MC&A Newsletter
Volume XIII  :: August 2010

Welcome to the August issue!  The summer has been filled with legal news from gay marriage in California to a Supreme Court decision on your right to remain silent.  

We are also pleased to announce that MC&A is now on Facebook and Twitter.  Follow us for the latest in legal news.



Federal Judge Rules Same-Sex Marriage Ban in California Unconstitutional
handsOn August 4, 2010, Judge Vaughn Walker of the United States District Court for the Northern District of California ruled that Proposition 8 ("Prop 8") -- California's ban on same-sex marriage -- was unconstitutional.  Prop 8, which asked voters whether marriage should only be between a man and woman, was put on the ballot one month after the California State Supreme Court ruled that gay and lesbian couples could marry.  On November 4, 2008, Prop 8 passed with a 52.5% vote.

The Plaintiffs in the trial -- one gay couple and one lesbian couple -- sued the state of California and challenged the constitutionality of Prop 8 under the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution.

Under the Equal Protection Clause, no state can deny a person equal protection of the laws of that state.  Plaintiffs claimed that Prop 8 violated the clause because it discriminated against gays and lesbians in that it denied them the right to marry a person of their choosing, whereas a heterosexual man and woman could do so freely.  Under the Due Process Clause, no person may be deprived of "life, liberty, or property, without due process of law."  Plaintiffs claimed their due process rights were violated because Prop 8 denied them the fundamental right to marry a person of their choice.

Although the named Defendants were the State of California and its officials, the state itself did not argue the case.  Instead, the case was argued by the Defendant-Intervenors, which comprised of various individuals and groups, such as "protectmarriage.com", who were all proponents of Prop 8.  Defendant-Intervenors argued that same-sex marriage would weaken the institution of marriage and that voters could have a rational basis for supporting Prop 8, such as encouraging procreation and the protection of children -- who would be better off with married, biological parents.

Judge Walker's 138-page decision noted in part that "[p]roposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause . . . [It] fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license . . . [i]ndeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same sex couples."

With respect to due process, Judge Walker wrote, "[t]he parties do not dispute that the right to marry is fundamental.  The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right."  Walker found that gay couples looking to marry are in fact asking for the same right to marry that heterosexual couples have enjoyed for centuries, and a denial of that right is a denial of due process.  Marriage, according to Judge Walker, is no longer about gender.  "The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage.  The exclusion [of gays from marriage] exists as an artifact of time when the genders were seen as having distinct roles in society and in marriage.  That time has passed."

Proponents of Prop 8 are far from pleased with Judge Walker's decision.  Andrew Pugno, a lawyer for the defense, said Prop 8 was not about discrimination, but echoed the sentiment of California voters who "simply wished to preserve the historic definition of marriage."  In an interview with TIME, Prop 8 supporter Reverand Albert Mohler, president of the Southern Baptist Theological Seminary in Louisville, Kentucky, stated that Judge Walker's new definition of marriage "upends [millennia] of human experience and teaching" and allows for the normalization of homosexuality, which diminishes the role of moral and religious beliefs in life and law.  According to Mohler, "[o]nce you take morality out of it, you invite rational challenge to all manner of other laws that seek to govern out conduct in this society."

Proponents have appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, but the battle does not end there.  Judge Walker issued a temporary stay on his ruling to allow the Ninth Circuit to decide whether to stay the case pending appeal.  On August 18, 2010, the Ninth Circuit issued a decision issuing a stay of Walker's ruling.  This occurred just 48 hours before California was going to start issuing marriage licenses to same-sex couples. 

The matter will most likely go to the U.S. Supreme Court.  Given the ideological tendencies of the nine justices of the Court, the final outcome on same-sex marriage is anybody's guess.  Nonetheless, a Supreme Court ruling on this issue would be a landmark ruling, much like the 1954 Brown v. Board of Education decision, which held that the segregation of public schools on the doctrine of separate but equal was unconstitutional and the 1967 Loving v. Virginia decision, which ended laws banning inter-racial marriage.

The reach of Judge Walker's decision extends beyond the courtroom and into the political scene.  His decision could be used by Republicans to draw conservatives to the polls in upcoming mid-term elections.  Both Democrats and Republicans will have to decide where they stand on the issue.  Walker's ruling could also affect the California race for governor.  Democrat Jerry Brown is a vocal supporter of same-sex marriage, while Republican Meg Whitman supports Prop 8.

