Wednesday, August 02, 2006

8th Amendment bars death sentence for lesser offender

The 6th Circuit ruled 2-1 today in lengthy opinion that the death sentence is unconstitutional when applied to a killer-for-hire Jason Getsy, but not to the man who hired him, John Santine.

The decision trumps an Ohio Supreme Court ruling that found the disparate sentences troubling, but not enough to overturn Getsy's execution.

"We agree with the Ohio Supreme Court’s suggestion that Santine is probably more -- certainly no less -- culpable than Getsy, the young boy he hired, but we do not agree that the death verdict can stand," the 6th Circuit said.

In his dissent, Circuit Judge Ronald Lee Gilman said that in reaching its decision, "the majority today reaches beyond the arguments advanced by Getsy and announces a new rule of constitutional law."

Essentially the 6th Circuit majority held that a jury's decision to hand down a life sentence for the man who actually hired the killer is "irreconcilable" with another jury's decision to sentence the hired killer to death.

John Santine was charged in Cleveland District Court with hiring three other men for the 1995 murder of Ann Serafino and the attempted murder of Charles “Chuckie” Serafino.

Charles Serafino was a business associate of Santine. Apparently, Santine had been trying to buy out Serafino's lawn care business. When Charles Serafino went to jail on a probation violation, Santine transferred the leases for Serafino's building and equipment into his own name. Informants told law enforcement that Santine had planned to kill Serafino after he was released from jail. Getsy later gave a taped interview with police admitting to being involved in the shooting.

On the night of the attack, Serafino was seated on a love seat when a shotgun pellets blasted through a sliding glass door and injured him in the arm. As he ran to the bathroom, his mother Ann came out of the bedroom where she had been sleeping. Charles Serafino remembers the shotgun being put to his head and being shot again. Although alive, he played dead and later called 911. Getsy admits to being one of the gunmen.

A jury found Jason Getsy, then 19, guilty of murder for hire at the behest of Santine and sentenced him to death. A separate jury found Santine found guilty of aggravated murder, but not guilty of hiring Gesty. The two other defendants were given life in prison after pleading guilty.

Getsy appealed, but the Supreme Court of Ohio upheld his death sentence – although the state’s high court was concerned that Getsy received a stiffer sentence while a co-defendant who actually shot one of the victims was given a plea deal even though his testimony was not important. The Ohio justices also were concerned about the relatively light sentence given to Santine.

“It is also troubling that Santine did not receive the death sentence even though he initiated the crime,” the Ohio justices said. “If not for John Santine, it is unlikely the Serafinos would have been shot.”

Getsy then turned to the federal courts, ultimately ending with today's decision by the 6th Circuit.

The two-judge 6th Circuit majority said that the seminal 1972 decision in Furman v. Georgia, which prohibits arbitrary and capricious death sentences, and the Supreme Court decisions that followed it demands that Getsy's sentence be overturned.

"[S]entencing Getsy to death, while the arguably more culpable Santine received a life
sentence for the very same crime, violates the Eighth Amendment, as construed by the Supreme
Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences," the 6th Circuit said.

The court majority also said that Getsy's murder-for-hire conviction must be overturned based on the rule of consistency, where one defendant cannot be convicted of committing a crime that requires at least two participants if all other defendants aren't convicted of that same crime.

"The acquittal of Santine of murder for hire based on substantially the same evidence signifies that the jury found no contract to kill the Serafinos, and Getsy cannot have acted alone since murder for hire requires a plurality of actors," the court said. "Getsy’s murder for hire conviction is therefore irreconcilable with the jury verdict acquitting Santine of the same charge."

In his dissent, Gilman disagreed with the court's ruling that Getsy's death sentence could not stand.

"The majority has not cited a single case in which the Supreme Court has declared an otherwise lawful death sentence imposed upon a defendant unconstitutional on the ground that another participant in the murder did not receive the death penalty," he wrote. "When combined with the fact that this court has never applied the now-repudiated common-law rule of consistency to defendants tried separately, the absence of Supreme Court caselaw supporting Getsy’s proportionality argument is fatal to his claims for relief."

He essentially argued that the rules of consistency is not a requirement that Getsy's death sentence be overturned because one jury found the facts enough to convict, while another did not.

Gilman also disagreed that Santine's sentence should be compared with Getsy's sentence.

"Because comparative proportionality review is not constitutionally required, and because the Supreme Court and our sister circuits have rejected a proportionality argument substantially similar to the one advanced by Getsy, I believe that the majority has erred in adopting a contrary position," he said.

