Supreme Court Panel
Eric Miller, Professor Eric Schnapper, Dean Kathryn Watts, Justice Goodwin Liu, Tony Mauro
October 15, 2012
Dean Kellye Testy:
Good evening I’m Kellye Testy the Dean of the University Of Washington School Of Law. It’s a great pleasure to welcome you to our program tonight looking at both a review and preview of the Supreme Court. I am always just so pleased to have a gathering like this that brings in members of our community, so many people from law firms here in town, our students around the university, our alumni. It’s great to be able to have this as a place where we can gather ad think about the pressing issues of the day and really come together around wanting to be engaged and the kinds of debates a civil society should be engaged. So I do welcome everyone and I am very pleased that you could join us this evening. I imagine given the weather we’ll have a few people straggling in a little bit. So if you would motion where there are some seats as that happens.
I’m going to be very brief tonight because the good thing is one of our students is going to do the heavy lifting here and introduce our panelists. And that’s quite fitting because it was actually his idea. Our student is Shon Hopwood. It was his idea to have this program. He obviously has had some good help and I’m sure he’ll talk a little bit about that. Shon is one of our Gates scholars and it’s just an honor and a pleasure to have him as one of our students. And that this was a student idea that then got moved forward and assembled this amazing panel tonight I think is emblematic of this law school. Many of us on the faculty have what we like to say is a joke but I some days wonder whether it’s really a joke that we’re happy we’re hired onto the faculty because we couldn’t get admitted as students. This is an amazing group of students in this law school and I admire so much both their intellectual vibrancy and also the collegiality that they have with the faculty, with the administration and with one another. So one of our leaders Shon Hopwood, it’s my pleasure to thank you Shon and also to turn the podium over to you.
Thank you Dean Testy. One of the great things about coming to school here is that the faculty is very receptive to ideas and receptive enough that they’ll take it and run with it. I came up with this idea last winter and approached Professor Watts with the idea and she did grab the ball and run with it and helped assemble this great panel with the help of Dean Testy so I’d like to thank them for making tonight happen.
Now to introduce our panelists I’ll start with Justice Goodwin Lou is an associate justice of the California Supreme Court. He was confirmed to office on August 31, 2011 following his appointment by Governor Brown. Before joining California’s highest court, Justice Lou was a professor of law at Bulk Hall at the University Of California Berkley School Of Law. His primary areas of expertise are constitutional law, educational law and policy and the US Supreme Court.
Seated to his right down at the end is reporter Tony Mauro as a Supreme Court correspondent for the National Law Journal. He has covered the Supreme Court for thirty-two years had a number of media outlets including the USA Today and Supreme Court Insider. He is the author of Illustrated Great Decisions of the Supreme Court and he is the current chair of the steering committee of the Reporters Committee for Freedom of the Press where in 2010 he was inducted into the Freedom of Information Hall of Fame.
Right to my right is Eric Miller is a partner at the Seattle office of Perkins and Coie where he focuses on appellate litigation. Before joining Perkins he served for five years as an assistant to the US Solicitor General where he argued fourteen cases before the US Supreme Court. He previously served as an attorney at the FCC and at the Justice Department. And he clerked for Judge Silverman of the DC circuit and for Justice Clarence Thomas of the US Supreme Court.
Over on my right is Professor Eric Schnapper who is a well-known professor of law here at the University of Washington. He teaches civil rights, civil procedure and employment discrimination. But what he’s most known for is handling over eighty cases in front of the US Supreme Court. And the majority of those I would say have been handled pro bono. Professor Schnapper has argued seventeen cases before the Supreme Court most recently in the case of Klepner v. Solis which he argued just two weeks ago.
Professor and Dean Kathryn Watts is also a professor of law here at the University of Washington. She teaches administrative law, constitutional law, and Supreme Court decision making. In addition to her teaching duties she is also associate dean for research and faculty development. Her scholarship has been published in a variety of top legal journals and she is a two time recipient of the Phillip A. Troutman professor of the year award which is given by the student body. Professor Watts also clerked for Judge Randolf of the DC circuit and for Justice John Paul Stevens of the US Supreme Court.
These are you panelists for tonight and I hope you enjoy them and give them a round of applause for coming.
Thank you so much Shon for the introduction. How we thought we’d proceed tonight is each of our panelists has agreed to speak for fifteen minutes and they’ve each selected a few cases or case from the last term and some from this coming term to highlight for you. And then after they speak we’ll open it up to some questions from the audience and have some dialogue back and forth between all of you and our panelists. So we all agreed today that Eric Miller would begin. And part of the reason I thought we’d begin with Eric Miller is one of the cases he has agreed to highlight is the Affordable Care Act case which is I know is at the forefront of many people’s minds. So with that, Eric.
Thank you very much Dean Watts, Dean Testy and Shon. I’m delighted to be here today and it’s a particularly great honor to be part of a panel that’s such a distinguished full of panelists so I’m very grateful for the invitation.
It seems to me that a panel talking about a review of the October 2011 term would be sort of a strange panel if it didn’t include at least some discussion of the health care case. So I thought that I would start out saying at least a little bit about it.
Obviously the part of the case that got the most attention was the issue of the constitutionality of what the government refers to as the minimum coverage provision and what the challengers of the statue referred to as the individual mandate. From the fact that you all are here it seems fair to infer that you have a certain level of interest in the Supreme Court and are probably therefore somewhat familiar with the debate about that provision. And from the perspective of somebody whose concern is future litigation at the court, I think that part of the decision it’s obviously very consequential in terms of health care policy also very consequential in terms of what it says about our understanding of enumerated powers of congress. But in terms of future litigation I’m not so sure that there will be much of a consequence as was pointed out during the argument on that part of the provision Congress has never before passed a law requiring people to buy goods and services. And there doesn’t seem to be much prospect that it’s going to start passing a lot of similar laws in the future so I think in years to come we will probably not look back at that part of the decision as being a fountain head of a whole bunch of mandate jurisprudence.
But what I think may be consequential for future litigation is part of the decision that a little bit less attention and that is the spending clause analysis of the Medicaid expansion. Medicaid is a cooperative federal and state program it’s generally administered by the states according to standards set by the federal government and the federal government gives grants of money to the states to administer it. In the Affordable Care Act, congress greatly expanded the set of people who are eligible for Medicaid and at the same time it gave an extra chunk of money to states to pay for the extra people who are going to be added to the Medicaid roles. But that extra money came with the condition that if the states didn’t expand Medicaid eligibility as provided in the statue, they would not only lose the extra money but also all of the money that they had before. So a group of states, I think it was 28 states sued saying that that provision of the statute violated the spending clause, that it was impermissibly coercive because Congress was effectively using the threat of loss of funding to force the states into doing something that congress couldn’t compel them to do directly .
