“Pets make life better in many ways. Bringing them with us out into the world means companionship, a social ice-breaker and not having to worry that we’ve left them home alone. At work, they can boost morale, build a sense of community and get us up for regular walking breaks – all things that are good for our health. That’s why more and more employers are exploring pet-friendly workplace programs. The research is in and not only do people want pets at work, pets work at work.TOOLS TO HELP YOU GET STARTED
“The nation’s population has a distinctly older age profile than it did 16 years ago, according to new U.S. Census Bureau population estimates released today. New detailed estimates show the nation’s median age — the age where half of the population is younger and the other half older — rose from 35.3 years on April 1, 2000, to 37.9 years on July 1, 2016. “The baby-boom generation is largely responsible for this trend,” said Peter Borsella, a demographer in the Population Division. “Baby boomers began turning 65 in 2011 and will continue to do so for many years to come.” Residents age 65 and over grew from 35.0 million in 2000, to 49.2 million in 2016, accounting for 12.4 percent and 15.2 percent of the total population, respectively. These latest estimates present changes among groups by age, sex, race and Hispanic origin at the national, state and county levels between April 1, 2010, and July 1, 2016. The estimates also present changes over the same period among groups by age and sex for Puerto Rico and its municipios. The median age is increasing in most areas of the country. Every state experienced either an increase or had the same median age as a year earlier. At 44.6 years, the median age in Maine is the highest in the nation. New Hampshire’s median age of 43.0 years is the next highest, followed by Vermont at 42.7 years. Utah had the lowest median age (30.8 years), followed by Alaska (33.9 years) and the District of Columbia (33.9 years). Two-thirds (66.7 percent) of the nation’s counties experienced an increase in median age last year. In 2016, two counties had median ages over 60: Sumter, Fla. (67.1 years), and Catron, N.M. (60.5 years). Between 2000 and 2016, 95.2 percent of all counties experienced increases in median age, which can be seen in the . Sumter, Fla., home to a large retirement community, was the county with the highest median age, and it also showed the highest median age increase. Sumter’s median age jumped from 49.2 years in 2000 to 67.1 years in 2016, an increase of 17.9 years. Noble, Ohio, is a small county in the southeastern part of the state. It has experienced net outmigration and deaths nearly equal births. Noble’s 2016 median age of 51.5 years is 16 years higher than what it was in 2000 (35.5 years). Since 2000, 56 counties showed a median age increase of 10 years or more…”
“This year’s report reveals new insights about digital news consumption based on a YouGov survey of over 70,000 online news consumers in 36 countries including the US and UK. The report focuses on the issues of trust in the era of fake news, changing business models and the role of platforms. This year’s report comes amid intense soul-searching in the news industry about fake news, failing business models, and the power of platforms. And yet our research casts new and surprising light on some of the prevailing narratives around these issues.
- The internet and social media may have exacerbated low trust and ‘fake news’, but we find that in many countries the underlying drivers of mistrust are as much to do with deep-rooted political polarisation and perceived mainstream media bias.
- Echo chambers and filter bubbles are undoubtedly real for some, but we also find that – on average – users of social media, aggregators, and search engines experience more diversity than non-users.
With data covering more than 30 countries and five continents, this research is a reminder that the digital revolution is full of contradictions and exceptions. Countries started in different places, and are not moving at the same pace. These differences are captured in individual country pages that can be found towards the end of this report. They contain critical industry context written by experts – as well as key charts and data points…”
The petition of the day is:Town of East Hampton, New York v. Friends of the East Hampton Airport, Inc. 16-1070
Issues: (1) Whether equity jurisdiction allows a private plaintiff to obtain an injunction for non-compliance with the Airport Noise and Capacity Act of 1990 against an airport that does not receive federal funds or impose passenger facility charges; and (2) whether ANCA pre-empts noise and access restrictions by all airports, including the many thousands of small airports nationwide that do not receive federal funds or impose passenger facility charges.
