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Washington-The week before the expected end of the 2003 term, the U.S. Supreme Court continued its revolution in criminal sentencing, shut down medical malpractice litigation against managed care organizations and kept alive a high-profile political and legal battle over the Bush administration’s energy policy task force. Still to come: decisions in three terror-related cases that will not only define the current term but likely will have ramifications for a generation or longer. When the high court finished work last week, it still had seven cases pending decision: Two cases involve violations of Miranda warnings: one asks whether physical evidence obtained as a result of an unwarned statement must be suppressed, and the other examines the constitutionality of a two-step interrogation process in which police deliberately fail to give the Miranda warnings in order to solicit a confession and then, on the theory that a suspect is more likely to confess again once “the cat is out of the bag,” give the warnings before eliciting a second confession. The justices will also decide whether the detainees in Guantanamo Bay can challenge the legality of their detentions in federal court. And the high court also will determine whether the Bush administration can detain indefinitely and without access to counsel two American citizens designated as “enemy combatants.” And finally, the justices will rule on the constitutionality of Congress’ latest attempt to protect children from Internet pornography. Judges and juries In two decisions, the justices answered a major question stemming from a ruling two years ago on sentencing in capital cases and emphasized that it meant what it said in another sentencing case four years ago. Both rulings have in common Apprendi v. New Jersey, 530 U.S. 466 (2000). In that decision, a sharply divided high court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Two years later, applying Apprendi, the high court struck down a capital sentencing scheme that permitted a judge to impose the death penalty after finding the existence of an aggravating factor. Ring v. Arizona, 536 U.S. 584 (2002). Juries must find the aggravating factors, according to the court. Last week, a 5-4 high court answered no to the lingering question of whether Ring was retroactive to the 110 judge-imposed death sentences that were final at the time the ruling was issued. Schriro v. Summerlin, No. 03-526. Writing for the majority, Justice Antonin Scalia said Ring announced a new rule-a procedural, not a substantive, one. To be retroactive, a new procedural rule must be a “watershed rule” of criminal procedure that implicates the fundamental fairness and accuracy of the criminal proceeding, said Scalia, adding that Ring‘s rule was not. “The evidence is simply too equivocal” to support the conclusion that judicial fact-finding seriously diminishes accuracy, he wrote. Writing for the dissent, Justice Stephen Breyer noted Scalia’s comment in Ring that when judges found aggravating factors in capital cases, it undermined the role of juries in criminal cases. “If that is so, it is equally so whether the judge found that aggravating factor before or after Ring,” wrote Breyer. The high court last week also struck down Washington’s sentencing guidelines in a case in which a judge had enhanced by three years the statutory maximum sentence of a man convicted of kidnapping after finding that the man had acted with deliberate cruelty. Blakely v. Washington, No. 02-1632. Scalia, again for a 5-4 majority, held that juries, not judges, must make those findings. Justice Sandra Day O’Connor, writing in dissent, said the majority had not only put at risk the majority of states’ sentencing schemes but also the federal sentencing guidelines. “Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy,” she said, reading part of her dissent from the bench. Kent Scheidegger of the conservative Criminal Justice Legal Foundation in Sacramento, Calif., an amicus party supporting Washington, said, “You want to take into account the factors of the individual case [in sentencing] and normally you would do that with the post-trial probation office report. But if it’s going to have to be decided by the jury, are you going to do the probation report before you know the guy is convicted? It’s a host of difficult practical problems created by this. I don’t think any state will go for a bifurcated trial as in capital cases; that’s too expansive.” But Sheryl Gordon McCloud of Seattle said, “My view of what’s going to happen in upcoming trials is prosecutors always charge the elements of a crime. This is just one more thing [to charge]. It’s no big deal. Now that the ground rules are there, you work with the ground rules as they’re given to you. “States are always enacting different crimes and different elements. You charge and prove it or plea bargain over them,” added McCloud, who filed an amicus brief on behalf of the Washington Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers supporting Blakely. Scheidegger noted that the ruling appears to run counter to a