discussion of the constitutional issues and the second circuit identified two possible

constitutional problems. the first one is it said indecency bans generally railroad seen as content-specific prohibitions on speech. things that focus on the specific material that is at issue. and that that is generally something -- that receives strict scrutiny of the court's highest review. however, the court -- the second circuit said that the supreme court had issued a decision called fcc versus pacifica foundation which gave the government special latitude when it comes to matters that are broadcast over the public airwaves. now, the second circuit in its opinion suggested that the rationale for the pacifica decision had been eroded over time because of new technology and the like but it didn't ultimately decide and get into that whole question. rather, what it said was the second thing that said that the fcc's prohibition was just unconstitutionally vague.

that there wasn't a rhyme or reason between the prohibitions with the fines and the levees. that there wasn't a real difference in the broadcast that got fines and the ones that didn't. the government filed a certry and granted whether or not -- whether or not the fcc indecency policy violates the constitution itself under the first or fifth amendment and that move some have suggested means that the court it wants to look at the rationale for the pacifica decision itself. the broadcasters have not yet filed hir merits brief. i think one could reasonably anticipate that they will defend -- [inaudible] >> and i think one can anticipate that they'll defend the second circuit's rationale about no rhyme or reason. i think the open question will overruled or ey want to get

not, if they do, this case has the potential to be really quite a blockbuster. >> a nonfleeting obscenity. fleeting is the opposite of -- >> that's not fleeting. that's deliberative. >> so inadvertent. i understand a number of obscenity. they are talking about a fleeting obscenity than a nonfleeting obscenity. >> first, no one is talking about obscenities which everybody -- >> i'm sorry. >> right. >> and it's not profanity and it's not obscenity. and the second is decency and whether you theerns of a curse word could be sanctioned with steep fines on each affiliates on the networks and part of the problem is that the, you know,

the fcc takes the view that you have to beep them out even in news broadcasts and even if you're covering a live event such as a game or a panel discussion. >> yes. >> one of the tough moments that the fcc lawyer was that c-span radio which is which is a broadcast show and they were cursing a streak. [laughter] >> and one of them we have c-span broadcast every judge on this panel have said things that people normally don't hear judges say. it is clearly relevant to the context. are you going to go after c-span? you know, that was the only the tip of the iceberg.

>> thank you. >> professor jones, you're going to talk about eyewitness testimony. >> yes. in perry versus new hampshire, it's a case that's going to be argued on december 2nd. the issue is pretty simple and that is when the -- an eyewitness identifies the defendant as the perpetrator outside of court, under what circumstances is the court going to allow that information to come in at trial. that is that the witness can take the stand and say on the night of the robbery i pointed to him and said that's the guy. it has been since 1977 that the supreme court has found a serious look at the standards for letting in eyewitness identification testimony and the court's analysis centers on reliability. that is we're going to allow that testimony in, if the circumstances surrounding the making of that identification were reliable. we have learned a lot about eyewitness identifications and

misidentifications and unreliability since 1977. and the -- and the social science has changed. and mostly because of wrongful convictions. it is undisputed that in the 270 plus wrongful convictions, the number 1 cause of wrongful convictions is eyewitness mis-id. in about 75% of the cases, the person -- where a person has been exonerated with dna evidence, an eyewitness misidentification played a significant role in the case. so the question is, clearly, the standards we've been using since 1977 aren't protecting against unreliable eyewitness identifications in court. so that's the broader question that the supreme court has invited and could begin to address. that is they could refine some of the language from its earlier testimonies in stovall and biggers and others and the very specific question raised here presents a unique set of facts

or at least give the supreme court an out from addressing that question. and that is in the overwhelming majority of case there's an eyewitness identification of court, the police have initiated it. it's either a lineup and they put the defendant on the lineup, a photo array that the police have assembled on photos or they call a show up where they bring the suspect to the witness and say is this the guy. and in those cases the supreme court has said, we want to look at whether the police did anything that's unduly suggestive. whether they were going is this the guy here and they're choking him and he's in handcuffs and he's blowing and he's already confessed is this the guy whose done it and the witness said it was a black guy with dreadlocks and everybody else is white and that could be unduly suggestive but in this case the police did not orchestra or initiate the

identification. this was a situation where the police came to the scene. they stopped a guy who seemed to be in the area and matching -- matched the description. they then went to interview a witness and they said, what does the guy look like? and she said it was a tall black guy and they said can you give us more description. it's the guy with the police officer. they didn't make the guy stand there. they didn't bring the defendant to the witness' attention but she gave that description. the defense -- the petitioner on appeal argues that was an unduly suggestive identification and it doesn't matter whether the police initiated it or orchestrated it. the fact of the matter is, it's unreliable and the lower court said, you know, what? if the police didn't do anything wrong we're not going to get into whether it's unreliable and, therefore, violates due process because it was flawed. and the specific issue the court has to address is, does its precedence on the admissibility of eyewitness ids apply if the

