Vol. 10, No. 5	Covering Cases Published in the Advance Sheets through February 3, 2003

Highlights of this Issue:

Winds of Change Revive Batson Challenges

• This week there were a series of cases that suggest an emerging reappraisal of the courts’ willingness to accept pro-forma “race-neutral” justifications to explain the use of peremptory challenges to exclude persons of a particular race from serving on a jury. In Miller-El the Supreme Court issued a surprisingly harsh criticism of decisions by both the Texas courts and the Fifth Circuit for ignoring strong evidence of racial bias in the selection of a nearly all-white jury that convicted the defendant, an African American, of murder. The decision also clarified the standards for issuing Certificates of Appealability (COA) to state prisoners seeking Federal habeas relief. Warning against a premature shutting of the door on such appeals, the majority emphasized that the proper question before the court of appeals should be “the debatability of the underlying constitutional claim, not the resolution of that debate” - a rather sharp departure from the prevailing practice of most of the courts to collapse into a single inquiry the appealability issue and the actual merits of the appeal.
  
  
• After an earlier remand, and the Magistrate’s inability to assess in retrospect the credibility of the prosecution’s “race neutral” explanations for striking two blacks from the jury, the Second Circuit ordered a new trial in the Thomas case - noting that “the credibility of an attorney offering a race-neutral explanation is at the very heart of [the Batson] analysis.”
  
  
  
  
• In both Allen and Bui, the Fourth and Eleventh Circuits, respectively, reversed rulings by district courts and found that the inmate-appellants had been denied equal protection of the law in violation of Batson through the prosecution’s use of peremptory challenges to strike large numbers of African-Americans from the jury pool without providing credible race-neutral reasons for such strikes.
  
  

The Continuing Battle over the Second Amendment

• Taking sharp issue with a recent decision by a different panel, the Ninth Circuit, in Nordyke, again opened up the debate on the scope of the Second Amendment, here “reluctantly” upholding a county ordinance that banned the possession of firearms - but unequivocally endorsing the “individual rights” view of the Second Amendment, rather than the “collective rights” view.

Police Misconduct and the Right to Counsel - Revisited

• In First Defense, the Seventh Circuit emphatically rejected District Judge Shadur’s recent ruling that the First Amendment gave a legal aid organization and its witness clients who were being held in police custody the right to confer with each other.

This week we continue our review of some of the principal features of the proposed new domestic terrorist bill entitled the Domestic Security Enhancement Act of 2003. Titles II and III of that Act make clear that the DOJ wants to establish what is tantamount to a “secret police” with virtually unlimited surveillance capacities and very little judicial supervision.

Miller-El v. Cockrell, No. 01-7662 (U.S. Sup.Ct. 02/25/2003) (Justice Kennedy)

By a vote of 8 to 1, the Supreme Court issued a ruling that is destined to have a far reaching impact on both habeas litigation and on the continuing battle over the use of race as a factor in jury selection. (It may be more accurate to report the split among the Justices as 7-1/2 for the decision and 1-1/2 against - since Justice Scalia’s concurring decision was, at best, a grudging and pained vote in favor of the majority’s ruling; and much of what he wrote on the racial overtones of the jury selection issue coincided with the views of his normal lockstep partner, Justice Thomas - the lone dissenter in the case.)

Ever since his conviction for murder in 1986, the petitioner, Thomas Miller-El, a black, has been seeking to prove that he was denied a fair trial because the prosecutors had improperly excluded 10 of 11 qualified African-Americans from serving on his jury, in violation of both the Equal Protection Clause and the rule laid down by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986).

After the Texas state courts denied his appeals, Miller-El sought habeas relief from the Federal courts. The district court for the N.D.Tex. concluded that Miller-El had failed to establish a constitutional violation warranting habeas relief under the standards established by Congress in 1996 under the Antiterrorism and Effective Death Penalty Act (AEDPA). Miller-El then sought a Certificate of Appealability (COA) from the Fifth Circuit pursuant to the requirements of 28 U.S.C. § 2253(c)(1) and (2).

In a decision reported at Miller-El v. Johnson, 261 F.3d 445 (5th Cir. 2001) (Miller-El I), the Fifth Circuit held that there was insufficient merit to Miller-El’s case, and it denied him a COA. A week before Miller-El was scheduled to be executed, the Supreme Court granted certiorari; and, in the instant decision, the majority concluded that he should have granted a COA so he could at least present to the Circuit Court his constitutional challenge to the composition of his jury.

