POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/26, we first went over the two Maine statutory handouts from last class, the one about adoptions, and the one about Maine subject matter jurisdiction. We then went over Cheap Escape v. Haddox, and the somewhat weird Ohio statute. I then discussed three other cases regarding the meaning of subject matter jurisdiction: Landmark Realty v. Leasure from the Maine Supreme Court, and two cases from the U.S. Supreme Court, Bowles v. Russell and Hamer v. Neighborhood Housing. Finally I started our discussion of personal jurisdiction by going over 4 bases of personal jurisdiction: service of process within the state, waiver, domicile, and contacts.
The assignment for Tuesday 5/1 is to review Swoboda v. Hero Decks (previously assigned) and to read in addition through p. 141, including St. James Apartments v. Coinmatch.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/26, I distributed one handout, an excerpt of the Maine Rules of Court regarding jury selection. We reviewed the Powell case, and then went through the two opinions in Gideon v. Wainwright. We discussed the current case of McCoy v. Louisiana from the two handouts from last class, and the question of of whether effective assistance of counsel requires that lawyers follow the instructions of the client, even if the client is making bad choices. We began our discussion of the selection of juries, and will pick up next week with the Batson case. I will also talk about two recent cases that I didn't get to today, Pena-Rodriguez v. Colorado and Tharpe v. Sellers.
The assignment for Tuesday 5/1 is to review Batson v. Kentucky (previously assigned), to read today's handout, and to read from the text pp. 555-562 (including Sheppard v. Maxwell).
Thursday, April 26, 2018
Tuesday, April 24, 2018
April 24, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/24, I distributed three handouts: an excerpt from Obergefell v. Hodges about recognition of out-of-state same-sex marriages, an excerpt of Maine statutes regarding adoptions, and Maine statutes regarding subject-matter jurisdiction. I started class by reviewing the concept of conflict of laws (or "choice of laws") by going over the recent case of Norris v. Myers Springs. We saw how a double dose of bad lawyering may have gotten the plaintiff what he wanted all along. We then moved on to Full Faith and Credit. We discussed the difference in recognition of judicial judgments versus things like marriage that do not require a court's blessing. We went over Finstuen v. Crutcher, and then we went over the excerpt from Obergefell that mandated recognition of out-of-state same sex marriages. I talked about a recent U.S. Supreme Court case, V.L. v. E.L., in which the necessity of recognition of an out-of-state adoption depended on whether that out-of-state adoption court had subject-matter jurisdiction over the adoption, even if it appears that it didn't follow the state statute. We then began our discussion of subject matter jurisdiction and the Cheap Escape case. On Thursday I will begin by looking at today's handout of Maine statutes on adoption, and ask whether Maine would grant an adoption in the same circumstance as in V.L., as well as what federal law says about recognition of same sex relationships. We will then finish our discussion of Cheap Escape. I plan to discuss some Maine and federal cases regarding what those governments mean by the the term subject matter jurisdiction.
The assignment for Thursday 4/26 is review Cheap Escape, review today's handouts, and to read in addition pp. 129-136 of the text, including Swoboda v. Hero Decks.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/24, I handed back the Assignment #2 papers, as well as a sheet of notes about my comments on the papers and an explanation of how the papers were graded. I also distributed two other handouts, both a preview and an analysis of the oral argument in the current Supreme Court case of McCoy v. Louisiana. In that case, the accused wanted to maintain his innocence, but his lawyer basically overrode the client's wishes, and admitted guilt (in a fruitless effort to avoid the death penalty). If the lawyer does that, is the client denied the effective assistance of counsel?
After going over the assignment, we went through the Powell v. Alabama case. We looked at four issues brought up by the majority: whether the appointment of counsel lasted beyond the arraignment; whether the lack of a lawyer to make use of the time between the arraignment and the trial violated due process; whether the failure to appoint counsel who was specifically responsible for the case violated due process; and whether due process requires that appointment in the circumstances, include not only of a lawyer, but the appointment of an effective lawyer.
The assignment for Thursday 4/26 is to read the two handouts, review Gideon, and to read in addition through p. 556 of the text (Batson).
In class today, Tuesday 4/24, I distributed three handouts: an excerpt from Obergefell v. Hodges about recognition of out-of-state same-sex marriages, an excerpt of Maine statutes regarding adoptions, and Maine statutes regarding subject-matter jurisdiction. I started class by reviewing the concept of conflict of laws (or "choice of laws") by going over the recent case of Norris v. Myers Springs. We saw how a double dose of bad lawyering may have gotten the plaintiff what he wanted all along. We then moved on to Full Faith and Credit. We discussed the difference in recognition of judicial judgments versus things like marriage that do not require a court's blessing. We went over Finstuen v. Crutcher, and then we went over the excerpt from Obergefell that mandated recognition of out-of-state same sex marriages. I talked about a recent U.S. Supreme Court case, V.L. v. E.L., in which the necessity of recognition of an out-of-state adoption depended on whether that out-of-state adoption court had subject-matter jurisdiction over the adoption, even if it appears that it didn't follow the state statute. We then began our discussion of subject matter jurisdiction and the Cheap Escape case. On Thursday I will begin by looking at today's handout of Maine statutes on adoption, and ask whether Maine would grant an adoption in the same circumstance as in V.L., as well as what federal law says about recognition of same sex relationships. We will then finish our discussion of Cheap Escape. I plan to discuss some Maine and federal cases regarding what those governments mean by the the term subject matter jurisdiction.