police did not cause the misidentification. in this case, in light of what we now know of wrongful convictions and eyewitness mis-ids, it's really interesting because the witness, a latino woman, she says, it's -- it was a tall black guy. that's all i know, she's later shown the defendant's picture in an aright-of-way of photographs and cannot pick him out. later at trial she does not make an in-court id saying i didn't really get a good look at his face. she's the only witness who actually witnessed the theft and who could identify the person, no one actually saw the theft so we have a situation where there actually is a risk of misidentification here. she cannot definitively say this is the guy other than he's the one in the parking lot who was near the scene and with the police officer at the time. so the supreme court could simply say, the police officers did nothing wrong. our precedent has always

involved police officer involved out of court identifications. usually because that's the way out of court identifications occur or the court could take into account what has happened since 1977 and what we now know about eyewitness unreliability. for example, one of the factors the supreme court has instructed lower courts to take into account in deciding whether an eyewitness identification is reliable and, therefore, admissible in court is the certainty of the witness in the identification. the witness says i am absolutely sure that's the guy. i'm 100% positive. well, in about 75% of all wrongful convictions, the witness was absolutely certain and all of the social science research that we now have says certainty does not equal reliability. we thought that in 1977 and the prior cases but that's no longer widely respected as a factor in reliability. so the supreme court could issue a very narrow ruling on whether the police must be involved

there to be involved in an solution or take an opportunity which this court presents to tyke a broader look for eyewitness identification and put some restrictions on their admissibility and use at youth. >> i mean, i think, you know, i should start with a disclaimer i was once a prosecutor and i think you are right that inquiry identifications tend to be unduly credited by juries and not as reliable as people think because people are nervous and whatnot. i once had a bank teller in court identify the deputy marshall as the bank robber. [laughter] >> and the actual guy still got convicted but what is -- what is

the limiting principle of an inquiry that looks at the reliability of incourt id or out of court id is the claim of the constitution open force gives the criminal defendant a right to have the -- the reliability of evidence -- all evidence tested pi means other than cross-examination because i can think that there are many other types of evidence that, you know -- dna, the lineup is not good enough and before the prosecutor is allowed to put these things in front of a jury, might be the subject of a long fight in front of a judge as too whether this is, quote, reliable enough and the question is, if you take out the involvement of the cops, what is the limiting principle that will keep the trial in a criminal case from

shifting from the jury to a judge? >> well, in the interest of full disclosure, i used to be a public defender. [laughter] >> and so i've also had cases of misidentification. i think here we're in a different posture than we would be with all other forms of evidence. that is the supreme court has already, since 1967, recognized yewitness ility and the testimony and has already termed that that should be tested pretrial. so we're not charting new course here. the prosecutor -- if the defense wants to challenge an out of court identification, the defendant already has the right to do that. the question is, what restraints or what restrictions can or should the supreme court put on the use of eyewitness testimony and to what extent should the defendant be allowed to litigate its unreliability given what we now know about the fallibility of eyewitness testimony? given the number of times the witnesses in good faith just

simply got it wrong? and so jurisdictions across the country have placed all kinds of limits and predictions not supreme court constitutional level but state court constitution requiring judges to give specific jury instructions on eyewitness misidentification and unreliability have conducted hearings more elaborate on the standard hearing pretrial before i will let this testimony in so there are many issues that are raised. >> the other question is the federal constitutional right, how is the court to divide off and cordond off testimony from all the other forms of evidence? what's a rule, too? >> well, in terms of forensic evidence that issue has been preliminarily addressed in 2009 which basically said all nondna forensic science like hair

analysis and bite mark analysis, everything that's none of the dna, that's not science related that that is a challenge, fingerprints and things like that. with respect to eyewitness id i think the court can single it out because it is incredibly, incredibly powerful evidence and the courts already recognize the fallibility of it. unlike jailhouse testimony where there's some issue of its reliability, this is the number 1 cause of wrongful convictions. >> the number of factors that you mentioned that undercut -- that raise doubts of the reliability of this eyewitness id, i take it with one exception could all -- and probably all were put before the jury, right? that you -- at a photo lineup you were able to identify -- >> absolutely. >> and there's one exception and that is information on the general unreliability of eyewitness ids?

