This Week's Focus

Taylor v. USA/Arizona Ninth Circuit holds PLRA key provisions unconconsitutional. "Congress, in violation of the Constitution, has reopened the final judgments of the federal courts and unconditionally extinguished past consent decrees affecting prison conditions."

The language of the PLRA suffers from some lack of clarity. For example, the word "relief" is defined to include "consent decrees," 18 U.S.C.A. S 3626(g)(9), but a consent decree is not "relief," though it provides "relief." Further- more, 18 U.S.C.A. S 3626(c)(1), regarding consent decrees under the general heading "settlements," expressly incorpo- rates the provisions of 18 U.S.C.A. S 3626(a) but not the ter- mination provisions of 18 U.S.C.A. S 3626(b). It is also not entirely clear how 18 U.S.C.A. S 3626(b)(1), which provides for termination of prospective relief after two years from the date of its granting or, as to pre-PLRA orders, from the date of enactment of the PLRA, is intended to fit withS 3626(b)(2) regarding immediate termination. For pre-PLRA consent decrees, regardless of age, findings necessary to the continua- tion of prospective relief would be lacking. . . . . The main thrust of constitutional challenges to the PLRA has been based on separation of powers principles. A number of district courts, including the court below, have relied on such principles to invalidate S 3626(b)(2) of the PLRA. To date none of those decisions has been upheld. The circuits which have addressed the issue have found 18 U.S.C.A. S 3626(b)(2) constitutional. See Hadix v. Johnson, 133 F.3d 940, 942 (6th Cir. 1998) (S 3626(b)(2) does not vio- late separation of power principles); Dougan v. Singletary, 129 F.3d 1424, 1426 (11th Cir. 1997) (same); Inmates of Suf- folk County Jail v. Rouse, 129 F.3d 649, 657 (1st Cir. 1997) (same); Gavin v. Branstad, 122 F.3d 1081, 1088-89 (8th Cir. 1997) (same); Plyler v. Moore, 100 F.3d 365, 371-73 (4th Cir. 1996) (same), cert. denied, 117 S.Ct. 2460 (1997); Benjamin, 124 F.3d at 173 (Section 3626(b)(2) is constitutional but does not terminate decree; only jurisdiction of federal court termi- nated). . . .

We believe they have not applied Supreme Court precedent upholding the separation of powers among the several branches of government with sufficient force, and conclude that S 3626(b)(2) is indeed unconstitutional. The Act effec- tively terminates consent decrees which were entered into vol- untarily to resolve constitutional claims arising from prison conditions. See 18 U.S.C. S 3626(b)(2). The various saving provisions are illusory. See 18 U.S.C. S 3626(b)(3). Congress, in violation of the Constitution, has reopened the final judg- ments of the federal courts and unconditionally extinguished past consent decrees affecting prison conditions. . . .

What differentiates the termination provisions of the PLRA from Wheeling, where modification of the injunction was required, is the nature of the "change in law " that the PLRA brings about. The PLRA does not effect a change in the "substantive" law that gave rise to the consent decrees in this case, i.e., the Constitution. Here, what Congress has done is to define the scope and nature of the remedy that it finds appropriate for prisoners who claim constitutional violations. See 18 U.S.C.A. S 3626. With respect to the existing consent decrees, the only "change in law" that Congress has brought about is to say, "terminate the relief." See 18 U.S.C.A. S 3626(b)(2).

CAPITAL CASES REVIEWED

Vickers v. Stewart Ninth Circuit turns away an Arizona death row inmates claim that defense at trial based on temporal lobe epilepsy ("TLE") was undermined by the refusal to grant funds. Holding " TLE is a brain disorder that can cause violent behavior and render a person unable to appreciate the nature and wrongfulness of his acts." Nonehtheless "even if the testing had shown that Vickers did suffer from TLE, that diagnosis would not materially assist the jury to decide the critical question: whether Vickers was suffering a seizure at the time of the homicide."

