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

The House and Senate return to session on February 27.

Recently Introduced Bills

Senator Camera Bartolatta (R-Beaver, Greene, Washington) has introduced Senate Bill 197 which would amend the Constitution to change the requirement of a unanimous vote to a four-fifths vote of the Board of Pardons to recommend a pardon for a life sentence or a death sentence.  Click for Co-Sponsorship Memoranda.  The bill was referred to the Senate Judiciary Committee.

Senator Camera Bartolotta (R-Beaver, Greene, Washington) has introduced Senate Bill 175, which would establish a Prison Industry Enhancement Authority..  The bill would permit joint ventures between prisons and private industry.  Click for Co-Sponsorship Memorandum.  The bill was referred to  the Senate Judiciary Committee.

Senator Wayne Langerholc, Jr. (R-Cambria, Centre, Clearfield) has introduced Senate Bill 113 concerning hate crimes against law enforcement officers and first responders.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.  

Senator Patrick J. Stefano (R-Bedford, Fayette, Somerset, Westmoreland) has introduced Senate Bill 110 which would expand the meaning of “dwelling” for purposes of the castle doctrine.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator Katie Muth (D-Berks, Chester, Montgomery)  to has introduced Senate Bill 88  to expand post conviction relief to victims of human trafficking.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator Michele Brooks (R-Crawford, Lawrence, Mercer) has introduced Senate Bill 87 which would extend the statute of limitations to five years for drug delivery resulting in death.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 78 which would raise the grading of false reports of criminal activity based soley on the race or ethnicity to a misdemeanor of the first degree.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.    

Senator Tina Tartaglione (D-Philadelphia) has introduced Senate Bill 73 concerning aggravated assault on an employee of a public transportation entity.  Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.  

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 68 providing for community service for persons convicted of misrepresenting their age to purchase alcoholic beverages.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 66 providing for adoption of a statewide model policy related to the prevention of excessive force by law enforcement officers and school security personnel.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Law and Justice Committee.

Senator Art Haywood (D-Montgomery, Philadelphia) has introduced Senate Bill 65 providing for licenses to be eligible to purchase firearms.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senate Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 60 providing for uniform background checks for the purchase of firearms. Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 59 providing for the establishment and funding of a center to conduct research on gun violence in Pennsylvania.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate State Government Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 57 providing for additional disqualifications for criminal convictions to the Uniform Firearms Act.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 56 providing for a firearms safety or training course as a requirement to obtain a concealed carry permit.  Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 53 providing for the offense of possession of a firearm in a public recreation area. Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 48 and Senate Bill 49 concerning 3-D printed firearms and undetectable firearms.  Click for Co-Sponsorship Memorandum. The bills were referred to the Senate Judiciary Committee.

Co-Sponsorship Memoranda

Legalizing Esport Betting by Representative Ed Neilson (D-Philadelphia)

Improving Our Juvenile Act by Representatives Dan L. Miller (D-Allegheny), Jordan A. Harris (D-Philadelphia) and Mike Zabel (D-Delaware)

Firearm Safety Training Requirements by Representatives Stephen Kinsey (D-Philadelphia) and Darisha K. Parker (D-Philadelphia)

Statewide Gun Buyback Program by Representative Jose Giral (D-Philadelphia)

The Evidence Based Juvenile Justice Policy Act by Senators Camera Bartolatta (R-Beaver, Greene, Washington) and Anthony H. Williams (D-Delaware, Philadelphia.

Eliminating Direct File/Transfer of Juveniles by Senators Camera Bartolatta (R-Beaver, Greene, Washington), Anthony H. Williams (D-Delaware, Philadelphia), and Vincent J. Hughes (D-Montgomery, Philadelphia)

DUI Offender Reform Legislation by Senators Kristin Phillips-Hill (R-York) and Wayne Langerholc, Jr. (R-Cambria, Centre, Clearfield)

Death in Custody Reporting Act by Senator Amanda Cappalletti (D-Delaware, Montgomery)

Source:  Website of the Pennsylvania General Assembly

Click for Pennsylvania Bulletin for January 28, 2023

A “DIG” on attorney-client privilege. Why the Court decided not to decide in In Re Grand Jury

By Stephen Gillers, SCOTUSblog, January 25, 2023

After the oral argument in In re Grand Jury, the smart money would have predicted either that the court would affirm the U.S. Court of Appeals for the 9th Circuit or dismiss the case as improvidently granted. On Monday, it dismissed. In fact, one might be left wondering why the court agreed to hear the case in the first place. Yet the dismissal – known as a “DIG” – does not mean that the court has lost interest in the issue raised, only that the facts of the case were not the right vehicle for exploring it.

The case invited the court to answer a simple but recurrent question: When a client confers with a lawyer and receives both legal and nonlegal advice, and the nonlegal advice cannot be disentangled from the legal advice, does the attorney-client privilege protect all of the advice or none of it? State and federal courts for decades have said that the answer depends on whether the legal advice was the client’s primary purpose for consulting a lawyer.

Trial judges, who have to make these decisions in the first instance, do not seem to have protested that they are too hard. But the petitioner in this case – an unnamed law firm that was challenging a federal grand jury’s subpoena for client communications – argued they were both hard and unpredictable. For the privilege to do its job, the law firm argued, predictability is necessary.

The law firm first urged that the primary-purpose test should be replaced by asking if legal advice was a client’s “significant purpose” for the consultation. But that test also carries an unpredictability risk. So in its reply brief and at oral argument, the law firm modified its test to ask whether legal advice was a “bona fide” purpose, presumably even if not a significant one, for consulting counsel. Justice Elena Kagan correctly characterized the law firm’s position as “a big ask.” One might also call it a solution in search of a problem.

Either of the law firm’s substitute tests would have expanded the reach of the privilege, which explains why 13 amicus briefs from lawyer and business organizations, including the American Bar Association and the Chamber of Commerce, supported the law firm. It is they, not small clients, who would benefit from an expanded privilege. No amicus briefs supported the government, which urged the court to retain the primary-purpose test.

The court’s questions did not reveal a left/right division. This is likely because unlike much of the court’s business these days, the attorney-client privilege is not politically or socially controversial. It is what we might call a “lawyer’s issue,” about the profession itself, and the justices’ experience in law practice varies.

