Loyola of Los Angeles Law Review

The Truth Behind Echols v. State: How an Alford Guilty Plea Saved the West Memphis Three

Kaytee Vota — Mon, 07 May 2012 23:18:09 PDT

After they spent eighteen years in prison for the notorious 1993 murders of three young boys, the West Memphis Three were released on August 19, 2011, after they entered Alford pleas. Under an Alford plea, a defendant can voluntarily, knowingly, and understandingly plead guilty while he simultaneously proclaims his innocence. But with little evidence linking the West Memphis Three to the crime and with recent DNA evidence likely establishing their innocence, was it appropriate for the Circuit Court of Craighead County, Arkansas, to allow the men to even plead guilty? This Comment argues that the circuit court in Echols v. State took a step in the wrong direction when it allowed the West Memphis Three to enter Alford pleas. This Comment discusses the background of Alford pleas and examines the inherent problems with their application, particularly in cases that involve DNA evidence. Finally, this Comment suggests a method of judicial reform that urges judges to proceed with caution and conduct a stricter factual-basis inquiry in order to prevent the injustice that arises when they allow innocent defendants to plead guilty.

New Media and the News Media: Too Much Media, LLC v. Hale and the Reporter's Privilege in the Digital Age

Joshua Rich — Mon, 07 May 2012 23:18:08 PDT

Rooted in the U.S. Constitution and state statutes known as shield laws, the reporter’s privilege has long guarded news gatherers who wish to keep their sources secret. The majority of states have codified shield laws. These statutes support the First Amendment, whose free-press provision allows journalists to act without government control. But the boundaries of the reporter’s privilege have become blurred. Who, in this electronic era of citizen journalism, qualifies as a reporter for the purposes of shield-law protection? Can a blogger enjoy the same benefits that a typical print, radio, or television journalist receives? This Comment examines the case of Too Much Media, LLC v. Hale, in which the Supreme Court of New Jersey took an early step toward answering those questions. In holding that the state’s shield law did not protect a woman who posted her reporting on an Internet message board, the court was among the first to apply the reporter’s privilege in cyberspace. But it should have done more in order to preserve the vitality of shield laws—and of the democratic values that underpin the First Amendment—in the age of new media.

Connecting the Dots: The Ninth Circuit's Refusal to Find Probable Cause in Dougherty v. City of Covina

Carmelo Tringali — Mon, 07 May 2012 23:18:08 PDT

The relationship between molesting children and possessing child pornography is significant, and the U.S. Supreme Court’s decision in Illinois v. Gates sets a low threshold requirement for probable cause in justifying search warrants. Nonetheless, federal circuit courts disagree as to whether evidence of child molestation is sufficient in itself to establish probable cause for a search warrant for child pornography. In Dougherty v. City of Covina, the Ninth Circuit furthered this circuit split by siding with the Second and Sixth Circuits in determining that such evidence is insufficient to establish probable cause justifying a search warrant. This Comment examines the Ninth Circuit’s ruling in Dougherty and argues that the court incorrectly refused to find probable cause justifying the search warrant and set a dangerous precedent in doing so.

The Descent of Responsible Procreation: A Genealogy of an Ideology

Julie A. Nice — Mon, 07 May 2012 23:18:07 PDT

Just as societal practices related to marriage and procreation have changed remarkably during the past several decades, the amount of litigation regarding same-sex marriage has increased substantially. Over time, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.

This Article traces the genealogy of responsible procreation. Rooted in religion, the defense was once rejected as a justification for limiting heterosexuals’ constitutional rights. Later, it appeared as a justification of the federal Defense of Marriage Act. Soon, courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while other state appellate courts used it as a justification for their rejections of challenges to same-sex-marriage bans. Finally, with the first federal trial and subsequent Ninth Circuit decision on the constitutionality of California’s Proposition 8, the responsible-procreation defense succumbed to the overwhelming weight of evidence against its logic.

As a result, the emerging trend is that both executive officials and courts are rejecting the defense and concluding that same-sex-marriage bans are drawn not to further proper legislative ends but to make same-sex couples and their children unequal to everyone else.

Health Care Issues Affecting People with an Intersex Condition or DSD: Sex or Disability Discrimination?

