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For the first time in a year and a half, the Supreme Court will convene to hear oral arguments in person! Justice Kavanaugh has reportedly tested positive for COVID-19 despite being vaccinated, but oral arguments are still scheduled to proceed as planned.

October 4

Mississippi v. Tennessee
No. 143, Original
Preview by Riven Lysander, Senior Online Editor

In this case of original jurisdiction, Mississippi asks the Court to determine how groundwater laying deep in the earth between two states should be shared. The case arises out of the shared use of an underground aquifer, a natural water source that has been filtered and made potable over thousands of years of trickling down through mineral layers. The aquifer in question—either called the Memphis Sands Aquifer or the Sparta Aquifer, depending on which side of the state line you’re having that conversation—has long supported several states in the region. See Leanna First-Arai, In a Cross-State Aquifer Spat, A View of a Water-Stressed Future, Grist (Sept. 20, 2020), https://grist.org/climate/in-a-cross-state-aquifer-spat-a-view-of-a-water-stressed-future/. These states, including both parties in this litigation, have pumped this precious, filtered groundwater from the aquifer for consumption and production. See id. This pumping, however, necessary to sustain consumption, has created what hydrogeologists refer to as “cones of depression”, which are selective divots in the earth below, caused by overdrawing the water, changing the natural flow of the groundwater. See id. It is from these cones that Mississippi draws its claim: that Tennessee has “forcibly siphoned”—that is, stolen—the groundwater that would otherwise naturally flow to Mississippi.

Mississippi seeks a declaration of its “sovereign right, title, and exclusive interest in the groundwater” in the Memphis-Sparta Aquifer, as well as $600 million in damages caused by resource theft. See Robin Craig, In Term-Opener, Justices Will Hear Mississippi’s Complaint That Tennessee Is Stealing Its Groundwater, SCOTUSblog (Oct. 1, 2021, 9:32 AM), https://www.scotusblog.com/2021/10/in-term-opener-justices-will-hear-mississippis-complaint-that-tennessee-is-stealing-its-groundwater/. This argument is at odds, however, with the long-standing principle of “equitable apportionment,” under which states as co-equal sovereigns have shared rights and responsibilities to a shared natural resource, that has traditionally been applied by the courts. See id. Here, as in Florida v. Georgia, a similar case the Court heard earlier this year involving surface water rights, a Special Master was appointed to conduct a factual investigation and make a recommendation. Special Master Eugene E. Siler, Jr. recommended equitable apportionment, continuing the application of that practice to interstate waters. See Report of the Special Master at 26, Mississippi v. Tennessee, No. 143, (U.S. filed Nov. 5, 2020). Mississippi, however, claims that the Special Master’s report and recommendation failed to take into consideration the importance of state sovereignty over territorial matters. See Exceptions to Report of the Special Master by Plaintiff State of Mississippi and Brief in Support of Exceptions at 18–20 Mississippi v. Tennessee, No. 143, (U.S. filed Feb. 22, 2021). It remains to be seen how a decision in favor of Mississippi would affect not only Tennessee, but the other states that use the aquifer—Texas, Louisiana, Arkansas, Alabama. The Sparta Aquifer: A Sustainable Water Resource, U.S. Geological Survey, Dep’t of Interior (Nov. 2004), https://pubs.usgs.gov/fs/fs-111-02/.

That this case is not the first case in recent Court docket involving water rights between states is potentially concerning. As environmental impacts from climate change, fracking, resource overuse, and other manmade causes continue to arise, it is possible that cases of this nature will become more common. The Court’s determination here, whether it defers to the states to reach an amiable agreement, or affirms Mississippi’s sovereign claim, may therefore impact environmental litigation for generations to come.

Wooden v. U.S.
No. 20-5279, 6th Cir.
Preview by Riven Lysander, Senior Online Editor

Is a crime spree like a trip to the mall? In Wooden v. United States, the Court faces the question of whether sequential criminal offenses that were committed during a single spree-like episode were committed on different occasions—or were more like a single trip to the mall involving visits to multiple stores—for the purposes of sentencing evaluation and enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). See Brief for the Petitioner at I, Wooden v. U.S., No. 20-5279, (U.S. filed May 3, 2021).

In March 24, 1997, petitioner Wooden burglarized a ministorage facility in Dalton, Georgia, taking items from ten separate units in a single building. He was charged with ten counts of burglary for his spree and pleaded guilty to all counts. See id. at 5. After serving his eight-year sentence, Wooden was at home with his wife when police, searching for a theft suspect, stopped at Wooden’s home. See id. Once inside, officers found firearms; in light of Wooden’s felony conviction, they arrested him for being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g). See id. at 5–6. The sentence for this charge ordinarily has a maximum of ten years; if the defendant “has three previous convictions . . . for a violent felony or a serious drug offense,” however, specifically “committed on occasions different from one another,” the defendant is instead subject to a mandatory minimum sentence of fifteen years. Id. at 6 (quoting ACCA (emphasis added)). Thus, the relevant question: does Wooden’s spree of burglarizing ten ministorage units in a single building, for which he has pleaded guilty to ten counts of burglary, count as a single “occasion”, or ten such “occasions”?

