Friday, April 21, 2017

Judges' Role in Death Cases Curbed as Sotomayor Urged

      Justice Sonia Sotomayor can now take a bow for significant reforms in death penalty cases in two of the states with among the highest number of executions since capital punishment was reinstituted in 1976: Alabama and Florida.  Those two states were until recently the only two where judges in recent years could and actually did impose death sentences even after juries voted for life or long prison sentences instead.
      Both states have now enacted laws eliminating judges' power to impose a death sentence except based on factual findings or recommendations from a jury. Alabama's new governor, Kay Ivey, signed a bill repealing the state's judicial override procedure earlier this month [April 11] just one day after taking over following the resignation of her sex scandal-plagued predecessor, Robert Bentley.
      Florida changed its law in March 2016 to eliminate a judge's power to impose a death sentence without input from the trial jury. The change came three months after the Supreme Court ruled in Hurst v. Florida that the state's procedure ran afoul of a decade-long line of precedents generally limiting a judge's power to make factual findings needed to increase a defendant's sentence.
      Sotomayor authored the 8-1 decision in the Florida case, but she had first spoken out against judge-imposed death sentences in an Alabama case two Supreme Court terms earlier. In Woodward v. Alabama, Sotomayor wrote an impassioned dissenting opinion
from the court's refusal in November 2013 to consider an Alabama death row inmate's challenge to the judicial override procedure.
      A judge had sentenced Mario Dion Woodward to death for the killing of a Montgomery police officer, but in the face of an 8-4 jury recommendation that he be spared the death penalty and sentenced to life imprisonment instead. In her opinion, Sotomayor noted that Alabama was the only state within the previous decade where judges had actually imposed death sentences in the face of contrary verdicts.
      Alabama judges had actually made somewhat frequent use of this power, Sotomayor noted. She listed in an appendix the 95 defendants sentenced to death by Alabama judges after contrary sentencing recommendations by juries. By contrast, Alabama judges had overridden jury-recommended death sentences only nine times. And Sotomayor pointed out that the number of judge-imposed death sentences appeared to spike in election seasons. One judge, she noted, had noted in his campaign literature the six defendants he had sentenced to death, including one that the jury had recommended be given a life sentence instead.
      Sotomayor was joined in her dissent by Justice Stephen G. Breyer, but not by the court's other two liberal justices: Ruth Bader Ginsburg and Elena Kagan. She acknowledged in her opinion that the Supreme Court had previously upheld Florida's judicial override procedure in capital cases.
      Florida had once led the nation in what Sotomayor called "life-to-death overrides," with 89 in the 1980s compared to 30 in Alabama and six in Indiana. By the 1990s, Alabama had taken the lead with 44 compared to 26 in Florida and four in Indiana. After 2000, Alabama stood alone with 26 life-to-death overrides; in the only other case, in Delaware, the judge-imposed death sentence was reduced on appeal to a life term.
      Sotomayor achieved her goal in March 2015 when the court agreed to hear a new Florida case challenging that state's judicial override procedure in capital cases. The case was argued early in the new term, in October 2015, and ended with a nearly unanimous decision overruling the previous decisions upholding Florida's procedure. "Time and subsequent cases have washed away the logic of [the earlier decisions]," Sotomayor wrote. As the lone dissenter, Justice Samuel A. Alito Jr. argued that the "advisory" role played by the jury under Florida law satisfied the line of precedents requiring juries not judges to make factual findings needed to increase a defendant's sentence.
      Florida passed its new law three months later to eliminate judges' power to impose death sentences unless recommended by at least a 10-2 jury vote. The writing appeared to be on the wall for Alabama's judicial override procedure after the court sent an Alabama case back to the state's court to consider the impact of its decision in Hurst. The Alabama legislature completed approval of a bill to repeal the judicial override provision on April 4; Bentley had promised to sign it, but it fell to Ivey to sign the measure after Bentley's resignation.
      Robert Dunham, executive director of the Washington-based Death Penalty Information Center, called the repeal "significant." He noted to the Birmingham Times that historically judicial overrides had been seen as a safeguard against runaway juries, but that in contemporary times the power "has been used to impose death sentences against the will of the community and has been disproportionately used in election years in cases of white victims and African am defendants."
      Today, Sotomayor has become the court's most vocal critic of the lethal injection procedures currently used in death penalty states. She spoke for the four liberal justices in dissenting from the decision in Glossip v. Gross (2015) upholding the current three-step lethal injection procedure.
      Sotomayor reiterated her points from that dissent as recently as Thursday night [April 19] in voting to grant stays of executions to the Arkansas inmates seeking to halt the state's plans to carry out eight executions within a span of two weeks. With one significant reform to her credit, Sotomayor can be expected to keep up the pressure on this issue as well.

