Torture? Obviously, But What About Litany Of Other Crimes?

/29 Comments/in , , , , , , , , , , /by

So, just a quick thought here, and with a little prompting by Jon Turley, obviously there is torture, and outright homicide thereon, spelled out and specified by the SSCI Torture Report. As I have said on Twitter, there are many things covered in the SSCI Torture Report and, yet, many things left out.

There are too many instances in the SSCI Torture Report to catalogue individually, but let’s be perfectly clear, the failure to prosecute the guilty in this cock up is NOT restricted to what is still far too euphemistically referred to as “torture”.

No, the criminality of US Government officials goes far beyond that. And, no, it is NOT “partisan” to point out that the underlying facts occurred under the Cheney/Bush regime (so stated in their relative order of power and significance on this particular issue).

As you read through the report, if you have any mood and mind for actual criminal law at all, please consider the following offenses:

18 U.S.C. §1001 False Statements

18 U.S.C. §1621 Perjury

18 U.S.C. §1505 Obstruction of Justice

These are but a few of the, normally, favorite things the DOJ leverages and kills defendants with in any remotely normal situation. I know my clients would love to have the self serving, toxically ignorant and duplicitous, work of John Yoo and Jay Bybee behind them. But, then, even if it were so, no judge, court, nor sentient human, would ever buy off on that bullshit.

So, here we are. As you read through the SSCI Torture Report, keep in mind that it is NOT just about “torture” and “homicide”. No, there is oh so much more there in the way of normally prosecuted, and leveraged, federal crimes. Recognize it and report it.

Share this entry

Yes, Ray Rice’s Diversion Adjudication Was Appropriate

/18 Comments/in , , , , /by

JusticePicThe popular meme has been that Ray Rice got some kind of miraculous plea deal to diversion (pre-trial intervention, or “PTI”, in New Jersey parlance) and that NOBODY in his situation ever gets the deal he did.

Is that true? No. Not at all. Kevin Drum wrote a few days ago at Mother Jones on this subject:

First, although Ray Rice’s assault of Janay Palmer was horrible, any sense of justice—no matter the crime—has to take into account both context and the relative severity of the offense. And Ray Rice is not, by miles, the worst kind of domestic offender. He did not use a weapon. He is not a serial abuser. He did not terrorize his fiancée (now wife). He did not threaten her if she reported what happened. He has no past record of violence of any kind. He has no past police record. He is, by all accounts, a genuinely caring person who works tirelessly on behalf of his community. He’s a guy who made one momentary mistake in a fit of anger, and he’s demonstrated honest remorse about what he did.

In other words, his case is far from being a failure of the criminal justice system. Press reports to the contrary, when Rice was admitted to a diversionary program instead of being tossed in jail, he wasn’t getting special treatment. He was, in fact, almost a poster child for the kind of person these programs were designed for. The only special treatment he got was having a good lawyer who could press his cause competently, and that’s treatment that every upper-income person in this country gets. The American criminal justice system is plainly light years from perfect (see Brown, Michael, and many other incidents in Ferguson and beyond), but it actually worked tolerably well in this case.

Mr. Drum is absolutely correct, Ray Rice was quite appropriate for the diversion program he was ultimately offered and accepted into by Atlantic County Superior Court. Let me be honest, Kevin talked to me about this and I told him the truth.

In fact, that is exactly the deal I would hope, and expect, to get for any similarly situated client in Rice’s position. It is also notable the matter was originally charged as a misdemeanor assault in a municipal court, which is how this would normally be charged as there was no serious physical injury. Rice would have gotten diversion there too and, indeed, that was the deal his lawyer, Michael Diamondstein, had negotiated with the municipal prosecutors before the county attorney snatched jurisdiction away and obtained a felony indictment. Despite the brutality depicted by the video, this is precisely the type of conduct that underlies most every domestic violence physical assault (seriously, what do people think it looks like in real life?) and it is almost always charged as a simple misdemeanor assault.

Janay Palmer Rice clearly did not receive a “serious physical injury” level of injury under the applicable New Jersey definition in NJ Rev Stat § 2C:11-1(b) and a small period of grogginess/unconsciousness is not considered, by itself, as meeting the threshold. Now, to be fair, New Jersey has two levels of injury that can lead to a felony charge, the aforementioned “serious physical injury”, and the lower “significant physical injury”, pursuant to NJ Rev Stat § 2C:11-1(d) that Rice was charged under, and which is a far less serious charge, even though still nominally a felony under New Jersey classification.