Both parties adopt a textual approach, though they define the word “occasion” differently. Wooden argues that his spree is analogous to a trip to a shopping mall. See id. at 13. While at the mall, one might visit different stores—“trying on shoes at the shoe store, browsing a furniture sale, stopping for ice cream, purchasing clothing at a department store”—but one would consider this a “continuous trip to the mall, as having taken place on ‘the same occasion.’” Id. The government argues, however, that “occasion” refers instead to a single temporal point in time; as Wooden could not have been in all ten ministorage units simultaneously, these were ten separate “occasions” rather than a single, continuous one, even if they all arose from the same “criminal opportunity”—a position with which the Sixth Circuit, below, had agreed. See Brief for the United States at 12, 15–21, Wooden v. U.S., No. 20-5279, (U.S. filed June 28, 2021); U.S. v. Wooden, 945 F.3d 498, 504–06 (6th Cir. 2019) (applying guidelines from U.S. v. Hill, 440 F.3d 292, 297–98 (6th Cir. 2006), under which the court considered (1) whether it is possible to determine when defendant completed a “first offense” was completed and began a second one; (2) whether defendant could have “ceased his criminal conduct after the first offense and withdrawn without committing the second”; and (3) whether defendant committed the offenses in in different locations.)

Academics have additionally argued for the petitioner on a policy basis, arguing that adopting Wooden’s interpretation of “occasion” both provides fair notice to the defendant and is supported by the rule of lenity. See Brief for Professors of Criminal Law as Amici Curiae Supporting Petitioner at 23–24, 24–26, Wooden v. U.S., No. 20-5279, (U.S. filed May 10, 2021).

It is interesting to consider this case in light of, for example, mass shootings, which involve multiple victims but is generally considered a single event, even if the defendant ultimately pleads guilty to multiple counts of murder. But to consider Wooden’s spree as a single event could raise further questions: what if he had had to enter another building in the same storage complex to access some of the ministorage units? What if he had taken a break during his spree? How long would the break have to be before the spree could be considered to have taken place on multiple “occasions”?

Where both parties make textual-based arguments, policy considerations may guide the Court’s ultimate decision.

October 5

Brown v. Davenport
No. 20-826, 6th Cir.
Preview by Riven Lysander, Senior Online Editor

A pre-9/11 anti-terrorism statute affecting the standard of review for writs of habeas corpus stands at the center of Brown v. Davenport, a case that arose from a state murder charge.

The respondent, Mr. Ervine Davenport, was on trial for a murder charge in 2008, when he appeared before the jury in shackles. See Brief in Opposition at 4, Brown v. Davenport, No. 20-826, (U.S. filed Feb. 18, 2021). No reason was submitted to the record as to why Mr. Davenport appeared in court in chains in violation of his due process rights. See id. at 4, 7.

At trial, the jury heard facts from the night of the death of the decedent, Ms. Annette White: an inebriated and agitated Ms. White and Mr. Davenport were alleged to have been traveling together in a car when they struggled, and Mr. Davenport caused Ms. White’s death. See id. at 4. Mr. Davenport claimed self-defense, and the issue before the trial court was whether Mr. Davenport committed first-degree murder by intentionally, with premeditation and forethought, killed Ms. White; whether he intended to kill her without premeditation and forethought, thereby committing second-degree murder; or whether he was merely defending himself. See id. at 4–5. After six hours of deliberation over two days, the jury found him guilty of first-degree murder. See id. at 5.

On appeal, critical questions were raised: did the jury see the shackles on Mr. Davenport? If so, was the sight of the shackles mere harmless error, not affecting the ultimate outcome? See id.

During evidentiary hearings three years after the initial trial, five jurors “recalled seeing Mr. Davenport’s waist chain, handcuffs, or ankle shackles during jury selection or trial,” with two more affirming “that they heard other jurors commenting about the restraints.” Id. “Several” also admitted “that the shackles prompted them to think Mr. Davenport might be dangerous” at his murder trial; despite this, however, the jurors stated that the deliberations were unaffected by seeing the shackles. Id. The trial and appellate courts both relied on these juror statements to find that the error was harmless. See id. at 6.

Although the Michigan Supreme Court rejected the lower courts’ reasoning— holding their reliance on juror testimony to be error under Holbrook v. Flynn, 475 U.S. 560, 570 (1986) (holding that “where courtroom security procedures are inherently prejudicial, ‘little stock need be placed in jurors’ claims to the contrary,’ because ‘jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.’”)—it agreed nonetheless that the “inherently prejudicial” shackling was ultimately harmless. Brief in Opposition at 6–7. The Sixth Circuit disagreed with all three courts, granting Mr. Davenport a conditional writ of habeas corpus. See Davenport v. MacLaren, 964 F.3d 448 (6th Cir. 2020).

In considering Mr. Davenport’s subsequent habeas petition, that there was a violation of his constitutional rights was not enough; under the Supreme Court’s harmless error standard in Brecht v. Abrahamson, the error only requires reversal if it “had substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619, 638 (1993). To add to this hurdle, however, is the question that appears before the Court: does satisfaction of the Brecht standard suffice for a petitioner’s ability to obtain habeas relief, or does the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996 present an additional challenge? See Brief in Opposition at 8; Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified in amendments to 28 U.S.C. §§ 2244–67 (1996)).

