The Supreme Court, in what is probably its most important decision of the year, decided that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment’s right to possess a gun. The ruling prevents the states from passing laws prohibiting people from owning guns, although it leaves the door open for limited exceptions such as preventing convicted felon from owning guns.

The plurality opinion, written by Justice Alito, relying upon the Court’s Heller decision of two years ago, finds that the right of self defense is a fundamental right and that in order to maintain the right citizens must be allowed to have guns in their homes. In the process the Court found statutes in Chicago and Oak Park, Illinois which limited the right to possess guns to be unconstitutional.

In applying the Second Amendment to the states the Court reversed case law that has existed since the Nineteenth Century. The Bill of Rights originally applied only to the Federal Government. But after the Civil War the Fourteenth Amendment was adopted. Section One states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Several years after the Fourteenth Amendment was adopted the Supreme Court decided Cruikshank. In Cruikshank The Supreme Court exonerated a group of white men accused of killing a group of African Americans who dared to march through their hometown on the Fourth of July. Among the charges were depriving their victims of various constitutional rights, including the right to bear arms. The Supreme Court held that the Constitution does not guarantee the right to bear arms and therefore Cruikshank and his fellow murderers could not be convicted of depriving the African Americans of the right to bear arms.

The McDonald Court found a long history of self defense. It traces the common law right to the 1689 English Bill of Rights. In 1765 Blackstone call self defense “one of the fundamental rights of Englishmen,” At the Constitutional Convention both Federalists and Anti Federalists recognized the importance of self defense. By 1820 thirteen states recognized the right to bear arms in the state constitutions.

After the Civil War, southerners attempted to disarm African Americans, many of whom served in the Federal army. Congress fought back. The Freedmen’s Bureau Act of 1866, recognized

“the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.”

During the debate on the Fourteenth Amendment Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” One of these,was the right to keep and bear arms: “Every man . . . should have the right to bear arms for the defense of himself and family and his home-stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”

The test for incorporation is whether a right is is fundamental to our scheme of ordered liberty and system of justice. The Supreme Court found that based upon the history of the country and the history of the Fourteenth Amendment the right of self defense is fundamental to our scheme of ordered liberty and system of justice. As such Second Amendment right are incorporated into the Due Process Clause and are enforceable against the states.

In my last post we looked at a section of the Anti-terrorism and Effective Death Penalty Act (AEDPA) which made it illegal to “knowingly provide material support or resources to a foreign terrorist organization.” In that case the Supreme Court upheld the law against a claim that it violated due process by being vague. Today we are going to look at another case in which the Supreme Court last week ruled that a statute violated due process by be being vague.

In Skilling v. United States the Supreme Court vacated the conviction of former Enron executive, Jeffrey Skilling for conspiracy to conspiracy to commit “honest-services” wire fraud.

IN United States v. McNally the Supreme Court limited the crimes of mail fraud and wire fraud to those in which the perpetrator attempted to gain a material reward. Excluded were crimes that deprived the citizenry of good government. To ameliorate the situation Congress passed 18 US 1346 which defined the term “scheme or artifice to defraud” to include a scheme or artifice to deprive another of the intangible right of honest services. But in Skilling the Supreme Court found that the term, “honest services” to be vague. It covers many things and it is unclear exactly what is covered and what is not. Therefore it limited prosecution for honest services fraud to those involving bribes or kickbacks which it claims is the core of an honest services prosecution. The Due Process Clause’s void-for- vagueness doctrine requires that legislation be written

[1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.”

Since Skilling was charged with manipulating the stock market to artificially increase the value of Enron stock and there was no allegation that he received a bribe or a kickback, the conviction was vacated.

In dissent, Justice Thomas says that limiting Section 1346 prosecutions to those involving bribes or kickbacks does not fulfill the intent of Congress in passing the section. After all, Section 1346 was passed to fill loopholes caused by McNally and the defendants in McNally did not receive a bribe or kickback. While he agrees the statute does not stand up to the requirements of due process he would invalidate the law and let Congress start over again.

