Thanks to the Constitution Daily, here are good sources for information about what the attorneys said and how the Justices reacted to yesterday’s United States Supreme Court argument on whether there is a religious exception that would allow employers not to provide women contraception coverage under the Affordable Health Care Act.

SCOTUSblog

Lyle Denniston reported on the arguments:

“The Supreme Court, in a one-hour, twenty-eight minute session Tuesday, staged something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support.”

You can also get all the documents related to the case on SCOTUSblog.

Wall Street Journal Live Blog

The Journal said:

“[T]he court’s three female justices, all part of the court’s liberal wing, dominated the questioning during the first half on Monday’s 90 minute oral argument, repeatedly pressing the corporate challengers to the government’s contraception requirements.”

 The Los Angeles Times

David G. Savage of the Los Angeles Times reported that:

“The Supreme Court’s conservative justices sharply criticized part of President Obama’s healthcare law Tuesday, suggesting they will rule later this year that requiring Christian-owned corporations to offer their employees contraceptives coverage violates the freedom of religion.”

The New York Times

Adam Liptak reported for the New York Times that:

“The court seemed ready to accept that at least some for-profit corporations may advance claims based on religious freedom. But the justices appeared divided along ideological lines over whether the objections before it, based on a requirement in President Obama’s health care law, should succeed.”

Like many other observers of the argument, Mr. Liptak also reported that Justice Anthony Kennedy asked questions on both sides of the issue.

It is often difficult to draw a fair line on when to grant a last minute continuance of a trial and when not to.

Most of the best current thinking about effective case management holds that trial date certainty is imperative. Although it may seem like a quirky case (it is) – and perhaps even lame second guessing of the trial judge (it isn’t) – this story, from The Delaware County Daily Times, does illustrate the difficult choices judges need to make:

By Rose Quinn, Delaware County Daily Times

03/05/14

After euthanizing his ailing longtime K9 partner “Umberto” Tuesday night, Folcroft police Cpl. Christopher Eiserman sought a continuance for a drug case listed Wednesday morning on Senior Magisterial District Judge Horace Z. Davis’ court docket.

Instead, Davis surprisingly tossed the case on its first listing, apparently saying the officer’s reason for seeking a continuance “was not valid,” Eiserman said Wednesday night.

“Not valid? I was on the vet’s floor bawling my eyes out,” the veteran law enforcement officer said of his situation less than 12 hours before he was due in Davis’ court for the preliminary hearing.

And after leaving the vet’s office late Tuesday, Eiserman went home to face the difficult task of cleaning out Umberto’s space and belongings.

“It was a long night,” Eiserman said. “I was mourning the loss of a partner I had since 2006.”

Contacted Wednesday night, Davis responded, “There is no discussion on it.”

Eiserman, who was due in court at about 9:30 a.m. Wednesday, said he returned to the police station in the wee hours Wednesday and wrote a letter requesting the continuance, as per the judge’s policy. He left the letter for the police secretary.

The court case in question involved Dennis McKenzie, a 36-year-old Darby Township man who allegedly had 150 grams of marijuana when he was arrested on charges including possession with the intent to deliver in January, according to authorities.

“I followed up the letter with a phone call Wednesday morning. I spoke directly to the police secretary. She spoke to the court clerk, who said it was OK,” Eiserman said. “There’s never been any problem like this before. It’s common.”

It was about mid-morning Wednesday when Eiserman said he received a phone call from another officer who was in the courtroom who said, “The judge dismissed your case.”

According to Folcroft Officer Tom Kesser, who was in the courtroom for an unrelated matter, Davis dismissed the charges against McKenzie, despite attempts by the assistant district attorney to explain Eiserman’s absence.

“She was very professional,” Kesser said of the newly assigned prosecutor whose name escaped him. “She told the judge that the officer had a death in the family, which he did,” Kesser said.

Kesser doesn’t believe that Davis at that point knew that the prosecutor was referring to Eiserman’s K-9 partner as the family member.

“He just said something along the line that it wasn’t reason enough to grant a continuance,” Kesser said.

When another case on the docket requiring testimony from Eiserman was called, Kesser said the prosecutor again requested a continuance because of a death in the officer’s family.

Kesser said Davis then made a comment along the lines, “What? A dog?”

Recognizing the bond between Eiserman and Umberto, Kesser said he told the judge, “It’s not just a dog. It’s his partner for 12 years.”

