Court Commentary: Berghuis v. Thompkins

The Court handed down a big ruling today in Berghuis v. Thompkins about the Miranda Rule. SCOTUSblog:

...the Court held, by a vote of five to four, that suspects must explicitly tell police that they want to be silent to invoke Miranda protections during criminal investigations. Justice Sotomayor’s dissent was longer than the majority opinion and drew particular notice. The L.A. Times’s David Savage describes it as her “first strongly written dissent,” while Tony Mauro of the National Law Journal characterizes it as perhaps “her most important writing since joining the Court.”

In the case, the defendant (Thompkins) was being questioned in a murder trial. For three hours he said not a single word -- he held absolute silence. In the third hour, he was asked whether he would like to pray to God for forgiveness for his crime, and he responded, "Yes."

Thompkins' lawyers argued that the "Yes" could not be used against Thompkins in the court of law because he had, in those three hours, been absolutely silent -- thus asserting his right under the Miranda Rule to remain silent.

The court ruled against that, saying that in order for you to assert your right to silence, you need to verbally and deliberately invoke your right to silence. Even if you are silent for three, five, twenty hours, if you speak you are waiving your right to silence.

Unfortunately, there are no protections to prevent law enforcement officials from simply waiting you out, barraging you with questions, and generally bullying until you break under the pressure. Granted, it's not forced confession like torture, but it still may lead to false confessions from those prone to break under pressure.

I agree with Sotomayor's passionate dissent. Note, by the way, that Sotomayor is the only trial judge on the Supreme Court. The other justices come from non-criminal Trial backgrounds, and so they perhaps have less direct experience with criminal trials, and the way that the protections afforded to the defendant protect them from abuses of the law.

In the world of the more esoteric, it may seem like a no-brainer that if a criminal says something they are waiving their right to remain silent (and it does seem in keeping with the way the Miranda Warning is phrased --- RTWT, btw, there's some fascinating distinctions between different nations and their equivalents to our Miranda Warning). But in practice, any right that you have to assert will be tailored to the educated and intelligent criminal; the poor and uneducated will not know.

According to NPR, criminal justice professors from right to left have been against the ruling; the people in favor of the ruling are law enforcement officials. One officer quoted in the NPR story said on air that the ruling is good because it would make things easier for police.

There's the bias: is easier for police always better for the community?

Court Commentary: American Needle v. NFL pt. 2

A while back, I mentioned a case, American Needle v. NFL, about whether the NFL constitutes a "trust" if it pools all of the NFL merchandising power together. The issue came down to whether the NFL is its own entity, or whether it is a trust composed of the 32 NFL teams. I also personally wondered, esoterically, whether "Football Merchandise" is considered distinct enough of a market, as opposed to being only one aspect of "Sports Merchandise," but that wasn't the issue before the court.

Although I've rarely been on the same side of issues as the current court (in Comstock I found myself in the same minority as Clarence Thomas and Antonin Scalia), it was comforting to see that in a 9-0 ruling, the NFL was found to be a trust, and therefore may face legal penalties for restraint of trade.

Court Commentary: Quote of the Day

Being on a brief "vacation," I'm cleaning up things I bookmarked for later. I marked this paragraph back when Justice Stevens resigned, and it's my quote of the day:

“I suppose you all thought I was wrong in that case [Texas v. Johnson]?” he half-asked and half-stated. He then paused for several seconds as his eyes darted around the room. My co-clerks and I nervously looked down and studied our hands. The clock ticked. No one said a word. “Well,” he finally continued with a sigh, “I still think I was correct.”

If you're curious as to what the case was, it was Justice Stevens' lone dissent against the ruling that flag-burning constitutes free speech.

Court Commentary: Biden on Kagan

So, Joe Biden wants me to back Elana Kagan. In his note he says:

To see why, look no further than her role in the Citizens United case. It was a legal battle that most experts agreed would be impossible for the government to win. But as Solicitor General, Elena chose this as her first case. She recognized that rolling back bipartisan election law would allow special interests to dominate campaigns across the country and drown out the voice of the American people. Though she knew she'd probably lose, she chose to make it her fight all the same. That's character.

Wait, hold on a moment -- who thought Kagan was going to lose Citizens United? Since when was that case a foregone conclusion? And how does that obviate her responsibility in losing one of the landmark cases of the last year?

I don't think Obama and Biden want to make a big case of Kagan's positions as a Solicitor General. Let's take one at random: here's a recap of a case where Kagan argued that detainees at Bagram Airbase have no rights:

The U.S. Supreme Court ruling in Boumediene v Bush, which granted habeas rights to Guantanamo detainees, Kagan wrote, “rested heavily on the ‘unique status of Guantanamo’” in terms of “the nature and duration of the United States presence at the site of detention, and the practical obstacles to permitting the detainee to pursue habeas relief in United States court…”

Bagram, she wrote, “does not share the defining attributes of Guantanamo,” thus “an enemy alien apprehended and detained by the military overseas in an active war zone at the very least bears an extremely heavy burden before he may sue his captors civilly and require the federal courts to second guess the judgment of both political branches with respect to the reach of habeas jurisdiction.”

