09:17, September 07 341 0 abajournal.com

2017-09-07 09:17:04
Chemerinsky: What were the sleeper cases of the last SCOTUS term?



These included decisions concerning criminal law, free speech and patent litigation.

In Brady v. Maryland (1963), the court held that prosecutors have a constitutional duty to disclose potentially exculpatory evidence to criminal defendants. This requirement is echoed as an ethical duty for prosecutors in the American Bar Association’s Model Rules of Professional Conduct and in every state’s ethical code. Yet there is a serious problem with many prosecutors not complying with their obligations under Brady. Alex Kozinski, a judge on the San Francisco-based 9th U.S. Circuit Court of Appeals, has declared: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

In recent years, the Supreme Court only rarely has taken up Brady issues. In Turner v. United States, the court considered and rejected a Brady claim, with the majority concluding that the defendants did not adequately show that they were prejudiced by the prosecution’s withholding of information.

Seven men were convicted of the 1984 kidnaping, robbery and murder of Catherine Fuller in Washington, D.C. At trial, the government’s theory was that Fuller, a mother of six, had been attacked by a large group of individuals. The key evidence was the testimony of two witnesses who confessed to participating in a group attack and cooperated with the government in return for leniency. Several other witnesses corroborated aspects of their testimony.

Many years after their convictions became final, the defendants learned that the government had failed to disclose important, potentially exculpatory evidence. This included the identity of a man seen running into the alley after the murder and stopping near the garage where Fuller’s body had already been found.

The Supreme Court, in an opinion by Justice Stephen G. Breyer, acknowledged that this evidence clearly would have been favorable to the defense, but it concluded that it was not “material” and therefore the convictions could stand. The court explained that “evidence is ‘material’ … when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” After reviewing the evidence, the court concluded that there was not a “‘reasonable probability’ that the withheld evidence would have changed the outcome of petitioners’ trial.”

Justice Elena Kagan, joined by Justice Ruth Bader Ginsburg, wrote a powerful dissent. She said that the entire defense likely would have changed if the defendants knew of a possible alternative suspect. She wrote: “With the undisclosed evidence, the whole tenor of the trial would have changed. Rather than relying on a “not me, maybe them” defense, all the defendants would have relentlessly impeached the government’s (thoroughly impeachable) witnesses and offered the jurors a way to view the crime in a different light. In my view, that could well have flipped one or more jurors—which is all Brady requires.”

The high court’s decision in Turner does not change the legal standard with regard to Brady violations, but it may make it more difficult to persuade courts that the prosecutor’s failure to disclose evidence is “material.” This may make it harder to deal with the epidemic of Brady violations described by Judge Kozinski and others.

North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” When he was 21 years old, Lester Packingham was convicted of taking indecent liberties with a minor, and as a result is a registered sex offender.

Packingham later got a traffic ticket quashed by a judge and went on Facebook and posted the message, “God is Good.” He then was indicted under the North Carolina law for going on a website where minors can be present. He was convicted and given a suspended sentence. In fact, thousands of individuals had been convicted under this North Carolina law.

The court unanimously declared the North Carolina law unconstitutional. Justice Anthony Kennedy wrote the majority opinion. Justice Samuel A. Alito wrote an opinion concurring in the judgment, joined by two other justices.

Justice Kennedy began by strongly emphasizing the importance of the internet as a place for speech. He spoke of the “vast democratic forums of the Internet” in general, and social media in particular. He said that seven in 10 American adults use at least one internet social networking service and that more people are on Facebook than the entire population of North America. The court noted the unique importance of social media for free speech. He said, “the court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

The high court said that even if it assumed that North Carolina law was content-neutral, it still was unconstitutional and vastly overbroad in keeping individuals from having access not just to Facebook, but to Washingtonpost.com, Amazon.com, and WebMD.com. Kennedy said that the state could have a narrower law, such as preventing registered sex offenders from having contact with minors over social media. “In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” he wrote.

Justice Alito concurred in the judgment, but lamented the “undisciplined dicta” and “loose rhetoric” in Justice Kennedy’s majority opinion. Justice Alito, too, found the North Carolina law too broad, but disliked Kennedy’s strong language protecting the internet as a medium for speech and his failure to adequately recognize the need for states to regulate sexual predators on the internet.

But it is precisely Kennedy’s strong language about the special protection for the internet as a medium for communication that makes this decision so important. This will mean that any efforts to punish speech over this media will come to the court with a strong presumption against their constitutionality.

TC Heartland is not a sleeper for those who engage in patent litigation, though others may not be familiar with it or appreciate its significance. The patent venue statute, 28 U.S.C. § 1400(b), provides that “any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

Consistent with other venue statutes, the U.S. Court of Appeals for the Federal Circuit long has interpreted where “the defendant resides” to include any place where there is personal jurisdiction over a defendant. As a result, more than 40 percent of all patent cases in recent years have been filed in the U.S. District Court for the Eastern District of Texas, which has been perceived as a favorable forum for plaintiffs in patent infringement suits.

The Supreme Court, in an opinion by Justice Clarence Thomas, unanimously reversed the Federal Circuit and held that as applied to domestic corporations, “‘reside[nce]’ in §1400(b) refers only to the state of incorporation.” This will have dramatic effects with regard to patent litigation. No longer will a significant percentage of all patent litigation occur in Tyler and Marshall, Texas. A great deal will shift to Delaware, the state where many businesses are incorporated.

But the decision also leaves open crucial questions. The second clause of §1400(b) allows venue “where the defendant has committed acts of infringement and has a regular and established place of business.” What will be enough for a “regular and established place of business”? Also what about foreign companies? In a footnote, the court said that it was not addressing foreign corporation, which raises a major issue for future litigation.

October Term for 2016 was an unusual one, with only eight justices participating until Justice Neil M. Gorsuch was sworn in April 8, 2017. Nonetheless, like every term, it produced rulings that will significantly affect every area of legal practice.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).