is that still the law that the defense counsel is constrained in putting before the jury of evidence from experts -- >> it's a defendant could not do but a trial court could allow a juror to do that and several courts around the country have allowed the defense to call in an expert to testify about the further unreliability of cross-racial identification so that testimony can go before the fact finder. the problem with letting the testimony come in, because, you know, it was considered by the jury -- if it's unreliable you don't want the jury to rely on. it doesn't come in. it's sort of like letting an expert come in and they made up some science and, you know, the jury can hear it and reject it if they want to but if they rely on it and they say, wow, that sounds pretty good to me, it sounds credible and they could make a determination based upon unreliable information so the

judge as the gatekeeper should keep out information that's unreliable and the judge should make that determination pretrial and then only let the jury hear that which actually is reliable. >> professor, you were very patient and you were slated to talk first. >> yes, and i apologized. baltimore is a very, very large distance from washington, d.c., in many ways that most people, i think, don't recognize. but walter's question and cynthia is the perfect segue talking about ineffective assistance of counsel. ken, you said it, sometimes people put it on. sometimes when the supreme court hears this many cases involving ineffective assistance of counsel and there are four somewhat arguably five cases that raise this issue in the supreme court this term and in the interest of time i really want to talk about one particular case and then another set of cases. now, keep in mind in a, you know, the framework for this -- the sixth amendment guarantees

the right of the accused to have the aid of counsel. the supreme court has interpreted that to mean that you have the right to the effective assistance of counsel and to raise a claim that you have received ineffective assistance of counsel to a level that violates the sixth amendment you have to prove that your counsel was deficient and then you have to prove that that deficiency was presidential. that is that in the absence of that counsel's poor representation the proceedings might have turned out differently. now, the supreme court has been kind of not very sympathetic about this question. they have afforded a presumption of effective assistance of counsel. in the case of bell versus cone you may remember in 2002, eight justices on the court led but justice rehnquist said that it was likely or reasonably a strategic decision at the counsel for the sentencing portion of a capital trial to pout no witnesses and to not make a closing argument and in

wood case justice sotomayor said it was reasonable for the trial court said it was not ineffective assistance of counsel. and an attorney who was on the bar for 5 months was responsible for the sentencing of the capital trial sentencing and failed to put on evidence so the landscape doesn't look great for these claims but the fact that the supreme court has taken so many and that they raise this issue from different perspectives, i think, seems particularly important. one set of cases that's two of them lafleur versus cooper and missouri versus frye raise the issue in the context of pleas. what happens when counsel does one of two things. either fails to convey to the defendant that the prosecutor made a plea offer? or so provides incorrect advice to the defendant as in lafleur versus cooper where the defendant was prepared to admit

that he had shot a woman four times and was prepared to confess and to try and get a plea but his attorney told him that the prosecutor could not possibly prevail on a charge of assault with intent to commit murder because all of the shots, the four shots that he had fired and that had landed in the victim were all below the waist. and counsel advised his client that, therefore, the prosecutor could not prevail on this charge. it turns out this is absolutely not true. and so they went to trial and the defendant, of course, was convicted. so we've got the plea case and a significant issue in the plea cases is what's the remedy? if you wanted to say, for example, in missouri versus frye it's ineffective assistance of counsel if the counsel gets the letter from the prosecutor saying here's the plea offer and never tells the client, is it possible to imagine what the remedy would be? so in the trial court, the district court said well, we

ought to require specific performance of the plea offered. in other words, we ought to require now that the defendant now be allowed to take the plea that was originally offered that he never heard about, right? and there's some contention about that and neil may have a workable solution to that problem but there's another case called maples versus thomas and notwithstanding the question presented, the question to me in this case is how much poor representation can one criminal defendant receive before it rises to the level of ineffective assistance of counsel? is and this case arises out of alabama. and in many ways, i think this case actually pulls together many of the strands of concerns that have been raised in prior cases involving ineffective assistance of counsel which come out of alabama. and so it's important to know the context of this case. obama is a jurisdiction that does not provide indigent

criminal counsel for convicts in post-conviction proceedings. they also do provide counsel in trial proceedings in capital cases and in direct appeals but they cap they attorney's fees that can be recovered at $1,000 so what this means is that very often you have not very experienced attorneys who are working on capital cases in alabama. in alabama, you also do not need to have a unanimous jury verdict to impose the sentence of death. a panel of 12 jurors is sufficient. if you put a lot of cases you have a lot of cases emanating out of alabama like woods and thomas this year in which cory maples went to trial with pro bono counsel, with two very inexperienced counsel at both the guilt phase and at the sentencing phase. the counsel failed to put on any evidence about the fact that he

had been taking crystal meth and crack on the night of the murders, which might have suggested that he under obama law that hetin have the mental capacity to be responsible and at the sentencing phase they put on no evidence about his bouts with depression, the fact that he had been suicidal by his mother and abused and the other kind of mitigating evidence that might have helped at the sentencing phase. they were so overwhelmed at the sentencing phase that the attorneys themselves said to the jury we know it looks like we're stumbling around in the dark. so, obviously, he was sentenced to death. and then at the post-conviction phase he actually seemed to hit the jackpot. he got two attorneys from sullivan and cromwell, a new york law firm who agreed to represent him. they did all of his post-conviction work and then they disappeared. and so when the clerk of the court sent a notice to the attorneys saying that his -- his petition for post-conviction of relief had been denied, they received a letter back from the firm saying, return to sender,

