Sunday, December 10, 2017

In Gay Wedding Cake Case, Equal Rights at Stake

      Every trial lawyer knows the key to success in the courtroom is a good story to engage the sympathy of jury, judge, or both. So the opposing parties in the gay wedding cake case at the Supreme Court rushed from the courtroom last Tuesday [Dec. 5] to waiting news cameras and microphones to try to sell their competing stories of victimhood to the American public.
      Charlie Craig and David Mullins, the gay couple turned away five years ago in their search for a cake for their pre-wedding reception, introduced themselves as "regular guys" with no agenda other than a desire to be treated equally, as Colorado law seemingly requires. Craig and Mullins had come to Jack Phillips' Masterpiece Cakeshop in the Denver suburb of Lakewood that summer day because they liked the cakes Phillips had displayed in the bakery's catalogue.
      At the other end of the sidewalk, Phillips was explaining that he had "respectfully" declined to make a cake for the couple once he learned that the cake was to celebrate a wedding that his Christian faith prohibited. Down at the other end, Mullins recalled that he and Craig were "stunned" by Phillips' refusal and still pained by "the memory of the humiliation, the mortification."
      Craig's mother had accompanied the couple to the bakery and attested to her son's shock that day. "I saw that my grown son was starting to shudder," Debbie Munn recalled. "We don't want another couple to go through"  that kind of treatment, Mullins said as he wrapped up the news scrum.
      Down the sidewalk however, Phillips was himself donning the cloak of victimhood. He and his family had suffered years of "harassment" after having been found to have violated the state's civil rights law, Phillips told the reporters and assembled spectators. He also took a substantial financial hit by dropping wedding cakes altogether to avoid further legal entanglements.
      Inside the courtroom, the Court's liberal and conservative blocs used their questions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission to construct opposing stories aimed at framing the legal issue best for their opposing sides. Liberal justices Sonia Sotomayor and Elena Kagan warned that ruling in favor of Phillips' compelled-speech doctrine argument would open the door to pleas for similar civil rights exemptions for photographers, florists, chefs, make-up artists, and hair stylists with religious scruples to participating in same-sex weddings.
      Some of those scenarios might seem even less plausible than viewing a cake as speech, but in fact a florist in Washington and a photographer in New Mexico had earlier claimed religious exemptions from their state laws, like Colorado's, that prohibit discrimination on the basis of sexual orientation. The supreme courts in those states spurned the pleas, and the U.S. Supreme Court declined to take up the florist's or the photographer's appeals.
      From their side, conservative justices conjured up sympathetic hypotheses about other kinds of individuals who they said might be forced into conscience-straining services if the Court found that Colorado's civil rights law trumps First Amendment pleas. Justice Neil Gorsuch suggested that an African American baker might be forced into baking a cake adorned with a Ku Klux Klan cross. Justice Samuel A. Alito Jr. raised the possibility that  a Jewish baker might be forced to decorate a cake to commemorate Kristallnacht, the Nazi-inspired destruction of Jewish synagogues and businesses in 1938.
      Those hypotheses were enough to help persuade at least one prominent newspaper to take Phillips' side. "Imagine a Jewish baker being required to put a swastika on a cake," the Chicago Tribune wrote in an editorial. As Lambda Legal attorney Eric Lesh noted in a tweet, however, "Nazis are not a protected class." David Cole, the ACLU lawyer representing Craig and Mullins, made the same point during oral argument. "The Ku Klux Klan as an organization is not a protected class," Cole responded.
      Cole began his allotted 15 minutes by acknowledging the sincerity of Phillips' convictions about same-sex marriage but warning that a ruling in his favor would have "unacceptable consequences." He echoed a concern that Justice Elena Kagan had raised that the same religious-based objection might be raised, for example, against providing services for a gay funeral. And he rejected as impossible any effort to draw a line between valid and invalid refusals based on the supposed "expressive content" of a cake as opposed to flowers or makeup or whatever.
      From the start of what proved to be 90 minutes of arguments, all eyes were naturally on Justice Anthony M. Kennedy, the author of the Court's four landmark gay rights opinions over the last 20 years and the Court's most consistent defender of free-speech rights. He gave conflicting signals about his eventual vote.
      Kennedy signaled sympathy for Phillips at one point by complaining of a remark that one of the seven Colorado civil rights commissioners had made criticizing the use of "religious rhetoric" to deny equal rights. At another point, the justice aptly noted that a bakery that posted a sign "no gay weddings" would be "an affront to the gay community."
      Along with Alito and Gorsuch, Chief Justice John G. Roberts Jr. clearly signaled sympathy for Phillips; Clarence Thomas, silent as usual, was also counted as a likely vote. But none of the conservatives seemed to offer a clear line that, as Justice Stephen G. Breyer put it, "will not undermine every civil rights law."
      The case, it turns out, is not about a cake. It is about equal rights, just as Craig and Mullins have maintained throughout. With many observers predicting a ruling for Phillips, the real victim in the case could be the advancing national commitment to equal rights for LGBT individuals.

