Tuesday round-up

Tuesday round-upAmy Howe reports for this blog that last night the Supreme Court “gave the federal government a partial victory … in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census” when,  “[w]ithout any publicly recorded objections, the justices kept on hold plans to […]

The post Tuesday round-up appeared first on SCOTUSblog.

Tuesday round-up

Amy Howe reports for this blog that last night the Supreme Court “gave the federal government a partial victory … in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census” when,  “[w]ithout any publicly recorded objections, the justices kept on hold plans to depose Wilbur Ross, the Secretary of Commerce, about the decision.” At The Washington Post, Robert Barnes reports that “[t]he court’s action makes it unlikely that Ross will have to give a deposition in the case but allows the suit to go forward, at least temporarily.” Brent Kendall reports for The Wall Street Journal that the justices “did leave open the challengers’ ability to gather information from elsewhere in the Trump administration, including by questioning Justice Department lawyer John Gore about his connection to the citizenship question.” Additional coverage comes from Richard Wolf at USA Today, Mark Sherman at the Associated Press, Stephen Dinan for The Washington Times, and Adam Liptak for The New York Times, who reports that “Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, said the Supreme Court should have gone further, shutting down all pretrial fact-gathering in the census case.”

Briefly:

  • At the Associated Press, Jessica Gresko reports that retired Justice “Sandra Day O’Connor, the first woman on the Supreme Court, has stepped back from public life.”
  • Amy Howe reports for this blog, in a post first published at Howe on the Court, that “[t]he Supreme Court has once again been asked to weigh in on the case of a baker who refused to make a cake for a same-sex marriage celebration because doing so would violate the baker’s religious beliefs.”
  • In an op-ed for The Hill, Mark Miller urges the justices to review Marquette County Road Commission v. EPA, a which asks whether the EPA’s objections to a county road-project proposal are reviewable in court.
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Patrick Moran maintain that the court should grant cert in  Bernard Parish v. United States, a case involving flood damage allegedly resulting from the government’s failure to protect the banks of a canal in Louisiana from erosion, and make clear that “when the government, whether through action or inaction, takes private property, it has a distinct, well-established responsibility to compensate landowners.”
  • At the Harvard Law Review Blog, Richard Hasen worries that in North Carolina partisan-gerrymandering case Rucho v. Common Cause, “[t]he Court might do more than simply bar the creation of redistricting commissions via initiative”: “It could stifle the use of state constitutional law to rein in partisan gerrymandering.”
  • At SCOTUS OA, Tonja Jacobi and Matthew Sag explain that “[i]f you wanted to know which way Justice Gorsuch was going to vote in the 2017 Term, you could have placed your bets with 86% accuracy by observing just one statistic from oral argument—how many times Gorsuch interrupted each side.” 

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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from http://www.scotusblog.com

Murder on the Crow Indian Reservation

     The Crow Indian Reservation, 3,500 square miles covering parts of Big Horn, Yellowstone, and Treasure Counties in southern Montana, is home to 8,000 tribe members. Geographically, it is America’s fifth largest Indian enclave. In the…

     The Crow Indian Reservation, 3,500 square miles covering parts of Big Horn, Yellowstone, and Treasure Counties in southern Montana, is home to 8,000 tribe members. Geographically, it is America's fifth largest Indian enclave. In these jurisdictions serious crimes are federal offenses principally investigated by the FBI. Tribal police handle everything else. In many of these nations within a nation, rates of unemployment, alcoholism, and crime are significantly higher than the national average.

     Mary Agnes Leider, the mother of a three-year-old girl named Tannielle, lived with her mother in the Big Horn County town of St. Xavier on the Crow Reservation. On December 3, 2012, at four in the morning, she and her two brothers, after a night of drinking in Hardin, Montana, were on their way home in a Dodge pickup driven by her brother Wally. Lieder and her brothers had consumed a quart of gin and sixty beers. Mary, with her daughter sitting on her lap, sat in the front while her brother Arland rode in the back seat.

