• March 17, 2016
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    SCOTUS’s decision last week in Wearry v. Cain has provided us with plenty of thought-provoking material, ranging from the Louisiana judiciary’s failure to comply with Brady to the possibility that the opinion may influence the proceedings in Adnan Syed’s post-conviction case. The case may be most notable, however, for raising a critical and lingering question regarding prosecutors’ Brady behavior: Do Supreme Court justices understand how prosecutors actually decide whether to disclose exculpatory evidence to criminal defendants? Given that individuals’ constitutional due process rights are at stake, this question goes to the heart of how Supreme Court opinions actually play out in the real world.

    Unfortunately, the few signals the justices emit suggest that they may not realize the import of their decisions when it comes to prosecutorial accountability. Under Brady, a court must grant the defendant a new trial where he has proven: (1) suppression—that the State actually failed to turn over the information at issue; (2) favorability—that the information would have helped the defendant; and (3) materiality (also known as prejudice)—that, had it been disclosed before the trial, there was a reasonable probability the information would have had some effect on the case’s outcome. The Supreme Court has held that a defendant must prevail on all three issues to establish a due process violation occurred. In its words, “showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more . . . .” In short, unless a defendant proves prejudice, the Court does not label the State’s conduct a constitutional violation.

    Given that the Court’s Brady jurisprudence provides guidance about what is and what is not a constitutional violation, one might expect the justices to realize that prosecutors necessarily rely on that jurisprudence to inform their decision making processes. Indeed, the Court itself has observed in Connick v. Thompson that “Prosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain.” Yet, if that’s the case, then it is odd that several sitting justices have expressed surprise about what prosecutors tell them they do in deciding whether to disclose evidence to the defendant before trial.

  • March 17, 2016
    Guest Post

    by Jim Thompson

    Leading progressive groups have shown broad support for President Obama’s nomination of Merrick B. Garland to the Supreme Court, reports Niraj Chokshi at The Washington Post, quoting ACS President Caroline Fredrickson who states, “His credentials cannot be questioned, he is a person of integrity and he would bring an understanding of how the world works to the nation’s highest court.”

    In The New York Times, ACS Board member Linda Greenhouse blasts the obstructionist tactics of senate Republicans and invites “another Bork battle,” noting that Robert Bork at least received public hearings.

    In the Huffington Post, ACS Board member Adam Winkler lauds Chief Judge Garland as an excellent choice to fill Justice Scalia’s vacant Supreme Court seat.

    Polls show “most Americans want hearings and a vote on a Supreme Court nominee,” says ACS Board member Erwin Chemerinsky on CNN.

    Michael Gerhardt, co-faculty advisor to the UNC Law student chapter, wrote in Slate that by nominating Merrick Garland, President Obama “showed the nation what a merit appointment looks like.”

  • March 15, 2016
    Guest Post

    by Verna Williams, Judge Joseph P. Kinneary Professor of Law, University of Cincinnati College of Law

    For those concerned about the Senate’s unprecedented power grab in refusing to consider anyone President Obama nominates to the Supreme Court, Iowa Senator Chuck Grassley has an answer: The Judiciary Committee is merely following the Biden Rules.

    That’s what he cited twice in the Committee’s first meeting since Justice Scalia’s sudden death last month. Mr. Grassley’s casual reference suggested that, rather than engaging in unparalleled obstructionism, the Republican Senators were engaging in one of their esteemed traditions, like eating bean soup in the Capitol cafeteria. But, the text of Mr. Biden’s 1992 speech on the Senate floor suggests otherwise.

