Category: 3-LawSometimeCommentary

This week's "breaking news" episode covers three of the biggest stories trending at the moment:  the Utah nurse who was arrested for standing up for her patient's rights; Trump's repeal of DACA; and churches suing for relief funds. In the wake of hurricanes Harvey and Irma, the guys encourage you to donate to either (or both) the Red Cross and/or Habitat for Humanity's hurricane relief efforts. We begin with the story behind the arrest of Alex Wubbels, the Utah nurse who refused to take and turn over her patient's blood to the police. In the main segment, Andrew walks us through President Trump's directive to end the Deferred Action for Childhood Arrivals (DACA) program.  Does Andrew actually agree with a legal opinion authored by Jefferson Beauregard Sessions III??  Listen and find out! Next, Breakin' Down the Law continues with everything you wanted to know about churches suing for funds allocated to disaster relief and recovery.  Is the Friendly Atheist right when he says such a case is legally distinct from the precedent set by Trinity Lutheran v. Comer? Finally, we end with a fiendishly difficult and all-new Thomas Takes the Bar Exam Question #40 about jury instructions regarding the presumption of intent.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None.  Have us on your show! Show Notes & Links

1. This is a link to the Red Cross's page for donations for hurricane relief; and here is a link to Habitat for Humanity's hurricane relief efforts.
2. Here is where you can find the recently-created Opening Arguments Facebook Community, which you should definitely join!
3. You can read the relevant Supreme Court opinion, Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), that Nurse Wubbels relied upon in refusing to take and turn over blood to the police.
4. The guys first discussed illegal immigration on Episode 52 and then again in Episode 67.
5. This is the original June 15, 2012 Napolitano DHS memo that became DACA.
6. This the text of the recent memorandum by Attorney General Sessions rescinding DACA.
7. The DAPA case relied upon by Sessions is Texas v. US, 86 F.Supp.3d 591 (S.D. Tex. 2015), aff'd, 809 F.3d 134 (5th Cir. 2015).
8. We first analyzed the Trinity Lutheran v. Comer decision (along with Andrew Seidel) in Episode 82.
9. Previously, we discussed Trinity Lutheran while the case was still pending during our three-part “You Be The Supreme Court” series:  Part 1 (Episode 14) is available here, Part 2 is available here, and Part 3 is available here.
10. This is the Friendly Atheist article discussed during the "C" segment attempting to distinguish Trinity Lutheran v. Comer.

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Today's show discusses the free speech issues surrounding the Trump administration issuing a search warrant to DreamHost in connection with its hosting of a website critical of the Trump administration. We begin, however, with the triumphant return of "CLOSED ARGUMENTS" -- this time, examining a truly insane claim being made by Ron Paul supporters and other nutballs who think that the Washington Metro Safety Commission overturns the Fourth Amendment.  (It doesn't.) In the main segment, we delve into all the intricacies of the DreamHost search warrant and what it means for us as internet users. Next, the guys tackle a "hypothetical" question about conspiracy that just might take place on Yodel Mountain. Finally, we end with the answer to Thomas Take the Bar Exam Question #39 regarding hearsay testimony.  Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None.  Have us on your show! Show Notes & Links

1. The text of House Joint Res. 76 can be found here.
2. If you're a masochist, you can read the truly insane "ZeroHedge" post that totally misconstrues the law here.
3. This is a copy of the initial search warrant served on DreamHost.
4. And here is a link to all of DreamHost's discussion of their responses to the search warrant.
5. Finally, here is a link to the Washington Post article describing various Inauguration Day riots.