Sunday, April 16, 2017

On Use of Force, Law Is Toothless, Not Pointless

       The results of President Trump's decision to launch missile strikes against the Syrian air force base in retaliation for its use in a chemical weapons attack on civilian populations can now be toted up. In short, the strikes achieved little in terms of military or diplomatic objectives, but Trump got a bump in his approval rating and a distraction from the investigation into possible collusion between his campaign and the Russian government.
       The episode also lays bare for all to see the rank hypocrisy of Republican politicians and Republican voters who rushed to Trump's support despite having opposed any similar U.S. intervention four years ago when President Obama was in the White House. A survey by the Pew Research Center found overall support for Trump's action — 58 percent to 36 percent — with Republicans supportive by a 4-1 margin: 77 percent to 19 percent.
       Four years earlier, Pew's survey found Republicans opposed to intervention: 35 percent in favor, 40 percent opposed. The 2013 survey found Democrats and independents opposed by larger margins: 48 percent to 29 percent for Democrats, 50 percent to 29 percent for independents. But it was opposition from Republicans on Capitol Hill that forced Obama to fold his cards. Obama had argued that he could act on his own but explained that he wanted Congress's support to strengthen the U.S. position.
       Trump's all but unilateral decision prompted a useful if inconclusive debate over the legality of his actions, with no more than minimal consultation with leaders in Congress and no resort to international law or the peacekeeping machinery of the United Nations. The history of this and similar debates earlier gives pause to any sticklers for separation of powers or international law. But it is too facile to treat either domestic or international law merely as toothless restraints on the president's power to use military force.
       The constitutional debate over the president's warmaking powers is long-lived, a built-in feature of the separate provisions that make the president the commander in chief but give Congress the power to "declare" war. The debate was well joined in the Vietnam era. The various legal challenges to the Vietnam War were never fully adjudicated, but Congress eventually responded by enacting the War Powers Act in an effort to limit any extended commitment of U.S. forces abroad without congressional approval.
       The law, adopted in November 1973 over President Richard Nixon's veto, requires the president to notify Congress within 48 hours of committing U.S. forces abroad and requires withdrawal of U.S. forces within 60 days unless Congress affirmatively approves. Trump followed other presidents' examples by notifying Congress of the missile strikes two days after the launches but without formally acknowledging any obligation to do so.
       The three-paragraph letter sent to Congress on April 8 was admittedly brief, but constitutes the most formal statement of Trump's intentions and justifications for his decision. "I directed this action in order to degrade the Syrian military's ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons," Trump wrote, "thereby promoting the stability of the region and averting a worsening of the region's current humanitarian catastrophe."
       Two days earlier, Trump had announced the missile strikes to Americans and the world in a televised address from Mar-a-Lago not even three minutes long: heavy on bathos, light on tactical or legal content. Now, more than a week later, Trump has still been light on explaining the policy or exploring the implications even as his principal advisers send conflicting signals on long-term goals regarding the future of the Syrian strongman Bashar Al Assad.
       As for the War Powers Act, Charles Stevenson, an adjunct professor at Johns Hopkins University's School of Advanced International Studies in Washington, argues that the law has achieved its purposes even without formal presidential acknowledgment. Stevenson, an aide to the dovish Iowa senator Harold Hughes back in the Vietnam era, notes that no overseas conflict since 1973 has lasted more than three to four months without congressional approval.
       International law operates as even less of a formal restraint on presidential warmaking, but it too should not be completely discounted. Trump's televised address sounded not like an "America First" foreign policy but more like what some experts are calling an emerging doctrine of humanitarian intervention in international law.
       Ironically, Trump has gotten support for the missile strikes from a liberal veteran of the Obama administration: Harold Koh, the human rights-minded Yale law professor and State Department legal adviser under Obama. Koh argued in a law review article that humanitarian intervention, even without U.N. Security Council approval, may be legal under international law if various conditions are met. The humanitarian crisis must be one that threatens international order, and the intervention must be limited and necessary to prevent a per se violation of international law, such as use of chemical weapons.
       Trump's impulsive resort to missile strikes was satisfying no doubt: an eye poke to Assad and, incidentally, to his Russian ally Vladimir Putin. But Trump could have strengthened his case, and shown more respect for public opinion at home and abroad, by dotting the i's and crossing the t's of applicable law, even now if only after the fact.

