DOCSLIB.ORG

Petitioner, V

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

No. 19-____

In The

Supreme Court of the United States

____________________

ROBERT A. PEREZ,

Petitioner,

v.

STATE OF COLORADO,

Respondent.

____________________

On Petition for a Writ of Certiorari to the Supreme Court of Colorado

____________________
PETITION FOR A WRIT OF CERTIORARI
____________________

  • Ned R. Jaeckle
  • Jeffrey L. Fisher

COLORADO STATE PUBLIC DEFENDER

O’MELVENY & MYERS LLP 2765 Sand Hill Road
1300 Broadway, Suite 300 Menlo Park, CA 94025 Denver, CO 80203
Meaghan VerGow Kendall Turner

Counsel of Record

O’MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, DC 20006 (202) 383-5204 [email protected]

i

QUESTION PRESENTED

Whether, and to what extent, the Sixth and Fourteenth Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party, notwithstanding a state privilege law to the contrary.

i

STATEMENT OF RELATED PROCEEDINGS

Perez v. People, Colorado Supreme Court No.
19SC587 (Feb. 24, 2020) (available at 2020 WL 897586) (denying Perez’s petition for a writ of certiorari)

People v. Perez, Colorado Court of Appeals No.
16CA1180 (June 13, 2019) (affirming trial court judgment)

People v. Perez, Colorado District Court
No. 14CR4593 (Apr. 7, 2016) (granting motion to quash subpoena seeking mental health records)

ii

TABLE OF CONTENTS
Page

QUESTION PRESENTED ........................................ i STATEMENT OF RELATED PROCEEDINGS ....... i PETITION FOR A WRIT OF CERTIORARI ........... 1 OPINIONS BELOW.................................................. 1 JURISDICTION........................................................ 1 RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS .................................... 1

INTRODUCTION ..................................................... 2 STATEMENT OF THE CASE.................................. 4 REASONS FOR GRANTING THE WRIT................ 8
A. State high courts and federal courts of appeals are openly split on the question presented................................................... 9

  • B. The
  • question
  • presented
  • recurs

frequently and is extremely important.. 16

C. This case is an ideal vehicle to resolve the conflict............................................... 19

D. The Colorado court’s ruling is incorrect. 22
CONCLUSION........................................................ 35

iii

TABLE OF CONTENTS
(continued)
Page

APPENDIX A Colorado Supreme Court Order
(Feb. 24, 2020).................................................... 1a

APPENDIX B Colorado Court of Appeals Opinion
(June 13, 2019) .................................................. 2a

APPENDIX C Trial Court Order
(Apr. 7, 2016).................................................... 23a

APPENDIX D Trial Court Transcript
(Apr. 7, 2016).................................................... 27a

APPENDIX E Colorado Revised Statute § 13-90-107 ................. 49a iv

TABLE OF AUTHORITIES
Page(s)
CASES

Advisory Op. to the House of Representatives,

469 A.2d 1161 (R.I. 1983) .................................. 11

Brady v. Maryland,

373 U.S. 83 (1963).........................................20, 22

Burns v. State,

968 A.2d 1012 (Del. 2009).............................11, 14

California v. Trombetta,

467 U.S. 479 (1984).................................27, 28, 29

Chambers v. Mississippi,

410 U.S. 284 (1973).......................................18, 27

Commonwealth v. Barroso,

122 S.W.3d 554 (Ky. 2003) .........................passim

Commonwealth v. Wilson,

602 A.2d 1290 (Pa. 1992)................................... 12

Crane v. Kentucky,

476 U.S. 683 (1983)...................................7, 28, 29

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993)............................................ 27

Davis v. Alaska,

415 U.S. 308 (1974).................................26, 30, 31

Dietrich v. Smith,

701 F. 3d 1192 (7th Cir. 2012)......................11, 20

Goldsmith v. State,

651 A.2d 866 (Md. 1995).................................... 12

Hathaway v. State,

399 P.3d 625 (Wyo. 2017) .................................. 10

Holmes v. South Carolina,

547 U.S. 319 (2006)............................................ 24 v

TABLE OF AUTHORITIES
(continued)
Page(s)

