A blog of the Philadelphia Bar Association’s Criminal Justice Section

Supreme Court amends Appellate Rules on content and docketing of notices of appeal

Criminal Procedural Rules Committee

The information below is from Crisci Associates PA Capitol Digest.

The House is scheduled for a non-voting session on Monday. The Senate is not scheduled to meet this week.

Last week

The House passed House Bill 440, amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and Judicial Procedure) in criminal history record information, further providing for expungement, for petition for limited access, for clean slate limited access and for effects of expunged records and records subject to limited access; and, in administration of justice, further providing for attachment and summary punishment for contempts. (201-0). HB 440 now heads to the Governor for his action.

The Senate passed Senate Bill 976, amending Title 42 (Judiciary and Judicial Procedure), in jurisdiction of appellate courts, providing for commerce court program; and, in organization and jurisdiction of courts of common pleas, further providing for problem-solving courts and providing for commerce courts. SB 976 now heads to the Governor for his action. (47-0).

The Senate passed Senate Bill 1281, amending Title 75 (Vehicles), in licensing of drivers, further providing for schedule of convictions and points; in rules of the road in general, further providing for duty of driver in emergency response areas; and, in offenses in general, further providing for the offenses of homicide by vehicle and of aggravated assault by vehicle. (47-0). SB 1281 now heads to the Governor for his action.

The Senate passed House Bill 1662, amending the Methadone Death and Incident Review Act, further providing for title of act, for short title, for definitions, for establishment of Methadone Death and Incident Review Team, for team duties, for duties of coroner and medical examiner, for review procedures and for confidentiality. (48-0). HB 1662 now heads back to the House for a concurrence vote.

The Senate passed House Bill 616, amending the Controlled Substance, Drug, Device and Cosmetic Act, further providing for schedules of controlled substances. (49-0). HB 616 now heads back to the House for a concurrence vote.

The Senate passed House Bill 1538, amending Title 61 (Prisons and Parole) in Pennsylvania Board of Probation and Parole, further providing for parole procedure. (46-3) HB 1538 now heads back to the House for a concurrence vote.

The Senate passed House Bill 2175, amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in organization and jurisdiction of courts of common pleas, further providing for courts of common pleas; and, in depositions and witnesses, further providing for expert testimony in certain criminal proceedings. (47-0). HB 2175 now heads back to the House for a concurrence vote.

The Senate passed House Bill 2296, amending Title 75 (Vehicles), in general provisions, further providing for definitions; in licensing of drivers, further providing for learners’ permits, for examination of applicant for driver’s license and for restrictions on drivers’ licenses; in commercial drivers, further providing for notification requirements for drivers, for requirement for commercial driver’s license, for commercial driver’s license qualification standards and for disqualification; and in fees, further providing for exemption of persons, entities and vehicles from fees. (47-0). HB 2296 now heads back to the House for a concurrence vote.

The Senate passed House Bill 2370, amending Title 57 (Notaries Public) to permit the electronic notarization of documents. (48-0). HB 2370 now heads back to the House for a concurrence vote.

The House passed House Bill 2478, amending Title 75 (Vehicle Code) to allow a civil penalty in lieu of a license suspension for driving without insurance. (201-1) HB 2478 now heads to the Senate for their consideration.

Click for Pennsylvania Bulletin of October 24, 2020.

Headlines from politicspa.com

WHYY Newsworks: Pa. residents with court debt could have their records automatically sealed under new bill

WHYY Newsworks: Philly’s new legal strategy to bypass the state and enact gun laws 

Patriot News: Bill protecting young sexual assault victims from being re-victimized on its way to the governor

AP: Justices review priest abuse lawsuit’s ruling on time limits

newsletter-mark-c8ed094d73d10a49043a2e4269f325b51bb85aa9b49231567845d5507b90724f.pngTHE BEST OF THE MARSHALL PROJECT

Corrections officials make it difficult for prisoners to apply for their stimulus checks. A federal judge last month ruled that prisoners, too, are eligible to receive those $1,200 economic stimulus checks so many others received as part of the CARES Act. But corrections officials in several jurisdictions have reportedly made it difficult for prisoners to get access to the forms they must complete to apply for the money. They’ve allegedly blocked advocate emails containing instructions on how to fill out the forms and confiscated applications in mailrooms. In collaboration with NBC News, Keri Blakinger and Joseph Neff have our story.

Shame is ever-present when you’re sitting in a cell. Demetrius A. Buckley wondered where he fit in the Black diaspora: kicked out of his home at the age of 14 and now serving a prison term for second-degree murder, he tried to find positivity and worth in his one good friend and himself. That all changed when his friend died. “Soon it’s nighttime and I can’t sleep,” Buckley wrote in the latest installment of our Life Inside series. “I add to my list of what “my kind” is: Black, useless, incarcerated, no family, and now, no friends. If I ever make it out of prison, I might just be one of a kind.”

Two new things from The Marshall Project. Introducing “The System,” a limited-run online newsletter designed to help readers better understand our criminal justice system. Subscribe to learn the differences between prisons and jails, the meaning and limitations of cash bail, and more. We also introduce our “Ballots Behind Bars” Twitter account, in which we hear from some of the incarcerated people across the country we surveyed recently about criminal justice reform and the election.

Over 152,000 state and federal prisoners have tested positive for the coronavirus, over 1,275 have died, and last week saw a steep increase in the number of prison employees with known positives. In collaboration with the Associated Press here is our updated tracker.

newsletter-mark-c8ed094d73d10a49043a2e4269f325b51bb85aa9b49231567845d5507b90724f.pngTHE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

In a probing personal essay, retired pastor and criminal-justice advocate Elder G. Yusef Qualls makes an impassioned call for grace on behalf of Kyle Rittenhouse. Most readers will recognize Rittenhouse as the Michigan teenager who traveled to police protests in Kenosha, Wisconsin and killed two people with an AR-15. The self-styled vigilante, who is currently in juvenile detention awaiting trial, claimed he was there to protect businesses from looting. Qualls compares Rittenhouse to the story of his own son, a Black boy in Detroit who was convicted as an accomplice to murder during a home invasion at the same age of 17. Watching his own son’s growth from an impulsive decision made in the fog of adolescence, Qualls asks us to consider that years from now, Rittenhouse, like his own son, “may become someone unrecognizable from his 17-year-old self.” —Jamiles Lartey

After police tear-gassed him at a protest in Portland this June, Christopher Howell set out to build a facial recognition tool that could identify police officers, even if they aren’t wearing name tags. Four months later, Howell told New York Times’ Kashmir Hill that his program can identify 20 percent of police officers in Portland. Turns out, Howell is not alone. Police departments have been using controversial facial recognition programs and government ID photos to identify criminals. But as machine-learning models, such as Google’s TensorFlow, lower the barrier entry of building something similar, and as social media platforms like Facebook make it easy to find photos, people around the world are turning the tables and developing tools to hold law enforcement accountable. —Weihua Li

Michael Hall at Texas Monthly once again has an enraging tale of the injustice in the Lone Star State’s criminal legal system. It’s the story of Lydell Grant, a Houston man convicted of murder based largely on identifications from eyewitnesses. The aspiring rapper took his case to trial and lost– but years after he went to prison, a legal team discovered that DNA evidence pointed to another man. The mistake was so certain that prosecutors and a local judge backed his exoneration, and even the police chief apologized to Grant and his family. He only needed the state appeals court to agree in order to go free and get compensation for his time in prison. Unfortunately, that court was the notoriously unmerciful Texas Court of Criminal Appeals. This meticulously researched long-read packs in an unexpectedly fascinating history of the court widely reviled by defense attorneys and prisoners, and explains how the state’s highest criminal appeals court wasn’t always so unforgiving. —Keri Blakinger

SCOTUSblog: Petitions of the Week by Andrew Hamm

This week we highlight cert petitions that ask the Supreme Court to decide, among other things, the filing deadline for attorneys’ fees under the Individuals with Disabilities Education Act and whether Georgia’s burglary statute qualifies as a prior conviction under the Armed Career Criminal Act.

Richardson v. Omaha School District concerns the deadline that parents face in seeking to recoup their attorneys’ fees after prevailing in administrative proceedings under the Individuals with Disabilities Education Act. The IDEA offers states federal funds in return for providing a “free appropriate public education” for all students with disabilities. The IDEA also allows parents to initiate a “due process hearing” before a state or local IDEA hearing officer in order to enforce that promise. Parents who are “aggrieved” after these administrative proceedings have 90 days to seek judicial review, unless state law provides otherwise. Parents who prevail in the administrative proceedings may seek attorneys’ fees – but the statute does not specify any filing deadline. Courts divide over the proper deadline. Some circuits consider the fees as ancillary to the underlying educational dispute. They borrow the deadline for judicial review of IDEA administrative merits decisions, which in different states ranges from one to four months. Other circuits consider the fees as independent actions; they apply deadlines that apply for statutory violations, which could be years. In this case, Chad and Tonya Richardson waited months after the administrative decision before seeking attorneys’ fees – because, their petition claims, they were preoccupied with concerns that their child was being bulled. Their action came too late in the U.S. Court of Appeals for the 8th Circuit, which requires the shorter deadline. In their petition, the Richardsons ask the Supreme Court to review the 8th Circuit’s decision and adopt the longer deadline.

Avery v. United States addresses how courts should analyze state crimes for purposes of sentencing enhancements. The Armed Career Criminal Act requires a 15-year mandatory minimum prison sentence for someone convicted of being a felon in possession of a firearm who has three previous convictions for a violent felony or serious drug offense. The statute includes within the definition of “violent felony” a burglary that is punishable by imprisonment for more than one year. The Supreme Court has said that “burglary” in the ACCA refers to its generic version, not to all possible variants of burglary. In 2005, James Avery received a sentencing enhancement under the ACCA for being a felon in possession of a firearm with three qualifying prior convictions, including a Georgia burglary conviction. On appeal, Avery argued that the Georgia burglary statute is broader than the generic definition of burglary and therefore does not qualify as a prior conviction for the ACCA. In Georgia, one can burglarize multiple places, including “the dwelling house of another or any building, vehicle, railroad car, aircraft, watercraft, or other such structure designed for use as the dwelling of another, or … any other building, railroad car, aircraft, or any room or any part thereof.” Avery argues that this list of places expands beyond generic burglary. At issue is whether the various places constitute elements of separates crimes of burglary, or are examples of one overbroad burglary crime. The U.S. Court of Appeals for the 11th Circuit followed the former approach, and it determined that Avery’s burglary of a building and liquor storage room fell within a generic definition of burglary. However, the 11th Circuit acknowledged that other circuits have come out differently. Avery asks the justices to review the 11th Circuit’s decision.

These and other petitions of the week are below:

Carey v. Throwe
20-351
Issues: (1) Whether a qualified retired law enforcement officer who meets the statutory requirements to carry a weapon under the Law Enforcement Officer’s Safety Act has an enforceable right under 42 U.S.C. § 1983; and (2) whether social media posts “outing” a police officer’s misogynistic behavior and his making light of gun violence and gun control, raises an issue of public concern as a matter of law.

Idenix Pharmaceuticals LLC v. Gilead Sciences Inc.
20-380
Issues: (1) Whether, as the U.S. Court of Appeals for the Federal Circuit has held, a genus claim is not enabled “as a matter of law” if it encompasses a large number of compounds — or whether, as the Supreme Court has recognized, enablement is a context-specific jury question; and (2) whether, as the Federal Circuit has held, 35 U.S.C. § 112(a) contains a separate “possession” requirement — or whether, as the statute provides, Section 112(a) sets forth a single substantive requirement of “a written description of the invention” sufficient “to enable any person skilled in the art … to make and use the same.”

