Archive for the ‘law’ Category

us supreme court 4.10.06 - 8
photo: laura padgett/flickr

Today in the news is this article, titled Justice Ruth Bader Ginsburg Says Supreme Court To Address DOMA This Session. The subject of this post is an update of a pertinent case currently on the SCOTUS docket.

Hollingsworth (petitioner) v Perry (respondent) is a pending Petition for Writ of Certiorari currently on the docket before the Supreme Court of the United States. Perry prevailed by a ruling in the lower court and Hollingsworth now challenges that decision (Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)). The issue is whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Firedoglake covered the Prop 8 trial in depth, and there has been extensive media and blog attention to the case throughout its litigation history in the courts. To reiterate, Prop 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment) passed in November, 2008. Prop 8 was then challenged on constitutional grounds and overturned in United States District Court with an opinion by Judge Vaughn Walker. Finally, on February 7, 2012, in a 2–1 decision, the US Court of Appeals for the Ninth Circuit affirmed Walker’s decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional. That opinion, written by Judge Stephen Reinhardt, is what the petitioner is challenging in the Petition for Certiorari (“cert” or “Petition for “cert”).

As you can see on, in addition to the initial petition, the briefs in opposition (here and here) and the link to the Ninth Circuit opinion, there are 13 Amicus briefs. There are also reply briefs to briefs in opposition.

The petition, the responses in opposition, the replies and the Amicus briefs have been filed in the Supreme Court. Clerks have reviewed them and distributed the incoming documents to chambers for the September 24, 2012 conference. Prior to the conference, Justices read and review incoming (distributed) material, at the rate of about 140 petitions each week, according to this certiorari practice article. During the conference, where only Justices are allowed to be in the room, they will make decisions about what to do with the petitions that they have reviewed. They can grant cert (agree to review the case), deny cert (the opinion ‘below’ stands unaffected), ‘relist and hold,’ where a case is held over for decision at a later date, or invite the view of the US Solicitor General (a CVSG or a Call for the View of the Solicitor General). On October 1, 2012, the decisions will be released in an “Orders List” on the Supreme Court site.

Bottom line in Hollingsworth v Perry: The Petitioner (Hollingsworth) is arguing for a grant of cert and an opinion from the Supreme Court that will set aside the opinion issued by the Ninth Circuit, and the respondent (Perry) is arguing for a denial of cert so that the opinion of the Ninth Circuit remains as the binding authority.

All of the petitions and Amicus (Latin: “friend of the Court”) briefs follow a standard format that contains the following: 1.title page with listed parties; 2. Question Presented; 3. Table of Contents; 4. Table of Authorities; 5. Argument; 6. Conclusion. There is a page limit of 30 pages.

Amicus briefs can only be submitted with specific permission from the court. You can look here to see how it is worded when permission is requested and granted. These briefs are not submitted by parties in the case. They are submitted by parties with interest in the case and outcome. Amicus briefs have been historically associated with various advocacy groups. It is worth noting that the ‘question presented’ in each brief is the lawyer’s opportunity to tell the Court what the issue is; the Court wants to know whether to grant or deny cert, and this is the lawyer’s shot at that. The question presented is persuasively phrased, and in some cases, the persuasion is evident in the Table of Contents and the Table of Authorities as well.

Here are examples, word-for-word, from petitions in this case. These are only snippets:

from Petitioner Hollingsworth, the question for the Court:


Whether the Equal Protection Clause of the
Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

from Respondent Perry, Brief in Opposition, the question for the Court:


Whether it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment for a State to use the ballot-initiative process to extinguish the state constitutional right of gay men and
lesbians to marry a person of the same sex

note on this next one. I found it curious that this next person did not use a spell checker for the question, especially given that this is the Supreme Court.

from Amicus brief of Center for Constitutional Jurisprudence, the question presented:


