It’s the bottom of the ninth for The Nine as we head into the U.S. Supreme Court’s last full week of the 2008-2009 term. As always, the Court is saving some of the best—and, inevitably, most internally divisive—rulings for last.¹ Here in the Commonwealth, we are eagerly awaiting the results of the most significant Massachusetts criminal case to reach the nation’s highest court this term: Melendez-Diaz v. Massachusetts, 07-591. If it comes down the way that most people seem to be expecting, this ruling may have an a broad and immediate influence on the litigation of drug-related criminal cases.

Luis Melendez-Diaz was arrested in Dorchester during the course of a drug transaction in a parking lot. He and his co-defendants were found to be in possession of a number of plastic baggies of powder of varying consistencies—some of which was white, some of which was yellow. Some, but not all, of these substances were tested by chemists in the state drug laboratory, and the lab concluded that all 22 grams or so was cocaine. The forms certifying these findings did not offer any specific information as to what methods were used to reach this conclusion, exactly how much of the drugs were tested, or any explanation as to the obvious differences in visual appearance between the samples. Pursuant to standard Massachusetts trial procedure, these drug certifications were deemed admissible in and of themselves, and their authors were not called to testify.

In his appeal to the Massachusetts Court of Appeals, Melendez-Diaz argued that these drug certifications were inherently “testimonial,” and therefore constituted inadmissible hearsay without the supporting live testimony of their author at trial. This argument naturally arises from recent developments in the interpretation of the Sixth Amendment’s Confrontation Clause, which provides that “…in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Like so many of our finest Constitutional principles, this is an ancient and honorable doctrine with a pedigree that predates Roman law, and a reasonably simple one: whenever realistically possible, our society believes that witnesses with testimony that would tend to criminally inculpate a defendant must be brought into court not only to present this evidence, but to be made available for cross-examination by the accused.

Unfortunately for Melendez-Diaz, the Supreme Judicial Court of Massachusetts had already squarely addressed this issue in Commonwealth v. Verde, 444 Mass. 279 (2005), and concluded that drug certifications are merely “business records,” rather than testimonial hearsay. Bound by this precedent, the Appeals Court dismissed Melendez-Diaz’s appeal in an unpublished opinion [PDF] which the SJC declined to review.

While this would almost certainly be the end of the road for any given criminal appeal, Melendez-Diaz had the benefit of some truly impressive advocates who took his case from an unpublished dismissal by an intermediary state appellate court straight to the docket of the U.S. Supreme Court. Inspiring stuff for any aspiring appellate attorney, but why would the Supremes choose to pluck this otherwise-unremarkable little case out of obscurity?

Read more…

1. As summarized over at SCOTUSblog, there are a total of ten major rulings left as of today’s date, including a campaign finance case arising from an anti-Hillary Clinton campaign “film,” a Fourth Amendment challenge to a school’s humiliating strip-search of a young girl, and the politically-charged “New Haven firefighters” Second Circuit case in which Supreme Court nominee Sonia Sotomayor was a panelist. [↩]

Uncategorized

This post was current as of June 11, 2009. To see how the AAO has worked under new leadership to specifically address the concerns expressed below, see this update.

The  Administrative Appeals Office (”AAO”) of the United States Citizenship and Immigration Services (”CIS”) may be the most mysterious appellate body in the American legal system. The AAO is tasked¹ with the review of a wide range of immigration-related decisions that have the potential to seriously affect people’s lives, including the denials and/or revocations of visas, waivers, and other basic immigration issues arising from CIS decisions. It is, in short, the unloved little step-brother of the Board of Immigration Appeals, the better-known body which generally handles appeals from decisions of American immigration courts.

Despite this significant authority, the AAO’s opinions are not formally published, rarely binding on anything beyond the case at hand, and are, in certain cases, unreviewable by a higher court. Its decisions are never credited to any particular judge or adjudicator and, to the extent that they are made available to the public, they are clumsily organized by subject matter in groups of annoying PDF files which are not indexed or otherwise easily searchable.

It is also well worth noting that appellants must remit a non-refundable $585 fee² simply for the privilege of having their appeals filed before the AAO. There’s no telling where all of that money is going, though, especially considering that—unlike any other appellate body in the United States of which I’m aware—the AAO doesn’t even have a website.

But you don’t have believe me. Just take it from the CIS ombudsman, who offers the following dismal summary [PDF]:

The lack of published information on AAO standards and procedures leads customers and stakeholders to question the integrity of the AAO decision-making process.

As of today, however, I have reason to question not only the AAO’s “decision-making process,” but its entire existence.

After careful consideration, I have come to the following rather startling conclusion:

The Administrative Appeals Office has no jurisdiction over anything.

The proof is fairly easy to come by, but you’re going to have to bear with me here: I’m about to get all regulatory on you.

This sordid fiasco begins with 8 C.F.R. §103.3, which outlines the contours of the immigration appellate process. 103.3(a)(iv) helpfully defines the “AAU” (a.k.a. “AAO”) as “the appellate body which considers cases under the appellate jurisdiction of the Associate Commisioner, Examinations.” Okay—so far, so well-regulated. But what kinds of cases?

