Justice Thomas Fires a Shot Across Facebook’s Bow

by · Mar 7, 2022 4:11 pm

The U.S. Supreme Court declined to take up the case of Jane Doe v. Facebook, No. 21-459. Justice Thomas agreed, but only for the time being.

In 2012, an adult, male sexual predator used Facebook to lure 15-year-old Jane Doe to a meeting, shortly after which she was repeatedly raped, beaten, and trafficked for sex.Doe eventually escaped and sued Facebook in Texas state court, alleging that Facebook had violated Texas’ anti-sex trafficking statute and committed various common-law offenses. Facebook petitioned the Texas Supreme Court for a writ of mandamus dismissing Doe’s suit. The court held that a provision of the Communications Decency Act known as §230 bars Doe’s common-law claims, but not her statutory sex-trafficking claim.

Continue reading . . .

Defining “Occasion” — The Finale

by · Mar 7, 2022 8:05 am

Over a year ago, I noted in this post that the U.S. Supreme Court had taken up the case of Wooden v. United States to resolve what amounts to separate “occasions” in the Armed Career Criminal Act. There is widespread agreement that repeat offenders should be dealt with more severely than one-timers, but the distinction between repeating and committing multiple crimes in one incident sometimes makes for difficult line-drawing. I noted in the previous post:

Breaking into 10 different units at a self-storage place is 10 counts of burglary under Georgia law. That seems reasonable, given 10 separate breakings and 10 separate entries to steal the possessions of 10 separate victims. But if they are done one after another is that 10 different occasions for the purpose of the recidivist statute? That seems like a stretch.

Not surprisingly, the Court’s decision today was unanimous in the judgment that counting 10 occasions for the purpose of the ACCA was an overreach. Continue reading . . .

SCOTUS Reinstates Marathon Bomber’s Death Sentence

by · Mar 4, 2022 7:29 am

Opinion here. CJLF brief here. Prior post here. The prior post is an extended discussion of the evidence point in this case, while the brief is addressed primarily to the jury question. The issues are described in the prior post, so I will copy some of that material here.

In July of 2020, the U.S. Court of Appeals for the First Circuit in Boston reversed the death sentence and some of the convictions (though not on the capital offenses) of Dzhokhar Tsarnaev, the survivor of the pair of brothers who committed the horrible bombing of the Boston Marathon in 2013.

The Court of Appeals’ primary reason for reversal was its finding that during jury selection the trial court violated its half-century old rule in Patriarca v. United States, a precedent never mentioned by either party in the trial court or in the Court of Appeals’ pre-trial reviews of jury selection.
The court also said it would “address other issues (even if just briefly) because we know they are likely to resurface on remand.” One of those was a claim that the judge erred in not allowing hearsay evidence of an earlier, unrelated murder that the older brother was alleged to have been involved in. The six-Justice majority today disposed of both holdings without much difficulty. Continue reading . . .

Defending a State’s Laws in Court When State Officials Disagree

by · Mar 3, 2022 4:26 pm

For some time now, I have been concerned about a threat to the separation of powers in state governments. A governor or other executive officer cannot, of course, repeal a statute. But executive officers can sometimes decline to appeal a court decision holding a statute unconstitutional, which in practice has the same effect. In that way, the executive branch could override the decision of the legislature or, in states with the initiative, the people themselves.

The U.S. Supreme Court made this subterfuge more difficult today in Cameron v. EMW Women’s Surgical Center, No. 20-601. The statute at issue relates to abortion, a matter that CJLF takes no position on. What is important for our work is that Supreme Court allowed the Attorney General of the state to intervene to defend a statute after the state department head—no doubt on orders from the Governor—declined to seek further review of a decision holding a statute unconstitutional. Continue reading . . .

Los Angeles Police Can No Longer Make Traffic Stops

by · Mar 2, 2022 2:48 pm

The five member Los Angeles Police Commission has announced a new policy, effective immediately, which prohibits officers from making traffic stops for violations like failure to signal for a turn, a broken taillight or expired registration, unless the officer can present evidence that a more serious crime has occurred.  Kevin Rector of the Los Angeles Times reports that the new policy, which ignores state law, is meant to prevent “pretextual stops” where an officer pulls over a suspicious vehicle for a minor traffic violation in order to determine if the driver is currently wanted, or is carrying an illegal firearm or drugs.  It is legal under state law for police to pull over a vehicle for a traffic violation and look for evidence of a more serious crime.  According to Commission President William Briggs there “is no data that anyone can point to that establishes pretextual stops  curtail violent crime in our city.”  Briggs and others supporting the policy said it was needed to reduce racially biased policing.

