BREAKING NEWS – The US Court of Appeals for the Third Circuit has found that the sentencing jury in Mumia Abu-Jamal’s case was misled about the process of weighing mitigating factors in considering whether to impose a life or death sentence. This error rendered Mumia’s death sentence unconstitutional, violating Mills v. Maryland, the Supreme Court decision that allows jurors to consider all mitigating evidence, whether agreed upon unanimously or not. The Third Circuit distinguished Mumia’s case from the more recent case of Smith v. Spisak, in which the Supreme Court reversed the 6th Circuit to hold that there was no Mills violation. The DA in Philadelphia has been claiming that Spisak should control in Mumia’s case. Judy Ritter argued the Mills claim before the Third Circuit.  While the government will likely seek Supreme Court review, and of course this decision falls short of ordering a new trial as to innocence, we nevertheless celebrate this victory in Mumia’s long struggle.

The opinion is available on http://www.ca3.uscourts.gov/opinarch/019014p2.pdf

This morning, the Supreme Court denied cert in the SHAC case, involving a group of activists associated with Stop Huntingdon Animal Cruelty.  As we highlighted in our amicus brief, the government was unable to find the people who freed beagles and other animals from Huntingdon Life Science and committed other acts of civil disobedience against animal testing, so instead they went after the people involved in SHAC’s website.  The individuals were not even accused of engaging in any acts of civil disobedience, but were convicted and sentenced to jail for web postings that expressed ideological support for such actions.  The Supreme Court refused to hear the case.

That this decision comes just a few days after Westboro Baptist Church’s victory in the Supreme Court is cruel irony.  There is no need to rehash that high-profile case, but what is less discussed is the technical significance of the claim Mr. Snyder brought against them.  Intentional inflection of emotional distress requires proof that the defendant engaged in extreme and outrageous activity that was intended to and did cause severe emotional harm to the plaintiff (or was reckless about the likelihood that it would cause severe emotional harm).  A basic tenant of appellate law is that jury findings of fact are not to be disturbed absent extraordinary conditions, which no one argued were present here.  So if that is taken seriously, it would be easy enough to draw the lines valuing free speech but not where one intentionally causes severe harm.  The Court’s assumption that the speech at issue was of “public concern” and not personally directed at the Snyder family seems inconsistent with the jury-found facts.

So to sum up these and other relevant cases, according to the Supreme Court:

“God Hates Fags,” “Your Son Is Burning In Hell,” and similar statements speak to matters of public concern and are protected speech.  Someone forced to listen to such statements has no recourse, even if a jury finds that the statements were intended to and did cause severe emotional harm.  Snyder v. Phelps.  But:

Posting facts on the internet available elsewhere and expressing ideological support for the actions of others who engage in civil disobedience can lead to jail time.  Kjonaas v. USA (3d Cir., cert. denied).

Peacefully holding a sign reading “Bong Hits 4 Jesus” at a public rally on the street is “disruptive” — not because it causes actual disruption, but because it is disruptive to the state’s indoctrination efforts — and the state may punish a student for it.  Morse vFrederick, 551 U.S. 393 (2007)

A St Patrick’s Day parade is private.  The organizers can keep out gay groups if they want.  The state’s public accommodations laws cannot require otherwise.  Hurley v. Irish American GLB Group of Boston, 515 U.S. 557 (1995).

But a private institution’s nondiscrimination policy is not speech.  Private law school may not keep out bigots.  The government can force them to violate their nondiscrimination policy.  Rumsfeld v. FAIR, 547 U.S. 47 (2006).

Conversations with a terrorist group that seek to find ways to bring their grievances to light through legal means rather than terrorism are not speech; they constitute the felony “material support to a terrorist organization.”  Holder v. Humanitarian Law Project.

And of course, money is speech.  The government can tell you what hours you can use a park for rallies and how loud your amplifier can be, but not how much money you can spend on a political ad.  Citizens United v. FEC, 130 S.Ct. 876 (2010).

Staff Attorney Position Opening
Partnership for Civil Justice Fund
Washington, D.C.

Description:

The Partnership for Civil Justice Fund is seeking an experienced, highly skilled, enthusiastic and motivated civil rights attorney to join in litigation of existing cases and the development of new litigation and initiatives to defend and advance civil rights and social justice.

