Z

The Legal Monthly

Vol. 2 No. 3 Read Z the Blog at http://zlegaltimes.blogspot.com/ March 2007

The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information

Contents

Supreme Court:

Whorton v. Bockting, Crawford, Teague redux (how not Gideon was Crawford?)

Wallace v. Kato, Civil Rights (42 U.S.C. §1983)

Habeas: AEDPA's (Un)Constitutionality (has Congress outrun its own shadow?)

Al Odah, et al., v. U.S.

Irons v Carey (9^th Circuit)

A “Devolving” Constitution, Prof. Isidore Silver

Sexual Morays, Howard J. Bashman

A Constitutional Right to Post-Conviction

DNA Testing? McKithen (2d Cir. 2007)

Top News

ModusOperandi Conspiracies, Politics of Crime, & the Bushy (Hairy) United States Dept. of Justice (DOJ):

1. Obstructing Attorney General Gonzales

2. White House Aid Found Guilty

3. Some Statistics of Interest (features for next issue)

Sting of the Month: NBC Dateline's “To Catch A Predator” Douglas McCollam, Columbia Journalism Review

SCOTUS FOCUS

(beam me up “scoottie”---it is time to beat feet and do the hoochie coochie or, jazz, anyone?)

Whorton v. Bockting (syllabus)

(a) Under Teague's framework, an old rule applies both on direct and collateral review, but a new rule generally applies only to cases still on direct review and applies retroactively in a collateral proceeding only if it (1) is substantive or (2) is a watershed rule that implicates “the fundamental fairness and accuracy of the criminal proceeding.” *** Crawford announced a new rule, i.e., “a rule that . . . was not 'dictated by precedent existing at the time the defendant's conviction became final,'” Saffle, supra, at 488. It is flatly inconsistent with Roberts, which it overruled. “The explicit overruling of an earlier holding no doubt creates a new rule.” Saffle, supra, at 488. *** Prior to Crawford, “reasonable jurists,” (cites omitted) could have concluded that Roberts governed the admission of testimonial hearsay statements made by an unavailable declarant.

The “new rule” exception is “extremely narrow,” (cit. om.) and since Teague, this Court has rejected every claim that a new rule has satisfied the requirements necessary to qualify as a watershed. The Crawford rule does not meet those two requirements. (1) First, the rule does not implicate “the fundamental fairness and accuracy of the criminal proceeding” because it is not neces-sary to prevent “an 'impermissibly large risk. . . of an inaccurate conviction,'” (cites omitted). Gideon v. Wainwright, 372 U. S. 335, the only case that this Court has identified as qualifying under this exception, provides guidance.

The unanimous opinion was by Justice Alito, dated Feb. 28.

Nb. Did Crawford really announce a new rule? A hypothetical dissent, coming soon.

Wallace v. Kato: Updating Civil Rights Claims under 42 U.S.C. §1983.

In the pursuit of order in the administration of justice...the Court viciously encourages the filing of potentially Heck barred claims early in this ruling—full employment and good news for civil rights lawyers—but bad news for defendants and already overburdened federal courts and pro-se (pauper) litigants. Sometimes the dissenting opinions shed more light than do the main opinions.

“I find it difficult to understand why the Court rejects the use of 'equitable tolling' in regard to typical §1983 plaintiffs. Ante, at 10. The Court's alternative--file all §1983 claims (including potentially Heck-barred claims) at once and then seek stays or be subject to dismissal and refiling--suffers serious practical disadvant-ages.” Dissenting opinion at 2-3, (Breyer and Ginsburg). “The federal court's decision as to whether a claim was Heck barred (say, whether the alleged constitutional violation was central to the state criminal convic-tion) might later bind a state court on conviction review. Because of this, even a claim without a likely Heck bar might linger on a federal docket because the federal court (or the plaintiff who has been forced to early file) wishes to avoid interfering with any state proceedings and therefore must postpone reaching, not only the merits of the §1983 claim, but the threshold Heck inquiry as well. Id.

