Short Circuit: A roundup of recent federal court decisions

Making a murderer, making a rapist, and making kids wear a motto.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice written by John Ross:

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· FBI agents impersonate journalist, trick bomb-threat suspect into revealing himself. Journalists: That's a concerning tactic. Tell us more. FBI: We have conducted a comprehensive search of the relevant archives and are unable to find more. D.C. Circuit: The FBI Director himself said there was more in a letter to The New York Times. Search again.

· Wholesaler sells imported versions of FDA-approved medicine, medical devices; is convicted of misbranding them as FDA-approved. Second Circuit: New trial. The wholesaler should have been able to tell the jury that a lawyer (a former prosecutor with experience in FDA compliance) advised them they weren't breaking the law.

· Former Honduran soldier enters the U.S. illegally. Back in Honduras, gangsters—whose compatriots the soldier once helped imprison—assault his family and friends in effort to find him. BIA: He missed the deadline to petition for asylum. Send him back. Fourth Circuit: Not so fast. The escalating violence back home renders the deadline flexible.

· Man is convicted of rape in 1986 after victim identifies him (though perhaps not reliably). Yikes! In 2009, it emerges that Detroit crime lab tech goofed up forensic test. At trial, she told jurors that testing did not exclude him; she now says he could not have been the perpetrator. Sixth Circuit: That's not new evidence; the foul-up could have been discovered at trial. Habeas denied. (The man has been eligible for parole since 1994 but maintains his innocence and so won't be released.)

· Former employee programs ATMs to dispense $20 bills while only debiting $1 from bank account, steals $600k from the "infelicitously named SafeCash Systems." He's caught. But wait! The company takes the ATMs out of service (because they don't comply with new federal rules on accessibility for blind customers). Destruction of potentially exculpatory evidence? Sixth Circuit: Convictions and one-year sentence affirmed.

· Low-IQ teenager confesses to grisly murder (the subject of Netflix's Making a Murderer documentary). Suppress the confession? No need, says the full Seventh Circuit; though many worry the investigators' tactics can elicit false confessions, the Supreme Court hasn't condemned said tactics. Dissent: A travesty. Investigators fed him the details they wanted him to admit to and harried him till he did. Another dissent: The courts need to start treating the risk of false confessions more seriously; we know of at least 227 of them.

· One "might be forgiven for thinking there is not much question about whether attempted murder and attempted armed robbery are violent crimes," writes Judge Hamilton of the Seventh Circuit, but it ain't so—at least when it comes to sentencing.

· Pine Lawn, Mo. cop displays incumbent mayor's campaign sign in convenience store window over the objections of the owner; the opposing candidate removes the sign (which has her mugshot from a past arrest on it). The officer threatens to frame the store owner for drug possession if he does not help frame the opposing candidate for theft; he then arrests the candidate, has local TV film a perp walk. Eighth Circuit: The officer's conviction is affirmed. (Related: He was not a good cop.)

· To promote student achievement, prevent bullying, and instill numerous moral virtues, Reno, Nev. elementary school requires students to wear uniforms with motto "Tomorrow's Leaders." Parents: Which is compelled speech. Ninth Circuit: The motto requirement does indeed violate the First Amendment, though we'd give it a pass but for precedent we are bound to follow.

· Helena, Okla. prison kicks inmate out of kosher diet program because staff say he ate a non-kosher meal, which is grounds for suspension from the special meal program. Inmate: I took no cheat day; the staff retaliated against me because I annoyed them, and supervisors declined to review video that would have cleared me. Tenth Circuit: This suit should not have been dismissed.

· Liquor store owner sues Marathon, Fla. officials in state court for misusing their regulatory powers to devalue the property. The city removes the case to federal court. Eleventh Circuit: Ah, but federal courts cannot consider regulatory takings claims unless the state court has first issued an opinion, so case dismissed. Try suing in state court.

· Georgia man pawns his car, files for bankruptcy shortly after. Georgia law says the pawnbroker can keep the car; federal law says the bankruptcy court can "modify" a creditor's rights to such an asset. Eleventh Circuit (over a troubled dissent): "For better or worse," state law controls, and the pawnbroker now owns the car.

