SCOTUSblog

Petition Preview: Enya, the Death Penalty, and Video Victim Impact Evidence

2008-08-30T05:11:55Z

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.

The case stems from the capital murder trial of Douglas Oliver Kelly, whom a California jury convicted in the 1993 killing of Sarah Weir, a 19-year-old he had befriended at a local gym. According to an autopsy, the victim — whose body was found naked — had been stabbed twenty-nine times with a pair of scissors. Less than three months later, authorities arrested the defendant as he attempted to re-enter the country through Mexico, finding two of the victim’s personal checks, containing what appeared to be her signature, in his possession.

At trial, four women testified to having been separately raped by the defendant in the decade before the crime – including one woman who testified the defendant raped her less than two weeks before the victim’s murder, at the same apartment where her body was found, and while holding a pair of scissors to her throat. The defendant offered no evidence at the guilt or penalty phase, and the jury imposed a death sentence.

On appeal, among other issues, the defendant challenged the introduction at the penalty phase of a nearly twenty-minute video montage of the victim’s life (available below). Prepared and narrated by the victim’s adoptive mother, the film contained roughly ninety photos of the victim from infancy through high school graduation. Interspersed among the photos were a dozen video clips, some lasting a few minutes, showing the victim engaged in various childhood activities, such as playing with friends in a pool, readying her Halloween costume, and singing in a school choral group. In the background plays music by Enya – one of the victim’s favorite artists – an Irish musician known for layering recordings of her singing in different languages.

In the final minute, following photographs of the victim’s grave site, the film concludes with video of horsemen riding across the Canadian countryside. The victim’s mother says, “As time goes by I try very hard not to think of Sarah in terms of this terrible crime that we’ve had to deal with here in the court, but rather think of her in a place like this…This is filmed in Southern Alberta, the land where Sarah’s people lived for so many generations. This is the kind of heaven she seems to belong in.” (The victim, a Blackfoot Indian, was born in Canada.)

(The first half of the video is available below. The second half, along with further information about the case, is available after the jump. To download the full video, click here.)

At trial, the judge declined to exclude the tape under Section 352 of the California Evidence Code (the analogue to Federal Rule of Evidence 403), which permits courts to exclude otherwise relevant evidence if the danger of unfair prejudice “substantially outweighs” its probative value. On appeal, the California Supreme Court affirmed the trial judge’s decision to admit the tape, relying in large part on a decision it had issued the previous year involving a clip of a twenty-five-minute news interview the victim had given at a local television studio.

While the prior decision upheld the introduction of the tape at issue, the court said courts should exercise strong caution in admitting videotaped victim impact evidence, particularly if the video “lasts beyond a few moments,” “emphasizes the childhood of an adult victim,” or “is accompanied by stirring music.” Over the dissent of one justice, who would have held that the tape in Kelly’s case exceeded the very limitations the California Supreme Court previously established, a majority of the court held that the trial judge did not abuse his discretion in admitting the tape (opinion available here).

In his petition for certiorari, Kelly argues the video introduced in his case greatly differs from the type of victim impact evidence the Court confronted in Payne – where a grandmother testified during the penalty phase about the impact of the crime on her grandson, who survived a gruesome attack in which his mother and sister were killed. Writing for a 6-3 majority, Chief Justice Rehnquist reasoned that two prior rulings which barred the introduction of victim impact evidence unfairly weighted the scales in favor of capital defendants. While virtually no limits were placed on the type of evidence capital defendants could offer in mitigation, Rehnquist wrote, states were barred from offering so much as a “quick glimpse of the life” of the victim.

At the same time, the majority suggested that not all victim impact evidence was automatically admissible. “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair,” Rehnquist wrote, “the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Similarly, Justice Souter wrote in a concurring opinion that such evidence “can of course be so inflammatory as to risk a verdict impermissibly based on passion, not deliberation.”

The Supreme Court has not subsequently revisited the issue of victim impact evidence. In the ensuing years, numerous lower courts have permitted prosecutors to introduce videotapes during the penalty phase of trials, generally featuring either brief clips from home movies or television interviews with the victim. For example, the Maryland Supreme Court allowed a ninety-second tape of the victim playing the piano; the Missouri Supreme Court allowed a tape showing the victim’s family at Christmas; the Montana Supreme Court allowed a tape of the victim playing with his children; and the Arkansas Supreme Court allowed a tape narrated by the victim’s brother (but otherwise silent) containing some 160 photos of the victim with his family and friends.

According to Kelly’s petition, however, courts have “held the line” against the introduction of tapes containing both background music and extensive video footage or collections of photographs. As one example, it notes a federal district court in Massachusetts barred a twenty-seven-minute video containing some 200 photographs of the victim set to the music by the Beatles and James Taylor. More significantly, the Texas Criminal Court of Appeals reversed the introduction of a seventeen-minute video montage – also set to background music by Enya, as well as Celine Dion – created by the victim’s father as a tribute to his slain son. (On remand, a lower appellate court found the tape prejudicial and vacated the defendant’s sentence.) The petition also says that during the trial of Timothy McVeigh, the judge barred the prosecution from introducing wedding photographs and home movies as victim impact evidence.