Tuesday, April 11, 2017

With Shoutout to Scalia, Gorsuch Reaffirms Likely Course

      After taking the oath of office as Supreme Court justice, Neil Gorsuch turned to the widow of his predecessor, Antonin Scalia, to give one more tribute to the man he was to succeed. "I won't ever forget," Gorsuch said, facing Maureen Scalia as she sat in the front row of the Rose Garden ceremony, "that the seat I inherit today is one of a very, very great man."
      Gorsuch had gone further when President Trump announced his selection on Jan. 31 by praising "the towering judges" who had served in the seat: not only Scalia but also Robert Jackson, a Democrat named by President Franklin D. Roosevelt in 1941. Somewhat oddly, Gorsuch skipped over Scalia's immediate predecessor, William Rehnquist, who held the seat as associate justice until his elevation to be chief justice in 1986.
      Apart from Jackson and one other justice, the seat that dates back to 1863 has been held by judicial conservatives for all but a 30-year period. The seat that Gorsuch is shown in Supreme Court charts as seat #10: historically, the tenth seat of what is now a nine-seat court.
      The Republican-majority Congress added a tenth seat to the court in 1863 partly to give President Abraham Lincoln stronger support on a court that had upheld his wartime blockade of southern courts by only a one-vote margin. To fill the new seat, Lincoln appointed Democrat Stephen Field, then serving on the California Supreme Court after having relocated to the West from his native Connecticut.
      Field was commended to Lincoln as a strong supporter of the Union and an expert in land and mineral issues then of special interest to western states. He became a stalwart on a court that became increasingly conservative over time — as seen in decisions striking down federal civil rights laws and the first federal income tax.
      Field served for what was then a record 34 years until, with his mental abilities in evident decline, the other justices prevailed on him to retire in 1899 at age 82. The court had long since reverted to nine members, however. When Justice Joseph Catron died in April 1865, the Republican Congress abolished what was then shown as the court's eighth seat rather than allow the new president, the ex-southern Democrat Andrew Johnson, to fill the seat.
      All but one of the six justices to hold the seat after Field until Gorsuch were Republicans appointed by Republican presidents; of those five, four proved to be reliably conservative on the bench. Two others had more liberal records: Harlan Fiske Stone, nominated by Calvin Coolidge in 1925, and Jackson, who was Democrat Franklin Roosevelt's choice for Stone's seat when he elevated Stone to chief justice in 1941.
      As Field's successor, President William McKinley chose Joseph McKenna, a one-time colleague of McKinley's in the U.S. House of Representatives. McKenna had a generally conservative record on the bench. Like Field before him, McKenna overstayed his welcome. With his mental faculties noticeably in decline, Chief Justice William Howard Taft persuaded McKenna to retire in 1925 at age 81.
      As McKenna's successor, Coolidge picked Stone, his attorney general and a former Wall Street banker. Stone aligned himself in the 1930s with liberal justices Louis Brandeis and Benjamin Cardozo in voting to uphold some of FDR's New Deal enactments that were struck down often by 5-4 votes. When FDR got a series of Supreme Court appointments beginning in 1937, Stone became part of a reliable pro-New Deal majority. And in 1941 Roosevelt was persuaded to name Stone as chief justice to gain Republican support as World War II loomed.
      To succeed Stone as associate justice, Roosevelt picked his attorney general, Robert H. Jackson, who had been FDR's initial choice for the center seat. Jackson is held in high regard today as one of the best writers in Supreme Court history and as one of the strongest defenders of civil liberties — for example, in striking down mandatory flag salute laws and in dissenting from the decision to uphold the wartime internment of Japanese Americans.
      Jackson died in office in 1954 after joining, despite initial doubts, the Brown v. Board of Education decision to prohibit racial segregation in schools. As his successor, President Dwight Eisenhower chose John Marshall Harlan, namesake grandson of the justice now best remembered for dissenting in 1896 when the court upheld legally enforced racial segregation.
      Harlan faced questions about Brown from southern senators and was confirmed by what was then an unusual divided vote of 71-11. He compiled a generally conservative record during the Warren Court's upheavals on civil liberties and criminal law. Harlan retired in September 1971, gravely ill at age 72, and died three months later.
      President Richard Nixon chose Rehnquist, then an associate attorney general in the Justice Department, for the vacancy barely a month after Harlan's retirement. Rehnquist's conservative record provoked a fight with Democrats in the Senate, but he won confirmation by a vote of 68-26. As associate justice, he was the most conservative member of the Burger Court and was then chosen by President Ronald Reagan as Burger's successor in 1986.
      The controversy over Rehnquist allowed Scalia to glide unopposed to a 98-0 confirmation despite his already evident conservative views. Scalia's legacy after a tenure that fell seven months short of 30 years was a constant backdrop for Gorsuch's nomination: praised by Trump and Republican senators but his judicial philosophy criticized by Democrats. Gorsuch's final shoutout before getting down to work gives the strongest clue yet that he expects to be true to Scalia's memory.

