The Supreme Court yesterday declined to review the Abscam convictions of two former Philadelphia City Council members who claimed they had been "entrapped" by the FBI.
It was the court's first, but by no means last, opportunity to get involved in the controversy over the constitutionality of the "sting" operation directed against members of Congress and local elected officials.
Without comment yesterday, the court turned down the appeals of Harry P. Jannotti and George X. Schwartz, the Philadelphia politicians convicted in 1980 in the undercover investigation by the FBI. They were videotaped taking thousands from an undercover agent.
The justices could still choose to review any of the seven or eight Abscam cases still in the appeals pipeline, including the U.S. District Court ruling of last month throwing out the case against former Florida representative Richard Kelly. The government is taking that to the Court of Appeals.
Also yesterday, a closely divided Supreme Court ruled that a defendant whose conviction is reversed because of weak evidence may be retried.
Justice Sandra Day O'Connor, writing for the 5-to-4 court, said that giving the prosecutors another chance in this situation does not violate the Constitution's double-jeopardy provision, which generally bars repeat prosecutions.
The ruling allows Florida authorities to retry Delbert Tibbs, accused of raping a woman and murdering her boyfriend after picking up the hitch-hiking couple in 1974.
The court ruled in 1978 that a reversal for insufficient evidence bars retrial. The case yesterday, on the other hand, involved a reversal based on the "weight of the evidence"--the Florida Supreme Court's disagreement with the Tibbs' jurors about the credibility of the evidence against him.
O'Connor wrote that one form of reversal, based on insufficiency of evidence, was tantamount to acquittal, after which retrial is forbidden. The Tibbs-type reversal, she said, represents a disagreement with jurors by an appeals court acting as "the thirteenth juror."
Justice Byron R. White, joined by Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun, dissented yesterday in Tibbs vs. Florida. In both types of reversals, White said, "the fact remains that the state failed to prove the defendant guilty in accordance with the evidentiary requirements of state law."
The court also upheld the right of states to determine their own methods for filling vacancies in state elective offices.
The case arose in Puerto Rico following the death of a Puerto Rico House of Representatives member in 1981. The law there, as in 16 states (including Maryland), gives the party that lost the seat control over filling it. It can appoint a replacement or conduct an election restricted to party-affiliated candidates.
Chief Justice Warren E. Burger, writing for a unanimous court, rejected a claim that this exclusivity violated a constitutional right to have such elections open to all qualified voters.
"Absent some clear constitutional limitation, Puerto Rico is free to structure its political system to meet its special concerns and political circumstances," Burger said in Rodriguez et al. vs. Popular Democratic Party et al.
The ruling was a posthumous victory for Abe Fortas, the former Supreme Court justice. Before he died in April, Fortas returned to the court to argue against the challenge to Puerto Rico's law.
In a third opinion yesterday, the court said that public transit workers have no right to sue in federal court over collective-bargaining breaches. An Amalgamated Transit Union local in Jackson, Tenn., had claimed access to the federal courts under an Urban Mass Transit Act provision preserving collective-bargaining rights for employes of private transit companies that have been turned over to public authorities.
Blackmun, writing for a unanimous court, said the Congress did not intend that result. The union's claims must be brought in state courts, he said in Jackson Transit Authority et al. vs. Local Division 1285 Amalgamated Transit Union, AFL-CIO-CLC.
It is a victory for public-transit managers, who prefer having their disputes judged under state rather than federal laws.