Today in Supreme Court History: August 22, 1998

8/22/1998: On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. The Supreme Court considered the constitutionality of his prosecution for cross burning in Virginia v. Black (20030.

The Rehnquist Court

Comments

[Dan Schiavetta]

California v. American Stores Co., 492 U.S. 1301 (decided August 22, 1989): O'Connor continues injunction preventing merger of supermarket chains which might violate Clayton Antitrust Act; notes circuit split as to whether "injunction" under statute includes divestiture as a remedy (the Court found that it did, 495 U.S. 271, 1990)

[Armchair Lawyer]

Slight thread hijack.

Biden's DoJ is doing something...interesting.

So, at the end of Trump's time in office, as presidents usually do, they commute and pardon lots of people. In this particular case, Trump decided to commute the sentence of Philip Esformes, removing the jail sentence while keeping the fines and supervision. Now, I'm not going to comment on how bad or good an individual Mr Esformes was. But it's fully within the President's power to commute sentences.

Here's where things get...interesting. In the original trial (circa 2019), Esformes was found guilty on 20 counts, while the jury deadlocked on another 6 counts. The government took that as a win. But now that Trump commuted Esformes sentence, the government prosecutors are angry...and are now seeing to retry Esformes on multiple counts that the jury previously deadlocked on. To attempt to reinstate the jail sentence (or rather get a new jail sentence) to replace the one that Trump commuted.

Are there any previous examples of something like this? A President commuting or pardoning a sentence, and the prosecutors going back after the commutation or pardon to retry the person on other crimes related to the commutation/pardon?

[Armchair Lawyer]

Oh, forgot to place a link for you all.

https://www.cnbc.com/2022/08/12/doj-plans-to-retry-philip-esformes-despite-trump-commuting-sentence-.html

[DaivdBehar]

The department said the scheme spanned two decades and involved an estimated $1.3 billion in losses as the result of fraudulent claims to Medicare and Medicaid, the federal health insurance programs that cover older and low-income Americans, respectively.

If the loss from the crime exceeds the value of a life, around $6 million, the defendant has forfeit his life. That would solve the lawyer churning and worthless rent seeking procedures.

[DaivdBehar]

This bad guy took our $billion. The lawyer hierarchy is taking us for $trillion a year, must be arrested, tried an hour, and executed in the court basement. It is about 25000 traitors.

[SMP0328]

OK, I have to ask: how did you determine a human life is valued at around $6 million?

[DaivdBehar]

It is likely higher now, that number being from 2006. The EPA uses a market value approach. I would prefer just a life salary approach which would make it much lower, like $3 million, appropriately dropping with age. A McDonalds worker and an oil rig worker have the same skill requirements. The oil rig worker gets much higher pay due to the higher risk of death of that job. You can see the method of calculation here. The market calculates that risk and raises the salary.

https://www.epa.gov/environmental-economics/mortality-risk-valuation

That number should also be the upper limit of a tort settlement.

[DaivdBehar]

Although I disagree life is worth that much, the EPA should publish a yearly calculation. It should set the upper limit of loss. If a crime destroyed that much, forfeit your life. You have taken an economic life. If a damaging injury results, that number should be the upper limit of a settlement.

Some lives have negative value. Every year a lawyer breathes, he destroys $10 million in GDP. From a utilitarian viewpoint, accidentally kill lawyer in a crash, you should get a reward. Career criminal George Floyd's estate got $27 million. That is a total denial of reality to enrich the lawyer. We are all far better off with him dead.

The value of life to a loved one is infinite. But that emotional assessment should not be used in the law.

[apedad]

Trump only addressed the specific conviction and sentencing, so I'd say it's legal for prosecutors to go after any other crimes.

https://www.justice.gov/pardon/page/file/1349136/download

[Dan Schiavetta]

Might be double jeopardy or speedy trial problems.

[David Nieporent]

While some have argued that double jeopardy prevents someone from being retried after a jury deadlocks, courts have never bought that.

[Armchair Lawyer]

The speedy trial may be an issue.

Typically there's a series of paperwork that extends the length for the trial to commence. That included retrials, in case of a hung jury.

But if the prosecutors just...let the hung jury charges lapse...because they'd already won the case on all the other charges.

The timeline and paperwork here will be interesting.

https://www.law.cornell.edu/uscode/text/18/3161

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

That's not in doubt in the comment you replied to. The real question was. "Are there any previous examples of something like this?"