And the court in South Dakota against Dole back in the 1980’s suggested the availability of such a challenge but it had never before struck down a federal statute on that ground. But the court did strike down that part of the statue. Justice Roberts writing for three justices but announcing the decision of the court said that the amount of money involved was so great that the states didn’t really have a choice. He said that it was like a gun to the head of the states.
I think that there are two things that are particularly interesting about that part of the decision. And one is it was actually 7 to 2. Justice Kagan and Justice Briar both joined the Chief Justice’s analysis which was particularly surprising based on how the argument went. Justice Kagan especially expressed great skepticism of Paul Clement who was arguing for the states that at one point when he was articulating his theory of how an offer of money could be coercive, she answered one of his answers by saying wow, wow. Which doesn’t normally lead to a favorable vote, but in this case it did.
The other thing that’s interesting is what the court did on the remedy side after finding a constitutional violation. The joint opinion of justices Kennedy, Scalia, Thomas and Alito would have struck down the whole Medicaid expansion provision but what the court ended up doing and then the Chief Justice providing the decisive vote was simply slicing out the link between the new money and the old money. So now under the court’s decision if a state doesn’t follow the new Medicaid expansion rules it loses the new money but it gets to keep the old money and continue to operate the old Medicaid. I think it will be interesting down the road to see first what the states end up doing when the statute starts being implemented and they have to choose and some of the states that were advancing arguments about federalism principles in this case may choose to stick to their principles or it’s possible that some of them will decide to take the money but we will have to see what they do. The other thing that will be interesting is there are a lot of federal statutes that condition grants of money to states on some sort of regulatory action by the state and the court was not very clear in explaining exactly what features of the statute make it impermissibly coercive. I think we may well see challenges to some other laws but the Medicaid is by far the biggest grant to states. It involves a lot more money and is a bigger chunk of state budgets than just about any other state program. So that may end up being part of the distinction but we will have to see how the court draws those lines in future cases.
The other case that I thought would be interesting to talk about is US against Jones which involved the fourth amendment and its application of GPS tracking of cars. Jones was suspected in being involved in drug trafficking. The government got a warrant to put a GPS device, a very small, it’s about the size of a matchbox, device on his car. It would keep track of where it was and every ten seconds radio back a signal so that the agents could follow everywhere that he went. They got a warrant. The warrant said that the device had to be attached within ten days in the District of Columbia. They attached it on day eleven in Maryland. So it came before the court as a warrantless activity. And the question was, is it a search that required a warrant?
Now I talked to a lot of people about this case before it was argued both in and out of the government. Just about everybody I talked to had two reactions at the same time. One of the reactions was if you look at the courts precedence it seems like a pretty easy win for the government because going back to the Cats decision in 1968 the test for what is a search has been whether something infringes a reasonable expectation to privacy. And there are lots of cases in which the court has said that something that you knowingly expose to public view like your location when you are driving out on a public road is not something in which you have any expectation of privacy. And there were even some cases from the 1980’s where the police had put little beepers on peoples’ cars much more primitive than a GPS device. It just sent out a radio signal and if you were within a couple of miles you could use some other device that would point in the direction of the car and they used it to help tail people. And the court said that was perfectly fine because all you are doing is following somebody out in public and there is no expectation of privacy in where you are in the public. The second reaction that most people seem to have is gosh that seems really kind of creepy, the government can do this, see everywhere that you go. And when the case was argued it became clear that the action too would prevail at nine-nothing as it did and perhaps the clearest signal of that came when the Chief Justice asked Michael Dreben who was representing the government, “Under your theory do you think that the government could put devices on all of our cars?” And Michael said, “You mean the justices of this court?” Chief Justice said, “Yes.” Now setting aside the question of whether the scope of the fourth amendment ought to be determined by reference to what it allows the government to do to nine justices as individuals that seemed to be a widely shared reaction. And while the court was unanimous in the result it was very sharply divided in the rational. Justice Scalia wrote the majority opinion which focused very narrowly on the fact that the police had attached a physical device to Jones’s car and he said that was a big tresspassory invasion of Jones’s property interest in the car because they stuck something on there and that’s enough to make it a search in this context. Justice Alito who over the last few years has generally been one of the justices more likely to side with law enforcement wrote a concurrence in the judgment joined by justices Ginsberg and Brier and Kagan. He criticized Scalia’s theory for really being too narrow in his view pointing out that with advances in technology there are a lot of cases in which it will be possible for police to do essentially the same ting without attaching a physical device and also pointing out that since the 1960’s the court has really not relied on common law property interests in defining the scope of the fourth amendment and has rarely used the reasonable expectation of privacy analysis. And Justice Alito said that while using this for just a short time might be okay the amount of time involved here I think it went on for almost a month, was too long. Now unfortunately he did not tell us where between a short time and twenty-eight days becomes too long. So law enforcement trying to use these devices in the future will have to guess at that.
But one of the interesting points in his opinion was he made the argument that in the past a lot of the privacy that people have enjoyed has been a product not so much of legal protections as the fact that there was a lot of information about you that was technically public but as a practical matter nobody could go around and assemble all of it. And of course changes in technology have changed that and Justice Alito had thought that the reasonable expectation of privacy analysis as applied here had to be changed to take account of that so it will be interesting to see both in the GPS context and it’s not hard to think of a lot of other analogous contexts where this sort of issue will come up and we’ll get to see how the law develops on that in coming years.
The one case from this term that I thought I’d briefly mention was one that was argued a couple of weeks ago and that’s Kiobel and that involves the alien tort statute which is a statute that was passed way back by the first congress after there had been a bunch of incidents in which foreign ambassadors to the United States were assaulted and had threatened to cause international friction. And so congress thought that there should be some way for providing redress in those sorts of cases. So the statute says that there is federal jurisdiction over an action for a tort by an alien for a tort in violation of the law of nations or a treaty of the United States. So they passed the statute and it was promptly forgotten for almost two hundred years until a decision of the second circuit in around 1980 revived it. And it has since become a font of a lot of litigation directed at foreign companies who are alleged to be complicit in human rights violations in foreign countries. And though the court in this case was reviewing a decision of the second circuit that said a corporation cannot be a defendant under the alien tort statute which if true would eliminate a lot of this litigation. And then the court heard argument on that in the Spring and instead of issuing a decision, issued an order setting the case to be reargued this Fall and asking the parties to consider the question of whether the statute applies extraterritorially so that is does it apply at all to conduct that takes place outside the United States. If it doesn’t that would also eliminate the application of the statute in a lot of this human rights litigation. So as I say that was argued earlier at the October sitting just a couple of weeks ago. So we will have to see what they will do with that.
Thank you. Now we’ll turn to Justice Liu.
