Weekend Law: SCOTUS on Human Rights, Religious Rights & Etan Patz

19:57Richard Garnett:Yeah, this is, and I apologize for getting into the weeds a little bit, but RALUPA is a special kind of statute. It's authorized by what we call the spending power, which means that it's not so much a direct regulation as it is a deal. The Congress says to the states, if you want this money, then you have to agree to comply with this understanding of religious liberty rights. The wrinkle in this case is that Mr. Landor wasn't suing the state. He wasn't suing the state prison. He was suing the prison employee in that employee's personal capacity. So, you know, you're not suing the prison, you're suing, you know, Officer Jones.

20:34Richard Garnett:And the thing is, Officer Jones never took any federal money, so he didn't make this deal with the federal government. So according to the court, since Officer Jones, that's not his name, I'm making that up, didn't make the deal with the federal government, that means that the federal statute doesn't authorize a lawsuit against Jones. And it's all based on these kind of, you know, first year law school constitutional law debates about the regulatory powers of Congress and how much power Congress has to attach strings to the money it spends. And there's a long tradition of the court saying, you know, there are limits on the strings you can attach to money.

21:08Richard Garnett:So again, nothing denies that the officers behaved badly and that Mr. Landor's religious freedom was violated. It's that the particular relief that Landor was seeking, the money damages lawsuit against an individual, couldn't be authorized by the statute.

21:22Curtis Bradley:So the majority said that state employees didn't consent to face lawsuits in their personal capacities when Congress passed RALUPA. As a practical matter, when would an employee consent to be sued? Justice Ketanji Brown Jackson in dissent said, today's decision magically transforms a federal statute into an invitation to be accepted or declined, deemed binding only if each particular defendant has explicitly agreed to be penalized. I mean, to the average person, the dissent makes sense.

21:55Richard Garnett:Well, and again, I was on that side in the end. I do think she oversimplifies the federalism issue. There's plenty of precedent to the effect that these regulatory spending arrangements do function kind of like a contract. That said, in my view, the better ruling would have been to say that when the state entered into this effectively contract with the federal government and took on the burdens to respect the religious liberty of inmates, that because these folks are the employees of the state, those folks kind of take employment subject to the requirements that are laid on their employers. And that includes what the statute calls appropriate relief, which if you want to get in the weeds.

22:34Richard Garnett:That's kind of what this case really came down to is what counts as appropriate relief. So a concern that Justice Jackson raised and that I share, even though I think she oversimplifies a bit, is that, you know, the incentives on state prison employees to respect religious inmates' rights, those incentives are going to be muted a bit if they're not subject to damages for, you know, egregious violations. I mean, this wasn't kind of a judgment call, reasonable minds can disagree kind of thing. It's very clear on the facts of this case that Mr. Landor's rights were, again, outrageously violated. And so there's a concern, and this is one of the concerns that Justice Jackson raised and that I share, is that the effectiveness of the statute, which, I mean, as you said earlier, June, the point of the whole statute was to protect prisoners' religious freedom rights, is going to be weakened or undermined if that kind of, what do you want to call it, stick is pulled away.

23:24Curtis Bradley:Could Landor have sued the state and the state prison system?

23:28Richard Garnett:Yeah. So this is about a particular cause of action. And, you know, there are almost certainly other ones that in theory could have been available to him. And, you know, again, my hope is that some states will respond by making sure that they create additional causes of action for prisoners like this. But, you know, there's a tendency, and we're all familiar with it, that it's easy to kind of lose sight of prisoners and their rights, you know, out of sight, out of mind, we tend to other our prisoners. But it isn't the case that this decision means that Landor would never have any relief for this kind of violation.

23:58Richard Garnett:And the decision is limited to relief under this particular statute.

24:02Curtis Bradley:The court in 2020 allowed Muslim men to sue over their inclusion on the FBI's no-fly list under a sister statute, the Religious Freedom Restoration Act. Explain why the same reasoning didn't apply here.

24:17Richard Garnett:Yeah, this is an important distinction, or at least it was to the court. So the Religious Freedom Restoration Act is not a spending power statute. It's a statute that rests on Congress's power to enforce the 14th Amendment. And it's a statute that only applies to the federal government. RALUPA is, on the one hand, much broader. It applies to not only the federal government, but to states. On the other hand, it's also narrower because the basis for it, the justification for the RALUPA statute, is this spending power. And the lines of doctrine about Congress's power under the 14th Amendment are just different from the lines of precedent about Congress's power under the spending clause.