In re A and M,

61 A.D.2d 426 (N.Y. Sup. Ct., App. Div.

1978)................................................................... 18

In re Crisis Connection, Inc.,

949 N.E.2d 789 (Ind. 2011)................................ 12

In re Doe,

964 F.2d 1325 (2d Cir. 1992)........................11, 15

Jaffee v. Redmond,

518 U.S. 1 (1996).......................................2, 16, 35

Kinder v. White,

609 F. App’x 126 (4th Cir. 2015) ....................... 12

Kyles v. Whitley,

514 U.S. 419 (1995)............................................ 22

Love v. Freeman,

188 F.3d 502 (4th Cir. 1999).............................. 17

Love v. Johnson,

57 F.3d 1305 (4th Cir. 1995).............................. 20

N.G. v. Superior Court,

291 P.3d 328 (Alaska Ct. App. 2012) .................. 9

Pennsylvania v. Ritchie,

480 U.S. 39 (1987).......................................passim

People v. Adamski,

497 N.W.2d 546 (Mich. Ct. App. 1993) ............. 34

People v. Foggy,

521 N.E.2d 86 (Ill. 1988).................................... 12

People v. Hammon,

938 P.2d 986 (Cal. 1997).................................... 12

People v. Stanaway,

521 N.W.2d 557 (Mich. 1994).................10, 13, 14 vi

TABLE OF AUTHORITIES
(continued)
Page(s)

Portuondo v. Agard,

529 U.S. 61 (2000).............................................. 18

R.S. v. Thompson ex rel. Cty. of Maricopa,

454 P.3d 1010 (Ariz. Ct. App. 2019).................. 10

Rovario v. United States,

353 U.S. 53 (1957).............................................. 26

State v. Askins,

2012 WL 2579532 (N.J. Super. Ct. July 5, 2012)................................................................... 21

State v. Blackwell,

801 S.E.2d 713 (S.C. 2017) ...........................10, 15

State v. Blake,

63 P.3d 56 (Utah 2002).................................13, 20

State v. Buelow,

941 N.W.2d 594 (Iowa Ct. App. 2019)............... 20

State v. Cressey,

628 A.2d 696 (N.H. 1993) .............................10, 29

State v. Famiglietti,

817 So.2d 901 (Fla. Ct. App. 2002).................... 12

State v. Fay,

167 A.3d 897 (Conn. 2017) ................................ 10

State v. Gagne,

612 A.2d 899 (N.H. 1992) .................................. 14

State v. Green,

646 N.W.2d 298 (Wis. 2002).............................. 10

State v. Hummel,

483 N.W.2d 68 (Minn. 1992) ............................. 11

State v. J.G.,

619 A.2d 232 (N.J. Super. Ct. App. Div. 1993)................................................................... 12 vii

TABLE OF AUTHORITIES
(continued)
Page(s)

State v. Kelly,

545 A.2d 1048 (Conn. 1988) .............................. 15

State v. Neiderbach,

837 N.W.2d 180 (Iowa 2013) ........................10, 15

State v. Rehkop,

908 A.2d 488 (Vt. 2006) ..................................... 11

State v. Spath,

581 N.W.2d 123 (N.D. 1998).............................. 13

State v. Trammell,

435 N.W.2d 197 (Neb. 1989).............................. 11

Strickland v. Washington,

466 U.S. 668 (1984)............................................ 29

Strickler v. Greene,

527 U.S. 263 (1999)............................................ 22

Taylor v. Illinois,

484 U.S. 400 (1988)............................................ 32

Texas v. Brown,

460 U.S. 730 (1983)............................................ 30

Turner v. United States,

137 S. Ct. 1885 (2017)........................................ 21

United States v. Agurs,

427 U.S. 97 (1976).............................................. 22

United States v. Bagley,

473 U.S. 667 (1985)............................................ 20

United States v. Burr,

25 F. Cas. 30 (C.C.Va. 1807) ............................. 26

United States v. Ford,

550 F.3d 975 (10th Cir. 2008)............................ 22

United States v. Hach,

162 F.3d 937 (7th Cir. 1998).............................. 13 viii

TABLE OF AUTHORITIES
(continued)
Page(s)

United States v. Mejia,

448 F.3d 436 (D.C. Cir. 2006)............................ 12

United States v. Nixon,

418 U.S. 683 (1974).....................................passim

United States v. Scheffer,

523 U.S. 303 (1998)............................................ 27

United States v. Schrader,

716 F. Supp. 2d 464 (S.D. W.Va. 2010)............. 13

United States v. Valenzuela-Bernal,

458 U.S. 858 (1992).......................................33, 34

United States v. Veltman,

6 F.3d 1483 (11th Cir. 1993).............................. 21

Washington v. Texas,

388 U.S. 14 (1967).........................................24, 27

Weatherford v. Bursey,

429 U.S. 545 (1977)............................................ 14

STATUTES

28 U.S.C. § 1257........................................................ 1 Colo. Rev. Stat. § 13-90-107(1)(e) ........................... 17 Colo. Rev. Stat. § 13-90-107(1)(f)............................ 17