The assignment for Thursday 4/26 is review Cheap Escape, review today's handouts, and to read in addition pp. 129-136 of the text, including Swoboda v. Hero Decks.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/24, I handed back the Assignment #2 papers, as well as a sheet of notes about my comments on the papers and an explanation of how the papers were graded. I also distributed two other handouts, both a preview and an analysis of the oral argument in the current Supreme Court case of McCoy v. Louisiana. In that case, the accused wanted to maintain his innocence, but his lawyer basically overrode the client's wishes, and admitted guilt (in a fruitless effort to avoid the death penalty). If the lawyer does that, is the client denied the effective assistance of counsel?
After going over the assignment, we went through the Powell v. Alabama case. We looked at four issues brought up by the majority: whether the appointment of counsel lasted beyond the arraignment; whether the lack of a lawyer to make use of the time between the arraignment and the trial violated due process; whether the failure to appoint counsel who was specifically responsible for the case violated due process; and whether due process requires that appointment in the circumstances, include not only of a lawyer, but the appointment of an effective lawyer.
The assignment for Thursday 4/26 is to read the two handouts, review Gideon, and to read in addition through p. 556 of the text (Batson).
Thursday, April 19, 2018
April 19, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/19, we first went through Hubbard v. Greeson, exploring the concept of common law choice of law rules, and then seeing how the Indiana Supreme Court changed their long-standing Indiana choice of law rule. We then saw how the new rule from Hubbard got applied by the federal courts in Land v. Yamaha. We talked about the Indiana Statute of Repose that barred any action against Yamaha, and contrasted that with the standard Statute of Limitations. We also talked about the two bases for federal court subject-matter jurisdiction, federal question jurisdiction and diversity jurisdiction. I also introduced the concept of personal jurisdiction, which we will get to later next week.
The assignment for Tuesday 4/24 is to read in the text pp. 115-119 (Full Faith and Credit, Finstuen v.Crutcher, and pp. 123-129 (subject-matter jurisdiction and Cheap Escape v. Haddox).
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/19, I collected the assignments. I plan to grade them this weekend, and to return them on Tuesday. We spent most of the class period going over the assignment. Along the way, we also went over the status of authority between the state court system and the federal courts (whether a federal court op appeals has mandatory authority over a state supreme court). In addition to assignment questions, we also discussed the separate issue of voluntariness.
The assignment for Tuesday 4/24 is to read in the text pp.536-545, including Powell v. Alabama and Gideon v. Wainwright.
In class today, Thursday 4/19, we first went through Hubbard v. Greeson, exploring the concept of common law choice of law rules, and then seeing how the Indiana Supreme Court changed their long-standing Indiana choice of law rule. We then saw how the new rule from Hubbard got applied by the federal courts in Land v. Yamaha. We talked about the Indiana Statute of Repose that barred any action against Yamaha, and contrasted that with the standard Statute of Limitations. We also talked about the two bases for federal court subject-matter jurisdiction, federal question jurisdiction and diversity jurisdiction. I also introduced the concept of personal jurisdiction, which we will get to later next week.
The assignment for Tuesday 4/24 is to read in the text pp. 115-119 (Full Faith and Credit, Finstuen v.Crutcher, and pp. 123-129 (subject-matter jurisdiction and Cheap Escape v. Haddox).
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/19, I collected the assignments. I plan to grade them this weekend, and to return them on Tuesday. We spent most of the class period going over the assignment. Along the way, we also went over the status of authority between the state court system and the federal courts (whether a federal court op appeals has mandatory authority over a state supreme court). In addition to assignment questions, we also discussed the separate issue of voluntariness.
The assignment for Tuesday 4/24 is to read in the text pp.536-545, including Powell v. Alabama and Gideon v. Wainwright.
Tuesday, April 17, 2018
April 17, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today. Tuesday 4/17, I handed back the Corbin case briefs, as well as distributing my Comment Key to the brief. I went over what I was looking for in the case brief, and how a case brief can be useful in evaluating other situations. Then we went over the Dempsey case, and looked at the choices made by the Montana Supreme Court regarding the rules for retroactive application of a new rule. I then went over the four federal cases discussed in Dempsey: Chevron, Harper, Linkletter and Griffith. Finally, we went over the Strunk case, looking at the situation in which there's really no precedent on point for a court to follow.
The assignment for Thursday 4/19 is to read in the text from pp. 113-116 (including Hubbard) and also pp. 144-146 (including Land).
POS 484 CRIMINAL DUE PROCESS
In class today. Tuesday 4/17, we first went over some questions about the assignment. We then went back through Ormsby, discussing both the issues that are part of the assignment, as well as those issues that are not part of the assignment. We began our discussion of Bridges, going over the basic facts of the events of the shooting, the alibi, and the 3 interviews. We will finish our discussion of Bridges, as well as Nightingale, on Thursday.
The assignment for Thursday 4/19 is to finish your Assignment #2 (due at the beginning of class on Thursday). In addition, review Bridges and Nightingale.
In class today. Tuesday 4/17, I handed back the Corbin case briefs, as well as distributing my Comment Key to the brief. I went over what I was looking for in the case brief, and how a case brief can be useful in evaluating other situations. Then we went over the Dempsey case, and looked at the choices made by the Montana Supreme Court regarding the rules for retroactive application of a new rule. I then went over the four federal cases discussed in Dempsey: Chevron, Harper, Linkletter and Griffith. Finally, we went over the Strunk case, looking at the situation in which there's really no precedent on point for a court to follow.