Questions from the bench showed no ideological split. Rather, they revealed concern over the scope of secrecy that would ensue if either of the law firm’s proposed tests were adopted. Informally, this may be labeled “the lawyer in the room” problem. Can a client ensure privilege protection for communications that standing alone would not be privileged through the expediency of including a lawyer in the conversation, no matter how modest his or her contribution to a solution of the question on the table? Such an answer would favor clients wealthy enough to add a lawyer to the room. And it would give law firms more business.

Chief Justice John Roberts asked about an accountant who completes a complicated tax form. His work would not be privileged. But then the form is shown to a lawyer who identifies three items that are “kind of iffy” and bills $200,000. Would it all then be privileged? “To me,” Daniel Levin, the law firm’s counsel, replied, “that’s … clearly privileged,” which prompted Justice Clarence Thomas to ask: “Is there any non-trivial role that a lawyer plays in the example the chief gave that doesn’t meet your test?”

Only if the lawyer’s task “would be mechanical tax prep,” Levin said.

An exchange with Justice Ketanji Brown Jackson led to an unforced error. Jackson described a meeting that everyone agrees is over “a business decision … but the lawyer [in the room] adds a point. And you say, as long as it’s a legitimate point, that is good enough to require that the entire thing be privileged. … Why shouldn’t I worry that using your test now, we are going from one extreme to the other?”

Levin replied “I don’t think that’s going to happen” and noted that it had not happened in the case now before the court. But Jackson observed that the case arose under the rule that Levin was asking the court to displace.

The absence of the kind of disagreements we have become accustomed to see from the justices leaves one to wonder why the court did not simply write an opinion affirming the 9th Circuit. This is where the decision dismissing the appeal may carry future implications. The easy explanation is that the record, much of it shrouded in grand-jury secrecy, was not the right vehicle to permit the court to address the weighty question presented, whatever the answer. That is, there were not enough public-record facts to avoid an abstract treatment of the question. The more abstract, the less helpful to trial judges.

But there is another explanation. It is that a majority of the court wants to save the issue for a case whose public facts permit a serious evaluation of a question whose answer can expand secrecy and greatly affect the administration of justice. In other words, don’t read anything about the justices’ views into the dismissal. After all, they took the case in the first place, which signals an interest in the subject. They may simply have misread the case as cert-worthy.

A reversal could have led to denying the government documents relevant to its investigation of a grand-jury target even though those documents would not have been privileged but for the fact that the target’s consultation with counsel included incidental legal advice. What the dismissal tells us is that the court was not prepared to say, at this point and on this record, whether that would have been a just result in light of “reason and experience,” which is the standard in Federal Rule of Evidence 501 for defining privileges.

Recommended Citation: Stephen Gillers, A “DIG” on attorney-client privilege: Why the court decided not to decide In re Grand Jury, SCOTUSblog (Jan. 25, 2023, 9:30 AM), https://www.scotusblog.com/2023/01/a-dig-on-attorney-client-privilege-why-the-court-decided-not-to-decide-in-re-grand-jury/

January 31, 1948. Funeral of Mahatma Gandhi. Click for audio from BBC Witness. (Photo BBC Witness).

Governor nominates Michelle Henry for Attorney General

Honorable Michelle Henry

Click for Governor’s news release.

The Senate returns to session on February 27.

Co-Sponsorship Memoranda

Statewide Gun Buyback Program by Repesentative Jose Giral (D-Philadelphia)

The Evidence Based Juvenile Justice Policy Act by Senators Camera Bartolatta (R-Beaver, Greene, Washington) and Anthony H. Williams (D-Delaware, Philadelphia.

Eliminating Direct File/Transfer of Juveniles by Senators Camera Bartolatta (R-Beaver, Greene, Washington), Anthony H. Williams (D-Delaware, Philadelphia), and Vincent J. Hughes (D-Montgomery, Philadelphia)

DUI Offender Reform Legislation by Senators Kristin Phillips-Hill (R-York) and Wayne Langerholc, Jr. (R-Cambria, Centre, Clearfield)

New Legislation

Senator Camera Bartolatta (R-Beaver, Greene, Washington) has introduced Senate Bill 197 which would amend the Constitution to change the requirement of a unanimous vote to a four-fifths vote of the Board of Pardons to recommend a pardon for a life senence or a death sentence. Click for Co-Sponsorship Memoranda. The bill was referred to the Senate Judiciary Committee.

Senator Wayne Langerholc, Jr. (R-Cambria, Centre, Clearfield) has introduced Senate Bill 159 concerning unathorized use of an electronic tracking device. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Wayne Langerholc, Jr. (R-Cambria, Centre, Clearfield) has introduced Senate Bill 113 concerning hate crimes against law enforcement officers and first responders. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Patrick J. Stefano (R-Bedford, Fayette, Somerset, Westmoreland) has introduced Senate Bill 110 which would expand the meaning of “dwelling” for purposes of the castle doctrine. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Katie Muth (D-Berks, Chester, Montgomery) to has introduced Senate Bill 88 to expand post conviction relief to victims of human trafficking. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Michele Brooks (R-Crawford, Lawrence, Mercer) has introduced Senate Bill 87 which would extend the statute of limitations to five years for drug delivery resulting in death. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 78 which would raise the grading of false reports of criminal activity based soley on the race or ethnicity to a misdemeanor of the first degree. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Tina Tartaglione (D-Philadelphia) has introduced Senate Bill 73 concerning aggravated assault on an employee of a public transportation entity. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 68 providing for community service for persons convicted of misrepresenting their age to purchase alcoholic beverages. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 66 providing for adoption of a statewide model policy related to the prevention of excessive force by law enforcement officers and school security personnel. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Law and Justice Committee.

Senator Art Haywood (D-Montgomery, Philadelphia) has introduced Senate Bill 65 providing for licenses to be eligible to purchase firearms. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senate Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 60 providing for uniform background checks for the purchase of firearms. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 59 providing for the establishment and funding of a center to conduct research on gun violence in Pennsylvania. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate State Government Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 57 providing for additional disqualifications for criminal convictions to the Uniform Firearms Act. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 56 providing for a firearms safety or training course as a requirement to obtain a concealed carry permit. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 53 providing for the offense of possession of a firearm in a public recreation area. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 49 concerning 3-D printed firearms and undetectable firearms. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Senator Vincent J. Hughes (D-Montgomery, Philadelphia) has introduced Senate Bill 48 concerning 3-D printed firearms and undetectable firearms. Click for Co-Sponsorship Memorandum. The bill was referred to the Senate Judiciary Committee.