Sunday, April 9, 2017

Republicans Made High Court a Partisan Battleground

      Republicans and Democrats exchanged bitter accusations on the Senate floor last week as the GOP majority went nuclear to clear the way for Judge Neil Gorsuch's confirmation to join the Supreme Court in time for the final arguments of the term later this month. Senators on both sides of the aisle uniformly decried the politicization of the Supreme Court while trading bitter accusations that the blame lies with senators or dark-money special interest groups on the opposite side.
      The blame starts, however, with Richard Nixon, who turned the Supreme Court into a partisan battleground as part of the divisive campaign he waged for the presidency in 1968. He was the first of what are now five Republican presidents who have pushed the ideological envelope with appointments that have given the high court a seemingly permanent conservative orientation.
      Nixon tapped into law-and-order sentiment by accusing the Warren Court of coddling criminals while his so-called southern strategy drew on the South’s continuing resentment of the court’s role in school desegregation. Today, most of the Warren Court’s flashpoint rulings are accepted as legal mainstream. The Miranda rule on police interrogation is now part of popular culture, according to no less a judicial conservative than the late chief justice William Rehnquist. The Gideon ruling on right to counsel is hailed as a landmark even if its promise less than completely fulfilled. Outside criminal law, few if any mainstream legal figures would go back on the Brown desegregation ruling, the Baker v. Carr line of cases on reapportionment, or the New York Times v. Sullivan First Amendment decision on libel law.
      Still, Nixon turned immediately to setting a new course. After a Republican-led filibuster blocked Abe Fortas's nomination as chief justice, Nixon turned in his first months in office to the most prominent judicial conservative of the time: Warren Burger, an outspoken critic of Warren Court rulings on criminal law. For a second vacancy, Nixon picked two conservative judges rejected by the Senate’s Democratic majority, Clement Haynsworth and G. Harrold Carswell, and was then forced to turn to the moderate Harry Blackmun.
      To fill two more vacancies, however, Nixon chose Rehnquist, a Goldwater conservative transplanted to Arizona from the Midwest, and Lewis Powell, an establishment business-oriented Virginian seen as somewhat moderate. Powell went on, however, to help form 5--4 conservative majorities in such decisions as those that limited school desegregation remedies, cut off death penalty challenges, and upheld state anti-sodomy laws.
      President Gerald Ford deliberately moved to the center with his sole Supreme Court appointee: John Paul Stevens, a Republican with a non-ideological record on the federal appeals court in Chicago. President Ronald Reagan’s decision to name Sandra Day O’Connor as the first female justice was likewise more political than ideological, but she was vouched for by her conservative Stanford Law School classmate, Rehnquist.
      Reagan followed with the three most conservative Supreme Court nominations since the 1920s: Rehnquist as chief justice to succeed Burger, Antonin Scalia to fill Rehnquist’s seat, and one year later the archconservative Robert Bork to succeed Powell. Bork showed himself in his confirmation hearing testimony to be outside the legal and popular mainstream: the Senate’s bipartisan 58-42 vote to reject the nomination refutes the continuing conservative meme that he was mistreated or misjudged. And, as with Nixon’s situation two decades earlier, Reagan first tried another committed conservative, the pot-smoking Douglas Ginsburg, before turning to the moderate Californian Anthony Kennedy.