That’s also pretty straightforward. 103.3(a)(ii) states that “[d]ecisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in Sec. 103.1(f)(2) of this part.”

Awesome! I love it when federal regulations are this elegantly organized. So there’s a whole section that defines exactly which cases the AAO has authority over. Good to know. Let’s take a look at §103.1(f)(2), shall we?

No, seriously. Take a look. It won’t take long, and you’re never going to believe this next part if you don’t.

There is no Section 103.1(f)(2). It seems someone idly plucked the AAO’s entire reason to live from the regulatory shelf, played with it for a few minutes, and forgot to put it back where it belonged.

Seriously, I’m pretty sure that’s what happened. You can find the pre-2004 version, which lovingly details some 55 different types of cases over which the AAO has appellate authority, here. As far as I can tell, however, this section was never restored or otherwise added to any other regulatory provision once it was removed.³

What does all of this mean? Simply put, the AAO has gone rogue. As of this month’s anniversary of the last amendment, it hasn’t had proper legal authority to review any given case for at least five years.

I know this may all seem unnecessarily fiddly and semantic, a sort of nerdly “gotcha” game. But I submit that this is a hugely significant problem. Subject-matter jurisdiction is one of the most essential foundations of a functioning appellate system, especially on the federal level. A court that doesn’t even know what kinds of cases it’s permitted to consider is really no court at all.

I’ve been poking around to see if anyone more important than myself has actually noticed this astonishing loophole, and the evidence is inconclusive. The 2009 version of the official CIS Adjudicator’s Field Manual still cites the missing regulation (see Sec. 10.8) in its brief discussion of which cases may be appealed to the AAO. The CIS website still enumerates a long list of issues over which the AAO has jurisdiction which appears to be drawn from the missing provision. And the instructions which accompany the I-290B form used to file appeals before the AAO unhelpfully state only that the AAO may review decisions arising from any immigration proceeding “in which the Board of Immigration Appeals does not have appellate jurisdiction.”

If this broad assertion of jurisdiction by exclusion suggests a sort of implicit recognition of the simple fact that the AAO has no enumerated authority whatsoever, the recent ombudsman’s statement quoted above manages to wiggle around the whole issue entirely:

“The AAO exercises appellate jurisdiction over the matters described in 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003)….”

Oh, c’mon. Maybe that was the best they could do under the circumstances, but it’s still undeniably sneaky. If you believe that one, try this:

It is clearly apparent that the Framers of the U.S. Constitution did not intend for women to enjoy the right to vote, and did not provide for any possibility that they would be permitted to do so. There is, therefore, absolutely no Constitutional support for the proposition that women have been granted the franchise. (See Constitution of the United States of America, as in effect August 17, 1920).

See how that works?

I wish I were missing something here, but I am left with three inescapable conclusions:

(1) The AAO has been legally invalid since 2004, but

(2) We’re stuck with it anyway, and don’t really have any choice but to continue to bring our cases before it, because

(3) No one cares.

1. Well, maybe not exactly, but more on that in a minute… [↩]
2. This has to be the most expensive appellate filing fee in the Western world. By way of comparison, this is exactly $475 more than the filing fee for an appeal to the Board of Immigration Appeals [PDF], $135 more than the filing fee for a typical immigration appeal before the First Circuit Court of Appeals [PDF] and a full $285 more than the fee for initial docketing of a petition for writ of certiorari to the U. S. Supreme Court [PDF]. [↩]
3. To be fair, it appears that there is a possibility that the AAO’s appellate authority was taken out of the regulations and “delegated” to the AAO by DHS pursuant to the powers granted it by 103.1(a) in something referenced in several sources as “Delegation Memo 0150.” However, this memo is not available to the general public (I’ve looked), and my position remains that appellants should be properly placed on notice of the AAO’s appellate jurisdiction through regulatory means, especially for as long as 103.3(a)(ii) continues to state that this information is actually available in the regulations and CIS’s official secondary sources continue to reference this defunct provision. Federal regulations are subject to public review and criticism—the so-called “notice and comment” rulemaking process so beloved of administrative lawyers. “We have jurisdiction over your case, and we have this secret internal memo to prove it” is the kind of thing one might reasonably expect to hear before being exiled to a Siberian gulag. If DHS has actually redefined the AAO through such a memo (and, again, there’s really no way for me to know if they have actually done so) apart from the regulatory process, I would submit that this represents an attitude to administrative lawmaking that has no place in a functioning constitutional democracy. [↩]

Immigration Appeals, stupid laws

“…the foreigner, and the fatherless, and the widow, who are within your gates.” —Deuteronomy 16:14

There are more than a half-dozen Bible verses which extend equal status to immigrants and widows in the same breath, and it logically follows that the authors intended for each group to be protected and respected equally.¹

This month has seen justice for both the foreigner and the widow in relation to appellate topics previously covered in this space:

(1) Attorney General Eric Holder formally vacated [PDF] former AG Michael Mukasey’s midnight denial of immigrant’s rights to counsel in removal proceedings [PDF] and has ordered the DOJ to look into reasonable, Constitutionally-friendly guidelines on this front.

