Archive for the ‘Due Process’ Category


WHAT HAPPENED:  Defendant, who is a legal immigrant, was charged with burglaries, which warranted mandatory removal under the Federal Immigration State as a “violent felony”.

WHY IS THIS BEFORE THE SUPREME COURT:  The defendant did not contest the underlying charges, but more whether or not the “violent felony” language, which includes any “felony that is likely to result in violence to persons or property”, was unconstitutionally vague.  Under the Due Process clause, criminal statutes can be invalidated if they do not give citizens fair notice of what is being punished, which came up two years ago in a case, Johnson v. U.S..  In Johnson, the Court held that the term “violent felony” was vague as it applied to the Armed Career Criminals Act, so the question here is whether the same applies to the Immigration Act.

WHAT ARE THE RAMIFICATIONS:  Should the Lower Court’s decision invalidating the Act hold, the procedure for removing violent felons would need to be re-written to either (a) articulate what a violent felony is more specifically, or (b) just make all felonies grounds for removal.  Since Congress doesn’t like MORE work on the table and panicking about dangerous immigrants is all the rage these days, my guess is that Supreme Court isn’t in a hurry to be on the front page of FOX NEWS for the next year.

ROOT FOR SESSIONS IF: You’re scared of violent immigrants.

ROOT FOR DIMAYA IF:  you are more interested in fostering conservative panic more that you are afraid of violent immigrants.

PREDICTION:  Sessions 6-3


WHAT HAPPENED – Plaintiff was injured at work and sued the Defendant employer for damages under a Federal Workman’s Comp statute in the State of Montana.  Seems easy, right?

WHY IS THIS BEFORE THE SUPREME COURT – The Employer argues that since the accident did not occur in Montana, and since the Employer is not based out of Montana, the case should have been filed elsewhere, which in legal speak is saying that the forum for the lawsuit does not have personal jurisdiction over the Employer.  Personal jurisdiction requires that any lawsuit against a party be filed in a State that is inherently “fair” for the defendant.  This commonly considers the defendant’s contacts with the State and the interests of the State in hearing the case.  This may all seem easy, but hold on to you butts because here comes the weird part.

WHAT ARE THE RAMIFICATIONS – A few years ago the Supreme Court heard a case determining whether a car manufacturer could be sued in California for participating in wide-spread Argentinian government-sponsored torture (Actually downplaying this, not exaggerating).  Within that case, Ginsburg and Sotomayor had a judge fight (exchanging doomsday scenarios based on the other’s reasoning), in which the Court made a rule saying that a corporation had to “be at home” to be sued somewhere.  The issue here is whether or not (a) this Corporation is “at home” in the forum, and (b) whether or not a Federal Statute could override this contentious rule, which again was loosely based on the plot of a James Bond movie.

ROOT FOR BNSF RAILWAY IF: Fairness to corporations is high on your priorities list.

ROOT FOR TYRELL IF: You’re still mad about Hobby Lobby and want to screw all corporations.

PREDICTION:  Tyrell 8-1


WHAT HAPPENED: Defendant is this case is probably the least-lucky person on Earth.  Defendant is charged with a sex crime for being slightly over 18 years old and having sex with someone who is a three year age difference.  This is a crime in the State of California, but it is legal in a strong majority of States.    After being convicted, Defendant moves to Michigan, where Defendant’s conduct would not have been a State crime.  Unfortunately, removal proceedings are brought against him, and even though he would not have been subject to removal in California, the same rules do not apply in Michigan.

WHY IS THIS BEFORE THE SUPRME COURT:  In an effort to make this generally unfair case more legal, Defendant is arguing that the immigration board’s ruling in favor of removal should be overturned, since Defendant’s crime should not subject him to removal as a “sex abuse” crime.  The State argues that even if this case is unfair, the immigration board’s ruling should stand since agencies are entitled to deference enforcing their own rules.

WHAT ARE THE RAMIFICATIONS:  One of the hot-button talking points of Trump’s new appointment is the possibility that the Court will overrule the Chevron doctrine, which is the above-referenced policy that agencies should be given deference for enforcing their own rules.  Presumably, this is the kind of case where you could make an argument that the unreasonableness of the doctrine is on display, since the different State rules and precedent have created a generally unfair proposition.  Unfortunately for this Defendant, the Conservative push for overruling agency authority is probably not going to come in a case involving immigration and sex crimes.

ROOT FOR ESQUIVEL-QUINTANA IF: you want to overrule Chevron, and don’t care about the underlying facts in what will likely be a landmark decision going forward.

ROOT FOR SESSIONS IF:  you want to overrule Chevron, but you’d rather wait until it’s an EPA decision that prevents a company owned by your right friend Doug from polluting a river.



WHAT HAPPENED: The Plaintiffs are the parents of a Mexican teenager who was shot by a U.S. border guard standing on U.S. soil.  Plaintiffs are suing the Defendant (the guard) for Constitutional claims related to the shooting.

