Archive | February 2013

Indian Bingo lawsuit is ‘a novel claim,’ but unlikely to succeed, expert says

By Robert McClendon | rmcclendon@al.com 
February 20, 2013 at 5:50 PM, updated February 21, 2013 at 7:03 AM

Attacking Indian bingo in state courts on the grounds that the gambling presents a public nuisance is novel, but it’s unlikely to be a successful legal strategy, according to an expert in Indian gaming law.

“It’s a novel claim, but I don’t think it’s likely to change the outcome,” said Katheryn Rand, dean of the North Dakota School of Law and co-director of the Institute for the Study of Tribal Gaming Law and Policy.

Indian gaming is governed by federal and tribal law, and Alabama courts have no jurisdiction to intervene, Rand said.

Rand is the third expert on Indian gambling to express doubts about Alabama Attorney General Luther Strange’s chances in his lawsuit against the Poarch Band of Creek Indians, which he filed Tuesday in Elmore County Circuit Court.

Given the seemingly long odds, AL.com asked Strange’s office whether he believed he actually had a chance of winning. The office returned this response, attributed to Deputy Solicitor General Andrew Brasher:

“There is no quick and easy solution to the complicated problem of Indian gambling. We have exhaustively studied the tactics that other States have used to try to address their own Indian gambling issues. Based on this history, we decided the right first step was to bring a lawsuit against officers of the Poarch Tribe in state court. We believe the law is on our side and intend to establish that in court, not in the press.”

The four-page suit goes into detail in its argument that electronic bingo machines are illegal in Alabama, then proceeds to ask the court to declare the Poarch Band’s operations a public nuisance and order them to be shut down.

A “nuisance,” under Alabama law, is any activity “that works hurt, inconvenience or damage to another.” That the activity may otherwise be legal does not prevent the state from declaring it a nuisance. However, the law continues by saying that alleged inconvenience to the public “must not be fanciful or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man.”

The definition of a nuisance is irrelevant, Rand said, and it doesn’t matter whether the games are legal in Alabama. They are legal on Indian lands, she said.

It’s a novel claim, but I don’t think it’s likely to change the outcome. — Katheryn Rand

She said that under federal law, if bingo is “legal in any form, for any purpose by any person” in Alabama, the Indians are entitled to engage in electronic bingo on their land. It doesn’t matter that the state considers only paper bingo to be legal, she said, adding that the issue has already come up in other states and has been decided.

That Strange is using a public nuisance statute is odd, but it makes no difference because the federal Indian Gaming Regulatory Act “occupies the field,” meaning it is the applicable law regarding Indian gambling, Rand said.

Were the Poarch Band digging a rock quarry, or engaging in some other business that had a deleterious effect on the quality of life in the surrounding area, Strange might be standing on sturdier ground, she said, because those types of activities are not governed by a single, comprehensive federal statute in the way Indian gaming is.

Simply put, the federal Indian Gaming Regulatory Act trumps state law when it comes to gambling on Indian lands.

Another of Strange’s legal tacks also seems to face similar legal hurdles for the same reason.

Strange has filed a friend-of-the-court brief in an unrelated case before the Alabama Supreme Court that asks the body to apply the so-called “Carcieri” decision to the Poarch Band.

The Carcieri decision is a 2009 ruling by the U.S. Supreme Court that has cast doubt on the federal-trust status of some tribes’ lands. No federal-trust status equals no federal protection for Indian gaming.

However, according to Rand, the Alabama Supreme Court has no decision-making power when it comes to whether Carcieri would apply to the Poarch Creeks, a federally recognized tribe.

A serious effort to remove federal trust status would have to go through the federal system, she said.

Trials of the past

 The trials of ‘The Axemen of Birmingham’s
Drug-induced confessions lead to winding courtroom drama

By Jeremy Gray | jgray@al.com 
on February 20, 2013 at 7:00 AM,
axe2.JPG

BIRMINGHAM, Alabama — Birmingham was on the verge of frenzy after four years of ax attacks on immigrant merchants and assaults and murders of interracial couples, when police announced five suspects had been injected with a “truth serum” and confessed on Christmas Eve 1923.

The Birmingham News on Jan. 8, 1924, printed a front-page jailhouse interview with two of those suspects, Odell Jackson and Peyton Johnson, also known as Foots. Both denied confessing to any crimes.

Johnson described being given a shot of a “white fluid just below the shoulder. I immediately became dizzy.”

The two said while under the influence of the drug they were asked what color pants they were wearing, what time it was, and if they had taken part in the murders.