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In June, the Supreme Court issued per curiam opinions in two habeas cases: Jenkins v. Hutton and Virginia v. LeBlanc. In today’s episode, we will be discussing the opinions in both cases. -- Jenkins v. Hutton -- More than thirty years ago, an Ohio jury convicted Percy Hutton of aggravated murder, attempted murder, and kidnaping. The jury findings included aggravating circumstances that permitted imposition of the death penalty or life imprisonment. During the penalty phase of the proceedings, the jury was instructed that it could recommend a death sentence only if it unanimously found that the State had “prove[d] beyond a reasonable doubt that the aggravating circumstances, of which [Hutton] was found guilty, outweigh[ed] the [mitigating factors].” The jury recommended death, the trial court accepted that recommendation, and Hutton’s death sentence was affirmed on direct appeal. He eventually filed a habeas petition, arguing that the trial court denied him due process because it failed to tell the penalty phase jurors that, when weighing aggravating mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase of the trial. As Hutton had not objected to the jury instructions at trial or raised this issue on direct appeal, the district court dismissed his habeas petition on grounds of procedural default. A divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed, however, concluding that it could excuse the procedural default in the interests of avoiding a miscarriage of justice. Hutton, the Sixth Circuit argued, had “show[n] by clear and convincing evidence that, but for a constitutional error, no reasonable jury would have found [him] eligible for the death penalty under the applicable state law.” -- In a per curiam opinion issued on June 19, the Supreme Court reversed the judgment of the Sixth Circuit and remanded the case. The Sixth Circuit erred in reaching the merits of Hutton’s claim, the Court concluded, because to overcome a procedural default on fundamental miscarriage of justice grounds the focus should be on whether a properly instructed jury could have recommended death, not simply whether any alleged error might have affected the jury’s verdict. -- Virginia v. LeBlanc -- In 1999, Dennis LeBlanc, who was then 16, raped a 62-year-old woman and was sentenced to life imprisonment in 2003 by a Virginia court. Although Virginia had abolished parole, the state had replaced it with a “geriatric release” program for the conditional release of older inmates under some circumstances. In 2010, however, the U.S. Supreme Court held in Graham v. Florida that the Eighth Amendment prohibits juvenile offenders convicted of nonhomicide offenses from being sentenced to life without parole. Although states would not be required to guarantee eventual freedom to nonhomicide juvenile inmates, the Court explained, they must still offer juvenile offenders “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Invoking the Graham decision, LeBlanc filed a motion in Virginia state court to vacate his sentence. The state court denied relief, relying upon the Virginia Supreme Court’s prior decision in Angel v. Commonwealth, which had concluded that Virginia’s geriatric release program satisfied Graham’s parole requirement for juvenile nonhomicide offenders. The Virginia Supreme Court declined review of LeBlanc’s case and he then filed a federal habeas petition arguing that the Virginia courts’ position regarding geriatric release and Graham had fundamentally misapplied federal law. The district court agreed and granted relief. A divided U.S. Court of Appeals for the Fourth Circuit affirmed, and Virginia sought certiorari. -- In a per curiam opinion issued on June 12, the Supreme Court reversed the judgment of the Fourth Circuit, concluding that the Virginia courts had not applied the Graham rule unreasonably. To satisfy the habeas standard, the Supreme Court noted, the ruling in question must be “objectively unreasonable, not merely wrong; even clear error will not suffice.” And it was not objectively unreasonable, the Court indicated, for the state courts to conclude that, because the geriatric release program employed normal parole factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole. Justice Ginsburg filed a concurring opinion. -- And now, to discuss the cases, we have Ron Eisenberg, Deputy District Attorney for the Philadelphia District Attorney’s Office.

This week's "breaking news" episode covers two of the biggest Trump stories right now:  the ban on trans soldiers in the military, and the President's pardon of Sheriff Joe Arpaio. First, though, we begin with the seldom-necessary "Andrew Was Wrong" segment.  The less said about this, the better. In the main segment, Andrew walks us through President Trump's directive to the Departments of Defense and Homeland Security regarding transgender servicemembers, as well as the lawsuit filed by the ACLU challenging the directive. Next, Breakin' Down the Law continues with everything you wanted to know about the Joe Arpaio pardon.  Is it legal?  Does it make him civilly liable?  Does it erase his prior convictions?  Can he now be forced to testify?  Listen and find out. Finally, we end with an all-new Thomas Takes the Bar Exam Question #39 about the admissibility of a criminal defendant's prior statement.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None.  Have us on your show! Show Notes & Links

1. Here is a link to the Trump memorandum directing the Departments of Defense and Homeland Security regarding trans servicemembers.
2. This is he lawsuit filed by the ACLU challenging that directive.
3. Here is the Martin Redish New York Times article initially entitled "Why Trump Can't Pardon Arpaio."
4. This is a paper by Stephen Greenspan, Ph.D., listing posthumous pardons that I used for research in this epsiode.