Section 2253(c)(2) provides that a COA “may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” As a formal legal matter, the case framed and answered a single technical question: How are the Federal appeals courts to determine whether the applicant has made the requisite “substantial showing” of a denial of a constitutional right? In responding to that question, the majority explained:

“At issue here are the standards AEDPA imposes before a court of appeals may issue a COA to review a denial of habeas relief in the district court. Congress mandates that a prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic right to appeal a district court's denial or dismissal of the petition. Instead, petitioner must first seek and obtain a COA. In resolving this case we decide again that when a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. Slack v. McDaniel, 529 U.S. 473, 481 (2000). Consistent with our prior precedent and the text of the habeas corpus statute, we reiterate that a prisoner seeking a COA need only demonstrate 'a substantial showing of the denial of a constitutional right.' 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Slack, supra, at 484. Applying these principles to petitioner's application, we conclude a COA should have issued.”

What is particularly significant about this decision was the Court’s warning that Federal appeals courts must not abdicate their responsibility to scrutinize state-court criminal proceedings for constitutional error - a warning that could help reopen Federal courthouse doors that many appellate judges have closed through stringent interpretations on the new limits on habeas corpus review. While the majority acknowledged that Congress had rewritten the habeas corpus statutes to require greater deference by Federal judges to state-court determinations, “deference does not imply abandonment or abdication of judicial power. Deference does not by definition preclude relief.” (Emphasis added).

The majority concluded that the Fifth Circuit had misapplied both the facts and the law in refusing to grant Miller-El a COA. In Miller-El I, the Fifth Circuit said that the petitioner had failed to demonstrate that the Texas courts’ earlier rejection of his appeal was both unreasonable and “contrary to clearly established federal law as determined by the Supreme Court.” However, Justice Kennedy wrote that standard is intended for the ultimate determination of a habeas petition’s merits, not for the appealability stage. He wrote:

“Before the issuance of a COA, the Court of Appeals has no jurisdiction to resolve the merits of petitioner’s constitutional claims. . . . [A] COA is a separate proceeding, one distinct from the underlying merits. . . . The Court of Appeals should have inquired whether a ‘substantial showing of the denial of a constitutional right’ has been proved. Deciding the substance of an appeal in what should only be a threshold inquiry undermines the concept of a COA. The question is the debatability of the underlying claim, not the resolution of that debate.”

Applying those standards to the facts of this case, the majority criticized the Fifth Circuit’s interpretation of the evidence presented by Miller-El as “dismissive and strained” and said it had “ignored” some of the evidence before it. Not only did the prosecution remove most black prospective jurors, but the blacks on the panel were subjected to more searching questioning on their views about the death penalty than were the whites. Based on the evidence presented, Miller-El had clearly shown that the evidence of bias was at least debatable - but the majority concluded that the lower courts “did not give full consideration to the substantial evidence” that he had presented. Thus the decision of the Fifth Circuit was vacated and the case remanded.

Although the majority did not resolve the ultimate merits of Miller-El’s constitutional bias claim, it certainly made clear its view that both the Texas courts and the lower Federal courts had ignored strong evidence of bias in the selection of Miller-El’s jury. Noting that an overwhelming majority of the Dallas County prosecutor’s challenges to prospective jurors were used to exclude blacks from the panel, Justice Kennedy, writing for the majority, said it was clear that “the culture of the district attorney’s office in the past was suffused with bias against African-Americans in jury selection. . . . Even if we presume at this stage that the prosecutors in Miller-El’s case were not part of this culture of discrimination, the evidence suggests that they were likely not ignorant of it.”

After reviewing the same facts, Justice Thomas wrote in this dissent that the defense’s evidence of historical bias was “entirely circumstantial” and did not constitute “anything remotely resembling ‘clear and convincing’ evidence of purposeful discrimination.” Justice Scalia gave some support to that view by calling the merits of the issue before the Court a “very close case.”

U.S. v. Thomas, No. 00-1593 (L) (2nd Cir. 02/19/2002) (Judge Jacobs)

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment forbids a prosecutor from using peremptory challenges to exclude African-Americans from jury service because of their race. The Court then articulated a three-step process for proving such violations. First, a defendant must establish a prima facie case of discriminatory purpose by showing pattern of peremptory challenges of black jurors. Second, the prosecutor may rebut that prima facie case by tendering a race-neutral explanation for the strikes. Third, the court must decide whether that explanation is pretextual.

One of the problems with proving a Batson claim has been the level of proof required to prove that the prosecutor acted in a discriminatory manner. In 1995, the Supreme Court issued a ruling that took much of the bite out of Batson. In Purkett v. Elem, 514 U.S. 765, 767-68 (1995), the Court held that, once the defendant has presented a prima facie case of discrimination, the prosecution’s burden of defeating that claim is not great: “[The prosecutor’s burden] does not demand an explanation that is persuasive, or even plausible. . . . The issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” (Elem, id., at 767-68).

