Wonderful concurring opinion from the Seventh Circuit’s Judge Richard Posner on interpretation of decades old statutes in light of changed circumstances

Hively v. Ivy Tech Community College of Indiana, ___ F.3d ___ No. 15-1720, (7th Cir. Aril 4, 2017)

Judge Posner is the most prolific author on the federal bench, having written hundreds or articles in general circulation publication across the political spectrum and legal journals, as well as enough books to fill up 6 web pages on Amazon’s web site on subjects legal, political, and social. He is not afraid to speak his mind, and is always provocative. In last week’s 7th Circuit en banc decision finding that Title VII of the Civil Rights Act of 1964 barred discrimination on the basis of sexual orientation* rather than the a person’s sex at birth, he wrote a wonderful concurring opinion that begins with a few paragraphs on the different methods of interpreting a statute. Judge Posner’s language is so concise and precise I will not degrade it by summarizing it, but just quote it at length. I know I will find it useful going forward as I encounter interpretation of statutes and the precedential on older cases in light of the evolution of things like juvenile brain science and advances in forensic evidentiary methods. Here is what he wrote:

I agree that we should reverse, and I join the majority opinion, but I wish to explore an alternative approach that may be more straightforward.

It is helpful to note at the outset that the interpretation of statutes comes in three flavors. The first and most conventional is the extraction of the original meaning of the statute—the meaning intended by the legislators—and corresponds to interpretation in ordinary discourse. Knowing English I can usually determine swiftly and straightforward- ly the meaning of a statement, oral or written, made to me in English (not always, because the statement may be garbled, grammatically intricate or inaccurate, obtuse, or complex beyond my ability to understand).

The second form of interpretation, illustrated by the commonplace local ordinance which commands “no vehicles in the park,” is interpretation by unexpressed intent, where- by we understand that although an ambulance is a vehicle, the ordinance was not intended to include ambulances among the “vehicles” forbidden to enter the park. This mode of interpretation received its definitive statement in Black- stone’s analysis of the medieval law of Bologna which stated that “whoever drew blood in the streets should be punished with the utmost severity.” William Blackstone, Commentaries on the Laws of England *60 (1765). Blackstone asked whether the law should have been interpreted to make punishable a surgeon “who opened the vein of a person that fell down in the street with a fit.” (Bleeding a sick or injured person was a common form of medical treatment in those days.) Blackstone thought not, remarking that as to “the effects and con- sequence, or the spirit and reason of the law … the rule is, where words bear either none, or a very absurd signification, literally understood, we must a little deviate from the received sense of them.” Id. *59–60. The law didn’t mention surgeons, but Blackstone thought it obvious that the legisla- tors, who must have known something about the medical activities of surgeons, had not intended the law to apply to them. And so it is with ambulances in parks that prohibit vehicles.

Finally and most controversially, interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance to- day. An example of this last form of interpretation—the form that in my mind is most clearly applicable to the pre- sent case—is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition. Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth- century, understanding of the relevant economics. The Act has thus been updated by, or in the name of, judicial interpretation—the form of interpretation that consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting “original meaning.” Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning— constitutional provisions even more frequently, because most of them are older than most statutes.

Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted. But I need to emphasize that this third form of interpretation—call it judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.

* The legislative history of the prohibition has been problematic since the first emoloyment cases on sex discrimination. The provision was inserted at the last minute following a last ditch attempt to defeat the Civil Rights Act by adding protections for women, something opponents of the act thought would kill it. Instead, the acts supporters embraced it with no debate. See R. Bird, More an a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, Wm. & Mary Journal of Women and the Law, 137 (1997).I am fairly certain that sexual orientation was on no mind of anyone voting on the act in 1964. This is what makes Judge Posner’s concurrence so compelling.

Picture of Judge Posner & his cat from The New Yorker by way of abovethelaw.com

U.S. Supreme Court rules that when a conviction is overturned following review and there will be no retrial, the government is required to refund all court costs, restitution, and fees extracted as a result of the conviction

Nelson v. Colorado, ___U.S.___, No. 15–1256 (April 1, 2017)

In two cases from Colorado, petitioners/defendants who had their convictions overturned and did not face retrial, the state refused to return monies extracted from the petitioners’ inmate accounts for fees and costs, and in one case, restitution. The Colorado Supreme Court reversed a lower court ruling ordering return of the funds, saying there was no statutory authority to do so. (Colorado did have statutes authorizing return of funds to some inmates whose convictions were overturned on proof of actual innocence, but it did not apply to these cases.) Six members of the Supreme Court found authority to do so in the Due Process Clause. Justice Ginsberg wrote, “Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right.” The case was remanded for further proceedings. Justice Alito reached the same result by a different route, arguing with what he saw as reasoning that every conviction that is overturned is equivalent to a finding of innocence. Still, he agreed that under the circumstances of this case and the manner which Colorado restricted the return of funds to inmates whose convictions were overturned, the petitioners were entitled to their money back.