Sunday, December 3, 2017

At High Court, Party Labels Matter in Patent Case

      The Supreme Court was simultaneously at its best but also its worst during oral arguments last week [Nov. 27] in a closely watched, high-stakes patent case. The question presented in Oil States Energy Services, LLC v. Greene's Energy Group, LLC was whether Congress had created a rights-violating, fast-track procedure for the U.S. Patent and Trademark Office (PTO) to invalidate a previously issued patent as part of an omnibus reform bill six years ago.
      Congress approved the new administrative procedure in 2011 as part of the America Invents Act in response to widespread concern in the intellectual property world that the PTO was impeding instead of promoting innovation by issuing too many patents of dubious validity. The bill, cosponsored by Vermont's Democratic senator Patrick Leahy and Texas's veteran Republican congressman Lamar Smith, was approved by substantial bipartisan majorities in both the House and the Senate.
       Despite that record of bipartisan support, the justices appeared to divide mostly along party lines in either supporting or opposing the new procedure with their questions from the bench during the hour-long arguments. Republican-appointed justices seemed inclined to rule the law unconstitutional while three of the four Democratic-appointed justices clearly signaled they were ready to uphold it.
      The issue in the case is one of those legal questions with no evidently correct answer based either on precedent or constitutional logic. Yet the justices split predictably along party lines, defying efforts by Chief Justice John G. Roberts Jr. among others to portray judges as  something other than politicians in black robes.
      The case pitted two companies in the oilfield services business, one with a patent that the other challenged under the new procedure. Oil States was awarded a patent for apparatuses and methods of protecting wellhead equipment during hydraulic fracturing, according to the summary of the case in the American Bar Association's publication Preview.
      Oil States accused Greene's of infringing the patent, but Greene's responded by successfully challenging the patent as invalid before the newly created Patent Trial and Appeal Board (PTAB) and prevailing in Oil States' appeal of that decision to the U.S. Court of Appeals for the Federal Circuit. In taking the case to the Supreme Court, Oil States argued that the new administrative procedure violated the protections in the Constitution's Article III and the Seventh Amendment for trials before judge and jury in "suits at common law," such as patent disputes.
      The new procedure, known as inter partes re-examination, expanded the PTO's previous procedure known as ex parte re-examination by allowing an outside party to initiate reconsideration of a patent. Liberal justices saw the logic of the new procedure. "There must be some means by which the patent office can correct the errors that it's made," Justice Ruth Bader Ginsburg said as soon as Dallas lawyer Allyson Ho had finished listing five reasons why the procedure violated Oil States' rights.
