecution More to the point though Are there cases where people are provably guilty or provably innocent in our system? Sure. But those cases almost never go to trial. If a case is going to trial, then either: 1) reasonable doubt definitionally exists because the two reasonable professional attorneys on either side disagree on the likely outcome of the trial, or agree that the outcome is in doubt; or 2) one of the parties or one of the attorneys is not being reasonable and doesn't understand the case and the likelihood of loss. If that's true then either a fair trial isn't happening (because one of the attorneys is not being competent) or one of the parties is not competent to be put through a trial (because they don't understand what will happen when they lose). FWIW though I also don't think anyone is competent to stand trial. If people were competent to stand trial then they wouldn't need lawyers appointed to try to explain three years of law school and a decade of relevant experience to them in a few hours before they made a decision that will impact the rest of their entire life. (This also applies to lawyers; every lawyer knows that the lawyer who appears pro se on his own case is incompetent to do so). My proposal to remedy this is to raise the minimum threshold to be tried as an adult to 200 years of age.
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Mar 22, 2022 18:38
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Crows Turn Off posted:How is Thomas feeling today? He's still hospitalized, which is known in the healthcare industry as a Bad loving Sign.
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Mar 22, 2022 18:46
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Crows Turn Off posted:How is Thomas feeling today? A little peckish and he's bummed about Maury Povich retirement, but he's gonna binge Love is Blind to help lift his spirits
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Mar 22, 2022 18:56
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ilkhan posted:I disagree, but it's an opinion worth debating. Please feel free to disagree more substantially then, because basically everybody with any level of knowledge on this disagrees with you. Also based purely on this response I figured I'd find "racism" in your rap sheet and was not disappointed.
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Mar 22, 2022 18:57
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