The PCJF is a non-profit legal and educational organization that engages in complex constitutional rights litigation, including landmark First Amendment and Section 1983 cases, civil rights and anti-discrimination cases, economic justice issues, exposure of government misconduct and Freedom of Information Act cases, and defense of targeted communities and political organizations and activists. The PCJF‚s work has resulted in significant victories including, in the past year, some of the largest settlements in U.S. history for protest cases and the elimination of the D.C. police‚s controversial military-style checkpoint operations.

Responsibilities:

Conduct and assist with significant impact litigation in federal and local court as well as appellate courts, and including discovery, depositions, motions practice, drafting briefs, correspondence, court appearances, some oral arguments and trials.

Develop and investigate new matters, projects, and litigation strategies to forward PCJF‚s efforts to defend and advance civil rights and social justice nationally, and work as part of a collaborative team.

Draft publications and other legal resources including comprehensive reports, succinct fact sheets, and know your rights materials for public education and outreach and for audiences of varied backgrounds.

Work closely and cooperatively with allied political activists and grassroots organizations.

Engage in public speaking at conferences and community events on PCJF advocacy and litigation and outreach to the media and public generally.

Participate in development and fundraising efforts as requested.

Assist in other related duties as assigned.

Required Qualifications:

A minimum of five years of litigation practice as an attorney, preferably in constitutional and civil rights, that has prepared the applicant to manage litigation independently (may include time in judicial clerkship).

Admission to the D.C. bar or ability to waive in.

Excellent judgment, meticulous attention to detail, superior organizational, speaking, and writing abilities.

Demonstrated litigation skills. Ability to take effective depositions calculated to elicit evidence that will meet legal standards and establish proof relevant to the case at hand. Ability to draft high quality legal briefs. Must conduct research that is comprehensive, accurate and does not require secondary review.

Capacity to work well under pressure, to juggle multiple tasks simultaneously and to meet deadline requirements. A strong work ethic is essential.

Ability to develop and implement litigation strategies and to work collaboratively within the organization. Creative thinker in strategic and tactical planning to advance civil rights issues. Demonstrated ability to undertake complex analytical work.

A high level of independence and initiative, ability to take responsibility to advance and complete projects and manage a caseload. Self-motivated with ability to create an agenda for the work.

Enthusiasm for the work of the organization and a demonstrated strong commitment to civil rights and social justice issues.

Compensation:

The salary for this position is commensurate with experience and public interest legal work. Benefits include fully paid health and dental insurance, 401(k) plan, life and short term/long term disability insurance, vacation and sick leave.

Application Procedure:

Qualified candidates should mail a cover letter with resume, two legal writing samples, two letters of recommendation, and three professional references to:

Attorney Search
Partnership for Civil Justice Fund
617 Florida Avenue NW
Washington, D.C. 20001
And/or email to: jobs@justiceonline.org

Deadline: Applications will be considered on a rolling basis.

No phone calls or faxes.

PCJF encourages women, people of color, persons with disabilities and LGBT persons to apply.

A groundswell of support—over 10,000 letters—from around the world convinced the Parole Commission that Puerto Rican independence activist Carlos Alberto Torres finally deserved his freedom. After spending three decades at the Federal Correctional Institution in Pekin, Illinois, on July 26, 2010 Torres was freed on parole. He had served 30 years of a 78-year sentence for seditious conspiracy, namely conspiring to use force against the lawful authority of the United States over Puerto Rico. Torres was a member of the Armed Forces of National Liberation (FALN), which took responsibility for bombings in the Chicago in the 1970s, although Torres himself wasn’t charged with any of the attacks and no deaths or injuries resulted.

For all 30 years Torres had the ongoing support of his attorney Jan Susler, whose own steadfast commitment to social justice parallels his. Her long history of work on behalf of political prisoners and prisoners’ rights includes litigation, advocacy and educational work around USP Marion and the Women’s High Security Unit at Lexington, Kentucky. In an interview on WBAI’s weekly civil liberties radio show, “Law and Disorder,” Susler said it was a delight and a privilege to represent Torres. She noted that his sentence was extraordinarily disproportionate because he was being punished for his political views; had he committed a violent offense, in contrast, he would have served far less time. Throughout his 30 years of incarceration, she said, Torres stood tall and maintained his political integrity. “People stop him on the street—he can’t walk down the street—people him to embrace him and thank him for his contributions to the country.”

