Tuesday, March 01, 2011Last Update: 1:21 PM PT

     (CN) - Michigan prosecutors were allowed to use a dying man's last words in which he identified his attacker in a murder trial, the U.S. Supreme Court ruled, 6-2, on Monday. In a sharp dissenting opinion, Justice Antonin Scalia said the decision leaves the constitutional Confrontation Clause "in a shambles" and demeans the court.
     Justice Sonia Sotomayor authored the court's majority opinion, which reverses the finding of the Michigan Supreme Court that the identification amounted to inadmissible testimony.
     Detroit police spoke with the victim, Anthony Covington, as he lay on the ground of a gas station parking lot, dying of a gunshot wound to his abdomen in April 2001. Covington told police that he was shot after having a conversation with "Rick" through the back door of Rick's house. He drove to the gas station after he was shot through the door while leaving the property, Covington had said.
     After five to 10 minutes of speaking with the police, emergency medical technicians arrived to bring Covington to the hospital where Covington died within hours.
     Meanwhile police went to the home of Richard Perry Bryant, finding blood and a bullet on the back porch, a bullet hole in the back door, and Covington's wallet and identification outside the house.
     Bryant arrested in California a year after the shooting and convicted by a jury of second-degree murder. At trial, police officers testified about what Covington had told them. But the state Supreme Court later reversed Bryant's conviction and ordered a new trial.
     Michigan appealed to the U.S. Supreme Court, arguing that Covington's statements were admissible as "excited utterances."
     Dissenting justices on the state's high court had concluded as much.
     "The majority's opinion provoked two dissents, both of which would have held Covington's statements admissible because they were made in circumstances indicating that their 'primary purpose' was to assist police in addressing an ongoing emergency," Sotomayor wrote.
     Under the Confrontation Clause of the Sixth Amendment, accused persons can confront witnesses who testify against them. But there are exceptions and extenuating circumstances that make such statements admissible, Sotomayor wrote.
     In an ongoing emergency, police take statements with a view toward "ending a threatening situation," not toward prosecution. Under those circumstances, the witness is less likely to fabricate statements, and "the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination," the majority opinion states.
     "This logic is not unlike that justifying the excited utterance exception in hearsay law," Sotomayor wrote.
     She added that the Michigan Supreme Court "repeatedly and incorrectly" employed "an unduly narrow understanding of 'ongoing emergency.'"
     The two Supreme Court precedents that the state Supreme Court used to justify its findings were both cases of domestic violence in which the attackers used their fists. Sotomayor wrote that the distinction is notable to the Covington murder, which was committed with a gun. With the specter of that weapon looming, Detroit police were correct in perceiving the shooting as an "ongoing emergency."
     "During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant," Sotomayor wrote. "A victim may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive."
     The majority criticized the assertion lobbed in the dissent that the court should give controlling weight to police intent. All relevant factors must me considered, Sotomayor wrote.
     "The dissent criticizes the complexity of our approach, but we, at least, are unwilling to sacrifice accuracy for simplicity," Sotomayor wrote. "Simpler is not always better, and courts making a 'primary purpose' assessment should not be unjustifiably restrained from consulting all relevant information, including the statements and actions of interrogators."
Justice Clarence Thomas wrote a two-page concurring opinion, finding "Covington's questioning by police lacked sufficient formality and solemnity for his statements to be considered 'testimonial.'"
     Scalia's dissent, joined by Justice Ruth Bader Ginsburg, paints a different picture.
     "Today's tale - a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose - is so transparently false that professing to believe it demeans this institution," Scalia wrote. "But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however - or perhaps as an intended second goal - today's opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the court makes itself the obfuscator of last resort."
      Justice Elena Kagan did not participate in the consideration or decision of the case.

     (CN) - The Supreme Court on Monday declined to hear New York City's appeal over its thwarted attempt to make cab drivers replace their yellow gas guzzlers with fuel-efficient hybrids.
     A lawsuit from the Metropolitan Taxicab Board of Trade, along with several taxi fleet operators, had kept the city from an enforcing a fuel-efficiency standards passed in 2007. The law would require that new taxis in service after Oct. 1, 2008, achieve at least 25 city miles-per-gallon of fuel, while those put into service after Oct. 1, 2009, get 30 city miles per gallon.
     Finding that the law violated preemption clauses of the Energy Policy and Conservation Act, the District Court tied the city's hands. The 2nd Circuit had rejected the city's appeal in July.
     "In sum, the new rules are not applicable to gasoline costs in general, nor are they neutral to the fuel economy of the vehicles to which they apply," Judge John Walker wrote for the circuit in 2010.
     As is its custom, the Supreme Court did not comment on its decision to reject the city's latest appeal. It noted only that Justice Elena Kagan did not take part in the consideration or decision of the petition.

