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Supreme Court Opens the Term with Criminal Case Arguments

By Ross Parker
ticklethewire.com

US_Supreme_Court

The Supreme Court opens the 2016-2017 term on Monday with only 8 Justices because of the death last spring of Justice Scalia. The conventional wisdom is that the Court will do its best to avoid the confusion of 4-4 voting splits by postponing controversial cases another Justice is confirmed. Of course that is not always possible, particularly when the case had already been accepted while the Court was at full strength or when a case is unavoidable. An example of the latter would be a voting controversy after the Presidential election such as the 2000 case which confirmed George W. Bush’s election. God forbid the only thing that could make this election any crazier.

The Court has broad discretion in deciding what cases to accept for decision. Certiorari is granted in only about 80 of the 8,000 odd petitions that are filed. Oral arguments occur about 5 or 6 days a month from October to April. After the argument the Justices meet privately and take a preliminary vote. If the Chief Justice is in the majority, he will assign the author of the opinion. If he is in the minority, the senior Justice does so.

October’s case selections are somewhat unusual in that of the 8 cases scheduled for argument, 6 of them are criminal. Moreover, one of the two civil cases involves an issue of the liability of law enforcement agents who are sued for unconstitutional searches. Usually criminal cases comprise a third or less of the full opinion docket, about half that number of oral arguments in a month.

The first case scheduled for oral argument in the term, Bravo-Fernandez and Martinez-Maldonado v. US, involves a Puerto Rican Senator and businessman convicted of bribery in connection with gifts (Las Vegas boxing match tickets) provided to the Senator who then proceeded to vote in favor of legislation which benefitted the businessman. However, during the same prosecution, the jury also acquitted the two of other charges directly related to the issue of bribery. The verdict was irreconcilably inconsistent. On appeal the substantive bribery convictions were vacated due to erroneous instructions. The government seeks to re-try the vacated counts.

The issue before the Court is whether the factual conclusions underlying the acquittals should work to preclude the retrial under the Collateral Estoppel doctrine of the Double Jeopardy Clause. That is, should the jury’s acquittals prevent the government from retrying the defendants a second time on the charges of the vacated convictions?

As a general rule the government cannot re-litigate fact issues resolved against it in a previous prosecution. However, an exception to this rule is made in the case of inconsistent verdicts. The question is whether vacated convictions can be considered under double jeopardy to decide if the verdicts were inconsistent.

Four amicus briefs have been filed in support of the defendants’ arguments. The appeal is a prime example of why amicus briefs should be read to fully understand the issue and what is at stake in the case. One of them in particular filed on behalf of the Cato Institute is a good example of this practice ignored by most lawyers who follow Supreme Court cases. It was authored by Cato’s counsel on the appeal, David Debold, and it presents a thoughtful and erudite discussion on why the history of double jeopardy should preclude the re-trial on the vacated counts. Those of us who have worked beside Mr. Debold can only smile appreciatively at his use of an obscure theory of quantum physics to explain his point that a vacated conviction does not exist legally and so cannot be used to support the proposition that the verdicts are inconsistent.

However persuasive the theory of the defense argument, the fact remains that juries in the United States have always been able to render inconsistent verdicts based on irrational considerations, compromises, or desires to reduce the punishment involved. Or just to get the hell out of the jury room. If some part of a jury agrees to vote to return completely inconsistent verdicts out of a desire to end an interminable jury service, to effect a compromise with the other part of the jury, or because they believe they will be cutting the defendant a break, they have always had a historical right and power to do so. Nullification acquittals by juries to avoid a mandatory death penalty by the theft of a loaf of bread only a couple centuries ago are a related example of this time-honored principle.

Prediction: The defendants’ convictions will be affirmed. The defendants have to prove that the jury necessarily decided the factual bribery issue by their acquittals on some counts, but this is impossible when the verdicts are inconsistent. The general authority of prosecutors to retry a conviction after it has been set aside on appeal because of trial error is so entrenched in the criminal justice system that even a skillful argument on the protections of double jeopardy will not persuade the Court to abandon the practice.

The second case, Shaw v. US, also to be argued on Tuesday, involves the question of whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argues. That seems like it should be a simpler issue than the former case, but it is one which has bedeviled the Courts of Appeals for years.