Julie A. Greenberg — Mon, 07 May 2012 23:18:07 PDT

People with an intersex condition or a Difference of Sex Development (DSD) depend on health care professionals for critical medical treatment. Many intersex activists assert that some current medical practices are not in the best interests of patients with an intersex condition. They contend that greater safeguards should be adopted to ensure that the rights to liberty and autonomy of people with a DSD are respected.

Thus far, intersex advocacy has focused on extralegal strategies. The movement is at a point, however, where legal challenges to current medical protocols could provide an additional tool to improve life-altering health care practices. This Article examines whether the intersex movement could effectively use legal frameworks developed by feminists, the LGBT movement, and disability activists to advance its goal of modifying current medical procedures that are based on sex, gender, sexual orientation, and disability stereotypes.

HIV Discrimination in Dental Care: Results of a Testing Study in Los Angeles County

Brad Sears et al. — Mon, 07 May 2012 23:18:07 PDT

Thirty years after HIV was first identified, for the majority of those infected in the United States, effective combination therapies to combat HIV have turned the disease into a manageable chronic condition. But HIV discrimination has still proven intractable in the field of health care. For example, a series of studies has revealed that 46 percent of skilled nursing facilities, 55 percent of OB/GYNs, and 26 percent of plastic surgeons in Los Angeles County refuse to provide services to any HIV-positive patient, in violation of state and federal law.

This Study examines HIV discrimination among dentists in Los Angeles County. For people living with HIV/AIDS (PLWHA), dental care is particularly important because problems in the mouth may be the first symptoms of an HIV infection and can also signify disease progression; routine, proper dental care can have a significant impact on oral and general health. This Study reveals that 5 percent of dentists in Los Angeles County have a blanket policy of refusing to accept any HIV-positive patient, which is substantially lower than the finding for other health care providers. However, this Study also suggests that PLWHA who are poor and the most vulnerable, including women and people of color, face higher rates of discrimination. This Study goes on to explain that dentists can effectively and safely treat PLWHA, and it identifies why they are legally and ethically obligated to provide such care. After reviewing prior social science research on HIV discrimination by dentists, this Study presents its methodology and findings. Finally, it concludes by exploring potential reasons for why the documented discrimination rate is lower for dentists than it is for other health care providers in Los Angeles County, and it argues that future enforcement and education efforts should be targeted toward specific categories of dentists.

LGBT Identity: A Demographer's Perspective

Gary J. Gates — Mon, 07 May 2012 23:18:06 PDT

In a recent study, the Author of this Article estimated that the self-identified lesbian, gay, bisexual, and transgender (LGBT) community makes up 3.8 percent of the American population. The Author’s estimate was far lower than many scholars and activists had contended, and it included a relatively high proportion of persons self-identifying as bisexuals. This Article responds to two of the central criticisms that arose in the controversy that followed. First, in response to claims that his estimate did not account for people who are in the closet, the Author describes how demographers might measure the size of the closet. Second, in response to those who either ignored the reported large incidence of bisexuality or misconstrued the meaning of that incidence, the Author considers how varying frameworks for conceptualizing sexual orientation might alter the ratio of lesbian or gay individuals to bisexuals. This Article goes on to offer observations about the challenges and implications that are associated with the varying estimates of the size of the LGBT population. And it concludes by arguing that, today, the size of the LGBT community is less important than understanding the struggles of its members and informing crucial policy debates with facts rather than stereotype and anecdote.

Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits

Jennifer C. Pizer et al. — Mon, 07 May 2012 23:18:06 PDT

Lesbian, gay, bisexual, and transgender (LGBT) people have experienced a long and pervasive history of employment discrimination. Today, more than eight million people in the American workforce identify as LGBT, but there still is no federal law that explicitly prohibits sexual orientation and gender identity discrimination against them.

This Article begins by surveying the social science research and other evidence illustrating the nature and scope of the discrimination against LGBT workers and the harmful effects of this discrimination on both employees and employers. It then analyzes the existing legal protections against this discrimination, which include constitutional protections for public sector workers, court interpretations of Title VII’s ban on sex discrimination, state and local antidiscrimination laws, and corporate policies. This Article determines that, while these laws and policies provide important protection, the current system is incomplete, confusing, and inadequate. This Article next considers empirical research showing that employers do not offer employees with a same-sex spouse or partner the same access to family benefits that they offer to employees with a different-sex spouse, and it examines court decisions finding that a denial of equal benefits is unlawful employment discrimination.