Committee for a Responsible Federal Budget – Build a Responsible Federal Budget With Our New Debt Fixer Tool – “Now that President Trump has unveiled his full budget proposal and Congress is working on its own budget resolution, CRFB is launching a new tool that makes it easy to create your own budget and see if you can do better than lawmakers at putting the country on a sustainable fiscal path. The Debt Fixer lets you make the types of budget choices that lawmakers face and see how the decisions affect the national debt in the near and long term…Federal debt held by the public is currently 77 percent of Gross Domestic Product (GDP), nearly twice the 40 percent averaged over the last 50 years. The growing gap between federal spending and revenue will continue to push debt upward, with debt projected to reach 89 percent of GDP by 2027 and an all-time high of 107 percent by 2035. Changing course will require halting the rise of the debt as a share of the economy in the medium term and bringing the debt down to its historical levels in the longer term. Stabilizing debt at 70 percent of GDP by 2027 will require more than $4.3 trillion in savings over 10 years, while bringing debt in 2050 down to its historical average will require savings equal to 118 percent of GDP. Meeting these goals and improving our fiscal outlook will require reductions in spending, increases in revenue, or some combination of the two. The Debt Fixer lets you make changes to health care, reform taxes, improve Social Security, decide the future of the military, and much more. And you can see how policies like repealing and replacing the Affordable Care Act (“Obamacare”) or some of the options in the president’s budget will affect the debt…”
Read more of this story at Slashdot.
Read more of this story at Slashdot.
The justices are expected to take the bench tomorrow at 10 a.m. to issue opinions in argued cases. There are nine decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those nine cases, organized by the sitting in which they were argued.
December sitting (November 28 to December 7)
Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.
When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)
January sitting (January 9 to 18)
Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”
Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”
February sitting (February 21 to March 1)
Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.
Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer. In a decision issued on Monday, the court – in a decision by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.
By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.
March sitting (March 20 to 29)
Murr v. Wisconsin: This important property-rights case was filed by four siblings who received two adjoining lots on a river in Wisconsin from their parents, who had bought one lot and built a home on it and then purchased the second lot as an investment. The siblings wanted to sell the second lot and use the money to renovate the home on the first lot. But a local zoning ordinance, passed after their parents had purchased the lots, blocked them from doing so on the ground that the two lots had been “merged” into one lot because they were contiguous and had the same owners, even though they were both deeded and taxed separately. The siblings argued that this ordinance imposed an unconstitutional taking on them. But the state appeals court disagreed and ruled that the two parcels should be considered as one; if the parcels are viewed together, the siblings were not deprived of all of the value of their land – a requirement for a taking. The Supreme Court has said that, to determine whether a regulation is a taking, you look at the regulation’s effect on the “parcel as a whole.” The question that the justices will decide in this case, in essence, is what constitutes the parcel?
The siblings argue that the parcel is only the second lot, because courts should look at the lot lines that are on record. The two lots, they say, “were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed.” The state countered that courts should take into account the entire body of the state’s property laws and the owner’s reasonable expectations, which in this case would require the court to look at both parcels together. In its brief in the case, the federal government proposed case-by-case analysis – which in this case, it argued, favors treating the two parcels as one.
The justices agreed to review this case well over a year ago, before the death of Justice Antonin Scalia. But the court did not schedule it for oral argument until March 2017, by which point Justice Neil Gorsuch had been nominated but not yet confirmed. At the March 20 argument, the eight-member court appeared closely divided; as is so often the case, the outcome could hinge on Kennedy’s vote.
Lee v. United States: This is yet another installment in the series of “crimmigration” cases ” – that is, cases at the intersection of criminal law and immigration – at the court this term. It features a scenario familiar in immigration law: A noncitizen gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States.
The immigrant in this case, Jae Lee, came to the U.S. from South Korea in 1982 and went on to become a successful businessman. But in 2009, he was charged with possession of ecstasy with intent to distribute. After seeing the evidence against Lee, Lee’s attorney recommended a guilty plea, in the hope of receiving a shorter sentence. But, and despite assurances to the contrary from Lee’s attorney, Lee’s guilty plea actually led to his permanent and mandatory deportation. Lee tried to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney. The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had provided deficient advice when he told Lee that a guilty plea would not expose him to deportation. But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway.
Kennedy has not yet written for March, so at least one of these two remaining decisions will almost certainly be his.
