The Connecticut Supreme Court today joined the highest courts in Massachusetts and California in deciding that their state constitutions prohibit a legislative ban on same-sex marriages.

The case, Kerrigan v. the state Commissioner of Public Health, was brought by eight same-sex couples who were denied marriage licenses by the Madison town clerk. They argued that the state's civil union law was discriminatory and unconstitutional because it established a separate and therefore inherently unequal institution for a minority group. Citing the equal protection under the law, the state Supreme Court agreed.

While the decision (pdf) may energize the religiously intolerant branch of the right wing, it won't be of much help to John McCain, who has never been a point man for his party's anti-gay faction. Expect to hear considerable whining about "activist" judges -- the ones who actively support the constitutional value of equal protection -- but expect to hear an even louder celebration of this important victory for human rights.

The Third Circuit wrote the latest chapter today in the ongoing saga of the Child Online Protection Act (COPA), a law that Congress passed in 1998 to replace the Communications Decency Act, which the Supreme Court declared unconstitutional in 1997. In general terms, COPA prohibits commercial websites from publishing material "harmful to minors" (even if that material is not obscene) without making a good faith effort to prevent anyone younger than 17 from viewing it. Requiring a credit card would be an example of a good faith effort.

The law was promptly enjoined by a district court because it seemed likely to abridge First Amendment rights. That decision was affirmed by the Third Circuit, but the Supreme Court disagreed with the Third Circuit's narrow decision. The case went back to the Third Circuit, which again agreed with the district court. Another trip to the Supreme Court produced a 5-4 decision upholding the injunction on the ground that there are probably less restrictive ways of protecting minors, including filtering software, than criminalizing the distribution of "harmful" materials. [more ...]

A federal judge in California Wednesday ruled that Bush's warrantless electronic surveillance runs afoul of FISA:

“Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

Judge Walker’s voice carries extra weight because all the lawsuits involving telephone companies that took part in the N.S.A. program have been consolidated and are being heard in his court.

The opinion is here (pdf). [More...]

Who knew the nation had a "leading authority on the citation of popular music in judicial opinions"? The authority turns out to be Alex Long, a law professor at the University of Tennessee. Prof. Long tells us that Chief Justice Roberts' dissent in Sprint Communications v. APCC (a case Adam Liptak accurately describes as "an achingly boring dispute between pay phone companies and long distance carriers") is "a landmark opinion." Not because of the legal analysis, mind you, but because it "was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision."

“The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing,” Chief Justice Roberts wrote. “ ‘When you got nothing, you got nothing to lose.’ Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).”

Prof. Long reports that Dylan is a favorite of lower court judges, having been quoted 26 times, most often for "You don’t need a weatherman to know which way the wind blows" (from "Subterranean Homesick Blues"). The professor notes that the Chief Justice (or his law clerk) got the lyric wrong, both as a quotation and as to its meaning. [more...]

Here's a thread for reactions, your own and others, to today's Supreme Court decision in D.C. v. Heller. I have provided selected quotes from the opinion here.

The Los Angeles Police Department has a "longstanding police policy that prohibits officers from initiating contact with people for the sole purpose of learning their immigration status." That policy is consistent with the belief that police officers should not accost individuals to seek information without a more legitimate reason than nosiness. The policy also protects individuals from police inquiries that are based on officers' assumption about national origins.

The frequently misguided organization Judicial Watch got it wrong again in a lawsuit it filed to free LAPD from that self-imposed restraint. Judicial Watch argued that "the city should not be using taxpayer money to enforce the policy, saying the order blocked cooperation between the local police and federal immigration agents." Wrong.

Judge Rolf M. Treu of Los Angeles Superior Court granted a motion from the city and the American Civil Liberties Union for a summary judgment to throw the suit out, arguing that Mr. Sturgeon was unable to show that the order violated federal law or impeded immigration officials from communicating with the police.

