Legal Docket: This term’s final arguments

NICK EICHER, HOST: It’s The World and Everything in It for this 3rd day of June, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: Good morning to you! I’m Mary Reichard and it’s time for Legal Docket.

Today, the last of the oral arguments of this term!

I’ll say, if you’ve listened each Monday since October, you’ll have heard something about everything.

That’s our commitment here at Reichard Law, to touch on every single case the Supreme Court hears. And if you’ve followed along to this point, I’ll add my personal congratulations, a virtual handshake, and honorary degree.

I feel like I should give a short commencement address, but we still have our final three oral arguments.

EICHER: I think that’s a great commencement message and life lesson, Dean Reichard: there’s always more to do!

So let’s do it. The first of the three cases is one that was argued and decided already. The high court making quick work of this one—a death penalty case that had come to the court for a second time.

Thornell versus Jones is the case name. Danny Jones killed two people more than 30 years ago using a baseball bat. He was convicted and given the death penalty and his sentence has been tied up in appeals ever since.

Jones’s latest appeal is about what he said was poor quality work done by his trial attorney. He says that lawyer didn’t do a good enough job showing evidence of his traumatic childhood that included head injuries and drug abuse.

Those are called in the law mitigating factors, things that lessen the culpability of a criminal act. So he wants a new sentencing hearing that might result in a lesser sentence—life in prison, the best and possibly most likely outcome.

REICHARD: He won’t get it. The justices ruled quickly. It was 6-to-3 against Jones, the court finding that the trial court adequately balanced the weight of aggravating circumstances against the weight of those mitigating factors.

You mentioned mitigating factors lessening culpability. Aggravating circumstances increase the culpability of a criminal act.

Here, that included Jones’s killing multiple people (including a child) in a particularly cruel and depraved way. Another aggravating circumstance was that his motivation was money.

During oral argument in April, Justice Samuel Alito seemed incredulous over the argument that Jones’s lawyer made.

JUSTICE ALITO: So let’s think of a case where the defendant is sort of like Hannibal Lecter, all right? You've got a defendant who has kidnapped and hideously tortured 25 children, and sent messages to the media saying, 'I love to kill, and I'll always kill if I have the chance.' You've got the most horrible aggravating evidence that you possibly can have. Then you say that all that's necessary in order to get resentenced is for the defendant to come up with evidence that a reasonable sentencer might deem relevant to the defendant's moral capability? That's your argument?

The three liberal justices dissented, among whom was Justice Elena Kagan, who during oral argument had this to say to the killer’s attorney:

JUSTICE KAGAN: … the circuit court is supposed to weigh the mitigating evidence against the aggravating evidence. And here, you know, the circuit court once said that that was what it was doing, but then it completely ignores all the aggravating evidence which was substantial in this case.

EICHER: Still, she joined the dissenters led by Justice Sonia Sotomayor. Their view was that although the lower court was wrong to ignore aggravating circumstances, the right thing to do now is vacate the judgment and give the case back to the Ninth Circuit.

Justice Sotomayor said as much at oral argument:

JUSTICE SOTOMAYOR: We’re not fact finders, and we generally don’t weigh evidence. There’s thousands of pages in this record.

REICHARD: But lawyer for the Arizona Department of Corrections Jason Lewis had the winning argument that enough is enough:

JASON LEWIS: I think concepts of finality would dictate that the circuit court has had this case for so long, and has spent so much time granting relief on certain issues, reserving other ones, and then having it sent back continuously — it has to end at some point.

And so it has. Mr. Jones appears to have exhausted his appeals, at least for now.

EICHER: Case Number two: Department of State vs. Muñoz, one of several immigration disputes the court’s heard recently.

Generally speaking, courts are not permitted to second guess why a non-citizen would be denied a visa. In legal terms, that’s called the “doctrine of consular nonreviewability.” In plainer terms, it’s a message to the courts that this is none of your business.

Of course there’s an exception to that general rule of nonreviewability for non-citizen spouses. If those visas are denied, the government has to give a reason for it.

REICHARD: Here, an American citizen sued the State Department because her husband, a citizen of El Salvador, was denied a visa.

No reason given, just a citation of the law giving the consulate authority to deny him. That law says denial can be made when the consulate knows or reasonably believes the alien wants to come into the U.S. for unlawful purposes.

Lawyer for Muñoz, Eric Lee:

ERIC LEE: Ms. Muñoz has a constitutional liberty interest in living with her husband. We do not claim that this interest gives her the right to immigrate her husband regardless of his inadmissibility, but the importance of cohabitation to marriage means that the government is required to provide procedural protections when it burdens the underlying right.

EICHER: But government lawyer Curtis Gannon argued the scope of the immigration caseload speaks to another need entirely:

CURTIS GANNON: Last fiscal year, the Department of State issued 11 million immigrant and nonimmigrant visas. It also refused 62,000 visa applications on the basis of one or more of the inadmissibility grounds including applications from approximately 5400 noncitizens seeking to live with their U.S. citizen spouses or fiances.

REICHARD: Gannon pointing out that it is wholly within the government’s power and authority … and not at all what the US Circuit Court of Appeals for the 9th Circuit held. That court said that the denial of a visa for her husband affected the wife’s rights pertaining to her marriage—and that the State Department’s mere citation of a statute was no legitimate reason to avoid court review.

