Americans Should Pay Attention To This U.N. Report On U.S. Torture Practices

The U.N. Committee Against Torture just released a report condemning a number of U.S. practices it claims violate the U.S.'s treaty obligations under the U.N. Convention Against Torture. People should be paying attention to this.

Correcting Incongruities In Conflicting Decisions On Appeal

Every so often, co-defendants who were both convicted will take separate appeals based on the same legal grounds, and two different panels on the same appellate court will grant one co-defendant relief and deny it to the other. Such incongruities on appeal serve to highlight the arbitrariness that infects our judicial system, even at its highest levels--it looks bad when the precise set of issues lead to one result in Case A and the opposite result in Case B. See Joseph v. State, 447 So. 2d 243, 247 (Fla. 3d DCA 1983) (“Here, were Joseph to be given a new trial and Neal denied one, we think the defeat of justice would be evident to even the blind and vacuous”). Fortunately, however, courts have mechanisms to correct those incongruities when brought to their attention.

Consider two Florida appellate decision, Tapia v. State, 676 So. 2d 1059 (Fla. 3d DCA 1996) and Raulerson v. State, 724 So. 2d 641 (Fla. 4th DCA 1999).

In Tapia, Tapia and his co-defendant, Cook, both appealed from adverse evidentiary rulings in their joint trial. The Third District Court of Appeal per curiam affirmed Tapia’s conviction—which was the first to reach the court—but reversed Cook’s conviction. At Cook’s retrial (which Tapia was of course not afforded), he took the stand and gave testimony the exculpated Tapia. Based on that testimony, Tapia then filed a motion for new trial based on newly discovered evidence. The trial court denied that motion, and Tapia again appealed.

On appeal, Tapia alerted the Third District of the “disparate treatment of Tapia and Cook in their direct appeals, notwithstanding the fact that similar issues were raised.” This led the court to request the parties file memoranda discussing the availability of habeas corpus relief based on the “fundamental denial of due process” to Tapia. The court then treated Tapia’s memorandum as a petition for habeas corpus, and granted the writ.

In Raulerson, Mr. and Mrs. Raulerson filed appeals predicated on the identical issue. The Fourth District per curiam affirmed Mr. Raulerson, but later reversed Mrs. Raulerson’s conviction. Here’s what the court wrote:

Although this court has procedures in place to make sure that codefendants in criminal cases raising identical issues are treated consistently, our system did not work in this case because of human error in this court. As a result, one panel of this court affirmed Mr. Raulerson's conviction without opinion. 

How did the court resolve the conflict? It treated Mr. Raulerson’s “motion to recall the mandate” as a petition for habeas corpus. (The court held that it lacked authority to withdraw the mandate because the mandate had issued in a prior term of the court). It then granted the writ and reversed the conviction.

But while these courts eventually reached the correct result, it is troubling that, in each of these cases, the original appellate decisions were per curiam affirmances (PCAs). It is hard to imagine how a case containing reversible error could ever be affirmed without an opinion. A PCA implies that an appeal was so without merit that no opinion is required to demonstrate why the appellant was wrong. At least when a court affirms with opinion, it recognizes that there are at least colorable arguments presented in the case. When an appellate court eventually reverses its own PCA, it tacitly admits that it dropped the ball the first time around.

The fact that PCAs are being used in cases where written opinions are clearly warranted presents another problem as well. In Florida, a PCA cannot be appealed to the Florida Supreme Court. That means that, generally, the only relief an appellant can seek from a PCA is a rehearing (either in front of the same panel or en banc) or certiorari to the U.S. Supreme Court. In the great bulk of cases, such avenues are fruitless. Cases like Tapia and Raulerson are the rare exception where an appellate—who was entitled to relief in his first direct appeal—gets relief the second time around.

                                                        

Oral Argument Highlights In Yates

I have a few quick thoughts on the oral argument in Yates. Recall that the issue is whether the term "tangible object" in the "anti-shredding provision" of Sarbanes-Oxley, section 1519, includes objects such as fish. Yates argues that "tangible object" must be read narrowly because it appears in sequence with the terms "record" and "document" and because the purpose of the anti-shredding provision was to ensure companies did not destroy business records in the wake of Enron/Arthur Andersen.

1. Yates's counsel appeared to concede that the nearly identical language of 18 U.S.C. 1512(c)—“record, document, or other object”—would cover his client’s conduct. (Tr. 13). In my view, that is a fairly damaging concession. It means that Yates is effectively abandoning any pretense of making a textual argument, and rests solely on the seeming oddity of prosecuting the destruction of fish under a statute that was clearly meant to address the destruction of business records. But if that were the case, why did Congress use nearly identical language in section 1519 to mean something different from section 1512?