Although they said the drug had a potent effect, both men told The News they never confessed. Use of the drug, scopolamine, in interrogations was ruled a form of torture 40 years later by the U.S. Supreme Court.

“It’s a funny feeling. Feels like you’re sleeping, but you are not. Just floating around would be a good description,” Jackson told a News reporter.

In February 1924, a third suspect, Fred Glover, was sentenced to 20 years in an assault and robbery case.

During that trial, Glover’s attorney tried to question the use of the drug but a judge ruled in favor of prosecutors who objected. Glover’s suspected role in what The News called the ax gang was also not mentioned at trial.

Johnson was sentenced to death that February after Mary Francis Sanders testified Johnson and four other suspects bragged about the attack on John Turner, a white painter, and a black woman, Lillie Belle (also spelled by The News as Lilly Bell and Lillie Bell). Sanders had been with the group prior to the murders, she testified.

“They said they got the man, but not the woman,” Sanders told the court.

Sanders said Pearl Jackson, a 19-year-old black woman and Odell Jackson’s wife, assured the group Turner was dead “for I saw his brains.”

Pearl Jackson broke down in court when Johnson’s death sentence was announced. “Foots would no more kill a man than I would,” Jackson was quoted as saying.

After the trial, Jefferson County Solicitor James Davis, the prosecutor, praised the effectiveness of scopolamine, although it had not been mentioned in court.

“Before Johnson was subjected to the serum, we had absolutely nothing to work on,” Davis said.

Verdicts come, but violence continues

henry the hacker.jpgThis Jan. 27, 1922 Birmingham Age-Herald drawing depicts the public image of the killer, who by then had been nicknamed “Henry The Hacker.”

A few days after Pearl Jackson wept at the news of Johnson’s death sentence, Davis announced she had again confessed, this time without the use of scopolamine, and agreed to plead guilty in exchange for a life sentence without the threat of the death penalty.

But Davis said he made no promise and would seek the death penalty. Jackson later denied making a second confession and never pleaded guilty.

Across Birmingham, the effects of the four years of violence were still being felt.

Two weeks after the report of Pearl Jackson’s second confession, Ernest Romeo, the son of Elizabeth Romeo and brother of Juliet Vigilant, both brutally murdered with a meat cleaver months earlier, shot a black man outside his Southside grocery store, leaving him critically injured.

“Romeo, police say, has been apprehensive of strange Negroes since then and the shooting Saturday night showed that he had been under a heavy strain and was taking no chances,” The News reported March 17, 1924.

Less than three weeks after Johnson’s conviction, Clem Williams, a black man who delivered The News in the Overton mining camp, was found with “his head split open” and an ax on his chest at his kitchen table on March 19, 1924. Three men, all black, were arrested, but it is unclear if anyone was ever convicted.

Birmingham Police Chief Fred McDuff and Jefferson County Sheriff Thomas A. Shirley, in a Birmingham Age-Herald interview, suggested sensational newspaper reports of the crimes were spawning a crop of copycat killers.

“You may take an ax murder, for example, and play it up until some crazy person is driven to commit a similar murder,” Sheriff Shirley said.

As the Jacksons prepared to stand trial in May 1924, two white men — Richard Warner and L.M. Watkins — were struck with an ax and robbed as they walked through downtown.

Hours later, police chased a black man named Frank Owens and shot him in the arm as they arrested him. Warner and Watkins survived.

The News reported Owens told police he was “determined to strike down pedestrians in the fashion pursued by the axemen.” Owens was later sentenced to hang and attempted suicide by jumping from a courthouse window.

‘The final chapter’

As the Jacksons stood trial, Mary Francis Sanders, who testified against Johnson, told more of the night John Robert Turner was killed.

Assured now that a complete axe gang is in jail and convicted, authorities desire to make an example of them,” a May 29, 1924 Birmingham News article.

Sanders said 10 people were in a “shanty in a downtown alley” drinking a liquor she called “skulls and crossbones” when someone suggested they go “skulling,” slang for hitting someone over the head and robbing them.

The couple showed little reaction as they were sentenced to death. The News reported on May 29, 1924, that they and Peyton Johnson were expected to be executed by hanging at the same time.

“Assured now that a complete axe gang is in jail and convicted, authorities desire to make an example of them,” the article stated.

As she faced the prospect of being the first woman in Jefferson County to be executed, and the first statewide since the Civil War, Pearl Jackson told reporters she was confident she would be freed, The News reported in June 1924.