The petition argues that while the Payne majority envisioned “objective factual testimony” about the impact of the crime, video tributes marking milestones in the victim’s life are no different than a eulogy. And with the advent of computer editing software, the petition says, even amateur filmmakers can now replicate advanced cinematic techniques, such as the “Ken Burns effect” – the technique, commonly used in historical documentaries to enhance dramatic effect, of zooming or panning the camera over still images.

The petition also contends the inclusion of background music serves no purpose beyond heightening the emotional experience of the viewer. Kelly’s attorney cites a 1940 essay in the New York Times in which composer Aaron Copland discussed his score for the movie, Of Mice and Men. “The quickest way to a person’s brain is through his eye,” Copland wrote, “but even in the movies the quickest way to his heart and feelings is still through the ear.” The petition argues that just as background music could not be played during in-court testimony, nor should it be allowed to accompany evidence on videotape.

In its brief in opposition, the state of California argues that no genuine conflict exists on the admissibility of victim impact evidence presented on videotape. On the contrary, the state argues, most courts have admitted such evidence, and those that excluded it relied on state rules of evidence rather than the Due Process Clause. In the absence of a conflict below, the state argues, the petitioner merely seeks review of the California Supreme Court’s application of Payne to the facts of his case — a request not worthy of plenary review. And even if the background music or closing images were irrelevant to the impact on the victim’s family and should not have been admitted, the state concludes, their inclusion did not prejudice the defendant when considered in light of the trial as a whole.

The petition will be considered at the Court’s opening conference September 29. The Supreme Court could announce its decision as soon as September 30.

Links:

Opinion below, with subsequent modification (Supreme Court of California)
Petition for certiorari
Brief in opposition
Petitioner’s reply

U.S. opposes review of wetlands case

2008-08-29T20:59:57Z

The Justice Department on Friday urged the Supreme Court to leave intact a federal appeals court ruling on the scope of the government’s authority to protect wetlands from pollution — in this case, discharges from home septic tanks. Although the Fifth Circuit Court ruling being challenged in the case, Lucas v. U.S. (07-1512), is one of a series of rulngs contributing to confusion over the meaning of the Clean Water Act, the Justice Department prefers to have that issue decided by the Justices in a newly filed government appeal — U.S. v. McWane, Inc. (08-223). (That appeal is discussed in this post.)

Acting Solicitor General Gregory G. Garre filed this brief in opposition in the Lucas case.

The Lucas case involves three individuals and two corporations convicted of criminal charges of, among other claims, violating the Clean Water Act by causing pollution of wetlands by installing faulty septic tank systems in a private home development in Mississippi. The appeal urged the Supreme Court to clarify the wetlands-protection issue, but also to decide whether the CWA applies at all to individual home septic systems. The appeal argues that those are not “point sources” of pollution under the Act.

The Justice Department said the appeal does not pose directly the conflict among lower courts over the wetlands-protection issue, because the convictions would stand under any interpretation of the Act. The Department also argued that there is no conflict among lower courts on whether septic tanks are covered by the Act, so that issue is not worthy of review.

UPDATE: Bismullah effect spreading?

2008-08-29T21:16:12Z

UPDATE

Even as the Justice Department makes plans to try to get higher courts to overturn a broad judicial mandate to produce what it knows about Guantanamo Bay detainees (discussed in the post just below, updated Friday), it is now facing the prospect that the obligation may also extend to detainees’ cases in U.S. District Court. In one of the leading groups of habeas cases, U.S. District Judge Richad J. Leon on Thursday called for new briefs on this controversy.

At the center of this dispute is the D.C. Circuit Court’s two rulings last year in Bismullah v. Gates (Circuit docket 06-1197), laying down a potentially wide-ranging requirement on the government to disclose what it has in perhaps several federal agencies’ files about individual detainees, so that the information can be tested to see if it justifies further detention of those at Guantanamo.

As of now, the Bismullah mandate only involves detention cases being reviewed by the Circuit Court. Even that, however, has upset federal agencies — especially intelligence agencies — because they contend it could interfere with efforts to protect national security secrets and intelligence methods. Justice Department lawyers were not able to get the Supreme Court to overturn the Bismullah decisions on the first try, but now are contemplating another.

On Wednesday, lawyers for six detainees — the same six that were involved in the Supreme Court’s ruling June 12 on detainees’ habeas rights (Boumediene v. Bush) — asked Judge Leon to use the Bismullah decision as a basis for ordering the government “to search for and produce” all information that might favor the detainees’ challlenge to captivity — and perhaps “all information” about detainees — for review in habeas proceedings. (The document making this request, a “notice of subsequent authority,” can be read here.)

Judge Leon reacted on Thursday, telling each side it could file a new brief on the issue if it wished, with any such brief due next Wednesday.