AEDPA, passed after the initial terrorist bombing of the World Trade Center in 1993 and the 1995 Oklahoma City bombing, the statute not only created provisions that most strictly punishes terrorist activities, but also a provision that prevents the “grant [of] habeas relief to a state prisoner” if his claim was already adjudicated on its merits in state court, specifically unless either the state court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Brief in Opposition at 8–9 (citing 28 U.S.C. § 2254(d)(1)–(2)).

It is now up to the Court to clarify the interaction between the Brecht standard and AEDPA. Mr. Brown, the Petitioner who is the current acting warden of the facility at which Mr. Davenport is being held, contends that a habeas petitioner must satisfy not only the Brecht standard, but that the high deference that AEDPA affords to the determinations of state courts is critical to the outcome of a habeas petition. See Brief for Petitioner at 17, Brown v. Davenport, No. 20-826, (U.S. filed Mar. 8, 2021). Mr. Brown alleges that AEDPA represented a sea change in the approach to state prisoners’ federal habeas claims, noting that “[t]he differences between Brecht and AEDPA matter.” See id. at 17–24; 31. Accordingly, he asks that the Court set aside any independent findings by the Sixth Circuit not based on the state court proceedings. See id. at 42–48. Mr. Davenport continues to seek his freedom.

This potentially historic case—made doubly so by the fact that the state’s case will be argued by the first Arab-American Muslim woman to argue before the Supreme Court—will certainly be one to watch. See Todd Spangler, Michigan Attorney To Be First Arab American Muslim Woman To Argue Before Supreme Court, Detroit Free Press (Oct. 4, 2021, 4:28 PM), https://www.freep.com/story/news/local/michigan/2021/10/04/hammoud-first-arab-american-muslim-woman-go-before-court/5994229001/. The Court’s ruling in this case will not only determine Mr. Davenport’s future, but the future of all other habeas petitions by state prisoners under caselaw and this highly criticized statute.

Hemphill v. New York
No. 20-826, N.Y.
Preview by Riven Lysander, Senior Online Editor

In Hemphill v. New York, the Court faces the question of what evidentiary rights a criminal defendant retains after he has “opened the door” to the admission of responsive evidence. Here, the Court will have to clarify the interaction between the Sixth Amendment’s Confrontation Clause and the Federal Rules of Evidence.

This case arose from the tragic and fatal shooting of David Pacheco Jr., a two-year-old boy who was killed by a stray bullet that punctured his mother’s minivan at a Bronx intersection. See Respondent’s Brief in Opposition at 1, Hemphill v. New York, No. 20-637, (U.S. filed Mar. 1, 2021). The bullet was fired in a nearby altercation involving five men, including a “thin Black man in a blue sweater.” Id.

Prosecutors initially charged a different man, Mr. Nicholas Morris, with the murder; the evidence appeared not to support the murder charge, however, so the case was dropped after Mr. Morris pleaded guilty to possessing a .357 caliber firearm instead. See id. at 3. Law enforcement and prosecutors eventually focused instead on the petitioner, Mr. Darryl Hemphill, after his DNA was recovered from a blue sweater alleged to have been worn by the gunman at the time of the shooting. See id. At Mr. Hemphill’s trial, defense counsel argued that David had been killed by a 9-millimeter bullet, and that such a bullet had been recovered in Mr. Morris’s bedroom just hours after the shooting; effectively, Mr. Hemphill’s defense relied on Mr. Morris’s culpability. Id. Prosecutors argued that this defense created the misleading impression that Mr. Morris’s possession of a 9-millimeter bullet suggested his possession of a 9-millimeter gun; they sought to rebut this impression by introducing evidence of Mr. Morris’s admission of his possession of a .357 caliber firearm. Id. at 3–4.

Ordinarily, such testimonial evidence is barred under Crawford v. Washington, 541 U.S. 36 (2004), which held that testimonial hearsay statements that cannot be cross-examined cannot be admitted into evidence because doing so would violate the Confrontation Clause of the Sixth Amendment. However, the trial court granted prosecutors’ application to admit Mr. Morris’s out-of-court statement, reasoning that Mr. Hemphill had “opened the door” for admission of this evidence by raising it himself. See id. at 4. In particular, New York has held that “a defendant can open the door to otherwise inadmissible evidence by presenting potentially incomplete or misleading evidence that makes it necessary to introduce otherwise-inadmissible evidence to correct a misrepresentation.” Id. at 5 (citing People v. Reid, 971 N.E.2d 353 (N.Y. 2012), and People v.

Ko, 789 N.Y.S.2d 43 (N.Y. App. Div. 2005)). Mr. Hemphill did not challenge this standard, but instead argued that he had not opened the door at all, and that the court had placed “unreliable evidence before the jury.” Id. After Mr. Hemphill lost on appeal, he appears now before to Court to ask it to define what it means to “open the door” to evidence that would otherwise be barred by federal evidentiary rules, requiring him to forfeit his constitutional right to confrontation.

The Court faces an important evidentiary and constitutional question on which the outcome of a child’s murder case could turn. Whether “door-opening” is an exception to the 6th Amendment may also shape many criminal trials to come.

October 6

U.S. v. Zubaydah
No. 20-827, 9th Cir.
Preview by Riven Lysander, Senior Online Editor

In United States v. Zubaydah, the Court faces a question of whether the State Secrets privilege can protect the Central Intelligence Agency’s (CIA) clandestine activities in the face of a defendant’s rights afforded through the trial process.