      History provides no definitive answer whether President George H.W. Bush should have known that David Souter would prove to be less conservative than vouched for by his principal White House supporter, the fellow New Hampshirean John Sununu. For his second Supreme Court appointment, however, Bush turned to Clarence Thomas, who had already flashed his doctrinaire conservative views in writings and speeches though not yet in his brief record on the federal appeals court in the District of Columbia. Thomas won confirmation only because southern Democrats saw political risks back home in rejecting the only African American nominee Bush was likely to choose.
      As the first Democratic nominees in a quarter-century, President Bill Clinton picked two appellate judges with centrist records and reputations: Ruth Bader Ginsburg and Stephen Breyer. Two decades later, President Barack Obama’s first two nominees, Sonia Sotomayor and Elena Kagan, had supporters across the ideological spectrum: Sotomayor had been appointed to the district court by the first president Bush and then elevated by Clinton to the federal appeals court in New York; Kagan had famously soothed the ideological warfare at Harvard Law School during her tenure as dean.
      Sotomayor and Kagan were both rightly seen as “progressives,” but Obama had more liberal candidates to choose from. His third nominee, Merrick Garland, was more conspicuously chosen as a moderate over candidates who had more liberal records and stronger support from liberal advocacy groups. But Senate Republicans replied to his de-escalating move not with accommodation but resistance by refusing even to consider Garland’s nomination much less to put it to a vote.
      Obama’s actions contrasted with President George W. Bush’s record on Supreme Court appointments. John Roberts came with gold-plated academic and professional credentials, but also a solid record as a Reagan-era conservative. Conservatives shot down Bush’s nomination of his White House counsel Harriet Miers, and he followed by turning to a judge, Samuel Alito, who satisfied the conservative groups’ litmus tests and has proved to be as conservative as they had hoped.
      President Trump’s outsourcing of the Supreme Court nomination to the Federalist Society and the Heritage Foundation carries the conservative politicization of the court one significant step further. Neil Gorsuch may not have been the most conservative judge on Trump’s list of 21 candidates, but he has a deserved reputation as a reliable conservative and revealed himself as such through his calculated silences in his confirmation hearing.
      With his confirmation, the Supreme Court now includes three justices with among the narrowest Senate mandates in history. The Senate’s 54-45 vote to confirm Gorsuch was the fourth closest in history; Thomas’s 52-48 margin was the third closest, and Alito’s 58-42 vote was also narrow by historical standards. A half-century of Republican moves have left a picture of the court as little more than the third of three political branches of the national government.
      Despite what Republican senators would have the public believe, it is the conservative justices today who have an activist ideological agenda, not the liberal bloc. Gorsuch's calls to make it easier to overrule administrative agencies or harder to regulate political campaign contributions point him toward the Thomas-Alito alliance that views many liberal precedents as ripe for reversal. The court has a deep reservoir of public confidence, but the Republicans' siege on the marble palace has weakened that confidence. As Gorsuch's presidential benefactor might say, Sad!

