Access to Justice

  • June 20, 2013

    by Jeremy Leaming

    During her featured remarks at the 2013 ACS National Convention, Sen. Elizabeth Warren (D-Mass.) ripped the federal bench, and the Supreme Court in particular, for a pro-corporate trend. Today the high court issued an opinion in American Express Company v. Italian Colors Restaurant that buttresses Warren’s sharp critique.

    In the American Express case, the Court’s right-wing justices found that the Federal Arbitration Act (FAA) blocks courts from invalidating contractual waivers of class arbitration, another blow to individuals hoping to band together to hold corporations accountable for malfeasance. A group of merchants who accept American Express cards had lodged a class action against the financial giant arguing that its rate on accepting American Express cards violated federal antitrust laws. The high court led by Justice Antonin Scalia, however, essentially held that a clause in the American Express agreement barring class action arbitration trumped antitrust laws.

    Scalia maintained that the FAA was enacted by Congress as a “response to widespread judicial hostility to arbitration” and that its text “reflects the overarching principle that arbitration is a matter of contract. There is no ‘contrary congressional command’ that “requires us to reject the waiver of class arbitration here,” Scalia wrote.

    Scalia notes the merchants argued that forcing them to litigate individually would prove too costly, but concluded “the antitrust laws do not guarantee an affordable path to the vindication of every claim.” Later in the opinion, Scalia writes, “But the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.”

    As Media Matters’ Senior Counsel & Director of its Courts Matter project Lara Schwartz noted, “In other words, Scalia essentially was saying it’s OK if the rules make it impossible to win as long as they don’t make it impossible to play.

    Justice Elena Kagan lodged a dissent, joined by Justices Ruth Bader Ginsburg and Stephen Breyer. (Justice Sonia Sotomayor recused herself in this case). Kagan wrote, that the “owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws.” But that same agreement with Amex barred the restaurateur from bringing the claim.

    “And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.”

  • June 18, 2013
    Guest Post

    by G. Ben Cohen. Mr. Cohen is OF COUNSEL at The Capital Appeals Project. Cohen was VISITING LITIGATION COUNSEL at the Charles Hamilton Houston Institute in 2011.

    On April 29, 2013, after briefing and oral argument on whether the State’s failure to fund counsel for a defendant should be weighed against the state for speedy trial purposes, five Justices of the U.S. Supreme Court turned a blind eye in Boyer v. Louisiana to the funding crisis in Louisiana’s public defender system and declined to address the seven year wait between Jonathan Boyer’s arrest and trial. On Boyer’s heels comes another case underscoring the unconscionable harms of the Bayou State’s decimated criminal justice system – which has depended on traffic tickets to fund the defense function.

    On June 20, 2013 the Supreme Court will decide whether to grant certiorari in Michael Garcia v. Louisiana.  The public defender office could not afford to adequately provide separate capital representation to Mr. Garcia and his two co-defendants.  By law, however, the Public Defender could not represent all three defendants himself.  Even the prosecutor informed the trial court at Mr. Garcia’s very first hearing that the multiple representation might pose a conflict of interest, but the judge left the Public Defender to work it out. 

    The Public Defender assigned all the capitally-certified attorneys from his office, including himself, to represent Mr. Garcia, and assigned lawyers who were not certified to represent defendants facing the death penalty to represent the two co-defendants. This refusal to hire outside counsel saved the public defender office from going bankrupt.  It also prevented the state from seeking death against the two other defendants.  But it meant that Mr. Garcia’s lawyer chose him as the only defendant against whom the State could seek the death penalty.

  • May 30, 2013
    Guest Post

    by Brandon L. Garrett and Lee Kovarsky. Garrett is a professor of law at the University of Virginia School of Law and Kovarsky is an assistant professor of law at the University of Maryland School of Law. They are co-authors of a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, which was just published by Foundation Press.

    This week, the Supreme Court handed down habeas decisions on two different gateways through procedural obstacles to federal habeas review. The first decision involved an “innocence” gateway. In McQuiggan v. Perkins, the Court held that, despite a constitutional claim’s untimeliness, a federal court could reach the claim’s merit if there exists a reasonable chance that the inmate was wrongfully convicted. The second gateway is a “bad lawyering” gateway. In Trevino v. Thaler, the Court held that inadequate state post-conviction representation can excuse the default of a trial-phase ineffective-assistance-of-counsel (IAC) claim if, as a practical matter, a state post-conviction proceeding was the only forum for a state inmate to raise it. In each case, the Court avoided mechanical readings of statutes or precedents in favor of interpretations that reflect the byzantine reality of modern habeas corpus review.

    In the “innocence gateway” case, Floyd Perkins was serving a life sentence in Michigan. Perkins argued that he had new evidence proving his innocence: witnesses would say that another man was the killer, that the other man had bragged he had done it, and that the other man was trying to wash blood-stained clothes the day after the killing. Perkins had been convicted largely based on testimony of the other man, as well as two others who said they overheard Perkins admit his guilt. Perkins argued that his new evidence of innocence entitled him to merits review of his IAC claim, which was untimely under the one-year federal limitations period. He could not, however, show that he had acted with “due diligence” in bringing this evidence to the attention of the judge. He argued that new evidence of innocence should excuse the untimely filing, notwithstanding the technical defects in the petition.

  • May 6, 2013

    by John Schachter

    Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Times should resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”

    The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”

    Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.

    This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog. 

  • May 3, 2013

    by E. Sebastian Arduengo

    Last month, U.S. Senator Patrick Leahy (D–Vt.) reintroduced the Gideon’s Promise Act of 2013 to address the problems plaguing the indigent defense system which have left the promise of Gideon v. Wainwright increasingly hollow for the poorest people in our society. The act would require states to use existing federal funds to improve the administration of criminal justice in a comprehensive, strategic way, and to collaborate with the Department of Justice and local authorities to devise a plan for adequately addressing indigent defense needs. If states refuse to comply then the Department of Jusice would have the power to take them to court to make sure that they are meeting their constitutional obligations.

    But Leahy’s bill doesn’t go nearly far enough to address budget-related failings in our criminal justice system. With sequestration at the federal level, and years of budget cutbacks at the state level, we’re now to the point where years of political indifference to funding the judicial branch has affected the basic operation of the courts and the services that we expect them to provide.

    This is a crisis that’s reached such endemic proportions that Chief Justice John Roberts made it a focus of last year’s state of the judiciary report, where he made the case that the federal courts were already being as cost-effective as they could possibly be, and warned that “significant and prolonged shortfall[s] in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

    That scenario is already playing out in state and local courts across the country.

    The effect of over a billion dollars of cuts in the last four years has been nothing short of devastating to the Los Angeles Superior Court system. Court officials plan to shutter a dozen courthouses and make an indeterminate number of staff layoffs. The only thing these courthouses will be used for now is for collecting traffic fines and administrative functions. The actual business of dispensing justice will be triaged at the remaining courthouses in the county, “where certain types of cases are heard at each remaining courthouse.”