The assignment for Thursday 4/19 is to read in the text from pp. 113-116 (including Hubbard) and also pp. 144-146 (including Land).
POS 484 CRIMINAL DUE PROCESS
In class today. Tuesday 4/17, we first went over some questions about the assignment. We then went back through Ormsby, discussing both the issues that are part of the assignment, as well as those issues that are not part of the assignment. We began our discussion of Bridges, going over the basic facts of the events of the shooting, the alibi, and the 3 interviews. We will finish our discussion of Bridges, as well as Nightingale, on Thursday.
The assignment for Thursday 4/19 is to finish your Assignment #2 (due at the beginning of class on Thursday). In addition, review Bridges and Nightingale.
Thursday, April 12, 2018
April 12, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/12, I distributed one handout, my version of the Corbin case brief. I collected the case briefs from the class, and plan to return them on Tuesday. After going over the Corbin case brief, we went back into the textbook. We finished our discussion of Butler. I went over the Miranda case, and then the case of Harris v. N.Y., which basically took the same position as the Ohio Supreme Court had taken in Butler. I went through the votes in Miranda and Harris, which showed that the different results in those two cases was not due to any of the Justices really thinking that there should be different results for unMirandized statements in the case-in-chief v. for purposes of impeachment. I also went over three examples of different types of dictum from three case we have studied so far, Butler, NFIB, and Mobbley.
The assignment for Tuesday 4/17 is to read in the text through p. 113, including Dempsey and Strunk.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/12, we first went over the 4 questions of assignment #2, trying to get to the point of each question. (I reminded the class that the non-collaboration rule includes not sharing class notes or discussion with anyone who was not in class today). Then we started dissecting the first issue in Ormsby, whether he was in custody before the break. We went through the 10 custody factors,and saw how many of them pointed to custody, even though the Court concluded that Ormsby was not in custody. We will pick up with the remainder of the Ormsby issues, and with Bridges and Nightingale, on Tuesday.
The assignment for Tuesday 4/17 is to work on Assignment #2 (due at the beginning of class Thursday, 4/19) and to review Ormsby, Bridges and Nightingale.
In class today, Thursday 4/12, I distributed one handout, my version of the Corbin case brief. I collected the case briefs from the class, and plan to return them on Tuesday. After going over the Corbin case brief, we went back into the textbook. We finished our discussion of Butler. I went over the Miranda case, and then the case of Harris v. N.Y., which basically took the same position as the Ohio Supreme Court had taken in Butler. I went through the votes in Miranda and Harris, which showed that the different results in those two cases was not due to any of the Justices really thinking that there should be different results for unMirandized statements in the case-in-chief v. for purposes of impeachment. I also went over three examples of different types of dictum from three case we have studied so far, Butler, NFIB, and Mobbley.
The assignment for Tuesday 4/17 is to read in the text through p. 113, including Dempsey and Strunk.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/12, we first went over the 4 questions of assignment #2, trying to get to the point of each question. (I reminded the class that the non-collaboration rule includes not sharing class notes or discussion with anyone who was not in class today). Then we started dissecting the first issue in Ormsby, whether he was in custody before the break. We went through the 10 custody factors,and saw how many of them pointed to custody, even though the Court concluded that Ormsby was not in custody. We will pick up with the remainder of the Ormsby issues, and with Bridges and Nightingale, on Tuesday.
The assignment for Tuesday 4/17 is to work on Assignment #2 (due at the beginning of class Thursday, 4/19) and to review Ormsby, Bridges and Nightingale.
Tuesday, April 10, 2018
April 10, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/10, I first reminded the class that the Corbin case briefs are due Thursday. We went over a few questions about the case brief. We reviewed the limits on Congress by Article I Section 8, and We then went over NFIB v. Sebelius. We went through Roberts' opinion, looking at his arguments from the text of the constitution, from precedent, and from the consequences of a decision the other way (the parade of horribles). We also looked at Ginsburg's dissent, and the "Joint Dissent's" agreement with Roberts. In terms of limitations on state power, I talked about the U.S. Supreme court case of Rowe v. N.H. Motor Transport, in which the Court struck down a Maine statute because the federal power had preempted any state power to regulate the delivery of cigarette products to minors in Maine. We began our discussion of Butler by going over what it was the the Court had decided in Miranda. On Thursday we will first go over the Corbin case brief, and then we'll pick up with Butler's analysis of dictum in Miranda.
The assignment for Thursday 4/12 is to finish your Corbin case briefs, due at the beginning of Thursday's class, and to review Butler, previously assigned.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/10, I distributed 3 handouts: Assignment #2 (reproduced below); State v. Bridges, 2003 ME 103; and State v. Nightingale, 2012 ME 132. We went over the requirements of the assignment, which is due at the beginning of class Thursday 4/19. We then went back through the 3 Seibert opinions, trying to pick out the positions taken by each opinion, as well as guessing about which of the opinions states the actual holding of Seibert. We then turned to Ormsby. We went over the background facts, and the sequence regarding Mirandizing Ormsby. We began watching the youtube video of a portion of the interrogation, but time ran out on us. On Thursday we will finish our discussion of Ormsby. I also want to be able to discuss Assignment #2 with the class, so the assignment for Thursday 4/12 is to review Ormsby, read Bridges and Nightingale, and try to figure out in Assignment #2, what is the legal issue behind each of the 4 questions in the assignment, and what authority will you use to address the question. Also, please finish watching the video of the Ormsby interrogation, which can be found at
https://www.youtube.com/watch?v=me5Qhw_LHmY
(or else just go to youtube and search for Ormsby Maine interrogation).