Tuesday, April 4, 2017

On Gorsuch, Senate Should Debate, Deliberate

      The Senate should not vote this week on the Supreme Court nomination of Judge Neil Gorsuch. Not because Democrats can block Gorsuch's nomination or would be likely to get a more acceptable nominee if they could.
      No, the reason for slowing down the vote is that Senate Republicans owe it to the American people to allow full debate and deliberation on Gorsuch's nomination before sending him to the Supreme Court for what is likely to be 25 years or longer.
      There may be no mystery about the outcome, as Senate Judiciary Committee Chairman Chuck Grassley said at the start of a 4-1/2 hour meeting that ended with an 11-9 party line vote to send the nomination to the floor. But the same American people who figured in the Republicans' decision to block President Obama's nomination last year of an equally qualified nominee, Judge Merrick Garland, deserve to know what they will be getting from a Justice Gorsuch. They will be getting
      * A justice who is a threat to reproductive rights, LGBT rights, and workers' and consumers' rights.
      * A justice who is a threat to clean air and clean water regulations.
      *A justice who would invite a larger role for money in politics by narrowing the power of Congress or state legislatures to limit campaign contributions.
       * A justice who could be a pivotal vote for expanding presidential power at a time when the president is a constitutional time-bomb waiting to go off.
       * A justice with no record of promoting racial justice or protecting voting rights at a time when those issues tarnish America's claims to liberty and justice for all.
       Nine Democratic senators laid out the bill of particulars against Gorsuch's nomination one by one with careful citation to Gorsuch's record during 10 years on a federal appeals court and his year-long stint in the Bush administration Justice Department. Significantly, Gorsuch was often all by himself in some of the instances cited.
      While at the Justice Department, Gorsuch drafted a signing statement for President George W. Bush that would have justified torture-like "enhanced interrogation techniques" such as waterboarding despite Congress's clear intention to prohibit those practices. The passage was deleted in the final version at the instance of the then-solicitor general Paul Clement, no shrinking violet on issues of presidential power.
       On environmental regulations, Gorsuch used an unrelated case to call for reconsidering the so-called Chevron doctrine, a 30-year-old precedent for deferring to federal agencies' interpretations of ambiguous congressional enactments.
       As for campaign finance, Gorsuch called in a concurring opinion for subjecting laws on campaign contributions to the strictest constitutional standard -- so-called "strict scrutiny." The Roberts Court has invoked that standard to overturn federal and state laws to limit corporate spending in campaigns.
       Republicans countered the charges by citing Gorsuch's admittedly outstanding academic and professional credentials and by accusing Democrats of imposing a political agenda litmus test. Democrats invited the critique perhaps by depicting Gorsuch as too often siding against the "little guy" in close cases. The Democrats needed to try even harder than they did to explain that they were criticizing Gorsuch's approach in analyzing and applying laws enacted for the very purpose of protecting or empowering individuals against more powerful organizations or entities.
       In the notorious stranded trucker case, for example, Gorsuch took a federal law enacted to give truck drivers a safety-based right to refuse a company's instruction on operating a vehicle. Alone among seven judges to consider the case, Gorsuch construed the key term in the law so narrowly as to leave the trucker defenseless in his decision to avoid the risk of freezing to death in subzero weather while waiting for a long-delayed repair service.
       In somewhat like vein, Gorsuch gave a narrowing interpretation to the federal law guaranteeing a "free appropriate public education" to students with disabilities. Taking a minority position, the Tenth U.S. Circuit Court of Appeals had adopted a standard that schools must provide some "de minimis benefit" to special-ed students. Applying that precedent in a subsequent case, Gorsuch opted for an even weaker standard: merely a de minimis benefit. The Supreme Court threw out that standard in an 8-0 decision issued coincidentally just as Gorsuch was wrapping up his Judiciary Committee testimony.
       Republicans have been impervious to all these criticisms. They have voted in near lockstep for President Trump's nominees, even some with weaker qualifications than Gorsuch's: think Rex Tillerson at State, Ben Carson at Housing, and so forth. Betsy DeVos for Education was too much to swallow for Maine's Susan Collins and Alaska's Lisa Murkowski, but they are apparently on board for Gorsuch.
       Democrats have enough votes -- 41 as of late Monday night -- to block a vote on Gorsuch's confirmation under the current rules requiring 60 votes for a motion to proceed. Senate Republican leader Mitch McConnell is vowing to change the rule if necessary to bring the nomination to a vote with a simple majority.
       Even without the rules change, Democrats are in fantasyland if they think Trump would respond to a rebuff by looking for a consensus choice instead of going back to the Federalist Society-approved list. Recall: Nixon nominated Carswell after Haynsworth was defeated; Reagan turned to Douglas Ginsburg after Bork was rejected; moderates Blackmun and Kennedy emerged only on third tries; and Bush43 picked the hard-line conservative Alito after the weakly qualified Harriet Miers withdrew.
       Democrats have a losing hand. Gorsuch may be as good as they can expect from this president. Gorsuch's challenge as successor to a stolen Supreme Court seat will be to try to live up to the self-portrait he drew of a careful, apolitical judicious judge.

