our annual supreme court preview. i am the executive director of the american constitution society for law and policy. i am very glad to see will hear this morning. founded in 2001, acs is one of the nation's leading progressive legal organizations and a rapid network -- a rapidly growing network of lawyers, scholars, judges, policymakers, and other concerned individuals that believed in the progressive values of our constitution. as an example as an example of the kind of work a c.s. does, i am pleased to tell you about a project we have started with the national constitution center based in philadelphia. together we will be putting out a series of video podcasts and supreme court cases that include interviews with litigants who will discuss their experiences bringing their cases before the high court, and scholars who can place those cases in a historical and legal context.

our first podcast will be on a case before the court this term, florence versus freeholders of the county of florence, -- burlington, regarding it strip searches of everyone put in jail as constitutional. we will have more information about that series in the near future. so, to today's program. the supreme court's october 2011 term has the potential to be a real blockbuster. already on the court's docket or questions about whether the government can place a gps tracking device on a suspect was -- suspect's a car without first obtaining a warrant. the scope of title seven ministerial exception for religious institutions, and whether the fcc rule on an -- on that in deleting expletive is unconstitutionally vague.

the challenge to arizonas immigration law, sb-1070. potentially the port busy before the court this term are challenges to california's proposition 8 which bans marriage for same-sex couples, and the university of texas' admissions program which allows for the consideration of race among other factors in admissions decisions. we will have to wait and see whether the court decides to pick up these cases, but in the meantime, our palest will -- our panelists will discuss the coming term and will highlight for you the cases and the trends that think he should pay attention to. neil has joined the firm of hogan lovell's as serving --

after serving as solicitor general of the united states. he argued 15 supreme court cases including his successful defense of the constitutionality of the voting rights act. prior to serving there, he was a professor at georgetown university law center where he directed the center on national security and the law and he was one of the august profs to have -- youngest professors received tenure in university's history. please join me in welcoming neil. [applause] >> it is a real delight to be here and to talk about what might be a fantastic supreme court term with a fantastic panel of advocates and scholars. i don't want to waste too much time with introductions, because there are a lot of us on the panel and time is limited.

let me just briefly introduce the panel in the order in which they will speak. we will first hear from walter dellinger, a former acting solicitor general. he will be discussing the global positioning satellite case that was just mentioned a moment ago. we will next here from neil kinkoff, who will discuss the case about jerusalem and presidential powers, as well as the arizona immigration case. he is a professor at georgia state and a former official at the office of legal counsel. we will next year from miguel estrada, a former assistant general who has argued 19 supreme court cases. he will discuss the mail case about patent ability as well as a brief discussion about diverted action position now pending in the court involving

the university of texas. i will briefly discussed in my former capacity as a panelist fcc versus box, which is the indecency case, and then we will hear from cynthia jones, who will discuss eyewitness tested -- testimony. and the confrontation clause cases. she is a professor at american university. last we will hear from cheryl ifii and she will discuss --- the ineffective counsel cases. they will each have five minutes, although if any of the palest want to come in and ask questions to the speaker, that time will not count against the speaker. unlike supreme court advocacy. with that, walter. >> good morning, and thanks for coming. i will be talking about to make -- two cases in which i am involved and i want to begin by late disclosing i am co-counsel for antoine jones in united states versus jones.

in the jones case, the police -- federal officials put a gps device on the underside of antoine jones is car without his knowledge or consent and without a valid warrant. they then used the device to attract the movements of the car registered to his wife, driven sometimes by her and sometimes by jones, for the next 30 days, is taking a snapshot every 10 seconds of the location of the car and up loading this information in forms which could be digitized and searched in various ways. there was a warrant which was conceivably not valid. it was not executed within the period of the warrant, not even

within district of columbia. the evidence obtained as a result of the location liberation was introduced at his trial on drug charges. he was convicted and appealed. the court of appeals for the district of columbia in an opinion by judge ginsberg held that this was a search that should have retired -- should have required a warrant. the government argues, and first attempted to get a review which -- en banc review which the court denied over dissent by judge silberman. the dark -- the government argued that under the court's precedents, no warrant is needed, there is no fourth amendment issue raised by this, because it is not a search, not a violation of the fourth amendment because all the information that was introduced at trial could be observed from

public thoroughfares. the court relied upon an earlier case, or the government relied upon an earlier case from the 1980's were the government -- where the government placed of beeper in a container with the permission of the owner of the container. the beeper was placed in a container, and the container was taken by the suspect and they used the beeper to follow the car. the court held in that case that no warrant was required, because it simply aided monitoring of a public street, and there is no expectation of privacy when you are on a public thoroughfare. the argument that this was much more extensive than that, because it involved a 30 days' worth of data taken every 10 seconds, did not persuade judge silberman, who said an infinite number of infants times zero is

ts times atncidenc zero is zero. the fact that you are observed every 10 seconds make no difference. the government petitioned the supreme court and the circuits have taken a variety of different positions on this question. cert was granted. part of the issue is going to be is the gps device any different from a beeper. a beeper is good for a few hundred yards and it ate the -- it aids the actual visual tracking, so you have to have a human actually doing it. in one sense, the gps device is actually seizing the information itself. when we opposed the grant of certiorari we added an additional second question. we said that if the court were to grant cert, it ought to grant on the second issue as well.

with the the government violated the defendant's fourth amendment rights by the act of attaching the gps tracking device to his vehicle without his consent, that is a separate property based interest. did they sees his vehicle and -- seize his vehicle and then use it as a transmitting begin device against him, and should the result in a trigger exclusion, the fruit of the poison tree? one of the arguments is, you may understand that you are never can observe you on a public street when you leave the house. what you cannot expect is that your neighbor will attach a gps device under your car and use three satellites to track your every movement. >> in the state of maryland. [laughter] >> in that sense, i will close the discussion by saying in the effort to show how different this technology is from the use of a beeper or the use of binoculars are whatever, a work

in progress brief will be submitted. in 1978, the u.s. department state lost the navigational -- department of defense lost the navigational satellite timing and global positioning system for use with the u.s. military. it operates 25 government-owned satellites orbiting the earth, each of which continually transmits the position of every satellite in the system. the receiver on a gps device listens to the transmissions of the forecloses satellites and -- four closest satellites and determines the precise location on earth. the device provides an accurate, continuous, and three dimensional digital record over any given period of time as well as that of any person or object carrying the device. the date is communicated to a remote computer and translated onto an interactive map and generates a record of activities. it will produce a pattern of vocational information and --

