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Court grants review of indecency law, 7 other cases

UPDATED 12:30 p.m. with further details on the granted cases and on a few cases denied review.

The Supreme Court on Monday agreed to hear an appeal by the Federal Communications Commission testing its power to ban even a single use of a vulgar word on radio and television (FCC v. Fox Television Stations, et al., 07-582).  This was one of eight new cases the Court accepted for review, with all of them expected to be heard in the Term starting Oct. 6.  The Court’s list of new orders showed no action of any kind on the government’s new appeal in a Guantanamo Bay detainee case, Gates v. Bismullah (07-1054).  There was no notation of any action on the government’s motions in that case to expedite it, and to stay the D.C. Circuit Court decision which is at issue.  The Court did accept the supplemental briefs that detainees’ lawyers had filed in already pending cases — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196); those briefs informed the Court of the Circuit Court’s decision Feb. 1 denying rehearing en banc in  Bismullah.

 The FCC appeal in the indecency law case involves a change in the agency’s policy of disciplining broadcasters for a single use of a four-letter word, contrary to a long-standing earlier policy of ignoring isolated expressions of such words on the air.  The policy switch came after prominent entertainers used four-letter words during awards ceremony broadcasts on TV.  The Second Circuit Court struck down the switch in policy, but said the FCC could try to explain its policy further (although that Court said it doubted that the FCC would be able to justify the policy under the First Amendment).  The FCC opted to appeal instead of trying again to justify the policy in lower courts.

In a significant new case on the Confrontation Clause, the Court said it would consider the constitutionality of prosecutors’ offering a crime lab report as evidence in a criminal trial, instead of the live testimony of the expert who prepared the report. (Melendez-Diaz v. Massachusetts, 07-591).  The case involves Luis E. Melendez-Diaz, charged with cocaine trafficking in the Dorchester section of Boston.  At his trial, prosecutors offered crime lab reports about substances taken from one of the men arrested in the incident.  The appeal says that 44 states and Washington, D.C., now permit courts to admit forensic chemists’ reports to establish that seized substances are illegal drugs, even when the chemists themselves are not called to testify.  The Supreme Court had previously passed up review of several other cases raising the Confrontation Clause issue regarding crime lab reports.  (The Court on Monday declined to hear another Confrontation Clause case — Iowa v. Bentley, 07-886 — testing when a report of an interview with a child about a crime may be used as evidence, if the child does not testify at trial.)

Also granted on Monday was a major dispute over minorities’ voting rights: whether federal voting rights law allows a racial minority group that has less than 50 percent of an election district’s population to seek a district drawn to help assure that the group’s preferred candidates get elected. (Bartlett v. Strickland, 07-689). The Supreme Court, in prior rulings on claims of vote “dilution” of minority voters, has left open the question granted in Bartlett.  The case involves the application of Section 2 of the Voting Rights Act of 1965 to redistricting of a state legislative seat in North Carolinia, where blacks made up just under 40 percent of the voting age population in the district.   Black voters challenged the districting array, arguing that it scuttled their earlier ability to get preferred candidates elected with only limited crossover support from whites.

Continuing its focus in recent Terms on sentencing issues, the Court said it would decide whether it is unconstitutional for a judge to impose consecutive sentences based on facts found by the judge, not by the jury. (Oregon v. Ice, 07-901). The case involves Thomas Eugene Ice, sentenced to 340 months in prison after convictions on two counts of first-degree burglary and four counts of first-degree sexual abuse.  Three of the sentences imposed were ordered to be served consecutively. Under Oregon law, sentences imposed for multiple crimes are to be served together (concurrently) unless the judge finds that the crimes did not occur as part of the same conduct, and that, even if they did, the multiple crimes resulted in separate harms. In Ice’s case, the trial judge found that the two burglary convictions and the sex crime convictions arose out of separate incidents, and thus set the sentences to run consecutively.

In Waddington v. Sarausad (07-772), the Court will be spelling out when federal courts in habeas cases may second-guess state courts on the adequacy of jury instructions about the culpability of accomplices.  The case involves Cesar Sarausad, convicted of murder, attempted murder, and assault while armed with a gun in a shooting at a high school in Seattle growing out of gang rivalry. One student was killed and another wounded. Sarausad was convicted on the theory that he was an accomplice to the shooter. Sarausad was sentenced to more than 27 years in prison.

Taking on a new dispute over federal courts’ authority in the field of arbitration, the Court agreed to decide whether a suit seeking to enforce an arbitration obligation under state law is within the federal court’s jurisdiction, when the attempt to compel arbitration does not directly raise a federal question. (Vaden v. Discover Bank, 07-773).  The case involves an attempt by a credit card issuing bank that sought to compel arbitration of a class-action lawsuit in Maryland, growing out of an alleged failure to pay a credit card balance.

On the right to asylum in the U.S., the Court said it would decide whether asylum is available to a refugee who was compelled, against his will by threats of death or torture, to assist or take part in persecution of other persons. (Negusie v. Mukasey, 07-499).  The case involves Daniel Girmai Negusie, an Eritrean who served as a guard after being conscripted into military service.  He was denied asylum status because he had helped keep prisoners in a camp during the long war between Eritrea and Ethiopia.

The eighth case granted Monday — Jimenez v. Quarterman (06-6984) — tests whether the Fifth Circuit Court should have granted a chance to appeal by an inmate who was seeking to prolong the time for filing a federal habeas challenge, after he had been unable to obtain direct review in state courts. The issue, as posed in the petition (the Court granted review only on Question 1) is: “Whether a certificate of appealability should issue pursuant to Slack v. McDaniel…, on the question of whether pursuant to 28 USC 2244-d-1-A when, through no fault of the petitioner, he was unable to obtain a direct review and the highest state court granted relief to place him back to original position on direct review, should the 1-year limitations begin to run after he has completed that direct review, resetting the 1-year limitations period?”  The case involves Carlos Jimenez, who is serving a 43-year prison term for burglary of a home.

Among the issues the Court chose Monday not to hear:

** Whether a company is barred from filing a lawsuit claiming antitrust violations in a market if it does not take psart in that market, either as a consumer or as a competitor.  The appeal in Microsoft Corp. v. Novell Inc. (07-924) was an attempt by the software giant to head off a nearly four-year-old triple damages lawsuit against it by Novell, claiming that Microsoft harmed rival software programs for office applications such as word-processing and spreadsheet display, by its actions in the market for compuer operating systems — a market in which Novell did not participate.  Chief Justice John G. Roberts, Jr., did not take part in the order in the case.

** A request by a group of importers of beer into Puerto Rico, asking the Court to clarify the duty of the Puerto Rican government to obey the U.S. Constitution and, in particularly, the “dormant” version of the Commerce Clause.  The commonwealth’s Supreme Court has rejected a Commerce Clause challenge to local legislation on the island, favoring the one brewer who operates on the island over beer importers.  The case is Puerto Rican Association of Beer Importers v. Puerto Rico (07-748).