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Today, the U.S. Supreme Court heard oral argument in the case of McKinney v. Arizona, No. 18-1109. The transcript is here.

Regrettably, an essential issue in the case was barely mentioned. The attorney for McKinney said, "This Court's decisions in Ring and Hurst require a jury sentencing." That is wrong, yet the attorney for Arizona completely failed to challenge it. The consequences could be catastrophic.

SCOTUS December Arguments

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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.
In most American jurisdictions, there are provisions by which a person who could be incarcerated for an offense can be released but subject to supervision under conditions. If he violates the conditions, he can be sent to jail or prison with a more expedited procedure and lower burden of proof than would be required for a new criminal conviction. These arrangements include probation, parole, and, in the federal system, "supervised release."

In most cases, the time that the conditions-violator spends behind bars is time he could have spent there for the original offense. However, in 18 U.S.C. §3583(k), Congress provided that violators found to have committed certain new offenses, including possession of child pornography, must receive an additional prison term of five years, not limited by the term for the original offense.

Not surprisingly, the Supreme Court held today that this term is more like a new conviction than a traditional parole/probation revocation, and it is subject to the requirements of trial by jury and proof beyond a reasonable doubt under the Apprendi line of cases. The case is United States v. Haymond, No. 17-1672.
On December 29, 2017, the U.S. Court of Appeals for the Ninth Circuit overturned the conviction of double murderer/rapist Francis Hernandez in a split decision. "Joining" Judge Reinhardt's opinion to form a majority was Judge Harry Pregerson, who had died a month earlier. See this post. Judge Jacqueline Nguyen dissented.

Judge Reinhardt died a few months later.

The case was reheard by a reconstituted panel, with Judges Kim Wardlaw and Milan Smith drawn to replace the departed judges. A new opinion was filed today upholding the district court's denial of habeas relief. Although the trial attorney was deemed ineffective for not pursuing a diminished capacity defense, that omission was not prejudicial because the case against the defendant was so overwhelming that there is no reasonable probability it would have succeeded.

So to avoid being labeled ineffective, the defense lawyer has to make the patently meritless mental defense. You have to throw the "Hail Mary pass" when it's the only play you have.

Judge Reinhardt's theory was that the standard for prejudice in the guilt phase of a trial (as opposed to the penalty phase of a capital case in a state with a single-juror-veto system) is whether there is a reasonable probability that a single juror would have bought the argument. That theory is conspicuously absent from today's opinion. That was the principal point of CJLF's amicus brief in the case.
The U.S. Supreme Court declined to take up two cases over written dissents. Hester v. United States involves a question of whether the right to jury trial extends to the facts needed to impose a restitution fine. Lance v. Sellers involves a Georgia Supreme Court decision in a capital case on the "prejudice" prong of Strickland v. Washington, i.e., that no relief is available because the case was so overwhelming that there is no reasonable probability that it would have come out differently if the jury had been presented with the omitted evidence.

Amy Howe describes these two cases further in her report on the day's SCOTUS activities.

SCOTUS Takes Up Two Criminal Cases

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The U.S. Supreme Court released a short orders list from its conference today, presumably so the newly taken up cases can be briefed as soon as possible to get them on the oral argument calendar. There are two criminal cases.

Supervised released in the federal criminal system gets more scrutiny in Mont v. United States, No. 17-8995. I will quote the Solicitor General's version of the Question Presented because the petitioner's borders on incomprehensible:
"Whether a period of supervised release for one offense is tolled under 18 U.S.C. 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant's term of imprisonment for another offense."

Flowers v. Mississippi, No. 17-9572 is back again after a "grant, vacate, and remand" order two years ago. The order directed the Mississippi Supreme Court to look at Flowers's claim of racial discrimination in jury selection again after considering a then-new SCOTUS precedent. The petitioner's Questions Presented page is another case study in how not to do it and will doubtless be skewered by Bill Bilderback at next year's capital litigation conference. The Court wrote its own QP, limiting review to: "Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U. S. 79 (1986), in this case."