      Liberal justices Elena Kagan and Sonia Sotomayor echoed Ginsburg's view. Kagan was incredulous that the government could be challenged for creating "a set of procedures that will actually increase the government's accuracy in figuring out whether it made a mistake." For her part, Sotomayor countered Ho's concerns by noting that a PTAB ruling invalidating a patent could be appealed, just as Oil States did, to a federal appeals court.
      Roberts and the court's newest Republican-appointed justice Neil Gorsuch were clearest of the conservative bloc in questioning what the three liberals depicted as eminently sensible. Both raised unrealistic hypotheticals to test the arguments defending the new procedure from Greene's attorney, Tallahassee lawyer Christopher Kise, and deputy solicitor general Malcolm Stewart arguing for the government.
      With Kise at the lectern, Gorsuch asked whether the government could re-examine a land patent — legal jargon for a land grant — "at any time, even hundreds of years" after the land had been farmed, sold, and developed. With dripping disdain, Gorsuch asked whether the hypothetical land grant could be "revoked by the government by bureaucracy in, I suppose, the Department of the Interior" — referencing one of the least popular federal agencies in Gorsuch's native Colorado.
      Gorsuch tied up the analogy by citing precedents and the Constitution as describing patents as a property right. "[O]nce it's granted," Gorsuch concluded, "it's a right belonging to the inventor." Gorsuch renewed the point when Stewart stepped to the lectern by returning to a question about investments and reliance interests that Justice Stephen G. Breyer had raised earlier. Stewart stood his ground. "It has always been part of the scheme that a patent could be re-examined," the veteran government lawyer said.
      Stewart also turned aside a hypothetical that Roberts had posed to Kise to allow the government to fire an employee based on a coin toss instead of a formal adjudication. No, Stewart said in returning to Roberts' question, "the procedures still have to be fair." Roberts, a stickler for judicial powers with a record of throwing barbs at administrative agencies, was evidently unpersuaded.
      By the hour's end, the pivotal vote seemed likely to lie with Justice Anthony M. Kennedy, the only one of the nine who regularly crosses the court's ideological fault line. His questions seemed to indicate an open mind on the case. But conservative justice Clarence Thomas, silent as usual, and fellow conservative Samuel A. Alito Jr. seemed likely to stick with their Republican-appointed colleagues Roberts and Gorsuch.
      Gorsuch quotably rejected party labels when up for confirmation this spring. "There's no such thing as a Republican judge or a Democratic judge," he told the Senate Judiciary Committee. But with Gorsuch on the bench, the Roberts Court remains as neatly divided along party lines in close cases as it has been ever since the retirements of two line-crossing Republican-appointed justices, John Paul Stevens and David H. Souter. Judicial purists may resist this description, but in this case and many others party labels matter very much at One First Street even if the justices wear black robes on the job.