left law firm. the circuit court didn't make any efforts to contact the firm or to contact mr. maples in prison and so the deadline for his appeal passed on post-conviction. and the habeas proceeding when he learned that the deadline had passed, he was lucky again and got two attorneys -- these seemed to be two very good attorneys but the alabama courts were very clear that he had defaulted. he had failed to appeal his post-conviction, his te-nile of post-conviction relief and the 11th circuit has also said he had defaulted procedurally and he's unable to raise his claim of ineffective assistance of counsel and so the worth is going to be have to deal with that issue coming out of alabama and deal with the plea issues and there are at least two other cases it also raise an ineffective assistance of counsel and we have to presume that the court wants to say something comprehensive perhaps about this field that would justify them taking this set of cases. >> so we have about 30 minutes left and i want to save 20

minutes for questions but i do want to ask the panel to comment, we've been talking so far about the cases that the supreme court has granted certiorari and agreed to hear but there's a bunch of stuff people might have heard. i'm no goldstein. i can't predict this but you all can. so there's health care. there's affirmative action, there's sb1070 and if you could each spend a couple minutes tops so we can have time for the audiences questions on these cases and anything else you see coming down the pike? >> well, there's actually two cases that might make it to the supreme court and the one that tommy thought might make it actually somewhat less likely to make it up there just because it's not all that interesting. it is the u.t. case. you may recall that the supreme court in the last harrah of justice o'connor upheld an affirmative action program for

the university of michigan that said that it was appropriate to take race into account if you do it in a way that is personal and not a quota and you do a lot of other stuff so that actually no court can figure out what the heck you're doing. which is exactly sort of the standard. if you take it so to diffuse and so vague and so individualized that nobody has a smoking gun that race was the actual factor, then you can do it. and, you know, people in your universities shockingly are able to do these things. and so i don't think as long as that is, you know, the rule, you know, the supreme court is going to be interested in coming back to that issue so soon. is that in the enter regularium an affirmative action had been thrown out in the '90s, the

texas legislature i think at the behest of the late republican who is i'm sure very close to everybody here passed a statute that said that in order to increase the number of minority students in texas public education, there was going to be a guaranteed 10% for the top -- the top 10 at each high school would be entitled to go into one of the universities in the u.t. system and so the question that becomes somewhat more interestingly in this case is whether you can in the case double-dip. whether you can have a statute an umphf but still have some level of deference to the university if that deems that's

not enough and wants to also do one of the types of affirmative action programs that were upheld in 2003. i will say that the u.t. program was upheld in a very thorough opinion by judge higginbotham in the fifth circuit. it was not a dissent. judge garza had a second opinion where it said he thought the supreme court was out of its mind. if you basically have a panel of fifth circuit of all places telling you it's okay based on existing precedent and the best that the person can take a different view will say that the supreme court should have ruled this case doesn't really sound like a gilded invitation to the supreme court to actually get involved. now, the other case that i -- i'll just mention quickly is a lot more interesting and it's

coming out of the sixth circuit if it gets out, and it has to do with the michigan side of the story. after the plans were upheld in the supreme court, there was a popular referendum that essentially outlawed affirmative action in public education in the state of michigan. and as a result of that, you know, the one school that went to the supreme court can't do it anymore. the sixth circuit in a 2 to 1 panel threw that out as a violation of equal protection based on the theory of a couple of cases, hunter and -- another case involving the seattle school district that says that it is unconstitutional and a violation of equal protection to place political impediments to minorities in the attainment of

certain -- certain benefits. now, the cases that the court actually cited involved trying to entrench actual discrimination, people that were trying to make it difficult to get rid of racial covenants or to try to make it difficult to desegregate schools. insofar the graduator case that the affirmative action was a remedy for discrimination but was actually an affirmative good based on the diversity rationale, there was not a very good fit between what the panel said into the cases that it cited. the supreme court -- i mean, i'm sorry, the sixth circuit just last week took the case on bond. i would think that if it gets out of the sixth circuit in that form it's almost certain the supreme court would take it and i don't think it would be 5-4 of the supreme court either. but now that the sixth circuit

