Volume 23, Issue 1

STATISTICAL ABSTRACT

SUPREME COURT VOTING BEHAVIOR: 1994 TERM (page 1)

By Richard G. Wilkins, Scott M. Petersen, Matthew K. Richards, and Ronald J. Tocchini

This Article attempts, through statistical analysis, to identify the ideological leanings of the United States Supreme Court during the October 1994 Term. Although generally perceived as a "conservative" institution, the Court this Term adopted a more liberal stance in its approach to First Amendment, statutory civil rights, jurisdictional and federalism issues, and in litigation involving the federal government. Furthermore, in close cases that were decided by a one-Justice majority, the Court overwhelmingly adopted a more liberal result. Justice Kennedy remained the most influential Justice, his vote determining the outcome in over 80% of these close cases. While some of this liberal movement may be attributed to the nature of the agenda pursued by the Clinton administration, it is too broad-based to be discounted entirely. Regression analysis, moreover, reveals that there are several positive correlations (and one negative correlation) in the voting patterns of the five longest-tenured Justices.

ARTICLES

COUNTER-DEMONSTRATION AS PROTECTED SPEECH: FINDING THE RIGHT TO CONFRONTATION IN EXISTING FIRST AMENDMENT LAW (page 77)
By Kevin Francis O'Neill and Raymond Vasvari

On any given issue, groups with rival viewpoints may clamor for access to a particular forum at a particular moment in time. Public officials, alarmed by the prospect of clashing demonstrators, may seek to enjoin the simultaneous presence of opposing groups. Though counter-demonstration is an increasingly prevalent phenomenon, few cases address the First Amendment implications of such an injunction. Courts granting injunctive relief have relied on a "spontaneous combustion" thesis, concluding the abstract possibility of violence suffices by itself to justify banishing counter-demonstrators from the forum.

This Article asserts that the spontaneous combustion thesis is utterly inconsistent with First Amendment doctrine. Examining two strands of precedent--limiting government power to restrict potentially volatile demonstrations and to punish seditious speech--the Article demonstrates that the First Amendment protects the clash of competing viewpoints even at the risk of public disorder. It contends that counter-demonstration is no less deserving of First Amendment protection that the right to protest generally--and that, absent a clear, present danger of imminent lawless conduct, counter-demonstrators otherwise have a right to deliver their message in the same forum, and at the same time, as those whose message they oppose.

WAIVER OF THE RIGHT TO APPEAL (page 127)
By Robert K. Calhoun

Current plea bargaining practice increasingly includes a requirement that the defendant waive any right to appeal as a condition of the plea bargain. This relatively new negotiation tactic carries with it the potential for rendering criminal appeals nearly as rare a phenomenon as criminal trials have become under the old model of plea bargaining. This could move us one step closer to an administrative model of criminal case resolution in which neither factual nor legal issues are resolve by the courts but rather by the parties through a process of negotiation.

This Article argues against this practice, maintaining that it violates the public policy inherent in the right to appeal. Current widespread judicial approval of such waivers essentially elevates concerns of calendar control over more important considerations of fairness, uniformity of treatment and accuracy of adjudication. In addition, the Article also explores the due process implications of the practice but concludes that until the Court is prepared to revisit the doctrinal underpinnings of plea bargaining, any due process attack on the practice is likely to fail.

Lastly, the Article explores the particularly troublesome practice of requiring waiver of future, unknown sentencing error. The Article concludes that this form of waiver not only violates public policy but also the most basic principles of knowing and intelligent waiver.

WHEN JUDGES IMPOSE THE DEATH PENALTY AFTER THE JURY RECOMMENDS LIFE: HARRIS V. ALABAMA AS THE EXCISION OF THE TYMPANIC MEMBRANE IN AN AUGMENTEDLY DEATH-BIASED PROCEDURE (page 217)
By Amy D. Ronner

Professor Ronner examines the disturbing ramifications of sentencing statutes that allow a judge to override a jury's advisory life verdict and impose the death sentence. The Article analyzes the importance of the jury in a criminal proceeding, its special function in the capital sentencing phase, and the ensuing devastation from a judge trumping a jury life verdict with death.

The author then advances the position that jury override statutes do not spawn mere death bias, but actually an augmented death bias, and stresses the special significance of a jury life verdict issued in spite of that augmented death bias. The Article also explores the significance of "the Tedder safeguard," which requires a trial judge to accord great weight to a sentencing jury's recommendation, and then analyzes the disturbing impact of an override scheme that lacks that significant protection.

In the recently decided Harris v. Alabama, the Supreme Court approved a capital sentencing statute that allows trial judges to "merely consider" the jury's recommendation before rejecting it. The author suggests that in Harris the Court annihilated the only safeguard, the Tedder standard, in an arena of augmented death bias, and in so doing, has excised the metaphoric tympanic membrane of death sentencing. According to Professor Ronner, the Court is encouraging improper executions and ultimately disparaging the value of life.

NOTE

BEYOND PINUPS: WORKPLACE RESTRICTIONS ON THE PRIVATE CONSUMPTION OF PORNOGRAPHY (page 271)
  By Peggy E. Bruggman

While pornography in the public workplace has begun to raise First Amendment concerns, most commentary and jurisprudence has focused on the restriction of verbal speech or the posting of sexually explicit material in the workplace. In Johnson v. County of Los Angeles Fire Department, however, a federal district court struck down as violative of the First Amendment that portion of a sexual harassment policy which prohibited the private consumption of pornography in county firehouses. Using the Johnson decision as a basis for discussion, this Note argues that workplace regulations prohibiting the private reading and consensual sharing of sexually explicit material may be constitutional.

The constitutionality of restrictions on the speech of public employees is evaluated by balancing the employee's right to speak on a matter of public concern against the employer's interest in an efficient workplace. This Note criticizes the Johnson court's analysis of this balancing test, both for categorizing the reading of pornography as a matter of public concern, and for giving insufficient weight to the employer's showing of disruption in the workplace. Following a discussion of the harm of pornography, this Note proposes that once this harm is included in the equation, the government as employer may restrict the private consumption of pornography to rid the workplace of sexual harassment, discrimination, and inequality.

COMMENT

HUNG UP ON SEMANTICS: A CRITIQUE OF DAVIS V. UNITED STATES (page 313)
  By Samira Sadeghi

A suspect being interrogated by the police suddenly says, "Maybe I should talk to a lawyer." What legal effect, if any, should this statement have? What procedure should the police follow upon such an invocation? The United States Supreme Court in Davis v. United States adopted a rigorous standard for suspects invoking their Miranda rights.

This Comment criticizes the Court's adoption of the so-called "threshold of clarity" approach and its conclusion that only "clearly asserted" invocations of counsel trigger any protection for suspects. The Court's heightened requirement of clarity unfairly places a higher burden upon suspects in an already intimidating situation, and reduces suspects' Fifth Amendment rights to mere semantics. Moreover, the decision ignores cultural and sociolinguistic differences, and penalizes the relatively powerless sectors of society whose pronounced use of indirect speech patterns often lead to seemingly ambiguous statements.

This Comment then analyzes cases decided since Davis and concludes that the Court's standard has had a highly detrimental impact upon suspects' rights to counsel and even silence during a custodial interrogation. This Comment proposes that state courts treat the decision as a floor and provide broader rights to their citizens under their respective state constitutions.