Archive for the ‘White Skull’ Category


WHAT HAPPENED: Appellant is an indigent defendant who was convicted of first degree murder.  Appellant sought medical expert to assist with his sentencing and was provided with an expert by the State.  Following some kind of calamity involving timing and delivering the report, Appellant was sentenced to death (by electrocution because this was in 1984).

WHY IS THIS BEFORE THE SUPREME COURT:  In the 1970s, the Supreme Court (by way of Thurgood Marshall) held that indigent defendants were entitled to medical experts to assist with the insanity defense.  The Court held that the cost to the State was nominal compared to the benefit it would provide in ensuring that justice was served.  This case takes that holding one step further, and asks that not only does the State have to provide a medical expert, but also has to provide someone who is completely independent from the State as to reduce bias.

WHAT ARE THE RAMIFICATIONS – This is either (1) a dollars and cents issue, or (2) another way that the Court could create more ways that people on death row can overturn their sentences.  One on hand, hiring an independent expert would cost more, but once again you would have to wonder how much it would really be in light of the purpose behind providing the expert.  If you also believe that experts are mostly just mercenaries who say whatever they are paid to say, the benefit here is pretty high.  On the other hand, a ruling in favor of the Defendant is a pretty far stretch from the original Court’s holding, and finding that an independent expert has been required since 1984 would open the door for past death row inmates to contest their sentences, which would in turn bring more old death row cases before the Court, which would in turn make Clarence Thomas freak out.

ROOT FOR MCWILLIAMS IF: you want to see Clarence Thomas freak out.

ROOT FOR DUNN IF: you think poor Clarence Thomas has been through enough.



WHAT HAPPENED:  Appellant is a pastel-clad, humid municipality populated by hot women and Pitbull (or so I’m told). Appellee is a commercial full of less-aggressively good-looking suburbanites in their late twenties who are far too relaxed and self-aggrandizing during the process of buying a house (I watch too much TV).  The basis of Appellant’s claim is that Appellee caused gave predatory loans (OK) to minority homeowners (probably true) which caused the housing crisis (wait, what) and ruined Miami (arguable).

WHY IS THIS BEFORE THE SUPREME COURT:  Even if we assume that all of the propositions in that last sentence are true, there are three big technical issues Appellant has to get by to bring this claim.  First, the Court has to determine whether or not Miami has standing to bring this claim under the Fair Housing Act, because even though Miami asserts elements of racial discrimination, it is not quite the focus of the claim like other lawsuits under the Fair Housing Act.  Second, the Court has to determine whether or not proximate cause is proven, meaning whether or not a bank giving bad loans could somehow be traced to the complete collapse of the housing market.  Third, the Court has to determine whether or not Miami can prove damages that are not just “infinity dollars”.

WHAT ARE THE RAMIFICATIONS –  By way of background, wild cases like this are not entirely uncommon in the legal profession.  Whether it is by the government or private parties, creative lawsuits can often move the law forward and bring about institutional or social change that the Court is commonly known for.  For example, Roe v. Wade was a fairly wild shot in the dark when it happened, and that is probably the most famous case of the last century.  That being said (and this gets forgotten about often), most of these cases lose.  This is a rough comparison, but the success of these cases are probably at the same rate of being on American Idol, where some contestants have perfect pitch and look like Carrie Underwood, and others are tone-deaf weirdos who somehow did not have a friend throw their body in front of the idea of auditioning in front of a live televised audience.  Following this analogy to its naturally ridiculous conclusion, this is the kind of case where Randy Jackson would say “Gee, I don’t know, dog.  I just don’t’ think it’s your time”, and then the lawsuit sadly goes back to the lobby and has to tell its disappointed family members that no, we are not going to Hollywood.

ROOT FOR CITY OF MIAMI IF:  you’re down with creditors getting taken down a peg, even if the implications of said peg are completely unknown.

ROOT FOR WELLS FARGO IF:  you didn’t own a house in the late 2000s.

PREDICTION:  Wells Fargo 6-2


WHAT HAPPENED:  Defendant was a foreign resident in the United States when he was arrested for possession of drugs.  Defendant’s attorney informed Defendant that if he pled guilty, he would not be deported.  Defendant pled guilty and was immediately deported.  Defendant argues his attorney’s mistake should grant him a new trial.

WHY IS THIS BEFORE THE SUPREME COURT:  Ineffective Assistance of Counsel is a claim rooted in the 5th and 6th Amendments which grants a Defendant a new trial when it is proven that the attorney who represented the defendant did an objectively bad job, and that the attorney’s job affected the outcome.  In this case, it is fairly clear a mistake occurred; however, there was such overwhelming evidence against the Defendant that the lower court found that the attorney’s error did not make a difference.  The Court here must decide whether or not the gravity of the error is more important than the effect it had on the outcome of the case.