Sources:  "Gay Marriages Could Resume Thursday if Judge Lifts Stay in Prop 8 Case," by Maura Dolan & Shelby Grad, August 12, 2010, The Los Angeles Times; "Court Rejects Same-Sex Marriage Ban in California," by Jesse McKinley & John Schwartz, August 5, 2010, The New York Times; "Why California's Gay Marriage Ban Was Upended," by Michael A. Lindenberger, August 5, 2010, TIME; "Proposition 8 - California Gay Marriage  Headed Towards Supreme Court; One Justice Holds Key," by Devin Dwyer, August 5, 2010, ABC News; "Appeals Circuit Grants Stay on Prop 8 Case," by Ashley Michelle Papon, August 18, 2010, globalshift.com
Under Roberts, Supreme Court Reigns Conservative
John RobersThe close of this year's Supreme Court calendar marked the Court's fifth year under the leadership of Chief Justice John G. Roberts. It also marked its fifth year of being the most conservative Supreme Court in memory, according to an analysis of political science data. The shift towards conservatism is slight and not every decision rendered during the past five years slanted to the right. According to scholars who review trends in the courts, the data indicates that the trend is anything but modest. This data is collected by assigning each Supreme Court decision an ideological value. Databases are then created, coding the Supreme Court decisions and the justices' votes based upon the ideological values assigned. The leading database was created twenty years ago by Harold J. Spaeth, and was supported by the National Science Foundation. In Spaeth's database, votes such as those favoring criminal defendants, unions and people claiming a violation of their civil rights are considered liberal, while those against economic regulations, or favoring prosecutors, employers or the government are considered conservative.

In comparing the Roberts' Court with that of past Courts, dating as far back as 1937, the current Court swings to the right of the past two immediately preceding conservative courts. This is based on four measures on the basis of four measures. First, in its most recent term, the Roberts Court's number of conservative decisions rose from 58% to 65%, in comparison with the past two conservative courts deciding conservatively 55% of the time. Second, of the six most conservative justices since 1937, four currently sit on the Court - Chief Justice Roberts, and Justices Alito, Scalia and Thomas. Third, the Roberts' Court often reverses precedent in favor of conservative results. Fourth, with Justice Sandra Day O'Connor's retirement, the new swing vote is Justice Anthony M. Kennedy, who falls right of center in his voting trends.

The reason for the Court's shift boils down to the replacement of Justice O'Connor with Justice Alito. Justice Alito replaced a justice who was in the ideological center of the conservatives and liberals, thereby shifting the Court to the right. And while Justice Alito may not be more conservative in his views than Justice O'Connor, his votes have certainly differed from those of Justice O'Connor. For instance, in 2000, Justice O'Connor was in the majority when the Court struck down a Nebraska law banning an abortion procedure. Seven years later, with Justice Alito on the bench, the Court upheld a similar law, with all other Justices voting the same as they had in 2000.

What does this mean for the nation's future? Under a more conservative Court, Americans can expect religion to play a larger role in public life, a broader view of the Second Amendment's right to bear arms, and a tightening on abortion rights, to name a few. While justices can change their ideologies over time, it appears that the conservatives will reign supreme for years to come.

Sources: "Court Under Roberts is Most Conservative in Decades," by Adam Liptak, July 24, 2010, The New York Times; "Supreme Court More Conservative, Fragmented," by Nina Totenberg, July 4, 2006, npr.com
You No Longer Have the Right to Remain Silent
ssshhhhIn Berghuis v. Thompkins, the U.S. Supreme Court in a 5-4 split decision ruled that criminal suspects who want to invoke their right to remain silent must specifically state to the police that they do not want to talk. Should a suspect fail to do this, anything he or she says after being read their rights will be considered a waiver of the right to remain silent and that statement will be admissible in court.

Miranda rights, which came from the 1966 U.S. Supreme Court case Miranda v. Arizona, are perhaps the most well-known rights with respect to the constitutional right against unreasonable search and seizure. These rights - the right to remain silent and the right to an attorney -- are read to a suspect when he or she is taken into police custody. Suspects are also told that anything they say can be used against them in court.

Prior to the Berghuis ruling in June, prosecutors had to prove that the defendant knowingly and voluntarily waived their right to remain silent. According to Berghuis, however, suspects must now tell the police that they want to invoke their right to remain silent. If a suspect fails to make such a statement, the police can continue interrogations, and any subsequent statements the suspect makes will automatically be considered a waiver of the suspect's Miranda rights, and therefore will be admissible in court.