The story then fell from the front page as courtroom dramas unfolded in other states, including the trial of wealthy Chicago students Richard Loeb and Nathan Leopold, who murdered 14-year-old Bobby Franks in 1924, and later the 1925 Scopes trial, in which a Tennessee biology teacher was accused of violating a ban on the teaching of evolution.

The state supreme court in January 1925 upheld the Jacksons’ death sentences but ordered a new trial for Johnson, saying a letter stating that the prosecution’s star witness was a “good girl” should not have been read in court.

The couple was scheduled to die on June 19, 1925. News articles told of gospel songs they sang with fellow condemned prisoners, how a Jefferson County deputy was preparing their nooses and the final meal Pearl planned to eat — a whole chicken, a whole watermelon, and a quart of ice cream.

She was “ready to die as soon as she gets plenty to eat,” The News reported.

Proclaiming their innocence as the final hour neared, Gov. William Brandon granted a last minute reprieve until Johnson’s second trial ended. A new execution date, July 17, was set.

Johnson nearly died as that trial began on July 6, suffering a stroke as Lilly Belle (or Bell) testified about the attack that killed John Robert Turner and left her unconscious.

On July 27, having regained composure, Johnson again stood trial, The News reported.

This time, Johnson stood trial with a co-defendant named Ed “Bulls Eye” Jackson, whose name did not appear in previous reports and whose role in the attack was never explained by The News.

After a lengthy jury deliberation, Ed Jackson was sentenced to life in prison, Johnson was given 10 years, and Pearl and Odell were given their third execution date in a span of two months — Aug. 7, 1925.

Gov. Brandon, well-known for his opposition to the death penalty, commuted their sentences to life in prison the day before they were to die. In doing so, Brandon wrote “the final chapter” to the ax slayings, The News reported.

Questions remain 88 years later

The story seems to end there, but many questions remain nearly a century later. People who held the answers likely died long ago.

Of the many crimes the five suspects were accused of, they were convicted of just one. Efforts to find their prison records were unsuccessful. Did they die in prison?

Who was responsible for the other attacks and what happened to them?

The fifth suspect injected with scopolamine, John Reed, was never mentioned again after the confessions were first announced. What happened to him?

How did five years of vicious killings disappear from our collective memory?

Descendants of some victims still live in the Birmingham area and at least one, Butch Baldone, a downtown tailor for 53 years, said black people were unfairly targeted in the investigation.

Baldone’s grandparents, Charles and Mary Baldone and their daughter, Virginia, then 14, were assaulted in their 10th Avenue North shop on July 13, 1921. All three survived, but refused to identify their attackers.

While the five black people injected with scopolamine reportedly confessed to the crime, Baldone said he believes the attack and “at least 90 percent” of the others were the work of an Italian mafia that was trying to plant roots in Birmingham.

“Black people got along with Italians because they were the only ones who would give them credit. The white man didn’t want their business,” Baldone said.

Charles Baldone’s brother made bootleg liquor and members of “The Black Hand” — one of many violent extortion rackets that plagued immigrant communities nationwide in the early 20th century — blackmailed him by threatening his family, Butch Baldone said.

Butch Baldone said his family found the people behind the attack and took the law into their own hands.

“The Baldones found the people who really did it and, to put it simply, they don’t exist anymore,” Butch Baldone said. “That was the closest the mafia ever came to Birmingham.”

Odd twist in a case or good investigation by lawyer team?

Detective in Pistorius Case Faces Prior Charges

By  and 

Published: February 21, 2013

PRETORIA, South Africa — In a remarkable twist in the case of Oscar Pistorius, the double amputee track star accused of murdering his girlfriend, the South African police said on Thursday that the officer leading the investigation against the athlete is himself facing seven criminal charges of attempted murder.

Under cross-examination on Wednesday, the detective was forced to concede that he could not rule out Mr. Pistorius’s own version of events based on the existing evidence, apparently undermining the prosecution’s account.

“The poor quality of evidence presented by chief investigating officer Botha exposed the disastrous shortcomings in the state’s case,” said defense lawyer Barry Roux.

When the bail hearing resumed on Thursday — Mr. Pistorius’s fourth court appearance since the killing on Feb. 14 — the chief prosecutor, Gerrie Nel, began by acknowledging the charges against Mr. Botha, but said prosecutors did not know the case had been reinstated by the time Mr. Botha testified against Mr. Pistorius on Wednesday.

Mr. Botha was not present when the Pistorius bail hearings resumed Thursday, and the court briefly adjourned while officers went to find him.

