Today in Supreme Court History: March 7, 1965

3/7/1965: Civil rights marchers are attacked by the police in Selma, Alabama. The event would become known as "Bloody Sunday."

Comments

[Dan Schiavetta]

Briscoe v. LaHue, 460 U.S. 325 (decided March 7, 1983): testimony in court is not “acting under color of law” so no §1983 liability for police officers whose perjury resulted in plaintiffs’ conviction

Baldwin v. Franks, 120 U.S. 678 (decided March 7, 1887): federal statute, not treaty with China guaranteeing safety of Chinese nationals, governed charges of beating and driving out of Chinese nationals from town of Nicolaus, California, and outside reach of Congress because interstate commerce not involved; (typically dreary) opinion by Waite; Harlan dissents (and as he often did, correctly)

Talley v. California, 362 U.S. 60 (decided March 7, 1960): striking down on Fourteenth Amendment grounds (incorporating First Amendment) city ordinance prohibiting handbills which did not indicate who prepared or distributed them (handbills urged boycott of businesses which would not hire nonwhites)

Wooden v. United States, 595 U.S. 360 (decided March 7, 2022): burgling ten different units in storage facility on same night counted as only one prior offense for purposes of aggravation provision of Armed Career Criminal Act

South Carolina v. Katzenbach, 383 U.S. 301 (decided March 7, 1966): Voting Rights Act of 1965 is within Congress’s powers to enforce Fifteenth Amendment (elimination of poll tests, presence of federal inspectors, etc.)

Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (decided March 7, 1960): Indian lands were owned in fee simple and were not “reservations” excluded from eminent domain; New York could condemn and flood land for hydroelectric project (with just compensation)

ICC v. Delaware, Lackawanna & Western R.R. Co., 216 U.S. 531 (decided March 7, 1910): ICC can order main line to install switch connection upon request of shipper but not on request of lateral line carrying only passengers within state

Wearry v. Cain, 577 U.S. 385 (decided March 7, 2016): prosecution’s duty to disclose evidence helpful to defendant, Brady v. Maryland, 1963, includes statements from witnesses casting doubt on credibility of prosecution’s main witness

[A Japanese Student]

Japan's indigenous population is far smaller than that of the US - but the Government using eminent domain to construct dams on indigenous lands did happen here as well.

[Dan Schiavetta]

Does (did) Japan have the equivalent of our “reservations”?

[A Japanese Student]

No; there is no reservation, self-determination, etc. Ainu-related laws are focused on cultural preservation. (See also the 2019 Ainu Act - https://www.japaneselawtranslation.go.jp/en/laws/view/4538)

[Dan Schiavetta]

Thanks!

[SRG2]

Care to guess which two justices dissented in Wearry?

Thomalito are disgustingly murderous slime. I note that the slime on the Louisiana SC also seem not to care about Wearry's obvious innocence of the crime.

Here's Alito second-guessing: "The Court argues that the information in question here could have affected the jury’s verdict and that petitioner’s conviction must therefore be reversed. The Court ably makes the case for reversal, but there is a reasonable contrary argument that petitioner’s conviction should stand because the undisclosed information would not have affected the jury’s verdict."

[Syd Henderson]

Haven't they ever watched "My Cousin Vinny"?

[JoeFromtheBronx]

A potential Thomas dissent if the case went another way:

"The two yutes here were found guilty of a brutal murder of a storekeeper during a burglary of a convenience store. Bill Gambini confessed, and his partner was convicted of being an accessory.

[Additional details, including how the storekeeper was supporting two orphans, are added.]

They were credibly defended by a lawyer who was a friend of the family after one of them ill advisedly, but by his free will, turned down the services of a public defender.

The majority's citation of such alleged exculpatory evidence as the so-called "magical grits" is creative, but does not warrant overturning the sentences for committing such a heinous crime."

[SRG2]

"The defense's witness Mona Lisa Vito was correctly excluded by the court from being an expert witness but it is unlikely a reasonable jury would have changed their verdict had she been permitted to testify as an expert."

[SRG2]

Here's the 5th Circuit decision after Wearry sued the DA and police. The district court agreed with Wearry. and found that the DA did not have absolutely immunity because he was engaged in investigation , which lies outside the scope of prosecutorial immunity. The 5th Circuit affirmed.

https://www.ca5.uscourts.gov/opinions/pub/20/20-30406-CV0.pdf

[Commenter_XY]

How often do prosecutors turn over that kind of evidence to the defense? = Wearry v. Cain --> statements from witnesses casting doubt on credibility of prosecution’s main witness

Is that something commonly done, or almost never done?

[Dan Schiavetta]

Good question.