Kesser said his outburst drew no immediate response from Davis.

“He just looked at me,” Kesser said.

Davis then granted a two-week continuance in that case. The defendant in that case is Tyrone Smith, who is charged with felony firearms and related offenses, according to online court records.

Smith’s defense attorney Enrique Latoison said Wednesday night that he was not opposed to a continuance after hearing about Eiserman’s loss from another officer, Shane Coyle.

According to Latoison, the prosecutor never explained to Davis that it was Eiserman’s K-9 partner that had died.

The docket wasn’t overly busy but steady, and Davis wasn’t playing favorites, he said.

Folcroft Cpl. William Bair said he spoke privately with Davis on Eiserman’s behalf.

“I just wanted to make sure the judge understood that the dog was a K-9, a member of the police department,” Bair said. “The judge basically told me that it was his call and we could rearrest.”

Umberto was almost 12 years old and was suffering with hip dysplasia and arthritis.

The New York Times reports the story of how a federal judge “went too far”:

Something about the cases seemed wrong. The lawsuits, scores of them, accused businesses of failing to provide proper access for disabled customers. Defendants who lost had to pay the plaintiff’s legal fees, and they piled up in case after case. Last year, a federal judge in Brooklyn, citing “troubling litigation tactics,” denied legal fees, based in part on an unusual step by his chambers. His staff members investigated the matter outside the courtroom.

Now a federal appeals court is saying he went too far.

The judge, Sterling Johnson Jr., sent staff members to visit several Brooklyn businesses that were sued by Mike Costello, a paraplegic man, and found that most if not all were never made more accessible to disabled people.

Continue reading the main story here.  The link will also get you to the summary order that a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued last Tuesday.

Andrew Cohen has taken an in-depth look at the criminal justice system.  In an article posted last week on the Brennan Center for Justice website, Cohen discusses how many conservative Christian leaders are questioning the harsh penalties and mass incarceration policies they once advocated. Cohen also examines the delays from conviction to execution in capital cases and highlights the recent exoneration of Glenn Ford.

Mr. Ford’s story was reported by the Minneapolis Star Tribune:

A man who spent nearly 26 years on death row in Louisiana walked free of prison Tuesday, hours after a judge approved the state’s motion to vacate the man’s murder conviction in the 1983 killing of a jeweler.

Glenn Ford, 64, had been on death row since August 1988 in connection with the death of 56-year-old Isadore Rozeman, a Shreveport jeweler and watchmaker for whom Ford had done occasional yard work. Ford had always denied killing Rozeman.

Six Minnesota attorneys worked on the case for more than 20 years, said St. Paul Attorney Deborah Ellis.

Ellis said attorneys in non-death penalty states were recruited to assist Ford beginning in the 1980s. She said she began working on it “furiously” in 1990 filing numerous appeal motions, meeting with Ford several times, and putting in thousands of volunteers hours. She said without her work and others from Minnesota, Ford likely would have been put to death.

Former Congressman Morris Udahl frequently said, “God give me the gift to make my words gentle and tender because tomorrow I might have to eat them.”

It is an adage that can be useful for all judges when writing opinions or orders. Some of us are better than others at following Congressman Udahl’s advice — and even the best of us have bad days, as reported by Alison Frankel:  “Cranky Posner opinion mocks brief, suggests sending lawyer to jail.”

Henry T. Greely and David H. Kaye (Stanford Law School and Penn State Law) have posted A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King  (Jurimetrics, Vol. 53, No. 1, 2013) on SSRN.

Here is the abstract:

In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court held that Maryland’s statute requiring DNA samples from individuals arrested for crimes of violence or burglary did not violate the Fourth Amendment. One factor in the Court’s analysis is the extent to which the forensic DNA profiles invade medical privacy. The majority stated that “[t]he argument that the testing at issue in this case reveals any private medical information at all is open to dispute.” With respect to this dispute, eight scientists and two law professors filed a brief in support of neither party seeking to explain what current science tells us about the information conveyed by the thirteen short tandem repeats known as “CODIS markers,” the variations in DNA generally used in the United States for forensic identification. This publication consists of the core of the brief along with a foreword about the continuing legal significance of the issue.