A minority of the Circuits, 3 of them, hold with the government’s argument that the statute requires only proof of an intent to deceive the bank in connection with something of value, even if the bank suffers no harm, no loss of a monetary value. The defendant counters with the Circuit majority that there must be proof of an intent to improperly obtain property owned by the bank, not just the property of one of its customers. But how should “property rights” be interpreted, narrowly as the bank’s own assets, or more broadly, as assets owned or possessed by the bank, as it holds deposits by its customers?

Both sides argue that the plain meaning of the statute supports their interpretation, but if there is one thing I have learned practicing law, nothing is ever plain when lawyers are arguing.

Shaw openly admitted in his trial that his intention was to cheat one of the bank’s customers out of the $300,000 he stole through a fraudulent Pay Pal scheme and that the government would have gotten a conviction if it had charged under the correct statute. Only the customer and Pay Pal lost money, not the bank. But should the statute require that we parse a thief’s state of mind as to the technical issues of bank law which surround reimbursement by a bank of lost depositor assets?

Prediction: The Court will affirm the defendant’s conviction. But don’t bet the mortgage money on this prediction. Safe money would go the other way as 9 Courts of Appeal have chosen to go. But I have always thought that, once I deposit my meager government pension check, those dollars now belong to the bank subject to its obligation to return part of it at the ATM machine (“hit the buttons” as my friend Jim King is wont to say).

The next column will discuss two of the remaining October oral arguments. Both involve aspects of one of the current important issues of the day—whether African American and Latino defendants can get a fair shake in the American criminal justice system. Were the Justices motivated to decide these cases early in the term, perhaps to weigh in on the controversy?

Who says Justices don’t watch the evening news? The question is, is it Fox or MSNBC?

 

Robin Hood in Reverse — A $1.1 Million Scam

2000px-robin_hood_logo-svg

By Greg Stejskal
ticklethewire.com

In 2005 Female Jones (not her real name), an indigent woman living in public housing in Ann Arbor, Mich., discovered she wasn’t eligible for federal housing assistance. The reason she wasn’t eligible was because it appeared she was already receiving “Section 8” voucher payments. Jones wasn’t aware of receiving any assistance. So it was assumed that there was a bureaucratic snafu, but an investigation revealed something far more nefarious.

Section 8 vouchers are so-called because they are authorized under Section 8 of the Federal Housing Act of 1937, part of the New Deal legislation designed to help people suffering the effects of the Great Depression. In 1974 the Housing Act was amended to create the Section 8 voucher program. Low income people would be eligible for vouchers that would pay a percentage of their rent in approved housing facilities. The money for the program would be provided by U.S. Department of Housing and Urban Development (HUD), but the program would be administered by the state and local public housing agencies.

There was only a limited amount of funding available. So not all eligible people would receive vouchers. In Michigan a waiting list existed and waits of 3-6 years were not uncommon.

Greg Stejskal

Greg Stejskal

The voucher payments were made directly to the indigent tenants’ landlords to minimize the opportunity for fraud. Housing voucher agents working for the state prepared the application forms for the indigent applicants. These agents obtained background information and determined whether the applicants met the eligibility requirements.

Female Jones’ caseworker determined that she was enrolled in the Section 8 program, and voucher payments were being sent to Washtenaw Payee Services, a company that appeared to receive Section 8 payments on behalf of several landlords in Washtenaw County. Because the woman was unaware of the payments, and they were not being received by her landlord, the caseworker reported the problem to the Michigan State Housing Development Authority (MSHDA).

MSHDA’s initial investigation indicated there might be some fraudulent activity. As the Section 8 program is federally funded, they reported their concerns to the FBI, and a joint FBI/MSHDA investigation was begun.

Although Washtenaw Payment Services (WPS) appeared to have an office with a street address, it turned out to be a private mailbox service which is often a red flag in a fraud investigation.

The bank records for WPS were obtained via subpoena. Those records showed that WPS was formed in 1990 when LaToya Cotton filed business papers with Washtenaw County and opened a bank account. Since 1994, about 11 years, WPS had been receiving Section 8 voucher payments ostensibly for landlords of low-income tenants enrolled in the program.

The striking thing was the founder of WPS, LaToya Cotton, was a Michigan housing agent responsible for enrolling prospective low-income applicants for Section 8 vouchers. But even more troubling, it didn’t appear that any money had been paid from the WPS account to any landlords on behalf of the Section 8 enrollees.