April sitting (April 17 to 26)
Perry v. Merit Systems Protection Board:Under federal law, a federal employee who is fired or demoted can go to the Merit Systems Protection Board and, if necessary, appeal the board’s decision to the U.S. Court of Appeals for the Federal Circuit. However, the Federal Circuit’s review of that ruling is fairly limited. But if a federal employee contends that he was fired or demoted as a result of discrimination (known as a “mixed” case), he can seek a civil administrative proceeding before the Equal Employment Opportunity Commission, followed by a lawsuit in an appropriate district court and an appeal to a regional federal court of appeals. But the employee also has another option: He can go to the MSPB. The question before the court is whether the board’s decision in these “mixed” cases should be reviewed in a federal district court or a federal court of appeals.
California Public Employees’ Retirement System v. ANV Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”
The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand..
Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.
There are four opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, but it’s hard to know which one or how many of the four remaining decisions he will write.
The post And then there were nine – the remaining decisions appeared first on SCOTUSblog.
Millsap, Adam A and Gonzalez, Olivia, State and Local Tax Policy (January 12, 2016). Available at SSRN: https://ssrn.com/abstract=2990527
“This paper provides an overview of economically efficient tax policy for state and local policy makers and contains a short literature review of papers that analyze the economic effects of state and local taxes.”
“VisibleThread’s Web Clarity Index is a methodology for measuring the clarity of web content. In 2016, Visible Thread published an Index as a follow-up comparison to a 2011 review of 29 federal agency websites based on clarity of written content. We measured up to 100 pages on each website, across these four dimensions:
- Readability – How readable is the content?
- Passive Language – Active Language communicates clearly. What proportion of sentences is passive?
- Long Sentences – What proportion of all sentences are too long?
- Word Complexity Density – Complex words make web pages hard to understand.
The 2017 analysis is a follow-up and comparison of federal agency websites that were indexed in 2016. Changes in the White House administration, particularly between political parties, frequently bring change to agencies. As policy changes, content must reflect new priorities and changes to programs and the law. VisibleThread was interested if these changes would impact website clarity…”
“The EU Justice Scoreboard is an information tool aiming to assist the EU and Member States to achieve more effective justice by providing objective, reliable and comparable data on the quality, independence and efficiency of justice systems in all Member States. Such data is essential to support reforms in national justice systems required to render justice systems more effective for citizens and businesses. Well-functioning justice systems are an important structural condition on which Member States base their sustainable growth and social stability policies. Whatever the model of the national justice system or the legal tradition in which it is anchored, quality, independence and efficiency are some of the essential parameters of an ‘effective justice system’.
- The 2017 EU Justice Scoreboard – On 10 April 2017 the European Commission published the 2017 EU Justice Scoreboard which gives a comparative overview of the quality, independence and efficiency of justice systems in the European Union. It aims at assisting Member States to improve the effectiveness of their justice systems. Compared to previous editions, the 2017 Scoreboard looks into new aspects of the functioning of justice systems, for example, how easily consumers can access justice and which channels they use to submit complaints against companies. For the first time, it also shows the length of criminal court proceedings relating to money laundering offences.”