     Wally was driving 50 miles-per-hour on Highway 313 south of Hardin when Mary opened the truck door and tossed Tannielle out of the vehicle. Wally jammed on the brakes and ran back to find the child. He found her lying on the highway with blood gushing from of the back of her head. Because the little girl didn't seem to be breathing, Wally assumed she was dead.

     When Wally returned to the vehicle with Tannielle's unresponsive body in his arms, he told his sister and brother to get out of the truck. With his niece lying on the back seat, Wally drove toward St. Xavier with Mary and Orland sitting on the side of the road crying.

     Georgina Denny, the siblings' mother, was driving north on Highway 313 in search of her children and granddaughter when she passed Wally going the other direction. After both vehicles came to a stop, Georgina saw Tannielle and learned from Wally how she had died.

     A deputy with the Big Horn Sheriff's Office found Mary and Arland still sitting along Highway 313 crying uncontrollably. Leider told the officer that she and Wally had been arguing over how fast he was driving. (He was, in fact, driving under the speed limit.) According to Mary, when Wally stopped the vehicle abruptly, she banged her head of the dashboard. When she came to, Tannielle was gone. Mary said that's all she could remember. While the deputy spoke to her, police officers were questioning Wally and Georgina.

     Doctors at the Hardin Memorial Hospital pronounced Tannielle dead on arrival. At the same hospital, an FBI agent arranged to have samples taken of Mary's Leider's blood. (Her blood-alcohol level measured 0.24, three times the Montana threshold for driving under the influence.)

     While being questioned at the hospital, Mary Leider alternated between her story that Tannielle had died in some kind of traffic accident, and "I killed my baby."

     According to the Montana State Medical Examiner's Office, Tannielle had died from severe head injuries. The medical examiner classified her death as homicide.

     The United States Attorney for the state of Montana charged Mary Agnes Leider with second-degree murder, a crime that carried a maximum sentence of life in prison. The federal magistrate denied the suspect's bond and appointed a public defender to represent her.

     On July 24, 2013, in a Billings, Montana courtroom, Mary Leider pleaded guilty to the second-degree murder charge.

     On October 21, 3013, United States District Judge Donald Molloy, before imposing his sentence, said that in his eighteen years on the bench he had never encountered such depravity in a criminal case. The judge said the details of the offense made him nauseous. Because the judge wanted to keep the defendant from doing further harm, he sentenced her to twenty-one years in prison. (Leider's attorney had asked for a fifteen-year sentence.) Judge Molloy also said he wanted to send a message about the dangers of alcohol abuse on the Crow Reservation.

     Mary Leider, after receiving her sentence, said, "Words can't explain anything. Nothing can bring her back and I have to live with that."

     

from http://jimfishertruecrime.blogspot.com/

The Juan Rivera False Murder Confession

     Years ago I wrote a book about two youngsters who in 1956 and 1958 confessed falsely to Pittsburgh area murders they didn’t commit. (Fall Guys: False Confessions and the Politics of Murder, 1996) In those days people belie…

     Years ago I wrote a book about two youngsters who in 1956 and 1958 confessed falsely to Pittsburgh area murders they didn't commit. (Fall Guys: False Confessions and the Politics of Murder, 1996) In those days people believed that short of physical abuse, innocent persons would not confess to crimes they didn't commit. Although we know better now, innocent people continue to confess because the police either don't know how to properly interrogate, or they know how to elicit false confessions.

     Anyone, under the right conditions, can falsely confess, but those most prone to this are young people, the mentally slow, and arrestees terrified of the police. False confessors often think that the investigators will eventually catch the real criminal and everything will be staightened out. These people obviously don't know much about law enforcement and the criminal justice system.

     An interrogator more interested in getting at the truth than acquiring a confesson should suspect that something is wrong when the physical evidence contradicts the confessor's account of the crime. Factual inconsistency within the confession is another sign of trouble. To avoid false confessions, interrogators should  be careful not to feed details of the crime to suspects and to ask open ended questions. Contradictions in confessions should be resolved before the written statements are signed. To reduce the risk of coercion, prolonged questioning should be avoided, and it's best that only one officer conduct the interrogation in a calm and professional manner. Ideally, an interrogator should only question a suspect that he believes, based on solid evidence, is guilty of the crime at hand. Interrogation techniques should not be used on weak suspects.

