The Week of April 18, 2021: On This Day in SCOTUS History
This week we will cover probably the worst and most consequential death penalty decision in SCOTUS history, a case of fraud against a religion, an entrapment case with a powerful dissent, overturning racially motivated state laws that allowed non-unanimous guilty verdicts for serious crimes, a copyright case involving Dr. Oliver Wendell Holmes, and the requirements for sufficient notice.
Cases are presented in chronological order. IRAC format used where possible.
Disclaimer: These cases have not been Shepardized. This article is not legal advice. Those seeking legal advice should consult an attorney.
1899, April 24
Copyright for a Serial and for a Collection of the Serial Is Indistinguishable.
Facts:
Dr. Oliver Wendell Holmes published a series of 12 installments, entitled “The Autocrat of the Breakfast Table,” between 1857 and 1858 in The Atlantic Monthly. The publisher of the magazine, Phillips, Sampson & Co., of Boston, claimed no rights other than the right to publish the serial. In November 1858, after all 12 installments had been published, Dr. Holmes deposited the 12-part collection with the clerk’s office of his district court and with the Library of Congress.
Dr. Holmes died on October 7, 1894, 41 years after publication of the serial. On November 1, 1894, less than a month after Holmes died, the defendant, Phillips, Sampson & Co., started selling the 12-part collection in book form. The estate, run by future Supreme Court Justice Oliver Wendell Holmes, Jr., sued.
Issue:
Whether the serial publication of a book in a monthly magazine, prior to any steps taken towards securing a copyright, impairs the copyright of the collection as a book, said copyright having been obtained subsequent to the magazine publications but prior to the publication of the book.
Rule:
The author is only entitled to a copyright of books not printed and published.
The author must deposit a printed copy of the title of the book before publication in order to be eligible for copyright.
Analysis (Opinion by Justice Brown):
Dr. Holmes’s estate argued that the Atlantic had the right to publish the separate chapters, but that did not give them copyright to publish them in book form.
Patent law dictates that a mere aggregation of familiar elements, producing no new result, is not a patentable combination. The copyright protects the intellectual production of the work and not the particular form It takes, such as a bound book.
Held:
The right to sell copies of the several parts versus the right to publish them in a single volume is indistinguishable.
Footnote:
The executor of the Holmes estate was future Supreme Court Justice Oliver Wendell Holmes, Jr. Justice Holmes would be the only Justice in SCOTUS history to have appeared in front of the Court as a party to a case. (Courtesy of David L. Callies, et al., Concise Introduction to Property Law, First Edition (Matthew Bender & Company, Inc., 2011).
1944, April 24
A Religion Cannot be Sued for Fraud.
Facts:
Defendants created the I Am movement with claims that they, by reason of supernatural attainment, could and in fact had healed people from ailments, diseases, and injuries. They promoted their movement forming corporations, distributing and selling literature, soliciting funds, and selling memberships.
Defendants were accused of conspiring to use the U.S. mail to promote their movement “by means of false and fraudulent representations, pretenses and promises.”
Issue:
Whether a religious movement can be charged with fraud.
Rule:
The First Amendment a) “forestalls compulsion by law of the acceptance of any creed or practice of any form of worship,” and b) “safeguards the free exercise of the chosen form of religion.” In other words, the freedom to believe and the freedom to act.
Analysis (Opinion Justice Douglas):
The First Amendment “embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution.”
If the defendant’s religious doctrines are “subject to trail before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect.”
Held:
The District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents.
Footnote:
The I Am Movement is still alive today. You can find them online.
1950, April 24
Notice by Publication Only Is Not Sufficient for Constitutional Due Process.
Facts:
With regard to a common trust fund, notice was provided to beneficiaries by publication in a newspaper only. This notice complied with requirements under New York banking law.
Issue:
Whether notice by publication in a newspaper, to beneficiaries on a judicial settlement of accounts by the trustees of a common trust fund, is sufficient.
Rule:
14th Amendment, Section 1 (in relevant part): “nor shall any state deprive any person of life, liberty, or property, without due process of law…”
Analysis (Opinion by Justice Jackson):
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied…”
Held:
The New York Banking Law, as regards judicial settlement of accounts, is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known persons whose whereabouts are also know of substantial property rights.
1973, April 24
Entrapment Is Allowable for an “Unwary Criminal” (but the Dissent is Strong).
Facts:
An undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs, posing as an illegal methamphetamine distributor, approached defendants who he believed to be illicit meth manufacturers. He offered to provide them with phenyl-2-propanone, an essential ingredient for the manufacture of meth, in return for half of the drug produced and on the condition that he could see the lab where it was being produced. Defendants then provided agent with a sample, disclosed that they had been making the drug since 1969. The deal was made, meth delivered, and defendants arrested.
