In 2003, Michael Shatzer Sr. was serving a sentence at the Maryland Correctional Institution for sexually abusing a minor. When police asked him if he had ever sexually abused his son, Shatzer refused to answer and said he wanted to speak with a lawyer. In 2006, investigators returned, and Shatzer incriminated himself. In court, Shatzer’s attorney asked that the comments be stricken from the record on the grounds that police can not reopen questioning after a suspect requests counsel.

Today the Supreme Court took up the question of whether police can approach a suspect after he requests a lawyer. The 1981 Supreme Court precedent on police questioning holds that law enforcement officials are not allowed to badger a suspect into confessing by repeatedly asking if he wants to talk. The twist in the Shatzer case is that there was a two-and-a-half year delay from when police first questioned him to when he was later approached by investigators at a separate detention facility.

The bright-line rule established by the 1981 ruling is easily enforced: if there’s no lawyer, and if the suspect has not voluntarily said he wants to speak without a lawyer, and if the suspect has not been allowed to go home, the police cannot approach him to ask him about any crime. The rule is there to prevent suspects from incriminating themselves and to prevent police from badgering them into confessing.

Justice Antonin Scalia took issue with the argument made by Shatzer’s lawyer that coming back after two and a half years is “badgering,” and the lawyer seemed to admit that “badgering” isn’t the right term. Still, the lawyer argued, the police should not be allowed to approach the suspect, since any standard that allowed the police to approach after a certain amount of time would be hard to enforce. On the other hand, other justices pointed out that it would be hard for police to determine whether a suspect has ever before asked for a lawyer, even during questioning years earlier, before asking questions.

Justice Anthony Kennedy, who will likely be the swing voter in the case, seemed concerned with the police’s argument that Shatzer’s “release” back into the prison population after his interrogation in 2003 eliminates the possibility of coercion by police. Justice Kennedy suggested that the prison warden could, for example, put some pressure on the suspect by putting him in a better or worse cell to encourage him to talk to police.

The Supreme Court will release its decision on the case later this year.

An employee bringing an age-discrimination lawsuit against his employer must prove that age was the determining factor in the demotion or firing, the Supreme Court held today in a 6-3 ruling.

Plaintiff Jack Gross, 54, sued his employer, FBL Financial Group, Inc., after FBL demoted him and gave his old position to a younger employee. Gross brought his action under the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse actions against an employee “because of such individual’s age.”

Over FBL’s objections, the judge instructed the jury that if Gross proved his age played any part in the decision to demote him, the burden would shift to FBL to prove it would have demoted him regardless of his age. The jury returned a verdict for Gross, awarding him over $46,000 in lost compensation.

Today the Supreme Court vacated that verdict, finding that the judge had improperly instructed the jury.

In an ADEA disparate-treatment claim, the plaintiff has the burden of proving, by a preponderance of the evidence, that age was the “but-for” cause — that is, the determining factor — of the employer’s decision.

Lower courts were inappropriately applying Title VII precedent to this ADEA action, the Court found. Title VII prohibits discrimination on the basis of race, color, religion, sex or national origin. But unlike Title VII, the burden of proof in ADEA age-discrimination claims “does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Justice Clarence Thomas wrote for the majority.

The case was Gross v. FBL Financial Services, Inc.

A convicted defendant has no constitutional right to access the state’s DNA evidence, a divided Supreme Court ruled today.

In a 5-4 decision, the Court held that legislatures have the right to establish rules regarding access to DNA evidence, and indeed 46 states and the federal government have already done so. A balance must be sought between the value of DNA testing and the need for conditions on access, and such questions are best handled by the legislature, the Court held.

“There is no reason to suppose that federal courts’ answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite,” Chief Justice John Roberts wrote for the majority.

The case arose from a 1993 conviction of William Osborne for kidnapping, assaulting and raping a prostitute in Anchorage, Alaska. Prosecutors had produced results from a DNA test that showed Osborne may have committed the crimes. However, under the DNA test in question, approximately 16% of black individuals would also be implicated. Osborne is black.

During the trial, Osborne’s attorney declined the opportunity to perform DNA testing for tactical reasons. After being sentenced to a prison term of 26 years, Osborne sought access to the state’s biological evidence in order to conduct more advanced DNA testing, at his own expense. Osborne argued that the Constitution’s Due Process clause allowed him postconviction access to the evidence.

Acknowledging that DNA testing has “an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” the Court nonetheless held that there was no such right of access in the Due Process clause. “There is no reason to constitutionalize the issue in this way,” Roberts wrote.

Although Alaska is not one of the 46 states that has implemented specific procedures for access to the state’s DNA evidence, Alaskan state courts are adapting existing discovery rules for that purpose, the Court said.

“We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general,” the Court wrote, “and nothing inadequate about how those procedures apply to those who seek access to DNA evidence.”

