On October 30, 2017, the Supreme Court heard argument in Wilson v. Sellers, a case regarding the standard of review federal courts should apply to a final state court denial of habeas relief.
In 1996, Marion Wilson, Jr. was sentenced to death after being found guilty of a series of violent crimes culminating in the murder of Donovan Parks. At sentencing Wilson’s counsel argued that Wilson was not the triggerman and offered evidence of his troubled childhood; in response the state prosecutor highlighted Wilson’s criminal history and gang activity. Wilson’s conviction and sentence were affirmed on direct appeal. Wilson sought habeas relief in state superior court, claiming that his trial counsel offered ineffective assistance in his investigation of mitigation evidence during the trial phase of the murder trial. He offered lay testimony about his childhood and expert testimony regarding his judgment skills. The superior court denied habeas relief, concluding that the lay testimony was cumulative of other evidence offered at trial as well as inadmissible, and that the expert testimony would not have changed the outcome of the trial. In a one-sentence order, the Georgia Supreme Court summarily denied Wilson’s subsequent application for a certificate of probable cause to appeal.
Wilson then sought habeas relief in federal district court. The district court denied relief, but granted a certificate of appealability on the issue of the effectiveness of Wilson’s trial counsel at sentencing. A panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the denial of habeas relief. Treating the Georgia Supreme Court’s summary refusal to grant a certificate of probable cause to appeal as the final state court decision on the merits, the Eleventh Circuit applied the test outlined by the U.S. Supreme Court in the 2011 case Harrington v. Richter, asking whether there was any reasonable basis for the Georgia Supreme Court to deny relief. The panel answered that question in the affirmative. Wilson obtained rehearing en banc before the full Eleventh Circuit, however, arguing that under the 1991 decision of the U.S. Supreme Court in Ylst v. Nunnemaker, the panel should instead have looked “through” the Georgia Supreme Court’s ruling back to “the last reasoned decision” by the state courts. By a vote of 6-5 the Eleventh Circuit disagreed, holding that federal courts need not “look through” a summary decision on the merits to review the reasoning of the lower state court.
The Supreme Court subsequently granted certiorari to address whether its decision in Harrington v. Richter abrogates the presumption set forth in Ylst v. Nunnemaker that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision.
To discuss the case, we have Lee Rudofsky, Solicitor General of Arkansas.
Opening Arguments - OA123: Cards Against Humanity (And Thomas), “Magic Words” & so much more!
In this fun, pre-Thanksgiving episode, we delve into a number of interesting topics. We begin with the popular (if much maligned by Thomas) card game "Cards Against Humanity" and their pitch to "save America." Are you surprised that it turns into a deep dive about eminent domain? (You shouldn't be.) After that, Andrew answers a listener question about whether, in fact, there are "magic words" in the law. How does this relate to the infamous lawyer dog? Listen and find out! Next, the guys discuss Trump's secret war on the judiciary, beginning with a judge less qualified than Thomas and most OA listeners. It's depressing! It's true! It's... depressing. The episode closes with the answer to Thomas Takes the Bar Exam Question #50 involving hot rods, cruisin', and assault with a deadly car hood. 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 Andrew was a return guest on Episode 7 of the How-To Heretic Podcast; give it a listen! Show Notes & Links
- Check out Cards Against Humanity Saves America! Oh, and afterwards, give Episode 52 of Comedy Shoeshine a listen and hear how Thomas really feels about adult Apples-to-Apples!
- You can read this Washington Post story about the infamous "lawyer dog" by clicking here.
- And, of course, you can always read Kelo v. City of New London, 545 U.S. 469 (2005).
Opening Arguments - OA122: Moore is Less
Today's episode is, unfortunately, all about Alabama Senate candidate Roy Moore. First, the guys discuss the unintentionally hilarious litigation hold letter filed by Moore's attorney. After that, Andrew and Thomas break down Alabama's election laws and discuss a variety of proposals being circulated for replacing Moore on the ballot. Next, the guys end with a discussion of whether the Senate can expel Moore from its ranks in the event that he wins. Finally, we end with an all-new "West Side Story"-themed Thomas Takes the Bar Exam Question #50. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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
- Here is the AL.com story containing the litigation hold letter they received from Moore's attorney.
