Legal Docket - Clear and unmistakable errors

MARY REICHARD, HOST: It’s Monday, May 30th. This is The World and Everything in It from WORLD Radio, and we’re glad you’ve joined us today. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It is Memorial Day and today we honor the men and women who have died serving our country and defending our freedoms.

We also thank their families for the sacrifices they made in supporting their loved ones who served.

It’s time now for Legal Docket.

The U.S. Supreme Court handed down two opinions last week.

The first one, unanimous. It involved a Taco Bell franchise owner who sought to enforce an arbitration agreement employees signed. But the owner didn’t act right away. Instead, he waited eight months before demanding to arbitrate and in the meantime had begun the litigation process and discussed possible settlement.

The justices remanded the case to lower court to figure out whether the franchise knew that delaying its arbitration demand amounted to a waiver of the right to use it.

REICHARD: The second opinion came down 6-3 against two men on death row in Arizona for crimes they committed against children.

Their claims arise from the Sixth Amendment to the constitution relating to protections for criminal defendants, specifically its guarantee of effective assistance of counsel.

The inmates say their lawyers either failed to pursue evidence of innocence or did not present mitigating factors that could have resulted in a sentence less than death.

The majority justices pointed to federal law that sets out how to pursue claims of ineffective assistance of counsel: the law requires inmates to develop the factual basis in state court proceedings, so that wouldn’t require a further evidentiary hearing after the fact.

EICHER: The ruling will make it harder for death-row inmates to raise claims of ineffective counsel after they are convicted.

A vigorous dissent from the three liberal leaning justices called the opinion perverse and illogical. They reasoned that inmates will have a hard time proving their lawyers were no good on the advice of lawyers who are no good. They would allow a court to review evidence of ineffective counsel in cases like this.

REICHARD: Alright, onto the last of the oral arguments this term. If you’ve listened every Monday since October, you’ve heard something about every merits case the justices heard.

The first case involves veterans benefits.

Here are the facts. Kevin George joined the Marines in June 1975. He passed the entry physical, but shortly after that, he suffered a psychotic episode and received a diagnosis of paranoid schizophrenia.

The Marines discharged him and he eventually filed for VA benefits. The VA found that George’s military service had aggravated a pre-existing condition and so denied him benefits. The problem here is that the agency’s erroneous interpretation of the law resulted in the denial.

It comes down to what kind of mistake that is, and whether that kind of mistake allows a veteran to challenge an old decision of the VA.

Melanie Bostwick argued on behalf of the Marine:

BOSTWICK: There is no dispute that a clear and unmistakable error has occurred when VA adjudicators misapply the terms of a plain statute. As this Court has said over and over, an agency regulation has the force of law only if it is consistent with Congress's command.

Lawyer Anthony Yang for the VA argued that the board made no mistake at the time of its original decision.

YANG: For nearly 60 years now, the regulation governing clear and unmistakable error provided that such error cannot be based on a change in interpretation of the law. And what petitioner is suggesting is a real radical change here.

Justice Neil Gorsuch posed a hypothetical to test the reasoning of that:

GORSUCH: But let's say the -- the regulation, since you want a regulation, says that -- that a certain standard for disability applies in -- in a segregated Army differently based on race. That couldn't qualify as a clear and unmistakable error?

YANG: No, but there are other ways to correct that error.

GORSUCH: My question is could a later court correct that or not? And I think on your interpretation the answer has to be no.

YANG: No. It could do so in a prospective way.

Gorsuch called that “a remarkable claim, but okay.”

And he had an ally in Justice Stephen Breyer, equally skeptical of the government’s argument.

BREYER: I'll just tell you this. This is the most clear and unmistakable error I've seen in 40 years. I can't think of another one. Now what is it like? It's like a statute that says you get a thousand dollars, veteran, if you served in Korea -- in the Philippines in World War II or Korea, and they leave out Korea.

Stephen Breyer going on to say even the government with all its resources couldn’t sort this out before now.

If the court decides veterans can challenge VA decisions that were based on regs later found invalid, then other veterans similarly denied benefits could also seek revision in their cases.