· Federal officials decline to register trademark claimed by clothing company "fuct" because it is the phonetic equivalent of a scandalous term. Indeed, the company's products feature "hellacious or apocalyptic events" and "other imagery lacking in taste." Federal Circuit: Which is unconstitutional in light of the Supreme Court's recent ruling in favor of "The Slants."

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  1. My head is spinning. What did I just read?

    1. If your head is spinning, I would think it would be difficult to read anything. 🙂

  2. Ok, lets discuss formatting. For a start, a line between paragraphs.

    1. I’m seeing a line between paragraphs.

  3. It would also be very nice if there were some sort of marker at the beginning of the article text so that the links (which don’t even have labels my screen reader can read) can be skipped.

    1. There is a div with the contents . . .

  4. “The FBI Director himself said there was more in a letter to The New York Times.”

    Was the FBI “extremely careless” or “grossly negligent” in its search?

    1. No, just lazy and incompetent as usual.

  5. “? Man is convicted of rape in 1986 after victim identifies him (though perhaps not reliably). Yikes! In 2009, it emerges that Detroit crime lab tech goofed up forensic test. At trial, she told jurors that testing did not exclude him; she now says he could not have been the perpetrator. Sixth Circuit: That’s not new evidence; the foul-up could have been discovered at trial. Habeas denied.”

    So long as he was found guilty by-the-book, he is guilty. Such are the god-like powers of the court.

    Didn’t there used to be something about “shocking to the conscience”?

    1. Yes.

      Judges Suhrheinrich, Sutton, and Bush apparently lack consciences capable of being shocked.

      1. Three right-wing, authoritarian Republicans. They’ll flop if a prominent conservative is a defendant, or perhaps if a wealthy defendant comes before them, but otherwise the smart money expects them to toe the big-government, right-wing, “law and order,” “traditional values” line. The type of judges the Heritage-Federalist-Olin-Bradley-Bator world, including the Volokh Conspiracy, loves.

        1. I’m sure, of course, that you can explain why the decision was incorrect under the standards established by the Anti-Terrorism and Effective Death Penalty Act of 1996 and aren’t just spouting out partisan nonsense.

          1. The decision was incorrect under the “there is evidence he didn’t do it” standard. The fact that the evidence wasn’t presented at trial doesn’t make it – and his possible innocence – go away.

            1. That’s not the standard under AEDPA, a bipartisan bill signed by Bill Clinton.

              1. “I beseech you, in the bowels of Christ, think it possible [the law] may be mistaken.”

                1. Judges are not in a position to decide if the law is mistaken.

              2. This is justification using the Befehl ist Befehl standard.

                1. Do you really want judges to disregard the law?

              3. Could someone explain why the authoritarian movement conservatives in libertarian drag voluntarily brought their right-wing act to a genuinely libertarian environment?

                Thank you.

                1. So it’s just the ill-informed partisan nonsense then.

          2. I’m sure that you can explain why AEDPA absolutely mandated this decision.

            Sometimes there are judgment calls involved. That’s why we have judges, not algorithms.

            Besides, the thing is strange. Vinson loses because the matter should have been raised at trial and wasn’t, but can’t claim ineffective assistance of counsel either.

            1. There’s a decision for you to read that explains why AEDPA mandated the outcome. Explain what the judges got wrong. Explain where they abused their discretion.

              Or just keep whining about those mean old Republicans.

    2. I am inclined to agree here that the Vinson’s case was wrongly decided, I would rely on narrower grounds in doing so. The threshold question is whether the evidence could have been discovered with reasonable diligence.

      In the context of an indigent defendant with a court-appointed attorney, I think the “reasonable” should ask whether the evidence could have been discovered with the resources actually available to the defendant.

      Challenging a lab technician’s analysis on technical grounds requires engaging experts and conducting fishing expeditions in the hopes of finding out some as yet unknown flaw. It is unlikely a judge would pay for the resources to do this. If it is unreasonable to expect a judge to approve the resources needed to enable a public defender to find something out, it is unreasonable to expect an indigent defendant to discover it.