Note: Senate Bills 48 and 49 are separate bills.\

Pennsylvania Supreme Court rules on private criminal complaint

Click for Majority Opinion by Justice P. Kevin Brobson

Click for Concurring Opinion by Justice Kevin Dougherty

Click for Concurring and Dissenting Opinion by Justice David Wecht

Elizabeth Blackwell

Photo: Bettmann/Getty Images

January 23, 1849. Elizabeth Blackwell becomes the first woman to receive a medical degree. Click for report on history.com

Honoring Dr. Martin Luther King

Click for Memorandum Opinion of the Commonwealth Court on the impeachment of District Attorney Larry Krasner

The Governor and Lieutenant Governor will be sworn in on January 17.

The Senate will be in session on January 17 and 18.

Tina O. Miller, Esquire appointed to Criminal Procedural Rules Committee. Click for Order.

Commonwealth v. Capriotti. Supreme Court discusses “silver platter doctrine.”

Click for Order

Click for Dissenting Statement by Justice Christine Donohue

Click for Dissenting Statement by Justice David Wecht

January 31 is deadline to apply for Supreme Court Committees

Board of Law Examiners

Applicants must be members of the Pennsylvania bar or jurists. In addition, applicants should be knowledgeable about law school curriculum, legal practice and attorney ethical obligations. Law school faculty may not serve on this Board. Additionally, applicants should not apply for a membership position if, during that position’s term of service, they will have immediate family members who will be taking the bar examination or seeking membership in the Pennsylvania bar. more information

Juvenile Court Procedural Rules Committee

Applicants should be knowledgeable about the Pennsylvania Rules of Juvenile Court Procedure and experienced in juvenile law practice in Pennsylvania, including dependency and delinquency matters. more information

Lawyers Fund for Client Security

Lawyer applicants should be knowledgeable about the practice of federal or state law in Pennsylvania and about a lawyer’s duties to clients. Non-lawyer applicants should have an interest in supporting public trust and confidence in the legal profession. more information

Click for Pennsylvania Bulletin for January 14, 2023.

January 19, 1809. Edgar Allan Poe born in Boston. Click for Edgar Allan Poe National Historic Site near 7th and Callowhill Streets in Philadelphia.

Governor Wolf has called for a Special Session of the General Assembly to consider a proposed Constitutional Amendment to retroactively extend the timeline for victims of child sexual abuse to file civil suits. If passed by January 27, the proposed Amendment would appear on the ballot in the May primary election. Click for Governor’s news release. Click for text of proposed Constitutional Amendment. The Special Session begins January 9.

The House and Senate will be in session on January 9, 10 and 11.

Representative Jared G. Solomon (D-Philadelphia) is circulating a Co-Sponsorship Memorandum concerning a Gun Violence Task Force. Senator Timothy P. Kearney (D-Delaware) is circulating a Co-Sponsorship Memorandum concerning Removing Industrial Hemp from Pennsylvania’s Schedule of Controlled Substances.

Click for Pennsylvania Bulletin for January 7, 2022.

Sources: Website of Pennsylvania General Assembly, Website of the Governor. Dentons, Cohen & Grigsby’s Weekly Recap.

U.S. Supreme Court will mull scope of attorney-client privilege when lawyers give both legal and nonlegal advice.

By STEPHEN GILLERS, SCOTUSblog, January 5, 2023.

A lawyer’s legal advice is privileged. A court cannot order the lawyer or the client to disclose it. But a lawyer’s nonlegal advice is not privileged. What happens when advice is partly legal and partly nonlegal and the two parts cannot be untangled? In such dual-purpose situations, does the privilege protect all the advice or none of it?

On Monday, the Supreme Court will hear opposing answers to that question in a case known as In re Grand Jury. A law firm will argue that the privilege should protect all client communications “where obtaining or providing legal advice was one of the significant purposes behind the communication,” even if nonlegal advice predominated. The United States will argue that unless legal advice was the client’s “primary” purpose, none of the dual-purpose communications should be privileged.

The difference between “significant” and “primary” may seem trivial, a question for a thesaurus, not a court. But much will turn on the Supreme Court’s decision. A significant-purpose test will expand the reach of the privilege and therefore secrecy, which may explain why lawyer and business groups, including the American Bar Association and the Chamber of Commerce, filed 13 amicus briefs favoring the law firm. Victory for the law firm, it should be noted, will give lawyers a competitive advantage over nonlawyers who offer the same advice.

A person, whose identity is not publicly known, wished to expatriate, apparently for tax reasons. It’s not easy to expatriate. Legal issues, including over tax liabilities, must be resolved before the United States will agree. So the person or a company he owned hired a law firm, whose identity is also not publicly known, for advice.  

The United States suspected criminal activity by the owner of the company. It convened a grand jury, which subpoenaed records related to the law firm’s work. The law firm produced more than 1,700 documents but claimed that others were privileged. The district court applied the primary-purpose test and ordered the law firm to produce “fewer than 54 documents.” When it refused, the court held it in contempt. The U.S. Court of Appeals for the 9th Circuit affirmed and the firm appealed to the Supreme Court.

Two public policies clash in the law firm’s appeal. On one hand, a broad privilege can be used to conceal information that, if known, would prevent or correct an injustice or protect the public from harm. Some industries – the government names tobacco and pharmaceuticals as examples – have sought to use the privilege to conceal dangers of their products or their operations. A significant-purpose test, the government fears, will only encourage that strategy. Companies will regularly copy lawyers on sensitive communications “in hopes of gaining a privilege protection for communications that would otherwise not be privileged.”

For its part, the law firm correctly points out that the privilege does not protect the information in a communication between a lawyer and client. It only protects the communication itself. The government remains free to seek the same information from other sources. But this assumes that the information is available elsewhere.

The law firm reminds the court of the reason for the privilege in the first place. “By assuring confidentiality,” the court wrote in 2009, “the privilege encourages clients to make ‘full and frank’ disclosures to their attorneys, who are then better able to provide candid advice and effective representation. This, in turn, serves ‘broader public interests in the observance of law and administration of justice.’” In the absence of empirical studies either way, American courts accept these predictions as intuitively likely.