location all information movement for every moment in that period. which of these things is not like the others? >> in the interest of keeping the discussion moving, i'll ask you to step in a little later in the conversation. >> i like to spend most of my time discussing the clinton case. people are pretty familiar with sb-1070 and not so much with mbz, which is potentially a very important case. 2002, congress enacted the foreign relations appropriation act and included in that the -- authorization act, and included section 214, which is titled u.s. policy with respect to jerusalem as the capital of israel. one component of section 214 directs that the secretary of state list on passports and

other records listing a place of birth for u.s. citizens born in jerusalem, that they listed at havoc -- as having been born in israel if the secretary is requested to do so. in october 2002, a man was born u.s. citizen parents in jerusalem. because he was brought -- born abroad to u.s. citizens, he is a u.s. citizen by statute. his parents went to the u.s. embassy in tel aviv and asked that his certificate of record of birth a broad list his place of birth as jerusalem, israel. when president bush signed the foreign relations authorization act, he included a signing statement saying that section 214 is unconstitutional, because it infringes his

authority to speak as the sole voice of the united states in international relations and it violates his authority -- his recognition authority under the constitution. the state department refused to list israel on his birth certificate. they listed only jerusalem. menachem parents filed a lawsuit in the district of columbia. the district court dismissed the lawsuit on grounds that it presented a political question that the court cannot answer. the d.c. circuit's firmed on political question grounds to judges -- two judges ruled that it was a political question even though their resolve the case on -- the result the case on -- they resolved the case on

merit. a third judge, judge edwards, issued a concurring opinion in which he said the case does not present a political question, but agreed that the case should be dismissed because the statute violates the president's recognition power. menachem's parents appealed to the supreme court and the supreme court granted cert. masoud cert on the grounds a case does not split -- present a political question. the supreme court granted certification on that issue. they directed the parties to prevent additional question. the section 214 violate the president's authority under the constitution to recognize foreign powers? the recognition power, which i think is really what this case is about, there is not a very plausible argument that this case involves a political question. i think the best argument for that is the fact that the d.c. circuit actually addressed the merits before it said it was a political question. [laughter] the case really involves the

recognition power. the recognition power is not specifically granted in the constitution. instead, the constitution authorizes the president to receive ambassadors. but everyone understands that role is premised on the president's authority to recognize which ambassador is the real ambassador or. if two ambassadors from a foreign country say i am the ambassador, presumably each representing a competing faction, it is for the president to decide which ambassador to recede, and in doing so, to determine what is the legitimate government of the foreign nation. but the recognition power does not stop there. it is generally understood to authorize the president to determine what territory the foreign nation includes. are the bachmann islands part of -- falkland islands part of argentina or part of great britain, for example. or is jerusalem part of israel or a disputed territory as to which we take no position as to

who is sovereign. the recognition power also has been understood to grant the president the authority to make policy as to how to go about recognizing or withholding recognition from a foreign governments, or art as to a foreign government's sovereignty over a particular bit of territory. that part is not controversial. what is controversial is the question of whether or not that power is granted exclusively to the president's. the plaintiffs protest that claim. there seems to be fairly broad agreement that in fact that power is exclusive to the president. there is a long body of precedent within the executive branch that makes the claim of exclusivity. there are a range of court opinions saying that the president has this authority exclusively, in which case it

seems like a fairly simple and straightforward question. the president has the recognition power. congress has infringed on the recognition power. the problem is, congress also has relevant authority. congress has authority over naturalization. it is congress that determines that a person born abroad to u.s. citizen parents is a citizen of the united states under its naturalization power. it is congress that has the power to decide what kind of documentation is necessary and that the government should issue to recognize that fact. so congress has exercised that authority to say that u.s. citizens born in jerusalem are born in jerusalem, israel. so we have sort of a conflict of power. i think this case is going to raise a real important characteristic of the supreme court. that is, the supreme court is populated to an extent that i think it's unprecedented by lawyers to have as their

background arguing separation of powers issues on the side of the president. we have new justice kagan who was for years and the white house counsel's office. justice scalia headed the office of legal counsel. justice alito was in the office of legal counsel, where his signature issue was signing statements. [laughter] chief justice roberts served in the attorney general's office working on these issues, which i think will orient the court to look favorably on the president's position. but the way they do it could have dramatic consequences, because congress has other powers, and the president has other exclusive powers, like the commander-in-chief power. can congress use its spending power to limit the way the president exercises the commander-in-chief power? could congress say to the president, no money may be spent for military operations in libya?

or no money may be spent for a surge in iraq? these are important questions that i think will be implicated by the way the court resolved the the sport -- resolve's the clinton case. -- we will hear from mr. tentablility. pat abil >> now is a good time to go get some coffee. [laughter] the patent act, which is enormously important to a lot of people who make a lot of money out of it, says in section 101 that things that are invented, etc., may be patentable subject matter. this is the mouth of the funnel. these are things that are eligible for patents. the patent act goes on and says there are other requirements, has to be a novelty, etc. but now we are talking about what gets into the ballpark of

what may be patentable. it seems brought on its face, but for many, many decades, there has been a doctrine in the case law including before the current version of the statute was enacted that said that no one may seek or get a patent based on the law of nature. if an apple fell on your head and you want to patent the law of gravity, you are out of luck. that is viewed as part of the common all of humankind. you may not go to the patent office and get a patent on that. you cannot foreclose that knowledge to others. now the caveat is that you may seek a patent on a particular novel and useful applications of

the law of nature. most things that improve our lives probably would not work if they tried to do so in defiance of the laws of nature, right? things do not fall of birds. -- things do not follow up towards u --pwards. -- things do not fallto have an application that is useful, and in addition does not foreclose the utilization of a law of nature to others. now we have a patent in the supreme court that has been upheld by the supreme court that is a patent for the extraction of bodily fluids, looking at certain readings and thinking. the question is whether that is something that is patentable. what exactly going on is, there

are certain medications that are good only up to a point, and then they start being bad for you. so there is a very important area for doctors to try to take your bodily fluids and see how the drug has metabolized, just to see whether you are in the correct therapeutic range. if it is higher than 250 you are doing well, but if you go over 400, not so good. the question is whether you can patent a blood test to look at the metabolites of this drug and think about whether you are between the two under 5400. -- 2005400. --the federal circuit says yes. it seems a very difficult argument to make in the supreme court, because the supreme court had this issue five years ago. i argue that case on the side of the respondent at that time,