Colo. Rev. Stat. § 13-90-107(1)(g)............................. 5 Colo. Rev. Stat. § 18-1.3-401(1)(a)(V)(A)................ 17

N.J. Stat. Ann. § 2A:84A-21(h)............................... 18

OTHER AUTHORITIES

McCormick on Evidence (8th ed. Jan. 2020 update) ........................................................... 9, 18

Bernard Schwartz, The Bill of Rights: A
Documentary History (1971)............................. 26 ix

TABLE OF AUTHORITIES
(continued)
Page(s)

Michael H. Graham, Handbook of Federal
Evidence (8th ed. Nov. 2019 update) .................. 9

William Blackstone, Commentaries on the
Laws of England (1st ed. 1765–1769) ............... 25

C.J.S. Homicide (Mar. 2020 update) ...................... 21

Clifford S. Fishman, Defense Access to a
Prosecution Witness’s Psychotherapy or Counseling Records, 86 Or. L. Rev. 1

(2007).................................................................. 17
Edward J. Imwinkelried, The New Wigmore:
A Treatise on Evidence: Evidentiary Privileges (3d ed. 2020 supp.)............................ 35

Nat’l Institute on Mental Health, Mental
Illness (updated Feb. 2019), https://www.nimh.nih.gov/health/statistic s/mental-illness.shtml. ...................................... 16

Peter Westen, The Compulsory Process

Clause, 73 Mich. L. Rev. 71 (1974).................... 25

Trial of John Udall, Complete Collection of

State Trials (T. Howell ed. 1816) .................24, 25

CONSTITUTIONAL PROVISIONS

Del. Dec. of Rts. § 14 (1776).................................... 25 Mass. Dec. of Rts. art. XII (1780) ........................... 25 Md. Dec. of Rts. art. XIX (1776).............................. 25 N.C. Dec. of Rts. art. VII (1776) ............................. 25 N.H. Bill of Rts. art. XV (1783)............................... 25 N.J. Const. art. XVI (1776) ..................................... 25 Pa. Dec. of Rts. art. IX (1776)................................. 25 U.S. Const. amend. VI ........................................ 1, 31 ii

TABLE OF AUTHORITIES
(continued)
Page(s)

U.S. Const. amend. XIV, § 1 ..................................... 2 Va. Dec. of Rts. art. 8 (1776)................................... 25 Vt. Dec. of Rts. art X (1777).................................... 25

PETITION FOR A WRIT OF CERTIORARI

Petitioner Robert Perez respectfully petitions for a writ of certiorari to review the judgment of the Colorado Supreme Court.

OPINIONS BELOW

The Colorado Supreme Court’s decision denying petitioner’s petition for a writ of certiorari is published at 2020 WL 897586 and reprinted in the Appendix to the Petition (“Pet. App.”) at 1a. The decision of the court of appeals is unpublished but reprinted at Pet. App. 2a–22a. The decision of the trial court is unpublished but reprinted at Pet. App. 23a–26a.

JURISDICTION

The Supreme Court of Colorado denied discretionary review of petitioner’s appeal on February 24, 2020. Pet. App. 1a. On March 19, 2020, this Court issued an order automatically extending the time to file a petition for certiorari to 150 days from the date of the lower court judgment. This Court has jurisdiction under 28 U.S.C. § 1257.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment to the U.S. Constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him” and “to have compulsory process for obtaining witnesses in his favor.” U.S. Const. amend. VI.
2
The Fourteenth Amendment to the U.S. Constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

The relevant provision of Colorado law is reproduced in the appendix. Pet. App. 49a–68a.

INTRODUCTION

When a criminal defendant seeks potentially exculpatory information that is protected by the psychotherapist-patient privilege, a court must decide which prevails: the defendant’s interest in accessing that material, or the government’s policy interest embodied in the privilege. Both sides of the ledger are important: On the defendant’s side, his constitutional rights to due process, compulsory process, and confrontation may all be compromised if he is denied access to the information. On the government’s side, disclosing otherwise privileged information could compromise important public objectives, including “the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Jaffee v. Redmond, 518 U.S. 1, 11 (1996).