The detainees’ plea is based on this chain of logic: the Circuit Court has put its Bismullah decisions newly into effect after they were sent back by the Supreme Court; Bismullah applied to the government’s obligation in detainee cases before the Circuit Court, but the Supreme Court in Boumediene found the law governing those cases (the Detainee Treatment Act) to be an inadequate substitute for habeas proceedings; the Supreme Court also made clear that habeas would be a broader review than what the Circuit Court would do under DTA and Bismullah, and thus the detainees in their habeas challenges — involving the “more rigorous” form of judicial review — should get the same access to such a broader array of government information.

The government has already signaled that it is vigorously opposed to any extension of Bismullah to other cases, and, in an earlier brief in Judge Leon’s Court, made clear its view that the mandate “does not provide a helpful guidepost for determining the scope” of its duty to disclose information in habeas cases. Bismullah, it contended, was “wrongly decided” and had been vacated by the Supreme Court. (That brief was filed before the Circuit Court reinstated Bismullah.)

Bismullah, the Department brief said then, “addressed the requirements of a unique regulatory and statutory scheme that is not at issue here” — civilian court review, limited in scope by the Detainee Treatment Act of 2005, of Pentagon detention decisions.”

In a habeas cases, the Department added, each side will be producing “its own evidence” on the validity of detention in order to address the constitutional right of individuals (now recognized by the Supreme Court) to contest their captivity. Bismullah, it noted, had nothing to do with the Constitution.

Detainees are seeking in District Court a Bismullah-like disclosure duty on the government’s part primarily to assure that anything that might help the detainees’ challenge gets brought out in court, and the government should thus have an ongoing duty to product it, in full.

Judge Leon has already reacted somewhat cautiously to a request of detainees’ lawyers to force the government to seek out information that would help the detainees’ cause. In his “case management order” this week, the judge said the government would be obliged to produce information that helps detainees only if it is contained in the materials government lawyers are preparing to submit in habeas cases.

It is not clear, however, that Judge Leon, at the time he issued that order on Thursday, had considered the detainees’ counsel’s new plea — filed the day before — to expand the government disclosure obligation under Bismullah.

U.S. to try again to curb DTA review

2008-08-29T21:12:04Z

UPDATE Friday afternoon

In a move sure to draw government opposition, lawyers for seven Guantanamo Bay detainees asked the D.C. Circuit Court on Friday to order the Justice Department and Pentagon to produce within ten days the complete files, including any secret data, that it has about those individuals. In a motion to compel, the lawyers relied upon the Circuit Court’s reinstated Bismullah v. Gates decisions of last year. In fact, the motion was filed in the Bismullah case itself (Circuit docket 06-1197), and six other appeals by detainees, all challenging their captivity under the Detainee Treatment Act of 2005. The government, the motion argued, has said it was busy compiling these records, and thus should be able to produce them quickly — initially, in classified form, in order to speed access to them for detainees’ lawyers. The Justice Department is likely to oppose this new request, as it goes forward with efforts to undo the Bismullah ruling (see the following post).

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The Justice Department is discussing a return to the Supreme Court, to ask it to curb the authority of a federal appeals court to engage in a wide-ranging review of military decisions to detain prisoners at Guantanamo Bay. The plans, reportedly conveyed to attorneys for detainees, remain subject to approval by the U.S. Solicitor General, it is understood. An initial attempt may be made to get the lower court, the D.C. Circuit Court, to react first.

Under discussion are ways to block, and ultimately to get overturned, the D.C. Circuit order that has revived its broad review mandate.

The Department has made it clear, in prior court filings, that it remains deeply disturbed by the Circuit Court’s ruling — actually, a pair of rulings last year — in the case of Bismullah v. Gates (06-1197). For example, government lawyers wrote in a Circuit Court brief last month that Bismullah was “wrong when it was issued” and is “incompatible” with the Supreme Court’s June 12 decision in Boumediene v. Bush on the meaning of the Detainee Treatment Act of 2005, which spells out the Circuit Court’s role in examining military detention. They also said that the Bismullah decision threatens “grave damage to national security.”

Two days ago, however, the Circuit Court reinstated Bismullah, turning aside a Justice Department request not to do so (see this post.) The Department had appealed Bismullah to the Supreme Court last Term, and, at the end of the Term, the Justices sent the case back — without a definitive ruling on it — to the Circuit Court for a new look in the wake of the Boumediene decision on detainees’ rights.

Since the Court, in returning the case to the appeals court, had vacated the prior ruling, the Department has contended, it sent a message that the decision was wrong on “the nature of review” that the Circuit Court was to undertake in DTA cases.

The Department has also asked the Circuit Court to put on hold all DTA cases, so as not to interfere with government responses to the challenges to captivity that detainees’ lawyers are now pursuing in more than 200 habeas cases in District Court — challenges that the Supreme Court allowed in its Boumediene decision. So far, the Circuit Court has not ruled on the abeyance request.