Building on that intuition, the law firm argues that for the privilege to do its work it must be predictable. Clients will not, it says, be forthcoming with their lawyers if they lack confidence that their communications will be protected. The primary-purpose test, the law firm argues, cannot provide that confidence because a court will determine a client’s primary purpose retrospectively, after the client has already given her lawyer the information she wants to protect, at which time it may be too late. By rejecting a privilege claim “whenever a court later makes an ad hoc judgment that the nonlegal purpose outweighs the legal purpose,” the firm says, the primary-purpose test “undermines” the privilege. By contrast, if a client’s significant purpose in consulting a lawyer is to get legal advice, it can be assured that all of its communications will be privileged, including nonlegal advice that cannot be segregated.

That, however, is precisely what most troubles the government, whose primary-purpose test avoids “sweeping in communications predominantly about a nonlegal matter, like business development, accounting, or filling out a tax form.” In this very case, the government says, the “vast majority of the documents in dispute are communications” between the client and a non-lawyer accountant employed by the law firm to prepare tax returns. Tax-return preparation is a nonlegal service that by itself carries no privilege even if performed by a lawyer.

The government also questions the law firm’s claim that a significant-purpose test offers greater predictability. It cites two dictionaries to argue that the word “significant” is “amorphous” and points out that the law firm’s “own amici offer a panoply of definitions.” By contrast, it adds, the “overwhelming majority of lower courts and other legal authorities” apply the primary-purpose test, which has proved workable for decades.   

The law firm says correctly that the court has regularly refused to “balance” interests served by the privilege against other interests. The privilege always wins. The law firm argues that the primary-purpose test is a balancing test and that the balance here should protect the privilege. But the law firm may have misread the precedent. The court has refused to balance interests once the communications at issue are found to be privileged. The antecedent question now before the court, however, is whether the communications are privileged at all.  

Complicating the question of predictability is how a judge would go about identifying whether legal advice was in fact a client’s significant purpose. Is the client’s claim conclusive? Or is there some objective test that a judge will later apply if and when the issue arises, and if so, what is it? The law firm does not say. An objective test would seem to be necessary so clients do not get to rule on their own claims. But then, says the government, the court will need “to discern a solely historical fact” retrospectively anyway, which weakens the law firm’s argument that its test offers superior predictability.

Each party argues that its rule will be easier to administer. It may be that neither will be easier across the run of cases or that differences will be marginal. Or it may be that ease of administration should be subordinate to the importance of choosing a test that best protects the goals and limits of the privilege.

The law firm’s strongest argument may be that a client should not have to sacrifice admittedly privileged communications simply because, as it happens, these get “inextricably intertwined” with some nonlegal advice. For its part, the government would reject the words “as it happens” and “some. ” If the firm prevails, clients and lawyers will be able to use the presence of legal advice to protect unlimited nonlegal communications. Educated by counsel, some clients may adopt strategies to do just that.

Clients can also respond strategically to protect their interests under the primary-purpose test. They can take care to segregate legal advice from a law firm’s other advice or they can at least keep the legal advice primary. The court might ask counsel to explain why the client did not take that precaution in this very case.

The question at the heart of this appeal has long confronted American law: Does recognition of a particular privilege and its scope outweigh the social costs of secrecy? The significant-purpose test would certainly increase secrecy, including in this case. In return, the firm insists, it will also increase client disclosures, observance of law, and the administration of justice. The government disagrees. It anticipates that the increased secrecy will cause harm with no compensating benefits. Although each party is making an empirical prediction, the court, lacking empirical proof, must rely instead on “reason and experience,” which is what the federal evidence rules instruct.

Recommended Citation: Stephen Gillers, Court will mull scope of attorney-client privilege when lawyers give both legal and nonlegal advice, SCOTUSblog (Jan. 5, 2023, 9:55 AM), https://www.scotusblog.com/2023/01/court-will-mull-scope-of-attorney-client-privilege-when-lawyers-give-both-legal-and-nonlegal-advice/

January 9, 1788. Connecticut becomes sixth state to ratify the Constitution. Pboto: Connecticut Capitol Building, connecticuthistory.org

Commonwealth Court order backs District Attorney Krasner on impeachment challenge.

Click for report from Pittsburgh Post-Gazette dated December 31, 2022.

January 3: The House and Senate are scheduled to be sworn in.

January 17: The Governor is scheduled to be sworn in.

January 18: The Senate is scheduled to begin the impeachment trial of District Attorney Larry Krasner.

Click for Pennsylvania Bulletin for December 31, 2022.

Co-Sponsorship Memoranda

Updating Provisions Relating to State System of Higher Education Campus Police Officers by Representative Clint Owlett (R-Tioga, Bradford)

Victim Compensation Property Damage by Representative Darisha K. Parker (D-Philadelphia)

Raising the Minimum Age to Purchase and Possess a Firearm to 21 by Representative Darisha K. Parker (D-Philadelphia)

Destruction of Right to Know Documents Criminal Offense by Senator Cris Dush (R-Cameron, Centre, Clinton,
Elk, Jefferson, Mckean, Potter)

Constituional Carry of a Firearm by Senator Cris Dush (R-Cameron, Centre, Clinton, Elk, Jefferson, McKean, Potter)

SCOTUSblog: Petitions of the Week by Kalvis Golde

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In June 2021, the Supreme Court issued an unsigned decision instructing the U.S. Court of Appeals for the 8th Circuit to reconsider whether police in St. Louis, Missouri, used unconstitutionally excessive force when they knelt on the back of Nicholas Gilbert for 15 minutes until he suffocated. This week, we highlight cert petitions that ask the court to consider, among other things, whether the 8th Circuit ignored that decision in granting qualified immunity to the officers.

Gilbert was arrested in 2015. After he allegedly suffered a mental-health crisis and tried to harm himself in jail, multiple officers entered his cell to subdue him. When Gilbert resisted violently, the officers handcuffed his hands and legs and restrained him on his stomach on the ground – known as a “prone restraint.” The officers continued applying pressure against Gilbert’s back while he struggled and audibly asked the officers to stop because he was in pain. After 15 minutes, Gilbert stopped breathing.

His parents sued the city, arguing that the officers had used excessive force against their son in violation of the Constitution. The district court ruled for the officers, and the 8th Circuit affirmed. Police did not use excessive force, the appeals court concluded, because under circuit precedent a prone restraint is not “objectively unreasonable when a detainee actively resists” – in this case, Gilbert’s initial thrashing and his continued efforts to lift his chest to breathe.