Where the evidence is in the hands of the State and the privilege law at issue does not “absolute[ly] . . . shield [the] files from all eyes,” this Court has held that a criminal defendant’s constitutional right to due process trumps a privilege. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987). That is not to say that a defendant automatically has access to any privileged information he claims may assist in his defense. Rather, a trial court must review the requested records
3in camera to determine if they contain material, exculpatory evidence, and must provide the records to the defense if so. Id. at 59–60. This approach serves the defendant’s “interest without destroying the [State’s] need to protect the confidentiality” of the records. Id. at 61.

But this Court’s decision in Ritchie left much unresolved. First, it did not address the question whether, or under what circumstances, a criminal defendant’s constitutional rights related to presenting a defense trump a state law forbidding the discovery of records held by a private party. Second, it did not address how Ritchie’s rule applies where a state privilege law is absolute. Third, Ritchie did not resolve whether constitutional rights other than due process—specifically, the rights to compulsory process and confrontation—might also sometimes require in

camera inspection. Ritchie, 480 U.S. at 51–58; see id.

at 61–66 (Blackmun, J., concurring in part and concurring in the judgment); id. at 66–72 (Brennan, J., dissenting); id. at 72–78 (Stevens, J., dissenting).

This indeterminacy has led state high courts and federal courts of appeals to disagree over how Ritchie applies in the context of privately held psychotherapy records. Thirteen state courts and one federal court of appeals require a trial court to inspect privately held psychotherapy records in camera if the records probably or plausibly contain exculpatory evidence. Conversely, seven state courts and two federal courts of appeals flat-out prohibit a trial court from inspecting such records in camera. And two States allow in camera inspection only where the defendant can provide—before the requested inspection—evidence
4demonstrating that the requested materials are essential to the defense.

This case presents an opportunity to resolve this entrenched disagreement among the state high courts and federal courts of appeals. Before being tried for murder following his wife’s death, petitioner sought discovery of his wife’s mental health records from her private healthcare provider. His defense was that his wife died by suicide, and he sought her therapy records to support that defense. But the trial court quashed petitioner’s subpoena, declining to review the records in camera because the state privilege for psychotherapy records was absolute. That decision was affirmed on appeal, with the appellate court reasoning that Ritchie did not apply because petitioner’s wife’s mental health records were held by a private provider and were absolutely protected under state law.

Had petitioner sought the same records in most other jurisdictions, the trial court would have been required to review them in camera to determine if they contained material, exculpatory evidence. But because petitioner was prosecuted in Colorado, he was denied even the trial court’s in camera inspection of the requested records. This varied treatment of criminal defendants’ right to material, exculpatory evidence is intolerable, and only this Court can resolve it.

STATEMENT OF THE CASE

1. In 2014, petitioner’s wife, Dennielle Perez, was found dead from a gunshot wound. The State of Colorado charged petitioner with first-degree murder.
5
Petitioner maintained that his wife had committed suicide. Pet. App. 4a.

Petitioner served a pretrial subpoena on Kaiser
Permanente, seeking his wife’s mental health records. Pet. App. 5a. Petitioner knew that Dennielle had sought therapy, but he did not know if she had been diagnosed with depression or had sought help for suicidal ideation. Id. at 12a.

The prosecution moved to quash the subpoena, arguing that Dennielle’s mental health records were protected by Colorado’s psychotherapist-patient privilege and that the representative of her estate had not waived the privilege. Pet. App. 5a–6a; see Colo. Rev.

Stat. § 13-90-107(1)(g). Petitioner explained that he needed the records “to present an adequate defense and to be able to support his conclusion that this is a suicide.” Pet. App. 33a. He also explained why he believed the records would include exculpatory information: He knew that Dennielle was sad, that she had sought therapy from the subpoenaed provider, and that depression may have led to her suicide. Id. at 12a, 31a–32a.

The trial court concluded that mental health records were protected by the psychotherapist-patient privilege, that the privilege prohibited pretrial discovery of information within its scope, and that the only basis for authorizing disclosure of such records was express or implied waiver (which did not occur here).

Pet. App. 25a–26a. The trial court refused to conduct even an in camera inspection of the records to determine whether they contained exculpatory evidence. It simply quashed the subpoena. Id. at 26a.
6

2. At trial, the prosecution’s theory was that petitioner shot his wife because he had recently discovered that she had been having an affair with another man. Pet. App. 4a. The defense theory was that Dennielle committed suicide because she was depressed and afraid that petitioner would release details of the couple’s sexual activities, bringing shame on her and her family. Id.

