Thursday Round-up

By Anna Christensen
on Oct 15, 2009 at 10:02 am

Tuesday’s cert. grant in the case of former Enron executive Jeffrey Skilling continues to dominate the headlines.  Greg Burns of the Chicago Tribune comments on the grant, arguing that the decision to review Skilling’s conviction sets the stage for a decrease in fraud prosecutions under a widely used law prohibiting executives and government officials from depriving their clients and constituents of the “right to honest services.”  However, Burns points out that the Court’s decision not to consolidate Skilling’s case with two other “honest services” cases, Weyhrauch v. United States and Black v. United States, suggests that the “honest services” statute might not be thrown out altogether.   The piece also suggests that the outcome of the cases may have implications for the indictment of former Illinois Governor Rod Blagojevich. 

At the First Amendment Center, Tony Mauro also discusses Skilling’s case.  He suggests that Skilling’s case may serve as an opportunity for the Court to revisit the issues of pre-trial publicity and the fairness of juror selection in the Internet era.   Skilling has argued that he should have been entitled to a presumption of juror prejudice because of the unprecedented volume of media attention his case received.  The Houston Chronicle has a piece on Skilling’s case as well, in which author Mary Flood examines what the cert. grant might indicate about the quality of the Enron prosecution.

Today’s commentary also addresses Wednesday’s argument in Alvarez v. Smith.  At the New York Times, Adam Liptak details the issues at stake in the case, highlighting Alvarez’s implications for due process.  Jess Bravin has an article in the Wall Street Journal recapping the argument, and indicating that the Justices “seemed inclined to dismiss” the case, which concerns a property owner’s ability to challenge a forfeiture system permitting police seizure of his property for the purposes of a narcotics investigation.  At the WSJ Law Blog, Jennifer Forsyth discusses the case as well, noting that while she was on the Second Circuit Justice Sotomayor authored an opinion that struck down a similar forfeiture system.  Ilya Somin, writing for FindLaw, also discusses the issues in Alvarez.  Pointing out that the forfeiture statute can permit government officials to auction off property seized from individuals not charged with a crime, Somin posits that the law gives law enforcement officials “a clear incentive to seize cars first and ask questions later,” and he argues that this state of affairs represents a clear violation of the Due Process clause.  The ABA Journal also outlines the issues to be decided in the case.

The WSJ Law Blog has commentary today on oral arguments yesterday in Perdue v. Kenny A., including a recap of the points made for both sides of the case.  At Slate, Dahlia Lithwick presents a detailed play-by-play of yesterday’s argument in Perdue, noting that the Justices’ lines of questioning suggest a great deal about their own perceptions of the legal profession; similarly, the Washington Post’s Robert Barnes reviews the argument  and provides a comprehensive summary of the issues at stake for the legal profession in the case.  At Law.com, Tony Mauro posits that during oral argument in Perdue, the Justices seemed disinclined to rule in favor of the civil rights lawyers in the case.

Tuesday’s arguments are still in the news as well.  ACSblog offers a recap of the questioning in Padilla v. Commonwealth of Kentucky, highlighting Justice Scalia’s apparent wariness to expand the category of consequences defense counsel are obligated to discuss with their clients.  Huffington Post also offers an opinion on the case by retired judge H. Lee Sarokin, who argues that the Court should rule in Padilla’s favor because deportation would present such a harsh and unprecedented punishment in his case.  At the Charlotte Observer, Barbara Barrett recaps Tuesday afternoon’s arguments in South Carolina v. North Carolina.  The case was initially filed in response to a dispute over water rights to the Catawba River, but Barrett reports that Tuesday’s oral arguments focused on whether the City of Charlotte, an energy provider, and the Catawba River Water Supply Project could join the lawsuit as intervenors.  Jurist also outlines the issues at stake in South Carolina v. North Carolina, as well as in Tuesday’s other cases. 

At Law.com, the Legal Intelligencer’s Shannon Duffy has an article on Tuesday’s argument in Smith v. Spisak,  in which the Court will determine whether its 1988 decision in Mills v. Maryland compels a death sentence to be overturned if the jury in the case might have been confused by instructions or forms. Duffy notes the potential implications of the case for Mumia Abu-Jamal, who was convicted in the 1981 murder of a Philadelphia police officer.  In April, the Philadelphia district attorney petitioned for reinstatement of Abu-Jamal’s death sentence, and the Court has apparently held that petition in abeyance pending a decision in Spisak.  If Spisak’s death sentence is reinstated, Duffy argues, it is likely that the Court will order the Third Circuit to consider reinstatement of Abu-Jamal’s sentence as well. 

The Volokh Conspiracy reports that Justice Kennedy filed a statement on Tuesday supporting the Court’s denial of cert. in a class-action suit, DTD Enterprises v. Wells.  The blog’s coverage cites a large portion of Kennedy’s statement, and also notes that Chief Justice Roberts and Justice Sotomayor joined the opinion.

Also at Volokh, Orin Kerr takes a look back at Frank v. Maryland, a 1959 Fourth Amendment case concerning warrantless health and safety inspections of homes.  Although Frank was overturned just eight years later by Camara v. Municipal Court, Kerr argues that it incorporates interesting and possibly chilling arguments with regard to civil liberties.  In particular, Kerr highlights an argument put forth by Justice Frankfurter, who argued that such warrantless inspections were justified because they contributed to the greater goal of “progressive reforms” in public health.  In light of present-day allegations of Fourth Amendment violations, Kerr argues, Frank “is an interesting example of how perceptions of government priorities can be used to justify broader government power.”

A recent Federalist Society podcast on patent law in the Supreme Court, featuring a discussion of the Quanta case, is available on the University’s of Chicago’s website.  The discussion includes GWU’s Scott Kieff, Stanford’s Mark Lemley, the Electronic Frontier Foundation’s Fred von Lohmann, the University of Chicago’s Richard Epstein, and George Mason University’s Adam Mossoff.

Comedy Central’s Stephen Colbert has weighed in on last week’s argument in Salazar v. Buono, as always providing a humorous angle on this contentious case.  On his show on Tuesday, Colbert lampooned the arguments on both sides of the debate (“unfortunately, our tradition of separation of church and state too often separates church and state”), highlighting the exchange between Justice Scalia and ACLU lawyer Peter Eliasberg.  Colbert’s segment can be viewed at ACSblog.