Major Rulings of the Supreme Court's 2009-10 Term

This week marked the end of Supreme Court's 2009-10 term. It was also the end of the John Paul Stevens era, as retiring Justice Stevens ascended the bench this week for the last time.

The end of the 2009-2010 term provides a good opportunity to summarize the important decisions handed down this term. Here is a brief summary of the major rulings:

Free Speech and Criminal Law:
United States v. Stevens: The Court struck down a law that prohibited the sale and marketing of depictions of animal cruelty, in a case that involved dog-fighting videos. The Court held that the law swept too broadly, infringing on First Amendment rights. See my previous discussion of the case here.
Majority-Minority: 8-1 (Alito dissenting).

Holder v. Humanitarian Law Project: The Court rejected a First Amendment challenge to a federal law that makes it a crime to provide "expert advice or assistance" to designated terrorist groups. Read my previous analysis here.
Majority-Minority: 6-3 (Ginsburg, Sotomayor, Breyer dissenting).

Campaign-Finance Regulation:
Citizens United v. Federal Election Commission: The Court declared that government cannot restrict corporate and labor union spending on political candidates, lifting the long-standing distinctions in campaign-finance law between corporations and individuals.
Majority-Minority: 5-4 (Stevens, Sotomayor, Ginsburg, Breyer dissenting; Justice Stevens wrote a forceful dissent and read it from the bench!).

Religious Symbols:
Salazar v. Buono: Reversing a lower-court decision against a federal law designed to keep a Christian cross in the Mojave National Preserve even after it was ruled a government endorsement of religion; the justices used a legal rationale that would strengthen the government's ability to keep religious symbols on public grounds.
Majority-Minority: 5-4 (Stevens, Sotomayor, Ginsburg, Breyer dissenting).

Criminal Law and Procedure:
Berghuis v. Thompkins: Declaring that once police have read a suspect his Miranda rights and questioning has beugn, it is up to the individual in custody to assert his right to remina silent. The case arose when a suspect declined to answer hours of questions, then blurted out an incriminating statement but claimed that he had wanted to remina silent and that the statement was not made voluntarily. The Court ruled against the defendant and held the statement admissible.
Majority-Minority: 5-4 (Stevens, Binsburg, Breyer, Sotomayor dissenting)

Maryland v. Shatzer: The issue was whether a detained suspect who has asked to speak to a lawyer can ever be questioned again without a lawyer present. In a 1981 case, Edwards v. Arizona, the Supreme Court held that when a detained suspect asks to speak with a lawyer, the police cannot try to persuade him to change his mind. They have to stop the questioning, and they cannot restart the questioning, even after time passes and the suspect has met with his attorney, unless the suspect reinitiates the questioning on his own. In this case, the issue was whether that rule continues to apply if the suspect has been released from police custody, and is then rearrested. The Court held there is a "14-day rule" meaning that investigators may resume questioning a suspect who invoked his Miranda right to a lawyer, once the suspect has been out of police custody for 14 days. The decision loosened the protection that court precedents had given to suspcts from repeated police pressure to talk.
Majority-Minority: 7-2 (Stevens and Thomas dissenting).

Skilling v. United States: Invalidating part of the fraud conviction of former Enron executive Jeffrey Skilling and finding that a law that makes it a crime to deprive the public or shareholders of the "intangible right to honest services" should apply only to bribery and kickbacks.
Majoriy-Minority: 9-0.

Black v. United States: Invalidating part of the fraud conviction of former media tycoon Conrad Black, based on the ruling in the Skilling case that "honest services" fraud applies only to acts of bribery and kickbacks.
Majority-Minority: 9-0.

United States v. Comstock: Upholding the constitutionality of the law that lets the government continue to imprison inmates who have finished serving their time, if they are deemed "sexually dangerous."
Majority-Minority: 7-2 (Scalia and Thomas dissenting).


Juvenile Sentencing:

Graham v. Florida: Ruling that the Eighth Amendment's ban on "cruel and unusual" punishment prohibits government in all cases from sentencing juveniles to life without parole for crimes other than murder. See my article published - Give Juveniles A Chance.
Majoriy-Minority: 6-3 (Scalia, Thomas, Alito dissenting).

Justice Stevens, in a blistering criticism of Justice Thomas, wrote: "While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."

Business Law:
American Needle v. National Football League: Ruling that the National Football League is not shielded from antitrust liability when it contracts for the exclusive marketing of caps, sweatshirts and other team-logo merchandise, the justices rejected the NFL's arguments for a broad antitrust exemption.
Majority-Minority: 9-0.