(2) DHS Secretary Janet Napolitano has punted the “widow penalty” issue for the time being by placing a two-year moratorium on the deportation of widow(er)s and any children under 18 who may otherwise be adversely affected by this penalty. This is a fair solution, and represents about the most that she could do independent of Congress or the courts. As I have previously noted, two years should be enough time to give Congress and/or the Supreme Court to do something about this, and I am now fairly confident that justice will be done on at least one of these fronts within the next year.

1. Not that anyone at FAIR particularly cares what the Bible actually says. There’s really no looking back once you’ve been certified as a hate group, after all. [↩]

Uncategorized

Great stuff coming down on every level these past couple of weeks, more on which maybe later. But I have to say a few things about the First Circuit’s thoughtful and eminently humane ruling in Taing v. Napolitano (May 20, 2009)(PDF), which has elegantly struck down the “widow penalty” here in New England.

This “penalty”–and there really is no other word for it–is probably the single harshest and uglist rule in our present immigration system. Here’s how it works:

Marriage¹ to a U.S. citizen is one of the simplest ways to gain residency to the U.S., as it should be. Presuming they entered the country lawfully and otherwise meet the requirements, non-citizens are generally eligible to have their American spouses file visa petitions on their behalf to request that Immigration recognize and validate the marriage as a basis for permanent residency.

But what if your spouse dies either during the increasingly-lengthy period of time that it takes the government to process your “immediate relative” petition or before your second anniversary? The answer, at least under current law in eight of the eleven circuits, is as shocking as it is shameful: nothing. Your petition is deemed abandoned and your opportunity for a new life in the U.S. has died with your spouse. You might be grieving, but the government wants you leaving.

By comparison, if your union goes the way of at least half of American marriages within the same two-year period, you may be still be able to successfully “self-petition” to pursue residency even without your ex, provided that you can prove that you originally got together for the right reasons.

So it’s all pretty arbitary. Marry a virtual stranger in Vegas on a whim, and you can still roll the dice on a chance at residency even after the inevitable divorce six months later. Fall for a Marine who dies a hero in Iraq while you’re waiting the many long months that your petition is pending, and you’ll be eligible for… forcible deportation. Within days of his funeral.

Something this stupid and cruel can’t (we can only hope) stand for long, and the Sixth and Ninth Circuits have already ensured that it won’t in their respective jurisdictions by finding that recently-deceased spouses can still be “immediate relatives” under the proper circumstances. As of this week, the First has joined that list.

It’s not only a good opinion, but it’s kind of a fun one. While the Taing court could have disposed of this issue in short order, why simply grant an appeal in six pages when you can grant the appeal and beat up on the Department of Homeland Security for twenty-six?

The government’s arguments really are the most fascinating thing about this case. Here’s a small selection of them, with the court’s responses:

1) You can’t have a dead “spouse”! Well, sure. With the possibly exception of the several dozen women to whom Larry King pays alimony, most people can generally accept that you can’t marry a cadaver. But you certainly can have previously married someone who has since died. The government seems baffled at this distinction; it cites, in a deliciously perverse twist, the definition of marriage outlined in the federal Defense of Marriage Act (”DOMA”) in support of its attack on the recently-married. As the court is happy to point out, however, DOMA’s sole purpose was to kill the hopes of living people in loving and committed relationships of being recognized as equal to their similarly-situated straight friends. Congress may (and does) have an unhealthy obsession with marriage², but even its most prurient minds do not appear to have anticipated the possibility of post-mortem matrimony.

2) “But Webster’s says….” Well, okay, the government doesn’t actually pull out every eighth-grade debate team member’s favorite tactic. But the First Circuit would like you to know that they do own a dictionary. A law dictionary. Appellate pro-tip: If your argument can be overcome using nothing more than a 19-year-old copy of Black’s³ and the reading comprehension skills required to spend an enjoyable morning with “My Pet Goat,” you’re doing it wrong. The legal definition of “spouse” includes surviving spouses. Full stop.

3) Let’s put on our statutory construction beanies! Okay, sure. But four can play at that game. Most of this opinion rests on complex statutory interpretation and, for as delightfully wonky as it all is, I can pretty easily distill the court’s response to the government’s arguments in this direction down to two words⁴: EPIC FAIL.

4) The Patriot Act! No, really. Sure, it was mostly just an opportunistic, hastily-assembled laundry list of questionable things that law enforcement had always wanted but had been afraid to actually ask for, but maybe it wasn’t all bad: Congress tucked in a special provision which permitted surviving non-citizen spouses of 9/11 and other specified terrorist attacks the opportunity to self-petition for residency within two years. So if this right had to be specially created through legislation, the government argues, it must not have existed before. Q.E.D.? Well, no. Not only was this special provision kind of, y’know, special, but it also didn’t actually require that the American spouse have actually filed a petition.

