advisement

In 1873 and 1874, Henry Hilton and William Libbey, citizens of New York doing business as Hilton & Libbey, shipped large quantities of merchandise from New York to John F. Guyot and his partners, citizens of France doing business as Charles Graux & Co. in Paris. The agreement provided that the defendants would sell the goods on commission in France, collect the proceeds, and remit them to the plaintiffs. Disputes arose over the quality and quantity of the goods shipped and over the accounts between the parties. The plaintiffs demanded an accounting and payment of the balance allegedly due. On April 5, 1883, the plaintiffs obtained a judgment against the defendants for $197,300 in the Supreme Court of the State of New York following a jury trial. The defendants appeared by attorneys and raised defenses including breach of contract by the plaintiffs. The New York judgment was affirmed by the New York Court of Appeals. A writ of error from the United States Supreme Court was dismissed for lack of jurisdiction. On December 18, 1883, the plaintiffs commenced the present action at law in the United States Circuit Court for the Southern District of New York to recover the amount of the New York judgment plus interest. They alleged that the judgment remained in full force and unpaid. The defendants were residents and citizens of France, and had a place of business in the city of Paris. The plaintiffs were residents and citizens of the State of New York, and had a place of business in the city of New York. They answered by denying the allegations. They asserted that the New York court lacked jurisdiction over them or the subject matter. They further asserted that the proceedings did not conform to French law or natural justice, that the judgment was procured by fraud and false swearing, that French courts would not enforce similar United States judgments, and that the amount exceeded what was justly due. The defendants also interposed a counterclaim for $100,000 in damages arising from the plaintiffs' alleged breach of the 1873-1874 shipping contract by delivering inferior goods in insufficient quantities. The plaintiffs replied that the matters in the counterclaim had already been adjudicated in the New York action. The circuit court tried the case before a jury, which returned a verdict for the plaintiffs in the amount of the New York judgment together with interest. The defendants' motion for a new trial was denied. The defendants then sued out a writ of error to the United States Supreme Court.

In March 1976, one Stevenson was indicted for the murder of a hotel manager. After a prompt July 1976 trial, Stevenson was convicted of second-degree murder. The Virginia Supreme Court reversed that conviction in October 1977, holding that a bloodstained shirt purportedly belonging to Stevenson had been improperly admitted into evidence. Stevenson was retried, and the second trial ended in a mistrial on May 30, 1978, when a juror asked to be excused after trial had begun and no alternate was available. The third trial, which began June 6, 1978, also ended in a mistrial, apparently because a prospective juror had read about Stevenson's prior trials and had told other prospective jurors about the case before the retrial began. Stevenson was tried a fourth time beginning September 11, 1978. Present in the courtroom when the case was called were reporters Wheeler and McCarthy of Richmond Newspapers, Inc. Before the trial began, counsel for the defendant moved that it be closed to the public, explaining concern that persons in the audience would discuss testimony during recesses and thereby influence jurors. The trial judge, who had presided over two of the three previous trials, asked whether the prosecution objected to clearing the courtroom. The prosecutor stated he had no objection. The judge referenced Va. Code § 19.2-266 and announced that, under the statute and on the defendant's motion, the courtroom would be kept clear of all parties except the witnesses when they testified. The record does not show that any objections to the closure were made by anyone present at the time, including the reporters. Later that same day appellants sought a hearing to vacate the closure order. The judge granted the request and scheduled a hearing for after the day's proceedings. When the hearing began, the court treated it as part of the trial and again ordered the reporters to leave; they complied. At the closed hearing, counsel for appellants observed that no evidentiary findings had been made before entry of the closure order and that the court had not considered less drastic measures to ensure a fair trial. Counsel for defendant Stevenson emphasized that this was the fourth time he stood trial, referred to prior difficulties with juror information, and stated that he did not want information to leak out, be inaccurately published, and then be seen by jurors. The court denied the motion to vacate and ordered the trial to continue the following morning with the press and public excluded. When the closed trial resumed the next day, the court's order of September 12, 1978, reflects that in the absence of the jury the defendant made a motion for a mistrial which was taken under advisement; at the conclusion of the Commonwealth's evidence, defense counsel moved to strike the Commonwealth's evidence, that motion was sustained, and the court found the accused not guilty and allowed him to depart. On September 27, 1978, the trial court granted appellants' motion to intervene nunc pro tunc in the Stevenson case. Appellants then petitioned the Virginia Supreme Court for writs of mandamus and prohibition and filed an appeal from the trial court's closure order. On July 9, 1979, the Virginia Supreme Court dismissed the mandamus and prohibition petitions and, finding no reversible error, denied the petition for appeal. The Supreme Court postponed jurisdictional consideration to the merits and, treating the filed papers as a petition for a writ of certiorari, granted the petition. The criminal trial which appellants sought to attend has long since ended, and there is thus some suggestion that the case is moot.