Now, whether or not the case is correctly legally argued, it returns to mind the fact that the Solicitor General's job is to basically legally argue whatever the President believes, whether it be that Bagram air-base detainees have no rights or that some detainees may be held forever.

How strange, then, to back a Solicitor General for losing a case of great importance, while defending a principle that you told her to have.

Court Commentary: Nominee to the Court

As I've said before, the Supreme Court is one of the parts of government I get most excited by (even going so far as to daydream of serving on it), so I'm watching with rapt attention to see how the replacement of John Paul Stevens plays out.

Here's my hope for what the nominee encapsulates. I'll leave out the identity politics, because that basically turns into a game of "which underrepresented minority most deserves the next seat." Also, it is funny to me that Protestant is an underrepresented minority.

Here's my qualifications:

• Trial Judge: I was shocked when I found out that Sonia Sotomayor is the only trial justice on the Supreme Court. Trial judges are often the ones dealing with trials that need the clearest and the fairest system of law. The Supreme Court has a hard time dealing with human rights -- after all, with the notable exception of Brown v. Board of Education, most advances in rights have come from the legislative (the Constitution and its amendments, the Civil Rights and Voting Rights acts, etc.) and not from the courts; the courts merely defend the rights that Congress have established. But on the issue of fair trials and the rights of the accused, the Supreme Court is the first line of defense. When it comes to our national defense and war on drugs policies, it takes a trial judge to know how the legal system works in actual practice. Whereas policymakers and voters tend to believe that criminals should be treated as criminals, trial judges remember innocent who also have to go through the same legal system, and that a legal system that is abused can hurt the innocent.
• Can't Have a Middle Name that Starts with G: Antonin G. Scalia, John G. Roberts, Stephen G. Breyer -- clearly people with the middle name G. are over-represented.
• Strongly Anti-Executive: I'm not particularly anti-executive myself -- balance in all things -- but although I don't think the court is necessarily too conservative, but it is true that although the Court is moderate in many areas, it has been pushed more strongly in the direction of a strong executive branch with the inclusion of John Roberts and Samuel Alito. Particularly in the wake of the Bush Administration,
• Southern: Regionally, it would be helpful if the nominee came from the South. The only currently serving candidate from the south is Clarence Thomas, and we all know he doesn't count:
  

  Thomas had gone 2 years and 144 cases without speaking up during oral arguments. "It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries," the AP wrote at the time.
  

  The First, Second, Third, Seventh, and Ninth Court of Appeals are all represented on the Court, as well as the D.C. Court of Appeals. The Fourth, Fifth, Sixth, Eighth, Tenth, or Eleventh all have a different sort of background from the ones represented on the Court, and it would be useful to have some sort of representation from them.
  
  Politically, by the way, this might be a helpful as well (secondary to the judicial gains of diversity).
• Corporate-Skeptic: I don't want to say that I would select him/her to overturn a particular ruling (although I think we all know which one I would want overturned). But the general outlook should be that the Supreme Court should not simply be skeptical of the power that the federal government (and particularly the Executive Branch) can exert over individuals, but also the power that corporations have over people in realms where they are not over-ruled by the government. Net Neutrality, for instance, has a high likelyhood of sitting in front of the high court after an appeals court ruled that the FCC's net neutrality regulations are legally improper. There, the corporations show that they have a control over the information we receive, and can do so because of a difficulty in competition and a lack of transparency over the tactic.

I'm sure there are other important things to look for in a nominee, but those are the things that stick out to me.

Court Commentary: United States v. Comstock ... In Verse

(My company's Hamlet is still running, with six shows next week. Tickets are still available, and I've already had one blog reader say hello!)

I wrote the following response to the Supreme Court case United States v. Comstock, because I was tired and I was waiting in the wings during Hamlet. There may be more in the future. You are warned.

SUMMARY

Respondent in this case is Comstock

Petitioner's United States

Defendent herein seeks to unlock

Comstock's cell and prison gates

Comstock's jailed for crimes of sex

Perpetrated years ago

To be release he should have been next

But the second jury's 'no'

Leaves the plaintiff jail'ed still

With to certain date to leave

His term is up but he's not done yet

So he feels he's been deceived

See, our Congress passed a statute

The Adam Walsh Child Safety Act

Creating one more step to get through

Before your jail bags can be packed

You must prove that you're no danger

That your term has fixed your mind

Convincing panel, judge, or juror

You've left sexual crimes behind

They quiz you on your deepest fancies

And you're lawbound to reply

And if they find your dreams abhorrent

Kiss your sweet release goodbye

They can, indeed, hold you forever

Civil commitment's the name of the fate

If they decide you still think evil

They won't tell you your go-home date

COMSTOCK

Comstock's case is quickest to recount

"My term is up, so let me free!