Issue:
Whether, by providing a scarce ingredient essential for the manufacture of the meth, the agent provided “an intolerable degree of governmental participation in the criminal enterprise,” thus constituting entrapment.
Rule:
Lower Court Decision: There is entrapment, regardless of predisposition, whenever the government supplies contraband to the defendants.
Ninth Circuit: Prosecution of a defendant was held to be repugnant to the American criminal justice system where the government investigator was so enmeshed in the criminal activity.
The entrapment defense prohibits law enforcement officers from instigating a criminal act by persons “otherwise innocent in order to lure them to its commission and to punish them.”
Analysis (Opinion by Justice Rehnquist):
“To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.”
“[T]he gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task. Thus in drug-related offenses law enforcement personnel have turned to . . . the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation[.]” As would be the supplying of something of value in order to gain their confidence of those being infiltrated.
The agent’s contribution of propanone to the criminal enterprise already in process was not a violation. The chemical by itself is legal and harmless, and it was obtainable as evidenced by paraphernalia found at the lab.
“[T]he fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Nor will the mere fact of deceit defeat a prosecution. . . . It’s only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.”
Held:
Defendant was an active participant in an illegal drug manufacturing enterprise which began before the Government agent appeared on the scene, and continued after the Government agent had left the scene. He was not an “unwary innocent” but an “unwary criminal.”
Dissent:
Justices Stewart, Brennan, and Marshall argue that the government cannot instigate, provoke, tempt, or create the commission of the crime in order prosecute someone for committing it.
“The purpose of the entrapment defense, then, cannot be to protect persons who are otherwise innocent. Rather, it must be to prohibit unlawful governmental activity in instigating crime. . . . [W]hether the particular defendant was predisposed or otherwise innocent is irrelevant; and the important question becomes whether the Governments conduct in inducing the crime was beyond judicial toleration.”
“It allows the prosecution [in offering hearsay suspicion, and rumor as proof of the defendant’s predisposition] to rely on the defendant’s bad reputation or past criminal activities, including even rumored activities of which the prosecution may have insufficient evidence to obtain an indictment[.]” This sort of evidence is not only unreliable, as the hearsay rule recognizes; but is also highly prejudicial, especially if the matter is presented to the jury, for, despite instructions to the contrary, the jury may well consider such evidence as probative … of his guilt of the offense[.]”
“More fundamentally, focusing on the defendant’s innocence or predisposition has the direct effect of making what is permissible or impermissible police conduct depend upon the past record and propensities of the particular defendant involved.” The Government is thus permitted to entrap a person with a bad reputation and them prosecute him for the manufactured crime, using his record or reputation as proof.
1987, April 22
Probably the Worst and Most Consequential Death Penalty Decision in SCOTUS History
Justice Lewis Powell, when asked by his biographer if he wanted to change his vote in any case, replied, “Yes, McCleskey v. Kemp.” A Los Angeles Times survey among legal scholars name McCleskey one of the worst Supreme Court decisions since WWII. This case gave a solid foothold for race-based sentencing in the judicial system.
Facts:
Petitioner, a black man who, during the robbery of a store, killed a white police officer, challenged his death penalty sentencing on Eighth and Fourteenth Amendment racial discrimination grounds. Petitioner sites a statistical study that indicates that black defendants who killed white victims, in Georgia, have the greatest likelihood of receiving the death penalty by a substantial margin.
Issue:
Whether a complex study that indicates a risk that racial considerations enter into capital sentencing determinations proves that petitioner McCleskey’s capital sentence is unconstitutional under the Eighth or Fourteenth Amendment.
Rule:
8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Note: the death penalty in itself has been determined not to be cruel and unusual, but the manner of execution may be.)
14th Amendment, Section 1 (in pertinent part): “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
A defendant who alleges an equal protection violation has the burden of proving “the existence of purposeful discrimination.”
A criminal defendant must prove that the purposeful discrimination “had a discriminatory effect” on him.
Analysis (Opinion by Justice Lewis Powell):
Much of the argument centered around the findings of the Baldus Study. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970’s. Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. The results include the following:
- Defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases.
- 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.
- The death penalty was given in 22% of the cases involving black defendants and white victims; while the death penalty was given for only 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims.
- Prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; while only 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.
- Defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks, even when corrected for nonracial variables.
- Black defendants were 1.1 times as likely to receive a death sentence as other defendants, even when corrected for nonracial variables.
