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While divisions on the Court are common, cleanly ideological breaks are less so. Justice Stephen Breyer explained it this way in a June 2021 podcast for the non-partisan National Constitution Center: I mean, we agree almost half the time, were unanimous. And, he continued, the five-fours are about, I dont know, 20 percent, 25 percent, 15 percent depending on the year. And its not the same five and the same four. Thats what makes the cases involving the rights of criminal defendants and immigrants this term so notable: The split was often the same six and the same three, a detail that offers some insight into one aspect of the Courts developing identity.

Because the criminal justice system in the U.S. is vastly over-represented by Black and brown defendants, who are five times more likely to end up in state prisons than whites, this predictable ideological split is not good news from the standpoint of racial and ethnic justice. The extraordinary interpretive power of nine unelected justices cannot be overstated. The U.S. Constitution houses the primary legal prohibitions on arbitrary governmental constraints on life and liberty, with the Fifth Amendment preserving due process rights vis--vis the federal government and the Fourteenth Amendment binding the states.

Bear in mind too, that in effect, the Supreme Court amends the Constitution through interpretation irrespective of each justices politics. For actual voters to amend the Constitution, by contrast, they must elect politicians who will ratify revisions by two-thirds in both Houses of Congress and three-quarters in all state legislatures. This is nearly impossible to achieve, a reality that shines a light on the mammoth power of the unelected justices, whose decisions cannot be altered absent a fresh majority on the Court or a formal amendment to the Constitution overruling a particular decision.

Paradoxically, it is the aforementioned cases in which justices crossed ideological lines that demonstrate how significant it is that on questions of incarceration, conservatives and liberals split so cleanly. Because it represents such a departure from the Courts historical behavior. In 2014, a panel of scholars concluded that the John Roberts Court at that point actually [produced] a notable number of rights-protective liberal decisions, and that when the Roberts Court [was] most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record place[d] him at the Courts center.

The late Justice Antonin Scaliaa conservative icon who reshaped constitutional jurisprudence in a number of wayshad developed a spacious view of individual rights within the criminal justice system, particularly under the Fourth Amendment, which governs unreasonable searches and seizures. With Kennedy, Scalia and the reliably liberal Ruth Bader Ginsburg now gone, those enmeshed in the coercive criminal justice and immigration systems must rely on President Donald Trumps appointees to exercise their vast discretion to either affirm or dissolve constitutional rights. So far, the new conservative coalition belies a discomforting callousness in close cases.

The ideologically split cases were not the most attention-grabbing of the Courts recent docket. But a closer examination of how the majority ruled shows why they collectively reveal the modern Courts emerging character.

Jones v. Mississippi was an Eighth Amendment case challenging a 15-year-old minors sentence to life without parole for murdering his grandfather. Writing for a 6-3 majority, Justice Kavanaugh acknowledged that the Court had issued two landmark rulings in 2012 and 2016 constitutionally outlawing mandatory life-without-parole sentences for juvenile offenders. At a resentencing hearing in light of these rulings, counsel for the defendant Brett Jones, who is now 32 years old, argued unsuccessfully that the sentencing court must...make a separate factual finding that the defendant is permanently incorrigible before deciding to lock him up for life. Kavanaugh concluded that a more detailed finding regarding a juveniles prospect for rehabilitation was not constitutionally required so long as the sentencer consider[s] the defendants youth.

In a dissenting opinion, Justice Sotomayor said [t]he Court is fooling no one. Time and again, this Court has recognized that children are constitutionally different from adults for purpose of sentencing, she wrote, as the character of a juvenile is more transitory and the impetuousness and recklessness that may dominate in younger years can subside. But with Ginsburg and Kennedy no longer on the Court, the new majority was collectively more sanguine about condoning discretionary life sentences for juveniles, likely paving the way for more children to spend their adult lives behind bars.

