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Criminal Cases in the Supreme Court Term -- Part 1

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Here is the first part of my two-part wrapup of the criminal cases in the Supreme Court term from October 2014 to July 2015.

The Big Cases

Ohio v. Clark, June 18, 2015, 9-0 on the judgment, two dissenting votes on the main issue and one hard to classify vote.

The question is whether a statement of a very young child to a teacher regarding who abused him is "testimonial" and therefore subject to exclusion under the Confrontation Clause, and whether it makes a different that the teacher is a mandatory reporter under the state's child abuse reporting statute.  This opinion goes a very long way toward cutting back the expansive definition of "testimonial" statements - and therefore the range of evidence excluded by the Confrontation Clause - that had been stated in Davis v. Washington (2006).  Although the Court does not categorically shield all statements to anyone other than law enforcement officers from exclusion under Crawford, we can see that such exclusion is going to be very much the exception and not the rule.  State-law hearsay rules will now be the primary authority for whether such statements are admitted. 

Justice Alito wrote the opinion.  Justice Scalia, joined by Justice Ginsburg, would preserve Davis in its original breadth, though they agree that it is not so broad as to cover this child's statements.  Justice Thomas continues to go his own way, focusing on the formality of the statements, a criterion obviously lacking here.

This case will likely have the largest impact of any of the term.  It is a huge win for prosecuting violent crime generally and domestic violence in particular.  The fact that only two Justices voted for a broad definition of "testimonial" statements is particularly striking.  CJLF's brief is here.

Glossip v. Gross, June 29, 2015, 5-4.  Justice Alito wrote the opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.  Justice Sotomayor wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Kagan.

This case was a big win for the enforcement of the death penalty and a huge loss for the anti-DP strategy of cutting off the supply of the preferred drugs for lethal injection by boycott.  The Court says that as long as the death penalty is constitutional there must be a way to enforce it, and someone attacking the method in use must show, among other things, that a better one is available.

For a longer article, see my symposium contribution at SCOTUSblog.  CJLF's brief is here.

Justice Breyer wrote a dissent that uncritically regurgitates every piece of anti-death-penalty spin that has come down the pike in the last couple of decades.  See this post by Harry Weller, noting that Justice Breyer cites a study as if it were authoritative even though it has been tried in court and found to be invalid.  This is just one example.  Justice Scalia has a concurrence responding to this opinion.


Johnson v. United States, June 26, 2015, 8-1 on the judgment, 6-3 on the main issue.

This case is potentially far more important than the actual provision at issue.  The Armed Career Criminal Act has a "three strikes" sentencing provision for three-time violent felons.  The bulk of the definition of "violent" is unobjectionable.  However, the Court declared the "residual clause" void for being too vague, not just as applied to this defendant or the circumstances of this case, but wiping it off the books altogether.

Although the Supreme Court has many times thrown out laws impacting freedom of speech as "overbroad," defendants attacking ordinary criminal statutes as vague have generally had to show them to be vague as applied to their own conduct, not just in the abstract.  This goes back as least as far as Parker v. Levy (1974), upholding a court-martial for "conduct unbecoming an officer and a gentleman."  However vague that might be as applied to other conduct, it clearly applied to Levy's exhorting enlisted men to disobey their orders.  The rule was reinforced in United States v. Salerno (1987), holding that a law could only be challenged on its face if "no set of circumstances exists under which the Act would be valid."

Yet in Johnson, Justice Scalia, who joined Salerno, wrote the opinion for the Court throwing out this clause entirely, even though there are circumstances where it would clearly apply.  It remains to be seen whether this is a lone aberration or whether the Levy/Salerno rule has been silently overruled, to be formally discarded later.

Justices Kennedy and Thomas concurred in the judgment, believing the clause is constitutional but does not apply to Johnson.  Justice Alito dissented.


The Missed Opportunities

These are the cases that I thought might be big going into the term but ended up not deciding much.

