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Supreme Court strikes down ban on sports betting in victory for New Jersey Obviously the correct decision, but it's going to be more fun to watch the impact on the sports world than the legal arena. I don't think there is any country in the world so obsessed with sports that has restricted gambling on sports this much, it's going to be a massive landscape shift. Like with drugs, the prohibition didn't stop the gambling from happening, but making it legal and easy is going to change the whole way the public perceives it. Interesting times.
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May 14, 2018 15:37
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FuriousxGeorge posted:Supreme Court strikes down ban on sports betting in victory for New Jersey I just read through most of this including Thomas' concurrence. They strike down the entire law as a whole. The sports gambling landscape is now wide open for individual state regulation. Thomas wants to get rid of all severability doctrines and make it so if any part of a law is unconstitutional the entire law is. This is hilarious because severability is how Texas and other republican shitheads keep blatantly unconstitutional abortion laws partially on the books by just carving out individual offending lines. Ginsburg dissents because she thinks striking down the entire law is dumb and the overall rule of "states cannot allow sports gambling" is a valid constitutional rule that should have been left in place. She agrees that the sections requiring action to be taken by states is unconstitutional, but that it should be severed from the rest.
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May 14, 2018 15:44
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In another opinion today, the Court held 6-3 that a defense lawyer can't concede a death penalty defendant's guilt if the defendant wants to claim they are innocent, even if that's bad strategy. ... I'll let you all guess which 3 justices thought it was totally okay for a lawyer to override their client's decisions.
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May 14, 2018 15:46
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Jesus, 5 opinions? Full notes to come. May 14, 2018 Murphy v. National Collegiate Athletic Assn. (16-476) Professional and Amateur Sports Protection Act (PASPA) provisions that prohibit state authorization and licensing of sports gambling schemes, see 28 U. S. C. §3702(1), violate the Constitution’s anticommandeering rule; no other PASPA provisions are severable from the provisions at issue. Dahda v. United States (17-43) Wiretap orders authorized by a judge for the District of Kansas in the Government’s investigation of a suspected Kansas drug distribution ring were not facially insufficient, since they were not lacking any information that the wiretap statute required them to include and since the challenged language authorizing interception outside the court’s territorial jurisdiction was surplus. McCoy v. Louisiana (16-8255) The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Byrd v. United States (16-1371) The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy protected by the Fourth Amendment. United States v. Sanchez-Gomez (17-312) Respondents’ appeals challenging the use of full restraints during nonjury pretrial proceedings became moot when their underlying criminal cases came to an end before the Ninth Circuit could render its decision.
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May 14, 2018 15:52
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Kalman posted:In another opinion today, the Court held 6-3 that a defense lawyer can't concede a death penalty defendant's guilt if the defendant wants to claim they are innocent, even if that's bad strategy. Their position isn't completely crazy: quote:But English did not admit that petitioner was guilty of first-degree murder. Instead, faced with overwhelming evidence that petitioner shot and killed the three victims, English admitted that petitioner committed one element of that offense, i.e., that he killed the victims. But English strenuously argued that petitioner was not guilty of firstdegree murder because he lacked he intent (the mens rea) required for the offense. App. 508–512. So the Court’s newly discovered fundamental right simply does not apply to the real facts of this case. Kinda missing the point though which is not unexpected for Alito, Thomas and Gorsuch.
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May 14, 2018 15:55
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Kalman posted:In another opinion today, the Court held 6-3 that a defense lawyer can't concede a death penalty defendant's guilt if the defendant wants to claim they are innocent, even if that's bad strategy. I have a feeling that Scalia wouldn't have even joined that dissent, but I could be wrong.
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May 14, 2018 15:55
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Mr. Nice! posted:I have a feeling that Scalia wouldn't have even joined that dissent, but I could be wrong. They seem to be threading a peculiar needle so I wonder if Scalia would've convinced them to come up with some sort of bizarro concurrence.
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May 14, 2018 15:56
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hobbesmaster posted:Their position isn't completely crazy: When the client insists that they didn't kill anyone, stating that your client killed someone is crazy. They're committing a willful misreading of the majority opinion.
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May 14, 2018 15:58
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hobbesmaster posted:They seem to be threading a peculiar needle so I wonder if Scalia would've convinced them to come up with some sort of bizarro concurrence. It's possible. I cannot recall reading any of his opinions on effectiveness of counsel, but the majority decision seems in line with all the professional rules I've learned plus any 6th amendment jurisprudence I'm familiar with.
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May 14, 2018 16:00
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Kalman posted:When the client insists that they didn't kill anyone, stating that your client killed someone is crazy. They're committing a willful misreading of the majority opinion. Exactly.
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May 14, 2018 16:00
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Also Alito's argument is "it's not super common so who cares"Alito posted:"In short, the right that the Court now discovers is likely to appear only rarely, and because the present case is so unique, it is hard to see how it meets our stated criteria for granting review.
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May 14, 2018 16:03
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Sort of on topic, the Ginsburg documentary RBG opened here this weekend. I saw one review calling it basically a wikipedia page in video which is kind of is since it's just an overview of her life and doesn't get too deep in anything. I found it an enjoyable watch none the less.
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May 14, 2018 16:59
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Mr. Nice! posted:I just read through most of this including Thomas' concurrence. They strike down the entire law as a whole. The sports gambling landscape is now wide open for individual state regulation. I'm generally with Ginsburg on this, and also nervous about the incentives this creates for state governments.
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May 14, 2018 17:18
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I’m not a fan of gambling per se, but I can’t see a legal justification in banning it. It just needs to be taxed and regulated.
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May 14, 2018 17:23
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Discendo Vox posted:I'm generally with Ginsburg on this, and also nervous about the incentives this creates for state governments. All PASPA did was keep gambling in Nevada. It's part of why they lobbied hard to get it passed and have been a big part of the defense of the law. This just allows states another revenue stream. There's no good reason to only allow sports betting in Nevada. PASPA was bullshit when it passed. Now, as far as severability, the section she wanted to keep basically provided the same rules as the part that was read to be commandeering. It's not a good statute to leave half intact, and the ban was intrinsically tied to the portion that restricted states' ability to pass legislation regulating sports betting. If congress actually gave a gently caress, they could pass a replacement PASPA, but I don't think there's enough money coming out of vegas to support it again.