Kavanaugh wrote for the same 6-3 majority in Edwards v. Vannoy, refusing to apply a prior Supreme Court ruling to benefit a criminal defendant. Just months before, in April 2020, the Court had decided in Ramos v. Louisiana that criminal convictions by non-unanimous juries were unconstitutional. The question in Edwards was whether that ruling should apply retroactively to non-unanimous jury convictions that occurred before Ramos. Although Justice Neil Gorsuch delivered the lead opinion in Ramos, the other justices fell all over the map in that case. Gorsuch was joined in part by Ginsburg, Breyer, Sotomayor and Kavanaugh, for example, while Justice Elana Kagan joined part of Alitos dissenting opinion. But once Coney Barrett had joined the Court, the conservative bloc became more cohesive in rejecting the criminal defendants plea in Edwards, leaving prisoners who had been sentenced without the benefit of the Ramos decision to serve their time. Kagans dissent underscored that, [c]iting centuries of history, the Court in Ramos termed the Sixth Amendment right to a unanimous jury vital,' essential,' indispensable,' and fundamental to the American legal system, and vindicated core principles of racial justice. The touchstone of the new conservative majority looks decidedly different.

Conservatives were likewise unsympathetic to criminal defendants complaints of bad lawyering. In Shinn v. Kayer, a 6-3 majority in a per curiam opinion (meaning no justice claimed authorship) reinstated an Arizona inmates death sentence for the 1994 shooting death of one Delbert Haas during a gambling trip in Nevada. The U.S. Court of Appeals for the Ninth Circuit had thrown out defendant George Kayers sentence of death, persuaded that his Sixth Amendment right to effective assistance of counsel was violated during sentencing because his lawyer failed to investigate evidence of addiction, mental illness and a recent heart attack, among other mitigating factors. But the Supreme Court majority concluded that a fairminded jurist would have given more weight to the defendants prior conviction for burglary with a handgun and doubted whether Kayers addictions and bipolar disorder significantly impaired his ability to appreciate the wrongfulness of his conduct. In Dunn v. Reeves, the same 6-3 majority reversed a lower courts decision granting habeas corpus relief to a death row prisoner who claimed that his trial counsel failed to present mitigating evidence of his intellectual disability.

On the immigration front, the scorecard was similarly stacked against individual petitioners to favor the government. Justice Alito authored the opinion for a 6-3 majority in Johnson v. Guzman Chavez, ruling against a group of noncitizens who were deported from the United States but later reentered without authorization. When the government discovered they had returned, it reinstated their removal orders. The petitioners filed asylum proceedings because they feared persecution or torture if they returned to their home countries. The Court held that, in the interim, while their asylum pleas were adjudicated, they were subject to mandatory detention, denying them so much as a bond hearing. Without a hearing, the government would effectively keep the immigrants indefinitely jailed. As Breyer noted in dissent, they face proceedings that may last for many months or years.

Justice Gorsuch seemed equally unsympathetic to the plight of non-citizens in his opinion for a 5-3 majority in Pereida v. Wilkinson, which ruled against an undocumented resident who challenged deportation based on his guilty plea for the minor crime of attempted impersonation under Nebraska law. The Court placed the burden on the immigranta father of three who had been in the United States illegally for 25 years but sought to avoid deportation under a provision that makes exceptions for family hardshipto prove that his crime was not one of moral turpitude that would disqualify him from using the deportation exception. The trouble was that his criminal record did not make clear what his underlying crime was. As Justice Breyer explained in dissent: "We cannot look to jury instructions because there was no jury. Nor is there any plea agreement, plea colloquy, or 'comparable judicial record of the plea that might help determine what Mr. Pereida admitted. To make matters worse, [t]he Government confirmed several times at oral argument that it had not argued that a judge should be allowed to look at a broader array of evidentiary materials because, in its view, that issue was not implicated since no other documents exist. That did not stop the majority from ruling against Pereida for failing to prove what the government apparently could not.

For the most part, the Courts latest slew of cases signals that the law, in all its ambiguities, still trumps partisanship. But the handful of cases where conservatives joined forces also suggest that personal ideologyor perhaps the conservative focus on individual responsibility makes them loath to allow people second chances at liberty or legal immigration statusremains stealthily at play. Meanwhile, the United States has the highest prisoner rate in the world, with 639 prisoners per 100,000 people. So far this court appears unmoved by such statistics.