The injury to Janay Palmer (Rice) did fall within the lower “significant physical injury” threshold under New Jersey’s criminal statutes because of the momentary apparent lapse of consciousness. So, under the New Jersey statute, while the felony, as opposed to simple misdemeanor, charge may have not been the norm for such a fact set, it was certainly minimally factually supportable. That said, most all similar cases would still be charged as simple assault, as indeed, as stated above, Rice initially was. The New Jersey assault statute, with its different iterations of offenses, and offense levels, is here.

With that description of the nature and structure of assault in New Jersey out of the way, there is something else that must be addressed: I am absolutely convinced that the Read more →

Share this entry

Unions Even Conservatives Can Love

/16 Comments/in , /by

You know how conservatives (and education reform Democrats like Rahm and Obama and Cuomo) claim that they need to break up teacher’s unions because they hurt children of color because they impede efforts to give them a better education?

You never see anyone make the same argument, that cops unions hurt children of color because they ensure that cops who shoot children never get punished for it.

Funny how shooting 12-year olds bearing toys is considered less damaging to children of color than working in an underfunded school.

And cops unions’ role in the treatment of brown boys as presumptively criminal goes beyond just the shootings.

Cops unions lobbied to defeat bipartisan interest in demilitarizing cops.

According to Pasco, FOP members reached out to “maybe 80 percent of senators and half the House.” Since militarization was at the greatest risk in the Democratic Senate, the disparity made sense. As McMorris-Santoro reported, the departing Senate’s blockade on Republican amendments made it impossible for Paul to attach anything to a passable bill. And the clock’s basically run out for reform. A new Congress is coming in, but the FOP doesn’t see it as particularly likely to dismantle 1033.

And the Saint Louis Police Officers Association is now attacking 5 Rams players who entered the field yesterday with their hands raised in Stop Don’t Shoot symbolism.

“The SLPOA is calling for the players involved to be disciplined and for the Rams and the NFL to deliver a very public apology. Roorda said he planned to speak to the NFL and the Rams to voice his organization’s displeasure tomorrow. He also plans to reach out to other police organizations in St. Louis and around the country to enlist their input on what the appropriate response from law enforcement should be. Roorda warned, “I know that there are those that will say that these players are simply exercising their First Amendment rights. Well I’ve got news for people who think that way, cops have first amendment rights too, and we plan to exercise ours. I’d remind the NFL and their players that it is not the violent thugs burning down buildings that buy their advertiser’s products. It’s cops and the good people of St. Louis and other NFL towns that do. Somebody needs to throw a flag on this play. If it’s not the NFL and the Rams, then it’ll be cops and their supporters.”

As Deadspin notes, SLPOA spokesperson Jeff Roorda has a history of submitting false statements to protect himself and other cops.

I am in no way doubting the importance of police unions. All public sector workers are under attack these days, and while cops are often spared the brunt of those attacks (and exempted from anti-union laws), they need to have representation to defend their interests. I absolutely support that.

But I am cognizant of how critical a cog cops unions increasingly play — and how perfectly this language of “cops against the thugs” captures — in what defense attorney Joseph Margulies describes as the toxic ideology behind our policing.

Policymakers who profess an interest in criminal justice reform have thus far declined to re-examine the ideological foundation on which the current system was built. They have not questioned, in other words, the essential disposition to view the great majority of offenders as “them”—marauders who must be separated from “us” by any means necessary and for as long as possible. They show no awareness that the entire system was built on a foundation that unleashed the police and directed them to divide, rather than restrained the police and enjoined them to unite. Like any dominant ideology, this foundation operates unseen and unquestioned.

Now that reform is finally in the air, we must acknowledge that the American criminal justice system is flawed at its ideological core, a flaw that no amount of tinkering will fix. The shooting of Michael Brown, like the shooting of so many unarmed African-American men, was the predictable product of the same punitive turn in American life that produced the misguided War on Drugs, the dangerous militarization of local police, and the shame of mass incarceration. Until policymakers are willing to revisit the destructive and divisive ideology of “us” and “them,” and all that it implies, from police practice to sentencing to prison conditions, meaningful reform is impossible.

And the next grand jury will come to the same conclusion as this one.

At a time when so many other working people’s civil society organizations are being attacked, this one remains, intact, a key part of the ideology that subjects the poor rather than protects them. And as income inequality grows, this function of police unions will grow increasingly valuable to the powers that be.

Share this entry

A Note Of Praise For Jake Tapper

/3 Comments/in , , , , /by

photoYammering on the internet is not hard work, in fact it is blindingly (and sometimes maddeningly when it is pointed in your direction) easy. Getting heard, and functionally interacting in a fashion that can contribute to the real focus and discussion, however, is hard. For my part, I often carp enough about the failings of big media that it is only right to give praise where due.