“The use of equitable tolling in cases of potential temporal conflict between civil §1983 and related criminal proceedings is consistent with, indeed, it would further, §1983's basic purposes. It would provide for orderly adjudication, minimize the risk of inconsistent legal determinations, avoid clogging the courts with potentially unnecessary “protective” filings, and, above all, assure a plaintiff who possesses a meritorious §1983 claim that his pursuit of criminal remedies designed to free him from unlawful confinement will not compromise his later ability to obtain civil §1983 redress as well.” Dissenting opinion, at 4.

A tolling principle certainly seems to me to create greater order than the rule the majority sets out, whereby

all criminal defendants must file their §1983 suits immediately, some will be stayed, some dismissed, and then some may be refiled and entitled to tolling, ante, at 10, n. 4. Id.

For defendants, the ruling comes with a price tag attached. “The price consists of being immediately sued by the filing of a §1983 lawsuit, rife with stays and delays, which otherwise, in the course of time (as claims are winnowed in state court) might never have been filed. At 5.

Syllabus (with some cites omitted)

The statute of limitations upon a §1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. (a) The statute of limitations in a §1983 suit is that provided by the State for personal-injury torts; here, two years under Illinois law. For false imprisonment and its subspecies false arrest, “[t]he . . . cause[s] of action provid[ing]the closest analogy to claims of the type considered here,” Heck v. Humphrey, 512 U. S. 477, 484, the statute of limitations begins to run when the alleged false imprisonment ends, that is, in the present context, when the victim becomes held pursuant to legal process, see, e.g., Heck, supra, at 484. Thus, petitioner's false imprison-ment did not end, as he contends, when he was released from custody after the State dropped the charges against him, but rather when he appeared before the examining magistrate and was bound over for trial.

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Al Odah, et al., v. U.S. (and remember, you could be next)

Attorneys for 45 detainees at the military prison camp at Guantanamo Bay, Cuba, asked the Supreme Court on Monday to rapidly review their attempt to regain the right to challenge their detention in federal court, urging the Court to hold a hearing on the issue on May 7. In two petitions seeking review of a Feb. 20 D.C. Circuit Court ruling ordering the dismissal of habeas challenges, lawyers for detainees who are nationals of ten nations also asked the Court to decide, if jurisdiction still exists, some basic questions about constitutional rights for captives at Guantanamo. One petition seeks a ruling that the detainees’ challenge is strong enough that they are at least entitled to a hearing on it. The other asks the Court to rule that the detainees have significant constitutionally -based due process rights, and rights under the Geneva Convention.

The petition filed first on Monday was in Boumediene, et al., v. Bush, et al.; The second petition was in Al Odah, et al., v. U.S. (petition, appendix and motion to expedite). In addition, a group of former federal judges, diplomats, military officers and others filed an amicus brief urging the Court to hear the new appeals. This case, lawyers in the Boumediene case argued, "presents questions central to the rule of law....The national importance of these questions would warrant this Court's review on their own." But, it added, review "is even more imperative in light of the oppressive conditions [detainees] endure" at Guantanamo. Attorneys in the Al Odah case told the Court: “What ultimately is at stake here is America’s commitment to its core values and the rule of law. That commitment requires that this Court…make clear that our government cannot evade the core constitutional limits on its authority – and the fundamental values of fairness for which our country is known – simply by placing its prisoners in areas beyond our technical sovereignty.” Just because you're paranoid does not mean they are not out to get you—and they will.

A “Devolving” Constitution. Isidore Silver, Special to The National Law Journal March 12, 2007 (and to Z The Legal Monthly)
Perhaps in anticipation of a serious attempt to undermine Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court has adopted a technique of dismantling well-established constitutional rights and remedies and, in essence, relegating these protections to a form of "second class" status. Devolution may be defined as transferring power and authority from a higher governmental unit to a lower one, and this form of devolution involves redefinition of constitutional rights to uncertain statutory ones.
The process is exemplified by two recent cases involving the Fourth and First Amendments. In Hudson v. Michigan, 126 S. Ct. 2159 (2006), the majority held that although the "knock, wait, and announce" rule during execution of search warrants involved an establi-shed Fourth Amendment right, suppression of evidence-the traditional remedy for a violation-was not required. Strangely, the decision avoided discussion of a well-recognized exception to suppression, "inevitable discovery," which permits use of evidence that would have been obtained even in the absence of a constitu-tional violation. Justice Antonin Scalia manifested his well-known sense of humor by noting that a Section 1983 damages remedy was sufficient to deter unconsti-tutional conduct.

