Short Circuit: A Roundup of Recent Federal Court Decisions

Symbolic disarmament, major violators, and the hard part of judging.

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

Friends, federal officials are in the main completely immune from claims for damages for violating the Constitution. But the Supreme Court has been clear that there is liability for "garden variety" search-and-seizure claims. So, over at Jurist, IJers Anya Bidwell and Nick Sibilla explain why the Court should grant review to a pair of cases and tell lower courts to stop tossing search-and-seizure cases.

• The late artist Robert Indiana made a mint off of his painting of the word "LOVE," with the letters arranged two by two and the O set at an angle. In this contractual dispute with the publisher of the similarly styled "HOPE," was the trial court correct when it held that an arbitrator must determine the threshold issue of arbitrability? First Circuit: NOPE.
• Merchants that do not accept American Express sue American Express for antitrust violations. The allegation? Amex prohibits participating merchants from "steering" customers to other cards that charge lower processing fees. The result is that Visa, MasterCard, and Discover face less incentive to compete on merchant fees, meaning higher fees even for merchants that don't take Amex. Second Circuit: If there's a claim here, folks who don't take Amex are too remotely connected to enforce it.
• Allegation: Man spends close to 25 years on death row after Philadelphia police fabricate evidence, coerce witnesses, withhold exculpatory evidence, knowingly present false testimony. Third Circuit: No qualified immunity. The right not to be framed is so obvious that detectives were on notice even without a factually analogous case. (Whether his suit is barred because he pled no contest to lesser, still serious charges in 2017 in order to secure his release is not a question for interlocutory appeal.) (Click here for some longform journalism.)
• Maryland man obsessed with Bill Cosby rape allegations manages to have fabricated document (imputing tax fraud to one of Cosby's accusers) added to docket in civil case against Cosby. For this, he is convicted of two counts of making false statements and sentenced to 32 months in prison. Third Circuit: That's a slimy thing to do and it wasted a lot of people's time, but it's not actually a crime unless it was "material," which the gov't failed to prove. Set him free.
• In which Judge Elrod of the Fifth Circuit has some fun in the footnotes: "For those who prefer acronymic efficiency, however, our holding is roughly as follows: RISD did not violate IDEA with respect to K.S. because, as the SEHOs correctly found at the DPHs: (1) the ARDC's IEPs for K.S., which included PLAAFP statements, TEKS goals . . . ."
• Does it violate the Constitution to put someone in a freezing cell for about four hours without shoes, a jacket, or a blanket? District court: Sure could. No qualified immunity. Sixth Circuit: Ah, but the defendant here is a federal officer. And you can't sue a federal officer for violating the Constitution in this way. Dissent: The gov't's lawyers repeatedly declined to make that argument. We shouldn't make it for them. [For more on federal officer immunity, please do consider giving a listen to this lovingly crafted podcast.]
• After confidential informant buys $10 of marijuana in front of Detroit woman's home, officers with the "Major Violators Unit" ram open the woman's front door just as she is reaching it herself, causing injuries to her face that require corrective surgery. Sixth Circuit: Her claim that officers didn't knock and announce should not have been dismissed. However, the city's admission at a press conference (after the district court made its ruling) that officers in the Major Violators Unit frequently lied on search warrant affidavits doesn't mean she can reopen discovery—earlier news reports prior to the ruling indicated substantially the same thing.
• In 1994, man is convicted of sexually abusing his nieces on the basis of testimony from the victims and from a pediatrician who had examined the girls. Since then, evolutions in forensic medical science have displaced the pediatrician's methods and four of the nieces have recanted. Eighth Circuit: That's not enough to overturn a conviction.
• Indonesian Christians apply for asylum. The Board of Immigration Appeals denies the request, Ninth Circuit affirms. They try again, claiming things have gotten worse back home. BIA denies again, Ninth Circuit affirms again. Is the third time a charm? BIA: No. Ninth Circuit: Well, maybe. BIA didn't assess whether their status as evangelical Christians who spread the Gospel might lead to their persecution. Dissent: "following the law and not your heart . . . is the hard part of judging."
• When speaking on public property, one's level of First Amendment protection depends on the type of "forum" one is in, ranging from "non-public forums" with the least protection to "traditional public forums" with the most. Here, the Tenth Circuit does a 110-page deep dive on the many ways Albuquerque failed to satisfy its burden when it restricted expressive activities on sidewalks and medians—both traditional public forums.
• In early 2019, the "United Constitutional Patriots" began camping along the U.S.-Mexico border, seeking to capture people illegally crossing the border. They wore camo fatigues, carried firearms, said "border patrol" as they approached people, and then called the actual border patrol to take people into custody. One member of the group is convicted of impersonating a gov't employee. Tenth Circuit: Conviction affirmed, but the conditions of supervised release (including a ban on incurring new credit charges and allowing gov't to search his property and finances) are a bit much.
• Does face-elbowing a non-resisting, secured arrestee violate clearly established Fourth Amendment law? Eleventh Circuit: Quite maybe-ly. To trial these claims against an officer and the city of Miami Beach must go.
• Members of the Plowshares movement, a Catholic protest and activism group opposed to nuclear weapons, break into the Naval Submarine Base Kings Bay in St. Marys, Ga., where they engage in "symbolic disarmament" by defacing facilities with spray paint and human blood. When arrested and charged with a bevy of federal crimes, they raise the Religious Freedom Restoration Act in their defense. Eleventh Circuit: Arresting trespassers and vandals is, indeed, the least restrictive means of keeping trespassers and vandals out of secure military facilities.

