Lousy reasonable doubt jury charge is no basis for habeas relief

One thing civil court judges always have to tell the jury is that the civil case does not carry a reasonable doubt standard. That standard is for criminal court cases, "and you should put it out of your mind," the judge tells the jury. This case involves the opposite.

The case is Brown v. Greene, decided August 11. At Brown's criminal trial in state court, the judge told the jury that "A jury makes factual findings. 50.1 to 49.9, factual findings can be made although they are not established beyond a reasonable doubt. The elements must be established beyond a reasonable doubt if they're going to be established at all."

Later on during the charge, the court told the jury that "for centuries elections have been closely decided. 50.1 beats 49.9 every time ... And yet, for 230 years now, juries, the same pool of people who can't agree on a candidate, have been unanimously deciding cases." The court went onto explain that juries reach unanimous verdicts through reason and persuasion. Where are the pattern jury instructions when you need them?

Now, jury instructions being jury instructions, the court repeatedly told the jury that the prosecution has to prove its case beyond a reasonable doubt. But what about this 50.1 to 49.9 language? That sounds like a civil jury instruction, where the plaintiff wins by a preponderance of the evidence, where the jury is told that plaintiff wins if his version of events is more likely true than the defendant's version of events. In other words, plaintiff wins if the scales tip slightly in his favor.

The reasonable doubt standard is paramount in criminal law, and the Constitution requires it. Brown's attorney did not object to the 50.1 to 49.9 language. This omission forms the basis for Brown's habeas petition on the ground that his lawyer provided him ineffective assistance of counsel. Brown loses. Over a lengthy dissent by Judge Straub, the Second Circuit (Feinberg and Raggi) cites case law holding the prosecution does not always have to prove certain facts beyond a reasonable doubt, but that this kind of jury charge may be confusing since 50.1 to 49.9 sounds like preponderance language. But cases also hold that jury instructions like this do not deprive the defendant of a fair trial if the instructions as a whole make it clear that the jury has to follow the reasonable doubt standard. Brown's case is even harder to win since this issue comes before the Court of Appeals in the context of a habeas petition, where he cannot win unless the state criminal court unreasonably applied clearly established law.

Brown loses, but the Court of Appeals takes a moment to remind criminal judges to use the pattern jury instructions when applicable, noting that "improvised definitions of the beyond a reasonable doubt standard may be confusing or misleading. We urge trial courts, in the future, to stick to the model jury instructions regarding this issue."

Continuing violations rule applies to deliberate indifference claims

All civil rights claims carry a statute of limitations, some of them long, some of them short. That limit can be extended under the "continuing violations" rule, which allows the plaintiff to reach beyond the statute of limitations if the defendant was pursuing an ongoing policy and something illegal happened within the appropriate time frame. The Second Circuit now holds that the continuing violations rule applies to medical indifference claims filed by inmates against public officers.

The case is Shomo v. City of New York, decided on August 13. In 2002, the Supreme Court recognized that the continuing violations rule is applicable to sexual harassment claims involving a hostile work environment. That case isd AMTRAK v. Morgan, 506 U.S. 101 (2002). The Supreme Court did this because hostile work environment claims necessary involve allegations that extend beyond the 300-day time limit to bring an action. The Second Circuit saw this coming, and in 1994 ruled that, in Section 1983 claims against the government, "the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994).

Does the continuing violations rule apply in cases alleging deliberate indifference to serious medical needs? Inmates often file these claims under the Eighth Amendment to the Constitution, so this is an important question. In Shomo, the Second Circuit (Pooler and Jacobs) rules that continuing violations do apply in these cases, following the lead of the Seventh Circuit, which ruled similarly in Heard v. Sheahan, 253 F.3d 317 (7th Cir. 2001). As the Second Circuit frames the inquiry, "To assert a continuing violation for statute of limitations purposes, the plaintiff must 'allege both the existence of an ongoing policy of [deliberate indifference to his or her serious medical needs] and some non-time-barred acts taken in the furtherance of that policy.' This test screens out Eighth Amendment claims that challenge discrete acts of unconstitutional conduct or that fail to allege acts within the relevant statutory period that are traceable to a policy of deliberate indifference."

