Today in Supreme Court History: March 18, 2008

3/18/2008: District of Columbia v. Heller argued.

Comments

[Dan Schiavetta]

Gideon v. Wainwright, 372 U.S. 335 (decided March 18, 1963): "If you can't afford a lawyer, one will be appointed for you." (In junior high I saw a re-enactment of this case with the actual Mr. Gideon playing himself. One must admit, he was a gutsy guy. I recommend "Gideon's Trumpet", by Anthony Lewis)

The Antelope, 23 U.S. 66 (decided March 18, 1825): Marshall: slave trade is o.k. except when specifically prohibited; here, allows return of Spanish slaves but not those captured on American vessel (which were returned to Africa later)

The Plattsburgh, 23 U.S. 133 (decided March 18, 1825): another case forfeiting a vessel for violation of slave trade restrictions even though not outfitted for journey yet

Tharpe v. Ford, 139 S.Ct. 911 (decided March 18, 2019): Court denies cert of attempted opening of 1991 murder verdict based on racist views of one juror; Sotomayor agrees with denial, which is based on procedural grounds, but laments the procedural roadblocks to hearing such an obviously meritorious claim (somehow this juror candidly discussed his views with lawyers for both sides, and even signed an affidavit -- he repeats what Chris Rock said about "black folks v. niggers" but goes way beyond that -- it has to be read to be believed) (Tharpe died of natural causes on death row in January 2020)

Southeastern Productions v. Conrad, 420 U.S. 546 (decided March 18, 1975): "Hair", the "tribal love-rock musical" (as it was described in my time) could not be banned without procedural safeguards (no unbridled discretion by censor, full and fair hearing, and opportunity for prompt judicial review) (to me the highlights were "Frank Mills" and "Good Morning Starshine", showing an unashamed, childlike delight in things, unafraid of mockery -- it takes courage to be like that, /no sarc)

Fay v. Noia, 372 U.S. 391 (decided March 18, 1963): habeas petition can be heard despite failure to abide by state rule requiring exhaustion of state remedies (limited by Wainwright v. Sykes, 1977, which held that failure to abide by state rule that objection was to be made at trial or be waived was independent state ground for denial which precludes federal court intervention)

Young v. Harper, 520 U.S. 143 (decided March 18, 1997): prisoner released on "pre-parole" program (designed to reduce overcrowding in prison) was entitled to due process protections before revoked and sent back to prison (opinion by Thomas on this "narrow question")

Dalton v. Little Rock Family Planning Services, 516 U.S. 474 (decided March 18, 1996): upholding state statute prohibiting public funding of abortions "except to save the mother's life" but not in perpetuity as the statute states (bound by federal Hyde Amendment, which theoretically might change in the future -- not that it ever did)

United States v. Gagnon, 470 U.S. 522 (decided March 18, 1985): Defendant was observed drawing sketches of the jury during trial. Ok to have in-camera hearing with one juror who was concerned about this, attended by other counsel, and artistic defendant waived his right to be present by not invoking that right (did he even know he had that right?). OT, but I giggled out of my theater seat when my girlfriend and I saw this juror-with-a-pen scene in 1990, https://www.youtube.com/watch?v=B8pWEUZKIds -- she was looking around and hoping no one would see me, I suppose like Ernest himself, who turns out to be a dead ringer for the real killer!) (or when he goes on a date with a fellow bank employee after being "magnetized" by the floor polisher, https://youtu.be/fp0Ec-yZ0EU)

Burns v. Alcala, 420 U.S. 575 (decided March 18, 1975): AFDC not required to provide benefits to unborn children; "dependent child" under statute obviously meant an individual already born (overruled by Dobbs?)

[SRG]

Sotomayor’s statement on Thorpe:
https://casetext.com/case/tharpe-v-ford: “To this day, Tharpe’s racial-bias claim has never been adjudicated on its merits.”

[The Margrave of Azilia]

Poor Gideon, Lewis quotes his mother’s disappointment at his life…but he was a living illustration of the need for counsel in criminal trials.

Walter Mondale coodinated a bunch of states *asking* the Supreme Court to impose a counsel requirement. Of course, states usually intervene in these cases, if at all, to ask that the Court recognize more autonomy for them.

The image of a guy without a lawyer, writing to the highest court to plead for justice, was quite compelling in the film they showed us in school. As it happened, the Court at the time had instructions to flag right-to-counsel petitions, of which there were many, and Gideon's was selected. Good cases make good law, I guess.

[SRG]

Thomas is not in favour of Gideon. See his dissent here in Garza v Idaho:

https://supreme.justia.com/cases/federal/us/586/17-1026/

Thomas is pathologically opposed to the rights of criminal defendants, it seems.

[The Margrave of Azilia]

I’m not going to read Justice Thomas’s mind and decide he’s more evil than those justices who believe in racial discrimination and killing the unborn. I simply happen to disagree with him.

The Sixth Amendment lists a series of rights for criminal defendants, of which the right to counsel is one. If the defendant has to pay for the right to counsel, logically he’d have to pay for the other rights: a fee for a speedy trial, a fee for the trial to be public, an extra sum for an impartial jury, a fee for knowing the charges, and a fee for confronting prosecution witnesses and summoning defense witnesses.

If he was too poor, he’d be locked up without trial and without knowing the charges or who the witnesses were.

Of course, the plea-bargain system approaches this ideal (for prosecutors) situation.

[Dan Schiavetta]

Good point -- I never thought of it that way.

[SRG]

The Sixth Amendment lists a series of rights for criminal defendants...