Gilbert’s parents appealed to the Supreme Court, which ruled for them in part. The “objectively unreasonable” test for excessive force is contextual and fact-specific, the justices held. They sent the case back with instructions to consider a few significant facts: that police had already handcuffed Gilbert’s arms and shackled his legs before restraining him, that they knelt on him for so long, and that they chose the prone restraint despite city and nationwide guidance against its use on someone in handcuffs because of the risk of suffocation.

On remand, the 8th Circuit again ruled for the officers. Rather than perform the requested factual analysis, the court granted the officers qualified immunity because – in light of a newer circuit ruling and the “lack of robust consensus” to the contrary – it found there was no clearly established constitutional right for a person resisting police restraint to be free of force against their back.

In Lombardo v. City of St. Louis, Missouri, Gilbert’s parents ask the justices to take up their son’s case once more. They argue that the 8th Circuit defies a mounting consensus among other circuits that similar police force is excessive in violation of a clearly established right. A decision from the Supreme Court would settle not only their son’s case, they insist, but also countless others throughout the 8th Circuit – stretching, they note, from Ferguson, Missouri, to Minneapolis, Minnesota, the hometowns of Michael Brown and George Floyd.

A list of this week’s featured petitions is below:

Chestnut v. Allen
22-490
Issue: Whether the U.S. Court of Appeals for the 4th Circuit violated 28 U.S.C. § 2254(d) limitations and needlessly overturned a state death sentence on an insubstantial premise that respondent’s mental health evidence was not afforded “meaningful consideration and effect” when the judge stated at sentencing that he had considered all the mental health evidence but did not explicitly reference respondent’s eating disorder.

Alonzo v. Schwab
22-501
Issue: Whether the 14th Amendment prohibits intentional racial discrimination in redistricting where the minority voters discriminated against are not sufficiently numerous to form a majority of eligible voters in a single-member district.

Spring Valley Produce v. Forrest
22-502
Issue: Whether a debtor in bankruptcy may discharge liability for unlawfully violating a nonsegregated statutory trust.

Lombardo v. City of St. Louis, Missouri
22-510
Issue: Whether, when officers put a handcuffed and shackled person face-down on the floor and pushed into his back until he died, they are they entitled to qualified immunity as a matter of law because the person struggled to breathe before dying.

Geddes v. Webber County, Utah
22-513
Issues: (1) Whether the test of objective reasonableness applicable to a claim of excessive force enunciated by the court in Kingsley v. Hendrickson (decided under the 14th Amendment) is the same standard as the test of objective reasonableness enunciated by the court in Graham v. Connor (decided under the Fourth Amendment) as applied to the specific circumstances presented in the context of an individual being held in a detention facility; and (2) whether, under Kingsley, the protections afforded by the Fourth Amendment against use of objectively unreasonable force end and those afforded by the 14th Amendment begin no later than the point at which custody has been relinquished by an arresting officer to a detention facility.

Recommended Citation: Kalvis Golde, Parents of St. Louis man killed in police custody return to the court, SCOTUSblog (Dec. 30, 2022, 2:36 PM), https://www.scotusblog.com/2022/12/parents-of-st-louis-man-killed-in-police-custody-return-to-the-court/

https://www.patsyminkfoundation.org/

January 4, 1964: Patsy T. Mink sworn in as first Asian American woman and woman of color in Congress

Click for report from history.com

January 3: The House and Senate are scheduled to be sworn in.

January 17: The Governor is scheduled to be sworn in.

January 18: The Senate is scheduled to begin the impeachment trial of District Attorney Larry Krasner.

Click for Pennsylvania Bulletin for December 24, 2022.

Senator Jay Costa (D-Allegheny) is circulating a Co-Sponsorship Memorandum entitled Inclusion of the Judiciary Under the Whistleblower Act. Senators Katie J. Muth (D-Berks, Chester, Montgomery), Carolyn T. Comita (D-Chester) and Judith L. Schwank (D-Berks) are circulating a Co-Sponsorship Memorandum entitled Firearms Safety Training.

SCOTUSBlog: PETITIONS OF THE WEEK by Kalvis Goldie

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The Sixth Amendment gives anyone standing trial the right “to be confronted with the witnesses against” them. In January, the justices held that a New York court violated the confrontation clause when it upheld a homicide conviction although the jury had heard an incriminating statement from a co-defendant who did not testify and could not be cross-examined. This week, we highlight cert petitions that ask the court to consider, among other things, whether the admission of that statement was nevertheless “harmless.”

In 2006, a child in New York City was killed by a stray bullet from a 9-millimeter handgun after a fight broke out on the street. Seven years later, the state charged Darrell Hemphill with firing the fatal shot.

At trial, Hemphill relied on evidence pointing to Nicholas Morris, whom New York had failed to convict for the crime years beforehand, as the shooter: eye-witness testimony identifying Morris as the shooter at the fight, and the discovery by police of 9-millimeter ammunition in Morris’ nightstand. In response, the state introduced its own evidence. It put Hemphill’s cousin on the stand, who as part of a plea deal for a reduced sentence testified that the 9-millimeter present at the scene rested in Hemphill’s hands, and that Morris was holding a .357-magnum revolver. And, over Hemphill’s objection, it introduced a prior statement from Morris admitting as part of his own plea deal that he did, in fact, have a gun at the scene: a .357-magnum.

On appeal, Hemphill argued that admitting Morris’ out-of-court statement violated his Sixth Amendment rights because Morris was stuck in Barbados and unable to return to New York in order to be cross-examined. The state appeals court disagreed. By pointing the finger at Morris, the court concluded, Hemphill had “opened the door” to evidence rebutting that claim.

By a vote of 8-1, the Supreme Court overruled that decision earlier this year. Holding that the use of an out-of-court statement by a witness unavailable for cross-examination violates the confrontation clause, the justices sent the case back to the New York appeals court to evaluate whether Morris’ statement impacted the jury’s decision.

The appeals court concluded that it did not. Because there was “other, overwhelming evidence” that Hemphill was the shooter, including the testimony from his cousin, the appeals court held that the admission of Morris’ statement was harmless and upheld the conviction.