and it was clear that there was a fair amount of hostility on the part of the bench to the probability that it was patentable. they took it again after sending it back to the federal circuit once, so i think is a fairly obvious that a number of people on the court are interested in this issue, and it is very difficult issue. you think this was an anodyne thing.in this patent is sort of simple minded, and you cannot really keep doctors from practicing medicine. it gets a little bit more complicated than that because there are whole industries that are hugely beneficial that work on the proposition of investing billions of dollars and bickering out whether particular natural compounds, aided by laws of nature and can be turned into a pill that cures dementia or a number of other things. at the end of the day, if you take a pill, it is the interaction of a compound based

on the laws of nature as to how the compound is expected to interact with the bodily fluids. so they are very sensitive questions for the court as to how far it can go and applies the law of nature doctrine to this area without endangering whole areas of industry and science that people would can see are properly subject to patents, because otherwise people would not have invested in them. it is very interesting issue. there is a lot of money and investments writing on it, but it is patent. >> i am going to discuss briefly fcc versus fox television. let me start with the disclosure. i wrote the certification petition in this case. i am sure my colleagues would

love it if you like to read more of the brief to us. with respect to this case, this is a bell -- a number of television stations and others are challenging the fcc prohibition on the broadcast of indecent material. three terms ago, the supreme court held at that policy was permissible under a statute, the administrative procedures act, but the court left open the constitutional question. the case went back to the second circuit for oral arguments and briefings on those questions for the matter was handled by mr. estrada. admirably and well. there were specific -- 3 specific broadcast in the case. the first one was in in 2002 when the singer cher what is euphemistically called the f- bomb during the billboard music awards. the following year, nicole richie did the same thing with the f-bomb and the s-word.

in a third incident, nypd blue showed the unclothed buttocks of a woman on national television. after wood to the supreme court, it went back to the second circuit for discussion of the constitutional issues, and the second circuit identified two possible constitutional problems. the first one is it said that in decency bands generally are seen as content specific prohibitions on speech. things that focus on the specific material that is at issue, and that is generally something that receives strict scrutiny, the courts high standard of review, the most searching type of review. the second circuit said the supreme court had issued a decision that gave the government special latitude when it comes to matters that are broadcast over the public

airwaves. the second circuit in its opinion suggested the rationale for the pacific a decision had eroded over time because of new technology and the like, but it did not only decide and get into that whole question. the second thing it said was that the sec probe mission was -- prohibition was just unconstitutionally vague. there was not rhyme or reason between the funds it levied in the ones it had not. there was not a real difference in the broadcast that got fines and the ones that did not. so the government of the certification petition based on a constitution -- on the issue of constitutional vagueness. the broader question as whether or not the fcc's indecency policy violates the constitution itself under the first or fifth amendment.

some suggested that means the court wants to look at the rationale for the pacifica decision itself. the broadcasters have not filed the brief. one could anticipate they would defend the second circuit's rationale about no rhyme or reason. the ultimate question will be about how much they want to get into this should pacifica be overruled. i think it would be whether they would be overruled are not. if they do, this has the potential to be a blockbuster. >> pleading is the opposite of, what? that is a lot of obscenities. >> deliberate. >> they talk about a fleeting obscenity, rather than a non fleeting obscenity. >> first, no one is talking about obscenities. >> expletive, i am sorry.

>> it is in decency, and the question whether the single parents of a curse word can be -- utterance of a curse word can be sanctioned by steep fines per affiliate on each of the networks. part of the problem is that the fcc takes the view that you have to address them every time they occur, news broadcasts, and even if you are covering a live event such as a game. >> or panel discussion. >> one of the tough arguments was c-span radio, which is a broadcast station, covered the argument, and all three members of the second circuit or cursing a blue streak. [laughter] at some point, one of them asked the council for the government, we have c-span broadcast every judgment this

panel has said, things people normally do not hear the judges say. it is clearly relevant, are you going to go after c-span? and the council went -- [laughter] and that was only the tip of the iceberg. >> thank you. professor jones, you are going to talk about eyewitness testimony. >> in perry versus new hampshire, the issue is simple, and that is when and i would guess it identifies the defendant as a perpetrator outside of court, under what circumstances will the court allow out that information to come in at trial? that is, the witness can take the stand and say all the night of the robbery i pointed to him

and said, that is the guy. it had been since 1977 the supreme court has had a serious look at the standards for letting an eyewitness identification testimony, and the court's analysis basically centers on reliability. that is, we will allow that testimony if the circumstances around the making of that identification more reliable. but we have learned a lot about i would ask identification and miss identification and unreliability since 1977, and the social science has changed, mostly because of wrongful convictions. it is undisputed in the 270- plus wrongful convictions, the number one cause was eyewitness this identification. and about 75% of the cases where a person had been exiled you read it with dna evidence, and i -- exonerate it with dna evidence, i would guess miss

identification played a key role in the case. clearly, the standards we have been using since 1977 are not protecting it against unreliable eyewitness identification in court. that is the question they could address, that is they could refine some of the language from earlier cases. the very specific question based here presents a unique set of facts that may give them an out from addressing that question, and that is in the overwhelming majority of cases where there is an eyewitness to identification of court, the police have initiated it. it is either a line up with the defendant in the lineup, a photo array, or they bring the suspect to the witness and say, is this the guy? in those cases, the supreme court has said, we want to look

at whether the police did anything that is unduly suggestive. whether it was, is this the guy, he is in handcuffs, or is it a lineup were the witness said, it was a black guy with dreadlocks, and everybody else in the lineup is white. those are the kind of things with the supreme court has said, that could be bundled the suggested. -- unduly suggestive. in this case, the police did not orchestrate the identification. this was a situation where the police came to the scene, they stopped the guy who seemed to be in the area who matched the description. it went to interview the witness and they said, what does the guy look like? she said, it was a tall black guy. they ask for more description. it is the guy down there in the parking lot with the police officer. they did not make the guy standing there, they did not bring the defendant to the witness's attention, but she gave that description. the defense on appeal argues, that was until we suggest of identification, and it does not matter whether the police

initiated it or orchestrated it. the fact of the matter is is not reliable. -- is unreliable. the lower court said, if the police did not do anything wrong, we will not get into whether it is unreliable and violates due process. the specific issue the court has to address is, is it president on the -- on theprecedent. in this case, in light of what we know about wrongful identification, it is interesting because the witness, a latino woman, she said it was a tall black guy, that is all i know. she is later shown to defended's -- the defendant's picture in an array of photographs and cannot pick him out. later at trial, she does not make an identification, saying that i did not get a good look at his face. she is the only what is to -- only witness who actually witnessed and could identify the person.