24:56Richard Garnett:And again, I know this is really the kind of thing that makes normal people's eyes glaze over, so I apologize to anybody who's listening to it. But for legal purposes, it really does make a difference which power Congress is using. And with RALUPA, because it was only applying to the federal government, these federalism concerns are not in play. Congress is perfectly within its rights to subject the federal government to various standards of liability and to create causes of action against the federal government. But because we have a federalist system, it's more complicated when Congress imposes standards on the states.

25:25Richard Garnett:And that's what explains the difference.

25:26Curtis Bradley:Can you explain why this would be a, you know, there was an ideological split, why it would be a conservative liberal split on this?

25:33Richard Garnett:Again, this is generalizing with these labels and so on. But it tends to be the case that the conservatives are more interested in federalism. And it tends to be the case that the liberals are more friendly to Congress's power to create causes of action. What divided the court was not the importance of religious freedom. You know, a couple of years ago, we had a case involving a Muslim prisoner who wanted to grow a beard, and it was 9 to 0. Everybody agreed on the importance of that under Rulupa. But there was no question about federalism in that case because the cause of action wasn't against a person in his individual capacity.

26:06Richard Garnett:It was against the prison system. So the justices, you know, whether they're appointed by Democrats or Republicans, they all agree that the religious freedom rights of prisoners are important. What divided them here were these issues that divide them in lots of cases. Debates about federal power and debates about the ability to create causes of action.

26:23Curtis Bradley:There's been a string of victories for religious liberties at the Supreme Court. I mean, when was the last time that there was a defeat for religious interests at the court?

26:36Richard Garnett:I'm thinking out loud here. It is the first in a while. So certainly religious freedom claimants have done well with this court. Now, I suppose some might say, for example, that when a claimant filed a lawsuit against the War Memorial Cross in the American Legion case, that they were seeking to vindicate their religious freedom and they lost. But I think it's certainly true that this court has been friendly to religious freedom claims. But, you know, I can't think of any of those claims that involve the same federalism concerns that this one did. Probably the last case I can think of where the religious freedom claimants lost was Trump versus Hawaii, which was a challenge to the so-called Muslim ban that the Trump administration had put into place early in its first administration.

27:15Curtis Bradley:And that was back in 2018. So certainly a long string of victories for religious claimants. Eight years of expansion of religious rights. It's always great to get your insights, Rick. Thanks so much. That's Professor Richard Garnett of Notre Dame Law School. Coming up next on the Bloomberg Law Show, in another 6-3 decision this week, the court reinstated the conviction of the man found to have killed Eton Pates, the six-year-old boy whose disappearance in 1979 changed the way the public viewed missing children's cases. And remember, you can always get the latest legal news by listening to our Bloomberg Law Podcasts.

27:56Curtis Bradley:You can find them on Apple Podcasts, Spotify, and at Bloomberg.com slash podcast slash law. I'm June Grosso, and you're listening to Bloomberg.

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30:50Curtis Bradley:The smiling face of a six-year-old boy stared back from countless milk cartons after he disappeared on the way to school in New York City in 1971. The disappearance of Eitan Pates was one of the country's most notorious missing child cases. It sparked a nationwide campaign to find missing children and change the way law enforcement handles the cases. Pates was never found and it took nearly 40 years before the arrest and conviction of Pablo Hernandez for his kidnapping and murder. Eitan's father, Stanley Pates, said he finally got the answers he'd been searching for. I needed to know what happened to my son, and this great prosecution team finally proved it.

31:40Curtis Bradley:But then there were the appeals. New York appellate courts affirmed the conviction. But last year, the Second Circuit, a federal appellate court, reversed and ordered a new trial for Hernandez because of the way the trial judge had answered a question from the jury. But this week, another reversal. This time from the Supreme Court, reversing the Second Circuit and reinstating Hernandez's conviction for the kidnapping and murder of Eitan Pates. My guest is former Manhattan prosecutor and criminal defense attorney Paul Callen. Paul, the disappearance of Eitan Pates became national news, and he really became the poster child for missing children.