Expect Monday's orders list to be all certiorari denials, no grants.
In an earlier time, convicted defendants were regularly sentenced to long prison terms with eligibility for parole well before their time was up. Parole came with conditions (like, e.g., don't go back, Jack, and do it again). Parole could be revoked for violation of the conditions, and the violators could be sent back to prison. Because he was going back to serve out some portion of his original sentence for the original crime, the violation did not have to be found by a jury or proved beyond a reasonable doubt.

Congress abolished parole in the federal system, and many sentences now have periods of "supervised release" tacked on as authorized by statute. For persons convicted of possession of child pornography (18 U.S.C. § 2252), the term can be anywhere from five years to life under 18 U.S.C. § 3583(k). Revocation is mandatory upon a new violation, and the minimum new term is five years.

Is this mode of proceeding constitutional under the cases of Apprendi v. New Jersey, Blakely v. Washington, and subsequent cases?

The Tenth Circuit declared the statute unconstitutional in the case of Andre Hammond, a viewer of child pornography who is probably doing it again but who is covering his tracks well enough that a violation was not proved beyond a reasonable doubt. He had deleted his browsing history the day before the probation officers seized his smart phone. I wouldn't be surprised if he deleted it every day.

The Solicitor General petitioned for the Supreme Court to review the Tenth Circuit's decision. On Friday, the Supreme Court took the case up: United States v. Hammond, No. 17-1672.

This is an area where the Supreme Court does not divide on the usual ideological lines. Throughout the Apprendi line of cases, the late Justice Scalia was leading the charge, believing that use of judge-found "sentencing factors" often violated the constitutional right to jury trial as originally understood. That put him on the defense side. Policy wonk Justice Breyer was the leading defender of the mid-80s sentencing reforms, which put him on the prosecution side in these cases.

Watch for oral argument in a few months and a decision before the end of the term in late June or early July.
In Hurst v. Florida (2016) the U.S. Supreme Court decided that Florida's death-sentencing system was invalid because the jury did not have to be unanimous in finding the "aggravating circumstance" that made a case eligible for consideration of the death penalty.  Decades earlier, the high court had considered precisely the same question and decided that the judge's independent finding of the needed fact was sufficient.  So much for precedent and reliance.

What about cases where the jury was unanimous, even though not instructed that it had to be?  The Florida Supreme Court has affirmed the judgments in such cases, and today the U.S. Supreme Court declined to review two more of them:  Middleton v. Florida, No. 17-6850 and Tundidor v. Florida, No. 17-6735.  Justice Sotomayor, joined by Justice Ginsburg, dissents on the ground that the jury was told that its role was only advisory.

Justice Breyer also dissents based on his view that the jury must be unanimous on the final sentence, not just the eligibility determination, and that this is required by the Eighth Amendment, not the Sixth.  The unanimity requirement has been embraced by the high courts of Florida and Delaware, but basing it on the Eighth Amendment is an idiosyncratic view of Justice Breyer. 

I also wish the high court would take up a case on unanimity in the selection decision, as distinguished from eligibility, to confirm that the Alabama's Supreme Court is right and that Florida's and Delaware's are wrong.  What are they waiting for?  This case isn't the vehicle, but they have passed on some good ones.
Last November, I noted the introduction of H.R. 4493 by Pennsylvania Congressmen Marino and Barletta.  This bill would eliminate the nonsensical "single-juror veto" system in the penalty phase of federal capital cases, replacing it with a true unanimity requirement where the jury must be unanimous one way or the other, as in the guilt phase.

On Wednesday, Senators Toomey, Cotton, Cornyn, and Cruz introduced a parallel bill in the Senate, S. 2389.

Death Penalty Focus is predictably unhappy.  They quote a capital defense lawyer warning in grave tones, "Obviously, this bill would invite a lot of constitutional scrutiny."

Seriously?  California has had this law since 1978.  That's eight years of review by the California Supreme Court under the reign of the notorious Rose Bird followed by over 30 years of scrutiny by the federal Ninth Circuit.  If two of the most vehemently anti-death-penalty courts in American history haven't found a constitutional problem with this law in four decades, doesn't that indicate it is quite solid?