Guam v. United States
20-382
Issues: (1) Whether a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act can trigger a contribution claim under CERCLA Section 113(f)(3)(B); and (2) whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).

Avery v. United States
20-400
Issue: Whether a state burglary statute that disjunctively lists places that may be burgled under the statute is divisible for purposes of a sentence enhancement under the Armed Career Criminal Act, even though the statutory list is not exclusive and does not require the jury to agree that the defendant burgled any particular listed place.

Richardson v. Omaha School District
20-402
Issue: Whether, for attorneys’ fees actions under the Individuals with Disabilities Education Act, courts should borrow years-long state statutes of limitations because fees actions are analogous to independent lawsuits separate from the underlying merits of the IDEA administrative proceedings, or, in contrast, courts should borrow far shorter periods designed for judicial review of IDEA administrative merits decisions because fees actions are merely ancillary to the underlying educational dispute.

City of Miami Gardens, Florida v. Wells Fargo & Co.
20-405
Issue: Whether, by raising standing sua sponte at oral argument in an appeal concerning a partial summary-judgment decision focused solely on the statute of limitations and when discovery was limited to that purpose, the U.S. Court of Appeals for the 11th Circuit’s decision dismissing this case conflicts with the Supreme Court’s binding precedent in Alabama Legislative Black Caucus v. Alabama and violates due process in conflict with decisions of the Supreme Court and sister circuits.

Lee v. Ohio Education Association
20-422
Issues: (1) Whether 42 U.S.C. § 1983 provides a “good-faith defense” to private entities who violate another’s constitutional rights before the courts have clearly established the illegality of their conduct; and (2) whether the defenses of qualified immunity or “good faith” allow a defendant who takes another person’s money or property in violation of the Constitution — but in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutional — to keep that money or property when the owner sues for its return.

Huntress v. United States
20-426
Issues: (1) Whether the discretionary-function exception to the Federal Tort Claims Act’s waiver of sovereign immunity for United States employees’ negligent or wrongful conduct nullifies the law-enforcement proviso that clarifies the act’s provisions “shall apply to any claim” for “abuse of process[ ] or malicious prosecution” (as four circuits have now held), limits that proviso (as one circuit has held) or yields to it (as one circuit has held); and (2) whether the discretionary-function exemption applies when government officials act outside their jurisdiction.

Posted in Carey v. Throwe, Idenix Pharmaceuticals LLC v. Gilead Sciences Inc., Guam v. U.S., Avery v. U.S., Richardson v. Omaha School District, City of Miami Gardens, Florida v. Wells Fargo & Co., Lee v. Ohio Education Association, Huntress v. U.S., Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Deadlines for attorneys’ fees, the elements of burglary and more, SCOTUSblog (Oct. 23, 2020, 3:42 PM), https://www.scotusblog.com/2020/10/petitions-of-the-week-deadlines-for-attorneys-fees-the-elements-of-burglary-and-more/

Theodore Roosevelt, 26th President, born October 27, 1858. Click for article from whitehouse.gov.

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate are scheduled to meet October 19, 20 and 21. The Senate Judiciary Committee meets October 20 for a public hearing to examine Pennsylvania dog laws, related legislation and animal welfare issues.

Governor Wolf (once again) calls for legalization of adult-use cannabis
Joined by Rep. Maureen Madden (D-Monroe), Governor Wolf held a press event to talk about the ‘economic growth potential and restorative justice benefits’ of legalizing adult-use cannabis. He also said he believes that members of the Democratic and Republican parties want the legalization of adult-use cannabis; and that Pennsylvanians want revenue from the legalization of adult-use cannabis to be used for ‘specific things’; such as restorative justice and to assist small businesses affected by COVID-19.

In response to Governor Wolf’s latest call, the House Republican caucus tweeted: ‘The Wolf Administration’s repeated call to legalize marijuana comes at a time when we are in the middle of an out of control opioid epidemic with an average of 13 Pennsylvanians dying each day from overdoses, equating to over 300 deaths monthly. In addition, the proposal for how to use funds from recreational marijuana does not go to fill the budgetary shortfall we are experiencing as a result of the effects of the COVID-19-related economic shutdown, but instead goes to new spending. We hope the governor will join the House Republican Caucus in our continuing priorities of getting Pennsylvanians healthy and back to work while creating an economic recovery for all.’

Click for Pennsylvania Bulletin for October 17, 2020

Headlines from PoliticsPA

Patriot News: Attorney general candidates talk about how they would use the office to protect Pennsylvanians 

Pennsylvania Capital-Star: Four states could legalize recreational cannabis next month. Pa.? Not so much | Friday Morning Coffee 

The Hill: Pennsylvania police officer cleared after fatally shooting mentally ill man with knife

Billy Penn: Movement for hate crime law? LGBTQ and trans speakers give first ever testimony to PA Senate Republicans

Philly Voice: Philly police union sues city over reform bill that requires public hearings on contracts

Pennsylvania Capital-Star: How Pa. police departments reaped a windfall of military gear, explained | Analysis

THE BEST OF THE MARSHALL PROJECT

Bad dogs, worse accountability. Police dogs have bitten at least 40 innocent bystanders in the last ten years. Ayanna Brooks is one of the victims. Out for a stroll with her own dog, she was attacked and seriously injured in Washington, D.C. in December 2018 by a dog from a police department in Maryland. But that was just the beginning of a long legal odyssey, since laws shielding police from accountability and juries swayed by the “Lassie effect” make it hard for victims to prevail in court. Maurice Chammah and Abbie VanSickle bring the latest in our series, “Mauled,” chronicling the troubling use of police K-9s. This story was published in collaboration with AL.com, IndyStar and the Invisible Institute, and you can also read it at USA Today. Read more: When police violence is a dog bite.

Bite and bark. The use of police dogs has a particularly notorious history in Alabama, where images of German shepherds ripping into Black protesters in the 1960s are an indelible part of the civil rights movement. In collaboration with The Marshall Project, AL.com’s Ashley Remkus and Challen Stephens report on how police continue to use attack dogs against those suspected of even nonviolent crimes in the state, often inflicting grievous wounds. Law enforcement officials repeatedly refuse to release details of the use of dogs—and they are supported by public records laws shielding them from scrutiny.

Welcome to Indianapolis, where police dogs bite their victims once every five days. Most of the city’s residents who are attacked are suspected of non-violent, low-level crimes or traffic offenses. Black residents, especially young Black men, are disproportionately targeted by the dogs. “You know,” the city’s police chief said when confronted with the grim statistics, “I would hope that we wouldn’t have to bite that often.” In collaboration with The Marshall Project, IndyStar’s Ryan Martin and Andrew Fan, Dana Brozost-Kelleher and Ellen Glover of the Invisible Institute have our story.

Over 143,000 federal and state prisoners have contracted COVID-19, an increase of four percent from last week’s total. The death toll among prisoners has surpassed 1,200. Over 31,000 prison employees also have tested positive—the death toll among staff, almost certainly an undercount, stands at 85. In collaboration with the Associated Press, here is our updated tracker.

The Marshall Project wins three Edward R. Murrow Awards. For Overall Excellence and two interactive features. In collaboration with The Guardian, we won for “Detained,” a feature about America’s sprawling immigration detention system, and for “We Are Witnesses: Becoming an American,” a short film series in partnership with Newsy.

We also took home four Online News Association awards, including General Excellence in Online Journalism. The Zo, our animated series about life in prison, was recognized for Excellence and Innovation in Digital Storytelling. Our series of stories debunking the myths that drive our immigration system was recognized for Explanatory Reporting, and a TMP/Mississippi Today investigation into Mississippi’s modern-day debtors prisons won the Al Neuharth Innovation in Investigative Journalism Award.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

When I first moved to the United States, a lot of things didn’t make sense. Think football (or American football, as the rest of the world calls it), the imperial system, and adding butter in popcorn. Many years later, I learned to appreciate many of these things, yet one item continues to puzzle me: the electoral college. Luckily, this week, NPR’s Throughline aired an episode that looks back at what in the world the founding fathers were thinking about when they rushed to invent the electoral college. Packed with historical trivia and context, this episode made me look at the upcoming presidential election with an entirely different perspective, and I hope you’ll enjoy it, too.Weihua Li

On November 3rd, in addition to picking between Trump and Biden, you may be able to make a big decision about policing and criminal justice in your community through a vote for sheriff. Two stories this week demonstrated the stakes of these little-watched elections. On Wednesday, Austin American-Statesman reporter Tony Plohetski profiled Robert Chody, a lottery winner who became the sheriff in Williamson County, Texas, and whose taste for celebrity may have indirectly led to an indictment for evidence tampering, for which Chody was booked into his own jail last month. (I’m clearly leaving a lot out; you’ll just have to click.) On Friday, a team of Reuters reporters unveiled a massive investigation and data analysis of how and why so many people die in American jails. Their approach puts the blame less on the sheriffs, who run the jails, than on a larger absence of state and federal oversight, which allows troubling patterns of deaths to go unnoticed by advocates, local officials, and, by extension, all of us. —Maurice Chammah

SCOTUSblog

Petitions of the Week by ANDREW HAMM, October 16, 2020

This week we highlight cert petitions that ask the Supreme Court to decide, among other things, how humor affects trademark liability and the extent of a prosecutor’s duty to correct false testimony.

Jack Daniel’s Properties Inc. v. VIP Products LLC is a trademark case between the Tennessee whiskey distillery and an Arizona company that produces chew toys for dogs. In addition to selling liquor, Jack Daniel’s licenses its trademarks. VIP Products sells chew toys that combine alcohol and soda brands with bathroom and dog humor. Among the company’s merchandise are bottle-shaped toys bearing logos such as “ButtWiper,” “Heini Sniff’n” and, in this case, “Bad Spaniels.” VIP Products did not get a license from Jack Daniel’s before using the spoofed logo. Jack Daniel’s sued under the Lanham Act for trademark infringement and dilution, but the U.S. Court of Appeals for the 9th Circuit ruled in favor of VIP Products. On infringement, the 9th Circuit determined that VIP Products’ humor makes the dog toy expressive and protected under a heightened First Amendment test. On dilution, the 9th Circuit ruled that the humorous message makes the use “noncommercial” and therefore excluded from dilution liability. In its petition, Jack Daniel’s argues that lower courts are split about liability for humorous uses of trademarks and asks the justices to review both aspects of the 9th Circuit’s decision.

In 1963’s Brady v. Maryland, the Supreme Court ruled that, in criminal prosecutions, the government must hand over all exculpatory evidence to the defendant. Since then, lower courts have split on whether the government violates due process if it knowingly relies on false testimony in a criminal trial — so long as it properly divulged the evidence during discovery. Mitchell Stein, a publicly traded company’s in-house counsel, was convicted of fraud for a scheme to inflate the company’s stock prices. As part of the government’s evidence that Stein had made up purchases and purchase orders for three press releases, two company witnesses testified that they had never received any documentation substantiating Stein’s allegedly “phantom” orders. However, within the 1.75 million pages of documents that the government procured during its investigation were an email, check and deposit slip showing that the two witnesses had in fact received information about Stein’s orders. The U.S. Court of Appeals for the 11th Circuit determined that a due process violation did not occur because the government had not suppressed evidence showing the falsity of the witnesses’ testimony. In Stein v. United States, Stein asks the justices to hold that a prosecution’s use of false evidence is not excused simply because it disclosed proof of the falsity.