(Updated to correct error: Two different juries tried Santine and Serafino)

Tuesday, August 01, 2006

NY Times loses appeal in investigation of FBI leak (Updated)

In a 2-1 decision with major implications for news organizations who rely on anonymous sources, a federal appeals court reversed a New York judges' ruling that phone companies could not be required to disclose the phone records of two New York Times reporters.

The court majority held that a privilege can be extended to phone records of reporters, but not in this case.

The decision concerns a story by infamous Times reporter Judith Miller and a colleague, Philip Shenon. Through a source, they found out about pending government searches of two Chicago charities thought to be raising money for terrorists. In December, 2001, the reporters contacted the charities to get a comment about the upcoming raid and then printed a story. The FBI claims that the reporters' phone calls tipped off the targets of the investigation, giving them an opportunity to dispose of curcial evidence and risking the lives of law enforcement.

The reporters declined to give up their sources, so the government said it was going to subpoena phone records for the reporters from the telephone companies that provided service for use in grand jury investigation into the leak.

The newspaper argued that the government would breach a reporter's protection of an anonymous source if it obtained the names and/or phone numbers of people contacted by the reporters. The government had argued that the disclosure led to a significant security hazard and it could only identify who leaked the information by reviewing the reporters' phone records.

The 2nd Circuit said that in some cases where other avenues to the truth are available to prosecutors, reporters' phone records could be protected. Based on its decision in 1981 case also challenging subpoenas in a case involving a longshoremen's union, the court said that because the telephone records are key to the work of reporter, they enjoy the same protections as the reporters.

"Under this standard, so long as the third party plays an 'integral role' in reporters' work, the records of third parties detailing that work are, when sought by the government, covered by the same privileges afforded to the reporters themselves and their personal records. Without question, the telephone is an essential tool of modern journalism and plays an integral role in
the collection of information by reporters," the majority said. "Under [the 1981 decision, therefore, any common law or First Amendment protection that protects the reporters also protects their third party telephone records sought by the government."

But in this case, the majority said the reporters’ actions endangered an important federal investigation and therefore were not protected.

"The grand jury thus has serious law enforcement concerns as the goal of its investigation," the 2nd Circuit majority said. "The government has a compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence. At stake in the present investigation, therefore, is not only the important principle of secrecy regarding imminent law enforcement actions but also a set of facts -- informing the targets of those impending actions -- that may constitute a serious obstruction of justice."

The majority also said the grand jury could not do its important job without the phone records.
"[A]s the recipients of the disclosures, they are the only witnesses -- other than the source(s) -- available to identify the conversations in question and to describe the circumstances of the leaks. Second, the reporters were not passive collectors of information whose evidence is a convenient means for the government to identify an official prone to indiscretion. The communications to the two foundations were made by the reporters themselves and may have altered the results of the asset freezes and searches; that is to say, the reporters' actions are central to (and probably caused) the grand jury’s investigation. Their evidence as to the relationship of their source(s) and the leaks themselves to the informing of the targets is critical to the present investigation. There is simply no substitute for the evidence they have."

The court said all that the government needs to do is swear that all other attempts to discover the identity of the leak had been exhausted.

"While we believe that the [affadavit] is sufficient on the facts of this case, we in no way suggest that such a showing would be adequate in a case involving less compelling facts. In the present case, the unique knowledge of the reporters is at the heart of the investigation, and there are no alternative sources of information that can reliably establish the circumstances of the disclosures of grand jury information and the revealing of that information to targets of the investigation. We see no danger to a free press in so holding."

The appeal stems from the Times' win in New York City District Court, where a federal judge ruled that phone records for reporters were protected from being disclosed by the telephone companies. The Times filed its lawsuit after special prosecutor Patrick Fitzgerald, the United States Attorney for the Northern District of Illinois who famously indicted Lewis "Scooter" Libby for perjury, unsuccessfully tried to interview the reporters and get access to their phone records for the state purpose of discovering who leaked the information about the raids.

The Times declined both requests, citing First Amendment protections. Fitzgerald threatened to get the records from the Times' phone company. In August 2004, after Fitzgerald and the Times came to an impasse, two lawyers wrote to the then-Deputy Attorney General asking for a meeting in hopes of reaching a compromise. The Deputy Attorney General refused, saying the DOJ was left with no other alternative then to request the phone records from the telephone providers.

The Times filed a suit soon after in the Southern District of New York, asking a judge declare that under common law and the First Amendment, reporter privileges barred the phone companies from releasing their phone records. The judge in the case ruled in favor of the Times and the government appealed.

