Criminal Procedure Outline

Carter Criminal Procedure Fall 2013

I. Statutory Construction

a. McDonald v. City of Chicago

i. Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed.

ii. H: The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such “fundamental” and “deeply rooted” right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine whether Chicago’s handgun ban violated an individual’s right to keep and bear arms for self-defense.

iii. Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas’s separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second Amendment against the states. Alito stated that the Court’s decision in the Slaughterhouse Cases — rejecting the use of the Privileges or Immunities Clause for the purpose of incorporation — was long since decided and the appropriate avenue for incorporating rights was through the Due Process Clause.

iv. Justice Antonin Scalia concurred. He agreed with the Court’s opinion, but wrote separately to disagree with Justice John Paul Stevens’ dissent. Justice Clarence Thomas concurred and concurred in the judgment. He agreed that the Fourteenth Amendment incorporates the Second Amendment against the states, but disagreed that the Due Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated that the Privileges or Immunities Clause was the more appropriate avenue for rights incorporation.

v. Justice John Paul Stevens dissented. He disagreed that the Fourteenth Amendment incorporates the Second Amendment against the states. He argued that owning a personal firearm was not a “liberty” interest protected by the Due Process Clause. Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented. He argued that there is nothing in the Second Amendment’s “text, history, or underlying rationale” that characterizes it as a “fundamental right” warranting incorporation through the Fourteenth Amendment.

b. Skilling v. US

i. A Texas federal district court convicted Jeffrey Skilling of conspiracy, securities fraud, making false representations to auditors, and insider trading. Mr. Skilling was the former C.E.O. of Enron Corp. On appeal, he argued that the government prosecuted him under an invalid legal theory and that the jury was biased. The United States Court of Appeals for the Fifth Circuit affirmed the conviction, but vacated Mr. Skilling’s sentence and remanded the case for resentencing. The court first held that the government’s theory under the “Honest Services” fraud statute was valid. It reasoned that it was immaterial whether Enron’s board of directors knew or even tacitly approved of Mr. Skilling’s fraudulent conduct when he withheld information that would lead a reasonable employer to change its conduct. Moreover, the court held that while Mr. Skilling proved that there was sufficient inflammatory and pervasive pretrial publicity to require a presumption that prejudice tainted the jury, the government met its burden to show that jury screening was adequate, and that the district court did not empanel any juror who was unconstitutionally prejudiced.

ii. H: The Supreme Court held that pretrial publicity and community prejudice did not prevent Mr. Skilling from obtaining a fair trial. He did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. With Justice Ruth Bader Ginsburg writing for the majority, the Court noted substantial differences between Mr. Skilling’s case and in those where a presumption of juror prejudice arose. Most notably, the Court recognized that Mr. Skilling’s trial took place in Houston, the fourth most populous city in the United States, as opposed to a local hamlet where it would more difficult to weed out biased jurors. The Court also recognized that the jury that convicted Mr. Skilling acquitted him of nine other counts. The Court further held that Section 1346, which proscribes fraudulent deprivations of “the intangible right of honest services,” is properly confined to cover only bribery and kickback schemes. Here, Mr. Skilling’s alleged misconduct entailed no bribe or kickback, and thus did not fall within Section 1346’s coverage.

iii. Justice Antonin Scalia, joined by Justices Clarence Thomas and Anthony M. Kennedy, concurred in part and concurred in the judgment. He agreed with the Court’s holding and reasoning as to Mr. Skilling’s jury impartiality challenge. He also agreed that the Fifth Circuit’s decision with respect to the “honest services fraud” claim warranted reversal, but on different grounds. He reasoned that Section 1346 is impermissibly vague and therefore violates the constitution. Justice Samuel A. Alito also concurred in part and concurred in the judgment. He clarified that his understanding of the “impartial jury” requirement dictated by the Sixth Amendment requires only that “no biased juror is actually seated at trial.” Justice Sonia Sotomayor, joined by Justice

iv. John Paul Stevens and Stephen G. Breyer, concurred in part and dissented in part. She agreed with the Court’s resolution of the “honest services fraud” claim. However, she disagreed that Mr. Skilling received a fair trial considering the hostility that emerged in Houston after the collapse of Enron.

II. Grand Jury

a. Historical Background

i. The grand jury predates the Constitution and was used in England to investigate political officials and crimes against ‘the Crown’

ii. The 5th Amendment established the Grand Jury system in the US, but the grand jury does not technically belong to any branch of government.

b. Grand Jury Makeup

i. In the federal system the grand jury is made up of a 16-member quorum, but in some states the grand jury is composed of a 23-member quorum.

ii. Of the 16 members 12 are needed to issue an indictment.

c. Grand Jury Proceedings

i. Grand jury proceedings are closed to the public. They are unilateral proceedings, which are argued by the prosecution only.

ii. The role of judges:

a. Judges are not present during grand jury hearings, but judges do:

1. Select the jury foreman

2. Resolve disputes between the grand jury and the prosecution

iii. Persons present during grand jury hearings:

a. Prosecutor

b. Grand Jury

c. Witnesses

d. Court Reporter/Stenographer

e. Interpreter (as needed)

iv. If the grand jury finds enough evidence