These and other petitions of the week are below:

Gibson v. Securities and Exchange Commission
20-276
Issue: Whether Congress has implicitly stripped federal district courts of jurisdiction to adjudicate separation-of-powers challenges to the authority of the Security and Exchange Commission’s administrative law judges to preside over enforcement proceedings.

Bass v. Greve
20-283
Issues: (1) Whether Officer Austin Bass had probable cause to arrest under the Fourth Amendment when the suspect admitted to trying to enter a closed and locked building, breaking a door handle in the process, but offered a questionable claim of an innocent mental state when explaining his behavior to Bass; and (2) whether, even if there was no probable cause to arrest Patrick Greve for any offense, Bass was entitled to qualified immunity because the law was not clearly established in this regard.

Stein v. United States
20-326
Issue: Whether the due process clause excuses the government’s knowing use of false testimony in a criminal prosecution so long as the government divulged evidence during discovery indicating that the testimony was false.

Arctic Cat Inc. v. Bombardier Recreational Products Inc.
20-355
Issue: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that “notified of the infringement” and “such notice” under 35 U.S.C. § 287(a) refer only to communications from the patent owner.

Jack Daniel’s Properties Inc. v. VIP Products LLC
20-365
Issues: (1) Whether a commercial product using humor is subject to the same likelihood-of-confusion analysis applicable to other products under the Lanham Act, or must receive heightened First Amendment protection from trademark-infringement claims, where the brand owner must prove that the defendant’s use of the mark either is “not artistically relevant” or “explicitly misleads consumers”; and (2) whether a commercial product’s use of humor renders the product “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Lanham Act.

Trump v. New York
20-366
Issues: (1) Whether a group of states and local governments have standing under Article III of the Constitution to challenge a July 21, 2020, memorandum by President Donald Trump instructing the secretary of commerce to include in his report on the 2020 census information enabling the president to exclude noncitizens from the base population number for purposes of apportioning seats in the House of Representatives; and (2) whether the memorandum is a permissible exercise of the president’s discretion under the provisions of law governing congressional apportionment.

Posted in Trump v. New York, Gibson v. Securities and Exchange Commission, Bass v. Greve, Stein v. U.S., Arctic Cat Inc. v. Bombardier Recreational Products Inc., Jack Daniel’s Properties Inc. v. VIP Products LLC, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: “Bad Spaniels,” false testimony and more, SCOTUSblog (Oct. 16, 2020, 3:55 PM), https://www.scotusblog.com/2020/10/petitions-of-the-week-bad-spaniels-false-testimony-and-more/

Argument Analysis by Jeffrey Bellin, October 16, 2020. “Justices spar over stare decisis, originalism, text and what counts as a Fourth Amendment seizure.”

In the oral argument of Torres v. Madrid on Wednesday, the justices tried out all the tools of constitutional interpretation as they worked through the meaning of the critical Fourth Amendment term, “seizure.” How they rule will answer one of the last remaining questions in this context: Is there a Fourth Amendment “seizure” when the police shoot a fleeing suspect who is injured by the bullets but does not stop?

Kelsi Corkran argued on behalf of Roxanne Torres, a New Mexico woman who was shot twice by state police before driving away from the scene. She had support from Rebecca Taibleson, who appeared as a “friend of the court” on behalf of the United States. Mark Standridge argued for the police officers, Janice Madrid and Richard Williamson. Torres claims in a civil rights lawsuit that the officers violated her Fourth Amendment right by committing an unreasonable seizure when they shot her. The officers’ defense is that the shooting did not constitute a seizure at all.

STARE DECISIS

As I mentioned in my case preview, the easiest resolution of the case would be for the court to simply follow its precedent. Justices Sonia Sotomayor and Elena Kagan endorsed this approach, noting that, in the 1991 decision California v. Hodari D., the court crafted a definition of “seizure” that clearly captures the shooting in this case: “a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” Justices Clarence Thomas and Neil Gorsuch emphasized in their questioning, however, that this language was dicta, or not essential to the outcome of that case and thus nonbinding on future decisions.

Illustrating the centrality of this issue, Kagan read a series of passages from Hodari D. and noted that the language appeared “all over the opinion,” cropping up “six times [in] only a seven-page opinion.” To Kagan, this was not the kind of “stray statement” that could be easily disregarded. Strengthening this point, Taibleson offered a ringing endorsement of stare decisis in this context, stating that “the United States’ interest here is in establishing a clear and predictable rule that law enforcement can apply in the heat of the moment in the field, and we think the rule established in Hodari D. achieves those ends.” While Taibleson acknowledged that the United States had taken a contrary position in 1991, she explained, “we didn’t … feel comfortable simply, you know, running it back.”

Whether or not he appreciated Taibleson’s pitch-perfect basketball reference, Justice Stephen Breyer seemed similarly swayed by the need for a clear line, stating, “We need a line that’s somewhat bigger than the one [the officers] propose.” For Breyer, the line the court drew in Hodari D. is “as good a line as any.”

ORIGINALISM

For the conservative justices attracted to the officers’ narrow “seizure” definition, the existence of contrary precedent is only part of the problem. There is the added fact that Hodari D. is an originalist precedent written by Justice Antonin Scalia. In his opinion for the court, Scalia wrote that, under the common law at the time of the Framing, “the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient” to constitute a seizure. This prompted Justice Brett Kavanaugh to press Standridge to acknowledge that, “you’re arguing, as I understand it, that Justice Scalia and really all nine justices in that case were wrong about the original meaning of the Fourth Amendment.” Kavanaugh similarly pushed Taibleson on this question, with Taibleson ultimately affirming that the United States’ official position was that Scalia got the history right. Sotomayor fanned the flames, wryly noting that Scalia was “very much was an advocate of the common law and … quite well informed about it generally.”

With this array of originalist forces against him, Standridge contended that the court should “reject historic relics that are not suited to the modern era” in favor of rules that “have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and contemporary conditions.” Curiously, it was the court’s conservatives who seemed most receptive to this argument. Gorsuch questioned the applicability of the Framing-era cases that, he said, primarily concerned “Dickensian debt collection practices.” Thomas suggested that the cases might be distinguishable because they arose outside the criminal context and involved direct applications of force. Justice Samuel Alito pointed out that none of the cases involved shootings. There seemed to be an irony here in light of the proceedings unfolding at that same moment across the (virtual) street. At the same time that Judge Amy Coney Barrett was extolling the clarity of originalism in her confirmation hearings in the Senate, the court’s most prominent originalists seemed to be suggesting that Framing-era precedents offered little insight into the proper application of the Constitution in a modern context.

TEXTUALISM

The justices returned to more familiar territory as they sparred over the plain meaning of the term “seizure.” The officers’ strongest textual argument is that the term’s ordinary meaning does not apply to unsuccessful attempts to restrain someone. To illustrate the point, Gorsuch deployed the day’s most extreme hypothetical, conjuring up a driver who “blast[s] through” roadblocks “at 100 miles an hour” with police “bazookas” (!) firing all around, and yet suffers only a scrape. Alito picked up the thread, asking about “a baseball pitcher [who] intentionally beans the batter.” Thomas added a question about someone hit by “a snowball.” None of these instances, the justices suggested, fit the term “seizure.” The examples prompted Kavanaugh to challenge Corkran to explain “why shouldn’t we just follow the ordinary usage of the term ‘seizure.’” In an apparent appeal to the justices aligning against her, Corkran responded that “it’s the ordinary meaning at the time of the founding that controls.”

The justices’ hypotheticals arguably underplayed an important fact about Torres’ claim. Torres was not only shot but felt the effects — including (she alleges) temporary paralysis. That the bullets did their damage in the blink of an eye may be causing the justices to overlook their severe impact — damage that would have been readily apparent if occasioned by traditional physical contact. This point surfaced when Sandridge responded to Justice Alito’s question about an officer who “grabs [a] person’s shirt … for a couple seconds,” by acknowledging that this would be a (momentary) seizure. Sotomayor picked up on the exchange in regard to Torres’ claim, asking Standridge how grabbing a shirt for a few seconds “is more of a seizure than putting a bullet in someone.”

PRACTICALITY

An undercurrent in the questioning concerned the societal significance of the case. A broad understanding of the term “seizure” would permit greater judicial scrutiny of excessive police force at a time when the country is increasingly concerned with police violence. Early in the argument, Sotomayor asked Corkran to “explain why this case is so important.” Corkran obliged, noting that the narrow definition of seizure sought by the officers would leave “all sorts of abuses by the government” outside of the constitutional framework. Breyer emphasized the point, stating that the officers’ argument left “the right of the people to be secure in their persons” without “much protection — a whole area [with] no protection at all.”

Gorsuch and Alito sounded a contrary note, asking both sides whether the suit could have been filed as a civil claim for battery in New Mexico state court. The consensus seemed to be that it could have been, but for the statute of limitations. Standridge drew on his local practice in New Mexico to push back on skepticism of the potential for state law remedies to excessive police force:

I believe I can represent, as an officer of this court and the state courts of New Mexico, that it is likely an assault or battery claim brought by … a plaintiff such as this petitioner would[] survive summary judgment and would likely have to have been resolved at trial.

CONCLUSION

After argument, the case feels closer than expected. Things can always change as the justices dig into the record, but at the moment, I count three votes for Torres and three for the officers, with the outcome hinging on the two remaining justices – Kavanaugh and Chief Justice John Roberts – who did not tip their hands.

Posted in Torres v. Madrid, Featured, Merits Cases

Recommended Citation: Jeffrey Bellin, Argument analysis: Justices spar over stare decisis, originalism, text and what counts as a Fourth Amendment “seizure”, SCOTUSblog (Oct. 16, 2020, 3:08 PM), https://www.scotusblog.com/2020/10/argument-analysis-justices-spar-over-stare-decisis-originalism-text-and-what-counts-as-a-fourth-amendment-seizure/

October 20, 1947. House Unamerican Activities Committee begins investigation of Hollywood. Click for article from Time. Photo: Bogart and Bacall arrive in Washington, D.C. to protest HUAC hearings. Note trolley car on right.

In Re: Promulgation of Consumer Price Index Pursuant to 42 Pa.C.S. §§ 1725.1(f) and 3571(c)(4) – No. 540 Judicial Administration 2020

In Re: Order Amending Rule 302 of the Pennsylvania Rules of Appellate Procedure – No. 290 Appellate Court Rules

October 30 is deadline to comment on Proposed Amendment to Criminal Procedure Rules 135, 460 and 547 concerning electronic transfer from MDJ to CP.

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate are not in session this week.

Last week.

On October 5, the Senate passed House Bill 1984, amending Title 23 so that victims of rape and incest may terminate the parental rights of the rapist without first identifying another individual who has a present intent to adopt (50-0). HB 1984 now heads to Governor Wolf’s desk for his action.

On October 6, the Senate passed Senate Bill 1075, amending Titles 18 (Crimes and Offenses), 23 (Domestic Relations) and 42 (Judiciary and Judicial Procedure) further providing for the offense of sexual abuse of children; providing for a task force on child pornography; and further providing for sentencing for offenses involving sexual abuse of children (50-0).

Click for Pennsylvania Bulletin for October 10, 2020.