1. Whether the federal Constitution prohibits the people of a State from defining marriage as it has been traditionally understood, a union of one many and one women, when the procreative function that inheres in such relationships makes
them differently situated from same-sex relationships?

also, from the same brief, Table of Contents, reasons for granting (I of III):


I. The Holding Below Altering the Definition of
Marriage Is Monumentally Important. …………….. 5

A. Equal Protection Analysis Is Only
Triggered If People Who Are “Similarly
Situated” Are Treated Differently. ……………… 5

B. Fundamentally, The Issue Here is Who
Makes The Policy Judgment About the
Purpose of Marriage, The People, or the
Courts? …………………………………………………… 11

same brief, continuing to the Table of Authorities. There is a long list, but here’s the first:



Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ………………………………………….. 19

from Table of Authorities, listing the first few, from Brief of respondents Kristin M. Perry et al. in opposition:

Brown v. Bd. of Educ.,
347 U.S. 483 (1954) ………………………………………… 6
Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) …………………………………. 31, 33
Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) ……………….. 17, 24, 25

from Amicus brief of Public Advocate of the United States, et al., Table of Authorities (listing the first three, and this is amazing):



Genesis 1:26-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Genesis 5:1-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Ecclesiastes 11:5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCOTUSblog has a really nice compilation of the briefs that have been filed and distributed to the Court. Please go here to click on the links. Whether you are a layperson or a legal scholar, there is plenty to read in these documents to update yourself and form your owns thoughts about what could possibly be a United States landmark decision. If nothing else, the documents reveal a bit more about document formats and Supreme Court process.

So You Want to Go to Law School

Posted: September 18, 2012 in law

US Supreme Court
photo: dbking/flickr

There are currently 2024 active cases on the SCOTUS docket. That is to say, 2024 Petitions for Certiorari have been distributed for the September 24, 2012 conference. Some of the petitions have gained public attention and are listed on a SCOTUS blog dot com site, Every single petition on the “petitions we are watching” list is from the paid side of the current SCOTUS docket. There are no IFP (in forma pauperis) petitions listed. The site is sponsored by Bloomberg Law and is not affiliated with SCOTUS. It is a dot-com and not a dot-gov site. It is interesting to note that a case will not qualify for “petitions we are watching” unless a response has been filed to the Petition for Certiorari, usually in the form of a Brief in Opposition (BIO) opposing cert (opposing the court’s grant of review). Additional responses, usually in the form of Amicus briefs (briefs filed with the Court’s permission arguing one side or the other) seem to bolster the chances of a case making this exclusive list. Here is an example, having to do with Prop 8 DOMA, in the pending Petition for Certiorari regarding Hollingsworth v Perry.

The indigent docket (IFP docket) is indicated in the numbering system. Petitions are assigned a number that begins with the year that the final appeal was exhausted in the lower courts, for example 11-XXXX or 12-XXXX. After the year is a dash followed by another number. If that number is greater than 5000, it indicates an IFP (indigent) petition. For random example, an IFP petition might be assigned the number 12-5100.

That the IFP docket constitutes such a large portion of the overall docket (“roughly half”) and yet gains little attention in pre-session publicity and in empirical post-session study alike is something that should be the focus of future Law Review writings. Granted, empirical analysis of the IFP docket is complicated by the lack of available information. Questions posed in IFP cert petitions, for example, are unavailable, as are any briefs that may have been filed.

In addition to IFP petitions having no chance of gaining public attention, there is much strategy involved when it comes to attempts to get the Court to ignore IFP petitions. This article states openly:

Your brief in opposition should be low key, befitting the trivial issue the petitioner has tried to foist on the Court. A tone of bemusement, of a patient adult dealing with a confused child, is about right. You will rarely need the full 30 pages (although a long brief showing in nauseating detail why a petition is uncertworthy may sometimes be thought effective to deaden any spark of interest in the case). “A brief in opposition should be briefly stated and in plain terms” (Rule 15.2), and focused on the precise problem at hand. This is not a place for an extended disquisition on the governing legal principles. As E. Barrett Prettyman, Jr., has warned, if the justices and their clerks finish reading your brief “more impressed with the importance of the case than they were when they finished the petition,” you have made a mistake. Prettyman, Opposing Certiorari in the United States Supreme Court, 61 Va. L. Rev. 197, 198 (1975).