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May 14, 2018 17:26
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 Opinions! MURPHY, GOVERNOR OF NEW JERSEY, ET AL. v. NATIONAL COLLEGIATE ATHLETIC ASSN. ET AL. Brief Background: The Professional and Amateur Sports Protection Act (PASPA) makes it unlawful for a State or its subdivisions “to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events, 28 U. S. C. §3702(1), and for “a person to sponsor, operate, advertise, or promote” those same gambling schemes if done “pursuant to the law or compact of a governmental entity,” §3702(2). But PASPA does not make sports gambling itself a federal crime. Instead, it allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. §3703. “Grandfather” provisions allow existing forms of sports gambling to continue in four States, §3704(a)(1)–(2), and another provision would have permitted New Jersey to set up a sports gambling scheme in Atlantic City within a year of PASPA’s enactment, §3704(a)(3). New Jersey did not take advantage of that option but has since had a change of heart. … New Jersey [asserted] that PASPA violates the Constitution’s “anticommandeering” principle by preventing the State from modifying or repealing its laws prohibiting sports gambling. The District Court found no anticommandeering violation, the Third Circuit affirmed, and this Court denied review. In 2014, the New Jersey Legislature enacted the law at issue in these cases. Instead of affirmatively authorizing sports gambling schemes, this law repeals state-law provisions that prohibited such schemes, insofar as they concerned wagering on sporting events by persons 21 years of age or older; at a horseracing track or a casino or gambling house in Atlantic City; and only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Plaintiffs in the earlier suit, respondents here, filed a new action in federal court. They won in the District Court, and the Third Circuit affirmed, holding that the 2014 law, no less than the 2012 one, violates PASPA. The court further held that the prohibition does not “commandeer” the States in violation of the Constitution. Holding: The State of New Jersey wants to legalize sports gambling at casinos and horseracing tracks, but a federal law, the Professional and Amateur Sports Protection Act, generally makes it unlawful for a State to “authorize” sports gambling schemes. … Americans have never been of one mind about gambling, and attitudes have swung back and forth...By the 1990s, there were signs that the trend that had brought about the legalization of many other forms of gambling might extend to sports gambling,19 and this sparked federal efforts to stem the tide. Opponents of sports gambling turned to the legislation now before us, the Professional and Amateur Sports Protection Act (PASPA). … PASPA’s most important provision, part of which is directly at issue in these cases, makes it “unlawful” for a State or any of its subdivisions22 “to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events. §3702(1). In parallel, §3702(2) makes it “unlawful” for “a person to sponsor, operate, advertise, or promote” those same gambling schemes23—but only if this is done “pursuant to the law or compact of a governmental entity.” PASPA does not make sports gambling a federal crime (and thus was not anticipated to impose a significant law enforcement burden on the Federal Government).24 Instead, PASPA allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. §3703. At the time of PASPA’s adoption, a few jurisdictions allowed some form of sports gambling. In Nevada, sports gambling was legal in casinos,25 and three States hosted sports lotteries or allowed sports pools.26 PASPA contains “grandfather” provisions allowing these activities to continue. §3704(a)(1)–(2). Another provision gave New Jersey the option of legalizing sports gambling in Atlantic City—provided that it did so within one year of the law’s effective date. §3704(a)(3).27 New Jersey did not take advantage of this special option, but by 2011, with Atlantic City facing stiff competition, the State had a change of heart...The 2012 Act quickly came under attack. The major professional sports leagues and the NCAA brought an action in federal court against the New Jersey Governor and other state officials (hereinafter New Jersey), seeking to enjoin the new law on the ground that it violated PASPA. [New Jersey lost.] … Picking up on the suggestion that a partial repeal would be allowed, the New Jersey Legislature enacted the law now before us. 2014 N. J. Laws p. 602 (2014 Act). The 2014 Act declares that it is not to be interpreted as causing the State to authorize, license, sponsor, operate, advertise, or promote sports gambling. Ibid. Instead, it is framed as a repealer. Specifically, it repeals the provisions of state law prohibiting sports gambling insofar as they concerned the “placement and acceptance of wagers” on sporting events by persons 21 years of age or older at a horseracing track or a casino or gambling house in Atlantic City. Ibid. The new law also specified that the repeal was effective only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Ibid. … Having found that the 2014 Act violates PASPA’s prohibition of state authorization of sports gambling schemes, the court went on to hold that this prohibition does not contravene the anticommandeering principle because it “does not command states to take affirmative actions.” Id., at 401. We granted review to decide the important constitutional question presented by these cases, sub nom. Christie v. National Collegiate Athletic Assn., 582 U. S. ___ (2017). … Neither respondents nor the United States, appearing as an amicus in support of respondents, contends that the provision at issue would be constitutional if petitioners’ interpretation [of what “author[izing]” means] is correct. Indeed, the United States expressly concedes that the provision is unconstitutional if it means what petitioners claim. Petitioners argue that the anti-authorization provision requires States to maintain their existing laws against sports gambling without alteration...They therefore contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to an authorization. Brief for Petitioners in No. 16–476, at 42. Respondents interpret the provision more narrowly. They claim that the primary definition of “authorize” requires affirmative action. Brief for Respondents 39. To authorize, they maintain, means “‘[t]o empower; to give a right or authority to act; to endow with authority.’” Ibid. (quoting Black’s Law Dictionary, at 133). And this, they say, is precisely what the 2014 Act does: It empowers a defined group of entities, and it endows them with the authority to conduct sports gambling operations. Respondents do not take the position that PASPA bans all modifications of old laws against sports gambling, Brief for Respondents 20, but just how far they think a modification could go is not clear. … In our view, petitioners’ interpretation is correct: When a State completely or partially repeals old laws banning sports gambling, it “authorize[s]” that activity...The concept of state “authorization” makes sense only against a backdrop of prohibition or regulation. A State is not regarded as authorizing everything that it does not prohibit or regulate. No one would use the term in that way. For example, no one would say that a State “authorizes” its residents to brush their teeth or eat apples or sing in the shower. We commonly speak of state authorization only if the activity in question would otherwise be restricted. … The Third Circuit could not say which, if any, partial repeals are allowed. 832 F. 3d, at 402. Respondents and the United States tell us that the PASPA ban on state authorization allows complete repeals, but beyond that they identify no clear line. It is improbable that Congress meant to enact such a nebulous regime. … The respondents and United States argue that even if there is some doubt about the correctness of their interpretation of the anti-authorization provision, that interpretation should be adopted in order to avoid any anticommandeering problem that would arise if the provision were construed to require States to maintain their laws prohibiting sports gambling. … [C]onspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority. Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. … The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. … Respondents and the United States defend the antiauthorization prohibition on the ground that it constitutes a valid preemption provision, but it is no such thing…[R]egardless of the language sometimes used by Congress and this Court, every form of preemption is based on a federal law that regulates the conduct of private actors, not the States. Once this is understood, it is clear that the PASPA provision prohibiting state authorization of sports gambling is not a preemption provision because there is no way in which this provision can be understood as a regulation of private actors. ... Under 28 U. S. C. §3702(1), States are prohibited from “operat[ing],” “sponsor[ing],” or “promot[ing]” sports gambling schemes. If the provisions prohibiting state authorization and licensing are stricken but the prohibition on state “operat[ion]” is left standing, the result would be a scheme sharply different from what Congress contemplated when PASPA was enacted...If Congress had known that States would be free to authorize sports gambling in privately owned casinos, would it have nevertheless wanted to prevent States from running sports lotteries? That seems unlikely. … The remaining question that we must decide is whether the provisions of PASPA prohibiting the “advertis[ing]” of sports gambling are severable. See §§3702(1)–(2). If these provisions were allowed to stand, federal law would forbid the advertising of an activity that is legal under both federal and state law, and that is something that Congress has rarely done. For example, the advertising of cigarettes is heavily regulated but not totally banned. … For these reasons, we hold that no provision of PASPA is severable from the provision directly at issue in these cases. … PASPA “regulate[s] state governments’ regulation” of their citizens, New York, 505 U. S., at 166. The Constitution gives Congress no such power. The judgment of the Third Circuit is reversed. Lineup: Alito, joined by Roberts, Kennedy, Thomas, Kagan, Gorsuch, and Breyer (other than Part VI-B [which finds the rest of PASPA unseverable from the unconstitutional portions; Breyer would have retained part of it]). Concurrence by Thomas. Partial concurrence and partial dissent by Breyer. Dissent by Ginsburg, joined by Sotomayor and by Breyer (in part). Notes From Other Opinions: Thomas (concurring): I join the Court’s opinion in its entirety. I write separately, however, to express my growing discomfort with our modern severability precedents. … Those precedents appear to be in tension with traditional limits on judicial authority. Early American courts did not have a severability doctrine...Thus, when early American courts determined that a statute was unconstitutional, they would simply decline to enforce it in the case before them. See Walsh 755–766. “[T]here was no ‘next step’ in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder.” ... [T]he severability doctrine does not follow basic principles of statutory interpretation. Instead of requiring courts to determine what a statute means, the severability doctrine requires courts to make “a nebulous inquiry into hypothetical congressional intent.”...Second, the severability doctrine often requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions. … In sum, our modern severability precedents are in tension with longstanding limits on the judicial power. And, though no party in this case has asked us to reconsider these precedents, at some point, it behooves us to do so. Breyer (concurring in part and dissenting in part): I agree with JUSTICE GINSBURG that 28 U. S. C. §3702(2) is severable from the challenged portion of §3702(1). The challenged part of subsection (1) prohibits a State from “author[izing]” or “licens[ing]” sports gambling schemes; subsection (2) prohibits individuals from “sponsor[ing], operat[ing], advertis[ing], or promot[ing]” sports gambling schemes “pursuant to the law . . . of a governmental entity.” The first says that a State cannot authorize sports gambling schemes under state law; the second says that (just in case a State finds a way to do so) sports gambling schemes that a State authorizes are unlawful under federal law regardless. As JUSTICE GINSBURG makes clear, the latter section can live comfortably on its own without the first. … Under our precedent, the first provision (directly and unconditionally telling States what laws they must enact) is unconstitutional, but the second (directly telling individuals what they cannot do) is not. … As so interpreted, the statutes would make New Jersey’s victory here mostly Pyrrhic. But that is because the only problem with the challenged part of §3702(1) lies in its means, not its end. Congress has the constitutional power to prohibit sports gambling schemes, and no party here argues that there is any constitutional defect in §3702(2)’s alternative means of doing so. Ginsburg (dissenting): The petition for certiorari filed by the Governor of New Jersey invited the Court to consider a sole question: “Does a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeer the regulatory power of States in contravention of New York v. United States, 505 U. S. 144 (1992)?” Assuming, arguendo, a “yes” answer to that question, there would be no cause to deploy a wrecking ball destroying the Professional and Amateur Sports Protection Act (PASPA) in its entirety, as the Court does today. Leaving out the alleged infirmity, i.e., “commandeering” state regulatory action by prohibiting the States from “authoriz[ing]” and “licens[ing]” sports-gambling schemes, 28 U. S. C. §3702(1), two federal edicts should remain intact. First, PASPA bans States themselves (or their agencies) from “sponsor[ing], operat[ing], advertis[ing], [or] promot[ing]” sports-gambling schemes. Ibid. Second, PASPA stops private parties from “sponsor[ing], operat[ing], advertis[ing], or promot[ing]” sports-gambling schemes if state law authorizes them to do so. §3702(2).1 Nothing in these §3702(1) and §3702(2) prohibitions commands States to do anything other than desist from conduct federal law proscribes.2 Nor is there any doubt that Congress has power to regulate gambling on a nationwide basis, authority Congress exercised in PASPA. See Gonzales v. Raich, 545 U. S. 1, 17 (2005) (“Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.”). … In PASPA, shorn of the prohibition on modifying or repealing state law, Congress permissibly exercised its authority to regulate commerce by instructing States and private parties to refrain from operating sports-gambling schemes. On no rational ground can it be concluded that Congress would have preferred no statute at all if it could not prohibit States from authorizing or licensing such schemes. https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf DAHDA v. UNITED STATES Brief Background: Under federal law, a judge normally may issue a wiretap order permitting the interception of communications only “within the territorial jurisdiction of the court in which the judge is sitting.” 18 U. S. C. §2518(3). Here, a judge for the District of Kansas authorized nine wiretap Orders as part of a Government investigation of a suspected drug distribution ring in Kansas. For the most part, the Government intercepted communications from a listening post within Kansas. But each Order also contained a sentence purporting to authorize interception outside of Kansas. Based on that authorization, the Government intercepted additional communications from a listening post in Missouri. Following the investigation, petitioners Los and Roosevelt Dahda were indicted for participating in an illegal drug distribution conspiracy. They moved to suppress the evidence derived from all the wiretaps under subparagraph (ii) of the wiretap statute’s suppression provision because the language authorizing interception beyond the District Court’s territorial jurisdiction rendered each Order “insufficient on its face.” Holding: The statute provides for the suppression of “the contents of any wire or oral communication” that a wiretap “intercept[s]” along with any “evidence derived therefrom” if “(i) the communication was unlawfully intercepted; “(ii) the order of . . . approval under which it was intercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval.” … In deciding whether each Order was “insufficient on its face,” we assume that the Dahdas are right about the “territorial” requirement. That is to say, we assume the relevant sentence exceeded the judge’s statutory authority. But none of the communications unlawfully intercepted outside the judge’s territorial jurisdiction were introduced at trial, so the inclusion of the extra sentence had no significant adverse effect upon the Dahdas. Because the remainder of each Order was itself legally sufficient, we conclude that the Orders were not “insufficient” on their “face.” … A judge’s authorizing authority normally extends only within statutorily defined bounds. The statute specifies that an order can permit the interception of communications “within the territorial jurisdiction of the court in which the judge is sitting.” §2518(3). (There is an exception allowing interception beyond the judge’s territorial jurisdiction if the judge authorizes a “mobile interception device,” ibid., but the parties now agree that exception does not apply to these Orders.) The Government here adds (without the Dahdas’ disagreement) that an intercept takes place either where the tapped telephone is located or where the Government’s “listening post” is located. … Although they disputed it below, the parties now agree that this sentence [allowing interception if the telephones went outside court jurisdiction] could not lawfully allow a wiretap of a phone that was located outside Kansas in instances where the Government’s listening post was also located outside of Kansas. Pursuant to these Orders, the Government listened from a listening post within Kansas to conversations on mobile phones that were located within Kansas and conversations on mobile phones that were located outside of Kansas. But, in one instance, the Government listened from a listening post outside of Kansas (in Missouri) to conversations on a mobile phone that was also outside of Kansas (in California). … The question before us concerns the interpretation of the suppression provision’s second subparagraph, which requires suppression where a wiretap order is “insufficient on its face.” §2518(10)(a)(ii). The Dahdas ask us to read subparagraph (ii) as applying to any legal defect that appears within the four corners of