Justice Goodwin Liu:
Thank you so much Kathryn for moderating the panel and to all who organized it thank you so much. It’s so wonderful to be here on this very illustrious panel. I have some history with all of these people here. Eric and I were actually co-clerks in the same year at the US Supreme Court so it’s nice to see him again and see how well he’s done as an advocate and now as a lawyer in private practice. Eric Schnapper has to go down as one of the exemplary scholar lawyers that we have in the academy. It’s so rare to find someone with such a unique mix of scholarly accomplishment as well as real chops as an advocate. And Tony Mauro is a household name I think to many of us. Like many people I’ve enjoyed over the years reading his reporting. He’s one of the most perceptive observers of the US Supreme Court that we have in the press corps. And so it’s really wonderful to be among all of these wonderful people here. Given all of these illustrious qualifications I’ll just hope to not make a mistake in describing the cases I volunteered to describe.
I’d to mention a couple of cases that are in the criminal law area. At the California Supreme Court we encounter the decisions of the US Supreme Court most frequently in the criminal law area. That’s more than half our docket and indeed the two cases that I’ll briefly describe for you today are cases that have landed squarely in our docket with respect to the issues that they raise for the cases we see.
The first is a case called Miller versus Alabama which is actually two cases but they both concern the question of whether mandatory life without parole in other word the maximum prison sentence that you give someone, think about that for a second, mandatory life without parole may be given to a person who commits a homicide offense as a juvenile, okay? So in this case, this pair of cases, both of the defendants were fourteen years old. One of the fourteen year olds went on a botched robbery with two confederates. He was kind of the lookout person. The two friends went inside to rob a store and there is some dispute actually about what went on but there’s really not a lot of dispute that he wasn’t the trigger person. Someone else pulled the trigger, killed the cashier and he was charged in essence on a kind of an accomplice or aiding and abetting theory. But under most of the criminal laws that we have that’s enough to get you whatever the principle did in that case, you’re also liable for what the principle did. So that fourteen year old was sentenced by the state of Alabama to mandatory life without parole.
In the second case a fourteen year old went with a friend to essentially a drug dealer’s house. They got high. The drug dealer fell asleep. And then the two boys, I guess, went to rob that drug dealer but it went bad because he woke up in the course of the robbery. And then there was a physical altercation resulting in the end with this fourteen year old smashing the victim’s head with a baseball bat.
So are the cases that we have. And the question is whether they can suffer essentially the maximum imprisonment term that’s available under the law. And the US Supreme Court in a five to four decision said no that they can’t. The eighth amendment prohibits mandatory life without parole for juveniles who commit offenses. How did they get there? Well this is an interesting area because as the court explained it’s sort of the confluence of two areas of doctrine that have had moving parts in the last couple decades.
The first concerns a set of cases that have assessed in terms of proportionality whether certain punishments are appropriate for either certain crimes or certain classes of people. So just to give you a sense of where this case comes in that train: a few years ago in a case called Roper versus Simmons the Supreme Court held that the death penalty is not an appropriate punishment for crimes that people commit as juveniles no matter how heinous, no matter how brutal. You can’t sentence someone to death for crimes committed under the age of eighteen.
Subsequently in a case called Graham versus Florida in 2010 the Supreme Court held that life without parole, any sort of sentence of life without parole, is categorically prohibited for non-homicide offenses committed by juveniles. So you cannot sentence a juvenile who committed a non-homicide offense: a burglary, robbery, an assault, you can’t sentence a juvenile who commits that kind of crime to life without parole that’s a categorical ban. This question concerns whether a mandatory life without parole sentence be appropriate for a juvenile homicide offender. And so the Supreme Court said, well all of the things that informed our view about why life without parole is inappropriate for non-homicide juvenile offenders also inform our view here namely, that juveniles are different than adults and we treat them as such under the law. They are number one, more impulsive, have the lesser developed sense of responsibility. Number two, they are more prone to influence especially by their peers and less able to resist external pressures. And number three their sense of morality is still in formation. We cannot say, the court says at one point that they are irretrievably depraved based on the actions that they have done as juveniles. So the court says these are the same kinds of considerations that inform our view here. But the court stopped short interestingly in this case from saying that life without parole is categorically prohibited for these juvenile homicide offenders. In other words what the court holds in essence is that you have to assess each case, case by case according to the facts of the case, the facts of the juvenile the facts of the crime and life without parole maybe an appropriate sentence in some cases. But the specific target of the court’s holding are those laws that mandate without any choice given to the sentencing judge that mandate life without parole sentences. But interestingly in the opinion by Justice Kagan, she kind of tips her hand a little bit by saying we expect these kinds of life without parole sentences that they are within discretion case by case to be uncommon.
And nobody knows what that means. What does common mean? What does uncommon mean? Is that a predictive statement? Is that an expectation of the high court? We don’t know so there will still be some figuring out to do about what exactly that means.
Four justices dissented. Chief Justice Roberts wrote a quite vigorous dissent on behalf of himself, Justice Alito, Justice Scalia and Justice Thomas. In this area I think it’s fair to say these are like two ships passing in the night. I think the more conservative members of the court are generally not terribly enamored of the general line of eighth amendment juris prudence that Justice Kennedy and others have developed over the years. And their principle argument was this is not a cruel and unusual punishment. There is nothing unusual about this punishment because there are two thousand to twenty-five hundred juvenile offenders in America who have mandatory LWOP (life without parole) sentences. And indeed as the majority opinion acknowledges twenty-nine states have such mandatory policies. And so this is not unusual within the plain meaning of the term unusual as the constitution’s eighth amendment says.
So we’ll see some additional litigation in this area about what exactly is permitted even on a case by case basis for juveniles who commit crimes. But it has been interesting to observe in this area and in a few others, the Supreme Court engaging unconstitutional line drawing to limit the reach of state penal laws which I think as the dissent observes in Miller versus Alabama has become increasingly harsh in the last say half century or so.
The second case I want to highlight for you is an interesting case for those of you who are interested in science and forensics. So if you watch a lot of Law and Order this is a good case for you. This is a case called Williams versus Illinois and it concerns the sixth amendment’s confrontation clause which guarantees to every criminal defendant the right to confront the state’s witnesses against him. And what that traditionally has mean is that if the prosecution is going to put on evidence against a criminal defendant and the evidence consists of some kind of testimony you have to produce the person who gave that testimony so that they can be subject to cross-examination at trial. You can’t take an affidavit from someone and have it be in a setting where no one else was there to challenge what the person said and then offer that into evidence and say see here’s the sworn statement that incriminates this defendant. You have to produce the body, the person who made the statement and subject to cross examination.