Claims of Discrimination:
Lewis v. City of Chicago: The Court found that African Americans who challenged the city of Chicago's written exam for firefighter jobs did not wait too long to bring their claim of bias. The Supreme Court held that a plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice aslong as he alleges each of the elements of a disparate-impact claim.
Majority-Minority: 9-0.

Fourth Amendment:
City of Ontario v. Quon: The issue was whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy. While noting that it is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations, the Court ruled that the California police department did not violate the Fourth Amendment privacy rights of the SWAT team member when it reviewed his text messages (some of which were sexually explicit) sent on a department-issued pager.
Majority-Minority: 9-0.

Death Penalty:
Magwood v. Patterson: The Court ruled in favor of a defendant convicted of a 1979 murder whose challenge to the Alabama state's death penalty law had been ruled untimely by lower courts. Magwood's first death sentence was overturned, but he was sentenced to death a second time. When Magwood filed a habeas petition challenging his new death sentence, the U.S. Court of Appeals for the Eleventh Circuit held that Magwood's challenge to his new death sentence was an unreviewable “second or successive” challenge since he could have brought the same challenge to his first death sentence. The majority said "because Magwood's habeas application challenges a new judgment for the first time, it is not 'second or successive.'" The Supreme Court decision allows Magwood to challenge his second death sentence as a brand new judgment, even if it raises issues that could have been made against the original sentence.
Majority-Minority: 5-4 (Kennedy, Roberts, Alito, Ginsburg dissenting).

Holland v. Florida: Ruling that a death row inmate should not lose his right to a federal appeal because his lawyer missed the 1-year deadline established under the 1996 Antiterrorism and Effective Death Penalty Act. See my article on this case here.
Majority-Minority: 7-2

Advocacy Is Not A Gun

That is the title of an excellent commentary by Georgetown law professor David Cole, following the deeply disappointing decision of the Supreme Court in the case of Holder v. Humanitarian Law Project [full-text decision, pdf]. By a 6-3 majority, the Court ruled that a federal law, 18 USC s. 2339B(a)(1) which makes it a federal crime to "knowingly provide material support or resources to a foreign terrorist organization" is constitutional.

What is "material support"? The statute defines this term as follows:

“[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities,weapons, lethal substances, explosives, personnel, and transportation, except medicine or religious materials.”

The main issue was whether the government can criminalize those who engage in giving "expert advice or assistance" to organizations, when that advice or assistance is meant to teach members of those designated organizations to use non-violent means, including legal advocacy, to achieve their goals. In other words, does the attempt to wean people away from violence constitute a criminal act punishable by 15 years imprisonment?

Bowing to the government's pressure, the majority of the Court, led by Chief Justice John Roberts, held that the statute did not violate the plaintiffs' First Amendment rights to free speech and association, nor was it unconstitutionally vague in violation of the Fifth Amendment.

Justice Stephen Breyer filed a dissenting opinion, in which Justices Ruth Bader Ginsburg and Sonya Sotomayor joined.

This is a dangerous precedent, and a disturbing erosion of freedom of speech. As Professor Cole explains:

For the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity. The court reasoned that it is conceivable that such speech might burnish a designated group’s image, and thereby “legitimize” it, and therefore Congress can make all such speech a crime.

In the past, the Supreme Court has ruled that the First Amendment protected even the right to advocate criminal activity, so long as one’s advocacy was not intended and likely to produce an imminent crime. And it ruled that citizens had a right to associate with a group engaged in both legal and illegal activities, as lone as they intended to further only the group’s lawful activities.

Today, by contrast, the court rules that speech advocating only lawful, nonviolent activity can be made a crime, and that any coordination with a blacklisted group can land a citizen in prison for 15 years.

Cole explains persuasively why this decision is counterproductive, and will have grave implications. It will hamper the efforts of those engaged in peace activism and in conducting negotiations intended to reduce violence:

The decision has deeply disturbing implications. It means that when President Jimmy Carter did election monitoring in Lebanon, and met with all of the parties to the election — including Hezbollah, a designated “terrorist group” — to provide them with his advice on what constitutes a fair election, he was committing the crime of providing “material support,” in the form of “expert advice.”

It means that when The New York Times and The Washington Post published op-eds by a Hamas leader, they were engaged in the crime of providing “material support” to a designated terrorist group, because to publish the op-ed they had to coordinate with a spokesperson from Hamas.

And it means that my clients, a retired judge and an established human rights group, cannot continue to work for peace and human rights without risking long prison terms.

Those who defend this law often focus on the provision of funds — not at issue before the Supreme Court — and argue that money is fungible, and can be used for any purpose.

But human rights advocacy is not fungible. It cannot be turned into guns and bullets. It is designed to persuade, not coerce. It is, in short, what the First Amendment is all about. But it is now a crime, and according to this Supreme Court, the First Amendment poses no obstacle to its suppression.

