Law Fish News for 10-07-2018

Psychological Research – Crash Course Psychology #2

The Supreme Court Denies Review in the Case of “Dirty Bomber” Jose Padilla, But an Unusual Troika of Justices, Including the Chief, Issues a Warning to the Government

The Supreme Court declined to hear Padilla’s challenge to the government’s initial decision to classify him as an enemy combatant subject to military detention. Under the Supreme Court’s rules, if four Justices want to review a decision of a lower court, the petition is granted. A long sequence of victories and defeats in Padilla’s case culminated in a ruling last September by the Eleventh Circuit Court of Appeals that the President had the power to hold him in military custody. Before the Supreme Court could review that decision, the government transferred him to civilian custody for a criminal trial. Notably, Justice Ginsburg wrote a short dissenting opinion explaining why she thought the Court should have taken the case. 

Justice Kennedy went on to warn the government that the Supreme Court and the lower courts stand ready to enforce Padilla’s rights-including the right to a speedy trial and to habeas corpus review-should the government continue to dither with Padilla. Conservative Fourth Circuit Judge J. Michael Luttig, who has generally granted the government great deference in the detention cases, also appeared to run out of patience in the Padilla case. The appeal from that ruling was recently argued before the Supreme Court, but Chief Justice Roberts did not participate because, under longstanding principles of judicial ethics, a judge or Justice cannot sit on the appeal from a ruling in which he himself participated. If the Chief Justice’s vote on the Hamdan case in the appeals court signaled a willingness to defer to the political branches in how they structure military justice, then his joinder in Justice Kennedy’s warning to the government in the Padilla case may signal a limit to that deference when it comes to the power of the civilian courts to guard their own jurisdiction. 

The key jurisdictional issue in Hamdan is whether that new law-adopted after the D.C. Circuit ruling in Hamdan, but before the Supreme Court heard argument in the case-applies to already-filed habeas petitions like Hamdan’s, or only to new petitions. The fact that Chief Justices Roberts joined Justices Kennedy and Stevens in last week’s Padilla decision, which asserted a muscular view of habeas corpus, suggests that if he were not recused in the Hamdan case, the Chief Justice might well rule against the government on the jurisdictional issue. What is not speculation is the fact that the new Chief Justice-like every one of his predecessors-has already put substantial distance between himself and the positions of the Administration that just months ago nominated him to the Court. 

Keywords: [“Court”,”case”,”Justice”]

How a strange Supreme Court case involving sex offenders could gut the EPA – ThinkProgress

Gundy v. United States is an extraordinarily technical case involving the legal obligations of sex offenders convicted more than a decade ago. Gundy’s lawyers argued that sex offenders are not required to register until after they are released from custody, but the Supreme Court ignored these arguments. Depending on how the Supreme Court resolves this question, the Court could potentially upend a vast array of environmental, labor, and other business regulations. The Nondelegation Doctrine briefly reared its head during the New Deal, at which time the Supreme Court used it to strike down laws delegating authority to the Roosevelt administration. 

As a practical matter the doctrine is difficult to administer, and the Constitution itself provides few hints on how courts should determine which delegations of power are unconstitutional. The Supreme Court, for its part, has held that Congress does not run afoul of the Nondelegation Doctrine unless it offers no guidance whatsoever to agencies on how they should exercise their delegated powers. A narrow decision in Gundy would avoid a world where agency regulations stand or fall largely based on whether five members of the Court agree with them. Beginning in the Obama administration, the conservative Federalist Society grew obsessed with finding ways to roll back agency regulations and to cut out the legs of agencies like the EPA. Now, the Federalists play a major role in choosing Donald Trump’s judicial nominees – including Supreme Court appointee Neil Gorsuch – and they remain just as obsessed with reviving doctrines such as Nondelegation. 

Gundy won’t be the first time that Gorsuch considered the impact of the Nondelegation Doctrine on SORNA. In a 2015 opinion Gorsuch wrote as an appellate court judge, the Supreme Usurper In Waiting criticized the very provision at issue in Gundy. As an immediate matter, Gundy involves a narrow provision of law which treads very close to the edges of Nondelegation, and a responsible Court could rule in favor of Mr. Gundy without opening a can of worms. You go to court with the judges you have, not the ones who you can rely on to exercise their power responsibly. 

The Republicans who control the Supreme Court are under considerable pressure to invigorate the Nondelegation Doctrine and to use it for partisan ends. 

Keywords: [“Court”,”Gundy”,”Offender”]


Hearing on New Trial Plea.The judge who presided over Mr. Dotson’s trial in 1979, Richard L. Samuels of the Cook County Circuit Court, refused to believe Mrs. Webb this time and would not grant Mr. Dotson a new trial. 

Ronald Allen, a law professor at Northwestern University, points out that it is ”very difficult, verging on the impossible,” to obtain a new trial. Second, a recantation by a principal witness leads to a new trial only ”in extraordinary and unusual cases,” as the Illinois Supreme Court held in 1931 in People v. Marquis, the state’s leading case on the subject. Judge Benjamin Cardozo, writing in an oft-cited 1916 New York case, People v. Shilitano, said the trial judge alone had the responsibility to determine if recanting witnesses were ”conscience-stricken penitents or criminal conspirators to defeat the ends of justice. 

Fourth, no appellate court will lightly second-guess the trial judge. The New Jersey Supreme Court put it this way in 1976: ”Manner of expression, sincerity, candor and straightforwardness are just some of the intangibles available to the trial judge in evaluating the credibility of recantation testimony. A reviewing court, not having the same advantage, should ordinarily defer to the trial judge’s findings on this sensitive issue as long as the proper criteria are used. The Connecticut Supreme Court, in that 1877 case, Shields v. State, refused to grant the man a new trial, saying, ”How easy by artful or even honest suggestion to awaken a sympathy even in the heart of the victim, who was the main, perhaps only witness against the accused, and who naturally feels responsible for the conviction. ”If mere recantation in itself dictates a new trial,” wrote Judge Samuel A. 

Larner, ”the entire judicial process could be frustrated by the mere whim of a witness recanting his testimony. Courts have frequently said they would not hesitate to grant new trials if the facts warrant it. The Arkansas Supreme Court was tested in 1901, when it had to decide whether to grant Will Bussey a new trial. The court recited the usual rules but said the rules were not so rigid as to prevent a new trial when it was clear that ”the judgment is wrong and that great injustice will result unless a new trial be granted. 

Keywords: [“Trial”,”new”,”Court”]

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