Chief Justice John Roberts wondered how to balance all those interests:

CHIEF JUSTICE ROBERTS: …how would you go about weighing the interest in marriage with the interest in national security? You know, that's like apples and giraffes.

EICHER: Several justices appeared to agree that some limited judicial review was appropriate, but that Muñoz was asking for too much.

Justice Alito made the same point the Chief Justice did:

JUSTICE ALITO: How do you weigh the liberty interests that you are asserting against the government's interest in denying visas to people who would present a danger when they get to the United States? How do we weigh that? In --if Respondent's husband were a citizen, it wouldn't matter whether he was a member of MS-13 or any other gang or whatever the government suspected him of being involved in criminal activities. She could live with him unless he were in prison, right? So it's an absolute --it's a -- it's a very, very extensive right. Now you’re translating this into the situation where it’s the opportunity to come here.

REICHARD: It came out later in the proceedings below that the State Department suspected her husband of belonging to a gang, perhaps. The wife denies that, but she did receive notice of it. And that’s probably enough to satisfy due process, as the government argues here.

Given the tenor of the questions from most of the justices, I think the wife is going to be disappointed, although I look for the court to clarify the reasons why.

EICHER: Okay, the last argument of the term,Snyder v United States. Here’s a blunt way to put the question presented: Are politicians allowed to work for tips?

It’s a little surprising that we wouldn’t know the answer … but the analysis is not so cut and dried, because of how vague the law is on this point.

Here are the facts. Twelve years ago, the mayor of Portage, Indiana, asked for bids to buy garbage trucks for the city. The company that won the bid offered the mayor $13,000 and he accepted it. Is that a “tip” or is that more what it sounds like?

A jury would later convict Mayor Jim Snyder of federal funds bribery under 18 U.S.C. 666(a)(1)(B), to be precise.

REICHARD: We note the exact section of the statute, because the lawyers will refer to it a few times as we analyze the case.

Snyder said the money was for his “consultation services.” He said that’s nothing like a quid pro quo—meaning a favor or advantage granted or expected in return for something. What he received was merely a gift of appreciation.

He appealed, pointing to the law under which he was convicted. That law speaks of bribery, not gratuities. And he says he wasn’t bribed.

His lawyer, Lisa Blatt, says the government in the past argued “corrupt” means simply “with knowledge.” And now it means wrongful, immoral, or depraved.

LISA BLATT: Regardless, the government's new definition is implausible and stunningly vague. No gratuity statute -- that's none whatsoever -- uses the word "corruptly" and for good reason. The government can't tell you what gifts are corrupt. What gift is too much for the doctor who saves your life?

EICHER: Blatt pounded away on the implications. If the court ruled against her client, it’s not going to affect just her client.

BLATT: P 3 Section 666 applies to 19 million state, local, and tribal officials and anyone else whose employer receives federal benefits. Congress did not plausibly subject all of the people to 10 years in prison just for accepting gifts, especially when federal officials face only two years for accepting gifts under 201(c).

For the other side, the government argues Congress put in the statute the words “influence” and “reward,” specifically to capture officials who accept gratuities.

Listen to Assistant U.S. Solicitor General Colleen Sinzdak:

COLLEEN SINZDAK: The federal government needs to ensure that money it appropriates to local govts for public benefits is allocated in a way that maximizes the benefits to its citizens, not the rewards for local officials. Congress therefore enacted Section 666 to bar officials from corruptly accepting payments with the intent to be influenced or rewarded in connection with their official duties.

So a police chief who sends his officers to foil a burglary at a store and then demands the store owner pay him $10K for his officers’ work, he acts with the intent to be rewarded. And a mayor who steers a contract for particular business and then asks that business to pay him $13K for the contract acts with the intent to be rewarded, whether or not the contractor agreed to give him the reward before the contract closed.

But most justices saw a big flaw. Justice Brett Kavanaugh:

JUSTICE KAVANAUGH: …when you put “corruptly” in, now you don’t know where the line is. You don’t know if the concert tickets, the game tickets, the gift card to Starbucks, whatever, where is the line, and so there’s vagueness. That creates the problem that there is here.

Sinzdak tried to reassure the court that the law only kicks in over a $5000 amount—and besides, there’s always prosecutorial discretion so that things don’t get too politically vindictive.

An argument that really didn’t hold water. Chief Justice John Roberts:

JUSTICE ROBERTS: We’ve had several cases where we’ve made the very clear point that we don’t rely on the good faith of the prosecutors in deciding cases like this.

REICHARD: I dunno. The chief might’ve been thinking of the prosecutors going after Donald Trump.

But then it may just be Supreme Court precedent on this matter. After all, the court overturned the bribery conviction of Virginia Governor Bob McDonell and his wife for accepting gifts.

The high court’s shown over and over it doesn’t like broad and vague laws where you don’t know what’s right and what’s wrong.

EICHER: Sindak for the government encouraged the justices not to focus on what she called the fringe cases, where it’s hard for the government to show consciousness of wrongdoing.

But Justice Kavanaugh was ready for that …

JUSTICE KAVANAUGH: You said these fringe cases as compared to this case. I think the quote “fringe cases” are the everyday concern.

REICHARD: Harry Truman is said to have quipped: “Show me a man who gets rich by being a politician, I'll show you a crook.”

Would that we had more leaders who put service before self. But I do think the justices will hand victory to the mayor—not because he did his job well, but because Congress didn’t do its job well enough by writing a law that’s too broad.

And that’s this week’s Legal Docket!

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