In Hemphill v. New York, Hemphill asks the justices to overrule the New York appeals court for a second time in his case, this time on the harmless-error question. The admitted statement not only undermined his own primary strategy at trial of pointing the finger at Morris, Hemphill argues, but also supported the state’s primary strategy by corroborating the testimony of its key witness. Hemphill contends that maintaining the jury’s verdict against him would flout both the Constitution and also the justices’ prior ruling in his case.

A list of this week’s featured petitions in below:

Huffman v. Harris
22-474
Issues: (1) Whether the U.S. Court of Appeals for the 5th Circuit erred in finding that the due process clause of the 14th Amendment imposes an obligation on county sheriffs to release a dangerous schizophrenic inmate whose criminal charges remained pending and whose court proceedings were stalled, and then denying qualified immunity in the absence of clearly established law; and (2) whether the 5th Circuit erred in imposing an obligation on jailers to inquire as to the status of an inmate’s court proceedings without providing any guidance or parameters for compliance.

Moore v. United States
22-481
Issue: Whether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search.

Pierluisi v. Financial Oversight and Management Board for Puerto Rico
22-484
Issues: (1) What standard of review governs a district court’s evaluation of the Financial Oversight and Management Board for Puerto Rico’s determination that Puerto Rican legislation “would impair or defeat the purposes of” the Puerto Rico Oversight, Management, and Economic Stability Act and its review of that legislation for consistency with the fiscal plan; (2) whether this standard of review requires the Board to reasonably and contemporaneously explain its decisions without relying on post-hoc justifications; and (3) whether the court of appeals erred in affirming the Title III Court’s holding that the Board’s determinations regarding Puerto Rican Acts 47, 82, 138, and 176 were not arbitrary and capricious.

Hemphill v. New York
22-488
Issue: Whether the improper admission of the out-of-court statement by the alternative suspect in Hemphill v. New York was “so unimportant and insignificant” as to be harmless under Chapman v. California.

Posted in FeaturedCases in the Pipeline

Cases: Hemphill v. New YorkHuffman v. HarrisMoore v. United StatesPierluisi v. Financial Oversight and Management Board for Puerto Rico

Recommended Citation: Kalvis Golde, Incriminating statement in New York shooting reaches the court for a second time, SCOTUSblog (Dec. 17, 2022, 10:48 AM), https://www.scotusblog.com/2022/12/incriminating-statement-in-new-york-shooting-reaches-the-court-for-a-second-time/

https://www.dailymail.co.uk/

December 29, 1170. Archbishop Thomas Becket is murdered. Click for report from history.com.

January 3: The House and Senate are scheduled to be sworn in.

January 17: The Governor is scheduled to be sworn in.

January 18: The Senate is scheduled to begin the impeachment trial of District Attorney Larry Krasner.

Click for Pennsylvania Bulletin for December 17, 2022.

January 25 is deadline to comment on proposed rules on investigating grand juries.

Click for Notice of Proposed Rulemaking.

PCRA and appellate attorney Sondra R. Rodrigues dies. She helped exonerate Anthony Wright in 2016 after he served 25 years in prison and ensured proper medical treatment for Pennsylvania inmates suffering from hepatitis C in the 1990s.

Ms. Rodrigues was able to relate to young people and those in need in both her personal and professional life.

Ms. Rodrigues was able to relate to young people and those in need in both her personal and professional life. Courtesy of the family

Click for full obituary from the Philadelphia Inquirer.

SCOTUSblog: Justices grant review in two criminal cases and a securities lawsuit against Slack

By AMY HOWE, December 13, 2022.

The Supreme Court on Tuesday morning added three new cases to its merits docket for the 2022-23 term. The justices considered all three cases – involving federal securities laws, the Sixth Amendment’s confrontation clause, and the proper remedy when a defendant is tried in the wrong place – at their private conference last week. Although the justices announced an initial set of new grants from that conference on Friday afternoon, Tuesday’s grants follow a recent pattern of issuing a second set of grants from the court’s final regularly scheduled conference of the year.

The justices agreed to review the case of Adam Samia – whom the federal government describes as a “hitman” who “committed an array of crimes worthy of a James Bond villain.” Samia was convicted and sentenced to life in prison for his role in the murder of Catherine Lee, a real estate agent in the Philippines.

At Samia’s joint trial with his two co-defendants, prosecutors relied in part on a confession from one of the co-defendants, Carl Stillwell, who identified Samia as the person who pulled the trigger. Prosecutors redacted Stillwell’s statement so that it did not use Samia’s name, and the presiding judge instructed the jury that it could only consider Stillwell’s statement in determining Stillwell’s guilt.

Samia was convicted and sentenced to life in prison. He came to the Supreme Court in August, asking the justices to decide whether admitting Stillwell’s redacted statement, when it immediately incriminated Samia, violated Samia’s right under the Sixth Amendment to confront the witnesses against him.

In Smith v. United States, the justices will take up the case of Timothy Smith, an Alabama software engineer and avid fisherman who was indicted for hacking into the website of Strikelines, a Florida company that identifies and sells the locations of artificial fishing reefs (which fisherman normally do not share).

Smith was tried in the Northern District of Florida, where the company was located; he was convicted on two of the three counts on which he was indicated and sentenced to 18 months in prison and a year of supervised release. Smith argued that he was tried in the wrong place, because he lives in Alabama and the website’s servers were in the Middle District of Florida.

On appeal, the U.S. Court of Appeals for the 11th Circuit agreed with Smith that one of the counts on which he had been convicted had been tried in the wrong place. The question that the Supreme Court agreed on Tuesday to decide involves the remedy for that mistake. Smith contends that he should be acquitted on that count and cannot be retried anywhere, while the federal government counters (and the 11th Circuit ruled) that prosecutors can try him again somewhere else.

And in Slack Technologies v. Piriani, the justices agreed to decide whether, to bring a securities lawsuit alleging misstatements in a registration statement, a plaintiff must plead and show that he bought shares registered under the allegedly misleading statement. The question comes to the court in a lawsuit brought by Fiyyaz Piriani, who purchased 250,000 shares in the software and communications company in 2019. Piriani alleges that Slack’s registration statement was misleading because it did not disclose the generous terms of Slack’s agreements to compensate customers for service disruptions.

The justices’ next scheduled conference is on Jan. 6, 2023.

