By Laura Smith

The Supreme Court heard arguments today in a case on forfeiture, weighing the constitutionality of an Illinois law that allows the confiscation of property associated with drug crimes.

Paul Castiglione argued for the state of Illinois, saying that three Chicago residents’ cars were confiscated by Chicago police pursuant to the Illinois Drug Asset Forfeiture Procedure Act (DAFPA). The people weren’t charged with crimes and had to wait more than a year without a hearing and without a chance to get their cars back. He said their cars had eventually been returned.

The Justices started the arguments by asking whether the plaintiffs cars had been returned, however, since if the plaintiffs no longer had claims against the state the case would be rendered moot. “This case is not moot because subsequent to the Seventh Circuit decision in this case, the plaintiffs filed an amended motion for class certification, specifically asking for damages and restitution, in addition to declaratory and injunctive relief,” Castiglione said. He argued that these additional requests, beyond simply wanting their cars back, mean that there is an ongoing case for the court to consider.

Thomas Peters, attorney for the Chicago residents argued that the case was not class action, but that it was still a class of people in Chicago He said that they had initially filed a request to make the case a class-action suit, but the district court denied that request. Peters said they did not appeal that decision because it was made at the time that the district court also rejected their arguments about the forfeiture law.

Justices Breyer and Alito did not seem concerned with the mootness question, however. Justice Breyer several times suggested that it was unfair for an innocent bystander whose car was used in a crime, and who may depend on his car for his livelihood, might not be able to challenge the seizure of the car for an extended period of time. Justice Alito, on the other hand, seemed worried about the burden placed on police if they had to justify seizures within a short time; such a hearing might require that police disclose ongoing criminal investigations, such as wiretapping of the actual owner of the car.

Justice Stevens appeared to want the case dismissed on the basis of mootness, noting the difficulties examining the facts of the plaintiff’s seizures when the plaintiffs had already gotten their cars back. “We are trying to get into the case much earlier than we should, it seems to me,” Stevens said.

The case, Alvarez v. Smith, will likely be decided later this year.

When Jose Padilla was arrested in Kentucky in 2001 for drug trafficking, his lawyer advised him to plead guilty in exchange for a shorter sentence. Padilla is a legal permanent resident, having immigrated from Honduras 40 years ago, and his lawyer advised Padilla that the guilty plea would not affect his immigration status. Padilla pleaded guilty in October 2002 and was sentenced to 5 years in prison and 5 years of probation.

The lawyer’s advice, unfortunately, was wrong. Drug trafficking is an “aggravated felony,” meaning Padilla lost any benefit of his immigration status and would have no defense should the government choose to deport him. In 2004, Padilla filed a motion in court in Kentucky asking to withdraw his guilty plea, arguing that he would not have plead guilty if he had known about the immigration consequences.

The general rule for legal advice at trial is that a lawyer must fully inform a client of the direct consequences of a guilty plea, such as jail time, but the lawyer has no duty to explain “collateral consequences” like losing the right to vote or own firearms. The Supreme Court Tuesday heard arguments that loss of immigration status is such an important issue—and was so important to Padilla’s decision to make the plea—that a lawyer’s incorrect advice warrants overturning the conviction and possibly bringing a new trial.

The Supreme Court Justices seemed to primarily be concerned that if Padilla is allowed to take back his plea it would expand the job of a court-appointed attorney to include giving all sorts of legal advice rather than letting them focus on getting a favorable verdict in the specific case for which they are assigned. Justices Antonin Scalia and Samuel Alito asked the attorneys several times whether incorrect advice on child custody and confiscation of property could lead to new trials. Padilla’s lawyer argued that, if that advice was key to the defendant’s decision to plead guilty, it could be grounds for a new trial. He further pointed out that a lawyer is always free to say that he simply does not know or refuse to answer entirely.

The lawyer for Kentucky, at one point comparing the collateral issues to land mines, nevertheless argued that the Sixth Amendment, which provides the right to an attorney at trial, only provided that attorney for the purpose of countering the government’s prosecution. In other words, anything the lawyer says about collateral consequences is outside of his mandated role under the Sixth Amendment and is therefore not grounds for reversal.

