Missouri v. Seibert (02-1371), United States v. Patane (02-1183), Cox v. Larios (03-1413), Rasul v. Bush (03-334), Hamdi v. Rumsfeld (03-6696) and order list

July 1, 2004 Supreme Court Update

Greetings Court fans!

Welcome to the last update of October Term 2003! In this last edition, you'll find summaries of 5 opinions and news from the final order list, so let's get going!
I'll begin with the two Miranda cases, both of which were decided without majority opinions. In Missouri v. Seibert (02-1371), the Court held that a police procedure called "question-first" does not comply with Miranda and thus the defendants' statements made during this procedure were inadmissible. In the "question-first" procedure, police question a suspect until she confesses. Once the confession is out on the table, the police give the suspect her Miranda warnings, and then question her again, leading her through the same set of questions until she confesses again. Souter (joined by Stevens, Ginsburg and Breyer) wrote the plurality opinion announcing this procedure unlawful. Miranda targeted interrogation practices likely to prevent an individual from making a free and rational choice about speaking to police and so held that a suspect must be "adequately and effectively" advised of the choice the Constitution guarantees. According to Souter, it is "absurd" to think that the mere recitation of the Miranda litany satisfies this standard in all circumstances. Thus, the question presented by this case is whether the question-first procedure effectively conveys the warnings as required by Miranda. And for Souter, there is little doubt that the question-first procedure does not convey the Miranda warnings effectively. After all, the whole point of the question-first procedure is to get a confession the suspect would not make if he understood his rights from the outset. When the Miranda warnings are issued after the suspect confesses, he would hardly think that he has a genuine right to remain silent. Breyer concurred. He would hold that courts should exclude the "fruits" of the initial unwarned questioning (i.e., the second confession) unless the failure to warn was in good faith. Kennedy concurred in the judgment, providing the fifth vote to invalidate the procedure. He finds the procedure invalid because it relies on an intentional misrepresentation of the protection that Miranda offers and does not serve any legitimate objectives that might otherwise justify its use. O'Connor (joined by the Chief, Scalia and Thomas) dissented. She agrees with the plurality that the "fruit of the poisonous tree" doctrine should not apply and that the standard in this case should not turn on the subjective intent of the interrogating officer. Beyond that, she believes that this case is controlled by Oregon v. Elstad, which requires an examination into whether the taint of the initial involuntary statement dissipated through the passing of time or a change in circumstances.
In the second Miranda case, United States v. Patane (02-1183), the Court held that the "fruit of the poisonous tree" doctrine does not apply to require the suppression of the physical fruits of a suspect's unwarned but voluntary statements. Here, before he was read his Miranda rights, Patane made a statement that led police to his gun. Since Patane shouldn't have had the gun in the first place (he is a convicted felon), he obviously wanted the gun suppressed at trial and so argued that it was the fruit of an unlawfully obtained statement. Thomas (joined by the Chief and Scalia) authored the plurality opinion that rejected this argument. According to Thomas, the Miranda rule is a prophylactic used to protect against violations of the Self-Incrimination Clause, a clause designed centrally to prohibit compelling a defendant to testify against himself at trial. That clause is not implicated by the admission into evidence of the physical fruit of a voluntary statement, and so there is no need for extending the Miranda rule to this context. And because the Miranda rule is not a rule of police conduct, the exclusionary rule does not apply. Kennedy (joined by O'Connor) concurred. He reads prior cases as holding that evidence obtained following an unwarned interrogation was admissible because the concerns underlying Miranda must be accommodated to other objectives in the criminal justice system. The facts of this case, according to Kennedy, provide even more compelling reasons for admitting the nontestimonial evidence. Souter (joined by Stevens and Ginsburg) dissented because he believes that the Court's holding creates incentives for the police to omit Miranda warnings. Breyer dissented separately. He would extend the "fruit of the poisonous tree" doctrine to Miranda.
Before turning to the terrorism cases, let me address briefly the Court's decision in Cox v. Larios (03-1413). In this appeal, the Court summarily affirmed a lower court's decision finding that Georgia's legislative reapportionment plans violate the equal protection clause. Although the Court did not issue an opinion in this case (it was a "summary" affirmance), Stevens (joined by Breyer) filed a concurring opinion. This was a "political gerrymander" case (i.e., Republicans alleged that Democrats drew districts to systematically disfavor Republicans) that resulted in districts with wide variations in population size; the district court found these population deviations violated the "one-person, one-vote" principle. The respondents in this case asked the Court to create a safe harbor for population deviations of less than 10%, but the Court refused. Stevens finds this refusal proper. Scalia dissented. He reads prior cases to establish the principle that minor deviations (less than 10%) among districts do not violate the Fourteenth Amendment. He would set the case for argument to determine whether a plan that satisfies the less-than-10% standard may nevertheless be invalidated because of evidence that the plan was politically motivated.
