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Parker: Scalia’s Participation in Discussions and Drafts Circulated Undoubtedly Affected the Rationales and Nuances of The Rule of Law

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

Ross Parker

Ross Parker

By Ross Parker
ticklethewire.com

The Supreme Court issued four opinions in criminal cases in May, which leaves nine more cases to be decided in June before the end of the 2015-2016 term. The split in the vote for the cases was 8-0, 7-1, 5-3, and 5-3, with the Court siding with the government argument in three of the cases and the defendant in one case. The Court has issued 54 full opinions thus far in the term, 13 of them in criminal cases.

The votes seem to indicate that the absence of Justice Antonin Scalia has not, thus far, changed the result of criminal cases although his participation in the discussions and drafts circulated undoubtedly affected the rationales and nuances of the rule of law that resulted from the opinions. The politically charged cases that need a swing vote to give the case a 5-4 majority have, of late, tended to be more often civil cases. An example since Justice Scalia’s death was Zubik v. Burwell on the issue of contraceptive coverage and First Amendment freedom of religion. In that case a week ago a 4-4 vote let the lower court’s decision stand.

And that, perhaps, has some positives by shifting the responsibility to resolve difficult disputes from a single unelected Justice to elected officials to find a compromise and a solution acceptable to a majority of their constituents. Not that our Congress has of late shown any ability to achieve this result.

Justice Scalia, however, showed no shyness about close votes or his role to stake an opinion on a result and reasoning that he felt was right. In her eulogy in February, Justice Ginsburg said, “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.” So things are not as much fun without him, both in public at oral argument and apparently in chambers.

The column’s predictions of the results of the May cases included one swing-and-a-miss in the Courts’s decision in Betterman v. Montana. The Court unanimously found that the roots of Speedy Trial were limited to delays prior to conviction and did not extend to delays prior to sentence. I had thought that today’s importance of sentencing hearings and the effect of delay on a defendant’s ability to defend himself at the time of sentence could, in effect, expand the constitutional right to one of Speedy Justice. But I was unaware, at the time of the column, that defense counsel would concede at oral argument that they had failed to preserve the issue of whether due process could afford such protection. So that issue remains open for future litigants.

For prosecutors the most important opinion may have been Foster v Dulles, in which the Court found that a death penalty defendant had a right to a Batson hearing on whether the prosecutor had impermissibly made peremptory challenges to prospective jurors based on race. The trial and appeals judges accepted the trial prosecutor’s “neutral explanations,” but notes obtained 30 years after the trial showed otherwise. The case breathes life into the Batson prohibition and will hopefully discourage the practice and make trial judges more skeptical about disingenuous explanations.  The effect of unscrupulous removal of Black jurors is a taint on the perception of justice by members of the African American community. Black jurors matter.

As a practical matter this racist practice gives support for elements who want to eliminate or greatly reduce the number of peremptory challenges given to trial prosecutors. This was the recent recommendation of the Advisory Committee on Rules of the Judicial Conference. In this age of strange people showing up for jury duty, such a change would damage a trial prosecutor’s ability to get an unbiased jury. The other effect of the decision will be to be to make prosecutors more careful about what they leave in their case files.

The two 5-3 cases involved questions of predicate offenses under the Immigration and Naturalization Act (Torres) and whether the person from whom property was taken could be a Hobbs Act conspirator. He can. (Oceano)

There are a bunch of interesting and knotty cases left for next month, including former Virginia Governor Bob McDonnell’s future as a free man.

 

 

Senate Report Cites ‘Inferior’ Whistleblower Protections for FBI Agents

whistleBy Steve Neavling
ticklethewire.com

The FBI has a habit of punishing its own whistleblowers.

That may change soon under the proposed FBI Whistleblower Protection Enhancement Act, the Washington Post reports. 

“Whistleblowers play a critical role in keeping our government efficient and honest, yet they also risk retaliation from their employers, sometimes being demoted, reassigned, or fired as a result of their actions,” says a report issued in support of the FBI Whistleblower Protection Enhancement Act.

The legislation would strengthen protections for whistleblowers who expose fraud, waste and abuse.

It also would allow employees to report abuses to their own supervisors.

“This has left protections for FBI whistleblowers inferior to those of other Executive Branch employees …” the report said. “Unlike all other Executive Branch employees, including employees in the intelligence community. … FBI employees enjoy no legal protection for making reports of wrongdoing to supervisors or others in their chain of command.”

FBI Steps Up Search for Convicted Murder Who Escaped 45 Years Ago

Leonard Rayne Moses, via FBI.

Leonard Rayne Moses, via FBI.

By Steve Neavling
ticklethewire.com

Leonard Rayne Moses was sentenced to life in prison when he was allowed to attend his grandmother’s funeral in Pennsylvania.

Moses escaped from authorities and has been missing ever since.

That was June 1, 1971.