Supreme Court Proceedings

Crawford-El v. Britton SCOTUS holds (5-4) that the District of Columbia Circuit erred in implementing a heightened burden of proof for unconstitutional-motive cases against public officials. Crawford-El filed suit under 42 USC s 1983 alleging that Britton, a correctional officer, confiscated his property while he was being transferred to another prison, delaying its arrival for several months, in order to retaliate against him for having exercised his First Amendment right to freedom of speech.The Supreme Court held that 1) the Harlow case does not support the imposition of a heightened standard of proof; 2) changing the burden of proof would violate the traditional limits on judicial authority; and 3) existing procedures are available for judges to handle claims involving a public official's state of mind. D.C. Circuit's. "clear and convincing" standard of proof in such unlawful-motive cases "undermines the very purpose of Section 1983--to provide a remedy for the violation of federal rights." "Neither the text of Section 1983 nor any other federal statute, for the Federal Rules of Civil Procedure, provides any support for imposing the clear and convincing burden of proof on plaintiffs either at the summary judgment stage or in the trial itself." (Opinion by Stevens, Dissent by Rehnquist, Swing vote Kennedy).

Cert grant:Does a local government violate a citizen's Due Process rights when it gives inadequate notice on how to recover property seized by police? The 9th U.S. Circuit Court of Appeals said yes. West Covina v. Perkins.

Double Jeopardy/Estoppel

Neal v. Cain Fifth Circuit denies habeas on claims "that the principle of collateral estoppel barred his second trial for aggravated kidnaping after he was convicted of sexual battery but acquitted of aggravated rape in his first trial."

Williams v. Travis Second Circuit affirms where sentence was pronounced and petitioner's counsel had left the courtroom, the Assistant District Attorney alerted the court that the sentence was invalid because not of sufficient length, right to be free from double jeopardy not touched

Habeas Rules & Procedures

Mitchell v. Rees An extremely conservative Sixth Circuit panel holds examines in depth pre- AEDPA right to an evidentiary hearing, reversing a grant of haeas, holding the district court should not have held an evidentiary hearing. "The state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings. This is fully consistent with, and gives meaning to, the requirement of exhaustion. . "

In re Green Sixth Circuit denies right to file a successive petition although finding the decision on which Green relies announced a new rule of criminal procedure (Old Chief), that case did not meet the test of either § 2244 or Teague for retroactivity.

Diaz v. Ducksworth Seventh Circuit holds that deportation moots a habeas claim

USA v. Winheim Eighth Circuit holds entry of an unconditional guilty plea waived Bailey issue.

Sixth Amendment

Barrett v. Acevedo Eighth Circuit holds that the district court correctly found admission of hearsay evidence during forensic pathologist's testimony violated Barrett's Sixth Amendment Rights.

Crespins v. New Mexico Tenth Circuit denies relief, despite finding error revolving around the "appropriate standard to be applied under the federal Confrontation Clause when determining the admissibility of a non-testifying accomplice's confession."

Barrett v. Acevedo Eighth circuit holds that district court correctly found admission of hearsay evidence during forensic pathologist's testimony violated Barrett's Sixth Amendment Rights.

Prisoner Rights & Prosecutorial Misconduct suits

Taylor v. USA/Arizona Ninth Circuit holds PLRA key provisions unconconsitutional. "Congress, in violation of the Constitution, has reopened the final judgments of the federal courts and unconditionally extinguished past consent decrees affecting prison conditions."

Crawford-El v. Britton SCOTUS holds (5-4) that the District of Columbia Circuit erred in implementing a heightened burden of proof for unconstitutional-motive cases against public officials. Crawford-El filed suit under 42 USC s 1983 alleging that Britton, a correctional officer, confiscated his property while he was being transferred to another prison, delaying its arrival for several months, in order to retaliate against him for having exercised his First Amendment right to freedom of speech. The District of Columbia Circuit held that a plaintiff must establish motive by clear and convincing evidence in an unconstitutional-motive case and that the reasoning in Harlow v. Fitzgerald, 457 US 800 (1982), requires special procedures to protect defendants from the costs of litigation. The Supreme Court held that 1) the Harlow case does not support the imposition of a heightened standard of proof; 2) changing the burden of proof would violate the traditional limits on judicial authority; and 3) existing procedures are available for judges to handle claims involving a public official's state of mind.(Opinion by Stevens, Dissent by Rehnquist, Swing vote Kennedy).

