How Appealing Extra

How Appealing Extra

Tuesday, August 10, 2010

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August 10, 2010


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - The White House is not likely to rush into appointing a permanent successor to Elena Kagan as solicitor general after her elevation to the U.S. Supreme Court, according to legal sources in Washington.

Kagan, sworn in as the court's newest associate justice Saturday, served as solicitor general, the Obama administration's chief legal advocate, for just over a year.

Despite her confirmation appearing to be a foregone conclusion for weeks, sources familiar with the process say the White House does not have a solicitor general nominee lined up.

The lack of quick action on appointing a permanent successor means acting solicitor general Neal Katyal, one of two frontrunners for the position, will probably remain in his current capacity well into the court's October 2010 term.

Even if Katyal were to get the nod and the White House were to nominate him as soon as the Senate returns from its summer recess in September, it's highly unlikely he could be confirmed in time for the start of the term on Oct. 4.

The other favorite for the permanent job is Donald B. Verrilli Jr., who currently serves in the White House.

Katyal served as Kagan's deputy, a political appointment, and has argued eight cases before the court. There is recent precedent for an acting solicitor general serving for an extended period. During the Clinton administration, Walter Dellinger was acting solicitor general for the entire 1996 term.

For Katyal, the one possible obstacle should he be nominated is that some conservatives have attacked his role in representing detainees at Guantanamo Bay.

As a Georgetown Law Center professor, Katyal argued and won one of the key detainee rulings before the Supreme Court. In the 2006 ruling, the court held 5-3 that the military commissions set up by the Bush administration to try detainees violated the Geneva Convention. Hamdan v. Rumsfeld, 548 U.S. 557.

Verrilli, an experienced Supreme Court advocate, was among those considered for the solicitor general position when President Barack Obama was first elected, according to prominent appellate lawyers in Washington.

Before joining the Obama administration, Verrilli headed Jenner & Block's Supreme Court practice. He has argued 13 cases before the court on both business and pro bono matters.

Verrilli was appointed Associate Attorney General, the No. 3 position in the Justice Department, when Obama took office, but moved over to the White House in early 2010 to be a senior counsel.

Other names mentioned in connection with the job - but with less regularity - include Paul Smith, a senior partner at Jenner & Block, and David Frederick, a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel.

Monday, August 02, 2010

© 2010 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

August 2, 2010


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Although the U.S. Supreme Court issued three much-discussed rulings last term trimming back the protections for defendants during police interrogations, criminal lawyers say they are unlikely to have much impact on the ground.

A combination of police using their interviewing expertise to skirt the law, defendants realizing they have a right not to talk and the narrow issues tackled by the justices mean the three decisions will affect only a small number of cases, according to both prosecutors and defense attorneys.

All three somewhat narrowed the protections afforded to defendants by the landmark 1966 case, Miranda v. Arizona, 384 U.S. 436, in the which the court first held that interrogators had to inform a suspect of his 5th Amendment right to an attorney before conducting an interview. If the defendant does not ask for a lawyer, the statements can be used at trial only if he voluntarily waives his right to counsel.

Police, prosecutors and some judges have been critical of the ruling over the years, saying it unjustifiably hindered efforts to secure confessions. The Supreme Court has returned to the issue in various cases over the years, tweaking the law in favor of police while stopping short of major changes.

The three cases in the term that just ended were part of that trend.

"It's an indication the court is willing to consider trimming back around the edges," said Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, a conservative legal group. "I don't think there's any danger of the court overruling Miranda."

In February, the court unanimously reversed the Maryland Court of Appeals in addressing whether the Supreme Court precedent stating that once a defendant invokes his Miranda rights, any statement made while he is still in custody is suppressed. The question was whether Miranda continues to apply when the suspect is serving a prison sentence for an unrelated crime. Maryland v. Shatzer, 2010 DJDAR 2731. In the case, Michael Shatzer was in prison when first questioned about an allegation that he sexually abused his son. He refused to talk, but almost three years later police questioned him again when more details emerged. This time, Shatzer agreed to talk after waiving his Miranda rights.