- The relevant law is Alabama Code 17-6-21.
Opening Arguments - OA121: A Theory of Justice and the Social Contract (w/guest Aaron Rabi of Embrace the Void)
Today's episode takes a deep dive into social contract theory, and in particular, one of the most influential works of modern philosophy, John Rawls's A Theory of Justice, with guest philosopher Aaron Rabi, host of the terrific podcast Embrace The Void. After the discussion, we end with the answer to Thomas Takes the Bar Exam Question #49. 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
- Check out Embrace The Void by clicking here.
Amicus With Dahlia Lithwick | Law, justice, and the courts - Guns in America and the Travel Ban that Went Unnoticed
In the wake of another American mass shooting, Dahlia speaks with Adam Skaggs, Chief counsel at the Giffords Law Center to Prevent Gun Violence about the Second Amendment. And as this week marks the one year anniversary of Donald Trump’s election to office, Becca Heller, co-founder of the International Refugee Assistance Project, joins to talk about how her job changed after the election.
Learn more about your ad choices. Visit megaphone.fm/adchoices
Amicus With Dahlia Lithwick | Law, justice, and the courts - Guns in America and the Travel Ban that Went Unnoticed
In the wake of another American mass shooting, Dahlia speaks with Adam Skaggs, Chief counsel at the Giffords Law Center to Prevent Gun Violence about the Second Amendment. And as this week marks the one year anniversary of Donald Trump’s election to office, Becca Heller, co-founder of the International Refugee Assistance Project, joins to talk about how her job changed after the election.
Hosted on Acast. See acast.com/privacy for more information.
Opening Arguments - OA120: OA Shills For Monsanto! (w/guest Natalie Newell of “Science Moms”)
Today's episode features Natalie Newell of the documentary "Science Moms" discussing GMO labeling and science awareness. First, we begin with an "Andrew Was Wrong" segment that updates some previous stories, including good news from the Jane Doe v. Wright decision discussed in Episode 117 and some clarification regarding the Manafort indictment from Episode 118. After that, Natalie Newell joins us for a lengthy discussion on GMOs in light of legislation passed in 2016 requiring uniform national labeling. Finally, we end with an all-new Thomas Takes the Bar Exam Question #49. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was a guest on Episode 6 of the How-To Heretic Podcast; give it a listen! Show Notes & Links
- Here is the press release regarding Jane Doe's abortion.
- The GMO labeling law we discuss is the "National Bioengineered Food Disclosure Standard Act of 2016," 7 U.S.C. § 1639 et seq.
- And you can (and should!) check out "Science Moms" by clicking here and listen to Natalie's podcast, The Science Enthusiast.
Opening Arguments - OA119: Trump’s Trans Ban (& More)
Today's episode takes a look at the recent decision in Doe v. Trump in which a federal judge issued a preliminary injunction blocking the majority of President Trump's ban on trans servicemembers in the armed forces. First, though, we begin with a discussion of Brady v. Maryland, 373 U.S. 83 (1963) and the requirement that prosecutors turn over exculpatory evidence to criminal defendants. In the "C" segment, we discuss two articles surrounding Trump's legal strategy in light of last week's indictments. Finally, we end with the answer to Thomas Takes the Bar Exam Question #48 about co-conspirators, confessions, and hearsay. 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 Andrew was a guest on Episode 6 of the How-To Heretic Podcast; give it a listen! Show Notes & Links
- The two cases discussed in the "A" segment were Brady v. Maryland, 373 U.S. 83 (1963) and U.S. v. Bagley, 473 U.S. 667 (1985).
- You can read the full text of Judge Kollar-Kotelly's decision in Doe v. Trump by clicking here.
- The two articles discussed in the "C" segment were this article from the Daily Beast and this article from The Hill.
Opening Arguments - OA118: Indictment Monday & the View From Yodel Mountain
Today's rapid-response episode tackles -- of course -- the indictment of former Donald Trump campaign manager Paul Manafort and his protege, Rick Gates, as well as the guilty plea entered by Trump campaign official George Papadopoulos. What does it all mean? Listen to a special full-length episode and find out! After our full discussion, we end with a timely new Thomas Takes the Bar Exam Question #48 about co-conspirator confessions. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was a guest on Episode 6 of the How-To Heretic Podcast; give it a listen! Show Notes & Links
- You can (and should) read the Papadopoulos statement of offense.