A defense expert—a crime scene and blood pattern analyst formerly with the Colorado Bureau of Investigation—concluded that Dennielle died from a selfinflicted gunshot wound. Pet. App. 14a. And while Colorado’s coroner/medical examiner believed Dennielle’s death was more likely a homicide, he testified that he could not rule out suicide. Id.

Both the prosecution and defense presented evidence that Dennielle appeared sad to her family and friends. Pet. App. 3a. Witnesses testified that Den-

nielle had discussed suicide but said she would never do it; her brother also testified that Dennielle had told him shortly before her death that she had wandered away from the house after taking a handful of sleeping pills. Pet. App. 13a–14a. But the jury never heard whether she had been diagnosed with depression or sought treatment for suicidal ideation—information that her mental health records could have revealed.

Recommended publications
  • The President, Congress, and the Courts

    The President, Congress, and the Courts

    The Yale Law Journal Volume 83, Number 6, May 1974 The President, Congress, and the Courts Raoul Bergert I. Subpoenaing the President: Jefferson v. Marshall in the Burr Case We do not think that the President is exalted above legal process .. .and if the President possesses information of any nature which might tend to serve the cause of Aaron Burr, a subpoena should issue to him, notwithstanding his elevated station. Alexander McRae, of counsel for President Jefferson' Chief Justice Marshall's rulings on President Jefferson's claim of right to withhold information in the trial of Aaron Burr have been a source of perennial debate. Eminent writers have drawn demon- strably erroneous deductions from the record. For example, Edward t Charles Warren Senior Fellow in American Legal History, Harvard University Law School. 1. 1 T. CARPENTER, THE TRIAL OF COLONEL AARON BURR 75 (1807). McRae's co-counsel, William Wirt, who served as Attorney General of the United States for twelve consecu- tive years, stated that "if the production of this letter would not compromit [sic] the safety of the United States, and it can be proved to be material to Mr. Burr, he has a right to demand it. Nay, in such a case, I will admit his right to summon the President ... ."Id. at 82. His associate, George Hay, the United States Attorney, stated, I never had the idea of clothing the President . with those attributes of di- vinity. That high officer is but a man; he is but a citizen; and, if he knows anything in any case, civil or criminal, which might affect the life, liberty or property of his fellow-citizens .
  • Restoring the Confrontation Clause to the Sixth Amendment Randolph N

    Restoring the Confrontation Clause to the Sixth Amendment Randolph N

    digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1988 Restoring the Confrontation Clause to the Sixth Amendment Randolph N. Jonakait New York Law School, [email protected] Follow this and additional works at: https://digitalcommons.nyls.edu/fac_articles_chapters Part of the Constitutional Law Commons, and the Criminal Law Commons Recommended Citation UCLA Law Review, Vol. 35, Issue 4 (April 1988), pp. 557-622 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. ARTICLES RESTORING THE CONFRONTATION CLAUSE TO THE SIXTH AMENDMENT Randolph N. Jonakait* INTRODUCTION The relationship between the sixth amendment's con- frontation clause' and out-of-court statements by absent de- clarants is a difficult one.2 Before 1980, the Supreme Court * Professor of Law and Associate Dean, New York Law School. A.B., Princeton University, 1967;J.D., University of Chicago Law School, 1970; LL.M., New York University Law School, 1971. The author wishes to thank his colleague Professor Donald Hazen Zeigler for his helpful comments. 1. The sixth amendment states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the wit- nesses against him; to have compulsory process for obtaining wit- nesses in his favor, and to have the Assistance of Counsel for his defense.
  • Disentangling the Sixth Amendment

    Disentangling the Sixth Amendment

    ARTICLES * DISENTANGLING THE SIXTH AMENDMENT Sanjay Chhablani** TABLE OF CONTENTS INTRODUCTION.............................................................................488 I. THE PATH TRAVELLED: A HISTORICAL ACCOUNT OF THE COURT’S SIXTH AMENDMENT JURISPRUDENCE......................492 II. AT A CROSSROADS: THE RECENT DISENTANGLEMENT OF THE SIXTH AMENDMENT .......................................................505 A. The “All Criminal Prosecutions” Predicate....................505 B. Right of Confrontation ...................................................512 III. THE ROAD AHEAD: ENTANGLEMENTS YET TO BE UNDONE.................................................................................516 A. The “All Criminal Prosecutions” Predicate....................516 B. The Right to Compulsory Process ..................................523 C. The Right to a Public Trial .............................................528 D. The Right to a Speedy Trial............................................533 E. The Right to Confrontation............................................538 F. The Right to Assistance of Counsel ................................541 CONCLUSION.................................................................................548 APPENDIX A: FEDERAL CRIMES AT THE TIME THE SIXTH AMENDMENT WAS RATIFIED...................................................549 * © 2008 Sanjay Chhablani. All rights reserved. ** Assistant Professor, Syracuse University College of Law. I owe a debt of gratitude to Akhil Amar, David Driesen, Keith Bybee, and Gregory
  • Justice Scalia for the Defense? Joanmarie Ilaria Davoli Florida Coastal School of Law

