Thursday, March 24, 2005

Great Teaching Tool: Landmark Supreme Court Cases

We invite you to visit Landmark Supreme Court Cases which we learned of at Robert Ambrogi's Lawsites. The site's description reads, in part, as follows:
This site was developed to provide teachers with a full range of resources and activities to support the teaching of landmark Supreme Court cases, helping students explore the key issues of each case. The "Resources" section features basic building blocks such as background summaries and excerpts of opinions that can be used in multiple ways. The "Activities" section contains a range of short activities and in-depth lessons that can be completed with students. While these activities are online, many of them can be adapted for use in a one-computer classroom or a classroom with no computer.

Depending upon the amount of time you have to teach the case, you may want to use one or more of the "Resources" or "Activities" in conjunction with one or more of the general teaching strategies.
Check it out! The site has been developed through the collaboration of teachers, attorneys, law students, Street Law, and The Supreme Court Historical Society.

Help Wanted for TV Documentary (includes the free legal services of a renowned defense attorney)

I received the following e-mail today, and I'm posting it in case any of the lawyer readers of this blog have information which may be useful to Mikaela Beardsley. I was curious as to who she was, and did a Google search and found the following link most useful:

IMDb Mikaela Beardsley

Now here is the e-mail in case any of you wants to help out in this matter:

Dear Tom,

I am a producer at a New York production company, Stick Figure Productions. We are developing a new television series for Court TV. We are looking for cases for which we will provide - for free – the legal services of a renowned defense attorney in exchange for participation in our show. In terms of the case, we are open to different scenarios; our only stipulation is that it not be rape or murder. The case could be criminal or civil.

Our company’s website ( will give you a sense of the kind of programming we do. We are not “reality TV” producers – this series for Court TV will be all documentary footage and will in effect showcase the towns and townspeople where the case is taking place, as well as follow a case from start to finish.

Can you list my query and contact info on your blog? Or do you have any cases that fit the bill? If you have any questions, I can be reached via email or at 212/277-3600.

Many thanks. I look forward to hearing from you.

Mikaela Beardsley

Mikaela Beardsley
Stick Figure Productions
6 West 18th Street 11th Floor
NY, NY 10011
212/277-3600 (office)
212/277-3611 (fax)
917/716-5231 (cell)
If anyone does get in touch with Mikaela on this matter, will appreciate your letting Macondo Law know of it.

UPDATE: It appears the same e-mail got around to Skelly at Arbitrary and Capricious as well as to Three Generations of Imbeciles are Enough.

UPDATE (3/29/05): Looks as if Stick Figure Productions is really looking for a young lawyer or a 3L to cast. As Robert Ambrogi states here: "First case: Defending Stick Figure in a bias suit for discriminating against older lawyers." I join that class action.

Tuesday, March 22, 2005

And it's also "Poor Jennifer and Iris!"

How timely! In Rivera v. State of Rhode Island, No. 04-1568 (1st Cir. March 22, 2005) we are once more reminded that there is rarely a duty for the police to protect you from the actions of a non-state actor, certainly not a duty that is actionable under Title 42, U.S. Code, Section 1983, except in very, very rare circumstances. These rare circumstances do not include when the police promise to protect you if you agree to testify against someone in a murder trial, and then don't protect you despite repeated threats against your life and their knowledge of the threats and further promises to protect you, and you are thereafter murdered for your cooperation. As Judge Lynch so aptly puts it:
It would be inhumane not to feel a sense of outrage over Jennifer's death, or a sense of deep sympathy for Iris Rivera who has lost her daughter. But our question is one of federal law, not one of sympathy.
It's all about the Fourteenth Amendment and substantive due process. Hmm! Explain that to Jennifer's mom. When people start realizing that there is no real duty to protect them, they'll stop cooperating, as little Jennifer might have --but for the empty promises of state actors. Then, perhaps, that federal law which Judge Lynch is obliged to uphold will change, if for no other reason than to accommodate the needs of law enforcement.

As Rivera goes on to state:
[...] "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989). That is because the purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other. "The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security," id. at 195, because "[t]he Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes," id. at 196.
Elsewhere, the opinion states:
DeShaney directs that a state's affirmative constitutional duty to protect an individual from private violence arises when there is some deprivation of liberty by state actors. See DeShaney, 489 U.S. at 200 ("The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf."). The state's promises, whether false or merely unkept, did not deprive Jennifer of the liberty to act on her own behalf nor did the state force Jennifer, against her will, to become dependent on it. See Monahan, 961 F.2d at 993 (finding no constitutional liability when the state did not force the plaintiff to become dependent on the state). Moreover, the state did not take away Jennifer's power to decide whether or not to continue to agree to testify. Merely alleging state actions which render the individual more vulnerable to harm, under a theory of state created danger, cannot be used as an end run around DeShaney's core holding.
(footnote omitted)(emphasis added). Somewhere along the writing of this opinion the fact that Jennifer was only 15 years old seems to have lost importance. But then again, "Poor Joshua!" in DeShaney was also a child.

