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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.
How would Hammurabi have punished kiddie-porn addicts? That is the question posed by an Arizona history teacher facing a 200-year sentence without possibility of parole for possession of child pornography, who now seeks to enlist the support of the ancient king of Babylon (along with Thomas Jefferson and Aristotle) to catch the attention of the Supreme Court and win a shorter prison term. Petitioner Morton Berger — who is 52 years old, married, and the father of four children — was convicted in Arizona Superior Court in Maricopa County on multiple charges of possession of child pornography. At its private conference on Feb. 16, the Court will consider the petition in Berger v. Arizona (No. 06-349), which argues that the lengthy sentence violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Although many states impose severe penalties for the distribution or possession of child pornography, Arizona’s statute may be the most severe: possession of a visual depiction of the sexual exploitation of a minor under 15 constitutes a “dangerous crime against children.” Possession of each depiction is a separate offense, a conviction for which carries a sentence of between 10 and 24 years, and multiple convictions must run consecutively. Berger’s case went to the jury on 20 separate counts, based on numerous videos and photographs depicting children, some younger than 10, being subjected to sexual acts with adults, other children, and animals. After the jury returned guilty verdicts on all 20 counts, the trial judge — imposing the minimum 10-year sentence for each count and running the sentences consecutively, as required by the statute — imposed the 200-year sentence that Berger is now contesting. Both an intermediate court and the Arizona Supreme Court affirmed, rejecting Berger’s argument that the long sentence violated the Eighth Amendment. Reviewing the U.S. Supreme Court’s Eighth Amendment jurisprudence, the Arizona Supreme Court concluded that the Eighth Amendment restricts only sentencing decisions at their most extreme, and that deference to legislative judgment about the appropriateness of a particular punishment precluded a finding in Berger’s favor. Particularly relevant in the court’s view was the high court’s 1991 decision in Harmelin v. Michigan, in which the Court affirmed a mandatory life sentence without parole imposed on a defendant convicted of the possession of 631 grams of cocaine. The Arizona court noted that the state’s interest in preventing the harm to young children caused by their exploitation in the production of child pornography is strong, and — crucial to the pending petition — it focused its inquiry not on the 200-year sentence taken as a whole, but instead on whether any single 10-year sentence for conviction of a single count of possession was disproportionately long. In a lone dissent, Justice Rebecca Berch contended that the focus of the court’s Eighth Amendment inquiry should be precisely the opposite — that is, not on whether a single 10-year term would be reasonable, but on whether Berger’s 200-year sentence was in fact proportional to the gravity of his conduct. In concluding that the sentence was unconstitutionally long, Berch noted both that a defendant is typically charged with more than one count of possession and that, as a result of its mandatory minimum sentences and requirement that separate sentences run consecutively, Arizona punished the conduct at issue in the case more harshly than any other state would have. Moreover, she added, the recommended sentence for possession of the 20 separate depictions under the relevant federal statute and sentencing guidelines would be merely five years long. Represented by Laurie Herman of Scottsdale, Ariz., Berger petitioned the Supreme Court for certiorari in a filing that makes heavy use of Bartlett’s Quotations to emphasize the historical pedigree of the Eighth Amendment’s proportionality principle. The petition focuses entirely on the Arizona Supreme Court’s conclusion that the proper focus of the Eighth Amendment inquiry was the mandatory 10-year sentence for each individual violation. It also emphasizes the requirement that sentences be served consecutively, arguing that under the Arizona Supreme Court’s logic, the legislature’s decision to permit or require consecutive or concurrent sentences is simply irrelevant to the Eighth Amendment analysis — a result, the petition implies, that simply defies logic. Opposing certiorari, Arizona (represented by Randall Howe of the Arizona Attorney General’s Office as counsel of record) begins by painting the petitioner’s conduct as heinous indeed. The brief in opposition emphasizes that the photographs and videos that provided the bases for the convictions represent just a small fraction of the voluminous collection assembled by the petitioner. The state then continues its argument on doctrinal grounds, arguing that a 10-year sentence for possession of a single item of child pornography is wholly reasonable and that there is no merit to Berger’s contention that a sentence has to be considered as a whole. — Christopher Egleson