No matter what, I must be let out

And that's the way the law should be

Imagine if the gov could jail you

On the tiniest of charge

But on the final day detain you

Let your jail term slow grow large

The law mandates a term to start with

And judge confirms that at the trial

But if we say 'That's only part'

You could stay locked up for a while."

UNITED STATES

"But wait!" the U.S. seeks to argue

"What if perverts don't repent?

Should we release a rapist to you

If we think to crime he's bent?

Our job is, in a word, protection

Like doctors we can do no harm

while knowing he'll return to prediliction

The public will raise the alarm

We'll be blamed for missing ation

If we knew him, and released

There'd be no way to fix the damage

No resurrection for deceased

The process used by our parole board

To review the impact of freeing

Can, in these cases too, prove more

safe than just 'release and see'ing.

We are bound by higher calling

To protect and also serve

If we find his state appalling

He will get what he deserves."

IMPACT

The case has resonances, clearly

With other policies of late

The mind is drawn at once to Cuba

And the enemies of state

In other cases, courts have found

Indefinite detention wrong

The Eigth Amendment must prevent

Incarceration stretching long

Though, there are some different features

To distinguish this from those

Detentions of the Bush Admin years

(Although those are just different clothes)

For instance, this detentions legal

inasmuch as there's a law

This isn't presidential fiat

In Guantan'mo's legal maw.

Secondly, there are review boards

Judges, juries, or a panel

Evidence must be looked over

Before a term is made so final

OPINION

For my part, I side with Comstock

On the issue of the term

How many viewings must we watch

Minority Report before we learn?

You see, a trial revolves around a crime,

Event, which happened in the past.

We ask, "prove so-so did this!"

That's a manageable task.

Here, however, crime is future

So begins a dicey game

Now we're talking just desire

Whether or not the beast's been tamed.

Can we know what folks will do

Years and years along the line?

And if the perp has disagreement

How to prove to us he's fine?

In this case, as with Gitmo,

Or police who use entrapment

Passing judgment on a person

Not one what a person's done

To paraphrase in verse from Franklin:

Want safety over liberty?

have none.

Court Commentary: American Needle v. NFL

So, if senior year of high school I had realized that the arts had no future for me, I know exactly what I would have done. I would have gone into Constitutional Law and worked my ass off to work towards my deepest secret desire: to be a Supreme Court Justice. Seeing as I'm a non-native born liberal Israeli male, the odds of me getting onto the Supreme Court are low to none, but I might have made a Federal judgeship, and I think I'd be okay with that.

Anyways, I follow the Supreme Court closely when I can, and what I love are cases like this one: American Needle v. NFL.

The case, as I can sum it up:

• The 32 teams of the NFL license the NFL their logos, and the NFL in turn licenses those logos to a single merchandiser, Reebok.
• Another merchandiser, American Needle, sued the NFL, saying that it was a trust -- a collection of competing entities that had unified to distort the market.

The claim hinges around whether the NFL is a single, unique entity, or whether it is an umbrella organization for 32 entities in the same market. If it is the former, then it is not a trust. If it is the latter, then it is.

Anyways, as the oral arguments have progressed, it has seemed to me to be clear that the NFL is a trust.

1. The teams existed before the NFL, and came together to form it.
2. Teams such as the Harlem Globetrotters have proved that teams don't need the league to exist, and thus are not dependent on it.

But really, that's not the part of the case that interested my brain. I was interested in something my mother brought up. You see, my mother is not a sports fan. She kind of dismisses the entire notion of sports. When I told her this story, she waved her hand and said, "Oh, if the NFL is raising prices on Football hats, why not buy hockey hats?"

It made me wonder how you can define a market. Really, the question is "are the two products equivalent?" If, from the consumer's perspective, you can swap one product for another and they can be comparably equivalent, then they are in the same market.

Silly Illustrative Example 1: If I am shopping for a blue baseball cap, and they are out of blue baseball caps, it is not unlikely that I will buy a black baseball cap. This are roughly equivalent options.

Silly Illustrative Example 2: If I am shopping for a car, and they are out of cars, it is unlikely that I will buy a scooter. These are not roughly equivalent options.

But what about something like a sports jersey? Suddenly, people's emotions come into play. If a person wants to support the Bengals because Chad Ochocinco is the greatest person alive today, they will not accept a New York Giants jersey in exchange (by the way, apparently these are equivalent for Justice Breyer, who doesn't appear to give a shit about sports, unlike Justice Blackmun or Justice Sotomayor). There's some sort of emotionally distinguishing value. Football fans are a distinct crowd from hockey fans, and Bengals fans are a distinct crowd from Giants fans. Sometimes it seems like saying there isn't much difference between a Mets fan and a Yankees fan isn't that far from saying there isn't much difference between Arabs and Persians.

I wonder how that concept pays out in the arts.

This morning, when I first thought up this post, I had a brilliant insight on that score, but I was driving and now it's 1:30 AM and I can't remember.