has taken their own bond maybe it won't get there. >> talking about the ut case, of course, the presumption is that -- and given what happened with citizens united recently i don't think we can necessarily presume that simply because the court decided in the last decade they're not going to revisit the issue that you can't get four justices to decide that they want to hear that case. so i think there is a certain amount of anxiety and nervousness about the ut case. i think what's actually interesting about the ut case is something that miguel alluded to when texas announced this 10% plan, that students graduated in the top 10 of every public high school would automatically be admitted to the flagship university and so forth, people said that's the answer. that's the solution. you don't to have deal with the messy business of race that justice roberts doesn't like because it's so unseemly because of our suggest grated school system, we're going to have black students who make it in. in the interim, what the university of texas has been

able to discover and to develop particularly at the law school is to demonstrate the ways in which this is deeply problematic. the ways in which it excludes, for example, black students whose grades are not as good but their s.a.t. scores or their l.s.a.t. scores are fabulous and they're likely to be excluded. the way it encourages students to take a less academically rigorous program in school so that they can graduate higher in their class. it undermines this idea of looking at the context of the academic program and so forth. and so they actually adduce some interesting data and information that suggest that these kind of blanket 10% plans are not the answer and that seems to actually give some more robust support to the idea that universities to have engage in a kind of more individualized process that gives them an opportunity to look more closely at the student in the way that the rudder case suggested. so the framework, the presentation of the case should the supreme court decide to take it is actually quite strong given the data that ut has been able to develop and just as a

matter of public policy to even have that debate and have that information made public for the nation to begin to grapple with the fact that this question is not one of simply math, top 10% and we solved their problem that it's actually considerably more complex it seems to me makes the ut case quite interesting. >> interesting, health care. >> health care. >> health care. i think the health care law if it gets to the supreme court this term and i no longer think that's a certainty. but i think if it gets to the supreme court -- >> flesh out a little bit why you think it's no longer a certainty. >> well, i think the jurisdictional issues are significant. the question of whether the tax injunction act prohibits the challenge to a federal tax until you've actually paid the tax which would be april of 2015 where the first person has to pay $95 for fought having coverage whether that should lead to the postpone of the of the litigation.

>> the supreme court said their stage is ripe because they have to start paying money and whom it will be a financial hardship so they've almost pled their way out of having a real case or controversy in the sixth circuit case so i think there are some problems. i've always thought at the end of the day it was going to be upheld. it wasn't going to be close and it wasn't going to come down to justice kennedy. i rarely make predictions unlike tom but i thought -- i know. you had mentioned that he does make predictions i always thought it would be at least 7-2 to uphold it, maybe 8-1 and justice thomas because he's willing to reconsider very well settled precedent both in the 19th and 20th centuries in a variety of areas. [laughter] >> no, he's made that explicitly clear. i would assume the chief justice would assign the opinion to himself and would not want to

write an opinion that said the only way to deal with the social problems is for congress to have a single payer program rather than to have the incentive to participate in the private market. and i think that the notion of whether this is within the jurisdictional box of commerce is an almost ridiculously easy question. that is incentives to make a promise to interstate congress. they're not raising any liberties in this case. and the arguments there are a lot of other things that congress might do with that jurisdiction are arguments that don't actually work when the only question is whether something is within a subject matter. so, for example, i think as you and i have discussed, the attack on the social security law said that congress -- congress has the power to do this and set the social security age at 25. well, yes, that's because it's a jurisdictional question.

when the minimum wage law was passed and the question whether that fit within commerce among the states, the statement was made if congress could pass the minimum wage of $5 an hour it can pass minimum wage of $5,000 an hour well, of course, but that's the nature of jurisdictions. there's other constitutional doctrines that come in to play when congress does such a thing. and right now it is in -- it is indisputably within the commerce power for congress to enact all kinds of ridiculous regulations when you engage in commerce. and i think judge sutton's opinion makes a huge difference by identifying the fact that this is a regulation of inactivity makes no sense. this is a health care service something no one can be sure they won't be using them when they do need them, they will be provided for them at least in some fashion. the cost will be transferred to others. if you're going to self-insure, he had that is a very active

process. and, therefore, i think you put all that together this is not -- i think smest this is not going to be seen as a difficult case. miguel thinks otherwise. >> well, actually i think it's a very complicated issue at a number of levels. dealing with the first issue that neil identifies as to when it will get to the supreme court. i think we should all agree that it would be in the public interest for the education of the issue which as contentious as it is to get it done with and to get it on its way to the supreme court just as soon as we can is a clean legal issue. you don't need to have any factual issues on that. and, you know, we've had rulings for -- from multiple courts on all sides of the issue. it is nonetheless very clear that the strategy of the administration is to do cartwheels to keep the case out of the supreme court so as not to have a ruling before the 2012 election. i mean, they take every extension.