Assignment due the beginning of class Thursday, April 19, 2018
The assignment consists of a total of four questions. For each one:
a) answer the question that is posed, with a brief analysis (in other words, every question carries with it the implied ending “and why”); if a solution is not clear, and it could be argued either way, explain the pros and cons of both ways;
b) briefly tell what authority you’re relying on for your answer, with paragraph numbers if possible, and with a brief explanation of what that authority provides.
The overall goal is that you want to get a confession out of the suspect Andy, and you want that confession be admissible in the Maine courts.
When the question asks you to make a specific assumption, that assumption just applies to that specific question only. Not all of the facts given to you will necessarily be crucial to your answer.
Assume that officers Fife and Pyle are courteous, low-key, and non-threatening throughout, unless the specific facts indicate otherwise.
You’ve got a limited set of authority to work with: Ormsby, Bridges, and Nightingale, as well as all the relevant cases from the textbook. No additional cases are required or allowed
Question 1:
Officers Fife and Pyle are brand new members of the homicide squad. Their first case involves a report that a car has been found in the Penobscot River, and there’s a body inside the car. Andy is a college student at the nearby university. The car belongs to Andy, and the body turns out to be Andy’s roommate Opie. Opie’s death is clearly a homicide, as forensics determines that he was dead of blunt force trauma before he went into the water. Officers Fife and Pyle immediately have a hunch that Andy is the perpetrator of the homicide, and he is the focus of their interrogation. DNA from the car matches Andy’s, but, as Officer Fife points out to Officer Pyle, that doesn’t help much, since the car belongs to Andy.
They call Andy and tell him that they need him to come down to police headquarters to identify the car (which has been brought to headquarters after it was recovered from the river). That’s a small part of the reason for having him come in, though, since the overriding reason is to wring a confession out of Andy.
Officer Fife wants to tell Andy as soon as Andy comes to the station that they’ve got some additional questions for him (beside the identification of the car), but that he’s free to leave if he wishes. He thinks (with good reason) that Andy won’t want to leave at that point, because Andy doesn’t know that he’s already the focus of the investigation. Fife also wants to Mirandize Andy right from the start. Fife thinks (again with good reason) that there’s little danger of Andy clamming up at this point, again because Andy has no idea that he’s already the focus of the investigation. If Andy asks about why he’s being Mirandized, Fife will just tell Andy that Miranda warning are routine when there’s a dead person involved.
Officer Pyle agrees with the part about telling Andy that he’s free to leave (before they give Andy any reason to leave), but he doesn’t want to Mirandize Andy before they have to.
1) Assuming that Andy is not in custody at this point, which officer has the better plan in terms of whether to Mirandize Andy right away?
Question 2:
Assume that Fife and Pyle do tell Andy that he’s free to leave, and do Mirandize him, and that he’s still not in custody for the entirety of Question 2.
Fife and Pyle start by telling Andy that they realize that Opie was a bad person. They get Andy talking about all the bad things that Opie did (dealing drugs, not cleaning the bathroom shower, etc.). Once Andy’s comfortable, they tell him that they know what Andy knows, and that soon he’ll know that they know what he knows. Andy just looks confused, just as most reasonable people would be on hearing that.
Fife and Pyle start to make up lots of lies that tend to incriminate Andy in Opie’s murder. They tell Andy that people have seen the two roommates arguing (the two had argued, but Andy hadn’t thought that anyone had seen them). Fife and Pyle tell Andy that Opie had called his parents and told them that he was afraid of Andy (total fabrication, but somewhat believable to Andy). They told Andy that confessing would be good for his soul, and that he would feel better if he told them everything.
Andy gets very distressed at this point, and tells the officers that he wants to talk to an attorney. They told him that sure, he could do that, but why don’t they all just take a break for a while. They tell Andy again that he’s free to leave, but they offer to get Andy his favorite pizza. Andy likes the sound of that, and he sticks around, and then he feels much better after the pizza.
2) Is there any problem with continued interrogation after Andy has asked for an attorney?
Question 3:
Assume instead that Andy did not ask for an attorney, and was not Mirandized at any point up to the beginning of Question 3, Assume also that Fife and Pyle are pretty sure that they can get a confession out of Andy after he gets some pizza in his belly. They are pretty sure that they’ve got enough to arrest him already (and you can assume that they are right) but it sure would be nice to get a confession out of Andy. Assume that Andy is in custody for Miranda purposes.
Officer Fife now wants to tell Andy that he’s under arrest, then Mirandize Andy, and then get him to admit that he killed Opie. Both officers realize that the Miranda warnings at that point might cause Andy to quit talking.
On the other hand, Andy seems to answer the questions that are put to him. Officer Pyle wants to simply question Andy about whether he did it (without telling him that he’s under arrest or Mirandizing him). If Andy admits to the killing, Officer Pyle will then tell Andy that he’s under arrest, Mirandize him, and ask him to repeat what he’s already admitted (and there’s a good chance that Andy will be willing to do that, since he’s already admitted it once).
3) Which officer has the better plan in terms of when to Mirandize Andy?
Question 4:
Assume the facts from questions 1 through 3, but not any assumptions about whether Andy has not been in custody for Miranda purposes. Assume that Andy has been told that he’s free to leave, but has never been Mirandized.