    It was late June. The nation and Senate were recovering from bruising hearings to confirm Justice Thomas. Re-examining the Judiciary Committee’s handling of Professor Anita Hill’s allegations of sexual harassment, Mr. Biden explained that “many questioned whether we took Professor Hill’s charges seriously, investigated them thoroughly, and disseminated them appropriately.” While Mr. Biden concluded that he and his colleagues had done their best, given Hill’s desires for confidentiality, he nonetheless believed a new set of rules should apply going forward. He announced that the Committee would:

    • Advise sources that any information the Committee obtained would be placed in a nominee’s FBI file and be available on a confidential basis to the Senate before voting on the nomination;
    • Hold closed, confidential sessions about all Supreme Court nominees; and
    • Meet routinely with nominees in closed session, on the record, and under oath about any investigative charges.

    Throughout the process, Senators would be able to review any documents, reports, or transcripts in a manner that protected confidentiality. Those are the Biden Rules, and they appear toward the end of his speech.

  • March 14, 2016
    Guest Post

    by B. Jessie Hill, Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

    On March 4—just two days after the oral argument in Whole Woman’s Health v. Hellerstedt, the challenge to Texas’s abortion restrictions—the Supreme Court jumped into the abortion fray once again. This time, it vacated the Fifth Circuit’s stay of a Louisiana district court’s decision holding an admitting-privileges law—which was functionally identical to the one at issue in Whole Woman’s Health—facially unconstitutional. Thus, in June Medical Servs. v. Gee, the Supreme Court again blocked a state’s requirement that physicians performing abortions possess hospital admitting privileges while the issue gets hashed out before the Court this Term.

    It is hard to know what to make of the Supreme Court’s terse order, which briefly references the similar stay order in Whole Woman’s Health and contains no explanation. Indeed, although the order mentions that Justice Thomas dissented from the Court’s decision to keep the Louisiana law enjoined, we can’t even know for certain the actual vote count.

    What is surprising about June Medical, however, is not so much that the Supreme Court stepped into the Louisiana case, but that the Fifth Circuit chose to stay the Louisiana decision in the first place despite the fact that the issue was already pending in the Supreme Court. The Fifth Circuit opinion noted in passing, in footnotes, that Whole Woman’s Health was currently pending in the Supreme Court but elliptically and puzzlingly insisted that that case did not raise the same legal issues. It also declined to see any sort of signal to the Fifth Circuit in the Supreme Court’s earlier stay of the Texas admitting-privileges requirement now pending before the Court. Against this backdrop, the Fifth Circuit’s choice to stay the district court’s injunction, based on its preliminary evaluation of the merits of the undue burden claim, looks almost defiant.

    It is true, after all, that abortion clinics rarely have the wherewithal to reopen once they are forced to close for a period of time: Lease payments cannot be made without income from procedures, so equipment and buildings have to be surrendered, physicians and employees find other employment, and the costs of reopening are often prohibitive. According to the plaintiffs in June Medical, the entire state of Louisiana could be left with only one abortion clinic if the law took effect. The Fifth Circuit’s stay, if not vacated by the Court, could thus have had a lasting impact on abortion access in Louisiana, whatever the Court’s ultimate decision on the validity of such admitting-privileges requirements.

  • March 14, 2016

    by Jim Thompson

    In the Huffington Post, former ACS Board member Geoffrey Stone, current co-faculty advisor to the University of Chicago Law School Student Chapter, highlights a letter he co-signed to President Obama denouncing the unprecedented obstructionism displayed by Republican senators with regard to the Supreme Court vacancy.

    Kenneth Jost at Jost on Justice blasts partisan gridlock in the Senate that threatens to undermine the effectiveness of the nation’s judicial system, writing, “Some of the Republican senators backing the planned obstruction of President Obama’s eventual nominee for the Supreme Court are now conceding that the tactic is pure politics with barely an ounce of historical precedent or constitutional principle to justify it.”

    In the Huffington Post, Joel K. Goldstein, faculty advisor to the ACS student chapter at Saint Louis University School of Law, urges the Senate to allow for a normal Supreme Court confirmation process because it “allows the American people to learn about and assess the president's nominee.”

    The U.S. Department of Justice on Monday called on state judges to discontinue unconstitutional policies that “have locked poor people in a cycle of fines, debt and jail,” reports Matt Apuzzo at The New York Times.