they do everything they can to stretch it out and just so that you know, if a case -- if a case on this issue is not taken by basically the second week in january, 2012, you will not have a ruling before the election because it will not be heard. unless they will have a special election and i would bet you any amount of money that the administration is going to be look at the 11th circuit and if you look at the composition of the panel there's no way in heck that they would get it and they want to chew up the time just, in fact, the court gets it is not for a ruling until after the election. now, once you do get it there, you know, won't issues are really hard. every time you ask the supreme court to overturn an act of congress, it's a very difficult thing for the court to do and congress comes to the supreme court with a presumption of

deference and constitutionality. they're issues as to the standing and as to the jurisdiction. if this were, in fact, a tax, i think, you may be right that there's a jurisdictional question, you know, the case of the administration on the tax issue is not aided by the fact that the man who signed the bill, you know, the president of the united states went on the speaking circuits saying it wasn't attacks and this is a definition of a tax and it is not a tax and at some point there's a question as to whether -- if you're dealing with user fees or burdens or impositions that could reasonably be called a tax whether you are not owed some level of deference. and taking him at his word, you know, the congress issue is actually very hard because you

have the when i canner and the filburn case and you have the rage case and i have a lot of respect for jeff sutton and i think his analysis was a very honest attempt to grapple with a difficult question. i also have a lot of respect for frank holden of the 11th circuit who was a clinton appointee. and they came to very different conclusions and it was a hard question. >> do you have respect for their opinion as well? >> i do but they were the court that said the tax injunction act would apply. >> yeah. >> and i think that is a applausable argument if you accept the proposition if you are not to take the united states at his word. >> whether or not the junction bars is not whether you can constitutionally defend it as an exercise of the taxing power.

that is it's quite clear -- if there's a surcharge of 2.5% on the federal income tax, that that is a tax within the meaning of the tax injunction act. you might say we're not going to uphold this as an exercise of power as a signaling function but that doesn't change the fact of that. one -- [inaudible] >> okay. we'll keep the discussion going i'm so sorry. did you have any cases you wanted to talk about? >> i just want to briefly alert to you a couple of cases. there's one case that involves yet again an analysis of brady versus maryland. once again, we have a louisiana case where the government has failed to turn over exculpatory information to the defense as is constitutionally required and the supreme court has to do an analysis of whether the defendant's constitutional rights were violated and we have another one on the confrontation clause and that's an area where i suspect there's going to be a lot of litigation for many years

to come and in this case, it presents a clash between the court's most recent precedence requiring that in a -- when the government wants to introduce documents for analysis or forensic analysis or reports they have to call the person to perform the analysis and they can't just rely on the written record. it presents a clash between that principle and another principle of evidence that allows an expert to testify and give the basis for their opinions so the expert can say, this was the cause of death and i read the toxicology report prepared by somebody else. that person is not going to testify but i can tell you what that report says. those two rules the confrontation clause and the rules on expert testimony clash in a case -- williams versus illinois that gives the supreme court an opportunity to tweak the confrontational clause analysis in light of its rules on expert evidence under rule 703. >> excellent. arizona, okay. >> just very quickly there's no shortage of commentary on the arizona law under sb1070 and

most people are predicting that the court will grant cert that seem obvious and compelling. not only has the ninth circuit enjoined a law or upheld the junction of a law but other states have followed arizona and enacted their own laws. my home state of georgia has, alabama has, utah has, indiana has, right? and in each of those cases, courts -- well, except for alabama in each of those cases courts have enjoined the enforcement of the act on the doctrine of preemption. alabama has stayed its decision while it further studies the decision so no court has upheld one of these statutes. national association of state legislature, national state legislatures report that over 30 states of significant immigration legislation pending and so there's an obvious need for guidance here. the one caveat i would offer is

that this involves a question of preemption. right? the issue in these cases is not racial profiling, a lot of public discussion centers on that but the issue in these cases is whether or not these laws are consistent with federal statutes. and the court might well think that congress is going to get around to addressing this issue and it's congress that ought to be providing the guidance. so with that caveat in mind where they might sit back for a while and see if congress does anything, the other factors would seem overwhelmingly to indicate the court ought take a look at it in which case i think this is a case that comes down to justice kennedy. and i think it's hard to know in advance of what he will do. he has been sympathetic to preemption claims in the past in a way that would make you think he would be willing to side with the ninth circuit on at least some aspects of arizona's law. on the other hand, he's -- as he has in so many areas gone both

ways. so it's apt to be a close argument. >> could you identify what the precise preemptive aspect of federal law that is said to be operative in this case? >> right. there would be two. there are two types of provisions of the arizona law that have been challenged. one would be law enforcement. one set is the law enforcement provisions that authorize state officials to, in essence, enforce federal immigration law. the other set would be new crimes in the state of arizona, arizona crimes that are based on federal immigration -- >> but for the flip side of that which is what's the federal -- >> right. so the federal preemption with respect to the law enforcement positions -- provisions, there's a federal law that dictates how it is that the federal government and states corporate.