THE BEST OF THE MARSHALL PROJECT

“Jailers gonna jail.” Even before the pandemic, Marie Neba was worried about dying in federal prison. In March, Neba applied for a program that sends sick and dying prisoners home early, known as compassionate release. But prison officials never responded to her request, and Neba died after contracting the virus at FMC Carswell in Texas. She’s just one of more than 10,000 federal prisoners who applied for compassionate release in the hopes of escaping COVID-19. Officials granted a mere 156 requests, and ignored thousands more. By early October, nearly 15,600 federal prisoners have contracted coronavirus and 133 have died. Joseph Neff and Keri Blakinger have our story.

Tracking the toll of police dog bites. Last Friday, we published the first installment of a year-long investigation into the use (and misuse) of police dogs. ICYMI: Our reporting found that thousands of Americans are bitten every year by police K-9s. Many of those people were unarmed, accused of minor crimes or not even suspects, and their injuries can be gruesome, severe and occasionally lethal. For many victims, there’s little accountability or compensation. In collaboration with AL.com, IndyStar and the Invisible Institute, here is our story by Abbie VanSickle, Challen Stephens, Ryan Martin, Dana Brozost-Kelleher and Andrew Fan. Read more: Six takeaways from the investigation, by Ashley Remkus of AL.com.

History of a dog whistle. When Donald Trump takes to Twitter proclaiming “LAW&ORDER!!!” he’s tapping into a term crafted decades ago, as one political historian put it, as “a strategy for reaching suburban voters without having to say the ugly part out loud.” From Beth Schwartzapfel, a brief history of a loaded phrase.

COVID-19 is still spreading behind bars. We’ve continued to track how many people behind bars have been infected and died from the coronavirus. The numbers continue to grow, and this week a few states saw spikes in cases. Wisconsin saw its first two COVID-related deaths of incarcerated people.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

When Jennifer Toon left prison, she promised to advocate for the people she left behind. “I never imagined how challenging that promise would be living on the outside while my friends remain locked up during one of the worst health crises the US prison population has ever seen,” she writes in a deeply reported personal essay for The Guardian. ”Their stories of daily life amid the pandemic give me such debilitating anxiety that I have trouble sleeping.” The Texas prison system—where Toon did her time, as Marshall Project readers might remember—is struggling with a higher number of COVID-19 infections and deaths than any other prison system in the country, but they’re also struggling with overheated prisons, bad food, and the effects of long-term lockdowns. Toon covers it all, and doesn’t hold back. —Keri Blakinger

If you live in Cook County, Illinois, the Injustice Watch judicial election guide has become a must-read in recent years. Judicial retention is a big part of the ballot, and Injustice Watch helps make sense of something that many people just skip past because they aren’t informed. The product tracks important parts of judges’ records, like previous state’s attorney or public defender experience, notable reversals, and past controversies. —David Eads

Rep. Attica Scott, the only Black woman in the Kentucky Legislature, has led peaceful protests in Louisville over the police killing of Breonna Taylor. After state Attorney General Daniel Cameron brought charges against only one of the officers in the raid, Scott was arrested during a march. She was charged with felony rioting. equal to the Class D felony charges facing Brett Hankison, the sole officer charged. In an interview in Scalawag, Scott calls the charges “absurd” and outlines the racism she sees behind them. “My daughter said to me, back in June, ‘Mom, we don’t move in fear.’ And I lift up that quote from her, every chance that I get.”Joseph Neff

SCOTUSblog

Case preview: Determining the statute of limitations for military rape — and possibly a lot more

Editor’s note: A previous version of this article ran on March 16, 2020.

By EVAN LEE

When the Supreme Court entertains argument on Tuesday in United States v. Briggs, which had originally been scheduled for Monday, March 23, it will be asked to decide whether three men convicted of military rape should not have been prosecuted in the first place because of the statute of limitations. And, should each side’s principal argument fail, the court may be forced to decide a bigger question: whether the Eighth Amendment prohibition against capital punishment for non-homicide rape applies to rape in the military.

This litigation consists of three consolidated cases, which all involve male military personnel convicted of raping female military personnel. Michael Briggs, Richard Collins and Humphrey Daniels claim that the statute of limitations should have barred their prosecutions. The government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations. The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including military rapes. That, in turn, means there is a statute of limitations for military rape, and it expired before any of the three men were prosecuted. The U.S. Court of Appeals for the Armed Forces agreed with the defendants.

In May 2005, “following an evening of heavy drinking,” Air Force Captain and F-16 instructor Michael Briggs went to the room of DK, a junior member of his squadron. He “forced her to have sex with him even though she said ‘no’ and ‘stop’ and tried to roll away.” Eight years later, DK obtained evidence sufficient to prove the rape, and Briggs was convicted by a court-martial. He did not raise a statute-of-limitations objection, presumably because it was well established that there was no statute of limitations for military rape, which was a capital offense.

Subsequently, in a reversal of its previous position, the CAAF decided that the combination of the Supreme Court’s 1977 decision in Coker v. Georgia and its 2008 decision in Kennedy v. Louisiana prohibits capital punishment for military rape, and therefore that rape is no longer “punishable” by the death penalty. Instead, the CAAF held, the Uniform Code of Military Justice’s default five-year statute of limitations applied to military rape. Briggs should be able to object that his prosecution was time-barred, the CAAF found.

In August 2000, Richard Collins was an instructor at Sheppard Air Force Base in Texas. HA, a fellow Air Force service member, was enrolled in his course. One evening while HA was eating alone on the base, she encountered an apparently intoxicated Collins. She suggested that he take a cab home. He insisted that she drive him home and help him to the door. Once inside, he “suddenly pushed HA against the wall and then threw her onto the floor. HA initially resisted, but Collins struck her in the face,” then raped her.

Fearing reprisal, HA refused to report Collins. She admitted to a female instructor that she had been raped but refused to identify the assailant. Finally, in March of 2014, HA made an unrestricted report identifying Collins. She told investigators that, during the assault, she had “fixated” on a family portrait hanging on the wall above the couch in the front room of Collins’ home. She described the portrait in detail. An investigation turned up a photograph of the front-room wall circa 2000, with a family portrait matching HA’s description hanging above the couch. The portrait itself was discovered in a storage closet.

Collins was tried by court-martial in 2016. He did not raise the statute of limitations. As with Briggs, however, Collins’ resulting conviction was overturned by the CAAF when it decided that military rape was no longer punishable by death.

In July 1998, Humphrey Daniels was stationed at Minot Air Force Base in North Dakota. He met TS, a civilian, at the gym, where they exchanged phone numbers. After TS “reluctantly agreed” to allow Daniels to visit her home, he repeatedly asked to stay the night. She refused because her son slept in her bed, and she had nowhere else for Daniels to sleep. Eventually, she let him sleep in the bed, where her son was also sleeping. He “kept trying to touch” her and she “kept pushing him off.” Eventually, however, he “pushed her shorts to the side” and “entered [her] with his penis without consent.”

After police told TS that it would be very hard for her to prove rape, she declined to participate in the investigation. Much later, in 2015, a detective in Fairfax County, Virginia, contacted TS while investigating a complaint that Daniels had been stalking an old girlfriend. The detective had learned that Daniels had been investigated for allegedly raping TS back in 1998. The detective persuaded TS to proceed with the rape allegation, which culminated in Daniels’ conviction by court-martial. As with the other two men, Daniels’ conviction was overturned by the CAAF because of the statute of limitations.

A key issue in this litigation is which subsection of the UCMJ, 10 U.S.C. Section 843, applies: subsection (a), which states that “any [military] offense punishable by death may be tried and punished at any time without limitation,” or subsection (b), which creates a five-year statute of limitations for other military offenses. The government argues that Section 843(a) applies because military rape is made “punishable by death” by 10 U.S.C. Section 920(a), which states, “Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.” The three defendants argue that military rape is not “punishable by death” because the Supreme Court’s Eighth Amendment precedents prohibit capital punishment for non-fatality rapes. And if military rape is not punishable by death, then the applicable limitations period is the default provision of Section 843(b).

The government makes multiple arguments that military rape is “punishable by death.” First, it makes a statutory interpretation argument — that Congress did not intend the military rape limitations period to be subject to the vicissitudes of Eighth Amendment jurisprudence. It intended military rape to have no statute of limitations, irrespective of what punishment is ultimately available. Because the statute authorizes capital punishment for rape, rape is “punishable by death,” whether or not that punishment may actually be carried out.

Second, the government makes a policy argument: Coker and Kennedy do not apply in the military context because “[s]exual assault in the military is … devastating to the morale, discipline, and effectiveness of our armed forces.” The Supreme Court has never decided whether the Eighth Amendment applies to courts-martial, and the government argues it should not apply, because of the deference that the courts owe to Congress in determining the “regulations, procedures, and remedies related to military discipline.” “The judgment that military rape should be a capital offense reflects the distinctive harms to military discipline, recruitment, morale, combat readiness, and coalition-building that are caused by rape in the military ranks,” the government argues.

The defendants support the CAAF’s most recent conclusion that Coker and Kennedy prohibit capital punishment for military rape. But they have their own argument for why the court need not reach the constitutional question in their cases. In 10 U.S.C. Section 855, Congress enacted its own statutory prohibition against cruel and unusual punishment, which the defendants claim prohibits capital punishment for military rape without reference to the Eighth Amendment. Section 855 states in part, “Punishment by flogging, or by branding, marking or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter.”

The government has yet another alternative argument — that Briggs is subject to prosecution even if Collins and Daniels are not. In 2006, Congress amended Section 843(a) to explicitly include rape among the military crimes for which there is no statute of limitations, irrespective of whether it is punishable by death. The events underlying Briggs’ conviction occurred in 2005. The government argues that Congress intended its 2006 amendment to cover all military rape cases back to 2001, because the default five-year limitation period in Section 843(b) would not yet have passed for such cases when Section 843(a) was amended in 2006. (Collins’ case stemmed from events that happened in 2000, Daniels’ in 1998.)

Briggs responds that this argument contradicts the strong presumption against retroactive application of new statutes. If Congress had meant the 2006 amendment to apply retroactively, it would have said so. Without retroactive application of Section 843(b), Briggs’ case is governed by Section 843(a)’s five-year statute of limitations, which expired long before he was prosecuted.

At oral argument, it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.

Posted in U.S. v. Briggs, U.S. v. Collins, Featured, Merits Cases

Recommended Citation: Evan Lee, Case preview: Determining the statute of limitations for military rape — and possibly a lot more, SCOTUSblog (Oct. 10, 2020, 11:00 AM), https://www.scotusblog.com/2020/10/case-preview-determining-the-statute-of-limitations-for-military-rape-and-possibly-a-lot-more/

Petitions of the week: DNA analysts, Temporary Protected Status recipients and more

By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to decide, among other issues, which forensic analysts in a multi-analyst DNA-testing process a criminal defendant has the right to confront at trial and whether noncitizens who entered the United States without authorization but who later received Temporary Protected Status are eligible for lawful-permanent-resident status.

The Supreme Court in 2009’s Melendez-Diaz v. Massachusetts held that the Constitution’s confrontation clause prohibits prosecutors from introducing forensic reports into evidence without giving criminal defendants the chance to cross-examine the analysts who produced the reports. However, courts have struggled to articulate which analysts prosecutors must call to testify when multiple analysts participate in forensic testing. In Chavis v. Delaware, a jury convicted Dakai Chavis of burglary of an apartment on the basis of a DNA sample that police took from outside the bedroom window. At trial, an analyst who completed the final, but not initial, steps in analyzing the DNA sample from the apartment testified that the sample matched a reference sample of Chavis’ DNA. DNA testing typically involves six steps, and the testifying analyst did not observe or supervise the analysts who performed the earlier tasks. Determining that the absence of the other analysts did not violate the confrontation clause, the Delaware Supreme Court affirmed Chavis’ conviction. Chavis asks the justices to review the Delaware court’s decision.