Of course, DeShaney is the very case upon which petioner in Town of Castle Rock, CO v. Gonzales, No. 04-278 relied upon in urging reversal of the Tenth Circuit at oral argument before the Supreme Court yesterday. See our posts here, and here. And see Crime & Federalism post on Rivera v. Rhode Island Illustrates Inadequacy of Current Affirmative Duty Doctrine, which also proposes a solution to current doctrine. See also this post at Appellate Law & Practice, and read the comments to the same.

It Appears it Will Be "Poor Rebecca, Katheryn, Leslie and Jessica"

Judging from this article at -- High Court Wary of Giving Protective Orders Constitutional Protection by Marya Lucas -- on yesterday's argument at the Supreme Court in Town of Castle Rock, CO v. Gonzales, No. 04-278 (see our post here), it appears that the Tenth Circuit will be reversed. Perhaps Justice Ginsburg can write a "Poor Rebecca, Katheryn, Leslie and Jessica" dissent.

First Circuit Quietly Enters a Booker Remand in Antonakopoulos

In United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005), the First Circuit, after rejecting all of the Blakely/Booker claims actually raised by defendant on direct appeal, stated as follows:

There is another type of Booker argument available but which Antonakopoulos has not made: that there is a reasonable probability that the district court, freed of mandatory guidelines, would have given him a lower sentence. Because this case establishes the standard for such a claim, we think it fairer to give Antonakopoulos and his counsel time to consider whether he wishes to advance the argument. If so, the prosecution must have a chance to respond

At sentencing the defendant sought a downward departure based in part on the fact that his son was brain damaged and he had been his son's caretaker. The court determined that others can also provide care, and indeed have done so during his imprisonment. The main grounds on which he sought remand, under Blakely, are now gone. This ground, that of family circumstances, is still open and is not frivolous.

If defendant wishes to pursue this remaining type of Booker resentencing claim, he should advise this court and submit a supplemental brief within ten days, in compliance with our rules, not to exceed 15 pages. The brief should address the standards articulated in the opinion. The government shall have five days to file a response of no greater length. If the defendant does not make such a supplemental filing within the time allotted, he will be deemed to have waived this option and judgment shall enter accordingly.

Antonakopoulos, slip op. at 29-30.

An examination of the First Circuit's Docket in Antonakopoulos shows that Supplemental Briefs were in fact filed thereafter. The Docket also shows that on March 15, 2005 an Order was entered by Judge Bruce M. Selya, Senior Judge Norman H. Stahl, and Judge Sandra L. Lynch, which (as per the docket entry) states as follows:

After consideration of the supplemental briefs filed by the parties, we vacate the defendant's sentence and remand the case to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We intimate no view as to what sentence should be imposed on remand. So ordered."

The docket also reflects that on the same date Judgment was entered by Judge Bruce M. Selya, Senior Judge Norman H. Stahl, and Judge Sandra L. Lynch. The corresponding docket entry states as follows:

Consistent with the court's opinion of February 22, 2005, the conviction of Stelios Antonakopoulos is affirmed. After consideration of the supplemental briefs filed by the parties, the defendant's sentence is vacated and the case is remanded to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). The district court's order for restitution to Mercantile Bank and Trust is, on remand, to be reduced to $100,000. We intimate no view as to what sentence should be imposed on remand.

So Antonakopoulos did in fact result in a Booker remand, contrary to what we had published earlier here at the PRACDL Blog and here in Macondo Law. We thank the folks on the CJAFirstCircuit group for pointing this out to us.

Saturday, March 19, 2005

It was "Poor Joshua!" then and will it now be "Poor Rebecca, Katheryn, Leslie and Jessica"?

It is reported that Chief Justice Rehnquist will be back on the bench on Monday, when arguments are heard in Town of Castle Rock, CO v. Gonzales, No. 04-278. Is this the best time for the Chief Justice to be back on the bench, to defend his earlier decision in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989), the one memorable for Justice Blackmun's heart wrenching dissent in which he wrote "Poor Joshua!" - in reference to the child that the Court found had no substantive due process right to protection from private violence.

Castle Rock is a tragic and shocking story of police ineptitude and indifference, one resulting in the murder of three minor girls, Rebecca, Katheryn, and Leslie Gonzales, killed by their own father. If you want some good reading on Castle Rock, over at Crime and Federalism Norm Pattis has written about it here, and Mike has followed up here and here. And over at SCOTUSblog there's an excellent post by Steven Wu here. The ACLU has reported on the case here.