the order. The Government replies that the Dahdas’ approach would require suppression of evidence of serious criminal behavior due to the most minor of technical failures, including those that have little or no relation to any statutory objective. The Tenth Circuit, agreeing with the Government, held that subparagraph (ii) applies only where the “insufficiency” constitutes an order’s failure to satisfy a “‘statutory requiremen[t] that directly and substantially implement[s] the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’” … Here, by contrast, we focus upon subparagraph (ii), which requires suppression when an order is facially insufficient. And in respect to this subparagraph, we can find no good reason for applying Giordano’s test. The underlying point of Giordano’s limitation was to help give independent meaning to each of §2518(10)(a)’s subparagraphs. It thus makes little sense to extend the core concerns test to subparagraph (ii) as well. Doing so would “actually treat that subparagraph as ‘surplusage’— precisely what [this] Court tried to avoid in Giordano.” Glover, 736 F. 3d, at 514. We consequently conclude that subparagraph (ii) does not contain a Giordano-like “core concerns” requirement. The statute means what it says. That is to say, subparagraph (ii) applies where an order is “insufficient on its face.” §2518(10)(a)(ii). B Although we believe the Tenth Circuit erred in applying Giordano’s core concerns test to subparagraph (ii), we cannot fully endorse the Dahdas’ reading of the statute either. … The Orders do contain a defect, namely, the sentence authorizing interception outside Kansas, which we set forth above. See supra, at 4. But not every defect results in an insufficiency. In that sentence, the District Court “further” ordered that interception may take place “outside the territorial jurisdiction of the court.” App. 97. The sentence is without legal effect because, as the parties agree, the Orders could not legally authorize a wiretap outside the District Court’s “territorial jurisdiction.” But, more importantly, the sentence itself is surplus. Its presence is not connected to any other relevant part of the Orders. Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court’s territorial jurisdiction. As we discussed above, a listening post within the court’s territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas. See supra, at 3. Consequently, every wiretap that produced evidence introduced at the Dahdas’ trial was properly authorized under the statute. Lineup: Breyer, unanimous other than Gorsuch (who took no part [10th circuit case]). https://www.supremecourt.gov/opinions/17pdf/17-43_m648.pdf MCCOY v. LOUISIANA Brief Background: Petitioner Robert McCoy was charged with murdering his estranged wife’s mother, stepfather, and son. McCoy pleaded not guilty to firstdegree murder, insisting that he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong. Although he vociferously insisted on his innocence and adamantly objected to any admission of guilt, the trial court permitted his counsel, Larry English, to tell the jury, during the trial’s guilt phase, McCoy “committed [the] three murders.” English’s strategy was to concede that McCoy committed the murders, but argue that McCoy’s mental state prevented him from forming the specific intent necessary for a first-degree murder conviction. Over McCoy’s repeated objection, English told the jury McCoy was the killer and that English “took [the] burden off of [the prosecutor]” on that issue. McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom. The jury found him guilty of all three first-degree murder counts. At the penalty phase, English again conceded McCoy’s guilt, but urged mercy in view of McCoy’s mental and emotional issues. The jury returned three death verdicts. Represented by new counsel, McCoy unsuccessfully sought a new trial. The Louisiana Supreme Court affirmed the trial court’s ruling that English had authority to concede guilt, despite McCoy’s opposition. Holding: We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt. … The choice is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in “grant[ing] to the accused personally the right to make his defense,” “speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant.” Faretta, 422 U. S., at 819–820; see Gannett Co. v. DePasquale, 443 U. S. 368, 382, n. 10 (1979) (the Sixth Amendment “contemplat[es] a norm in which the accused, and not a lawyer, is master of his own defense”). Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U. S. 242, 248 (2008) (internal quotation marks and citations omitted). Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. See Jones v. Barnes, 463 U. S. 745, 751 (1983). Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category. Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are. … Because a client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-assistance-ofcounsel jurisprudence, Strickland v. Washington, 466 U. S. 668 (1984), or United States v. Cronic, 466 U. S. 648 (1984), to McCoy’s claim. See Brief for Petitioner 43–48; Brief for Respondent 46–52. To gain redress for attorney error, a defendant ordinarily must show prejudice. See Strickland, 466 U. S., at 692. Here, however, the violation of McCoy’s protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy’s sole prerogative. Violation of a defendant’s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called “structural”; when present, such an error is not subject to harmless-error review. … Larry English was placed in a difficult position; he had an unruly client and faced a strong government case. He reasonably thought the objective of his representation should be avoidance of the death penalty. But McCoy insistently maintained: “I did not murder my family.” App. 506. Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilt should have been off the table. The trial court’s allowance of English’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment. Because the error was structural, a new trial is the required corrective. Lineup: Ginsburg, joined by Roberts, Kennedy, Breyer, Sotomayor and Kagan. Dissent by Alito, joined by Thomas and Gorsuch. Notes From Other Opinions: Alito (dissenting): The Constitution gives us the authority to decide real cases and controversies; we do not have the right to simplify or otherwise change the facts of a case in order to make our work easier or to achieve a desired result. But that is exactly what the Court does in this case. The Court overturns petitioner’s convictions for three counts of first-degree murder by attributing to his trial attorney, Larry English, something that English never did. The Court holds that English violated petitioner’s constitutional rights by “admit[ting] h[is] client’s guilt of a charged crime over the client’s intransigent objection.” Ante, at 11.1 But English did not admit that petitioner was guilty of first-degree murder. Instead, faced with overwhelming evidence that petitioner shot and killed the three victims, English admitted that petitioner committed one element of that offense, i.e., that he killed the victims. But English strenuously argued that petitioner was not guilty of first-degree murder because he lacked the intent (the mens rea) required for the offense. App. 508–512. So the Court’s newly discovered fundamental right simply does not apply to the real facts of this case. … The Louisiana Supreme Court held that English could not have put on petitioner’s desired defense without violating state ethics rules, see 218 So. 3d, at 564–565, but this Court effectively overrules the state court on this issue of state law, ante, at 9–10. … [T]he fundamental right supposedly violated in this case comes down to the difference between the two statements set out below. Constitutional: “First-degree murder requires proof both that the accused killed the victim and that he acted with the intent to kill. I submit to you that my client did not have the intent required for conviction for that offense.” Unconstitutional: “First-degree murder requires proof both that the accused killed the victim and that he acted with the intent to kill. I admit that my client shot and killed the victims, but I submit to you that he did not have the intent required for conviction for that offense.” The practical difference between these two statements is negligible. … While the question that the Court decides is unlikely to make another appearance for quite some time, a related— and difficult—question may arise more frequently: When guilt is the sole issue for the jury, is it ever permissible for counsel to make the unilateral decision to concede an element of the offense charged? Having discovered a new right not at issue in the real case before us, the Court compounds its error by summarily concluding that a violation of this right “ranks as error of the kind our decisions have called ‘structural.’” Ante, at 11. The Court concedes that the Louisiana Supreme Court did not decide the structural-error question and that we “‘did not grant certiorari to review’ that question.” https://www.supremecourt.gov/opinions/17pdf/16-8255_i4ek.pdf BYRD v. UNITED STATES Brief Background: Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania. After stopping Byrd for a traffic infraction, Pennsylvania State Troopers learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car. The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with federal drug and other crimes. The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. Holding: This Court granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement. The Court now holds that, as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver. The Court concludes a remand is necessary to address in the first instance the Government’s argument that this general rule is inapplicable because, in the circumstances here, Byrd had no greater expectation of privacy than a car thief. If that is so, our cases make clear he would lack a legitimate expectation of privacy. It is necessary to remand as well to determine whether, even if Byrd had a right to object to the search, probable cause justified it in any event. … This Court granted Byrd’s petition for a writ of certiorari, 582 U. S. ___ (2017), to address the conflict among the Courts of Appeals over whether an unauthorized driver has a reasonable expectation of privacy in a rental car. … One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others. On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.” Rakas, 439 U. S., at 142; see also id., at 148 (“We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one’s expectation of privacy, but it cannot be deemed controlling”). … Stripped to its essentials, the Government’s position is that only authorized drivers of rental cars have expectations of privacy in those vehicles. This position is based on the following syllogism: Under Rakas, passengers do not have an expectation of privacy in an automobile glove compartment or like places; an unauthorized driver like Byrd would have been the passenger had the renter been driving; and the unauthorized driver cannot obtain greater protection when he takes the wheel and leaves the renter behind. … The flaw in this syllogism is its major premise, for it is a misreading of Rakas. The Court in Rakas did not hold that passengers cannot have an expectation of privacy in automobiles...What is more, the Government’s syllogism is beside the point, because this case does not involve a passenger at all but instead the driver and sole occupant of a rental car. … The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of the defendant in Jones owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude. Indeed, the Government conceded at oral argument that an unauthorized driver in sole possession of a rental car would be permitted to exclude third parties from it, such as a carjacker. … The Government further stresses that Byrd’s driving the rental car violated the rental agreement that Reed signed, and it contends this violation meant Byrd could not have had any basis for claiming an expectation of privacy in the rental car at the time of the search. As anyone who has rented a car knows, car-rental agreements are filled with long lists of restrictions. Examples include prohibitions on driving the car on unpaved roads or driving while using a handheld cellphone. Few would contend that violating provisions like these has anything to do with a driver’s reasonable expectation of privacy in the rental car—as even the Government agrees. … Stated in different terms, for Fourth Amendment purposes there is no meaningful difference between the authorized-driver provision and the other provisions the Government agrees do not eliminate an expectation of privacy, all of which concern risk allocation between private parties—violators might pay additional fees, lose insurance coverage, or assume liability for damage resulting from the breach. But that risk allocation has little to do with whether one would have a reasonable expectation of privacy in the rental car if, for example, he or she otherwise has lawful possession of and control over the car. … [T]he Government asserts that, on the facts here, Byrd should have no greater expectation of privacy than a car thief because he intentionally used a third party as a strawman in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime. This argument is premised on the Government’s inference that Byrd knew he would not have been able to rent the car on his own, because he would not have satisfied the rental company’s requirements based on his criminal record, and that he used Reed, who had no intention of using the car for her own purposes, to procure the car for him to transport heroin to Pittsburgh. It is unclear whether the Government’s allegations, if true, would constitute a criminal offense in the acquisition of the rental car under applicable law. And it may be that there is no reason that the law should distinguish between one who obtains a vehicle through subterfuge of the type the Government alleges occurred here and one who steals the car outright. The Government did not raise this argument in the District Court or the Court of Appeals, however. It relied instead on the sole fact that Byrd lacked authorization to drive the car. And it is unclear from the record whether the Government’s inferences paint an accurate picture of what occurred. Because it was not addressed in the District Court or Court of Appeals, the Court declines to reach this question. The proper course is to remand for the argument and potentially further factual development to be considered in the first instance by the Court of Appeals or by the District Court. The Government argued in its brief in opposition to certiorari that, even if Byrd had a Fourth Amendment interest in the rental car, the troopers had probable cause to believe it contained evidence of a crime when they initiated their search. If that were true, the troopers may have been permitted to conduct a warrantless search of the car in line with the Court’s cases concerning the automobile exception to the warrant requirement. See, e.g., Acevedo, 500 U. S., at 580. The Court of Appeals did not reach this question because it concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car. … Though new, the fact pattern here continues a welltraveled path in this Court’s Fourth Amendment jurisprudence. Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. The Court leaves for remand two of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event. The Court of Appeals has discretion as to the order in which these questions are best addressed. Lineup: Kennedy, unanimous. Concurrence by Thomas, joined by Gorsuch. Concurrence by Alito. Notes From Other Opinions: Thomas (concurring): Although I have serious doubts about the “reasonable expectation of privacy” test from Katz v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J., concurring), I join the Court’s opinion because it correctly navigates our precedents, which no party has asked us to reconsider. As the Court notes, Byrd also argued that he should prevail under the original meaning of the Fourth Amendment because the police interfered with a property interest that he had in the rental car. I agree with the Court’s decision not to review this argument in the first instance. ... That issue seems to turn on at least three threshold questions. First, what kind of property interest do individuals need before something can be considered “their . . . effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law, and, if so, does that illegality or wrongfulness affect the Fourth Amendment analysis? The parties largely gloss over these questions, but the answers seem vitally important to assessing whether Byrd can claim that the rental car is his effect. Alito (concurring): The Court holds that an unauthorized driver of a rental car is not always barred from contesting a search of the vehicle. Relevant questions bearing on the driver’s ability to raise a Fourth Amendment claim may include: the terms of the particular rental agreement, see ante, at 11– 12; the circumstances surrounding the rental, ante, at 13; the reason why the driver took the wheel, ante, at 11–12; any property right that the driver might have, ante, at 7; and the legality of his conduct under the law of the State where the conduct occurred, ante, at 12–13. On remand, the Court of Appeals is free to reexamine the question whether petitioner may assert a Fourth Amendment claim or to decide the appeal on another appropriate ground. Ante, at 14–15. On this understanding, I join the opinion of the Court. https://www.supremecourt.gov/opinions/17pdf/16-1371_1bn2.pdf UNITED STATES v. SANCHEZ-GOMEZ ET AL. Brief Background: The judges of the United States District Court for the Southern District of California adopted a districtwide policy permitting the use of full restraints—handcuffs connected to a waist chain, with legs shackled—on most in-custody defendants produced in court for nonjury proceedings by the United States Marshals Service. Respondents Jasmin Morales, Rene Sanchez-Gomez, Moises Patricio-Guzman, and Mark Ring challenged the use of such restraints in their respective cases and the restraint policy as a whole. The District Court denied their challenges, and respondents appealed to the Court of Appeals for the Ninth Circuit. Before that court could issue a decision, respondents’ underlying criminal cases ended. Holding: In concluding that this case was not moot, the Court of Appeals relied upon our class action precedents, most prominently Gerstein v. Pugh. That reliance was misplaced.