WHY IS THIS BEFORE THE SUPREME COURT:  Plaintiffs filed their lawsuit in the United States, and the Defendant has taken every action imaginable to dismiss the case, including arguing that the jurisdiction is wrong for a 4th amendment claim, that the Bivens analysis is incorrect, and that Defendant is immune because there is no precedent saying you can’t shoot non-citizens across the border (which is factually right, but it’s not like shooting people is ever OK).  Defendant has won at the lower level, so the case was dismissed.

WHAT ARE THE RAMIFICATIONS – There is a legal axiom that says “bad cases make bad law”.  While it is easy to look at this case and say “you shouldn’t people” (which is most of the Plaintiff’s arguments), if you stretch the borders and the rules for this case, you end up complicating other issues where a strict application of border lines and qualified immunity make sense.  The balance here is whether it is better for the Court to try to craft a rule that best resolves this question, or whether it is better to just make an unfair ruling in this case and keep the rules as is.  Adding complication to this case is the fact that an amicus brief from Border Guards have advocated for liability in this case, as the dangerous environment surrounding the border needs more civil liability to keep things under control.  Not to say that is going to sway things, but it adds context to where the situation is and why the Plaintiffs’ arguments make more sense the more you hear about facts of the case.

ROOT FOR HERNANDEZ IF: shooting people isn’t OK.

ROOT FOR MESA IF: shooting people is OK if you have a bunch of dumb rules in place to protect you.



WHAT HAPPENED:  Appellee is a non-citizen who was detained pursuant to a criminal matter in the United States.  Although all U.S. citizens are given the right to bail during a pending criminal matter, non-citizens are not.  Appellee is a good example of this inequity, as Appellee was held for three years without a bail hearing on charges of drug possession and joy-riding, which is a crime white teenagers may not even spend a night in prison over.  Appellee has filed a class action lawsuit with other non-citizens who have been detained unfairly asking for the Court to grant non-citizens a bail hearing when detention exceeds six months.

WHY IS THIS BEFORE THE SUPREME COURT:  The background on a non-citizen’s right to bail is somewhat murky, as there is case law favoring a right to bail hearings, and case law that denies the right entirely.  To make matters worse, neither case is directly on point, as the primary case law can mostly be limited to the specific facts of each case.  For example, a case that granted a non-citizen a bail hearing only did so because that person’s home country did not want the person returned, so without some kind of hearing, the defendant was going to be detained forever.  So on one end, this case serves to clarify existing law.  On the other hand, Appellee is asking for a pretty big right from the Court, where most immigration rights are reserved to Congress.  Therefore, another big issue is whether this Court believes it is within their rights to take action on something that may be outside their authority.

WHAT ARE THE RAMIFICATIONS –  If you’ll indulge me, here’s a short anecdote about baseball that may give this case more context.  Shortly after September 11th, the New York Yankees were playing in their fourth straight World Series.  Although most people hate the Yankees, it was hard not to root for them considering all the city had gone through, and it was almost serendipitous that they got this far so soon after that tragic event.  To make it even better, they were playing dipshit expansion team, the Arizona Diamondbacks, whose dumb name and ugly uniforms made them likely footnotes to this Disney story of an ending.  And yet, despite all those good vibes, the Diamondbacks won and it was ten years before the Yankees made the World Series again, thus ruining the story and showing that sometimes things operate in a vacuum and have no actual connection.  To that end, you may have heard about a certain Executive Order that bans a certain religion from a certain World superpower, and while it would be easy to make some kind of connection between this case and that case, there is no connection between these cases.  For one, even if Rodriguez wins, non-citizens only get the right to bail, which may in turn just end up being the right to get denied bail.  If Jennings wins, there is nothing indicating a broader approval of the Executive Order, since they rely on entirely different grounds.  So while I think there could be a propensity to read between the lines on this, I think this operates in its own world entirely.

ROOT FOR JENNINGS IF:  oh hell, you know who you are.

ROOT FOR RODRIGUEZ IF:  you would rather the judiciary make unconstitutional moves about immigration instead of it just being the president.

PREDICTION:  Jennings 5-3.

Overton v. U.S.

Posted: February 3, 2017 by beguide in case summaries, Criminal Procedure, Due Process, White Skull

a_002WHAT HAPPENED:  Defendant was convicted of murder in 1985, after being accused of assaulting a middle-aged woman who was coming back from shopping.  Defendant is appealing his conviction on grounds that the prosecutors failed to disclose material impeachment and exculpatory evidence during the original trial.  The evidence included evidence that contradicted the State’s argument that the assault was carried out by a large group of assailants, as opposed to just a few assailants.