no one else actually saw the theft. we have a situation where there is actually a risk of miss identification. she cannot definitively say this is the guy, other than he is the one in the parking lot near the scene and with the police officer at the time. the supreme court could simply say, the police officer did nothing wrong, our president has -- our precedent has always involved police officer-involved a out-of-court identification, usually because that is the way it occurs, or the court could take into account what has happened since 1977 and what we now know about eyewitness and reliability. for example, one of the factors the supreme court has instructed the or courts to take into -- lower courts to take into account and whether the guy with this identification is reliable and is admissible is the certainty. if the guy with a says, i am totally positive. and about 75%, the witness was absolutely certain, and all of

the social climate research we -- social science research we now have says certainty does not equal reliability. it is no longer widely respected as a factor. the supreme court could issue a narrow ruling on whether the police must be involved for a due process violation, or the court could take the opportunity, which this case presents, to take a broader look at the unreliability of eyewitness identification and put some restrictions on their admissibility. >> i think i could start with a disclaimer that i was once a prosecutor. i think you are right that identifications tend to be on duly accredited by juries and

not as reliable as people think, because people are nervous and what not. i once had a bank teller in court to identify the deputy marshal as the bank robber. [laughter] and the guy he was actually the bank robber still got convicted. but what is the limiting principal of an inquiry that looks at the reliability of in court i.d. or out of court? is the constitution giving the criminal defendant the right to have the reliability of evidence, all evidence tested by means other than cross- examination? i think there are many other types of evidence, dna is not good enough, that before the prosecutor is allowed to put these things in front of the

jury, they might be the subject of a long fight in front of a judge as to whether this is "reliable enough." if you take out the involvement of the cops, what is the limiting principal that will keep the trial in a criminal case from shifting from the jury to a judge? >> in the interest of full disclosure, i used to be a public defender. i have also had cases of this misidentification. i think we are in a different posture than all other forms of evidence. that is, the supreme court since 1967 has recognized the fallibility and the vulnerability of eyewitness testimony, and has already determined that should be tested pre-trial. so we are not charging a new -- charting a new course.

the prosecutor, if the defense wants to challenge the out-of- court identification, the defendant already has the right to do that. the question is, what restrictions can or should the supreme court put on the use of eyewitness testimony, and to what extent should the defendant be allowed to dedicate its -- litigate its unreliability, given what we now know about the fallibility, of eyewitness testimony, given the amount of time with this is got -- witnesses in good faith it wrong? jurisdictions across the country have placed all kinds of limits and restrictions, not supreme court, constitutional level, but state court requiring judges to give the jury specific instructions on eyewitness unreliability. has conducted hearings on more elaborate than the standards hearing pretrial, before i will let this testimony in. there are many issues raised.

>> the federal constitutional rights, how is the court to decide eyewitness testimony from all the other forms of evidence? >> i think in terms of forensic evidence, that issue has been at least preliminarily addressed by the national academy of sciences report in 2009, which basically said all non-dna forensic science, but mark analysis, -- like hair analysis and bite mark analysis, whether it is not dna, that has some reliability problems. that is already in the pipeline for challenge, fingerprints and things like that. with respect to eyewitness identification, i think the court can single it out because it is incredibly, incredibly powerful evidence, and the court has already recognized the fallibility of it. unlike confessions and jailhouse informant testimony, where there is an issue about reliability, this is the number one cause of wrongful conviction. >> the factors that raise doubts about the eyewitness id,

with one exception, and probably all were put before the jury, right? head of the lineup, you are unable to identify this person. so all this is before the jury come up with one exception, i think, and that is information on the general unreliability of eyewitness identifications. is that a constraint on the putting before the jury, the evidence but experts? >> no, it is the defendant does not have the right to do it, a crowd judge could allow the -- a trial judge could allow the defendant to do it, and several courts have begun to allow the defense to call an expert on the unreliability of what this id's. it -- of eyewitness identification or cross racial identification. that can go before the fact finder. the problem with allowing the

testimony, if it is not reliable, you do not want the jury to rely on it. it does not command. it is like letting the effort -- expert come in and they made up science. the jury can hear it, but if they rely on it and say, that sounded good to me, it sounds credible and could make a determination based on unreliable information. the judge is the gatekeeper to keep out information that is not reliable and the judge should make that information and judgment. juryt and only allow the hear -- and make the judgment pretrial and allowed only the jury to hear information that is reliable. >> baltimore is a very, very large distance from washington, d.c., in many ways most people do not recognize. the questions and answers are the perfect segue into talking about this, which is can you put this on?

ineffective counsel. you have to take notice when the supreme court decides they want to hear this many cases involving ineffective assistance of counsel. there are four, some would say five issues that raise this with the supreme court this term. i want to talk about one particular case. and then another set of cases. keep in mind, the framework for this. the sixth amendment guarantees the right of the accused to have the aid of counsel. the supreme court has interpreted that to mean you have the right to effective assistance of counsel, had to raise the claim you have received an effective assistance -- ineffective assistance of counsel is a level that violates the sixth amendment, yet approved the council was deficient and that deficiency was presidential -- was prejudicial. that is, the proceedings might have turned out differently. the supreme court has been kind of not very sympathetic about the question. the have afforded it resumption of effective assistance of

counsel. you may remember eight justices on the court, who said it was likely or reasonably a strategic decision for the council, the same at the capitol of trial to put on no witnesses and not make a closing argument. two years ago, justice sotomayor said it was reasonable that it was not effective assistance of counsel and a case where an attorney who had only been admitted to the bar five months was handed the responsibility of the sentencing phase of a capital trial and failed to do any investigation or put on mitigating evidence that would help the defendant. so the landscape does not look great for these claims, but the

fact the supreme court has taken so many and that they raise this issue from different perspectives i think is important. one set of cases, there is another, raised the issue in the context of pleas. what happens when council does one of two things, either fails to convey to the defendant that the prosecutor made a plea offer, or provides incorrect advice to the defendant, where the defendant was prepared to admit that he had shot a woman four times and was prepared to confess and try and get a plea, but his attorney told him the prosecutor could not possibly prevail on a charge of assault with intent to commit murder because all of the shots, the four shots he had fired and had landed in the victim, were all below the waist. counsel advised his client that, therefore, the prosecutor could not prevail on the charges. turns out this is absolutely not true. they want to draw and the defendant, of course, was convicted. we have the plea case.

