Chief Justice Burke pointed out that counsel should assume the court had read the facts in the district case records, and should accordingly emphasize legal principles at stake.
Armstrong v US.
A public defender argued the case at short notice for an incarcerated small-time drug dealer who was sentenced in 1991 to a heavy term and now seeks to have the sentence reduced retroactively according to guidelines clarified in about 1995. The plaintiff had argued pro se until shortly before the appellate trial.
The was a lengthy exchange between the defense counsel and justices over whether a provision missing from the list could be inferred. (Hence a long exchange over specific clauses enumerated repeatedly.) The sentence could be reduced only if a provision could be inferred as included in a list in which it was not enumerated.
Respondent's counsel argued by conference call, owing to a serious injury sustained recently. The court evidently has new audio technology and the sould system was unusually clear. She disputed the inference of the unlisted clause.
At last, justices congratulated both counsel for a good, clear argument at short notice.
US v Dodds
Internet downloading of child pornography was charged under a recent federal statute, though with little hard evidence from the district trial record. The location of the computer was in Huntsville, but images had been derived from out of state and out of country (hence federal jurisdiction). Appellant claimed that burned CD-ROMS might have been handed to him rather than downloaded via the Internet. Appellant's counsel was not particularly articulate or quick in response to questions, and the justices appeared to help him with questions to elucidate the case. The issue was whether downloading could reasonably be inferred when physical proof of that route was not shown.
There was a distinction drawn between large quantities of drugs that
indicate dealing, and large numbers of images that may indicate only private
Blackman (??) appeared more comfortable than Burke with the inference of downloading.
Greene County school case.
A principal evidently used excessive force (with a steel cane) in inflicting three heavy blows against the rib, back and head of a child who stood up from his seat against instructions. The two sides disagreed on facts in the case. Excessive force, stated the justices, triggered a violation of federal rights and hence fairly strict scrutiny. Appellant's counsel (for the county or school) argued for state jurisdiction only. The Justices appeared incredulous at that argument. Corporal punishment was not at issue, since this was a sudden action.
(Notably, three of the four counsel in this case were African American. One judge identified herself as a former teacher.)
Pryor v Williams.
Dep. Sol. Gen Scott Rouse argued for AG Pryor before a second panel of the Circuit in the same case, defending the Alabama "Sex Toys" banning statute of 1999 (?) The ACLU national office supplied counsel for respondent. On remand to the district court, the district judge had established a constitutional right to privacy in sexual intimacy, that the state sought to overturn. A second prong of the case was based on whether a rational purpose could infringe on individual freedom for the sake of a moral standard. A third issue was whether the recent US supreme court opinion in Lawrence v Texas which over turned the 1986 opinion of Bowers v Hardwick should trigger a new look at the case. In Lawrence, the majority opinion barred prosecution of consenting homosexual adults engaged in private sexual acts. Lawrence's narrow holding favored the state, but the lengthy dicta in Lawrence did not necessarily. Neither side wanted to place too much stock in that precedent.
The state's key argument was that the statute banned only sale for profit, not use by consenting adults in private, of sexual arousal toys that may be harmless. The ban did not cover end use, or therapeutic ouse, or nonprofit sharing. The counter argument was that banning sale led to a burdening of a right of the user.
Justice Burke rather than the other two appeared to argue for a moral rule -- even in the absence of harmful behavior -- itself being a rational act. One issue wss whether the state's ban was analogous to banning prostitution between consenting adults. Justice Hill (and perhaps the others) implied that the statute might have been enacted merely out of political posturing.
Side issues included whether sexual devices might be ineffective, or alternatively therapeutic -- for which the State had an exemption.
The state faced a lengthy cross examination by the judges; it seems possible they might overturn all or part of the statute but they did not seem favorable to the district court's creation of a new federal right to sexual privacy beyond the Lawrence precedent.