Link:
Opinion | The One Area Where the Supreme Courts Six Conservative Judges Could Agree - POLITICO

A judge has cleared the way for the state of Oregon to bring Washington County sheriffs deputy Rian Alden to trial in November for an alleged assault of a jail inmate, denying his motion to dismiss the case.

Aldens lawyer Dan Thenell argued during hearings in April that the case should be thrown out, alleging a longtime prosecutor pressured two sheriffs training officers to withdraw their support of Aldens use of force and not testify in his defense.

Thenell argued that the sheriffs office found Aldens use of force to be within policy and consistent with his training.

Alden is accused of slamming a jail inmate against a concrete wall during booking in a 2018 case that prosecutors first dropped and then revived in 2020 when a racist email sent by Alden surfaced.

The county last year paid $625,000 to settle a suit filed by the inmate, Albert Molina, who suffered a fractured skull. County commissioners found that Alden needlessly injured and traumatized Molina.

Washington County Chief Deputy District Attorney Jeff Lesowski argued in court that the allegations raised by Aldens lawyer were intended simply to derail his clients prosecution.

Lesowski told a judge that the prosecution results from a video of the alleged assault depicting a shocking act of police brutality, of a physically imposing veteran law enforcement officer slamming the head of an intoxicated, unarmed and shoeless prisoner against a concrete wall.

It also rests on the medical records that showed Molina suffered an immediate loss of consciousness and a serious brain injury, he said.

The apparent motive for those actions was the victims disrespect for Alden by saluting him in a mocking way and flipping him off, after Alden had been laughing at the victim with his younger deputy colleagues, Lesowski said.

It would be outrageous if the district attorneys office werent prosecuting the jail deputy, Lesowski argued.

Were sitting here with a pretty obvious crime staring us in the face, he told the judge.

Washington County Circuit Judge Beth L. Roberts dismissed Aldens allegations of outrageous government conduct, in a written ruling.

Having considered all the testimony and evidence presented to the court, under the totality of the circumstances, the court does not find that the governments conduct is grossly shocking and so outrageous that it violates a universal sense of justice, the judge wrote in her ruling.

Alden, 41, has pleaded not guilty to second-degree assault and official misconduct. He remains on paid leave. His trial is set for Nov. 2.

The defenses allegations stemmed from June 2020 conversations between Bracken McKey, another chief deputy prosecutor in the District Attorneys Office, and two sheriffs training officers.

Both training officers - Sgt. James Cuthbertson and Cpl. Cade Edwards - signed sworn statements that Thenell filed in court, contending McKey told them he was pursuing Alden so he didnt look soft on crime if he ever ran for district attorney and that their testimony wouldnt look good for the sheriffs office.

But Edwards later recanted his accusations against McKey, saying Thenell had swayed him to sign the declaration that improperly characterized his remarks, according to court records.

The recantation stirred concerns about the honesty of the two training officers.

McKey in no way intended to threaten Cuthberson but gave him a courtesy heads up when he told him by phone that hed have a duty to disclose Cuthbertsons opinion in support of Aldens use of force to Aldens lawyer, and that it may not look good, according to Lesowski.

When considered in light of the damning video and the fact that the Oregon State Police concluded Aldens violence was unjustified, McKeys words were simply a way of stating an obvious fact: This was a very ugly incident that was going to be difficult to defend or justify, Lesowski wrote to the court.

Cuthbertson, who was the use of force manager for the sheriffs office at the time Molina was injured in the jail, testified in court earlier this year that he felt threatened, that if I testified for the defense it wont go well for me. Since that day, things have not gone well. Ive been assigned to a desk. ... Ive been criminally investigated.

Cuthbertson also testified that the sheriffs office teaches a crashing the line technique. If someone is combative or coming at a deputy, the deputy would go forward at them, and meet them to stop that distance. ... We try to overwhelm the person that potentially can be assaultive toward you, he explained on the witness stand.

Cuthbertson testified, though, that when he met with McKey in June 2020 he hadnt yet formed a final opinion on Aldens use of force, and had questions, such as whether Alden experienced an adrenaline rush, or took into account the wall that was behind Molina when he slammed him into it.

Lesowski later wrote to the court that Cuthbertsons testimony suggesting he hadnt yet formed an opinion on Aldens use of force in that June meeting with McKey was not credible.

