Today in Supreme Court History: May 28, 1906

5/28/1906: Justice Henry Billings Brown retired.

Justice Henry Billings Brown

Comments

[Dan Schiavetta]

Home Depot U.S.A. v. Jackson, 587 U.S. — (decided May 28, 2019): new party sued in third party class action can’t remove case to federal court because statute allowing any class action to be removed can be invoked only by original defendant

Hoffman v. United States, 341 U.S. 479 (decided May 28, 1951): witness can “take the Fifth” before a grand jury even as to general questions about his background, occupation, etc. if he has a long criminal record and has been publicly associated with organized crime

Dewey v. United States, 178 U.S. 510 (decided May 28, 1900): plaintiff (this was Commodore Dewey, soon to become the only Admiral of the Navy in U.S. history) not entitled to full bounty for sinking ships during Spanish-American war because did not face superior enemy forces at sea (as is required for the full bounty) even though enemy had superior forces on land (note: Dewey was born into wealth and was rich already)

​Deserant v. Cerillos C.R. Co., 178 U.S. 409 (decided May 28, 1900): mine operators sued for personal injuries after explosion cannot rely on “what a reasonable person would do” defense but are bound by specific ventilation requirements imposed by federal statute (i.e., violation of a relevant regulation is “negligence per se”)

​Radio Corp. of America v. United States, 341 U.S. 412 (decided May 28, 1951): FCC had power to decide on CBS’s method of color TV transmission as the standard; plaintiff (known to my generation as “RCA”), argued that no system was yet developed enough (ironic because when I was a kid its flagship station, WRCA in New York, Channel 4, touted itself as the “full color network”)

​United States v. American Sugar Refining Co., 202 U.S. 563 (decided May 28, 1906): for the purposes of duties imposed on sugar imports, treaty signed by Presidents of Cuba and the United States went into effect on date as calculated by treaty language despite later amendment and ratification by act of Congress with a definite date (“It is not an unusual judicial problem to have to seek the meaning of a law expressed in words not doubtful of themselves, but made so by circumstances or the objects to which they come to be applied”) ​

Reed v. County Comm’rs of Delaware County, 277 U.S. 376 (decided May 28, 1928): special Senate committee investigating Senatorial election could not sue to obtain subpoenaed materials from local election officials because enabling resolution did not authorize them to sue

Box v. Planned Parenthood, 587 U.S. — (decided May 28, 2019): Upholding on “rational basis” grounds Indiana statute prohibiting treating fetal remains (in New York malpractice litigation we call it “products of conception”) as waste (i.e.,. to be disposed of together with surgical byproducts). The Court did not grant cert on the part of the statute prohibiting abortions knowingly based on disability, gender or race considerations, and this case is notable for Thomas’s opinion in favor of cert, a long discussion of the history of eugenics (though as someone pointed out at the time, when post-birth disabled people come before the Court, Thomas almost always votes against them — is this a fair criticism?). ​

Hernandez v. New York, 500 U.S. 352 (decided May 28, 1991): prosecutor successfully made a race-neutral showing of why he used peremptory challenges to strike Latino jurors (after long discussion with jurors in court presence, felt these native Spanish speakers would form their own understanding of Spanish language testimony instead of relying on the interpreter) (My wife is Dominican and I can tell you translation of the same words can vary greatly country to country)

​Nieves v. Bartlett, 587 U.S. — (decided May 28, 2019): 42 U.S.C. §1983 retaliatory arrest claim (man arrested after urging another person not to respond to police officer’s questions) defeated by showing of probable cause (he was drunk and disorderly)

[The Margrave of Azilia]

"fetal remains (in New York malpractice litigation we call it “products of conception”)"

Unless we're clones, we're products of conception too.

[Mr. Bumble]

Is creative writing a requisite for a law degree?

[Mr. Bumble]

Re: Hernandez v. New York

Why does peremptory (adjective;Subject to no further debate or dispute; final and unassailable.) seem to have a different meaning when it comes to jury selection?
It's not like there are an unlimited number of them.

[Dan Schiavetta]

It seems like the same meaning to me.

[Dilan Esper]

The Hernandez problem is a serious one, because if jurors are listening to the witness rather the translation it can be unfair to the lawyers (and clients) on either side of a case; they are listening to the translation and are making their arguments and objections based on it.

I'm not convinced, however, that the solution to this is to knock people off the jury rather than just giving them strong and clear instructions that no matter how well they understand the Spanish, they have to listen only to the translator because that is the official record of the case.

[Brett Bellmore]

I'm pretty sure that if I were a juror in a criminal trial, and the witness was giving testimony in a foreign language I was fluent in, and so far as I could tell the translator was just making it up as he went, I'd feel morally obligated to ignore such an instruction.

[Dilan Esper]

You would actually be morally obligated to listen to the translator and screen out the original language. Because otherwise you are committing the same sort of massive due process violation as a juror who looks up information on their own or goes to inspect the crime scene.

[Dan Schiavetta]

If the translator says "ladder" but you know the witness is saying "stairs", do you base your verdict on a fall from a "stair" (where the law you're instructed on is different) or a fall from a "ladder"? Is Due Process based on the truth of what happened or based on a mistake by the translator?