Based on this research and legal analysis, the Article concludes that a federal law like the Employment Non-Discrimination Act (ENDA), a bill pending in Congress that would prohibit sexual orientation and gender identity employment discrimination, is needed. To serve its purpose consistently, however, the bill’s current exemption of employee benefits should be removed. To be sure, ending all forms of unequal treatment based on sexual orientation or gender identity is warranted and feasible, and doing so will have positive effects for both employees and employers.

Introduction: Talking Around Marriage

Douglas NeJaime — Mon, 07 May 2012 23:18:05 PDT

Empty Protection and Meaningless Review—The Need to Reform California's Stagnant Capital Clemency System

Brittney Cunningham — Wed, 18 Apr 2012 13:54:29 PDT

This Note examines California’s stagnant capital clemency system and its ability to properly function as a fail safe against miscarriages of justice. Finding that the state’s clemency system lacks transparency, appears arbitrary, and is strained by political pressure, this Note argues that California’s system of wide discretion fails to provide a meaningful review of clemency petitions. To restore clemency’s failsafe function, this Note urges California to create a clemency board and provide procedural guidelines for the board to follow when addressing petitions. This Note asserts that by enacting these reforms, California will invigorate its stagnant clemency system and ensure that clemency petitions are meaningfully reviewed.

Game Over for Regulating Violent Video Games? The Effect of Brown v. Entertainment Merchants Ass’n on First Amendment Jurisprudence

Garrett Mathew-James Mott — Mon, 16 Apr 2012 15:59:47 PDT

As early as 1976, video games started to incorporate aspects of violence, such as striking enemies with a vehicle or using explosives to destroy a structure. Still, initially, courts were reluctant to assign the same constitutional protections to video games that they had granted to other protected media like motion pictures and written and musical works. But as technology progressed, courts, too, matured, becoming more open to the notion that video games should be a form of protected expression. Yet, some courts lost sight of the First Amendment’s vision and reconsidered their earlier decisions in which they upheld the constitutionality of video game expression. This prompted the U.S. Supreme Court, in the first case that dealt with the First Amendment’s protection of video games, to remedy nearly four decades of confusion and unify the law in Brown v. Entertainment Merchants Ass’n. After the Court’s decision in Brown, it is safe to assume that, at society’s current level of technological progress, courts are likely to hold that children’s use of video games is expressive conduct that the First Amendment protects. But if technology becomes “too advanced” and mechanics such as virtual reality, three-dimensional space, and infrared movement simulators become the technological norm, the Court may have to reexamine its reasoning in Brown before too long.

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett: Money Talks, Matching Funds Provision Walks

Roya Rahmanpour — Mon, 16 Apr 2012 15:59:47 PDT

Money’s influence on politics has posed a problem for many jurisdictions. Arizona tried to combat this issue in part through the “matching funds” provision of its Clean Elections Act. This provision was part of a larger campaign-financing scheme; it allowed for additional campaign money to go to publicly financed candidates when the expenditures of their privately financed opponents and other independent groups collectively exceeded the initial funding that the state had provided to the publicly financed candidates. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the U.S. Supreme Court held that this matching funds provision violated the First Amendment. This Comment examines the Court’s ruling and argues that the Court’s disregard of empirical evidence, narrowing of the acceptable compelling state interests, and prioritization of individual speech over societal interests could lead to unprincipled decisions in the field of campaign finance and could cause campaign-finance deregulation. It further argues that the decision’s myopic analytic approach could bring about the piecemeal invalidation of intricate public-financing schemes and adversely impact policy decisions.

