Tagged: U.S. Supreme Court

The Supreme Court Addresses Double Jeopardy…Again

On October 4, the Supreme Court will hear an important Double Jeopardy case, Bravo-Fernandez v. United States involving the collateral estoppel effect of an acquittal in a mixed verdict case, where the accompanying conviction is reversed for error.  See an article in the current Atlantic Monthly Magazine, titled “The Trouble With Double Jeopardy,” discussing the case, and in which Professor Griffin, an expert on Double Jeopardy, is quoted extensively.

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Political Corruption Made Easier: McDonnell v. United States

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

On Monday, June 27, 2016, politicians and their friends breathed a collective sigh of relief when the United States Supreme Court unanimously vacated the conviction of former Virginia governor, Bob McDonnell. The decision, authored by Chief Justice John G. Roberts Jr., narrowed the definition of an “official act” and what it means in the context of bribery and honest services fraud. As a result, ostensibly politicians will be able to more freely provide favors to others.

McDonnell and his wife were convicted on charges of honest services fraud and Hobbs Act extortion in connection with their acceptance of $175,000 in loans and gifts from the chief executive officer of a nutritional supplement company. In exchange for the monies, the government alleged that McDonnell committed “official acts” in his capacity as governor, to facilitate Virginia’s public universities to perform research studies on the CEO’s nutritional supplements. The government alleged these “official acts” included hosting and attending events, and contacting and promoting the CEO’s products to other government officials. McDonnell v. United States, 579 U.S. __ (2016) at 10. Although McDonnell was found guilty at trial, the Supreme Court vacated the conviction, which hinged on the definition of an “official act.”

Under 18 U.S.C. § 201, the statute that proscribes the bribery of public officials, an “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

First, the Court concluded that the terms “cause, suit, proceeding or controversy,” “connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination.” McDonnell, 579 U.S. __ at 20. The Court held the terms “question” and “matter” are similar in nature to a “cause, suit, proceeding or controversy,” and therefore, cannot be broadly applied. Second, the Court held that the requirement in 18 U.S.C. § 201(a)(3), stating that the question or matter must be “pending” or “may by law be brought,” before “any public official,” suggests that it is a matter “that is relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.” Id. at 22. Therefore, the Court held that “[u]nder that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’” Id. at 19.

What does this mean for the future of political bribery and honest services fraud cases? It narrows the reach of the statute. If an “official act” must be a formalized exercise of power, on a question or matter that can be tracked for progress, arguably a politician may now provide favors in a more informal, tempered way. Therefore, McDonnell is likely to positively impact politicians and other government officials who dole out favors to those who provide them gifts and other benefits. Understandably, and especially in our currently unstable political climate, lax interpretations of bribery statutes are not likely to go over well with the public.

On the other hand, however, McDonnell does tenuously open the doors for more honest and free-flowing communications between government officials and the individuals they represent. As Chief Justice Roberts states:

[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns – whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm…. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic recourse.

Id. at 22. While it is safe to say bribery and honest services fraud are exactly what keeps ordinary citizens from “participating in democratic recourse,” McDonnell nonetheless gives politicians and government officials a chance to rise to the occasion. If these types of “unofficial” favors are truly as innocuous as politicians claim, now is the time for them to prove it. Prove it is not simply a quid pro quo. Prove it is not a quick cash grab. Prove it is not only those with wealth and influence that you seek to help. Prove it, as Chief Justice Roberts states, embodies that you genuinely want to appropriately help all constituents.

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SCOTUS and the Prison Litigation Reform Act

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.

The Prison Litigation Reform Act (PLRA) sets up roadblocks for prisoners in civil rights cases that are uniquely harsh including a requirement that prisoners must exhaust all available administrative remedies. This exhaustion requirement, which is not imposed on other civil rights litigants, often keeps litigants with meritorious claims out of court. Recently, in Ross v. Blake, No. 15-339, the Supreme Court took a Maryland case from the Fourth Circuit holding that the exhaustion requirement should be excused if the inmate makes a “reasonable mistake” about whether a particular administrative remedy is, in fact, available.

However, during oral argument last week the Court learned that this issue may not be presented by this case at all. This is because in papers filed with the Court before the case was argued it appeared that Maryland’s complicated and confusing administrative remedies were probably, in fact, unavailable to the inmate after all. Thus, there was no “reasonable mistake” after all. And no need to decide whether if there were such a mistake that would excuse the inmate from the obligation to exhaust.

Based on this new information it appears from the oral argument of the case that the Court will either remand the case or dismiss the case as improvidently granted for review. But even if the case is dismissed or remanded the case has value because the oral argument record available here reveals dramatically the Kafkaesque world of confusing remedies that prisoners must confront and overcome to achieve their day in court. If one needs proof of the lack of wisdom of the PLRA’s exhaustion requirement, and the need to repeal it, look no further.

