MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 6th of May, 2019. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Great night in Dallas, eh? The World and Everything in It Live. Terrific turnout, great interaction, great discussion.
REICHARD: And helpful questions, too. Things to improve the podcast! Our director of marketing Jonathan Woods invited comments and questions from the audience. Listen to this one, and you’ll hear our managing editor J.C. Derrick jumped right into action. Good stuff:
AUDIO: [Importance of podcasting]
EICHER: You ask, we answer. But thanks to Dallas Baptist University. Beautiful campus there, thanks to DBU for hosting us.
We did these two live programs and now we need to evaluate whether we should roll out more of these to different locations around the country. I hope we can do that, because it was really just a blast. Lot of work and expense, yeah, but nice opportunity to connect with you.
REICHARD: Just more confirmation we have really smart, thoughtful listeners. Loved seeing so many young people there, as well. Encouraging.
EICHER: OK, well, today on Legal Docket, Mary has analysis of three oral arguments by the Supreme Court last month.
This first case (United States v Davis) deals with a recurring bit of troublesome language in the criminal-law statutes.
Here are the facts. Maurice Davis and Andre Glover carried out a string of robberies in the Dallas area in 2014. They robbed convenience stores of cigarettes and cash, and and led police on a high-speed chase. It ended when police found Davis sitting in the bushes on a pile of cash.
REICHARD: A jury convicted both men on multiple criminal counts. But here’s the one count that produces the controversy the Supreme Court is trying to resolve: the illegal use of a firearm in relation to a crime of violence.
That conviction by itself brings additional prison time.
But the robbers argue this law is unconstitutionally vague.
In particular, it defines “crime of violence” as “any felony that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
EICHER: Remember that phrase: substantial risk.
That’s the problem. That gives prosecutors lots of wiggle room. Maybe too much.
The Supreme Court in 2015 struck down similar language in another criminal law that was supposed to make it easier to prosecute repeat, violent offenders.
But the court voided language that said a person could be held to have committed a violent offense if there was a “substantial risk” force would be used.
There’s that phrase again. Also whether the crime in question was “ordinary.”
It takes a lot of figuring to find a crime “ordinary.” Or one with “substantial risk” of violence.
REICHARD: So when the justices struck down that language in other areas of criminal law as too vague, people who’d been convicted under similar wording brought legal challenges of their own.
That’s what the robbers in this case have done.
Justice Neil Gorsuch pointed out the government’s inconsistency. The same language over there means something different over here.
How is a citizen supposed to know what’s what?
Listen to this exchange he had with Eric Feigen. He’s assistant Solicitor General arguing in support of the law as it is now used.
GORSUCH: I’m sorry, we’re running a little far afield for me. If we could just return to this language. As I understand it, in (A), you would have us read “offense” to mean the offense …that’s charged on the books. But, when we get to (B), you’d have us look at the facts actually committed. Is that — is that right? Can we agree on that much?
FEIGIN: Yes, Your Honor, but if I can qualify that?
GORSUCH: All right. No, no , no, no….you can qualify it in a minute. But we agree on that much?
FEIGIN: Well, let me just make one…
GORSUCH: We can’t agree on that much … . I guess I’m not tracking you at all.
Justice Samuel Alito had something else on his mind.
ALITO: I’m interested in the practical implications of our decision in this case. How many contemporaneous crime statutes would be put in jeopardy … if we affirm here?
FEIGIN: Well, Your Honor, very few of them have their own subsection specific definition of crime of violence …
Feigin tried to quash worries of how many places in the law that use the troublesome language, and he wasn’t shy about the type of person the language targets.
FEIGIN: I don’t want to be dramatic about it, but these are violent offenders. … The main concern we have here is going to be … with all the defendants who are going to seek release.
Meaning, inmates with violent pasts who will get out earlier than they would have with the “substantial risk” language left intact.
Still, lawyer for the robbers, Brandon Beck, came back again to Justice Gorsuch’s chief worry about inconsistencies in the law.
BECK: ….words cannot be treated as a chameleon meaning one thing for one purpose and another for another subsection.
