Recently in U.S. Supreme Court Category

Eighth Time's the Charm

Hit man and repeat murderer Thomas Arthur was finally executed in Alabama last night after dodging seven prior execution dates.   Kim Chandler has this story for AP.

Arthur filed a last-minute petition in the U.S. Supreme Court, and Justice Thomas (the assigned Circuit Justice for the Eleventh Circuit, including Alabama) granted a temporary stay while the Court considered it.  The Court lifted the stay and denied relief barely in time for the execution to be carried out before the warrant expired at midnight.

The petition had to do with the state's use of midazolam as the first drug of the protocol.  An additional wrinkle was the defendant's request for his lawyer to have a cell phone to make a call if things went badly.  Justice Sotomayor dissented alone.

The midazolam problem is entirely artificial and entirely unnecessary.  The federal government needs to bring down the barriers that are presently preventing the states from importing barbiturates from willing suppliers in Asia.  Is anyone in the government paying attention?

Update:  Kim Chandler and Jay Reeves have this follow-up story for AP on racing the clock.
Today was pretty much a nothingburger for SCOTUS criminal law, so readers might be wondering what is left for decision before the Justices clear out of D.C. ahead of the dog days of summer.  Here is a rundown of criminal and related cases remaining.

  • Hernandez v. Mesa, No. 15-118, argued February 21.  Civil case arising out of a shooting by a border patrol agent across the border from El Paso, Texas into Juarez, Chihuahua.  CJLF filed an amicus brief in support of Agent Mesa.
  • Packingham v. North Carolina, No. 15-1194, argued February 27. Restriction of social media access for convicted sex offender.
  • Jennings v. Rodriguez, No. 15-1204, argued November 30.  Bond hearings for aliens detained pending deportation.
  • Ashcroft v. Abbasi, No. 15-1359 and two companion cases, argued January 18.  Suing government officials for detentions in the wake of 9/11.
  • Turner v. United States, No. 15-1503 and companion case, argued March 29.  Brady nondisclosure of evidence issues.
  • Honeycutt v. United States, No. 16-142, argued March 29.  Forfeiture liability in conspiracy.
  • Weaver v. Massachusetts, No. 16-240, argued April 19.  Standard of reversible error for ineffective assistance in regard to a "structural error."  CJLF filed an amicus brief in support of Massachusetts.
  • Lee v. United States, No. 16-327, argued March 28.  Guilty pleas, ineffective assistance, and deficient immigration consequences advice.
  • Los Angeles County v. Mendez, No. 16-639, argued March 22.  Considering provocation in deciding whether police used excessive force.
  • McWilliams v. Dunn, No. 16-5294, argued April 24.  Whether Ake v. Oklahoma requires that expert appointed be an independent one to be on the defense team as opposed to a neutral evaluation reported to both parties.
  • Davila v. Davis, No. 16-6219, argued April 24.  On claim of ineffective assistance of appellate counsel, defaulted on state habeas and raised for first time in federal court, whether alleged ineffectiveness of state habeas lawyer is recognized as "cause" for default, reopening the claim for federal court resolution.  CJLF filed an amicus brief in support of Texas.

Voter ID Case Fizzles

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What should the Supreme Court do when a state has asked it to take up a case but after an election the new governor moves to dismiss the certiorari petition?  Dismissal is generally a given when the party who asked the court to take the case no longer wants it taken, but in the North Carolina voter ID case, North Carolina v. North Carolina State Conference of the NAACP, the legislature moved to intervene, muddying the waters.  The simplest thing to do is what the high court does in 99% of the cases it is asked to take, deny the certiorari petition without comment.

In this case, though, Chief Justice Roberts did add some comments, individually and not for the court.
Andrew Hamm at SCOTUSblog reports on a panel discussion at the Supreme Court Historical Society and the reminiscence of Timothy Dyk, who in 1962 was a law clerk to Chief Justice Earl Warren.

Solicitor General Hearing

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Tony Mauro reports for the NLJ (registration required) on the confirmation hearing for Solicitor General nominee Noel Francisco.  On one particularly important point: 

Asked by committee chairman Sen. Chuck Grassley, R-Iowa, if he would be able to defend acts of Congress with which he personally disagreed, Francisco replied, "Absolutely, senator." He qualified the answer slightly, as past solicitors general have done, pledging he would defend statutes "whenever a reasonable argument can be made" in their favor, except for "the very narrow category" of laws that improperly impinge on the president's powers under Article II of the Constitution.