Okay, these last two cases involve death penalty jurisprudence.

Raymond Twyford received the death penalty for murder in 1993. Fast forward a quarter century to the year 2018, Twyford asked for a brain scan that might bolster his claim of problems resulting from severe childhood abuse. A suicide attempt when he was a teenager left 20 fragments of a bullet lodged in his brain.

So that raises a question that didn’t come up in trial: whether Twyford was competent to stand trial in the first place.

Twyford’s lawyer requested and a federal court ordered that Twyford get that brain scan and that the prison warden should transport him to the appointment.

But the state of Ohio argues such an order is overreach that delves into state matters. State Solicitor General Benjamin Flowers for Ohio:

FLOWERS: The injury we’re suffering is the sovereign interference with the safe operation of our prisons. That we cannot remedy on appeal, plus the threat to public safety. Once we transport him, we have sustained all of those harms. There’s no unringing that bell after the fact.

But Twyford’s lawyer, David O’Neil, pointed out his client had been taken to the medical facility over a dozen times with no problems. Not only that:

TWYFORD: The jury never heard any evidence about the effect of a point blank gunshot wound on Mr. Twyford’s cognition and therefore his culpability. They didn’t hear anything about that because counsel never bothered to investigate it.

Finally, another question involving death-penalty procedures.

It asks: what’s the proper procedure to challenge the way a state intends to put a convicted capital offender to death?

Michael Nance is on death row in Georgia for bank robbery he committed in 1993 and killing someone as he fled.

But he says Georgia’s planned method of execution will amount to cruel and unusual punishment in his case. That’s because of health problems that left his veins in such poor condition that he’ll need an IV line put in his neck to administer the lethal dose. So he wants a firing squad instead, but Georgia doesn’t authorize that method.

He filed his suit as a civil-rights violation under this provision of federal law: 42 United States Code section 1983. That provides an individual the right to sue state government employees for violations of civil rights.

Here, the legal question is whether that’s the right law under which to bring this litigation.

Georgia says it’s not. Here’s Stephen Petrany, the state’s solicitor general:

PETRANY: Execution is a distinct form of custody. That's why prisoners can challenge capital punishment in habeas to begin with. And, here, Nance seeks to bar his custodian from exercising that custody over him. That's habeas relief. It doesn't matter whether someone someday might be able to execute Nance if Georgia were to authorize a different criminal punishment. The relevant point is that he seeks to bar death by lethal injection, the only state-authorized punishment he's actually subject to.

Basically, the state argues that because Georgia only authorizes one method of execution, and this man challenges that one method, then what he’s really challenging is the sentence of death itself.

So the argument goes that he’s required to file a writ of habeas corpus, not make a civil-rights claim. Habeas corpus is a fancy legal term that means to bring a prisoner before the court to determine whether his imprisonment is lawful.

But Nance’s lawyer Matthew Hellman says the civil-rights claim is perfectly legitimate in this case. You’ll hear Hellman make reference to the “1983 question.” In context, that just means the “civil-rights question.”

HELLMAN: Method-of-execution claims of all stripes involve alternatives where there will be a question about what the warden can or cannot do on his own or her own, for example, whether or not the warden could obtain a particular drug, whether or not the warden would need approval from some other regulatory entity, perhaps a federal entity or a state entity, in order to carry out the execution. Making the habeas/1983 question turn on the answer to that inquiry, which will often require factual findings and complicated assessments, is a recipe, as I said at the beginning, for delay, confusion, and arbitrariness in these cases.

Chief Justice John Roberts worried about prisoners not being allowed to raise new claims when new facts arise, especially those that could change their death sentence.

ROBERTS: And now that does seem like a pretty daunting Catch-22.

However the court decides, the circuit courts disagree on the fundamental question of what kind of case this is: Civil rights or habeas corpus?

And now with that, we’ve touched on every single oral argument this term. If you heard them all, congratulate yourself: I hereby bestow upon you an honorary juris doctor from the Reichard School of Jurisprudence.

And that’s this week’s Legal Docket!

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