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Sheriff Joe, the Prez, and Standing

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Today the U.S. Supreme Court Clerk docketed the certiorari petition in Arpaio v. Obama, No. 15-643.  Here are the first and last paragraphs of Judge Janice Brown's concurring opinion in the D.C. Circuit, No. 14-5325.

Today we hold that the elected Sheriff of the nation's fourth largest county, located mere miles from our border with Mexico, cannot challenge the federal government's deliberate nonenforcement of the immigration laws. I agree with my colleagues that the state of the law on standing "requires, or at least counsels, the result here reached." Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 798 (D.C. Cir. 1987). But, recognizing that Sheriff Arpaio's claims reflect the widespread perception that the administration's prosecutorial discretion meme is constitutionally problematic, I write separately to emphasize the narrowness of today's ruling, and note the consequences of our modern obsession with a myopic and constrained notion of standing.
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No doubt the modern approach to standing serves to reduce our caseload. But there are much more important matters at stake. "Some [litigants] need bread; others need Shakespeare; others need their rightful place in the national society--what they all need is processors of law who will consider the people's needs more significant than administrative convenience." Id. at 1005 (quoting Edmond Cahn, Law in the Consumer Perspective, 112 U. PA. L. REV. 1, 13 (1963)). Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts' convenience over constitutional efficacy and the needs of our citizenry.
Sounds to me like an invitation to the Supreme Court to take this up.

Use of Force and Suing Police Officers

Today, after multiple relistings, the U.S. Supreme Court summarily decided Mullenix v. Luna, No. 14-1143.

On the night of March 23, 2010, Sergeant Randy Baker of the Tulia, Texas Police Department followed Israel Leija, Jr., to a drive-in restaurant, with a warrant for his arrest. 773 F. 3d 712, 715-716 (CA5 2014). When Baker approached Leija's car and informed him that he was under arrest, Leija sped off, headed for Interstate 27. 2013 WL 4017124, *1 (ND Tex., Aug. 7, 2013). Baker gave chase and was quickly joined by Trooper Gabriel Rodriguez of the Texas Department of Public Safety (DPS). 773
F. 3d, at 716.

Leija entered the interstate and led the officers on an 18-minute chase at speeds between 85 and 110 miles per hour. Ibid. Twice during the chase, Leija called the Tulia Police dispatcher, claiming to have a gun and threatening to shoot at police officers if they did not abandon their pursuit. The dispatcher relayed Leija's threats, together with a report that Leija might be intoxicated, to all concerned officers.
So when the natural consequences of Leija's voluntary choices follow in due course, what does his widow do?  Sue the police officer, of course.  The person actually at fault is dead, and she has his estate anyway, such as it is.

Under Supreme Court precedent, police officers are immune from suit so long as the law is not clearly established that their acts are illegal under the circumstances.  In immunity cases, as in habeas corpus cases, lower federal courts regularly try to avoid the rule by defining the "clearly established" law at an excessive level of generality.  Summary reversal of such decisions has taken up an inordinate portion of the Supreme Court's docket for some years now.  This one is reversed with only one dissent, by Justice Sotomayor.

Individual-Reaction Execution Claims

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Yesterday the U.S. Supreme Court granted a stay of execution to a Missouri murderer.  AP reports:

Death row inmate Ernest Lee Johnson, who was convicted of beating three people to death with a claw hammer, was scheduled to die at 6 p.m. Tuesday at the Missouri state prison in Bonne Terre. But the Supreme Court on Tuesday night granted a stay while the 8th U.S. Circuit Court of Appeals considers whether a complaint from Johnson was properly dismissed.

Johnson, 55, claims that the execution drug Missouri uses could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced the removal of up to 20 percent of his brain tissue.
Two cases is a little early to declare a trend, but this is the second case in a row where the murderer is claiming that an execution protocol would be cruel as applied to him because of some individual medical condition, as opposed to its use generally.  In Florida, the state supreme court sent the issue back to the trial court, which took evidence and rejected it.  See this post.  The U.S. Supreme Court denied a further stay without dissent on this ground, although two justices dissented on other grounds.  See this post

That evidently didn't happen in the Missouri case.  The Supreme Court's order states, "Because petitioner's complaint was dismissed for failure to state a claim, the State was not required to submit any evidence refuting this allegation. In the currently pending appeal, the Court of Appeals will be required to decide whether petitioner's complaint was properly dismissed for failure to state a claim or whether the case should have been permitted to progress to the summary judgment stage."