     (CN) - The Supreme Court on Monday vacated a decision that held Wyeth could be liable for a child who was diagnosed with autism after being vaccinated.
     Noting last week's decision in the case Bruesewitz v. Wyeth, which found that design defect claims were barred by the National Childhood Vaccine Injury Act (NCVIA) of 1986, the justices summarily took up the drugmaker's appeal and sided with them.
     On remand, the Georgia Supreme Court must further consider the case in light of Bruesewitz, according to the order.
     Marcelo and Carolyn Ferrari had sued American Home Products - dba Wyeth, SmithKline Beecham dba GlaxoSmithKline and GlaxoSmithKline Biologicals - over a booster shot containing thimerosal, a mercury-based preservative. They claimed the medication had caused their son, Stefano, to develop autism.
     A Georgia trial court had dismissed the complaint as barred under NCVIA, but the state appeals court overturned that decision and the Georgia Supreme Court affirmed in 2008.
     In its petition for review, Wyeth noted that drugmakers have immunity from claims over childhood vaccines since the need to stamp out disease is great. The company also firmly disputed the speculation that vaccines cause autism.
     "While allegations of this sort have swept through the media and the internet, every reputable scientific body and governmental agency that has studied the question - including the FDA and CDC - has rejected any linkage between vaccines and autism," the petition states.
     Last week the nation's high court ruled in a similar case involving a child who developed a seizure disorder after being vaccinated at 6 months old.
     Justice Antonin Scalia wrote that the act plainly protects drugmakers from lawsuits and "expressly eliminates liability for a vaccine's unavoidable, adverse side effects."
     Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, had dissented from the majority's Bruesewitz opinion.
     The dissenting justices felt that the majority's interpretation "imposes its own bare policy preference over the considered judgment of Congress."
     "Its decision leaves a regulatory vacuum in which no one ensures that vaccine manufacturers adequately take account of scientific and technological advancements when designing or distributing their products," Sotomayor wrote.
     There was no dissent or formal opinion issued with the Ferraris' case. The order notes that Justice Elena Kagan did not participate in the court's consideration or decision of the matter. The same disclosure was made in Bruesewitz.

     (CN) - The Supreme Court on Monday vacated a decision that found Ford Motor did not have to face a wrongful death suit over its failure to use the safest materials available.
     Coming on the heels of a decision Wednesday that found Mazda could be sued for choosing to fit certain vehicle seats with simple lap belts, as opposed to lap-and-shoulder belts, the justices ordered the South Carolina Supreme Court to further consider the Ford case in that light.
     Mary Robyn Priester had come out empty-handed in an August 2010 decision from the South Carolina Supreme Court. Eight years earlier, her son, James Lloyd, had been a passenger in a Ford pickup truck that rolled several times in an accident. Both James and the driver, Preston Cromer, were under the age of 21 and had been drinking at a strip club before getting in the truck.
     Cromer was speeding and drove off the road. James, who was not wearing a seatbelt while sitting in the rear of the truck, was ejected in the crash and died at the scene.
     His mother sued Ford, Cromer, the strip club and associates of the club. She claimed that Ford had breached its warranty "by using inappropriate glazing materials which would retain occupants inside the vehicle, and which would not shatter on impact," according to the complaint, as quoted in the state Supreme Court's decision.
     The trial court granted Ford's motion for summary judgment, finding that the Priester's claim was pre-empted by federal safety standards for motor vehicle. Those standards give auto manufacturers an option about what kind of tempered glass to install for a vehicle's side windows. After noting inconsistency among the courts over such pre-emption, the state Supreme Court upheld the decision to dismiss the claims against Ford.
     Last week, the nation's highest court unanimously spelled out why such suits are not necessarily pre-empted by federal safety standards. The justices said the choice afforded to manufacturers does not reflect "a significant objective" of the federal regulation.
     Whereas the Transportation Department had a significant objective in giving manufacturers choice among different kinds of passive restraint devices - rather than favoring one type of passive restraints, such as airbags - that objective does not exist in seat belt standards, or, apparently, glass materials for a vehicle's side windows.
     In a concurring opinion for Mazda last week, Justice Sonia Sotomayor warned that the courts cannot call upon the airbag decision to "justify implied pre-emption."
     Aside from noting that the lower court should consider Williamson v. Mazda Motor of America on remand, the court on did not issue a formal opinion on Monday.