This controversy is about one aspect of the Circuit Court’s assignment under DTA: how much information must the government supply, to the Circuit Court and to detainees’ lawyers, in order to try to justify holding individuals at Guantanamo? The Bismullah ruling requires that the government supply a broad array of information of what intelligence agencies have in their files about individual detainees. But the government contends that the only thing the Circuit Court should be allowed to review is the actual information that was considered by the Pentagon — that is, by so-called “Combatant Status Review Tribunals” - when original decisions to detain were made, in some cases as long as four years ago.

That controversy is deep enough that the Circuit Court split 5-5 last February in refusing to reconsider en banc the Bismullah panel decisions.

The Supreme Court did not resolve that controversy in its action June 23 on the government’s initial appeal of Bismullah.

It is unclear when the Justice Department will make its next moves to try to restrict DTA review. It can ask the three-judge panel for a stay (the panel split 2-1 in reinstating the earlier rulings); it can ask the en banc Court for a stay (the 5-5 split earlier against full court review makes that option not very promising), or it can ask Chief Justice John G. Roberts, Jr., for a stay while the planned appeal proceeds.

If the decision is made to first test its chances of reconsideration in the Circuit Court, the Department may well face the prospect of the same split that kept the full court from getting involved earlier. The ten active judges on the Court remain the same. Whether any might change his or her mind, to make a majority in favor of en banc review, of Bismullah, might depend upon whether the government was able to make its point that the Boumediene decision changed the legal landscape.

The Department’s lawyers interpret the Boumediene decision as an interpretation of the Detainee Treatment Act that would limit the Circuit Court’s review simply to the information that the government had laid before the Pentagon status tribunals in obtaining original detention findings. The detainees’ lawyers take the view that the Supreme Court only found that DTA review process to be an inadequate substitute for habeas.

An easier standard for detention

2008-08-27T22:39:20Z

NOTE: In a hearing Wednesday on procedural issues in detainee cases in his Court, U.S. District Judge Richard J. Leon expressed concern about the need to have most of the hearings in those cases behind closed doors, because of the use of classified evidence. Howard Bashman’s How Appealing blog provides this link to a news account of that hearing.

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A federal judge who is moving ahead rapidly to implement a Supreme Court decision and decide whether the Pentagon may continue to hold detainees at Guantanamo Bay decided on Wednesday to require only the lowest level of proof to justify further captivity.

In a case management order that applies to the 24 habeas cases before him, U.S. District Judge Richard J. Leon ruled that it would be up to the government to prove “the lawfulness of detention” case by case, but need do so only by a “preponderance of the evidence.”

In Boumediene v. Bush (06-1195), the Supreme Court on June 12 ruled that Guantanamo detainees have a constitutional right to challenge their detention in habeas proceedings in District Court. But the Court left it up to District judges to work out the details of such reviews. Judge Leon was the first to sort out these details; as matters have turned out, the Boumediene case itself is one of those pending before Leon. He plans to start habeas hearings on Oct. 6, with the Boumediene case set for Oct. 8. Other judges are expected to follow with their own procedural rulngs.

The order’s choice of a standard of proof for detention was something of a compromise: the government wanted to be required only to offer some “credible” evidence, and then require the detainee to offer stronger evidence against captivity; the detainees wanted the government to have the burden, but wanted to require that detention by justified “beyond a reasonable doubt,” or, at least, by “clear and convincing evidence” — both more demanding than the standard the judge chose.

The detainees succeeded on a key procedural point: the order did not assure the government that there would be a “presumption” in favor of all of its evidence. Instead, the judge said he would decide, for each piece of evidence, whether to presume that it was accurate or authentic. If any presumption were to be allowed, detainees’ lawyers could contest it, the order said.

Judge Leon left himself some room to second-guess the government, not only on the weight of its evidence to support detention, but also on the core issue of what is a “lawful” detention. Each government report offering reasons for an individual’s captivity, the judge said, must “set forth the government;s legal basis for detaining” that captive. If it offers evidence that he is an “enemy combatant,” it “must provide the definition of enemy combatant upon which it relies.”

The detainees partially succeeded on another point: the government’s duty to turn over any evidence that, in the words of the order, ”tends materially to undermine the government’s theory as to the lawfulness” of an individual’s detention. The order said the government must do so “on an ongoing basis,” but did not impose a requirement that government agencies search for such evidence; instead, the turnover duty applies to evidence “contained in the material reviewed” in preparing its reasons for detention.

The judge also made clear, as he had tentatively decided, that he would not require that any detainee be brought to the courtroom to take part in any hearing — an option their lawyers wanted. The order said that the judge would attempt to give detainees “telephone access” to the unclassified parts of any habeas hearing. The order added that, “at a minimum,” a detainee’s lawyer would have the opportunity to contact his client at Guantanamo “by secure telephone on at least one occasion prior to presenting” the detainee’s side of a case.