Shomo alleges a pattern where, despite prior treatment recommendations, prison medical personnel and security staff refused to assist him with "activities of daily living" for his right arm paralysis and limited use of his left arm; refused to transfer him to specialized infirmary housing or to provide him recommended treatments. The Court of Appeals is giving Shomo another chance to amend his complaint to comply with the new continuing violations test outlined in this opinion.

In an interesting concurrence, Chief Judge Jacobs agrees that the continuing violations rule should apply to deliberate indifference claims filed by inmates. He also says the court's "indulgent" rules allow pro se litigants to replead their claims and that "Shomo's claims would be deemed frivolous and suitable for dismissal under any standard but the one we apply to pro se litigants." Further noting that Shomo wants treatment for "activities of daily living," Judge Jacobs observes that "Shomo was convicted by a jury of murder in the second degree -- through use of a firearm--and criminal possession of a weapon. Shomo’s inability to use his hands was floated to the jury as a defense, and rejected. While I am not suggesting that murder by firearm is an 'activity of daily living,' I would draw the inference that a person able to shoot someone to death has sufficient use of his hands to get by."

New York Times cannot get its hands on the Spitzer wiretap application

The New York Times wants the sealed wiretap applications relating to the investigation into the prostitution ring formerly patronized by Gov. Eliot Spitzer. The Times can't have them, the Court of Appeals has ruled.


The case is In the Matter of the Application of the New York Times Company to Unseal Wiretap & Search Warrant Materials, decided on August 7. Spitzer resigned his office a few days after the Times reported that he was a client of the Emperor's Club. All of this made for great copy, as they say in the newspaper business. But a sex scandal is the gift that keeps on giving. The story is not over. Since you need a court order to wiretap phone conversations, the follow-up story is: what do the wiretap applications say?


Since cellphone wiretaps in connection with the prostitution ring must tell quite a story, the Times wanted to see the government's wiretap and search warrant applications. Judge Rakoff ruled in the newspaper's favor, but the Court of Appeals (Cabranes, Hall and Winter) reverses. This case pits the First Amendment against a 1968 law which governs the disclosure of wiretap applications and related documents under a "good cause" standard.


Congress in 1968 enacted the Omnibus Crime Control and Safe Streets Act, which says that wiretap applications are sealed by court order, but that they can be disclosed for "good cause." This case concerns the meaning of "good cause." The Supreme Court has never interpreted the "good cause" standard, but the Court of Appeals did, in 1984, ruling that good cause exists when the person trying to review the materials was an "aggrieved person," i.e., he has to show that he was "a party to any intercepted wire or oral communication or a person against whom the interception was directed." In other words, if you were wiretapped, you are an "aggrieved person."


The 1968 law -- also known as Title III -- creates a strong presumption against public disclosure of the wiretap applications. This is because the Supreme Court in 1967 (United States v. Katz, 389 U.S. 347) emphasized privacy rights in this context. What this means for the New York Times is that it cannot show good cause for the records. The Second Circuit reasons, "It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance. ... the Times does not suggest, much less show, that it is an 'aggrieved person' within the express terms of the statute -- that is, ... the Times does not claim to be 'a party to any intercepted wire or oral communication or a person against whom the interception was directed.'"


What about the First Amendment right of access to wiretap applications? Is there any such right? The Court of Appeals takes up this issue also. The Times argues that these materials are comparable to documents in civil cases which are subject to the public's constitutional right to inspect judicial records. The newspaper also argues that wiretap applications "are merely judicial records that, like search warrants or docket sheets, have been historically open to public access." It also argues that it needs to monitor the government's intrusions on personal privacy and the judicial role "in acquiescing to the government's requests."