Well interestingly the court’s modern juris prudence on confrontation clause began with a case in 2004 called Crawford versus Washington. And the crux of that was a repudiation of some earlier cases that had basically said that we follow in the confrontation clause analysis essentially the rules of hearsay or we look to see whether statements that were admitted have particular guarantees of trustworthiness because the whole point, the court had said before was to ensure that these statements are reliable. And if certain statements come in with indicators of reliability there is no reason to kind of add another layer of constitutional protection on that.
Crawford versus Washington rejected that notion and made very clear that the confrontation clause of the constitution is not ultimately concerned…uh, let me phrase it correctly. Though it is subsequently concerned with reliability ultimately the principle guarantee of the confrontation clause is procedural. And so though there may be other and even better ways to ensure reliability of the evidence that comes in the Constitution mandates one way and that is confrontation. This is a very strict reading of the clause and the reason it comes up in forensics is the following. Increasingly we are using forensics as evidence in criminal proceedings and so in a pair of cases that succeeded Crawford, one called Melendez/Dias and another called Bullcoming there were forensic tests done for example to find the level of alcohol in someone’s blood if they were say driving drunk or the level of drugs that exist in someone’s bloodstream for purpose of these forensic tests.
Typically what happens is a sample is taken from the defendant or a crime scene and sent to a lab. And the lab analysts they have protocols they run the test they produce a particular result. The result is then reported back to law enforcement. Law enforcement and the prosecution then puts on a piece of evidence. And the evidence that comes in may be a piece of paper that indicates the test result and there is a signature at the bottom of the analyst. Or sometimes it’s not even the paper admitted into evidence but instead an expert is put on the stand. An expert is given a piece of paper and says what do you make of these test results? And the expert can say well it shows this and it shows that and here is what it means.
The Supreme Court had said in these prior cases that is not good enough. You can’t just admit the piece of paper and not produce the person who swore to the information on the piece of paper. Or you can’t just produce the expert who didn’t himself conduct the test and vouch essentially for the person who did conduct the test. You gotta produce the person who is first hand familiar with the testing procedure and the test itself that was conducted on that sample.
Now this was a pretty big step because if you think about it these labs are very busy. Unfortunately there is a lot of criminal activity going on out there that implicates these kinds of forensics. So lab analysts are running test after test. And so the dissenters in these cases say well what’s the point of calling these lab analysts who are not going to remember of the hundreds of tests that they’ve conducted which ones they did and what they did with them especially. What the response to that was there have been some studies that have looked at forensic analysis and have found rather significant errors in the conduct of forensic testing and sometimes outright manipulation. That is kind of the atmospherics of this issue. Is whether you think of the science as providing the gateway to greater reliability, greater certainty, greater reliability, greater certainty and taking the human element out of things? Or some justices whether you view this with a greater degree of skepticism. Because by giving things over to the machines, giving it over to the science we are surrendering our ability to skeptically examine what is actually going on behind the production of evidence.
In the Williams versus Illinois case, and I’ll encapsulate it quickly because I’m out of time, the Supreme Court divided in a very interesting pattern which produced no rule for the case. The case concerned a sample that was taken from a victim’s body. It was a rape charge. The sample was sent over to a lab in Maryland way outside of Illinois and the results came back and it matched the defendant thereby placing him at the crime scene. The question is does the Maryland analyst have to testify the Williams versus Illinois trial to vouch for the lab results. Lab justices of the Supreme Court say no. But of those five there is no common reasoning.
Four justices believe that the confrontation clause only applies that the purpose of the testing is accusatory in nature, meaning that the whole purpose of the testing had to have been accusatory to begin with. Here this is just a commercial lab. It’s called Cellmark. You can send your own DNA to Cellmark and they’ll give you some interesting set of test results. And so there was no indication that they were being asked to do the prosecution’s work for it.
Justice Thomas who joined the result takes a totally different view. Of this reasoning of the accusatory purpose, he says that’s clearly not what the confrontation clause is about. That’s the wrong test. He says that the only test is whether the statement given here, the test result is sufficiently formal. Meaning is it an affidavit? Is it a sworn statement, to come within the ambit of the confrontation clause? In other words the more formal a statement is, the more it looks like testimony. And if you are going to put on testimony you’ve got to put on a live person you can’t just use a piece of paper. So that’s his test.
Then there are four dissenters in that case. Justice Kagan writing for Justice Scalia, Justice Sotomayor and Ginsberg. It’s an interesting line up because the formalists are lined here against the pragmatists. And Justice Kagan says under prior precedence the ones that I just described to you this should be an easy case. The analyst should be asked to testify. And what she observes is that thought the plurality decision meaning the position that garnered four votes in support of the result is styled as a plurality it is in effect a dissent because in every particular except its result the views of the plurality opinion have been rejected by all five of the other justices in the case.
So we have in this case a big mess. And for lower courts like mine, we sit as a lower court when we are deciding federal issues the task for us is to figure out what the Supreme Court means when it decides an issue like this. And this is a very difficult set of issues but this I think more than any other criminal issue that I’ve seen in terms of procedure this is sort of an issue very, very important to the day to day work of the trial courts of prosecutors and defense lawyers. I mean this implicates every forensic test, most of them that get done in America and how those trials are supposed to be conducted. And so one can only hope and surmise that the Supreme Court will weigh in again on this issue very very soon.
I’ll save my comments about this term’s cases for discussion.
And I will turn to Professor Eric Schnapper who has agreed to talk about among other things the Arizona preemption case.
Professor Eric Schnapper:
Thank you well first of all I’m grateful to the law school and the Dean and Shon and you for inviting me to be on this panel. Of course I realized when I got here and is becoming increasingly clear that the bar, the standard that’s been set by the speakers so far and what I’m sure Tony Mauro will do afterwards makes my task a bit more challenging than I am used to when I am lecturing alone. But I’ll try at least to be somewhere near the same league as everybody else.
I want to start with the Arizona case. It has two things in common with the healthcare case. The first one was that it was one of the two cases that the oral argument which demonstrated that the Solicitor General really wasn’t up to the task of arguing for the United States because he couldn’t win a major case. And then he turned around and essentially won both of them. So I think we’ve all learned to take those sorts of reviews with a grain of salt. The second thing is that these are the cases which had they perhaps gone the other way would have been much more at the center of a political campaign than they are today. Of course we don’t know what will happen toMauro night. But certainly Obamacare and Arizona have loomed much smaller in the national debate than they did in the spring. And I think part of it is because of the way these cases came out.
So I’ll start with the Arizona case. Arizona as you know is one of a number of states, that had adopted their own laws dealing with undocumented aliens. Arizona has been at the forefront of that group and Governor Brewer at the tip of the spear. This particular bill was known as SB1070 or in the sort of language which these things are often counted: The support our law enforcement and safe neighborhoods act. And who could be against any of that. It contained a number of provisions and I’m going to go through them that were challenged by the government. The nature of the underlying constitutional objection, quasi-constitutional objection voiced by the United States was something called preemption. And if you are not lawyers I really hope you had strong coffee before you got her. But this is the body of law it’s really sort of relates to the structure of the Constitution and the preeminence of the Federal Government in our federal system under which, if our federal government decides to have a rule run a certain way, the states can’t go off generally have their own policies on those things. And indeed even though the federal government hasn’t forbidden the states to something, what the states are doing can so muck up or be inconsistent with the federal government is doing that the states can’t do it. And this derives from a provision of The Constitution clause, the supremacy clause.