"Reasonable argument" has been defined with unreasonable narrowness by some SG's.  The most egregious case was Dickerson v. United States, regarding the statute that challenged the Miranda rule.  Reasonable arguments could be made defending that statute, and Bill, I, Paul Cassell, and the Fourth Circuit, among others, all made such arguments, but the Clinton Administration SG attacked the statute instead of defending it.

Conference Day At SCOTUS

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Today is conference day at the U.S. Supreme Court.  Kate Howard has the SCOTUSblog "Petitions to Watch" list here.  Lots of Fourth Amendment cell phone cases are on tap.  The California gun control case of Peruta v. California is also on the list.

Florida v. Hurst, asking the high court to review the Florida Supreme Court's misinterpretation of its prior decision in the same case, is up next week.  See this post from December on the state split and why it needs to be resolved.

The Wichita Massacre on Remand

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John Hanna reports for AP:

Kansas' top court wrestled Thursday with whether it can mandate new, separate sentencings for two brothers facing execution for four notorious slayings that became known as "the Wichita massacre."

Jonathan and Reginald Carr had a joint trial and sentencing hearing over dozens of crimes in Wichita in December 2000 that ended with three men and a woman shot to death in a snow-covered soccer field. The crimes were among the most notorious in the state since the 1959 slayings of a western Kansas family that inspired Truman Capote's book "In Cold Blood."

This is the second time the Kansas court is considering whether the brothers -- who turned on each other at trial -- should have been sentenced separately. The court in 2014 listed their being tried and sentenced together as among the most serious flaws that made the court proceedings so unfair that the men should be re-sentenced, but the U.S. Supreme Court ordered another review.

BAC test evidence and DUI

In Birchfield v. North Dakota, the Supreme Court held that breath tests, but not blood tests, may be administered without a warrant as a search incident to lawful arrest for drunk driving.  The Court also held that motorists may not be criminally punished for refusing to submit to a blood test on the basis of legally implied consent.  In Missouri v. McNeely, a plurality of the Court held that the natural dissipation of alcohol in a motorist's blood stream alone does not create a per se exigency that would justify a non-consensual blood draw without a warrant.

Criminal Justice Legal Foundation filed a brief in a companion case to Birchfield arguing that a motorist's statutorily implied consent to submit to a search of his or her breath, blood, or urine after lawful arrest for suspicion of DUI falls within the consent exception to the Fourth Amendment's warrant requirement.  We argued that requiring all law enforcement officers to secure a warrant after lawful arrest is impractical due to the vast differences in resources in some jurisdictions.  We also argued that it was reasonable for a state to mandate consent as an alternative to a warrant as a condition of using its public roadways.  The public's interest in protecting innocent people and keeping drunkards off the roads is significant in comparison to the privacy interests of an arrested motorist who made the choice to drink and drive.

Last week, the high Court's jurisprudence tied the hands of law enforcement and hindered prosecutors from obtaining probative evidence of blood alcohol concentration levels in at least two incidences.

Last week, I commented on Justice Sotomayor's dissent in the McGehee case from Arkansas.  She said that the Supreme Court should stay the Arkansas executions to resolve a difference of opinion between federal courts of appeals regarding the availability of an alternative method of execution when an inmate claims the state's method creates an excessive risk of pain.

My comment at the time was that there was not yet a circuit split that was ripe for Supreme Court review because the decision of a Sixth Circuit panel was not yet that circuit's final word.  The court might take up the case for rehearing before the full court (en banc).

Sure enough, today the Sixth did exactly that.

Holding the Line On Finality?

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U. Tex. Law Professor Steve Vladeck has this post at SCOTUSblog on yesterday's argument in Davila v. Davis.  This is the case of a Houston gang member who wanted to get a member of a rival gang, so he opened fire with an AK-47-type weapon on a porch full of women and children having cake and ice cream at a child's birthday party.  Steve thinks Texas will prevail, and the question is how narrowly or broadly.  I was also encouraged by the argument transcript, but I am glad to have this independent, in-person observation.