     All interrogations should be video-taped (In some states this is required by law.) and no conviction should be based solely on the strength of a confession.

The Juan Rivera Case

     On the night of August 17, 1992, someone raped and stabbed to death an 11-year-old girl named Holly Staker who was baby-sitting two young children in Waukegan, Illinois. The Lake County police questioned 200 people, including a 19-year-old with a ninth-grade education named Juan Rivera. Rivera said he had attended a party that night not far from the murder house. At the party he had noticed a man who had behaved strangely. Weeks later, on October 27, 1992, the police brought Rivera back to the station for a second interview. Rivera told the same story, but the interrogators didn't believe him.

     Following a psychologically brutal, nonstop 24-hour interrogation, Rivera broke down and confessed to raping and murdering Holly Staker. When asked why his fingerprints were not at the scene of the crime, Rivera provided a helpful explanation. After stabbing the girl 27 times, then raping her, Rivera said he bashed in a door with a mop to simulate a break and entering. Before leaving the house, he removed his fingerprints by wiping off the mop handle with a towel. He then broke the murder knife and tossed the pieces in the victim's backyard.

     In 1993, a jury found Rivera guilty and sentenced him to life. In two subsequent trials, the last being in 2009, juries found him guilty again even though DNA testing in 2005 ruled him out as the depositor of the semen inside the victim's body. (The prosecutor wished this exonerating evidence away with the preposterous theory that the 11-year-old had had sex with another man just before being murdered by Rivera.) The fact Rivera had been convicted of such a serious crime without the benefit of physical evidence linking him to the crime scene or the murder weapon, reveals the power confessions have over juries.

     On December 10, 2011, an Illinois appellate court reversed Rivera's murder conviction. The judge also barred Lake County prosecutors from going after Rivera for the fourth time. A week later, the 39-year-old, after 19 years served at the Statesville Correctional Center near Joilet, walked out of prison. Because Rivera's interrogators manufactured a false confession, Holly Staker's killer has not been brought to justice.

from http://jimfishertruecrime.blogspot.com/

Opening a Serial Murder Investigation

A serial murder investigation is generally initiated by an agency or group of agencies following the identification of a series of related homicides….A serial murder investigation may be initiated as an extension of a current homicide investigation when a second unsolved murder or series of unsolved murders are linked to the original case. This linkage may be similarities in victims, crime scenes, attacks, geography, or any number of actions or situations which convince investigators that the homicides have been committed by a common killer.

Steven A. Egger, The Killers Among Us, 1998

A serial murder investigation is generally initiated by an agency or group of agencies following the identification of a series of related homicides….A serial murder investigation may be initiated as an extension of a current homicide investigation when a second unsolved murder or series of unsolved murders are linked to the original case. This linkage may be similarities in victims, crime scenes, attacks, geography, or any number of actions or situations which convince investigators that the homicides have been committed by a common killer.

Steven A. Egger, The Killers Among Us, 1998

from http://jimfishertruecrime.blogspot.com/

Justices block Ross deposition in census dispute

Justices block Ross deposition in census disputeThe Supreme Court gave the federal government a partial victory tonight in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census. Without any publicly recorded objections, the justices kept on hold plans to depose Wilbur Ross, the Secretary of Commerce, about the decision. […]

The post Justices block Ross deposition in census dispute appeared first on SCOTUSblog.

Justices block Ross deposition in census dispute

The Supreme Court gave the federal government a partial victory tonight in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census. Without any publicly recorded objections, the justices kept on hold plans to depose Wilbur Ross, the Secretary of Commerce, about the decision. And although the justices rejected the government’s request to block other discovery in the case – specifically, the deposition of John Gore, the acting head of the civil rights division of the Department of Justice, and additional discovery outside the administrative record for the decision – they hinted that the government might be able to get broader relief further down the road.