Take pains to deter any would-be amici. You don’t need their help right now. Their participation at this stage would only serve to suggest that the petition raises an issue with broad impact, and would be self-defeating. Amicus support for a respondent — the opponent of certiorari — has been shown actually to increase the likelihood of a grant. Caldeira & Wright, supra, at 824, 828.


While I am certain that the highest Court in the nation is very aware of the various and sundry jockeying-for-position strategies and takes these strategies with a grain of salt, it would be interesting to see some recent studies on just what the strategies are. To me, the suggestion in the blockquote above constitutes bad advice. It is suggesting strategic ways to manipulate the Court’s attention away from legitimate issues and it is dishonest and transparent. I would think that the Court is not interested in games, and that it is unlikely to overlook an important legal issue because some lawyer intoned “bemusement, of a patient adult dealing with a confused child.”

End note and update on the upcoming session, unrelated to the topic of the post but interesting anyway:

The Supreme Court of the United States will be in session again as of October 1, 2012, the first Monday in October. The Marshall of the Court (Court crier) will make the formal announcement by saying the interjection “Oyez” (/ˈoʊjeɪ/) three times in succession. To hear a real example of the announcement, “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.,” go here.

The Court will begin to hear oral arguments in cases that have been “granted and noted.” Granted and noted cases for this October and for Octobers past, as well as information about briefs and transcripts is available here.

Legal Employment for a Recent Law Grad

Posted: September 12, 2012 in law

US Supreme Court
by dbking/flickr

The Supreme Court Of the United States (SCOTUS) has virtually unlimited power that is difficult to quantify. This has been true since the fourth Chief Justice, Justice Marshall. Even though landmark decisions from the United States Supreme Court shape and radically transform our lives, we may not know much about their or path to the Supreme Court in the first place. These decisions often trace back to individual citizens. Miranda, written by Chief Justice Earl Warren in 1966, for example, essentially addressed detainment and torture. Dred Scott, which prevented blacks from citizenship and access to the courts, was voided after the Civil War with the Thirteenth and Fourteenth Amendments.

The Supreme Court

The Supreme Court of the United States is a discretionary court with ultimate appellate jurisdiction, and it has nine Justices: Chief Justice Roberts (hence the name “The Roberts Court”), and Associate Justices: Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. SCOTUS Justices serve on the high Court for life and there are currently three living retired Justices: John Paul Stevens, Sandra Day O’Connor, and David Souter.

The Roberts Court is a conservative Court: Justices Roberts, Scalia, Thomas and Alito are conservative; Ginsberg, Breyer, Sotomayor and Kagan are liberal; Kennedy is considered to be the conservative swing vote.

The Cert Pool and the September 24, 2012 Conference

On September 24, a conference is scheduled in the United States Supreme Court, where a miniscule handful of legal cases on appeal will be chosen from many hundreds for a review. Being in the group (called the “cert pool”) can lead to weeks of insomnia and hopelessness even given the academic awareness of long odds. One is far more likely to be struck by lightning. Out of 8000 or so yearly cases, there may be decisions in only 150 cases, with full written opinions in 60-70, give or take. Statistics on 2011 opinions and dissents are here.

How cases get to the United States Supreme Court


By Frederick Leatherman. Posted with permission. Photo provided and sized by editor at Firedoglake/MyFDL. To join an ongoing discussion about the Zimmerman case, please go here:

Cross posted from Frederick Leatherman Law Blog

Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.

George Zimmerman in Court

George Zimmerman

To keep it simple, we are going to focus on W9’s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.