It goes on. The overall effect is that of a sort of all-you-can-eat smorgasboard of crazy, from which the court seems to enjoy picking up healthy samples–if only to sniff them and make funny faces and gingerly return them to the table. It even loosens its belt and helps itself to some public policy for dessert.⁵ The final page kicks off with what will have to be my favorite appellate sentence of 2009:

Although we rest our holding on entirely legal grounds, we note that our decision comports with common sense.

(What, no citation?)

So, anyway. This is a great day for Mrs. Taing and all surviving spouses in Massachusetts, Rhode Island, New Hampshire, Maine, and Puerto Rico who will be protected by this decision–but what about the rest of the population not fortunate enough to live in the First, Sixth, or Ninth Circuits?

As the Taing court reminds us: “We must assume that… Congress did not intend an absurd or manifestly unjust result.” How charitable. (See DOMA, supra.)

Congress may well solve this problem⁶ through a bill recently sponsored by both of my senators, among others–but maybe not before the Supreme Court hears the case of Osserritta Robinson. Mrs. Robinson tragically lost her husband in the 2003 Staten Island ferry crash, and the Third Circuit upheld her order of deportation to Jamaica based upon a finding that she was no longer an “immediate relative” of an American citizen. Her request for review of this decision is now before the Supremes.

1. ”Opposite marriage,” that is. [↩]
2. Especially as it relates to the prospective union of man and box turtle… [↩]
3. The court quite sensibly consulted the 1990 edition to see what the definition of “spouse” would have been at the time that Congress last revised the controlling law [↩]
4. spoiler alert! [↩]
5. Seriously, the concluding section of the opinion is actually titled “Public Policy.” Not that there’s anything wrong with that, and certainly it sounds innocous enough. But public policy arguments are typically the last resort of idealistically-minded dreamers like me who (1) are otherwise running on empty, argument-wise and/or (2) would rather get out and invent some new laws rather than bother reading the old ones. For this court to finish up with a whole page on nothing but policy arguments is totally out of character, and in a really gratuitous way. I found it to be just a little like finishing the autobiography of, say, Mohatma Ghandi only to find a tacked-on epilogue called “I LOVE BEER!!!” [↩]
6. And when was the last time you heard anyone say that? [↩]

Uncategorized

I had always thought that the Supreme Court’s ruling in New York v. Belton, 453 U.S. 454 (1981) was a little much. As of today, I guess they’ve finally agreed with me.

Those who have had the pleasure of an American criminal procedure course will remember Belton as the source of the “search-incident-to-arrest” corollary to the “automobile exception” to the Fourth Amendment’s general rule against unwarranted searches and seizures. Simply put, the Belton rule permits the passenger compartment of a suspect’s vehicle to be searched on-site at any time after a lawful arrest without a warrant.

This exception is usually justified on the grounds of officer safety, and that’s understandable: we want to be sure that police officers are able to quickly locate and lock down any weapons that might be at hand during the course of an arrest. But Belton’s unnecessarily broad wording has openly permitted searches that could never reasonably be explained that way. Realistically, unless you’ve collared yourself a Jedi,¹ there’s really no conceivable way that a handcuffed suspect locked in a police cruiser could possibly get to anything in his car that could be used to hurt you, and that seems to be the point at which most of these searches are performed. The “search-incident-to-arrest” element of the automobile exception has always seemed like a problem disguised as a solution to me, and a whole pile of academics and other people far smarter than me have been trying to get the Court to re-examine it for decades.

In a closely-split decision today in Arizona v. Gant (No. 07-542)(PDF), Justice Stevens² has all but overruled Belton.

The facts aren’t all that important, but I should note that the defendant had been arrested for nothing more than driving on a suspended license and was safely in custody by the time that his car was searched and a small quantity of cocaine found. During the course of the hearing on the motion to suppress brought prior to trial, the arresting officer assured the Court that the search had been conducted under these circumstances “[b]ecause the law says we can do it.”

Well, not anymore. Stevens has upheld the Arizona Supreme Court’s holding that this search was un-Constitutional, and that Belton was significantly overbroad. Here’s my favorite part:

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’” and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis [Latin, I believe, for "What part of that last ruling didn't you understand?"] does not require us to approve routine constitutional violations.

Nice!

Best I can tell from my first read of Gant, Stevens has limited Belton to situations in which the suspect either has access to his vehicle at the time of search and/or the search would yield evidence directly relating to the crime for which the suspect was arrested.

Sounds about right to me, but where does this leave us? As Scalia grumbles in his mostly-reasonable concurrence, Stevens isn’t exactly overruling anything³ but only cinching Belton up a few notches. I kind of agree with Scalia⁴ that the best course of action would really be to ditch (rather than refine) Belton and its progeny altogether and go with an alternative rule: vehicle searches after arrest may only be conducted when seeking evidence toward the crime for which the arrestee had already been arrested. This logic in this is kind of inarguable on its face: If an officer already had probable cause to arrest a driver for certain crimes,  why shouldn’t there be probable cause to search the same person’s immediate area after arrest for evidence⁵ of that crime? But I’m not totally sold on this, as it still has significant potential for abuse and is almost certainly motivated by Scalia’s well-known career hatred for the exclusionary rule.