The pizza break is over. The entire time in the police station has gone on for three hours already, and the officers feel that Andy’s resistance is breaking. Pyle plays the bad cop. Jabbing Andy with his finger, and with an intimidating tone, he tells Andy that he knows that Andy is lying, and that soon the truth will come out. He says (falsely) that the police have the DNA to prove that Andy killed Opie. Fife (as good cop) then just repeats that confessing would be good for Andy’s soul, and that Andy will finally feel better if he tells them everything. He says that things will go better in court for Andy if he tells the truth now.
Andy finally breaks down and confesses that he killed Opie after a fight about Opie eating Andy’s leftover pizza from the refrigerator.
4) Analyze whether Andy has been in custody for Miranda purposes at any point (and if so, at what point) during the events related in Questions 1 through 4.
You should clearly mark 1-4 for the 4 questions. Don’t repeat the questions - just give the answers. I anticipate that your paper will be roughly 2 or 3 pages long. When citing a case, underline the name of the case.
Here’s a sample answer to #1, which illustrates the format and citation form (but try not to emulate the degree of confusion exhibited below):
1) Fife has the better plan. If Andy is Mirandized right away, there’s basically no way that any statement that they get out of Andy will be suppressed. After all, both Ormsby and Nightingale were Mirandized right away, and so their statements were not suppressed. Ormsby §12; Nightingale, ¶15. On the other hand, Bridges was not Mirandized, and so her statements were suppressed (Bridges ¶12). There’s really no way to predict whether the Court will find whether a statement is voluntary or not, and so Mirandizing right away is the only way to make a statement admissible. Miranda itself says that no statements of a suspect can be admitted unless the 4 warnings have first been given (Miranda, text, p. 547)
The assignment will be graded on both the structure and the content of your paper. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.
Please make two copies of your paper, one to hand in at the beginning of class, and the other for you to have during class for our discussion.
You may e-mail me if you have specific questions about the assignment. The more time that I have to answer your questions, the more likely it is that I can be helpful.
If you cannot be in class on Thursday 4/19, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the paper. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.
In class today, Tuesday 4/10, I first reminded the class that the Corbin case briefs are due Thursday. We went over a few questions about the case brief. We reviewed the limits on Congress by Article I Section 8, and We then went over NFIB v. Sebelius. We went through Roberts' opinion, looking at his arguments from the text of the constitution, from precedent, and from the consequences of a decision the other way (the parade of horribles). We also looked at Ginsburg's dissent, and the "Joint Dissent's" agreement with Roberts. In terms of limitations on state power, I talked about the U.S. Supreme court case of Rowe v. N.H. Motor Transport, in which the Court struck down a Maine statute because the federal power had preempted any state power to regulate the delivery of cigarette products to minors in Maine. We began our discussion of Butler by going over what it was the the Court had decided in Miranda. On Thursday we will first go over the Corbin case brief, and then we'll pick up with Butler's analysis of dictum in Miranda.
The assignment for Thursday 4/12 is to finish your Corbin case briefs, due at the beginning of Thursday's class, and to review Butler, previously assigned.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/10, I distributed 3 handouts: Assignment #2 (reproduced below); State v. Bridges, 2003 ME 103; and State v. Nightingale, 2012 ME 132. We went over the requirements of the assignment, which is due at the beginning of class Thursday 4/19. We then went back through the 3 Seibert opinions, trying to pick out the positions taken by each opinion, as well as guessing about which of the opinions states the actual holding of Seibert. We then turned to Ormsby. We went over the background facts, and the sequence regarding Mirandizing Ormsby. We began watching the youtube video of a portion of the interrogation, but time ran out on us. On Thursday we will finish our discussion of Ormsby. I also want to be able to discuss Assignment #2 with the class, so the assignment for Thursday 4/12 is to review Ormsby, read Bridges and Nightingale, and try to figure out in Assignment #2, what is the legal issue behind each of the 4 questions in the assignment, and what authority will you use to address the question. Also, please finish watching the video of the Ormsby interrogation, which can be found at
https://www.youtube.com/watch?v=me5Qhw_LHmY
(or else just go to youtube and search for Ormsby Maine interrogation).
Assignment due the beginning of class Thursday, April 19, 2018
The assignment consists of a total of four questions. For each one:
a) answer the question that is posed, with a brief analysis (in other words, every question carries with it the implied ending “and why”); if a solution is not clear, and it could be argued either way, explain the pros and cons of both ways;
b) briefly tell what authority you’re relying on for your answer, with paragraph numbers if possible, and with a brief explanation of what that authority provides.
The overall goal is that you want to get a confession out of the suspect Andy, and you want that confession be admissible in the Maine courts.
When the question asks you to make a specific assumption, that assumption just applies to that specific question only. Not all of the facts given to you will necessarily be crucial to your answer.
Assume that officers Fife and Pyle are courteous, low-key, and non-threatening throughout, unless the specific facts indicate otherwise.
You’ve got a limited set of authority to work with: Ormsby, Bridges, and Nightingale, as well as all the relevant cases from the textbook. No additional cases are required or allowed
Question 1:
Officers Fife and Pyle are brand new members of the homicide squad. Their first case involves a report that a car has been found in the Penobscot River, and there’s a body inside the car. Andy is a college student at the nearby university. The car belongs to Andy, and the body turns out to be Andy’s roommate Opie. Opie’s death is clearly a homicide, as forensics determines that he was dead of blunt force trauma before he went into the water. Officers Fife and Pyle immediately have a hunch that Andy is the perpetrator of the homicide, and he is the focus of their interrogation. DNA from the car matches Andy’s, but, as Officer Fife points out to Officer Pyle, that doesn’t help much, since the car belongs to Andy.