Ontanu, Elena Alina and Velicogna, Marco and Contini, Francesco, How Many Cases? Assessing the Comparability of EU Judicial Datasets (June 17, 2017). Presented at the Conference Ius Dicere in a Globalized World XXIV Bi-Annual Colloquium of the Italian Association of Comparative Law (AIDC), Naples, 15-17 June 2017. Available at SSRN: https://ssrn.com/abstract=2990558
“Efficiency is often considered a key component of any effective justice system, and a crucial drive for economic growth. A growing body of comparative studies explores how judicial reforms leading to a greater efficiency or effectiveness are positively correlated with economic growth (e.g. Global Competitiveness Report of the World Economic Forum, Doing Business Report of the World Bank, Judicial Reforms in Europe Report of the ENCJ, The Economics of Civil Justice of the OECD). At EU level, the European Commission has launched tools like the EU Justice Scoreboard to help the Member States to improve the effectiveness of their justice systems. This instrument, in particular, has been created to help EU Member Stares upholding more effective justice and, in particular, to measure and compare the efficiency of EU justice systems. The belief is that more effective and efficient justice systems will drive stronger economic growth, since “effective justice systems are a prerequisite for an investment and business friendly environment” (EU Justice Scoreboard 2016, p. 1). Efficiency and effectiveness are just two, out of several, basic features of justice systems. An efficient (or effective) justice system could potentially suffer from a lack of an independent judiciary and/or miss fairness of procedures and quality of judicial service. This paper, though, does not want to challenge the efficiency approach on these grounds. The researchers aim to check to what extent the data on efficiency used in academic and political discourses that are provided by the Scoreboard is sound enough to make empirically grounded statements in a valid comparative format among the Member States. In a simplified (but not simplistic) way, efficiency can be defined as the ratio between inputs (resources) and outputs (decisions) of the system. While formally aiming to measure and compare efficiency of Member States’ justice systems, the EU-Justice Scoreboard does not link inputs and outputs indicators to for this purpose. Furthermore, we argue that any attempt to make cross-country comparisons is affected by the comparability of the data sets used for the purpose. Another scholar presenting his proposal at this conference, Marco Fabri, explores the question of the comparability of human resources data (judges) that in labour intensive organisation like courts can be considered as the key production factor (“Too few judges” paper). This paper explores a different area, complementing Fabri’s work. The researchers choose to explore the case-flow indicators presented by the Scoreboard which bases its analysis on the number of incoming, pending and resolved cases. The number of cases a court system manages to handle in a year is often considered emblematic for its efficiency. In Europe, the Commission for the Efficiency of Justice of the Council of Europe is the primary collector of such data, which is published in the “CEPEJ Evaluation of European Judicial Systems Report”. The same data is also used by the EU Justice Scoreboard and by many other academic and policy documents. The analysis will deal with the comparability of these data and show that such comparability cannot be taken for granted. It will assess if the definition of “case”, of the different “case types” and of their status (incoming, pending and resolved) is consistent across the different Member States. It will check if national peculiarities make the comparison between apparently identical groups of cases unreliable or inconsistent. Previous analysis suggests that the comparability of such data is critical in many areas, such as the consistency of the answers across time (at state level), and between countries within the same period. The paper will show how the data provided by the Member States to fill apparently simple categories of cases like small claim, and litigious or non-litigious cases vary, making a comparison at least problematic. This finding, together with similar problems associated with measuring the number of judges, suggest caution should be exercised in the use of such indicators for comparative purpose among justice systems in the academic and political debate.”
Opinion analysis: Courtroom closure error requires prejudice on collateral ineffective-assistance review
In a narrow and analytically useful opinion this morning, the Supreme Court ruled 7-2 that a courtroom closure error that is not raised until collateral attack via an ineffective-assistance claim does not require automatic reversal despite being labelled “structural” error. Instead, the defendant must show “prejudice” under a reading of Strickland v. Washington that five justices assume is correct. Justice Clarence Thomas filed a short concurring opinion, Justice Samuel Alito wrote an opinion concurring only in the judgment, and Justice Stephen Breyer filed a dissent joined by Justice Elena Kagan. Finally, Justice Neil Gorsuch joined Justice Anthony Kennedy’s majority opinion, Thomas’ concurring opinion, and Alito’s opinion that concurred only in the judgment. Perhaps unsurprisingly for a new justice, Gorsuch seems to want to be friends with as many of his colleagues as possible
Weaver’s courtroom was “closed” during jury selection, an error to which he did not object
As previewed, the courtroom where Weaver’s Massachusetts murder trial took place was too small to accommodate the more than 60 people who were called as potential jurors. So while the jury was being selected over two days, some potential jurors had to wait in the hallway. When Weaver’s mother and other supporters tried to enter (Weaver was 16 years old at the time), a court officer excluded them and anyone else who was not a potential juror. Weaver’s mother told Weaver’s lawyer about this problem, but the lawyer did not object. (The court notes that this all occurred before the U.S. Supreme Court ruled in Presley v. Georgia that the Sixth Amendment’s public trial right extends to jury selection, and that it was not uncommon at that time for Massachusetts to close courtrooms during jury selections in murder trials.) Once the jury was selected, Weaver’s further court proceedings were fully open.