These are not bad arguments. Hey, the public has a right to know what really happened with these wiretaps which led to the resignation of a governor with a bright political future, right? Wrong. While the public has the right to gain access to judicial records that have historically been open to the press and general public, wiretap applications are a creation of the 1968 wiretapping law, and so therefore there is no historic right of access to them. The Court adds, "the Times does not present a good reason why its preferred public policy -- monitoring the government's use of wiretaps and potential prosecutions of public officials -- is more compelling than Congress's apparent concern for confidentiality and privacy, which are reflected in the text of Title III and its legislative history."

SDNY infers retaliatory intent despite 11-month time lag

In February 2009, the Second Circuit held that inmates can show a connection between their constitutionally-protected activity and the adverse action even if many months separated the two events, provided that that evidence suggests jail officials had a reason to wait to exact their retribution. This was a significant ruling because many retaliation cases -- particularly in the employment context -- are dismissed between too much time elapsed between the employee's protected activity (such as a complaint about workplace discrimination) and his alleged retribution (such as his termination or demotion).


Although I do not believe the Second Circuit has applied this reasoning in a published employment case, this reasoning is not foreign to employment cases in the district court, though it only turns up once in a blue moon. It happened on August 5. In a district court ruling handed down that day, the Southern District of New York allowed a public employee's retaliation case to proceed even though his forced resignation in August 2006 took place nearly a year after he refused to post a Town councilman's campaign sign on his lawn. The case is Cronin v. St. Lawrence, 2009 WL 2391861 (SDNY Aug. 5, 2009)


How many employment cases have we seen where an 11-month gap is not enough to win a retaliation case? Without direct evidence of retaliatory intent, a short gap between the protected activity and the adverse decision may be enough, but at some point the two events are too far apart and courts will not allow juries to infer retaliatory intent simply because the termination followed the protected activity.


But in this case, the trial court denies the motion to dismiss. As Judge Karas notes, "there is no bright line for temporal proximity, and the time lag at issue here is at least in the range of acceptable time periods, particularly if defendant had no earlier opportunity to retaliate against plaintiff for engaging in protected activity." Among other cases, the district court cites for this proposition Bernhardt v. Interbank of N.Y., 18 F. Supp. 2d 218 (EDNY 2008), which holds that causation was possible despite an 11-month lapse between the protected activity and firing because defendant had possible reasons for delaying the adverse action.


However, since this is a Rule 12 motion to dismiss the complaint without the benefit of discovery, Judge Karas drops a footnote suggesting this holding may not apply on a motion for summary judgment, after the parties have had an opportunity to exchange documents and take depositions. The court states, "This does not mean, obviously, that the same result awaits plaintiff at summary judgment. For example, if defendant can establish that he had earlier opportunities, were he so inclined, to retaliate against plaintiff, but did not, the temporal gap may be too large to reasonably infer wrongful conduct by defendant."

SDNY lawyer gets EDNY rates in disability discrimination case

When the plaintiff in a civil rights case wins the case, her attorney is able to recover attorneys' fees. This means the loser pays not only the victorious plaintiff, but her attorney. The jury decides what the plaintiff gets, but the judge decides the attorneys' fees issue. An attorneys' fees award depends on many things, including how much time the lawyer spent on the case and her hourly rate. You may think the hourly rate is not a disputed issue, but it is.

The case is Simmons v. New York City Transit Authority, decided on August 3. Simmons won her disability discrimination claim in the Eastern District of New York. Her attorney's office is located in Southern District of New York. For the uninitiated, EDNY includes Brooklyn, Queens and Long Island. SDNY includes Manhattan, The Bronx, Westchester and a few counties north of the Tappan Zee Bridge. The case law governing this issue confirms that, in the eyes of the court, SDNY rates are much higher than EDNY rates, even though EDNY includes downtown Brooklyn, and SDNY includes semi-rural counties like Orange and Dutchess. Since SDNY rates are based on Manhattan rates (for the most part), the anomaly is that a civil rights lawyer in Orange County with less experience may have a higher rate than a more experienced lawyer in Brooklyn whose office is located one or two subway stops from the more lucrative jurisdiction, Manhattan.

