The trial penalty, access to bail hearings, and mustard gas.

John Ross · October 2, 2020
  • Pro tip: When drafting criminal laws, try to avoid language that the First Circuit is forced to call “a jumble of words.”
  • Two-thirds of this Third Circuit panel says that the First Amendment protects the public’s right to access off-the-record bail hearings but that right does not extend to recording or transcribing those hearings. Which, a dissent notes, seems like a pretty cruddy kind of right.
  • Fifth Circuit: We’re not saying a criminal defendant can never successfully establish a “trial penalty” claim, but the sentencing judge would pretty much have to say, “I’m imposing a trial penalty.”
  • Allegation: In 1987 and 1988, U.S. chemical manufacturer exports 538 tons of thiodiglycol to Western Europe, knowing that the shipments are likely to be diverted to Iraq for the manufacture of mustard gas. In 1994, veterans of the Gulf War sue, alleging they suffered injuries from exposure to mustard gas. After removal to federal court, district judge rules for chemical manufacturer. Fifth Circuit: Correctly. The Justice Against Sponsors of Terrorism Act does not apply to injury caused by acts of war, which this would be.
  • On September 25, just 18 days before early voting begins in Texas, a district court enjoined enforcement of a 2017 Texas law that eliminated straight-ticket voting. Fifth Circuit: Can’t be doing that so close to an election; the state has already mailed out thousands of ballots without straight-ticket voting. The ruling is stayed.
  • Michigan man drives drunk, sideswipes a car, runs from police into the woods, but eventually gives up. Even though he lies down and attempts to surrender, officer beats and chokes him, saying something like “that’ll teach you to run.” Jury awards $1 in actual damages and $200,000 in punitive damages. Sixth Circuit (over a dissent): Sure, punitive damages can be more than actual damages. But not that much more. $50,000, tops.
  • Michigan man falls $1,100 behind on his property taxes, leading the state to foreclose on his home, sell it at auction for about half its fair market value, and keep all the proceeds. Sixth Circuit: And he shall have his day in court. Neither the Tax Injunction Act nor the now-repudiated Williamson County doctrine bar his claim.
  • The Democratic National Committee challenges Wisconsin election statutes, contending that, although constitutional in principle, the laws will abridge voters’ rights during the pandemic. District court orders that some deadlines be extended. Intervenors, the Republican National Committee and the Republican Party of Wisconsin, seek a stay from the Seventh Circuit. Seventh Circuit: And how are you injured by this?
  • California churches challenge the constitutionality of the governor’s COVID-19 executive orders as they apply to in-person worship services. District court denies a preliminary injunction, and the churches seek an emergency injunction pending appeal. Ninth Circuit: Denied. Dissent: Attending church is at least as important as going to the mall or getting a pedicure, both of which are allowed.
  • Is it a problem when a prosecutor repeatedly tells the jury that the presumption of innocence no longer applies to the defendant? Two-thirds of this Ninth Circuit panel is quite sure it is.
  • Allegation: Suspecting drugs, Nevada prison officials strip-search a woman visiting her incarcerated boyfriend (including having her take out a tampon; she is not provided with a replacement). Ninth Circuit: She should’ve been given the option to leave rather than be searched. It’s a Fourth Amendment violation—but not a clear one. Qualified immunity!
  • California man gets a call from the police, who are investigating a burglary at his home. He leaves work to talk to them and—TWIST—there was no burglary. The “cops” are FBI agents investigating the man’s alleged child-porn possession. They lured him home to search him and his car, which weren’t covered by their warrant. Ninth Circuit (over a dissent): There are ruses, and there is exploiting government trust. Confession suppressed.
  • Proving once again that the “best evidence rule” does not actually refer to the helpfulness of evidence, the Tenth Circuit (over a dissent) vacates a drug conviction because the government offered translated transcripts of incriminating Spanish-language conversations instead of offering the original recordings.
  • And in en banc news, the Fourth Circuit will sit en banc to consider its stay of a district court order restraining South Carolina’s enforcement of its witness signature requirements for absentee ballots during the pandemic.