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Use of “Shadow Docket” is undermining public trust in the Supreme Court

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Attorney David BetrasThe inner workings of the U.S. Supreme Court have been veiled in secrecy since Chief Justice John Jay gaveled the first meeting of the tribunal to order 1789. Aside from hearing oral arguments and issuing decisions, the nine justices function behind tightly closed doors. The conferences in which they debate cases are conducted in private and no notes or minutes are kept, memos and communications by and between the justices are not subject to the Freedom of Information Act, each justice has the sole power to release or conceal their papers, and law clerks sign iron-clad confidentiality agreements. No other branch of government is so immune to public scrutiny.

In 1955 Justice Felix Frankfurter offered this explanation for why the Court’s work must be concealed from view:

“The secrecy that envelops the Court’s work is not due to love of secrecy or want of responsible regard for the claims of a democratic society to know how it is governed. That the Supreme Court should not be amenable to the forces of publicity to which the Executive and the Congress are subjected is essential to the effective functioning of the Court.”

The veil that shrouds the Court has occasionally been pierced. Bob Woodward and Scott Armstrong’s “The Brethern: Inside the Supreme Court” published in 1979 provided the first in-depth, behind-the-scenes look at the Court thanks to Justice Potter Stewart who was the primary source for the book. In 2004, Vanity Fair reporter David Margolis persuaded several clerks to reveal the political machinations that led to the Court’s controversial decision in Bush v Gore and last year CNN’s Joan Biskupic used confidential sources inside the court to produce a number of pieces about the term’s most-watched cases.

Entrance to US Supreme CourtDespite these notable breaches, respect for the Court’s need to operate clandestinely has remained largely intact because even though the sometimes-messy process of judicial sausage-making has been concealed behind what is commonly referred to as the “Purple Curtain,” the end product has always been prominently displayed in the form of majority and dissenting opinions that clearly reveal the justices’ reasoning and positions. Those opinions—millions of pages of them—are the foundation of the American legal system. They are also the reason why the Court has always been held in high esteem by the public.

Unfortunately, in recent years the Court has repeatedly abandoned the slow, deliberative process that produced well-argued landmark decisions and precedents in favor of what University of Chicago Law School professor William Baude refers to as the “Shadow Docket”—unsigned opinions issued hastily without detailed explanations, often before the cases in question have worked their way through the federal district and appellate courts. The 6-3 ruling that allowed Texas’ draconian anti-choice law to take effect is the most recent and troubling example of the Court’s increasing embrace of this tactic.

I am not raising the issue because I disagree with the majority in the Texas case and others that have been decided via the Shadow Docket, but because the justice’s refusal to share their rationale for their decisions threatens to undermine both the nation’s jurisprudence and public support for the Court which, according to Gallup, has fallen below 50% for only the third time in the past 20 years.

As an attorney, a legal scholar, and a citizen who believes our judicial system is both the heart and soul of our democracy, I fear what may happen if Americans lose faith in the Court. For the good of our nation, I pray that the justices abandon the Shadow Docket and once again share their wisdom, knowledge, and reasoning with us.

Society wins not only when the guilty are convicted, but when criminal trials are fair

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Attorney David BetrasIn his most recent MahoningMatters column, BKH managing partner David Betras, one of the area’s leading criminal defense attorneys, discusses prosecutorial misconduct and the threat overzealous prosecutors pose to every American’s freedom…

Prosecutors in the United States wield awesome power and have access to immense resources that dwarf what is available to criminal defendants and defense counsel. The lawyers who represent the people of the United States or the people of Ohio have near-total discretion to decide who is charged and with what—the old saying that a prosecutor can convince a grand jury to indict a ham sandwich is basically true, they are funded by taxpayer dollars, work hand-in-hand with the law enforcement officers who investigate crimes and have unlimited access to state-of-the-art forensic science.

To balance the legal playing field and protect society, the rules of criminal procedure, the law, and codes of conduct administered by the courts and bar associations have established strict guidelines and boundaries designed to prevent prosecutors from abusing their authority. Chief among them is the admonition that a prosecutor’s job is to secure justice, not convictions.  This principle is embodied in Ohio’s Code of Professional Conduct which states:

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”

It is also included in the American Bar Association’s (ABA) Criminal Justice Standards (CJS):

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict… The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”

Man in handcuffsAlong with defining prosecutors’ role, the rules, laws, and Supreme Court decisions also set forth their responsibilities, which, according to the ABA’s CJS include the duty to “…make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”

This standard encapsulates the Supreme Court’s 1963 decision in Brady v Maryland, In that case, a 7-2 majority held that “…the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment… Society wins not only when the guilty are convicted, but when criminal trials are fair.” The Court has revisited Brady numerous times over the years, including in 1985 when the justices ruled in United States v. Bagley  that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request.

Despite the guardrails that have been erected, some prosecutors misuse their power and abuse their discretion. They place more value in securing convictions than preserving justice. They commit what are known as “Brady Violations” by refusing to turn over or concealing exculpatory evidence to the defense and violate defendants’ due process rights in other disturbing ways.

This matters for two reasons. First, because when prosecutors violate the rules, innocent people go to jail for decades or are executed. Some of the wrongful conviction cases have penetrated the national consciousness: the Central Park 5, Walter McMillan, the Brown brothers, and Anthony Ray Hinton. Thousands of others, however, suffer in silence outside the spotlight, hoping that justice will be done.

Second, each case of prosecutorial misconduct, each Brady violation, each wrongful conviction weakens the criminal justice system and puts every American’s freedom at risk.

