What should be read into a murder suspect’s silence during initial questioning by police? And can it be used against him at trial?

Lyle Denniston has an interesting recap of the United States Supreme Court oral argument in Salinias v. Texas entitled “Argument recap: Reading silence’s meaning.”

“If the sentiment that seems to run high in a Supreme Court hearing dictated how a case would come out, the Justices might well be on their way to declaring that the Constitution forbids prosecutors from telling juries that a suspect’s silence when talking to police in any criminal investigation means he is guilty.  The argument Wednesday in Salinas v. Texas (12-246) showed the appeal of treating silence in response to police questions as too ambiguous to be allowed as proof of guilt.”

The Brennan Center released a new report identifying three common sense proposals to revive the right to counsel for poor defendants in criminal cases. The report was released at a roundtable discussion at John Jay College of Criminal Justice, co-hosted by The New Press, to mark the 50th anniversary of Gideon v. Wainwright. “The routine denial of effective legal representation for poor defendants, coupled with the over-criminalization of petty offenses, feeds our mass incarceration problem at great social and economic costs,” reads the report, co-written by Thomas Giovanni and Roopal Patel. The event also featured Karen Houppert, author of “Chasing Gideon.”

The United States Supreme Court has ruled that the fact that alcohol dissipates from the bloodstream over time does not by itself give the police the right to draw blood without a warrant in drunken-driving investigations. Lyle Denniston in the SCOTUS blog put it succinctly, “A police officer out on patrol who stops a driver who seems to be drunk may not have read through four new Supreme Court opinions and counted the Justices’ votes accurately, but that officer would probably do the sensible thing by getting a warrant before having the driver’s blood tested without consent.” Justice Sotomayor announced the judgment of the Court and delivered the opinion of the Court in large measure in Missouri v. McNeely.  Justice Kennedy issued an opinion concurring in part. Chief Justice Roberts issued an opinion concurring in part and dissenting in part, in which Justices Breyer and Alito joined. Justice Thomas issued a dissenting opinion. You can access the oral argument via this link.

On April 15th the United States Supreme Court heard oral argument in United States v Davila. The issue is whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error prejudiced the defendant. The transcript of the argument can be found here. Because the fact situation is so unique at first blush one might ask why the United States Supreme Court selected this case to spend time on. The defendant was appointed a lawyer and tried to fire him. As a result there was an appearance before a magistrate judge ex parte ostensibly to deal with the counsel issue. So far so good but the issue arose when the magistrate judge said: “[o]ftentimes … the best advice a lawyer can give” is to plead guilty.  “[T]here may not be a viable defense.”  “It might be a good idea for the Defendant to … plead guilty and go to sentencing.”  He continued:

The only thing at your disposal … is the two or three level reduction for acceptance of responsibility.  That means you’ve got to go to the cross.  You’ve got to tell the probation officer everything you did … regardless of how bad it makes you appear. … Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.  ….In order to get the reduction for acceptance, you’ve got to come to the cross.”

Eric Black’s last installement in his three part series on the Second Amendment begins,

“Former Chief Justice Warren Burger (who was so devoted to the U.S. Constitution that he retired from the high court in order to lead the national celebration of the Constitution’s bicentennial in 1987) gave an interview on the PBS “Newshour” in 1991 in which he said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public.”

Burger believed that the Second Amendment guaranteed the right of states, through their militias, to arm those militias. The “fraud,” in his view, was the National Rifle Association’s campaign to interpret the amendment as a guarantee of each individual citizen’s right to arm himself.

The full story can be found at:

http://www.minnpost.com/eric-black-ink/2013/04/trouble-ahead-justices-rulings-gun-rights-raise-thorny-questions?utm_source=MinnPost+e-mail+newsletters&utm_campaign=638671ec0a-4_18_2013_Daily_Newsletter4_18_2013&utm_medium=email

Second of three articles.

The original U.S. Constitution, as drafted in 1787, made no mention of gun rights and guaranteed relatively few other rights.

The Constitution actually granted the federal government considerable power over the state militias, such as power to arm and discipline them and to call them into federal service to repel invasions or suppress insurrections. (It’s all in Article 1; Section 8.)