Sanchez v. Wolf involves an immigration category known as Temporary Protected Status, which allows people from countries suffering humanitarian crises to live and work in the United States for a limited time. The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer. Jose Santos Sanchez and Sonia Gonzalez are a married couple from El Salvador who entered the United States without being inspected and admitted. In 2001, after earthquakes in El Salvador, the couple received Temporary Protected Status. Under the Immigration and Nationality Act, a TPS recipient shall be “considered as being in, and maintaining, lawful status as a nonimmigrant” for purposes of applying to become a lawful permanent resident. When the couple in 2015 applied to adjust their status to that of lawful permanent residents, the government denied the application because they had never been lawfully admitted into the United States as required by the INA. Distinguishing between “admission” and “status,” the U.S. Court of Appeals for the 3rd Circuit agreed that a grant of Temporary Protected Status does not satisfy the “admission” requirement. Arguing that this decision conflicts with rulings by the U.S. Court of Appeals for the 6th and 9th Circuits and that the issue affects hundreds of thousands, the couple asks for the justices to review the 3rd Circuit’s opinion.

These and other petitions of the week are below:

Box v. Henderson
19-1385
Issue: Whether a state, consistent with the 14th Amendment due process and equal protection clauses, may adopt a biology-based birth-certificate system that includes a rebuttable presumption that a birth mother’s husband — but not wife — is the child’s biological parent.

Ommen v. Milliman Inc.
20-249
Issues: (1) Whether the Federal Arbitration Act preempts the generally applicable disavowal defense codified in Iowa’s Liquidation Act; and (2) whether, if so, whether the McCarran-Ferguson Act exempts the disavowal defense from preemption.

Keach v. New Brunswick Southern Railway Co.
20-310
Issue: Whether the “six months rule” — which grants a special priority to certain unsecured claims of creditors that provided goods or services necessary to a railroad’s operation, in reliance on payment out of the railroad’s current income, in the six months before the receivership — entitles unsecured claims for necessary operating expenses incurred by a railroad in the six months before bankruptcy to priority of payment if the railroad has not diverted any income away from the payment of such claims to pay secured creditors.

Sanchez v. Wolf
20-315
Issue: Whether, under 8 U.S.C. § 1254a(f)(4), a grant of temporary protected status authorizes eligible noncitizens to obtain lawful-permanent-resident status under 8 U.S.C. § 1255.

Chavis v. Delaware
20-317
Issue: Whether the confrontation clause permits DNA evidence obtained as the result of a multi-analyst testing process to be introduced against the defendant at trial through one of the testing analysts who has no personal knowledge of the basis for the out-of-court testimonial statements made by the other nontestifying analysts who participated in the testing.

Barr v. Aleman Gonzalez
20-322
Issue: Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community.

Posted in Box v. Henderson, Ommen v. Milliman Inc., Keach v. New Brunswick Southern Railway Co., Sanchez v. Wolf, Chavis v. Delaware, Barr v. Aleman Gonzalez, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: DNA analysts, Temporary Protected Status recipients and more, SCOTUSblog (Oct. 9, 2020, 3:49 PM), https://www.scotusblog.com/2020/10/petitions-of-the-week-dna-analysts-temporary-protected-status-recipients-and-more/

October 14, 1890. Dwight David Eisenhower, 34th President, born.

The information below is from Crisci Associates PA Capitol Digest.

The House is not in session this week. The Senate is in session October 5 and 6. The Senate Judiciary Committee meets October 6 to consider Senate Bills No. 136 (adding to Tier I and Tier II sexual offenses), 658 (establishing Center for Effective Indigent Defense Legal Representation), and 1085 (creating offense of evading arrest or detention on foot); and House Bill No. 616 (adding Carfentanil to Schedule II of controlled substances). The House passed House Bill 616 on December 16, 2019 by 195-0.

On September 30, the House State Government Committee approved House Bill 2546, which would provide civil and criminal immunity for health care providers, health care facilities and child care providers for their efforts during the COVID-19 pandemic emergency in the Commonwealth.

Click for Pennsylvania Bulletin for October 3, 2020.

Divine Law by Violet Oakley, Pennsylvania State Capitol

News from the Courts

Superior Court addresses whether smell of marijuana sufficient to establish probable cause for warrantless search of automobile.

Article from Associated Press.

Commonwealth v. Timothy Oliver Barr, 2020 PA Super 236, No. 2347 EDA 2019

Concurring Opinion by Judge Strassburger (joined by entire panel)

I believe that the status of the neighborhood at issue as a “high-crime area should not be relevant to the probable cause determination. People who live in poor areas that are riddled with crime do not have fewer constitutional rights than people who have the means to live in “nice” neighborhoods. –Concurring Opinion by Judge Strassburger

Superior Court rules gun industry protection law unconstitutional

By Zack Budrick, The Hill, September 29, 2020. Click for full report.

A 2005 law protecting firearms manufacturers from civil liability is unconstitutional, a Pennsylvania appeals court ruled in a Monday filing.

A three-judge panel Monday ruled the Protection of Lawful Commerce in Arms Act (PLCAA) of 2005 violates the 10th Amendment, which states that all powers not specifically delegated to the federal government are the responsibility of states.

The 2005 law says companies shall not be held legally liable for harm caused by those who “criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.”

After a Pennsylvania 14-year-old accidentally shot and killed his friend J.R. Gustafson in 2016, Gustafson’s parents sued both the gun manufacturer and the retailer where it was purchased. Gustafson’s parents alleged that the semi-automatic did not have a safety feature preventing it from going off without the clip. This, they argued, made the gun defective and both Springfield Armory and Saloom Department Store liable for their son’s death.

In a 63-page ruling, the panel wrote that “the only portions of the PLCAA that do not offend the Constitution are its findings and purposes … and a few definitions,” according to CNN.

The court also rejected the defense of the law as part of the federal government’s power to govern interstate commerce. A gun being sold across state lines at some point “does not give Congress perpetual authority to regulate any harm it may cause,” he wrote.

The court rejected a Westmoreland County trial judge’s dismissal of the lawsuit, which cited the PLCAA. The case will return to the trial court as a result of the ruling.

October 31 is deadline to apply for Supreme Court Committees. Applicants should be knowledgeable about the Pennsylvania Rules of Criminal Procedure and experienced in state criminal practice in Pennsylvania. One of these vacancies must be filled by a magisterial district judge who is also an attorney. more information

Criminal Procedural Rules Committee. Applicants should be knowledgeable about the Pennsylvania Orphans’ Court Rules and experienced in Orphans’ court practice in Pennsylvania. more information

Orphans Court Procedural Rules Committee. Applicants should be knowledgeable about the Pennsylvania Orphans’ Court Rules and experienced in Orphans’ court practice in Pennsylvania. more information

Continuing Legal Education Board. Applicants must be active members of the Pennsylvania Bar with their primary residency in Pennsylvania. In addition, applicants should be knowledgeable about legal practice and procedures in Pennsylvania state or federal courts. more information

https://www.themarshallproject.org/
THE BEST OF THE MARSHALL PROJECT

When Police Release The Dogs. After a summer full of viral images of police violence—guns, batons, irritant spray—there’s been one prodigious source of police injury largely undiscussed: dogs. In a year-long investigation we’ve found that thousands of people wind up in the hospital every year after being bitten by police dogs, frequently while being pursued on suspicion of minor crimes. The injuries can be gruesome, severe and occasionally fatal. Like other victims of police violence, there’s often little done in the way of compensation or accountability. In collaboration with AL.com, IndyStar and the Invisible Institute, here is our story by Abbie VanSickle, Challen Stephens, Ryan Martin, Dana Brozost-Kelleher and Andrew Fan.

COVID-19 deaths behind bars spike. At least 62 prisoners died from the coronavirus this week, the largest one-week rise since mid-May. The jump was driven by new deaths reported in California, Florida, Virginia, Texas, Illinois and 13 other states. The pandemic has now claimed the lives of 1,170 people in prison. There were more than 5,300 cases reported in prisons this week, slightly fewer than the week before.

“Once you’re a first responder, you’re always a first responder.” Rasheed Lockheart, a firefighter at the San Quentin prison firehouse writes about how the work has been the most important experience of his life, as part of our Life Inside series. At San Quentin, firefighters don’t just respond to wildfires, but to regular fires and medical emergencies both in and outside the prison. TMP Context: The former prisoners fighting California’s wildfires.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

Ayelet Waldman is best known as a writer alive to the complexities of sexual assault and the all-too-common mishandling of such. She co-wrote “Unbelievable,” the hit Netflix series based on Ken Armstrong’s Pulitzer Prize–winning Marshall Project story. It turns out she was also a public defender and law professor and editor of a book of essays about the brutality of life in prison. So when a man appeared in her bedroom late one night and attempted to sexually assault her, she knew all too well how lucky she was that he was caught—and that she was faced with only bad choices. In a haunting essay in the Atlantic, Waldman reflects on her many decision points along the way: whether to call 911, whether to cooperate with the prosecutor, whether to concede to a plea deal. It’s not satisfying the way some essays are—after all, its focus is on just how unsatisfying the system is at tackling these kinds of crimes—but it is thoughtful, humane and worth your time. —Beth Schwartzapfel

SCOTUSblog

Petitions of the week: Three unresolved death penalty questions

By ANDREW HAMM

This week we highlight cert petitions that, among other things, ask the Supreme Court to clarify three issues related to capital punishment: one involving ineffective assistance of counsel, one involving claims of intellectual disability, and one involving the roles of judge and jury during capital sentencing.

Whatley v. Warden involves a capital defendant’s claim for ineffective assistance of counsel under the Sixth Amendment. After being convicted of a murder in connection with an armed robbery, Frederick Whatley appeared before the jury for the sentencing phase of the trial with visible shackles around his arms and legs. His attorney did not object to Whatley’s shackling, and Whatley received the death penalty. The Georgia Supreme Court rejected Whatley’s claim that his attorney’s failure to object to the visible shackles prejudiced his defense, even though the Supreme Court has called a defendant’s shackling before a jury “inherently prejudicial” under the 14th Amendment. The U.S. Court of Appeals for the 11th Circuit ruled that the Georgia court did not have to consider the Supreme Court’s shackling cases in deciding a claim of ineffective assistance of counsel. Arguing that the federal courts of appeals are split on this question, Whatley’s petition asks the justices to review the 11th Circuit’s decision.

Kentucky v. White asks the Supreme Court to decide whether a capital defendant can waive claims of intellectual disability under Atkins v. Virginia, a 2002 case in which the court held that executing a person who is mentally disabled is cruel and unusual punishment under the Eighth Amendment. In 2014, a jury convicted Larry White of rape and murder, for which he received the death penalty, and White’s attorneys brought an Atkins claim seeking to overturn his sentence. After the Supreme Court’s 2017 decision in Moore v. Texas – which clarified how states should assess whether a capital defendant has an intellectual disability – the justices remanded White’s then-pending petition to the Kentucky Supreme Court for reconsideration. After concluding that a defendant cannot waive a claim of intellectual disability, the Kentucky court ordered an evidentiary hearing to determine whether White in fact has an intellectual disability. Kentucky now wants the justices to decide whether a defendant can waive claims of intellectual disability under Atkins. The state argues that White has repeatedly indicated that he does not wish to pursue an Atkins claim.