WHAT ARE THE RAMIFICATIONS –  While the Court is often hesitant to grant IAC claims (as they require that the Court start the criminal trial from the beginning), the Court is very attentive when a person pleads guilty, waiving all rights to a fair trial, on mistaken grounds.  It is for those reasons that this case may get special attention because of the timing of the mistake and implications of a guilty plea.  It is hard to say whether or not this case will generally expand the rights of IAC claims during trial; however, it may give greater protection to defendants who plead guilty and find that anytime the attorney’s mistake induces a Defendant to plead guilty, the defendant automatically gets a new trial without consideration of how the case could have gone.

ROOT FOR LEE IF:  you read this post and thought “that sucks”.

ROOT FOR U.S. IF:  you read this post and thought “who cares”.


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

Turner v. U.S.

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

a_002WHAT HAPPENED:  Defendant was convicted of robbery, kidnapping and murder in 1984.  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 eye-witness testimony and witness recantations that were more relevant to the case as time passed.

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 evidence Defendant argues should have been shared (i.e. witness recantations, eye witness testimony, impeachment evidence) only became material after the trial was concluded.  In other words, the evidence would not have met the standard when the trial was held, but twenty years later, the evidence looks like it may have changed things.

WHAT ARE THE RAMIFICATIONS – Brady material is strikes a weird balance because on one hand you can certainly argue that the State should just give over the whole file and not be bothered with these kinds of motions twenty years later.  On the other hand, Judges don’t like to re-visit murder convictions unless there is a compelling reason to do so, and evidence that could have influenced things would more likely than not open up too many cases that should remain closed.  In this case, the evidence reads a lot like the SERIAL podcast, where the evidence is arguable at best and your view of how it would affect the trial depends on your biases in the criminal justice system.  While this certainly could exonerate an innocent person, creating a higher burden on the State to second guess the release of Brady material based on things that happen in the future is an impossible standard to meet in the present scope of a murder trial.

ROOT FOR TURNER IF:  you think Adnan is innocent and are still following his appeal.

ROOT FOR U.S. IF:  you think that the SERIAL podcast jumped the shark somewhere around episode 5, and you’ve moved on to bigger and better podcasts.

PREDICTION:  U.S. wins 7-1


WHAT HAPPENED:  Defendant (Buck) was in the sentencing phase of his trial and his attorney presented an expert told the jury that Defendant was more prone to violence because of his race.  Defendant argues that this mistake prejudiced his death penalty sentencing and he should receive a new sentencing based on an Ineffective Assistance of Counsel claim.  The State’s objections to Defendant’s claim are somewhat strange, since this expert had been used by the State in the past, and the State voluntarily commuted the death penalty sentences for those defendants.  The State did not commute this death penalty sentence because Defendant put on the expert and not the State.

WHY IS THIS BEFORE THE SUPREME COURT:  Ineffective Assistance of Counsel is a claim rooted in the 5th and 6th Amendments which grants a Defendant a new trial when it is proven that the attorney who represented the defendant did an objectively bad job, and that the attorney’s job affected the outcome.  In this case, I think we can all agree presenting an expert who has a history of making racist claims, and then having that expert shares those claims with the jury  is not something you learn in law school.  The issue here is whether or not this expert sufficiently affected the sentencing phase, or if the evidence presented by the State satisfied the burden of proving the death penalty regardless of that witness’ testimony.

WHAT ARE THE RAMIFICATIONS –  Every year there are cases before the Supreme Court that can have long-lasting effects on future cases, but more often than not the Court is faced with weird fact patterns that exist only within themselves.  It is hard to see how this case will have any long lasting effect on IAC claims, since it is unlikely that this kind of expert is still being used, or if there is anything comparable to this kind of conduct.  At oral argument, the Court used some fairly strong language condemning the expert and the attorney, so on those grounds alone, it looks like the implications of upholding the sentence are weighing heavier than the implications of removing the death penalty.

ROOT FOR BUCK IF:  even the hint of racism is repugnant to your sense of justice.

ROOT FOR DAVIS IF:  an efficient system takes precedence over a corrupt one.

PREDICTION:  Buck 8-0.


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)


Last week, news began circulating about a U.S. registry for Muslim immigrants. Although this idea had been floated out by Trump during his campaign, the idea gained additional traction when a Trump advocate defended the registry on grounds that the U.S. Supreme Court had upheld a similar classification based on race in the 1940’s.  Factually, this last statement is true.  In 1944, the Supreme Court held in Korematsu v. U.S. that Japanese internment camps survived Constitutional scrutiny on grounds that national security warranted extreme measures during times of “emergency in peril”.   It is also true that this is one of the only cases not explicitly overruled where the Court permitted a governmental classification based on race.   That being said, any other statements, inferences or arguments that Korematsu is valid precedent to support a registry in 2016 are idiotic propositions that serve to only raise the bar for idiotic propositions during a time when idiotic propositions are something of a cottage industry.