    Justice Scalia for the Defense? Joanmarie Ilaria Davoli Florida Coastal School of Law

    University of Baltimore Law Review Volume 40 Article 7 Issue 4 Summer 2011 2011 Justice Scalia for the Defense? Joanmarie Ilaria Davoli Florida Coastal School of Law Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Jurisprudence Commons Recommended Citation Davoli, Joanmarie Ilaria (2011) "Justice Scalia for the Defense?," University of Baltimore Law Review: Vol. 40: Iss. 4, Article 7. Available at: http://scholarworks.law.ubalt.edu/ublr/vol40/iss4/7 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. JUSTICE SCALIA FOR THE DEFENSE? Joanmarie Haria Davolit [T]he studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way-by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death.' In dissenting from the 2005 Roper v. Simmons decision that held that imposition of the death penalty on juvenile defendants violates the Eighth Amendment to the U.S. Constitution, Justice Scalia continued to solidify his prosecution-oriented, law-and-order reputation. 2 Widely considered to be one of the most politically conservative Justices on the United States Supreme Court, many believe that his ideology results and rulings are hostile to the rights of criminal defendants. 3 Despite Scalia's reputation, the impact of his decisions often benefits criminal defendants.
  • Nixon Now: the Courts and the Presidency After Twenty-Five Years

    Nixon Now: the Courts and the Presidency After Twenty-Five Years

    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1999 Nixon Now: The ourC ts and the Presidency after Twenty-five Years Michael Stokes Paulsen Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Paulsen, Michael Stokes, "Nixon Now: The ourC ts and the Presidency after Twenty-five Years" (1999). Minnesota Law Review. 1969. https://scholarship.law.umn.edu/mlr/1969 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Nixon Now: The Courts and the Presidency After Twenty-five Years Michael Stokes Paulsent United States v. Nixon' was, and remains today, a case of enormous doctrinal and political significance-easily one of the five most important Supreme Court decisions of the last fifty years. The decision proximately led to the forced resignation of a President of the United States from office. The decision helped spawn a semi-permanent statutory regime of Independ- ent Counsel, exercising the prosecutorial power of the United States and investigating executive branch officials 2-- a regime that has fundamentally reshaped our national politics. Nixon provided not only the political context that spawned the Inde- pendent Counsel statute, but a key step in the doctrinal evolu- tion that led the Court to uphold its constitutionality, incor- rectly, fourteen years later, in Morrison v. Olson.3 United States v. Nixon also established the principle that the President possesses no constitutional immunity from com- pulsory legal process, a holding that led almost inexorably to the Supreme Court's unanimous rejection of presidential im- munity from civil litigation for non-official conduct, twenty- three years later, in Clinton v.
  • Executive Privilege: a Constitutional Myth

    Executive Privilege: a Constitutional Myth

    Book Reviews The Seedlings for the Forest Executive Privilege: A Constitutional Myth. By Raoul Berger. Cam- bridge, Mass.: Harvard University Press, 1974. Pp. xvi, 430. $14.95. Reviewed by Ralph K. Winter, Jr.t I Were the author of Executive Privilege: A Constitutional Myth an academic obscurity tilling the fields of legal history, a reviewer might well resolve the conflict between magnanimity and candor in favor of the former. But Raoul Berger is a public figure, extolled in the media as an eminent authority and relied upon as the definitive scholar on questions of compelling public concern. What he writes is front page news in the New York Times,' the subject of long stories in weekly newsmagazines 2 and recommended by reviewers as important reading.3 This reader dissents. Executive Privilege: A Constitutional Myth is so inadequate as to be almost beside the point. Indeed, media praise raises serious questions about how the media choose the legal scholarship they spotlight. Only a lack of acquaintance with Berger's work or a hypocritical affinity for the immediate political implications of his conclusions can explain this enthusiasm from such unlikely sources. This is a book, for example, which strongly suggests that President Eisenhower committed an impeachable offense when he directed a Deputy General Counsel of the Defense Department not to answer Senator Joseph McCarthy's questions as to conversations within the executive branch relating to ways in which the McCarthy investigations into the Army might be stopped. 4 Berger's principal mode of analysis is far more compatible with the constitutional ap- proach of those who would have impeached Earl Warren than with that of those who would impeach Richard Nixon.
  • Congress's Contempt Power and the Enforcement Of