This is what she said:

The sexual abuse consisted of digital penetration of her vagina and fondling.

She ended it when she was 16 and later told her parents. Her parents told his parents.

She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.

Our client denies that he ever sexually molested her or anyone else.

We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.

We know that many, possibly all of the people in the jury pool, have heard or read her story.

What do we do?


Scales of Justice
image by DonkeyHotey on creative commons, flickr

by Frederick Leatherman. For an ongoing discussion of the issues in the Zimmerman case, please go here:

Cross posted from Frederick Leatherman Law Blog.

W9 is George Zimmerman’s cousin. On Monday, July 16th at 11 am, the prosecution released her tape recorded statements to the media in which she accused George Zimmerman and his family of being racially prejudiced against African Americans and George Zimmerman specifically of sexually molesting her multiple times during a 10-year period that began when she was 6 years old and he was 8. She is now 26 and he is 28. The two families have lived in the same community and socialized together often during that period.

She said the molestation incidents involved fondling and digital penetration of her vagina. She said she finally ended the sexual abuse by getting away from him and running out of the house. She told her parents and they told his parents. Due to pressure from her parents and because she feared Zimmerman would hurt her, she decided not to report the sexual abuse to the police. After that Zimmerman was no longer invited to family social events.

She first contacted the police anonymously two days after Zimmerman shot and killed Trayvon Martin, She told them he was racially prejudiced and capable of hurting people.

They interviewed her a second time after he was in jail charged with second degree murder. When they asked her why she had waited so long to report the sexual abuse, she said it was the first time she felt safe.

A virtual tsunami of outrage and disgust swept the country and the world after the media reported W9’s accusations and various news organizations posted her two tape recorded statements on their websites.

Anticipating the public furor that would follow the release of the tape recorded statements, Zimmerman’s defense attorney, Mark O’Mara, posted the following statement on his website:

The defense moved to block the public release of Witness #9’s statement in a motion filed on June 18, 2012 contending “The content of this statement is not relevant to the issues of this case, and it would not be admissible in the State’s case in chief.” The motion further contends that this irrelevant statement should be withheld from public dissemination [pursuant to Florida’s Sunshine Law] because of the substantial risk that public disclosure will lead to widespread hostile publicity which would substantially impair the Defendant’s fair trial rights, and would pose a serious threat to the administration of justice.

That request was denied on July 13, 2012 by Judge Lester. Because there is a [defense] Motion for Disqualification [of Judge Lester] pending, this morning [Monday, July 16th], we asked the prosecution not to release Witness #9’s statement until there was a ruling on the Motion for Disqualification. This is an appropriate request as, should the motion for disqualification be granted, reconsideration of recent rulings by the judge is appropriate. However, the prosecution elected to make the public disclosure anyway.

Did Mark O’Mara handle this matter appropriately, or did he fumble the ball?

For the following reasons, I contend that he fumbled the ball prejudicing his client.

Let’s review the facts, keeping in mind that W9 made two statements. Statement 1 was about race and Statement 2 was about sexual molestation.

1. 05/24/2012: State files a Request for a Protective Order seeking non-disclosure of W9’s statement;

2. 05/24/2012: Defendant’s concurrence;

3. 06/01/2012: Hearing on the Request for a Protective Order;

4. 06/13/2012: Order Denying Request for Protective Order;

5. 06/18/2012: Defendant’s Motion for Reconsideration specifically mentioning W9’s second statement (accusing defendant of sexual molestation), but not describing the subject matter;

6. 06/29/2012: State’s Response to Motion to Reconsider Disclosure;

7. 07/13/2012: Defendant’s Motion to Disqualify (filed at 11:20 am);

8. 0713/2012: Order Denying Motion for Reconsideration (filed @ 12:02 pm). Judge Lester says W9’s statement is admissible and should be released to the media because race may be an issue at trial;

9. 07/16/2012: Defendant’s Motion for Stay of Order Denying Reconsideration (filed at 10:56 am) arguing that the order must be stayed until the Motion to Disqualify is decided because it was filed first.