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The Black Box: Rapid Technological Change Post-Riley

POST WRITTEN BY: Steven Lapkoff (’16), J.D. Pace Law School

The fallout from the U.S. Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), has already changed police practices regarding the search and seizure of a cell phone that is held incident to an arrest. Before Riley, a police officer could search the cell phone of an arrestee for incriminating information or to expose the identities of accomplices. The Riley decision held that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Riley, 134 S. Ct. at 2495. In so doing, the court made clear that the vast quantities of personal information could only be searched when accompanied by a proper warrant.

However, recent advances in encryption technology are out-pacing the ability of courts and legislatures to adapt, increasingly putting the contents of smartphones outside the reach of the police and courts even when searches are authorized by warrant. The stated aim of this new technology is to “lock out the government,” regardless of the Riley decision.

Apple, maker of the iPhone, which uses the iOS software platform, has upgraded its encryption standard to the point that it claims is “unbreakable,” and the company does not have the ability to unlock a user’s phone even when requested to do so by government entities. Google, which distributes the competing Android platform to smartphone manufacturers, has also decided to encrypt its phones by default.

This has lead to a situation that the FBI has termed “The Black Box” or “Going Dark.” The argument goes, that if a smartphone cannot be accessed even under a lawful court order, then kidnapped children will go un-rescued and drug kingpins will go un-caught. Criminals’ secrets can then be stored worry-free, in these “black boxes” far from the reach of the police and courts. The FBI has gone so far as to demand that the tech companies implant “back door” access for police and courts to ensure continued access to users’ data.

The tech companies have responded that such scare scenarios are “inflammatory and inaccurate,” and that any “back doors” provided to the government would inevitably be exploited by opportunistic hackers. They point out that the “metadata,” data about who a person calls and texts from a smartphone, is accessible elsewhere, and that society’s expectations of privacy have fundamentally changed as more and more people shift a greater portion of their private lives onto their smartphones.

The editorial commentary in the media has come down strongly on the side of the technology companies. Wired further notes that “none of the criminal cases cited by [FBI Director] Comey meet that hypothetical because in real life those instances would be extremely rare and far outweighed by the clear public benefit of preventing the very real threat of a large-scale data breach that could affect millions of Americans.”

In the ongoing debate between security and privacy, the inexorable forward march of technology may leave the courts behind.

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US Supreme Court Upholds Prisoner’s Right to Grow a Beard

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.

Just a few days ago a rare, if not unprecedented, event occurred: the United States Supreme Court ruled unanimously in favor of a prisoner. The case, Holt v. Hobbs, was an Arkansas prisoner’s challenge to a state prison policy that forbade him from growing a beard. Holt, who is Muslim, asserted that his religion requires that he grow a beard of at least a half- inch. His request to grow a beard was denied because of a prison rule that prohibited inmates, aside from prisoners with medical problems, from growing beards of any length. Holt sought an exemption for himself on religious grounds. When the prison denied this exemption he sued.

The Supreme Court, in an opinion by Justice Alito, upheld Holt’s right to grow a beard over the strong objections of prison officials who insisted that the no beard rule was essential to the security of the institution. The Court subjected the prison officials’ security arguments to close scrutiny. It ruled that it was “hard to take seriously” the state’s argument the rule was needed to prevent Holt from hiding weapons in his beard. It is impossible to hide most items in a beard so small and even small items could be detected by running a comb through Holt’s beard. Defendant’s argument that the no beard rule is needed to prevent inmates from changing their appearance thereby avoiding detection if they escape was similarly found to be without merit. This danger could be easily prevented by photographing the inmate without the beard and then later with the beard. The fact that the prison allowed prisoners with skin problems to grow quarter-inch beards also demonstrated that some facial hair on prisoners was not a serious security problem. In addition the Court emphasized, the “vast majority” of other states and the federal government permit inmates to grow at least a half-inch beards.

This ruling, which was based on the Religious Land Use and Institutionalized Persons Act (RILUPA) 42 U.S.C. § 2000cc-1(a), was not a constitutional decision. Instead it was based on Congress’ direction that a prisoner’s sincere claim to practice religion can only be burdened when the prison has a compelling state interest in a rule that restricts the prisoner’s religious practice and when the prison rule burdening religion is the least restrictive means of advancing its interest. Nevertheless, the Holt decision indicates that the Supreme Court will not always simply defer to prison officials when they proclaim – as they often do – that security needs require diminution of prisoners’ rights. Whether this signals that the Court will now begin to give meaningful review to prisoners’ claims that are not based on religious liberty rights remains to be seen. But the decision gives some cautious cause for hope that a new day is dawning for prisoners’ rights.

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