Petitions of the week
By Kalvis Golde
on 6 December 2024
at 11:29
The petitions of the week column highlights some of them cert applications recently filed with the Supreme Court. A list of all petitions we see is available here.
The Sixth Amendment gives defendants in criminal cases the right “to be confronted with the witnesses against” them. This provision, known as the Confrontation Clause, has been interpreted by the Supreme Court to recognize that cross-examination of prosecution witnesses is particularly critical to a fair trial in the criminal justice context. This week, we highlight petitions asking the court to consider, among other things, whether allowing key prosecution witnesses to testify remotely over a two-way video call violates the Confrontation Clause.
John Won and Tae Hung Kang are New York residents charged with running an international investment scam. Through a series of advertisements placed in Korean newspapers and radio programs, as well as in-person seminars in a Korean enclave of Queens, Won and Kang sold dozens of individuals on a lucrative offer to speculate in foreign exchange markets. The pair hinted that they had a “secret trading method” that guaranteed 10% risk-free returns.
In reality, Won and Kang had no such method. They allegedly spent many investors’ funds on business expenses and personal salaries instead. Following an investigation by the US Commodity Futures Trading Commission, federal prosecutors charged the pair with a series of fraud and securities crimes.
Won’s trial was scheduled for November 2021, a year and a half into the COVID-19 pandemic. Although vaccinations were then available and international travel increased, the effects of the pandemic still lingered. For its part, the federal courthouse in Brooklyn had resumed in-person trials but continued to hold many pretrial conferences remotely. At one of these conferences, the government sought permission for two key witnesses who lived outside the country to testify over a two-way video call.
Won objected, arguing that virtual testimony from government witnesses during his criminal trial would deprive him of his rights under the Confrontation Clause. Only in-person testimony can satisfy the Sixth Amendment, he insisted, because cross-examining a witness on a video screen deprives jurors of the most important cues they need to assess the witness’s credibility.
The government responded that each witness was “crucial” and that travel would be more than just inconvenient for them. One witness, a professor in South Korea who had invested in Won and Kang’s scheme, was a caretaker for his elderly mother and worried about both leaving her behind for weeks and exposing her to COVID-19. The other witness, an employee of a foreign exchange in Hong Kong who had dealt extensively with Won, would be ordered to quarantine for three weeks at his own expense when he returned.
In the end, the high court allowed the two witnesses to testify by video. The jury convicted Won on all counts.
The US Court of Appeals for the 2nd Circuit denied Won’s request for a new trial. Based on an earlier circuit decision, the 2nd Circuit concluded that “usual circumstances” justified the virtual testimony in Won’s case despite the Confrontation Clause. Although “two-way video ‘should not be considered an ordinary substitute for testimony in court,'” the appeals court wrote, the pandemic was precisely the type of extraordinary circumstances contemplated by its prevailing policy.
IN Won against USAWon is asking the justices to grant review and reverse the 2nd Circuit’s decision. He argues that by allowing two-way video testimony by government witnesses in criminal cases, the 2nd Circuit stands alone from its sister circuits, which have uniformly held that the Confrontation Clause requires in-person testimony and cross-examination. Moreover, Won argues that the ruling is in tension with previous Supreme Court decisions that only allow video testimony under a tougher standard — when justified by “important public policy,” such as protecting children who were sexually abused from having to face their alleged abusers in the court. “The confrontation clause applies in all circumstances,” Won writes, “even ‘unusual’ ones.”
The government is urging the justices to let the 2nd Circuit’s ruling — and Won’s conviction — stand. Regardless of the conduct of other circuits, the government argues, the 2nd Circuit’s approach to video testimony is consistent with the Supreme Court’s own cases, which have interpreted the Confrontation Clause as a “preference” for in-person testimony rather than an “absolute” rule. And in any event, the admission of remote testimony was “harmless” in Won’s case because prosecutors had ample other evidence for conviction, the government argues.
A list of this week’s featured petitions is below:
Burt vs. Gordon
24-73
Question: Whether the U.S. Court of Appeals for the 6th Circuit improperly denied qualified immunity to prison officials based on their response to the unprecedented global COVID-19 pandemic by defining the relevant law at too high a level of generality and failing to identify any precedent that recognizes a constitutional right under similar circumstances that would have put reasonable officials on notice that their conduct might be unconstitutional given the new challenge from the pandemic.
Crouch v. Anderson
24-90
Problems: (1) Whether West Virginia violated the Equal Protection Clause of the 14th Amendment by refusing to cover surgical treatments for gender dysphoria; and (2) whether West Virginia violated the Medicaid Act and the Affordable Care Act by refusing to cover surgical treatments for gender dysphoria.
Folwell v. Cauldron
24-99
Question: Whether a state’s decision to deny health care coverage for sex-reassignment treatments violates the Equal Protection Clause of the 14th Amendment.
Zuniga-Ayala v. Garland
24-103
Question: Whether, under the categorical approach, when a conviction statute on its face criminalizes conduct not prohibited by the corresponding federal statute, that mismatch defeats removal under 8 USC § 1227(a)(2), or a non -citizen must instead show something more.
Won against USA
24-121
Question: Whether the Confrontation Clause of the Sixth Amendment contains an exception allowing the government to introduce testimony at a criminal trial by two-way video so long as “ordinary circumstances” are present and admitting such testimony would serve “the interest of justice.”
Catholic Charities Bureau, Inc. w. Wisconsin Labor & Industry Review Commission
24-154
Problems: (1) Whether a state violates the religion clauses of the First Amendment by denying a religious organization an otherwise available tax exemption because the organization does not meet the state’s criteria for religious conduct; and (2) whether state courts, when addressing federal constitutional challenges, may require proof of unconstitutionality “beyond a reasonable doubt.”
