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Parker’s Supreme Court Watch: Losing Scalia Vote Has Not Changed Result in Criminal Cases

Ross Parker

Ross Parker

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.

By Ross Parker
ticklethewire.com

The Supreme Court will follow the usual pattern of not hearing oral argument in May and June. But that doesn’t mean that the Justices are loafing in their chambers. Far from it. There are per curiam opinions to write, individual opinions to author and certiorari petitions to consider.

So far this term the Court has issued a half dozen per curiam (by the Court) opinions. These are decisions without a designated author, usually without a dissent or concurrence and concerning well settled areas of the law. The cases are often non-controversial, do not involve an oral argument, and serve to quickly dispose of a routine issue. They are sometimes criticized as a method of avoiding individual Justice accountability and controversies. An example is the case of Bush v. Gore, regarding the election of 2000. The cases of this term, although having some value in terms of the development of the law, do not appear to be subject to this criticism.

The most significant and time-consuming of the work to be done in the two months left of the term are the draft opinions to circulate, discuss and argue about and the cases to decide before the June adjournment. Among criminal cases, which only make up a fraction of the docket of 150-200 cases annually, the Justices still have 12 cases to decide among the 22 oral arguments they heard from October to April.

Predicted 9 of 10 Decisions

So far the Court has decided 10 of the 22 heard during this term. This column has, thus far, correctly predicted the result in 9 of the 10. Not too shabby.

The case I missed was Luis v. United States, in which 4 Justices held that the pretrial freezing of untainted assets subject to forfeiture violated the 6th Amendment. The precedential value of the case is discussed further below.

Justice Antonin Scalia

Justice Antonin Scalia

Justice Scalia’s absence has, no doubt, been felt in the process of deciding cases, but losing his vote has not changed the result in the criminal cases, at least not that is visible to the public. His votes on cases that had not been announced as of the time of his death are void, but there have been no 4-4 criminal cases handed down. In that situation the ruling of the lower court stands.

In one case decided, Luis v. United States, however his absence may have affected the precedential value of the decision. The plurality opinion was signed by only 4 Justices, but with Justice Thomas’s concurrence in the result (but not the reasoning), there was a five-vote majority with 3 dissents. The stare decisis (precedential authority of the principle of law) effect on future, similar cases of the primary opinion will have to wait for those future cases. This has been a matter of some debate. Compare The Legal Tender Cases (1870) with Mitchell v. W.T. Grant Co. (1974).

In any event the likelihood of a 4-4 stalemate is more likely in some of the hot-button civil cases currently pending, like the lawsuit to block President Obama’s order to defer deportation of 5.5 million aliens and the case involving Texas’s restriction on abortion law. Few of the pending criminal cases are likely to end up in this predicament. It has been speculated that the Court sometimes looks for a more narrow reasoning to achieve the result of a decision if the preliminary vote is 4-4. The precedential value of the case is limited but at least the opinion serves the purpose of the “right” result rather than just letting the lower court’s opinion stand.

Next month’s column on the Court will report on the case decisions during the month of May, and the following one will wrap up the significant developments of the Court’s term.

Ex-Federal Prosecutor Publishes 5th Novel, This Time About a Rape on a Prestigious Michigan College Campus

Featured_20_35_56_915_allisonleotta_portrait

Allison Leotta

By Allan Lengel
ticklethewire.com

For 12 years, Allison Leotta, a Detroit area native and Michigan State University grad, worked as a prosecutor in the U.S. Attorney’s Office in Washington, dealing with sex crimes and domestic violence.

These days, she’s a novelist, who writes with authority on crime.

Once described in the Providence Journal as the female John Grisham, Leotta on May 3 will officially release her fifth novel, “The Last  Good Girl,” which deals with rape at a prestigious Michigan university named Tower University. Next week, she begins a book signing tour in Metro Detroit and northern Michigan

“There’s an epidemic of sexual assaults on college campuses in America,” Leotta said Friday in a phone interview with Deadline Detroit. “One in five girls will be sexually assaulted before they graduate. What I try to do in this book is weave these shocking statistics into a compelling, fascinating thriller.”

A synopsis on her website describes the book:

Emily Shapiro has disappeared.

A freshman at a Michigan university, Emily  was last seen leaving a college bar near Beta Psi, a prestigious and secretive fraternity. The main suspect is Dylan Highsmith, the son of one of the most powerful politicians in the state. At first, the only clue is pieced-together surveillance footage of Emily leaving the bar that night . . . and Dylan running down the street after her.

When prosecutor Anna Curtis discovers a video diary Emily kept during her first few months at college, it exposes the history Emily had with Dylan: she accused him of rape before disappearing. Anna is horrified to discover that Dylan’s frat is known on campus as “the rape factory.”

“A lot of people have told me this is my strongest and best book yet,” she says.