Now the devil in this stuff is always in the details. Obviously if Oregon decided to pass a law saying Federal groups couldn’t have bases in the state that would be an easy case. Most cases are more difficult. And this case involved a series of provisions that were challenged from that grounds. And they’re actually kind of a wonderful, a pretty good introduction to preemption law. But I want to walk you through them.
They’re important the way these things came out , not merely because of how these particular provisions were dealt with but because there remain a large number of states which continue to be interested in adopting statutes to deal more aggressively (I’m working at toning that down) with the issue of undocumented aliens. And so they’ll be looking at other ways to go about that and to try and figure out where there is still room for them to do that sort of things and there is some room although it’s getting more difficult. So I’ll walk you through this list. These provisions are of all first four done for. But we have to watch and think about where it’s going to go from there.
So the first one was a provision that made it a misdemeanor for an alien to fail to carry an alien registration statement. Now that is the same as, essentially, as federal law. Federal law requires aliens to carry papers as well. So why was that preempted by federal law? And the court gave a couple of reasons. The first one was something called field preemption. The court said this whole issue of aliens carrying registration papers the federal government has regulated that so thoroughly it’s just occupied the field nobody else can get into it and do anything at all, good, bad, different, you just can’t go there.
Secondly it said even though this is a federal misdemeanor that doesn’t mean that the feds prosecute everybody. There is discretion in the federal system. The choice about whether to prosecute someone or not for not carrying their papers is accorded to the department of justice. And what Arizona has done, they say well maybe the people at the department of justice don’t want to enforce this rule which is admittedly a federal rule but we think that it ought to be enforced here. And the court said Congress meant the attorney general to be the person and his or her deputies to make those choices and it isn’t for a state to come along and say well we want to exercise that discretion differently. They also pointed out that in one respect the state law was harsher than federal law because it didn’t allow for probation for this particular misdemeanor. That’s relatively easy to fix. But I think the lesson of this provision is the states aren’t going to be able to get away with this sort of thing simply by saying well we’re only forbidding something that federal government already forbids because they are asserting the authority to displace the federal government by deciding when to enforce the rule by prosecuting people and when to give them a slap on the hand and tell them to be more careful next time.
The second provision made it a misdemeanor for aliens to work for a living or to even apply to work for a living. Now here there was no Federal statute. Federal law forbids undocumented aliens to work but it doesn’t criminalize it. And so the Supreme Court said the reverse reasoning applies here. Congress looked at these remedies. They didn’t want this particular method of enforcing federal rules that undocumented aliens can’t work. In fact the history was that Congress had affirmatively rejected it. So congress having made the decision not to enforce the law against undocumented aliens working in this particular way it wasn’t for the states to come along and come up with their own scheme.
Third, there was a provision under which Arizona law enforcement officials if they arrested, if they found someone had committed any public offense, turning without using your turn signal, broken parking light, DWI, anything, they could arrest the individual if they concluded that he was removable, that he was subject to being deported by the federal officials. And again the court struck that down for reasons similar to the first one. It said that under the federal system the federal government and its officials have discretion about whether to arrest people who are in the country illegal or whether to just leave them alone and tell the to come in when their hearing turns up. That’s a highly discretionary decision. We have lots of people whom the federal government knows are here unlawfully. They know where they are. They’re not worried about them disappearing or doing any harm. And the federal officials have made the discretionary decision to let them stay out in the public and it wasn’t for Alabama to decide it was going to treat any particular individual different.
The last provision is the one that was upheld. And I think we’re clearly going to have a lot of litigation, we’re likely to have a lot of litigation here. This was what’s loosely known as the show me your papers clause. I think traditionally said with a German accent. But it’s not exactly what it said and that was very important to the way that the court dealt with it. It requires state officials to “make a reasonable attempt to determine the immigration status” of any person who was stopped for some reason and there was reasonable suspicion that the person was an undocumented alien. Passive that comment how you’d know that. Someone would say in Spanish, which you understood, wow that was an expensive coyote but it was worth it. But I don’t know how you’d know this but any way. The court didn’t strike that down but it did it in a way that is going to lead to issues in the future.
First it said with regard to the whole inquiry about whether someone is in the country illegally. There is nothing wrong in a state official calling up federal authorities and say I’ve got Mr. Smith, he’s probably not going to stop someone named Mr. Smith, Mr. Smith here are you looking for him or her. And that’s probably right if that’s all that happens. On the other hand what the court didn’t say is what happens if rather while Mr. Smith is in the back of the squad car and someone is getting his information another officer calls immigration. What would happen if they stop people on the street and they say oh you seem to be a vagrant to me, nice by the way? That’s an expensive suit for a vagrant. But in any event show me your papers and tell me you story. And they start questioning people on the street. The court didn’t address that. They talked about getting information from immigration officials, not about stopping people on the street.
Secondly the United States objected to this provision that under it, it appeared that the officials were being authorized to arrest individuals and hold them but just because their immigration status was in question. And the Supreme Court said, well but maybe they won’t do that. Maybe they won’t arrest someone they wouldn’t otherwise have arrested. And while they’re questioning really quickly the partner will call up immigration.
And the third concern that was expressed was that people who are arrested would then be held longer for purposes of contacting immigration. The concern that exists, and again the court said well maybe they won’t do that. Well the problem is what if they do? And how are we going to enforce the rules against them? Because these are things that are going to happen in individual cases out of the lime light and so on. And so there is a lot of concern about where all of that is going to lead.
Interestingly it occurs to me that immigration probably has a record of the calls. So if immigration is keeping records of the calls that might actually lay the foundation for challenging what goes on in a couple of months and if indeed there is a problem.
So this leaves a lot of questions up in the air about what will happen to other techniques that states might devise but I think on the whole it is more difficult than it appeared a year ago.
I want to just say a word about one new case that’s very important in criminal law and if any of yo practice in this field you do need know about this. This concerns a line of cases that stem from a decision called Apprendi. And the fundamental principle is that certain kinds of details matter. Certain kinds of factual determinations that would affect how long you would go to prison if you go to prison have to be made by a jury on a finding of proof beyond a reasonable doubt rather than be made by a judge who would apply preponderance of the evidence standard. Now and Apprendi, the Supreme Court said that rule applies to facts that increase the maximum sentence that can be imposed, that raise the ceiling. That was a 5:4 decision. Two years later Justice Scalia changed sides and the court held 5:4 that a fact which raises the floor doesn’t have to be decided by a jury.