It seems unusually slimy to me, as a sour grapes prosecution. Not illegal. Just slimy. Petulant. Childish.

[AmosArch]

Every time I get ready to acknowledge Trump has considerable flaws and maybe should hang up the hat the Dems never fail to remind me that they are much worse. If Trump did anything he made his enemies sink to his level and below. They have been complete tantruming children these past 6 years.

[Krychek_2]

I don't think this case provides you with a good example for that claim. For one thing, decisions to prosecute are made by career prosecutors and not by the administration; it is illegal for the president to interfere in prosecutorial decisions. So your real dispute here is with career prosecutors of unknown political views.

That said, while this prosecution rubs me the wrong way, it's not completely outrageous. This guy involved himself in years of corruption, and only did a year in prison for it. I can see prosecutors deciding that's not nearly enough.

[Krayt]

You were fine up until that last sentence. Sounds like trying to override a pardon in practice.

[Krychek_2]

It wasn't a pardon; it was a commutation, and it wasn't even a full commutation since he still had to serve probation, which is a significant difference. Trump could have issued a full pardon, which would have precluded prosecutors from re-trying the hung jury claims, but chose not to.

[The Margrave of Azilia]

"It wasn't a pardon; it was a commutation"

According to Art. II, Sec. 2 of the Constitution, The President...shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

So it was either a reprieve or a pardon, I suppose.

[Mr. Bumble]

Not a pardon but a commutation. In any event the idea of prosecuting him on the deadlocked charges seems vindictive.

[Armchair Lawyer]

It does....Especially since if he had lost on the deadlocked charges, more than likely any additional sentence would've been commuted.

But by having a hung jury, it leaves that sentence un-able to be commuted

[The Margrave of Azilia]

Easy enough...a pardon to take effect on x date several years in the future...giving enough time to obtain a conviction.

[Mr. Bumble]

"So your real dispute here is with career prosecutors of unknown political views. "

Political views should play no part in decisions to prosecute.

[Bob from Ohio]

"it is illegal for the president to interfere in prosecutorial decisions"

Citation? I don't think that is an accurate statement.

[Krychek_2]

Sorry, I typed too fast; I meant unethical. But see here:

chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5588&context=flr

[Bob from Ohio]

"I meant unethical."

The President has a duty to faithfully execute the laws.

Ordering a stop to an unjust prosecution is consistent with that duty, so not unethical.

[Sarcastr0]

Unjust prosecution is a helluva assumption. You want to walk us through how you came up with that conclusion, or was it just that Trump likes the guy?

[Bob from Ohio]

I'm referring to the current rumored prosecution.

[Mr. Bumble]

Given that the prosecutors did not decide to retry on the deadlocked charge and did not contest the sentencing it appears that to do so now is unjust.

[Rev. Arthur L. Kirkland]

Why unjust? It appears the prosecutors are operating within the rules with respect to a defendant who appears to have earned no sympathy, mercy, or favor.

If he has something to whine about, he can tell it to the jury.

I hope that if convicted he gets at least as much time as was commuted.

[Krychek_2]

As I said earlier, it's far from clear this prosecution is unjust. The guy spent years ripping off Medicare to the tune of millions of dollars, and spent very little jail time. I agree this prosecution looks bad, but unjust it is not.

[Mr. Bumble]

He was prosecuted for his crimes and sentenced. His sentence was commuted as to jail time but not the other conditions of sentencing so to prosecute him now on deadlocked charge does seem to be unjust.

[Armchair Lawyer]

So....there's a few things that are off.

1. A big deal has been made about "norms" and "norms" being violated. And going back and prosecuting someone again, after a commutation of the sentence. That's not normal.

2. The guy spent near 4 years in jail. Three before the trial. Now, we can debate about "good guys" and "bad guys"....but plenty of people who could be considered "bad" (go around setting bombs to try to get "independence" for their piece of the country...shooting at members of Congress) have been commuted. But going back...and after people even those have been set free...because of the politics...it throws the concept of mercy on it's head.

[Rev. Arthur L. Kirkland]

People who were quite fond of the rules when Mitch McConnell was using them to stock the Supreme Court with hard-righters seem to have adopted a different stance with respect to Mr. Esformes.

I doubt I would change my mind about rooting for a long term of incarceration for this jerk even if Michael Mukasey, Ed Meese, and Ken Starr explained why they went to bat for this asshole, but it would be interesting to hear why this guy had such a group pressing a pardon.'