On review, the 2nd Circuit majority said that it was possible to balance the two parties' competing interests by redacting portions of the telephone records. The 2nd Circuit said that redacting the records could help the Dept. of Justice on track and protect other anonymous sources not involved with the current controversy. But, the appellate court said the Times reporters would have to cooperate in that endeavor by being honest about which calls were made in furtherance of the story about the raids on the charities and which were not.

"We fully understand the position taken by the Times regarding protection of its reporters' confidential communications with the source(s) of information regarding the [Islamic charities] asset freezes/searches," the majority siad. "However, the government, having unsuccessfully sought the Times’ cooperation, cannot be charged by the Times with having issued an unnecessarily overbroad subpoena. By the same token, the government, if offered cooperation that eliminates the need for the examination of the Times’ phone records in gross, cannot resist the narrowing of the information to be produced."

Based on that conclusion, the 2nd Circuit reversed Judge Sweet's decision in favor of the NY Times and remanded the case.

In a dissenting opinion, 2nd Circuit Judge Robert Sack agreed that there had to be some type of protection afforded to journalists, in order to protect them from over-eager prosecutors.

"Without such protection, prosecutors, limited only by their own self-restraint, could obtain records that identify journalists' confidential sources in gross and virtually at will," Judge Sack said. "Reporters might find themselves, as a matter of practical necessity, contacting sources the way I understand drug dealers to reach theirs -- by use of clandestine cell phones and meetings in darkened doorways. Ordinary use of the telephone could become a threat to journalist and source alike. It is difficult to see in whose best interests such a regime would operate."

But he disagreed with his colleagues' contention that there was no common law protection for reporters.

"The protection exists. It is palpable; it is ubiquitous; it is widely relied upon; it is an integral part of the way in which the American public is kept informed and therefore of the American democratic process," he said.


Monday, July 31, 2006

Federalizing of airport screeners did not force companies to violate labor laws

It its probably a once-in-a lifetime question considering the world we live in now, but it was one the 9th Circuit court of appeals was forced to answer. Did the privatization of airport screeners by the federal government after 9/11 force massive layoffs in violation of federal laws requiring employers to give 60 days notice before ordering such layoffs?

At the heart of the 9th Circuit's July 26 decision, is the termination of four San Jose International Airport screeners who worked for Globe Airport Security Services. The four plaintiffs and other airport security personnel were laid off after Congress passed the Aviation and Transportation Security Act in 2001. The airport screeners filed a class action lawsuit in California federal court alleging they were required to be given 60 days notice of the layoffs under the federal Worker Adjustment and Retraining Notification Act, also known as the WARN Act.

Congress passed the Aviation and Security act just over two months after the terrorist attacks on New York City and Washington D.C. It took effect in February of 2002 and the TSA began taking over airport screening operations on Oct. 1, 2002. From that date until January 2003, Globe laid off workers in four waves.

San Jose District Judge James Ware granted ruled in favor of Globe, holding that the federal government essentially eliminated the employees and Globe had no input on how or when the screeners were terminated.

The plaintiffs appealed, but the 9th Circuit agreed with Judge Ware. The question for the court was whether WARN applied to the federal government's privatization of an industry.

"We believe the language of the WARN Act is straightforward; it unambiguously provides that the Act applies when an employer orders a mass layoff," the court said in a 13-page decision authored by 9th Circuit Judge Pamela Ann Rymer. "There is no question here that the layoffs were the result of the federal government’s replacing private screeners with federal employees...Thus it was the government, not Globe, that ordered Globe’s employees out of work at [San Jose International Airport] Terminal C. This being so, the WARN Act does not apply."

Because of the uniqueness of the situation, there was little federal law to guide the judges, other than the traditional methods of statutory interpretation. The appellate panel held that the situation at the San Jose Airport was more akin to a Supreme Court decision rejecting the argument that the WARN act applied in a case where the FDIC took over a failing bank, sold of its assets and then terminated a number of employees.

"Although Globe was certainly the employer that executed the mass layoff, it did so as a result of the federally-ordered takeover that replaced private employees with federal
employees," the 9th Circuit said. "Nothing in the pleadings suggests that the government’s takeover of screening operations at [San Jose International Airport] Terminal C did not effectively oust Globe from providing screening personnel at that terminal. As TSA moved in to assume that responsibility, Globe had to move out."

The panel also rejected the plaintiffs invocation of court decisions holding that the WARN act applied to employers who lay off workers due to the cancellation of a government contract. The court said those cases involved the question of whether certain defenses applied to the employers, and not whether the act applied to the situation to begin with.

Based on their conclusions, the court affirmed Judge Ware's decision to rule in favor of Globe based on the pleadings.