The challenge to the citizenship question was filed in a federal court in New York by a group of states, cities and counties. When he announced the decision to reinstate the citizenship question, which had been part of the census for much of the 19th century and part of the 20th century, Ross indicated that including a question about citizenship would help the Department of Justice to enforce federal voting rights laws. But the challengers contend that the question would skew the results of the census, because undocumented immigrants – fearing deportation – may be hesitant to respond.

Earlier this year, the trial court granted the challengers’ request to depose Ross and Gore, over the government’s objection that the decision to restore the citizenship question was “backed by a voluminous administrative record,” so that no inquiry into Ross’ personal motivations was necessary. With depositions scheduled for early October and a trial scheduled for early November, on October 9  Justice Ruth Bader Ginsburg – who fields emergency requests from the geographic area that includes New York – put the depositions on hold and ordered the challengers to respond by October 11.

Tonight the full court acted on the government’s request. First, the justices granted the government’s plea to block the deposition of Ross, relief for which the government needed at least five votes. There were no publicly recorded dissents from this part of tonight’s order, so there is no way to know whether all of the justices supported this outcome or whether some were opposed but opted not to announce that opposition.

Ross’ deposition will remain on hold at least until next Monday, October 29, at 4 p.m.; if the federal government files a brief seeking review of the district court’s ruling, the deposition will remain on hold until the justices rule on the new request for review and, if that request is granted, rule on the merits of the discovery dispute.

The justices rebuffed the government’s request to block the deposition of Gore and other discovery outside the administrative record. However, the justices made clear in tonight’s order that their denial of the relief would not prevent the government from addressing those issues in its brief seeking review of the district court’s ruling.

Justice Neil Gorsuch filed a separate opinion, which was joined by Justice Clarence Thomas. Gorsuch agreed with his colleagues that the Ross deposition should stay on hold, but he would have gone further and granted the government’s other requests as well. Gorsuch expressed skepticism about the challenge and the merits of the district court’s orders, describing them as “highly unusual, to say the least.” “Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification” – which, Gorsuch seemed to suggest, the challengers had not shown. Because allowing some discovery to go forward would impose a burden on the government without any real hardship for the challengers, Gorsuch continued, he “would take the next logical step and simply stay all extra-record discovery pending our review.” Indeed, he observed, if other discovery is allowed to go forward, the challengers could try to rush through discovery and a trial and then “oppose certiorari on the ground that their discovery dispute has become ‘moot.’”

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from http://www.scotusblog.com

Florence County Sheriff’s Office (SC)

Investigator Farrah Turner suffered fatal gunshot wounds when she and other investigators from the Florence County Sheriff’s Office arrived at a home to interview a suspect as part of a…

Investigator Farrah Turner suffered fatal gunshot wounds when she and other investigators from the Florence County Sheriff's Office arrived at a home to interview a suspect as part of a...

from https://www.odmp.org/

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Argument preview: How should courts decide if parties to an arbitration contract may aggregate their claims?

Argument preview: How should courts decide if parties to an arbitration contract may aggregate their claims?The law of individual arbitration clauses has been a recent hot topic both in the courts and among the public. That is in part because of one of last term’s blockbuster cases, Epic Systems Corp. v. Lewis, in which the Supreme Court held that individual arbitration clauses in employment contracts were consistent with the National […]

The post Argument preview: How should courts decide if parties to an arbitration contract may aggregate their claims? appeared first on SCOTUSblog.

Argument preview: How should courts decide if parties to an arbitration contract may aggregate their claims?