First Amendment erosion
In Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), another bare majority of the court held that a public employee was not protected by the First Amendment if his "speech" was made in the course of performance of his official duties, rather than as a "citizen." Since whistleblowing occurs when a conscientious public employee discovers and reveals information about corruption or malfeasance learned in the course of his work, it would appear that this major source of vital public information has been effectively squelched. The most hard-hit employees may be inspector generals, whose duty is to actually uncover and reveal agency problems. Chief Justice John G. Roberts Jr.'s opinion blithely shrugged off the issue: Federal and state whistleblower laws were sufficient.
This diminution of constitutional law has major repercussions, both theoretical and practical. For instance, since any violation of the Fourth Amendment is, in theory, actionable under Section 1983, and even perhaps state law, Hudson may be a precursor to abolition of the exclusionary rule altogether. To argue that a federal damages remedy is both practical and effective verges on the delusional. There are numerous defenses to Section 1983 actions, including "qualified immunity," the defense that a reasonable officer would not have known that his conduct was illegal.

Inadequate remedies
If a search produces no evidence of a crime, the officers may argue reasonableness (reliance on the warrant) or lack of quantifiable actual damages. A nominal damages award may be soul-satisfying to an innocent homeowner, but not to his attorney who will probably be denied fees-because of other Supreme Court decisions. And if evidence of crime is discovered, no jury would find for the plaintiff-who may well be in prison.
The Garcetti fall-out has already begun. The case was applied to dismiss a claim by a state university employee who reported concerns about fraud and false claims in student files. U.S. ex rel. Battle v. Georgia Regents, 468 F.3d 755 (11th Cir. 2006). Indeed, even before the decision was issued, the rationale behind the case was applied to uphold discipline for a police officer's routine tip to another officer about the location of a suspect. Schad v. Jones, 415 F.3d 671 (7th Cir. 2005).

Standard has been superceded
Although Roberts dismissed concerns that public employers would redefine job duties to encompass whistleblowing, lower courts have begun to find that such duties are implicit in or peripheral to extant ones, even if not enumerated. See Freitag v. Ayers, 463 F.3d 838 (9th Cir. 2006) (remand on issue of whether a female guard's complaint of inmate sexual harassment was subject to Garcetti); Shattuck v. Potter, 441 F. Supp. 2d 193 (D. Me. 2006) (statements were "closely related" to official duties within Garcetti). Garcetti's relegation of whistleblowers to the vagaries of incomplete and inconsistent state laws is disquieting. This is especially true since the new standard supersedes the traditional one-whether a disclosure, even one made on the job, was about a "matter of public concern."
The job of devolution is not over, and if Roe v. Wade will not be overruled outright, the Roberts court has established the groundwork for leaving many aspects of this particular right of constitutional privacy in state hands. The great irony is that the above-mentioned diminution of constitutional protections has been (bizarrely) justified as meaning that rights will be enforced under statutory, instead of constitutional, interpretation. In the case of Roe, devolution simply means that a constitutional right will be fragmented, even shredded. The results for criminal suspects, whistle-blowers, pregnant women-and the rest of us will be a constitutional tsunami.
Isidore Silver is professor emeritus of constitutional law and history at the City University of New York.

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Sexual Morays, Howard J. Bashman [Special to Law.com]
March 5, 2007

Perhaps owing to the nation's puritanical origins, in the United States we love to legislate about sex -- even sex between consenting adults or between consenting adults and inanimate objects.