And as the assistant SG pointed out in his argument (Tr. 41), the concession means that Congress has elsewhere passed provisions within Sarbanes-Oxley that would cover the destruction of fish, since section 1512 is a part of that act. So Yates’s argument starts to break down when you consider that he concedes that parts of Sarbanes-Oxley can apply to fish, just not this part.

2. A number of justices expressed concern that, like in the Bond case, federal prosecutors have failed to exercise their prosecutorial discretion. (Tr. 27) (Justice Scalia joking that “Is this the same guy that – that brought the prosecution in Bond last term?”); (Tr. 31) (Chief Justice Roberts discussing the inordinate leverage the government’s broad charging practices give it in plea negotiations); (Tr. 36) (Justice Breyer: “And why wouldn’t it happen? It wouldn’t happen because they’d never prosecute it, though I’ve had my doubts recently.”).

Justice Scalia went so far as to suggest that he would account for the government's overreaching prosecutorial policies by adjusting his own view of statutes:

Well, if that’s going to be the Justice Department’s position, then we’re going to have to be more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes...Or – or how much coverage I give to severe statutes.

(Tr. 29). For a strict textualist like Scalia, that’s a pretty extreme statement. There is really no basis for the Court to read a statute narrowly just because the government has an internal policy about applying the statute whenever it is a lawful fit to the alleged conduct. The mere fact that the government isn’t generous enough with its exercise of discretion doesn’t change Congress’s intent when it passed the statute, which as Justice Scalia is usually the first to point out, is what actually matters.

Justice Kennedy also made some intriguing comments on prosecutorial discretion: “But [Yates] has no – he has no doctrinal basis to make that argument [limiting the scope of the term ‘tangible object’ to not include fish] other than to say that there is such a doctrine as prosecutorial discretion and, A, that it’s enforceable and, B, that it has some substance,  and you’ve indicated that it has neither” and “Well, it seems to me that we should just not use the concept or refer to the concept at all anymore.” (Tr. 52-53).

I find these statements very confusing. They suggest that prosecutorial discretion is something other than what it plainly is—a matter of discretion. I’m unaware of any case where the concept of prosecutorial discretion was used to read statutes narrowly.

More than anything, I think the Court is trying to send a message to DOJ that it doesn’t want to see these sorts of prosecutions going forward. DOJ might be wise to heed that message.

3. Justice Breyer appeared to think that there were some void-for-vagueness problems with the statute. (Tr. 17). Again, I have no idea why that would be. The term “tangible object” probably just refers to any object that has a physical form. Because fish have a physical form, they’re covered. What’s vague about that? (Justice Scalia made this point at the argument, Tr. 17).

But when Yates’s counsel tried to press that point in oral argument, even Justice Breyer was resistant—“Yes, but it wasn’t raised below. And these are very difficult issues and it’s sort of flying blind not to have lower court opinions and the thing fully argued out before we get to it.” (Tr. 55). So while there were a few mentions of vagueness in Yates’s brief, the Court likely won’t entertain that argument because of waiver.

 

Sixth Circuit Creates Circuit Split On Gay Marriage

There is finally a circuit split on the same-sex marriage issue. The Sixth Circuit today upheld gay marriage bans in Tennessee, Ohio, Michigan, and Kentucky. Here's the opinion. The split greatly increases the likelihood of the Supreme Court taking up this issue. The Court had previously declined to grant cert on the issue, but at that point no circuit split existed.

Respected conservative Judge Sutton wrote the majority opinion (the court split 2-1). The opinion begins with this paragraph:

"This is a case about change—and how best to handle it under the United States Constitution.  From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.  That would not have seemed likely as recently as a dozen years ago.  For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women.  So long defined, the tradition is measured in millennia, not centuries or decades.  So widely shared, the tradition until recently had been adopted by all governments and major religions of the world."

Update On Stufflebeam/Gay Divorce Issue

The Florida Third District Court of Appeal has yet to rule in Oliver v. Stufflebeam, where the question is whether the Florida ban on same sex marriage recognition applies to also bar same sex divorce. But in early September, the Florida Supreme Court declined to hear a case out of the Second District that had certified the question as being one of great public importance. That was the Shaw case that I reported on here.

As I mentioned in my original post on Shaw, it is far likelier that the Florida Supreme Court will rule on this issue once the district courts have provided some guidance. 

Because the Court declined to take the Shaw case based on the certified question, the Second District will now have to grapple with the issue itself.

UPDATE: The Stufflebeam argument took place on April 30th of this year. So it's now been just over 6 months without a decision.