If he gets 25 years on the rebound, I will celebrate with a fine beer.

[Jimmy the Dane]

The Dems have their own dugout full of crazies and criminals. AOC is not much different than her almost literal carbon copy on the other side of the aisle.

The main difference is that Dem crimes get covered up, either actively or through media negligence, and that Dem stupidity never gets the bullhorn.

Also, see how quickly this warrant is becoming a non-issue in the press? I think that is telling. They will just drop it like a hot potato and the story about the guy who almost assassinated a Supreme Court Justice. "To the memory hole!"

[Krychek_2]

OK, I'll bite. What specifically has AOC done that is criminal?

[DaivdBehar]

Dude took your health care money. He needs to be killed.

[BravoCharlieDelta]

The Federals in the Deep State (our real masters) are punishing everyone in Trump's orbit.

That's really what's going on. Donors get investigated, employees to raided, small donors get audited, supporters get thrown in gulags or entraped by evil subhuman FBI devils.

They are going to start murdering people soon.

[Krychek_2]

But look on the bright side; once the Apocalypse hits none of this will matter.

[AmosArch]

I don't think that was the question.

[apedad]

Ooops!

AL, I don't know if there are there any previous examples of something like this.

[Krychek_2]

I found an article about it on google that said there aren't.

[John F. Carr]

I believe the technical term for this is "dick move".

If I were the trial judge I would probably allow the prosecution but decline to impose prison time.

[Mr. Bumble]

Which overlooks the fact that the process can be punishment.

[Jimmy the Dane]

If you want proof that "process in the punishment" that is exactly what the banana republic DOJ is doing to the tourists who got rounded up after the Capitol Hill event. Have fun sitting in solitary confinement, getting beat by the prison guards on a regular basis, while waiting out your "due process" chump....

[Mr. Bumble]

For one bright spot in the Jan.6 show trials see this story about Natasha Taylor-Smith, a DC public defender who takes the law seriously. Embedded links are also worth a look.
https://www.americanthinker.com/articles/2022/08/dc_lawyer_of_the_year_natasha_taylorsmith.html

[Rev. Arthur L. Kirkland]

It is gratifying to see that lawyer advocate on behalf of her client. She seems to have played a weak hand well (unless she encouraged her client to reject a guilty plea and seek a bench trial, at which her attempts to depict her client as an innocent bystander seem more likely to fail because a juror would seem more likely to be persuaded to value emotion and sleight-of-hand over evidence; if she did that, she provided poor advice).

The evidence indicates Kyle Fitzsimons is likely to be convicted, however, and deservedly so.

Fizsimons informed the office of a member of Congress that he 'wanted to start a war.' He told her he was 'coming for her.' He went to the Capitol, grabbed a weapon, engaged with police officers . . . and got his ass kicked. He seems destined to spend even more time in a cell.

This conservative dumbass also called that office a few years ago and demanded the telephone number of the Chinese president, intending to 'go to war with China.'

Perhaps Fitzsimons can sift his delusions and attempt to become an adequate person. His next contribution to our society, most likely, will occur on the day he is replaced.

[Jimmy the Dane]

So let me get this right Fitzsimons is to be blamed for the assaults? Isn't that blaming the victim?

Guess he needed to be a different identity to get people like you to care about government abuses or power....

[Rev. Arthur L. Kirkland]

Fitzsimons has been charged for assaults he committed. With the weapon he held.

I expect him to be convicted.

That this asshole got his ass kicked -- in part by the law enforcement authorities, I suspect, but also by his fellow insurrectionists -- is just the feel-good part of the story.

[Mr. Bumble]

"Fitzsimons has been charged for assaults he committed. With the weapon he held."

Doubt very much that you bothered to read the linked article or any of the links within it.

[Rev. Arthur L. Kirkland]

I read the article.

I also read a few others.

I expect this asshole to be convicted and to deserve it, despite the strong efforts of his lawyer. I hope he gets a long stretch in prison, if only to keep him off the streets, away from telephones, and off limits to delusional groups of insurrectionists for a while. His son probably would benefit from some time away from this jackass, too.

[Mr. Bumble]

So you support perjury in order to convict someone you disagree with?

[Rev. Arthur L. Kirkland]

What perjury?

If you are relying on the likes of Gateway Pundit, Clarice Feldman, and Julie Kelly to reach a conclusion of perjury you are destined to be surprised and disappointed by events in the reality-based world.

This blog deteriorates daily.

Which is great!