If Cuthbertson had not expressed an opinion, McKey would have had no reason to call Cuthbertson the next day to tell him that his opinion would need to be disclosed to the defense as exculpatory evidence, Lesowski wrote.

Edwards, the other training officer, declined to testify in court, citing his Fifth Amendment right not to incriminate himself.

The district attorneys office granted Edwards immunity in December for his changing statements, but Edwards lawyer Mark Makler said that didnt absolve him of any potential criminal exposure going forward by the county prosecutors office, or by other state or federal agencies.

Washington County Sheriff Pat Garrett, called by Thenell as a witness, testified that Cuthbertson and Edwards had met with him and the undersheriff together, shortly after the meeting they had with McKey, in which they shared that they felt threatened to not testify in support of Aldens use of force. They shared that McKey said something like, this would not look good for you, Garrett said.

They expressed general concern about testifying for the defense, and we discussed that that was a distinct possibility if called upon by the defense, and we told him that that would be appropriate, Garrett said.

Lesowski told the court that Cuthbertson is not expected to face any discipline and was assured that his job is safe should he testify in support of Aldens use of force.

The state Justice Department ultimately found insufficient evidence to support allegations against McKey of witness tampering or coercion, department documents show.

The Washington County District Attorneys Office said it wont pursue perjury charges against Edwards but that his changing statements could raise potential concerns regarding his truthfulness and credibility if called to testify in future cases. Prosecutors asked state police to investigate Cuthbertson for alleged false swearing. That inquiry is ongoing.

-- Maxine Bernstein

Email at mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

The rest is here:
Assault case against Washington County sheriffs deputy can proceed to trial, judge rules - OregonLive

The Supreme Court of Pennsylvania recently overturned Bill Cosbys 2018 conviction for crimes of sexual assault. Most have focused on the justness of this outcome. But the courts 79-page opinion also has implications for how witnesses in civil cases navigate the potential risk of self-incriminationincluding witnesses testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6).

As we discussed in our blog on invoking the Fifth Amendment in a civil deposition, the privilege can only be claimed if the deponents answer to the question may render them vulnerable to prosecution for a crime. The question must require the witness to confront a substantial and real, and not merely trifling or imaginary, hazardof incrimination.[1] Whether the risk of incrimination is substantial and real is the very issue that has resulted in why Cosby is free today.

Cosbys legal issues started with a criminal investigation in 2005 by then Montgomery County District Attorney Bruce Castor after an alleged victim reported she was sexually assaulted by Cosby in 2004. For a variety of reasons, District Attorney Castor determined that he did not have enough evidence at the time to prosecute Cosby. Prosecutors weigh similar decisions every day, and typically, a prosecutors decision to not proceed with charges is not binding and is subject to reconsideration at a later date. But District Attorney Castor wanted to help the victim seek some justice in a civil case, so he made a promise he could not keephe publicly promised not to prosecute Cosby for that particular crime. Cosbys attorneys then determined that, because he had no reasonable fear of prosecution, he could not invoke his Fifth Amendment right against self-incrimination at a deposition in his civil case. Cosby made multiple admissions of guilt in the depositionin reliance on the promise that he would not be criminally prosecuted.

Whether this promise was enforceable and valid was a hotly litigated issue in the casebut the Supreme Court of Pennsylvania held that whether the promise was properly executed and / or enforceable was irrelevant since Cosby detrimentally relied on it. There was no way to un-ring the bell of his testimony and restore him to a position where he would not have incriminated himself had he utilized his Fifth Amendment protections. So, when District Attorney Castors successor later decided to charge Cosby and used his admissions in the civil deposition against him in the criminal trial, the court held that Cosbys rights to due process and protection from self-incrimination were violated. When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness.[2]

The civil and criminal justice systems interweave and collide in many circumstances, and some conduct, even negligent omissions, can raise both criminal and civil consequences. The complex circumstances of Cosbys conviction and subsequent release serve as an ominous reminder that your attorney needs to understand all aspects of potential incrimination and liability.

[1] Marchetti v. United States, 390 U.S. 39, 453 (1968).