The Supreme Court will hand down its decision in the case later this year.

By Ravi Bhatia-Talk Radio News Service

Animal cruelty clashed with first amendment rights today in the U.S. Supreme Court case of United States v. Stevens, which also marked Justice Sonia Sotomayor’s second day sitting as an Associate Justice in the Court’s new term. 

In 2004, Robert Stevens was indicted and charged with selling three dogfighting videos to undercover law enforcement agents. Congress enacted the statute in 1999, which deemed that whoever sells depictions of animal cruelty would be fined and/or imprisoned for up to five years. 

Steven’s 37-month sentence was 14 months longer than NFL quarterback Michael Vick’s, who had participated firsthand in a dogfighting venture. Although dogfighting is illegal in all 50 states, the practice is legal in Japan, where much of the footage in Stevens’ videos came from. 

According to Neal Katyal, the government lawyer defending the law, a “robust market” in animal cruelty exists. Upholding the statute would dry up the market for such material, he argued. It would also add to the precedent set in New York v. Ferber in 1982, when the Court ruled that the First Amendment right to free speech did not forbid states from banning the sale of child pornography.

The Ferber case was the last time that the question of whether or not material was too obscene to receive first amendment protection was addressed.

Patricia Millett argued on behalf of Stevens, suggesting that the statute was drafted too broadly and that it applied to legally protected activity.

Congress had enacted Article 48 in order to outlaw “crush videos,” which depicted close-ups of women inflicting torture on animals such as hamsters, puppies and kittens with their bare feet or while wearing high-heeled shoes.

The Supreme Court will release their decision on the case later this year, although the tone of the hearing implies that the justices are leaning towards affirming the decision of the Court of Appeals in overturning the law.

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.

In the first case argued by Solicitor General Elena Kagan, before a Supreme Court bench containing Sonia Sotomayor for the first time, both failed to impress. Kagan, representing the government, had the job of defending the federal laws that prohibit corporations and labor unions from funding their own campaign ads. The law was being challenged by a private corporation, Citizens United, that produced a movie about Hillary Clinton during the presidential primary season last year.

Justice Sotomayor expressed some concern that if the Court decided to strike down the law, that that would cut off the democratic process, preventing the federal government and states from experimenting with different regulator regimes. Her question is one that applies to any Supreme Court decision that applies constitutional rights, and Floyd Abrams, attorney for Senator Mitch McConnell (R-Ky.), easily responded that the First Amendment trumped those kinds of concerns.

Lawyers for Citizens United argued that there was no real difference between a corporation and an individual: both have First Amendment rights to speech, especially political speech, that the government cannot restrict unless it can show it has a compelling reason. The government was in an awkward position: in addition to having to backpedal from the March 24 Court session in which the government argued it could ban books if it wanted to, Solicitor General Kagan urged the Court not overturn the 1990 precedent of Austin v. Michigan Chamber of Commerce by offering a different rationale the Court could have used in that case but didn’t.

Kagan’s arguments generally fell flat, with the support for the campaign finance laws coming from Justices Stevens, Ginsberg, and Breyer, each giving his own reasons. Justice Sotomayor, only asking a couple of questions, seemed to support the laws for practical reasons, suggesting that the lower courts should reexamine this issue more before the Supreme Court decides.

Justices Roberts, Scalia, Kennedy, and Alito pushed the regulation’s advocates pointing out that the law bars any corporation from paying for ads, even small businesses completely owned by a single person. Kagan could respond only by pointing out the FEC has never gone after a small business for making an ad, prompting Justice Scalia to retort, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

Justice Thomas, as usual, asked no questions. In the past he has been the Court’s harshest critic of campaign finance laws like these.

The Supreme Court is in recess until October 5, at which time its decision will likely be announced.

Senate Democrats celebrate the 68-31 vote that confirmed Sonia Sotomayor to the U.S. Supreme Court. August 6, 2009

Sen. Charles Schumer says during a rally for Supreme Court nominee Sonia Sotomayor that “it is time” for a Hispanic woman to be confirmed as a Supreme Court Justice. He also says that she can serve as inspiration for young Hispanics. “You can achieve the stars in America just like Sonia Sotomayor has done,” says Schumer. (0:36)

 

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By Courtney Ann Jackson-Talk Radio News Service

Civil rights leaders and Senators joined in a rally on Capitol Hill Wednesday to voice their support for Supreme Court nominee Sonia Sotomayor’s confirmation.