From Richard Zorza’s Access to Justice Blog:

Critically Important Speech by NY CJ Lippman on “The Judiciary as the Leader of the Access to Justice Revolution”

On Tuesday, Chief Judge Jonathan Lippman delivered a very important speech. While the whole speech is very valuable, two particular aspects stand out for me.

The first is the very strong language, and examples, reflecting the speech title The Judiciary as the Leader of the Access to Justice Revolution. Since taking on the role, CJ Lippman has guided the New York courts to an unprecedented role as spur and leader in both access innovation and access funding. In this speech he lays out his clear view that this today this is a necessary part of the job description. In so doing, he has paid credit to many other Chiefs who are playing a similar role. This speech will surely help many of his colleagues take on this responsibility in their states. Some of the language:

I want to talk about how the Judiciary, conceptually and in practice, should be and is in fact the leader of the access to justice revolution that is taking place in our state and in our country. It is no secret that our nation faces a crisis in access to justice. The distressing lack of civil legal aid for the poor is one of the most daunting challenges facing the justice system today, but all of the players – – the profession, the providers, the academy, and in particular the Judiciary – – are increasingly and dramatically confronting this crisis and taking action to even the scales of justice, to guarantee the rights and liberties of all, and to preserve the rule of law. . . .

After describing the access crisis, he goes on:

But in the face of such challenges, beacons of hope are emerging, fueled in large measure by state judiciaries who, on access issues, are uniquely suited to be the conveners of the discussion, the deliverers of the message, and the generators of large- scale change and innovation. Given our pivotal role in government, society and the profession, the Judiciary can and should be the agenda builders, pushing the envelope for the entire legal community when it comes to the pursuit of justice – – our historical task and duty since biblical times.

After describing the astonishingly successful — and very well thought through — strategy to support funding for community based legal aid, the Chief went on:

Such funding from the public fisc is and must be a fundamental pillar of any state’s efforts to promote access to justice. It has been a catalyst for us in New York, sparking numerous other new approaches to the problem, many of which I will discuss tonight including: efforts to spur pro bono work by the bar, the use of aspiring lawyers to provide legal assistance to those most in need, harnessing the legal talents of baby boomers and corporate counsel, and exploring new, creative methods of delivering legal services including the use of non-lawyers to provide assistance in and outside of the courtroom. Ours is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility that the Judiciary and its leadership have, and utilizing all of the financial and programmatic resources available to the Judicial branch – – along with the great talents and energy of our partners in the legal profession, academia, and the legal services communities.

The Chief then lists other states in which judicial leadership has played the critical role in access to justice innovation.

Texas, under the leadership of its Chief Justice, negotiated an increase in IOLTA interest rates from banks to rescue that program financing legal service providers in the state. Last year, Connecticut’s Chief Judge brokered an agreement with large corporate sponsors to hire recent law school graduates as fellows to do pro bono work through the LawyerCorps Connecticut program. The State of Washington’s Supreme Court has approved a new category of low-bono legal technicians to help close the justice gap. Chief Justice Rabner in New Jersey boldly addressed the foreclosure crisis in his state that has so impacted consumers and people of limited means, while the Delaware Judiciary has focused heavily on addressing language interpretation issues that have barred access to the courts for so many. Montana is adopting a variation of New York’s 50 hour law student pro bono rule, and California is experimenting with civil Gideon pilots funded with state monies. And in the federal courts, my friend Chief Judge Bob Katzmann has put together a wonderful program to provide legal representation to those most in need in immigration cases, that so affects the lives of human beings and their families. And, on and on – – the examples of judicial leadership addressing the crisis in legal services for the poor abound. We get it – – access to the courts is a central ethical and constitutional responsibility of the Judiciary. If not us, who?

After an extensive discussion of the pro bono innovations, including the reporting, the easing of rules for corporate counsel, the Pro Bono Fellows, etc., the chief then came to the second area that I think will have the biggest impact — the exploration of non-lawyer practice. (Disclosure: I am a member of the Committee on Nonlawyers and the Justice Gap, established by the Chief last year — but views expressed here are obviously my own.) In this area, this one speech has moved the dialog forward both in New York and nationally. The speech stands for itself:

[N]ot every new idea receives a universally, warm welcome – – especially if we think more creatively about ways to solve the justice gap. And that’s exactly what we are doing when we venture into areas that seemed off limits in the past. One such area for the New York Judiciary is the work of non-lawyer advocates in our courtrooms to support unrepresented litigants. We know that there are many functions that only a lawyer is qualified to perform. Only lawyers have the education, training, examination standards, and ethical mandates that go hand in hand with full legal representation. But there are people without a law degree who nonetheless are more than capable of assisting unrepresented litigants. At a time when millions of litigants can neither afford to pay a lawyer nor are fortunate enough to have the services of a legal services provider, we need to look to others to step in. This is already done in the medical profession. There is no substitute for a medical degree, but that community has recognized for many years that people with health care needs can be served in some measure by practitioners with lesser qualifications – like midwives or home health care aides — providing specified services at lower rates.