[2] Pennsylvania v. Cosby, Supreme Court of Pennsylvania Case No. 39 MAP 2020 (June 30, 2021).

Read the original here:
What Does Bill Cosbys Overturned Conviction Mean for Your Fifth Amendment Rights Against Self-Incrimination? - JD Supra

American sprinter ShaCarri Richardson received perhaps the worst advice upon failing her drug test for marijuana.

Though she publicly apologized, she wasnt wrong. The United States Anti-Doping Agency's cannabis policies and the federal prohibition of marijuana are wrong and a waste of resources. But this country has a real hard time admitting that.

Richardson's disqualification from the Olympics is a gross injustice and they are taking away everything shes earned. The federal prohibition on marijuana has damaged American lives for half a century; this is the latest and most egregious example of it. Theyve taken a woman who is an American hero and gutted her.

She should be fighting this in court. The United States Olympic Committee is based in Colorado Springs. They are under the jurisdiction of the U.S. District Court of Colorado. Richardsons legal option would be to file a TRO (temporary restraining order) and injunction, seeking that the court order the United States Olympic Committee reinstate her on the team.

She would fight the TRO on grounds of 14th Amendment Equal Protection. Equal protection means that the rules and laws apply equally to everyone. Regarding cannabis, however, the rules are not applying equally to everyone.

For example, I represent 25-year-old Jonathan Wall, whos currently in jail for growing and selling weed. Theres a multibillion-dollar industry in the United States, with many people and corporations growing and selling weed all over the country. Its a violation of equal protection for one person to be able to do something in the United States while another person cannot.

It violates equal protection that Richardson could take one hit of pot and lose everything while other people in the country are making millions of dollars from growing, distributing, and selling it. Yet, while they get rich, she is deprived of everything she has earned.

Second ground would be the Fifth Amendments Taking Clause, which states: "Private property [shall not] be taken for public use, without just compensation."

To take her career and future earnings away from her causes a potential Fifth Amendment violation under the takings clause. Her career was a lifetime in the making. Earning it and going through the Olympic trials and everything else that shes done to deserve a spot on the Olympic team, thats her property. Yet, the government is taking it from her without due process. Its like going to a doctor or lawyer and saying, Were taking your license or coming to your house and saying, Were taking your home because you took a hit of pot in the backyard and cannabis is federally illegal.

This is a gross injustice and that they are taking away everything shes earned.

Its undeniable that the U.S. government has a much easier time punishing people of color than white people. The federal prohibition on pot has been a failed policy. Its been a racist policy. The very roots and motives of the drug war and the federal prohibition on cannabis are racist. This is just a continuation of a policy that is fundamentally racist, in a more high-profile setting.

President Joe Biden said: Rules are rules. But, as we saw in the past, just because something is a rule does not mean its brutally wrong and unjust. Do you want to argue Rules are rules to Jim Crow? Think about the lives that have been destroyed because of the federal prohibition of marijuana.

Rules are rules is one of the most intellectually and morally bankrupt arguments that you could ever offer because this country has a history of using unjust rules to damage people of color. And thats exactly what's happening here.

But it shouldnt be happening here. ShaCarri should be fighting it. As a representative of our country, it would be the most patriotic thing she could do.

More here:
How Sha'Carri Richardson Can Sue Her Way Back Into the Olympics - The Daily Beast

A tentative contract has been reached between representatives of the union representing Columbus police officers and the city that includes a large payout for officers in exchange for somechanges to how alleged police misconduct investigationsare carried out, The Dispatch has learned.

Members of the Fraternal Order of Police Capitol City Lodge No. 9are currently voting on the proposed contract through Saturday night. If the contract is approved by the members of the union, Columbus City Council would then vote on whether to accept the contract perhaps as soon as Monday, the body's last meeting before its summer break.

FOP Local 9 leaders say they will not comment publicly about the tentative contract until after it is voted on by membership, which includes about 1,900 members from officers up to commanders.

Highlights of the new contract:

Mayor Andrew J. Ginther's office did not respond to questions from The Dispatch about where the money for the pay increases and the buyouts will come from. However, sources have speculated to the newspaper that the buyout money will from from federal COVID-19 relief funds.