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: • 06-464, Ohio v. Farris (S. Ct. of Ohio) Whether the Fifth Amendment requires the suppression of post- Miranda warning statements because they cover the same information as pre- Miranda warning statements, even when there is no police strategy to intentionally avoid Miranda. [ Howe & Russell represents the respondent.] • 06-478, Dow Chemical v. United States (CA6) Whether the 6th Circuit erred by creating, in direct conflict with decisions of the Court and other circuits, an exclusionary rule for economic substance cases that bars consideration of future taxpayer investment because the taxpayer has engaged in a long-term transaction in which a substantial portion of out-of-pocket expenditure is deferred. • 06-511, Horn v. Stevens (CA3) Whether, in violation of the Antiterrorism and Effective Death Penalty Act, the Court of Appeals set aside a reasonable state-court determination of fact that a prospective capital-sentencing juror was biased and properly excused for cause. • 06-577, Schor v. Abbott Labs (CA7) Whether a claim for relief exists under Section 2 of the Sherman Antitrust Act where a party with monopoly power in one market has improperly exploited its dominant position to establish or enhance a monopoly in a secondary market. • 06-633/06-805, Philip Morris v. Minn. / CITMA v. Philip Morris (S. Ct. of Minn.) In light of the settlement of a civil lawsuit against the petitioner tobacco manufacturers for reimbursement of health-care costs attributed to tobacco, whether legislation that impairs a state’s proprietary contract violates the contracts clause only when the contract contains an unmistakable promise by the state not to alter the terms of the contract through subsequent legislation. • 06-658, McCarran International Airport v. Sisolak (S. Ct. of Nevada) Whether federal law precludes recognition under state law of private ownership of federally defined “navigable airspace” that is less than 500 feet above a landowner’s property and that the landowner never used before it became part of the navigable airspace. • 06-659, Coltec v. United States (CA Fed) In determining that a transaction may be disregarded for tax purposes, whether a federal court of appeals should review the trial court’s findings that the transaction had economic substance de novo or for clear error. • 06-666, Kentucky v. Davis (S. Ct. of Kent.) Whether a state violates the dormant commerce clause by providing an exemption from its income tax for interest income derived from bonds issued by the state and its political subdivisions, while treating interest income realized from bonds issued by other states and their political subdivisions as taxable to the same extent, and in the same manner, as interest earned on bonds issued by commercial entities, whether domestic or foreign. • 06-719, Bender v. District of Columbia (D.C. Ct. of App.) Whether the D.C. Court of Appeals erred in holding that the prohibition in the congressionally enacted Home Rule Act barring “any tax” on nonresidents does not apply to the D.C. Council’s application of the unincorporated-business tax to nonresidents. • 06-748, Lively v. Wild Oats (CA9) Whether the forum-defendant exception to removal jurisdiction is inapplicable whenever a plaintiff seeking remand fails to raise it within 30 days of removal. [ Howe & Russell represents the petitioner.] • 06-755, Warren v. Volusia County (CA11) Whether Title I of the Americans With Disabilities Act establishes a duty upon employers to engage in an interactive process with a disabled employee to identify and seek reasonable accommodations and, if so, if the process is triggered upon notice of the disability and a desire for accommodations. • 06-763, Illinois Central Railroad Co. v. McDaniel (S. Ct. of Miss.) Whether, when an employee covered by the Federal Employers’ Liability Act settles a claim for occupational injury with an employer, Section 5 of FELA imposes special restrictions on the freedom of the parties to include in the settlement a release of other potential occupational injury claims, or whether “the releases of [FELA] employees stand on the same basis as the releases of others.” • 06-766, New York State Board of Elections v. Lopez-Torres (CA2) Whether the 2nd Circuit ran afoul of American Party of Texas v. White by mandating a primary in lieu of a party convention for the nomination of candidates for New York state trial judge. [ Akin Gump represents the petitioner.] • 06-786 Locklear v. Bergman & Beving A.B. (CA4) Whether, under Fed. R. Civ. P. 15(c), the plaintiff’s lack of knowledge of the identity of the proper defendant was intended to constitute a “mistake” that would allow an amended complaint substituting the name of the proper defendant after the expiration of the statute of limitations to relate back to the date of the original complaint and avoid being time-barred by the statute of limitations. • 06-824, Waggoner v. Suisse Sec. Bank and Trust (CA2) Whether the amount-in-controversy requirement of 28 U.S.C.�1332 should be determined solely from the plaintiff’s perspective or from the perspective of both parties to the controversy.

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