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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
Until three years ago, the political future of R. Keith McDonald appeared bright. His mother, Democrat Juanita Millender-McDonald, had represented California’s 37th District in the U.S. House of Representatives since 1996, and McDonald himself had thrice been elected to positions in the Los Angeles County government. McDonald’s career, however, suffered a potentially fatal setback when, in 2004, he was convicted of various public corruption charges relating to a kickback scheme and was sentenced to 41 months in prison. McDonald’s last chance to salvage his political career and avoid prison now lies in the hands of the U.S. Supreme Court, which will consider his petition for certiorari in its private conference on Jan. 19. According to the petition in McDonald v. United States, No. 06-440, which was filed by former Independent Counsel Kenneth Starr (now of counsel at Kirkland & Ellis), prosecutors deprived McDonald of due-process rights when they opted to try him in Orange County, Calif. McDonald contends that, although the change of venue from Los Angeles to Orange County alone might not be grounds for appeal, in his case the decision was racially motivated. Specifically, McDonald, who is African-American, contends that moving the trial to Orange County — where fewer than 2 percent of residents are African-American — violates the Constitution. In his petition, McDonald outlines a complex set of circumstances that, taken together, allegedly constitute a due-process violation. Although McDonald concedes both that Orange County was technically an option for prosecutors (because it was mentioned in the indictment) and that “[prosecutors] are necessarily permitted to be zealous in their enforcement of the law,” he asserts that the decision to try him in Orange County went beyond zealous prosecution and instead was influenced by racial motivations. First, he emphasizes that any link to Orange County that would justify moving his trial there was “utterly contrived,” as “only two paragraphs of the fifty-seven paragraph indictment even mention Orange County.” Even those paragraphs, moreover, describe only the “non-criminal business activity of a non-party.” Second, additional evidence that the link to Orange County was “specious at best” can be found in the fact that his co-conspirators were tried in Los Angeles County, while “[h]e alone was singled out for special treatment.” Third, the shift from Los Angeles to Orange County resulted in his being tried by a jury that lacked any black members. Putting all of these pieces together, McDonald accuses the government of “manipulat[ing] the court’s rules” to “virtually ensur[e] the absence of African-American jurors.” Such manipulation, McDonald concludes, violates the due-process rights guaranteed him by the Fifth Amendment. Opposing certiorari, the United States contends that McDonald’s claims grossly mischaracterize the situation. Indeed, when McDonald sought a change of venue at the district court stage, the judge deemed the allegation relating to alleged illicit activity in Orange County “more critical” than other allegations insofar as it was the “real essence of what’s alleged as far as [McDonald's] being in the middle of the whole supposed transaction here.” As such, the government argues, the decision to try McDonald in Orange County complies with the district court’s order regarding the appropriate venue, which requires that “at least one of the crimes charged, or any part thereof, is alleged to have been committed within [Orange County].” Thus, the government concludes, McDonald was not deprived of a “fair trial in a fair tribunal” and his due-process rights were not violated; he has no constitutional right to a trial “in any particular division . . . nor to have members of any particular race on his jury.” — Jason Harrow
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: • 05-1323, UGI v. Consolidated Electric (CA2); 06-562, United States. v. Atlantic Research (CA8); and 06-726, DuPont v. United States (CA3) Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act but does not satisfy the requirements for bringing an action for contribution under Section 113(f) of the act may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a). • 05-1448, Beck v. Pace International Union (CA9) Whether an employer that sponsors and administers a single-employer defined-benefit plan has a fiduciary obligation under the Employee Retirement Income Security Act to consider merger as a way to implement the employer’s decision to terminate the plan. (SG recommends grant) • 06-134, Permanent Mission of India to the United Nations v. New York (CA2) Whether a suit imposed on property owned by a foreign sovereign to recover unpaid property taxes and to declare the validity of a tax lien arising out of those unpaid taxes falls within the immovable-property exception to the general rule of immunity in the Foreign Sovereign Immunities Act of 1976. (SG recommends grant) • 06-528, Lundeen v. Canadian Pacific Railway Co. (CA8) Whether a federal statute that creates no cause of action for the injured party can provide a basis for federal jurisdiction and removal of a state tort claim filed in state court under the doctrine of complete pre-emption. • 06-546, Pinks v. North Dakota (S. Ct. of N.D.) [Note: Akin Gump and Howe & Russell represent the petitioner.] Whether the Sixth Amendment’s confrontation clause permits a prosecutor to introduce a state forensic examiner’s crime laboratory report against the accused as a substitute for the forensic examiner’s live testimony, so long as the accused is left with the ability to subpoena the forensic examiner as part of his defense. • 06-706, Ash v. Tyson Foods (CA11) What standard should govern pretext claims based on superior qualifications in employment discrimination cases?

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