LaToya Cotton became a Michigan housing agent for MSHDA in 1994. Very soon thereafter she concocted her scheme.

Prior to becoming a housing agent Cotton had setup the WPS account for a legitimate purpose. But after becoming an agent and enrolling applicants for the Section 8 program, she designated WPS as the recipient for some of the applicants’ landlord payments. When the WPS applicants were approved for Section 8 payments, Cotton didn’t tell them they had been approved. Rather, she told them they were not approved, or that they were on the waitlist. None of those enrollees were ever aware that they had been approved for Section 8 payments.

In September 2005, the FBI obtained a search warrant for Cotton’s office. The records seized revealed that during the 11 years that Cotton was a housing agent, she enrolled 100s of Section 8 applicants. Of those applicants she designated WPS as the recipient of landlord payments for about 40 of the enrollees. Cotton would periodically change the WPS enrollees, removing some and adding others. At the time her office was searched, she had eight enrollees whose voucher payments were going to WPS.

All of the money paid into the WPS account was used by Cotton for personal expenses. Over the 11-year period of the fraud, the total amount paid into the account was $1,051,701. She purchased cars, went on vacations. In April 2004, Cotton purchased a 5,237 square foot home for $830,000.  MSHDA figured that the amount embezzled by Cotton could have subsidized housing for 50 families for more than four years.

In January 2006, in front of US District Court Judge Patrick Duggan (The father of current Detroit Mayor Mike Duggan – ironically the mayor has been trying to turn Detroit around after it has been racked by years of public corruption.), Cotton pleaded guilty to a federal indictment charging her with theft from a federally funded program.

Judge Duggan in May 2006 sentenced Cotton to three and a half years incarceration, three years supervised release and ordered her to pay $1.1 million in restitution.  (Cotton’s house was forfeited and sold with the proceeds used to pay a portion of the restitution.)

At the time I was quoted as saying, “She (Cotton) was living in a mansion and there were low-income people on the Section 8 waiting list. It was Robin Hood in reverse.”

 

DEA Misses Opportunity to Bring Rationality to Hemp Laws

La_Roche_Jagu_chanvre_1

By Ross Parker
ticklethewire.com

Overlooked in the firestorm reaction to DEA’s decisions last week declining to re-schedule marijuana was its decision not to alter the enforcement policy on industrial hemp cultivation and sale. To me this was a lost opportunity to bring some rationality and sense to one small part of the Cannabis quagmire which has resulted in the anomalous situation in which half the country has legalized pot for one purpose or another with the federal government continuing to consider it a Schedule I illegal substance.

I thought that the Acting Administrator’s and the agency’s decision on marijuana was a reasonable response. People think that keeping it in the highest schedule is an inflexible insistence that it belongs among the most dangerous drugs. It is not. It merely follows the Controlled Substance Act’s definition that it has not been scientifically proven that it has a currently accepted medical use and poses an acceptable risk. The fact that 25 state legislatures have authorized its medical use is not sufficiently reassuring to me to ignore the recent preliminary studies that it can be a risk to health, particularly for the growing brains of adolescents and young adults.

DEA has authorized 354 individuals and institutions to conduct research on this question, and when that research produces some answers then the decision to re-schedule it can proceed. Meanwhile, federal law enforcement and prosecutors have been forced to walk the tightrope on enforcement particularly in states where its use is otherwise legal.

But I thought DEA whiffed it on the hemp decision. For those unfamiliar with hemp, it is a variety of Cannabis Sativa L and so, even though it has miniscule amounts of the psychoactive THC (below .3%), it was swept up by the Controlled Substances Act of 1970. Thus came the end of a long history of promising and profitable commercial and agricultural uses.

La_Roche_Jagu_chanvre_1

Versatile Hemp

Hemp was used in the Neolithic Age in China to make paper more than 10,000 years ago. Its hardy nature and versatility spread its cultivation until it became one of the most produced agricultural plants in the world. Its uses ranged widely from ropes on ships, clothing, food, and dozens of other products. It is claimed that Columbus’s ships’ riggings, the Gutenberg Bible, the paper on which the Declaration of Independence was written, and the first American flag were all made of hemp products. George Washington and Thomas Jefferson were hemp farmers.

During World War II hemp was used to make uniforms and for other military products. The government considered it so important to the war effort that it produced a film entitled “Hemp for Victory” in 1942. Some irony there.