So what do you do when the case is litigated in EDNY but the lawyer's office is located in SDNY? Do Southern District rates apply, or do Eastern District rates apply? In Simmons, the Court of Appeals noted its recent decision in Arbor Hill v. Concerned Citizens v. County of Albany, 522 F.3d 182 (2d Cir. 2008), which says that the hourly rate is based on the rates of the judicial district in which the case was filed, not where the attorney has her offices, unless the attorney can show that this is one of the unusual cases where the plaintiff's use of an out-of-district attorney was reasonable under the circumstances. Simmons resolves the issue of how to determine the hourly rate.

In Arbor Hill, the plaintiff's lawyers were located in New York City, but the case was litigated in Albany, in the Northern District of New York, which provides for much lower hourly rates than SDNY. But in Simmons, the case was tried in Brooklyn, and the lawyer's office is in Manhattan. Which jurisdictional rate applies?

In Simmons, the Second Circuit (Walker, Jacobs and Leval) answers that question. They find that Simmons can hire any lawyer she wants, but the lawyer's fee is presumed to be governed by the jurisdiction where the case is litigated, not the location of the lawyer's office. The lawyer can get the higher rate if he is situated in a more lucrative jurisdiction, but under this ruling, that's a hard burden to satisfy. The Court of Appeals holds that "in order to receive an attorney's fee award based on higher out-of-district rates, a litigant must overcome a presumption in favor of the forum rule, by persuasively establishing that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result."

In other words, the plaintiff has to show that she chose a Manhattan lawyer to litigate a case in Brooklyn because the Manhattan lawyer would likely have produced a much better result than a lawyer in Brooklyn (or Long Island, also part of EDNY). I'm not sure how this burden can be satisfied in most civil rights cases, especially since the Southern and Eastern Districts of New York each have good civil rights lawyers capable of winning their cases. In an effort to garner a higher attorneys' fee rate, an out-of-district lawyer may have to argue that she is the cream of the crop and much better than her colleagues who handle similar work. That is not as easy as it sounds, as the lawyer may have to toot her own horn at the expense of her colleagues in the civil rights bar.

In any event, the Second Circuit holds that "a litigant cannot overcome the presumption through mere proximity of the districts, nor can a litigant overcome the presumption by relying on the prestige or 'brand name' of her selected counsel." The court adds, "The Transit Authority should not be required to pay for a limousine when a sedan could have done the job." Under this high burden, the Court of Appeals finds that the attorney's fees award in this case is too high and that Simmons' lawyer deserved fees under the lower EDNY rates, not the SDNY rates. The fees are reduced by $45,000.

Qualified immunity dooms esoteric due process claim

Plaintiff's lover in a volatile relationship went to his home when he wasn't there, but she got scared when an unidentified caller rang the telephone. So she called the police. They accompanied her into plaintiff's private study to see if her stuff was there, and they came upon drugs and related paraphernalia. Plaintiff was arrested even though the girlfriend told the police that she wasn't even allowed in his study and had actually cut the locks herself.

The case is Moore v. County of Delaware, decided June 27. While they are set forth in the opinion, the above facts are not really part of this appeal. They were part of an appeal in the same case decided two years ago, when the Second Circuit held that the officers were entitled to immunity on Moore's false arrest claim. Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007). This appeal concerns another claim from the same lawsuit which somehow fell through the cracks.

In addition to claiming false arrest, Moore sued on a due process violation. The argument is that when the police seized his property on this warrantless search, they did not provide him any pre-deprivation notice as required under the Due Process Clause. The district court denied the officers' motion for summary judgment. The Court of Appeals reverses in a summary order, dismissing the case.

Relying on a Supreme Court case, City of West Covina v. Perkins, 525 U.S. 234 (1999), the district court ruled in Moore's favor because "defendants were obligated to take reasonable steps to give notice that the property had been taken so defendant could pursue available remedies for its return."

