• February 29, 2016
    Guest Post

    by Jarrett Adams, J.D., exoneree, advocate, and co-founder of Life After Justice. Follow him on Twitter (@JarrettFocused) and Facebook.

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    Prosecutors hold the key to equitable charges against criminal defendants. They decide when to bring a case and when to drop charges, how and whether to prosecute, and what level of charges and sentences to pursue. And, in our current system of criminal injustice, they should be scrutinized for their choices.

    As Suffolk County Assistant District Attorney Adam Foss described in a recent TED Talk, we rarely talk about the prosecutor when we talk about criminal justice reform. Rather, we complain about police, sentencing laws, and prison. But, as Foss further explains, prosecutorial power is “virtually boundless.” And for years this discretion of prosecutorial power has resulted in a disgusting amount of poor black and brown men, and increasingly women, going to prison with unconscionable prison sentences.

    For example, in 1998, I was 17 years old when I–along with two other black teenagers from Chicago, Dimitri Henley and Rovaughn Hill–was falsely accused of sexually assaulting a white woman after attending a college party. Unfortunately, this case was no different than the cases that often arise on college campuses. The only difference, which was the biggest difference, was the race of the accused and the accuser. A month after this party, the prosecutor decided to bring sexual assault charges based solely off an inconsistent and unbelievable accusation. This allegation was not only false, it was supported by nothing and completely undermined by statements from alibi witnesses that both the police and the prosecutor were aware of from the very beginning.

    Henley and I were unable to afford an attorney, so the court appointed us one while Hill’s family put up their house to secure a paid attorney. The case was ultimately severed, and Henley and I were convicted at trial after two ill-prepared court appointed attorneys failed to investigate the case or call any witnesses. Meanwhile, Hill’s attorney hired an investigator and prepared for trial by locating a crucial alibi witness whom the police had initially interviewed but failed to turn over his full statement.

    After the discovery of this witness’s statement, the prosecutor correctly used his discretion and filed a motion dismissing all charges against Hill. At the time the charges were dismissed against Hill, Henley and I had been incarcerated for close to a year and fully expected for the prosecutor to file a motion to dismiss our case or at the least join in a motion for a new trial to present the evidence that supported our innocence. After all, this was the same case, same false accusation, and ultimately the same alibi witness that would free both Henley and I almost a decade later.

  • February 26, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.

    The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.

    The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.

    The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).

    Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.

  • February 26, 2016

    by Jim Thompson

    In The New York Times, Nicholas Kristof lambastes conservative policymakers’ reckless disregard for their constitutionally-established roles in the judicial confirmation process. USA Today’s Editorial Board also denounces senators who have prematurely vowed to block any Supreme Court nominee submitted by President Obama, stating, “This outright obstructionism represents a new low in this long-running conflict.”

    Kimberly Robinson at Bloomberg BNA explains how the motives of Texas legislators will factor into Whole Woman’s Health v. Hellerstedt, quoting ACS President Caroline Fredrickson who says their real mission is to “make abortion more costly and stigmatized.”

    In a surprising move, Douglas Laycock–who argued against the ACA’s birth control mandate at last year’s ACS National Convention–opposed plaintiffs’ arguments in Zubik v. Burwell, writes Sarah Posner at The American Prospect. Laycock said, “Religious liberty can be endangered by exaggerated claims and overreaching as well as by government intransigence and judicial under-enforcement.”

    Reuben J. Garcia, faculty advisor to the ACS Student Chapter at the University of Nevada, Las Vegas, discusses the current Supreme Court vacancy on KNPB.

    Ted Olson, the prominent lawyer representing Apple in its battle with the FBI, says there is no law requiring the company to redesign iPhone security features to allow the government access to the San Bernardino shooter’s cellphone, reports Camila Domonoske at NPR.

  • February 25, 2016
    Guest Post

    by Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and Joshua Matz, associate at Robbins Russell LLP and former law clerk to Justice Anthony Kennedy from 2014 to 2015. Together, Tribe and Matz wrote Uncertain Justice: The Roberts Court and the Constitution.

    In 1901, Mr. Dooley—a popular, opinionated comic strip character—explained that “th’ Supreme Coort follows th’ election returns.”  Dooley’s view was cynical, political, and slightly unnerving. It was also right, in important respects. Elections matter, especially in polarized times. Nowadays, Democrats and Republicans can’t even agree on which election matters, let alone on judicial philosophy or temperament. A Justice selected by Hillary Clinton or Bernie Sanders would, beyond doubt, strive toward a very different future from one selected by Donald Trump, Marco Rubio, or Ted Cruz.