Davis v. Brady Sixth Circuit holds record sufficient to show "the establishment of a duty not to subject Davis to danger, and that the defendant officers acted with deliberate indifference to the threat of injury to Davis."

Berry v. Oswalt Inmate raped by prison guards, Eighth Circuit holds, " was entitled to damages both for violation of her constitutional rights and for [the Arkansas state law] tort of outrage, as separate elements are involved in each claim and jury was properly instructed; warden and director were entitled to summary judgment as they did not have the necessary culpable state of mind to show they acted with deliberate indifference; court erred in admitting evidence of other instances of misconduct to challenge guard's credibility."

Canll v. Lightner Ninth Circuit hold that prison guards mocking a prisoner's religious beliefs did not constiute a cognizable First Amendment claim.

Ireland v. Tunis Sixth Cirxcuit examines claims that defendants violated her Fourth and Fourteenth Amendment rights when they filed a criminal complaint against her, sought and issued a warrant for her arrest in connection with alleged improprieties in the Cityes direct payments to a County police officer.

Scotto v. Almenas Second Circuit in a complex case allows in part, denies in part claims of qualified immunity in a civil case

Hynes v. Squillace Second Circuit affirms clais arising out of First Amendment retaliation claim failure to articulate adequately the factual predicates supporting its conclusion that plaintiff's 21-day keeplock confinement did not deprive him of a liberty interest.

Other Perspectives

The online edition of theNational Law Journal notes these cases this week :

THE CONCLUSION OF a district court that the peremptory strike of a juror was motivated by purposeful discrimination was clearly erroneous, the 4th U.S. Circuit Court of Appeals ruled April 27. U.S. v. Blotcher . . . . Lerry Blotcher appealed his drug conviction on the ground that the district court improperly refused to allow him to exercise a peremptory strike against a juror. Mr. Blotcher, who is black, struck six white jurors. The court accepted explanations given for five of them, following a Batson challenge, but refused to strike the sixth, finding that Mr. Blotcher's explanation, that the juror appeared to be conservative because of the way he wore his hair and the type of glasses he wore, was pretextual. . . . The appeals court found that the district court's holding did not acknowledge the rule that intentional discrimination is not shown by a failure to challenge all jurors with a given characteristic and that a defendant "...ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case....

POLICE OFFICERS WHO secured a warrant to search a defendant's apartment for narcotics violated the applicable "knock and announce" statute by prematurely forcing entry into the apartment with a battering ram, the District of Columbia Court of Appeals ruled April 30. West v. U.S., 96-CO-1778. Reversing, Judge Frank E. Schwelb held that evidence seized as a result of the search should be suppressed because not enough time elapsed between the knock and the officers' breaking the door down to justify a conclusion that they had been refused admittance.

A DEFENDANT DID not have a Fourth Amendment expectation of privacy in a shed from which he operated a part-time welding business, the 5th U.S. Circuit Court of Appeals held April 29. U.S. v. Cardoza-Hinojosa. . . . Affirming, Judge Carl E. Stewart said, "While [the defendant] indisputably had a possessory interest in the shed at the time of [the] warrantless entry, the circumstances preceding [the] entry reveal a careless (if not nonexistent) effort on [the defendant's] part to maintain a privacy interest therein. Not only did [the defendant] direct [an undercover officer] to meet him and his codefendant for a pre-transaction meeting almost directly in front of the shed, but [the defendant] left to purchase beer before [the undercover agent] arrived. These actions simply cannot be reconciled with [the defendant's] claimed belief that the transaction was going to occur elsewhere and not in or around the vicinity of the shed."

-- Karl R. Keys, Esq.

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