Sunday, November 26, 2017

The 'Misguided' War Against the Administrative State

      Federalist Society members were in high spirits at their annual convention in Washington this month, genuinely giddy after a keynote speech by the self-identified "committed originalist and textualist" justice Neil Gorscuh they helped install on the Supreme Court. Thirty-five years after its founding, the conservative-libertarian assemblage of law students, lawyers, and judges was also celebrating its quasi-official role in vetting nominees for President Trump for federal judgeships and its increased influence among Republican lawmakers on Capitol Hill.
      Thus energized, the society decided to use three days of programs to renew and reinvigorate the war that the group's political and intellectual forbears fought and lost to the New Deal 80 years ago. Speaker after speaker echoed the theme that the federal appeals court judge Edith Jones struck in introducing the opening panel [Nov. 16] by attacking the so-called administrative state as a "nonelected, nonaccountable branch of government."
      To its credit, the Federalist Society typically includes one liberal to speak for the opposing side in its four-person panels. That role fell in the opening panel to Gilliam Metzger, a professor at Columbia Law School, who had just published a widely noted article in the Harvard Law Review warning that the administrative state was "under siege." The attacks, she told the audience, are "misguided."
      The judicial underpinnings of federal regulatory agencies are well established, but completely illegitimate, to hear Federalist Society members tell it. Independent agencies such as the Federal Trade Commission (FTC), founded in 1914, can be created by Congress to combine three kinds of power: rulemaking, enforcement, and adjudication. And the members of those multimember commissions can be given fixed terms, subject to removal by the president only for cause.
      In a paradoxical footnote, that principle comes from the Supreme Court's decision in a case called Humphrey's Executor that rebuffed President Franklin D. Roosevelt's decision to fire FTC commissioner William Humphrey for not supporting FDR's policies. The 1936 ruling was unanimous, but former federal appeals court judge Michael McConnell was warmly received when he called for overruling it.
      Under a more recent pair of cases, all federal agencies, including those in the executive branch such as the Environmental Protection Agency (EPA), get the benefit of a generous amount of judicial deference for their rulemaking powers. The Supreme Court's unanimous decision in Chevron U.S.A. v. Natural Resources Defense Council (1984) held —  in upholding a deregulatory move by the EPA —   that agencies are entitled to deference if they adopt "a permissible construction" of a statute that vests discretion in the agency.
      A decade later, the Court held —  in another unanimous opinion, this one written by Justice Antonin Scalia —  that federal agencies are also entitled to deference when they interpret their own regulations. Before his death, Scalia publicly voiced doubts about his opinion in Auer v. Robbins (1997). Those doubts have been picked up by, among others, Scalia's colleague, Clarence Thomas, and his successor, Gorsuch.
      The legal doctrines are far removed from the real political issue: efforts by business interests and committed small-government conservatives to undo regulations designed to protect, among other things, the environment, public health, consumers, workers, and investors. Gorsuch mocked Metzger's article in his black-tie dinner speech and warned against what he saw as the risk under the administrative state of "moving from liberty to tyranny."
      Metzger labored, to no apparent effect, to rebut the depiction of federal bureaucracies as either undemocratic or tyrannical. The administrative state "performs some very important constitutional functions," she explained. In her article — the Foreword for the  Harvard Law Review's annual Supreme Court edition — she wrote more forcefully of what she called "the administrative state's essential place in our constitutional order."
      Administrative agencies are far from unaccountable, Metzger argued in her article." Anti-administrativists fail to recognize that the key administrative state features that they condemn, such as bureaucracy with its internal oversight mechanisms and expert civil service, are essential for the accountable, constrained, and effective exercise of executive power," she wrote.
      In place of the accountability built into bureaucratic structures, the Federalists want to strengthen the power of the president and/or Congress to override regulatory decisions. President Trump's chief spear carrier in the so-called deconstruction of the administrative state drew raucous cheers when she described the administration's policies. Neomi Rao, administrator of the White House's Office of Regulatory and Information Affaires (ORIA), promised that the administration will do better than Trump's executive order to eliminate two regulations for every new regulation put in place.
      Sen. Tom Cotton, an Arkansas Republican, was similarly well received when he noted that Congress has used the previously obscure Congressional Review Act to repeal more than a dozen so-called "midnight regulations" that the Obama administration adopted in its final months. The law had been invoked only once before.
      Presidential or congressional overrides are poor substitutes for administrative accountability, however, according to dissenting speakers. Lisa Heinzerling, an environmental law expert at Georgetown Law School, cited President Obama's decision to overturn an EPA decision on ozone as an example. Obama provided little by way of justification for his action, she said. In like vein, Peter Strauss, a professor at Ohio State's Columbus School of Law, said that Congress had failed to justify its recent action to override a regulation issued by the Consumer Financial Protection Bureau (CFPB) to prevent banks and other financial institutions from using mandatory arbitration clauses to block lawsuits by disgruntled customers.
      Metzger concedes that the anti-administarativists are gaining traction with their arguments — not just in the Trump administration and in Congress but also at the Supreme Court. She counts Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. as sympathetic to the critique, along with the committed critics Thomas and Gorsuch. Are we one justice away from a fundamental transformation of administrative law? Metzger thinks not, but Federalist Society members seem to think their goals within reach.

