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Supreme Court Kicks off New Term With Kim Kardashian and Double Jeopardy

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By Casey C. Sullivan, Esq. on October 04, 2016 1:56 PM

The Supreme Court ushered in the new term with its first two oral arguments today, hearing a pair of criminal law cases dealing with double jeopardy and bank fraud. And those arguments featured an unexpected pop culture reference, as Kim Kardashian briefly became the subject of a justice's hypothetical.

Though the short-staffed Court has declined to hear many high-profile, controversial cases this year, possibly to avoid 4-4 splits, the first oral arguments of the term are a reminder that even the less controversial cases can be plenty interesting -- as long as you throw in a Kardashian or two.

A Look at Double Jeopardy

The first case argued before the Supreme Court this term is also one of the more interesting ones, capable of holding its own sans reality star backing. Bravo-Fernandez v. United States raises compelling questions about the Fifth Amendment's ban on double jeopardy.

Here, Juan Bravo-Fernandez, a Puerto Rican business man, and Hector Martinez-Maldonado, a Puerto Rican senator, were convicted of bribery but acquitted of conspiracy and traveling across state lines to commit a bribe. The jury's holdings were inconsistent and the convictions tossed out on appeal, due to improper jury instructions. When the government moved to reprosecute, the men claimed that the Double Jeopardy Clause prohibited another trial.

At oral arguments, the justices didn't seem convinced. Justices Ginsburg and Kagan repeatedly went back and forth with Lisa Blatt, who argued for the petitioners. The men's acquittals on travel and conspiracy meant that the jury rejected all the government's arguments, Blatt said. But there could be another explanation, Justice Ginsburg posited. "If we're trying to find out what this jury did, isn't it a reasonable assumption that they convicted on the bribery for which there was much evidence," she asked. "They thought that having the compound crimes the conspiracy and the travel, was just laying it on too thick, so they weren't going to convict on those."

Justice Kagan wondered if the arguments were "anything more than rhetoric."

Bank Fraud and Kim Kardashian

From there, the Court continued to Shaw v. United States, a case dealing with federal bank fraud laws. Lawrence Shaw was convicted of bank fraud after he stole more than $300,000 from another's checking account.

But that theft wasn't fraud on the bank, Shaw contends, it was not a "scheme to defraud a financial institution," since there was no specific intent to cheat the bank. After all, it wasn't the bank's money he stole.

Shaw, too, had a tough time convincing the justices. Shaw might not have caused a loss for the bank, Justice Alito noted, but he did deprive them of their property interest in the money.

And here's where Kim Kardashian came in. The reality T.V. superstar was recently bound, gagged, and robbed of millions in jewelry in Paris. Under Shaw's theory, Justice Breyer wondered, if Kardashian's robbers believed that her jewelry was insured and thus she would suffer no loss, "it's not theft?"

"It would depend on the language of the statute," Deputy Federal Public Defender Koren Bell responded.

A Trend for Upcoming Oral Arguments: More Women

Today's arguments featured four lawyers altogether, three of them women. In addition to Blatt and Bell, Elizabeth Prelogar argued for the United States in Bravo-Fernandez; Anthony Yang, the only man appearing before the Court today, argued for the government in Shaw.

This female-heavy lineup marks a new trend in oral arguments. While the lawyers appearing before the justices are typically a small group of men, the first two weeks of oral arguments will be characterized by a high proportion of female attorneys; eight of the 18 lawyers to appear before the Court in the October arguments will be women, according to a recent report by the National Law Journal. That's one shy of gender parity, but it's much closer than oral arguments usually get.

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