Excellent. This is when this forum lives up to its promise.

[David Nieporent]

While I agree with Gideon, your analogy fails. In the other examples you cite, the government is imposing the fees. In the right-to-counsel context, a private attorney is imposing the fees.

[The Margrave of Azilia]

The government pays for a jury, it can pay for a lawyer, they’re both essential parts of a court unless waived:

“If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jurisdiction at the beginning of trial may be lost ‘in the course of the proceedings’ due to failure to complete the court — as the Sixth Amendment requires — by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed.”

https://supreme.justia.com/cases/federal/us/304/458/#468

For once the Court used a literal reading of the Constitution: regardless of the defendant's ability to pay, the right to counsel is as essential as other 6A rights (unless waived). You don’t waive your rights by not having enough money, and this applies to all 6A rights.

[Commenter_XY]

Holy crap...I went back to read the text of 6A:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

It is a lengthy list of rights. This was an informative exchange.

[David Nieporent]

For once the Court used a literal reading of the Constitution: regardless of the defendant’s ability to pay, the right to counsel is as essential as other 6A rights (unless waived). You don’t waive your rights by not having enough money, and this applies to all 6A rights.

You have the right to keep and bear arms. Does that mean you have a right to be provided with weapons, or just that if you have them, the government can't take them from you? If you lack the funds to purchase a firearm, does that mean you have "waived" your right to the firearm?

[The Margrave of Azilia]

Don’t forget the militia preamble. Yes, under the original constitutional scheme, if you’re in the militia, if you didn’t get arms they would be provided to you, in your capacity as a member of a well-regulated militia.

I don’t see how the preamble to the 2A cancels out substantive part. There’s supposed to be a well-regulated militia *and* a right to bear arms to back that up.

Of course, you could cite the 1A, “the freedom of the press belongs to those who own one,” permit fees for demonstrations, and the like.

One difference is that criminal proceedings, unlike speaking and publishing, are initiated by the government. For the government, on its own initiative, to have criminal proceedings against you but not allow you your rights, seems a bit much. Especially since they’re paying for a prosecutor, a courtroom, a judge, etc. – they can afford to pay for a defense lawyer “to complete the court.”

[Mr. Bumble]

Re Heller. Were all of the Circuits ever copied in?

[SRG]

Today is also the anniversary of the death of Leon Bazile, the original judge in Loving v Virginia.

I seldom regret the deaths of the loathsome and vile, but in this case I do, because he died before he could see his decision overturned, and it would have been entirely appropriate had he died of an apoplectic fit on hearing the SCOTUS decision.

This staggering sentence in his ruling has become famous: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents … The fact that he separated the races shows that he did not intend for the races to mix.”

[The Margrave of Azilia]

"Bazile was involved in virtually every legal race issue during those years—the racial integrity and segregation laws of the 1920s, proposals for repatriation of African Americans in the 1930s, the public school equalization cases in the 1940s, defense of Virginia’s Massive Resistance in the 1950s, prosecution of the Danville civil rights demonstrators in 1963, and, finally, his last ruling in the Loving case in 1965. He retired in 1965 and died two years later, just before the U.S. Supreme Court overturned his Loving opinion."

https://encyclopediavirginia.org/entries/bazile-leon-m-1890-1967/

[Dan Schiavetta]

Yes, vile, but not necessarily hateful, and the dominant sentiment in the South, and for some time afterward.

[JasonT20]

Vile and stupid. "God" did not put white people on the American continents, so if it was God's will to separate the races, then white people should have stayed in Europe.

[Ben_]

That’s exactly as stupid or as smart as the statement you’re complaining about. Congrats.

You didn’t get a memo from God.

[JasonT20]

That’s exactly as stupid or as smart as the statement you’re complaining about. Congrats.

I don't see what you're trying to get at, here. The sarcasm I was using was to point out that if "God did not intend for the races to mix" by having "placed them on separate continents," as Judge Brazile wrote, then he really should have written that white people should never have come to the Americas in the first place. Yes, that would be equally stupid, but only because the premise that God did not want races to mix is stupid.

[bernard11]

upholding state statute prohibiting public funding of abortions “except to save the mother’s life” but not in perpetuity as the statute states

What does the bolded part mean?

[JasonT20]

I think it might mean that the Hyde Amendment is what is at play here, and if the Hyde Amendment was repealed, then the state statute involved in this case could not continue to apply. This could be talking about something like Medicaid, where the public funds in question would be mostly federal funds, but the state administers the details of the program.

[Dan Schiavetta]

bernard11,

Thanks for pointing this out. My summary was badly phrased. As Wydick pointed out in his book on plain English, “Arrange your words with care.” (E.g., “I’ll discuss filling in that drainage ditch with my partners.”)

Arkansas prohibited use of state funds for abortion except to save the mother’s life. But it was participating in the federal Medicaid program which also allowed for rape/incest cases. The Court struck down the Arkansas law to the extent it conflicted with federal law — i.e., abortions paid for with state/federal funds could be for rape/incest, but if paid for with solely state funds, only to save life of mother — but reversed the lower court’s order striking it for so long as the state accepts Medicare funds — because at some future point federal Medicare rules might change to be congruent with Arkansas law.

I’ll make that change next time this case comes around, or when I move these summaries to my own web site (I haven’t decided yet).

[Commenter_XY]

captcrisis...please keep the summaries here. They are a part of my on-going, ad hoc legal education. No joke: I learn. See my 6A comment. 🙂

[SRG]

Seconded. It's one of the best features of this site.