Sunday, April 2, 2017

Replay of Brutal Murder Might Have Been Avoided

      Catherine Fuller was brutally murdered on her way home from a late-afternoon shopping trip barely two miles from the U.S. Capitol one month before Ronald Reagan's landslide re-election in 1984. Longtime Washington-area residents still recall the murder and the long trial a year later that ended with the convictions of 11 black youths for what prosecutors depicted as an opportunistic robbery that turned into a savage gang-style killing.
      Three decades later, the gruesome events were replayed at the U.S. Supreme Court last week [March 29] as two of the defendants asked to have their convictions thrown out because the prosecution withheld evidence potentially useful to their defense. Charles Turner and Russell Overton are asking the justices to put themselves in the impossible position of deciding whether the jury that deliberated on their fate for a full week would still have convicted them if the withheld evidence had been turned over back then.
      Frustratingly, the reopening of the case might have been avoided under current Justice Department policies that take a broad view of the government's disclosure obligations under a well-established Supreme Court precedent, Brady v. United States (1970).  Brady requires the government to give the defense any potentially exculpatory information in its files. Today, the government concedes that the prosecution violated Brady by failing to turn over evidence from two witnesses pointing toward the possibility that someone else could have killed Fuller.
      Jerry Goren, the Harvard-trained lawyer who led the prosecution team and now lives in California, testified in the later post-conviction hearing that he investigated the evidence from the witnesses placing another black youth, James McMillan, in the vicinity around the time of the killing. McMillan, who would later be convicted of a somewhat similar murder, was said to have been seen concealing some object that could have been the lead pipe used to sodomize Fuller before she died.
      In his 2012 testimony, Goren said that homicide detectives interviewed the witnesses, but he did not give the information to the defense because he did not find their accounts credible. Prosecutors naturally suspect defense attorneys will grasp at any straws, however insubstantial, to try to conjure up reasonable doubt in some jurors' minds. So a minimalist approach to Brady naturally leads prosecutors to withhold evidence if they think they can get away with it.
      Representing Turner in the Supreme Court arguments, attorney John Williams had no doubt that the withheld evidence would have been helpful to the defense at trial. "This whole case would have been cast in a different light," Williams told the justices. The prolonged deliberations on Turner and Overton after the jury had convicted nine other defendants showed that jurors had doubts about their guilt, he said. Deanna Rice echoed the point in the five minutes she was allotted for divided argument representing Overton.
      For the government, deputy solicitor general Michael Dreeben had the unenviable task of explaining away a now-admitted Brady violation. The evidence to suggest an "alternative perpetrator theory" was "weak and speculative," Dreeben told the justices. By contrast, the evidence of a group attack on Fuller was "strong" and corroborated by some of the members of the group who testified for the government in hopes of a shorter sentence. Given all that, Dreeben said, there was "no reasonable probability" that the jury would have rejected the government's theory in favor of a single perpetrator.
      The justices were somewhat hard to read in what was for them an unusually fact-specific set of arguments, but Justice Elena Kagan was one of three — along with Ruth Bader Ginsburg and Sonia Sotomayor — who voiced discomfort with the withholding of the evidence to suggest an alternative perpetrator. "It would have been a completely different trial," Kagan told Dreeben.
      Dreeben explained the long jury deliberation by detailing the difficulties of a case that could have been a Law and Order episode.. The prosecution witnesses' testimonies naturally "diverged" in places, the veteran criminal law specialist conceded, given the "chaotic" pace of events in the killing. The prosecution's reliance on some of the participants was also perfectly natural, Dreeben said.
      The government looked for other witnesses, but none came forward, he said. The community in what was then a run-down neighborhood felt "under siege," he said. And the reality, Dreeben continued, is that in criminal cases "it's frequently the case that the only people who can really tell you what happened are those who participate."
      Ginsburg followed by bluntly asking Dreeben to explain the withholding of the evidence. At the time, Dreeben replied, the government's policy was to comply with Brady but to do no more. Todya, under policies adopted in 2006, prosecutors are instructed, according to Dreeben, to "go above and beyond Brady and disclose information that a defendant might use even if it is not [required]."
      The evidence of other witnesses in the case surfaced only in 2001 through doubts raised in a story by a Washington Post reporter, Patrice Gaines, and work by researchers with the Mid-Atlantic Innocence Project. Turner and Overton have now been arguing in court for more than a decade to try to reopen their case. A well-regarded D.C. Superior Court judge, Frederick Weisberg, reaffirmed the convictions after the 2012 hearing; the D.C. Court of Appeals upheld his ruling in an exhaustive, 94-page opinion in June 2015.
      Government lawyers routinely cite the importance of finality in urging appellate courts to spurn defendants' post-conviction petitions. Supreme Court handicappers are forecasting a ruling to uphold these convictions. In this painful reminder of a brutal killing, however, the government itself is to blame for the doubts cast on a hard-won verdict so long ago.

Sunday, March 26, 2017

Gorsuch Unharmed, but His Silence 'Speaks Volumes'