Aside from an internship at the Brooklyn D.A. office in 1991, I don't have any experience in criminal law. I don't know how the defense ever finds out if the prosecution is hiding something, except by chance, after the fact. Especially because most defense attorneys make it a practice not to ever listen to their clients about the facts of the case and so wouldn't know where to begin to look.

[not guilty]

"I don't know how the defense ever finds out if the prosecution is hiding something, except by chance, after the fact."

Most Brady v. Maryland nondisclosure issues are litigated posttrial, often in the wake of information developed pursuant to FOIA request or state public records act inspection request. Prior to trial the judge has the authority to order the government to produce its files for in camera inspection by the Court. Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).

"Especially because most defense attorneys make it a practice not to ever listen to their clients about the facts of the case and so wouldn't know where to begin to look."

I don't know that that is true of "most defense attorneys." Some will tread carefully in asking the accused about his own participation in the charged offense (in order to avoid an ethical dilemma of the client makes inculpatory disclosures to his attorney and thereafter insists on testifying at trial). But a properly prepared defense attorney needs to fully investigate the factual setting of the alleged crime.

[Dan Schiavetta]

Admittedly I'm an outsider to this, but I've never seen a defense attorney say anything but "I never ask my client about the facts of the case". I assume the reason is, they make their $$ representing clients who are factually guilty but if it's clear from their client's story that they're guilty they can't ethically represent a client who still wants to plead "not guilty". I still think it's bad lawyering.

[Dan Schiavetta]

P.S. This comment, ironically or not, is addressed to the commenter (whom I respect a great deal) who calls him/herself "not guilty".

[The Margrave of Azilia]

I remember reading a memoir by a Florida lawyer whose client had privately confessed to the lawyer certain damning details which the client planned to deny on the stand. The lawyer wanted off the case but the judge wouldn't allow it and put the lawyer in prison.

[Dan Schiavetta]

The way out of that situation, of course, is not to put the client on the stand. (I assume you're talking about a criminal case, not a civil case.) I don't know why that lawyer still insisted on it, which forced him to get the judge involved.

[The Margrave of Azilia]

I don't have the book on me (and it's the lawyer's version, not the judge's), but I think the client insisted on lying on the stand.

[Dan Schiavetta]

P.S. A request for Brady material is routinely made and routinely responded to. (This was in the movie "My Cousin Vinny" when Joe Pesci asks Lane Smith on that hunting trip.) But again, if the prosecution is not producing all it should, I don't know how the defense would find that out.

[SRG2]

But again, if the prosecution is not producing all it should, I don't know how the defense would find that out.

Well, breaking into his office and going through the files is one way - which has actually been done.

Thomalito would generally take the view that if not all the evidence had been handed over, that was on defence counsel for not asking properly.

[Dan Schiavetta]

If Paul Drake, at the behest of Perry Mason, burgles Hamilton Burger's office and finds evidence that Burger withheld something -- isn't that "fruit of the poisonous tree"?

(It would also be bad scriptwriting -- Mason wouldn't do such a thing, and Burger, though inept, was honest.)

[SRG2]

Surely "fruit of the poisonous tree" only applies to government searches?

[Dan Schiavetta]

As a federal matter it doesn't bind private parties (United States v. Janis, 428 U.S. 433 (1976)). But some states have applied it to private conduct. I do a CLE on this. See Williams v. Williams, 221 N.E.2d 622 (Ohio 1966). In New York it doesn't. Sackler v. Sackler, 15 N.Y.2d 40 (1964). In Sackler, the wife's attorney hired a guy to break into the husband's house and rifle his dresser to get photos of him and his mistress. Evidence obtained illegally is o.k. in a civil suit if it's otherwise admissible.

[Syd Henderson]

You almost have to hope for the existence of a whistleblower.

[John F. Carr]

In recent years a specific kind of information has been more routinely provided. There are databases of police officers whose records might make them look bad on the witness stand. The list has names like Brady, Laurie, or Giglio based on the names of important cases requiring disclosure. The prosecutor is required to tell the defendant which potential witnesses are on the list and why. "Officer Smith was convicted of assault and demoted."

Some prosecutors will refuse to take cases depending on a witness whose record would have to be discosed. This makes the police officer practically unemployable. In one case in Maine the officer had nobody to sue over alleged erroneous placement on the list. His police chief had a good reason to fire him – the prosecutor wouldn't take his cases. The prosecutor owed no duty to the police officer.

[not guilty]

"How often do prosecutors turn over that kind of evidence to the defense? = Wearry v. Cain --> statements from witnesses casting doubt on credibility of prosecution’s main witness"

An ethical prosecutor will adhere to his Brady obligations. Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule, as it is "evidence favorable to an accused," Brady, 373 U.S., at 87, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal. United States v. Bagley, 473 U.S. 667, 676 (1985). The prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial. Bagley, at 675. Some prosecutors, however, do maintain an open file policy. "The prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of 'reasonable probability' is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley at 682. "The prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of 'reasonable probability' is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). The prosecutor's obligation to disclose evidence favorable to the defense turns on the cumulative effect of all such evidence suppressed by the government, and the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor's attention. Id., at 421.

