Legal Docket: Double jeopardy

MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 21st day of January, 2019.

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

The Supreme Court handed down two rulings last week.  

First, a win for the truck driver who sued a Missouri-based trucking company.

Dominic Oliveira thought he should be paid back wages from when he’d been wrongly classified as an independent contractor.  

He wanted to take it to court. The company wanted arbitration.  

The legal question was whether motor carriers can force arbitration in disputes with drivers. A unanimous court said “no, they cannot.”

Courts should figure out exceptions to the law before ordering any arbitration. And truckers are excluded from the Federal Arbitration Act.

REICHARD: The second ruling says purse snatching and pickpocketing qualify as violent felonies under federal law. The statute at issue adds prison time for three-time violent felons found in possession of a gun.

Denard Stokeling brought the case, and made the argument that one of his prior convictions ought not count. He contended the level of force he used to snatch a necklace shouldn’t be considered violent. But a five-justice majority disagreed. Justice Clarence Thomas wrote for the court, “The force necessary to overcome a victim’s physical resistance is inherently violent.”

EICHER: I think we should note here, this five-justice majority was not what you’d expect. It was Justices Thomas, Alito, Gorsuch, Kavanaugh, and Breyer—not Chief Justice John Roberts. Roberts joined the three other liberals—Ginsburg, Sotomayor, and Kagan—in the minority dissent.

REICHARD: Surprising alliances, sometimes! Okay, on to the last of the oral arguments from 2018.

This first case today goes to the very foundations of American law.

The Fifth Amendment to the U.S. Constitution protects defendants from double jeopardy.

The text actually reads: no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”

Terance Gamble says he was twice put in jeopardy, though. He was convicted for the same gun possession violation twice: once in state court, once in federal court.

Now, Gamble’s not a sympathetic figure. He’d already racked up a long rap sheet when police pulled him over for a faulty headlight. They found two bags of marijuana and a loaded 9mm handgun in his car.

He’s a felon, so he had no right to that handgun.

But Gamble received two convictions for that illegal possession. Here’s his lawyer, Louis Chaiten.

CHAITEN: Well, we should care because here is an ancient right not to be tried twice for the same crime. The original understanding of the Double Jeopardy Clause considers this the same crime.

That “ancient right,” though, has been reshaped with court rulings saying something else for 170 years:

There’s the state sovereign, and there’s the federal sovereign.

Two separate things, with consequences attached to each.

Justice Elena Kagan:

KAGAN: That’s consistent with our structure of government. We have dual sovereigns. That means dual regulation. And dual regulation often means dual punishment. And if we were to adopt the rule that you suggest, it might very well be that either the federal government would have to subordinate its interests to the states or that the states would have to subordinate their interests to the federal government.

That’s important what Justice Kagan said there. It’s the reason Gamble lost in the lower courts.

The Dual Sovereignty doctrine is the well-established exception to the prohibition against double jeopardy.

There are advantages to that dual system, as Justice Kagan mentioned.

During the Jim Crow years, for example, Ku Klux Klan crimes often were not seriously prosecuted. Oftentimes, the reason was that southern juries wouldn’t convict, no matter the evidence.

So the feds would come in and prosecute those crimes.

Or, sometimes a state might want to devote prosecution resources to certain crimes the feds aren’t so interested in. An example of that might be where a state targets gang violence and chooses to prosecute gang members under state gun laws.

Arguing against Gamble’s claim was Assistant to the Solicitor General Eric Feigin. With a wink to Texas.

FEIGEN: It is a common fact of life that everyone is subject to both state and federal regulation. It’s why everyone in this room, except maybe my friends from Texas, pay both state and federal taxes. [laughter] It’s why businesses are regulated by both the federal and state governments, and why everyone knows that an act, and even Petitioner agrees, the same act can be both a state and federal crime.