Not only did Weaver not object at trial, but he did not challenge the courtroom closure in his direct appeal. However, in a collateral motion for a new trial filed five years after the conviction, Weaver claimed ineffective assistance based on his lawyer’s failure to object to the courtroom closing. The Massachusetts courts denied relief, ruling that although the closure was “structural error” and the lawyer’s failure to object constituted ineffective assistance of counsel, Weaver had not offered any evidence to show that he had been prejudiced by the temporarily closed courtroom. Whether a “structural error” requires a showing of prejudice when raised via an ineffective assistance claim is a question that had divided lower courts, so the Supreme Court agreed to review Weaver’s case.
Today’s opinion is doctrinally narrow but useful
As previously noted, oral argument in this case showed that Alito and Kagan were, as they often are in criminal cases, at opposite ends of the spectrum. It thus fell to Kennedy to find a majority path out of the thicket that prior “structural error” cases have created. As Breyer’s dissent today observed, it would seem impossible for a defendant to prove prejudice from a structural error when a reason for describing some errors as structural has been, as the majority opinion says, that their effects are “simply too hard to measure.” But Kennedy’s opinion offered grounds sufficient to attract a majority, while limiting the ruling “specifically and only” to the narrow context of this case. Overall, the opinion provides a usefully nuanced analysis of prior structural-error cases.
Structural error doctrine explained
Structural constitutional errors are errors that affect the entire framework of a criminal trial, as opposed to individual errors in the trial process along the way. Carefully examining a number of structural-error precedents, the court’s opinion explained that not all structural errors are alike. Instead, there are “at least three broad rationales” for why some constitutional errors are called structural. As a consequence, the precise analysis of and remedies for structural error “var[y] in a significant way from error to error.” This analysis of types of, and rationales for, structural errors is valuable and new.
First, the court explained, there are errors that operate not to protect against “erroneous conviction” of a criminal defendant, but in favor of “some other interest.” For these errors, “harm is irrelevant” — violation of the right may even aid a criminal defendant, such as appointing a lawyer in violation of the Sixth Amendment right of self-representation. Second, there are structural errors that can result in “automatic reversal” because “the effects of the error are simply too hard to measure.” Finally, some constitutional errors, such as denying an attorney or refusing to give a reasonable-doubt instruction, are adjudged to “always result in fundamental unfairness” and thus lead to reversal without any showing of harm.
Importantly, the court noted that “[these categories are not rigid,” and that “more than one of these rationales” may apply to a particular error. Most significantly, “[a]n error can count as structural even if [it] does not lead to fundamental unfairness in every case.
The “theme” of the court’s current term? Four narrowing assumptions
With regard to this particular case, the court explained that a violation of the public-trial right, while structural, does not always lead to fundamental unfairness. “[H]ow best to manage” the many possible variations in circumstances that may lead to closing a criminal courtroom presents difficult and fact-specific issues. The court has previously ruled that a courtroom might be closed for a preliminary segment of a trial and for reasons of some necessity, without necessitating reversal. Because a public-trial error is therefore not always fundamentally unfair, the court today placed the burden on the defendant, in a collateral proceeding when no objection was made at trial and the issue was not raised on direct appeal, to demonstrate that reversal is required.
The court’s opinion noted four assumed or undecided aspects of this case. Indeed, I think a general theme of October Term 2016 – and possibly the Roberts court overall without Justice Antonin Scalia – is that cases have been decided on narrow grounds whenever possible.
First, the court assumed that the closure in this case was a constitutional, structural, violation. Second, the fact that this assumed public-trial error was not objected to or preserved on direct appeal presents special considerations of “finality.” The court left open whether the analysis would be the same if the error had been objected to and preserved. Third, the court assumed that the lawyer’s failure to object here was an unreasonable professional error.
Fourth and finally, the court assumed without deciding that for a Strickland ineffective assistance claim, prejudice might be shown either by applying the normal test – “reasonable probability that the outcome would have been different” – or by demonstrating fundamental unfairness. The opinion noted that quotations can be found in the Strickland opinion to support either view, and the majority did not settle the difference today because it concluded that Weaver loses either way.