* *Shortly after the panel decision in this case, the Southern District altered its policy to eliminate the routine use of full restraints in pretrial proceedings. The Government represents, however, that the Southern District intends to reinstate its policy once it is no longer bound by the decision of the Court of Appeals. Tr. of Oral Arg. 29. We agree with the Court of Appeals that the rescission of the policy does not render this case moot. A party “cannot automatically moot a case simply by ending its unlawful conduct once sued,” else it “could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where [it] left off, repeating this cycle until [it] achieves all [its] unlawful ends.” Gerstein, a class action brought under Federal Rule of Civil Procedure 23, involved a certified class of detainees raising claims concerning their pretrial detention. 420 U. S., at 106–107. By the time this Court heard the case, the named representatives’ claims were moot, and the record suggested that their interest might have lapsed even before the District Court certified the class...As we explained, pretrial custody was inherently temporary and of uncertain length, such that we could not determine “that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class.” Gerstein, 420 U. S., at 110–111, n. 11. At the same time, it was certain that there would always be some group of detainees subject to the challenged practice. Ibid. Given these circumstances, the Court determined that the class action could proceed. … The Court of Appeals interpreted Gerstein to cover all “cases sufficiently similar to class actions” in which, “because of the inherently transitory nature of the claims,” the claimant’s “interests would expire before litigation could be completed.” 859 F. 3d, at 658...We reject the notion that Gerstein supports a freestanding exception to mootness outside the class action context. … Respondents do not defend the reasoning of the Court of Appeals. See Brief for Respondents 58 (arguing that this Court need not reach the functional class action issue and should “discard[]” that label); Tr. of Oral Arg. 43 (respondents’ counsel agreeing that they “have not made any effort to defend” the functional class action approach). In respondents’ view, functional class actions and Gerstein’s rule are beside the point because two respondents— Sanchez-Gomez and Patricio-Guzman—retain a personal stake in the outcome of their appeals. … Respondents argue that Sanchez-Gomez and PatricioGuzman meet the second prong because they will again violate the law, be apprehended, and be returned to pretrial custody. But we have consistently refused to “conclude that the case-or-controversy requirement is satisfied by” the possibility that a party “will be prosecuted for violating valid criminal laws.” … None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question. Lineup: Roberts, unanimous. https://www.supremecourt.gov/opinions/17pdf/17-312_i426.pdf [internal citations inconsistently omitted throughout]
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May 14, 2018 17:27
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Mr. Nice! posted:It's possible. I cannot recall reading any of his opinions on effectiveness of counsel, but the majority decision seems in line with all the professional rules I've learned plus any 6th amendment jurisprudence I'm familiar with. Can't put on the client's preferred defense, can't withdraw - what are you going to do? FlamingLiberal posted:I’m not a fan of gambling per se, but I can’t see a legal justification in banning it. It just needs to be taxed and regulated. It's commerce with a substantial impact on interstate commerce even where it is purely intrastate. Congress can 100% ban it using their enumerated powers. Mr. Nice! posted:Now, as far as severability, the section she wanted to keep basically provided the same rules as the part that was read to be commandeering. Breyer gives the game away there by saying "yeah, we could keep this, but then NJ didn't really win anything." Of course, that really fucks over the idea that Congress would have preferred 0 rules instead of rules that were basically close enough to stop the states from having sports gambling.
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May 14, 2018 17:30
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ulmont posted:Can't put on the client's preferred defense, can't withdraw - what are you going to do? This is covered in professional responsibility class because you aren't allowed to knowingly lie. If your client wants to get on the stand and say something you know is factually incorrect, you cannot prevent him from testifying and you cannot assist in presenting testimony you knew was false. His attorney could have argued for a mental capacity defense without materially conceding the primary element of the offense. ulmont posted:It's commerce with a substantial impact on interstate commerce even where it is purely intrastate. Congress can 100% ban it using their enumerated powers. I don't think that's what FlamingLiberal is saying. I don't believe there's any contention about congress' ability to restrict gambling. PASPA is only unconstitutional because it commandeered state lawmaking. Congress could enact PASPA minus comandeering tomorrow and Trump would sign it. There's no will to do so, though. ulmont posted:Breyer gives the game away there by saying "yeah, we could keep this, but then NJ didn't really win anything." Of course, that really fucks over the idea that Congress would have preferred 0 rules instead of rules that were basically close enough to stop the states from having sports gambling. I actually kindof agree with Thomas in that severability isn't something that courts should be weighing in on much at all. It really isn't the job of the court to correct a law, and you can see the results of what happens with the PPACA (SCOTUS & Republican fuckery have made the law painful and unmanageable). There's nothing to indicate that congress would have passed one part of the law without the other. In this case punting the entire law back to congress is the correct move.
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May 14, 2018 17:43
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Mr. Nice! posted:His attorney could have argued for a mental capacity defense without materially conceding the primary element of the offense. This is not true. 218 So. 3d 535, 570 n.35 posted:In the present case, the defendant did not enter a dual plea of not guilty and not guilty by reason of insanity, and thus no evidence of insanity or mental defect at the time of the offense was admissible at his trial. See LSA-C.Cr.P. art. 651 ("When a defendant is tried upon a plea of `not guilty', evidence of insanity or mental defect at the time of the offense shall not be admissible ...."). 218 So. 566 posted:The alibi defense the defendant wanted Mr. England to put on, but which could not be substantiated, had no reasonable chance of success, but exposed those who attempted such a defense to the charge of perjury. Mr. Nice! posted:I don't think that's what FlamingLiberal is saying. Mr. Nice! posted:I actually kindof agree with Thomas in that severability isn't something that courts should be weighing in on much at all. It really isn't the job of the court to correct a law, and you can see the results of what happens with the PPACA (SCOTUS & Republican fuckery have made the law painful and unmanageable). There's nothing to indicate that congress would have passed one part of the law without the other. 1. It's how every contract requests a court handle the contract; there's no reason not to do it with a law. 2. Constitutional avoidance is just as much correcting a law as striking down part of it. 3. There's everything to indicate that Congress would prefer enough of the law to accomplish their stated goal of banning/minimizing sports gambling rather than nothing.
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May 14, 2018 17:55
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ulmont posted:This is not true. I'm speaking in a broad sense when I'm saying the attorney could have presented something without conceding the most crucial element of the crime. Yes, England's defense is fallacious and full of holes and there's no way his attorney could ethically question him regarding it, but that still doesn't mean he is not entitled to his choice of defense. If a defendant wants to hang himself, there's only so much an attorney can do. ulmont posted:Perhaps not - that's how I read "I can't see a legal justification in banning it." Fair enough. ulmont posted:1. It's how every contract requests a court handle the contract; there's no reason not to do it with a law. 1. Contracts are much simpler than laws in the grand scheme of things and amount of reach they possess. A severed law can have unintended consequences in far reaching ways where a contract is going to affect two parties primarily. I'm also not saying that all severability is bullshit (and apologize if I came across that way) but rather that severability shouldn't be a primary focus unless it's absolutely clear cut. 2. True, but this is how we've always functioned. Severability in general in a legislative sense is relatively new and isn't necessarily beneficial. Full disclosure, most of my severability experience is watching republicans in Texas use it to keep parts of heinous rules on the books. 3. Perhaps, and maybe not. The law was passed 26 years ago originally and the putative severed portion is pretty linked as a followon to the first section. Once again, I think the way Texas does it is (even though it's been used mostly horribly) the best way to do it. That is when you have a law you want to be severable, you actually have to put that clause in the legislation.