Several times we have discussed the habeas corpus related sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Today we look at another section of the act, 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provide material support or resources to a foreign terrorist organization.” The AEDPA was part of Newt Gingrich’s Contract on America which was passed and signed by President Clinton following the bombing of the Oklahoma City Federal Building.

The Supreme Court held in Holder v Humanitarian Law Project that one can be convicted of a crime for violating 18 U. S. C. §2339B even if one does not intend to support the violent acts of a terrorist organization. The plaintiffs in Holder want to support the lawful, non-violent activities of a couple organizations who are considered terrorist organizations by the government.

The Kurdistan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE) are on the Secretary of State’s list of foreign terrorist organizations. The plaintiffs filed suit asking that the government be restrained from enforcing the AEDPA against them for supporting the humanitarian and political goals of these organizations. They claimed that the material support provisions as applied to them would violate the First Amendment and the Due Process clause of the Fifth Amendment. The Due Process Clause is violated whenever the law is so vague that one cannot tell what conduct violates the law.

The Court pointed out that the terms of §2339B have been clarified several times to make them less vague. For example “training ” is defined as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge” and “expert advice or assistance” is defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” With the definition in the legislation it is hard to say that the plaintiffs did not know what behavior is illegal.

The second, and more difficult issue raised by the plaintiffs is the question of whether the statute violates their freedom of speech under the First Amendment. As to the First Amendment’s guarantee of freedom of speech the court found that while many of the activities the plaintiffs want to perform such as training members of the PKK on how to use humanitarian and international law to peacefully resolve disputes, and teaching PKK members how to petition various representative bodies such as the United Nations for relief involve speech they also violate the law which forbids “training” and “expert advice or assistance.” The majority opinion by Chief Justice Roberts finds that the extreme danger that terrorist groups present justifies the limited impact upon free speech of the statute. It points out that the statute does not ban independent activities, only those that are coordinated with the alleged terrorist groups. These group have killed many people including Americans. Furthermore, our treaty obligations require that we inhibit the activities of these groups. The skills the plaintiffs want to teach PKK and LTTE can be used not only for good but also to promote terrorist activities. The terrorist organization can use any funds they receive as a result of the plaintiff’s activities are fungible and they may be used to promote terrorism.

The dissent by Justice Breyer stresses the high burden that the government must demonstrate standard before impinging on the right of free speech. It points out it is political speech that it is at issue and that the government’s burden is highest when it wants to prohibit political speech. As the dissent points out, “Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights.” Strict scrutiny is needed when the government denies freedom of speech on content grounds. The dissent further states that the government has failed to prove it’s “fungible” claim and the mere fact that speech may lend legitimacy to the organizations is insufficient reason to deny the plaintiff’s claim to freedom of speech.

The dissent suggests that since the statute bans “material” aid that it only bans that aid that promotes terrorism and it suggests remanding the case to determine whether or not the plaintiffs proposed actions aid the organizations to commit terrorist acts. It would hold that the statute is limited to banning support for terrorist actions and not peaceful actions committed by groups on the Secretary of State’s list.

As President Kennedy said: “There is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment.”

The Sixth Circuit Court of Appeals granted a writ of habeas corpus to Lewis Gagne after the trial court excluded prior sexual activity of the victim in a rape case pursuant to Michigan’s rape shield law.

While the rape shield law is not per se unconstitutional the court’s exclusion of prior evidence of group sex in which Gagne, the complainant, and others participated, in this case, violated Gagne’s constitutional right to present a defense.

Gagne and Donald Swathwood were convicted of raping Gagne’s ex-girlfriend, Pamela Lewis. Prior to trial Gagne’s attorney moved to allow three instances of group sex involving Gagne and Clark into evidence. The first instance involved Swarthwood also and the court allowed it to be used. Clark said she could not remember the incident and the prosecutor argued that it did not exist. The other two incidents, one involving a man by the name of Bermudez, and the other involving an invitation by Clark to Gagne’s father to join Clark and Gagne in sex were excluded. The excluded incidents, unlike the incident involving Swathwood, could have been proved by outside witnesses. There were no witnesses to the charged rape and no physical evidence. The only issue was consent.

