Supreme Court Begins New Term

Monday, the Supreme Court, with newly appointed Justice Sonia Sotomayor, begins its new term. Among the cases of interest:

  • Whether police may reinterrogate a continuously imprisoned suspect about an offense for which he invoked his right to counsel three years earlier
  • The applicability of Second Amendment gun rights to state and local governments
  • Whether the Eighth Amendment's ban on cruel and unusual punishment bars Florida from imprisoning juveniles for the rest of their lives without any possibility for parole.
  • The validity of a federal law that allows the government to hold alleged sexual predators indefinitely in protective custody once they are deemed to be "sexually dangerous," even after they have served a full criminal sentence.
  • Whether Congress has the power to ban possession and distribution of images of animal cruelty, such as pit bull fights.


Does anyone think Justice Sotomayor is going to join forces with the more liberal justices on these cases? Given her background as a prosecutor, I tend to doubt it.

Reuters has this summary of the cases to be decided this term.

Due to a change in the schedule, tomorrow's oral arguments will be:

Maryland v. Shatzer

Does Edwards v. Arizona prohibit the re-interrogation of a suspect, who has invoked his Fifth Amendment rights to counsel and to remain silent, after a substantial amount of time has elapsed between the invocation of rights and the subsequent interrogation?

and Mohawk Industries v. Carpenter.

Whether a party has the right to an immediate appeal under the collateral order doctrine, as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), from a district court’s order finding waiver of the attorney-client privilege and compelling production of privileged materials.

Regarding Maryland v. Shatzer, here's the Amicus Brief of the National Association of Criminal Defense Lawyers that argues:

This Court should reaffirm the bright-line rule of Edwards v. Arizona, 451 U.S. 477 (1981), and hold that when a suspect invokes his Fifth Amendment right to counsel, the police may not reinitiate interrogation without making counsel available to the suspect, regardless of any alleged break in custody or lapse in time since the invocation of this right.

At an absolute minimum, this Court should not permit police to reinitiate interrogation of a suspect concerning the very same offense as to which he invoked the right to counsel, especially where the suspect is incarcerated.

Update: Law Prof Douglas Berman of Sentencing Law and Policy has compiled a list of the term's cases most likely to affect sentencing.

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  • Display: Sort:
    If the court allows an immediate appeal (none / 0) (#1)
    by Peter G on Sun Oct 04, 2009 at 07:55:37 PM EST
    of a denied pretrial privilege claim in Mohawk Industries, I will be most interested in seeing whether they also drop a hint whether the decision will also apply in criminal cases.  If they so no in civil cases (such as Mohawk), then they surely will not allow it in criminal.  But if they say yes, it will be an interesting and open question.

    What's up with this? (none / 0) (#2)
    by nycstray on Sun Oct 04, 2009 at 08:06:26 PM EST
    Free speech is also on the court's radar this term. At issue in US v. Stevens is whether Congress has the power to ban possession and distribution of images of animal cruelty, such as pit bull fights. A Virginia man was charged under a 1999 federal statute for including footage of a dogfight in Japan (where such fights are legal) in a documentary film he produced and distributed in the US. The central question is whether the First Amendment protects such depictions.

    Is there some 'rule' as to how you can use materials such as this? The HSUS and other orgs use these same materials for education/information. Can you point me towards more info on the federal statute and this case? (I'm a lousy legal googler!)

    To win the case, the government (5.00 / 1) (#4)
    by Peter G on Sun Oct 04, 2009 at 08:32:51 PM EST
    needs to persuade the Supreme Court to recognize an entirely new "exception" to the First Amendment's apparently absolute protection for freedom of speech.  They haven't done this since "child pornography" (which is much more broadly defined than the long-excepted "obscenity" category) was designated as an unprotected form of speech under the First Amendment about 25 years ago.  I'm predicting that the Court will not uphold Congress on this and will strike down the statute.  The Federal Public Defender from Pittsburgh, who won the case in the lower courts, has turned over the Supreme Court briefing and argument to the Stanford Law School Supreme Court Litigation Clinic; those folks are just awesome lawyers (with great students backing them up).  Patricia Millett from the Akin Gump law firm, which works with the clinic, will argue for the defendant.

    Thanks! (none / 0) (#6)
    by nycstray on Sun Oct 04, 2009 at 09:44:21 PM EST
    How would it effect something like this?

    They were each charged with two counts of cruelty to animals and one count each of conspiracy to commit cruelty to animals. In Pennsylvania, cruelty includes promotion of animal fighting. The charges are felonies that carry penalties of up to $15,000 and seven years in prison.