Today, 30 countries in the world still allow industrial hemp cultivation, and some, like France, Great Britain and Canada, report that in the last two decades it has made a resurgence and that today’s hemp economy has increased by several times. Canadian farmers in particular would be unhappy if their southern neighbor lifted its prohibition. Hemp enthusiasts today claim that the product has an unlimited economic future. With climate change assaulting farmers all over the world, crop versatility becomes increasingly important to their futures as well.

Read more »

How U-M Football Coach Bo Schembechler Inspired FBI’s First Probe Into Steroids in Sports

This column first appeared in the Ann Arbor Observer. It’s being republished with his permission.

By Greg Stejskal
ticklethewire.com

Featured_stejskal-and-bo_22400The late Bo Schembechler (left) and Greg Stejskal.

In reading recent accounts of state-sponsored use of performance enhancing drugs (PEDs), primarily by Russia, I was struck by how quickly it was decided that the FBI would open an investigation. There hasn’t always been a keen interest in pursuing criminal investigations of PEDs in sports. Arguably, that interest began in Ann Arbor.

In 1988, when I was an agent in the FBI’s Ann Arbor office, Michigan football coach Bo Schembechler asked me to come to his office. Since 1982, I had been making presentations to Bo’s players about sports gambling, drugs, and violence against women.

Now he and Mike Gittleson, the Michigan strength and conditioning coach, wanted to discuss their concerns about the use of anabolic steroids by football players. These synthetic versions of testosterone have very limited legitimate medical uses–but the coaches were seeing athletes who abused them, taking dangerously high doses to promote abnormal growth and strength.

It wasn’t just college players. The coaches told me that even the high school players they were seeing in Michigan’s summer instructional camp were asking not whether they should use steroids but when they should start.

Bo knew the sale and possession of nonprescription steroids had recently been made a felony under federal law. He wanted to know what was being done to enforce the law. I told him I didn’t know but would find out.

Read more »

The Wrap Up of the U.S. Supreme Court’s Criminal Cases for 2015-16, Including the Decision on Ex-Virginia Gov. Bob McDonnell’s Corruption Case

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.

Ex-Gov. Bob McDonnell

Ex-Gov. Bob McDonnell

By Ross Parker
ticklethewire.com

The Supremes spent a very busy June and completed opinions on six difficult criminal cases, as well as three important civil cases and several others totaling 24 opinions as of June 27th.

That constitutes more than a quarter of the opinions for the entire year. The Court did, of course, have other business, several hundred certiorari petitions to review for next term’s docket, in-chambers opinions (applications to stay proceedings etc.), orders, and a few per curiam opinions deemed not to be worthy of full, authored opinion. The Justices have, for the most part, cleared the deck so that they can visit the grandchildren.

The Court rounded off the term on criminal cases by vacating the conviction of former Virginia Governor Bob McDonnell in a convincing unanimous opinion that not only restored his career hopes but also those of hundreds of legislators who feared the government’s interpretation of Hobbs Act bribery would make politics as usual a dicey business.

The Court narrowed the definition of “official acts” and “pending question or matter” such that the standard assistance of constituents provided by politicians could not result in a career-ending indictment.  The Court did not go so far as to completely end McDonnell’s worries. It remanded the case to the Court of Appeals to review his claim that the evidence was insufficient, thus requiring dismissal of the charges. Even if he overcomes that hurdle or the Justice Department decides not to re-try the case, the question is whether future voters will forgive the First Couple’s receipt of $175,000 in shopping sprees and luxury vacations from someone who got essentially zero for his generosity.

As expected, the Court also vacated the judgment in Williams v. Pennsylvania, a capital case in which the Chief Justice of the Pennsylvania Supreme Court refused to recuse himself from ruling on a habeas petitioner’s appeal. What makes this action remarkable is that the Chief Justice, in his position as district attorney, had been involved in the criminal case by authorizing the decision to seek the death penalty and in supervising the case generally as head of the office. The vote, however, was closer than expected, 5-3, in reviewing this egregious behavior by former Chief Justice Castille. The dissent’s distinction was that the appeal involved a habeas decision, not the criminal phase of the case and occurred after Castille had left the prosecutor’s off ice. The state’s argument did not, however, pass the smell test, whatever artificial distinctions could be drawn.