Stern v. Marshall: The Earthquake That Hit the Bankruptcy Courts and the Aftershocks That Followed

Jolene Tanner — Mon, 16 Apr 2012 15:59:46 PDT

Stern v. Marshall is arguably the biggest decision to affect the bankruptcy courts in almost thirty years and has ramifications well beyond what the U.S. Supreme Court likely considered. Anna Nicole Smith, the appellant in the case, will be remembered not only for the imprint that she left on pop culture, but also for rattling an entire legal institution. This case wound its way through both state and federal judiciaries and twice reached our country’s highest court. The second time that it heard the case, the Court held that although bankruptcy courts, as Article I courts, could enter final judgments on certain state-law counterclaims under 28 U.S.C. § 157(b), they could not constitutionally enter final judgments under Article III of the Constitution. While bankruptcy judges have created ways to temporarily address the conundrum that Stern created, potential long-term effects of the ruling could be devastating to the way that bankruptcy courts operate. It may take years, or perhaps decades, to fully comprehend Stern’s impact on the federal judiciary.

Confronting Forensics: Bullcoming v. New Mexico and the Sixth Amendment

Megan Weisgerber — Mon, 16 Apr 2012 15:59:46 PDT

The U.S. Supreme Court’s 2004 Crawford v. Washington decision drastically altered the long-standing Confrontation Clause jurisprudence, refocusing the constitutional inquiry on the testimonial nature of a witness’s statement but leaving for another day any effort to spell out a comprehensive definition of the term “testimonial.” Thus began the current line of Confrontation Clause cases, each of which sought to clarify the Sixth Amendment’s confrontation protections but arguably clouded any clarity that the case before it brought. In 2009, the Court decided Melendez-Diaz v. Massachusetts, in which it held that a forensic laboratory report prepared for a criminal trial is “testimonial” and that it therefore triggers the Confrontation Clause. Most recently, in 2010, the Court decided Bullcoming v. New Mexico and answered the question that Melendez-Diaz left open: if a forensic laboratory report triggers the Confrontation Clause, who must provide the live, in-court testimony? In a controversial 5–4 decision, the Court held that the analyst who actually conducted the forensic test and certified the report must take the stand, and that a so-called surrogate witness does not satisfy the constitutional requirement. This Comment suggests that the Court accurately assessed the fallibility of forensic science and correctly decided Bullcoming in a manner that was consistent with the Confrontation Clause’s purposes.

Unconstitutionally Crowded: Brown v. Plata and How the Supreme Court Pushed Back to Keep Prison Reform Litigation Alive

Alicia Bower — Mon, 16 Apr 2012 15:59:45 PDT

In its May 2011 Brown v. Plata decision, the U.S. Supreme Court upheld a remedial order that required the potential release of a shockingly large number of California prison inmates. The Court found that, because of overcrowding in its prisons, California had failed to provide adequate health care to its prisoners—a failure that constituted a systemwide violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. In order to reach its ultimate result, however, the Court had to confront the Prison Litigation Reform Act (PLRA), a statute that Congress had enacted to combat precisely the type of prison reform litigation that Plata embodied. In the end, the Court found its way through the PLRA’s requirements and, in the process, reinforced a strong judicial prerogative to fashion remedies, which now more clearly includes the rare structural injunction.

Ashcroft v. al-Kidd: Troubling Developments in Post-9/11 Fourth Amendment Jurisprudence

David Doeling — Mon, 16 Apr 2012 15:59:45 PDT

In March 2003, FBI agents pretextually arrested Abdullah al-Kidd under the federal material witness statute. As a result, al-Kidd brought a Bivens action in federal district court against U.S. Attorney General John Ashcroft. The court denied Ashcroft’s assertions of absolute and qualified immunity, and the U.S. Court of Appeals for the Ninth Circuit affirmed. In Aschroft v. al-Kidd the U.S. Supreme Court correctly held that qualified immunity protected Ashcroft against al-Kidd’s lawsuit. But the Court’s unnecessary conclusion that Ashcroft did not violate the Fourth Amendment is troubling. Not only did the Court expand the “objectively reasonable” test that is typically applied to law enforcement officers in the field but it also proposed a definition of “suspicion” that is at odds with its own precedent. The combined effect of these developments is an alarming ability on the part of authorities to avoid the probable cause requirement for arrest warrants. When an arresting authority’s state of mind is shielded from constitutional scrutiny, and when the definition of suspicion is as broad as the Court has construed it, the result is the erosion of basic Fourth Amendment protections.