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May 14, 2018 18:14
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Does the sports gambling decision re-legalize online poker or is this limited in scope?
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May 14, 2018 18:17
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axeil posted:Does the sports gambling decision re-legalize online poker or is this limited in scope? Gonna guess online poker is still hosed because it's still basically impossible to move money to or from the sites from the US. Seems like a totally separate issue.
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May 14, 2018 18:20
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axeil posted:Does the sports gambling decision re-legalize online poker or is this limited in scope? The decision threw out PASPA. Online poker is restricted by the UIGEA (unlawful internet gambling enforcement act).
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May 14, 2018 18:20
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Mr. Nice! posted:I'm speaking in a broad sense when I'm saying the attorney could have presented something without conceding the most crucial element of the crime. Yes, England's defense is fallacious and full of holes and there's no way his attorney could ethically question him regarding it, but that still doesn't mean he is not entitled to his choice of defense. If a defendant wants to hang himself, there's only so much an attorney can do. Does the "you can't suborn perjury" rule apply even if the attorney just really really doubts his client? I mean, his client was saying "that's not me on video, this is all a setup" - presumably saying this in private to his attorney as well. I understand the rule applies if you tell your attorney "I totally did it, but put me on the stand and I'm gonna lie and say I didn't" - the attorney can't put you on the stand and ask questions he knows will produce lies, but he CAN just put you up there and let you testify in narrative form. But does it apply if the attorney applies his judgment and thinks "this guy 100% did it. I'm smart and see through him"? Because that seems like it's just one step removed from the question being addressed in this recent ruling, and if the attorney believes in his heart you're guilty, you get a less complete defense.
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May 14, 2018 18:28
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Mr. Nice! posted:The decision threw out PASPA. Online poker is restricted by the UIGEA (unlawful internet gambling enforcement act). Ah okay. I was just wondering if the same logic that threw this out would apply there/to other gambling bans
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May 14, 2018 18:30
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Mr. Nice! posted:2. True, but this is how we've always functioned. Severability in general in a legislative sense is relatively new and isn't necessarily beneficial. Full disclosure, most of my severability experience is watching republicans in Texas use it to keep parts of heinous rules on the books. I agree that severability isn't necessarily beneficial (Georgia recently adopted a blue-letter law for employment restrictions, which means now an employer can write whatever godawful stuff they want for the in terrorem effect without risking anything), but in the context of one branch of government telling another co-equal branch that they did a bad job on a law, just saying "go back and start over" sounds a bit much. Mr. Nice! posted:Once again, I think the way Texas does it is (even though it's been used mostly horribly) the best way to do it. That is when you have a law you want to be severable, you actually have to put that clause in the legislation. You can put the "stock severability clause" right in the statute form then: quote:A BILL to be entitled an Act to amend [INSERT TITLE HERE]; to provide a short title; to provide for related matters; to repeal conflicting laws; and for other purposes.
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May 14, 2018 18:44
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ulmont posted:I agree that severability isn't necessarily beneficial (Georgia recently adopted a blue-letter law for employment restrictions, which means now an employer can write whatever godawful stuff they want for the in terrorem effect without risking anything), but in the context of one branch of government telling another co-equal branch that they did a bad job on a law, just saying "go back and start over" sounds a bit much. That's literally how the SCOTUS functioned in the beginning and for the majority of our country's existence. That's the court's primary job when it comes to balance of powers. ulmont posted:You can put the "stock severability clause" right in the statute form then: Yeah, and that boilerplate is a bit of bullshit. I don't think it's sufficient on its face because it does nothing actually provide a clearcut bright line. I ultimately just don't think courts should be slicing and dicing every piece of legislation as they're the least well equipped to do so.
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May 14, 2018 18:53
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Devor posted:Does the "you can't suborn perjury" rule apply even if the attorney just really really doubts his client? I mean, his client was saying "that's not me on video, this is all a setup" - presumably saying this in private to his attorney as well. Pretty big difference between "Thats not me thats an imposter sent by deep state reptilians" and "Thats totally me but you should tell them its a reptilian"
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May 14, 2018 18:56
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Discendo Vox posted:I'm generally with Ginsburg on this, and also nervous about the incentives this creates for state governments. I think I agree that if Congress wants to ban something, Congress needs to go ahead and do it. If states can't allow sports gambling, that needs to be because it's banned at the federal level. It seems that the entire mess exists because they wanted to exempt Nevada and I assume "sports gambling is banned, except in Nevada" has some issues constitutionally-speaking so they did this obtruse work-around. I agree Congress has the authority to ban sports gambling, but if they do it's gotta be nationwide. No Las Vegas exception.
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May 14, 2018 18:58
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hobbesmaster posted:Pretty big difference between "Thats not me thats an imposter sent by deep state reptilians" and "Thats totally me but you should tell them its a reptilian"
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May 14, 2018 19:25
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Dead Reckoning posted:OK, so how outlandish do the defendant's claims have to be before his lawyer is allowed to decide that presenting them to the court would be perjury? At what point is a lawyer breaching her ethical obligation to her client if she puts him on the stand to ramble about how Bigfoot is the real killer until the judge cuts him off? The lawyer can't stop his client from testifying, that's his right (unless he's declared incompetent to stand trial I guess, but the client wasn't even though I think the lawyer did try that) The issue in the case is whether the lawyer can contradict that testimony if he thinks it's in the client's best interests to do so, or whether he has an obligation to support the client's defense to the best of his ability without conspiring to commit perjury. There is a pretty wide gulf between "lying to the jury himself" and "not directly contradicting his own client"
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May 14, 2018 19:33
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Dead Reckoning posted:OK, so how outlandish do the defendant's claims have to be before his lawyer is allowed to decide that presenting them to the court would be perjury? At what point is a lawyer breaching her ethical obligation to her client if she puts him on the stand to ramble about how Bigfoot is the real killer until the judge cuts him off? A lawyer is obligated to put his client on the stand if they want to testify. They cannot induce perjury, but if a defendant wants to testify he is 100% allowed to get on the stand and say whatever he wants. The solution for the lawyer in this situation just regarding outlandish and demonstrably false testimony is to call the defendant and just give them the floor via a "tell us your story" or whatever without asking any specific questions that would induce perjury. The defendant has the constitutional right to testify, and that wasn't at all infringed here. England's lawyer failed because he conceded that England killed people without England's consent to do so. e:f;b. 