The other Supreme Court decision of interest today to criminal law junkies is Giles v. California (pdf). The issue is whether a defendant forfeits his right under the Confrontation Clause "to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial." Hearsay statements made to a police officer that incriminate a defendant typically cannot be used at the defendant's trial unless the person making the statements is available to be cross-examined. A murder victim is obviously unavailable, and the issue was whether an exception to the confrontation rule exists when the defendant has caused the unavailability of the witness.

Giles shot his ex-girlfriend. At trial he claimed he acted in self-defense. A police officer testified that the ex-girlfriend had reported three weeks earlier that Giles had accused her of having an affair and had threatened to kill her.

In a 6-3 decision authored by Justice Scalia, the Court held that a defendant does not forfeit his Confrontation Clause right to bar testimonial statements made outside the courtroom (in this case, the ex-girlfriend's statement to the officer) when the person making those statements has not been cross-examined, even if she's unavailable for cross-examination only because the defendant killed her. The Court rejected the popular notion of "forfeiture by wrongdoing" unless the wrongdoing was designed to prevent the testimony from being given.

The Supreme Court ruled today that the right to a lawyer begins when a defendant if first brought before a magistrate or judge after arrest, even if prosecutors were not involved in the arrest or court appearance. The Court expressly rejects the "prosecutorial awareness" test. The case is Rothgery v. Gillespie County, No. 07-0440. The opinion is here (pdf).

The court ruled 8-1 Monday in favor of Walter Rothgery, whose request for a lawyer was denied by local Texas authorities for six months. Rothgery was arrested in Texas for carrying a gun as a convicted felon, based on a background check that erroneously showed a felony drug conviction in California.

A lawyer would have quickly shown that the report of the previous conviction was mistaken, which would have eliminated the reason for the arrest in the first place.

The issue for the Court was, "Whether the Sixth Amendment right to counsel attaches to defendants brought before a magistrate and jailed pending posting of bond if prosecutors were not involved in the arrest or court appearance."[More...]

Criminal defendants cannot be forced to stand trial unless they are competent. In simple terms, that means the defendant must have sufficient cognitive ability to understand the basic proceedings (which usually means understanding "the judge decides things, my lawyer is here to help me, the other lawyer isn't" etc.) and to assist in the defense. The standard isn't high.

Defendants also have the right to represent themselves if they are competent to do so. A vexing question has been whether any defendant who is competent to stand trial is also competent to represent himself, or whether some additional degree of competence is required to permit self-representation.

The Supreme Court answered that question (pdf) today in a 7-2 decison:

Much of the time, "jailhouse lawyers" give lousy advice. Sometimes they get it right. Allen Penoyer, a 68 year old lifer, helped fellow inmate Jeffery Sipple challenge his manslaughter conviction.

Penoyer, using a blue ballpoint pen and blank sheets of white paper, challenged Sipple's conviction on the grounds that his attorney, Michael Connell, allowed the jury to hear an invalid instruction that negated Sipple's self-defense argument. "He studied it, and sure enough, they violated my rights," Sipple said.

The 5th District Court of Appeal agreed in December and granted Sipple a new trial.

Sipple's family chipped in to hire a lawyer from Tampa to argue Sipple's appeal. Freed from prison after serving four years of a twelve year sentence, Sipple struck a new deal that will allow him to remain free if he obeys the terms of his probation. He's moved to Indiana, and his goal now is simple.

"I'm trying to start over and keep a low profile," he said.

Three passages from the majority opinion's conclusion in Boumediene are worth your time (so is the rest of the opinion, but weighing in at 70 pages, it takes some time to digest):

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. ...

[more ...]

As TalkLeft recently observed, the Texas Supreme Court affirmed a lower court ruling that invalidated the groundless seizure of 468 children and the subsequent separation of most of those kids from their parents. This editorial wisely echoes Jeralyn's sentiments: "It's time to return these children to their parents." (more ...)