Another Season Preview

Ah, it's October. Both the college and pro football seasons are firmly underway, while in Europe the soccer season is in full swing, both domestically and internationally. But there's one more fall milestone to come around - First Monday, the opening of the Supreme Court's term.

When Chief Justice Roberts brings the gavel down on Monday morning for the Court's first round of oral arguments, it will kick off a term that's full of interesting cases. And, of course, the Court has a revised membership, with Justice Sotomayor taking over Justice Breyer's spot. Will things change or will it be more of the same? Only time will tell. Here are a few particularly interesting cases on the docket.

First up, next Tuesday, is a case that blends two of my areas of interest - criminal law and the First Amendment. The issue in US v. Stevens is whether a federal statute that bans the commercial sale of videos depicting intentional animal cruelty violates the First Amendment. As Jacob Sullum at Reason explains:

Although President Clinton said when he signed the law that it should be used to prosecute people only for material akin to the "crush videos" that provoked it, all three cases brought so far have involved footage of dog fights. In the case before the Supreme Court, Robert Stevens, a Virginia pit bull enthusiast, received a three-year prison sentence for selling two videos showing pit bulls fighting and one showing them hunting wild boar.

The Government is arguing, as with child porn, that the videos document criminal activity and thus lack First Amendment protection. One problem, however, is that the statute deals with things illegal anywhere and at any time, so it covers Stevens's videos that were shot in Japan, where dog fighting is legal, and in the United States in states where it was once legal. How the Court deals with a case that pits speech that most of us find revolting against the First Amendment rights of the speakers is always interesting.

Second up is a case to be argued November 4 that involves some horrific behavior that might go unpunished. In Pottawattamie County v. McGhee, the behavior at issue came from two prosecutors, as Radley Balko at Reason explains:

A prosecutor manufactures evidence in order to win a conviction. After the convicted serves 25 years in prison, exculpatory evidence pointing to another perpetrator surfaces. The convicted is released. Should he be able to sue the prosecutor who concocted the false evidence used to convict him?

Believe it or not, it's still an open question. . . . The facts of the case aren't in dispute. In 1978, a retired Iowa police captain was killed by a shotgun blast while working as a private security guard. Prosecutors Joseph Hrvol and David Richter then worked with local police to manufacture evidence against the two chief suspects, Terry Harrington and Curtis McGhee, Jr. The two men were convicted of the murder in separate trials, and each was sentenced to life without parole.

After their convictions were vacated in state court, they sued the prosecutors for manufacturing and presented false testimony in court. Here's the problem - prosecutors (and judges too, for that matter) have absolute immunity for things they do in court. Doesn't matter what they do, they cannot be civilly liable (criminally, yes). So, one issue is when the constitutional violation takes place - prior to trial, when the evidence is fabricated, or at trial, when it's introduced? How the Court answers that question may resolve the case.

Lest you think that the case is just about money, consider this bit of info from the respondents' (the guys who went to prison) brief (at page 56):

The most notable thing about amici’s lengthy catalog of supposed remedies, however, is that petitioners have not faced any of them. The highest court in the State of Iowa found that petitioners had violated the Constitution by suppressing exculpatory evidence. Harrington v. State, 659 N.W.2d 509, 521-25 (Iowa 2003). What consequences befell the prosecutors for that unconstitutional action? Petitioners did not face so much as a state-bar investigation, and they remain members in good standing of the Iowa bar in private practice in Council Bluffs. 'Remedies' that go unused when serious, documented prosecutorial misconduct comes to light are little better, and perhaps worse, than no remedies at all.

In other words, this is the only venue really available to right this wrong. Sadly, that's the situation in lots of cases, thus the outcome of this case could have serious ripples throughout the criminal justice system.

Finally, we have a case that will draw a lot of attention as it gets set up for oral argument next year. This week, the Court announced that it would decide, in a case out of Chicago, whether the Second Amendment's individual right to bear arms, recognized a couple of years ago in the Heller decision, applies to the states as well as the federal government.

Why is that an issue? Because the Bill of Rights, by its terms, generally applies only to the federal government. Starting in the last century, however, the Court has "incorporated" most of the rights there to apply to the states via the Fourteenth Amendment. Most, but not all. The right to an indictment, for example, has never been incorporated. Long ago, the Court held that the Second Amendment did not apply to the states, but that was before Heller more concretely defined what the Second Amendment actually meant. I expect the Court will apply Heller to the states, but you never know.

Of course, that's only a few of the cases coming down the pike this term. Ain't October great?