Pubdate: Wed, 29 May 2002
Source: New York Times (NY)
Copyright: 2002 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Section: National
Author: Linda Greenhouse
Note: Drug Policy relevance in last three paragraphs, beginning with 
"Conspiracy Law".

FREE SPEECH OR HATE SPEECH? COURT WEIGHS CROSS BURNING

WASHINGTON, May 28 - The Supreme Court agreed today to decide the 
constitutionality of a 50-year-old Virginia law that prohibits burning a 
cross "with the intent of intimidating any person or group of persons."

The case is an appeal by the state from a decision of the Virginia Supreme 
Court, which held in a 4-to-3 ruling last November that burning a cross, no 
less than burning an American flag, was symbolic speech protected by the 
First Amendment.

The state court decision grew out of two prosecutions in 1998, one of two 
white men who burned a cross in the yard of a black neighbor in Virginia 
Beach, and one of a Ku Klux Klan leader in rural Carroll County, who 
presided over a rally and the burning of a 30-foot cross that was visible 
for three-quarters of a mile along a state highway.

In hearing the state's appeal, the justices will revisit a subject they 
last confronted 10 years ago, when the court overturned a cross-burning 
ordinance in St. Paul, in a 5-to-4 decision that fell well short of 
resolving a societywide debate over the relationship between free speech 
and hate speech.

Thirteen states and the District of Columbia have criminal prohibitions 
against cross burning, and the state and lower federal courts have 
continued to issue conflicting rulings since the Supreme Court's 1992 
decision in R.A.V. v. City of St. Paul.

The attorneys general of Arizona, California, Georgia, Kansas, 
Massachusetts, Missouri, Oklahoma, Utah and Washington all signed a brief 
urging the justices to hear Virginia's appeal. "Cross burning is an 
especially virulent, even unique, form of intimidation in American society" 
that states should be able to prohibit, the brief said.

One reason for the continuing confusion is a disagreement among judges and 
legal scholars over how to interpret the Supreme Court's last decision. The 
St. Paul ordinance that the court invalidated made it a crime to place a 
symbol, including a burning cross, "which one knows or has reasonable 
grounds to know arouses anger, alarm or resentment in others on the basis 
of race, color, creed, religion or gender."

According to the court's majority opinion, written by Justice Antonin 
Scalia, this description of the prohibited conduct amounted to 
"content-based discrimination" because it ruled symbolic speech in or out 
depending on the groups that the speech targeted.

The Virginia law, which was enacted in response to highly publicized Ku 
Klux Klan cross burnings in the late 1940's and early 1950's, does not 
refer to any particular group. The law provides that "it shall be unlawful 
for any person or persons, with the intent of intimidating any person or 
group of persons, to burn, or cause to be burned, a cross on the property 
of another, a highway or other public place."

In finding the law unconstitutional, the Virginia Supreme Court's majority 
said that despite the lack of reference to any specific target, the law was 
nonetheless "analytically indistinguishable" from the St. Paul ordinance. 
The Virginia law was in its own way just as selective, the state court 
said, because it proscribed not all intimidating expression but 
"selectively chooses only cross burning because of its distinctive message."

Virginia's attorney general, Jerry W. Kilgore, said in the state's appeal, 
Virginia v. Black, No. 01-1107, that the law's sole focus on cross burning 
was justified by the sense of threat associated with the practice. Even a 
"white, middle-class Protestant waking up at night to find a burning cross" 
outside his home would feel more threatened than if he found "say, a 
burning circle or square," Mr. Kilgore's brief said, adding: "In the latter 
case, he may call the fire department. In the former, he will probably call 
the police."

The three defendants, Barry E. Black, Richard J. Elliott and Jonathan 
O'Mara, are represented by a well-known First Amendment scholar, Rodney A. 
Smolla of the T.C. Williams School of Law at the University of Richmond, 
and by the American Civil Liberties Union of Virginia and private lawyers. 
Urging the justices to reject the appeal, they said the Virginia Supreme 
Court "conscientiously applied core First Amendment principles in 
unpalatable circumstances."