They call Andy and tell him that they need him to come down to police headquarters to identify the car (which has been brought to headquarters after it was recovered from the river). That’s a small part of the reason for having him come in, though, since the overriding reason is to wring a confession out of Andy.
Officer Fife wants to tell Andy as soon as Andy comes to the station that they’ve got some additional questions for him (beside the identification of the car), but that he’s free to leave if he wishes. He thinks (with good reason) that Andy won’t want to leave at that point, because Andy doesn’t know that he’s already the focus of the investigation. Fife also wants to Mirandize Andy right from the start. Fife thinks (again with good reason) that there’s little danger of Andy clamming up at this point, again because Andy has no idea that he’s already the focus of the investigation. If Andy asks about why he’s being Mirandized, Fife will just tell Andy that Miranda warning are routine when there’s a dead person involved.
Officer Pyle agrees with the part about telling Andy that he’s free to leave (before they give Andy any reason to leave), but he doesn’t want to Mirandize Andy before they have to.
1) Assuming that Andy is not in custody at this point, which officer has the better plan in terms of whether to Mirandize Andy right away?
Question 2:
Assume that Fife and Pyle do tell Andy that he’s free to leave, and do Mirandize him, and that he’s still not in custody for the entirety of Question 2.
Fife and Pyle start by telling Andy that they realize that Opie was a bad person. They get Andy talking about all the bad things that Opie did (dealing drugs, not cleaning the bathroom shower, etc.). Once Andy’s comfortable, they tell him that they know what Andy knows, and that soon he’ll know that they know what he knows. Andy just looks confused, just as most reasonable people would be on hearing that.
Fife and Pyle start to make up lots of lies that tend to incriminate Andy in Opie’s murder. They tell Andy that people have seen the two roommates arguing (the two had argued, but Andy hadn’t thought that anyone had seen them). Fife and Pyle tell Andy that Opie had called his parents and told them that he was afraid of Andy (total fabrication, but somewhat believable to Andy). They told Andy that confessing would be good for his soul, and that he would feel better if he told them everything.
Andy gets very distressed at this point, and tells the officers that he wants to talk to an attorney. They told him that sure, he could do that, but why don’t they all just take a break for a while. They tell Andy again that he’s free to leave, but they offer to get Andy his favorite pizza. Andy likes the sound of that, and he sticks around, and then he feels much better after the pizza.
2) Is there any problem with continued interrogation after Andy has asked for an attorney?
Question 3:
Assume instead that Andy did not ask for an attorney, and was not Mirandized at any point up to the beginning of Question 3, Assume also that Fife and Pyle are pretty sure that they can get a confession out of Andy after he gets some pizza in his belly. They are pretty sure that they’ve got enough to arrest him already (and you can assume that they are right) but it sure would be nice to get a confession out of Andy. Assume that Andy is in custody for Miranda purposes.
Officer Fife now wants to tell Andy that he’s under arrest, then Mirandize Andy, and then get him to admit that he killed Opie. Both officers realize that the Miranda warnings at that point might cause Andy to quit talking.
On the other hand, Andy seems to answer the questions that are put to him. Officer Pyle wants to simply question Andy about whether he did it (without telling him that he’s under arrest or Mirandizing him). If Andy admits to the killing, Officer Pyle will then tell Andy that he’s under arrest, Mirandize him, and ask him to repeat what he’s already admitted (and there’s a good chance that Andy will be willing to do that, since he’s already admitted it once).
3) Which officer has the better plan in terms of when to Mirandize Andy?
Question 4:
Assume the facts from questions 1 through 3, but not any assumptions about whether Andy has not been in custody for Miranda purposes. Assume that Andy has been told that he’s free to leave, but has never been Mirandized.
The pizza break is over. The entire time in the police station has gone on for three hours already, and the officers feel that Andy’s resistance is breaking. Pyle plays the bad cop. Jabbing Andy with his finger, and with an intimidating tone, he tells Andy that he knows that Andy is lying, and that soon the truth will come out. He says (falsely) that the police have the DNA to prove that Andy killed Opie. Fife (as good cop) then just repeats that confessing would be good for Andy’s soul, and that Andy will finally feel better if he tells them everything. He says that things will go better in court for Andy if he tells the truth now.
Andy finally breaks down and confesses that he killed Opie after a fight about Opie eating Andy’s leftover pizza from the refrigerator.
4) Analyze whether Andy has been in custody for Miranda purposes at any point (and if so, at what point) during the events related in Questions 1 through 4.
You should clearly mark 1-4 for the 4 questions. Don’t repeat the questions - just give the answers. I anticipate that your paper will be roughly 2 or 3 pages long. When citing a case, underline the name of the case.
Here’s a sample answer to #1, which illustrates the format and citation form (but try not to emulate the degree of confusion exhibited below):
1) Fife has the better plan. If Andy is Mirandized right away, there’s basically no way that any statement that they get out of Andy will be suppressed. After all, both Ormsby and Nightingale were Mirandized right away, and so their statements were not suppressed. Ormsby §12; Nightingale, ¶15. On the other hand, Bridges was not Mirandized, and so her statements were suppressed (Bridges ¶12). There’s really no way to predict whether the Court will find whether a statement is voluntary or not, and so Mirandizing right away is the only way to make a statement admissible. Miranda itself says that no statements of a suspect can be admitted unless the 4 warnings have first been given (Miranda, text, p. 547)
The assignment will be graded on both the structure and the content of your paper. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.
Please make two copies of your paper, one to hand in at the beginning of class, and the other for you to have during class for our discussion.