While the prosecution has accused Mr. Pistorius, 26, of the premeditated murder of his girlfriend Reeva Steenkamp, 29, a week ago, the track star himself said he opened fire thinking there was an intruder in his home in a gated community and had no intention of killing her.

The case has continued to take a toll on his global reputation as an emblem of athletic prowess and of triumph over adversity. On Thursday, the Nike company became the latest corporate sponsor to suspend ties with him. “We believe Oscar Pistorius should be afforded due process and we will continue to monitor the situation closely,” the company said in astatement on its Web site.

In Pretoria, in a development that seemed as bewildering as it was sensational on Thursday, Police Brig. Neville Malila said that Mr. Botha is himself set to appear in court in May facing attempted murder charges relating to an incident in October 2011, when Mr. Botha and two other police officers were accused of firing at a minivan carrying seven people.

“Botha and two other policemen allegedly tried to stop a minibus taxi with seven people. They fired shots,” Brigadier Malila said.

While the charges were initially dropped, “we were informed yesterday that the charges will be reinstated,” he said. “At this stage, there are no plans to take him off the Pistorius case.”

South African news reports said the 2011 shooting happened when the officers were pursuing a man accused of murdering and dismembering a woman before putting the body parts into a drain.

Medupe Simasiku, a spokesman for the National Prosecuting Authority, said “the decision to reinstate was taken on Feb. 4, way before the issue of Pistorius” or the shooting death of Ms. Steenkamp “came to light.”

“It’s completely unrelated to this trial,” the spokesman said.

Mr. Botha was quoted in South African news reports as denying claims that he was drunk during the alleged shooting. He said he and other officers had aimed at the wheels of the minivan without causing injuries and he was convinced that the case had been withdrawn.

Calling the timing “totally weird,” Bulewa Makeke, a spokeswoman for the National Prosecuting Authority, said Mr. Botha should be replaced but the final decision lay with the police, not the prosecutors.

“Is he going to be dropped from the case? I don’t know. I think the right thing would be for him to be dropped,” Ms. Makeke said outside Pretoria Magistrate’s Court.

Mr. Pistorius returned to court on Thursday for further arguments about whether he should be granted bail in a case that has riveted South Africa and fascinated a wider audience, reflecting Mr. Pistorius’s status as one of the world’s most renowned athletes, whose distinctive carbon-fiber running blades inspired the nickname Blade Runner.

On Wednesday, what was supposed to be a simple bail hearing took on the proportions of a full-blown trial, with sharp questions from the presiding magistrate, Desmond Nair, and a withering cross-examination that left Detective Botha grasping for answers that did not contradict his earlier testimony.

Initially, Detective Botha explained how preliminary ballistic evidence supported the prosecution’s assertion that Mr. Pistorius had been wearing prosthetic legs when he shot at a locked bathroom door early on Feb. 14. Ms. Steenkamp, a model and law school graduate, was hiding behind it at the time.

Mr. Pistorius said in an affidavit read to the court on Tuesday that he had hobbled over from his bed on his stumps and had felt extremely vulnerable to a possible intruder as a result.

But when questioned by Mr. Roux, Mr. Pistorius’s lawyer, Detective Botha was forced to acknowledge sloppy police work, and he eventually conceded that he could not rule out Mr. Pistorius’s version of events based on the existing evidence. Mr. Roux accused the prosecution of selectively taking “every piece of evidence” and trying “to extract the most possibly negative connotation and present it to the court.”

Lydia Polgreen reported from Pretoria, South Africa, and Alan Cowell from London.

Walker County judge declares mistrial after Graysville man on trial for armed robbery shoots himself

 

By Kelsey Stein | kstein@al.com 
on February 20, 2013 at 1:04 PM, updated February 20, 2013 at 1:41 PM

JASPER, Alabama – A Walker County judge declared a mistrial after a Graysville man facing robbery and assault charges shot himself in the head during a midday court recess Tuesday.

Daniel Lavale Williams, 27, shot himself with a handgun about 12 p.m. Jasper police responded to a report of gunshots at a Jasper cemetery off Highway 269. Williams died after being airlifted to UAB Hospital, according to Jasper Police Capt. Larry Cantrell.

Williams’ girlfriend, who was with him in the cemetery, is cooperating with police in an ongoing investigation of the shooting, Cantrell said.

“At this time we don’t expect anything other than what it looks like, we just want to make 100 percent sure,” Cantrell said.