a significant issue is, what is the remedy? if you wanted to say, for example, in the missouri case, ineffective assistance of counsel, they get a letter from the prosecutor and says here is the plea offer and never tells his client, is it possible to imagine the remedy? the district court said, well, we ought to require specific performance of the plea that was offered. in other words, we are to require now that the defendant now be allowed to take the plea that was originally offered that he never heard about. there is some contention about that. you may have something to say about whether that is a workable solution. the other case that is important is maple forces thomas. -- maples v. thomas. the question in this case was,

how much more representation can one criminal defendant received before it rises to the level of ineffective assistance of counsel? this arises out of alabama. in many ways, i think this case pulls together many of the strands of concern that had been raised in prior cases involving ineffective assistance of counsel from alabama. it is important know the context. alabama is a jurisdiction that does not provide indigent criminals council for convicts in post conviction proceedings. they also provide counsel and try proceedings in capital -- in trial proceedings and capital -- in capital cases, and direct appeals, but they pass the attorney fees -- a cap the attorney fees that can be recovered at $100. very often, you have not very experienced attorneys who are working on capital cases in alabama. in alabama, you also do not need a unanimous jury verdict to impose the sentence of death, 10 out of 12 is sufficient. if you put that together, there are a lot of cases out of

alabama, such as these two, in which quarry maples went to trial with no council, very -- pro bono council, very experienced counsel, -- very inexperienced council, at both the guilt phase and sentencing phase. the council failed to put on any evidence that he had been taking crystal meth and crack on the night of the murders, which may have suggested that he under alabama law did not have been the capacity to be responsible. at the sentencing phase, they put on no evidence about his bouts with depression, the fact he was suicidal, abandoned by his mother, abuse, and other mitigating evidence that might have helped at the sentencing phase. they were so overwhelmed at the sentencing phase that the attorneys themselves said to the jury, we know it looks like we're stumbling around in the dark. obviously, he was sentenced to death. then at the post conviction

phase, he seemed to hit the jackpot. he got to attorneys from -- two paternities from -- two attorneys from sullivan and cromwell, a new york law firm that agreed to represent him, did his post conviction work, and then they disappeared. when i sent notice to the attorneys saying that his petition for post conviction release had been denied, they received a letter back from the firm saying, returned to sender, left law firm. the circuit clark did not make any other effort to contact the firm or mr. maples in prison. the deadline for his appeal passed on post conviction. in the habeas proceeding, when he learned the deadline had passed, he was lucky and and got to attorneys, very good attorneys, but the alabama courts were clear he had defaulted, failed to appeal his post conviction, his denial of post conviction release, and the 11th circuit has also said he defaulted procedurally and he is not able to raise his claim of ineffective assistance of

counsel. the court will have to deal with that issue coming out of alabama, and deal with the plea issues. and are at least two other cases. and we have to presume the court wants to say something comprehensive, perhaps, about this that would justify them taking the set of cases. >> we have about 30 minutes left, and i want to save 20 minutes for questions. we have been talking so far about the cases at the supreme court, that they have granted certiorari and have agreed to hear, but there is a bunch of stuff people think they might hear. i cannot predict this, but you all can. there is health care, affirmative action, sd-1070, there may be criminal cases. if you could spend a couple of minutes, so we could have room

for audience questions, on any of these cases and anything else coming down the pike. >> there are two affirmative- action cases that might make it to the court. one is the u.t. case. the supreme court in the last crop of justice o'connor upheld an affirmative action program for the university of michigan as said it was appropriate to take race into account. if you do it any way that is personal that isa quota and do other stuff so no court can figure out what your doing. it is so if you may get -- so it is individualized, so nobody has a smoking gun that race was the actual fact, then you can do it.

people in universities, shockingly, are able to do these things. i don't think as long as that is the rule, the supreme court will be interested in coming back to that issue so soon. what makes the case more interesting is in the interim, while affirmative action had been thrown out by the fifth circuit in the 1990's, the texas legislature, i think at the behest of the elite republican who i am sure is very close to everybody here, passed a statute that said in order to increase the amount of minority students in texas public education, there was going to be a guaranteed 10% for the top 10 at each high school, would be entitled to go into one of the university's in the system.

the question that is somewhat more interesting is whether you can, in effect, double dip, whether you could have a statute that gives you a boost on the diversity you are looking for by virtue of the 10% rule, but still have some level of deference to the university if it deems that is not enough and it wants to also do one other type of affirmative action programs. i will say that the u.t. program was upheld a very thorough opinion by judge keeton bottom -- in bottom -- higgenbotham in the fifth circuit. there was not a dissent. judge garza went along with it, but said he thought the supreme court was out of its mind. if you basically have a panel

of the fifth circuit telling you this is ok, based on existing precedent, then the best person to take a differing view can say is the supreme court can overrule this case and it does not really sound like a gilded invitation to the supreme court to actually get involved. the other case i will mention quickly is a lot more interesting and is coming out of the fifth circuit if it gets out, and it has to do with the michigan side of the story. after the plans were upheld in supreme court, there was a popular referendum that essentially out all the -- out what affirmative action and

publication in the state of michigan. as a result of that, but one school that went to the supreme court cannot do it anymore. the fifth circuit, in a two-one panel, threw that out as a violation of equal protection based on the theory of a couple of cases, hunter, and another case involving the seattle school district, that said it is a violation of equal protection to place political impediments to minorities in the attainment of certain benefits. the cases the court decided and vault trying to entrench actual discrimination, people try to make it difficult to get rid of racial covenants or make it difficult to desegregate schools. insofar as the other case, did not say affirmative action was a remedy for discrimination, but was actually an affirmative good based on diversity rationale, there is not a very good fit between what the panel said and the cases that it cited.

the fifth circuit just last week -- the sixth circuit just last week took the case en banc. i would think if it gets out of the fifth circuit in that form, it is almost certain the supreme court would take it. i don't think it would be hard on the supreme court, either, but now the third circuit has -- the sixth circuit has taken it on, maybe it will never get there. >> the u.t. case, the presumption is, given what happened with citizens united, i don't think we can necessarily presumed court has decided in the last decade they will not revisit the issue. the that you cannot get four justices to decide what to hear that case. i think there is a certain nervousness about the case. what is interesting about the u.t. case, when texas announced this 10% plan, that students who graduate and the top 10% of

every public high-school will automatically be admitted into the flagship university and so forth, people said that it is the solution, you don't have to deal with race. because of the segregated school system, yay, we will have i black students to will haven. -- we will have black students who will make it end. -- make it in. in the interim, with the university of texas has been able to develop at the law school is demonstrate the ways in which this is problematic, the way that excludes blacks students whose grades are not as good but whose sat scores or lsat scores are fabulous, the way that encourages students to take a less academically rigorous program in schools of the graduate higher in their class. it undermines looking at the content of the academic program and so forth. they have some interesting information that suggest these plans are not the answer.

