The Appellate Corner

• Publication year: 2011
• Pages: 0455
• Citation: Vol. 72 No. 6 Pg. 0455

THE APPELLATE CORNER
Vol. 72 No. 6 Pg. 455
The Alabama Lawyer
NOVEMBER, 2011

WILSON F. GREEN
wgreen@fleenorgreen.com

Cases to Watch in the U.S. Supreme Court's October Term

The United States Supreme Court's October 2011 term began last month. As of press time, the Court had accepted 41 cases on certiorari for argument and decision in this term. Some of the more noteworthy cases, along with the issues accepted for review, are the following:

Criminal

Search and Seizure

Florence v. Board of Chosen Freeholders, No. 10-945; from the Third Circuit, 621 F.3d 296 (3rd Cir. 2010)

Whether the Fourth Amendment would allow a warrantless strip search, without reasonable suspicion, of a person being held in jail resulting from a bench warrant issued after a civil contempt finding for failure to pay a fine

Eyewitness Identification

Perry v. New Hampshire, No. 10-8974; from the Supreme Court of New Hampshire, unpublished

Does the exclusionary rule for eyewitness identification evidence apply only when the police are responsible for creating the circumstances surrounding the identification which fostered an indicia of unreliability, or can it apply whenever the identification was made under conditions which tended to suggest that the defendant was responsible for the crime, regardless of the source of those conditions?

Brady Material

Smith v. Cain, No. 10-8145; from the Orleans Parish Criminal District Court, on post-conviction proceedings, unpublished

Whether the prosecution's failure to disclose Brady material concerning potential inconsistencies in statements of murder eyewitnesses was material or harmless

Search and Seizure

U.S. v. Jones, No. 10-1259; from the D.C. Circuit, 615 F3d 544 (D.C. Cir. 2010)

Whether the government's warrantless use of a GPS tracking device affixed to a car violated the Fourth Amendment, where the owner of the car did not consent to the monitor

Confrontation Clause

Williams v. Illinois, No. 10-8505; from the Illinois Supreme Court, 238 Ill.2d 125 (Ill. 2010)

Whether a state rule of evidence allowing an expert witness to testify about DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the analysts

Civil

Qualified Immunity

Messerschmidt v. Millender, No. 10-704; from the Ninth Circuit, 620 F.3d 1016 (9^th Cir. 2010)

Whether police officers were entitled to qualified immunity when they obtained a facially-valid warrant to search for firearms, firearm-related materials and gang-related items in the residence of a gang member and felon who threatened to kill his girlfriend and fired a shotgun at her

TCPA; Federal Jurisdiction

Mims v. Arrow Financial Services, LLC, No. 10-1195; from the Eleventh Circuit, 2010 WL 4840430 (11^th Cir. 2010)

Did Congress divest the federal district courts of their federal-question jurisdiction over all private actions brought under the Telephone Consumer Protection Act?

Copyright Law

Golan v. Holder, No. 10-545; from the Tenth Circuit, 609 F.3d 1076 (10^th Cir. 2010) and 501 F3d 1179 (10^th Cir. 2010)

Whether Congress, consistent with the First Amendment, acted constitutionally when it restored copyright protection to a large body of foreign works which had been placed in the public domain; as a corollary, whether the Progress Clause prohibits Congress from taking works out of the public domain

Arbitration

CompuCredit Corp. v. Greenwood, No. 10-948; from the Ninth Circuit, 615 F.3d 1204 (9^th Cir. 2010)

Whether, by conferring on consumers a right to "sue" a credit repair organization, Congress intended to preclude arbitration of claims under the Credit Repair Organizations Act, in light of the CROA's provision declaring void any waiver of consumer rights

FMLA

Coleman v. Maryland Ct. of App., No. 10-1016; from the Fourth Circuit, 626 F.3d 187 (4^th Cir. 2010)

Whether Congress abrogated the states' Eleventh Amendment immunity when it passed the "self-care leave" provisions of the Family Medical Leave Act

RESPA

First American Fin. Corp. v. Edwards, No. 10-708; from the Ninth Circuit, 610 F.3d 514 (9^th Cir. 2010)

Does a Section 8(a) RESPA plaintiff, who seeks recovery of statutory damages of three times the amount...