Abu Zubaydah—born Zayn al-Abidin Muhammad Husayn—was one of the earliest persons of interest captured in the investigation following the attacks on September 11, 2001. Brief for the United States at II, 2, 6, United States v. Husayn, No. 20-827, (U.S. filed July 2, 2021). Mr. Zubaydah, a Saudi Arabian national captured in Pakistan in 2002, was alleged to be “an associate and longtime terrorist ally of Osama bin Laden.” Id. at 2, 6. As the earliest capture post-9/11 that was sent to the United States Naval Station at Guantanamo Bay, Cuba, Mr. Zubaydah was also the first to be subjected to the CIA’s detention and interrogation program involving the use of “enhanced interrogation techniques” (EITs)—a program conducted under a grant of authority to the CIA from President Bush to undertake covert operations ‘to capture and detain persons who posed a continuing, serious threat of violence or death to U.S. persons and interests or who were planning terrorist activities.’” Id. at 2–3 (citations omitted).

Mr. Zubaydah and his defense view the program somewhat differently. Mr. Zubaydah’s drawings from his time in the EIT program—over the course of which he allegedly lost an eye—provide an intimate depiction of his treatment, which included “at least  83  waterboard applications; . . . over 11 days in a coffin-size  confinement box and 29 hours confined in an extremely small  enclosure;  and . . . ‘walling,  attention grasps, slapping,  facial  hold[s],  stress  positions,’  ‘white  noise[,]  and  sleep  deprivation.’”. Id. at 6 (citation omitted); Carol Rosenberg, What the C.I.A.’s Torture Program Looked Like to the Tortured, N.Y. Times (Dec. 4, 2019; updated Oct. 6, 2021), https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html. The first line of Mr. Zubaydah’s brief lays it out still more directly: “[t]his case arises from the CIA’s attempt to gather intelligence through the use of torture.” Brief on the Merits for Respondents Abu Zubaydah and Joseph Margulies at 1, United States v. Husayn, No. 20-827, (U.S. filed July 2, 2021).

Although much of the information from the CIA’s program has been declassified in the two decades since 9/11, Mr. Zubaydah and his attorney, Joseph Marguiles, now appear before the Court to ask it to compel the government to release additional information. Brief for the United States at 3. In particular, the respondents seek to compel discovery “that would confirm or deny whether ‘the CIA operated a detention facility in Poland in the early 2000s’; the alleged ‘use of interrogation techniques and conditions of confinement’ in ‘that detention facility’; and the ‘details’ of Abu Zubaydah’s alleged treatment ‘there’” from two CIA contractors who worked on the program. Id. (citation omitted).

The United States argues that despite the declassification of so much information, that “certain categories of information—including the identities of its foreign intelligence partners and the location of former CIA detention facilities in their countries—could not be declassified without risking undue harm to the national security.” Id. In the United States’ view, the state secrets privilege is appropriate because to confirm or deny information about potential “black sites” would not only risk international comity, but also prove disastrous to our national defense because of the irreparable harm that would be inflicted on American cooperation with foreign intelligence allies, built upon a critical foundation of trust. See id. at 11–12. The district court terminated Mr. Zubaydah’s discovery, agreeing in part with the government and upholding its assertion of the state secrets privilege over “operational details” but rejecting a blanket application of that privilege. Id. at 13–14. The appellate court reversed, however, stating that because the information has been “in the public eye for some years now,” the information involving Poland is hardly a secret whose disclosure would cause “grave damage to national security.” Id. at 14–15 (citations omitted).

Although Mr. Zubaydah requests this information ostensibly for his case against the government, it is not immediately clear why he this information is so critical to his defense; after all, information about his treatment by the government over the course of his long detainment in Guantanamo Bay is no secret. However, it appears possible that Mr. Zubaydah is using the discovery process in this case to obtain information for another case: a criminal complaint against Poland “seeking to hold Polish officials accountable for their [purported] complicity in his [alleged] unlawful detention and torture,” which, he alleges, occurred at a CIA detention facility in Poland.” Id. at 3–4. In that investigation, Poland requested information from the United States under a mutual legal assistance treaty (MLAT) for an investigation into the criminal complaint; the United States denied provision of information under the MLAT on national security grounds. See id. at 4. This led to Poland’s closure of the investigation; Mr. Zubaydah’s application to the European Court of Human Rights, which ultimately ruled in Mr. Zubaydah’s favor and found through “adverse inferences” that Mr. Zubaydah had indeed been held in Poland; and a subsequent reopening of the Polish investigation into Mr. Zubaydah’s initial criminal complaint in Poland. See id. at 4–8.

So far removed from 9/11, when public sentiment heavily favored doing whatever was necessary to catch and punish those responsible, it will be interesting to see the Court’s ultimate decision in this case. It is possible that the Court will view this case as having languished for too long, and Mr. Zubaydah’s time and treatment in Guantanamo as unconscionable—possibly making it a difficult battle for the government to keep this information secret for much longer. The Court may also wonder at why this information is needed at all, however, and reject Mr. Zubaydah’s request. Regardless of the outcome, this highly anticipated case is sure to draw a great deal of attention.

October 12

Thompson v. Clark
No. 20-659, 2d Cir.
Preview by Jacob Orgel, Online Editor

In Thompson v. Clark, the Supreme Court will rule on the proper analytical standard for determining fulfillment of the “favorable termination” prerequisite to initiate Section 1983 civil actions for deprivation of rights. The Court will also determine whether the government or the plaintiff bears the burden of proving the existence of exigent circumstances when the government seeks to dismiss a Fourth Amendment claim for unlawful warrantless entry due to exigency.