In July 1975, Moses H. Cone Memorial Hospital, located in Greensboro, North Carolina, entered into a contract with Mercury Construction Corporation, whose principal place of business is in Alabama, for the construction of additions to the Hospital building. The contract included a broad arbitration clause requiring that all claims, disputes, and other matters arising out of or relating to the contract or its breach be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Construction began in July 1975 and was substantially completed in February 1979. At an October 1977 meeting during construction, Mercury agreed at the Architect's request to withhold its claims for delay and impact costs until the work was substantially completed. In January 1980, Mercury submitted its claims to the Architect, and the parties discussed them over several months. On August 12, 1980, Mercury gave a detailed presentation of its claims at a meeting attended by representatives and lawyers for both parties and the Architect. On October 6, 1980, the Hospital's counsel informed Mercury's counsel that the Hospital would pay nothing on the claim and intended to file a declaratory judgment action in North Carolina state court. On October 8, 1980, the Hospital filed an action in the Superior Court of Guilford County, North Carolina, naming Mercury and the Architect as defendants. The complaint sought a declaration that there was no right to arbitration, a stay of arbitration, and declarations regarding the Hospital's liability and potential indemnity from the Architect. The complaint was served on Mercury on October 9, 1980, the same day Mercury mailed a demand for arbitration. On October 15, 1980, the Hospital obtained an ex parte injunction from the state court forbidding Mercury from taking steps toward arbitration, which was dissolved on October 27, 1980. Immediately after the injunction was lifted, Mercury filed an action in the United States District Court for the Middle District of North Carolina, seeking an order compelling arbitration under § 4 of the United States Arbitration Act, 9 U.S.C. § 4. Jurisdiction was based on diversity of citizenship. On the Hospital's motion, the District Court stayed Mercury's federal suit pending resolution of the state-court suit. Mercury sought review by notice of appeal and petition for mandamus. The Court of Appeals for the Fourth Circuit, sitting en banc, held it had appellate jurisdiction under 28 U.S.C. § 1291, reversed the stay order, and remanded with instructions to enter an order to arbitrate. The Supreme Court granted certiorari.

In 1967 Congress enacted the Public Broadcasting Act, which created the Corporation for Public Broadcasting as a nonprofit entity authorized to disburse federal funds to noncommercial educational television and radio stations for station operations and educational programming. Section 399 of the Act as originally enacted barred any noncommercial educational broadcasting station from editorializing. In 1981 Congress amended the statute to confine the editorializing prohibition to stations that receive Corporation grants while adding a separate ban on political endorsements applicable to all noncommercial stations regardless of funding source. Pacifica Foundation is a nonprofit corporation that owns and operates noncommercial educational radio stations in New York, Berkeley and Los Angeles in California, Houston, and Washington, D.C. Its stations have received and continue to receive grants from the Corporation and are therefore subject to the editorializing restriction. In April 1979 the League of Women Voters of California, Pacifica Foundation, and Congressman Henry Waxman, a regular listener and viewer of the stations, filed suit in the United States District Court for the Central District of California challenging the constitutionality of section 399. The Department of Justice initially informed Congress and the District Court that it would not defend the statute. Senate counsel intervened as amicus curiae in support of the provision and obtained dismissal of the action for want of a justiciable controversy. After a change in administration the Department of Justice announced it would defend the statute. The Court of Appeals for the Ninth Circuit remanded the case, the District Court vacated its dismissal order, and the plaintiffs amended their complaint to reflect the 1981 statutory changes and to challenge only the editorializing ban. The District Court granted summary judgment to the plaintiffs in 1982. The Federal Communications Commission appealed directly to the Supreme Court under 28 U.S.C. § 1252. The Supreme Court heard argument in January 1984.

On August 10, 2004, law enforcement officers in Tampa, Florida, entered an apartment rented by Kevin Dewayne Powell’s girlfriend. They were seeking to apprehend Powell in connection with a robbery investigation. After spotting Powell coming from a bedroom, the officers searched the room and discovered a loaded nine-millimeter handgun under the bed. The officers arrested Powell and transported him to the Tampa Police headquarters. Once there, and before asking Powell any questions, the officers read Powell the standard Tampa Police Department Consent and Release Form 310. The form stated that Powell had the right to remain silent. It also stated that anything he said could be used against him in court. The form advised that he had the right to talk to a lawyer before answering any of the officers’ questions. It further stated that if he could not afford a lawyer one would be appointed without cost and before any questioning. Finally, the form noted that he had the right to use any of these rights at any time during the interview. Powell signed the form acknowledging that he understood his rights and was willing to talk to the officers. Powell then admitted that he owned the handgun found in the apartment. He explained that he had purchased and carried the firearm for his protection despite knowing he was prohibited from possessing a gun due to a prior felony conviction. Powell was charged in state court with possession of a weapon by a prohibited possessor in violation of Florida law. The trial court denied Powell’s motion to suppress his inculpatory statements. A jury convicted him of the gun-possession charge. On appeal, the Florida Second District Court of Appeal held that the trial court should have suppressed Powell’s statements. The Miranda warnings did not adequately inform him of his right to have an attorney present throughout the interrogation. The court certified a question to the Florida Supreme Court. The question asked whether the failure to provide express advice of the right to the presence of counsel during questioning vitiates Miranda warnings that advise of the right to talk to a lawyer before questioning. The question also asked about the right to use that right at any time during questioning. The Florida Supreme Court answered the certified question in the affirmative and affirmed the reversal of Powell’s conviction. The Supreme Court of the United States granted certiorari to review the case.