While the concept of non-lawyer assistance is not yet widespread in the U.S., there is extensive precedent for it in the common law world. Non-lawyer advisers have an important role in England and Wales. They can accompany litigants to court, provide moral support, help to organize papers, take notes, and quietly give advice on any aspect of the conduct of the case which is being heard. Outside of court, Citizens Advice Bureaus in the UK staffed largely with volunteers provide free, independent, confidential and impartial advice and information on housing, immigration, debt problems, issues with benefits and tax credits, and employment problems – problems that we typically identify as legal ones.

Here at home, non-lawyers who work daily in a particular area often develop expertise and knowledge that equip them to help unrepresented litigants very effectively. Housing Counselors are a perfect example of how people with strong knowledge and skill in a narrow subject area can provide real help. Housing Counselors are funded and regulated by the United States Department of Housing and Urban Development. They provide tools for making informed choices about housing to current and prospective homeowners and renters – – including those involved in foreclosure proceedings or in Housing Court. They have been invaluable to litigants in New York. It is time to capitalize on that kind of knowledge and expand the valuable support that non-lawyer professionals can provide to safeguard due process and access to justice, a dynamic that has been recognized by the United States Supreme Court in the 2011 case of Turner v. Rogers.

Beginning this year, specially trained and supervised non-lawyers, called Navigators, will begin providing ancillary, pro bono assistance to pro se litigants in Housing Court cases in Brooklyn and consumer debt cases in the Bronx. They will provide one-on-one assistance and give information, help litigants access and complete court do-it-yourself forms and assemble documents, and assist in settlement negotiations outside the courtroom. The Navigators will accompany pro se litigants into the courtroom and provide moral support and information. They can respond to factual questions directed to them from the judge, though they may not volunteer information. For unrepresented litigants overwhelmed and intimidated by the process, the help of Navigators will come as a great relief – – especially in the context of today’s reality – – 98% of these people are unrepresented. This is shameful!

I’m proud to sponsor these incubator projects, that will help to demonstrate how much non-lawyers can accomplish without crossing the line into practicing law. They can serve a population who cannot hope to pay even modest legal fees. They are in dire need of help, and helping them in no way takes business away from lawyers. And provide that help we must – – even at the sacrifice of our professional mantra that only licensed lawyers can facilitate the legal process. That thinking is outdated and must be changed.

Building on the use of non-lawyers who do not, in a real sense, practice law, we must look at our legal regulatory framework, first, to see if our unauthorized practice of law rules should be modified in view of the crisis in civil legal services and the changing nature of legal assistance needs in society; and, second, to identify if, short of full admission to the bar, there are additional skill sets, separate in concept from our incubator projects, that can be licensed to provide low-bono or less costly services to help those in need of legal assistance. The high cost of legal services is a real barrier to a growing part of our population gaining access to justice. If lay persons with training in discrete subject areas can dispense legal information or assistance expertly and more cheaply, we should be exploring how best to accomplish that, without diminishing the great legal profession in our state. Fern Schair and Roger Maldonado, the heads of our Committee on Non-lawyers and the Justice Gap, will next take a look at the legal regulatory framework in our state to see if adjustments need to be made to enhance our access to justice efforts.

The endorsement of the incubator pilots is obviously important in signaling the commitment of the New York Judiciary; the discussion of practices in other countries is a powerful potential rebuttal to any anxieties that might develop in the profession; and, finally, the charge to the Committee to “take a look at the legal regulatory framework in our state to see if adjustments need to be made to enhance our access to justice efforts,” creates an opportunity for thoughtful analysis and changes that will serve access.

Perhaps most of all, I like the following language:, which I repeat for emphasis

Ours is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility that the Judiciary and its leadership have, and utilizing all of the financial and programmatic resources available to the Judicial branch – – along with the great talents and energy of our partners in the legal profession, academia, and the legal services communities.