Susler is no stranger to unjust convictions and sentences. She joined the People’s Law Office in Chicago 1982 after spending six years as Clinical Law Professor at Prison Legal Aid, the legal clinic at Southern Illinois University’s School of Law. Her practice at PLO focuses on police misconduct civil rights litigation, which has lately included wrongful conviction litigation on behalf of people exonerated after serving many years in prison, innocent. Her work with the Puerto Rican Independence Movement and with progressive movements challenging U.S. foreign and domestic policies has been a constant throughout her 30 years as a lawyer.

Susler and Torres used international law in his defense, arguing that the courts of the colonizing country may not criminalize captured anti-colonial combatants, but must turn them over to an impartial international tribunal to have their status adjudicated.

Carlos Torres told Law and Disorder radio that upon his release, “We were met by a mob of friends and family. I loved every second of it. It was an expression of sheer unadulterated love….The only cloud is that we still have two Puerto Rican political prisoners in jail, Oscar Lopez Rivera and Avelino González Claudio. I’m anxious to get involved and do everything I can to bring the brothers out. I just can’t them out of my head.”

Upon returning home Torres helped carry the coffin of Dolores “Lolita” Lebron Sotomayor, who died at the age of 90 just days after his release from prison. Lebrón led an armed attack on the U.S. Congress on March 1, 1954, and spent 25 years and six months in Alderson’s Federal Women’s Prison in West Virginia before being pardoned in 1979 by President Jimmy Carter. When Torres was beginning his sentence, Lebron walked back into prison to visit him and other political prisoners. “She was viewed as a national heroine,” he said.

To hear the full interview, go to: http://lawanddisorder.org/2010/08/law-and-disorder-august-9-2010/

As advocates of all stripes contemplate the immediate and long-term effects of Judge Vaughn Walker’s decision in the Prop 8 case (i.e., will California begin recognizing new same-sex marriages on Wednesday after 5pm, and will this case’s findings and conclusions ever be extended to the rest of the 9th Circuit and, ultimately, the country), the rather bizarre position of the California State officials comes into focus and presents unresolved legal issues. I, for one, am willing to admit that I’m not sure how the standing arguments will or should be resolved ultimately, but hope this post might inspire some interesting thoughts.

Our prior post celebrated Judge Walker’s process and, in particular, his carefully articulated and substantiated findings of fact. The posture of this case is now so strong that many of us want to see it considered beyond California. But for this to happen, the decision must be appealed to a higher court. It’s more than a little strange to be in a position of wanting a victory to be second-guessed, yet that’s where many of us find ourselves… (The NY Times called for the ruling to be upheld by the US Supreme Court so the victory could be extended nationwide, but it left issues of how to get there to a vague, “it’s up to the 9th Circuit,” which is where much of the commentary has stopped. This post seeks to look at that question a bit harder.)

But as odd as that is, the law of standing is about to make things stranger still. To put standing in the plainest terms possible for benefit of any non-lawyer readers: standing ensures that the federal courts only get involved in real-life controversies between parties that have something at stake; something that can be resolved by an order from the court against one or the other party. So here, the case was nominally brought against the State of California, since that is the entity that was refusing to give the plaintiffs a marriage license. (The State all along said it thought Prop 8 was unconstitutional, but it persisted in refusing to grant marriage licenses to same-sex couples.) That makes for a “live controversy” easily enough, and there is no question that the dispute was of a nature that a federal court can resolve — “give them a license” or “go away, you get no license.” But now the State has accepted the ruling and is prepared to give the plaintiffs what they seek. The proponents of Prop 8 aren’t happy about it, but since they have no power to withhold a marriage license from anyone, there isn’t anything a court needs to rule on.

Thus, we seem to be without a live controversy. Under the traditional rules for standing, Judge Walker is almost certainly correct that the proponents of Prop 8 cannot establish a live case or controversy on their own. Not liking state action has never been enough to create standing, even if your taxes are going to support it or you voted for it; the harm has to be more personal than that. Add to this the well-established doctrine that whether or not to advance an appeal is completely at the discretion of the Attorney General, and the case looks over for good.

So we won and no one can do anything about it — how sad! Because if the case stops here, the reach of the ruling stops in California.

So now comes the tricky part. Do we hope and perhaps even advocate for the proponents of Prop 8 to make new law and find a way to appeal — thereby advancing Judge Walker’s strong opinion higher up the judicial hierarchy, where there are greater legal and geographical implications?