The order left open the possibility that either side might be allowed to call witnesses to testify. It said: “If a party is permitted to present live testimony during the habeas hearing, the opposing party will be permitted to cross-examine those witnesses.” The judge had said earlier that he would not assure the detainees of any constitutional right to confront witnesses, or to call witnesses.

The order also left open the possibility that detainees could demand evidence from the government — that is, “discovery” rights. Each request for such information would have to get the judge’s approval, and the order set specific requirements for justifying such a request.

Judge Leon’s order left unmentioned a key point of dispute between the two sides: whether he would require the government to notify him or detainees’ lawyers in advance of transferring any detainee out of Guantanamo. At the moment, many such “notice” orders are in effect, but the government is contesting all such orders in the D.C. Circuit Court.

The judge had said publicly that he would insist on being notified himself of such proposed transfers, but said he doubted he had authority to require notice be given to detainees’ lawyers. The detainees wanted notice both to the judge and to their lawyers.

On other points, the order requires the government to get the judge’s approval to add new evidence to support detention, and allows both sides — subject to challenge by the other side — to offer “hearsay” evidence from witnesses not being called to the stand.

Analysis: The meaning of Munaf

2008-08-26T17:13:50Z

Analysis

When the Supreme Court on June 12 found a new constitutional right for Guantanamo Bay detainees, another decision on the same day had little chance of being widely noticed even though it, too, involved detainees’ rights. That ruling, in a pair of consolidated cases, focused on prisoners the U.S. military holds in Iraq, not at the U.S. Navy prison compound on the island of Cuba.

Another factor tended to take away — at the time — from the seeming signifidance of the ruling in Munaf v. Geren (06-1666, along with Geren v. Omar, 07-394): the decision was unanimous, suggesting it was not all that hard to decide and thus may not have decided much — in contrast to the labored efforts a deeply divided Court has put forth in a string of major decisions involving government claims to added ”wartime” powers.

But the Munaf ruling, like the constitutional decision that same day in Boumediene v. Bush (06-1195), is taking on new meaning and raising new questions in the lower federal courts. And, just as it can be asked just what was decided in Boumediene (see this post), it seems to be an open question just what Munaf resolved.

The point is well illustrated by two legal briefs, both filed last Thursday in the D.C. Circuit Court, in a series of cases (led by Kiyemba, et al., v. Bush, et al., Circuit docket 05-5487). These cases involve nine Guantanamo detainees — all members of a Chinese Muslim minority (the Uighurs) that has for years suffered persecution in China; these nine were captured elsewhere after they had relocated. (The brief for the Uighur detainees is here; the government brief is here.)

The government has 167 appeals in the Circuit Court in other cases awaiting the outcome of the Kiyemba litigation, and detainees have three other such appeals now pending. All of them turn primarily upon a single issue: do federal judges have any authority to issue orders of any kind to limit or delay the Defense and State Departments from sending a detainee to another country, after the Pentagon decides not to keep an individual confined at Guantanamo? It is a question that could touch on major constitutional issues, as well as on the meaning of federal laws.

The Munaf decision could figure prominently in the Circuit Court’s review of that question. The detainees’ lawyers, among other arguments, have told the Circuit Court that Munaf in no way disturbs — and even confirms — the power of federal judges to assure detainees that, before they are subjected to detention somewhere beyond Guantanamo or have to face the prospect of torture in another country, they get a chance to object in court, with some chance of protection. And government lawyers have argued that Munaf makes clear that decisions about transfers of detainees out of Guantanamo are a matter for Executive Branch decision, without any “second-guessing” by the courts.

It seems unlikely, at a minimum, that the Supreme Court, in deciding Munaf, thought it was choosing up sides in that broad argument. In fact, there were indications that, within the Court, there had been lively discussion over how to keep the ruling within narrow bounds.

There were two distinct parts to Chief Justice John G. Roberts, Jr.’s opinion for the unanimous Court in Munaf: first, the federal courts do have jurisdiction to hear the habeas claims of U.S. citizens beng held captive overseas by U.S. military forces (it is unclear whether U.S. citizenship was crucial to that part of the ruling), but, second, those courts can provide no relief when what the citizens are asking is not to be turned over to another nation’s government for prosecution for crimes allegedly committed inside that nation.

It has become clear, in detainee cases unfolding since Munaf in lower courts, that Justice Department lawyers read the decision expensively, while detainees’ lawyers argue that it is irrelevant to most issues involving detainees but – if it bears on them at all — it provides support for federal courts’ authority to assure that habeas claims get a fair hearing.

While this dispute is playing out in a number of contexts, the Kiyemba group of cases — and the other 170 appeals depending on it — is providing a forum for an early answer by the lower courts.

These cases go back almost three years, to September 2005, when two federal District judges issued orders to bar the transfer of detainees from Guantanamo to another country unless the government gives 30 days’ advance notice of its transfer plans. The judges did so to assure that they would not lose jurisdiction over the detainees’ challenges to their captivity.