But, still: good enough for now. Gant is an encouraging and long-overdue development in Fourth Amendment caselaw, and I’m happy to see it.

1. And if so: How? [↩]
2. Stevens sat out Belton, instead signing on to a concurrence that was obviously hesitant to endorse it. [↩]
3. The Alito/Roberts/et al dissent disagrees, arguing that there is “no doubt” that Gant overrules Belton, and dissents almost entirely on stare decisis grounds. [↩]
4. As combinations of words go, I’ve probably uttered this phrase about as often as I have “Please pass the mushy peas, because they are delicious.” [↩]
5. Drugs and/or guns, 95% of the time [↩]

Criminal Appeals, U.S. Supreme Court

Despite Boston federal District Court Judge Nancy Gertner’s best efforts, as of yesterday the First Circuit has ensured that no one’s listening in¹ for the Tenenbaum file-sharing battle.

In a sort of gratuituously comprehensive 25-page opinion released only eight days after oral argument on this question, the First (via the charmingly and “incurably lexiphanic” Selya, J.) came down unanimously yesterday against permitting Joel Tenenbaum’s District Court proceedings from being broadcast live over the Internet.

For as much as I’d expected this outcome, I was also amused to see that the First was not immune to the influence of the unstoppable craziness that has plagued this case.

It all starts, as so many appeals must, with

JURISDICTION

For the second time of which I’m aware, it appears that a party has failed to properly argue a major issue in this case. Last time it was the plaintiffs’ failure to cite a 1st Circuit rule which was directly on point; here, Selya directly suggests that the defendants forgot to raise the tiny little matter of the Court’s actual authority to issue a writ of mandamus in the first place.²

Writs of mandamus³ are, as Selya himself notes, “strong medicine,” to be prescribed only when absolutely necessary. Courts which step in to issue these orders are inevitably taking a kind of offensively parental role in the proceedings, which is why plaintiffs generally must show that they are facing “irreperable harm” if the court doesn’t act.

Here, there was a strong argument to be made that the plaintiffs would suffer no such harm were the Court to deny the request, but this was only raised in a couple of amicus briefs submitted by interested third parties.⁴ For as unusual as it is for an appellate court to address arguments raised in non-party briefs, the Court found this particular argument to be significant enough to notice for exactly the amount of time that it took to dodge it entirely.

See, it turns out that the appropriate relief here was not a writ of plain old “general mandamus,” but rather a super-special writ of “advisory mandamus.”

Don’t feel bad: I’d never heard of “advisory mandamus” either.⁵ Maybe we both missed Civil Procedure that day?

Whether we’ve heard of them or not, writs of “advisory mandamus” may be issued in any matter which presents any “systemically important issue as to which this court has not yet spoken.”⁶, and the “irreperable harm” standard is not required for this highly unusual form of relief.⁷ Having whipped out this procedural trump card, the First breezily finds that it “inexorably” has authority to consider issuing such an order, and moves on to

THE DISTRICT COURT RULE

Pursuant to Massachusetts District Court Rule 83.3 [fair warning: link goes to sizable PDF], no cameras or recording devices of any kind may be allowed into the court “except as specifically provided in these rules or order of the court.” While I (and, apparently, Judge Gertner) would basically read this language to mean “except for specific circumstances enumerated within the text of this rule⁸, or at any time at the discretion of the presiding judge,” the First sees it otherwise. After several long pages of statutory construction and analysis, the Court conclusively determined that the phrase “or order of the court” is not a generalized “catchall” which would grant the District Court the kind of discretion that it exercised here, especially given that this rule was further strenghtened and augmented by a written policy adopted by the First Circuit in 1996 which prohibits the broadcasting of any court proceedings in federal courts under the jurisdiction of the First.

In light of all of this, the District Court’s decision to permit webcasting of the proceedings was held to have been “palpably erroneous,” and webcasting was prohibited accordingly. Which brings us to

THE CONCURRENCE

For as inevitably disappointed as Tenenbaum’s legal team were by this ruling, they can still take some hope from Justice Lipez’s concurrence. He reluctantly agreed with the majority that the proposed webcast was not legally permissible, but added the following eminently reasonable caveat:

However, this inescapable legal conclusion does not discredit the policy concerns that animated, at least in part, the district court’s decision. Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.

Lipez further points out a ridiculous irony that I’d meant to mention earlier: the oral arguments from this appeal were broadcast on the First’s website in MP3 format within 24 hours of the hearing for anyone to listen to. (”Disagreeable outcome,” indeed!)

Oh, and there’s

ONE FINAL IRONY

that I’ve got to mention before I can let all of this go, although I’m certainly not the first to notice it.