In the aftermath of the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas invalidating a Texas ban on homosexual sodomy between willing adult participants, many wondered whether other laws regulating sexual conduct between consenting adults would be vulnerable to legal challenge.

If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.

In the more recent of the two rulings, the Supreme Court of Ohio late last month rejected a man's challenge to a state law that criminalizes sexual conduct between a stepparent and stepchild even if both are adults and unrelated by blood, and both willingly participate in the conduct. In seeking to challenge the law as unconsti-tutional as applied to his case, the stepfather argued that Ohio had no legitimate interest in regulating sex between consenting adults.

However, Ohio's highest court disa-greed by a vote of 6 to 1. The majority's opinion observed that "Lawrence did not announce a 'funda-mental' right to all consensual adult sexual activity, let alone consensual sex with one's adult children or step-children." The Ohio justices found that, while the Texas statute in Law-rence was unconstitutional under the so-called "rational basis" test, a rational basis existed for Ohio to prohibit even consensual sex between a stepparent and an unrelated stepchild.

The legitimate interest that the Ohio court recognized was the state's interest in protecting the family unit and family relationships. The Supreme Court of Ohio went on to recognize that if the stepfather and stepdaughter wished to have the ability to engage in sexual relations free from government regulation, they could do so--if the stepfather divorced the stepdaughter's biological mother.

Some local news coverage of the Ohio ruling noted that the stepfather could still seek appellate review from the U.S. Supreme Court based on his argument that Lawrence v. Texas requires the invalidation of his conviction. But I would be very surprised if the U.S. Supreme Court saw any merit in that argument or was even interested in hearing this case on the merits.

Also last month -- on Valentine's Day, as coincidence would have it -- the 11th U.S. Circuit Court of Appeals issued a decision that may represent the last gasp in an effort to invalidate an Alabama law prohibi-ting the commercial distribution of sex toys. The lone issue remaining for consideration in the case's latest visit to the 11th Circuit was "whether public morality remains a sufficient rational basis for the challenged statute after the Supreme Court's decision in Lawrence v. Texas."

The 11th Circuit's opinion explains: "[T]he ACLU argues [that] this case is indistinguishable from Lawrence -- just as in that case, in this case there is no legitimate state interest, including public morality, that supports the challenged Alabama statute."

But the 11th Circuit disagreed, observing that "while the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity."

Thus, the 11th Circuit ruled, "we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute."

For that reason, the court affirmed the Alabama federal district court's most recent ruling in the case and refused to invalidate that state's statute prohi-biting the commercial distribution of sex toys.

In the immediate aftermath of Lawrence v. Texas, legitimate questions arose concerning the likely fate of other laws seeking to regulate the sexual conduct of consenting adults. Now, nearly five years later, it appears that the impact of the Lawrence ruling has been far more limited than many had initially hoped -- or feared.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. Access his appellate Web log at http://howappealing.law.com/.

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Irons v. Carey: A Take by Prof. Orin Kerr (George Washington Univ. Law)

Two years ago, the Ninth Circuit panel of Judges Reinhardt, Noonan, and Fernandez created quite a stir when they strongly hinted that they were going to strike down 28 U.S.C. 2254(d)(1) of AEDPA, the 1996 statute that limits the power of federal courts to provide habeas relied for state prisoners. Under this statute, federal courts can grant habeas relief only when state courts really messed up (nb: this is a difficult to define term rarely appearing in scholarly writing, however, the paucity in its meaning is compensated for by the clarity of its tone, as “f***ed up” or alternatively, FUBAR, itself a term lingering on from its heyday during the VIETNAM ERA, now being replicated as the Iraq era, or “make Chevron, Venezuela, and Iran rich,” a.k.a., “the end of cheap oil, a.a.k.a “f**k you America” era);

if the legality of the state court processes was a close call, the federal courts cannot intervene.

The Ninth Circuit and the Supreme Court have been playing a bit of a cat and mouse game over the last few years with this particular statute. A number of Ninth Circuit judges (Reinhardt included, of course) opted to ignore it or minimize it to see if the Supreme Court would notice; the Supreme Court noticed, and reversed the Ninth Circuit (and Reinhardt in particular) in a string of cases.