And the justices seemed quite uninclined to throw out years of precedent. Here’s Justice Samuel Alito spinning out a scenario to Gamble’s lawyer:

ALITO: Let’s say a group of American tourists are murdered by terrorists in a foreign country, and there is a prosecution in the foreign country for murder, the same offense…and it’s not a sham prosecution, but it’s a fairly inept prosecution…and it results in an acquittal or a conviction with a very light sentence. Your position is that there could not be a prosecution here in the United States under the statute enacted by Congress to permit the prosecution of individuals who murder Americans abroad?

But it wasn’t all roses for the government. Justice Neil Gorsuch had another worry.

GORSUCH: With the proliferation of federal crimes, I think over 4,000 statutes now and several hundred thousand regulations, the opportunity for the government to seek a successive prosecution if it is unhappy with even the most routine state prosecution is a problem.

Feigin answered that the federal government only rarely uses that power.

Underlying this is a surprising alliance of two justices who hardly ever agree. Justice Clarence Thomas and Ruth Bader Ginsburg have each called for a re-examination of the doctrine.

But The Wall Street Journal editorial board pointed out this matter is not where a judicial fiat should be applied to undo dual sovereignty. The political branches should do it if it’s to be done at all.

A fascinating amicus brief by two law professors traced the doctrine of sovereign immunity to before the Civil War. That’s when northern and southern states kept blocking each other around the issue of runaway slaves. One side incentivizing recapture, the other trying to block recapture. That led to courts supporting separate sovereignty for state versus fed. In fact, the professors call dual sovereignty an “accident of history” and not part of the constitutional design. They claim the court was responding to political issues of the day and nothing else.

This last case today asks this question: What does the phrase “otherwise available to the public” really mean?

The case is a patent dispute, just not in the technical sense.

Helsinn Healthcare has a patent for an anti-nausea drug it makes for cancer patients. The company sued another pharmaceutical firm, Teva Pharmaceutical, to stop it from making a generic.

Teva argues there is no patent protection here, because Helsinn sold the drug before filing for the patent application.

That takes away any patent protection under a law passed in 2011 called the America Invents Act.

It says that if an inventor before filing a patent application places the product on sale or, here’s that phrase, makes it “otherwise available to the public,” it’s fair game. No patent protection.

Helsinn argued those sales were private, and that’s not what the law intends at all. Listen to this exchange between Justice Brett Kavanaugh and Helsinn’s lawyer, Kannan Shanmugam, trying to parse the meaning of the word “sale.”

By the way, when you hear Shanmugam refer to “Mr. Jay,” he’s talking about his opposing counsel.

SHANMUGAM: And so, for instance, if after this argument in the lawyers lounge I turn to my friend, Mr. Jay, and I say, I see that you didn’t bring a coat today, I’ll sell you my coat for $5, I’m not sure that that would be putting my coat “on sale” in the same way that it would be if I turned around to the audience and said I’ll sell this coat to the highest bidder.

KAVANAUGH: Why not? – I don’t see–and if it’s sold, it’s pretty hard to say something that has been sold was not on sale.

SHANMUGAM: I think that the concept of “on sale,” Justice Kavanaugh, conveys some sense of broader availability or, at a minimum, that there’s some ambiguity about that.

Justice Kavanaugh sat on the U.S. Court of Appeals for the D.C. Circuit for a long time. He heard plenty of intellectual property cases. So this bodes well for Teva, the generic maker.

To put a fine point on it, Justice Breyer laid out what legal luminaries have said about the reasons for that “on-sale” rule.

BREYER: But of course you know perfectly well is that we only have Justice Story, Learned Hand, John Marshall— for all I know— who said that that isn’t the sole purpose. That the purpose of this “on-sale” rule, including private sales, is to prevent people from benefiting from their invention prior to and beyond the 20 years that they’re allowed.

Judging from the arguments, I’m going to predict Teva will be able to make that generic after all.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite) The Supreme Court is seen in Washington, Monday, Jan. 7, 2019. 

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