- Papadopoulos has pled guilty to providing a false statement to a government official, 18 U.S.C. § 1001.
- After that, you can read the Manafort and Gates indictment by clicking here.
- Manafort and Gates are collectively charged with 12 crimes, including conspiracy to commit an offense against or to defraud the United States, 18 U.S.C. § 371; conspiracy to launder money,18 U.S.C. § 1956; seven counts of record-keeping violations under 31 U.S.C. § 5314; two separate violations of the Foreign Agent Registration Act, 22 U.S.C. § 612 et seq.; and, of course, providing false statements to a government official, 18 U.S.C. § 1001.
SCOTUScast - Jesner v. Arab Bank, PLC – Post-Argument SCOTUScast
On October 11, 2017, the Supreme Court heard argument in Jesner v. Arab Bank, PLC, a case regarding the validity of suits against corporate entities under the Alien Tort Statute.
Between 2004 and 2010, survivors of several terrorist attacks in the Middle East (or family members or estate representatives of the victims) filed lawsuits in federal district court in New York against Arab Bank, PLC, an international bank headquartered in Jordan. Plaintiffs alleged that Arab Bank had financed and facilitated the attacks in question, and they sought redress under, among other laws, the Alien Tort Statute (ATS). The district court ultimately dismissed those ATS claims based on the 2010 decision of the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co., (“Kiobel I”), which concluded that ATS claims could not be brought against corporations, because the law of nations did not recognize corporate liability.
The U.S. Supreme Court affirmed the Second Circuit’s judgment in Kiobel (“Kiobel II”) but for a different reason: the failure to rebut a presumption against extraterritorial application of the ATS to actions that took place in the territory of a sovereign other than the United States. The district court in Jesner acknowledged this, but concluded that nothing in the Supreme Court’s decision actually contravened the Second Circuit’s original rationale regarding corporate liability, which therefore remained the law applicable to district courts within the Second Circuit. On appeal, the Second Circuit affirmed the district court, agreeing that Kiobel II did not overrule Kiobel I on the issue of corporate liability under the ATS.
Other federal circuit courts of appeals, however, have read Kiobel II differently with respect to the possibility of corporate liability, creating a split with the Second Circuit--and the Supreme Court has now granted certiorari to address whether the Alien Tort Statute categorically forecloses corporate liability.
To discuss the case, we have Eugene Kontorovich, Professor of Law at Northwestern School of Law.
Between 2004 and 2010, survivors of several terrorist attacks in the Middle East (or family members or estate representatives of the victims) filed lawsuits in federal district court in New York against Arab Bank, PLC, an international bank headquartered in Jordan. Plaintiffs alleged that Arab Bank had financed and facilitated the attacks in question, and they sought redress under, among other laws, the Alien Tort Statute (ATS). The district court ultimately dismissed those ATS claims based on the 2010 decision of the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co., (“Kiobel I”), which concluded that ATS claims could not be brought against corporations, because the law of nations did not recognize corporate liability.
The U.S. Supreme Court affirmed the Second Circuit’s judgment in Kiobel (“Kiobel II”) but for a different reason: the failure to rebut a presumption against extraterritorial application of the ATS to actions that took place in the territory of a sovereign other than the United States. The district court in Jesner acknowledged this, but concluded that nothing in the Supreme Court’s decision actually contravened the Second Circuit’s original rationale regarding corporate liability, which therefore remained the law applicable to district courts within the Second Circuit. On appeal, the Second Circuit affirmed the district court, agreeing that Kiobel II did not overrule Kiobel I on the issue of corporate liability under the ATS.
Other federal circuit courts of appeals, however, have read Kiobel II differently with respect to the possibility of corporate liability, creating a split with the Second Circuit--and the Supreme Court has now granted certiorari to address whether the Alien Tort Statute categorically forecloses corporate liability.
To discuss the case, we have Eugene Kontorovich, Professor of Law at Northwestern School of Law.