The law of individual arbitration clauses has been a recent hot topic both in the courts and among the public. That is in part because of one of last term’s blockbuster cases, Epic Systems Corp. v. Lewis, in which the Supreme Court held that individual arbitration clauses in employment contracts were consistent with the National Labor Relations Act, which protects employees’ ability to engage in collective action. Epic Systems was the most recent of a string of cases in which the court has characterized arbitration as a process that primarily takes place on a bilateral basis, rather than on a class or collective one. But the court has also emphasized that parties can vary their arbitration contracts to fit their circumstances, including by allowing for class or collective arbitration – a modification that few businesses likely to want to make, because research suggests that eliminating procedures for employees or consumers to bring their claims on an aggregated basis makes it less likely that those claims will be brought at all. In Lamps Plus Inc. v. Varela, the Supreme Court will decide whether the U.S. Court of Appeals for the 9th Circuit correctly held that an employer did consent to class arbitration when it included language in the arbitration contract that committed the parties to use arbitration “in lieu of any and all lawsuits or other civil legal proceedings,” specified that arbitral claims include those “that, in the absence of this Agreement, would have been available to the parties by law,” and authorized the arbitrator to “award any remedy allowed by applicable law.”

Frank Varela is an employee of Lamps Plus whose personal information was breached when another Lamps Plus employee fell for a phishing attack. After learning of the breach, Varela filed a class action in California federal court alleging that he and other employees had been injured by the exposure of their information, and the company moved to compel individual arbitration. The district court held, and the 9th Circuit affirmed by 2-1 vote, that the arbitration agreement could be read to authorize class arbitration, and that California contract law called for ambiguity on that point to be resolved against the contract’s drafter, Lamps Plus.

Before the Supreme Court can review that conclusion, there is a preliminary matter: Varela argues that the case should never been in the 9th Circuit, and now should not be in the Supreme Court, because the Federal Arbitration Act allows appeals from orders denying motions to compel arbitration, but directs that an appeal “may not be taken from an interlocutory order … directing arbitration to proceed.” Varela reasons that an order compelling class arbitration qualifies as an order directing arbitration to proceed, albeit not in Lamps Plus’ preferred manner. Lamps Plus responds that it may appeal the district court’s refusal to compel individual arbitration as an order “denying a petition … to order arbitration to proceed.” Alternatively, Lamps Plus argues that the district court’s order is “a final decision with respect to an arbitration,” as to which the FAA authorizes appeals. Varela responds that Lamps Plus lacks standing to appeal the arguably final order dismissing Varela’s lawsuit because Lamps Plus sought that order – a response that Lamps Plus argues artificially ignores the fact that Varela’s lawsuit was dismissed in favor of class arbitration, which was not consistent with Lamps Plus’s motion. Finally, Varela suggests that the district court should have put the lawsuit on hold instead of dismissing it when the court compelled arbitration, in which case Lamps Plus would arguably not have a final dismissal order from which to appeal.

Assuming the Supreme Court reaches the merits, the parties disagree about whether the arbitration clause is ambiguous at all. Lamps Plus argues that the contract unambiguously requires individual arbitration. In support, it points to language in the arbitration clause that refers to the signatory employee individually, such as that the agreement is to arbitrate “claims or controversies” that “I may have against the Company … or that the Company … may have against me.” Further, the parties dispute the relevance of the additional language in the arbitration contract. Varela argues that inclusive language such as “any and all lawsuits” is enough to create ambiguity about whether class action lawsuits may be brought in arbitration. Lamps Plus replies that this language is a routine declaration of the fact that arbitration is a substitute for litigation that has no bearing on whether the parties have agreed to class arbitration.

The parties also differ about what should happen if the Supreme Court agrees with the lower courts that the arbitration clause is ambiguous. Lamps Plus argues that the 9th Circuit erred in applying the “contra proferentem” doctrine that contract ambiguities should be construed against a party that drafts a contract unilaterally, without negotiating with the other signatory. According to Lamps Plus, the Supreme Court’s 2010 decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. precludes that approach. In Stolt-Nielsen, the court wrote that class arbitration is required only when the “parties agreed to authorize” it, and that when there is “‘no agreement,’” “the parties cannot be compelled to submit their dispute to class arbitration.” Lamps Plus argues that this language means that the FAA pre-empts state contract-law principles, such as “contra proferentem,” to the extent they fall short of Stolt-Nielsen’s consent requirement. Finally, Lamps Plus suggests that the court could use this case as a vehicle to take Stolt-Nielsen a step further, and hold that arbitration clauses must use “clear and unmistakable” language to authorize class, collective or other aggregated arbitration proceedings.