Four justices dissented, criticizing as “arbitrary” the state’s refusal to turn over its DNA evidence.

“The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether [Osborne] committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice,” wrote Justice John Paul Stevens for the dissent.

“I am convinced that Osborne has a constitutional right of access to the evidence he wishes to test.”

The case was District Attorney’s Office for the Third Judicial District v. Osborne.

The U.S. Supreme Court ruled today that F. Scott Yeager, a former executive at Enron Broadband Services, cannot be retried for insider trading. In 2005 Yeager was acquitted of securities and wire fraud charges, but the jury deadlocked on insider trading charges. The government attempted to retry Yeager on the insider trading charges, but Yeager protested that such a retrial would violate the Double Jeopardy Clause of the Constitution.

Since Yeager had been acquitted of the fraud charges, he argued, the jury must have found that he had not possessed insider information, and if he had not possessed insider information, it was impossible for him to have traded on the basis of such information.

Generally courts are not allowed to consider jury’s motivations, but the lower courts had trouble reconciling his jury’s acquittal on some charges with the deadlocking on others, since there were so many factors in common between the charges.

The Supreme Court decision, authored by Justice Stevens, said that courts can consider what a jury decided, but not what a jury failed to decide. In other words, the court must consider whether an insider trading charge would be allowed, taking into account only the earlier acquittal on fraud charges. Juries may have many reasons for deadlocking, and it is impossible to know why they did what they did.

Because the fraud charges were found by the lower court to be based on the same basis as the insider trading charges, the insider trading charges are now barred from prosecution. The Supreme Court decision did leave open a small door for a lower court to reconsider its analysis of the legal issues: if a lower court finds that it is possible to have committed insider trading and not fraud, a new trial may be possible.

The decision was 6-3. Justice Kennedy agreed with the majority on the Double Jeopardy interpretation, but wrote separately to say that the lower court must reconsider the legal analysis of the two charges.

The case was Yeager v. United States.

By Jonathan Bronstein, Talk Radio News Service

Raised by a single parent and a product of the New York public school system who eventually went on to graduate from Princeton and Yale Law School, Supreme Court nominee, Sonia Sotomayor’s story resonates with many Americans. She was able to overcome obstacles and elevate her status in society through hard work.However, Sotomayor’s nomination was important for another reason. She is the first Hispanic judge to be nominated to the nation’s highest court.

“Now to see a Latina nominated to the Supreme Court, we believe this is a great step forward for America,” said Jimmy Reina of the Hispanic Bar Association, which represents 100,000 Hispanics in the legal profession, today at a press conference praising the Sotomayor’s nomination. Reina said that having a Hispanic on the Supreme Court would bring an increased amount of “trust and confidence in the legitimacy in the United States justice system” because her nomination demonstrates to all minorities that the system is equal and fair to all.

Brent Wilkes of the League of United Latin American Citizens said that “she is an absolutely brilliant jurist who will serve the nation well, and she is the first Latino/a nominated to the Supreme Court breaking a glass ceiling that for our community has been very troublesome over many decades.”

Roel Campos, the former Securities and Exchange Commission Chairman, and first Latino to hold this position, commented on the importance of having a minority in such a high position. “I was the first Hispanic Commissioner of the SEC and it makes a difference. It sends a message that America is moving forward,” said Campos.

None of the speakers believed that Sotomayor would face serious trouble that would jeopardize her confirmation because she received bi-partisan support during her previous confirmation hearings.

Wilkes gave a stern warning to any Republicans who would stand in the way of her confirmation because of “the length of time the Latino population has waited for this nomination it has been a long time, and the hopes and aspirations are all tied up in this nominee and the last thing they want to do is dash those hopes.”

By Michael Ruhl, University of New Mexico – Talk Radio News Service

The most effective way to deal with piracy off of the Somali coast is for the sailors to defend themselves, according to a Defense Department representative testifying to the Senate Armed Services Committee today.

Michele Flournoy, Under Secretary of Defense for Policy, said that of the recent pirate attacks in Somalia the most effective means of fending off the pirates came from actions taken by the crews themselves.

“The single most effective short-term response to piracy will be working with merchant shipping lines to ensure that vessels in the region take appropriate security measures themselves,” Flournoy said. She continued that it is not possible for the U.S. military to prevent or intervene in every pirate attack, but if crews take appropriate measures, “the vast majority of pirate attacks can be thwarted without any need for military intervention.”

There were 122 attempted pirate attacks in 2008, of which only 42 resulted in crewmembers becoming captured. Of the unsuccessful attacks, 78 percent of them were stopped by the crews actions, with the others being stopped by military intervention, according to Flournoy.