Throughout this fun little drunken punchup of an interlocutory appeal, the plaintiffs have been working directly against their own stated interests in this case. Given that the industry has as much as told us that they are throwing everything they’ve got at Joel Tenenbaum and his co-defendants for the express purpose of making an example of them for the unwashed music-thieving masses, what conceivable reason could they possibly have to turn down a chance for more free publicity from this already very-public trial?

1. Until manager Brian Message is taken off the witness list, every post on this case will be packt like sardines with Radiohead references. Token apologies to non-fans. [↩]
2. Okay, I’m taking his word on this one: I haven’t actually read Tenenbaum’s brief. Was this a fair assessment? [↩]
3. Latin, I believe, for “shut up and take it” [↩]
4. The music industry’s “best” argument toward this particular point, raised in its original briefing, was that “[t]he broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual.” Translation: “Oh noes! They’re gonna make us look silly on YouTube!” [↩]
5. And neither has Wikipedia, for what that’s worth. [↩]
6. Proposed future advisory mandamus topics: Compelling McDonald’s to bring the Butterfinger McFlurry to New England, firing all those whiny Mass Pike tollbooth operators who skipped work on Easter, slashing ticket prices at Fenway, and acting quickly to prevent the looming national disaster presently posed by Limp Bizkit’s impending reunion and comeback tour. [↩]
7. ”…[p]roper occasions for employing advisory mandamus are hen’s-teeth rare: it is reserved for blockbuster issues, not merely interesting ones.” In Re Bushkin Associates, 864 F2d 241 (1st Cir. 1989)(Selya, J.)(Nancy Gertner, Esq. for petitioners) [↩]
8. There aren’t many. [↩]

1st Circuit

Radiohead always has a show or two in the Boston area on every international tour, and I’ve seen and thoroughly enjoyed them here (among other places) more than once. So I was particularly excited to hear that we may be treated to a free spoken-word performance from Radiohead manager Brian Message in our neighborhood federal district court later this year.

Yes, word is that the first major band to use file-sharing as a business model¹ has agreed to step up on behalf of the defense in the whole  Sony (et al) v. Joel Tenenbaum (et 100+) mess. I would have preferred to see Tchocky himself personally called to the stand to quietly mumble the opinion of the collective into the mic, but it’s still nice to see that the band is willing to send a consistent Message on this issue.² Even non-fans have to acknowledge that everything is in its right place on this one.

And this six-ring circus of a trial already had just about everything that regular court-watchers like to see even before the single best quasi-mainstream international rock and/or roll band to break out in my lifetime got involved.  There’s the modest and likable lead defendant and his sympathetic Josef K.-style predicament, the federal judge with an unusual willingness to extrajudicially engage³ the media, and the colorful, ‘radically transparent’ lead attorney who has teamed up with a plucky cadre of Harvard Law students with their own family squabbles to face the veritable firehose of overpriced lawyering available on demand to the American music industry. (And more! So much more!)

Oh, and this might finally be the case that will call the industry out for its unrelenting and shamefully disproportionate civil prosecutions of casual downloaders.⁴ So there’s that.

Joel Tenenbaum allegedly obtained and shared out seven (7) MP3 audio files in 2003 at the age of sixteen, for which the Recording Industry Association of America (”RIAA”) subsequently demanded its pound of flesh in the form of $12,000. Tenenbaum, now a student at Boston University, has been fighting the case ever since.

For as personally interested as I may have been in the subject matter, the case didn’t present any appellate issues until January, when District Court Judge Nancy Gertner sent the plaintiffs into myxomatotic spasms by granting Tenenbaum’s request to permit a live audio-visual webcast of the proceedings to be streamed through a non-profit website.

And then it got weird.

Judge Gertner subsequently realized that neither party had mentioned an obscure 1996 local court order regulating the use of cameras in the courtroom in their initial arguments, and strongly suggested that the plaintiffs further brief the issue in a motion to reconsider, for which she set a filing deadline. In a puzzling “notice” filed with the court soon after this deadline had passed, the plaintiffs stated their intent to ignore the judge’s request and take the issue up with the First Circuit in order to “resolve the broadcasting issue expeditiously without additional briefing or further appeals.”⁵

Why go running to the First Circuit? Because the plaintiffs had already sought review from the First of the judge’s order permitting the use of cameras back before anyone had realized that there was already a rule about the use of cameras. This was done by way of something they called a “Petition for Writ of Mandamus or Prohibition.”⁶ As Ray Beckerman notes, it appears that a writ of prohibition was actually what they were after in this context—in spite of the confusing title and the text of the petition itself, which repeatedly refers to mandamus as the sole form of relief sought. Additional briefs were filed in support of this further appeal (so much for that theory, I guess), and oral argument on this issue has been scheduled for tomorrow, April 8th.

This wacky procedural sideshow was so entertaining that I just about forgot that the actual subject of this dispute—worldwide, instantaneous dissemination of federal courtroom proceedings over the Internet—is unprecedented, at least as far as anyone I’ve read on this so far seems to know. These arguments should be available online in the next couple of days, so more then.