Applying Strickland to this public-trial violation
Kennedy’s opinion pointed out that the constitutional right to effective counsel does not mean a right to a “mistake-free” performance. Instead, even when a lawyers makes errors, a defendant must demonstrate why his lawyer’s errors made an important difference in his case. Moreover, when a courtroom closing is not objected to, the trial court has no opportunity to cure it. So the court concluded that for this particular structural error, raised in this particular procedural context, the burden to justify reversal of his conviction properly rests on Weaver.
Weaver, however, made no effort below to demonstrate that the result of his trial would have been different had the courtroom been open to his supporters during jury selection, so the traditional test for prejudice under Strickland was not met. In addition, the court concluded that based on the particular facts of Weaver’s jury selection, no “fundamental unfairness” had been shown. Thus the Massachusetts courts were correct in denying relief to Weaver.
Today’s separate opinions
Alito concurred only in the judgement, stating that Strickland supports only one test for prejudice – whether there is a reasonable probability that the outcome would have been different — and that “fundamental unfairness” cannot be argued separately if the traditional Strickland test is not met. This is a narrower reading of Strickland, and the majority expressly left it open. Thomas’ short concurrence noted two of the majority’s “assumptions” and expressed some doubt about them, stating that he “do[es] not read the opinion … to preclude” Alito’s approach. Finally, as noted above, Gorsuch silently joined all three opinions that made up the seven-justice majority. How exactly one can join both Kennedy’s and Alito’s opinions seems a bit mysterious, if collegial.
A brief dissent
Breyer, joined by Kagan, filed a four-page dissent, not focused on the facts of Weaver’s case, but rather objecting to the doctrinal division of structural errors into categories. Echoing Kagan’s questions at oral argument, Breyer criticized the logic of saying that structural errors are those whose effect is “too hard to measure,” and yet demanding that a defendant demonstrate the effect of a particular structural error on the fairness of his trial. Breyer would not “give lower courts the unenviably complex job of deciphering which structural errors really undermine fundamental fairness and which do not,” saying that “the game is just not worth the candle.” But he did not further explain why.
Kennedy’s majority opinion ended with a broad statement of the “unending duty of the judiciary to … find the proper balance” between “fair and just trials … and finality.” By contrast, the four assumptions in his opinion support what I think is a careful analysis of doctrine, narrowly applied to the public-trial right in the context of this case. The court’s opinion will prove useful in the future for analyzing diverse claims of structural error. Happily, it avoids sweeping broadly over questions that might be better worked out by lower courts over time. In addition, the opinion is not dismissive of either the state’s claims or Weaver’s constitutional objections. Instead the majority gives them fair consideration in a detailed way. Some observers will always object to Kennedy’s style and his balancing approach. But in the often overwrought adversarialism of constitutional criminal procedure, the Weaver opinion is refreshingly free of vitriol and bombast.
The post Opinion analysis: Courtroom closure error requires prejudice on collateral ineffective-assistance review appeared first on SCOTUSblog.
Read more of this story at Slashdot.
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The 142 page discussion draft (bill), titled the Better Care Reconciliation Act of 2017 was released at 11am on April 22, 2017 to the entire Senate who with the exception of 13 Senators, had not been engaged in its creation nor had prior access to its content. The goal of the bill is to replace both the proposed House bill, the American Health Care Act of 2017 and the 2010 Affordable Care Act. The new Senate bill can be passed by majority vote, but along with Democratic opposition, Sens. Rand Paul (Ky.), Ron Johnson (Wis.), Mike Lee (Utah) and Ted Cruz (Texas) jointly announced their unwillingness to support it at this time: “Currently, for a variety of reasons, we are not ready to vote for this bill, but we are open to negotiation and obtaining more information before it is brought to the floor. There are provisions in this draft that represent an improvement to our current healthcare system but it does not appear this draft as written will accomplish the most important promise that we made to Americans: to repeal Obamacare and lower their healthcare costs.”
This morning the justices upheld the convictions of seven men who had been convicted of the brutal beating, sodomy, and murder of Catherine Fuller, a District of Columbia mother of six, in 1984. Writing for the court in Turner v. United States, Justice Stephen Breyer concluded that even if the prosecutors had given the defense attorneys evidence that would have been helpful to the men, the jurors likely would have reached the same result.