Elonis v. United States, June 1, 2015, 7-1-1.  This is the Facebook threats case that we thought would make a major statement on what kinds of threats are unprotected speech under the First Amendment.  It didn't.  We don't even know if the statements in the particular case are a crime or not.

We know that a jury cannot be instructed to merely find that a reasonable person would find the statements threatening.  But what mental state of the defendant do they need to find?  The Court follows the Model Penal Code structure of mens rea (culpable mental state) and says purpose to threaten or knowledge the statements will be perceived as threats will do.  But what about the key question of reckless disregard of whether they will be taken as threats?  If yes, the law is little changed as a practical matter, and the same people will be convicted, by and large.  The Court doesn't say.  

Given the unusual six months the Court took from argument to opinion and the ultimate narrow result, I suspect a blockbuster was in the works, but it ended up being narrowed to hold together a majority.  That is unfortunate.  See prior posts here and here.

Chief Justice Roberts wrote the opinion.  Justice Alito concurred in part and dissented in part.  Justice Thomas dissented.


Jennings v. Stephens, January 14, 2015, 6-3.  Justice Scalia wrote the opinion.  Justice Thomas dissented, joined by Justices Kennedy and Alito.

When a habeas corpus petitioner prevails and obtains relief from his judgment and the state appeals, the petitioner does not need to file a cross-appeal or get a certificate of appealability to argue other grounds rejected by the District Court, as long as acceptance of them by the Court of Appeals would not give him greater relief than he won in the District Court.

I had hoped that this case would finally define the scope of a "claim" under the 1996 habeas reforms passed by Congress, an issue I have been arguing since Bell v. Kelly, a case the Court took up and then dropped seven years ago.  I will keep on keeping on.


The Fourth Amendment

All four search-and-seizure cases involve questions of the substantive reach of the Fourth Amendment, not the remedy of exclusion of evidence under Mapp v. Ohio.  For a good many years now, criminal defendants and civil plaintiffs have done pretty well on the substantive Fourth Amendment, and this term was no exception.  They prevailed in three out of four.  This is cited by those who simply count results as part of a tilt to the "left" on the high court, but I don't have a problem with any of these results.


Heien v. North Carolina, December 15, 2014, 8-1.  This case involves a police officer who stopped a car based on his understanding of the law on non-working brake lights, a belief that was reasonable, not contrary to any published decision to that date, and quite possibly correct, though the state court of appeals in this case later decided otherwise.  Is that an unreasonable seizure under the Fourth Amendment?  No.

Chief Justice Roberts wrote the opinion, joined by all except Justice Sotomayor, who dissented. Justice Kagan, joined by Justice Ginsburg, wrote a concurring opinion to emphasize the narrowness of the decision.


City of Los Angeles v. Patel, June 22, 2015, 5-4.  L.A. has an ordinance that hotels must keep guest registries and police can inspect them at virtually any time.

"We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review." 

The required review is not much.  "A neutral decisionmaker, including an administrative law judge, would then review the subpoenaed party's objections before deciding whether the subpoena is enforceable. Given the limited grounds on which a motion to quash can be granted, such challenges will likely be rare."  I doubt this case will be much of a hindrance in the policing of by-the-hour lodgings.

Justice Sotomayor wrote the opinion, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justices Scalia wrote a dissent joined by Chief Justice Roberts and Justice Thomas.  Justice Alito wrote a dissent joined by Justice Thomas.


Grady v. North Carolina, March 30, 2015, 9-0.  Ankle-bracelet electronic monitoring is a search, and a requirement of it must pass Fourth Amendment muster.  No surprise after United States v. Jones (2012).  The opinion is per curiam, meaning from the Court as a whole with no individual author listed.


Rodriguez v. United States, April 21, 2015, 6-3.  An officer who made a legitimate traffic stop and completed it with the issuance of a warning needed additional reasonable suspicion to further detain the car for another eight minutes to get backup and have his four-legged partner, Floyd, do a walk-and-sniff-around.