[Mr. Bumble]

In the example you pose, does the juror have an obligation or a right to point this out to the court?
How about to other jurors if it goes to deliberation?

[Dan Schiavetta]

Yes -- I can't find it right now, but in one of the (2000 or so) cases I've summarized here, a juror during deliberations did point this out to the judge.

[Dan Schiavetta]

I was thinking of a case I discuss in one of my CLE's.

Santana v. New York City Transit Authority, 132 Misc. 2d 777 (Sup. Ct. N.Y. Co. 1986) (no prejudice where Spanish-speaking juror passed note to judge informing him that interpreter mistranslated witness’s testimony; juror did not communicate with the other jurors)

[Dr. Ed 2]

Capcrisis --- you will hear the word "stairs" from the translator as well, and be genuinely surprised to have it pointed out otherwise.

[Dan Schiavetta]

Stroop is a tendency. It's not an immutable rule.

[Brett Bellmore]

The defendant is constitutionally entitled to a jury trial, and I take that to mean what a jury trial meant when the Bill of Rights was adopted, and the right mandated.

Not the proverbial jury of mushrooms, kept in the dark and fed bullshit, that the legal community have labored mightily to substitute for it.

I don't feel any moral obligation at all to cooperate with the government's perversion of the right to trial by jury.

[Noscitur a sociis]

1. When the bill of rights was adopted, the judge told juries what verdict he thought they should return at the end of the trial. This remains the practice in commonwealth countries other than the U.S. that still use jury trials.) In the 18th century, the judge could also hold the jury in contempt until they returned that verdict. Do you think that’s the system we’re required to use?

2. How do you determine what modifications to 18th century jury practice are permitted? For instance, why is it acceptable to let women serve as jurors?

[Artifex]

You would actually be morally obligated to listen to the translator ...

Sorry, no. We disagree at a very fundamental level. I see my duties as a juror as an obligation towards truth and justice. The legal system is only weakly connected to that.

I might have a legal obligation to follow a judges instructions, I certainly don't have a moral obligation. Your sense of "morality" strikes me as a bit shallow.

[Artifex]

Actually with a bit more thought, this seems even more ridiculous. Isn't Dilan the guy who was castigating conservatives for supporting cases in which the logical of the rule of law creates situations that conflict with his version of morality ?

Now we are told, we need to follow the rule of law in the courtroom and it is immoral to seek truth contrary to the jury instructions even in the cases that truth suffers. So which one is it ? Seems like pretty much textbook outcome based thinking to me.

[Brett Bellmore]

"Isn’t Dilan the guy who was castigating conservatives for supporting cases in which the logical of the rule of law creates situations that conflict with his version of morality ?"

The key word there is "his" version of morality. Not ours.

[Dan Schiavetta]

Dilan can be snippy but in my experience he's thoughtful and makes good points. He has been commenting at VC a long time.

[Brett Bellmore]

But he's making a category error here: The jurors can't commit due process violations, only government actors can do that, and the jurors aren't government actors. They're there as jurors specifically to NOT be government actors, bur instead represent the sovereign people themselves.

Naturally, the government tries its best to convert them into de facto government actors, but to the extent the government succeeds at this, they're actually violating the defendants' right to a jury trial, because the whole point of the jury trial is that the final decision ISN'T made by the government.

[Dan Schiavetta]

Yes, I agree with you.

[Gandydancer]

Violations of what?

[Gandydancer]

A juror "making racially prejudiced or religious comments while adjourned" may be reprehensible (or not) and may indicate that he could have been disqualified for cause (or not) had that proclivity been known but his doing so is in no way a due process violation.

[Artifex]

Dilan can be snippy but in my experience he’s thoughtful and makes good points.

Sure, Dilan is more honest than most and often has insightful points. When he talks about legal specifics, I tend to take him at face value.

That being said, this particular argument is ridiculous and revolves around having a sophomoric sense of morality. While "good when we do it and bad when you do it" might be the basis for progressive thought, it isn't exactly well constructed or thought out.

[Dan Schiavetta]

This is why it's important for trial lawyers to ask the jurors to stick around after the verdict is announced (and they're discharged from their oath) and listen to them. Often it turns out they misheard the testimony, or fixated on trivia. And they unavoidably bring their own experiences into the jury room. (That was the point of the duplicate-knife scene in "Twelve Angry Men".) I had one juror tell me (in an industrial accident case) that he had personal experience with one of the tools involved and it doesn't work the way the expert said it worked. A juror who spotted a mistranslation would likely tell the other jurors about it during deliberations.

[Gandydancer]

If the expert is a lying sack of shit or the translator mistranslates it is better for justice that the jurors know it than that the pretense of the credibility of court kabuki be maintained. ‘Course, the informative juror could be a lying sack of shit too, but judges are no to be trusted either. The system is a tool and not a suicide pact.

The decision ("It's OK to strike anyone who will notice our fuck-ups") is anyway crazy.

[David Nieporent]

(That was the point of the duplicate-knife scene in “Twelve Angry Men”.)