Today credit is due to CNN’s Jake Tapper. Because he cares.

Two nights ago, rightly or wrongly …. but I think rightly … I laid into CNN for their overbearing focus on repetitive, and somewhat mindless, continuing drivel on celebrity. That was, of course, in relation to Robin Williams’ death. A noteworthy, sad, and tragic event for sure, but there was only so much news, the rest was pure Entertainment Tonight like pathetic drivel.

So I went after CNN, and I tacked Jake Tapper’s twitter handle on the end. I did so not because I thought he was the prime offender producing the overall CNN news product, but because I knew, from prior interaction, that Jake actually gives a damn and and is a contact point at CNN who would care. And maybe…maybe…be a change point. That was both fair, and unfair to him personally, at the same time.

I am pretty sure both CNN and Jake were bombarded by by an untold number of missives of the same variety. I don’t how how other inflection points at CNN dealt with what was surely a lot of feedback, but the fact Mr. Tapper took the time to take umbrage, and discuss…and think…seems significant and admirable to me. And I admire that.

I thought about writing this post long before I saw the following, but I was off with clients and court appearances, and could have easily shined it on, as I do with so many posts I want to write but don’t get to.

Until I saw something from Mr. Jake Tapper today that was just awesome.

Screen Shot 2014-08-14 at 3.26.25 PM

Well, yes!

But then, not long later, came this:

Screen Shot 2014-08-14 at 3.27.54 PM

Well, to be sure, this is the stuff even a critic of journalism can love and applaud. You know why? Because not only is solidarity with journalists under grand jury and governmental oppression admirable (I have some experience in GJ targeting), it is the only, and only proper, thing that can be done.

There are not many out there to be so applauded. Maybe tomorrow there will be an issue, and moment of difference, on a different case. So it goes, and so be it.

But, now, James Risen stands exposed and on his own. As a man, and as a journalist, Tapper stood up and gave public square to his voice. Good on him.

Tonight, I am glad Jake Tapper is out there and is willing to engage. Tonight he did one hell of a report from Ferguson Missouri. Even if a big part was consumed by press conference feed. But, before and after, he made his voice clear. That is not exactly a common thing. It is to be commended.

Give the man credit, he was there, and he cares. And I will buy him a drink.

Share this entry

Pakistan’s Geo Now Accused of Blasphemy: That Couldn’t Happen Here, Could It?

/4 Comments/in /by

Just under a month ago, Pakistan’s largest private television news station was engaged in a dispute with Pakistan’s intelligence agency, ISI, over charges that the ISI was behind an assassination attempt on one of its anchors. For Geo, those probably seem like the good old days, because now the station is engaged in a controversy that has already caused a proliferation of lawsuits and threatens to erupt into massive vigilante violence against Geo employees and buildings. Reuters describes the threats Geo now faces and how the situation came about:

Pakistan’s biggest television station said it was ramping up security on Tuesday after it became the object of dozens of blasphemy accusations for playing a song during an interview with an actress.

Geo Television is scrubbing logos off its vans and limiting staff movements after receiving scores of threats over allegedly blasphemous content, said channel president Imran Aslam.

“This is a well-orchestrated campaign,” he told Reuters. “This could lead to mob violence.”

/snip/

The cases allege a traditional song was sung about the marriage of Prophet Muhammad’s daughter at the same time a pair of shoes was raised.

Both elements are traditional in a wedding ceremony but the timing was insulting to Islam, dozens of petitioners have alleged. Others allege the song itself was insulting.

Lawsuits arising from the incident are proliferating. The Express Tribune has a partial list of the cases filed recently here.

But the Reuters article points out that under Pakistani law, blasphemy itself is not actually defined clearly:

Blasphemy carries the death penalty in Pakistan but is not defined by law; anyone who says their religious feelings have been hurt for any reason can file a case.

But it gets even wilder. It turns out that a rival station is now also accused of blasphemy. Why? Because they repeatedly played snippets of the original program carried on Geo. And Reuters points out that blasphemy cases also are dangerous for judges and attorneys, as well:

Advocate Tariq Asad said his suit named the singers and writers of the song, cable operators, television regulators, a national council of clerics and ARY, a rival television station.

ARY repeatedly broadcast clips of the morning show, alleging it was blasphemous, an action that Asad said was blasphemous in itself.

Judges frequently do not want to hear evidence in blasphemy cases because the repetition of evidence could be a crime. Judges acquitting those accused of blasphemy have been attacked; a defense lawyer representing a professor accused of blasphemy was killed this month.