In contrast, the Court ruled unanimously, 8-0, to reverse the 9th Circuit’s dismissal of the conviction in United States v. Bryant. The case held that tribal court domestic assault convictions could be valid predicates in a federal habitual offender prosecution, even though the prior convictions were without counsel. This was not a 6th Amendment violation since the right to counsel does not apply in this misdemeanor context in tribal courts. A victory for serially battered Native American women.

It was a tough month for Puerto Rico. Another prediction whiff by this column occurred in Puerto Rico v. Sanchez Valle. Apparently a vestige of Yankee imperialism lives on since the majority found that Congress, not the Puerto Rican people, was the historical source of the territory’s authority to enforce criminal laws. This meant that Puerto Rico is not sovereign in the same way that Indian tribes or the states are. Therefore the illegal firearms prosecution by local prosecutors was barred under Double Jeopardy after the Justice Department did a quickie prosecution for the same offense while the Puerto Rican case was awaiting trial.

For my money, Justice Breyer’s dissent had it right that all three branches of the federal government had returned that authority to the people of Puerto Rico when a self-governing Constitution was authorized. This broke any chain of authority going back to Congress. Yet another reason for statehood.

Then the Court piled on a week later when it struck down a Puerto Rican civil law as unconstitutional under the federal bankruptcy law. The case disallowed the attempt by Puerto Rican public utilities to restructure a $20 billion debt over the objections of creditors. Without a way to reduce its enormous debt, the case threatens the government’s ability to provide transportation and clean water to the public. Unlike say Detroit, Puerto Rico had been excluded from the Bankruptcy Code by Congress in 1984. Look for a renewed bail out plea by Puerto Rico to Congress.

In Taylor v. United States the Court rejected the defendant’s clever defense to a Hobbs robbery charge that he only intended to rob those who dealt in locally grown marijuana, and thus had no effect on interstate commerce. Not much left of this element in the context of drug dealing victims since all drug dealing affects the economy.

Without Justice Scalia as a partner in dissents, Justice Thomas must feel lonely on that side of the opinions. Justice John Marshall Harlan was the first called the Great Dissenter for his opposition in the 19th Century to the Court’s abominable opinions denying equal protection to Black Americans. Since then others have been given the title as an expression of respect—Oliver Wendell Holmes in the 1st Amendment freedom of speech context, Hugo Black and William O. Douglas in the 60s, and John Paul Stevens for his unique way of viewing the law in contemporary society. But Justice Thomas will never join their ranks. The Great Contrarian perhaps.

The Court in Utah v. Streiff held 5-3 that the attenuation doctrine could limit the exclusionary rule’s application in the context of a police officer who made an unlawful stop but then got lucky when he discovered that there was an outstanding arrest warrant for the detainee. The case made sense since the officer acted in good faith and did nothing to contrive the basis for the stop. As Napoleon said before Waterloo, it’s better to be lucky than good.

Another significant 4th Amendment decision was Birchfield v. North Dakota/Bernard v. Minnesota, in which the Court reviewed state statutes which made it a crime for detained drivers to refuse to submit to a sobriety test. Both breathalyzer and blood tests are considered searches incident to arrest, but is a warrant required? The Court distinguished between the two, finding that the former does not implicate significant 4th Amendment privacy interests but the latter does. So, unless there are exigent circumstances, a warrant is required to obtain a blood sample.

Finally the Court disappointed 2nd Amendment firearms advocates in holding in Voisine v. United States, by a 6-2 vote, that a conviction of domestic violence misdemeanor, even with only a showing of recklessness, could satisfy the federal statute’s prohibition of possession of a firearm.

For those schadenfreudian readers who kept track of the column’s predictions for the term, it is 17 out of 22, about 80%, great for a hockey forward on shoot outs, bad for a goalie.

Not that the summer will be a complete blow-off for the Justices. They, with the help of their law clerks, continue to look over about 100 new petitions for review received every week, along with motions, preparing for fall arguments, etc.

Actually, the Justices travel quite a bit throughout the year, frequently on the dime of outside groups. These trips totaled 365 for all nine of the Justices last year, ranging from about five a year by Chief Justice Roberts to around 25 by Justice Scalia. The trips often involve speeches which, no doubt, help educate the public about the life and function of the Court.