Now as part of that change Justice Brier, who was in the dissent both times, he thought judge could decide this stuff. But the second time around he said I don’t that the think the distinction that the majority is making between floors and ceilings makes any sense, but I think that the ceiling decision was a mistake and I’m not ready to apply it yet.
Then in 2010 an oral argument in a case called O’brien Brier at one point remarked, and Justice Stevens quoted it in his opinion that this Apprendi decision had been around for a long time and maybe the time had come to sort of, he didn’t phrase it this way, get over it and start enforcing as part of the court’s established case law. So a surpetition was filed earlier this year essentially taking him up on this invitation. And the question in the surpetition is should that 2002 decision the floor decision should that be overruled?
Now this raises immediate problems for everybody practicing criminal law because if the 2002 decision is overturned that result is not going to be, it’s a term of ours, retroactive. It is only going to apply to cases that were still pending when this new decision came down. That means that if you’ve got a case that’s still pending on direct appeal or just starting today, but particularly depending on direct appeal, you need to keep it alive until the new case comes down. Which may involve just filing a precautionary surpetition just saying here we are keep my case alive until this other case comes down and the court does that sort of thing.
The second problem is most defendants who are in the appellate process today didn’t raise this when they were in the lower court because the Supreme Court had held definitively in 2002 that Apprendi didn’t apply to floor rules. So a lot of people won’t have raised this and whether that’s a bar is a state procedural issue which if you’ve got clients like that you need to be thinking about it.
Third problem is if you represent a client who is in the criminal justice process today and hasn’t plead yet, you have to figure out what you do about this. Do you negotiate it away? And say we’ll give up our right to invoke this new decision if we get a better deal. Or do you reserve it in some fashion? And then how do you do that? How do you keep the case alive? But your clients could spend much longer periods of time in prison if this isn’t adequately preserved and the decision goes the other way. It would be unusual for the Supreme Court to grant cert in a case in which the question is should Harris be overruled unless they intended to overrule Harris. I’m going to go out on that limb.
Thank you so much and now finally we turn to Tony Mauro.
Thanks so much. I too feel honored to be here among these greats I’ve admired for many years. And I’ll be quick because I want to get to the audience participation very much.
I was going to talk about three sets of cases: two from last term and the third a pair of cases that will be argued on Halloween.
The first set from last term has to do with the first amendment cases that the court decided. And just by way of context there has been an ongoing debate over the last few years on just how pro first amendment the Roberts court has been. I’ll mention parenthetically that Ron Collins on your faculty has been an active participant in that debate. There are some and myself included who think that he Roberts court has in fact been very pro first amendment and that’s because of a series of classic first amendment decisions involving truly odious and obnoxious speech that the Supreme Court has nonetheless ruled it must be protected under the first amendment. One had to do with animal crush videos that appeal with a certain fetish. Another had to do with these virulent anti-gay demonstrations that were put on at military funerals by the Westborough Baptist Church and the other one was violent video games being sold to children. In each instance the court said in very resounding terms that the first amendment decided these cases for us. The framers wanted to protect the speech we despise so that we would also protect the speech that was important.
This term there was such a case again. United States versus Alvarez had to do with a minor public official in California who boasted at a public gathering that he had won the Medal of Honor. That would be ordinarily viewed as sort of a harmless law but under the stolen valor act it is a federal crime to lie about having won a military honor. So he was convicted on this and the Supreme Court again, as I think it had to do, struck down this law. As admirable as the goal of protecting the military honors program was if you go down the slippery slope and have a lot of laws making it a crime to lie then you would surely have at the end of that slope the halls of congress would be empty, who knows where we would be?
So that’s one side of this debate. But there are some people who say well these decisions including Alvarez make great headlines and they make moot court examples and things like that but they’re really not that important because they are quirky. But when you get down to other areas of first amendment law like prisoner’s rights, students free speech rights and then public employees which Eric Schnapper has dealt with in his advocacy, in those cases the Supreme Court is really not very pro first amendment. It is very stingy. Sometimes it minimizes the first amendment issue. And there was one of those cases too, which I’ll mention briefly.
This is FCC versus Fox television stations involving two instances of fleeting obscenity on broadcast television the F-word and the S-word. Which of course I’ll mention they were not uttered in the court although in the lower court, they were. The lawyers did use those words in full. But I reported that the Chief Justice I believe or somebody from the court let the lawyers know that it would not be looked upon favorably if they used those words. And I won’t use them either. But anyway, the court said that the FCC’s policy that caused the broadcast networks to be fined for these instances of nudity or obscenity that these regulations were not clearly stated enough for the networks to know that they were violating. So it was due process decision not a first amendments decision. And I think that the court will probably hear this case again. They have just kicked the first amendment issue down the road and just not decided it.
I’ll mention just quickly that this case during the oral argument produced one of the wonderful moments in Supreme Court advocacy. The lawyer Seth Waxman who was arguing on behalf of the broadcast stations, he was making the case about the, he was discussing the case involving the nudity on television. It was seven seconds of a rear shot of a woman. And he said in this very court there are all sorts of examples of nudity. He started pointing to the friezes above the justices, the sculptures on the wall. He said, there’s one, and there’s one. And so you had this great scene of all the justices looking up toward the ceiling and checking out what was up there. And Justice Scalia said I had no idea all of these examples of nudity.
But anyway those are the two first amendment cases that I’ll mention. The other from last term quickly were a number of cases that I think would be of interest to this audience because they had to do with the legal profession. The court traditionally has not paid much attention to regulating the legal profession. I remember hearing Warren Berger saying lawyers are just a bunch of shysters and that was in the context of lawyer advertising. But basically the court has left regulating lawyers to the states and to the organized bar. In the past few terms the court has given much more attention to issues involving lawyer competence or ineffective assistance of counsel is how they are usually framed. And the court this term had two cases Missouri versus Fry and Laughler versus Cooper in which the court applied ineffective assistance rules to the whole area of plea bargaining. The court recognized that at this point about ninety-five percent of all criminal cases are resolved through plea bargains or plea agreements not through trials and so they had to sort of up the standard of what lawyers much do to represent their clients properly in that kind of a setting. They must inform their clients of the collateral consequences of pleading guilty, that kind of thing.
And then there is one other case I’ll just mention having to do with prosecutorial abuse. The court has been paying attention to that as well. They ruled in Smith versus Cain against the New Orleans District Attorney’s office which has a long history of ignoring its Brady obligations to share exculpatory evidence with the defense. So I think that’s an area we’re going to see more of I believe, the court more interested in sort of superintending the legal profession which it really hasn’t done much in the past.