So just repeating the blasphemous material, even as a judge or attorney citing it in court, is a blasphemous act in itself worthy of vigilante action.

But of course, nothing so outrageous could happen here in the US, could it? Sadly, such a ridiculous state of affairs doesn’t seem that far off here. Note that politicians, even leading candidates for the US Senate, now openly state that “Government cannot force citizens to violate their religious beliefs under any circumstances” and even that such stances are not negotiable in any way. But that’s not just a campaign stance. We have companies now going to the Supreme Court to state their right to ignore laws to which they object on religious grounds.

So if both politicians and companies now openly advocate to ignore laws on religious grounds, how far away are we from these same zealots advocating for prison terms or even death sentences for those who offend their religious sensibilities? After all, we have already seen a bit of the vigilantism that goes along with such attitudes.

Update: It turns out that the incident with ISI hadn’t blown over yet. Breaking news from Dawn:

A committee formed by the Pakistan Electronic Media Regulatory Authority (Pemra) has suspended the licences of three television channels owned by the Geo TV network.

The committee has also decided that Geo TV offices be immediately sealed.

However, a final decision on the revocation of the licences will be announced following the meeting on May 28, which will also be attended by government representatives.

The committee, which includes members Syed Ismail Shah, Pervez Rathore and Israr Abbasi, was tasked to review the Ministry of Defence’s application filed against Geo TV network for leveling allegations against an intelligence agency of Pakistan.

It will be interesting to see how Geo responds.

Share this entry

9th Circuit Extends Equal Protection (and Batson) to Sexual Identity

/3 Comments/in , , , /by

In yet another win for equality, and equal protection, on issues involving sexual orientation and identity, the Ninth Circuit has issued an important opinion holding Batson v. Kentucky protections apply to sexual orientation issues in jury selection.

The case is Smithkline Beecham Corp, dba GSK v. Abbott Laboroatories, and the decision is here.

This case evolved out of a licensing dispute between two pharmaceutical makers of HIV medications. GSK contended Abbott violated antitrust laws, dealt in bad faith and otherwise engaged in unfair trade practices by licensing to GSK the authority to market an Abbott HIV drug in conjunction with one of its own and then increasing the price of the Abbott drug fourfold, so as to drive business to Abbott’s own combination drug.

Judge Steve Reinhardt set the table:

During jury selection, Abbott used its first peremptory strike against the only self-identified gay member of the venire. GSK challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge.

This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.

The fact the court unanimously found that heightened scrutiny applies is critical. Finding heightened scrutiny controlling on sexual preference issues has been the holy grail for a long time, and exactly what the Supreme Court ducked in Windsor (mostly) and Perry (completely through avoidance).

The Batson challenge was effectively uncontroverted materially by Abbot, and the court found exactly that. The far more important discussion, however, comes in the analysis of whether the violation by Abbott violated the Equal Protection Clause. This is a necessary question because, while the Supreme Court in J.E.B. v. Alabama extended Batson protections to gender, and Read more →

Share this entry

Aaron Swartz, Plea Leveraging & The Bordenkircher Problem

/64 Comments/in , , , , , /by

CryingJusticeAs Netroots Nation 2013 begins, I want to emphasize one of the best panels (If I do say so) of the event. It is titled: Beyond Aaron’s Law: Reining in Prosecutorial Overreach, and will be hosted by Marcy Wheeler. Joining Marcy will be Aaron Swartz’s attorney, Elliot R. Peters, of Keker & Van Nest LLP in San Francisco, Shayana Kadidal of the Center for Constitutional Rights in New York, and Professor Jonathan Simon of Boalt Hall at Berkeley. The panel goes off at 3:00 pm Saturday June 22.

As a lead in to the panel discussion, I want to address a topic that struck me from the first moment of the tragic loss of Aaron Swartz, the pernicious effect of the late 70’s Supreme Court case of Bordenkircher v. Hayes.

Paul Hayes was a defendant on a rather minor (involved $88.30), but still felonious, bad check charge in Kentucky. But Hayes had a bad prior criminal history with two felony priors. The prosecutor offered Hayes a stipulated five year plea, but flat out threatened Hayes that if he didn’t accept the offer, the prosecution would charge and prosecute under Kentucky’s habitual criminal (three strike) law. Hayes balked, went to trial and was subsequently convicted and sentenced to life in prison under the habitual offender enhancement charge. It was a prosecutorial blackmail threat to coerce a plea, and the prosecutor delivered on his threat.