Leotta said some people have gotten hold of the book online before the official release, including women who have been sexually assaulted.

“The response from readers has been more emotional and stronger than anything else I’ve written,” she said.

A Harvard Law School graduate, she lives in suburban D.C. with her husband and two sons.

 

Weekend Series on Crime History: Nixon and Hoover Talk About Killings of Police Officers

FBI Actually Paid Less Than $1.3M to Unlock San Bernardino iPhone

Apple-iphoneBy Steve Neavling
ticklethewire.com

Despite a suggestion from FBI Director James Comey that it cost the FBI about $1.3 million to unlock an iPhone of one of the San Bernardino shooters, the price tag was a lot more inexpensive.

Business Insider report that the FBI paid under $1 million for the technology to unlock the phone.

Investigators won’t need to pay extra money to use the technology to open other iPhone 5C models running on iOS9.

The FBI paid a contractor to bypass the phone’s encryption features.

FBI Arrests 3 Relatives of San Bernardino Shooter Unrelated to Terror Attack

The San Bernardino couple who opened fire at a holiday party.

The San Bernardino couple who opened fire at a holiday party.

By Steve Neavling
ticklethewire.com

The FBI arrested three people with connections to one of the San Bernardino shooters.

They were charged with marriage fraud, lying under oath and conspiracy, the Washington Post reports.

The charges are not related to the terrorist attack last year by Syed Rizwan Farook and his wife.

Farook’s brother, Syed Raheel Farook, was charged with marriage fraud conspiracy. Raheel’s wife, Tatiana Farook, and her sister, Mariya Chernykh, also were arrested.

The trio is accused of lying under oath to help get immigration benefit for Chernykh, 26.

FBI Arrests Oregon Man, Found Pipe Bombs, After Alleged Threats to President Obama

president obama state of unionBy Steve Neavling
ticklethewire.com

The FBI arrested a 61-year-old Oregon man on charges of threatening the president after authorities said they found what appeared to be pipe bombs in his apartment, ABC News reports. 

John Martin Roos of Medford, Oregon, was charged Thursday.

In a statement, the FBI said, “At approximately noon on Thursday, April 28, 2016, FBI Agents and Medford Police Officers served a federal search warrant at an apartment on Poplar Drive in Medford. Inside, they found what appeared to be several pipe bombs. The Oregon State Police Explosives Unit responded, and members of that unit have rendered the devices safe.”

The statement continues, “There are two men who live at that apartment, and one was home at the time of the search. Agents and officers detained him for a short while until the scene could be secured, but he has been released and is not charged. FBI Agents located a second resident of the apartment at another Medford location shortly after entering the residence. This second man, 61-year-old John Martin Roos, was the subject of the search warrant. Agents made a probable cause arrest of Roos, charging him with Threatening the President of the United States and and Use of an Interstate Facility to transmit Threats. The United States Secret Service is assisting in this investigation.”

Ross is lodged in the Jackson County Jail and is expected to make an initial court appearance soon.

FBI Records: ‘Argument Can Be Made’ That Agents Violated Policy with Bogus News Article

AP LogoBy Steve Neavling
ticklethewire.com

When the FBI created a bogus Associated Press news story to capture a man who was making bomb threats to a school in suburban Washington, agents said they were doing nothing wrong.

But documents obtained through a public records lawsuit show the FBI had some misgivings about posting a bogus news story, the Associated Press reports. 

An internal FBI report said “an argument can be made” that agents violated protocol by failing to inform senior brass in Washington about the 2007 operation.

The records suggest that the FBI’s headquarters should have reviewed and given approval for such an undercover operation.

Nevertheless, the FBI’s Cyber Division said the bureau acted reasonably “under the circumstances.”

“Although an argument can be made the reported impersonation of a fictitious member of the media constituted a ‘sensitive circumstance’ that would have made the undercover activity subject to FBI HQ review and approval required for a Group 1 undercover operation, the facts of the case do not clearly indicate that such a sensitive circumstance existed,” the report says.

U.S. Supreme Court Gives FBI Authority to Hack More Computers

hacking By Steve Neavling
ticklethewire.com

The Supreme Court on Thursday gave the FBI more authority to hack into computers beginning in December.

Until then, Congress can adopt legislation to undermine the court’s decision, the Intercept reports. 

Before the ruling, magistrate judges were prohibited from approving a warrant request to search a computer unless the computer was inside the judge’s jurisdiction.

Under the ruling, the FBI would be able to gain a warrant to search a computer anywhere in the country, regardless of jurisdiction.

Privacy advocates weren’t happy.

“Whatever euphemism the FBI uses to describe it—whether they call it a ‘remote access search’ or a ‘network investigative technique’—what we’re talking about is government hacking, and this obscure rule change would authorize a whole lot more of it,” Kevin Bankston, director of Open Technology Institute, said in a press release.

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