The government appealed to the Circuit Court, contending that the judges had no authority to issue such orders in habeas cases and that such restrictions intruded upon Executive Branch powers and actually would impede efforts to release or transfer detaines.

The Circuit Court heard the cases, but then ordered them dismissed, relying on its decision in Boumediene v. Bush that Congress had scuttled the detainees’ habeas rights. But the dismissal was put on hold while the Supreme Court reviewed Boumediene. After the Supreme Court in Boumediene overturned the Circuit Court on the habeas question, the Circuit Court called for new briefs on the transfer notice issue. After answering briefs are filed on Sept. 4, a Circuit Court panel will hold oral argument, now set for Sept. 25.

The briefs filed last week cover a range of issues tied to the transfer authority dispute. The detainees, for example, say the cases only involve a narrow question of whether courts may issue transfer-notice orders to protect their jurisdiction to decide the underlying habeas challenges. The advance notice requirement, their brief contends, does not bar any transfer at all. If any transfer notice is filed by the government, the brief suggested, it will be time enough to decide whether the detainees have any objection; they may even readily agree, if the transfer would be to a “safe” country. The detainees, according to the brief, “seek only the opportunity to obtain judicial review of their habeas claims. It is this basic right, and only this right, that the [transfer notice] orders preserve.” That basic right, the brief contended, was upheld in Boumediene.

While that brief seeks to keep the Circuit Court’s focus narrow, it does argue more widely that federal courts definitely do have authority to prevent a new form of detention — overseas — for individuals the Pentagon decides to hold no longer at Guantanamo, and do have authority to head off any risk that a detainee will suffer torture or abuse in another country.

The government, in its new brief, contends that Congress has taken away the federal courts’ authority in habeas to issue any orders having to do with transfer of detainees away from Guantanamo. It argues that Boumediene did not undermine that restriction on habeas. It also asserts that major separation-of-powers problems are looming if the courts seek to limit how the Executive Branch deals diplomatically with the choice of countries to accept transferred detainees.

The judges’ orders requiring transfer notice, the brief said, “impermissibly encroach upon the President’s powers as Commander-in-Chief and the political branches’ responsibility over foreign policy….By interfering with sensitive negotiations with foreign governments and preventing the Executive Branch from releasing [detainees] as soon as it determines is appropriate, the injunctions harm third parties and the public interest.”

The two sides move beyond those arguments to advance their competing, and directly conflicting views, of what the Supreme Court decided in Munaf.

U.S. seeks clarity on Rapanos ruling

2008-08-26T00:07:04Z

The U.S. government, arguing that the lower courts have fallen into confusion and disagreement over federal power to protect wetlands, has urged the Supreme Court to make clear what it meant in the “highly fractured” ruling two years ago in Rapanos v. U.S. (04-1034) — a significant decision on the scope of the Clean Water Act.

The Justice Department filed an appeal Thursday on that issue in U.S. v. McWane, Inc., et al. (docket 08-223). The petition, together with an appendix with Eleventh Circuit Court opinions, is now available and can be downloaded here.

The Eleventh Circuit, in a post-Rapanos decision last October that created a direct conflict among lower courts, ruled that the federal law’s ban on pollution into “waters of the United States” does not apply to wetlands unless they have a “significant nexus” to traditional streams. The Circuit Court found that legal formula in a separate opinion in Rapanos by Justice Anthony M. Kennedy, writing only for himself. That, the Eleventh Circuit said, is the only standard that governs. (An earlier post discussing this legal dispute can be found here.)

The new appeal contends that the proper way to read the Rapanos decision is to apply the view “endorsed by eight Members of this Court in Rapanos — the four-Justice plurality and the four dissenters.”

The Department contended: “The court of appeals’ analysis misinterprets Rapanos and this Court’s precedents governing how to interpret fractured decisions; creates bizarre outcomes;…will seriously impede enforcement of the CWA; and presents an issue of exceptional importance both to the government and to the regulated community. That decision should not be permitted to stand.”

The federal appeal is one of two asking the Court to re-visit and clarify its Rapanos decision. The other is Lucas v. U.S. (07-1512), filed in early June. The Justice Department is scheduled to respond to that petition by Friday, but, in a footnote in its McWane appeal, the Justice Department said that the federal case “provides a more suitable vehicle” for confronting the Clean Water Act issue.

Under that Act, no one may discharge pollutants into “navigable waters,” defined as “the waters of the United States.” The government interprets that last phrase as meaning traditional rivers and their tributaries, and wetlands that are “adjacent” to such rivers and streams.

In Rapanos, the four Justices supporting the main opinion, written by Justice Antonin Scalia, said the waters protected by the Act are those that are “relatively permanent, standing or continuously flowing bodies of water” connected to traditional rivers or streams that can carry navigation, as well as wetlands with “a continuous surface connection to such water bodies.”