1. Harvey Danger actually did it first, not that anyone noticed. [↩]
2. As it were. [↩]
3. And even occasionally join the ranks of… [↩]
4. Maybe. [↩]
5. In the absence of further explanation, this justification alone seems both totally oxymoronic and… well, the other kind, as well as more than a little rude. But this thing was already such a mess by this point that no doubt this course of action made sense to someone. [↩]
6. Given that these two forms of relief are both distinct and definitionally antonymical, not simply requesting one or the other of them is kind of like asking your waitress for either a veggie platter or a triple cheeseburger, and leaving it up to her which one to actually serve you. [↩]

1st Circuit

…and you’ll get something like today’s opinion in Commonwealth v. Harrington, which came down in favor of the Commonwealth today to the surprise of exactly no one.

I happened to be in the Appeals Court the morning that they took up this unusually amusing case. Here are just a couple of instructive excerpts taken verbatim from my notebook:

JUSTICE GREEN (within first minute of argument): “I don’t know why this case is here.”

JUSTICE BROWN (waving his arms around umpire-style): “The Commonwealth wins on all five issues here. All five! That’s called a shutout. The Commonwealth has nailed it.”

It’s not often that appellate judges tell you exactly how they’re going to dispose of a case during the course of oral arguments, let alone within the first sixty seconds. Usually cases in which the outcome will be so obvious are relegated to the purgatory of the appropriately-named “non-argument list,” and the parties never have a chance to show up to explain themselves before an opinion issues. Having actually seen this one for myself, however, I have to suspect that the Court only put it on the calendar for the same reason that Steven Hawking might want to keep a book of easy Soduku puzzles handy on the coffee table: It’s just good, clean, mindless fun.

As an appeal, Harrington had only one reason to live: a District Court judge with a grudge against the current state of the Commonwealth’s ridiculous disorderly conduct statute which dates back to his time as a Massachusetts state representative.¹

In the course of a totally routine disorderly conduct case, the judge took it upon himself to try to convince the Court of Appeals that it should hold the current interpretation of the statute² unconstitutional and strictly limit the law to its face.

Harrington came to the Court not as a direct appeal but via something which, the Court snidely notes, “ostensibly” took the form of a “reported question” under Mass.R.Crim.Pro 34. (This is a fun-but-rarely-used vehicle by which trial courts may send up questions of law which are “so important or doubtful” as to require resolution by the Appeals Court before proceeding to trial.) But the Court is not even convinced that there is a “question” in Harrington at all, and they’ve certainly got a point.

Three of them, actually:

1) The District Court was asking the Appeals Court to overrule the Supreme Judicial Court. This not only directly violated Robert Heinlein’s familiar proscription against teaching pigs to sing³, but may in fact have actually been more pointless than that.⁴

It’s just Not How Things Are Done, is what I’m trying to say. Lower appellate courts can’t overrule higher ones; they just can’t, no more than a lowly squaddie may draw up detailed battle plans, a state governor set federal immigration policy, or an older sibling overrule a curfew set by the head of the household. Even the courts have a chain of command, and it has to be followed just as strictly as any other.

2) The Appeals Court has not seen the inside of a college dorm room for many, many years. To my knowledge, none of them own beanbag chairs, hackeysacks, or drug rugs, and they certainly do not want to sit up late with you for academic bull sessions while drinking Jolt Cola and listening to John Zorn records. If they are going to strike down a statute⁵, they’re going to have to have an actual appeal based upon an actual start-to-finish case in front of them to hang their actual decision on. They’ve already got more than enough actual appeals from actual cases to deal with, thank you very much, and they just don’t have time for your what-ifs.

3) The legislature has amended this statute twice since the Commonwealth’s highest court handed down Alegeta, and the law generally presumes the Great and General Court are all total SJC fanboys/girls who spend their weekends updating their pocket parts. If our elected representatives had believed that there was something wrong with the way that our unelected judicial gatekeepers had interpreted the statute, either of those amendments could have done something about this. But they didn’t.

1. I totally agree on this, but I’ve already hated on this statute more than once in this space and I’ll try to restrain myself now. [↩]
2. Following the SJC’s opinion in Alegata v. Commonwealth, 353 Mass. 287 [1967], this law now officially includes a definition of “disorderly” which is found nowhere in the statute [↩]
3. ”…it wastes your time and annoys the pig.” [↩]
4. Maybe I’ve just read Charlotte’s Web one too many times, but I have to believe that there might be a particularly talented, irresistably anthropromorphic, pig out there somewhere who could actually be taught to sing. [↩]
5. Which, on balance, they probably won’t anyway [↩]

Criminal Appeals, disorderly conduct, massachusetts

The phrase “Lawful Permanent Resident” is one of the more unfortunate expressions in our present immigration system. Residency under this status is about as “permanent” as the accompanying “green card” is green. There are now officially more ways to lose your residency than Paul Simon had to sneak out on his girlfriend, and many of them are not as obvious as you’d think. (Only in Immigrationland could first-degree murder and failure to report a change of address within ten days be legally equivalent.)