I think we are only just beginning to realize the true potential of this the multifaceted approach. It is not just that the overall approach has many components, it is that done properly each component relies on and enhances progress with the others, and so should be deployed in a way that maximizes the leverage. Thus, for example, unbundling needs good forms, and judicial engagement is far better when there is a self-help center to which the most complex situations can be referred.

Please spread this speech around.

The Washington Post reports that a federal judge may well have been having one of those days:

A federal judge on Tuesday signaled that he is growing increasingly frustrated with the voluminous and at times rancorous filings by defense attorneys representing former Virginia governor Robert F. McDonnell (D) and his wife in a corruption case, dismissing one of their recent requests as “dancing through fantasy land” and asking them and prosecutors to limit their written disputes “for the sanctity of the trees.”

U.S. District Judge James Spencer’s offhand comments during the less than 30-minute hearing were, in many ways, more interesting than his ruling on the legal issue at hand. The defense — arguing it was unfair that a related civil case had been put on hold at the request of prosecutors — had asked the judge to force the government to withdraw that request. The judge ruled he would not intervene.

The SCOTUSblog, http://www.scotusblog.com/, is among the most widely read and admired legal blogs in the nation. And it deserves all of the accolades. But, it has yet to report this story — perhaps because the suit has not even been served yet

Louisiana is suing national left-leaning policy group MoveOn.org in federal court, saying it violated trademark rules when it put up a billboard and commissioned television ads critical of Gov. Bobby Jindal that use the state’s tourism logo and motto.

Republican Lt. Gov. Jay Dardenne has been locked in a pitched battle with the group for weeks, unsuccessfully calling for it to take down the billboard that is currently up on the I-10 coming into Baton Rouge from Port Allen.

READ DARDENNE’S COMPLAINT HERE

“We have invested millions of dollars in identifying the Louisiana: Pick Your Passion brand with all that is good about Louisiana. No group should be allowed to use the brand for its own purposes, especially if it is for partisan political posturing,” Dardenne said in a statement announcing the suit.

If no one “gives,” this case is sure to end up before the United States Supreme Court.  For all of the First Amendment aficionados, this is a case worth following.

The Legal Times reports:

A coalition of media and public interest groups on Sunday urged Chief Justice John Roberts Jr. to allow the video recording and broadcast of U.S. Supreme Court proceedings.

“We believe the Supreme Court should embrace contemporary expectations of transparency by public officials,” the Coalition for Court Transparency wrote in a letter to Roberts. “Though the Supreme Court is in a unique position as the nation’s highest court, that status provides more reason to open its educational opportunities to a wider public, instead of making access more difficult.”

The letter went to the court on the 50th anniversary of the 1964 ruling New York Times v. Sullivan, which the group said “helped media outlets cover controversial topics of national import without fear of frivolous lawsuits.” The high court, it said, should now “enact policies that will help the public better understand its important work.”

The coalition reminded the court that other precedents, including the 1980 Richmond Newspapers case, presume that court proceedings “should be open to the public.” Those precedents focus on the right of the public to attend court proceedings, but “the rationales hold true for live broadcasts of oral arguments,” the letter asserts.

“Video would provide an important civic benefit, as it would be an incredible platform for legal education and future students of history, rhetoric and political science,” the letter states. If the court is still reluctant to allow video, the coalition said the court should release the audio of arguments on a same-day basis as a next step.

The letter is the latest effort by the newly formed coalition to increase public pressure on the court, which has long been reluctant to allow live or even delayed video broadcast of its proceedings. A coalition-sponsored advertisement has been running on cable news outlets in recent weeks also urging cameras in the high court.

In an aside, the letter stated that “neither the coalition … nor its member groups were responsible for the video of Supreme Court proceedings that appeared online last month. We do not endorse or encourage such behavior at the high court or in any courtroom.” A protester interrupted an oral argument on Feb. 26, and someone nearby with a hidden camera recorded the event, later posting it on YouTube.

Among the groups in the coalition are the National Association of Broadcasters, the Society of Professional Journalists, Radio Television Digital News Association, the Americans Society of News Editors, the Alliance for Justice, Constitutional Accountability Center, the Liberty Coalition and Citizens for Responsibility and Ethics in Washington.