A defendant does not have to assert the insanity defense in order to plead guilty but mentally ill

Commonwealth v Andrews, 2017 PA Super. 91 (April 7, 2017)

Mr. Andrews was tried and convicted of stabbing his neighbor to death after a verbal confrontation with her. He thought she looked down on him, and the confrontation inflamed his feelings towards her. He was found at the scene and immediately confessed. He proceeded to trial, and offered a diminished capacity defense, which was rejected, and convicted of first degree murder and burglary. His conviction was affirmed on appeal.

Mr. Andrews thereafter filed a PCRA petition alleging that he received ineffective assistance of counsel because his lawyer did not advise him to plead guilty but mentally ill, which if successful (he alleged), would have entitled him to psychiatric treatment while serving his life sentence. Following the procedures set forth in Pa.R,Crim.Pro 907, the Commonwealth obtained dismissal of the petition without a hearing because Mr. Andrews did not allege that he could prove he was insane. The Superior Court reversed, because acceptance of a plea of guilty but mentally ill, governed by 18 Pa.C.S. §314(b), does not require an allegation or proof of insanity. The case was remanded for further proceedings.

Superior Court declines to adopt bright line rule for determining when defendant invokes his right to remain silent

Commonwealth v. Lukach, 2018 PA Super 100 (April 11, 2017)

Following a murder, suspicion focused on Mr. Lukach. He was questioned on the day of the murder, and arrested the next day. When administered his Miranda rights and asked if he wanted to answer questions, he replied, “I don’t know, just, I’m done talking. I don’t have nothing to talk about.” The police chief speaking to him said, “You don’t have to say anything, I told you that you could stop,” and then continued to question him until nine minutes later Mr. Lukach asked for a lawyer. The suppression court suppressed the statement and all evidence recovered as a result of its exploitation, and the Commonwealth appealed. In the face of the Commonwealth’s argument that a defendant had to clearly and unambiguously evoke his right to remain silent, the Superior Court declined to adopt such a bright line test, and found that Mr. Lukach’s words were enough to evoke the right. It also rejected the Commonwealth’s contention that Mr. Lukach nevertheless made a full and free statement. The police chief’s questioning immediately after Mr. Lukach said he was “done talking” was enough to undercut any argument that the right to silence was waived. The circumstances were coercive, the time not attenuated, so the confession was coerced.

Evidence that defendant intended to induce witness not to testify insufficient to prove intimidation

Commonwealth v. Evans, 2017 PA Super 90 (April 6, 2017)

Mr. Evans, after being convicted of rape and related offenses, was tried for solicitation to intimidate (18 Pa.C.S. § 902(a); 18 Pa.C.S. § 4952(a)(6)) one of the witnesses at his trial The Commonwealth’s evidence, from a stipulated waiver trial, was that on multiple occasions he called, and during prison visits, spoke to, an acquaintance to encourage her to call the victim not to testify in exchange for money. The acquaintance also received from Mr. Evan’s family about the victim’s family and the victim’s social media account. The Superior Court deemed this evidence insufficient to convict Mr. Evans of witness intimidation. Because one cannot confer “intimidation” merely from an offer to pay someone not to testify, the Commonwealth’s evidence of intimidation fell short. The conviction was vacated.