That the Court's conservative majority (with the addition of Justice Stevens) ruled in favor of the government is not really a surprise. In today's environment of fear, it is expected that judges will defer to the government, even when this means undermining basic constitutional rights. What is particularly disturbing is that Elena Kagan, Obama's nominee for the Supreme Court, enthusiastically argued this case for the government in her role as Solicitor General. This does not bode well for her future rulings as a Supreme Court justice.

Supreme Court Favors Fairness Over Finality in Death Penalty Case

On June 14, the U.S. Supreme Court issued a just decision in the case of Holland v. Florida [pdf] ruling that a death row inmate should not lose his right to a federal appeal because his lawyer missed the 1-year deadline established under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA).

The Supreme Court, by a 7-2 majority, correctly reversed the Court of Appeals decision, stating that the appeals court's standard was too rigid, and that equity highly favors keeping the courthouse doors open for the petitioner to file his federal habeas corpus appeal.

Procedural History of the Case

The petitioner, Albert Holland, was convicted of murder and sentenced to death in a Florida state court. His direct appeals were unsuccessful, and the one-year limitations period under AEDPA (28 U.S.C. Section 2244(d)) began to run on October 1, 2001. Bradley Collins, the attorney appointed to represent Holland at the post-conviction stage, filed a motion for state post-conviction relief in September 2002, thereby tolling the limitations period and leaving Holland with approximately twelve days to file his federal habeas petition if his motion for state post-conviction relief was denied. The limitations period began to run again on December 1, 2005, when the Florida Supreme Court denied relief. Despite Holland’s frequent reminders, Collins failed to file a timely federal habeas petition. Moreover, he also failed to tell Holland that his efforts to obtain state post-conviction relief were unsuccessful. In January 2006, after the AEDPA limitations period had expired, Holland finally learned that the Florida court had denied relief; one day later, he filed a pro se federal habeas petition, which was approximately five weeks late under the 1-year statute of limitations set forth in AEDPA.

The lower court, the Court of Appeals for the Eleventh Circuit, ruled that his attorney's conduct in missing the deadline was not egregious enough to warrant setting aside the imposed deadline. The appeals court said that the attorney would have had to act with "bad faith, dishonesty, divided loyalty, or mental impairment" to be excused from the imposed deadline, and that gross negligence was not enough of a reason. And so the client must die because of a grossly negligent mistake made by his lawyer.

Supreme Court Favors Fairness Over Finality

The Supreme Court granted certiorari. In an opinion by Justice Breyer, the Court emphasized that the history of the writ of habeas corpus supports opposing the use of "mechanical rules" when exercising the court's equity powers.

The Court held that federal habeas corpus statute is subject to equitable tolling, and a petitioner is entitled to equitable tolling only if he shows --

(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005).

In this case, the “extraordinary circumstances” at issue involve an attorney’s failure to satisfy professional standards of care. In interpreting "extraordinary circumstances," the Court of Appeals held that even attorney conduct that is “grossly negligent”can never warrant tolling absent “bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part.”

But the Supreme Court rejected this view. The majority opinion held that the Court of Appeals standard is "too rigid" and it does not accurately reflect the principle of equitable tolling, straying from the ideals that govern equitable considerations. The Court explained the need for flexibility to prevent injustices:

In emphasizing the need for “flexibility,” for avoiding “mechanical rules,” we have followed a tradition in which courts of equity have sought to relieve hardships which, from time to time, arise from a hard and fast adherence to more absolute legal rules, which, if strictly applied, threaten the “evils of archaic rigidity.” The “flexibility” inherent in “equitable procedure” enables courts “to meet new situations [that] demand equitable intervention, and to accord all the relief necessary to correct . . . particular injustices.” [citations omitted]

The Court, inexplicably, stopped short of holding that Collins’s negligence amounted to the kind of “extraordinary circumstances” that would allow equitable tolling in Holland’s case. While not explaining in detail why exactly the Court of Appeals standard is "too rigid," the Court did indicate both that the record contained facts that were far more serious than “garden variety” attorney negligence, and that those facts “may well be” an extraordinary instance that would justify equitable tolling.

Relying on an amicus brief filed by a group of legal ethics teachers, the Court opined that the lawyer's conduct here "violated fundamental canons of professional responsibility." Why then is this not egregious enough to support equitable tolling and issue an order allowing the prisoner to file a federal habeas petition?