recent sentencing report by the American Bar Association, a report that advocated repealing mandatory minimums. The Blakely ruling, he added, “indicates we’re going to have legislatures more involved, not less, in defining the elements of crimes.” HMOs and suits Health and consumer advocates hope Congress will get involved in mitigating the effect of the high court’s ruling last week in Aetna Health Inc. v. Davila, No. 02-1845, and Cigna HealthCare of Texas v. Calad, No. 03-83. A unanimous court struck down a Texas law that permitted patients to sue their health maintenance organizations in state court for damages when their HMOs fail to exercise ordinary care in making coverage decisions. Justice Clarence Thomas, writing for the court, said the HMOs were not making medical decisions but benefit determinations. Those determinations, he said, are part of the administration of the benefit plan, and that falls under the federal Employee Retirement and Income Security Act of 1974 (ERISA), which completely pre-empts the Texas law. The ruling reversed a recent trend in which the justices did not find pre-emption in challenges involving HMOs. Justice Ruth Bader Ginsburg, concurring, wrote that the court’s broad reading of ERISA pre-emption and narrow reading of remedies under the act has created an inequitable situation. Consumers injured by ERISA-proscribed wrongdoing cannot gain relief to make them whole, she said, and Congress did not intend that to happen. “Justice Ginsburg eloquently summed up the situation,” said Sarah Lenz Lock of the American Association of Retired Persons, an amicus party supporting the consumers in the case. “It may be possible to reinterpret equitable relief in a broader way to restore some fairness to the system. It’s a much more direct route if Congress can act.” The court’s ruling may add fuel to the debate over enacting a federal patients’ bill of rights, but the fuel will be poured by trial lawyers, said health care litigator Harold Iselin of Greenberg Traurig. “I think many consumer advocates and consumers themselves have come to recognize the external appeals process works well in 99% of the cases,” Iselin said. “People who are looking for an inexpensive and efficient remedy will almost always prefer an independent external appeals process to litigation, whether state or federal.” If the court had ruled against the HMOs, ERISA pre-emption would have been dead, said health care practitioner Elliott B. Pollack of Pullman & Comley in Hartford, Conn. “They got to the precipice and pulled back,” he said of the high court. “Either we’re going to try to trim the cost of health care with the concept of managed care, honor and respect these contracts, or try to make an end-run around them in way that has occurred in the past. We’ll see what happens when the next case comes down.” Discovering Cheney The Bush administration won a half-victory in its long-running battle to keep secret the proceedings of its 2001 energy policy task force. The high court held that the U.S. Circuit Court for the District of Columbia erred in its analysis of whether it had jurisdiction to issue an extraordinary writ of mandamus requested by the government to stop discovery and to dismiss Vice President Dick Cheney, the task force chairman, from the suit. Cheney v. U.S. District Court, No. 03-475. Led by Justice Anthony M. Kennedy, the 7-2 majority said the D.C. Circuit was wrong to refuse to issue the writ without examining the “weighty” separation of powers concerns voiced by the administration. The court remanded the judgment, directing the circuit court to determine whether the discovery ordered by the trial court was an “unwarranted impairment of another branch in the performance of its constitutional duties.” The government had argued in each court that no discovery was permitted, said Alan Morrison of Public Citizen Litigation Group, who argued the case for the Sierra Club and government watchdog Judicial Watch, who suspect that the task force was overly influenced by energy industry officials. “It seems to me the Supreme Court said we’re not entitled to all of this discovery but we’re surely entitled to some,” said Morrison. “The government never asked for a narrowing of discovery and if it had, the judge would have given it and we would have given it to them. If we had to lose this case, it’s the best possible way to lose.” David O. Stewart, amicus counsel to the American Library Association, National Security Archive and other groups supporting Judicial Watch and Sierra Club, said the justices are “pretty clear that they’re somewhat impressed by the vice president’s supposed plight here in responding to the request for materials. “Our own amicus brief was saying you don’t really need that much information,” added Stewart, a partner in Boston-based Ropes & Gray’s Washington office. “If you had the sign-in sheets for the meetings, that would tell us a whole lot and that’s not really burdensome at all. The respondents, I would expect, are thinking real hard about whether they can make representations that less would do.”

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