Except that wasn't experience; that was inappropriate outside research.

[Mr. Bumble]

Replying to David N:
Been a while since i've watched any of the versions of 12A. M.
but was it "...outside research" or another possible explanation based on the testimony?

[Dr. Ed 2]

I hate to tell you, but if one is more fluent in spanish than english, one is going to hear the spanish version in the english translation -- and swear (honestly believe) it was there.

Google Stropp Test....

[David Nieporent]

It's "Stroop." Why is everything with you wrong?

[Mr. Bumble]

Picky, picky, picky. We all can't be you.

[BrotherMovesOn]

Luckily none of us are you.

[Gandydancer]

Yeah, I’m sure your memory is always correct as to the spelling of names.

Was your gotcha the result of looking something up that you were previously ignorant of?

And why would we believe you?

And why are you always such as ass?

[bernard11]

I agree with Brett here.

Suppose it's a criminal trial and the translator makes an egregious error, which might well affect the verdict. Am I supposed to sit silently by? It seems that, at a minimum, I have a moral obligation to point this out to the judge.

Besides, are the jurors physically blocked from hearing the witness? If not, how do you prevent them from hearing?

[Brett Bellmore]

Jurors are actually physically prevented from seeing some of the evidence, and from hearing some of the arguments. That's the mushroom farm aspect of modern trials I was referencing; Often the trial outcome is determined by decisions out of the jury's view about what they get to hear and see.

[Dan Schiavetta]

Also, aside from the bother of being ushered into and out of the courtroom so that voir dire can be had on admitting or excluding evidence, the jurors probably get skeptical about what they do hear because of all the effort being made to keep certain things out.

[bernard11]

I don't think that is generally a problem.

Do you think the jury should see illegally obtained evidence, for example?

[Gandydancer]

Maybe. I’s not at all clear that the proper respons to an illegal search is to punish the society rather than the cops responsible for doing it.

Anyway, I can testify from personal experience that jurors will speculate on what it means that some item of evidence is “missing”. I was a juror on an armed robbery case in the long, long ago where part of the argument in the jury room was about the plausibility of a sawed-off shotgun being fired for practice in a residential back yard. There was no testimony about any search for shotgun pellets and the defense attorney hadn’t questioned the absence of that evidence either. Hmmm…. what might be the cause of that and what, exactly, would that mean?

[Noscitur a sociis]

I’m not convinced, however, that the solution to this is to knock people off the jury rather than just giving them strong and clear instructions that no matter how well they understand the Spanish, they have to listen only to the translator because that is the official record of the case.

I don’t think speaking the translated language is disqualifying (at least until the juror goes full Brett Bellmore and says they won’t follow the instruction), but I do think wanting to avoid the possibility is a legitimate and race neutral reason to use a perempt.

[Dan Schiavetta]

Yes I agree.

But in a place like Bronx (where I live) where most of the jurors are likely to be Hispanic (and probably the judge too)? It would be asking for trouble. Also you only get three perempts per side.

[Dr. Ed 2]

" its flagship station, WRCA in New York, Channel 4, touted itself as the “full color network”)

RCA, Dumont -- it's amazing the radio networks that did NOT make it into television.

[Dan Schiavetta]

Dumont did, briefly.

WRCA changed its call letters to WNBC.

[Syd Henderson]

I think the company's name was always usually abbreviated to RCA.

[Dilan Esper]

Yep, NBC was RCA's broadcast service.

The SCOTUS decision is clearly right, though. The broadcast spectrum was scarce and you needed one agreed-upon format for everyone so that all color TV's were compatible with all channels. So the government just had to pick a winner somehow. Maybe you could argue they should have auctioned off the format decision or something, but it isn't unreasonable for them to just say "we think CBS' system will work well based on our analysis of the technology, so we're going to pick it".

[Dan Schiavetta]

It was also a Chevron-y deference-y decision, though that case was still in the future. I would hate to think of the resulting mess if the judges (or their clerks) (or the lawyers) decided to "do their own research". The word "theremin" would probably appear, if not in the majority, maybe in one of the dissents.

[Dan Schiavetta]

I think his men shared in it.

To the modern mind this booty business (along with a lot of admiralty law) seems odd. I highly doubt if it's still the law.

[Mr. Bumble]

From wikipedia: "Prize Money"
In the Spanish–American War of 1898, neither the United States nor Spain issued commissions to privateers. However, the US Navy was granted what were to be last payments of prize money made by the US Treasury for that war. These were to sailors that took part in the battles of Manila Bay and Santiago and divided prize funds of 244,400 dollars and 166,700 dollars respectively, based on the estimated numbers of Spanish sailors and the value of ships salvaged at Manilla.[113]
Abolition

During the Spanish American War in 1898, the US Navy was seen by much of the United States population as seeking to profit from prize money and head money to an unacceptable extent, even though the amounts granted were relatively modest. All awards of prize money and head money to US Navy personnel were abolished by an overwhelming vote of Congress in March 1899, shortly after the Spanish-American War concluded.[114]

[Dan Schiavetta]

thanks

I suppose Adm. Dewey got in just under the wire.