32:24Curtis Bradley:You're absolutely right about that. As a matter of fact, I think this case has altered child rearing in the United States permanently. You know, it used to be mom would send kids out the back door and say, go play, come back for supper. Now the parents follow them around, follow them to the bus stop. They're all terrified that kids are going to be kidnapped. And it all started with Eton Pates, who was going to catch a bus to his school in Soho in New York, and he was kidnapped and apparently murdered. And only recently have we had a final resolution of the case in terms of who committed the murder.

32:59Curtis Bradley:An individual named Hernandez, whose conviction was now reaffirmed by the Supreme Court. Tell us about the confession, because there were some troubling things about the confession. Yes, there were. His brother-in-law reported to the police that his, quote, low IQ relative has confessed to the murder. And Camden County, New Jersey police pick him up and they start questioning him. but they don't give him his Miranda warnings. He confesses that he was working in a bodega in Soho when Eton Pates came in to buy a drink as he was on his way to the bus stop and that he murdered Eton Pates and disposed of the body, presumably throwing the body into a dumpster behind the deli.

33:43Curtis Bradley:Full confession to the murder. The police then, who have not given him his Miranda warnings, now say we should give them the Miranda warnings and videotape this confession. And that's exactly what they do. They give them Miranda warnings, videotape the confession, and then they call the district attorney's office in New York and say, you better come out here. We have somebody confessing to the murder of Etan Pates. Now, this was a case that had gone cold for a long time. So obviously, the Manhattan DA's office was very interested in that. Apparently, while all of this is going on, Hernandez also talks to his wife and his daughter, Rosemary and Becky, and he confesses to both of them that he's in fact the person who killed Eton Pates.

34:26Curtis Bradley:He's then picked up by the Manhattan DA's office, taken back into New York, where he confesses again to the murder, this time again on videotape. So we now have two videotaped confessions. Later on, during pretrial proceedings, he meets with a psychiatrist. he confesses to the psychiatrist that he's the murderer. And while giving that confession, he also tells the psychiatrist that he admitted this to a prayer group at one point over the last 20 years. So by my count, I think he's confessed now seven times to the murder. A question the jury posed to the judge during deliberations became a defining issue for the Second Circuit.

35:06Curtis Bradley:So tell us about that question. So the case goes to trial in New York. The first trial, by the way, ends in a hung jury. He's retried and the second jury comes back with a jury question. And the jury question is this. If he was not given his Miranda warnings properly and therefore did not voluntarily confess, is it OK for us to consider the other confessions that occurred after this? In substance, that was the question that was asked by the jury. The way they phrased it was the jury said, do we have to disregard the subsequent confessions if the first confession was not voluntary? The judge says one word, no, no, you don't have to disregard the subsequent confessions.

35:54Curtis Bradley:And after that, the jury deliberates for another week and they find Hernandez guilty of the kidnapping and murder of Eton Pates. So through the state, the state appellate courts affirm the conviction. And then the federal appellate court, the Second Circuit, in a hundred page opinion, last year reversed and ordered that he get a new trial. The decision was based on the judge's instructions to the jury when they came back with a question, that question that I just repeated, Do we have to disregard the subsequent confessions where the judge just said no? Bear in mind that the appellate division in New York, the state court, they looked at it and they said, you know something?

36:36Curtis Bradley:It's all right. The question of whether a confession is voluntary is generally decided by a judge. It's not usually decided by a jury. And so the appellate division said under New York law, the way this confession was evaluated was perfectly proper. OK, so then they go into federal court with this and the Second Circuit looks at it and they say, well, we think there's a problem here. The judge should have explained in more detail other than saying no to the jury that there could be a problem with the confession, that there was insufficient what we call attenuation between the initial confession and the subsequent confession.

37:17Curtis Bradley:Which also gets us back to another rule, which is the Mitchell versus Siebert rule that came about when the cops were misusing Miranda warnings. And what they would do is they would bring you into the station, get you to confess to a crime. And after you gave the complete detailed confession, they'd walk out of the room and then they'd come back in and give you your Miranda warnings and say, by the way, that confession, can you repeat that please for the record? and now they videotape your confession. Now, when the federal courts looked at this, they said, this is completely improper. It's an attempt to get around the Miranda warnings.