Justice Breyer and his colleagues in the majority were not courageous enough to say the obvious: That a lawyer ignoring a death row prisoner's repeated requests to file a habeas petition, and the lawyer's negligence to update the client as to the status of his case, are "extraordinary circumstances." Even while reaching a correct conclusion, the majority failed to lay down a bright-line rule that petitioners should not be denied access to habeas courts because of their lawyer's negligence. Unfortunately, the Supreme Court deemed it more appropriate for the lower courts to make a new factual determination in this case. Because the District Court erroneously relied on a lack of diligence by Holland, and because the Eleventh Circuit erroneously relied on an overly rigid per se approach, the Court remanded the case to the court of appeals to determine whether Holland’s case constitutes extraordinary circumstances sufficient to warrant equitable relief.

For an excellent analysis that pulls no punches, read Negligence-With Cooties.

Governor Brad Henry, Don't Execute a Potentially Innocent Person

Just two days from now, Jeffrey Matthews is scheduled to be executed in Oklahoma for a crime of which he may be innocent. Evidence thought to have been lost was just discovered and Matthews' defense team is seeking a 60-day reprieve to allow time to resolve the issues raised by the reappearance of this evidence. Matthews' fate is now in the hands of Governor Brad Henry (D) who has the authority to grant the reprieve.

Oklahoma death row inmate Jeffrey Matthews is scheduled to be executed Thursday, June 17, 2010 at 6 pm, for his alleged participation in the murder of Otis Earl Short. According to the National Coalition to Abolish the Death Penalty, he may very well be innocent of the crime.

The offense involved a 1994 burglary of a home occupied by a husband and wife, in which the husband was killed and the wife wounded. The State's theory of the crime, as supported by the wife's testimony, was that there were two perpetrators. One of the perpetrators, Tracy Dyer, was identified quickly by police and it is undisputed he was present. Dyer made a traceable phone call from within the residence, his fingerprints were found in the home, and he confessed to being there. Dyer was convicted and received a life sentence with possibility of parole. He is up for parole next year.

The State convicted Jeff Matthews based on circumstantial evidence. Despite the conviction resting solely on circumstantial evidence, Matthews was sentenced to death. Some of this circumstantial evidence has been questioned by the prosecution's own investigator and a former deputy sheriff involved in the case. The former deputy sheriff spoke on behalf of Mr. Matthews at his May 26, 2010 clemency hearing, where the Oklahoma Pardon and Parole Board denied clemency by a 3 to 2 vote.

Dyer has both exonerated and implicated Mr. Matthews in various statements he has given. Unlike Dyer, however, Matthews' fingerprints were not found at the crime scene. In fact, no forensic evidence of any kind - no blood, no DNA, no fingerprints, no gunshot residue, no hair or fiber evidence - has ever been identified to link Mr. Matthews to the crime. Importantly, multiple fingerprints were collected at the scene that were never identified. Mr. Matthews sought to have these fingerprints compared to prints of known suspects - one being the uncle of Tracy Dyer who was staying with Dyer at the time of the offense and who had a prior felony conviction for burglary, and the other having been identified by police as a suspect in a previous burglary at the same residence.

In May of 2008, counsel for Mr. Matthews was informed that the unidentified prints retrieved from the home had been lost or misplaced. Just last week, however, ten days before Mr. Matthews' scheduled execution, the lost fingerprints were found. In the last few days the Oklahoma State Bureau of Investigation has attempted to compare these prints with the prints of the alternate suspects, and a written report is expected to be issued within a day or two of the execution. The defense team for Mr. Matthews has not been able to be involved in conducting or overseeing the fingerprint comparisons.

Based on these circumstances, counsel for Mr. Matthews has requested Governor Brad Henry issue a 60-day reprieve so that efforts can be made to satisfactorily resolve the outstanding issue of the fingerprints and identify Dyer's true accomplice.

Governor Henry, in the interests of justice, do not let the execution of a potentially innocent person move forward. Exercise your authority and grant the reprieve to prevent what may be a terrible miscarriage of justice and an unforgivable stain on the State of Oklahoma.

"Thus you will remove from your midst guilt for the blood of the innocent, for you will be doing what is right in the sight of the Lord" (Deuteronomy 21:9).

Urge Governor Henry to intervene immediately and grant Jeffrey Matthews the 60-day reprieve requested by his attorneys:

Governor Brad Henry
Phone: 405 521 2342
Fax: 405 521 3353

UPDATE (6/16):
Governor Brad Henry issued a reprieve!
Thank you, Gov. Henry, for making a correct decision that is in line with the ideals upon which this country was founded.
This case, regardless of the final outcome, shows the bankruptcy of the death penalty. The justice system is comprised by humans prone to error and mistakes, and driven by ego and prestige. It is enough for one rotten apple in this huge system to send an innocent man to his death. That is one more reason why Oklahoma should now conclude from the "close call" nature of this case that it is time to follow in the footsteps of Maryland and abolish the use of death penalty.