    Congress's Contempt Power and the Enforcement Of

    Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure -name redacted- Legislative Attorney Updated May 12, 2017 Congressional Research Service 7-.... www.crs.gov RL34097 Congress’s Contempt Power and the Enforcement of Congressional Subpoenas Summary Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non- compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of providing testimony, or a refusal to produce requested documents. Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.
  • The Confrontation Clause and Pretrial Hearings: a Due Process Solution

    The Confrontation Clause and Pretrial Hearings: a Due Process Solution

    HOLST.DOCX (DO NOT DELETE) 8/30/2010 9:45 AM THE CONFRONTATION CLAUSE AND PRETRIAL HEARINGS: A DUE PROCESS SOLUTION * CHRISTINE HOLST Despite the recent crop of Supreme Court cases addressing the Confrontation Clause of the Sixth Amendment, many issues regard- ing the application of the Confrontation Clause remain unresolved. In this Note, the author articulates and analyzes one such lingering question: whether the Confrontation Clause applies to pretrial hear- ings, and if so, to what extent. After describing the relevant Supreme Court precedent—including the current state of Confrontation Clause jurisprudence—the author examines the various ways lower courts have interpreted and applied that precedent in determining whether the Confrontation Clause applies prior to trial. The author then arti- culates three potential approaches to applying the Confrontation Clause to pretrial hearings, yet ultimately concludes that the prefera- ble means of reconciling Supreme Court precedent with the necessity of protecting criminal defendants’ confrontation rights prior to trial is to analyze such questions under a due process—rather than a Con- frontation Clause—framework. I. INTRODUCTION “In all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him . .”1 The Confrontation Clause of the Sixth Amendment to the United States Constitution is only one short phrase and yet, like so many other constitutional issues, the meaning of these few words has been the sub- ject of countless court opinions. For more than a century, the Supreme Court of the United States has struggled with the protections of the Con- frontation Clause, particularly as they relate to the rules against hearsay, developing, revising, and abandoning doctrine in a patchwork of cases.
  • Case 1:20-Cr-00188-JSR Document 208 Filed 03/01/21 Page 1 of 25

    Case 1:20-Cr-00188-JSR Document 208 Filed 03/01/21 Page 1 of 25

    Case 1:20-cr-00188-JSR Document 208 Filed 03/01/21 Page 1 of 25 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------x UNITED STATES OF AMERICA : : : 20-cr-188 (JSR) -v- : : OPINION & ORDER HAMID AKHAVAN & RUBEN WEIGAND, : : Defendants. : : -----------------------------------x JED S. RAKOFF, U.S.D.J. This case began less than one year ago, on March 9, 2020, when a grand jury returned indictments against Ruben Weigand and Hamid (“Ray”) Akhavan for conspiracy to commit bank fraud. Today, the Court will empanel a jury to try the case. The intervening year has been challenging. Just two days after the indictments were returned, the World Health Organization declared a global pandemic.1 Two days later, President Trump announced that “[t]o unleash the full power of the federal government, in this effort today I am officially declaring a national emergency. Two very big words.”2 Since then, the total 1 James Keaton, et al., WHO Declares Coronavirus a Pandemic, Urges Aggressive Action, Reuters (Mar. 12, 2020), https://apnews.com/article/52e12ca90c55b6e0c398d134a2cc286e. 2 The New York Times, Two Very Big Words: Trump Announces National Emergency for Coronavirus (Mar. 13, 2020), https://www.nytimes.com/video/us/politics/100000007032704/trump- coronavirus-live.html. 1 Case 1:20-cr-00188-JSR Document 208 Filed 03/01/21 Page 2 of 25 number of confirmed COVID-19 cases has surpassed 113 million worldwide, and more than 2.5 million people have died.3 In the United States alone, there have been more than 28 million confirmed cases, and more than half a million people have died.4 Recognizing the importance of the defendants’ and the public’s right to a speedy trial, and despite the complexity of this case and the many difficulties generated by the pandemic, the Court has expended considerable effort to bring the case swiftly and safely to trial.
  • Case 1:19-Cv-03557-RDM Document 27 Filed 01/27/20 Page 1 of 54