Saturday, November 18, 2017

Impeaching Trump: Here's the Beef

      Donald Trump marked a historic milestone this week when he became the first president to be confronted with a resolution calling for his impeachment and removal from office within his first year in the White House.
      The 25-page resolution  introduced on Wednesday [Nov. 15] by six Democratic members of the House of Representatives lays out five articles of impeachment that recite familiar stories relying for the most part on undisputed facts. Trump is charged with obstructing justice — most specifically, by firing FBI director James Comey to try to thwart the Russia investigation. He is also accused of violating the Constitution's foreign and domestic emoluments clauses and with undermining the independence of the judiciary and the freedom of the press.
      As to each of the counts, the resolution lays out a strong case that the president, quoting now, "has undermined the integrity of his office, brought disrepute on the Presidency, and betrayed his trust as President in a manner subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States." With the issues so familiar, the resolution's sponsors rightly view impeachment as the only means for ending what the lead sponsor, Tennessee's Steve Cohen, in a press release calls Trump's "reckless and harmful behavior" in office.
      By historical standards, the resolution is as dense and detailed as the only successful impeachment resolution to date: the three articles adopted with bipartisan support by the House Judiciary Committee on July 27, 1974. The committee's action, combined with the Supreme Court's decision in the Watergate tapes case, forced Richard M. Nixon to resign the presidency within a matter of days to avoid all-but-certain conviction and removal.
      By contrast, the Trump impeachment resolution is far more detailed than the impeachment measures brought, unsuccessfully, against Andrew Johnson in 1868 and Bill Clinton in 1998. The Senate fell one vote short of the two-thirds majority needed to convict Johnson on charges of violating the Tenure in Office Act by removing Edwin Stanton as secretary of war. The Senate fell short of a simple majority on the two counts against Clinton: 45-55 on perjury for lying to a federal grand jury and 50-50 on the related obstruction of justice count.
      Impeachment is a powerful weapon, so it is probably good that it has been wielded against the president infrequently and successfully only in Nixon's case. History has long approved of Johnson's acquittal: his removal for firing a member of his own cabinet would have gutted the president's authority over the executive branch. Decades from now, history is also likely to judge that the Clinton impeachment was more a partisan power grab than a principled effort to punish presidential misconduct.
      Six other presidents have been the targets of impeachment resolutions, according to a detailed report by the Congressional Research Service. John Tyler became the first impeachment target, two years into his presidency in 1843, for exercising the president's constitutional power to veto a bill passed by Congress; the House rejected the resolution. None of the others was brought to the House floor.
      Three presidents faced possible impeachment on their way out of the White House. Grover Cleveland faced a miscellany of politically charged accusations in an unsuccessful resolution introduced in the final year of his second term. Herbert Hoover similarly faced a mishmash of politically motivated accusations in December 1932 after he had been defeated for re-election. In a more recent instance, Harry Truman faced impeachment in his final year in office for seizing the shut down steel mills to keep them operating during the Korean War.
      Two presidents, Ronald Reagan and George H.W. Bush, were accused in unsuccessful impeachment resolutions of exceeding presidential powers by launching overseas wars: Reagan's invasion of Grenada in 1983 and Bush's Desert Storm war in Kuwait in 1991. Reagan also survived a second-term impeachment attempt over the Iran-contra affair.
      Those efforts, just like the one against Trump, arose from partisan disagreements whatever their underlying substance. In Trump's case, the accusations stand of their own weight despite their partisan motivations; the president and his supporters have little by way of defense except to rely on immunity supposedly created by winning election.
      Trump himself admitted, belatedly, that he fired Comey to thwart the Russia investigation. That may not be obstruction for criminal law purposes, but qualifies in an impeachment trial. He has clearly violated the Foreign Emoluments Clause from the patronage of foreign governments at Trump properties, including the Trump Hotel in Washington, and from regulatory benefits extended to Trump businesses in many countries — China, most recently. As for the Domestic Emoluments Clause, the White House itself is paying Trump properties for all the days that the president has spent at Mar-a-Lago, among others.
      Trump is accused of undermining the independence of the judiciary and the rule of law by his race-based campaign-time criticism of the federal judge overseeing the civil suit against Trump University, his White House criticism of the judges handling the Muslim travel ban cases, and his pardoning of Arizona's contempt-of-court sheriff Joe Arpaio.
      As for freedom of the press, Trump commended a literal "beat the press" policy to his supporters during the campaign and has kept up his "Fake News" drumbeat in the White House. The specifics cited make clear that Trump's efforts to undermine the press go far beyond the ordinary, to-be-expected adversary relationship between the White House and the press.