To start, the concept of precedent stands for the position that new cases should be ruled in conformity with old cases to ensure that the law is consistent, predictable and fair.  Consider the following hypothetical, where the greatest person alive gets a DUI on the way home from a X-Mas party.  This person is generous, philanthropic, and humbled by their mistake.  The Court recognizes these factors and spares this person any punishment, reasoning that the embarrassment of the charge is punishment enough.  Now, imagine this same person is instead a dead-beat dad who has accumulated his 5th DUI charge on the way home from a child pornography party.  The Court is not only unsympathetic to this person’s concerns, but doubles the maximum sentence to set an example.  Although this particular situation may seem fair, it becomes much less palatable if the difference between these two people is only based on race, gender, religion or nationality.  In addition to the broader policy concerns, there are also practical benefits to a consistent application of the law.  If precedent applies evenly to everyone, lawyers can give better advice and civilians can better plan their conduct with a fixed idea of how the law is applied.    A good example of the value of uniform laws is in the great State of Delaware, where highly developed precedent in corporate law has made the First State the premier place to incorporate your business since the outcome of any dispute is more easily predictable.  It is also important to note that precedent serves to apply the law evenly, and is not just based on the individual facts of the case.  In the hypothetical above, it is not that all deadbeats are treated the same, but instead that DUI law applies evenly to every person regardless of who they are.      Therefore, the classification in Korematsu is not an open-gateway for any type of racial classification, but it merely sends the groundwork for how today’s Court would view a racial classification under the Constitution.

To that end, it is hard to see how Korematsu could serve as precedent because the legal reasoning underlying the Korematsu decision is inapplicable to a Muslim registry in 2016.  The legal basis for the Koretamtsu decision was under the Equal Protection Clause of the 5th and 14th amendment, which applies a two part test whenever the government classifies individuals differently.  The test, which considers (1) the government’s reason supporting the classification, and (2) how connected the classification is to the government’s stated purpose, becomes harder to pass depending on the classification.  If the government is classifying individuals based on an immutable characteristic (race, creed, nationality, religion), the test is called Strict Scrutiny and it is almost impossible to pass.  The reason the word “almost” is included in that last sentence is because of Korematsu, as this is one of the only government actions that has passed a racial classification under Strict Scrutiny.

While that sounds foreboding, note the following factors that played into the 6-3 Korematsu majority decision.  First, the government’s stated purpose for the internment camps were highly influenced by U.S. military relations in 1944.  Koretmatsu was issued approximately three years after Pearl Harbor and six months after D-Day.  To that end, the Court believed that the government had a compelling interest in the protection of national security by preventing espionage during a time of active war.   Regardless of how you feel about immigration, ISIS, or the Middle East, this concern is not present today.  The U.S. is not involved in a military conflict similar to the scale of World War III and the purpose behind the Muslim registry is not to prevent the same type of espionage.  These differences may become blurred depending how the World turns, but at present day, these differences invalidate Korematsu as precedent as under the first element of Equal Protection because today’s government does not have the same compelling reason to set up a registry that classifies immigrants by their religion.

The second element of strict scrutiny, considering whether the government’s policy is related to action, is another area where Korematsu can be distinguished based on how the mechanics of the internment camps related to the government’s concern.  In addition to highlighting the active conflict of World War II, the Court noted two specific elements of the Japanese internment camps that influenced its decision.  The first was the short of amount of time the government had to make a full and complete decision before evacuating Japanese citizens, out of fear that Pearl Harbor was the first sign of a West Coast invasion.  Once again, this concern is not present today since the Muslim registry is not a knee-jerk reaction to a suspected invasion of Muslim immigrants.  The second influencing factor was the temporary nature of the internment camps, where the Court noted that the evacuation was not meant to be permanent, but only until the active military situation could be resolved.  Although this may seem like a minor detail, the fact that a Muslim registry is permanent is a significant distinguishing factor, since the government’s specific burden under this element is whether the government’s action is the “least restrictive method” of carrying out the policy.  When applying this test, the Court has not been afraid to suggest alternatives to vet out a better way for the government to carry out its policy.  While the Court in Korematsu deferred to the government’s decision in active war, it is hard to see this Court, which repeatedly invalidated George W. Bush’s decisions on Guantanamo Bay following September 11th, would give the same deference.  Simply put, the surrounding factors and mechanics of the government action do not equate to surviving the same test under the Equal Protection Clause.

Lastly, it is important to note that although Korematsu has not been overruled, the belief that it still serves as binding precedent is the kind of stupidity that can only result from a higher education.  The Supreme Court does not overrule precedent by its own accord, but must be presented with a case that warrants overruling the decision.  The famous case of Brown v. Board of Education overruled Plessey v. Ferguson because there was a case warranting such a decision, and the same thing goes for anti-miscegenation statutes and criminal sodomy laws.  The only reason Korematsu has not been expressly overruled is that the United States government has not proposed a full-scale racial classification in the last 40 years, which I should note, IS A GOOD THING.  In addition, not every bad Supreme Court case needs to be overruled the way that Michael Scott declared bankruptcy in the Office, as many bad cases are simply eroded over time to show that the law has changed in a different directly.  To fill the void that a lack of government deportations created in the last six decades since Korematsu, Equal Protection law has developed to such a degree that the Court is now invalidating inferred racial classifications because governments no longer makes outright classifications based on immutable characteristics.  So no, Korematsu has not been overruled, but if there is any good thing that can come from this registry, it would be that the Court could finally clear the last major black eye from the history books.