states apply to the attorney general. the attorney designates them, chooses officer by officer which officer will be authorized to enforce federal immigration law and it's all subject to the attorney general's supervision and control, which ought to appeal even to a justice like justice scalia who thinks it's a violation of separation of powers for congress to vest local law enforcement officers with authority to enforce federal law. so, you know, why wouldn't the arizona law fall under that? that's a separate argument from preemption. the preemption argument is arizona is going around that system of having the attorney general specify the officers and directly authorizing their officers to go ahead. with respect to the criminal provisions, it's simply a matter of federal discretion as to how to enforce federal immigration law which is complicated by the fact that you're introducing local state prosecutions. >> that's why -- i mean, i guess

the question i want to ask is, it seems to me that for -- for reasons we don't really have time to get into, actually, both aspects of the problem really do involve a claim that the -- that the preemption flows from the interference with the discretionary authority of the attorney general over -- over the enforcement of the immigration laws. and in order to make that stick -- and i do concede is the case law is that a federal policy may have -- may have preemptive effect but doesn't the administration have to say that the current level of enforcement of the immigration laws which is to say whether you think of it is lax or just right is a federal policy and that, therefore, additional enforcement of the immigration laws to, you know, bring people -- >> no, i don't think that the federal government has to say

the current level, at that systemic level, is where it's supposed to be. but rather that case by case the attorney general has to have discretion about what to do about a particular alien. >> sure. >> and if the state is -- >> but the state law says you bring them to the feds, right? and so at that point the a.g. has the discretion so there is, in fact, a preemptive effect. >> state criminal law which say throw them in state jail and that might not be the disposition that the attorney general wants with that case. and with that we have some roving microphones to come over to you. greg stone is in the back. >> hi, i'm greg store with bloomberg news and i wonder if neil would respond to the assertion that the government would do cartwheels to keep the

health care case out of the supreme court this term? >> well, i don't want to speak about anything that's not in the public record 'cause, obviously -- i argued all these cases in the circuit court so i don't want -- and i can't speculate about what they're doing since i left on june 30th. but i mean, i think there's nothing that could be farther from the truth about the federal government's expedition of all of these cases. we went with a radically fast briefing schedule in every single circuit court in order to get prompt resolution of these issues so i can't speak to, you know, what's happening now with respect to the supreme court and whether or not issues should percolate more in the like but the notion that the administration has been dragging its heels, i can't -- i'm not hard-pressed to think of a set of cases in which the -- in which any administration has moved more quickly in the circuit courts than these health care cases. >> the government has not pressed jurisdictional issues that could have postponed

litigation until 2015 it shows not to press shows issues but to get resolution in these cases. >> two points. they raised them until you lost them, they didn't. i don't want to beat on neil but do notice that he said that we have been expedition in the circuit courts which is we have gone to the processes that exist to go through the district court and i'm sure they will be expedition about filing for a fruitless case in the legal circuit. they had the option as soon as they lost cases in districts courts in the 11th circuit and the fourth circuit to do what the government has done in other cases on questions of national importance to seek cert before judgment and go straight to the supreme court. people asked him to do that and they were very careful not to do it. >> the very reason --

>> seeking certiorari before it, the government has sought it i think in a total of three or four cases in the last several decades, often in cases in which there was a massive injunction with a real social problem at that moment. here the law goes into effect the individual mandate in 2014. i think as -- there was a circuit before court it was filed and it was denied i think without dissent and the notion that this would meet those standards i think is a very hard argument. >> and it's perfectly proper for the government to say that this issue is going to benefit from having more judges look at it and get less away from the -- >> i think it's easy. i understand it. the more judges to look at it i think the more that will eventually be apparent that, of course, a regulation of one seventh of the national economy is within the subject matter of commerce among the states. >> the beatings will continue

until the morale improves. >> neil can't address this but i can't imagine why the administration would not want this issue resolved before the election? >> really? >> yes, absolutely as a political matter. i don't even know what the incentive would possibly be as well as the absence of any -- of any evidence if that was thought to be stieshl. >> -- to be stieshl. >> yes, over here. >> do i stand up here. on the mbz versus the clinton case of the baby boy born in jerusalem, if i understood it correctly that perhaps a preliminary issue would be a political issue, jurisdiction and whether or not that would implicate baker versus karr 'cause i've heard if there's one case, justice scalia thinks was wrongly decided and would love to overturn baker versus karr. >> i don't think that mbz would provide a very good vehicle for overruling baker versus karr it