Section 1983 allows “any citizen of the United States or other person within the jurisdiction thereof” to bring a civil action against a state government or government official seeking recovery for “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. To bring a Section 1983 case, a plaintiff must first “establish favorable termination” of any pending criminal case against them. Thompson v. Clark, 794 F. App’x 140, 141 (2d Cir. 2020).

The petitioner in the case before the Court, Larry Thompson, brought this Section 1983 action against four NYPD officers for unlawful entry into his home and wrongful prosecution. See Thompson v. Clark, 364 F. Supp. 3d 178, 182 (E.D.N.Y. 2019). The officers were responding to a report of alleged baby abuse in Thompson’s home, and Thompson—a new father—was “intent on protecting his family from what he believed to be an unlawful forced entry into his apartment.” Id. Thompson refused to allow the officers to enter without a warrant, so they handcuffed him and forced him to the ground, and, according to Thompson, beat him. Id. Thompson was arrested and held in police custody for two days. Id. at 184. Thompson was subsequently charged with “obstructing governmental administration in the second degree” and resisting arrest. Id. Importantly, after denying an “Adjournment in Contemplation of Dismissal” because he “ha[d] to see this to the end’ and ‘didn’t think . . . anything should be on [his] record about this,” the prosecutor dismissed all pending charges against him “in the interest of justice.” Id. at 184–85. Thompson then brought this litigation seeking to collect from the officers who he believed had wrongfully detained him and unlawfully entered his apartment.

Relying on Second Circuit precedent in Lanning v. City of Glens Falls, the Eastern District of New York determined that the claims could not proceed in part because Thompson failed to establish that the case against him had been favorably terminated “in a manner affirmatively indicative of his innocence.” Id. (citing Lanning v. City of Glens Falls, 908 F.3d at 25 (2d Cir. 2018)). In an opinion that expressed its frustration with the precedential rule, the Eastern District held that dismissal of the case “in the interest of justice” was too broad to prove plaintiff’s innocence on its own. Id. Where “substantial evidence [indicated] that officers’ warrantless entry was lawful and [Thompson] pushed, or at minimum physically interfered with, a government official”, Thompson could not prove that the obstruction charge was dismissed in a manner that complied with Lanning’s “affirmatively indicative” standard. Id. The Second Circuit affirmed, similarly applying the Lanning standard, and finding Thompson failed to prove the dismissal of his case was “affirmative[ly] indicative” of his innocence. See Thompson v. Clark, 794 F. App’x 140, 140–142 (2d Cir. 2020).

Expressing its reluctance and frustration with Second Circuit precedent once again, the Eastern District also agreed with the government’s argument that Thompson had the burden of proving that exigent circumstances did not exist if he sought to overcome the government’s exigency defense to warrantless entry, and found that he failed to do so. Thompson, 364 F. Supp. 3d at 195–96. The Second Circuit affirmed, citing its own precedent that “a warrantless search, though presumptively unreasonable, ‘cannot serve to place on the defendant the burden of proving that the official action was reasonable.’” Thompson, 794 F. App’x at 142 (quoting Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d Cir. 1991)).

In his petition for certiorari, Thompson asked the Supreme Court to weigh the Second Circuit’s Lanning standard against an alternative approach to determining fulfillment of the “favorable termination” prerequisite to initiation of a Section 1983 action. See Petition for a Writ of Certiorari at i, Thompson v. Clark, No. 20-659 (U.S. filed Nov. 6, 2020). The Eleventh Circuit requires a Section 1983 plaintiff to show only that the criminal proceeding against him “formally ended in a manner not inconsistent with his innocence” for the prerequisite to be satisfied. Laskar v. Hurd, 972 F.3d 1278, 1293 (11th Cir. 2020).

Thompson also requested that the Court reevaluate the Second Circuit’s placement of the burden of proof on a Section 1983 plaintiff when the government pursues a justification of exigent circumstances. See Petition for a Writ of Certiorari at i. Thompson conceded that the Seventh and Eighth Circuits have applied the same burden of proof as the Second Circuit, but noted that the Third, Sixth, Ninth, and Tenth Circuits have held the contrary. See id.

Oral arguments are set for October 12 and will feature a fifteen-minute allotment for the Acting Solicitor General.

Cameron v. EMW Women’s Surgical Center, P.S.C.
No. 20-601, 6^th Cir.
Preview by Jessica Ojeda, Online Editor

Cameron has a become a highly anticipated case as the first abortion-related issue before the Supreme Court following the passage of the highly controversial Texas abortion law, SB 8. However, the Court will not be providing an answer on the constitutionality of the Kentucky abortion law itself, at least not yet. The underlying abortion law at issue, as passed in 2018, effectively requires physicians to end the fetus’s life before performing a dilation and evacuation. Ian Millhiser, The stakes in the Supreme Court’s new abortion case, explained, VOX (Mar. 29, 2021), https://www.vox.com/22356354/supreme-court-abortion-daniel-cameron-emw-womens-surgical-center-kentucky.