And then I’ll mention just very quickly if we have time. I guess we do. Two cases are going to be argued later this month both having to do with dogs. More specifically drug detecting dogs and how whether their involvement with police and searching and arresting suspects violates the fourth amendment. Now when I was a reporter at USA Today there was always a rule that if you wrote a story that mentioned, you had to give the dog’s name. So I’ll mention that in the first case, Florida versus Harris the dog was Aldo a German shepherd. And police brought him along when they stopped a car for an expired license. Aldo did a free air snip it’s called and alerted to the car. And Harris was arrested for making methamphetamine. In the other case Florida versus Jardins the dog was Frankie a chocolate lab and police brought him along to a house that had been identified by a tipster as a grow house for marijuana. They went to the front door and Frankie alerted to the presence of marijuana.
Now the issue with these cases is one are dogs reliable enough that when they alert does that create probable cause for a search to proceed. And then the other issue in the house case is whether it’s an invasion of privacy. The court, especially conservatives members have the traditional notion of your home is your castle and they are suspicious when the police get too intrusive in interfering with your privacy in your home. So these will be interesting cases to look at. And the briefs are full of very interesting history-the history of dogs being used as trackers going back to Homer’s Odyssey. And they note that there was a dog that went along with the Navy Seal team that killed Osama Bin Laden.
Thank you so much to all of you for your comments. Those of you in the audience who have questions you are free to line up behind the microphones and use the microphones to ask your questions of our panelists. I see we’ve got one coming on down.
There was some mention of truly obnoxious and odious speech under the first amendment and I’m a little bit more concerned with (well I’m not unconcerned about that)truly obnoxious and odious campaign spending under the first amendment and I think corporate personhood which is the issue behind that which I think is a looming important issue. People can say that Dred Scott was probably the worst decision the court ever made said some people are property biladi and progeny are some property are people. And so I’m wondering whether you all think that teaching law and advocating law and deciding cases should we continue to maintain what’s always seemed something of a fiction to me that it’s mostly about right and wrong rather than right and left? Interestingly judges line up in odd ways. It is Chief Justice Rehnquist who I think always even when it was A1 got corporate personhood right and said we should be following the English rule and corporations are not people and they should never have constitutional rights.
Who would like to take that one?
Well I’ll just mention…since that’s a first amendment issue I guess I’ll take that. The court did have an opportunity to reevaluate the Citizens United decision and the Montana case involving Montana’s regulation of corporate contributions to campaigns. And the court passed up that opportunity.
Isn’t it a perfect example of the lineup of the court? I mean if depending on who wins this election the next two seats at Citizens United would clearly go the other way. The whole country views the court as almost as politicized as congress on Obamacare except for Roberts’s surprise to try to deal with his legacy and everybody sees Kennedy in the middle. Everyone else’s vote was a foregone conclusion and everyone was right about it.
Let me just say this. This is to make a broader point. It would be easier to have the perception from the very high profile case that the court is invariably divided 5:4 with Justice Kennedy in the middle. Most of the time that’s actually not where it is.
I agree and I meant to point out that Rehnquist being on the side of against personhood is against type. I mean clearly he’s the one who voted against corporate personhood whenever he had an opportunity. I thought the liberals completely missed it thinking that by giving rights to corporations it would help them give more rights to other people.
One question that might be able to pull out of that that I was curious as listening to all of you is we hear all of these disparate themes and we hear about many splits among the court and are there themes that we can pull out to describe the Roberts court? Are there any accurate themes? Or is any attempt at labeling the Roberts Court as the court that is the pro first amendment court, right or the court that is going to superintend the legal profession is it just too difficult to characterize it with broad brush? Do any of you have thoughts on that?
Maybe it’s too difficult.
I’ll say just one small observation which is I think the Roberts is a continuation of the Rehnquist court in so far as it’s a very confident court. The court in the modern era has not felt ill at ease in deciding all manner of issues under the sun. I think that confidence will be put to the test when they confront the pending petitions for cert on the same sex marriage issue. That issue arises at the court in a significantly different posture than the question of interracial marriage did in 1967 when at that point only sixteen states in America were in essence holdouts on the question of interracial marriage. 2/3 of the states had flipped already on that question so the court was catching the tail end of a movement. Here I think it’s still very ambiguous. I mean what’s not ambiguous actually I mean most states still disallow same sex marriage and so the question is whether the court wants to kind of get in there and deal with that. And we’ll see.
Kathryn in response to your question I don’t think you could come up with any general articulation that cut across all topics. Within any one topic you might be able to see a theme within I think many of them the decision is sort of ad hoc based on the law and the facts as they come before the court. I mostly do employment cases and the only theme I would say is on the whole it’s better than the lower courts. No, seriously.
Let’s go to this side of the room.
Thank you for being here. Many of the cases that have concerned me the most coming out of the Supreme Court in recent years are access to justice cases whether it’s AT&T, or Wal-Mart or Ikbal Twombly able to get your perspectives on what’s on the horizon regarding access to justice cases and whether there are any bombs that we should be looking out for?
I think since you mentioned Twombly and Ikbal since you are very familiar with them tightened up the standards for what level of facts, a plaintiff needs to allege a complaint in order to survive a motion to dismiss. You can’t just say the defendant wronged me. Or in the case of Twombly there was an anti-trust conspiracy. Or in the case of Ikbal there was a person who had been subject to detention and he said the attorney general (I don’t have evidence of this but I’m alleging)that the attorney general directed my imprisonment on the basis of my religion. And the court said that you need to plead enough facts to state a plausible claim for relief. That was a significant change from what the standard had been before which was much looser. If the court can imagine any set of facts consistent with the complaint that would entitle you to relief then you got to go forward with discovery. So this has been very consequential for civil litigation. I think that it is fair to say that there is still some significant division in the lower courts on exactly how to apply those decisions. So I think one thing that we very well might expect to see in the coming years is some elaboration of that either extending or entrenching it or cutting back on it. I think that is a development to look forward to.
And also Wal-Mart with a significant class action case. There are a couple of cases pending this term about class actions and what exactly a plaintiff needs to establish to survive a motion to dismiss and to get a class, to get a case certified to proceed as class. Yes, I do expect more development there but which direction those developments will be in I don’t know.
Although I think it is safe to say and this is another area in which the Roberts court has continued in the path set by the Rehnquist court which is to use these sort of procedural issues like pleasing standards and jurisdiction and standing as a way of shutting down certain kinds of litigation without getting to the merits if you’re sort of knocked out of the way before you even get past square one then some of these cases alleging corporate wrong doing don’t get decided. There are some people who sort of view this as a conservative pro-business conspiracy. Whether you call it that or not it does seem like that this court, and they may have other motivations too to reduce the flood of litigation, to make sure that the litigation it has some solid foundation before it’s adjudicated but the court has some solid foundation before it’s adjudicated but the court has been using these procedural methods to restrict certain kinds of litigation for sure.