The “foregone conclusion” exception to assertions of privilege against self-incrimination against orders to produce/ When testimonial aspects of electronic devices are a foregone conclusion, privilege against self-incrimination is not a shield against order providing passwords to provide access to them

U.S. v. Apple Macpro Computer, No. 15-3537 (3d Cir, 3/20/2017)

The Third Circuit affirmed a magistrate judge’s order under the All Writs Act compelling the owner of computers and accessory hard drives to provide passwords to enable the government to view child pornography images analysis of the devices indicated were present. The ubiquitous John Doe’s computers, hard drives, and 2 iPhones were seized by state authorities investigating child pornography. Forensic investigation revealed the existence of filenames indicative of the presence of child pornography. Doe’s sister also told investigators that Doe had shown her hundreds of images of child pornography on his computer and hard drives. Doe provided the password to an iPhone that had no offending images, but not to the other devices. The government applied for and received from the magistrate judge an order pursuant to the All Writs Act requiring Doe to provide the passwords. Doe’s motion to quash the order was denied, and he did not appeal. (No explanation is given for that failure. Judging from who very experienced and competent counsel was, the likely explanation that occurs to me is a client who did not tell his lawyer how to contact him.) Doe showed up to comply with the order, and provided the passwords to the other iPhone which yielded a number of illegal images, but claimed to forget the passwords to the hard drives, making several failed attempts to open them. The government thought Doe was lying, so it sought a contempt order form the District Court. Doe offered no evidence at the hearing, and he was held in contempt, and appealed.

The Court overruled Doe’s procedural objections to the order. On his claim that the order violated his privilege against self-incrimination, which, because of Doe’s failure to preserve it by not appealing the magistrate judge’s refusal to quash the order to provide the passwords, was reviewed under a standard of review more deferential to the district court than would have been the case had the objection been preserved, the Court found that while passwords to electronic devices can be protected by the 5th Amendment, this case was subject to the “foregone conclusion” exception to the right against self-incrimination. “Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel.” (Citations omitted.) In this case it could. Moreover, Doe, when the police initially took his devices, said that he would not give the police his password because he did not want them looking at his computer— he did not say that he forgot his passwords.

“Intellectual Disability” of capital defendants must be assessed by the latest scientific standards, and not by standards professional have long abandoned

Moore v. Texas, ___U.S. ___, No 15-797 (3/28/17)

I will follow the example of Douglas Berman’s excellent Sentencing Law and Policy blog and simply quote the first 3 paragraphs from Justice Ginsberg’s opinion to tell you all you need to know about this case.

Bobby James Moore fatally shot a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution. A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U. S. 304 (2002), and Hall v. Florida, 572 U. S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.” The habeas court therefore recommended that Moore be granted relief.

The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S. W. 3d 1 (2004). See Ex parte Moore, 470 S. W. 3d 481, 486–487 (2015). The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S. W. 3d, at 526.

We vacate the CCA’s judgment. As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U. S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7). That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual dis- ability will be executed,” 572 U. S., at ___ (slip op., at 1). Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.

It is refreshing in this day when many legislators and government officials think science is merely another point of view to have at least 5 members of our highest court to remind us it isn’t. I suggest reading Chief Justice Roberts’ dissent so you know what this opinion tells lower courts what they cannot do— always substitute societal (I guess in this case, that means Texans’) standards of decency for a medical assessment of clinical practice when psychological issues are at issue.

42 Pa.C.S. §9545(b)(1)(ii) exception to PCRA timeliness rule if not the same as the after discovered evidence rule of 42 Pa.C.S. § 9543(a)(2); Presumption that information of public record cannot be considered “unknown” for purposes of proving the newly-discovered facts exception to the time requirements of the PCRA does not apply to pro se prisoner petitioners

Commonwealth v. Burton, 9 WAP 2016 (Pa. 3/28/2017)

Corrections officer interviewed several inmates after finding an inmate dead under his cot with a ligature around his neck at the Allegheny County jail in 1993. Information form one of the interviewees implicated Mr. Burton, but when he was interviewed he denied even being in the deceased’s cell, although another inmate said he had been then. Other inmates reported that Mr Burton and another inmate were struggling with the deceased’s in his cell right before his death. And yet another reported that Mr. Burton had said he need to “fix” the deceased. Mr. Burton was tried for and convicted of murder in 1993. A co-defendant was convicted only of conspiracy. Mr. Burton’s conviction affirmed on appeal. Two subsequent PCRA petitions were unsuccessful.

In 2013, Mr. Burton received a letter form the Pennsylvania Innocence Project that had a 2009 expungement motion from the co-defendant wherein he claimed he murdered the vicim in self-defense. Within 60 days of receiving the letter, Mr. Burton filed a PCRA petition citing the expungement petition, claiming constituted newly-discovered exculpatory evidence that was unavailable at the time of his trial and which would have changed the outcome of his trial if the evidence had been introduced. Supporting his claim that the timeliness exception of 42 Pa.C.S. §9545(b)(1)(ii) he cited Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (an incarcerated PCRA litigant is not automatically deemed to have notice of dismissal of his case due to his lawyer failing to file a brief when counsel did not tell him of the dismissal”; §9545(b)(i)(ii) is not an “after discovered evidence exception”). The PCRA court dismissed the petition on timeliness grounds, but the Superior Court (in both panel and en banc divided opinions) reversed and reinstated the petition.