In Crane v. Kentucky the Supreme Court ruled that trial courts cannot exclude evidence, the denial of which, denies the defendant “a meaningful opportunity to present a complete defense.” The Anti-Terrorism and Effective Death Penalty Act of 1996 limited the use of the writ of habeas corpus in Federal Courts to challenge state convictions. But the writ may still be granted if a state court violated a United States Supreme Court decision or if it unreasonably applies a Supreme Court decision. In this case the Sixth Circuit found that the Michigan courts unreasonably applied Crane by denying Gagne the right to introduce crucial evidence supporting his defense. The court found, not only, was the evidence of prior instances involving Clark and Lewis relevant but the admission of the evidence would not overly violate the state claims in enacting the rape shield statute. In fact the statute had an exception for prior sex acts involving the defendant. While the evidence that Gagne wanted to introduce involved either the sex acts between Lewis and third parties or her invitation to a third party to join in their sex acts the evidence was close enough to the exception as to limit its negative effect on the state’s interest.

The Supreme Court, yesterday, reversed the denial of a writ of habeas corpus by the Eleventh Circuit Court of Appeals on the grounds that the Circuit Court failed to consider all possible exceptions to the rule that an appellate court accepts the facts as found by the trial court. In this case, which predated the Antiterrorism and Effective Death Penalty Act of 1996, the appellate court adopted the factual findings of the lower court. While generally appellate courts must accept the facts as found by the trial court 28 USCA 2254(d) names eight exceptions to the rule:

“(1) that the merits of the factual dispute were not resolved in the State court hearing;

“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

“(3) that the material facts were not adequately developed at the State court hearing;

“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

“(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

“(7) that the applicant was otherwise denied due process of law in the State court proceeding;

“(8) or unless … the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record .” §2254(d) (emphasis added).

Jefferson was charged with murder of a co-worker on a fishing trip.

As a child, Lawrence Joseph Jefferson suffered major head damage when he was run over by a car. While it is disputed, his trial attorney claimed that an expert told him that it was not necessary to investigate the injury prior to trial. Only minimal evidence was introduced about the injury either at trial or at the sentencing hearing. The habeas alleges that trial counsel was incompetent for not fully investigating the effect of the injury on Jefferson’s behavior. Furthermore in considering the habeas the state court considered only whether or not Section 2254(d)(8) (see above) applied. It found that the factual determination was fairly supported by the record and therefore it denied the habeas.

But there was another issue the court did not consider. After the state court hearing on the habeas the trial court had an ex parte meeting with the prosecutor and asked the prosecutor to draft the decision. Not only was Jefferson not told about the ex parte meeting but his attorneys were neither given the chance to draft an order or to review the prosecutor’s before it was accepted in toto. Thus the state court did not consider whether the trial court may have violated Section 2254(d)(7) and denied Jefferson due process. The Supreme Court vacated the Circuit Court’s decision and remanded the case for further consideration.

This is going too far. James Nichols was arrested for going to church.

Nichols is a convicted sex offender. North Carolina has a law that convicted sex offenders cannot come within 300 feet of any place intended primarily for the use, care or supervision of minors. Nichols was arrested on a Sunday afternoon after attending services at the Moncure Baptist Church. The Moncure Baptist Church has a daycare program for children.

Nichols’ arrest has three problems. The first is a factual issue. Can a church be a place intended primarily for the use, care or supervision of minors? I doubt it. The primary purpose of a church is to propagate religion and serve as a place of prayer. Second, it is vague. What is a place intended primarily for the use, care or supervision of minors? Would that include a residence where a family with children live? Would that include a courthouse which has a daycare center for children while their parents are in court? Would it include a public beach? Due process demands that laws be written in a way that people can know when they violate the law. Here there is no way to know what places the sex offender must avoid. Third and most important is that the law criminalizes First Amendment activity. The First Amendment states, in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

The Fourteenth Amendment extended the First Amendment to the states and thus legislatures are prohibited from making any law which prohibits the the free exercise of religion. Nichols is challenging the arrest and the interpretation of the law. I hope he wins.