Comments

[Cal Cetín]

"In 1994, man is convicted of sexually abusing his nieces on the basis of testimony from the victims and from a pediatrician who had examined the girls. Since then, evolutions in forensic medical science have displaced the pediatrician's methods and four of the nieces have recanted. Eighth Circuit: That's not enough to overturn a conviction."

So it seems the court thought the recantations were due to "family pressure."

It was wrapped up in discussions of procedural points and standards of evidence, but I would imagine that if they thought the recantations were genuine they'd find a way to overturn the conviction.

There ought to be a way for a jury to examine the original accusation and the later recantation and decide if the recantation is false.

[Cal Cetín]

Assume the following: during the *trial itself* a witness testifies and then recants - "OK, I admit it, I lied." Then the prosecutor tries without success to get the witness to admit she lied due to family pressure.

Then it would presumably be up to the jury to decide what to believe, wouldn't it?

[MatthewSlyfield]

Actually probably not. If the whole thing happened on the stand at trial as you describe, either the witness lied in the first instance or lied in the recantation. Either way the witness committed perjury.

I don't think the judge would allow the jury to go in to deliberations with perjured testimony. Likely their would be an instruction from the judge to ignore all of that witnesses testimony.

[LawTalkingGuy]

I’m not so sure about that. The jury is the sole judge of witness credibility. The instructions (at least in my state) say they can believe all of a witnesses’s testimony, some of the witnesses’s testimony, or none of a witnesses’s testimony. I think it’s up to them to decide which part is the truth if they change their story half way through.

[MatthewSlyfield]

My understanding is that it's different when you have a known case of perjury. A recantation on the stand of earlier testimony is effectively a confession of perjury, the only question is was the original testimony or the recantation the perjury.

[KenveeB]

Witnesses say contradictory things in testimony all the time. The solution is not "well, let's throw it all out, then." It's to let the jury decide which to believe, because that's their job. Then the person can be charged with perjury later if warranted.

[David Nieporent]

There ought to be a way for a jury to examine the original accusation and the later recantation and decide if the recantation is false.

No, you can't keep relitigating cases over and over based on nothing more than issues of credibility.

[Cal Cetín]

"issues of credibility"

...there are issues of credibility in the same sense that the Pacific Ocean is damp.

The case is simply no longer the same case the jury heard.

They heard a case without any recanting witnesses. Now it's a case with *four* recanting witnesses.

Maybe the prosecution could still win this one by showing the recanting witnesses were telling the truth then but are lying now. It could be the case based on the evidence summary in some comments.