A thoughtful opinion by Justice Todd affirmed the Superior Court, she first went to lengths to state that 42 Pa.C.S. §9545(b)(i)(ii) is not the traditional “after discovered evidence” rule. To qualify for it, a petition needs to show “a petitioner need only establish that the facts upon which the claim is based were unknown to him and could not have been ascertained by the exercise of due diligence.” Using the Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., Justice Todd wrote, “In requiring that the facts be unknown to the petitioner, the statute itself contains no exception, express or constructive, regarding information that is of public record.” In so doing, the Court rejected holdings in Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 2000) and cases citing it that matters of public record for more than sixty days prior to filing a petition cannot be unknown to a petition under §9545(b)(1)(ii) as pronouncements underwritten by little analysis. Also, answering the dissenters arguments, Justice Todd discussed the inadequacies of prison law libraries, and prisoners lack of access to up to date court dockets. (This part of the opinion was based on an amicus brief filed by a group call “Pennsylvania Exonorees.” I have not been able to find this brief anywhere online. If someone does and says me the link I will post it here. From Justice Todd’s description it is a wonderful “Brandeis brief” about the difficulty inmates have getting access to information about their cases.) The final holding: “[I]n determining whether a petitioner qualifies for the exception to the PCRA’s time requirements pursuant to subsection 9545(b)(1)(ii), the PCRA court must first determine whether “the facts upon which the claim is predicated were unknown to the petitioner.” In some cases, this may require a hearing. 23 After the PCRA court makes a determination as to the petitioner’s knowledge, it should then proceed to consider whether, if the facts were unknown to the petitioner, the facts could have been ascertained by the exercise of due diligence, including an assessment of the petitioner’s access to public records.”

Evidence of subsequent residential burglary to show defendant did not commit crime inadmissible under Pa.R.E. 402.

Commonwealth v Gill, 2017 PA Super 80 (March 28, 2017)

Mr. Gill was charged burglary, theft, and related charges concerning the 2013 theft of several hundred dollars from a lockbox located in the house of an acquaintance who had given Mr. Gill the combination to the strongbox. The evidence included that of a witness who claimed he gave Mr. Gill a ride to the victim’s house during the period in which the theft occurred, and the victim returned form the house with hundreds of dollars in cash. There was no evidence of forced entry of the victim’s house, the victim not able to pinpoint when the burglary occurred.

Before trial Mr. Gill filed a motion in limine to introduce evidence of a 2016 report by the victim of what Mr. Gill alleged was a similar (as to amount stolen, means, extended time over which theft occurred, lack of forced entry, etc.) burglary. He filed an amended motion in limine asking to introduce testimony from the victim’s daughter that in 1995 he accuSed her of stealing $30,000 from him. The trial court ruled that it would allow evidence of the 2016 burglary to be admitted, and the Commonwealth appealed, and the Superior Court reversed. The discussion is fact specific, but may prove useful to anyone contemplating the use or having to defend against the introduction of prior crimes evidence under the relevancy rule in Pa.R.E. 402.

Separate sentences for 18 Pa.C.S.§§3121(c) and 3123(b) not allowed

Commonwealth v. Brown, 2017 PA Super. 79 (3/28/17)

A jury convicted Mr. Brown of rape of a child, involuntary deviate sexual intercourse (“IDSI”) with a child, unlawful contact with minor, indecent assault of person less than 13, and corruption of minors. Although the victim testified about multiple incidents of oral sex, the Commonwealth only filed one count each for 18 Pa.C.S.§§3121(c) and 3123(b) for one date.  He received lengthy consecutive sentences for both counts.

Claims that crimes merged for sentencing purposes implicate the legality of the sentence. The merger statute, 42 Pa.C.S. § 9765, which codifies the Pennsylvania’s merger jurisprudence, reads:

No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

Citing earlier case law, the Court held that imposing two sentences for one act of penetration is illegal under the double jeopardy clause of the United States Constitution. It concluded that the offenses of rape of a child and IDSI with a child are identical where the sexual act at issue is oral sex. Thus, the separate sentences were illegal, and the matter was remanded for resentencing.