10. State releases W9’s two tape recorded statements at 11 am.

Keep in mind that neither side wanted to disclose the sex statement in a pleading that could be viewed by the public. Instead, O’Mara referred to statements 1 and 2, without clarifying that they involved different subject matter.

What we got here is . . . failure to communicate.

Judge Lester apparently thought both statements referred to race because he specifically said the statement might be admissible since race might be an issue. I am not surprised that he assumed both statements referred to race because the discovery released to date contains multiple recorded statements by witnesses concerning the same incident or subject matter.

The order was filed at 12:02 pm on Friday the 13th (oh, the irony), approximately 30 minutes after O’Mara filed his Motion to Disqualify. Therefore, he had Friday afternoon, the weekend, and Monday morning until 11 am to obtain an order directing the prosecution to hold off on releasing W9’s statement 2 until the matter could be reconsidered, but he did not git ‘r done.

He also did not appeal the order to the Court of Appeals.

The problem was further complicated by the judge going on vacation this past week and next week. Therefore, O’Mara had to act Friday afternoon. However, even if Judge Lester had been available Monday, he could not have acted on the motion to stop the release of W9’s statement before the prosecution released it, since the motion was filed only 4 minutes before the statement was released.

What should have been done?

An emergency oral motion and argument via conference telephone call on Friday afternoon seems to be the most obvious solution, but it did not happen. Alternatively, an emergency request for a stay before the presiding judge on Monday morning might have worked, or an emergency appeal to the Court of Appeals.

O’Mara did not attempt any of these options.

Will the evidence be admissible at trial?

Not during the State’s case in chief because it does not fall into one of the categories of admissible uncharged misconduct evidence that is admissible pursuant to Rule 404(b). If and only if the defendant were to open the door by introducing evidence that he has a law abiding, peaceful and non-violent nature, would the prosecution be able to march through the open door and confront him with W9’s accusation that he was a child molester. That is extremely unlikely to happen.

Therefore, there is no good reason to believe the evidence will be admitted at trial.

Should W9’s statement have been released to the media?

Probably not, under Florida Freedom Newspapers Inc., v. McCrary, 520 So.2d 32, 35 (Florida 1988) because:

(a) restricting public access to it was necessary to prevent a serious and imminent threat to the administration of justice;

(b) no alternative, other than a change of venue would protect Zimmerman’s right to a fair trial; and

(c) closure would be effective to protect Zimmerman’s right to a fair trial, without being broader than necessary to accomplish that purpose.

How much damage has been caused by the release of the statement?

How does one unring a bell rung round the world? The damage to Zimmerman’s defense is incalculable and the parties will not know how far and wide it may have spread until they attempt to select a jury.

Will they be able to select a jury?

Yes, I believe they will be able to eventually seat a jury of people who claim not to know about W9’s allegation or, if they do, they will claim to be able to disregard it in deciding whether the State has proven Zimmerman guilty of murder in the second degree beyond a reasonable doubt.

Sayin’ it’s so, don’t mean it’s so.

If he is convicted, will this be an issue on appeal?

Not likely. If they are able to seat such a jury and it convicts Zimmerman, a reviewing court will assume the jury followed the law and did not consider W9’s allegation in deciding the case.

If he is convicted, could this be an issue raised as an ineffective assistance of counsel claim in a state or federal habeas petition?

No, for the same reason.


This was an avoidable mishap that never should have happened. Mark O’Mara bears the responsibility for letting this issue slip through his fingers. But for being so busy cranking out his groundless Motion to Disqualify Judge Lester, he might have had the time and the energy to correct the problem before 11 am on Monday morning.

The convergence of coincidences is remarkable, however, almost as if this happened according to “God’s Plan.”