This is not to say that the church cannot forbid Nichols from joining the church or attending services. The minister or the congregation can ban him, although one of the goals of most churches is to bring sinners to religion. But the government cannot under the First Amendment prevent people from practicing their religion. Why don’t we leave the question to the minister and the congregation. They can determine whether they feel threatened by Nichols’ presence.

Joseph Thomas was pulled over by an officer for a traffic violation. The officer then properly checked to see if Thomas had any warrants. The officer found no warrants in the name of Joseph Thomas but he did find a warrant in the name of Joshua Thomas for having six outstanding parking tickets. For some unknown reason Joshua Thomas’ warrant had Joseph Thomas’ drivers license number on it, although it had different addresses.

Thomas sued in Federal court on various state and Federal grounds, including violation of his Fourth Amendment and Due Process rights. He argued that under Illinois law officers had no right to prosecute individuals for failure to pay parking tickets.

The Seventh Circuit ruled that Thomas did not have standing to sue under the grounds that there was no right to arrest someone for failure to pay parking tickets since it was Joshua Tomas, not Joseph Thomas who failed to pay his parking tickets.

Thomas’ Due Process claim was that he did not receive notice that he could be arrested for not paying traffic tickets. But the Court easily denied this claim since Joseph Thomas did not have any outstanding parking tickets he would not have received notice even if the city gave such notices.

As to the Fourth Amendment claim the court citing Supreme Court decision in Atwater found that if there is probable cause for the arrest there is no Fourth Amendment violation even if there is no right to arrest the defendant under the statute.

But the problem here is that Thomas suffered a grievous wrong. He was arrested and forced to put up bail for a crime he did not commit. But there appears to be no remedy for the wrong. Usually in these cases you argue the lack of probable cause. But that’s a tough standard to meet. Without really discussing it the Seventh Circuit seems to accept that the officer had probable cause to arrest Thomas based on the fact that the warrant for Joshua Thomas had Joseph Thomas’ license number on it.

Yesterday a statute took effect in Texas. All prosecutors and parole boards now have access to DNA evidence for crimes for which the statute of limitations has passed. This will allow them to use the information to attempt to lengthen the sentence of individuals for crimes in which the statute of limitations has not passed.

For example, say a defendant’s DNA matches that in a rape twenty years ago. Since the statute of limitations has passed he cannot be convicted for the old crime. But now he is charged with a rape that happened last year. The prosecutor could use the evidence of the old rape to attempt to get the defendant the maximum sentence in the newer crime.

If the information is only given to prosecutors and parole boards the law may well violate Wardius v. Oregon In Wardius the Supreme Court said that due process demands that discovery must be mutual. In other words if a statute allows a prosecutor access to information it must also allow the defense access to the information.

If the defense is given the information, the cost of defending the case goes way up as defense counsel needs to hire experts to test the DNA and challenge the validity of the police lab’s testing of the twenty year old substance.

While the law allows evidence to be used at sentencing that may not be admissible at trial, the use of DNA to show prior criminal activity where there was no trial or adversarial testing of the evidence may also violate due process. DNA evidence is very incriminating. Yet we know it is not 100% accurate and before its use to aggravate a sentence it should be subject to a jury using a beyond a reasonable doubt standard.

The Supreme Court ruled last week held that there is no due process right to DNA discovery post conviction.

William G. Osborne was convicted of rape and assault for a 1993 incident in Anchorage, Alaska.At the time of the trial modern DNA tests were not available. The results obtained from the DNA test did not exclude eighteen percent of African American men.

Osborne filed a 1983 civil rights action in Federal Court to get the DNA sample which he plans to have tested at his own expense. The District Court denied his request. The Ninth Circuit Court of Appeals upheld his right to the discovery and the Supreme Court last week reversed the decision of the Ninth Circuit.

While, under Brady, there is a pretrial right to discovery, the Ninth Circuit erred, according to Chief Justice Roberts in his majority opinion, in extending the right to post trial discovery, despite the fact that Osborne has a liberty interest in pursuing post conviction relief.