Varela argues that under Stolt-Nielsen and the court’s other arbitration cases, courts should construe arbitration contracts in the same way they would construe any other contract – including by applying “contra proferentem,” if that is what state law calls for. In other words, Varela maintains that state contract law is not pre-empted unless it singles out arbitration contracts for special disfavor. Varela goes on to assert that Lamps Plus’ arguments that the lower courts misinterpreted the contract are simply disputes about the correct application of neutral state contract law, which are not enough to trigger FAA pre-emption. And finally, Varela contends that Lamps Plus has waived its argument in favor of a “clear and unmistakable” standard, and that in any event, that standard would improperly substitute a policy judgment against class arbitration for the more neutral use of state contract law.

The amicus briefs mainly amplify the parties’ arguments. Amici in support of Lamps Plus, such as DRI—The Voice of the Defense Bar, the Center for Workplace Compliance and the Chamber of Commerce, argue that class arbitration sacrifices advantages such as efficiency and low-cost dispute resolution. The Retail Litigation Center advocates the adoption of Lamps Plus’ suggested “clear and unmistakable” standard. In support of Varela, a group of contract-law scholars defend the role of neutral state contract law in interpreting arbitration contracts. Finally, the American Association for Justice suggests that the court should dismiss the writ of certiorari as improvidently granted because important questions about whether it was improper for the district court to dismiss the case instead of putting it on hold in turn affect whether there is a basis for appellate jurisdiction.

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from http://www.scotusblog.com

Army soldier charged with kidnapping 12-year-old girl

A U.S. Army soldier at Fort Bragg was arrested for kidnapping a 12-year-old girl who disappeared from her grandmother’s home, where the suspect left a ransom note demanding money, authorities said. James Murdock Peele, 19, was collared after he was found with the girl on Sunday in Fayetteville, the Craven County Sheriff’s Office announced on Monday….

A U.S. Army soldier at Fort Bragg was arrested for kidnapping a 12-year-old girl who disappeared from her grandmother’s home, where the suspect left a ransom note demanding money, authorities said. James Murdock Peele, 19, was collared after he was found with the girl on Sunday in Fayetteville, the Craven County Sheriff’s Office announced on Monday....

from https://nypost.com

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Blind Advocacy of Offender Rehabilitation Programs Hurts All

Highlights Offender recidivism after prison is horrendous. Programs have little to no effect. We need a research initiative similar to cancer. It should be a national priority. What we don’t need is blind advocacy. If you are going to criticize the President, at least be honest with your data. Author Leonard Adam Sipes, Jr. Retired […]

The post Blind Advocacy of Offender Rehabilitation Programs Hurts All appeared first on Crime in America.Net.

Highlights Offender recidivism after prison is horrendous. Programs have little to no effect. We need a research initiative similar to cancer. It should be a national priority. What we don’t need is blind advocacy. If you are going to criticize the President, at least be honest with your data. Author Leonard Adam Sipes, Jr. Retired […]

The post Blind Advocacy of Offender Rehabilitation Programs Hurts All appeared first on Crime in America.Net.

from https://www.crimeinamerica.net

Suspected cop killer fatally shot during confrontation with police

SNELLVILLE, Ga.— A police officer on Monday shot and killed an 18-year-old man accused of fatally shooting another officer near a school in the Atlanta area over the weekend, police said. Tafahree Maynard was one of two men charged in the fatal shooting Saturday of Gwinnett County police Officer Antwan Toney. Police believe Maynard shot…

SNELLVILLE, Ga.— A police officer on Monday shot and killed an 18-year-old man accused of fatally shooting another officer near a school in the Atlanta area over the weekend, police said. Tafahree Maynard was one of two men charged in the fatal shooting Saturday of Gwinnett County police Officer Antwan Toney. Police believe Maynard shot...

from https://nypost.com

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