Sunday, November 12, 2017

Impeaching Trump? Nailing Jello to the Wall

      President Trump has quite possibly committed what the Framers of the Constitution would have considered an impeachable offense. That is the takeaway from an hour-long, ostensibly nonpartisan presentation by a leading expert on impeachment at the National Constitution Center last week [Nov. 6].
      Cass Sunstein, a Harvard Law School professor and author of the just published title Impeachment: A Citizen's Guide (Harvard University Press), pointed most specifically to the investigation by special counsel Robert Mueller of the Trump campaign's possible collaboration with Russia during the 2016 campaign. In Sunstein's recounting, the Framers worried at the Constitutional Convention about the possibility that the president might attain office through some corrupt means.
      The possibility of enlisting a foreign adversary to gain the White House? "That's worse," Sunstein told his interviewer, Jeffrey Rosen, the center's president and a law professor at George Washington University. To avoid the partisan pitfall, Sunstein, a former Obama administration official, elaborated not by referring to Trump but by re-hypothesizing a collaboration between a Democratic candidate and a different foreign adversary, China.
      With each passing day, it becomes more evident that the Trump campaign behaved as though it had been corrupted by Russian agents, but the evidence of active "collusion" is fragmentary and disputed. Son-in-law Jared Kushner's meeting in June 2016 with a Russian lawyer who promised dirt on Trump's Democratic opponent Hillary Clinton would seem to be a smoking gun but for Kushner's insistence that nothing came of it.
      Trump himself has repeatedly denied any collusion with the Russians and belittled the accusations and the accusers. He went even further over the lines of normal respectability this weekend [Nov. 11] by telling reporters after a meeting with the Russian president Vladimir Putin that he credits Putin's denials of meddling over the formal assessment to the contrary by the U.S. intelligence community. Adding gratuitous insult to traitorous injury, he dismissed the former CIA director John Brennan, the former director of national intelligence James Clapper, and fired FBI director James Comey as "political hacks."
      Trump's own CIA director, Michael Pompeo, responded with a statement reaffirming his belief in the January 2017 assessment. "The intelligence assessment with regard to Russian election meddling has not changed," Pompeo said blandly. Sen. Ben Cardin, a Maryland Democrat and member of the Senate Intelligence Committee, called Trump's statements "outrageous." From a different perspective, Bill Kristol, a "Never Trump" conservative columnist, called Trump's statements an effort to "help lay the groundwork for ending" the Russia investigation.
      The focus on the Russia investigation is understandable, but it partakes to some extent of what Sunstein described as the error in treating impeachment in legal instead of political terms. The Framers adopted the phrasing "high crimes and misdemeanors" as a term well understood in the 18th century to denote misconduct in public office. At the Constitutional Convention, James Madison called impeachment a remedy "against the incapacity, negligence, or perfidy of the chief Magistrate." In Federalist No. 65, Alexander Hamilton called impeachment a "political" action to be taken against an official for "the abuse or violation of some public trust."
      Thus, as Sunstein put it, some presidential crimes may not be impeachable offenses —  for example, jaywalking or tax fraud —  and some impeachable offenses may not be crimes at all. Trump's firing of Comey might have been "fine" in a general context, Sunstein said, but arguably an impeachable offense if the aim was to "prevent an investigation of horrible things." That would be true, Sunstein added. even if it did not amount to obstruction of justice. "I wouldn't make a fetish of the term," he said.
      In like vein, several legal commentators have cautioned against overemphasizing "collusion" as the object of the Russia investigation — a term, they note, with no special legal significance. "There is a range of different kinds of collusion," says Ilya Somin, a constitutional law professor at George Mason University's Antonin Scalia Law School, "and a range of degrees of collusion." In any event, Somin adds, "we simply don't have enough evidence yet to know."
      The liberal billionaire Ton Steyer, who claims to have 2 million signatures for his petition to impeach Trump, has a scatter-shot bill of particulars against Trump that goes beyond the Russia issue. He accuses Trump of exploiting the presidency "for his personal gain" and treating the government "like a family enterprise." Those accusations seem to channel Madison and Hamilton, but others go somewhat afield into policy disagreements on issues ranging from immigration and health care to climate change and North Korea. 
      The conventional wisdom, ever since John F. Kennedy celebrated President Andrew Johnson's acquittal in his book Profiles in Courage, has argued against Congress impeaching the president over policy disagreements. On health care, however, Steyer aptly calls Trump's "sabotage" of the Affordable Care Act a failure to execute the law. Articles of impeachment could cite Trump's careless attitude toward the Take Care Clause in other contexts. Steyer cites Trump's "conduct during Charlottesville." Somin points to Trump's campaign and post-election "encouragement of violence" and, more generally, his "breach of constitutional norms."
      The case for Trump's impeachment, in short, is substantial even if a political impossibility as long as Republicans cling to their historically unpopular president. The case for impeaching Trump for "high crimes and misdemeanors" is long and strong, but is akin to nailing Jello to a wall. There is a lot there, but it's very hard to make it stick.
      More on the topic next week.

Sunday, November 5, 2017

From Death Row, a Plea on 'Ineffective Assistance'