Johnson murdered three people in a convenience store robbery in 1994:  Mary Bratcher, Fred Jones, and Mabel Scruggs.  Being beaten to death with a claw hammer is far worse than anything at issue in the present litigation.
One of the oddities of federal gun law is that the right to bear arms is generally taken away only for felonies, but domestic violence is treated specially, and the right to own a gun can be taken away for a misdemeanor.

A recurring problem in both gun possession law and recidivist sentencing is dealing with the wide variety of ways that crimes are defined in the 50 states and handful of almost-states that make up our federal republic.  Yesterday, the U.S. Supreme Court took up the "misdemeanor crime of domestic violence" question in Voisine v. United States, No. 14-10154.  Amy Howe has this post at SCOTUSblog.

Counsel for the defendants asked the Court to take two questions:

1. Does a misdemeanor crime with the mens rea of recklessness qualify as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

2. Are 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution?
Mens rea means guilty mental state, an issue we discussed last term in relation to the Elonis case.  See, e.g., this post.

The high court took the statutory question, number 1, but said "fuggetaboutit" to the constitutional question, number 2.  No treat for Second Amendment fans this Halloween.

SCOTUS's Roads Not Taken

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On Thursday, the Supreme Court of the United States denied a stay to Florida murderer Jerry Correll, who was an exemplar of why anything less than death is inadequate for some killers.  See prior post.  One thing about executions is that they force SCOTUS to a decision.  In most cases when the Supreme Court denies review it says little about the merits of the argument.  It may be that they are just waiting for a better vehicle.  When they say, in effect, "go ahead and fry him," it's a much stronger indication that a majority thinks his claim lacks merit.

Justices Breyer and Sotomayor dissented.  Justice Breyer, alone, reiterated his support for at least taking up what is known as the Lackey claim "whether nearly 30 years of incarceration under sentence of death is cruel and unusual punishment."  The oddity of that claim is that the long delay is over the vehement objection of the state and, in most cases, the victim's family, and the execution that the defendant seeks to have stayed brings an end to the supposedly cruel punishment he complains of.  The fact that no other justice joins this part is a good sign.

The other ground of dissent, which Justice Sotomayor does join, is that the case should be held for decision of an attack on Florida's capital sentencing system in Hurst v. Florida.  That attack is based on the Supreme Court's decision Ring v. Arizona (2002), which the Court held was not retroactive to cases final on direct appeal in Schriro v. Summerlin (2004).  In Correll, the Florida Supreme Court brushed off the Ring claim both on the merits and on nonretroactivity.  Whatever the Court may decide on the merits in Hurst, we can be confident that Summerlin is safe.  Seven Justices would not have let Florida go ahead and execute Correll if they thought otherwise.

Missud Follow-Up

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On Tuesday, while discussing the summary affirmance by the U.S. Supreme Court in Missud v. Court of Appeal of Cal., No. 15-5601, I engaged in some speculation as to why five Justices of the Supreme Court might have recused themselves.  Missud's certiorari petition is now available on the web.  It is nice to see one's speculation confirmed.  Here is Missud's List of Parties section:

All interested parties do not appear on the cover's caption. Well over 100 state & federal judge$ who already sold decisions, rigged hearings, railroaded actions, or otherwise scuttled a case, appeal, or writ should now be terrified of going to prison for at least Honest Services Fraud, 18 USC §201 Corruption, §1962 Racketeering, and §2381 Treason & Overthrow of Government.3

319 Million Americans who've had their constitutionally-mandated neutral judiciary commandeered by corporation$, $pecial intere$t$ & corrupt judge$ want their "government of and by the people" back, and are hence interested parties too.
Footnote 3 is a long list of judges ending in, you guessed it, "John Roberts, Clarence Thomas, Antonin Scalia, Anthony Kennedy, Samuel Alito."
The U.S. Supreme Court heard argument today in Montgomery v. Louisiana, No. 14-280.  The "merits" question is whether Miller v. Alabama (2012) -- which held that states can continue to sentence juvenile murders to life without parole but must give consideration to a lesser sentence -- applies retroactively so as to require resentencing of every killer sentenced to LWOP under a mandatory statute, even if the judgment was final on appeal years or even decades ago.