WHY IS THIS BEFORE THE SUPREME COURT:  In Brady v. Maryland, the Supreme Court held that the prosecutor must disclose material information that could lead to an acquittal to the defendant prior to trial.  This responsibility is founded in the Due Process Clause of the Constitution and is rooted in fairness, since the State often receives more information than the Defendant and has a duty to society to share information that may indicate that the charges are unfounded.  In order to satisfy that burden, the defendant must show that the evidence was material, in that it the evidence would have changed the outcome had it been shared.  The nuance in this case is that standard that the Court must apply when determining whether evidence is “material” or not, as the Court held that the Defendant could only win if he could prove that the suppressed evidence “would have led the jury to doubt virtually everything” about the government’s case.  That instructions seems high without context, but it does speak to the high level of scrutiny the Court places on these types of arguments.

WHAT ARE THE RAMIFICATIONS – This case is less interesting (from a legal standpoint) than its 2017 Brady case counterpart, Turner v. U.S..  In Turner, the Defendant is asking to move the law forward and develop the materiality test to consider a wider scope of evidence.  Here, the Court is really just asking whether or not this Court applied the correct standard of review on appeal, which is less sexy than Turner, but this defendant probably has a better chance to win on more narrow grounds.  That being said, Brady cases are difficult to win due to their implications, so even though this defendant may have a better chance, that doesn’t mean he has a great chance.

ROOT FOR OVERTON IF:  your idea of a good time is considering the impact of pattern form jury instructions.

ROOT FOR U.S. IF:  you think this case would be a lot more interesting if it got the Ira Glass treatment.

PREDICTION:  U.S. wins 5-3


WHAT HAPPENED:  Plaintiffs were detained at Guantanamo Bay following the September 11th terrorist attacks.  Plaintiffs assert that they were detained illegally and without sufficient evidence warranting their detention, and are suing the government officials they believe are responsible for their detention.

WHY IS THIS BEFORE THE SUPREME COURT:  Well, for starters, the detention of enemy combatants at Guantanamo Bay was a clusterfuck from the beginning.  In the years that followed 2001, George Bush and friends were routinely in front of the Supreme Court trying to justify detaining suspected terrorists without Due Process.  In every case, the Supreme Court found in favor of the detainees, stating that the foreign terrorists are not entitled to the full Due Process protections entitled to citizens, but they are entitled to something.  This case takes a different angle than those cases, as these Plaintiffs are not seeking criminal constitutional rights, but are instead looking for civil damages as a result of those actions, as the Plaintiffs argue that the government officials in question knew what they were doing was wrong and detained the Plaintiffs anyway.

WHAT ARE THE RAMIFICATIONS – Suing the government is tough sledding, because the deck is stacked against you in the form of qualified and sovereign immunity.  In all cases, the government cannot be sued unless it consents to be sued, and as you can imagine, the government does not like to be sued that often.  For these defendants to be found civilly liable for their actions, the Plaintiffs have to prove a fairly high burden of showing that the Defendants knowingly violated their Constitutional rights and that the general rules relating to false arrest and imprisonment should apply to this fairly unique situation.  Should the Plaintiffs’ claims succeed, it could open the door for similar lawsuits against high government officials related to the War on Terror, or HYPOTHETICALLY, a certain order by the President that knowingly bent Constitutional rights and inconvenienced a large group of foreign citizens in the name of protecting Americans from terrorists.

ROOT FOR ASHCROFT IF:  you’re down with early 2000s nostalgia, like Brittany Spears, foam mesh trucker hats, and widespread paranoia about Middle East terrorism.

ROOT FOR ABASI IF:  you watched that one episode of Last Week Tonight with John Oliver about Guantanamo Bay and now you feel like an expert.

PREDICTION:  Ashcroft 4-2 (Kagan and Sotomayor are recused)

Voting Tools

Posted: November 7, 2016 by Nazim in Due Process, Election


Voting is the process that the courts recognize as due for many remedies: all the ones of a broad nature that only policies would really fix or improve.  In that spirit, and in no particular order, here are a bunch of tools to help you cast your vote:

Two reminders. First, if anybody blocks your way to your voting location (including the voting booth), call the justice department at 1-866-OUR-VOTE. Second, if you’re in line to vote by the location closes, they have to let you vote. Third, some states forbid photography in the polling station, so check here before taking the gamble. Okay, those were three, but who said I could count?


Before Citizens United was even a glimmer in the Supreme Court’s eye, a 2014 study reviewed 1,779 important US policy decisions made between 1981 and 2002. The researchers compared the decisions policymakers made compared to the desires of the average voter. In other words, it asked, if the average voter desires a policy, is that policy more likely to happen? Surprisingly, It’s not. Over twenty years of policy making, the average american voter’s preferences have so little impact on major policy decisions that it’s within the margin of error for zero. On the other hand, “economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy.”

All Citizens United did was clarify that we’re in an oligarchy with virtually unlimited political bribery.


The goals of public discourse don’t include yelling and insults, but frequently appear to. Here’s an interesting attempt to steer away from that.