[Mr. Bumble]

"What perjury?"

Did he change his story on the stand when shown video if the incident?

[Rev. Arthur L. Kirkland]

I have not seen a persuasive argument concerning perjury. Are you referring to that blithering asshole muttering outside the courthouse door?

[bernard11]

Well, she's trying.

I like this part:

As he made his way up to the Capitol, you will hear what Mr. Fitzsimons heard, and you will see what Mr. Fitzsimons saw. Eventually he did find himself as part of the fray.

Hmm. Passive voice. Wonder how that happened. Mistakes were made, I guess.

She seems to talk about everything except what Fitzsimons did.

[Rev. Arthur L. Kirkland]

Her job is to try to advance a persuasive argument for this un-American loser.

I sense he should have taken a deal. Instead, he is playing a longshot and extending his tantrum. Perhaps it will pay off but more likely he is arranging a longer term of incarceration.

I wish him nothing but bad luck either way.

[bernard11]

Her job is to try to advance a persuasive argument for this un-American loser.

Sure. And she seems to be doing a decent job on his behalf. Still, I agree the effort is likely to be futile, as it should be.

[Sarcastr0]

the tourists
Capitol Hill event

solitary confinement
getting beat by the prison guards on a regular basis

I'm not sure what you get out of posting clownish falsities like this - no one not already deep on the right is going to be convinced by this melodrama.

[Mr. Bumble]

Pretty obvious that you did not read the story.

[Jimmy the Dane]

Sure this never happened.

https://www.politico.com/news/2021/04/06/capitol-riot-defendant-beating-guards-479413

The rest is just not using the preferred nomenclature invented by those who are writing the narrative.

[Sarcastr0]

Yes, and allegation from over a year ago and nary a peep since does seem suspect!

[Sarcastr0]

I also note you said four ridiculous things and then only replied about one.

[Jimmy the Dane]

I also addressed the others. I know you don't like people using the narrative language the media created to forward the cause, but I refuse to do so.

[Sarcastr0]

the narrative language the media created to forward the cause

I don't know what you even mean by this.

You're just a liar on the Internet these days. And a bad one at that, always having to pivot to yelling that 'yeah well liberals suck!' because your stories fall apart.
Yet you seem to find fulfilment in it. Seems a sad commentary on the rest of your life, but I suppose there is something to that in an Albert Camus' The Myth of Sisyphus kind of way.

[Jimmy the Dane]

"insurrection" - media coined term that has no bearing on the actual activities of that day. Also, pretty fresh to use seeing in 2020 the media couldn't figure out how to spell "r-i-o-t" in any publication.

"insurrectionist" - same as above. Even dumber though since just standing around at a protest does not make one even remotely fit into the dictionary definition.

"rioter" - this one actually describes the real conduct of a FEW people, but is the blanket term used for anyone who was present that day many of which did absolutely nothing but be in the area.

Need more examples?

[Sarcastr0]

Ipse dixit semantics.

LOL, you've got nothing; are too lazy to dig up anything new, and are left with this tired 'I think words don't mean what you say, therefore it's okay if I lie!'

[Jimmy the Dane]

Well no, it is a simple case of the words don't mean what they say AND you have yet to prove me wrong about narrative creation here. Telling.

[Jimmy the Dane]

Funny. We are supposed to believe every rape and obviously fake hate crime, but some guy alleges he is being routinely beat in a third world type cell, and it is all shoulder shrugs.

[Sarcastr0]

Pivoting to the left because your source is super weak.

You are really the laziest.

[Jimmy the Dane]

Just pointing out there are two classes of people - those who are victims of everything and must be believed despite facts and logic AND those who deserve governmental abuse which is fun to laugh at.

It is fine to be a partisan jerk, but don't pretend not to be....

[Sarcastr0]

You are working very hard to make you and us fellow white hetero males into some kind of victim. Misunderstanding what believe all women means. Thinking it's been widely applied. Comparing it to a random defendant alleging something that was investigated and then somehow dropped.

Jimmy, posting about your peoples' oppression freely on the Internet should show you how despite your fondest wishes, you're still fine and grumpily living in a country that is both great and free.

[Jimmy the Dane]

The truth is the left only cares about "due process" when it adheres to their political agenda.

Beating prisoners is cool, because it fits into their political agenda.

Accusations are mere accusations, because they do not fit into the political agenda.

See how this works? I do and most people around you also do.

[Sarcastr0]

This is due process. Nothing is out of whack. The right cries persecution every time.