The court, in an opinion by Justice Antonin Scalia, stated that a prison sentence does, in fact, constitute a break in Miranda custody and therefore police can re-interview suspects as long as it is more than two weeks after the first attempt.

In the second case, decided in March, the court ruled 7-2 that police do not have to clearly state that a suspect has a right to a lawyer to be present throughout questioning. A simple statement saying that a suspect has the right to talk to a lawyer before answering questions was sufficient, the court said in an opinion by Justice Ruth Bader Ginsburg that reversed the Florida Supreme Court. Florida v. Powell, 2010 DJDAR 2675.

Of the three cases, it is considered the least important because in most jurisdictions the police warning is more precise.

The case that got the most attention was a 5-4 ruling issued in June in which the court ruled that a suspect's silence during questioning does not imply that he has invoked his Miranda rights. In the case before the court, which came out of the 6th U.S. Circuit Court of Appeals, suspect Van Chester Thompkins was silent for three hours before stating "yes" when asked if he prayed to God to forgive him for the murder he was being questioned about. The Supreme Court held in an opinion by Justice Anthony M. Kennedy that a suspect must unambiguously say that he is invoking his Miranda rights. Berghuis v. Thompkins, 2010 DJDAR 8047.

In assessing the impact of the rulings, prosecutors and defense lawyers agree that they do not constitute a major upheaval in the law, but they differ on the details.

For prosecutors in California, the cases have not raised many eyebrows, according to Lael Rubin, director of prosecution support operations at the Los Angeles District Attorney's Office.

"We have had no expressions of concern either from prosecutors or from law enforcement," she said.

Of the three, Shatzer could be most useful to the police because it gives them clear guidance on when they can re-interview suspects who are in prison on unrelated charges, Rubin added. The other two cases largely endorse the way California courts and the 9th U.S. Circuit Court of Appeals have interpreted the law for years, she said.

Not surprisingly, defense lawyers have a more negative assessment of the Supreme Court's actions, not just in the three cases last term but also in other Miranda-related rulings in recent years.

That's because lawyers are so certain they will lose attempts to suppress evidence based on a Miranda violation they are less likely to try, according to Richard La Fianza, a deputy public defender in San Bernardino County.

"I see a lot of attorneys giving up on Miranda challenges because they see it as a hopeless cause," he said.

The recent rulings are unlikely to change that analysis one way or the other, he said.

La Fianza himself makes a Miranda challenge in one out of 20 cases, he estimated. Usually those cases involve suspects who don't speak English.

For Konrad Moore, chief deputy public defender in Kern County, the rulings indicate a skewed perception of the criminal justice system that does not take into account several disadvantages defendants face.

"It would seem that the court largely accepts the proposition that only a guilty person would admit to having done wrong," Moore said.

That's a perception that defense attorneys and defendants "painfully learn is far from true," he added.

In questioning how much impact the three cases will have, Robert Weisberg, co-director of the Stanford Criminal Justice Center at Stanford Law School, said the Supreme Court is focused more on judges than the police.

The recent cases constitute "love letters to lower courts" rather than instructions to police officers, he said. The Supreme Court often calls federal appellate courts to task, especially the 9th Circuit, for second guessing state court findings in criminal cases when defendants file habeas corpus petitions.

Police interrogators know how to "comply with Miranda while exploiting the situation to solicit confessions," he said.

Ultimately, in a small number of cases, defendants might be a little worse off, but "it could be that the police won't take this as a license to investigate more aggressively," Weisberg said.

Looking ahead, experts expect the Supreme Court to continue to trim back Miranda in future cases.

"We have a majority on the court that is taking a narrow view of Miranda," the Criminal Justice Legal Foundation's Scheidegger said. "Where the issue is close on existing precedent, they will lean toward allowing the evidence in."

But, as public defender La Fianza noted, as long as Miranda remains the law of the land, defendants generally are aware of their rights and aren't about to make it easy for the police.

In the 12 murder cases he is working on, only one suspect gave a statement to police.