might provide a good vehicle to say disparaging things -- [laughter] >> the question in the case is whether or not the recognition power resides with the president and whether or not congress' law invades the president's recognition power and there's just no political question there. the political question would be whether or not to recognize that jerusalem is within israel but that question isn't presented in the case. the question is, who get to make that call? and that's a legal question. and so i don't think the court is going to hesitate over the political question of the case. >> over here. >> thank you, ian melhiser with the center of american progress. the way you characterize the lower court's decision in the eyewitness case they essentially said the police didn't do anything wrong and so that makes it okay. >> yes. >> the lower court said because

the police officers did not orchestra that eyewitness id we did not have to engage in an analysis whether there was a due process violation. >> that strikes me as tragically wrong and here's why. every case i know of where the court has said the police didn't do anything wrong so we're not going to allow a remedy here. it's an exclusionary rule case and an exclusionary rule case is the nature of the case where we have evidence that we know is probative of the if the police find me marijuana healing they know i'm in possession of marijuana, the question here is evidence is probative in the first place and so it seems to me -- like it's a massive shift in our constitutional law if we're going to move towards saying that the purpose of a trial is no longer to assess probative evidence to determine the truth. it's to make sure the police checked all the probative boxes. is this case an outlier or are

we seeing a shift from trials being viewed as a determination of the truth towards whether or not a trial should be viewed is simply whether the government checked all the boxes and if they did it doesn't matter if the guy is guilty or innocent or not. >> i don't think it's not quite that drastic of a shift. and i believe the petitioners argue blothat the court should not focus on whether the police officers did anything wrong. there's definitely an interest of the courts and an interest of government in making sure officers pe-hazel themselves and conduct themselves investigations accurately but those vindicated by the witness's identification testimony it just so happens that an overwhelming majority of cases it involved police officer identifications. it's not contingent upon that. the real inquiry is, were the circumstances -- whether the were involved or not were the circumstances of that identification suggestive such as would make the identification

testimony admitted at trial unreliable? it doesn't matter whether the police was involved. if there was a scenario where no -- the judge should not let it in because it's so unreliable and it's likely to lead to a wrongful conviction we don't really care whether the police were involved the petitioner argued. and the lower court said, no, that the -- just like with suppression of evidence seized unconstitutionally in violation of the fourth amendment, the focus is on police misconduct. and it's not -- in the first instance. if we don't have that, we don't even have to reach the circumstances regarding reliability and i agree with you. i think that's just wrong. i think the court should address that in substance. and if they do, it then raises the issue of what we know about unreliable id. >> this is a indecently perfect segue to talk about one of the case that i think is going to get the attention and that's florence board of freeholders of burlington county, new jersey. it's a strip search case but it's a very interesting case, i

think, that's going to have tremendous resonance for many people and it involves this question of kind of deference to law enforcement. it involves a man who was arrested in new jersey after he was pulled over. he actually wasn't driving. his wife was driving. the police asked who the owner of the car. the wife told the owner of the car and they took her husband and arrested him when they found in the computer that he had an outstanding warrant for having to complete paying a fine and he was adjudged in civil contempt. he had, in fact, paying the fine and so is have about the possibility of being pulled over on this outstanding warrant that he carried with him the copy with the seal on it, the raised seal indicating that he had, in fact, already paid the fine and he showed this to officer but the officer said i've got to go with the computer and they arrested him. and they took him to jail and he was held in jail for a week. he should have seen a magistrate or a judge within 24 hours and he was held in two different jails in a week and subjected

over the course of the week to two strip searches he alleges. and the case that he filed after he was finally brought before a judge -- it was determined that, in fact, he had paid the outstanding warrant and, therefore, he should not have been arrested and the case raises the question as to whether or not in the jail a jail could have a policy of blanket strip searching everyone who comes in or whether each individual is entitled to the individualized determination whether there's an individual suspicion that the individual might be carrying contraband or might otherwise be concealing a weapon of some sort now this is important because mr. florence in this case is the financial manager for a car dealership. this is clearly a case in which he didn't do anything wrong. he was in the right. he was arrested. he went through this ordeal. it's also true that 14 million americans are arrested every year. and very often they're arrested and ultimately not charged and he's now filed a class action that includes people who were pulled over for failing to have on a turn light, for having a noisy muffler. obviously, race play as key

here. mr. floorence is a african-american, and new jersey is known driving the black i-95 case where 75% of people who are stopped and arrested by troopers were black although blacks only constituted only 30% of the motorists and all the evidence was that blacks and whites committed driving infractions at the same level so you got the race context and you got the context of 14 million people being arrested that the police do make mistakes. do we want to have a rule that allows at the jail -- we're not talking about prison, at the jail a blanket policy of subjecting everyone who comes into the jail who may be arrested for a variety of reasons that are not even serious crimes to be subjected to a strip search. i think this case is going to get a lot of attention. there are a lot of amicus briefs filed in this case and on the side of the jurisdictions and i think it's one of the cases to watch out for. >> well, i'm told we're