Rather, the Court will first hear the case on the narrower issue of whether Kentucky’s Republican Attorney General Daniel Cameron should be allowed to intervene and bring an appeal “when no other state actor will defend the law.” Id. Respondent EMW’s Brief makes three general arguments: 1) That AG Cameron is jurisdictionally barred from intervening because he was bound by final judgment and failed to timely appeal, 2) That the Sixth Circuit did not abuse its discretion in denying intervention, and 3) that having induced the District Court to dismiss him from the suit, Cameron as AG cannot now assume a contrary position as the predicate for intervention. Brief for Respondents at iii-iv, Cameron v. EMW Women’s Surgical Center, P.S.C., No. 20-601 (U.S. filed Aug. 13, 2021).  Petitioners Reply Brief alternatively argues: 1) That the Court has jurisdiction, 2) That Cameron as AG should have been permitted to intervene on behalf of the commonwealth because Kentucky’s sovereign interests were relevant to the timeliness issue and the ordinary timeliness factors favor Cameron, and 3) EMW’s other arguments provide no basis to deny intervention. Reply Brief for Petitioners at i, Cameron v. EMW Women’s Surgical Center, P.S.C., No. 20-601 (U.S. filed Sept. 13, 2021).

Much of the procedural complexity involved in Cameron results from electoral changes. The Kentucky abortion law at issue was first signed into law in 2018 by then-Governor Matt Bevin, a Republican. Millhiser, supra. Bevin subsequently lost his reelection bid in November 2019 and was replaced by Democratic candidate Andy Beshear. Id. Prior to winning the governorship, Beshear was the state’s Attorney General. Id. The result was a political inversion of that which was in play in 2018, with a Democratic governor in charge and a Republican Attorney General.

The Sixth Circuit previously ruled on Cameron in June of 2020, finding the Kentucky abortion law unconstitutional pursuant to precedent from Whole Woman’s Health v. Hellerstedt.   EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785 (6th Cir. 2020); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (Requiring courts to balance the burdens a law imposes on abortion access together with the benefits those laws confer in determining whether a restriction on abortion is unconstitutional).  Beshear had previously removed himself from the case when he was still Attorney General and the newly appointed Secretary of Health Eric Friedlander—a Democrat—declined to appeal the Sixth Circuit’s ruling. Therefore, Cameron now seeks to intervene as the only remaining party interested in upholding the original law.

October 13

Babcock v. Kijakazi
20-480, 6th Cir.
Preview by Neal Billig, Online Editor

David Babcock joined the National Guard in 1970 as an enlisted soldier and later became a licensed pilot who served as a pilot and flight instructor. Brief for Petitioner David Babcock at 16, Babcock v. Kijakazi, No. 20-480 (U.S. filed May 20, 2020). In 1975, he was employed as a National Guard dual-status technician and worked in the position for 34 years. Id. at 1. To work as a dual-status technician, Babcock needed to maintain his status as a member of the National Guard, work in military uniform, and observe military protocols. Id. at 3. Despite the military appearances, Federal law classifies dual-status technicians as a civilian employee for accounting purposes. See 10 U.S.C. § 10216(a)(1)(A), 10216(a)(1)(C).

In 2014, upon retiring, Babcock applied for Social Security Administration (SSA) retirement benefits. See Babcock v. Comm’r of Soc. Sec., 959 F.3d 210, 213 (6th Cir. 2020). SSA granted Babcock’s application but reduced his benefits under the Windfall Elimination Provision (WEP) of the SSA. Id. Babcock was surprised that benefits were reduced because an exception to the WEP exists for payments “based wholly on service as a member of a uniformed service” and he believed his work employment qualified. Brief for Petitioner at 2.

Babcock challenged the SSA determination that he did not qualify under the WEP exception, but the determination was upheld by an Administrative Law Judge (ALJ). The Appeals Council also affirmed the ALJ’s decision. Babcock, 959 F.3d at 213. Having lost his ALJ appeals, Babcock sued in the United States District Court for the Western District of Michigan where the court decided for the SSA Commissioner. See id. The 6^th Circuit, reviewing the decision de novo on appeal, found that dual-service technicians have “dual” status as both members of the National Guard and as Federal civilian employees, but their work and payments as technicians are only as Federal civilian employees who are assigned to a civilian position for SSA purposes. See id. at 216–18.

Attorneys for Babcock view the issues as “a matter of deep financial concern for those who have loyally served our Nation” and, legally, as a “straightforward question of statutory interpretation that is ripe for resolution” as the WEP exception issue has “divided six circuit courts.” Reply Brief in Support of Certiorari at 1, Babcock v. Kijakazi No. 20-480 (U.S. filed Jan. 27, 2021).” Id. The petitioner warns that treating dual-service technicians as falling outside of the uniformed service exception results in “arbitrary and inequitable distinctions” among members of the military. Reply Brief for Petitioner at 14, Babcock v. Kijakazi No. 20-480 (U.S. filed Jan. 27, 2021). The petitioner asserts that the SSA created extra criteria nonexistent in the statute that “[i]f an employee performs their work as a member of a uniformed service, that is all the exception requires.” Brief for Petitioner at 21. Attorneys for Babcock contend that dual-status technicians are no less “military” in nature than their active-duty colleagues in every practical sense—they are overseen by military officers and must maintain military membership. See Brief of Amici Curiae National Veterans Legal Services Program, Reserve Organization of America, and Enlisted Association of the National Guard of the United States in Support of Petitioner at 14, Babcock v. Kijakazi, No. 20-480 [hereinafter Brief of Amici Curiae] (U.S. filed May 27, 2021). The petitioner advocates for a literal interpretation that, because technicians must be in military uniforms, they are in “uniformed service” by definition. Id.