Finally, Poole v. Florida involves the application of the Supreme Court’s 2016 ruling in Hurst v. Florida, which found that Florida’s capital-sentencing scheme violated the Sixth Amendment because it permitted a judge, rather than the jury, to weigh aggravating and mitigating factors before entering a sentence of life or death. Mark Poole, who was sentenced to death in Florida for a 2001 murder and robbery, argued that his sentence violated Hurst, and a trial court agreed, vacating his sentence. The state appealed, and the Florida Supreme Court reversed the trial court’s order. Poole’s petition asks the justices to review the Florida Supreme Court’s decision.

These and other petitions of the week are below:

Kentucky v. White
20-240
Issue: Whether a capital defendant can waive a claim of intellectual disability under Atkins v. Virginia and its progeny.

Poole v. Florida
20-250
Issues: (1) Whether the Florida Supreme Court erred in reinstating a capital sentence issued under Florida’s pre-2016 scheme, in contravention of the Supreme Court’s holding in Hurst v. Florida that such sentences violate the Sixth Amendment because the jury did not make the requisite death-eligibility findings, including that aggravating circumstances outweigh mitigating circumstances; and (2) whether the Florida Supreme Court violated the Eighth Amendment in reinstating a capital sentence lacking a unanimous jury recommendation of death and based on a guilt-phase jury finding rendered without awareness of the consequences for capital sentencing.

El Paso County, Texas v. Trump
20-298
Issues: (1) Whether the executive branch’s expenditure of $2.5 billion on border-wall construction violates the Consolidated Appropriations Act and thus the Constitution’s appropriations clause; and (2) whether the Department of Defense’s transfer of $2.5 billion between agency appropriations accounts violates Section 8005 of the DOD Appropriations Act and thus the Constitution’s appropriations clause.

Hennis v. United States
20-301
Issues: (1) Whether the offenses for which the petitioner, Timothy Hennis, was tried and acquitted in state court constituted offenses “for which [he] cannot be tried in the courts of . . . any State”; (2) whether 10 U.S.C. § 803(a) is unconstitutional insofar as it allowed the government to court-martial Hennis only because the double jeopardy clause would have barred his retrial in a state court; and (3) whether the Constitution bars the military from subjecting servicemembers to capital trials for non-military offenses.

United States v. Vaello-Madero
20-303
Issue: Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind and disabled individuals — in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.

World Programming Ltd. v. SAS Institute Inc.
20-304
Issues: (1) Whether the All Writs Act or Federal Rule of Civil Procedure 69 permits federal courts to fashion novel remedies to enforce federal money judgments, such as an injunction that forbids the judgment debtor from licensing its software for use in the U.S. until the judgment is paid, to “incentivize” payment; and (2) whether and under what circumstances federal courts may invoke the All Writs Act to enjoin enforcement of a foreign money judgment, even within the nation that issued the judgment.

Whatley v. Warden
20-363
Issue: Whether a state court unreasonably applies federal law when, in determining whether a person suffered prejudice as a result of ineffective assistance of counsel, it disregards the Supreme Court’s case law recognizing that shackling is inherently prejudicial.

Posted in Kentucky v. White, Poole v. Florida, El Paso County, Texas v. Trump, Hennis v. U.S., U.S. v. Vaello-Madero, World Programming Ltd. v. SAS Institute Inc., Whatley v. Warden, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Three unresolved death-penalty questions, SCOTUSblog (Oct. 2, 2020, 2:34 PM), https://www.scotusblog.com/2020/10/petitions-of-the-week-three-unresolved-death-penalty-questions/

Headlines from PoliticsPA

Patriot News: Bill protecting young sexual assault victims from being re-victimized at school moves to Pa. House for consideration 

Patriot News: Lt. Gov. John Fetterman talks about legalizing recreational marijuana, calling it ‘the right side of history’ 

Patriot News: Pa. House panel approves bill to train police in tool to reduce domestic violence deaths, officer danger 

October 7, 1949. German Democratic Republic (East Germany) founded. It expired on October 3, 1990, when all five states of the GDR were admitted to the Federal Republic of Germany (West Germany). Click for article from Hemmings on East Germany’s iconic car, the Trabant.

Senate chamber, Pennsylvania State Capitol

October 19 is deadline to comment on proposed Evidence Rule 413 concerning admissibility of evidence of immigration status

The information below is from Crisci Associates PA Capitol Digest.

This week

The House is in voting session September 29, 30 and October 1. The House Judiciary Committee meets September 29 to vote on the following bills: HB 175 (police training), HB 486 (failure to report disappearance of child), SB 976 (problem solving courts), SB 1170 (expert testimony in criminal proceedings), SB 1193 (Sheriff and Deputy Sheriff education and training).

The Senate is not in session this week.

Click for Pennsylvania Code for September 26, 2020

https://www.themarshallproject.org/
THE BEST OF THE MARSHALL PROJECT

Trump’s crime-and-carnage ad blitz on Facebook goes unanswered. We scoured hundreds of thousands of Facebook ads from December until now and see marked differences in the approaches of the Trump and Biden teams. The Trump campaign spent more than $6 million on Facebook ads focusing on crime and policing, almost all of it after the killing of George Floyd in Minneapolis in May. The Biden campaign, by contrast, spent almost no money on Facebook ads focusing on police and criminal justice issues until late August, after the president tried baselessly to link Biden to protests. In collaboration with Slate, Jeremy B. Merrill and Jamiles Lartey have our story.

Your “violent crime rate” primer, just in time for the first presidential debate. You can expect the topic of violent crime to surface next week when Donald Trump squares off with Joe Biden. The president has honed his dubious “anarchy and mayhem” message on the campaign trail. The Democratic challenger has emphasized the historically low crime rates of the Obama era. The data is hard to parse but suggests that while violent crime is up this summer, non-violent and property crimes are down. The data also reveal that police action, and inaction in the case of work slowdowns, drive crime rates, too. In collaboration with Vox, I crunched the numbers with Vox’s Tim Ryan Williams and Christina Animashaun.

Rightward, ho. Justice Ruth Bader Ginsburg’s death is almost certainly bad news for progressive lawyers and many defendants whose criminal justice cases will be heard this term at the Supreme Court. Especially if President Trump nominates, and the Senate quickly confirms, any of the conservative judges reportedly on the White House’s shortlist. Eli Hager and Beth Schwartzapfel look at cases now on the docket—including one involving teenagers sentenced to life without parole—and some on policing and incarceration that may be coming before the court soon.

On criminal justice, a somewhat mixed record for the late Justice Ginsburg. No one who spent 27 years on the Supreme Court left with an uncomplicated record and Ginsburg is no exception. On criminal justice, she generally supported progressive arguments and theories, though with several notable exceptions. She was personally opposed to the death penalty, for example, but never came out in support of repealing it. And she sometimes sided with law enforcement. This week we asked experts for their views on Ginsburg’s record on policing, fair trials, sentencing, prison conditions, racial justice, Native rights, and more.

Location, location, location. Corey Devon Arthur, imprisoned since 1977 for murder and robbery in New York, was relieved, even happy, when he was quarantined earlier this year after a fellow prisoner tested positive for COVID-19. For Arthur it meant a return to a single cell in the prison’s solitary confinement unit, where he had lived alone for many years, and a break from the open dormitory shared by 30 men. “I was headed to a single-man cell where, for the first time in years, I would be a man at peace with himself,” he writes in the latest in our “Life Inside” series.

132,000 and counting. Another week, another five percent increase in the number of people in federal and state prisons who have tested positive for COVID-19. At least 1,108 prisoners have now died from the coronavirus. Nearly 29,000 prison employees also have tested positive for the virus, surely an undercount given uneven testing protocols, and 81 have died.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

How diverse is your police department? And how has that changed over time? This week, Lauren Leatherby and Richard A. Oppel Jr. took a deep dive into police employment data for The New York Times. They found that police officers are whiter than the communities they serve, and that between 2007 and 2016, more than two-thirds of 467 departments they analyzed became even whiter. Check out their visualizations of each department’s racial breakdown and how that compares to its community. —Weihua Li

SCOTUS BLOG—Petitions of the Week

By Andrew Hamm

This week we highlight cert petitions that ask the Supreme Court to decide whether schools may discipline students for off-campus social media posts, whether sex offender registration is punishment, and whether a deported immigrant received effective assistance of counsel, among other petitions.

In the landmark 1969 case, Tinker v. Des Moines Independent Community School District, the Supreme Court recognized that students have First Amendment rights at public schools. However, the court also allowed school officials to discipline students whose speech “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” In Mahanoy Area School District v. B.L., a Pennsylvania high school student sent two messages on Snapchat to 250 people that criticized the cheerleading program. After coaches removed the student from the team, the student and her parents filed suit. The U.S. Court of Appeals for the 3rd Circuit ruled that “Tinker does not apply to off-campus speech.” Arguing that the 3rd Circuit’s decision conflicts with decisions of five courts of appeals and the Pennsylvania Supreme Court, the school district’s petition asks the justices to decide whether Tinker allows school officials to regulate student speech that occurs off campus.

Maryland v. Rogers addresses whether sex offender registration is “punishment” within the meaning of the Sixth and 14th Amendments. Jimmie Rogers pleaded guilty to a Maryland criminal law that provides that a person may not knowingly “take or cause another to be taken to any place for prostitution.” Because the victim’s age was not an element of the offense, the prosecution did not present evidence of her age. However, the Maryland Department of Public Safety and Correctional Services determined that the victim was a minor. After Rogers’ release from prison, the department classified him as a Tier II sex offender, which requires registration for 25 years for human-trafficking offenses against minors. In contrast, a Tier I sex offender must register for only 15 years and may petition for removal after 10 years. The Maryland Court of Appeals, the state’s highest court, determined that sex offender registration constitutes punishment for which the state must prove all elements beyond a reasonable doubt. The Maryland attorney general’s petition asks the justices to review that decision, arguing that it conflicts with two Supreme Court decisions and other lower-court and state-court decisions.

In Juarez v. Colorado, Alfredo Juarez pleaded guilty to a misdemeanor charge of possessing pyrovalerone, a controlled substance. In return, the state dropped a felony possession charge. After violating his drug court probation, Juarez was placed in state custody and ultimately deported. Juarez filed a petition for post-conviction relief arguing that his counsel provided constitutionally deficient advice. Juarez maintains that counsel advised him that a misdemeanor plea would “probably” result in deportation and that immigration officials may look more favorably upon a misdemeanor than a felony. In fact, Juarez argues, his guilty plea ultimately made his deportation mandatory under federal law. After the Colorado Supreme Court rejected Juarez’s claim because he understood the guilty plea would make him “deportable,” Juarez filed a cert petition before the U.S. Supreme Court.

These and other petitions of the week are below:

Lebamoff Enterprises Inc. v. Whitmer
20-47
Issue: Whether a state liquor law that allows in-state retailers to ship wine directly to consumers, but prohibits out-of-state retailers from doing so, is invalid under the nondiscrimination principle of the commerce clause or is a valid exercise of the state’s 21st amendment authority to regulate the sale of alcoholic beverages within its borders.