Behind all the legalese, what is truly at issue is the fear that municipalities will be held accountable for money damages for acts of private violence. In Puerto Rico there are no jury trials in civil cases in the Commonwealth Courts. Damages amounts handed down by judges tend to be stingy. Thus, the opportunity to get the cases into federal court is of great importance to plaintiffs in the shoes of Jessica Gonzales, respondent in Castle Rock.

The Merits Briefs:
The Tenth Circuit's panel opinion, Gonzales v. City of Castle Rock, 307 F.3d 1258 (10th Cir. 2002) is here, and the en banc opinion Gonzalez v. City of Castle Rock, 366 F.3d 1093 (10th Cir. 2004) is here (must scroll down a bit).

The Tenth Circuit got things right. Let's see if the Supreme Court can do the right thing this time around. I believe that this case is clearly distinguishable from DeShaney and that the Court will not have to overrule it for respondent to prevail, as she should.

There's a good article in The National Law Journal - March 9, 2005 on Castle Rock - Supreme Court to Weigh in on Due Process and Domestic Violence – Justices to Decide if Police are Liable, by Marcia Coyle. Thanks to Crime and Federalism for the link. The article has some good observations from Section 1983 guru Sheldon H. Nahmod, whose first ed. (when it was still a single volume) of Civil Rights and Civil Liberties Litigation - The Law of Section 1983 (now in its 4th edition) served as my bible when I worked at the Commonwealth of Puerto Rico Department of Justice - Federal Litigation Division.

Saturday, March 05, 2005

From the First: Judges Lipez and Torruella Disagree with a Critical Aspect of Antonakopoulos' Plain Error Standard for Unpreserved Booker Errors

It did not take long for some in the First Circuit express disagreement with at least part of United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005). In United States v. Serrano-Beauvaix, No. 02-2286 (1st Cir. March 4, 2005) (a case involving, inter alia, an unpreserved Booker claim) the First Circuit (in an opinion written by Judge Lynch) holds that no remand for resentencing is necessary because "Serrano has failed to carry his burden that there is a 'reasonable probability' that he would be sentenced more leniently under an advisory Guidelines system." While Judge Lynch's opinion has some portions that appear to us to even go beyond Antonakopoulos, it is the concurrence by Circuit Judge Kermit V. Lipez, joined by Circuit Judge Juan R. Torruella that is of note in Serrano-Beauvaix.

We commence with Circuit Judge Lynch's main opinion, wherein she states:

We have recently set forth the applicable framework for review of unpreserved Booker claims in Antonakopoulos. Utilizing the four-prong test in United States v. Olano, 507 U.S. 725 (1993), there must be (1) an error (2) that is plain, and it (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings. Antonakopoulos, 2005 WL 407365, at *4. The first two prongs of the plain error test are met whenever the district court treated the Guidelines as mandatory at the time of sentencing. Id. But to meet the third prong of the test, the defendant must persuade us that there is a "reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." Id. "[I]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice under plain-error analysis." Id. at *6 (citations and internal quotation marks omitted).

Serrano relies upon the district judge's statement at the sentencing hearing: "I have to consider the fact that I cannot sentence him to 60 months. The lowest I can sentence him on that particular situation is 63." This statement, he argues, makes it "clear that the district court would have sentenced [Serrano] to 60 months in prison instead of 63 on count one." Not so. Given Serrano's criminal history category and his role as recruiter, and the amount of drugs involved, the court's statement was a simple statement of fact. The statutory minimum, without the enhancements, was 60 months. He was sentenced to 63 months, out of a possible range of 63 to 78 months. Serrano's argument amounts to an assertion that there was such a reasonable probability that the judge would have totally ignored Serrano's role in the offense and prior conviction and that our confidence in the outcome is undermined by the fact that the judge actually considered these two enhancements. Even post-Booker, the district court "must consult those Guidelines and take them into account when sentencing." Booker, 543 U.S. at __, 125 S. Ct. at 767. And so the court had to consider both role in the offense and his criminal history. Serrano has failed to meet his burden.

This sounds as if the guidelines range were presumptively correct. Was this not one of the examples where the First Circuit in Antonakopoulos would remand for resentencing, i.e., when the District Court expressed that it would have imposed a lesser sentence were it not for the mandatory nature of the guidelines?

In a concurrence in Serrano-Beauvaix by Circuit Judge Kermit V. Lipez, joined by Circuit Judge Juan R. Torruella, while agreeing with much of Antonakopoulos, expresses disagreement with a critical part of Antonakopoulos: the requirement that in cases of unpreserved Booker errors defendant bear the burden of showing prejudice.

I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review. Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut. This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts "where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred." Id. at *9.

Judge Lipez then goes on to carefully explain why he favors this approach, and his explanation is certainly the more reasonable and convincing one to us. We hope that the approach urged by Judges Lipez and Torruella is adopted by the en banc Court sometime soon.