Cases: Smith v. United StatesSamia v. United StatesSlack Technologies v. Pirani

Recommended Citation: Amy Howe, Justices grant review in two criminal cases and a securities lawsuit against Slack, SCOTUSblog (Dec. 13, 2022, 10:55 AM), https://www.scotusblog.com/2022/12/justices-grant-review-in-two-criminal-cases-and-a-securities-lawsuit-against-slack/

US 1292 Thomas Paine 40c single MNH 1968 | eBay

Photo from ebay.com

December 19, 1775: Thomas Paine publishes “The American Crisis.”

“These are the times that try men’s souls; the summer soldier and the sunshine patriot will, in this crisis, shrink from the service of his country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.”

Click for report from history.com

The House and Senate return to session on January 3. The Governor will be sworn in on January 17.

Co-Sponsorship Memoranda

Reporting Lost or Stolen Firearms by Representatives Benjamin V. Sancez (D-Montgomery) and Malcolm Kenyatta (D-Philadelphia)

College Sexual Assault Reporting by Representative Dan K. Williams (D-Chester)

Prohibiting Weapons in Public Parks by Representative Donna Bullock (D-Philadelphia)

(Source: Website of Pennsylvania General Assembly)

Click for Pennsylvania Bulletin for December 10, 2022

Justices take up four new cases including challenge to Federal ban on encouraging illegal immigration

By AMY HOWE, SCOTUSblog, December 9, 2022

The Supreme Court on Friday afternoon agreed to hear four new cases, including a First Amendment challenge to a federal law that prohibits encouraging illegal immigration. The justices issued an order list from their conference on Friday morning – the last regularly scheduled conference of the year.

In United States v. Hansen, the justices agreed to review the constitutionality of 8 U.S.C. § 1324(a)(1)(B)(i), a federal law that makes it a crime, punishable by up to 10 years in prison, to encourage or cause unauthorized immigrants to enter or reside in the United States.

Three years ago, the court agreed to take up this question in another case, United States v. Sineneng-Smith, but it did not resolve it. Instead, a unanimous court ruled that the U.S. Court of Appeals for the 9th Circuit had improperly injected the issue into the case.

The question returns to the court in the case of Helaman Hansen, who was convicted under Section 1324(a)(1)(B)(i) for running a program that, in exchange for fees of up to $10,000, promised to help adult unauthorized immigrants become U.S. citizens through adoption. On appeal, he argued – and a panel of the 9th Circuit agreed – that the statute violates the First Amendment because it is so broad that it would also apply to speech protected by the Constitution – for example, a statement that merely encourages someone to stay in the United States. After the 9th Circuit declined to rehear the case, the federal government came to the Supreme Court, which agreed on Friday to weigh in.

The federal law at the center of Polselli v. Internal Revenue Service allows the IRS to issue a summons for financial records from recordkeepers, such as a bank or an accountant. As a general rule, the law requires the IRS to notify the person whose records are being sought, but the law also carves out an exception to the notice requirement if the summons is issued to help the IRS collect a debt. The Supreme Court on Friday agreed to decide whether that exception applies only when the delinquent taxpayer has a legal interest in the records that the IRS is seeking, or whether it applies in any case in which the IRS believes that the records might help it collect a debt.

In Lora v. United States, the justices agreed to decide whether federal criminal sentencing laws require a New York man convicted for his role in a drug-trafficking-related murder to be sentenced to consecutive, rather than concurrent, sentences.

And in Coinbase v. Bielski, the justices will decide whether a non-frivolous appeal of the denial of a motion to compel arbitration strips the district court of jurisdiction over a case, putting proceedings in the district court on hold.

More orders from Friday’s conference are expected on Monday morning at 9:30 a.m. Although Friday morning’s conference was the last regularly scheduled conference of the year, Friday’s grants may not necessarily be the last cases granted this year. For the past few years, the justices have granted more cases from their final December conference several days later, allowing them to add more cases to their merits docket without having to wait for the next conference in early January.

This article was originally published at Howe on the Court.

Posted in FeaturedMerits Cases

Cases: Coinbase, Inc. v. BielskiUnited States v. HansenPolselli v. Internal Revenue ServiceLora v. United States

Recommended Citation: Amy Howe, Justices take up four new cases, including challenge to federal ban on encouraging illegal immigration, SCOTUSblog (Dec. 9, 2022, 4:49 PM), https://www.scotusblog.com/2022/12/justices-take-up-four-new-cases-including-challenge-to-federal-ban-on-encouraging-illegal-immigration/

December 12, 1787. Pennsylvania ratifies the Constitution. Click for article on history.com.

The new term of the General Assembly began on December 1.

Krasner impeachment

On November 30, the Senate took the following measures:

PoliticsPA reported:

The Pennsylvania Senate voted to formally accept the articles of impeachment that were filed by the State House against Philadelphia District Attorney Larry Krasner on Wednesday, setting the stage for a mid-January trial.

It is the first time since 1994 that the chamber has moved on impeaching an elected official. Twenty-eight years ago, the Senate impeached State Supreme Court Justice Rolf Larsen, who was convicted by a state court of illegally conspiring to obtain prescription drugs.

The three state representatives selected to serve as managers – Craig Williams (R-Delaware/Chester), Tim Bonner (R-Mercer/Butler) and Jared Solomon (D-Philadelphia) – personally delivered the articles, accompanied by the chamber’s sergeant of arms.

Williams read the seven articles of impeachment aloud – taking approximately 60 minutes – before the senators voted to approve the resolution to issue “a Writ of Impeachment Summons to the Honorable Lawrence Samuel Krasner, District Attorney of Philadelphia” by a 29-19 vote.

Krasner is now required to file a plea to the writ no later than December 21. The impeachment trial is slated to begin on Wednesday, January 18, at 11:30 a.m.

The website of the Pennsylvania General Assembly shows that on November 30, the Senate approved Senate Resolution 388, “A Resolution directing a Writ of Impeachment Summons to be issued to the Honorable Lawrence Samuel Krasner, District Attorney of Philadelphia.”  The Resolution sets for the timetable leading up to the trial.  Click for text of Senate Resolution 388.

On November 30, the Senate voted on a Motion to Resolve into Impeachment Session.  

The votes on the Resolution and Motion were 30 yeas and 20 nays.  All Republican Senators plus Senator Jimmy Dillon, Democrat from Northeast Philadelphia voted for the measures.  All Democratic Senators except Senator Dillon voted against the measures.