One interesting development this last month was the GAO’s report which gently supported the idea of live video of oral arguments, an issue advocated for some time. Two of the Circuit Courts, as well as dozens of state courts, already have stepped into the 21st Century with this project. The Court, however, is cautious about such changes, and column writers on oral arguments are unlikely to be made redundant in the near future.

This project has renewed my respect for the rigorous job the Justices have as the Supreme law of the land. Not the occupation for slackers or the faint of heart.

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

By Ross Parker
ticklethewire.com

Justice Antonin Scalia

Justice Antonin Scalia

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 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.

 

 

Supreme Court Watch: Loss of Scalia Vote Hasn’t Changed Outcome of Criminal Cases

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

Justice Antonin Scalia

Justice Antonin Scalia

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 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.

DEA’s Opportunity to Legalize Hemp

By Ross Parker
ticklethewire.com

The DEA announced recently a re-examination of the Schedule I classification of marijuana. This most restrictive classification is reserved for substances which have no accepted medical use and a high potential for abuse.

Marijuana’s classification in the federal system is anomalous considering that 23 states have legalized it for medical purposes. The states have taken this action even though there has been limited medical research supporting that use. Older research used by legalization proponents was based on the greatly reduced psychoactive content of the substance thirty or forty years ago.

The Department of Health and Human Services and the Federal Drug Administration have made recommendations to DEA on reclassification, but these recommendations have not been made public. Advocates of reclassification argue that making it a Schedule II drug would permit more research on its benefits, if any, as a medicine. More research may well also point out the public health dangers it poses. A decision is expected at mid-year.

This review provides an excellent opportunity to re-examine the treatment of hemp as the same schedule as marijuana. There is a substantial argument that hemp should be de-classified entirely because of the host of potential legitimate uses it could have.

The hemp plant has a long history of use around the world. It was used in the Neolithic Age in China to make paper more than 10,000 years ago. Its hardy nature and versatility spread its cultivation until it became one of the most produced agricultural plants in the world. Its uses ranged widely from ropes on ships, clothing, food, and dozens of other products.

It is claimed that Columbus’s ships’ riggings, the Gutenberg Bible, the paper on which the Declaration of Independence was written, and the first American flag were all made of hemp products. George Washington and Thomas Jefferson were hemp farmers.  During World War II hemp was used to make uniforms and for other military products. The government considered it so important to the war effort that it produced a film entitled “Hemp for Victory” in 1942.

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Hemp’s industrial future crashed in 1972 with its inclusion with marijuana as a Schedule I controlled substance making it illegal to grow, sell or possess. There was limited scientific understanding of the psycho-activity of Cannabis varieties in 1972 and, even if that had been known, the difference of THC content between the two was not as dramatic as it is today. The THC content of hemp is .3%. Although marijuana plants averaged about 1-2% in the 1970s, they can easily exceed 20% today. Plus research claims that hemp contains which some scientists believe has an opposing effect both pharmacologically and behaviorally to THC. But these conclusions were unknowns in the 1970s. Few believe hemp poses a risk of abuse today.

Whether it was a reasonable policy at the time to prohibit the production of hemp is subject to debate. Perhaps today’s retrospective analysis of hemp’s aborted future is exaggerated. Maybe hemp’s day was essentially done, and it would have had limited impact in a more complex world of synthetics and agri-business.

But today 30 countries in the world still allow industrial hemp cultivation, and some, like France, Great Britain and Canada, report that in the last two decades it has made a resurgence and that its industrial use having increased by several times. Canadian farmers in particular would be unhappy if their southern neighbor lifted its prohibition. Hemp enthusiasts today claim that the product has an unlimited economic future.

The Agriculture Act of 2014 made it legal for universities to cultivate hemp for research purposes. Twenty-eight states have, likewise, authorized this limited use. This research has demonstrated the utility of hemp in the production of textiles, lotions, shampoo, and many other potential purposes. As renewable energy it is said to reverse the greenhouse effect.

There are factors on both sides on the issue of whether to re-classify marijuana as Schedule II. One factor in favor is that the facilitation of more research may point out the downside to legalization. As a dozen or so of these columns have reported,   recent research supports the conclusion that regular use has serious negative health consequences, especially for young brains.

Whatever the decision on re-classification, this time provides an opportune moment for DEA to legalize hemp. It will benefit farmers, industrialists, consumers and environmentalists. And it will give DEA some much needed credibility in this confusing and often inaccurate public debate over the legalization of marijuana.