Two weeks ago, the U.S. Supreme Court summarily dumped a case brought by Visa, Inc. et al. because the petitioners got the court to take the case up saying it was about one issue and then relied on a different argument once they reached the merits stage.
It's not nice to bait-and-switch the nation's highest court. Yet lawyers for a habitual criminal who blew the head off a store clerk during a robbery may get away with doing exactly that. Capital defense lawyers are special, you see. Rules don't apply to them.
Here is the Question Presented as drafted by lawyers for Texas murderer Bobby James Moore:
It's not nice to bait-and-switch the nation's highest court. Yet lawyers for a habitual criminal who blew the head off a store clerk during a robbery may get away with doing exactly that. Capital defense lawyers are special, you see. Rules don't apply to them.
Here is the Question Presented as drafted by lawyers for Texas murderer Bobby James Moore:
Whether it violates the Eighth Amendment and this Court's decisions in Hall v. Florida, 134 S.Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.See any issue there about whether the Texas standard of Ex parte Briseno ever conformed to the subsequently "outdated" standards in the first place? Nope. It's not there. But today's oral argument was nearly all about that. The Chief Justice was not pleased, but he may not have a majority.
Clifford Sloan, for Moore, got up and rattled off the reasons why he thinks Texas has the standard for intellectual disability wrong.
On the other hand, it is also possible that the current Court will be evenly divided and wait for the confirmation of a ninth justice to actually decide the case.
Oh, and no, the Texas standard is not based on Lennie in John Steinbeck's Of Mice and Men. See pages 51-52 of the transcript.
CJLF's brief on the original question presented, as opposed to the question argued today, is here.
CHIEF JUSTICE ROBERTS: That's a long laundry list of objections you have. Your question presented, though, focused only on one, which is that it prohibits the use of current medical standards and requires outdated medical standards. And I think several of the other points you made are not encompassed within that question presented. And maybe there are questions that should be looked at, but they don't seem to be covered by that.It may come down to Justice Kennedy, once again. If he overlooks the bait-and-switch and votes to decide the merits, Moore may win on a decision addressing the extent to which the Texas standard deviates from the old DSM-IV and whether that is allowable. That would be a decision with limited impact on other states.* * *JUSTICE KENNEDY: I have the same question as --as the Chief Justice. It --it just seems to me the question presented doesn't cut to the heart of the case as you describe it.
My understanding of your argument --and again, I don't think it's wholly reflected in that question -- is that whether you use the most current or even slightly --slightly older medical standards, there is still a conflict.* * *JUSTICE KAGAN: We wouldn't need that, would we, Mr. Sloan? We could say that the Briseno standards are in conflict with the old Atkins standards, as well as the new ones. There wouldn't need to be a difference between the old ones and the new ones for you to win this case.
MR. SLOAN: That's correct, Your Honor.
CHIEF JUSTICE ROBERTS: But you got in the door by a question presented that is a little more eye-catching, which is that they prohibit the current standards and rely on the outdated one. And that's all it says. And I'm just wondering if you got yourself in the door with a --with a dramatic question presented and are now going back to a concern that was just as present, as I understand your argument, under the old standards.
On the other hand, it is also possible that the current Court will be evenly divided and wait for the confirmation of a ninth justice to actually decide the case.
Oh, and no, the Texas standard is not based on Lennie in John Steinbeck's Of Mice and Men. See pages 51-52 of the transcript.
CJLF's brief on the original question presented, as opposed to the question argued today, is here.
One wonders why murderers with no claim of innocence would get favored treatment. Well, we know the answer to that. It's appalling. What's worse--the Court will do nothing to explain why such succor is justified. So, it capriciously abandons the "Equal Justice Under Law" in favor of the idea that certain capital cases must be flyspecked based on subsequent legal developments.
Ok fine. But own it. What makes an appellate court lawful is that it explains its reasons for its actions. By having a sotto voce standard that is at odds with generally applicable legal rules is, by definition, lawless.
We've already seen this before: Maples v. Thomas.
Given this--could someone explain why state AGs giving courtesy delays is a good idea? By the by, the four Justices referred to in Roberts' concurrence haven't deigned to explain their reasons for Alabama murderer Thomas Arthur's stay.
States have the right to do everything in their power to resist this sort of nonsense from SCOTUS.
"Capital defense lawyers are special, you see. Rules don't apply to them."
Unfortunately, it goes well beyond capital defense lawyers. Once the client-uber-alles brand of "ethics" is accepted, rules become irrelevant in ANY sort of defense lawyering.
People wonder why lawyers have such a lousy reputation for honesty. You don't have to look far.
The problem is not the capital defense bar or the criminal defense bar---it is a judiciary that lets it get away with its tactics. There is, in my opinion, a very unseemly lese-majeste ethic at work when it comes to the judiciary.
Railing about the "specialness" of capital defense lawyers mistakes the effect for the cause. If I were representing that criminal, I'd play fast and loose too---knowing that judges like Justice "High School Science Experiment" Ginsburg will bail me out. My job is to represent my client, and there are unwritten rules that allow capital defense attorneys to do things like that.
The real problem is the courts (and Roberts is a culprit too), by tolerating this, undermine the rule of law. If capital murderers get favored (outside the rules) treatment from the highest court in the land, why should the average ordinary citizen have ANY respect for courts generally?
Any average citizen can see the lawlessness here, so why can't the bar? I wish a state AG had the guts to call it out. Theoretically, there should be no consequences--that there would be speaks volumes about the outsized role of the judiciary in this country.
Lest one forgets . . .
Chief Justice Roberts has more than countenanced "bait-and-switch" villainy
at the High Court, he shamelessly carried it across the finish line with the
'Affordable' Care Act.
"John Roberts changed the Affordable Care Act’s individual mandate into a tax
and thus rescued President Obama’s signature legislation.. this slight of hand
—or flick of the wrist--.."
The Obamacare "Tax" That Chief Justice Roberts Invented
by Ilya Shapiro, 5/12/14
~ www.thefiscaltimes.com/Columns/2015/11/19/Obamacare-s-Bait-and-Switch-
Has-Left-Consumers-Scrambling; www.forbes.com/sites/theapothecary/2014/07/27/obamacare-bait-and-switch-
on-steroids/#a7aee4e4b5de