By way of comparison, suppose four witnesses had recanted during the course of the trial itself, followed by prosecution evidence that they were telling the truth the first time. Maybe the jury would still have convicted. I have no idea.

What we have now is a judge speculating on what a jury *would* have done if the evidence were different in quite significant respects. This speculation represents trial by judge, not trial by jury.

It would be one thing if the defense failed to bring out the evidence at the original trial because of a strategic decision - there shouldn't be any do-overs in that situation. But as I understand it, this new evidence - the recantation - took place *after* the trial.

[Cal Cetín]

Just to be clear - maybe the statute requires the result in this case. But if so, the statute needs a bit of revision, wouldn't you think?

[KenveeB]

No. Because then life would become hell for every crime victim. After every single trial, you just have to hound the witnesses nonstop until one of them will recant. Or someone is willing to say they recanted. Then we get a whole new trial on is the recantation real or not. And the process never, ever ends. There's an interest in finality for a reason. You need something more than hounding a witness until they recant to get a new trial, and I think that's exactly as it should be.

[LawTalkingGuy]

“ I would imagine that if they thought the recantations were genuine they'd find a way to overturn the conviction.”

That is very optimistic of you.

[Kazinski]

Especially since it seems like there are non-recanting nieces:

"and four of the nieces have recanted."

That seems to me to take his case from borderline to fully sunk.

[Krychek_2]

I think it's a little more complicated than that. There were five nieces, four have recanted, and I couldn't find anything on google about the fifth niece. She may be deceased, or she may have disappeared, or she may simply have been so injured by the proceedings that at this point she just wants nothing more to do with the case. I would not draw any inferences from the mere fact that only four of the five have recanted.

And the recanting nieces offered a perfectly plausible reason for why they accused the uncle: They had been removed from the home and placed in abusive foster homes for more than a year. They were told that they could go home (a promise later broken) to be with their families if they testified against the defendants. Their families had been told they would never see the children again if the children didn't fully cooperate with the prosecution. It's probably a rare child who wouldn't say whatever the prosecution wanted to hear on those facts.

None of which conclusively proves innocence of course. But I think there should have been a full-on evidentiary hearing to explore these issues. And, if the courts won't act, this is probably a case where presidential clemency would be appropriate, though I wouldn't hold my breath for that either.

[MatthewSlyfield]

"this is probably a case where presidential clemency would be appropriate"

Presidential clemency is only appropriate as to federal charges.

Okay, I've read the appeals court decision and it certainly looks like the case was federal, but I'm not getting how this was a federal case in the first instance.

[Krychek_2]

They were convicted in federal court on federal charges. Almost anything that happens on an Indian reservation is federal.

[Noscitur a sociis]

But I think there should have been a full-on evidentiary hearing to explore these issues.

There was a "full-on evidentiary hearing" 20 years ago. Here's what happened:

At the hearing, the four victims [Footnote: The fifth victim was 20 months old at the time of the abuse and did not testify at trial or at the evidentiary hearing.] denied that their uncles had sexually abused them, and the male witness denied seeing any abuse of his sisters and cousins. The children said they had lied during pretrial interviews by a BIA investigator, an FBI agent, and the prosecutor, and later at trial, because they believed that lying would enable them to return home. The defense also presented two witnesses who testified that the children had recanted beginning in 1996, and submitted videotapes of 1996 and 1999 interviews by a defense expert, Dr. Ralph Underwager, during which the children recanted.
In response, the government called nine witnesses who testified that the children had never denied that their uncles abused them. Foster parents Donna Jordan and Julie Brown testified that the children never recanted while in their care after the trial. Dr. Michaeleen Muhovich, R.R.'s counselor from 1994 to 1997, testified that R.R. described in detail her uncles' abuse of R.R. and her cousins, and never recanted those statements. Mary Weber, L.R.'s and T.R.'s therapist at the Children's Home Society, testified that both girls talked about being hurt by their uncles and never recanted those statements. Weber also said that the notes of J.R.'s therapist, now deceased, reflect that J.R. admitted recanting to another counselor because she did not want to talk about it and reaffirmed that the abuse actually occurred. Cheryl Fridel, the family services counselor at a school in Wagner the children attended, testified that J.R. asked for help in 1999 because she was afraid her uncles were coming home for Christmas. J.R. said she was afraid of her uncles, and described how Uncle Desmond would crawl into her bed and touch her private parts. Fridel had no prior knowledge of the case at the time J.R. asked for help. On a separate occasion, J.R. admitted to Fridel that R.R. had told J.R. and L.R. to lie to a social worker.
In its Memorandum Opinion and Order denying a new trial, the district court reviewed the hearing testimony in detail and found that the children's recantations were not credible. The children did not recant until they resumed having contacts with their mothers and grandmother, who did not believe the abuse occurred and told the children they missed the imprisoned men. In these circumstances, the court found, “the combination of the influence from the unsupportive families, contact with the defendants by telephone and letters, being made aware of the lengthy prison sentences given to their uncles and having no outside support [after returning to their homes], pressured the children to recant their truthful testimony about being sexually abused by their uncles.” The court found the evidence from Dr. Underwager's interviews not credible. In 1996, D.R.'s mother accompanied T.R. and D.R to the interview with Dr. Underwager. The 1999 interviews took place after the children were returned to their homes. Instead of recanting, R.R. told Dr. Underwager that Uncle Jess did things to her that were not right. The district court found that Dr. Underwager used suggestive questioning and told the children he was there to help get their uncles out of prison.

United Statss v. Rouse 410 F.3d 1005, 1007-1008 (8th Cir. 2005).

The only injustice here is that these men have found a way to continue to vicariously abuse their victims from prison.

[Cal Cetín]

Fine, now share it with the jury and I'm sure they'd convict the guy all over again, with the benefit of all the evidence you've described.

[SomeGuy 2]

"Members of the Plowshares movement, a Catholic protest and activism group opposed to nuclear weapons, break into the Naval Submarine Base Kings Bay in St. Marys, Ga., where they engage in "symbolic disarmament" by defacing facilities with spray paint and human blood."

This is seriously burying the lede. We should all be alarmed that vandals penetrated this deep into a nuclear facility-- bullets should have been delivered to their brainpans long before they had the opportunity to deploy spraypaint. If this is what vandals can do, then imagine what the enemy can do. The base needs to up the security level and treat any future threats with lethal countermeasures.

[MatthewSlyfield]

1. The appellate case is about the charges against the defendants, not the security issues at the base, so those security issues are absolutely not the lede.

2. We don't know that they penetrated that deep into a nuclear facility.

These actions, however, were far more than symbolic; in fact, they were incredibly destructive—spray painting numerous anti-nuclear and religious messages on the sidewalk and on monuments; pouring donated blood from the movement’s members on the door of a building and the sidewalk; hammering on a decommissioned missile display; placing crime scene tape around the base; removing signage and part of a monument; and cutting through wiring and fencing in order to enter a highly secured area and display banners protesting nuclear weapons.

There is no indication that they penetrated deeply enough to get anywhere near conventional, much less nuclear weapons.

[Ben of Houston]

Yes, it looks like they broke into the front gate and smashed up the area around the main entrance, but didn't actually enter any buildings. All of these things in the quote are things that would be at the front of a base, normally accessible to visitors.

[jimc5499]

Just keelhaul them at depth.

[jimc5499]

"bullets should have been delivered to their brainpans"
They didn't get far enough. Security on Military bases these days is primarily civilian contractors. Only the "specials weapons" areas would be guarded by Marines.

[John F. Carr]

https://xkcd.com/932/

What some people hear: Protesters almost got their hands on nuclear weapons.
What other people hear: Protesters vandalized a monument and government buildings.

[jimc5499]

"Members of the Plowshares movement, a Catholic protest"
Here's the problem. They're a Catholic group. Everybody knows that only Antifa and BLM own the franchise for trespassing and vandalism.