Justice Ginsburg wrote the opinion, joined by Chief Justice Roberts and Justices Scalia, Breyer, Sotomayor, and Kagan.  Justice Thomas wrote a dissent saying the stop was conducted reasonably, and besides the officer did have the reasonable suspicion of drug activity that the majority says he needed.  Justice Alito joined and wrote an additional dissent on the latter point.  Justice Kennedy joined Justice Thomas on the first point but did not think the Supreme Court should address the second one until the Court of Appeals had the chance to address it first.


Habeas Corpus

Davis v. Ayala, June 18, 2015, 5-4.  This case deals with the puzzling problem created by the rules that (1) there are two different standards for deciding when an error is harmless, a stricter one for direct appeal and a more relaxed one for habeas corpus, but (2) federal habeas corpus courts are required to defer to prior state court decisions on the merits if they are within the realm of reasonable disagreement.  A prior opinion had indicated that a federal habeas court could go straight to its own evaluation of the more relaxed standard, implying that if it was met then a decision against the defendant on the tighter standard would necessarily have been unreasonable.

Justice Alito's opinion for the Court seems to back off on that and say that the second rule remains effective in this situation.  It was error to exclude the defense lawyer from the prosecutor's presentation of reasons why his peremptory challenges were race-neutral, but the California Supreme Court decided it had enough of a record to decide it would have made no difference if he had been there.  Applying both rules, the Court held, "The exclusion of Ayala's attorney from part of the Batson hearing was harmless error. There is no basis for finding that Ayala suffered actual prejudice, and the decision of the California Supreme Court represented an entirely reasonable application of controlling precedent."  Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined this opinion.  

Justice Kennedy wrote a strange concurring opinion about the fact that Ayala is in solitary confinement.  Justice Thomas noted in his own concurrence "that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest."

One might also note that the length of time Ayala has been on death row is the Supreme Court's fault to a large degree.  On October 2, 2000, the Supreme Court rejected California's request for review of the Ninth Circuit's erroneous holding that California did not qualify for the federal habeas "fast track" under the pre-2006 version of Chapter 154 of Title 28 of the U.S. Code.  Ayala filed his federal habeas corpus petition in 2002.  Had the fast track been in place, his case would have been completed about a decade ago.

Justice Sotomayor dissents, joined by Justices Ginsburg, Breyer, and Kagan.


Brumfield v. Cain, June 18, 2015, 5-4.  This is a procedurally quirky case of a postconviction Atkins claim, i.e., that the murderer is exempt from execution because he is intellectually disabled (mentally retarded).  

The state trial court denied a hearing on the claim.  The standard for a hearing under state law is that the defendant raise a reasonable ground to believe he is intellectually disabled.  The defendant had an IQ test of 75 and some evidence of adaptive deficits that the Supreme Court said was clearly enough to raise a claim.  The state court finding to the contrary was an unreasonable finding of fact under 28 U.S.C. ยง2254(d)(2), thereby entitling him to de novo review of his claim in federal court free of the deference limitation.

The moral for prosecutors is that if the defendant has any kind of claim, don't fight the evidentiary hearing in state court.  If the hearing had gone forward in this case, the judge would likely have made a factual finding that Brumfield is not intellectually disabled, and that would have been far more effective in blocking relitigation in federal court than the ruling he actually issued.

Justice Sotomayor wrote the opinion, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justice Thomas wrote a dissent with a strong victims' rights theme.  Chief Justice Roberts, Justice Scalia, and Justice Alito join all but one part.  Justice Alito explains that the part about the story of the victim's son after the murder, "is inspiring and will serve a very beneficial purpose if widely read, but I do not want to suggest that it is essential to the legal analysis in this case."


Christeson v. Roper, January 20, 2015, 7-2.  Petitioner should have been allowed substitute counsel when his first lawyers blew the deadline.  Per curiam opinion.  Justice Alito, joined by Justice Thomas, dissented from the Court's summary disposition and believes the lower court should not be reversed without full briefing and argument.

See also Jennings v. Stephens in the Missed Opportunities section and three unanimous per curiam opinions in the Summary Error Corrections section at the end of Part 2.

Continued in Part 2 ...

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