Juarez v. Colorado
20-120
Issue: Whether, when there is no dispute that a guilty plea will trigger mandatory deportation pursuant to federal law, defense counsel must advise a noncitizen-defendant that the plea will result in deportation as a matter of law, or whether it is sufficient for defense counsel to caution that the plea could make the noncitizen-defendant “deportable” or that it will “probably” result in deportation.

Massie v. Mena
20-202
Issues: (1) Whether, under the particular facts and circumstances of this case, the U.S. Court of Appeals for the 9th Circuit erred in finding that Robert Massie’s actions constituted an excessive use of force in violation of the Fourth Amendment; and (2) whether, regardless of the answer to the first issue, the district court and 9th Circuit nonetheless erred in denying qualified immunity to Massie when it was not clearly established at the time of the incident (or now) that his actions constituted an excessive use of force in violation of the Fourth Amendment.

Mahanoy Area School District v. B.L.
20-255
Issue: Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

Jordan v. United States
20-256
Issue: Whether each separate conviction under 18 U.S.C. § 924(c)(1) — under which “any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” commits an offense — requires only a separate predicate crime of violence or drug trafficking offense, as the U.S. Courts of Appeals for the 3rd, 4th and 8th Circuits have held, or also requires a separate act of using, carrying or possessing a firearm, as the U.S. Courts of Appeals for the 2nd, 5th, 6th, 7th, 10th and District of Columbia Circuits have held.

Chipotle Mexican Grill Inc. v. Scott
20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.

Maryland v. Rogers
20-272
Issue: Whether the Court of Appeals of Maryland departed from the Supreme Court’s decisions in Smith v. Doe and Apprendi v. New Jersey in holding, contrary to the decisions of numerous federal courts of appeals and state supreme courts, that sex offender registration constitutes “punishment” within the meaning of the Sixth and 14th Amendments to the United States Constitution, and that, as a result, any fact necessary for placement on the sex offender registry, such as the victim’s age, must be determined beyond a reasonable doubt during the criminal proceeding, even if that fact is not an element of the criminal offense that is the basis for registration.

Retirement Plans Committee of IBM v. Jander
20-289
Issues: (1) Whether Fifth Third Bancorp v. Dudenhoeffer’s “more harm than good” standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time and thus plan fiduciaries should have made earlier disclosures through regular securities-law filings; and (2) whether the Employee Retirement Income Security Act imposes a duty on a plan fiduciary who is also a corporate officer to use inside information for the benefit of plan participants.

Bristol-Myers Squibb Co. v. New Mexico, ex rel. Balderas
20-293
Issues: (1) Whether the federal government or a state government, as the real party in interest in a qui tam action brought in its name and litigated to judgment with its full knowledge, is bound by a final judgment on the merits when that government has declined to intervene; and (2) whether a state court may establish a novel “public policy” exception to the res judicata effect of a concededly final federal judgment when that exception runs to the exclusive benefit of a single party, the government.

Posted in Lebamoff Enterprises Inc. v. Whitmer, Juarez v. Colorado, Massie v. Mena, Mahanoy Area School District v. B.L., Jordan v. U.S., Chipotle Mexican Grill Inc. v. Scott, Maryland v. Rogers, Retirement Plans Committee of IBM v. Jander, Bristol-Myers Squibb Co. v. New Mexico, ex rel. Balderas, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Snapchat discipline, sex offender registration, deportation proceedings and more, SCOTUSblog (Sep. 25, 2020, 3:30 PM), https://www.scotusblog.com/2020/09/petitions-of-the-week-snapchat-discipline-sex-offender-registration-deportation-proceedings-and-more/

Headlines from PoliticsPA

Billy Penn: Should legalizing pot come with reparations? Advocates say yes — and so does PA’s governor

KYW Newsradio: Philly is pulling kids out of residential facilities run by Devereux but won’t say why

Pennsylvania Capital-Star: Report: Pa. ranks 4th nationwide in human trafficking prosecutions | Tuesday Morning Coffee

KDKA: City Council Votes To Restrict Police Use Of Facial Recognition Technology 

September 30, 1927. Babe Ruth hit 60th home run in one season. Click for report from history.com

Supreme Court of Pennsylvania

In Re: First Judicial District Livestream Policy – No. 539 Judicial Administration 2020

In Re: Order Amending Case Records Public Access Policy of the Unified Judicial System – No. 538 Judicial Administration 2020

News Release: Drug delivery resulting in death charges in Pennsylvania

Click for news release.

October 30 is deadline to comment on proposed Criminal Rules concerning transfer from MDJ to CP

The information below is from Crisci Associates PA Capitol Digest

This week

The House is not in session.

The Senate is in session September 21, 22 and 23. The Senate Judiciary Committee meets September 21 to consider Senate Bill No. 1075 concerning sexual abuse of children. The Senate Judiciary Committee meets September 22 to consider the nominations of Magisterial District Judge Andrea Puppio for Judge Court of Common Pleas in Delaware County and Magisterial District Judge Christina E. Hale for Judge Court of Common Pleas in Schuylkill County.

Click for Pennsylvania Bulletin of September 19, 2020.

Headlines from PoliticsPA

WHYY Newsworks: ‘A deadly epidemic’: Philly Council pushes city to declare gun violence emergency

Inquirer: Pa. Supreme Court halts Philly criminal trials streamed on YouTube over possible harassment  

Inquirer: Philly City Council approves police reform measures, including banning choke holds 

Fox News: Judges lower bail for some Pennsylvania protesters charged with rioting

Fox News: Philadelphia Mayor Kenney weighing city council resolution to declare gun violence a citywide emergency

Pennsylvania Capital-Star: In Lancaster, criminal justice reform advocates say $1M bail was meant to ‘punish or deter’ protests

Patriot News: ‘The time to end prohibition against cannabis has come’; advocates call for action in Pa. on marijuana legalization

KDKA: Gov. Tom Wolf, Lt. Gov. John Fetterman Once Again Push For Recreational Marijuana Legalization 

KYW Newsradio: FOP president says City Council police reform measures have no teeth

AP: Lawsuit: Pennsylvania county jail punishes mentally ill

Patriot News: Pa. House panel explores police reforms, other issues facing law enforcement

Philadelphia Magazine: If Pennsylvania Is Going to Legalize Adult-Use Marijuana, This Is How It Should Be Done

AP: Legal advocates line up on both sides of Bill Cosby’s appeal 

https://www.themarshallproject.org/
THE BEST OF THE MARSHALL PROJECT

“I’m not sure I’ve figured out how to process and express my grief.” A child of the streets, Angel Alejandro served 21 years in prison for a crime he committed when he was 15 years old. For many years he figured he would never see his family again. Then a Supreme Court ruling gave him a new sentencing hearing, and he was freed and able to connect with those he had left behind. Except that shortly after his release the pandemic hit. He found out, too soon, how deadly the coronavirus can be as it took one family member after another. Here is the latest in our “Life Inside” series.

Byron Miller’s race against time. When the COVID-19 pandemic broke out, the virus quickly started to spread in jails and prisons. Then reporter Nicole Lewis began hearing from people who are incarcerated. The story of Byron Miller jumped out. Miller, a 53-year-old Black man, has served 24 years in prison for drug offenses. He suffers from hypertension and diabetes, and when Attorney General William Barr ordered the Justice Department to release eligible people behind bars, Miller hoped he would qualify to be sent to home confinement. Nothing went according to plan. In partnership with Reveal from The Center for Investigative Reporting, read or listen to the story of how one man waits for his ticket home.

The Sheriff’s Race Pitting Trump Against Black Lives Matter. In Brevard County, Florida, a race has emerged as a vivid example of how sheriff elections are becoming ground zero to test whether recent calls for law enforcement accountability resonate in parts of the country where President Trump’s vision of “law and order” is embodied by popular local officials. In collaboration with NBC News, Maurice Chammah looked into how sheriff’s races are turning into partisan flashpoints.

Over 125,000 prisoners now have tested positive for COVID-19. The rate of increase in the number of coronavirus positives inside state and federal prisons slowed slightly last week to 4 percent. But the number of prisoner deaths from the virus grew by 5 percent to 1,066. More than 27,600 prison employees across the country also have tested positive for COVID-19, a figure that almost certainly is an undercount. In collaboration with the Associated Press, here is our updated state-by-state tracker.

The U.S. Sentencing Commission may take a turn hard right. The Trump administration has moved in the past few months to fill five empty seats on the federal sentencing commission with mostly White male, tough-on-crime former law enforcement officials. Senate Republicans are reportedly planning to expedite their confirmation hearings before or right after the November election. Among Trump’s picks for the influential panel, which guides federal judges in determining fair sentences, is a federal judge and former prosecutor who critics dubbed Henry “Hang ‘em High” Hudson. In collaboration with The Guardian, Eli Hager has our story.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

This summer has seen a reckoning around the culture of police officers, but what about correctional officers? At the Riverfront Times, reporter Ryan Krull has pulled together a fascinating and troubling dossier of dysfunction in the Missouri Department of Corrections, where romantic partners get promoted, wardens spy on supposedly anonymous misconduct complaints, sexual harassment victims are punished by bosses, and whistleblowers use an “underground” publication to trade horror stories. It goes on and on. Krull smartly pivots to the financial cost of all the lawsuits the department faces, as Missouri taxpayers shell out millions in settlements. The dysfunction compounds staff shortages that make these facilities more dangerous for everyone, prisoners and officers alike. — Maurice Chammah

In Memory of RBG

https://www.oyez.org/justices/ruth_bader_ginsburg

Video from the Daily Mail.

September 24, 1789. Congress establishes Supreme Court of the United States. Click for report on history.com.

September 17, 1787. Constitution adopted by the Constitutional Convention in Philadelphia. Click for details from the Library of Congress.

SUPREME COURT OF PENNSYLVANIA

Kristen M. Gibbons Feden, Esquire reappointed to Criminal Procedural Rules Committee.

Drug delivery resulting in death (DDRD) charges statewide have increased by 356 percent between 2015 and 2019.

Click for news release from Administrative Office of Pennsylvania Courts.

The information below is from Crisci Associates PA Capitol Digest.

The House has scheduled voting days for September 15, 16 and 17. The House Judiciary Committee meets September 15 at 9:30 a.m. for public hearings on Police Training and Department Accreditation. The meeting will be in Room 140 Main Capitol Building.

The Senate has no scheduled voting days this week.

On Wednesday, September 9, the Senate passed the following bills, which were then sent to the House for consideration:

Senate Bill 530, which would establish a new Section 1318.1 (Students Convicted or Adjudicated Delinquent of Sexual Assault) of the Public School Code to provide for removal of a student convicted or adjudicated delinquent of sexual assault against another enrolled student. (50-0)

Senate Bill 968, which would consolidate certain functions, duties and powers of the Pennsylvania Department of Corrections and the Pennsylvania Board of Probation and Parole and provide for an independent Pennsylvania Parole Board. (49-1)

Senate Bill 1170, which would amend Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes providing for expert testimony in certain criminal proceedings relating to domestic violence. (50-0)

Click for September 12 edition of the Pennsylvania Bulletin

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THE BEST OF THE MARSHALL PROJECT

Counseling imprisoned clients helps heal a healer. Lizzie Fatseas is a clinical social worker at Central State Hospital in Petersburg, Virginia. COVID-19 has prevented her from making her usual Saturday rounds. Bad news for the prisoners who have come to rely on her to help steer them toward mental health. And bad news for Fatseas, whose own difficult life nearly laid her low. “I want my clients to know that someone cares about them. They deserve a clinician who is empathetic, present and authentic, despite their incarceration. Everyone does,” she writes in the latest installment of our “Life Inside” series.