The familiar phrase from President Obama’s campaign, “yes we can,” was heard both in English and Spanish at the rally, which was hosted by the Leadership Conference on Civil Rights (LCCR) and the National Council of La Raza (NCLR). The atmosphere was extremely celebratory as the crowd loudly responded with cheers each time the name of the historic nominee was mentioned.

Sen. Charles Schumer (D-N.Y.) was one of four Senators who spoke at the rally. “There are three words that sum up this nomination: It is time,” Schumer declared.

Sen. Ben Cardin (D-Md.), Sen. Sheldon Whitehouse (D-R.I.), and Sen. Robert Menendez (D-N.J.) also showed their support, adding that they were not pleased with the overall Republican response to the nomination.

“Let us hope that as history looks back on this day, it notes the historic occasion of the confirmation of Justice Sotomayor and …not the Republicans’ strange and strained efforts to impose right-wing political orthodoxy on our courts and judges,” said Whitehouse.

Sen. Menendez spoke about the response of the Hispanic community to Sotomayor nomination, but also mentioned the appreciation of the few Republican Senators who have said they will vote yes for her confirmation.

“When she raises her hand and takes that oath of office, the Supreme Court will be better, the nation will be better, and we will have fulfilled our promise as a country,” said Menendez.

Civil rights organizations including the Hispanic Federation, the Alliance for Justice, the NAACP and others were also present in support of Sotomayor. Many people held signs with the slogan “I stand with Sotomayor,” and at one point, a chant of, “What do we want?-Sonia-When do we want it?-Now,” erupted.

By Courtney Ann Jackson – Talk Radio News Service

Members of the Senate want to ensure that medical devices which patients rely on to stay alive and healthy are working properly. Patients as well as medical professionals testified before the Senate Health, Education, Labor and Pensions Committee (HELP) Tuesday to express support for the Medical Device Safety Act of 2009.

Each witness provided different insight into an issue that Sen. Ted Kennedy (D-Mass.) sought to address over 30 years ago. He worked on the Medical Device Amendments Act, a bill that gave the Food and Drug Administration (FDA) authority to regulate medical devices.

Sen. Tom Harkin (D-Iowa) said last year’s Supreme Court decision in Reigel v. Medtronic, Inc., gave corporations immunity from lawsuits which involve endangering consumers with unsafe devices.

“The upshot is that negligent corporations are not held accountable, victims cannot receive fair compensation and consumers are at risk. Unfortunately, this has had catastrophic consequences for ordinary Americans,” said Harkin.

Michael Mulvihill was one of the patients who testified. He received 22 electric shocks within a span of 53 minutes from a faulty Medtronic defibrillator. The defibrillator had been implanted in him a little over a year ago to help address an irregular heart beat and pulse rate.

Mulvihill said, “My hope is that no one else ever has to go through the pain and agony that I experienced with the fractured lead, and that Medtronic is held responsible for the injuries it has caused other patients like me.”

Sen. Harkin believes people should maintain the ability to sue when injured and, in turn, encourage manufacturers to use “utmost care” and improve the safety of their devices.

“The threat of [product] liability is the safety net that helps repair problems when the FDA or manufacturers fail to warn consumers properly,” said Harkin.

Other members of the panel felt that the “Medical Device Safety Act of 2009” could stifle some important progress in the realm of innovation.

Michael Roman, an amputee, testified that in the time span of just five years, the changes in spinal cord stimulator technology have made a “huge difference” in his life and that of his family.

“But what if Congress had enacted the Medical Device Safety Act in 2001? For me, I’m sure it would have been game over,” said Roman.

Committee members say the purpose of the Act is to ensure the safety of consumers.

Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senate Majority Leader Harry Reid (D-Nev.) joined representatives of various civil rights organization in a press conference Wednesday to discuss the historic nomination and upcoming Senate vote of Judge Sonia Sotomayor.