    But as we explain in our book, Uncertain Justice: The Roberts Court and the Constitution, no Justice—not a single one—is invariably liberal or conservative. Furthermore, a Justice’s influence on the Court can take many forms, not all of them reducible to vote tallies. This was true of Justice Antonin Scalia and it will be true of his successor. Thus, to better understand what issues lurk on the horizon for any new Justice, it is helpful to see where Scalia stuck to familiar left-right scripts and where he tossed those scripts aside.

    *          *          *

    Selected by President Ronald Reagan to be a white knight for judicial conservatism, Scalia largely fulfilled Reagan’s expectations. Waging war on liberalism, Scalia championed the right’s view of gun rights, abortion, campaign finance, voting rights, gay rights, capital punishment, gender equality, racial equality, access to justice, separation of church and state, and federalism.  In law schools and op-eds, his name grew synonymous with rigorous, principled conservatism. Even as divergent strands emerged within conservative ranks, Scalia urged the Court to move further and faster rightward—at times, blasting his conservative colleagues for their hesitation. Warren Court rules had to be ripped asunder, not whittled and narrowed. As a rock star of the right, its patron saint and favored son, Scalia made full use of his powers to remake the Nation in a more conservative light.    

    Within years of arriving at the Court, Scalia had become the left’s black-robed bête noir. His unabashed conservative views—not to mention his slashing rhetoric—offended many liberals, who saw in Scalia’s judgecraft a threat to core constitutional values. Moreover, the frequent alignment of Scalia’s policy preferences with his judicial votes led some to doubt the supposed virtues of his originalist and textualist methods. Charges of hypocrisy and incivility piled up, even as conservatives rallied to the man who finally spoke their truths. 

    Scalia is often typecast as the conservative Justice—a Republican appointee straight from central casting. While true in many areas of law, this view doesn’t hold water in a few important contexts. In those fields, Scalia upset the standard dichotomy. Given that many of these issues do not evoke uniform liberal/conservative splits, their future is especially uncertain.

  • February 25, 2016
    Guest Post

    by Bruce A. Green, Louis Stein Chair, Fordham Law School; director of the Louis Stein Center for Law and Ethics

    Whatever the merits of his statement that a judge does no more than “call balls and strikes,” Chief Justice John Roberts' famous confirmation-hearing declaration spoke to a fundamental truth about the need for impartiality in our justice system. And just as no baseball player, or fan of America’s national pastime, would consider it fair for the opposing manager to come off the bench in the middle of the game to become the home-plate umpire, no criminal defendant, or member of the public, would believe that the man who initiated and managed a prosecution could later be a fair judge in the very same case.

    Fairness and impartiality are longstanding, bedrock principles of our courts. A judge who is prejudiced or biased cannot fulfill his or her responsibilities, or the expectations of the public, without violating these principles. Even the appearance that the judge is biased erodes the public’s confidence that court proceedings are fair.

    On Monday, the U.S. Supreme Court will hear arguments about judicial bias in Williams v. Pennsylvania. The question is whether the chief prosecutor in a death penalty case may later serve in the same case as the chief judge of the court responsible for deciding an appeal in the case and, in the process, reviewing the conduct of the lawyers whom he previously supervised.

    In this case, while serving as the elected Philadelphia District Attorney, Ronald Castille authorized his office to seek the death penalty against Terrance Williams and oversaw the assistant prosecutor who tried the case. Following his conviction, Mr. Williams argued that the trial had been tainted by the prosecutor’s serious misconduct. A lower court judge, herself a former a prosecutor, agreed. She found that the Philadelphia District Attorney’s Office hid evidence that would have been crucial to the jurors’ life or death decision. (In a nutshell, the hidden evidence was that the murder victim had sexually abused Mr. Williams as a minor.)

    By the time the case arrived at the Pennsylvania Supreme Court, Ronald Castille had left the prosecutors’ office to become the state’s Chief Justice. The state’s high court, over which he now presided, was asked to review the fairness of the very death penalty prosecution that he had authorized and overseen. In particular, the Court was asked to decide whether, as the lower court judge found, District Attorney Castille’s assistant had engaged in serious prosecutorial wrongdoing on his watch.