The Supreme Court rarely weighs in on cases that are “legally simple but factually complex.” This is in no small part because the relatively few cases that the justices review often make their way to the court after the lower courts have reached different decisions under the same legal principle, and the justices want to make sure that their opinions establish clear legal principles that can govern the thousands of cases argued in the lower courts each year. But “legally simple but factually complex” is exactly how Breyer described the issue before the court today.
Because the government did not dispute that the evidence that had been withheld was favorable to the defendants, the only question before the court, Breyer emphasized, was whether the evidence was “material” – that is, that “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” But, Breyer concluded, the men cannot make this showing. The men’s primary argument, he observed, is that the prosecutors should have given them information about the identity of James McMillan, another man who had been spotted in the alley and was convicted of a similar crime seven years later, as well as a statement by Willie Luchie, who walked through the alley around the time of the murder. If they had received that information, the men contended, they could have “challenged the Government’s basic theory that Fuller was killed in a group attack.”
But when the withheld evidence is considered along with the rest of the evidence before the jury, Breyer explained, “it is too little, too weak, or too distant from” the other evidence to have made a difference. The fact that McMillan had been seen in the alley, Breyer reasoned, would only matter if there had not been a group attack. The same is true, Breyer suggested, for “Luchie’s ambiguous statement that he heard groans but saw no one” in the garage where Fuller’s body was found. This is particularly true, Breyer continued, when (among other things) two other men had confessed to participating in the crime and had testified against the defendants in exchange for a shorter sentence, and other witnesses had confirmed parts of that testimony.
Justice Elena Kagan dissented from the decision, in an opinion joined by Justice Ruth Bader Ginsburg. Kagan acknowledged that the court’s “conclusion is not indefensible: The Government put on quite a few witnesses who said that the defendants committed the crime.” But Kagan would have reached a different result, because in her view “the whole tenor of the trial would have changed” if the prosecutors had provided the defense lawyers with the evidence that had been withheld. She explained that the jury could have been presented with two very different cases. In the one that the jury actually heard, she suggested, the defendants had “formed something of a circular firing squad” in which each defendant tried to save himself at the expense of his co-defendants. But if they had received the evidence that the prosecutors had suppressed, she wrote, the defendants could have pulled together to show that someone else – such as McMillan – had actually committed the crime. If they had done that, she concluded, “one or more jurors could well have concluded that the Government had not proved its case beyond a reasonable doubt.”
Given the heavily fact-intensive nature of the case, it’s hard to know exactly why the justices agreed to review it in the first place. The lack of a compelling legal question was apparent to them from the outset: When they announced that they would hear the case on the merits, the justices asked the parties to brief only one, straightforward question: whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over evidence that could exonerate the defendant. Although we may never know for sure, one possibility is that the justices granted review to overturn the convictions because, at least at that stage of the proceedings, the men’s cases seemed so compelling. But on further review, they may have seemed significantly less so – particularly after the oral argument, at which deputy solicitor general Michael Dreeben’s extraordinary command of the facts allowed him to weave a forceful presentation on behalf of the government. The justices often say that oral argument rarely makes a difference in the outcome of a case, but this case may have been the exception.
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Opinion analysis: To strip citizenship for false statements, government must show that lies would have mattered
In 2000, Divna Maslenjak and her family came to the United States as refugees from the former Yugoslavia, fleeing the civil war in that country. Maslenjak became a U.S. citizen in 2007, but several years later she was stripped of her citizenship and deported – as was her husband – because immigration officials discovered that she had made false statements during her naturalization process. Maslenjak conceded that she had lied, but she argued that she should be able to keep her citizenship because her lies were not material – that is, that they would not have been important to the officials deciding whether to grant her citizenship application. But the federal government countered, and the lower courts agreed, that Maslenjak could lose her citizenship even if her lies did not play any role in the officials’ decision. Today the Supreme Court largely agreed with Maslenjak, holding that her lies can be held against her only if they would have mattered to immigration officials. But given the gravity of her lies, Maslenjak’s victory may not be enough to secure her return to the United States.