"We are encouraged to have reached a tentative agreement through the collective bargaining process, but it is important to let the process play out free of interference and for members to cast their vote," Ginther said in a prepared statement.

The new Civilian Police Review Board, approved by 74% of voters in November 2020 and seated by Ginther and City Council earlier this year, was expected to be a sticking point in negotiations. Ginther and other city leaders had said publicly they expected to negotiate language into the contract that would take away some of the police union's power in investigations and give more authority to the review board and newly created Inspector General position.

More: Columbus police union seeks to stop interviews with officers in protest misconduct probe

However, the language in the proposed contract shows no significant deletions from the contract approved in 2018. There is some new language connected to the Civilian Review Board and Office of Inspector General.

More: Read the FOP's 2018contract with the city

According to the tentative contract agreement, the review board will not have subpoena power. Officers can be ordered by the police chief as under previous contracts, or bythe Office of the Inspector General to appear and participate in investigations into allegations of misconduct or behavior that are not criminal in nature.

If an officer is suspected of criminal misconduct, they cannot be forced to participate because of Fifth Amendment rights against self-incrimination.

More: Columbus police union seeks to stop interviews with officers in protest misconduct probe

Civilian Review Board representatives can be present at departmental hearings for officer discipline before the Director of Public Safety, according to the proposed contract. Those hearings would continue to not be open to the public.

An investigator from the Office of the Inspector General can also observe criminal investigations, according to the proposed contract, but neither the Inspector General or the Civilian Review Board can conduct investigations into alleged criminal misconduct.

The proposed contract would requiresuspensions, demotions or terminationsto be kept in an officer's personnel record for eight years, compared to the six years required under the current extended contract. That means if an officer is to receive progressive discipline, a suspension is kept on their record to be used for eight years.

In July, Ginther told The Dispatch that the city would be pushing for increases in the length of times complaints stay in an officer's personnel file andmandatory post-incident drug and alcohol testing after a shooting or deadly use of force.Drug and alcohol testing is included in the tentative new contract.

More: What we know about charges against three Columbus police officers from 2020 protests

In late December, Ginther said the top priority as it related to the Civilian Review Board was to make sure it had subpoena power and the ability to make recommendations to the chief about officer discipline.

The new contract also would increase the ability for body cameras to have a two-minute look-back window with audio. The department's body cameras currently have a 60-second lookback feature that does not include audio.

This lookback feature proved important in the shooting death of Andre Hill, an unarmed Black man, by former Columbus police officer Adam Coy in December. Coy's body camera was not activated at the time of the shooting, but captured video without audio of the incident. Coy has since been fired and indicted on charges of murder, felonious assault and reckless homicide. He has a scheduled status conference hearing Wednesday on his case.

More: Columbus City Council expands body cam requirement for police working with state, feds

When the police union's contract had expired with the city in December 2017, it took until November 2018 for terms to be finalized. That process involved having a fact-finder issue a report about resolving key issues surrounding pay raises, pension premiums and insurance coverage. That contract was ultimately approved by City Council in January 2019 and became retroactive to Jan. 1, 2018. The Columbus Division of Police has continued to operate under the expired contract during the negotiation process, which began in mid-2020, but was stalled by COVID-19.

More: Read the FOP's 2018-2020contract with the citythat members continue to work under

Should either side reject the tentative agreement, the negotiation process would proceed to the factfinding process.

A factfinder would be hired to examine the proposed changes to the contract from each side and issue a report as to resolutions to those issues. The union and City Council would have to vote to accept the changes outlined in the factfinder's report or the process would then go to binding arbitration. An arbitrator would be selected by mutual agreement and whatever the arbitrator decides would be the final contract terms.

Columbus firefighters agreed to take no pay raise in 2021 because of the COVID-19 pandemic, but will receive a 2.5% raise in 2022 and 3.5% raise in 2023, in accordance with the terms of the contract approved in November by International Association of Fire Fighters Local 67, which has more than 1,550 members. The cost of that three-year contract to the city was expected totalmore than $20.1 million.

bbruner@dispatch.com

@bethany_bruner

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Columbus and police union reach tentative 3-year contract calling for 14% raises, buyouts - The Columbus Dispatch