COVID-19 now has killed at least 1,017 prisoners. And over 120,000 men and women behind bars have tested positive for the coronavirus inside federal and state prisons—a 5 percent increase over the past week. Over 26,000 prison employees also have tested positive for the virus but there have been only 75 reported deaths among prison staff, according to our updated tracker compiled in collaboration with the Associated Press.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

Motive, WBEZ Chicago’s true-crime podcast series, is back with a Season Three. This time, reporter Odette Yousef and producer Colin McNulty are tracing back the history of extremism groups in Chicago. They documented how a group of young, angsty neo-Nazi punk fans evolved into the white supremacist movement we know today. —Weihua Li

In August, 48 immigrants went on a hunger strike in a Louisiana detention center ​run by the prison company GEO Group. The hunger strikers are probably the most invisible immigrants in U.S. detention: undocumented Black people from Africa, many fleeing civil wars. According to Joe Penney inThe New Review of Books Daily, Black immigrants face longer detention time, higher bonds, greater risks of deportation and more solitary confinement than any other group. This includes Black immigrants from Haiti, who make up 44 percent of the families in ICE detention. “The truth is that what Black detainees undergo, what African detainees undergo, seems to be harsher than any other detainees,” said Patrice Lawrence, co-director of UndocuBlack, an organization that provides services to undocumented Black people in the US. “If they have any other intersection, if they are Muslim, or if they are queer, they receive harsher penalties from ICE.”Joseph Neff

Headlines from PoliticsPA

WHYY Newsworks: Former Obama AG Loretta Lynch to lead audit into child sexual abuse at Devereux  

KYW Newsradio: With Philadelphia criminal trials now being streamed on YouTube, many voice concerns 

Headlines from Crisci Associates

Philly Council Bill Would Make Racially Motivated 911 Calls a Crime

The information below is from Crisci Associates PA Capitol Digest.

This week

The House is not in session this week. The House returns to session on September. The Senate is in session on September 8 and 9.

The Pennsylvania Commission on Sentencing will meet on Thursday, September 10 at 9 a.m. for a policy meeting; followed by their quarterly meeting at 11 a.m. More information can be found here.

Click for Pennsylvania BulletinSeptember 5, 2020

Headlines from PoliticsPA

Patriot News: Legalized marijuana would raise hundreds of millions of dollars for Pa., Wolf and Fetterman say

Pennsylvania Capital-Star: House Repubs again snuff out Wolf’s calls for recreational cannabis legalization

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Meet the former prisoners fighting forest fires. The arrival of the coronavirus before the wildfire season in California deprived officials of the heroic services of prisoners who volunteer to fight fires for as little as $1 an hour. Since many incarcerated firefighters have been released from prison early to help limit the spread of COVID-19, the state is desperately short of help. Worse, shortsighted rules and prejudices have made it difficult for the formerly incarcerated to gain employment as first responders though they are trained for the job. Attitudes are changing, however. This week, legislators passed a measure to make it easier for these people to get jobs. In collaboration with Slate, Christie Thompson has our story.

There are over 115,000 COVID-19 cases inside America’s prisons after another 7 percent increase over the past week. At least 973 prisoners and at least 74 employees have died of coronavirus-related causes. In collaboration with the Associated Press here’s our updated state-by-state tracker.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

In 1977, Houston police murdered Joe Campos Torres and tossed his body into the Buffalo Bayou. The case became a pivotal moment in the city’s policing history and sparked a riot the following year. But only days after Torres’ corpse was pulled from the water, the body of a young Black man was also fished out of those waters. He was a budding journalist named Norman Grundy. Grundy wasn’t a victim of police violence, and his death attracted little attention at the time. Four decades later, retired Houston Chronicle reporter Mike Snyder has published a long-form investigation and meditation on his first Black friend’s life and death, and the way structural racism may have shaped it all. Take a few minutes to read it on Medium—and read all the way to the end. You won’t regret it. —Keri Blakinger

The Sheriff of Pasco County, Florida, pitched a vision for intelligence-led policing as something like “Moneyball” meets “Minority Report.” But a jaw-dropping investigation by one of my favorite dynamic duos, Kathleen McGrory and Neil Bedi for the Tampa Bay Times, shows how deputies ended up creating a de facto “naughty list” and using it to terrorize teens and their families. Deputies claimed data could help them determine where future crimes were likely to take place and who was likely to commit them—assigning scores to people who had interactions with police, and then enhancing those scores based on often arbitrary factors. Families were repeatedly harassed for offenses as small as not having numbers on their house, overgrown lawns, a broken-down car in the driveway or too many chickens in the yard. This investigation gives serious weight to the argument that algorithms used in criminal justice carry the biases of those who develop and use them. —Cary Aspinwall

Don’t count on going jail to get you clean. Morgan Godvin asked for a few days in jail in Oregon to help her overcome a setback she had while trying to get off heroin. She made sure to bring her Suboxone, a prescription for more of the medication and a doctor’s note explaining why she needed it to the jail. But once she was in custody, corrections officials refused to let her take the medicine, forcing her into a withdrawal and a serious relapse. “I just know that the jail had an opportunity to provide evidence-based care and they chose punishment instead,” she writes in the latest installment of our “Life Inside” series.

Good news to share. The Marshall Project is named a finalist for 10 Online Journalism Awards. “We are so proud and honored,” said Susan Chira, editor-in-chief.

September 9, 1850. California admitted to Union.

The information below is from Crisci Associates PA Capitol Digest.

The House will convene for a non-voting session day on Monday, August 31; and convene for voting session days on Tuesday, September 1 and Wednesday, September 2. The Senate is not scheduled to be in session this week.

Click for August 29 edition of the Pennsylvania Bulletin.

THE BEST OF THE MARSHALL PROJECT

More than 108,000 prisoners have tested positive for COVID-19, an increase of five percent over last week’s tally. At least 928 prisoners and 72 prison employees across the country have died of coronavirus-related causes. Over 24,000 employees have tested positive. In collaboration with the Associated Press, here is our updated tracker.

When you’re responsible for spinning news about the “Versailles of the East River.” For this week’s “Life Inside” series, we are re-running a classic from 2019. Robin Campbell worked in New York’s Department of Corrections from 2012 through 2015. He says the death of Jerome Murdough was a turning point in the public’s awareness of bad conditions at the Rikers Island jail. Murdough, a mentally ill veteran, “baked to death” in his hot cell. Campbell says the problems he saw were as much the responsibility of politicians as they were of guards.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

Qualified immunity has been a controversial legal doctrine. What was designed to protect public officials from civil lawsuits as long as they acted in good faith has been virtually shielding some law enforcement officers from being sued for police shootings. And the problem is worse in some parts of the country than others. Reuters reporter Andrew Chung and his colleagues analyzed hundreds of excessive force court cases from 2005 to 2019. They found that judges in the 5th U.S. Circuit Court of Appeals (think Louisiana, Mississippi and Texas) granted more than 60% of police requests for qualified immunity. By contrast, only 42% of such requests were successful in the 9th Circuit, which includes mostly West Coast states such as Oregon and California. — Weihua Li

The Marshall Project is looking for a product designer to join our growing team. And no, there is no such thing as an ideal candidate fresh off a cookie-cutter. To quote Elan Kiderman, our director of product, “We like complex people with unique backgrounds and a diverse set of strengths. You may be a print designer by training who pivoted to digital storytelling. You may be a creative technologist who enjoys dreaming up designs and also building them. You may be a journalist who parlayed their love of words into a passion for typography and information architecture.” To apply, send us your resume, cover letter and portfolio.

Headlines from PoliticsPa

Pennsylvania Capital-Star: Protesters call on Pa. Pardons Board to clear backlog of commutation requests

Morning Call: Gov. Wolf’s pitch to legalize marijuana to close coronavirus budget gap divides lawmakers: ‘Utterly irresponsible’ or ‘legitimate?’  

Pennsylvania Capital-Star: State Reps. aim to create a statewide system to ’empower victims of rape and sexual assault’ | Monday Morning Coffee

September 3, 1783. Treaty of Paris ends Revolutionary War. Get the details on history.com.

In Re: Order Amending Rule 2323 (physical exhibits) of the Pennsylvania Rules of Appellate Procedure – No. 289 Appellate Court Rules

The information below is from Crisci Associates PA Capitol Digest

The House and Senate are not in session this week. The House has announced its schedule for the fall: August 31 (non-voting); September 1, 2, 15, 16, 17, 29, 30; October 1, 19, 20, 21; November 10.

Click for Pennsylvania Bulletin for August 22, 2020

THE BEST OF THE MARSHALL PROJECT

Bad medicine. The unilateral power of child abuse pediatricians, whose evaluations and courtroom testimony on behalf of prosecutors often decide the fates of parents and their children, is highlighted in this riveting story about two families wrongly accused of child abuse. The pervasive use of these doctors raises questions about conflicts of interest because many of their salaries are paid, in part, by the child-welfare departments charged with separating parents and children. In collaboration with The Atlantic, Stephanie Clifford has our story, with additional reporting from me, Weihua Li.

The toll of COVID-19 among people of color. As many as 215,000 more people than usual have died in America this year, over half of whom are Black, Hispanic, Native American and, to a marked degree unrecognized until now, Asian American. The Marshall Project’s Anna Flagg and Damini Sharma looked into the numbers with The Associated Press’ Mike Stobbe and Larry Fenn. The tally indicates that the impact of COVID-19 is much higher than official statistics suggest and that the tragic burden is being borne disproportionately in communities of color. “Shows just how pervasive structural racism is,” says an expert.

COVID-19 cases in state and federal prisons rise another 7 percent. Outbreaks of the coronavirus in prisons in California, Hawaii, Arkansas and Oklahoma helped push the total number of prisoners who have contracted the virus past 102,000. At least 889 prisoners have died after testing positive. More than 22,500 prison staff also have tested positive, though testing is limited in many jurisdictions. In collaboration with The Associated Press, check out our latest numbers.

State prisons, very, very slowly, open up to visitors amid the pandemic. Sixteen prison systems continue to bar all prison visitation, 27 states have suspended normal visitation but allow visits from lawyers. Now nine states have resumed some forms of family visitation, according to our updated tracker of the impact of coronavirus on prisons.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

There are many tough truths in Talmon Joseph Smith’s piece for The New York Times Sunday Review on the lessons of Hurricane Katrina, 15 years later. The failures of the government to properly plan for and respond to a large-scale disaster, the disparities among those who suffered the most during the storm and how those inequalities continued throughout the recovery. I grew up part of my life on Lake Pontchartrain. Though I lived several states away when the horrors of 2005 unfolded, I remembered watching old science documentaries back when I was in school in Louisiana in the 1990s that clearly laid out the potential disaster for New Orleans if such a hurricane landed on top of it. Our government knew the risk and didn’t do enough (some eerie parallels to our current national predicament). The feeling Smith describes leaving the city on an airplane, flying over the wetlands—it’s a gut punch. —Cary Aspinwall

Headlines from Crisci Associates

Third Naloxone Standing Order Allows Naloxone to be Obtained by Mail

Virtual Pardons and Commutations Hearings for Board of Pardons in September

Philly’s Next Managing Director Vows to Combat Violence

August 26, 1939. First major league baseball game is televised.

Click for details from history.com

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