It’ll be hard I think for the justices to dismiss warnings about the danger of earlier release of repeat offenders. But inconsistency in law creates its own problems.
So maybe the justices can figure out some middle ground.
This next case (North Carolina Dept of Revenue v Kaestner Family Trust) will affect how families accumulate wealth.
More and more families are using a trust arrangement to protect their assets. The assets don’t go through probate, for one thing, and there’s a sense of more control over who gets what in a trust arrangement.
Trusts are a big source of money for states, though. So you can probably guess where some of the problems may lie.
Here are the facts. A man in New York created a family trust in 1992 and divided his assets among his three children. One daughter moved to North Carolina. That state then billed her more than $1.3 million on income the trust earned over certain years.
But the trust manager had never distributed any of the income. The daughter didn’t receive any money from it. She went ahead and paid North Carolina taxes under protest, and then filed for a refund. But the state refused, saying her residency in North Carolina justifies the tax.
See if you can figure out which way most of the bench leaned. Here’s Justice Stephen Breyer.
BREYER: Look, the trustee lives in New York, OK? The settlor is in New York. All the administration is in New York. There is one thing that’s going to happen in North Carolina: the thing that’s going to happen in North Carolina is if she is there when it’s distributed, she’ll get some money. Okay? Which you’re totally free to tax. But that isn’t what you want to tax. You want to tax all these things which everyone except her is in New York. And moreover, we don’t even know if she’ll ever get the money. Now, there’s something wrong with that.
I heard Justice Elena Kagan sounding like she thought North Carolina is entitled to tax the trust. But only her.
My advice to North Carolina: better set that $1.3 million because you’re probably going to have to give it back.
And last today (McDonough v Smith), statutes of limitations: those laws about when you have to bring a lawsuit or forever lose your right to do so.
Seems minor, except when it isn’t. For an election commissioner in New York named Edward McDonough, it’s a very big deal.
Here’s what happened. McDonough says a prosecutor framed him with fabricated evidence showing he’d thrown an election by accepting absentee ballots with forged signatures.
Although a grand jury indicted him, a jury acquitted McDonough in 2012.
Three years later, he sued the prosecutor who’d used the fake evidence. McDonough alleged malicious prosecution and fabrication of evidence.
Whether he sued on time depends on when the time clock started for filing the case: Was it when the prosecutor first allegedly used the fabricated evidence against him?
Or when the trial ended in his favor?
Justice Gorsuch wondered if this was all a bit premature.
“Fabricated evidence” claims haven’t been fleshed out much.
Listen to this exchange with Neil Katyal, lawyer for McDonough:
GORSUCH: We usually say the limitation period starts to run when all of the elements are present. I mean everyone learns that in the first year of law school. Right?
KATYAL: Not where I went to law school. (Laughter)
GORSUCH: That may be true. And maybe not where I went to law school either. But we should learn that in the first year of law school.
Can we agree on that?
Justice Sotomayor said what was on a lot of people’s minds.
Listen to this comment to the lawyer for the prosecutor who is alleged to have used bogus evidence.
SOTOMAYOR: If a prosecutor fabricates evidence —and you said it’s stunning and shocks the conscience— … Why would we care about how long it would take to seek redress from that prosecutor? … we should ensure, even with delayed time, that the victim of that conduct would not be deprived of a day in court because of a hastily imposed statute of limitations.
That sentiment seemed to carry the day, no matter ideology. Here’s Chief Justice Roberts.
ROBERTS: In a situation like this, you know, it may take a little — a little bit of time to get the pieces of your shattered life, because of fabricated evidence, pulled together before you can suddenly decide, okay, now — now we’re going to sue the people who did this to me.
O’CONNOR: Well, I – I understand.
Katyal, again lawyer for the wronged McDonough, summed it up this way.
KATYAL: … and this is really important as the amici say there is a rampant problem of fabrication of evidence … that’s the kind of quintessential due process violation this Court has recognized since Mooney.
The Court of Appeals for the Second Circuit decided this below, and the Supreme Court looks poised to reverse. That would be in alignment with most circuits, because the Second Circuit is odd man out on this matter.
And that’s this week’s Legal Docket.