Justice Kennedy, however, said the Act protects wetlands that “possess a ’significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” The four dissenters said lower courts could apply either the Scalia or Kennedy approach, although they themselves preferred the long-standing government definition that protected more wetlands from pollution.

The Eleventh Circuit, however, using the concept that Kennedy’s opinion turned out to be controlling because it provided the reasoning that created a majority for the outcome in Rapanos, said that that was the controlling standard. The Circuit Court thus overturned convictions under the Act for dumping large quantities of untreated industrial waste water from a pipe-making foundry in Birmingham, Ala., into a creek that flowed into other permanent streams feeding into navigable waters in the traditional sense.

In its appeal to the Supreme Court, the Justice Department said that the creek into which the waste water was discharged “flowed year-round and…fed, through perennial waters, into a traditional navigable river. That evidence proved that the site of the discharges was part of the ‘waters of the United States’ under the standards” endorsed by the plurality and dissenters in Rapanos.

The nation’s waters, the petition said, “include innumerable perennial or relatively permanent tributaries that connect to traditional navigable waters. The health and vitality of those interconnected waters depends critically on protection of the tributary systems from pollutants that naturally wash downstream.”

Under the Kennedy “significant nexus” standard, the petition argued, juries would be asked to weigh complex scientific evidence and have to parse conflicting experts’ testimony.” This could lead to differing or directly conflicting outcomes, jury by jury, the petition contended.

The response to the government appeal is now due Sept. 22, unless the time for filing is extended.

The bill for Heller: $3.5 million

2008-08-25T22:06:39Z

Lawyers who won the historic Second Amendment gun rights case in the Supreme Court — District of Columbia v. Heller (07-290) — on Monday asked a federal judge to award them more than $3.5 million for attorneys’ fees, plus $13,215.30 for expenses and court costs. In a motion and memorandum filed with U.S. District Judge Emmet G. Sullivan, the attorneys said that they had achieved “one of the most profound and important victories available under our system of justice.”

Their argument also suggested that this was a David vs. Goliath clash, with the attorneys on their far side far outnumbered in lawyers, legal resources and government funding.

Their motion said the lawyers expect that the District of Columbia government will oppose their fee and expenses request, but added that they had not yet received a formal response.

Looking back at the case, the memorandum remarked: “Throughout it all, [the challengers’] legal team consisted primarily of the three undersigned attorneys, with occasional support from a small handful of others, all working on a pro bono basis.” The three are Alexandria attorneys Alan Gura and Clark M. Neily III, plus Robert A. Levy of the Cato Institute, “who also personally bore all the expenses of the litigation,” according to the document.

The filing said that Gura had asked for “an exiguous payment” [dictionary definition: excessively scanty] to get involved, but “never saw this as anything other than a pro bono case.” He asked that the Court keep confidential the details of that arrangement, but said the details would be disclosed if the Court required it. The last payment under that deal was received in mid-2003, the document said. The case was filed originally in District Court in February 2003.

The memorandum said that, in addition to a base amount on hourly rates, a multiplier had been added because this was an “exceptional case.” It added: “If this is not an ‘exceptional case’ warranting an enhancement multiplier, we are at a loss to describe what case would qualify.”

The resulting fee claim was based, for example, on an hourly rate for Gura of $557 per hour, times a 2.0 enhancement for 1,661 hours, resulting in a claim for $1,850,354, and an hourly rate of the same size for Neily times the same enhancement for 808.3 hours, resulting in $900,446.20. Levy’s claim was for $663,498.40. Overall, the claim for seven attorneys’ time totaled $3,559,097.20.

Among the expenses and costs claim totaling $13,215.30, the largest sums were for payments to attorneys Stephen Halbrook, a Fairfax, Va., attorney who has long been associated with court cases over Second Amendment rights ($3,250), and Don Kates ($4,400).

The challengers to District of Columbia gun laws — including a flat ban on private possession of pistols in the home or anywhere other than a business — lost in District Court, but won in the D.C. Circuit and in the Supreme Court. The Justices’ 5-4 decision, announced on June 26, the final day of the last Term, declared for the first time in history that the Second Amendment protects an individual’s right to have a functioning gun for use in self-defense in the home.

In the Supreme Court, the local gun ban was challenged by a government security guard who lives in Washington, Dick Anthony Heller. After the Court ruled, and the D.C. government set up a new regime of licensing of pistols, Heller filed a new lawsuit in federal court challenging the new approach as too restrictive. (He has since had his pistol registered under the new regulations.) Attorney Halbrook is the lead counsel in that case.

Two other District residents joined in the lawsuit (Heller, et al., v. District of Columbia, et al., District Court docket 08-1289), now pending before District Judge Ricardo M. Urbina. The District government’s response to the lawsuit is now due on Thursday of this week.

Circuit Court holds firm on DTA review

2008-08-25T22:12:59Z

UPDATE 3:30 p.m. There have been other developments in detainees’ cases; they are discussed in the continuation of the post below.