Anti-federalists — those who opposed the ratification of the Constitution – argued that the powerful new national government the framers sought to create jeopardized many important rights of the states and the people, including the independence of the state militias. If Congress had the power to arm the militias, did it also have the power to disarm them? Could the national government call up a state’s militia and send it out of state to suppress an insurrection elsewhere? (Apparently, it could.) Would a state whose militia had been thus nationalized and deployed elsewhere be defenseless? This was a special concern in southern states where the militia had duties as slave patrols, to capture runaways and to protect the white population against the possibility of a slave insurrection.

For the rest of the article see:

http://www.minnpost.com/eric-black-ink/2013/04/gun-rights-1780s-and-today?utm_source=MinnPost+e-mail+newsletters&utm_campaign=91c3df70fc-4_17_2013_Daily_Newsletter4_17_2013&utm_medium=email

Eric Black is a writer for Minn Post. He has a three part series on the Second Amendment. Eric Black is among the Midwest’s most thoughtful journalists. He frequently writes about the constitution. A part of the first of the Second Amendment trilogy:

Key words

The Second Amendment, like the rest of the first 10 amendments which we call “The Bill of Rights,” was drafted by the First Congress in 1789 and quickly ratified as part of the compromise for final acceptance of the then-brand-new U.S. Constitution.

The Second Amendment arose at time when most its key words and phrases meant something quite different from what they would mean today and from circumstances also fundamentally different — so different that its modern meaning is almost completely detached from its original purpose.

For two centuries, the Second Amendment was pretty much a dead letter. States and the federal government adopted various gun-control measures. None were ever struck down on Second Amendment grounds. Until, that is, starting in 2008, when two recent 5-4 Supreme Court rulings stirred up such a Second Amendment mess that it is perfectly unclear what the Court’s conservative majority might eventually decide would violate the Second Amendment.

They have stirred it up so much that I can’t help but wonder whether the jurisprudence of gun control will soon join abortion and campaign finance as (sub rosa) litmus test issues for future Supreme Court nominees.

The full article can be found at:

http://www.minnpost.com/eric-black-ink/2013/04/second-amendment-mess

The American Bar Association Journal reports that,

An unusual court of inquiry held to probe the conduct of a former Texas district attorney has concluded with a blistering opinion by the presiding judge.

Former Williamson County District Attorney Ken Anderson was briefly booked into jail Friday before being released on $7,500 bail after District Judge Louis Sturns determined that there was probable cause to support charges that Anderson had violated state law and acted in contempt of court by lying to a trial judge decades ago to win a conviction in a murder case, the American-Statesman reports.

The convicted man, Michael Morton, served nearly 25 years before he was exonerated.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

His ruling represents the first step toward a potential prosecution of Anderson, who is now a sitting state court judge. Sturns issued a separate show-cause order requiring Anderson to appear in court to defend a criminal contempt citation, for which he could be sentenced to a maximum $500 fine and six months in jail if he is convicted.”

 

The Toronto Globe and Mail has an article written by Kirk Makin that begins, “Constitutional experts are questioning whether the Supreme Court of Canada still has the stomach to guarantee fundamental rights.” Of the 70 appeals the court heard last year, only 10 involved Charter claims – and the claimants succeeded in just two of them, said Jamie Cameron, a professor and constitutional expert at York University’s Osgoode Hall Law School.

Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures

Eve Brensike Primus

University of Michigan Law School

January 19, 2013

Yale Law Journal, Forthcoming
U of Michigan Public Law Research Paper No. 311

Abstract:
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon. Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform given the many procedural obstacles that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. This year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective-assistance-of-trial-counsel claims in federal court.

Not surprisingly, many lower courts have resisted the Supreme Court’s recent attempts to permit state prisoners to have their ineffective-assistance-of-trial-counsel claims heard on the merits. But this battle is far from over. After documenting the ways in which lower courts are restrictively interpreting the Supreme Court’s recent decisions expanding the grounds for cause to excuse a state prisoner’s procedural default of an ineffective-assistance-of-trial-counsel claim, I will suggest that the defendants still have an important equitable card to play. That card is the idea of adequacy. As lower courts attempt to re-characterize state procedures so as to avoid recent Supreme Court holdings that would open the federal doors to state prisoners’ ineffective-assistance-of-trial-counsel claims, they inadvertently set themselves up for challenges to the adequacy of their state procedures. This shift is significant, I will explain, because of important differences in how cause and adequacy arguments influence state behavior. Whereas cause grounds are typically personal to the defendant, adequacy challenges are often used to expose systemic failures in a state’s procedures. As a result, adequacy challenges have more potential to catalyze change in states’ procedures.