Connick v. Thompson: Sacrificing Deterrence and Reparations in the Name of Avoiding Respondeat Superior Liability

Allison Chan — Mon, 16 Apr 2012 15:59:44 PDT

Death is the ultimate punishment because of its finality; once it is carried out, it can never be revoked. John Thompson came close to this ultimate punishment because a prosecutor failed to turn over exculpatory evidence under the principles that the U.S. Supreme Court enunciated in Brady v. Maryland. In Connick v. Thompson, the Court overturned Thompson’s $14 million award for spending eighteen years in prison (fourteen of those on death row) because previous Brady violations by the Orleans District Attorney’s Office were not enough to put the district attorney on notice regarding the need for further training on Brady’s principles and because the need for training was not so obvious that the district attorney’s office could be held liable under the failure-to-train theory. The Court’s holding is detrimental because an entire district attorney’s office may now be shielded from civil liability in the event of a Brady violation and because individuals like Thompson will have no recourse for spending time in prison due to prosecutorial misconduct. The Court’s holding discourages prosecutors from turning over exculpatory evidence, thus reducing prosecutorial accountability, and runs counter to the deeply rooted American principle that every person has the right to a fair trial.

Arizona Christian School Tuition Organization v. Winn: Religion Stole the Money from the Taxpayer Jar—No Standing,Then Who?

Elleny Christopoulos — Mon, 16 Apr 2012 15:59:44 PDT

The Establishment Clause of the First Amendment protects against government-established religion. This protection is meaningless, however, if those protected are unable to challenge Establishment Clause violations because they lack standing. In Flast v. Cohen in 1968, the U.S. Supreme Court created an exception that allowed for taxpayer standing in certain cases. But in Arizona Christian School Tuition Organization v. Winn, the Court narrowed the doctrine by finding that some taxpayers did not have standing to challenge a law that granted tax credits to people who contributed to scholarship organizations, which included religious schools. The Court reasoned that the tax credits in Arizona Christian were different from the government expenditures in Flast; therefore, the Court held that the Flast exception did not apply. This Comment examines the Court’s ruling in Arizona Christian and argues that it should have allowed standing to maintain the integrity of the First Amendment and the freedom from government-established religion.

NASA v. Nelson: The High Court Flying High Above the Right to Informational Privacy

Blythe Golay — Mon, 16 Apr 2012 15:59:43 PDT

In 1977, the U.S. Supreme Court first acknowledged a potential constitutional privacy “interest in avoiding disclosure of personal matters.” Since then, the Court has remained silent on whether there is a right to informational privacy. In the October 2010 term, the Court had another chance to revisit the contours of this potential privacy interest in NASA v. Nelson. But it again refused to define those contours and instead assumed, without deciding, that a constitutional right to informational privacy exists. The Court held that although information that was collected from an employee background-check questionnaire implicated the employees’ putative right to informational privacy, the Privacy Act of 1974 alleviated that privacy concern by providing sufficient protection that prevents the nonconsensual dissemination of information. This Comment argues that, in its reliance on the Privacy Act, the Court improperly ignored the distinction between compelled collection of information and dissemination of information—and how both threaten a right to informational privacy.

Rethink “Personal”: AT&T and the Grammar Clamor at the Court

Justin Dickerson — Mon, 16 Apr 2012 15:59:43 PDT

Are corporations people, too? Several recent U.S. Supreme Court decisions have considered whether constitutional protections that are typically reserved for individuals also extend to corporations. While corporations are considered “persons” in a legal sense, a unanimous Court decided in FCC v. AT&T that this legal fiction does not entitle corporations to “personal” privacy rights under the Freedom of Information Act (FOIA). Without delving into more controversial constitutional questions, Chief Justice Roberts reached this conclusion largely by analyzing the ordinary and legal usages of the words “person” and “personal.” This Comment examines the Court’s ruling and argues that while the Court answered a specific question regarding a corporation’s privacy rights in the context of FOIA, it missed a valuable opportunity to further clarify how constitutional rights apply to corporations. Indeed, despite the Court’s holding in FCC v. AT&T, more challenges to the idea of corporate personhood will likely follow.