it seems to give more robust support to the idea universities have to engage in a kind of more individualized process that gives them an opportunity to look more closely at the students in the way that the other case suggest it. the presentation is actually quite strong, given the data u.t. has developed, and even have that debate and information public for the nation to begin to grapple with the fact this question is not one of simple math. it makes the u.t. case quite interesting. >> health care? >> i think the health care law if it gets to supreme court this term, i no longer think it's a certainty, but if it gets to the supreme court -- >> flush out why you think it's no longer a certainty? >> the jurisdictional issues are significant.

the question of whether the tax injunction act prohibits the challenge of a federal tax until you've paid the tax which would be april of 15 where the first -- of 2015 were the first person has to pay $95,000 for not having coverage, whether that should lead to litigation, -- postponement of litigation, their standing issues -- the sixth circuit plaintiff said their case is ripe and they have to save money because they have little money but the case is excusing anyone that would be a financial hardship and they've pledged their way out of having a real case or controversy in the sixth circuit case. so i think there are some problems. i've always thought at the end of the day it was going to be upheld, it wasn't going to be close and come down to justice kennedy. i rarely make prescriptions unlike tom, but i thought -- i know, you mentioned that he does make predictions. i always thought it would be 7-

2 to uphold it, maybe 8-1 and justice thomas because he is willing to reconsider very well felt pressed in the 18th and 19th and 120th centuries in a variety of areas and made that explicitly clear. [laughter] i would assume the chief justice would assign the opinion to himself and would not want to write an opinion saying the only way to deal with major social problems is for congress to have a single payer government run contract than to have incentives to participate in the private market. and i think that the notion of whether or not this is in the jurisdictional box of commerce is an almost ridiculously easy question, that is it's incentives to make a purchase in enter -- interstate commerce and they're not raising subject issues but it's in that box. and the arguments there are a lot of other things congress might do with that jurisdiction are arguments that don't work

where the only questions is whether something is within a subject matter. so, for example, as you and i have discussed, the attack on the social security law said congress has the power to set the social security able at 25. -- the social security age at 25. well, yes, that's because it's the jurisdictional question. when the minimum wage law was passed and the question whether that fit within commerce among the states, the statement was made of congress you can pass the minimum wage of $5 an hour or $5,000 an hour. well, of course. but that's the nature of jurisdiction. there's other constitutional doctrines that come into play when congress does such a thing. and right now it is in disputably within the congress' power to enact all kinds of ridiculous regulations when you engage in commerce. i think judge sutton's opinion makes a huge difference by identifying the fact that this

is -- that the notion this is a regulation of inactivity makes no sense. this is a health care service is something no one can be sure they won't be using when they do need them, they will be provided for them, at least in some fashion, the cost will be transferred to others, if you're going to self-insure, he said that's a very active process of self-insuring, a very active process. and therefore, i think you put all that together, this is not -- i think it's not going to be seen as a difficult case. miguel thinks otherwise. >> actually, i think it's a very complicated issue on a number of levels dealing with the first issue that neil identified to when, if ever, it will get to the supreme court. i think we should all agree that it would be in the public interest for the education of the issue, which contentious as it is, to have it done with and get it on its way to the supreme court just as soon as we can. it's a clean legal issue. you don't need to have any sort of factual issues on that.

and you know, we've had rulings on multiple courts on all sides of the issue. it is nonetheless very clear that the strategy of the administration is to do cartwheels to keep the case out of the supreme court so as not to have a ruling before the 2012 electorate. -- election. they take every extension and do everything they can to stretch it out and just so that you know, if a case -- if a case on this issue is not taken by basically the second week in january of 2012, you will not have a ruling before the election because it will not be heard. unless they have a special sitting. and i will bet you any amount of money that the administration is going to see the 11th

circuit, even if you look at the composition of the panel, there's no way in heck they would get it but they want to chew up the time just to make sure if and when the court gets it, it is not for a ruling until after the election. now, there are -- once you do get it there, you know the issues are really hard. every time you ask the supreme court to overturn an act of congress, it's a very difficult thing for the court to do and congress comes to the supreme court with a presumption of deference and constitutionality. there are issues as to the standing and as to the jurisdiction, if this were in fact a tax, i think you would be right it's a jurisdictional question. the case of the administration on the tax issue is not aided by the fact the man who signed the bill, you know, the president of the united states,

went on the speaking circuit saying it wasn't a tax and he was challenged on tv with somebody with a dictionary saying this is the definition of a tax and he said, i don't care what you call it, it is not a tax. and at some point there is a question as to whether if you're dealing with user fees or burdens or impositions, that could reasonably be called a tax whether you are not owed some level of deference to the guy who signed the thing. and take him at his word. you know, the commerce issue is actually very hard because you have the worker versus philburn case and the race case. and i have a lot of respect for jeff sutton, and i think his analysis was a very honest attempt to grapple with a difficult question. i also have a lot of respect for frank holland in the 11th circuit who was a clinton appointee to that court and she labored equally hard to grapple with that question and they came to very different conclusions. it's a hard question. >> you have respect for their opinion as well?

[laughter] >> no, i do but they were the court that said the tax injunction act would apply and i think that that is a plausible argument if you accept the proposition you are not to take the president of the united states at his word. >> you're totally wrong on that. because whether or not the tax injunction act bars it, it's nothing to do with whether or not you can constitutionally defend it as a resolution of the -- has an exercise of the taxing power. it is quite clear if there's a surcharge of 2.5% on the federal income tax, that that is a tax that's within the meaning of the tax injunction act. you might say we're not going to uphold this as an exercise in power because of the signaling function but that doesn't change the fact of that. a couple other comments. one -- >> we really should keep the discussion moving. i'm so sorry. >> go ahead. >> you have any cases you wanted to talk about? >> i wanted to briefly alert you to a couple criminal cases. there's one case that involves yet again the analysis of brady versus maryland. once again, we have a louisiana

case where the government has failed to turn over exculpatory evidence as is required and they have to investigate whether the defendant's constitutional rights was violated. and we have another case on the confrontation clause and is an area where i suspect there will be litigation for many years to come and in this case it presents a clash between the court's most recent precedence requiring that when the government wants to introduce documents or analysis or for instane the analysis or reports, they have to call the person that performed the analysis and can't rely on the written record and presents a clash between that principle and another principle of evidence that allows an expert to testify and give the basis for their opinion. so the expert can say this was the cause of death. and i read the toxicology report prepared by somebody else. that person is not going to testify but i can tell you what