[Dan Schiavetta]

Thanks.

"This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."

So the prosecutor has to affirmatively seek out pro-defense evidence?

[not guilty]

"So the prosecutor has to affirmatively seek out pro-defense evidence?"

Yes. A skillful prosecutor would do that independent of his disclosure obligations. It's better to learn of weaknesses in the government's case before the case is set for trial.

[Dan Schiavetta]

But if you're certain that the defense doesn't know about it . . . ?

In civil cases at pre-trial depositions, I always ask the questions I don't want to hear the answers to, because I don't want to be surprised at trial (also I want to "box the witness in"). The only exception is if I know the witness won't be at trial (and we'll just be reading the transcript to the jury).

[Dan Schiavetta]

[deleted]

[JoeFromtheBronx]

Hundreds of peaceful protestors were crossing the Edmund Pettus Bridge in Selma, Alabama 60 years ago today when they were met by a wall of police. Protesters were tear gassed and beaten. A young man named John Lewis suffered a fractured skull.

Led by Martin Luther King, Jr., Lewis and others, the protestors returned later that month and completed the 54-mile march to Montgomery in their push for voting rights.

John Lewis was practicing some "good trouble."

https://www.msn.com/en-us/society-culture-and-history/history/what-happened-on-bloody-sunday-is-worthy-of-remembering-this-marks-the-60th-anniversary/

[A Japanese Student]

Theft Case (Second Petty Bench, decided March 7, 1952): Lower court erred in not evaluating admissibility of confession to prosecutor made the day after confession to police (excluded by lower court because it was obtained after they forced the suspect to kneel for hours)

Criminal Compensation Case (Second Petty Bench, decided March 7, 1958): Criminal Compensation Act provides monetary relief to those acquitted after arrest or pretrial detention; Court holds that no compensation is available if the defendant is not detained pending trial (though they still can file a tort claim)

Police Act Amendment Case (Grand Bench, decided March 7, 1962): Judicial branch has no authority to determine whether proper parliamentary procedure was followed ("enrolled bill rule")

Narcotics Control Act Case (Third Petty Bench, decided March 7, 1967): Intent to profit from drug smuggling is a "status", and only the co-defendant having such status can be subject to sentence enhancement (Penal Code §65(2) "When the severity of a punishment varies depending upon whether or not a criminal has a certain status, a normal punishment is imposed on a person without such status.")

Public Bathhouse Case (Third Petty Bench, decided March 7, 1989): Law establishing minimum distances between public bathhouses do not violate right to choose occupation; while 1955 decision upheld that as reducing excessive competition that could endanger public health (which was potentially no longer valid rationale under 1972 precedent, see April 30 entry), the significant decrease in the number of public bathhouses meant that the Court could find the law as promoting economic policies instead (which requires deference)

Appeal of Utility Model Registration Trial Case (Third Petty Bench, decided March 7, 1995): When co-owners jointly petition for review of examiners' refusal to register a utility model (and loses), appeal must also be made jointly

Izumisano City Hall Case (Third Petty Bench, decided March 7, 1995): City hall permit cannot be refused except when "clear and present danger" of violence shown, and as so interpreted, statute permitting refusal is constitutional; heckler's veto not a valid reason for refusal; refusal still affirmed due to history of violent conflicts by plaintiff

Extraordinary Appeal Case (First Petty Bench, decided March 7, 2024): Vacated conviction for speeding due to failure to seek civil penalty ("extraordinary appeal" is filed to the Court by Prosecutor General to vacate convictions that are legally erroneous; here, the speed limit was 60km/h and not 50km/h as reported, which meant defendant could avoid prosecution by paying civil penalty)

[John F. Carr]

"Criminal Compensation Act provides monetary relief to those acquitted after arrest or pretrial detention"

That is much more generous than American law. In my state an exonerated defendant is only entitled to compensation for a prison sentence. The judgment must have been vacated on grounds suggesting innocence. Compensation tops out at $1 million.

In one recent case a man had been imprisoned for indecent assault on a child. The appeals court ruled that the conduct alleged was not indecent assault. It was at most ordinary assault and not necessarily that. He was released from prison with a ruling that he was factually innocent of the crime for which he had been imprisoned. He could claim compensation. If the trial judge had let him free pending appeal he couldn't. There is no compensation for pretrial detention or a non-custodial sentence.

[David Nieporent]

The event would become known as "Bloody Sunday."

Or, in Dr. Ed's house, "Lost Opportunity to Use Snowplows Day."