June 2009 Archives

I'll leave the in-depth legal analysis on Ricci v. DeStefano to my bloggy colleagues. But if you want fun background stories, then follow me below the jump.

The Supreme Court failed to rule upon Troy Davis' most recent petition prior to adjourning today for the summer. The Court was supposed to have discussed Davis' petition last Friday at their final conference of the spring term, with an order expected today. However, the last two sets of orders came and went without Davis' case among them, so now the Court will presumably wait until it reconvenes in September before deciding whether to give Davis' actual innocence claims a chance or to let the state of Georgia execute him.

I still think the odds on SCOTUS intervening on Davis' behalf are slim to none, but at least this delay gives him a few more months on this earth and gives his legal team a few more months to strategize to try to keep him alive. Now that the Court put everything on pause for the summer, the next few months will likely see considerable pressure on new Chatham County District Attorney Larry Chisholm to find a way to either re-open the case for new evidence, or take some other action to give Davis the new trial he has so far been denied by Georgia courts.

Right after Monday's decision sidestepping the constitutionality of the Voting Rights Act's preclearance requirement, the conventional wisdom appeared to be that SCOTUS was poised to find preclearance unconstitutional the next time the issue came before it. However, the conventional wisdom has fermented and evolved as the week wore on, and now some legal scholars are suggesting that the Court may have deliberately written Monday's decision in such a way that the constitionality of preclearance will not be reviewable by the Court in any future cases.

In a decision that virtually no court watchers saw coming, the U.S. Supreme Court today dispensed with the constitutional challenge to the pre-clearance requirement of the Voting Rights Act by, in essence, creating a technicality. Back when this case was argued before SCOTUS, most readers of tea leaves believed that the Justices' questions to counsel indicated they were inclined towards a 5-4 split in favor of invalidating pre-clearance, or possibly a narrow decision the other way with Kennedy providing the swing vote. Almost no one expected a slam dunk 8-1 majority opinion like the one issued today.

You may have, in recent times, heard of the State Secrets Privilege. It's the oft-criticized rule of evidentiary law that allows the government to get out of all sorts of pesky lawsuits by claiming state secrets are involved. W. was an especially frequent abuser user of the privilege. This American Life has the deeply troubling true story (skip ahead to Act 2: The Secret Life of Secrets) of the "secret" that gave rise to the privilege in United States v. Reynolds. It's worth fifteen minutes of your day!

Cool info-graphic illustrating ideological shifts over time, by Justice, on the Supreme Court.

What I wouldn't give for two more William O. Douglases circa 1974!

This morning the U.S. Supreme Court handed down a decision that could have huge impact here in Georgia and in every state in which judges are elected. In a story that could be straight out of a John Grisham novel, a West Virginia coal company lost a case at trial to the tune of $50 million. The coal company's CEO then donated over $3 million to a 527 that advertised on behalf of a challenger to a sitting West Virginia Supreme Court justice, who eventually won in a close election. The new justice then refused to disqualify himself from hearing the coal company's appeal and was part of a 3-2 decision reversing the $50 million verdict on what appear to be flawed legal grounds. After numerous efforts to get the court to rehear the appeal and recusals of several other justices, the plaintiffs finally appealed to the Supreme Court, which ruled today in a 5-4 decision that the justice's refusal to recuse himself violated the plaintiffs' due process rights.

This is the crux of the decision:

  Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case....We conclude that there is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

    Applying this principle, we conclude that Blankenship's campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin's campaign committee. Caperton claims Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

For the last 2 years I have been writing over at my home blog, Going Through the Motions, about the strange and sad saga of Troy Anthony Davis. Davis sits on Georgia's death row and is likely to be set for execution very soon, even though seven of the nine witnesses who testified against him at his murder trial have since recanted their stories and told a horrific tale of police coercion and the "real killer" who offered up Davis to police to cover his own tracks.  Despite this dramatic turn of events, Georgia's Supreme Court declined to grant Davis a new trial so that the testimony of the recanting witnesses could be heard for the first time in open court, and the Supreme Court also denied certiorari over his appeal. Georgia's Board of Pardons and Paroles denied Davis' clemency petition as well. It would seem that Davis is nearly out of options.

A host of celebrities, public officials from both parties, law professors, and religious figures have pled for clemency for Davis and asked the courts to intervene to prevent execution of a potentially innocent man before the evidence of his innocence is ever heard in open Court. One of those former public officials pleading for legal intervention is former Georgia Congressman Bob Barr, who wrote an impassioned op-ed in yesterday's New York Times claiming that the Anti-Terrorism and Effective Death Penalty Act (AEDPA) should not serve as a procedural bar to the hearing of claims of "actual innocence" such as the one that Davis has put forth in his last ditch federal appeal recently denied by the Eleventh Circuit. Barr correctly notes that he was one of the authors of the AEDPA, passed in 1996 as part of the "Contract With America." But he has a lot of nerve to claim that the very AEDPA that he helped to write and to pass was not intended to be used against defendants like Davis who claim they are actually innocent. 

In the aftermath of the murder of Dr. George Tiller, the Internet has been abuzz with hearfelt acclamations for Dr. Tiller, condemnations of his killer, and lauds for the murderer.  But one media personality has come under special scrutiny: Bill O'Reilly.  Many sources (here, here, here, here) have pointed to O'Reilly's longtime obsession with Dr. Tiller and his irresponsible and inflammatory rhetoric against him, suggesting that O'Reilly should accept some blame for the despicable act.  O'Reilly in turn has attempted to deflect criticism by blaming the "Far Left" for exploiting the tragedy.  In light of all this talk of incitement, I thought it might be an appropriate time to explore incitement as a legal concept.

• You can find a layperson's primer on incitement as a First Amendment exception here.

• The good and generous editors of Wikipedia provide us with a run down of Brandenburg v. Ohio, the case that established the exception, here.

• For those of you with some time on your hands, this is a law review article examining when and whether the media can be held responsible for inciting violence (PDF).

• And here you'll find a paper about whether Michelle Malkin met the standard for incitement when she published the personal information of anti-war protestors on her blog.