Short Circuit: A Roundup of Recent Federal Court Decisions

Tonal tightropes, regulatory time bombs, and a Southern soul music rivalry.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: Gov't agencies working at cross purposes, police using law enforcement databases for personal reasons, and a sentencing brouhaha. Click here for iTunes.

  • D.C. Circuit (2016): A lawsuit filed by Holocaust survivors against Hungary and its state-owned railway should not have been dismissed; a 1947 peace treaty requiring Hungary to compensate victims doesn't preclude other means of seeking compensation. District court on remand: Nevertheless, case dismissed. The evidence and witnesses are located in Hungary; the case should be tried in Hungarian courts. D.C. Circuit (2018, over a dissent): Reversed.
  • Inmate at Berlin, N.H. prison has his skull broken by other inmates, who then place him in bed, clean him up. An officer doing rounds fails to note the injured inmate is in the wrong cell, which ultimately delays medical treatment by about an hour and a half. Can he sue the officer? The First Circuit says no.
  • Supreme Court (2013): A federal law that requires U.S. nonprofits to adopt policies explicitly opposing prostitution and sex trafficking in order to receive federal funds to combat HIV/AIDS abroad compels speech in violation of the First Amendment. Feds: Sure thing. But the foreign affiliates of those nonprofits must still adopt policies that explicitly oppose prostitution and sex trafficking. Second Circuit (over a dissent): Not so.
  • A suspect's invocation of his Miranda rights is an invocation of his Miranda rights—even if he invokes them in an angry tone, holds the Fourth Circuit, declining to require suspects to walk a "tonal tightrope" in their interactions with police.
  • Allegation: In response to a single incident of misbehavior, a pretrial detainee is placed in solitary confinement for three and a half years until his eventual trial (at which he is acquitted of the most serious charge and sentenced to time served). Which could maybe be a constitutional violation, holds the Fourth Circuit, finding that local officials are not entitled to qualified immunity.
  • In true crime news, the Fourth Circuit spends some 154 pages rejecting the latest request for postconviction relief in a murder case that went to trial in 1979 and whose procedural history requires a footnote stretched across two pages.
  • Various Iraqi nationals living in the United States are ordered removed back to Iraq, mostly because of criminal convictions. Those removals don't happen because Iraq won't take them—until 2017, when diplomacy changes Iraq's mind, meaning long-stalled removals are now imminent. Sixth Circuit, over a dissent: And the federal courts don't have jurisdiction to change that. Take your immigration issues to immigration court.
  • "If I did something wrong, why ain't I in copyright court?" asked recording artist Bishop Bullwinkle, shortly before a court held that he had done copyright wrong. Turns out his viral hit "Hell 2 Da Naw Naw" improperly sampled Bigg Robb's "Lookin for a Country Girl." Faced with a silly procedural objection, the Sixth Circuit affirmed. Come for a tale of Southern soul music rivalry; stay for the holding that "elect" means "choose" or "pick out."
  • Appleton, Wisc. man murders his estranged wife. His defense is that she provoked him, so it's second-degree murder rather than first. The trial judge has to decide if there's enough evidence to allow the defense, but the man doesn't want to disclose more strategy. So the judge listens to the man ramble about the murder privately in chambers; defense counsel is there but not allowed to talk. Judge then rules there's not enough evidence for the man to argue provocation, and he's convicted in the first degree. The man, on habeas: A silenced lawyer violates my right to counsel. The Seventh Circuit, en banc and over a dissent: It's dodgy, but not dodgy enough to give you a new trial.
  • Outgoing Obama administration officials leave "time bomb" for new USDA officials: proposed regulations that increase the agency's regulatory authority (to enforce a "per se" ban on deceptive practices in the meat packing industry absent a showing of potential harm to competition) in a way that courts have long rejected. The new administration cancels the change. Eighth Circuit: Which was not arbitrary and capricious.
  • California law permits police to impound vehicles for 30 days if the vehicle's driver has never been issued a license. Nevertheless, in two separate instances, police in Sonoma County impound vehicles driven by drivers who have been issued licenses (both Mexican, one expired). And both times the driver had a friend with a valid California license who could have taken possession. Ninth Circuit: Damages upheld.
  • And in en banc news, the D.C. Circuit (over a dissent) will not reconsider its decision that D.C. transit officials' rejection of a proposed advertisement that sought to promote religion doesn't violate the Constitution. Nor will the Ninth Circuit (over a dissent) reconsider its decision that prayers at school board meetings violate the Establishment Clause.
  • And in appellate briefing news, defense lawyers have submitted a 15-part, 465-page argument in the First Circuit challenging the conviction and death sentence of "Boston Marathon Bomber" Dzhokhar Tsarnaev. The case, they say, "should not have been tried in Boston."

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28 responses to “Short Circuit: A Roundup of Recent Federal Court Decisions

  1. “And in appellate briefing news, defense lawyers have submitted a 15-part, 465-page argument in the First Circuit challenging the conviction and death sentence of “Boston Marathon Bomber” Dzhokhar Tsarnaev. The case, they say, “should not have been tried in Boston.””

    The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    Article III, Section 2, Paragraph 3.

    1. Except that the 6th Amendment also says that the jury must be impartial. What happens when you can not find an impartial jury in the state where said crime shall have been committed?

      1. Lol. Accidentally signed in with your parody account?

        1. Ha!

          I’d call this more evidence that ARWP is actually Rev. Kirkland, though the post is too mild for even him. So is someone posting under three accounts?

      2. “… by an impartial jury of the State and district wherein the crime shall have been committed…”

        The state has 6.8 million people. Most are eligible for jury duty. Defense has the burden proving that there doesn’t exist 12 that are impartial.