that report said. those two rules, the confrontation clause and the rules on expert testimony clash in a case williams versus illinois that gives the supreme court an opportunity to tweak the confrontation clause analysis in light of its rules on expert evidence under rule 703. >> excellent. >> just very quickly, there's no shortage of commentary on the arizona law and on sb-1070 and most people are expecting the court will grant cirt for reasons that seem obvious and compelling and not only has the ninth circuit enjoined a law, or upheld the injunction of a law, but other states have followed arizona and enacted their own laws, my home state of georgia has, alabama has, utah has, indiana has, and in each of those cases courts, except for alabama and in each of those cases courts have enjoined the enforcement of the act on the doctrine of preemption and alabama stated its decision --

stayed not its decision -- stayed its decision while it further studies the question. no court has upheld one of these statutes. the national association of state legislature, national council state legislatures reports that over 30 states have significant immigration legislation pending, and so there's an obvious need for guidance here. the one caveat i would offer is that this involves the question of preemption, the issue in these cases is not racial profiling, a lot of public discussion centers on that, but the issue in these cases is whether or not these laws are consistent with federal statutes. and the court might well think that congress is going to get around to addressing this issue and it's congress that ought to be providing the guidance. so with that caveat in mind that the court might decide to sort of sit back for a while and see if congress does anything, the other factors would seem overwhelmingly to indicate the court ought to take a look at it, in which case i think this

is a case that comes down to justice kennedy, and i think it's hard to know in advance what he will do. he has been sympathetic to recommending claims in the past in a way that would make you think he would be willing to side with the ninth circuit on at least some aspects of arizona's law. on the other hand, as he has in so many areas gone both ways. so it's apt to be a close argument. >> one quick question, could you identify what the precise preemptive aspect of federal law is that is said to be operative in this case? >> there would be two. there are two types of provisions of the arizona law that have been challenged. one would be law enforcement, law enforcement provisions that authorize state officials to in essence support federal immigration law. the other set would be new crimes in the state of arizona.

arizona crimes that are based on federal immigration infractions. >> i'm asking for the flip side of that which is what the federal -- >> the federal preemption would be with respect to the law enforcement provisions, there is a federal law that dictates how it is the federal governments and states cooperate, the states apply to the attorney general and the attorney general designates them and chooses officer by officer which officer will be authorized to enforce federal immigration law and it's all subject to the attorney general's supervision and control which ought to appeal even to a justice like justice scalia who thinks it's a violation of separation of powers for congress to vest local law enforcement officers with the authority to enforce federal law, so, you know, why wouldn't the arizona law fall under that? that's a second argument from the preemption. the preemption argument is arizona is going around that

exception of having the attorney general specify the officers and directly authorizing their officers to go ahead. with respect to the criminal provisions, it's simply a matter of federal discretion as to how to enforce federal immigration law which is complicated by the fact that you're interesting -- introducing local state prosecutions. >> that's why -- i guess the question i want to ask is, it seems to me for reasons we don't have really time to get into, actually both aspects of the problem really do involve a claim that the preemption flows from the interference with the discretionary authority of the attorney general over the enforcement of the immigration laws. and in order to make that stick, and i do concede the case law is that a federal policy may have, may have preemptive effect but doesn't the administration

have to say that the current level of enforcement of the immigration laws, which is to say whether you think of it as lax or just right is a federal policy and that therefore, additional enforcement of the immigration laws to -- you know, bring people -- >> i don't think the federal government has to say the current level at that systematic level is where it's supposed to be, but rather that case by case the attorney general has to have discretion about what to do with a particular alien. >> sure. >> but if the state is interfering -- >> the state law says you bring him to the feds, right? so at that point the a.g. has the discretion so there is in fact a preemptive effect. >> not the preemption of state criminal law which say throw him in state jail and that might not be the disposition the attorney general wants with that case. >> ok. well, with that we have some roving microphones and if you raise your hand, we'll bring

them over to you. greg store is in the back. >> yeah, greg stohr was raising his hand. >> hi, i'm greg stohr with bloomberg news and i was wondering if you'd respond to neil's assertion the government would do cartwheels to keep the health care case out of the supreme court this term? >> i don't want to speak about anything that's not in the public record because obviously -- i argued all these cases in the circuit court and i can't speculate about what they're doing since i left on june 30, but i mean, i think there's nothing that can be farther from the truth about the government's expedition of all of these cases and we went with a radically fast schedule in circuit court in order to get prompt resolution of these issues. i can't speak to what's happening now with respect to the supreme court and whether or not issues should percolate

more and the like, but the notion that the administration has been dragging its heels, i'm not hard-pressed to think of a set of cases in which the -- in which any administration has moved more quickly in the circuit courts than these health care cases. >> the government is not pressed jurisdictional issues that could have postponed litigation until 2015. it has chosen not to press those issues but to proceed to get resolutions on these cases. >> well, just two points. those issues were raised in all the district courts until you lost them. or they lost them. you didn't. and i don't want to beat on neil, but do notice that he said that we have been expeditious in the circuit courts which is we have gone through the processes that exist to go through the district court and i'm sure they'll be expeditious about filing for a fruitless attempt -- en banc in

the 11th circuit. they had the legal option as soon as they lost cases in the 11th circuit and fourth circuit to do what the government has done and in many times on other cases of questions of national importance to seek cert before judgment and go straight to the supreme court. people asked them to do that and they were very careful not to do it. >> seeking certiorari, the government has taken three or four cases in the last decades and often in which cases there was a massive injunction with a real social problem at that moment. here the law goes into effect the individual mandate in 2014, i think there was a circuit courtroom position that was filed and denied by the supreme court i think without any dissent, and the notion that this would meet those standards i think is a very hard argument. >> also, this is perfectly proper, the government states that this issue is going to

benefit from having more judges look at it and get less away from the -- the more journals look at it, the more i think that will eventually be apparent that of course the regulation of 1/7 of the national economy is within the subject matter of commerce among the states. >> the beatings will continue until the morale improves? >> also, miguel, i can't imagine why the administration would not want this issue resolved before the election. >> really? >> yes, absolutely, as a political matter. i don't even know what the incentive would possibly be. as well as the absence of any evidence that that was thought to be desirable. >> yes, over here. >> hi. on the m.b.z. versus clinton case of a baby boy born in jerusalem, if i understood it correctly that perhaps a

preliminary issue would be a political question jurisdiction, and whether or not that would implicate baker versus carr, because i heard one case if justice scalia was wrongly decided and would love to overturn is baker versus car. >> i don't think m.b.z. would provide a good vehicle for overruling baker versus carr and might provide a vehicle for saying discouraging things in -- disparaging things and baker versus carr for justice scalia and may be close enough. [laughter] but the question is in the case is whether or not the recognition power resides with the president and whether or not congress' law invades the president's recognition power and there's just no political question there. the political question would be whether or not to recognize that jerusalem is within israel. but that question isn't presented in the case. the question is who gets to make that call, and that's a legal question. and so i don't think the court is going to hesitate over the political question aspect of the case.