Libel, slander and why Facebook can’t be held accountable for outrageous statements posted by users

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Attorney David BetrasIn his most recent blog post/Mahoning Matters column, BKH Managing Partner David Betras defines defamation, libel, and slander and explains why it is virtually impossible for public figures to win defamation suits and the legal shield that protects Facebook and other social media sites from being helped accountable for statements posted by users…

As I have noted in previous columns, the rights enumerated in the U.S. Constitution are not absolute.

For example, the Supreme Court ruled in 1919 that yelling “fire” in a crowded theater is not protected speech under the First Amendment. Not surprisingly, this one exception has given rise to many questions and hundreds of cases regarding what type of expression is shielded by the Bill of Rights. For example, can a person in that hypothetical crowded theater stand up and accuse another of a crime or pass out a leaflet that impugns someone else’s character?

As is often — and often maddeningly — the case with issues involving the Constitution, the answer is, “It depends.”

In this instance, it depends on the laws governing defamation which is defined as a false statement presented as a fact that injures or damages a third party’s reputation. There are two types of defamation: slander, an untrue statement made orally; and libel, an untrue statement made in writing. And, since the dawn of the computer age and the internet, that includes email and social media posts.

While defamation is not considered a crime at the federal level or in Ohio, both libel and slander are civil torts which means victims can sue for damages. To win in court a plaintiff must prove:

1.) The statement was reported as fact to another person;
2.) The statement was false;
3.) The plaintiff suffered damages;
4.) The person making the statement was negligent.

Seems pretty straightforward, except we are talking about the law so nothing could be further from the truth. And speaking of the truth, it is an absolute defense to defamation because if what is said or written is true, it cannot be false, and therefore, it can be neither libelous nor slanderous no matter how much damage it may cause.

Here is another fun fact: Public figures have virtually no chance of winning defamation suits thanks to New York Times v. Sullivan, a unanimous 1964 Supreme Court ruling that established the “absent malice” standard. Under this legal principle, the target of a defamatory statement must prove the person or entity that wrote or uttered it did so with knowledge of or reckless disregard for the fact that it was untrue.

Who qualifies as a public figure? Politicians, celebrities, business, labor, and community leaders, and, well, me. This means Mahoning Matters can publish just about anything they want to about me and there is not much I can do about it.

Finally, consider this scenario: two neighbors who are not public figures have a contentious relationship. Neighbor A posts on Facebook that Neighbor B beats his wife and kids and kicks his dog. The statement is false, but people believe it and ostracize Neighbor B, he is fired from his job and suffers other torments.

Neighbor B can sue Neighbor A, but can he sue Facebook for providing a platform for the lies?

No, because Section 230 of the Communications Decency Act (CDA 230) holds that Facebook and other computer service providers are not considered publishers of content posted by users and are not responsible for it.

So while Neighbor B may be able to wring a few bucks out of Neighbor B, he will not be getting a check drawn on Mark Zuckerberg’s multi-billion dollar account

Complex deliberative process, legal doctrines drive Supreme Court rulings in controversial cases

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Attorney David BetrasThis week the U.S. Supreme Court handed down decisions in two closely watched controversial cases: June Medical Services LLC. et al. V. Russo and Seila Law v. Consumer Financial Protection Bureau. Along with being among the most highly anticipated rulings of the term, the opinions in the cases provided valuable insight into both the intricacies of the Court’s deliberative process and two legal precedents, stare decisis and severability, that played a critical role in the outcome and future impact of both cases.

Because the justices discuss and vote on cases in secret, most people have a simplistic view of their decision-making process which, in reality, is extremely complex. The nine members of the Court don’t sit around a table, consider the arguments and issue a ruling when five or more members side with the plaintiffs or the defendants. Discussions go on for months. Memos fly back and forth. Clerks argue with their justices. Positions change. Votes change until a solid majority in favor of an outcome emerges. This is an important point: justices only have to agree on how they are ruling, not on why. The same holds true for dissents.

The decision in June Medical v. Russo illustrates this point of law. The five justices who held that Louisiana’s law requiring doctors who perform abortions to have admitting privileges at local hospitals is unconstitutional did so for different reasons. The Court’s four liberals, led by Justice Steven Bryer based their ruling on the fact that Louisiana’s law, like a nearly identical Texas statute struck down in 2016, put an undue burden on a woman’s right to choose.

Chief Justice John Roberts, the fifth vote in the case, based his concurrence on the doctrine of “stare decisis” which means “to stand by things decided.” This doctrine obligates courts, including the Supreme Court, to follow historical cases when making a ruling on a similar matter. Ironically, Roberts had voted to uphold the Texas law in 2016, but his respect for precedent proved more compelling than his opposition to abortion.

Seila Law v. CFPB is also interesting and instructive. After being cited by the CFPB for ripping off thousands of homeowners in a mortgage scam, Seila Law filed suit against the agency alleging that its governance structure was unconstitutional and the Bureau should, therefore, be abolished. Not surprisingly, banks and big business interests who have sought to destroy the CFPB since it was created, filed briefs supporting Seila’s position.

The Court’s five conservative justices, including Roberts, agreed with the plaintiffs but only in part due to the doctrine of severability which states that if a provision of a piece of legislation is found to be illegal the remainder of the law may remain in effect. In this case, the majority rejected the agency’s governance structure but said it could continue to operate. This means that although Seila won the battle on its primary contention, it lost the war against the CFPB because the ruling protects the agency from future constitutional challenges–an outcome that clearly illustrates the way in which the doctrine of unintended consequences can really be a punch in the gut.