Finally, I'll close with the terrorism cases. In Rasul v. Bush (03-334), the Court held that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and held at Guantanamo Bay. The lower courts had held that federal courts lacked jurisdiction to even consider claims by the Guantanamo detainees, but Stevens (joined by O'Connor, Souter, Ginsburg, and Breyer) reversed. (Large portions of the opinions in this case turn on disputed interpretations of prior cases. I'll skip these details and just give the conclusions.) According to Stevens, the federal habeas statute, 28 USC 2241, authorizes district courts "within their respective jurisdictions," to entertain habeas petitions by persons claiming to be held "in custody in violation of the laws of the United States." This jurisdiction extends to aliens held in Guantanamo, a territory over which the United States exercises plenary and exclusive jurisdiction, if not ultimate sovereignty. Kennedy concurred. He believes this case is different from prior cases because (1) Guantanamo Bay is effectively a United States territory, and (2) the detainees are being held indefinitely. Scalia (joined by the Chief and Thomas) dissented. He thinks the Court's decision is flatly inconsistent with prior cases and, worse, irresponsible in this time of war.
In Hamdi v. Rumsfeld (03-6696), the Court held that while the President has authority to detain enemy combatants in the circumstances of this case, due process demands that an American citizen held as an enemy combatant in the United States must be given a meaningful opportunity to contest the factual basis for the detention before a "neutral decisionmaker." Hamdi is an American citizen who was captured "on the battlefield" in Afghanistan. He is classified as an enemy combatant because he took up arms with the Taliban against the United States. His father filed a habeas petition seeking to have him released, and the lower courts rejected his claims. The Supreme Court (O'Connor, joined by the Chief, Kennedy and Breyer) vacated and remanded. The opening question presented by the case is whether the executive branch has authority to detain citizens who qualify as "enemy combatants." O'Connor says yes. Without addressing whether the Constitution (by itself) authorizes such detentions, or whether explicit statutory authorization is in fact required for such detentions, O'Connor finds that Congress authorized Hamdi's executive detention here when it authorized the use of force to respond to September 11. That congressional action authorized the President to use "all necessary and appropriate force," and this language includes the capture, detention and trial of unlawful combatants. And while indefinite detention would be problematic (this is the war on terror, after all, a war that might not be won for generations), the congressional authorization permits Hamdi's detention so long as active combat operations continue in Afghanistan. That the executive may detain Hamdi doesn't end the analysis, however, because the next question is "what process is due"? The government claimed that Hamdi had received all the "process" he was entitled to, but O'Connor rejects that position by evaluating Hamdi's due process claim under the familiar Mathews v. Eldridge standard. Hamdi has a significant interest in not being wrongfully detained, an interest that is not offset by the circumstances of war or the allegations of treason made against him. On the other side of the scale, the government has a weighty interest in ensuring that those who fought with the enemy during a war do not return to the battlefield against the United States, and in avoiding the burdens on military officers (and concomitant threats to national security) that would arise from a system of trial-like procedures for enemy combatants. Balancing these competing interests, the Court concludes that a detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut those factual assertions before a neutral decisionmaker. Oh, and Hamdi has the right to counsel in these proceedings. The proceedings should be tailored to alleviate burdens on the executive, however. For example, hearsay may need to be admitted, and there could be a presumption in favor of the government's evidence so long as the detainee has a fair opportunity to rebut the presumption. O'Connor concludes by emphasizing that the Court is necessarily rejecting the government's position that courts should have a circumscribed role in these proceedings. "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
Souter (joined by Ginsburg) concurred in part, dissented in part, and concurred in the judgment. He does not believe that the congressional authorization for the use of force authorizes Hamdi's detention. While he thinks litigation over Hamdi's status as an enemy combatant unnecessary, to give practical effect to the Court's judgment, he joins in the remand for proceedings to allow Hamdi to offer evidence that he is not an enemy combatant. Scalia (joined by Stevens!) dissented. For Scalia, in the absence of a congressional suspension of the writ of habeas corpus, the Constitution requires the government to charge Hamdi with a crime or release him. The indefinite detention, without charge, is unlawful. Thomas dissented as well. He believes that the Executive Branch had authority (in the use of force authorization) to detain Hamdi as an enemy combatant, and that the courts should not second guess that executive decision.