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On April 3, 2017, the Supreme Court decided McLane Co., Inc. v. Equal Employment Opportunity Commission. In 2008, Damiana Ochoa filed a sex discrimination charge under Title VII of the Civil Rights Act of 1964 against her former employer McLane Co., Inc., a supply-chain services company, when she failed a physical evaluation three times after returning from maternity leave. The Equal Employment Opportunity Commission (EEOC) launched an investigation into Ochoa’s charge, but McLane declined the EEOC’s request for “pedigree information,” meaning names, Social Security numbers, addresses, and telephone numbers of those employees who had taken the physical evaluation. The EEOC then expanded its investigation into McLane’s operations nationwide and possible age discrimination, issuing subpoenas to McLane for pedigree information regarding these matters too. McLane refused to provide this information as well, and the EEOC then filed actions in federal district court to enforce the subpoenas issued regarding both Ochoa’s charge and the EEOC’s own age discrimination charge. The District Court quashed the subpoenas, finding the pedigree information irrelevant to the charges, but the U.S. Court of Appeals for the Ninth Circuit, applying a plenary or “de novo” standard of review, reversed. Other U.S. Courts of Appeals, however, apply a more deferential “abuse of discretion” standard in such situations, and the U.S. Supreme Court granted certiorari to resolve the split among the Courts of Appeals. -- By a vote of 7-1, the Supreme Court vacated the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Sotomayor, the court held that a district court’s decision whether to enforce or quash a subpoena issued by the EEOC should be reviewed for abuse of discretion, not de novo. Justice Sotomayor’s opinion was joined by the Chief Justice and Justices Alito, Breyer, Kagan, Kennedy, and Thomas. Justice Ginsburg filed an opinion concurring in part and dissenting in part. -- And now, to discuss the case, we have Ellen Springer, an Associate at Baker Botts, LLP.

Today's show is an hour-plus-long question & answer session answers some (but not all!) of the 110 questions our Patrons submitted on this thread.  As always, Andrew has no advance knowledge of these questions and answers everything off the cuff! After the Q&A, we end with the answer to Thomas Take the Bar Exam Question #38 regarding the admissibility of prior consistent statements.  And don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  

If you or anyone you know has ever cared what color the fringe on the U.S. flag is, you will not want to miss this episode.  Yes, by popular request, we once again tackle the wild and wacky world of sovereign citizen loons! First, though, the guys read a listener comment from Tony Wall who actually toured with KISS (!!) and can give us some insight as to Gene Simmons's copyright practices. In the main segment, Andrew walks through Gray v. Texas, a 2009 decision of the Texas Court of Appeals that delightfully debunks a great many "sovereign citizen" claims. Next, the guys answer a question from Revan, who wants to know whether criminal and civil cases wind up in the same courtroom or even in front of the same judge. Finally, we end with an all-new Thomas Takes the Bar Exam Question #38 about the admissibility of prior consistent statements by a witness.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Show Notes & Links

1. You will absolutely want to read Gray v. Texas!
2. And here is a link to the David Hall DUI hearing in which the judge delightfully deals with sovereign citizen nonsense.

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Today's show deals with a number of issues that all surround what your employer can (and cannot) fire you for. First, we begin by revisiting the "Google manifesto" topic from Opening Arguments Episode #94 as Thomas and Andrew respond to some hate mail from a listener who no longer wants to listen to the show after that episode.  Does he have a point?  Listen and find out. Next, the guys break down whether employees can discuss their salaries with co-workers on the job. After that, Andrew and Thomas answer a question from Patron April who wants to know how much an employer can control your social media use. Finally, we end with the answer to Thomas Take the Bar Exam Question #37 regarding installment contracts.  And don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances None.  Have us on your show! Show Notes & Links

1. We first discussed the "Google manifesto" during Opening Arguments Episode #94.
2. You can read that Google manifesto referred to during that episode as well.
3. The National Labor Relations Act (NLRA) of 1935 can be found at 29 U.S.C. § 151 et seq.
4. This is the text of President Obama's 2014 EO directing non-retaliation against government employees who discuss their compensation.
5. This is the NLRB's collection of findings regarding social media.
6. Here is a link to Three D, LLC v. National Labor Relations Board, the Second Circuit case referred to during the "C" segment.
7. Here is a link to Rule 801 of the Federal Rules of Evidence, which explains the answer to #TTTBE.