      Carlos Ayestas has spent almost 20 years on death row in Texas, sentenced by a jury that heard none of the evidence that might have spared him the death penalty. Ayestas was convicted along with two others of strangling an elderly woman during a home invasion in a cut-and-dried, two-day guilt phase trial. The subsequent capital sentencing hearing — required under Supreme Court precedents — was even shorter, woefully deficient even by Texas's low standards.
      Two decades later, Ayestas is before the U.S. Supreme Court, seeking funds that his current lawyers say are needed to show his previous attorneys violated his Sixth Amendment rights by providing "ineffective assistance" at trial and in a subsequent state habeas corpus proceeding. Those lawyers all but completely ignored evidence of possible mental illness and head traumas suffered by the Honduran immigrant as a youngster — information that jurors might have found to be "mitigating circumstances" weighing against imposition of a death sentence.
      The arguments in Ayestas v. Davis last week [Oct. 30] illustrate the importance of the court's continuing role in policing what the late justice Harry A. Blackmun famously referred to near the end of his career as "the machinery of death." The Roberts Court seems unlikely to declare capital punishment flatly unconstitutional under the Eighth Amendment and has repeatedly refused to find the current three-drug lethal injection protocol unconstitutionally "cruel or unusual." Year after year, however, the court throws out death sentences or capital murder convictions based on narrower constitutional violations.
      Many of those cases come from Texas, far and away the leading state in executions since the Supreme Court's decision in 1976 allowing the resumption of capital punishment. Just last term, the court told the state to update its definition of intellectual disability used to determine eligibility for the death penalty (Moore v. Texas) and threw out a black inmate's death sentence because of sentencing-hearing testimony linking future dangerousness to race (Buck v. Davis).
      Ayestas's case presents an even starker illustration of the low standards that the Lone Star State sets for justice in capital cases. To appreciate the extent of the injustice to Ayestas, death penalty cases need to be understood today as focusing less on guilt or innocence than on aggravating or mitigating circumstances as presented by opposing lawyers in the post-verdict sentencing hearing. A properly staffed capital defense team today includes not just lawyers and a Paul Drake-type investigator, but also a "mitigation specialist" with a combination of investigative and interviewing skills needed to ferret out details of a defendant's social history to use as mitigating circumstances in the capital sentencing phase.
      Ayestas's two defense lawyers learned just before his 1997 trial that the twenty-something immigrant had suffered repeated head traumas as a youngster and presented some symptoms of mental illness. In their two-minute presentation of mitigating evidence, however, they introduced nothing more than three letters from a teacher at the Harris County jail that Ayestas was a "serious and attentive" student in her English as a second language class and was making good progress.
      With his conviction and sentence affirmed on appeal, Ayestas was given a new lawyer to challenge the conviction through a state habeas corpus proceeding. That lawyer also failed to investigate Ayestas's medical and mental health issues, much less challenge the trial lawyers as "ineffective" for having failed to do so. He argued only that Ayestas's trial lawyers were deficient for failing to get his family from Honduras to the trial to testify in his behalf. State courts again upheld the conviction and sentence.
      A decade later, a new legal team filed a federal habeas corpus petition for Ayestas that, for the first time, claimed ineffective assistance of counsel based on the failure to investigate the mental illness and medical issues. By this time, a prison psychiatrist had also formally diagnosed Ayestas with schizophrenia  a condition likely to have been diagnosable earlier. The federal district court judge who heard the case, however, dismissed Ayestas's petition as procedurally defaulted because he had not raised the ineffective assistance claim earlier.
      A pair of Supreme Court decisions effectively required the district court to reconsider the issue, but the judge again rebuffed Ayestas's plea. Ayestas also asked for funds, as provided by a federal law, to investigate and present the claim. The Criminal Justice Act provision guarantees death row inmates the funds "reasonably necessary" to present post-conviction challenges in federal habeas corpus proceedings.
      The Fifth U.S. Circuit Court of Appeals, the federal court with jurisdiction over Texas, has adopted a unique interpretation of that provision to require funds for federal habeas corpus cases only if the inmate demonstrates "a substantial need" for the money. No other federal circuit has put this gloss on the seemingly straightforward phrasing from the statute itself.
      In Ayestas's case, a panel of three Republican-appointed judges upheld the judge's decision. "The district court did not abuse its discretion when it declined to authorize a mitigation specialist for Ayestas before it determined the viability of Ayestas’s claim," the court wrote in an unsigned opinion.
      At the Supreme Court, University of Maryland law professor Lee Kovarsky argued in Ayestas's behalf that the Fifth Circuit's rule, in effect, allowed the court improperly to "guess" what a properly funded investigation would show. Liberal justices evidently sympathized, while conservatives fretted about issues of jurisdiction and judicial administration. Troublingly for Ayestas's chances, Justice Anthony M. Kennedy sat silently and expressionlessly throughout the hour. "Without Kennedy asking any questions," Kovarsky remarked afterward, "it's really hard to know where you stand."

