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Law, culture, and Catholicism...up in smoke!

Tuesday, June 28, 2005

Scheidler III and the Rule of Four...

A quick update: Scheidler v. NOW was granted cert this morning! At least four Justices smelled what the 7th Circuit was cooking, and they want to see what the stench is all about. Stay tuned!

UPDATE: Below are the introduction and questions presented in Scheidler v. NOW III [PDF], and upon which certiorari was granted this morning [PDF].

In Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003), this Court reversed a decision of the Seventh Circuit that had affirmed a civil judgment and nationwide injunction entered under the Racketeer Influenced and Corrupt Organizations Act (RICO) against various anti-abortion protesters. In reversing, this Court explained (id. at 411 (emphasis added in part)): “Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.” On that basis, this Court determined that it “need not address the second question” on which certiorari had been granted, namely “whether a private plaintiff in a civil RICO action is entitled to injunctive relief under 18 U.S.C. § 1964.” Ibid.

The questions presented are:
  1. 1. Whether the Seventh Circuit, on remand, disregarded this Court’s mandate by holding that “all” of the predicate acts supporting the jury’s finding of a RICO violation were not reversed, that the “judgment that petitioners violated RICO” was not necessarily reversed, and that the “injunction issued by the District Court” might not need to be vacated.
  2. 2. Whether the Seventh Circuit correctly held, in conflict with decisions of the Sixth and Ninth Circuits, that the Hobbs Act, 18 U.S.C. § 1951(a), can be read to punish acts or threats of physical violence against “any person or property” in a manner that “in any way or degree * * * affects commerce,” even if such acts or threats of violence are wholly unconnected to either extortion or robbery.
  3. 3. Whether this Court should again grant certiorari to resolve the deep and important intercircuit conflict over whether injunctive relief is available in a private civil action for treble damages brought under RICO, 18 U.S.C. § 1964(c).
Here's a fairly accurate AP story from Gina Holland. Unfortunately, Ms. Holland parrots the discredited accusation of a beating and other violence that were offered at the trial level by paid anonymous witnesses like "Miss C," later identified as Carolyn Thompson, whose testimony at the NOW v. Scheidler district court trial was wholly inconsistent with prior testimony she had offered (under her real name) an unrelated California trial several years earlier. According to a fascinating October 5, 2002 WORLD Magazine exposé on NOW's "win at any cost" approach in NOW v. Scheidler:

When the 50ish, stylishly dressed "Miss C" took the stand, [NOW attorney Fay] Clayton gently led her through her story: Miss C told jurors she'd had an appointment on Feb. 11, 1989, at the Women's Medical Center for post-operative care following surgery for ovarian cysts. Her minister, "Pops" Johnson, had driven her to the clinic, she said. But before she could enter, "a crowd of people came running from both sides of the [clinic] ... they were carrying signs and shouting things at us. They were shouting 'murderer, baby murderer.'

"Then somebody grabbed me by the back of my hair and I fell up against the car. Then I remember rolling down the side of the car, and the people were hitting me.... I was yelling for Pops to help me.... As I looked up and yelled, 'Oh, God help me,' a man hit me in the head with a big old sign."

As Miss C sobbed on the witness stand, [Scheidler co-defendant Tim] Murphy noticed some jurors crying with her. [Scheidler's lead counsel Tom] Brejcha was floored: Such an assault had never been mentioned in any of the discovery material provided by NOW attorneys. Joe Scheidler remembers thinking that Miss C was either very confused or a very good actress.

Miss C continued: Following the alleged blow to her head, she passed out. When she came to, Pops Johnson and several orange-vested clinic supporters were carrying her aloft over the crowd. The pro-life crowd was "still grabbing" at her as those carrying her helped her into the rear seat of a small car. Her surgical sutures had ruptured, she said: "I was covered in blood from the waist down.... I was hysterical. I was afraid. I thought they were going to kill me."

But legal documents cast doubt on Miss C's testimony. After the jury issued its verdict in 1998, the defense filed a series of appeals. Katie Short, an attorney with Life Legal Defense Foundation in California, was writing a brief on behalf of the defense when she noticed something odd: Miss C's testimony sounded an awful lot like the testimony of a woman who was involved in another high-profile abortion case.

"I was reading through the RICO judgment issued in 1999," Ms. Short said. "I remember thinking, 'This deals with matters in California in 1989, just about the time we were litigating National Abortion Federation vs. Operation Rescue (NAF vs. OR)," a statewide suit filed against pro-lifers by the American Civil Liberties Union. Ms. Short maintained a storage room at her home office. "I had to go outside and paw through stacks of boxes to find the complaint." Sure enough, what Miss C. described in 1998 testimony had taken place on the same date in the same location as a protest cited in strikingly similar testimony in NAF vs. OR. And the witness, whose name was Carolyn Thompson, told the same story: Her minister had driven her to the clinic for a post-operative checkup; they'd encountered a pro-life crowd; and she'd fainted dead away.