Before getting to that, though, there is a threshold question of the U.S. Supreme Court's jurisdiction to review the state court's decision not to apply Miller retroactively in a state habeas corpus case.  Does the state have to follow federal retroactivity law?  One of the two shoes dropped seven years ago in Danforth v. Minnesota (2008).  A state can, if it likes, apply a new rule retroactively in its own courts even if the federal rule of Teague v. Lane says the rule is not retroactive.  We have been waiting for the second shoe to drop ever since.

Justice Breyer asked in today's argument:

Danforth was the case saying that the states could be more generous. It wasn't a case -- this is a case that's the opposite of being generous: Can they be more stingy? And I cannot find anything in -- in Harlan -- maybe I'll read it again, but I can't find anything there, nor can I find anything in Danforth that answers the question.
I did not brief this question in the CJLF brief, believing the base was covered by others.  Considering that the question was discussed more than the merits in today's argument, maybe I should have.

Five Justices Recused?

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And now, for something completely different ...

In today's orders list, the U.S. Supreme Court did not take up any new cases for full briefing and argument.  They did summarily dispose of a few cases.  Several were on the common ground that the lower court needs to take another look after the Supreme Court decided a similar issue in another case.  Dog bites man -- not news.  The court also refused to take up a long list of cases without stating a reason, also completely routine.

Missud v. Court of Appeal of Cal., No. 15-5601 is decidedly different.  The Court lacks a quorum because five Justices are recused, and by statute that results in a summary affirmance.  How did five Justices get recused?


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Steven Mazie, Supreme Court correspondent for the Economist, has this article in the WaPo, noting, "when the justices disagree, they rarely split neatly along ideological lines. In fact, of the 66 cases decided in the term that ended in June, only five resulted in a razor's-edge split along the left-right fault line."

All well and good, but I was struck by this line: "Ultraconservative Justice Clarence Thomas joined the four liberals against his right-wing brethren to allow Texas to refuse to issue a license plate featuring the Confederate battle flag."

Ultraconservative?  By what standard?

The Kansas Death Penalty Arguments

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Three Kansas capital cases were argued in two parts in the U.S. Supreme Court today.  The cases are those of the Carr brothers (the Wichita Massacre case) and of another murderer named Gleason.  The first hour considered an issue common to all three cases, the Kansas Supreme Court's strange decision that the standard jury instruction in the case is unconstitutional because it imposes a burden of proof beyond a reasonable doubt on the prosecution for the aggravating circumstances but does not tell the jury there is any burden of proof on the defendant for the mitigating circumstances.  The second hour considered the issue of trying the Carr brothers together.  The transcripts are here and here.

One indication that a lower court decision is tripe is when the lawyer for a respondent spends most of his argument trying to convince the Supreme Court to duck the issue.  That is what Jeffrey Green tried to do representing Gleason and Jonathan Carr, claiming that the Kansas Supreme Court did not really decide this case under the Eighth Amendment but instead under state law, which the U.S. Supreme Court has no jurisdiction to review.  He did not make much headway.  The high court decided long ago in Michigan v. Long that if a state court decision is unclear on whether its basis is state or federal they will assume it is federal.  The Chief notes at page 34, with a note of exasperation, "The whole point of Michigan against Long was so that we wouldn't have to do what we've been doing for the last 10 minutes, which is to debate whether a decision that mentions both Federal and State law is based on Federal or State law."  Not a good sign for the defendants.

The Attorney General of Kansas argued this part personally for the people of that state.  Such personal appearances are sometimes criticized by people who say the office holders should step back and leave argument to the career pros, but they do send a message of the importance of the matter, and oral argument is mostly for show anyway.

SCOTUS Considers the Wichita Massacre

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Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

The horrifying facts of the case are described briefly in CJLF's brief and press release.