      Supreme Court nominee Neil Gorsuch must have had the Hippocratic oath firmly in mind as he underwent more than 20 hours of questioning from senators during his confirmation hearing last week. "First, do no harm," the ancient Greek physician Hippocrates prescribed for medical practitioners.
      Given the Republicans' 52-48 majority in the Senate, Gorsuch had a partly clear path to confirmation, but he faced and largely avoided two risks. He needed to avoid giving the chamber's Democratic minority evidence of out-of-the-mainstream legal views to justify a filibuster. He needed to make it hard for red-state Democrats to support any vote-blocking parliamentary tactic or for blue-state Republicans to break party ranks in deference to their moderate suburban constituents.
      Democrats tried but succeeded no more than part way to use Gorsuch's record in 10 years on the federal appeals court in Denver to prove him to be a doctrinaire conservative and indifferent to interests of workers or consumers, reproductive freedom, or LGBT rights. It can never be known whether they would have done better by focusing more on questions than on speeches with their allotted time, but the National Law Journal end-of-hearing headline said it all: Gorsuch emerged "unscathed."
      Gorsuch ducked the Democrats' questions by sticking with a mantra that he was a judge, not a legislator, committed to ruling in every case on the basis of law and facts, not personal opinion. He promised to faithfully follow precedent  except when "the law of precedent" allows departures or reconsideration. And he skillfully used the power of precedent as a shield against questions about his own legal views .
      Gorsuch demurred when asked whether her considers himself an "originalist," as he was described by any number of Republican senators and some of his supporters who appeared later on the fourth and final day of the hearings. The term "has different meanings" for different people, Gorsuch said in begging off. The Democrats tried but failed to get Gorsuch to admit that originalism is guesswork at best and prevents the adaptation of the Constitution to meet present-day legal issues.
      On a different tack, Democrats tried to get Gorsuch to give his personal evaluation of Supreme Court precedents, but he refused except for one. The landmark school desegregation decision in Brown v. Board of Education was "a shining moment" in Supreme Court history, Gorsuch said. But on other decisions Gorsuch said that giving his own opinion would be "an act of hubris" and would carry no weight in any event.
      The abortion-rights decision in Roe v. Wade was among the precedents Gorsuch promised to follow but declined to endorse. Gorsuch and several Republican senators justified the nominee's reticence by citing what they called the Ginsburg rule, drawn from Justice Ruth Bader Ginsburg's confirmation in 1993. Ginsburg had promised "no hints, no forecasts, no previews." Unlike Gorsuch, however, Ginsburg in 1993 had not hesitated to embrace Roe v. Wade as protecting a right "central to a woman's life."
      Democrats voiced their frustration with Gorsuch's reticence. "I don't buy that," Illinois' Richard Durbin chided the nominee at one point. Later, Connecticut's Richard Blumenthal told Gorsuch, "Your silence speaks volume."
      Blumenthal pressed Gorsuch especially hard to try to find out what he knew about the $10 million campaign being waged in support of his confirmation. Gorsuch insisted he did not know who was paying for the TV ads being broadcast mostly in states with Democratic senators. Gorsuch told Blumenthal that Congress could decide whether to require more disclosure of donors in such campaigns and insisted that Congress had "ample authority" to legislate in the area. But he acknowledged only under questioning that he had suggested, in an opinion striking down an unusual Colorado law, that limits on campaign contributions should be subject to stricter constitutional scrutiny than current Supreme Court precedents require.
      On LGBT rights, Gorsuch appeared to accept the marriage equality ruling in Obergefell as precedent and generally to acknowledge that gays and lesbians are encompassed within the Fourteenth Amendment's Equal Protection Clause. But, perhaps because of imprecision in the questioning, Gorsuch never addressed whether he would find sexual orientation and gender identity to be a protected characteristic for equal protection purposes or whether religious beliefs could be invoked to justify discrimination against LGBT individuals.
      On the latter issue, the testimony from opposing advocates indicated they think they know Gorsuch's mind. Hannah Smith, a senior counsel with the religious-liberty litigating Becket Fund, praised Gorsuch's support on those issues, while Sarah Warbelow of the Human Rights Campaign said that Gorsuch's record indicated "a level of indifference to the LGBT community."
      By the end of the hearing, South Carolina Republican Lindsey Graham had lost whatever patience he had allowed the Democrats. The prospect loomed that Democrats would stick together in preventing the 60-vote majority needed under current Senate rules to bring the nomination to a vote on the floor. Graham, who underlined his own votes in favor of confirming the Obama-nominated justices Sonia Sotomayor and Elena Kagan, said that it was unclear that Democrats would back any Republican nominee for the court.
      Democrat Durbin was right in saying at the outset that any Republican complaints about partisanship "ring hollow" after the refusal last year to consider Obama's nominee for the seat, Merrick Garland. Gorsuch strived to keep himself out of the partisan bickering, disclaiming the labeling of "Republican judges" and "Democratic judges." But the partisan lines remain sharply drawn as the committee moves toward the vote to send the nomination to the floor.