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The D.C. Circuit Court, turning aside a Justice Department plea to cut back sharply on its review of military decisions to detain individuals at Guantanamo Bay, has put its tough review regime back into effect. In a brief order on Friday (found here), the Court without explanation reinstated its pair of decisions in Bismullah v. Gates (Circuit docket 06-1197). That order thus implied that the Circuit Court did not believe the Supreme Court had undercut the prior Circuit rulings, as the Justice Department had contended.

The Circuit Court’s two Bismullah decisions, on July 20 and Oct. 23 of last year, required the Pentagon and other government agencies to produce a potentially wide array of information about detainees, to make the system of civilian court review work as the panel thought Congress intended in the Detainee Treatment Act of 2005. It was not enough, the panel declared, to have before it only the information that the Pentagon had actually considered — in proceedings before Combatanta Status Review Tribunals. This kind of broad review, the Justice Department contended, threatened harm to national security.

The Department appealed the two Bismullah decisions to the Supreme Court (Gates v. Bismullah, 07-1054) after an evenly split Circuit Court denied en banc review in February. The Justices took no action on the appeal until after they decided the case of Boumediene v. Bush (06-1195) on June 12, clarifying some of the legal rights of Guantanamo detainees. Then, on June 23, the Justices vacated the Circuit Court rulings in Bismullah and told the lower court to look at the case again “in light of Boumediene v. Bush.”

After the case returned to the Circuit Court, the detainee’s lawyers urged the panel to reinstate its prior rulings, arguing that some detainees wished to go forward with Circuit Court review of the Pentagon’s CSRT detention decisions, even though they also now had the option (under Boumediene) of pursuing direct challenges to detention in habeas cases in District Court. In response, the Justice Department argued that, by vacating the prior Bismullah rulings, the Supreme Court had indicated that continuing with the Circuit Court role could not be reconciled with the reopening of habeas cases in District Court. The Court, by vacating Bismullah, signaled that that kind of proceeding should be set aside, the Department had contended. (This dispute was discussed in an earlier post, found here.)

Instead, in its order on Friday, the Circuit Court panel, splitting 2-1, simply reinstated its prior rulings, thus restoring them as fully binding mandates on how the DTA process would continue to operate. Circuit Judges Douglas H. Ginsburg and Judith W. Rogers signed the order; Circuit Judge Karen LeCraft Henderson dissented.

The order, however, said nothing about a separate motion the Justice Department has made: that all of the scores of DTA cases be put on hold while the habeas cases proceed in District Court. Presumably, the panel will act on that question separately.

A variety of other developments have been occurring in detainee proceedings in recent days. Here are some of the details:

1. A hearing scheduled in U.S. District Court Tuesday morning could provide a major test of whether Congress has taken away from the federal courts any authority to oversee the war crimes trial system before there are final verdicts. Thomas F. Hogan, a senior District judge who is coordinating detainees’ habeas cases in District Court, will hold a hearing at 11 a.m. on a plea by attorneys for two Guantanamo prisoners to prevent military prosecutors from meeting with the captives without their lawyers’ consent.

The two detainees, Kuwaiti nationals Fayiz Mohammed Ahmed Al Kandari and Fouad Mahmoud Al Rabiah have not been charged with any crimes before a military commission, but their lawyers said they have learned that they will be charged. The attorneys also said that a member of the military prosecution and investigative team has met with Al Kandari, and that prosecutors have said such meetings would be undertaken without the consent of the defense lawyers. A military appeals court refused to intervene to stop such meetings, which the detainees’ lawyers contend are unethical. Documents on this dispute can be found here, and here, and here.

2. In a new development affecting the war crimes prosecution of five individuals accused of taking part in the 9/11 attacks — including alleged mastermind Khalid Sheikh MOhammed, defense lawyers asked for added time to file legal motions. Under a present schedule, such motions would be due on Friday of this week. The attorneys asked that the deadline be put off until Nov. 25, contending that the cases that could lead to the death penalty for each of the five accused are so complex — and lawyers’ access to the clients is so restricted — that counsel cannot mount an adequate defense in the time available. The motion can be downloaded here.

The Week Ahead

2008-08-24T16:21:57Z

The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

On Friday, the Solicitor General’s response is due in Lucas v. United States, 07-1512, a major test case on the scope of government power to regulate wetlands under the Clean Water Act and, in particular, on the proper way to interpret the Court’s divided opinion in 2006 in Rapanos v. United States. The Solicitor General last Thursday filed the government’s own appeal on the scope of Rapanos in U.S. v. McWane, Inc., et al. (08-223), an Eleventh Circuit case.

The petitioner’s merits brief is due Thursday in Pacific Bell Telephone Co. v. linkLine Communications (07-512) and Friday in Ashcroft v. Iqbal (07-1015) and Arizona v. Johnson (07-1122). The respondent’s merits brief is due Monday in United States v. Hayes (07-608) and Friday in Van de Kamp v. Goldstein (07-854).

(Links above direct to case pages on SCOTUSwiki.)