        1. Close, but not quite.

          Defense has the burden of proving that any gathering of 12 jurors contains at least one who is not impartial… so if there are 11 or fewer impartial jurors per jury pool, then defense wins, even if there are 12, or even more, impartial potential jurors within the state.

      3. In theory, an impartial jury, be they ever so pissed about the crime, wants the right person punished for it, and so would be receptive to evidence of Tsarnaev’s innocence, because if he’s innocent, somebody else desperately needs to be taken down.

        When the 6th amendment speaks of impartial juries, it doesn’t mean juries that don’t care about the crime, it means juries which don’t have any particular reason to dislike the defendant. You can’t go looking for the defendant’s mortal enemies, and impanel them as a jury.

        Oh, by the way, you really can’t use the 6th amendment as an excuse to hold the trial someplace other than where the crime took place, since it does say, ” by an impartial jury of the State and district wherein the crime shall have been committed,”

        Despite the modern effort to impanel juries of proverbial “mushrooms”, the 6th amendment actually contemplates that the jurors will arrive already knowing of the crime and the defendant. This is supposed to inform their judgement.

        1. But is Tsarnaev arguing that he didn’t do it? Or that the acts he did didn’t constitute the crime committed or was excused/justified by some outside factor. My guess is the later.

          If he was claiming to be innocent, then maybe that would make sense (though it seems that practice shows otherwise). But if your argument is based on specific elements, nuance, and defenses, the last group you want to see in the jury box is an angry mob.

    2. There are parts of MA that are not Boston, though.

      1. I bet there are no parts of MA not served by Boston TV and newspapers though.

        Change of venue for a case that dominated national news is useless.

  2. Then you proceed as best as you can. There is no such thing as a crime so heinous the perpetrator gets to go free.

    1. There is no such thin as a crime so heinous that you get to declare the suspect guilty without a fair trial by an impartial jury.

      1. Whether or not he committed the bombing, he’s guilty of being a practicing Muslim, which should be a capital offense in and of itself.

        1. But of course, you would have to convict the accused Muslims in the in the state and district in which they practiced Islam. Otherwise you would violate the 6th amendment.

        2. “he’s guilty of being a practicing Muslim”

          How would you know, unless you were inside the mosque when it happened?

      2. He’s already had that. He got convicted.

        1. He (or his lawyers) are disputing that the trial was fair and/or that the jury was impartial. That is the point of the appeal.

          I am skeptical of this claim, but I do think it deserves a decision on the merits from the Circuit Court.

          1. I think the brief raises some reasonable questions about the impartiality of the jury. The claim is that two of them lied about their previous statements concerning the case.

            1. As I said, while I am generally skeptical of the claim, I think it’s enough to warrant consideration on the merits by the courts.

  3. “… motion to file an overlength brief that does not exceed 115,430 words … This brief complies with that order because, excluding the parts of the document exempted by Fed. R. App. P. 32(f): this brief contains 109,234 words …” on p. 500 of the brief.

    So “legal brief” can be long.

    1. The term “brief” has become a misnomer. In British practice, it was common to submit a short written summary of an argument, and then there would be a long oral argument (sometimes over days). Over time, in the U.S., this has become reversed — the extensive argumentation takes places on the papers, and then there is a short oral argument (usually 20 minutes, sometimes up to an hour).

      In a complex case, or one having many issues (like a capital case), then you need more pages just to develop all the arguments.

      In criminal cases, particularly capital ones, there is a tendency to raise every possible argument, even when the position is tenuous. Since someone’s life is at stake, there is a feeling that you have to leave no stone unturned, since you never know what might bother an appellate court. (In civil cases, that is often a bad strategy, IMO.)

  4. A Short Circuit with only one mention of qualified immunity, and it was denied? Gotta be a couple of records here

  5. Unlike most of these, there’s actually a few bright spots! 🙂

    1. Happy new year

  6. Of course I have little sympathy for the Boston bomber, but just the fact that most news outlets referred to the pair as that is telling when it comes to a change of venue. Should the trial have been held in Boston? Probably not. I don’t see how you can pull a fair and impartial jury pool from a metro area that was locked down by police in the manner it was after the bombings (and like no other police action has ever done in the modern era and in of itself was questionably constitutional).

    I read parts of the brief and from what I know of change of venue jurisdiction it sounds to me that if the judges do the dirty work he will get a new trial which is actually a shame because that will delay the final disposition of the case by another few years.

    1. I would imagine that the problem is in the police lockdown which went beyond the traditional ways of publicizing a crime and has more tainting possibilities than just a bunch of TV coverage (any part of the country you could say was saturated by Boston coverage at that time).

      1. I think there is a distinct difference to having lived through such a lockdown, perhaps being the victim of a warrantless search of your house/property, and having friends and family with the same experience made it more real then merely seeing a headline or 30 second sound bite about it on national news.

        If I were Joe “Average Guy” Plumber I might, rightly, think to myself “why would the police go through all this effort to arrest this bombing suspect if he weren’t guilty”.

        I know that is the defense’s job to prove jury taint for a change of venue, but in this case, if I were the judge I would have granted the motion just out of sheer caution and to remove a possible and viable issue on appeal that might make the case linger another few years while a retrial is held (which will most likely produce the same result anyway).

        If the 1st Circuit upholds the verdict, I do think there is a good chance the Supreme Court might grant cert. The facts raise a pretty good “threshold” question for the Court to consider and it might take the opportunity to clarify some points on change of venue (an issue that I don’t think it has directly addressed in many years).

        I just feel bad for the victims who might have to testify again or would just like the case to lurch closer to its final resolution then have it dragged out for another 1-2 years as a reversal would do.

        1. I’d be curious to know what the trial judge did to weed out potentially biased jurors. The judge at least thought it was sufficient, so that must have been some extreme vetting.

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