Rumsfeld v. Padilla (03-1027), Illinois v. Fisher (03-374), and order list

February 23, 2004 Supreme Court Update

Greetings Court fans!
Doesn't it just seem like forever since we last met? The Court has finally emerged from its winter recess with a few cert grants and a per curiam opinion.

Of course, the big news is that last Friday, the Court granted cert in another "terrorism" case, Rumsfeld v. Padilla (03-1027). In this case, the Second Circuit held that the President cannot detain a United States citizen in the United States based on a determination by the President that he is an "enemy combatant." The Supreme Court will review that decision, and thanks to the parties' agreement on an expedited briefing schedule, will hear this case this Term. I should note that my colleague at Wiggin and Dana, Jonathan Freiman, wrote an outstanding amicus brief in the Second Circuit in this case (a brief that the Second Circuit relied upon heavily in its decision) and that he will be working on this case at the Supreme Court as well. (Jonathan will be very busy this spring because he will also be filing an amicus brief in the Hamdi case.) Best of luck, Jonathan!

In news from today's order list, the Court granted cert in 3 cases and asked the SG to weigh in on one case:
1. Leocal v. Ashcroft (03-583). Under our nation's immigration laws, aliens convicted of "aggravated felonies" (certain "crimes of violence") are deportable. In this case, the question is whether a conviction for DUI with serious bodily injury under Florida law is a "crime of violence."
2. Jama v. INS (03-674). This is another immigration case, this one asking whether, under certain provisions of the immigration code, the Attorney General may remove an alien to a country without first obtaining that country's acceptance of the alien.
3. Stewart v. Dutra Const. Co. (03-814). Can you believe we have to wait till next Term to get the answer to this question: For purpose of establishing 'seaman' status under the Jones Act, which requires the worker to have 'employment-related connection to a vessel in navigation,' what is the legal standard for determining whether special purpose watercraft is a 'vessel'?
4. Sherrill, NY v. Oneida Indian Nation of NY (03-855). This is a case about whether certain lands are "Indian country" and thus immune from state taxation; the Court has asked the SG to offer the views of the United States on the question. 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?

Finally, I'll close with the opinion. In Illinois v. Fisher (03-374), the Court summarily reversed an Illinois Appellate Court decision that had overturned a criminal conviction. Fisher was arrested in 1988 on drug charges and his attorney filed a routine motion for discovery of all physical evidence to be used at trial. When Fisher was tried 10 years later (after an extended stay in Tennessee as a fugitive), it turned out that the police had destroyed the key evidence in his case: the substance seized from Fisher at his arrest. The Illinois Appellate Court held that it violated due process to convict Fisher because the police should have preserved the evidence in light of his discovery request. In an almost unanimous per curiam opinion, the Court reversed. While the state violates due process when it fails to disclose material exculpatory evidence to a defendant, even if it acts in good faith, the failure to preserve "potentially useful evidence" does not violate due process unless the defendant shows bad faith on the part of the police. Here, the evidence was at best "potentially useful," and there was no dispute that the police acted in good faith in this case. The fact that Fisher had filed a discovery motion is irrelevant. No due process violation. End of story. Stevens concurred. He believes that there might be cases where the defendant can't prove bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair. This isn't such a case, however, so he concurred in the judgment.

That's all for now. The Court will almost certainly hand down decisions tomorrow and Wednesday. Until then, thanks for reading.

Sandy

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.