The Court of Appeals disagrees. Under qualified immunity, if the law is not clearly established at the time of the alleged violation, the government defendants get the benefit of the doubt. This means that truly esoteric damages claims will not be heard by a jury, as police officers are not expected to know future developments in the law. Moore's legal theory in this case was not clearly established when the police seized his property. "There is no authority recognizing the particularized right ostensibly violated here -- i.e., the right to notice, at the time of a warrantless search, of that search and the items seized." As for the district court's reliance on that Supreme Court case from 1999, that language is most likely dicta (not necessary to the Supreme Court's holding) and does not cover the precise circumstances raised by this case.

Another wrinkle on the right to remain silent

I wonder if the Supreme Court justices who issued their landmark rulings on the right to counsel in the 1960's knew that 40 years later the courts would still be untangling the meaning of the Sixth Amendment (and the Fifth Amendment). The Second Circuit has issued another ruling that places a wrinkle on the right to remain silent after a criminal suspect asks for a lawyer.

The case is United States v. Plugh, decided on July 31. Plugh was being questioned about his alleged child pornography. The agents had found child pornography on his computer hard drive. When they handcuffed Plugh, he was read his rights under the Fifth Amendment ("you have the right to remain silent, etc.") and they asked him to sign an "advice-of-rights" form which would have waived his right to an attorney and allowed the agents to ask him more questions.

Plugh responded, “I am not sure if I should be talking to you,” and “I don’t know if I need a lawyer.” Plugh did not sign the waiver form and stated that he did not want to sign anything at that time. As the agents drove Plugh to FBI offices in Rochester, N.Y., they told him he was about to be arrested on child pornography charges. Plugh asked what he should do. They told him that if he cooperated they would let the U.S. Attorney's office know about it. At the FBI offices, the agents placed Plugh in a booking room and told him that “[i]f he wanted to make any statements this was the" time to do so. Plugh said he would talk and the agents read him his Miranda rights. Plugh did not again ask for a lawyer. He began talking and incriminated himself. The district court suppressed Plugh's statements, and the Court of Appeals affirms.

Here are the issues: "whether Plugh retained his right to remain silent and his right to counsel by refusing to sign the advice-of-rights form when asked by Agent McArdle to sign the form if he agreed with its contents, notwithstanding his statements immediately prior that he was not certain he wanted to talk to a lawyer or that he should talk to the interrogating agents." The Court of Appeals (Wesley and Hall with Jacobs dissenting) rules in Plugh's favor.

It seems there are cases interpreting in nearly every context the Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. This is because all kinds of things happen right before a suspect begins to talk. While Plugh's suggestion that he might need a lawyer was equivocal and did not prevent the agents from speaking to him further, it was his refusal to sign the waiver that confirmed that he was clearly invoking his rights under the Sixth Amendment and that the agents had no right to continue asking him questions. If the suspect is not clearly invoking the right to counsel, the police may ask follow-up questions. Without the waiver form, the police did not break the rules. But once Plugh decided not to formally waive his rights, the police went to far in continuing to speak with him.

As the Second Circuit puts it, "While Plugh’s statements, 'I am not sure if I should be talking to you' and 'I don’t know if I need a lawyer,' appear ambiguous, Plugh’s ultimate action – his refusal to sign – constituted an unequivocally negative answer to the question posed together by the waiver form and McArdle, namely, whether he was willing to waive his rights." This is especially so because the agent told Plugh, “[i]f you agree with the statement you can sign the form.”

Chief Judge Jacobs dissents. He writes that there was nothing unequivocal about Plugh's actions. "All of the circumstances here--Plugh’s oral statements as well as his refusal to sign a waiver--bespeak indecision and ambiguity." Citing Fifth Circuit authority, he goes on to reason, "'[a] refusal to sign a waiver may indicate nothing more than a reluctance to put pen to paper under the circumstances of custody.' If a suspect’s refusal to sign a written waiver can be enough to bar police from asking any further questions, regardless of whether the suspect is willing to talk to police, then police will simply stop using written waiver forms. Why take the risk that a suspect won’t want to put pen to paper? The result will be a return to the very confusion and uncertainty regarding a suspect’s invocation of rights that written waivers were designed to overcome."