There were these other developments at the court today:

Effective Counsel

Voting 8 to 1, the court overturned a federal appeals court's ruling that 
set aside the death sentence of a Tennessee man convicted of a double 
murder. The United States Court of Appeals for the Sixth Circuit, in 
Cincinnati, had granted Gary B. Cone's petition for a writ of habeas corpus 
on the ground that his lawyer's handling of the sentencing hearing was so 
deficient as to have violated the Sixth Amendment right to the effective 
assistance of counsel.

The lawyer, in whom mental illness was diagnosed and who later committed 
suicide, failed to present mitigating evidence to the jury and did not make 
a closing argument.

Writing for the court today, Chief Justice William H. Rehnquist said that 
under the circumstances, forgoing a closing argument could be seen as "a 
tactical decision about which competent lawyers might disagree" because it 
deprived the state's highly effective lead prosecutor of the chance to make 
a rebuttal argument in the moments before the jury retired for its 
deliberations.

Consequently, Chief Justice Rehnquist said, it was not unreasonable for 
Tennessee's appellate court to find no constitutional violation in the 
lawyer's performance.

The decision, Bell v. Cone, No. 01-400, was the latest of the Supreme 
Court's efforts to apply a 1996 federal law, Anti-Terrorism and Effective 
Death Penalty Act, which significantly circumscribed the jurisdiction of 
federal courts to review state court decisions through habeas corpus petitions.

Under the law, federal courts may not grant petitions unless the state 
court proceedings "resulted in a decision that was contrary to, or involved 
an unreasonable application of, clearly established federal law" as defined 
by the Supreme Court's precedents.

The dispute in this case centered on which of two competing Supreme Court 
precedents on the effective assistance of counsel, issued on the same day 
in 1984, properly applied to the circumstances of Mr. Cone's sentencing. 
The Sixth Circuit applied one precedent, United States v. Cronic, which is 
favorable to defendants and creates a presumption that a lawyer who 
"entirely fails to subject the prosecution's case to meaningful adversarial 
testing" has been ineffective. In a dissenting opinion today, Justice John 
Paul Stevens argued that the appeals court had properly applied the Cronic 
precedent to rule in Mr. Cone's favor.

But the majority said the Tennessee appeals court had been correct to apply 
the other precedent, Strickland v. Washington, which is much less favorable 
to defendants and requires proof not only that a lawyer's performance "fell 
below an objective standard of reasonableness" but also that the outcome 
would otherwise have been different.

While considering the Cone case, the justices have deferred action in a 
death penalty case from Texas that raises a similar analytical issue. In 
this case, Cockrell v. Burdine, No. 01-495, the United States Court of 
Appeals for the Fifth Circuit overturned the death sentence for a man, 
Calvin J. Burdine, whose lawyer slept through parts of his trial. The Fifth 
Circuit, in New Orleans, held that ineffectiveness should be presumed under 
the Cronic precedent. The justices are likely to act shortly on the appeal 
filed by the Texas attorney general, John Cornyn.

Conspiracy Law

The court accepted an appeal from the federal government and agreed to 
decide an important question of the law of criminal conspiracies: whether a 
conspiracy should be deemed to have ended when the government frustrates 
its objective. As in this case, United States v. Recio, No. 01-1184, the 
question typically arises when the government has intercepted a shipment of 
drugs and has arrested the courier, unbeknown to the other members of the 
conspiracy, who continue with their activities even though they can no 
longer accomplish their goal.

The United States Court of Appeals for the Ninth Circuit, applying a 
doctrine it developed in the late 1990's that a conspiracy must be deemed 
to have terminated when its objectives have become impossible, overturned a 
drug conspiracy conviction of two men who arrived at an Idaho shopping mall 
to claim a drug shipment that the government had already intercepted.

In its Supreme Court appeal, the government argued that the Ninth Circuit's 
approach, with which other appeals courts disagree, would discourage 
"legitimate law enforcement methods that can be of vital importance not 
only in drug cases, but also in violent crime, terrorism and other contexts 
in which prosecution of the conspirators and frustration of their goals are 
both crucial objectives."

Linda Greenhouse answers readers' questions on Supreme Court rules and 
procedure in a column available only on NYTimes.com. E-mail Ms. Greenhouse 
a question at  Please include your name, address and 
daytime telephone number; upon request names may be withheld.
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MAP posted-by: Larry Stevens