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Ever since the monumental decision Miranda v. Arizona, the phrase “you have the right to remain silent” has been given epic importance, from judicial decisions to pop culture to the street level interactions between police and criminals.  And up until Berghuis v. Thompkins, that right was fairly accessible, though ephemeral, protection.  Unlike the other protected right under Miranda warnings, the right to have an attorney present during questioning, the right to remain silent did not need to be explicitly raised in order to be invoked.  However, in Berghuis v. Thompkins, the Supreme Court held that the right to remain silent is not invoked until the defendant explicitly says that he wants to remain silent.  And, thus, until those words are uttered, the police are allowed to continue questioning.  The defendant in the Berghuis had been subjected to three hours of interrogation about a murder, but he barely spoke a word.  Besides a few head nods, and answering such questions as “would you like a mint”, he was steadfast in exercising his ability to remain silent.  However, he ultimately had a moment of weakness; after three hours, he answered only one substantive question, and that answer was used against him at trial, where he was found guilty.  The Court held that the right to remain silent was not implicitly raised simply by seemingly exercising it, i.e.  his continuing refusal to answer the many questions asked to him.  They further held that by answering that one substantive question, he adequately waived his right to remain silent, and gave up his protection.

Thus, the holding seems to be that the right to remain silent must be explicitly raised, but the waiver does not.  So, the rule to take from this case is: speak to remain silent, but say one word, any word, and it will be considered a waiver.

Berghuis v. Thompkins, — S.Ct. —-, 2010 WL 2160784 (2010).

In U.S. v. Comstock, the Supreme Court held that federal officials can indefinitely hold inmates that are considered “sexually dangerous”, even after their prison terms are complete.  In overruling the lower courts decision, the court determined that the statute is a “necessary and proper” exercise of federal authority when Congress enacted the Adam Walsh Child Protection and Safety Act, authorizing civil commitment of sexually dangerous federal inmates.

In order to meet the definition of “sexually dangerous”, there must be clear and convincing evidence that, because of a mental disease or defect, the prisoner, if released, would have serious difficulty refraining from sexually violate conduct or child molestation, and there must be a showing that neither the state in which he was confined, nor the state in which he was tried is willing to accept custody over him.

The main issue in the case what whether the Constitution grants Congress the power to issue civil commitments.  Under the 10th Amendment, the states are reserved any power that have not been granted to the federal government, either specifically or impliedly.  Implied powers arise when the federal government must take certain actions that are “necessary and proper” to effectuate one of the express powers given.

One of the express powers given to Congress is the power to imprison those convicted of federal crimes, and to establish a system of criminal justice to punish offenders.  The petitioners in Comstock argued, however, that the relevant Act is only applicable after completion of their applicable sentence, and in some cases a finding of sexual violence warranting increased confinement may arise out after a conviction for a crime that was not sexual in nature.  However, the Court determined that the power to confine prisoners in the first place also carried the implied power to take account of other safety issues regarding their release back into society.  It cited, for example, the power of the federal government to maintain custody over a prisoner who has communicated a disease that threatens others.

U.S. v. Comstock, 2010 WL 1946729.

The Supreme Court held in Graham v. Florida, by a 5 to 4 vote, that juveniles who have not committed homicide cannot be denied the change to ever rejoin society by given a life sentence without a reasonable opportunity for obtaining parole.  The Court found that such a sentence would be a violation of the Constitution’s ban on cruel and unusual punishment.

This case goes one step beyond the Court’s 2005 decision banning executions of juveniles for any crime.  These lines of cases have been based on the “evolving standards of decency.”  The Court has noted that juvenile advocates and child psychologists stress that children and adults process thoughts and actions differently and thus must be treated differently under the law.

The majority decision by Justice Kennedy was met with harsh dissents.  Justine Roberts, while agreeing that the sentence in the specific case at hand was unconstitutionally harsh, disagreed with the broader holding, arguing that it should be considered on a case-by-case basis whether a life sentence is proper, because  some crimes are simply so heinous, that even if it does not involve the actual death of a human, they are still worthy of the death penalty, even if the crime is, say, committed by a 17 year old, as opposed to an 18 year old.  Justice Thomas further argued that basing the decision on the “evolving standards of decency” is “entirely the court’s creation” and thus Kennedy’s logic fails.

Commentators speculate that the decision will lead to an influx in litigation regarding juveniles whom have been serving life sentences for non-homicide crimes.  Further, as the Supreme Court has been steadily deciding cases in protection of juveniles, it is questionable how far this protection could be extended.

Florida v. Graham, 560 U.S. ____ (2010).