The interesting question was whether Reinhardt and Noonan were going to take things up a notch and strike down the statute outright, effectively forcing the Supreme Court to add a case to its docket and respond to their view that AEDPA interferes too much with the judicial function.

Today the panel finally handed down its opinion, Irons v. Carey. Somewhat to my surprise, the panel opted against that course. The judges filed a short unanimous opinion resolving the case and noting that Ninth Circuit precedent upheld the constitutionality of the provision years ago. (The judges were therefore bound by the earlier panel, although in the Ninth Circuit such rules are followed somewhat sporadically.) Next, Judges Noonan and Reinhardt made their arguments that the statute should be deemed unconstitutional in non-controlling concurrences rather than in the majority opinion. Judge Noonan wrote the main concurrence; Judge Reinhardt wrote a short concurrence agreeing with Noonan's concurrence; and Judge Fernandez wrote a short concur-rence disagreeing with the other concurrences (nb. actually, he joined Reinhardt's concurrence that actually “fully joined” Noonan's “sagacious” concurrence—so go figure—I think he, meaning Fernandez, was smoking rope, I mean, ... forget it—Judge F writes that Judge R “decries the fact that we (and, probably, the United

States Supreme Court) have deemed the AEDPA to be constitutional” whereas Reinhardt and Noonan “merely” questioned the actual constitutionality of AEDPA and not the decisions upholding it—to “decry” means something else entirely—but that's just turkey.¹ ) and noting that none of the concurrences were binding.

Parting with Fernandez, neither Noonan nor Reinhardt “decried” anything at all. Put that in your pipe and smoke it. Read them. In contrast with Fernandez's offhand remarks, Judge Noonan's and Reinhardt's are classic, heartfelt and solid pieces of craftsmanship that deserve to be read and referenced widely.

*Professor Kerr is a prolific scholar in the area of criminal law and criminal procedure, and is nationally recognized as a leading voice in the emerging field of computer crime law. Kerr’s recent scholarship has appeared in the Harvard Law Review, Columbia Law Review, Michigan Law Review, New York University Law Review, Georgetown Law Journal, Northwestern University Law Review, Hastings Law Journal, George Washington Law Review, William and Mary Law Review, Washington and Lee Law Review, and several other journals. And now of course, Z Legal Monthly as well.

Take 2: SCOTUSblog on Point

Some 22 months after a federal appeals court raised a major constitutional issue that the Supreme Court has yet to confront, the lower court has provided an answer -- though not in a binding precedent. It also has cleared up a fascinating mystery. With that solved, the controversy now seems back on track toward the Supreme Court.

The issue can be stated simply: did Congress act unconstitutionally in 1996 when it passed a law strictly curbing the power of federal courts to overturn state criminal convictions? The law is the Antiterrorism and Effective Death Penalty Act, now lying at the core of all federal habeas law.

The Supreme Court provided its most comprehensive interpretation of that law in the splintered decision in Williams v. Taylor, in April 2000. But the Justices have never examined the constitutionality of the Act, and some lower courts ssume that the Court, having decided an array of AEDPA cases, simply accepts as implicit that the law is valid.

When the Ninth Circuit Court, on its own, stirred up the issue, this was widely noted. This blog in fact covered the controversy extensively. But since the last post, in July 2005, the dispute has gone unmentioned on this blog and virtually everywhere else (except on the pages of Z The Legal Times)

The Circuit Court, quite unexpectedly, asked the constitutional question on May 4, 2005, in an otherwise fairly routine case about California parole procedures -- the case of Irons v. Carey (Circuit docket 05-15275). After taking a quick look at it at a hearing, that Court ordered supplemental briefing, and an array of impressive arguments came in, including a full defense of the law by the U.S. Justice Department.