Sunday, October 29, 2017

Teen Immigrant Abused by Anti-Abortion Policy

      The teenaged girl known in court papers as Jane Doe crossed the U.S.-Mexico border into Texas in early September, fleeing an abusive family in her native land in Central America. But Jane escaped one abusive situation only to be abused again, this time by the U.S. government, intent on forcing her to carry an unwanted pregnancy to term despite her constitutional right in the United States to an abortion if she satisfied certain legal standards.
      Apprehended near the border city of Brownsville after her illegal crossing, Jane was held in a federally funded shelter used to detain illegal immigrants. As a would-be refugee, her case fell within the jurisdiction of the Office of Refugee Resettlement (ORR), a unit within the federal Department of Health and Human Services (HHS).
      Scott Lloyd, the Trump-appointed head of the office, brings to the position no training in health or human services but years of experience as an anti-abortion zealot with the Knights of Columbus, the Catholic charitable and humanitarian organization, and a lawyer for a "crisis pregnancy center" in Fort Royal, Va. Lloyd has eagerly taken to enforcing the policy adopted in May that prohibits immigration detention shelters from taking "any action that facilitates an abortion without direction and approval" from him as ORR director.
      Supreme Court decisions extending from Roe v. Wade in 1973 to Whole Women's Health Center in 2015 protect a woman's right to choose an abortion before fetal viability and prohibit the government from imposing any "undue burden" on the woman's exercise of that right. Lock-and-key for a woman held in detention is more than a burden but tantamount to a prohibition.
      Jane's story ends happily for her with a lopsided federal appeals court ruling [Oct. 24] that ordered the government to stop blocking her from going to a medical clinic for the abortion that she had chosen to undergo and to which she had a constitutional right. Jane underwent the procedure the next day as the government. The 6-3 decision by the U.S. Court of Appeals for the District of Columbia Circuit in Garza v. Hargan reversed the earlier, divided ruling by a three-judge panel that had allowed the government to continue to block the abortion even as the risks of the procedure increased with each passing day.
      Jane underwent the procedure the day after the D.C. Circuit's en banc decision and, in a later interview with VICE News, reaffirmed that she felt incapable at age 17 of caring for a child. "I don't feel sure of having a child," she told interviewer Antonia Hylton with her back to the camera and her name still withheld.
      The Trump administration policy directive asserts a government interest in protecting human life, but the government's overriding interest seemingly should be enforcing the law of the land — abortion rights — whatever the political views of what the British like to call "the government of the day." Lloyd's anti-abortion views are a matter of public record, as BuzzFeed News unearthed in a story published as the controversy swirled.
      Writing for the Christian website Ethika Politika in 2011, Lloyd urged state legislators to enact laws requiring a woman to notify the putative father of her decision to abort and to obtain his consent even though Supreme Court decisions clearly prohibit any veto power for a man over the woman's decision. Later, Lloyd recommended that women obtaining government-funded birth control sign a contract promising not to undergo an abortion if the contraceptive failed.
      Lloyd's work with Knights of Columbus entailed advocacy for protecting religious and ethnic minorities victimized by ISIS, the self-styled Islamic State. That experience left him completely insensitive, it appears, to Jane's plight, as a pregnant teenager who had witnessed her parents beat her older sister after having discovered her pregnancy.
      Jane arrived in the United States as "a child . . . alone in a foreign land," as Judge Patricia Millett explained in what amounted to the majority opinion for the six Democratic-appointed judges in the D.C. Circuit majority. Lloyd's version of helping her consisted of allowing her to be taken not to a clinic but to a so-called crisis pregnancy center, where a counselor tried to dissuade her from the planned abortion. "They took me to the clinic," Jane told her interviewer, "and they prayed for me."
      Significantly, Jane's legal team from the American Civil Liberties Union (ACLU) had already convinced a state court judge in Texas that she was mature enough to make the decision to undergo the abortion. The Justice Department attorneys representing HHS in the case stopped short of arguing that Jane had no constitutional right to abortion, merely that the government did not have to "facilitate" the procedure. Millett aptly accused the government of "verbal alchemy" by attempting to "categorically blockade" the abortion.
      Writing for the three Republican-appointed dissenters, Judge Brett Kavanaugh said the decision amounted to "a radical expansion of the Supreme Court's abortion jurisprudence." Separately, Judge Karen Lecroft Henderson argued in a sole dissent that Jane in fact had no constitutional right to abortion since, technically, she had never "entered" the United States. That issue remains open since Jane's case was litigated, under tight deadlines, solely as an individual case. The ACLU lawyers are pursuing a broader class action aimed at invalidating the refugee office's "no facilitating" directive en toto.