You may e-mail me if you have specific questions about the assignment. The more time that I have to answer your questions, the more likely it is that I can be helpful.
If you cannot be in class on Thursday 4/19, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the paper. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.
Thursday, April 5, 2018
April 5, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/5, I distributed one handout, the 2 federal statutes involved in the Corbin case. We then went over how to approach the Corbin brief. We discussed citation form in U.S. District Court; the fact that the "Parties" segment did not have the appellant/appellee part, because this opinion is not an appeal; there are no "Prior Proceedings"; and that instead of "Appellant's" contentions, here we have Corbin's (the Movant) contentions. We saw how those contentions could feed right into the legal questions asked. We identified 4 contentions, leading to 4 issues. We went over those issues in terms of the 4 segments involved in each issue: Under what law; the legal question; the facts (reasons that the winning side wins) and the loser's facts (the reasons that the losing side maintained that it should have won). We also went over the requirements of the "Copy and paste" format. That case brief is due at the beginning of class on Thursday 4/12. I also reviewed that students cannot collaborate with others. Even if a classmate missed today's class, you may not share today's discussion with him or her. I am the only person with whom the case brief may be discussed.
After finishing our discussion of Corbin, I went over one Maine Supreme Court case regarding attorney ethics, Board of Overseers v. Warren, 2011 ME 124. In discussing that case we reviewed the difference between a subjective test v. an objective test. We then began our discussion of NFIB v. Sebelius. We talked about the Supremacy Clause. I went over the limited powers of the federal Congress v. the police power of state legislatures. I also explained why the textbook discussion of the interstate commerce power from that opinion was really dictum, as all the Court needed to decided was whether the individual mandate was justified under the power to tax. We will start with the substance of NFIB v. Sebelius on Tuesday.
The assignment for Tuesday 4/10 is to review NFIB v. Sebelius, to read in addition through p. 106 of the text (including State v. Butler), and to continue working on your Corbin case brief, due at the beginning of the class on Thursday 4/12.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/5, I distributed one handout, the Maine Supreme Court opinion in State v. Ormsby,
2013 ME 88. We first reviewed the Escobedo case in terms of when the right to counsel attached, and then contrasted that with the point at which Miranda rights attached. We went over the 4 rights included in Miranda, and the rationale of why a preventative rule was needed. We looked at the ways the Court tried in advance to protect its rule from future encroachments, by making the application of the Miranda rules uniform and consistent, without regard to the particular attributes of the suspect, or the requirement of magic words to invoke the rights guaranteed. We then began our discussion of Seibert, beginning with the holding in Elstad (p. 528). We will pick up next week with how the Seibert plurality distinguished Elstad, and also how Kennedy's concurrence defines the holding of the case.
The assignment for Tuesday 4/10 is to review Seibert, and to read the Ormsby case that was distributed today.
In class today, Thursday 4/5, I distributed one handout, the 2 federal statutes involved in the Corbin case. We then went over how to approach the Corbin brief. We discussed citation form in U.S. District Court; the fact that the "Parties" segment did not have the appellant/appellee part, because this opinion is not an appeal; there are no "Prior Proceedings"; and that instead of "Appellant's" contentions, here we have Corbin's (the Movant) contentions. We saw how those contentions could feed right into the legal questions asked. We identified 4 contentions, leading to 4 issues. We went over those issues in terms of the 4 segments involved in each issue: Under what law; the legal question; the facts (reasons that the winning side wins) and the loser's facts (the reasons that the losing side maintained that it should have won). We also went over the requirements of the "Copy and paste" format. That case brief is due at the beginning of class on Thursday 4/12. I also reviewed that students cannot collaborate with others. Even if a classmate missed today's class, you may not share today's discussion with him or her. I am the only person with whom the case brief may be discussed.
After finishing our discussion of Corbin, I went over one Maine Supreme Court case regarding attorney ethics, Board of Overseers v. Warren, 2011 ME 124. In discussing that case we reviewed the difference between a subjective test v. an objective test. We then began our discussion of NFIB v. Sebelius. We talked about the Supremacy Clause. I went over the limited powers of the federal Congress v. the police power of state legislatures. I also explained why the textbook discussion of the interstate commerce power from that opinion was really dictum, as all the Court needed to decided was whether the individual mandate was justified under the power to tax. We will start with the substance of NFIB v. Sebelius on Tuesday.
The assignment for Tuesday 4/10 is to review NFIB v. Sebelius, to read in addition through p. 106 of the text (including State v. Butler), and to continue working on your Corbin case brief, due at the beginning of the class on Thursday 4/12.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/5, I distributed one handout, the Maine Supreme Court opinion in State v. Ormsby,
2013 ME 88. We first reviewed the Escobedo case in terms of when the right to counsel attached, and then contrasted that with the point at which Miranda rights attached. We went over the 4 rights included in Miranda, and the rationale of why a preventative rule was needed. We looked at the ways the Court tried in advance to protect its rule from future encroachments, by making the application of the Miranda rules uniform and consistent, without regard to the particular attributes of the suspect, or the requirement of magic words to invoke the rights guaranteed. We then began our discussion of Seibert, beginning with the holding in Elstad (p. 528). We will pick up next week with how the Seibert plurality distinguished Elstad, and also how Kennedy's concurrence defines the holding of the case.
The assignment for Tuesday 4/10 is to review Seibert, and to read the Ormsby case that was distributed today.