[Krychek_2]

As well as the fact that the sentence might get reversed on appeal if you couldn't articulate a good reason to deviate from the guidelines.

[Life of Brian]

"Constructive double jeopardy" sounds like not the worst reason. And a petulant, vindictive appeal following a petulant, vindictive prosecution seems like a bad enough look that cooler heads might finally prevail.

[John F. Carr]

Under federal sentencing guidelines being convicted on 26 counts is not (26/20) as bad as being convicted on 20 counts. Often the sentence is the same. For money crimes as an approximation you take the single worst offense as a starting point then add up the total dollar amount of all offenses for a modifier.

[Rev. Arthur L. Kirkland]

Sounds like scrupulous compliance with the rules and advancement of the public interest to me. Justice without fear or favor sounds right in this case.

[Estragon]

Trump “unconditionally” pardoned 15 other people the same day this scumbag got his commutation. I wonder why… not enough orange ass kissing? He still had to pay restitution! Ouch!

[The Margrave of Azilia]

What are the speedy-trial implications?

[Jimmy the Dane]

Finding the decision of the Virginia Supreme Court on remand without hoping on Westlaw was surprisingly difficult. For those wondering, the statute at question got "saved" by striking down the unconstitutional portion and convictions affirmed.

[Carl_N_Brown]

"... Virginia v. Black (20030."

I have read complaints about courts moving at glacial speeds, but, goldern it, 20030? Wouldn't that be in the next Ice Age?

[Jimmy the Dane]

Or death by hurricane....or wildfires....or earthquakes (somehow linked manmade global warming.....or earth will be 1 billion degrees....or who the hell knows.....not anyone who calls themselves a "climate scientist" is for sure....

[bernard11]

Well, Josh.

How about telling us how it came out.

[Carl_N_Brown]

20030? The last 0 was supposed to be a ). Typo. Nevermind

Virginia v. Black, 538 U.S. 343 (2003)
A six justice Supreme Court majority:
_ upheld a Virginia statute making it illegal to burn a cross in public with the intent to intimidate others.
BUT a seven justice majority:
_ invalidated a jury instruction that the jury should infer intent to intimidate from the public burning of a cross.

The case involved two cross burnings:
_ one at a Ku Klux Klan rally and
_ another in front of an African American’s home.

Klan leader Barry Black (odd name for a white supremacist) insisted on a jury trial.
The Virginia judge instructed the jury that the public burning of a cross was sufficient to infer the intent to intimidate. Black was then convicted. On appeal the Virginia State Supreme Court held the entire statute unconstitutional.

The case then went to the U.S. Supreme Court.

Speaking for a six justice majority, Justice Sandra Day O’Connor concluded that some but not all cross burnings were meant to intimidatory. She held that even though cross burning was at times expressive, Virginia could ban cross burning that represented a “true threat” unprotected under the Watts v. U.S. (1969) decision.

Justice O’Connor also held that cross burning fell into an exception under R.A.V. v. St. Paul (1992) that allowed states to ban extreme forms of proscribable speech without banning less severe forms.

Speaking for a seven justice majority, Justice O’Connor held that the provision allowing the jury to infer intent to intimidate from the public burning of a cross was unconstitutional, because as a historical matter, not all cross burnings were undertaken with intent to intimidate. Some were “a statement of ideology” or “group solidarity”.

[Sarcastr0]

Pro se, now?

[David Nieporent]

No. Error.

I mean, technically no. Practically, yes.

[DaivdBehar]

Great comment, bruh. See you next Tuesday.

[DaivdBehar]

Queenie. Great comment, bruh. Can you say it in Ebonics?

[Mr. Bumble]

More than a year later, on Dec. 22, 2020, Trump commuted Esformes’ prison term.

But Trump left intact the portion of the sentence that called for Esformes to serve three years of supervised release and pay $5.5 million in restitution for his crimes. Esformes also was left on the hook for an order to pay a $38 million forfeiture judgment.

Doesn't sound as if he got a free ride.

[Jimmy the Dane]

Even though it would have been a complete banana republic move, Trump should have issued a blanket pardon to any political or White House appointment for any type of "process" crime from January 20th to the beginning of time.

I also never thought Holder would look the a decent AG....well.....

[SRG]

It's conceivable that Trump did consider mass pardons until one of his lawyers could then have pointed out that someone pardoned can be compelled to testify against Trump and cannot plead the 5th - and did Trump really want that?