In a caustic dissent in Elem, Justice Stevens accused the majority of “replacing the Batson standard with the surprising announcement that any neutral explanation, no matter how 'implausible or fantastic,' even if it is 'silly or superstitious,' is sufficient to rebut a prima facie case of discrimination." (Elem, id., at 775).

Because the Elem “implausible” standard makes proving Batson violations extremely difficult, a decision such as the instant one, which vacated a conviction based on alleged Batson violations, is noteworthy. It is also one of a number of recent cases that suggests that the courts may finally be coming to grips with the fact that the Elem standard is unrealistic - and possibly self-defeating.

The appellants in this case were two of a number of African-American defendants who were convicted at trial of a number of Hobbs Act robberies and related crimes; and they were sentenced to 42 years and 30 years, respectively, in prison. Magistrate Judge Simon Chrein presided over the jury selection, with the consent of the defendants. During those jury selection proceedings, the Government used its peremptory challenges to strike from the jury one Latino and four African-Americans.

Two of those strikes were the subject of an earlier appeal in U.S. v. Thomas, 303 F.3d 138 (2nd Cir. 2002) (Thomas I). The specific details of those strikes and the nature of the legal challenges raised are more fully explained in the three briefs filed in this case by New York attorney, Richard Ware Levitt (whose Annual Second Circuit Criminal Law Update is posted on our Web site). His Brief and Reply Brief in Thomas I and his Supplemental Brief filed in the instant case have all been posted on the Member's section our Web site.

The appellants argued principally that the prosecutor had violated the equal protection principles established in Batson when he exercised peremptory challenges to strike two prospective jurors who were African-American. After carefully reviewing the record, the Second Circuit concluded, in Thomas I, that the magistrate’s findings of a lack of discriminatory intent were “insufficient.” It thus remanded the case back to the district court to “supplement the record” and “to solicit from [the magistrate] credibility findings regarding the prosecutor’s proffered explanations for exercising [the questioned] peremptory challenges.” In remanding the case, the Court specifically noted that “if, because of the passage of time, the magistrate judge can no longer make the findings necessary, he will so state, in which case a new trial may be warranted.”

Although the Magistrate attempted to refresh his recollection from the record, he was hampered by the passage of nearly three years and thus unable to give the Second Circuit any enhanced recollection of why he had originally rejected the appellants’ Batson challenges. Under those circumstances, the Second Circuit stated, simply:

“Here, the magistrate judge was unable to make any findings as to the credibility of the government's stated reasons for challenging [the two stricken] jurors. This case thus seems to fall into the category of those in which the passage of time renders unavailable the findings that are mandated. The passage of time that explains the inability to make findings, however, does not obviate them. Because defendants were convicted by a jury that was not selected according to the Constitution, we must remand for a new trial.”

IN BRIEF

Halfway House Designation: Ashkenazi v. Atty. Gen. of the U.S., Civ. No. 03-062(GK) (D.D.C. 02/24/2003) - In one of a growing number of such decisions, District Judge Kessler granted the plaintiff-inmate’s motion for a preliminary injunction, barring the BOP from re-designating him to a prison camp from a halfway house pursuant to a new BOP policy, on the grounds that such a change would violate the inmate’s rights under the Ex Post Facto Clause of the Constitution. We have also posted on our Web site a copy of the Federal Public Defender’s amicus brief that was filed in this suit.

In the same vein, see also Mabel Ferguson v. Attorney General Ashcroft, Civ. No. 03-133-D-M3 (M.D.La. 2/24/2003), and Deborah Lou Howard v. Attorney General Ashcroft, Civ. No. 03-123 (M.D.La. 2/24/2003).

Proffer Statements: U.S. v. Orlandez-Gamboa, No. 02-1674 (2nd 2/20/2003) - Reversing district court and holding that Rule 410(4) of the Fed.R.Evid. does not bar the use, at a drug trafficking trial in New York, of statements made by an alleged Columbia drug kingpin during sentencing negotiations in Columbia, on the grounds that Rule 410(4) does not apply to statements made to prosecuting authorities in foreign jurisdictions.