37:54Curtis Bradley:And once somebody has been possibly coerced into giving a confession because they haven't heard the Miranda warnings, of course they're going to repeat the confession. So this Missouri versus Siebert case said basically, this is an improper method of administering the Miranda warnings. And if it's done deliberately by the police, the confession has to be thrown out. So this comes up now in the Hernandez case, because does that violate the Missouri versus Siebert rule? Well, the court in New York said, no, there was no violation of that in our opinion. But when it goes over to the federal court, the federal court says, yes, there was a violation of that.

38:32Curtis Bradley:So the Second Circuit reversed the conviction and ordered a new trial for Hernandez. But the Manhattan District Attorney's Office took that decision to the highest court. The state, and this is very unusual, goes to the Supreme Court to try to get a conviction reinstated. You know, usually you see a defendant who's been convicted going to the Supreme Court to get his case thrown out. This is the opposite. The prosecutor is looking for justice now. So now when they go to the Supreme Court, the Supreme Court says, no, there was no violation here because the state looked at it under state law. The administration of Miranda warnings was done properly.

39:12Curtis Bradley:There was proper attenuation. And that's a question for the judge, not the jury. The Siebert case never said anything about jury instructions. So this is an overreach by the Second Circuit. And there was no right for a habeas corpus to be brought here. So we're reinstating the conviction. Paul, did the Supreme Court reverse because the Second Circuit didn't properly follow federal law or because state law should have applied here? Well, it's a complex question because they're saying that in this situation, the state had the right to evaluate whether there was a proper attenuation of the confession.

39:53Curtis Bradley:In other words, whether the secondary administration of Miranda warnings by the Manhattan DA and by the police violated New York law. And New York said, no, that doesn't violate our law. And in New York, a jury can sometimes decide whether a confession is voluntary or not. Under federal law, that's generally a judge determination that's been made. So the Supreme Court, looking at this overall, said, well, we have looked at this and there's no violation of federal law as it exists. And if there was a violation of state law, the state has already made a decision here that there was no violation of New York state law.

40:36Curtis Bradley:So the federal government has no business interfering in how the state of New York interprets the administration of the Miranda warnings and the confession is a voluntary confession. So it's kind of a question of how you evaluate due process under state and federal law and whether there's a conflict between the sovereign entities. And here the Supreme Court was saying, you know, there are certain things that we leave to the state. And the Federal Habeas Corpus Act says we should leave most of those things alone unless it's an absolutely egregious violation of somebody's constitutional rights. And let's step back and look at this case, June.

41:16Curtis Bradley:The guy confessed seven times to the murder. All right. So I think the Supreme Court was looking at it saying, well, you know, we're not worried about whether we have the right guy or not. We're just looking at some technicalities here. And the New York courts looked at those technicalities and said, there's no violation of New York law here. So we're not going to set it aside because there's no violation of federal law. I mean, the Second Circuit basically wanted the judge to start explaining to the jury a concurring opinion by Justice Kennedy in a case from more than 20 years ago. I mean, it just seemed ridiculous to put it in legal terms.

41:53Curtis Bradley:That's exactly what the Second Circuit said. And by the way, people should know this is what's called a per curiam decision by the Supreme Court, which means a decision by the court. We don't know who authored this opinion, but we do know that the three liberal justices on the court voted against. So it was a 6-3 decision by the court. Nothing from the liberals about why they were dissenting on this. Very unusual because, you know, these procurium decisions are usually very, very short. But this was, I think, an 11 page, very, very detailed decision by the court. And you would think that the three justices who were dissenting would have weighed in as to why they disagreed with the other six members of the court.

42:35Curtis Bradley:But no, they said nothing. They just said we dissent. So I don't know what the basis of their dissent would be. And we'll never know because this case is for all practical purposes over. I mean, it'll go back to the state court and the sentence will be reimposed and that'll be the end of it. And Eitan Pates' father told the New York Times that the Supreme Court decision gave him a sense of relief that he wouldn't have to go through a third trial and relive those memories and the loss of his son, and this time without his wife who died six years ago. So truly the end of such a sad case. Thanks for your insights, Paul.

43:11Curtis Bradley:That's former Manhattan prosecutor and criminal defense attorney Paul Callen of counsel at Edelman & Edelman. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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