>> i don't know about that. >> over here. >> thank you. ian melheiser with the center for american progress. a question for professor jones, the way you characterize the lower court's decision in the eyewitness case is they essentially said the police didn't do anything wrong and that makes it ok? >> yes, the full court said because the police officers did not orchestrate that eyewitness i.d., we don't have to engage in an analysis of whether or there was a due process violation. >> that strikes me as tragically wrong and here's why, every case i know of where the court has said the police didn't do anything wrong so we're not going to allow a remedy here, is an exclusionary rule case. and an exclusionary rule case is the nature of the case is we have evidence that we know is probative of the truth, if police find me with marijuana illegally, they know i'm in possession of marijuana. the question here is that -- is whether or not the evidence is probative in the first place.

and so it seems to me as a massive shift in our constitutional wall if we're going to move towards saying the purpose of a trial is to no longer assess probative evidence to determine the truth, the purpose of the trial is to determine whether police checked all the right procedural boxes. my question is, is this case an outlyer or are we seeing a shift from trials being viewed as a determination of the truth towards whether or not a trial should be viewed as simply whether the government checked all the right boxes and if they did it doesn't matter if the guy is guilty, innocent or not. >> i think it's not quite that drastic of a shift. i believe, and the petitioners argued below the court should focus on not whether the police officers did anything wrong. there's definitely an interest of the courts and interest of government in making sure officers behave themselves and conduct their investigations properly. but the interest here vindicated by the court's eyewitness

identification testimony, it just so happens that in the overwhelming majority of cases it involved police officer identifications. it's not contingent upon that. the real inquiry is were the circumstances whether the police were involved or not, were the circumstances of that identification suggestive such as would make the identification testimony admitted at trial unreliable. it doesn't matter where the police were involved if it was a scenario where no -- the judge should not let it in because it's so unreliable and likely to lead to a wrongful conviction. we don't really care whether the police was involved, the petitioner argued and the lower court said no, that just like with suppression of evidence seized unconstitutionally in violation of the fourth amendment, the focus is on police misconduct. and it's not -- in the first instance, if we don't have that, we don't even have to reach the circumstances regarding reliability. i agree with you, i think that's just wrong. i think the courts should address that in substance and

if they do, it then raises those issues about what we now know about unreliable eyewitness i.d. >> let me use this as a deeply imperfect segue to talking about one of the cases i think will get the most attention this term in the supreme court, and that's the case called florence versus board of free holders of burlington county, new jersey. it's a strip search case but it's a very interesting case i think that's going to have tremendous resonance for many people and it involved the question of kind of deference to law enforcement. it involves a man who was arrested in new jersey after he was pulled over, he actually wasn't driving, his wife was driving. the police asked who was the owner of the car. she told them who the owner was and they took her husband and arrested him. they found in the computer he had an outstanding warrant for having failed to complete paying a fine and therefore had been a judged in civil contempt. he had in fact paid the fine and in fact so nervous was he of the possibility of being pulled over on this outstanding warrant that he carried with him the

copy with the seal on it, the raised seal indicating he had in fact already paid the fine. and he showed this to the officer but the officer said i've got to go with the computer and they arrested him and they took him to jail and he was held in jail for a week. he should have seen a magistrate or judge within 24 hours but he was held within two different jails in a week and subjected over the course of a week to two strip searches, he alleges. and the case that he filed after he was finally brought before a judge, it was determined in fact he had paid the outstanding warrant and therefore he should not have been arrested and the case raises the question as to whether or not in the jail, a jail can have a policy of blanket strip searching everyone who comes in, or whether each individual is entitled to the individualized determination of whether there is a reasonable suspicion that the individual might be carrying contraband or might otherwise be concealing a weapon of some sort. now, this is important because mr. florence in this case is the financial manager for a car dealership.

this is clearly a case in which he didn't do anything wrong. he was in the right. he was arrested. he went through this ordeal. it's also true 14 million americans are arrested every year and very often they're arrested and ultimately not charged. and he's now filed a class- action that includes people who were pulled over for failing to have on a turn light, for having a noisy muffler, obviously race plays a key role. mr. florence is african- american, new jersey is the place with the famous driving while black i-95 case in which 75% of people stopped and arrested on i-95 by troopers were black although blacks constituted 30% of the motorists and all the evidence was blacks and whites committed driving infractions at the same level. you've got the race context but you also have the context of 14 million people being arrested, that the police do make mistakes. do we want to have a rule that allows at the jail, we're not talking about prison, but at the jail a blanket policy of subjecting everyone who comes

into the jail who may be arrested for a variety of reasons that are not even serious crimes to be subjected to a strip search? i think this case is going to get a lot of attention. there are a lot of amicas briefs filed including by the united states on the side of new jersey jurisdictions and is one of the cases to watch out for. >> wonderful. i'm told we're out of time so i wanted to thank the american constitution society and the panelists for a great presentation. see you next year. we'll see if the predictions are right. >> that was brilliant. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> next, the white house medal of honor ceremony for iraq and

afghanistan war veteran dakota meyer. and president obama's remarks at the congressional hispanic caucus dinner and later, former president george w. bush and former secretary of state condoleezza rice discuss global health issues. tomorrow on "washington journal", david brody looks at the roles evangelical voters will have in the 2012 election. nelson schwartz discusses the pending federal lawsuit against several banks over the quality of mortgage-backed securities. but that fannie mae and freddie mac. and historian carl sferrazza anthony talks about the book of job: kenny. -- jacqueline kennedy. "washington journal" live at 7:00 a.m. eastern on c-span.

>> the first thing, you hear the boom and see the flash and everything and then the next thing you hear, you hear them cry out in pain. the second thing i heard him is, you know, if i've lost anything special, you know, shoot me. >> sunday, ivan candor and rob jones, candor is the director of a 30-minute documentary of his friend marine corporal rob jones who was severely injured in action. the book "survive, recover, live" looks at him coping with his time in iraq and his rehabilitation on c-span's "q&a." . >> president obama awarded the medal of honor to iraq and afghanistan war veteran dakota meyer. he was honored for saving 13 american and afghanistan soldiers with a fight -- during a fight with the taliban. he is the first living marine to receive the medal of honor since the vietnam war. this is about 25 minutes.

>> ladies and gentlemen, the president of the united states and mrs. michelle obama, accompanied by battle of honor recipient, sergeant dakota meyer. ♪ >> if you would, please. pray