    The First Amendment (none / 0) (#7)
    by Peter G on Sun Oct 04, 2009 at 10:05:43 PM EST
    -- unless the Supreme Court rules otherwise -- protects them against criminal charges for selling and distributing films of dog fighting and other forms of animal cruelty (or publishing a magazine about it). (For example, publishing "High Times" magazine cannot be made illegal on the theory that it "promotes" marijuana cultivation and use.) But the First Amendment wouldn't protect them from prosecution for actually organizing dog fights.  As for the "promotion" and "conspiracy" charges described in the article you linked, it would depend on the factual theory underlying those charges. If the prosecutors' argument is that the defendants "promoted" the illegal fights by writing about them in a magazine and by declaring the winning dogs "champions," or that by publishing the magazine endorsing and celebrating dog fighting, they "conspired" with the actual promoters of fights, then the conspiracy charges should be held invalid also.  But publishing commercial advertisements for illegal fights might be held to be outside First Amendment protection.

    Thanks again :) (none / 0) (#8)
    by nycstray on Sun Oct 04, 2009 at 10:28:34 PM EST
    This is one of those tricky ones for me. Wanting to protect the 1st and the animals. Honestly though, the "artistic expression" in the statute gives a lot of leeway to some of the things I object to, and I'm an artist! (thinking major apparel company advertising, videos etc).

    I'll have to read up on this particular case more and see what else is/was involved.


    More than you could ever want to know (5.00 / 1) (#9)
    by Peter G on Sun Oct 04, 2009 at 11:16:19 PM EST
    is available on "SCOTUSWiki" here, including explanatory analysis and links to all the briefs (50 pages probably explaining each side of the case), plus many, many friend of the court briefs on both sides.

    From Oyez (none / 0) (#3)
    by Jeralyn on Sun Oct 04, 2009 at 08:16:41 PM EST
    Facts of the Case:

    Robert Stevens was convicted under 18 U.S.C. Section 48 in a Pennsylvania federal district court for "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain." His conviction stems from an investigation into the selling of videos related to illegal dog fighting. Mr. Stevens appealed his conviction arguing that 18 U.S.C. Section 48, on its face, was unconstitutional because it violated the Free Speech Clause of the First Amendment

    The U.S. Court of Appeals for the Third Circuit agreed with Mr. Stevens and reversed his conviction, holding unconstitutional 18 U.S.C. Section 48. The court reasoned that the dog fighting videos he sold were protected speech and that 18 U.S.C. Section 48 did not serve a compelling governmental interest.


    Is 18 U.S.C. Section 48, on its face, unconstitutional under the Free Speech Clause of the First Amendment?

    Here's 18 USC 48, Depiction of animal cruelty


    Thank you :) (none / 0) (#5)
    by nycstray on Sun Oct 04, 2009 at 08:46:47 PM EST
    I'll be interested to see where this goes.

    Credentials (none / 0) (#10)
    by lentinel on Mon Oct 05, 2009 at 05:17:42 AM EST
    When Justice Sotomajor was selected by President Obama, I looked for information about her record. It seemed to me that she did not side with civil liberties v/s the power of the state. Nor did she side with individuals against the corporations.

    Perhaps I misread her record.

    But from what I believe I read, I was surprised that she received so much support from the left.

    I hope I'm wrong.

    The position of a Circuit Judge (none / 0) (#12)
    by Peter G on Mon Oct 05, 2009 at 09:09:09 AM EST
    is very different from that of a Supreme Court Justice, in terms of being constrained by prevailing precedent.  On the Second Circuit, Sotomayor had to do her part in churning out hundreds of decisions, many of them quite routine.  The Supreme Court has the responsibility of developing the law, sometimes in new directions, in a select handful of difficult cases each year, and the tradition is that each speaks his or her individual mind.  My experience arguing a few white collar criminal cases in front of Sotomayor was that she was very sharp, and rather law-and-order.  In that role, she didn't show herself to be adventurous or particularly liberal.  But Stevens and Souter were also moderate to conservative when they were Circuit Judges before going on the Supreme Court, and they became the most "liberal" Justices of current times.  Thomas, on the other hand, was rather moderate in his brief time on the D.C. Circuit, and then acted as an extreme conservative on the Supremes. Breyer and Ginsburg come from liberal backgrounds and yet are more pro-bureaucracy than civil libertarian.  Alito, Roberts and Scalia started out far to the right and have stayed that way.  You really never know.  We shall see soon enough if Sotomayor is different in her new role from in her old one.

    A caution (none / 0) (#13)
    by jbindc on Mon Oct 05, 2009 at 10:55:47 AM EST
    That case is only focusing on whether criminals sentenced as juveniles for non-murder offenses (i.e. rape) can be held for life without parole. And realize that none of these types of cases would be eligible for the death penalty, even if committed by adults.  Juveniles who commit murder would still be eligible for LWOP.