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In June 2017, the Supreme Court decided two cases involving habeas corpus petitions filed by state prisoners challenging the validity of their convictions and/or sentences: Davila v. Davis and McWilliams v. Dunn. -- The petition in Davila v. Davis involved a claim of ineffective assistance of counsel. Erick Davila was convicted in a Texas court of capital murder. Although his trial attorney had objected to one of the court’s jury instructions on intent, the court had overruled the objection. On direct appeal his appellate counsel raised various claims, but did not challenge the jury instruction ruling. His conviction and sentence were affirmed by the state’s highest criminal court, and the U.S. Supreme Court denied cert. Davila then initiated a collateral attack on his conviction: he sought habeas relief in state court, but his attorney challenged neither the jury instruction ruling nor the failure of his appellate counsel to raise the alleged instructional error on direct appeal. Texas’ highest criminal court ultimately denied relief and the U.S. Supreme Court again denied cert. Davila next raised a habeas claim in federal court, alleging that his appellate counsel provided ineffective assistance by failing to challenge the allegedly erroneous jury instruction on direct appeal. Although his failure to have raised that claim in his state habeas petition ordinarily constituted a fatal procedural default, Davila argued for an exception on the grounds that the failure was itself the result of ineffective assistance by his state habeas counsel. The federal district court denied Davila’s petition and the U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability for further review. The Supreme Court granted certiorari, however, to consider whether the ineffective assistance of postconviction counsel provided cause to excuse the procedural default. -- By a vote of 5-4, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion delivered by Justice Thomas, the Court held that the ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of claims of ineffective assistance of appellate counsel. Justice Thomas’ majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan. -- The petition in McWilliams v. Dunn involved the scope of a state’s duty, identified by the Supreme Court in its 1985 decision in Ake v. Oklahoma, to provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense, and independent from the prosecution, to effectively “assist in evaluation, preparation, and presentation of the defense.” In 1986, James McWilliams, Jr. was convicted by an Alabama jury of capital murder. Although a state commission, convened after McWilliams’s counsel requested a psychiatric evaluation, found that he was competent to stand trial and had not been suffering from mental illness at the time of his alleged crime, his counsel had also asked for neurological and neuropsychological testing while the parties awaited sentencing. The examining doctor concluded that McWilliams had some genuine neuropsychological problems, and his attorney also received various updated mental health records just before the sentencing hearing convened. Although the attorney sought a continuance and the assistance of someone with psychological expertise to evaluate this new material, the trial court denied those requests and sentenced McWilliams to death. Alabama’s appellate courts affirmed his conviction and sentence on direct appeal, and his effort to obtain state postconviction relief also failed. On federal habeas review, the district court found that the requirements described in Ake had been satisfied and denied McWilliams relief. The U.S. Court of Appeals for the Eleventh Circuit affirmed, but the Supreme Court granted certiorari to consider whether the Alabama Court of Criminal Appeals’ determination that McWilliams got all the assistance to which Ake entitled him was “contrary to, or involved an unreasonable application of, clearly established Federal law” under the federal habeas statute. -- By a vote of 5-4, the Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Breyer, the Court indicated that “Alabama’s provision of mental health assistance fell [] dramatically short of what Ake requires” and therefore concluded that the Alabama court decision affirming McWilliams’s conviction and sentence was “contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Eleventh Circuit had alternatively held that any error by the Alabama courts lacked the “substantial and injurious effect or influence” required to warrant a grant of habeas relief, the Supreme Court indicated that the Eleventh Circuit should reconsider on remand “whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered” to the outcome of McWilliams’s case. Justice Breyer’s majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, in which the Chief Justice and Justices Thomas and Gorsuch joined. -- And now, to discuss the cases, we have Joseph Tartakovsy, Deputy Solicitor General for the State of Nevada.

On June 5, 2017, the Supreme Court decided Kokesh v. Securities and Exchange Commission. In 2009, the Securities and Exchange Commission (SEC) alleged that Charles Kokesh had violated various securities laws by concealing the misappropriation of roughly $35 million in various development ventures dating back as far as 1995. Since the 1970s, the SEC has ordered disgorgement in addition to monetary civil penalties in its enforcement proceedings. In effect, the violator must not only pay monetary civil penalties, but also “disgorge” the profit he or she gained by the unlawful action. Under 28 U. S. C. §2462, however, a five-year limitations period applies to “an action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture” when the SEC seeks monetary civil penalties. In Kokesh’s case, the District Court concluded that the five-year limitations period did not apply to disgorgement. The U.S. Court of Appeals for the Tenth Circuit affirmed, holding that disgorgement was neither a penalty nor a forfeiture within the meaning of section 2462. As a result Kokesh could be required to disgorge the full $35 million, with interest. -- By a vote of 9-0, the Supreme Court reversed the judgment of the Tenth Circuit. In an opinion delivered by Justice Sotomayor, a unanimous Court held that disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under section 2462. Thus, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued. -- And now, to discuss the case, we have Janet Galeria, who is Senior Counsel for Litigation for the US Chamber Litigation Center at the US Chamber of Commerce.