In addition to these opinions, the Court released an order list with several interesting items. First, the Court asked the Solicitor General to file a brief expressing the views of the United States on two cases:
1. Hewlett-Packard v. Jebian (03-1202). An ERISA case about the proper standard of judicial review for the denial of an employee benefits claim: Does the standard of judicial review change when an employee benefits claim is "deemed" denied by the passage of time?
2. Hill v. Lockheed Martin (03-1443). This is an employment discrimination case with the following question: Under Title VII and the ADEA, if an employee is dismissed as a result of intentionally discrimination actions by a company official who exerted substantial influence over the dismissal decision, may the employer avoid liability by showing that a different official was the "actual decisionmaker"?
The Court also granted cert in a number of cases:
1. Bates v. Dow Agrosciences (03-388): Farmers filed state law claims against a herbicide manufacturer alleging that the herbicide caused numerous problems with peanut growth. The question here is whether their claims are preempted by the Federal Insecticide Fungicide and Rodenticide Act.
2. Sherrill v. Oneida Indian Nation of New York (03-855): This is a case about whether certain lands are "Indian country" and thus immune from state taxation. The specific questions are, broadly, as follows: (1) Is the land Indian country when it was neither set aside by the federal government nor superintended by the federal government? (2) Was the reservation set aside by the federal government for purposes of Indian country analysis when it was established by the state of New York in a 1788 treaty? (3) Did an 1838 treaty, which required the Indians in question to permanently abandon their lands in New York result in disestablishment of the alleged New York reservation? and (4) May the alleged reservation (i) remain Indian country or (ii) be subject to protections of Non-Intercourse Act, if the tribe claiming reservation status and Non-Intercourse Act protection ceases to exist?
3. Tenet v. Doe (03-1395): The question here is as follows: Does Totten v. United States bar the district court from considering respondents' due process and tort claims that the CIA has wrongfully refused to keep its alleged promise to provide them with lifetime financial assistance in exchange for their alleged espionage services to CIA?
4. Ashcroft v. Raich (03-1454): How fun! A medical marijuana case! The question here (as drafted by the SG's office) is whether the Controlled Substances Act exceeds Congress' power under the commerce clause as applied to the intrastate cultivation and possession of marijuana for purported personal medicinal use or to distribution of marijuana without charge for such use.
5. Rhines v. Weber (03-9046): Remember the "stay-and-abeyance" procedure discussed in Pliler v. Ford, a procedure for dealing with habeas petitions that include both exhausted and un-exhausted claims? This case will allow the Court to consider the legality of that procedure.
6. Howell v. Mississippi (03-9560): This is a capital case from Mississippi that raised a host of questions below. It seems that the Supreme Court will consider Howell's challenge to jury instructions that failed to instruct on lesser included offenses, and also whether this claim was properly raised before the Mississippi Supreme Court.
7. Miller-el v. Dretke (03-9659): This is the second trip to the Court for Mr. Miller-el. Last year, the Court ruled that the Fifth Circuit should have heard Miller-el's Batson claim on habeas, so sent it back to that court for reconsideration. On remand, the Fifth Circuit held that there was insufficient evidence to support a Batson challenge, and so the Supreme Court will consider that new conclusion.
8. Dura Pharmaceuticals v. Broudo (03-932): This is a securities fraud case: Must a securities fraud plaintiff invoking the "fraud-on-the-market" theory demonstrate loss causation by pleading and proving causal connection between alleged fraud and investment's subsequent decline in price?
That's it for OT 2003. The Justices are all off on summer vacation, so we're now all free to take a break!
Before I close, let me thank you all one more time for reading and supporting these emails throughout the Term. These emails allow me to keep up with old friends and new colleagues, and so I especially enjoy your responses, whether in the form of questions, comments, or criticisms. At the risk of sounding hokey, it is your responses that make this whole venture worthwhile. So, enjoy the 4th of July and the rest of your summer, and until the Court acts again, thanks for reading!
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin at 203-498-4400, or visit our website at www.wiggin.com.