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May 14, 2018 19:36
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Dead Reckoning posted:OK, so how outlandish do the defendant's claims have to be before his lawyer is allowed to decide that presenting them to the court would be perjury? At what point is a lawyer breaching her ethical obligation to her client if she puts him on the stand to ramble about how Bigfoot is the real killer until the judge cuts him off? So these are two different questions. For the first, if the client told me beforehand he's lying I can't put him on the stand and ask question designed to elicit that lie. But I can absolutely put him up on the stand if I don't believe him but he hasn't told me it's a lie. As to the second, if the client insists on doing something stupid despite the lawyer's fervent insistence that they not do something stupid that is their right. In civil litigation generally at that point you resign but in criminal trials, the client would be prejudiced so you can't resign unless they have new counsel (they can, however, fire you).
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May 14, 2018 19:38
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Mr. Nice! posted:That's literally how the SCOTUS functioned in the beginning and for the majority of our country's existence. That's the court's primary job when it comes to balance of powers. quote:The Supreme Court’s severability jurisprudence spans from the late 1800s to the 2012 decision National Federation of Independent Business v. Sebelius. I can't really support going back to Civil War-era legal doctrines. Mr. Nice! posted:Yeah, and that boilerplate is a bit of bullshit. I don't think it's sufficient on its face because it does nothing actually provide a clearcut bright line. I ultimately just don't think courts should be slicing and dicing every piece of legislation as they're the least well equipped to do so. It's at least as good as the clause cited in Sibelius: quote:“[i]f any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby. ...but, to be clear, I just ripped that off of a contract I had lying around; I haven't seen it in Georgia bills generally.
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May 14, 2018 19:42
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But doesn't that put the lawyer between Scylla and Charybdis in terms of providing effective counsel? If they put the defendant on the stand, knowing that the defendant is going to say something insane, let them ramble until the judge cuts them off, and then rest their defense because they don't have expert witnesses on Deep State Reptilians (the defendant's choice of defense) can they really say they've met their professional obligations?
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May 14, 2018 19:43
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Dead Reckoning posted:But doesn't that put the lawyer between Scylla and Charybdis in terms of providing effective counsel? If they put the defendant on the stand, knowing that the defendant is going to say something insane, let them ramble until the judge cuts them off, and then rest their defense because they don't have expert witnesses on Deep State Reptilians (the defendant's choice of defense) can they really say they've met their professional obligations? They wouldn't rest on that point alone and would still present a case regardless of the insane ramblings of the client. You can provide effective counsel without conceding that your client killed three people.
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May 14, 2018 19:46
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Dead Reckoning posted:But doesn't that put the lawyer between Scylla and Charybdis in terms of providing effective counsel? If they put the defendant on the stand, knowing that the defendant is going to say something insane, let them ramble until the judge cuts them off, and then rest their defense because they don't have expert witnesses on Deep State Reptilians (the defendant's choice of defense) can they really say they've met their professional obligations? Their professional obligation is to warn their client in the strongest possible terms that's a stupid loving idea. But the client is the one on trial so they get to make the decisions. The reason you can't resign in a criminal trial is it's still going to trial and now the defendant doesn't have a lawyer, so the court won't let you withdraw until the client gets a new one.
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May 14, 2018 19:48
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evilweasel posted:Their professional obligation is to warn their client in the strongest possible terms that's a stupid loving idea. But the client is the one on trial so they get to make the decisions. The reason you can't resign in a criminal trial is it's still going to trial and now the defendant doesn't have a lawyer, so the court won't let you withdraw until the client gets a new one. Fair enough.
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May 14, 2018 19:49
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Mr. Nice! posted:They wouldn't rest on that point alone and would still present a case regardless of the insane ramblings of the client. You can provide effective counsel without conceding that your client killed three people. Also it is literally an ethical obligation to pursue the arguments your client wants to pursue and to put them on the stand if they want to be on the stand.
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May 14, 2018 19:54
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Dead Reckoning posted:But doesn't that put the lawyer between Scylla and Charybdis in terms of providing effective counsel? If they put the defendant on the stand, knowing that the defendant is going to say something insane, let them ramble until the judge cuts them off, and then rest their defense because they don't have expert witnesses on Deep State Reptilians (the defendant's choice of defense) can they really say they've met their professional obligations? The Louisiana Supreme Court essentially said "yeah, English was proper hosed here." quote:On July 26, 2011 two days before the trial was slated to begin, the court held a hearing in which Mr. English reported that he learned over the weekend of the defendant’s “intention to terminate my services.” So he can't get out and he knows he can't agree with the defendant's plan. quote:Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade. And he can't come up with anything because the alibi defense is insane. quote:Robert McCoy believed that law enforcement and others were conspiring against him and he was simply unable to accept the evidence against him . . . . I became convinced that the evidence against Robert McCoy was overwhelming . . . . I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted. And he knows his client is insane. Which is ultimately borne out by the client's testimony: quote:15 At trial, the defendant denied committing an aggravated battery upon his estranged wife, Yolanda Colston. He also denied owning a gun and suggested that the Idaho police had planted the murder weapon in the eighteen-wheeler as part of a conspiracy with BCPD Detective Humphrey. The defendant further denied spending the night with Sharon Moore the night before the murders or that he asked her for money to buy bullets, suggesting that the district attorney had “concocted that story.” The defendant testified that he went out-of-state on April 21, 2008, after Officers Joshua Bounds and Richard McGee came to his house and beat him in the face with a weapon. The defendant stated that those officers stole his car on April 18, 2008, so he could not have been the person seen running from the white Kia on the police cruiser dashcam video recorded on May 5, 2008. The defendant claimed that he never returned to Bossier City. He explained that he had let his good friend, Robert Evans, a truck driver, use his cell phone, and it was Robert Evans who was calling Sharon Moore around the time of the murders because he had “offered” Sharon Moore to Mr. Evans, although “she didn’t think highly of that.” The defendant further claimed that Detective Humphrey threatened to kill him because he was going to expose corruption in the police department involving Officers Bounds and McGee, all of whom the defendant described as being “very strongly in drugs.” The defendant further testified that the “Robert” that Christine Colston Young was screaming at on the 911 tape was really Robert Thomas, a drug-dealing cop who owned White Automotive off Barksdale. The defendant theorized that Mr. Thomas killed the victims because Willie Young was transporting drugs for them and owed them a debt of $2,500. The defendant claimed that Robert Evans hitched a ride with the truckers, not him. The defendant stated that he was in Houston on the night of the murders, and the reason that calls were being initiated from his cell phone in Bossier and Caddo Parishes on the day of, and day after, the murders was because Mr. Evans had his cell phone. The defendant denied ever attempting to commit suicide. He claimed that the officers made that up to cover-up the fact that they had beaten him. The defendant testified that he had been unable to subpoena any of his witnesses, relating that he had wanted to call to the stand FBI Agent J.T. Coleman, who investigated alleged drug-dealing activities of Officers Richard McGee and Robert Thomas. He said that he also wanted Senator David Vitter to be subpoenaed for trial because “I know Mr. David Vitter personally and [he] knows everything that goes on with me.” The defendant testified that those witnesses would have corroborated all that he was saying. http://www.scotusblog.com/wp-content/uploads/2017/09/16-8255-opinion-below.pdf
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May 14, 2018 19:55
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