Tuesday, April 3, 2018
April 3. 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/3, I distributed three handouts: an article about the acquittal of Noor Salman, Assignment #2 (reproduced below), and the case you'll be briefing, U.S. v. Corbin. We discussed the Salman verdict, and speculated whether she could have been charged under the federal misprision statute. I talked about a current arbitration case heard in October by the U.S. Supreme Court, Epic Systems v. Lewis. We then went through Caperton v. Massey Coal, seeing how Kennedy first told us what Due Process required (the test) and then applied the facts of the case to the newly minted test. Along the way, we went over the difference between a subjective v. an objective standard. Finally I went over a 2016 U.S. Supreme Court case, Williams v. Pennsylvania, in which the Supreme Court dealt with the question of recusal of a state Supreme Court Justice when that Justice had been the District Attorney supervising the prosecution of the defendant in an earlier phase of the case.
The assignment for Thursday 4/5 is first to read the Corbin case, so that I can answer questions that you might have about the case brief. In addition, read in Chapter 3 of the text through p.98, including NFIB v. Sebelius.
Assignment #2 due Thursday, April 12, 2018
The assignment (graded) is to do a Case Brief of the case of State v. Corbin, 827 F.Supp. 2d 26 (D. Me. 2011) (also distributed to the class today).
Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
Follow the format from the Sample Briefs that I’ve distributed. For this assignment, include the loser’s facts (the “even though” portion of the facts).
Note especially that, after the “Issue” is composed, the “Facts” and “Holding” are copied and pasted. Everything that you put into the Fact section should appear exactly in your Issue and Holding sections as well. Your Issue and Holding sections should be identical to each other, except that the issue is a question, and the Holding is the answer to that question. Your briefs will be evaluated on the format, as well as the specific content.
Please make two copies of your brief, one to hand in at the beginning of class, and the other for you to have during class for our discussion.
You may e-mail me if you have specific questions about the brief. The more time that I have to answer your questions, the more likely it is that I can be helpful.
If you cannot be in class on Thursday 4/12, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/3, I first talked about a qualified immunity case that the U.S. Supreme Court decided yesterday, Kisela v. Hughes. In that case, the Court dealt with a 9th Circuit opinion that had held that the officer Kisela was not entitled to qualified immunity. The Court reversed, and found that the officer was entitled to qualified immunity. More than anything else, the case hinged on the proper interpretation of a prior 9th Circuit opinion, because the question was whether any officer would know (from precedent) that it was not allowed to shoot the victim in the circumstances presented. We then went back to the text and finished our discussion of Escobedo. We began our discussion of Miranda, starting by looking at the arguments for the parties, and how the situation differed from Escobedo. We will finish Miranda on Thursday.
The assignment for Thursday 4/5 is to review Miranda, and to read to the end of the chapter, including Missouri v. Seibert.
In class today, Tuesday 4/3, I distributed three handouts: an article about the acquittal of Noor Salman, Assignment #2 (reproduced below), and the case you'll be briefing, U.S. v. Corbin. We discussed the Salman verdict, and speculated whether she could have been charged under the federal misprision statute. I talked about a current arbitration case heard in October by the U.S. Supreme Court, Epic Systems v. Lewis. We then went through Caperton v. Massey Coal, seeing how Kennedy first told us what Due Process required (the test) and then applied the facts of the case to the newly minted test. Along the way, we went over the difference between a subjective v. an objective standard. Finally I went over a 2016 U.S. Supreme Court case, Williams v. Pennsylvania, in which the Supreme Court dealt with the question of recusal of a state Supreme Court Justice when that Justice had been the District Attorney supervising the prosecution of the defendant in an earlier phase of the case.
The assignment for Thursday 4/5 is first to read the Corbin case, so that I can answer questions that you might have about the case brief. In addition, read in Chapter 3 of the text through p.98, including NFIB v. Sebelius.
Assignment #2 due Thursday, April 12, 2018
The assignment (graded) is to do a Case Brief of the case of State v. Corbin, 827 F.Supp. 2d 26 (D. Me. 2011) (also distributed to the class today).
Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
Follow the format from the Sample Briefs that I’ve distributed. For this assignment, include the loser’s facts (the “even though” portion of the facts).
Note especially that, after the “Issue” is composed, the “Facts” and “Holding” are copied and pasted. Everything that you put into the Fact section should appear exactly in your Issue and Holding sections as well. Your Issue and Holding sections should be identical to each other, except that the issue is a question, and the Holding is the answer to that question. Your briefs will be evaluated on the format, as well as the specific content.
Please make two copies of your brief, one to hand in at the beginning of class, and the other for you to have during class for our discussion.
You may e-mail me if you have specific questions about the brief. The more time that I have to answer your questions, the more likely it is that I can be helpful.
If you cannot be in class on Thursday 4/12, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/3, I first talked about a qualified immunity case that the U.S. Supreme Court decided yesterday, Kisela v. Hughes. In that case, the Court dealt with a 9th Circuit opinion that had held that the officer Kisela was not entitled to qualified immunity. The Court reversed, and found that the officer was entitled to qualified immunity. More than anything else, the case hinged on the proper interpretation of a prior 9th Circuit opinion, because the question was whether any officer would know (from precedent) that it was not allowed to shoot the victim in the circumstances presented. We then went back to the text and finished our discussion of Escobedo. We began our discussion of Miranda, starting by looking at the arguments for the parties, and how the situation differed from Escobedo. We will finish Miranda on Thursday.
The assignment for Thursday 4/5 is to review Miranda, and to read to the end of the chapter, including Missouri v. Seibert.
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