Articles Posted in March, 2014


United States v. Bergman, US 10th Cir. (3/28/14)
Constitutional Law, Criminal Law

DishonestyDefendant-appellant Gwen Bergman was arrested when the hit-man she thought she hired to kill her husband was in fact an undercover police officer. After trial, it emerged that defendant’s lawyer was not a lawyer-in-fact, but a con man. Defendant applied for habeas relief on the ground that she received ineffective assistance of counsel. The district court agreed with her: the court vacated her conviction, and discharged her from supervised release (she had finished her prison term). Assuming the court’s decision to vacate the conviction it won at defendant’s first trial was without prejudice to a new trial with a (real) defense lawyer, the government asked the court to set a date. The district court refused, stating that its discharge order “implicitly” forbade any effort to secure a valid conviction at a second trial. The government appealed the district court’s decision to the Tenth Circuit. The government’s appeal raised the question of whether defendant could be exposed to a new trial and lawful conviction despite having successfully petitioned for habeas relief and served her jail sentence. Rather than contend categorically that only double jeopardy problems may preclude retrial, the government suggested that the remedy the district court selected was too attenuated from the right it found violated: defendant’s Sixth Amendment right to effective assistance of counsel. “[T]he presumptively appropriate remedy for a trial with an ineffective lawyer is a new trial with an effective one. . . . the district court failed to identify any reason why that presumption is inapplicable here; and in these circumstances refusing a new trial amounts to an abuse of discretion.”

Posted in: Legal News


Bray v. Planned Parenthood Columbia-Willamette, Inc., US 6th Cir. (3/21/14)
Civil Procedure, Communications Law, Constitutional Law

Bray is an antiabortion activist and wrote a book, A Time to Kill. In 1985, Bray was convicted for a felony relating to physical damage to abortion centers. He spent four years in prison. Planned Parenthood (PPCW) was a plaintiff in a 1995 suit against antiabortion activists (including Bray) for intimidation by threat of force under the Freedom of Access to Clinic Entrances Act, 18 U.S.C. 248. In 2005, PPCW sought to collect its $850,000 judgment and obtained a writ of execution authorizing seizure of specified property. The Bray family filed a “Bivens” suit, claiming that U.S. Marshals conspired with PPCW to seize their property in an unconstitutional manner. The complaint alleged that during a “surprise raid” Bray was required to sit on his couch while flak-jacketed Marshals, advocates for political positions that Bray despised, plus unknown persons, seized the books, papers, computers and cameras, of Bray and his family, excepting only children’s books and Bibles. Bray was not allowed to leave the couch or to call his lawyer. Eventually a Marshal called Bray’s lawyer. The district court dismissed. The Sixth Circuit affirmed, noting that Bray had settled with all defendants, except the Marshals, who were entitled to qualified immunity in carrying out a presumptively valid federal court order, even by “highly questionable ways.” The unconstitutionality of certain actions was not then clearly established with sufficient specificity. If the alleged facts are true, the incident was “more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect” in the U.S., even if Bray’s ideas are “repugnant.”

Posted in: Legal News


Marvin M. Brandt Revocable Trust v. United States, United States Supreme Court (3/10/14)
Real Estate & Property Law, Transportation Law, Zoning, Planning & Land Use

locomotiveThe General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. 934. One such right of way, created in 1908, crosses land that the government conveyed to the Brandt family in a 1976 land patent. That patent stated that the land was granted subject to the right of way, but it did not specify what would occur if the railroad relinquished those rights. A successor railroad abandoned the right of way with federal approval. The government sought a declaration of abandonment and an order quieting its title to the abandoned right of way, including the stretch across the Brandt patent. Brandt argued that the right of way was a mere easement that was extinguished upon abandonment. The district court quieted title in the government. The Tenth Circuit affirmed. The Supreme Court reversed. The right of way was an easement that was terminated by abandonment, leaving Brandt’s land unburdened. The Court noted that that the government had argued the opposite position in an earlier case. In that case, the Court found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest. An easement disappears when abandoned by its beneficiary.

Posted in: Legal Research


Confidential FileDelaware Courts of Chancery appealed to the U.S. Supreme Court recently, seeking to validate a law that would allow them to hold confidential arbitration proceedings for parties with $1M litigation at stake. Professor Judith Resnik wrote about this in the NYT Op-Ed pages,  “Renting Judges for Secret Rulings.”

On appeal is the question whether this arbitration process, established by the Delaware Legislature and codified at Del. Code Ann. Tit. 10 § 349 violates the First Amendment’s right to public access for court proceedings.

The Delaware Legislature passed the law in 2009. It allows litigants with an amount in controversy over $1M to pay a $12,000 fee (and $6,000 per day) to conduct private arbitration in state courts, with a sitting state judge presiding over the proceedings. The verdict from this arbitration is final, as an enforceable judicial decision. The filings are not docketed, and the decisions are not published.

The Delaware Coalition for Open Government (DCOG) sued to have the law overturned after it was passed. The district court found that the law violated the First Amendment, and the U.S. Court of Appeals for the Third Circuit affirmed. The question presented in the petition writ for certiorari to the U.S. Supreme Court is whether under the “experience and logic” test, established by earlier SCOTUS cases, these cases may be held confidential, or closed to public access.

Posted in: First Amendment


This morning, Governor Jerry Brown and Israeli Prime Minister Benjamin Netanyahu stopped at the Computer History Museum in Mountain View, CA to sign a business agreement.

Computer History Museum

As expected, some people came to exercise their First Amendment right to free speech and peaceable assembly. But, the crowds were no where close to when President Obama visited in 2011.

Israel: Boycott, Divest, Sanctions

Posted in: Legal News, Technology