Continue reading . . .

Predicting the Path of the New Justice

by · Feb 28, 2022 10:42 am

Ruth Marcus has this column in the WaPo (behind a paywall) on the impact of Judge Ketanji Brown Jackson on the Supreme Court. Ms. Marcus has covered the high court for many years.

In addition, justices, male or female, aren’t fungible. Even if they can be placed into broad categories of liberal or conservative, they bring different passions and different life experiences to the bench. Jackson’s experience as a criminal defense lawyer, member of the U.S. Sentencing Commission and trial court judge gives her a perspective different from that of her colleagues. It’s reasonable to imagine Jackson emerging as an ally of Justice Sonia Sotomayor, especially on criminal law issues, where Breyer and Justice Elena Kagan have been slightly more moderate. And, as I wrote the other day, she also could emerge as another powerful voice in dissent, joining Sotomayor and Kagan in a forcefulness and passion that Breyer didn’t always display. Continue reading . . .

The Road to Hell

by · Feb 16, 2022 10:19 am

In the struggle to achieve racial justice, New York and California have set the pace for the rest of America.  Over the past several years the Governors, state legislatures and Attorneys General of both states have promoted and implemented criminal justice reforms attempting to create equal outcomes among “marginalized racial groups.”  To create equity both states have effectively decriminalized certain offenses deemed non-violent, such as selling illegal drugs on the street, using drugs, traffic offenses, drunk driving, most theft, vandalism, some domestic violence, assaults, resisting arrest and illegal firearms possession.  Bail has also been eliminated or sharply reduced for all but the most violent offenses including car theft, commercial burglary, strong armed robbery and vehicular manslaughter among others.  Progressives tell us that reducing the arrest, prosecution and punishment for these crimes is necessary because people of color are disproportionately targeted by America’s systemically racist criminal justice system for committing them.   This is the kind of one-dimensional reasoning children use.  New York Congresswoman Alexandria Ocasio-Cortez exhibited it Monday, opining that the spike in crime in her state is because “the child-tax credit just ran out, on December 31st, and now people are stealing baby formula.”  She has 12 million followers on twitter.

Continue reading . . .

The Diversity Scam

by · Feb 15, 2022 1:31 pm

It’s not news at this point that President Biden preemptively determined that he would exclude close to 95% of the population in looking for his first Supreme Court nominee, and restrict the search solely to black women.  Excluding almost everyone in advance is a remarkably stupid way to go about making critical SCOTUS appointments, as three quarters of the electorate took little to time figure out.  The excuse being given for the blanket exclusion of black men, white men, white women, Hispanics, Asian-Americans and anyone else you can think of is  —  ready now?  —  diversity.

That this is preposterous on its face is not the point I want to make, since that’s too obvious to be posting about.  Instead, the point worth noting is that, according to one quite prominent leader in Washington, DC, it’s not really about diversity at all.

Continue reading . . .

Progressive NY District Attorney Changing His Tune

by · Feb 14, 2022 2:42 pm

Alvin Bragg, the new Manhattan District Attorney who began the year promising not to prosecute property criminals did a 180 last week and says he will now get tough on thieves.  As reported by Tamar Lapin in the New York Post, after video of a thief walking out of a Trader Joe’s with an armful of steaks was released, Bragg told reporters “We have amongst us opportunists, who are repeat players, who are just taking goods…..We are brainstorming about how to respond to that.”  Brainstorming?  How about enforcing theft laws and giving jail sentences to repeaters?  How about getting rid of zero bail and holding thieves accountable?  None of this require much deep thinking.  A brief look at recent history indicates that consequences matter.  Holding property offenders and other so-call “low level” criminals accountable also helps reduce violent crime.  Many of the violent crimes occurring in cities run by progressive politicians are committed by repeat offenders who would have been in jail or prison prior to the “reforms” pushed by these politicians and groups like Black Lives Matter.  The Seattle man who clocked a woman with a baseball bat in broad daylight last week was one of those “low level” offenders progressives policies kept on the streets.