Making a Murderer: Oh-So-Many Talking Points

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Evidence, Judges & Judicial Process, Legal Ethics, Legal Practice, Legal Profession, Popular Culture & Law, Public, Wisconsin Law & Legal System
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635874987555624158-XXX-IMG-NETFLIX-MAKING-A-MUR-1-1-VGCTGMDU-78432434As the winter break winds down, it’s definitely worth your time to start binge-watching Making a Murderer, a recent Netflix documentary on a real-life criminal case. A very close-to-home criminal case, at that.

The documentary, filmed over 10 years, follows Steven Avery, who was convicted in 1985 of sexual assault. He maintained his innocence and, indeed, 18 years later DNA evidence exonerated him. After he was released, he sued Manitowoc County for his wrongful conviction. It looks as though that lawsuit starts digging up some very unsavory conduct among officials in Manitowoc County.

But then—Avery is arrested for the murder of photographer Teresa Halbach. Several months later, his nephew Brendan Dassey is also arrested.

I’ll stop there with plot. If you’ve been around Wisconsin, you’ve probably heard of the case. If you’ve been on the Internet in the last couple of weeks, you’ve almost surely heard of it. But you must watch it.

For law students, there’s so many teachable moments. For everyone, there’s so much to talk about. Read more »

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Supreme Court Roundup Part Two: King v. Burwell

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Category: Constitutional Law, Health Care, Judges & Judicial Process, Marquette Law School, Public, U.S. Supreme Court
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Obama_signs_health_care-20100323On October 5, I participated in an event at the Marquette University Law School entitled “Supreme Court Roundup” with Cato Institute Scholar Ilya Shapiro.  The event was sponsored by the Law School Chapters of the Federalist Society and the American Constitution Society.  A previous post contained my remarks on Obergefell v. Hodges (the “Gay Marriage case”).  What follows are my prepared remarks on King v. Burwell (the “Obamacare case”).

The issue in this case was whether the Affordable Care Act’s tax credits are available in States that have a federal health insurance exchange rather than a state exchange. In Section 36A, the Affordable Care Act (commonly known as “Obamacare”) states that tax credits “shall be allowed” for any “applicable taxpayer.” Then, in Section 36B, the Act provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State.” (emphasis added).

In King v. Burwell, the U.S. Supreme Court, in an opinion written by Chief Justice John Roberts, held that Section 36B allows tax credits to be used for insurance purchased on any exchange created under the Act, including insurance purchased on a federal exchange.

I want to be clear.  I make the following statement with the intent to be as objective and non-partisan as possible.  This litigation was nothing more than a post hoc attack on the Affordable Care Act, using one isolated provision of the law read out of context in order to arrive at a nonsensical meaning, which then used a manufactured theory of legislative intent – a theory without a shred of contemporaneous support in the legislative history – in a desperate attempt to prop up the nonsensical meaning.

The background of how this case arose is illuminating. Read more »

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Supreme Court Roundup Part One: Obergefell v. Hodges

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Marquette Law School, Public, U.S. Supreme Court
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b599a34c0d512e42e3f5277e172bbebcd745dd98Today marks the beginning of the United States Supreme Court’s 2015-2016 Term, and coincidentally it also marked my participation in an annual event at the Marquette University Law School entitled “Supreme Court Roundup.”  Along with Cato Institute Scholar and Supreme Court expert Ilya Shapiro, I was invited by the Law School Chapters of the Federalist Society and the American Constitution Society to share my perspective on three cases from the Supreme Court’s docket last year.  The cases we discussed included Obergefell v. Hodges (the “Gay Marriage case”), King v. Burwell (the “Obamacare case”) and Yates v. United States (the “fish case”).  Thanks to the law students for the invitation and a special thank you to Mr. Shapiro for his participation.  What follows are my prepared remarks on the Obergefell case.

I call this case “Thurgood Marshall’s Revenge.”

In Obergefell v. Hodges, the Supreme Court held that state laws denying marriage licenses to same sex couples violated the Equal Protection Clause of the United States Constitution.

Justice Kennedy’s majority opinion in Obergefell is notable for what it does not talk about. The majority opinion does not rely upon the theory that marriage is a fundamental right and that therefore state laws infringing upon the right to marriage must be subjected to strict scrutiny. Nor does the majority opinion rely upon the theory that homosexuals are a suspect class, thereby subjecting state laws that treat homosexuals different than heterosexuals to strict scrutiny under the Equal Protection Clause.

The methods by which the Court has traditionally determined whether to apply heightened standards of review to legislative acts – strict scrutiny, intermediate scrutiny, heightened rational review – are what are known as “heuristic devices.” These are artificial aids to problem solving. The Constitution does not use the phrases “strict scrutiny” or “suspect class,” but by creating artificial rules that group cases under these headings, the Supreme Court has developed a methodology for defining the outer boundaries of state policing over individual freedom.

Instead of using the Obergefell case as an opportunity to develop and clarify how the concepts of strict scrutiny and suspect class inform the Court’s interpretation of the Constitution, the majority opinion simply ignores these heuristic devices altogether. In doing so, the majority seems to be belatedly embracing the view of Justice Thurgood Marshall in a 1973 dissenting opinion. Read more »

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Wisconsin’s Narrow Interpretation of Padilla v. Kentucky

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Category: Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Immigration Law, Prisoner Rights, Public, Wisconsin Supreme Court
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4c556cb87b0a9_imageWhile in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction.  559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.

Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.