The argument for the Government is that the WEP exception does not apply to any civilian employment. For instance, “like other civil service employees,” technicians can “join a union” or “earn compensatory time off.” Brief for United States in Opposition at 6, Babcock v. Kijakazi, No. 20-480 (U.S. filed Jan. 13, 2021). Although there is a circuit split, the Government contends the Sixth Circuit decision was “consistent with the unanimous recent decision of the Third, Ninth, Tenth, and Eleventh Circuits.” Id. at 6.

The approximately 63,000 dual-status technicians currently in service today make up a staggering 46% of the Army National Guard and 57% of the Air National Guard. Brief of Amici Curiae at 14. While there are large numbers of dual-status technicians, this decision will be relatively narrow in scope as the WEP issue is applicable only to dual-status technicians who began working prior to the mid-1980s.

United States v. Tsarnaev
No. 20-443, 1st Cir.
Preview by Reid Ostrom, Online Editor

Dzhokhar Tsarnaev and his older brother, Tamerlan, detonated two homemade pressure cooker bombs at the 2013 Boston Marathon, killing three people and causing severe injuries to hundreds more. Americans across the country saw the battlefield-like carnage on television and social media, and those around the city of Boston followed along in fear as officers looked for the perpetrators of one of the worst domestic terrorist attacks since 9/11. The brothers gunned down a local campus police office and engaged in a violent confrontation with police officers in their attempt to flee the state. Tamerlan died in the confrontation, but Dzhokhar was eventually captured by the police.

At trial, Dzhokhar Tsarnaev conceded that he participated in the Boston marathon bombings.  But, in an effort to mitigate his potential death penalty sentence, Tsarnaev argued that his older brother Tamerlan was the radicalizing catalyst in the scheme, and intimidated him into going along.. A jury convicted Tsarnaev of all charges and recommended a death sentence—which the district judge imposed.

Tsarnaev appealed his death sentence, raising at least sixteen arguments that his trial was unfair including that 1) the district judge did not adequately question jurors during voir dire about their media exposure related to the bombings prior to the case, and 2) the district court excluded evidence of Tamerlan’s past triple murder two years earlier (the “Waltham evidence”), and 3) his venue-change motion was denied. See United States v. Tsarnaev, 968 F.3d 24, 35, 42 (1st Cir. 2020). The First Circuit agreed with Tsarnaev on issues (1) and (2), vacating his death sentence and remanding to the district court for a new jury for a sentencing retrial.  See id. at 35.

The voir dire issue of juror’s exposure to pretrial publicity is relatively rare for a criminal appeal—most other voir dire issues cases in circuits and the Supreme Court involve racial prejudices. Here there was a tremendous amount of media coverage, including reports that turned out to be false, which could potentially threaten a juror’s ability to decide the case impartially (especially a juror from Boston who lived in fear during the manhunt).

Tsarnaev argues that the district judge’s refusal to conduct “content-questioning” by asking potential jurors “what do you remember hearing about the case?” resulted in a failure to assess jurors’ bias arising from pretrial publicity, therefore violating Tsarnaev’s Sixth Amendment right to an impartial jury. Brief for Respondent at 38, United States v. Tsarnaev, No. 20-443 (U.S. filed Aug. 20, 2021). On appeal to the Supreme Court, the United States argues that a judge has considerable discretion in conducting voir dire and determining whether jurors can lay aside biases or prejudices to render a verdict based on evidence presented in court. See Brief for Petitioner at 23–24, United States v. Tsarnaev, No. 20-443 (U.S. filed June 14, 2021). The trial judge directed jurors to complete a 100-question questionnaire and asked them other questions about their media habits and exposure—this kind of flexible, individually tailored questioning, the United States argues, is more effective than requiring a trial judge to ask a rigid, open-ended question to every potential juror, which may even be counterproductive. See id. at 30.

Regarding the issue of the potentially mitigating Waltham evidence, the United States argues that the unreliable evidence of a different crime Tamerlan committed two years prior is of minimal probative value to Dzhokhar’s guilt in the bombings, and risks confusion and distraction of a “mini-trial” within the trial. Id. at 40. Tsarnaev responds that this evidence was critical to the defense’s central mitigation theory—that his older brother strongly influenced him and took the lead in the bombings. See Brief for Respondent at 17–18. Tsarnaev argues that excluding all evidence of his brother’s prior murders violated his Eighth Amendment right to present mitigating evidence in a capital case, which is implemented by the Federal Death Penalty Act (FDPA). See id. at 15–16. Because this is a capital case, Tsarnaev asserts that his constitutional rights make the bar for admissibility of mitigating evidence low, and any issue of reliability is for the jury to decide. See id. at 27.

In addition to the obvious public interest in the sentencing of a high-profile domestic terrorist, this case also presents important issues of constitutional rights that apply to all criminal defendants and their right to a fair trial. With several intricate issues on appeal, it will be interesting to see which issues the Supreme Court decides to fully analyze, and how willing the Court may be to allow a new sentencing trial for this infamous domestic terrorist.

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Before we break out the turkey and mashed potatoes next week, the Santa Clara Unified School District Board of Trustees met to discuss opening MacDonald High School as well as Adult Ed concerns and voting maps.