Take 3--Primary Sources: Judge Reinhardt (concurring) -- After affording federal courts the power to issue writs of habeas corpus in state cases, Congress tells us in AEDPA that we may not grant relief to citizens who are being held in prison in violation of their constitutional rights unless the constitutional error that led to their unlawful conviction or sentence is one that could not have been made by a reasonable jurist. Whether it was reasonable for a state court to misapprehend the dictates of the Constitution in a particular case hardly seems relevant to a citizen’s right not to be imprisoned in violation of the fundamental liberties he is granted by the document that governs our societal structure. Nor is authorizing jurists to determine that a citizen’s detention is unlawful, but that he must remain incarcerated because a magistrate’s

error is understandable, consistent with our duty as jurists to enforce the laws and protect the rights of our citizens against arbitrary state action.

Having granted the courts the authority to review state convictions under our habeas powers, it seems to me inconsistent with our fundamental obligations as judges to require us, except in unusual or exceptional circumstances, to rule for the state regardless of whether it violated the Constitution. Such a mandate appears to me to tell us how to decide a case. That, for the reasons Judge Noonan so well expresses, Congress simply may not do.

A Constitutional Right to Post-Conviction DNA Testing: McKithen (2d Cir. 2007)

Rooker-Feldman, a circuit split over the scope of 1983 in relation to habeas corpus, the Heck v Humphrey bar, claim/issue preclusion, due process, are all alive and well as is the possibility of a “new” constitutional right, as Judge Calabresi's opinion shows:

“we must now determine whether a claim asserting a post conviction federal constitutional right of access to, and DNA testing of, evidence is cognizable under § 1983, or whether, instead, it lies so well “within the core of habeas corpus” that it may only be brought in a habeas petition. The question has been an open one in this circuit. We today join the Seventh, Ninth, and Eleventh Circuits, and district courts in the First and Third Circuits, agreeing with them that a claim seeking post-conviction access to evidence for DNA testing may properly be brought as a § 1983 suit (citations omitted). In doing so we reject the position taken by three other circuits. See Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002) (“Harvey I”) (holding that such a claim cannot be brought in a § 1983 action when a plaintiff “seek[s] access to DNA evidence for one reason and one reason only — as the first step in undermining his conviction”).

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the extraordinarily important, and delicate, constitutional issue which McKithen has sought to litigate is squarely before us. But we decline to rule on it now. Instead, because of the fact-intensive nature of the inquiry — and, as noted earlier, in light of the need to approach the issue cautiously — we remand the question to the district court for its examination in the first instance.

Bling Bling Sting Gives (Dead) Prosecutor a Bad Headache: “To Catch A Predator”

For weeks the police in the nearby town of Murphy had been working with the online watchdog group Perverted Justice and producers from Dateline NBC’s popular “To Catch a Predator” series in an elaborate sting operation targeting adults cruising the Internet to solicit sex from minors. Dateline had leased a house in an upscale subdivision, outfitted it with multiple hidden cameras, and hired actors to impersonate minors to help lure suspects into the trap. As with several similar operations previously conducted by Dateline, there was no shortage of men looking to score with underage boys and girls. In all, twenty-four men were caught in the Murphy sting, including a retired doctor, a traveling businessman, a school teacher, and a Navy veteran. One, Louis Conradt Jr., a longtime county prosecutor living in the small community of Terrell, Texas, just east of Dallas, shot himself to death. In a statement to the Murphy City Council, Conradt’s sister, Patricia, directly implicated Dateline in her brother’s death. “I will never consider my brother’s death a suicide,” she said. “It was an act precipitated by the rush to grab headlines where there was no evidence that there was any emergency other than to line the pockets of an out-of-control group and a TV show pressed for ratings and a deadline.” She added: “When these people came after him for a news show, it ended his life.” In an interview, she was even more direct: “They have blood on their hands,” she said, referring to Dateline, the police, and Perverted Justice.

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A Gold Rope & Brass Ring Enterprise

1. to speak disparagingly of; denounce as faulty or worthless; express censure of: She decried the lack of support for the arts in this country. 2. to condemn or depreciate by proclamation, as foreign or obsolete coins.