The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence. Read more »

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Constitution Day Trivia Tidbits

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Category: Constitutional Interpretation, Constitutional Law, Public
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constitutionSeptember 17 marks Constitution Day, the day in 1787 on which delegates to the Constitutional Convention signed the United States Constitution. Yesterday, the ABA Journal posted an interesting article to celebrate. The article contains 10 lesser-known facts about our Constitution, including these:

  • Most voters today would not have had the right to vote under the original Constitution. Voting rights were limited to propertied white males.
  • The word “God” never appears in the Constitution or the Bill of Rights. The source of all government power is in “the People.”
  • The word “democracy” never appears in the Constitution or Bill of Rights. James Madison and Alexander Hamilton claimed in the Federalist Papers that democracies were a disaster.
  • The First Amendment was not originally first. It started out as the third. For that matter, the Second Amendment was not originally the second. The original first and second amendments dealt with the size of Congress and with issues relating to Congress’s pay.

See here for the rest of the facts, and test your knowledge of the Constitution with the short quiz How well do you know the U.S. Constitution at the bottom of the page. It’s not as easy as you’d think! Next week, I’ll post on Professor Chad Oldfather’s interesting Constitution Day presentation on constitutional interpretation.

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Marquette Students Study Comparative Law in Germany

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Category: Constitutional Law, International Law & Diplomacy, Marquette Law School, Public
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Giessen 2015This is week Two of the Summer Session in International and Comparative Law, taking place in Giessen, Germany.  Pictured to the left are my students in the class on Comparative Law.  They come from Mexico, Peru, Senegal, Brazil, Zimbabwe, Spain, Moldova, Vietnam, the Slovak Republic and, yes, even Wisconsin.  Along with my co-teacher, Thilo Marauhn from Justus Liebig University here in Germany, we have been comparing the constitutional systems of the United States and Germany, and also contrasting the quasi-constitutional structure of the European Union.  It may not look like it in the photo, but we are certainly having a great deal of fun.

Other classes this session include International Economic Law & Business Transactions, The Law of Armed Conflict, and International Intellectual Property Law.  The faculty come from the United States, Germany, Lithuania, and Great Britain.  The faculty are all experts in their fields and, judging from our dinner tonight, we all share an appreciation of German beer. Read more »

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The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Human Rights, Judges & Judicial Process, Legal History, Political Processes & Rhetoric, Public
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b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others. Read more »

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The Problem with Justice Thomas’s Dignity Argument

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Category: Constitutional Law, Judges & Judicial Process, Public, U.S. Supreme Court
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Justice Thomas, in his fervent dissent to the Supreme Court’s decision to invalidate same-sex marriage bans, has some interesting things to say about the concept of dignity. His view of human dignity is that it is innate and therefore inalienable: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.”

The punchline, of course, is that the majority’s reasoning, which relies heavily on a Constitutional reading that sees dignity at the heart of liberty and the Due Process Clause, is flawed – gays and lesbians are not deprived of dignity (and therefore liberty) by their inability to marry, because “the government cannot bestow dignity, and it cannot take it away.” Essentially, Justice Thomas says, as long as the state leaves me alone, my liberty and dignity are intact.

Justice Thomas’s invocation of slavery and internment to illustrate his qualms about the dignity argument arguably undermines the moral force of his point. Moreover, it rests on a narrow and theoretical concept of dignity.   Read more »

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Rodriguez v. United States: Supreme Court Says No to Prolonged Traffic Stops

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Category: Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court
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Last week, the Supreme Court decided City of Los Angeles v. Patel, the fourth and final of its search-and-seizure cases this term. In Patel, the Court overturned a city ordinance requiring hotel operators to share information about their guests with the police.

Patel confirmed this as a good term for Fourth Amendment rights, joining Grady v. North Carolina (GPS tracking of sex offender counted as search for Fourth-Amendment purposes) and Rodriguez v. United States (police improperly extended traffic stop to conduct dog sniff of car). Less favorable, though, was Heien v. North Carolina (no suppression of evidence obtained after traffic stop that was based on officer’s reasonable mistake of law).

The remainder of this post will focus on Rodriguez, which strikes me as the most interesting of the Fourth-Amendment series. Broadly speaking, at issue was the extent to which the police can go on a fishing expedition when they pull over a driver for a traffic violation.   Read more »

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Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause

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Category: Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court
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By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial. Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature. A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered. Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.

Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children.   Read more »

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Legislative Diplomacy After Zivotofsky

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Category: Constitutional Law, International Law & Diplomacy, Public
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The Supreme Court’s decision in Zivotofsky v. Kerry held that Congress violated the separation of powers by enacting a statute that purported to compel the President to issue statements that contradict his policy of strict neutrality on the status of Jerusalem. In a recent post, I analyzed a disagreement between the majority and the dissent on the significance of foreign perceptions of U.S. law. I’ve now written a second post on the case, this time exploring Zivotofsky‘s implications for the constitutionality of diplomatic communications between Congress and foreign governments. It’s available over at Lawfare.

 

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The Role of Foreign Perceptions in Zivotofsky v. Kerry

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Category: Constitutional Law, International Law & Diplomacy, Public
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On Monday the Supreme Court issued a long-awaited and important decision in Zivotofsky v. Kerry. This was a case about the nature of the President’s power to recognize foreign borders, and it required the Court to address the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2002, which entitled U.S. citizens born in Jerusalem to have “Jerusalem, Israel” listed on their passports as the place of birth. While the statutory entitlement may seem rather mundane, it conflicted with the Executive Branch’s longstanding policy of strict neutrality on Jerusalem’s status by suggesting that the city is located within Israeli borders. Because the Executive policy dictated that passports list only “Jerusalem,” Presidents Bush and Obama refused to implement the statute. Thus the question: Who gets to decide whether the United States will recognize Jerusalem as Israeli territory–Congress or the President?

The Court sided with the President and declared the statute unconstitutional. I wrote a post addressing one of the interesting issues in the case over at Lawfare; it’s available here.

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