On the 45th anniversary of his escape, the FBI began posting information about Moses on electronic billboards in several states, the Pittsburgh Post-Gazette.  The FBI all is offering a reward of up to $10,000 for information leading to his arrest.

At the time of his escape, authorities thought he may have fled to Detroit.

No other Pennsylvania inmate has been on the run as long as Moses.

Moses was convicted of murder after tossing a Molotov cocktail at a house in Homewood, Pa., on April 6, 1968 as people rioted in the wake of the Martin Luther King Jr.’s assassination.

Border Patrol Mechanic to Be Sentenced for Stealing Parts from CBP Vehicles

Border PatrolBy Steve Neavling
ticklethewire.com

A Customs and Border Protect mechanic who sold parts from Border Patrol vehicles on eBay is scheduled to be sentenced soon.

Herold Demes, who worked for Border Patrol in Tucson, was indicted by a grand jury last month on a theft charge, Fronteradesk.org reports. 

Among the parts Demes sold were two driver-side airbags, a fuel pump and seat belt tensioner.

Demes admitted in federal court that he sold the parts.

Prosecutors will ask a judge to impose a maximum six-month sentence and order restitution of $2,400.

FBI, ATF Help Investigate Suspected Murder-Suicide at UCLA Campus

UCLA campus, via Wikipedia.

UCLA campus, via Wikipedia.

By Steve Neavling
ticklethewire.com

The FBI and ATF are helping investigate what appears to be a murder-suicide on the campus of UCLA on Wednesday.

Agents from both agencies responded to the campus shooting soon after it was reported, UPI reports. 

Police confirmed two people – both male – were shot dead. One of the men shot himself.

Their ages and identities have not yet been released.

“There is a note. I don’t know if it’s a suicide note. I don’t know if it’s a confession. I don’t know what it is,” the LAPD chief told reporters.

Federal Lawmakers Propose Widely Different Ways to Tackle Long Lines at Airports

Airport crowdBy Steve Neavling
ticklethewire.com

Lawmakers are offering potential solutions to long wait times at airport.

After Sen. Chuck Schumer, D-NY, suggested $28 million in extra funding for three busy northeast airports, another lawmaker suggesting adding private screeners.

The Hill reports that Rep. Diane Black, R-Tenn., wants the TSA to use more private screeners.

Of the 472 commercial airports, only 22 have help from private contractors.

“My question is: why?” Black said. “Congress must ensure that TSA culture and policies aren’t standing in the way of allowing businesses the ability to compete for these opportunities.”

Black also wants a realistic cost of private contractors.

“Congress can’t keep throwing taxpayer money at a broken agency that, by every metric, is failing our travelers, without demanding reform,” Black said.

Other Stories of Interest

Sen. Schumer Proposes Freeing Up Airport Security Lines with $28M

airport lineBy Steve Neavling
ticklethewire.com

Responding to complaints about long lines at airports, Sen. Charles Schumer wants to divert $28 million in federal funds to hire 600 new TSA agents.

The New York Post reports that the money would be used for security at JFK, La Guardia and Newark airports.

“We have to do everything we can to reduce wait times,” Schumer said. “It affects thousands of New Yorkers who travel every day, but it affects the whole country because when there are backups here, the rest of the country gets backed up as well.”

The TSA said earlier this month that security-checkpoint wait times had significant increased.

Other Stories of Interest

 

Chicago Tribune: FBI Investigation Magnifies Hillary Clinton’s Flaws

Hillary Clinton

Hillary Clinton

By Editorial Board
Chicago Tribune

For months, Democrats have been watching the GOP presidential primaries with a mixture of amazement and glee, as Republicans went through the process of chaining themselves to an egotistical bully with a disdain for facts and a penchant for statements seemingly designed to alienate major voting blocs. Victory was assured. Democrats only had to ponder how big their triumph over the unelectable Donald Trump would be: Big enough to capture states that have been Republican strongholds, such as Arizona and Georgia? Big enough to deliver Democratic control of the Senate — or even the House? Big enough to cause a fatal splintering of the Republican Party?

Now, Democrats are waking up to the possibility that they are the ones flirting madly with disaster. Hillary Clinton‘s flaws, once considered politically inconsequential, have been steadily magnified by campaign scrutiny and official investigations. Those flaws now loom bigger than Mount Rushmore. Last week’s report by the inspector general of the State Department made clear that in relying exclusively on a private email server as secretary of state, she violated department policy, put security in danger and lied about what she had done.

It is a thoroughly damning document — all the more so because the inspector general who submitted it, Steve Linick, was appointed by President Barack Obama. Anyone groping to excuse Clinton’s conduct eventually has to face the stark, infuriating fact: What she did served no purpose beyond letting her selfishly evade the rules and accountability demanded of everyone else. Her failure to cooperate with the inspector general’s inquiry, at the department she led, iced the cupcake.

To read more click here.