MacDonald High School Decisions

At the meeting on Thursday, Nov. 18, the Board heard the recommendations from MacDonald Principal Dr. Vivian Rhone-Lay. She suggested that the high school open for the 2022 school year with 9th grade, adding a new grade each year as students progress to the next grade level.

Board Vice President Vickie Fairchild and Board Member Andy Ratermann were concerned about the school’s offerings like electives, band and athletics. Fairchild was worried about family buy-in, especially around sports. Ratermann said he wants to hear what they’re doing to navigate the challenges of opening with a smaller student body.

“These are growing pains. These problems with the lack of access to electives is only for at the beginning, the first 2 years,” said Superintendent Dr. Stella Kemp. “Once we have a junior and senior class at MacDonald High School, we’re gonna have the same offerings that we have at our other schools and opportunities for our students.”

Dr. Kemp went on to say that freshmen don’t often take that many electives and many aren’t offered to them at other sites until they reach higher grade levels.

The 9th grade opening still passed unanimously.

When it comes to the Grandfathering Rule, “all 2022-2023 9th graders living within the MacDonald High School (MHS) boundary will attend MHS, unless the Grandfathering Rule applies or they are accepted on open enrollment.”

The Grandfathering Rule for MacDonald is as follows: “Parents of rising 9th graders who have another child who will be enrolled at Santa Clara or Wilcox high schools in 2022-23 may request that their rising 9th grader attend the same school as their sibling instead of MHS. Transportation will continue to be provided for grandfathered students through 2024-25. This recommendation is aligned with Agnew Elementary and Huerta Middle School.”

Fairchild was worried about kids going through open enrollment if they don’t wish to attend MacDonald. Ratermann said he didn’t think open enrollment shouldn’t be a problem as it’s been successful in the past.

Dr. Kemp says they are trying to offer families more flexibility by having this Grandfathering Rule in place.

The Grandfathering Rule passed unanimously.

There is a family information session scheduled for Jan. 25, 2022, as well as events in the last week of January that families can attend if they want more information.

Independence Network

Fairchild pulled an item from the consent calendar concerning the service provider agreement with San Andreas Regional Center (SARC).

In September, the Board heard about Independence Network’s lack of caregivers. Thankfully, since then, the adult education program has been able to work quickly with SARC to secure caregivers for some students and more students are expected to get caregivers. If not, they are looking into other ways, including family support in the classroom.

They are also hoping for a caregiver scholarship program to be started through a $70,000 donation from the Friends of the Independence Network — who are dissolving according to Carrie Casto, Principal of Adult Education.

“Any of the families that still need a caregiver and weren’t, for some reason, able to get them through SARC — although at this point we think they’re all gonna be able to get them through SARC — that way, that money is used for our existing students who need caregivers,” said Casto

They will not be pursuing licensing now since they have found a solution to their caregiver concerns.

Trustee Area Voting Maps

Most of the Board and the community who called in liked Scenario 2A, an updated version of Scenario 2 with changes suggested by the Board. While it does have the highest population variance across the trustee areas, it’s still within the legal limits according to Jonathan Salt, F3 Law.

“I have a lot of concerns about 2 and 2A,” said Board Member Dr. Michele Ryan regarding the high population variance. She said the other maps have lower variance and should be considered.

This will come back for Board decision on Dec. 9, said Board President Jodi Muirhead.

The Board asked Salt to bring more options for election sequencing since they were concerned about terms and Trustee Areas being potentially without a representative. Salt also said they will add an attendance overlay to the maps on the website.

Silicon Valley CTE (MetroED) Report

Alyssa Lynch, Superintendent of MetroED, gave a speedy report on the program. They have welcomed new staff and have been able to provide Chromebooks to all students in need through a grant.

They have new instructors this year in dental, electrical and sports medicine. Lynch shared that their MetroED Foundation is offering 17 scholarships. Additionally, enrollment went up this year.

Difference Makers

The Santa Clara Unified Difference Makers for the first quarter are Jose Pacheco Velasquez, Huerta Middle School Counselor, for Certificated Staff; James Gentry from Bracher Elementary School for Classified Staff; Mary Grizzle for Community Member; and Hughes Elementary Office and Health Team for Group or Organization.

Other Business

They ran out of time at the end of the meeting, so the union presidents and staff were not able to give reports. The report on COVID-19 Updates was also skipped but can be found on the agenda.

A highlight from the report is that the free Grapefruit COVID-19 testing location is now open for students, staff, and their families. It is located at Wilcox High School Performing Arts Center and is open Monday – Friday, 7 a.m. – 7:00 p.m.; Saturday and Sunday, 10 a.m. to 2 p.m. They are finalizing hours for the upcoming breaks.

The Board approved the 2022 Refunding Lease Purchase that was discussed previously.

At the start of the meeting, they held a Board Study Session about the 2020 – 2021 District Student Data Review. There was a lot of information so they will schedule another time to go through it all, but they talked about attendance and wellness.

The Board approved the appointment of Tracy Bonde as the new Information Systems Manager and Danielle Ash as the Interim Vice-Principal at Buchser Middle School.

The Board agreed to place an agenda item about the lack of a music room at Cabrillo Middle School.

The Board’s next regularly scheduled meeting is on Thursday, Dec. 9.

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