The U.S. Patent and Trademark Office may have a major problem on its hands -- the possibly unconstitutional appointment of nearly two-thirds of its patent appeals judges.  Read more about this case here.

  Translogic Technology, a company whose patent was rejected, is raising this issue in a petition to the U.S. Supreme Court.   A copy of the petition is available for viewing at the Law Library Reference Desk.
 

"[A]ll Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."  U.S. CONST. art. VI.  However, when the Senate ratifies a treaty with a two-thirds vote, does that mean the treaty provisions are binding on the states?  According to a new ruling by the Supreme Court, they are binding only if the treaty explicitly says so or if there is legislation to make that clear. 

The decision is Medellín v. Texas, at is available at: http://www.supremecourtus.gov/opinions/07pdf/06-984.pdf   As a background note, in the Case Concerning Avena and Other Mexican Nationals (Mex.U.S.), 2004 I.C.J. 12 ( Avena ), the International Court of Justice (ICJ) held that the United States had violated Article 36(1)(b) of the Vienna Convention on Consular Relations (Vienna Convention or Convention) by failing to inform 51 named Mexican nationals, including petitioner Medellín, of their Vienna Convention rights. The ICJ found that those named individuals were entitled to review and reconsideration of their U.S. state-court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions. In Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) issued after Avena but involving individuals who were not named in the Avena judgment-the Supreme Court held, contrary to the ICJ's determination, that the Convention did not preclude the application of state default rules. The President then issued a memorandum stating that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision.  ”Relying on Avena and the President's Memorandum, Medellín filed a second Texas state-court habeas application challenging his state capital murder conviction and death sentence on the ground that he had not been informed of his Vienna Convention rights. The Texas Court of Criminal Appeals dismissed Medellín's application as an abuse of the writ, concluding that neither Avena nor the President's Memorandum was binding federal law that could displace the State's limitations on filing successive habeas applications.  On Tuesday, the Supreme Court ruled that neither Avena nor the President's Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions.

Yale Law School Dean Harold Koh, who served as a State Department official in the Clinton administration, expressed some concerns over the decision in a statement to National Public Radio:  "If our international allies have no assurance that we're actually going to keep our word, then they have much less incentive to keep their word when they're being obliged to do something."  To listen to the entire NPR story, go to: http://www.npr.org/templates/story/story.php?storyId=89064847

For more information on treaty research, please see: Marci Hoffman, Researching U.S. Treaties and Agreements (LLRX, May 15, 2001) available at: http://www.llrx.com/features/ustreaty.htm

On March 17, 2008, the Supreme Court granted certiorari to decide whether a person who was compelled, against his will, to assist or take part in persecution is barred from asylum under the "persecutor bar" at Immigration and Nationality Act (INA) § 208(b)(2)(A)(i).  Section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 provides that the Secretary of Homeland Security or the Attorney General may, in his discretion, grant asylum to an alien who demonstrates that he is a refugee within the meaning of the Act.  The statutory definition of "refugee" excludes "any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(B).  If the evidence indicates that an asylum applicant persecuted any person, he bears the burden of proving that he did not.

Mr. Negusie, caught up in the civil war between Eritrea and Ethiopia, was drafted and forced to be a guard in an Eritrean prison, where he was ordered to mistreat prisoners. He eventually escaped, hiding in a shipping container on a ship bound for the United States. Despite a finding that he was likely to be tortured if returned to Eritrea, he was denied asylum because of his activities in the prison.

In rejecting Negusie's immigration appeal, the United States Court of Appeals for the Fifth Circuit, in an unpublished decision, determined that Negusie's intent while being compelled to assist authorities was irrelevant.  Rather, the Court's focus was "on whether particular conduct can be considered assisting in the persecution of civilians."  Fedorenko v. U.S., 449 U.S. 490, 512 n. 34 (1981).  The case opinion is Negusie v. Gonzales, 231 Fed. Appx. 325, No. 06-60193 (5th Cir. May 15, 2007) (per curiam), available at: http://www.ca5.uscourts.gov/opinions%5Cunpub%5C06/06-60193.0.wpd.pdf

The Yale Law School Supreme Court Clinic was retained to prepare a petition for certiorari and argued that the statutory history and plain language of the INA's persecutor exception demonstrate the Congress never intended it to apply to asylum-seekers who have been compelled under threat of torture and death to participate in persecution.  See: http://www.yale.edu/supremecourtclinic/pages/cases.html

The DOJ's response is on file at: http://www.usdoj.gov/osg/briefs/2007/0responses/2007-0499.resp.html

The case will be argued during the October 2008 term.
 

From the Associated Press on February 27, 2008...

The prison law clerk who convinced the U.S. Supreme Court to hear a fellow inmate's drug possession case is being investigated by South Carolina's Attorney General Henry McMaster for practicing law without a license. Jailhouse lawyer Michael Ray, who is serving time for real-estate fraud, drafted an appeal for pro-se litigant Keith Lavon Burgess arguing that Burgess' 20-year mandatory minimum sentence was inappropriate because his prior drug conviction was not a felony but rather a misdemeanor. While Ray does not have college or law school education, he drafted a fairly clever appeal and now the Supreme Court has granted review of the case.

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Stanford Law School Professor Jeff Fisher will be arguing the case before the Supreme Court on Burgess' behalf.

The case under review is: Burgess v. United States
Supreme Court Docket: 06-11429
Decision Below: 478 F3d 658
Lower Court Case Number: 04-4997
Questions Presented:

1. Whether the term "felony drug offense" as used in the federal statute requiring imposition of enhanced mandatory minimum 20 years' imprisonment when drug offender has "prior conviction for a felony drug offense" must be read in pari material with federal statutes defining both "felony" and "felony drug offense," so as to require imposition of a minimum 20 year sentence only if prior drug conviction is both punishable by more than one year in prison and characterized as a felony by controlling law?
2. When the court finds that a criminal statute is ambiguous, must it then turn to rule of lenity to resolve ambiguity?