      I think this interpretation of “reasonable” diligence is fully consistent with the plain meaning of the statutory language. The diligence the 6th circuit required here is simply not reasonable. I think that settles the matter.

      I think it is a much safer course for a court to attempt to address issues like this by making a fair interpretation of the statutory language, than to leap outside it with things like “shocks the conscious.” The statutory language could easily have been, and in my view should have been, interpreted to enable the court to get past the threshold gatekeeping and reach the merits.

      1. The fact that a “concerned citizen” had to pay for the testing necessary to contradict the lab technician, i.e. the courts did not, is in my view highly probative. In deciding what reasonable diligence means, it is simply not reasonable to expect “concerned citizens” will jump out of the woodwork and give an indigent defendant additional resources that the state did not give.

    3. As a thought experiment, if it’s shocking to the conscience then why isn’t the job of the Michigan justice system to correct it? Michigan is the sovereign that is imposing the sentence.

  6. So, are we pretending that Kozinski didn’t resign?

    Or are we pretending that Kozinski’s resignation is not noteworthy?

    1. Whether or not it’s noteworthy, it’s certainly not relevant to an article summarizing the past week’s most egregious Circuit Court-level decisions. I see no connection, for example, between the allegations about Kozinski’s behavior and the case about the First Amendment in the context of school uniforms. (Especially since Kozinski didn’t actually participate in that case.)

      1. Do you think Kozinski’s dissent in Harper v. Poway Unified suggests he would support the 9th circuit decision in the Reno case? Could his resignation affect the outcome if the court rehears the case en banc?

        If there’s a post about Kozinski’s resignation, I’ll gladly check it out – until then I think it is worth acknowledging the elephant in the room.

    2. I know, right? I’m pretty sure sure there’s a law somewhere that says that a blogger has to blog about everything that some commenter thinks is noteworthy!

  7. ? To promote student achievement, prevent bullying, and instill numerous moral virtues, Reno, Nev. elementary school requires students to wear uniforms with motto “Tomorrow’s Leaders.” Parents: Which is compelled speech. Ninth Circuit: The motto requirement does indeed violate the First Amendment, though we’d give it a pass but for precedent we are bound to follow.

    Regular readers of the Volokh Conspiracy will recall that Prof. Volokh represented the students in this case, and blogged about it in the past.

  8. “(The man has been eligible for parole since 1994 but maintains his innocence and so won’t be released.)”

    I’ve long been troubled by this ugly side of offering sentence reductions if the convicted shows repentance: The innocent have nothing to repent, and so end up enduring the full sentence.

    1. Yes.

      These are the kind of judges Adler praises in his post on Trumps’s nominees.

      1. State parole board decisions have squat to do with any kind of federal judges.

        Pay attention to what you are replying to.

        1. Sorry Matthew, I wasn’t referring to the parole board, though I do agree completely(!!) with the sentiment Brett expresses. That whole business smacks of coerced confessions.

          I was referring to the judges who threw out Vinson’s appeal.

          1. “I was referring to the judges who threw out Vinson’s appeal.”

            I was aware of that. However rather than comment directly on the article you replied to a comment by Brett Bellmore that was talking only about the parole board issue. If you don’t have something to say about the comment you are replying to, don’t, just comment directly on the article.

    2. I’m surprised that the evidence showing he was innocent wasn’t presented at the next parole board. As it shows why he claims innocence of the charges and hence should receive parole. That would also allow him to continue his legal avenues free of prison.

      1. “I’m surprised that the evidence showing he was innocent wasn’t presented at the next parole board.”

        Parole boards won’t even consider claims of innocence. That’s true in all 50 states. Even if his lawyer tried to present the evidence to the parole board, they would refuse to consider it.

        What’s worse, Governors, and state Pardon boards (where the state doesn’t give the pardon power to the governor) won’t consider claims of innocence either.

  9. Love the righteous indignation. It pairs so well with the palpable ignorance.

    Perhaps you should check out the composition of the Michigan Parole Board before commenting further.

  10. Mr. and Mrs. Frudden apparently have too much time on their hands.

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