Sentencing: U.S. v. Norris, No. 02-3047 (10th Cir. 02/19/2003) - Because the defendant's convictions were punishable by terms exceeding one year due to the possibility of a departure, the district court’s ruling which denied a motion to dismiss an indictment for lack of a qualifying conviction under 18 U.S.C. § 922(g)(1) and which and applied a four-level enhancement to his base offense level for possessing a firearm in connection with another felony was affirmed; U.S. v. Garcia, No. 01-51150 (5th Cir. 02/21/2003) - U.S.S.G. § 5G1.2(d) requires that the district court impose consecutive sentences to equal the "total punishment" prescribed by the guidelines, when the maximum sentence required by the substantive criminal statute falls short of the minimum sentence required by the applicable Sentencing Guideline range.

The Domestic Security Enhancement Act of 2003 - Part III

Last week, we reviewed some of the significant features of Title I (“Enhancing National Security Authorities”) of the proposed Domestic Security Enhancement Act of 2003, which the Department of Justice has been privately circulating to selected Members of Congress. This week we note some of the principal features of Title II (“Protecting National Security Information”) and Title III (“Enhancing Investigations of Terrorist Plots”). If enacted, the DOJ and its agents could truly call themselves the “Secret Police” - since secrecy and elimination of judicial review are key components of these Titles.

We note that the 87-page draft bill (herein “Patriot II”), together with an accompanying 33-page section-by-section analysis of the bill (herein the “DOJ Analysis”) have been posted on the Member’s portion of our Web site and can be accessed by going to the statutes page of the Anti-Terrorism section.

Section 201: Prohibition of Disclosure of Terrorism Investigation Detainee Information. Complaining that disclosure of information that certain persons have been detained could hamper Federal investigations, the DOJ has proposed a specific exemption under the Freedom of Information Act that would make clear that the Government “need not disclose information about individuals detained in investigation of terrorism.”

Section 204: Ex Parte Authorizations Under Classified Information Procedures Act (CIPA). At the present time, the law provides that the courts “may” permit the Government to make a request for a protective order covering the submission of sensitive evidence ex parte and in camera. The DOJ now wants to remove that discretionary role of the courts by amending CIPA to provide that henceforth, when the DOJ asserts the need for a protective order, the courts “shall” grant that order.

Section 206: Grand Jury Information in Terrorism Cases. This provision would amend Rule 6(e)(2)(B) of the Fed.R.Crim.P. by expanding the categories of persons who would be prohibited from disclosing information about grand jury proceedings. The present Rule covers grand jurors, interpreters and court reporters. The new Rule would add “witnesses and persons to whom subpoenas are directed” subject to the same secrecy rules “where serious adverse consequences may otherwise result.”

Section 302: Collection and Use of Identification Information from Suspected Terrorists and Other Sources. While current law allows the DOJ to collect DNA evidence from persons convicted of certain crimes, this provision would authorize the DOJ to collect, analyze and maintain DNA evidence from persons suspected of terrorism in a DNA database.

Section 303: Establishment of Database to Facilitate Investigation and Prevention of Terrorist Activities. This provision would authorize the Attorney General to use the DNA database “to detect, investigate, prosecute, prevent, or respond to terrorist activities, or other unlawful activities by suspected terrorists.”

Section 311: State and Local Information Sharing. This provision would specifically authorize the sharing of “consumer credit information, visa-related information, and educational records information” with state and local law enforcement authorities (who are sometimes the most aggressive violators of a suspect’s civil rights).

Section 312: Appropriate Remedies with Respect to Law Enforcement Surveillance Activities. During the 1970's and 1980's, a number of local law enforcement agencies (such as the New York City Police Department) entered into consent decrees that limited them from gathering information about organizations and individuals that they suspected were engaged in criminal wrongdoing. (See, e.g., Handschu v. Special Servs. Div., 605 F.Supp. 1384 (S.D.N.Y. 1985)). This provision would automatically - and without any judicial review - “immediately terminate most decrees that were enacted before September 11, 2001 (including New York City’s).”

Section 321: Authority to Seek Search Warrants and Orders to Assist Foreign States. This provision would specifically authorize the United States to seek and obtain search warrants, pen register/trap and trace orders and similar surveillance orders in response to the requests of foreign governments (including, we assume, those whom we bribe to make such requests).

Section 322: Extradition Without Treaties and for Offenses Not Covered by an Existing Treaty. The title of this provision speaks for itself: it would allow the U.S. to extradite persons for crimes not included in treaties with those countries and it would even allow the U.S. to extradite persons for crimes even in the absence of an extradition treaty (which we assume will be accomplished by parachuting those persons into countries such as Cuba, Libya and Iraq - so they no longer clutter up our prisons and jails).

Next week we will conclude our analysis of Patriot II by looking at some of the key provisions of Titles IV and V of the proposed legislation.

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