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SCOTUS December Arguments

September 16, 2019 10:07 AM | Posted by Kent Scheidegger | No Comments
The U.S. Supreme Court announced its December oral argument calendar Friday. Several criminal and related cases are on the docket.

NY State Rifle & Pistol v. City of New York, No. 18-280 leads off on Monday, December 2, and will get the most press if it is not canceled. Subsequent changes in state and local law gun control laws provide substantial grounds to believe the case is moot.

McKinney v. Arizona, No. 18-1109 closes out the session on Wednesday, December 11. The case involves the Arizona practice of the Supreme Court reweighing the aggravating and mitigating circumstances itself rather than sending the case back to the trial court for a new sentencing hearing. Current Arizona law for new trials requires the jury to do the weighing as well as find the aggravating circumstance that makes the case eligible for the death penalty. The murderer and his friends have filed copious briefing to the effect that the state court must apply current law with only scant attention to whether current federal law (the only law SCOTUS has jurisdiction to review) requires the jury to do the weighing at all. In Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002), the question decided was unambiguously limited to the finding of the aggravating circumstance, not the weighing.
Continue reading SCOTUS December Arguments.

Who You Gonna Call? SCOTUS

February 25, 2019 8:19 AM | Posted by Kent Scheidegger | 1 Comment
The U.S. Supreme Court this morning busted the Ninth Circuit's practice of decision by ghost judges.

On the last business day of 2017, the Ninth Circuit counted the vote of a recently deceased judge who had concurred in an opinion but then died before it became final. As noted in this post, Judge Reinhardt announced a 2-1 decision "concurred in" by Judge Pregerson, who had died the month before. Judge Reinhardt himself did not have long to live.

Today's case of Yovino v. Rizo was a civil case re-heard in the Ninth Circuit by a pseudo-en-banc 11-judge panel. Although all 11 concurred in the judgment, only 5 others joined Judge Reinhardt's reasoning, and when the court goes en banc it is the precedent set by the reasoning that matters most, not merely who wins the case. Even though the vote was 5-5 among the judges living on the date of announcement, the Ninth said the late Judge Reinhardt's opinion was a majority opinion.

The Supreme Court summarily reversed, disapproving this practice.

When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge. For that reason, by statute he was without power to participate in the en banc court's decision at the time it was rendered.
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That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life,not for eternity.
Right, but then there is this:

With the exception of one recent decision issued by the Ninth Circuit after Judge Reinhardt's death but subsequently withdrawn, see supra, at 1 n., we are aware of no cases in which a court of appeals panel has purported to issue a binding decision that was joined at the time of release by less than a quorum of the judges who were alive at that time.
Really? No one told SCOTUS about Hernandez v. Chappell, described above? The Ninth granted rehearing in that case (CJLF's brief supporting rehearing is here), and the new panel correctly decided it. See this post. But I am surprised it wasn't mentioned in the briefing in this case.

Waiver, Forfeiture, Appeal, and Sentencing Guidelines

January 14, 2019 11:11 AM | Posted by Kent Scheidegger | No Comments
From the Ninth Circuit en banc today in United States v. Depue, No. 15-10553, unanimous opinion by Judge Berzon:

This appeal is, as Yogi Berra did or did not say, déjà vu all over again.1 We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc). We reaffirm today this distinction between waiver and forfeiture.
Continue reading Waiver, Forfeiture, Appeal, and Sentencing Guidelines.
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