Retrial Following Partially Hung Jury

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When a jury convicts on one charge and hangs on another, what should the court tell the second jury about the first case?  The California Supreme Court decided yesterday in People v. Hicks, S232218, that it is error to tell the jury specifically about the prior conviction, but the court may instruct the jury upon request:

Sometimes cases are tried in segments. The only question in this segment of the proceedings is whether the prosecution has proved the charge of murder. In deciding this question, you must not let the issue of punishment enter into your deliberations. Nor are you to speculate about whether the defendant may have been, or may be, held criminally responsible for his conduct in some other segment of the proceedings.

Opinion by Justice Chin (6-1), Justice Liu dissenting.
The Sixth Amendment guarantees "an impartial jury of the State and district whereof the crime shall have been committed."  It doesn't say anything about them being awake.  Nicole Hong reports for the WSJ:

The right to a jury trial is a pillar of America's justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years.

The problem these days is making sure jurors stay awake.

*      *      *

"From time immemorial, jurors have been falling asleep because from time immemorial, lawyers have been boring," says John Gleeson, who was a federal judge in Brooklyn for 22 years. "We're the dullest people in the world, for Christ's sake."

A quadruple murderer whom 11 out of 12 jurors believed should be executed has been let off with life in prison due to the state's ill-conceived single-juror veto law.  AP reports (emphasis added):

A Florida man convicted of killing his ex-girlfriend, her new boyfriend and her parents has avoided the death penalty.

The Tampa Bay Times reports 11 of 12 jurors voted Tuesday for 32-year-old Adam Matos to be executed, but without unanimous agreement, Matos automatically received a life sentence. The jury convicted him last week of four counts of first-degree murder.

Authorities say Matos fatally shot Megan Brown and her father, Greg Brown, at their Hudson home in 2014. He also fatally beat Margaret Brown and Nick Leonard with a hammer, jurors heard.

When the Hurst-fix bill was going through the Florida Legislature, I told everyone who would listen that a single-juror veto system (1) is not constitutionally required; and (2) will lead to arbitrary results and miscarriages of justice.  Nobody was interested.  This is the result.

Once more, with feeling, the right way to do it is the way Arizona and California do it.  The jury must be unanimous one way or the other to reach a verdict, just like in the guilt phase.  If the jury hangs in the penalty phase, declare a mistrial and empanel a new jury, just like in the guilt phase.  Why can't everyone who isn't dead set against the death penalty see that?

Materiality

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Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.

Delaware DP Reinstatement Bill

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Last August, the Delaware Supreme Court seriously misinterpreted the U.S. Supreme Court's decision in Hurst v. Florida.  In this post at the time, I asked, "Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?"  Regrettably, the answer was no.

A bill to "fix" the system that isn't actually broken has passed out of committee to the floor of the House, Ian Gronau reports for the Delaware State News.  A floor vote scheduled for today has been postponed and is expected Tuesday, WMDT reports.

Regrettably, the bill would adopt what I call a "single-juror veto" law as opposed to a true unanimity law.  Single-juror veto laws have resulted in gross miscarriages of justice, including the Aurora theater shooting case in Colorado and the Carnation murders in Washington State.  See also this post.

Impeaching Jury Verdicts

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After a jury has delivered its verdict and judgment has been entered, can that judgment be attacked with juror affidavits about what went on during jury deliberations?  The general rule, going far back into history, is no.  Jurors should be free to engage in uninhibited discussion of the case, without worrying about being interrogated about what was said during that deliberation.

The case of Peña-Rodriguez v. Colorado, No. 15-606, put this rule to a stress test.  In this case, the defendant was charged with "unlawful sexual contact, and attempted sexual assault on a child" for assaulting two teenage girls in a restroom.  One juror held stereotypical views of how Mexican men treat women.  Colorado adheres to the traditional strict view of the no-impeachment rule.  Does the Constitution require piercing the veil in these circumstances?  The Colorado Supreme Court said no, 4-3.  Today the United States Supreme Court said yes, 5-3.

Justice Kennedy assures us that this exception is a narrow one.  We've heard that before.

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