Hayes appealed to every court imaginable on the theory of “vindictive prosecution” with the prosecutorial blackmail as the underlying premise. Effectively, the argument was if overly harsh charging and punishment is the penalty for a defendant exercising his right to trial, then such constitutes prosecutorial vindictiveness and degrades, if not guts, the defendant’s constitutionally protected right to trial.

Every appellate court along the way declined Hayes’ appeal until the 6th Circuit. The 6th, however, came up with a surprising decision, granting Hayes relief, but under a slightly different theory. The 6th held that if the prosecutor had originally charged Hayes with the habitual offender charge, and then offered to drop it if Hayes pled guilty, that would have been perfectly acceptable; but using it like a bludgeon in plea negotiations once the case was charged was impermissibly vindictive, and therefore unconstitutional.

Then, from the 6th Circuit, the case finally made its way to the Supreme Court of the United States. By that time, Hayes had long been in prison and the prison warden, Bordenkircher, was the nominal appellee in the caption of the case. The Supreme Court, distinguishing another seminal vindictive prosecution case, Blackledge v. Perry, reversed the 6th Circuit and reinstated Hayes’ life sentence.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to Read more →

Share this entry

The Internet Didn’t Kill the Middle Class; Laxity and Apathy Did

/12 Comments/in , , , , , , , , /by

KodakBldgAtlanta_mcclanahoochie-Flickr_modIn tandem with the release of his book, Who Owns the Future?, Jaron Lanier’s interview with Salon generated a lot of hand-wringing across social media. It seems Lanier, one of our so-called intellectual visionaries, believes that the collapse of Kodak and its 140,000 jobs, and the rise of Instagram and its 13 jobs, exemplifies the killing field of the internet. Lanier theorizes good paying jobs that once supported a thriving middle class have disappeared as internet-enabled firms replaced them. As these jobs vaporized, so did necessary benefits. Here’s a key excerpt from the interview:

“Here’s a current example of the challenge we face,” he writes in the book’s prelude: “At the height of its power, the photography company Kodak employed more than 140,000 people and was worth $28 billion. They even invented the first digital camera. But today Kodak is bankrupt, and the new face of digital photography has become Instagram. When Instagram was sold to Facebook for a billion dollars in 2012, it employed only 13 people. Where did all those jobs disappear? And what happened to the wealth that all those middle-class jobs created?”

What a crock of decade-late shit.

Where the hell was Lanier in the late 1990s and early 2000s, when the U.S. manufacturing sector nose-dived due to government policies created by corporate-acquired elected officials and appointees?

It wasn’t the internet that killed the middle class. The apathy of intellectuals and the technology elite did; too few bothered to point out the potential repercussions of NAFTA and other domestic job-depleting policies. In the absence of thought leaders, corporatists sold the public and their electeds on job creation anticipated from globalizing policies; they just didn’t tell us the jobs created wouldn’t be ours.

It wasn’t the rise of digitization that killed the middle class. It was the insufficiency of protests among U.S. brain power, including publicly-funded academics, failing to advocate for labor and home-grown innovation; their ignorance about the nature of blue collar jobs and the creative output they help realize compounded the problem.

Manufacturing has increasingly reduced man hours in tandem with productivity-increasing technological improvements. It wasn’t the internet that killed these jobs, though technology reduced some of them. The inability to plan for the necessary shift of jobs to other fields revealed the lack of comprehensive, forward-thinking manufacturing and labor policies.

It all smells of Not-My-Problem, i.e., “I’m educated, technology-enabled, white collar; those stupid low-tech blue collar folks’ jobs aren’t my problem.”

Until suddenly it is. Read more →

Share this entry

Tsarnaev: Right to Counsel, Not Miranda, Is the Key

/65 Comments/in , , , , , /by

LadyJusticeWithScalesSince Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.

Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:

A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.

In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation). As Dr. Richard Leo has studied, and stated, the impact of Miranda on suspects’ willingness to talk to interrogators is far less than commonly believed. One study has the effect rate of Miranda warnings on willingness to talk at 16%; from my two plus decades of experience in criminal defense, I would be shocked if it is really even that high.

On top of this fact, the Miranda warnings relate only to the admissibility of evidence or, rather, the inadmissibility – the exclusion – of evidence if it is taken in violation of Miranda. Professor Orin Kerr gives a great explanation here.

Since there is, without any real question, more than sufficient evidence to convict Tsarnaev without the need for admissibility of any verbal confession or other communicative evidence he may have provided the members of the HIG (High Value Detainee Interrogation Group), the real Read more →

Share this entry

DOMA’s Day At The Supremes

/31 Comments/in , , , , , , , , /by

RainbowNiagraFallsUPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.

11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW

11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS

12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

Share this entry