About 2:30 p.m. Tuesday, Walker County Circuit Court Judge Jerry Selman addressed the jurors, who were prepared to begin deliberations in the case, and declared a mistrial, said Walker County District Attorney Bill Adair.

The attorneys had delivered their closing arguments before the court adjourned for lunch.

Williams was standing trial on charges of burglary of an occupied dwelling while armed, second degree assault, shooting into an occupied dwelling and three counts of armed robbery.

He has four co-defendants, one of whom testified against Williams and was sentenced to 20 years after pleading guilty. The others are set to appear in court in the next few months, Adair said.

“I don’t want it to get lost in this tragedy what these victims have been through,” Adair said. “Three people were robbed at gunpoint and pistol-whipped, and a child who suffered from spina bifida, they hit her and took her mp3 player. I don’t want that to get lost.”

Williams apologized to one of the victims after court adjourned for lunch, according to a report in the Daily Mountain Eagle.

According to court records, Williams and four other men broke into an Argo home on Dec. 29, 2007, where they robbed and pistol-whipped three women. As the men fled after the robbery, one of them shot into a nearby home, hitting a man in the chin as he was getting ready for work, Adair said.

All four victims survived after being treated at area hospitals.

At the time of the robberies, it was reported that the Walker County sheriff’s department, Jefferson County sheriff’s department and Adamsville police officers collaborated to arrest the suspects.

The emotional nature of the case and its conclusion emphasize the importance of courthouse security, Adair said.

“I applaud the courthouse security that we had, that they’re doing the best that they can with what they’ve been supplied,” he said. “I commend Judge Selman, who’s attempting to get security, but I’m very tired of risking my own life and the lives of my employees and the victims’ lives in these trials.”

Newly created Jefferson County Public Defender Office advertises job openings

By Kent Faulk | kfaulk@al.com 
February 19, 2013 at 6:15 PM

BIRMINGHAM, Alabama – Jefferson County Public Defender Kira Fonteneau this afternoon announced she is looking to fill the first three positions for the newly created office that will defend poor clients against criminal charges in the Birmingham division of the county’s court system.

Fonteneau issued job descriptions for deputy public defender, office administrator, and information technology specialist. She said he plans to hire one administrator and one IT specialist and at least two deputy public defenders. The people hired for those jobs will help in planning for renovations and equipping office space, she said.

“This (the jobs) is a step in the right direction,” Fonteneau said.

A deputy public defender must be a lawyer and have the ability to serve in the absence of the public defender and manage day-to-day operations, according to the job description. The salary range for that job will be $69,098 to $105,403.

The IT specialist salary range is $43,339 to $76,348 and the office administrator $38,000 to $65,000 a year.

Here are links to the full job descriptions and benefits:

Deputy Public Defender

IT Specialist

Office Administrator

Eventually, Fonteneau said, the office will include 68 employees. That will include 39 attorneys, plus a support staff that includes investigators, docket clerks, paralegals and social workers, she said.

Fonteneau said no target date has been set for opening the office.

Fonteneau, a Birmingham attorney, was chosen in November to lead the newly created office.

As the public defender, Fonteneau will lead the team of as-yet-to-be-hired lawyers in representing poor criminal defendants charged in the Birmingham division of Jefferson County’s court system and who otherwise can’t afford an attorney. The Bessemer Cutoff division will continue to appoint local attorneys to represent indigent clients.

While some defendants do hire their own attorneys, 90 percent or more of the defendants are considered indigent and can’t pay for their own lawyers, Fonteneau said.

A move to begin a public defender office took off under a 2011 Alabama indigent defense law that provides for an indigent defense advisory board in each circuit or each county. That board is made up of the presiding judge, local bar chairman and lawyers for three at-large positions. The board decides whether indigent defense be provided on a case-by-case appointment of local lawyers or through a public defender office.

Judges in the Birmingham division currently appoint local attorneys to defend indigent criminal defendants. The attorneys are paid by the state for their work.
Newly created Jefferson County Public Defender Office advertises job openings

Breaking the Cycle: Entrepreneurship in Prison

Darden, Contributor

Credit: U.Va.’s Darden School of Business

Guest Post by Gosia Glinska, Senior Researcher at the Batten Institute at the University of Virginia’s Darden School of Business

Imagine you’re in prison. Your release date is quickly approaching. But you’re a high-school dropout with few job skills. Even if you took classes on the inside and learned how to weld or hang drywall—you are an ex-con. Who will hire you? How are you going to survive in the worst economy in decades?