The District Court determined that the Baldus study did not demonstrate a prima facie case of discrimination in this case and that the study itself “was flawed in several respects.” The Court of Appeals for the Eleventh Circuit, on the other hand, assumed the validity of the study, but found that the statistics were “insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context or to show irrationality, arbitrariness, and capriciousness under Eight Amendment analysis.”
Justice Lewis Powell, when asked by his biographer if he wanted to change his vote in any case, replied, “Yes, McCleskey v. Kemp.”
The Supreme Court’s extended argument and rejection of the Baldus defense can be condensed to:
- The courts have discretion. The constitutional guarantees are met when the mode for determining guilt or punishment is done in an approved manner. In light of these safeguards, “we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.”
- Finding for McClesky in this case would “throw[] into serious question the principles that underlie our entire criminal justice system.” The reversal would result in similar claims for not just death penalty cases, but for other penalties as well; and not just for race, but also gender and even physical attractiveness.
- This is a job for the Legislatures, not the court. The court’s duty is to determine case-by-case whether the laws are being applied consistently with the Constitution. The only question before the court is whether in this case the law of Georgia was applied properly.
Held:
The judgment of the Court of Appeals and the Eleventh Circuit, and McCleskey’s death penalty sentence, is affirmed.
For a deeper dive into the case, consider this lecture by Professor Stephen B. Bright’s, available on YouTube courtesy of YaleCourses.
2020, April 20
SCOTUS Affirms Unanimous Verdict Requirement for Serious Offenses.
Facts:
In 2016, petitioner was convicted of murder in a jury trial with a 10–2 vote. Petitioner appealed, claiming that for a serious crime a jury vote must be unanimous, and that the law making a non-unanimous conviction possible was the result of a Jim Crow law.
Issue:
Whether the Sixth Amendment right to a jury trial — as incorporated against the States by way of the Fourteenth Amendment — requires a unanimous verdict to convict a defendant of a serious offense.
Rule:
Sixth Amendment (emphasis added): 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 witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Article III, Section 2 (in relevant part): The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Apodaca v. Oregon, 406 U.S. 404 (1972): Held that, while federal law requires a unanimous verdict in criminal trials, state juries may convict a defendant by a less-than-unanimous verdict in a felony criminal case.
Analysis (Opinion by Justice Gorsuch):
Louisiana and Oregon were the only two states in the union that included laws that allowed for conviction on a less than unanimous vote. Both states have acknowledged the racial origins and motivations in adapting these laws. (Louisiana changed it’s law to require unanimous votes after the defendant was convicted and prior to this petition.)
The promise of a jury trial would have no meaning if a single person (or two, as was the case of Louisiana and Oregon law) could effect a guilty verdict. This is a tradition that emerged in 14th Century England and has been well-documented throughout American history.
Gorsuch, in his scorching condemnation of Apodaca, comments that “[r]eally, no one has found a way to make sense of it.”
Alito’s Dissent, or, rather, Gorsuch’s Response to Alito’s Dissent
Alito dissented based on reliance interests. Gorsuch provides a characteristically scorching response:
“[T]he only reliance interests that might be asserted here fall into two categories. The first concerns the fact Louisiana and Oregon may need to retry defendants convicted of felonies by non-unanimous verdicts whose cases are still pending on direct appeal. The dissent claims that this fact supplies the winning argument for retaining Apodaca because it has generated “enormous reliance interests” and overturning the case would provoke a “crushing” “tsunami” of follow-on litigation.”
“[T]he dissent suggests that the feeble reliance interests it identifies should get a boost because the right to a unanimous jury trial has “little practical importance going forward.” In the dissent’s telling, Louisiana has “abolished” non-unanimous verdicts and Oregon “seemed on the verge of doing the same until the Court intervened.” But, as the dissent itself concedes, a ruling for Louisiana would invite other States to relax their own unanimity requirements. In fact, 14 jurisdictions have already told us that they would value the right to “experiment” with non-unanimous juries. . . . No doubt, too, those who risk being subjected to non-unanimous juries in Louisiana and Oregon today, and elsewhere tomorrow, would dispute the dissent’s suggestion that their Sixth Amendment rights are of “little practical importance.””
“Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”
Held:
By a 6–3 majority opinion, the Court ruled in petitioner’s favor. In addition to the opinion there were three separate concurrences and one dissent.
Below is an article describing efforts, prior to this holding, to change the Louisiana State Constitution to require unanimous jury verdicts for serious crimes. According to the article, over the previous six years, 40 percent of 993 convictions came from split juries. The effort was ultimately successful, but the SCOTUS decision would have invalidated their non-unanimous law anyway.
MAHALO MUCHO!!!
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