The Supreme Court held that one can only obtain post trial due process relief if the available process “offends some fundamental principle of justice” or “transgresses any recognized principle of fundamental fairness.” While Alaska does not have a statute specifically granting the right to post trial DNA, a review of the statutes and judicial decisions in Alaska indicates that post trial right to a DNA examination is available under various circumstances and the process by which it can be obtained does not offend the fundamentals of justice or transgress recognized principle of the fundamental fairness.

Furthermore the Court refused to extend the right to substantive due process to the right to post trial discovery of DNA samples. First there is no long standing right to DNA and secondly the court did not want to interupt the legislative and judicial process which is happening in each of the states and Congress. There are 46 states in which legislation has been enacted which in one way or another guarantees the right post trial discovery of DNA samples.

Justice Stevens in dissent, wrote that while Alaskan law permits post trial discovery of DNA samples it is not clear that the discovery is granted in practice, In particular he noted that it was not granted to Osborne even though it appears that it could exonerate him. Second, Stevens states that there is a fundamental right in not being incarcerated if one is innocent and that denial of the DNA discovery violates his due process liberty right.

The Sixth Appellate District of California’s District Court of Appeal found that a probation condition in People v. Murrillo requiring the defendant to take all prescribed medication was vague and that it may have been overbroad.

Angela Murillo, age 21, was charged with having sex with a minor, her sixteen year old boyfriend. She was quite remorseful during her probation interview. She told the probation officer that she had taken drugs since she was ten years old and that she was an alcoholic. Furthermore she said that she used a inhaler for asthma and that she had been diagnosed with ADHD and bipolar disorder but that she did not take any medication for mental disorders.

At sentencing Murillo’s counsel objected to three of the probation officer’s recommendations: 1) chemical testing, 2) possession or consumption of drugs or alcohol or being any place that either of them were being used or sold, and 3) entering a rehabilitation program. the court accepted the probation officer’s recommendation and added two more conditions: that Murillo obtain psychological counseling as directed by probation and that she take all medications prescribed by her doctor. The trial Court asked Murillo whether she accepted the conditions and she agreed to them.

On appeal she objected to the condition that she refrain from use of alcohol and that she take all prescribed medications on the grounds that they were not related to her criminal behavior. The Appellate Court found that the alcohol condition related to her criminal behavior in that she had a long term history of alcohol abuse and that alcohol reduced inhibitions and could lead to future criminal conduct.

As to the requirement that take all prescribed medication the court found the condition vague since under the facts of the case it is not clear whether the judge meant that she had to take all prescribed medications or just psychiatric medications. There is no evidence that she failed to take any medication for physical problems. Therefore, there is no relationship between taking physical medications and criminal behavior. As a result the condition is an abuse of discretion.

But the question remained whether by failing to object to the conditions at sentencing, Murillo waived the right to object on appeal. The court found that there was no logical reason for her not to have objected at trial and therefore the failure to object was incompetence of counsel. The court found, citing In Re Sheena K., Murillo did not waive the right by failing to object at sentencing. Under the Sheena K. test waiver occurs if proof of the illegal condition needs the fact finding ability of the trial court. In this case only the trial court can determine whether the condition is unconstitutional and therefore the failure to object result in waiver. But because the appellate court found incompetence of counsel without needing a factual input from the trial court waiver is not an issue.

Before remanding the case to the trial court for a determination of the necessity of requiring the defendant to take psychiatric medications the appellate court put forth several issues for the trial court’s consideration. First, since the medication issue infringes Murillo’s right of privacy any condition must be closely tailored to an important state right. Second, Murillo has a Fourteenth Amendment liberty interest protecting her from the forced taking of psychotropic medication and any probation condition enforceable by jail or prison is a coerced. Citing Sell v. United States the Court found that the Court should consider the following conditions before order the taking of psychotropic medications: 1) that an important governmental interest is at stake, 2) that the involuntary taking of medication will insure a timely prosecution and a fair trial (its hard to see how this is appropriate in a post conviction probation sentencing) 3) that the involuntary use of medication will significantly further the state interest, and 4) that the taking of medication is medically necessary.