In 2013, nearly 700,000 inmates will be released from state and federal prisons in the United States. Many dread the day they will regain freedom. Unable to find legitimate employment, many resort to a life of crime and quickly return behind bars. According to the Justice Department, more than 60% of prisoners are rearrested within three years of their release.

“The number one challenge ex-offenders face is the scarlet letter on their chest,” says Greg Fairchild, a professor at the University of Virginia’s Darden School of Business. “That’s the first and only thing many people will see.” Fairchild, who teaches courses in strategic management and entrepreneurship at Darden, has made it his mission to help inmates overcome significant barriers to reentering society.

In 2011, Fairchild and his wife, Tierney Temple Fairchild, launched a pilotMBA-style program in two correctional facilities in Virginia to teach convicted felons how to start their own businesses upon release. The inmates are taught using a case method, led by Fairchild and second-year Darden students.

The benefits of the program go beyond learning basic business skills. Entrepreneurship education offers exactly what those who hope to start anew need the most: a new mind-set. “At its root, entrepreneurship is about recognizing that there’s a problem and finding some way to add value to someone else,” Fairchild says. In the program, participants learn to recognize the value in themselves and create value for others. The classroom experience helps them to trust one another. Many develop a powerful bond with their fellow classmates. “The prisoners change—they start supporting each other,” Fairchild says.

But prisoners are not the only ones who change. Many business students who volunteer in Fairchild’s program say their own preconceptions about convicted felons are stripped away the first time they teach a class. “I have a dozen MBA students who ask prisoners to do the financial analysis of breakeven, they see them do it—they see how serious they are—and they change their perception,” Fairchild says.

“If you had asked me whether I’d have hired someone with a criminal record last year, I probably would have said ‘no,’” says Mark Lund, Darden MBA ’12, who taught in Fairchild’s program last year. “This experience has opened my eyes to the potential people have when they truly commit to turning their lives around.”

To have a real shot at a productive life on the outside, former prisoners need job skills and a positive framework to recognize their own potential. But they also need people willing to give them a chance.  Prison entrepreneurship programs hold promise for both halves of the solution.

My next post will feature successful graduates of the Prison Entrepreneurship Program (PEP) in Texas, a highly successful program with a return-to-prison rate of less than 5-percent.

Prisoner’s Handwritten Petition Prompts Justices To Weigh Government Immunity

February 19, 2013 3:17 AM

The U.S. Supreme Court

J. Scott Applewhite/AP

This year marks the 50th anniversary of Gideon v. Wainwright, the Supreme Court’s landmark decision requiring the states to provide lawyers for poor people accused of committing crimes. Clarence Gideon, the defendant in that case, wrote his own petition to the high court in longhand, and Tuesday, the Supreme Court is hearing the case of another defendant who, in the longest of long shots, filed a handwritten petition from prison asking the justices for their help.

Kim Millbrook, the defendant in the case, is not nearly as sympathetic a figure as Gideon. After all, Gideon was acquitted at his re-trial after the Supreme Court ordered the state of Florida to provide him a lawyer. In contrast, Kim Millbrook’s conviction and 31-year prison sentence is notthe issue in this case. What is at issue is whether he can sue the United States government over allegations that he was assaulted by prison guards at the federal penitentiary in Lewisburg, Pa.

Millbrook claims that he was held down by one guard and forced to perform oral sex on another guard while a third prison guard stood watch. His case was thrown out by the lower courts without ruling on the merits of the allegations. Instead the lower courts dismissed the case on grounds of sovereign immunity — the concept that the government is immune from certain kinds of lawsuits.

When the case got to the Supreme Court, Millbrook gained an unexpected ally, sort of. The government initially argued that the court should not take Millbrook’s case. It then changed course and alerted the court to an issue Millbrook had not raised, but that lower courts across the country are divided on. The issue is whether federal law waives sovereign immunity and allows lawsuits against the United States for intentional wrongful acts by prison guards acting as law enforcement officials.

That is the question the justices are tackling Tuesday. To ensure all sides are adequately represented, the court appointed a lawyer to represent Millbrook and another one to represent the judgment of the lower courts. The federal government filed its own brief urging the Supreme Court to reverse the lower’s ruling on this issue.

Even if Millbrook wins the right to sue, though, there is serious doubt as to whether he will ultimately win his case. He is what is known in the trade as a “frequent filer” — he files lots of cases against the prisons where he has been forced to reside. And he has not yet won a single one of them.

Prisoner’s Handwritten Petition Prompts Justices To Weigh Government Immunity