Perhaps even more unfortunate is the hypnotic effect that the word “permanent” can have on criminal lawyers when considering whether to recommend that a client enter a plea in a given case.  It is all too common for counsel in these situations to blithely state that the ensuing conviction won’t carry any immigration consequences without doing the research, or, as I recently heard an attorney argue in open court, that “permanent residents can’t be deported.” It’s easier just to assume the best, I guess.

So now comes Jose Padilla (not the dirty bomb guy), whose request for further review was accepted by the U.S. Supreme Court last month in what may prove to be one of 2009’s most interesting and impactful immigration-related appeals. Mr. Padilla was a lawful permanent resident of the U.S. for more than forty years after emigrating from Honduras, during which time he served in Vietnam and then took a job as a long-haul trucker. Unfortunately for him, his last load included over 1,000 pounds of marijuana, with which he was caught in Kentucky and indicted on misdemeanor (???!) possession and felony drug trafficking charges.

When considering his options prior to trial, Padilla’s attorney allegedly informed him that he shouldn’t be concerned with immigration consequences of any of this because he had “been in the country for so long.” Based on this advice, Padilla entered a plea and accepted a five-year prison sentence, after which he was immediately placed in immigration proceedings. His case has now reached the Supreme Court on the theory that his attorney’s advice as to the potential immigration consequences was Constitutionally ineffective.

This argument has been tried before in pretty much every jurisdiction, and it’s usually a loser. This is because immigration consequences are typically seen as “collateral” to a criminal conviction, just the same as when felons lose things like (in some states) the right to vote, or (historically, but not so much anymore) the opportunity to serve in the military. As such, criminal attorneys are not generally required to give actionable advice as to the potential immigration consequences of entering a plea in a given case. And this is pretty reasonable, on balance. State criminal law and federal immigration law intersect in the strangest ways and in the oddest places, and expecting the average criminal trial attorney to keep up with all of the crazy details and developments in this area might not be any more reasonable than expecting the average immigration lawyer to have a practical working knowledge of the countours of the hearsay rule and its many, many exceptions under statutory and common law.

But then again: if you are going out of your way as an attorney to affirmatively step up and offer advice to a client on any legal matter, you’d best come correct. Even in the most thoroughly bourbon-soaked backwoods of Appalachia, any reasonable criminal lawyer should know that Immigration might want to have a word with a non-citizen found to be freighting  a HALF-TON of quality Mexican Mary Jane in his motor vee-hickle. So I’ll go ahead and say it right here: “you’ve been in this country so long that they won’t care” was advice so errantly stupid, so eminently unreasonable, and so inarguably incompetent as to require the invention of a new legal standard several miles beyond “ineffective.”

And that is why Padilla is such an awesome test case. Basically, if the Supremes don’t find that this was ineffective assistance, they will likely never find that any immigration advice affirmatively provided to a client prior to a criminal plea ever could be. More as it happens…

Uncategorized

Like so many other great American ideas, the concept of court-ordered probation in lieu of committed time was born in Boston. In 1841, a local shoemaker named John Augustus volunteered to take a local drunk under his wing after paying the man’s bail in an effort to rehabilitate him through a proposed system which he called “probation.” After modest success in this direction, Augustus went on to counsel a total of 1,946 convicted criminals in a remarkable volunteer career which ultimately spanned more than two decades. Reflecting on a group of boys he took charge of in his early days as America’s first probation officer, he wrote:

…the scene formed a striking and highly pleasing contrast with their appearance when first arraigned. The judge expressed much pleasure as well as surprise at their appearance, and remarked that the object of the law had been accomplished, and expressed his cordial approval of my plan to save and reform.

The Commonwealth eventually agreed with this assessment, andMassachusetts became the first state to adopt a formal probation system in 1880. Even today, the courts of the Commonwealth now sentence defendants to probation more consistently than any other American state. (Or at least that’s what I heard on NPR the other day. I’ll try to source that a little better shortly.)

But just because we’ve been doing this longer than anyone else doesn’t mean that our probation system is perfect, as we we were reminded in today’s Appeals Court ruling in Commonwealth v. Gomes.

The defendant in Gomes was convicted of gun charges, with no allegations that he had ever had any issues with drugs and/or alcohol. Regardless of this, Gomes’s court-ordered conditions of probation specifically included not only a prohibition against drug and alcohol use, but also required him to be subjected to regular drug and alcohol screening throughout his eighteen months of supervised probation.

On appeal, the defendant acknowledged that the prohibition on drugs and alcohol use was reasonable (he was under 21 at the time), but argued that he shouldn’t have to pee in a cup on command for 18 months just because he had been caught with a gun.

The Appeals Court agreed and held for the defendant, noting that “[a] judge’s latitude in sentencing is great but not infinite.” Because drug and alcohol testing amounts to a Constitutional search and seizure, the Court found that such random testing may only be included as a condition of probation in cases in which this testing would be “reasonably related” to “recognized probationary goals” for a given defendant.

Uncategorized