Click for Articles of Impeachment (House Resolution 240) passed by the House of Representatives.

The Pennsylvania Commission on Sentencing meets December 7 and 8 in Harrisburg.  Click for schedule.

The Pennsylvania Senate and House of Representatives is scheduled to be sworn into office on January 3. Governor-elect Josh Shapiro is scheduled to be sworn in on January 17.

In Re: Order Amending Rule 515 of Pa Rules of Juvenile Court Procedure – No. 925 Supreme Court Rules (Dispositional Orders)

Click for Order

Click for Report

Click for Text of Rule

Click for Pennsylvania Bulletin for December 3, 2022

SCOTUSblog: Petitions of the Week by Kalvis Golde

Justices again asked to consider the consequence of biased jurors.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The Supreme Court has ruled that the seating of a biased juror can violate the constitutional right to an impartial jury. It has stopped short, however, of holding that the violation is so stark as to constitute a “structural error” requiring automatic reversal under the Sixth Amendment, and state courts are divided over whether it rises to that level. This week, we highlight cert petitions that ask the court to consider, among other things, whether the seating of a biased juror is the type of error that always requires a new trial.

Gene Deveraux was sentenced to 100 years in Montana prison for multiple sexual felonies against his former wife and stepdaughter. During a private meeting with the prosecution, defense, and trial judge, one of the jurors revealed that his girlfriend had been a victim of marital rape. The juror told the defense that he would struggle to remain objective and agreed that he “should not be chosen” for the jury “to be fair to” Deveraux. Having already used all of his peremptory strikes to prevent the selection of other jurors, Deveraux filed a motion to remove the juror “for cause” alleging apparent bias. The judge denied the motion.

On appeal to the Montana Supreme Court, Deveraux argued that his conviction should be reversed because the denial of his motion to remove the juror for cause was structural error. The state supreme court disagreed. Even if a juror were biased, the court held, allowing them to remain on the jury does not automatically require a new trial. The court applied its existing test that would have required Deveraux to use a peremptory strike against a specific juror before he could bring a claim that their eventual seating on the jury was structural error.

In Deveraux v. Montana, Deveraux asks the justices to rule that denying a motion to remove a biased juror for cause is a sufficiently egregious Sixth Amendment violation to require a new trial. Earlier this year, the court declined to hear an appeal by Kristopher Love, a Black man on death row in Texas who argued that the seating of a racially biased juror in his case was structural error. Three justices dissented from the denial of review. Deveraux argues that his petition lacks a procedural oddity that obscured the structural-error question in Love’s case, and that the time has come for the justices to provide an answer.

Deveraux v. Montana
22-418
Issue: Whether a trial court commits structural error, requiring automatic reversal under the Sixth Amendment, when it seats a biased juror after erroneously denying a for-cause challenge to that juror.

Jordan v. Lamanna
22-431
Issue: Whether a federal habeas petitioner seeking relief on the basis of a violation of the public trial clause of the Sixth Amendment can demonstrate an “unreasonable application of clearly established Federal law” within the meaning of 28 U.S.C. § 2254(d)(1) in the absence of a Supreme Court precedent involving analytically indistinguishable facts.

Moore v. Texas
22-434
Issues: (1) Whether a law that criminalizes expressive speech is immunized from any First Amendment scrutiny if it also criminalizes non-expressive conduct; and (2) whether a law that punishes the repeated sending of electronic communications with intent and likely result to “harass, annoy, alarm, abuse, torment, embarrass, or offend” another is unconstitutionally overbroad.

Recommended Citation: Kalvis Golde, Justices asked again to consider the consequence of biased jurors, SCOTUSblog (Dec. 2, 2022, 5:49 PM), https://www.scotusblog.com/2022/12/justices-asked-again-to-consider-the-consequence-of-biased-jurors/

fox13now.com

December 5, 1933. 21st Amendment is ratified. Prohibition ends. Click for report from history.com.

The new session of the General Assembly begins on December 1.

House Republican Leadership Team (2023-24)

Leader: Bryan Cutler (R-Lancaster) *NEW*

Whip: Tim O’Neal (R-Washington) *NEW*

Appropriations: Seth Grove (R-York) *NEW*

Caucus Chair: George Dunbar (R-Westmoreland)

Caucus Secretary: Martina White (R-Philadelphia)

Caucus Administrator: Sheryl Delozier (R-Cumberland) *NEW*

Policy Chair: Josh Kail (R-Beaver/Washington) *NEW*

The Pennsylvania Commission on Sentencing meets December 7 and 8 in Harrisburg. Click for schedule.

Click for Pennsylvania Bulletin for November 26, 2022.

Commonwealth v. Drummond: In PCRA appeal, Supreme Court discusses reasonable doubt jury charge.

Click for Majority Opinion by Justice David Wecht.

Click for Concurring Opinion by Justice Christine Donohue.

Click for Concurring and Dissenting Opinion by Justice Sallie Mundy

Commonwealth v. Coleman: Supreme Court rules on mandatory sentencing enhancement.

Click for Majority Opinion by Justice Kevin Brobson

Click for Concurring Opinion by Justice Christine Donohue.

Click for Dissenting Opinon by Justice David Wecht.

Sources: Dentons Cohen & Grigsby, Website of Pennsylvania General Assembly, Website of Supreme Court of Pennsylvania

SCOTUSblog: A sharp business deal or a federal crime. Justices will review will review what counts as fraud in government contracting. By David Kwok, November 25, 2022.

Over the past 40 years, the Supreme Court has repeatedly expressed concern about the breadth of federal criminal prosecutions under the mail and wire fraud laws. The court’s decisions have narrowed the scope of federal power, particularly in recognizing the right of state and local governments to operate without undue federal influence. In Ciminelli v. United States, which will be argued on Monday, the court returns to similar concerns with a New York bid-rigging case. Did a government contractor take criminal advantage of his contacts within state government?

Click for full report from SCOTUSblog https://www.scotusblog.com/2022/11/a-sharp-business-deal-or-a-federal-crime-justices-will-review-what-counts-as-fraud-in-government-contracting/

Photo: https://www.johnfkennedy.org/p/warren-commission.html

November 29, 1963. President Johnson appoints Warren Commisson to investigate assassinaton of JFK.

Click for report from history.com

Members of the Warren Commission. Source: Wikipedia

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