Flournoy divided crew countermeasures into two categories: passive and active defense measures. Passive measures are those which don’t necessarily require direct confrontation with the pirates, and can include physical obstructions to boarding points, avoiding high-risk waters, creating fortified “safe rooms” in the ship, posting lookouts at all times, and maintaining contact with maritime security forces. Active defense measures can include using fire hoses and small arms to repel pirates and a military presence on the boat. Both of these defensive measures are important for crews to talk to defend themselves, Flournoy said.

She believes that the complexity of this situation necessitates a multifaceted approach, which is why the aforementioned measures should be combined with greater military patrols and economic development. Additionally, the Defense Department would like to see more states willing to prosecute the pirates. Presently, Kenya is one of the only nations to actually place Somali pirates on trial.

According to Flournoy, since August 2008 36 pirate vessels have been destroyed or confiscated, small arms have been seized, and 146 pirates have been turned over to law enforcement officers.

By Michael Ruhl, University of New Mexico – Talk Radio News Service

Ken Boehm believes that justice has been miscarried in the case of former Alaska Senator Ted Stevens. Today the Department of Justice dropped charges of wrongdoing against the Stevens, after a drawn out legal battle concerning financial disclosure. Boehm, chairman of the watchdog group the National Legal and Policy Center, said that because the Justice Department failed in its handling of the case, an elected official is not going to be brought to justice after violating the public trust.

Boehm, a former prosecutor, stated how the Department of Justice sould have done it differently.

(03:38)

 

 Standard Podcast [03:38m]: Play Now | Play in Popup | Download

The Supreme Court has ruled, 6–3, that states are free to impose their own labeling requirements on drug manufacturers despite the FDA’s regulation of drugs. Justice Stevens wrote the majority opinion for himself and Justices Kennedy, Souter, Ginsburg, and Breyer. The case arose after Levine, a professional musician, lost her right arm to gangrene after injecting Wyeth’s drug, Phenergan, a nausea drug, into her arm. A Vermont jury found that Wyeth should have provided a warning that direct injection into a vein (as opposed to administration through an IV drip) was dangerous, but Wyeth argued that the FDA had the sole authority to regulate drug warning labels. The Supreme Court rejected Wyeth’s argument that it would need to get FDA approval for any label changes, since the FDA allows new information to be added, and that would have included “new analyses of previously submitted data.” Further, the Court found that Congress never intended the FDA regulations to preempt state regulations; generally the Court looks for some kind of explicit statement from Congress when it intends to preempt state laws, and it found nothing close in this case, nor is it impossible for Wyeth to comply with both federal and state regulations, the Court found. The FDA itself said that its regulations preempt state law, but the Court requires that Congress authorize the preemption, not just the agency. Thus, states can impose their own drug labeling restrictions, so long as they do not conflict with the federal regulations.

Justice Breyer wrote separately to emphasize that this case does not present the question of what to do when an FDA regulation conflicts with state law. In this case, the Court found it was possible to comply with the FDA regulation and the state law, so there was no opportunity for the Court to consider such a conflict.

Justice Thomas agreed with the outcome. He emphasizes that under our system of government, “the States retain substantial sovereign authority.” Further, federal laws only trump state laws when they are constitutional—when they are within Congress’s enumerated powers and when they follow the legislative process. Therefore, anything short of an express Congressional mandate, passed and signed by the president, cannot preempt. Neither policies implied by Congressional enactments nor regulations promulgated by an agency rise to this standard, and Wyeth’s arguments ascribe to the the drug labeling regulations more power than they have. He further notes that even if there were a direct conflict between state and federal regulations, Wyeth would still have a legal option: don’t sell the drug at all.

Justice Alito wrote a dissent, joined by Chief Justice Roberts and Justice Scalia. Alito reviews the FDA’s approval process and finds that the FDA’s proclamation of a drug as “safe” should bind the states. He says that the agency has the power to find a balance between competing interests, and that finding should preempt state law. Citing a 1988 case that imposed Department of Transportation motor vehicle safety regulations on the states, Alito criticizes the majority’s attempt to draw lines between that case and the current one. Alito also notes that stronger warning labels might not have helped Levine anyway: Levine’s doctor ignored at least six other warnings on the drug label.

The case was Wyeth v. Levine, No. 06–1249.

Congressman and former assistant United States Attorney Artur Davis (D-Va.) asks FBI Director Robert Mueller about the standard that the FBI will use as a threshold for opening investigations. Since the activities undertaken by the FBI are similar to those used by police in an initial investigation, Davis asked if the standard needed to undertake an FBI investigation will be lower than the standard set out by police in the 1968 Supreme Court decision in Terry v. Ohio. Mueller initially resists the question, but eventually says the standard is lower. (0:51)

 

 Standard Podcast: Play Now | Play in Popup | Download

Congressman Al Green (D-Tex.) discusses the two aspect of diversity, namely the legal and moral components. Green says that affirmative action is a key to the moral component for diversity initiatives.(1:09)

 

 Standard Podcast [1:09m]: Play Now | Play in Popup | Download