I might answer that at the risk of sounding like I’m identifying a theme here. I think it’s fair to say that the court is…at the same time that it would deal very aggressively with enforcing the rules that prohibit one person from walking to a Seven Eleven with a gun and stealing $500. We end up with a system which rewards people for stealing billions of dollars from millions in smaller amounts by lying. And it seems to me that that’s not necessarily a distinction that everyone would agree with.
My question is for the two Erics. As far as Supreme Court practice you’ve both done a lot of that up at the court. Are there any emerging trends with the Roberts court about things that practitioners here could take about what types of cases they’re looking for, preparing a brief, preparing an argument anything that’s emerging with the Roberts court and how to practice before them?
I guess a couple of things that come to mind in terms of the selection of cases, my perspective on this has recently changed. A few months ago I would have said they grant way too many cases they shouldn’t be granting. But seriously I do think that they are granting…traditionally a lot of the docket has been cases where there is a circuit conflict and that continues to be the case. And I think they grant a lot of cases where you look at them and you say okay there’s 1:1 circuit conflict on this it doesn’t really seem like anybody cared this issue very much. Or like there’s ever going to be another circuit joining the split because it never comes up but there’s a 1:1 conflict and it gets granted. So they do seem particularly sensitive to granting conflicts.
In terms of advocacy before the court the trend over the last many, many years has been essentially each time there has been a change in personnel of the court one of the justices has been replaced by a justice who asks even more questions than his or her predecessor did. I haven’t actually looked at the statistics but it certainly feels like there get to be more and more questions and what that does to the effectiveness as a decisional tool is for the court to decide but that is a noticeable trend.
I would say that any change that has transpired, the number of grants is down from twenty years ago. But in terms of how you litigate any changes that have transpired are quite minor compared to the vast difference between one writes a brief and argues a case in the Supreme Court compared to the lower courts. And I think it is certainly, I would say it’s more challenging than it was twenty or thirty years ago. I continue and now that you’re turning to private practice you will begin to run into people who think that they could just do a dandy job arguing with Justice Alito and the Chief Justice and Scalia for half an hour and it’s not pretty. And I think that’s become more important than it was. The court is tougher on people who are arguing cases, and notwithstanding, a case get lost at oral argument. I’ve sat there and watched it happen.
It really is extraordinary just as someone who observes these advocates, the difference is so striking when I first started covering the court it wasn’t quite back to the days of oil lamps or anything but a little more recently than that, most justices did not ask man questions at all. Blackman, Brennan, Powell are very quiet generally speaking so it was common for lawyers to have almost a half hour of oration without very little interruption. And now it is just astonishing. There is fifty questions it’s not rare to have fifty questions during a half an hour argument. And how lawyers are able to keep up with it is amazing. In a sense Justice Thomas who gets a lot of criticism, he hasn’t asked a question since 2006 but by god if he was as talkative as the rest of them it would be just out of control, so it’s good to have at least the one justice who listens. So I think that is the…I think that has contributed to the growth of this sort of elite Supreme Court bar. More and more cases are being argued by fewer and fewer lawyers and that’s because corporations, all kinds of litigants who used to use their hometown lawyer who started the case they used to argue at the Supreme Court and that is gone. Like if you are climbing Mount Everest instead of the Matterhorn you need the best Sherpa around. And so they are to an enormous extent, clients are now relying on Supreme Court specialists. Which also has a consequence for law clerks who are hired into law firms nowadays. I just reported that the law clerk bonus for a law firm hiring a clerk just out of the Supreme Court is $280,000 and that doesn’t count the salary. Does that sound familiar?
Mr. Mauro raised the Brian Cooper case but my question is really for justice Liu on that subject and I guess it’s about a good decision an unintended consequences. And the decisions in those cases seems to almost create an incentive for a strategy [inaudible 1:24:37] called it in one case the lawyer said, just told his client the wrong law, he said don’t worry you can’t get a murder conviction because you shot the person below the waist. He was just wrong and so the guy ignores his plea bargain and I may have this slightly wrong but basically goes to trial loses and then says Supreme Court help me. The Supreme Court helped him. And the other one was I think the guy just didn’t even tell him about the plea bargain. But doesn’t this give us an incentive for representing criminal defendants to basically blow the plea bargaining aspect and go to trial, lose the trial and we’ve got a way out. We say gosh I forgot to tell him or I told him you have to use three guns before you could get murder. I’m sorry I did that I’ll throw myself on the sword because my malpractice liability is so low with a criminal defendant and doesn’t that create kind of a troublesome situation?
Well I mean I think what you describe is a possible dynamic but I would tell you that would not be a very advisable way to go. Although it’s true what Tony noticed about the expansion of the doctrines of ineffective assistance of counsel are really quite notable especially to the plea bargain context. It still remains the case that the actual standard used in the doctrine is a very steep standard. It is true that if you look at the last ten or fifteen years the Supreme Court you could probably identify a handful or maybe more of decisions in which they have found the rendering of ineffective assistance of counsel. But keep in mind that that’s a claim that’s asserted thousands of times by criminal defendants and the Supreme Court has identified a handful of instances in which those claims are meritorious. You have to fall below, there are two parts of the inquiry, you fall below the standard of performance of objectively reasonable standard of performance of a lawyer in the profession and you know, I don’t know the court has determined that to be a pretty low standard. In other words a lot of things can pass muster still and not be objectively unreasonable. Primarily because, and I’ll tell you why, primarily because it’s precisely for the nut of your question, so many things can be rationalized as tactical So the fact that a lawyer omitted to do something one way or the other often can be rationalized as a plausibly reasonable tactic. Not necessarily what you describe but that in itself is an available rational in virtually every case. And the second thing that you have to show is not only that the lawyer fell below the standard of reasonableness but you have to show that it was prejudicial that it would have made a difference to the result. And that too can be a pretty hard thing to show. So when you add it all up I wouldn’t roll the dice on the strategy that you particularly brought up. That may win a couple of cases here and there but in the main the standard for ineffective counsel is still a very difficult one to meet.
Let’s go ahead and take one more question and then I think we’re out of time.
First of all thank you for coming. Speaking to this grand game idea and what makes a good lawyer. Harry Connick Sr. do you guys have any thoughts on him and what he had to do last year et cetera?
Well that was case for last term Connick versus Thompson. Of course Harry Connick Sr. is the father of the singer and he was district attorney of New Orleans Parrish and had a long history of policy almost of ignoring the Brady obligations to share exculpatory evidence with the defense lawyers. The court in that case didn’t actually side with the defendant but in the Smith versus Cane case this term they did slap down the New Orleans District Attorney’s office finally.
Let’s please join me in thanks to our panelists for coming.