During meetings with U.S immigration officials in Serbia in 1998, Maslenjak indicated that she and her family would be in danger if they returned to the village in Bosnia where they had lived before the civil war. She also told them that her husband had not returned to a Serb-controlled part of Bosnia with the rest of the family because he feared that he would be forced to serve in the Bosnian Serb army. But her husband had in fact served in the army, in a brigade that had participated in an infamous 1995 massacre of 8,000 Bosnian Muslims. When the federal government later learned of her husband’s role during the civil war, it initiated proceedings to deport him.
In an effort to stave off her husband’s deportation, Maslenjak admitted that she had lied about her husband’s whereabouts during the civil war. And because, in the government’s view, Maslenjak knew when she applied for citizenship that she had lied to immigration officials while seeking refugee status, she was charged with violating a federal law that makes it a crime to knowingly procure U.S. citizenship “contrary to any law.” The lower courts rejected Maslenjak’s argument that she could not be convicted unless her lies were material, and Maslenjak was deported to Serbia last year.
In January, the Supreme Court agreed to hear Maslenjak’s plea, and today it sent the case back to the lower courts, where she will get another chance. In an opinion by Justice Elena Kagan, the court reasoned that the “most natural understanding” of the federal law under which Maslenjak was convicted “is that the illegal act must have somehow contributed to the obtaining of citizenship.”
The government’s argument to the contrary, the court observed, “falters on the way language naturally works.” Imagine, the court suggested, a scenario in which “an applicant for citizenship fills out the necessary paperwork in a government office with a knife tucked away in her handbag (but never mentioned or used).” Although the applicant has violated the law barring weapons in federal buildings, and “has surely done so in the course of procuring citizenship,” the court concluded, she has not obtained citizenship “contrary to law,” because the relationship between the violation and the acquisition of citizenship “are in that example merely coincidental: The one has no causal relation to the other.”
The court also observed that the rule proposed by the government would open “the door to a world of disquieting consequences,” in which a lie “would always provide a basis for rescinding citizenship,” even if the lie merely resulted from “embarrassment, fear, or a desire for privacy.” Indeed, the court suggested, the government’s rule would give “prosecutors nearly limitless leverage” – something about which several justices, in a wide variety of contexts, have expressed concern recently.
The court then turned to how its holding should apply in practice. “To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” In many cases, the court emphasized, this will be an easy task. For example, the court noted, “when the defendant misrepresents facts that the law deems incompatible with citizenship” – such as how much time the citizenship applicant has spent in the United States – “her lie must have played a role in her naturalization.”
But even if the facts concealed by an applicant’s lies would not, standing alone, lead immigration officials to deny citizenship, the court continued, “they could have led to the discovery of other facts which would do so.” And in such cases, the court explained, the government must show both that having accurate information would have led immigration officials to investigate further and that their investigation likely would have led to information that would have disqualified the applicant from citizenship. And even then, the court stressed, the applicant can still defend against denaturalization by showing that she was qualified for citizenship.
The jury that convicted Maslenjak, the court concluded, received the wrong instructions. So although the jury might have convicted her if it found either that her lies would have been a reason for immigration officials to deny her citizenship application or that knowing about those lies would have prompted immigration officials to investigate further and discover a reason to reject her application, it wasn’t asked to consider those possibilities. The justices therefore sent the case back to the lower courts for them to take another look.
Chief Justice John Roberts joined Kagan’s opinion for the court in full, as did Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Neil Gorsuch filed a separate opinion concurring in part and concurring in the judgment – his first while on the court – which was joined by Justice Clarence Thomas. Gorsuch agreed with his colleagues that “the plain text and structure of the statute before us require the Government to prove causation as an element of conviction: The defendant’s illegal conduct must, in some manner, cause her naturalization.” But observing that the Supreme Court “often speaks most wisely when it speaks last,” Gorsuch explained that he would not have gone any further than that, and in particular that he would not have provided “guidance” about how the causation requirement should work in practice because the parties had not fully briefed it and the lower courts had not yet weighed in.
Justice Samuel Alito also filed a separate opinion concurring in the judgment. In his view, the federal law under which Maslenjak was convicted does require her lie to have been material, but it “does not require proof that a false statement actually had some effect on the naturalization decision.”