The Federalist Society will have a "courthouse steps" teleforum.  Details at the end of this post.
The Kansas Supreme Court bent over backwards to overturn the supremely well-deserved sentences of the Carr brothers.  Along with a dubious holding on severance of the cases, the majority's far-fetched theory is that because the jury was instructed to find other matters beyond a reasonable doubt, the fact that the jury was not expressly instructed on the burden of proof for mitigation meant that the jury might have turned this around and imposed a similar burden on the defendant to prove mitigating circumstances.  Under this scenario, a jury supposedly might have ignored mitigation proved by a preponderance but not beyond a reasonable doubt and then unanimously agreed to a sentence that the jurors would not have thought just if they had considered those circumstances.

"Preposterous" barely describes this convoluted logic.
About a year ago, I noted a controversy about the U.S. Supreme Court making changes to its opinions without any public announcement. The Court has responded and made a change to the way it makes changes.

There is now a "revised" column in the slip opinions page.  When a slip opinion has been modified, the date of the modification will appear in that column, and it will link to a version of the opinion highlighting the changes and showing both old and new text.  A change-highlighted version of Miller v. Alabama is here as a sample.

A "what's new" summary of this and other changes that apparently came from the Court is available at SCOTUSblog, but oddly not on the Court's own website, at least not anywhere I can find it.
The Constitution guarantees counsel for defendants, but what does that mean beyond appointment of a person who is a member of the bar?  Will a hopeless incompetent who does nothing for the client do?  No.  Is an absolutely perfect performance that no one can find the slightest flaw in, even in hindsight, required?  No.  Where do we draw the line between those two extremes?  It's complicated.

The standard was set in the landmark case of Strickland v. Washington (1984), a case won by my good friend Carolyn Snurkowski of the Florida AG's Office.  As summarized by the Supreme Court today in Maryland v. Kulbicki, "Counsel is unconstitutionally ineffective if his performance is both deficient,meaning his errors are 'so serious' that he no longer functions as 'counsel,' and prejudicial, meaning his errors deprive the defendant of a fair trial."

No longer functioning as counsel is a very low standard, a performance so dismal that very few such claims should be granted, and the bar should proceed to revoke the license or at least impose some discipline on any lawyer who actually botches a client's case that badly.  That is how it was intended, but that is not how it is applied in practice.  Instead, courts often use ineffectiveness claims as ways to overturn verdicts they feel uncomfortable about, even though the lawyer actually did a decent job.

Today in Kulbicki, the U.S. Supreme Court reversed a decision of the highest court of Maryland in severe terms.   "Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki's defense attorneys were unconstitutionally ineffective. We summarily reverse."

The Long Conference

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One week from today is the First Monday in October, at which the U.S. Supreme Court begins its 2015-2016 term, officially known as the October 2015 Term.

Today the Justices meet in conference to go over the big stack of petitions built up over the summer asking them to take cases up for review.  About 99% of these petitions will be denied without comment.  This week we can expect a short orders list of the few cases they have taken.  Last year it was on Thursday.  Next Monday there will be long list of cases denied.

SCOTUS blog has its Cases to Watch List in three parts, here, here, and here.  On a quick read there don't appear to be any blockbusters in the criminal law area.

Mistweeting Justice Scalia

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Chris Schmidt has this post at ISCOTUS now, the moral of which is, "Tweets are a lousy way to get our coverage of public events."

Jennifer Pignolet of the Memphis Commercial Appeal tweeted live during a speech by Justice Scalia, "Ta[l]king now about the death penalty. Says he now has 4 colleagues who believe it's unconstitutional. He disagrees."  (Emphasis added.)  Just one small problem.  The "now" and the present-tense verb were completely wrong.  Schmidt reports,

Scalia did not say that four of his current colleagues are ready to strike down the death penalty.  What he said, as Pignolet of the Commercial Appeal reported in a follow-up article, was the following: "I sat with three colleagues who thought the death penalty is unconstitutional ... I sat with three colleagues, and there is now a fourth -- Justice Breyer has announced that he thinks the death penalty is unconstitutional."  This quotation clearly indicates that Scalia was looking backwards in time, to colleagues he sat with, not to his colleagues on the current Court.  He was not talking about Sotomayor or Kagan or Kennedy.  He was talking about William Brennan, Thurgood Marshall, and Harry Blackmun, each of whom denounced the death penalty as unconstitutional while sitting on the Court.  In talking about his four anti-death penalty colleagues, Scalia was not saying anything we didn't already know.

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