What the witness didn't say in 1989 was anything about being scratched, clawed, and beaten over the head -- or waking up to find herself covered in blood.
"It looked very suspicious," Ms. Short remembers. "If I were the ACLU attorney and I had this blockbuster testimony about a bloody beating, I would have put something about it in the complaint."

And something else didn't add up: The California lawsuit was still pending. Why would someone who is a named class plaintiff in an open case need anonymity to testify about the same event in another case?

Armed with the new information, Pro-Life Action League's Mr. Murphy hired Jan Stoltenberg, a Los Angeles area, homeschool mom and pro-life activist, to investigate further. Mrs. Stoltenberg worked from a list of "Carolyn Thompsons" in her city. She visited 13 different courthouses (sometimes taking her 7-year-old daughter with her), searched voter-registration records, matched signatures and Social Security numbers, interviewed neighbors and apartment managers, and finally was able to determine with near certainty that Miss C and Carolyn Thompson were the same person.

The Scheidler team would later challenge the RICO verdict twice in the 7th Circuit -- and twice be denied (see [timeline of Scheidler case]) -- based in part on Ms. Thompson's hidden identity and arguably false testimony. Mr. Brejcha would charge in court pleadings that Fay Clayton had deliberately obscured Ms. Thompson's identity in order to prevent the defense from comparing her 1989 declaration to her 1998 story. He noted that declarations filed in the 1989 case -- one of which was from a clinic doctor who was specifically familiar with Ms. Thompson's experience that day -- mention no violence at the Feb. 11, 1989, rescue. Neither did newspaper accounts or archived footage of any local news broadcast covering that day's protest.

In pre-testimony questioning in 1998, Ms. Thompson herself appeared to forget she had been assaulted. When defense co-counsel Deborah Fischer asked Ms. Thompson, "Did anyone hit you?" she replied "No." There were also other significant differences in Ms. Thompson's testimony, including whether she obtained medical treatment at an alternate location, where that treatment did or did not occur, the extent of her bleeding, and when she discovered it.

In reply briefs [at the 7th Circuit], Ms. Clayton never admitted Ms. Thompson's true identity. She even made statements that seem calculated to cast doubt on the idea that Miss C and Ms. Thompson were the same person: "A central problem of Scheidler's new brief is the logical leap to the conclusion that the Los Angeles patient who testified at trial is Carolyn Thompson. Scheidler's statements to this effect are simply false," and, "It is impossible to determine from the record whether this is the same person as the woman who testified nearly three years ago."

From the record, perhaps. But not from Carolyn Thompson's lips. Working with Mrs. Stoltenberg, WORLD was able to locate Ms. Thompson. "I was an anonymous witness in NOW vs. Scheidler," Ms. Thompson said in a telephone interview. Asked whether she requested to testify anonymously because she feared the Scheidler defendants, Ms. Thompson replied, "No. The NOW people had already decided I would testify anonymously when they contacted me.... I was fine with that." Ms. Thompson told WORLD that NOW's investigator, who visited Ms. Thompson's L.A. apartment, told her it would be too dangerous for her to testify using her name.

In September 2002, a reporter working on a series of abortion-related articles for a journalism fellowship project also interviewed Ms. Thompson over lunch at Spago in Beverly Hills. On a tape WORLD obtained from that journalist, Ms. Thompson said twice that she was financially "accommodated" for her testimony, adding that she "broke even." But in 2000, Patricia Moore, a friend and neighbor of Ms. Thompson's during the 1998 trial, signed an affidavit in which she stated that Ms. Thompson told her she had a "lawsuit going on in Chicago," at the same time as NOW vs. Scheidler. "She told me that she had received a substantial amount of money from the Chicago lawsuit. She said that she used part of this money to pay her rent, three months in advance."
Folks, it is this alleged event and three other purported "acts or threats of physical violence" which became the rationale for (apparent) NOW member Judge Diane Wood of the 7th Circuit to resurrect this case after it had been so clearly reversed [PDF] by an 8-1 majority of the Supreme Court in Scheidler II. And these alleged acts are at the heart of questions 1 and 2 now before the high Court in Scheidler III.

While it is important to know the underlying facts (read the WORLD piece for far more than those related here) behind NOW's accusations, the high Court is not going to consider whether the testimony was perjured. NOW has already won on that front. What remains -- in addition to the injunction-related question presented (#3) -- is whether the Hobbs Act will be expanded to include blanket prohibitions of any "acts or threats of physical violence," regardless of whether those acts are related in any way to robbery or extortion, the predicate acts found lacking in Scheidler II. As previously discussed on Fumare here, and quoting Lyle Denniston over at SCOTUSblog, if this broadening of that Act were to prevail, then "it could make the Hobbs Act -- a law enacted in 1946 to curb labor-management racketeering -- into a sweeping federal anti-violence law."

Is there no limit to NOW's myopic zeal?