It might be relatively safe do so, since the prospects are rather grim for Prop 8 proponents. But it is worth noting that this is a voter initiative, so there might be stronger arguments that voters/proponents should be able to defend its constitutionality at an appellate level, whether the Attorney General is inclined to do so or not. A writ of mandamus requiring the state to maintain the stance he held at the trial level, at least through one round of appeals, is one possibility. Objectively, though, such a move is extremely unlikely to succeed against the entrenched “discretionary function” doctrine that prohibits the judiciary from telling the executive whether to litigate cases when there is no other legal requirement to do so.

The proponents therefore might try to displace the Attorney General as the true litigators on behalf of the state. When the executive refuses to defend the constitutionality of a legislatively enacted law, the legislature can secure different counsel to do so. (Former Solicitor General Drew Days offers an interesting description of this process in In Search of the Solicitor General’s Clients: A Drama, 83 Ky. L.J. 485 (1994).) Whether the courts would extend this legislative prerogative to an initiative’s drafters is an open question. One major problem is that legislators get someone to do the job instead of the executive by passing a law authorizing that representation (there’s generally no “legislator standing” for individuals acting on their own); and here, there would be no law authorizing anyone to step in for the Attorney General. Precedent suggest that there must be this sort of express consent to have someone else step in to litigate the constitutionality of a challenged law (see eg US v Providence Journal, 485 U.S. 693 (1988)); although again, maybe a different argument could be made when it is a voter initiative rather than ordinary legislation.

The Prop 8 supporters are, in all likelihood, brainstorming ways to advance an appeal. We wonder if they will come up with anything creative that offers a better chance than the hail-marys above. Do we wish them preliminary success?

As intimidating as its 138 pages may be, Judge Vaughn Walker’s decision in the Prop 8 case yesterday is well worth reading by all advocates for LGBT equality.  Most of us are striking a note of cautious optimism, which is certainly appropriate as we prepare for the inevitable appeals.  The 9th Circuit is unpredictable, and then there’s the Roberts Court…  But because of the procedure followed in this case, Judge Walker has done something that can never be removed from thoughtful debate on this issue, and that even the higher courts may find hard to circumvent.
There is a key paragraph on page 1:

Having considered the trial evidence and the arguments of counsel, the court pursuant to FRCP 52(a) finds that Proposition 8 is unconstitutional and that its enforcement must be enjoined.

Choosing a favorite among those phrases, I feel safe in assuming that only a lawyer would get excited about “pursuant to FRCP 52(a).”  But that represents a critical distinction between this and other court cases.  This case went to trial and includes “findings of fact” that, per Federal Rule of Civil Procedure 52(a), “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”

In other words, higher courts are basically stuck with his factual findings.  They can dispute what legal consequences flow from those facts; but it is now a formal finding that Prop 8 promotes discrimination, that existing marriages are unaffected by expanding marriage to include same-sex couples, that children will benefit if same-sex couples can marry, that the state has no legitimate interest in reserving marriage to opposite-sex couples, and that Prop 8 is best explained as an improper intrusion of religious values onto a state function, which increases bigotry and harms the LGBT community and the people in general.

In the past, opponents of same-sex marriage have relied upon generalizations about the state’s interests.  But in this case, each of those claims (including preserving tradition, protecting children, promoting reproduction, and others) were put to the test and, in legal findings of fact that higher courts are bound to respect, were found to be completely lacking in credibility.  Quite literally, opponents of same-sex marriage could come up with NO legitimate basis for their position that stood up under scientific and legal scrutiny.

Of course, despite the strong legal position we are in now, whether these careful factual conclusions will mean anything to certain individuals with lifetime tenure is anyone’s guess.  This is why the findings should be carefully read and retold to the general public.  Although most marriage successes in this country have been in the courts, Vermont, DC, and a number of foreign jurisdictions have embraced same-sex marriage through the electoral and legislative process.   To the extent we hold out hope that reasoned argument can still have its day in the US, especially pages 60-109 of Judge Walker’s decision can be very helpful in clearly and methodically knocking down every argument in opposition to same-sex marriage.  There are some great declarations of principle throughout his decision, but advocates shouldn’t overlook the hard and useful work of the findings of fact.   Like when arguing with someone who has watched too much Fox News, sometimes we have to spend time dispelling the demonstrably false premise for their views.

Congratulations to our friend and former NLG President Michael Avery, who spelled out why John Yoo should be prosecuted for his role in crafting the policies and practice of torture under the Bush Administration . . . while John Yoo shared the stage with him!  The entire event is chronicled here.

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