After the break are the background of the case and my notes on the argument transcript.
You know it will be a bad day when you are arguing for the defendant in the Supreme Court and the Chief Justice quotes Professor Wayne LaFave on point against your argument.  LaFave is the author of three leading treatises on criminal law and is consistently pro-defendant on virtually all debatable questions.  So when the CJ cited him in the argument in McWilliams v. Dunn this morning, advocate Stephen Bright could do little more than stammer out a response of the "even Homer nods" variety.  See p. 13.

The underlying question is whether a defendant with a mental claim is entitled to an appointed, state-paid expert who is a partisan member of the defense team or whether a court's appointment of a neutral expert to examine the defendant and report to both sides meets the requirement of the high court's 1985 precedent in Ake v. Oklahoma.* 

Further, because this case was decided on the merits by the state courts and is now on federal habeas corpus review, the threshold question is whether the answer to the above question was "clearly established" in the defendant's favor back when the Oklahoma court decided it.  That is an easier question.  No.
I've met Justice Stephen Breyer only two or three times.  The first was 30 years ago at a meeting of interested parties (for want of a better term) concerning the about-to-become-effective federal Sentencing Guidelines.  Breyer was then a First Circuit judge and a USSC Commissioner.  I was pretty much of a nobody from DOJ, but had been in on the Guidelines' implementation.

I found then-Judge Breyer to be extremely friendly, modest, and engaging.  There was absolutely no hint of pulling rank; to the contrary, he was attentive and responsive throughout.

As a Justice, he has had occasion to consider death penalty cases.  It is now beyond sensible argument, in my view, that he's made up his mind that capital punishment is unconstitutional in all circumstances, see, e.g., this entry from SL&P. Whether he's right or wrong about that (I think he's clearly wrong), I believe the federal recusal statute, 28 USC 455, now requires that he not take part in future capital cases, including, I have a strong feeling, the one that's coming tonight about the double execution in Arkansas. 
In Glossip v. Gross (2015), the Supreme Court adopted the position of the plurality opinion in Baze v. Rees (2008) that a death row prisoner challenging a method of execution must show that it presents a "risk of severe pain [that] is substantial 'when compared to the known and available alternatives.' "

Justice Sotomayor dissented from the Supreme Court's decision not to grant a stay of execution and take up the Arkansas execution cases, McGehee v. Hutchison, No. 16-877, saying the high court should resolve a split of opinion in the courts of appeals as to the meaning of "available."

But is there a split?  Not really.  Not yet.

Why Now?

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In his opinion dissenting from denial of a stay in the Arkansas execution case, McGehee v. Hutchison, No. 16-8770, Justice Breyer asked rhetorically, "Why now?"  He surely meant why not later, but I think the more pertinent question is why not earlier.

Let us begin in 2012 with a bizarre opinion by the Arkansas Supreme Court.  Ten murderers on the state's death row filed suit claiming that it violated the separation of powers for the legislature to prescribe the method of execution in general terms and let the corrections department fill in the details.  Incredibly, the court bought it.  As a matter of administrative law, this is preposterous.  Legislatures regularly delegate far more fill-in-the-gaps authority to administrative agencies than this.  Every other state supreme court to consider such a claim has rejected it, as Justice Baker described in her dissent.

Justice Gorsuch Makes the Difference

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As Bloomberg reports, Justice Neil Gorsuch's first vote in a prominent case is likely to be remembered for a long time:  "Gorsuch's First Big Supreme Court Vote Allows Arkansas Execution"

Justice Neil Gorsuch took his first major action on the U.S. Supreme Court by casting the deciding vote to let Arkansas begin executing a group of death-row inmates.

In a series of orders Thursday night, the high court cleared the state to execute Ledell Lee, one of eight convicted murderers that Arkansas has been trying to put to death before one of its lethal-injection drugs expires at the end of the month. Arkansas executed Lee minutes after the court rejected the last of his requests.

Gorsuch joined his four fellow Republican appointees -- Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Samuel Alito -- in the majority. They didn't explain their reasons.

The court's four liberal justices each voted to grant at least one of the requests to halt the executions. Justice Stephen Breyer said the state didn't have an adequate reason to rush.
Since the murder occurred 24 years ago, I'm not sure what "rush" Justice Breyer has in mind.

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