    Case 1:19-Cv-03557-RDM Document 27 Filed 01/27/20 Page 1 of 54

    Case 1:19-cv-03557-RDM Document 27 Filed 01/27/20 Page 1 of 54 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA COMMITTEE ON OVERSIGHT AND REFORM, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff, v. No. 19-cv-3557 (RDM) WILLIAM P. BARR, in his official capacity as Attorney General of the United States, et al., Defendants. REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Case 1:19-cv-03557-RDM Document 27 Filed 01/27/20 Page 2 of 54 TABLE OF CONTENTS INTRODUCTION ................................................................................................................... 1 ARGUMENT ............................................................................................................................ 3 I. The Court Lacks Jurisdiction Over This Interbranch Dispute. .................................... 3 A. The Court Lacks Jurisdiction Under Article III of the Constitution. ............................. 3 1. This Dispute Is Not Traditionally Amenable to Judicial Resolution. ............... 3 2. The Committee Fails to State a Cognizable Injury. ............................................. 7 3. Lawsuits of This Kind Imperil the Separation of Powers. ................................. 8 B. Defendants’ Argument Is Consistent with D.C. Circuit Precedent. ............................. 11 C. The Court Lacks Statutory Subject Matter Jurisdiction. ................................................. 12 II. Plaintiff Lacks a Cause of Action. ...............................................................................
  • Executive Privilege and Congressional Investigatory Power Bernardschwartz*

    Executive Privilege and Congressional Investigatory Power Bernardschwartz*

    1959] Executive Privilege and Congressional Investigatory Power BernardSchwartz* "Nothing ever becomes real," says Keats, "till it is experienced-even a proverb is no proverb to you till your life has illustrated it." This is as true in the law as it is in other areas of life. One may be familiar with, and even expert in, a particular branch of the law. His supposed expertise will, however, be more or less a matter of academic theory until he is personally affected by the operation of that branch in practice. In recent years, the present writer has become deeply concerned with the subject of so-called "executive privilege"--i.e., the power of the Gov- ernment to withhold information from the public, the courts, and the Congress. I had both written on the subject' and testified with regard to it as a member of an invited panel of legal experts before a congressional committee.' My own views on the matter were clearly opposed to those of the extreme proponents of executive privilege ".... the overriding danger," I declared in my testimony just referred to, "is.. the vesting of unfettered discretion in the executive to surround with secrecy all its activities."' But it was not until I was personally confronted with the problem of securing access to the files of government agencies that I was really able to appreciate what executive privilege means in practice. During 1957, I came up against that problem in my capacity as chief counsel and staff director of the House subcommittee investigating the federal regulatory agencies. Representatives of the subcommittee staff working in the Civil Aeronautics Board had, on September 13, 1957, in accordance with my instructions, asked for the files in certain cases decided by the Board.
  • July 2012 Bar Examination Sample Answers

    July 2012 Bar Examination Sample Answers

    July 2012 Bar Examination Sample Answers DISCLAIMER These are actual answers to essay questions that were written by applicants during this Bar examination. Each of these answers received a high score from the Examiner who wrote the question. The answers are provided to be helpful to applicants in preparing for a future exam, not to be used to appeal a score received on a prior exam. The answers may be printed and circulated. Question1 - Sample Answer #1 1(a) King Pin can argue that Drug Dealer's recorded statements should be excluded because they violate the Fourth Amendment (4A) rule against unreasonable search and seizure and that the statements are hearsay. Under the 4A, police must obtain a warrant before they engage in the search and seizure of a person or their effects. King Pin might argue that by recording the telephone call, the officers violated Drug Dealer's legitimate expectation of privacy in conversations on the phone. This is an expectation that Drug Dealer subjectively thought he had and one that society recognizes as reasonable. Normally, police officers must obtain a warrant to put a wire tap on a persons phone which requires that they name the suspect, that the wiretap be fore a limited time, that the warrant name the crime involved, and describe with particularity the conversations to be recorded. King Pin might also argue that if such statements are not excluded under a 4A violation, they are hearsay, which would be out-of-court statements asserted at trial to prove the truth of the matter, namely that King Pin conspired to sell cocaine, possess cocaine, and the other named crimes.