Justice Sonia Sotomayor, in her first major dissent, stated that the majority's ruling "turns Miranda upside down," and noted how the majority created a paradox in which "a suspect who wishes to remain silent, must, counterintuitively, speak." Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Sotomayor's dissent

Sources: "Supreme Court Miranda Ruling: Suspects Must Explicitly Tell Police They Want to Remain Silent," by Jesse J. Holland, June 1, 2010, The Huffington Post; "Mere Silence Doesn't Invoke Miranda, Justices Say," by Adam Liptak, June 1, 2010, The New York Times.
An Update On Roman Polanski's Extradition
polanskiRoman Polanski fled the U.S. to France in 1978, one day before he was to be sentenced for sex crimes committed against a 13 year old girl. In MC&A Newsletter Volume VII, October 2009, we wrote about Polanski's arrest in Switzerland after 30 years of evading extradition. Up until his arrest, Polanski, a French citizen, could not be extradited because under France's extradition treaty with the United States, French authorities can refuse to extradite its own citizens. When U.S. officials learned that Polanski would be visiting his chalet in Gstaad, Switzerland, a California judge issued a provisional arrest warrant and he was arrested on September 26, 2009.

Upon his arrest in Switzerland, Polanski was placed in provisional detention, where he would remain until the Swiss Justice Ministry made a final determination on the extradition process. On Monday, July 12, 2010, the Swiss Justice Ministry finally made its decision -- Polanski is free man. The ministry denied the United States' request for extradition because the U.S. failed to provide Switzerland with all the proper legal records and because the ministry determined that Polanski had a reasonable right to think he would not be arrested if he visited Switzerland. The ruling is not appealable and the U.S. cannot re-apply to Switzerland for Polanski's extradition. Since both France and Switzerland are safe havens for Polanski, U.S. prosecutors will have to hope that Polanski travels to another country that has an extradition treaty with the U.S. so that they may apply to that country for extradition.

Sources: "Swiss Won't Extradite Polanski On Child Sex Charge," by CNN Wire Staff, July 12, 2010, CNN.com; "Polanski's Arrest Could Lead to Extradition," by Michael Cieply & Brooks Barns, September 27, 2009, The New York Times
Who's Fault Is It? No Fault Divorce Passes in New York
bride and groomOn August 15, 2010, Governor Patterson signed a bill making New York the last state to allow no fault divorce. Until now, couples who wanted a divorce could only do if they proved that the other spouse was at fault. Bases of fault were adultery, cruelty, abandonment, imprisonment, or upon completing a separation agreement and waiting one year. Supporters hope the new bill will eliminate the high numbers of perjury spouses commit in accusing one another of wrongdoing during the marriage so that they may obtain a divorce.

Sources: "Divorce Reform Act," New York State Assembly, Bill Number S05667B; "Paterson Signs No-Fault Divorce Bill," August 15, 2010, nytimes.com
"Craigslist Killer" Takes One More Life
craigslist KillerPhilip Markoff, the famed "Craigslist Killer," died in his cell on August 15, 2010 - an apparent suicide - on what would have been his one year wedding anniversary to his former fiancé. Before taking his own life, Markoff spread photos of his ex on a table in his cell and wrote her name in blood on his cell door. Markoff had twice before attempted to commit suicide and was placed on suicide watch after shoelace marks were found on his neck.

The family of Julissa Brisman, the woman Markoff was accused of killing in a Boston hotel, will now never have the opportunity to face the alleged killer in court. The Brisman family's attorney released a statement, saying that "[t]he long-awaited criminal prosecution was their only opportunity to confront [Markoff], and now he has taken that away as well." Markoff had pled not guilty to the murder charges and was scheduled to stand trial in March 2011.

Sources: "Craigslist Killer Philip Markoff Died Amid His Fiance's Photos," by Michele McPhee, August 17, 2010, abcnews.com; "Philip Markoff, Alleged 'Craigslist Killer,' Found Dead in Cell After Apparent Suicide," by Edecio Martinez, August 16, 2010, cbsnews.com.
MC&A is firmly committed to our valued clientele.  We provide services in the areas of litigation, criminal law, and general corporate and business law.

For more information about how we can be of service to you, call us at 212.551.3617 or send an email to info@charleslawfirm.com.

Midwin Charles & Associates LLC
230 Park Avenue, Suite 1000
New York, New York 10169

© 2010 Midwin Charles & Associates LLC
In This Issue
In The Spotlight
The Practice Corner
Recent News

Find us on Facebook Join MC&A on Facebook
Follow us on Twitter Follow MC&A on Twitter
MC&A is a proud sponsor of Corporate Counsel Women of Color's Sixth Annual Career Strategies Conference in New York, October 6-8, 2010 (www.ccwomenofcolor.org)

Midwin Charles is a Legal Contributor for
In Session
In Session
(formerly Court TV).
Watch daily on
from 9:00AM-3:00PM

Quick Links
Midwin Charles & Associates


The MC&A Team
MC and A Team
Robyn Sonis, Midwin Charles, and Genese Walker