In Abbott v. Abbott, the Supreme Court was asked to interpret the Hague Convention, specifically the Civil Aspects of International Child Abduction, to determine whether a ne exeat right, i.e the authority to consent before the other parent may take the child to another country, confers a right of custody.

The Abbotts, a British citizen and a US citizen, moved to Chile and ultimately separated.  The Chilean courts granted the mother daily care and control of the child, but also gave the father “direct and regular” visitation rights as well as a ne exeat right.  Ms. Abbott then removed him from Chile without permission, and fled to Texas, where she filed for divorce, requesting a modification of the father’s rights,  thereby attempting to gain full power over the boy’s place of residence.  Mr. Abbott filed a motion in the Texas courts to counterclaim, requesting the Ms. Abbott show cause for why the court should not allow the child to return to Chile with Mr. Abbott.  The lower courts denied Mr. Abbott’s request and found in favor of the wife, holding that the father had no right of custody under the Convention; his ne exeat right is only a veto right over his son’s departure from Chile, not actually custody rights.

The Convention was adopted to combat international abductions effectuated during domestic disputes.  Its primary operating feature is the return remedy, which states that when a child has been wrongfully taken, the country to which he has been taken must order that he be returned to his country of habitual residence.  Wrongful removals are those that violate of right of custody.

The Supreme Court disagreed with the lower courts and found that the father’s ne exeat right is consistent with a right of custody.  If found that implicit in a ne exeat right is the principle that neither parent can unilaterally establish the child’s place of residence.  The Court determined that this right is paramount to the right of care of the child.  Thus, though the “ne exeat right does not fit within the traditional notions of physical custody,” per the definition of the Convention, it fully aligns with the definition of right to custody, and not with the “right of access”, as Ms. Abbott argued.  Right of access, the Court determined, is a much more limited visitation right, and not a right to ultimately decide where the child may reside, as the ne exeat right is.  Thus, the Mr. Abbott had a custody right over the child, and thus the child should be ordered returned to Chile.

Abbott v. Abbott, 560 U.S. ____ (2010).

The short answer, YES, if it relates to a procedural immigration matter and not expressly prohibited by a statute,  it may be reviewed as held in the January 2010 Supreme Court decision of Kucana v Holder.  cf 130 S. Ct. 827, (2010). This by no means implies that the Albanian immigrant Agron Kucana will ultimately prevail in his motion to reopen his removal proceedings.  The Supreme Court merely reversed the lower court decision against judicial review and remanded the case for further consideration consistent with the Supreme Court’s decision.

Agron Kucana arrived in the United States under a three month Business Visa, he then applied for asylum, however he OVERSLEPT and arrived fifteen minutes after his hearing and was therefore ordered removed in absentia.  This saga brings up many important factors in immigration law, including congressional intent, executive discretion and the court’s ability to or in some cases the court’s inability to review.  This inability to review is often unique in immigration matters as the congress has nearly plenary power to create immigration law and in many cases can prohibit judicial review.

Click here to read the law and rationale that the Supreme Court used to reach their decision.

On March 2, 2010, the Supreme Court decided in Johnson v. US, that a crime of simple battery is not a violent felony. Though this decision was based such a categorization for the purposes of sentance enhancement under the Armed Career Criminal Act (ACCA), this decision may provide precendent that can be applicable in many other areas of law.

The area of assault and battery has been a cause of headaches for attorneys, judges, and law students across the nation. Assault’s common law legal definition, contrary to the general use of the word, is, to put it simply, putting someone in fear of imminent harm. Battery, on the other hand, is the actual touching of the person. This touching, however, is simply qualified as “offensive touching.” Courts routinely note that a simple tapping of another can be grounds for a conviction for battery.

On the other hand, a crime of violence is generally defined as an offense where the use or the threat of use of physical force is an element. Being convicted of a crime of violence can have additional ramifications for the offender; for example, as in Mr. Johnson’s case, he was potentially subjected to a sentence enhancement for multiple violent convictions. In addition, conviction of for a crime of violence has ramifications for immigration purposes. An immigrant who has committed a crime of violence can be subjected to deportation, or prevented from asserted certain rights and defenses when applying for legal status.

Because of the amorphous definitions an act of touching, or threatening to touch someone can take under the categorizations of assault and battery, courts have struggled with whether such convictions should categorically qualify as a crime of violence.

The Supreme Court addressed the issue of simple battery in US v. Johnson, and held that is is not categorically a crime of violence, because such a conviction requires only an intent to touch, without the need to find injury to the victim: We think it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force- that is, force capable of causing physical pain or injury to another person.”