     (CN) - A fired pastor can keep the $355,000 he from a defamation suit against the church that accused him of misappropriating $3,000 and demonstrating a "willingness to lie and steal," the Supreme Court ruled Monday.
     In January of last year, the Oregon Court of Appeals ruled that the International Church of the Foursquare Gospel was not protected from the verdict under the First Amendment.
     While serving as interim pastor of the church in Vernonia, Ore., Tim Tubra allegedly accepted a gift of $3,000 to help with health care premiums.
     Though the church council had approved the transaction, Tubra said, it questioned his motives when a new pastor took over. The church charged Tubra with misappropriation of funds and ordered him to leave.
     Ron Swor, the district supervisor of the church, read a statement to the Vernonia congregation about Tubra's departure.
     "It is now evident that there has been, to some extent, a financial misappropriation by former pastor [Tubra]," Swor read.
     Later, John Michael Cooke, the church's divisional superintendent, wrote in e-mail to Swor's secretary that Tubra may have "want[ed] to stir up trouble."
     "He has already demonstrated a willingness to lie and steal, and to purposely [sow] discord against the division," Cooke wrote, according to the court filings.
     Tubra sued Swor, Cooke and the church for defamation. The jury ruled for Tubra, but a judge overruled the verdict and agreed with the church that the First Amendment barred Tubra's complaint.
     A three-judge panel of the Oregon appellate reinstated the verdict on Jan. 27, 2010, finding that the case was not so religious in nature as to bar Tubra's claim.
     "The alleged defamatory statements - that the pastor had misappropriated money and had demonstrated a willingness to lie - would not always and in every context be religious in nature," Judge Rex Armstrong wrote for the court. "Thus, even though the statements related to plaintiff's conduct as pastor of the church, that fact does not render those statements absolutely privileged as a matter of law under the Free Exercise Clause."
     Because that was the only basis for the church's motion for a directed verdict, Armstrong ordered the reinstatement of the original jury verdict.
     In declining to take up the church's appeal, the Supreme Court did not issue any comment on the case.

     (CN) - The Supreme Court on Monday rejected petitions for review from two pharmaceutical companies, which sought to challenge 2nd Circuit rulings that their sales representatives are covered by federal overtime laws.
     In declining to take up the appeals, the high court left intact two separate decisions against Novartis Pharmaceuticals and Schering Corp. The 2nd Circuit issued a pair of rulings in July 2010 that found the pharmaceutical sales reps were covered by federal wage-and-hour law.
     In support of the workers' position, the Labor Department had filed an amicus brief with the 2nd Circuit.
     The Novartis ruling overturned a federal judge's decision from more than a year earlier, which found that salespeople "are not entitled to overtime pay because they fall within the 'outside sales' and 'administrative' exemptions to both the federal and state overtime requirements."
     Sanford Wittels & Heisler, the firm that represented the Novartis workers, said that various rulings against the pharmaceutical companies have opened the floodgates for liability. Sanford Wittels is representing plaintiffs in four identical wage-and-hour lawsuits against Pfizer, Roche, Merck and Abbott Laboratories.
     "The court's denial of certiorari to Novartis is a victory for thousands of the company's reps who labored long and hard for Novartis - often working over 70 hours a week - and yet were denied the overtime pay that is their due," Sanford Wittels founding partner David Sanford said in a statement. "We are hopeful that Novartis will do the right thing and carry out the Second Circuit's ruling by immediately instituting an overtime compensation system for its Reps and paying the reps the overtime monies that the company has withheld for so many years."
     Jeremy Heisler, another of the firm's partners, noted in the statement that new state overtime laws for New York will take effect on April 11 and impose increased penalties employers that fail to pay required overtime.

     (CN) - The 2nd Circuit must impose a harsher sentence on a couple who were convicted of using guns to carry out a drug-dealing conspiracy, the U.S. Supreme Court ruled Monday. A federal judge in Manhattan had sentenced Donahue Dewar and Sharon King to 20 years in prison, five years shy of the mandatory minimum, which requires courts to impose consecutive sentences.
     On remand, the 2nd Circuit is to consider the Supreme Court's ruling in Abbot v. United States. That decision had been pending when the 2nd Circuit ruled in April 2010 to deny the government's appeal for a harsher sentence.
     Prosecutors argued that the 2nd Circuit relied on incorrect sentencing guidelines, but a three-judge panel said it was bound by its precedent until the Supreme Court ruled otherwise.
     Seven months later, the Supreme Court did. It ruled in Abbott that a defendant convicted of using or carrying a gun while committing a violent or drug-trafficking crime is subject to the highest mandatory minimum sentence, unless another provision of law imposes an even higher minimum sentence. That same month, the government filed its petition with the Supreme Court.
     The minimum sentence for carrying or using a deadly weapon to commit "any crime of violence or drug trafficking crime" is five years.
     That penalty will now be tacked onto Dewar and King's terms. They had been convicted by a jury in 2008 for selling marijuana and cocaine throughout Westchester and the Bronx.
     After the pair sold cocaine to a confidential informant, police searched their home in the Bronx and uncovered additional evidence, including drugs, $70,000 in cash, a surveillance system and four loaded handguns. King was convicted of the same charges as Dewar, save for one extra count of distributing cocaine, and sentenced to 10 years.
     The brief order, which summarily granted the government's petition for review and vacated the 2nd Circuit's decision, notes that Dewar and King are entitled to a waiver of costs. It further states that Justices Sonia Sotomayor and Elena Kagan had no role in the court's consideration or decision of the case.
     In a seperate order, the court denied King's petition for review of her case.