Recently in U.S. Supreme Court Category

Texas Execution

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Michael Graczyk reports for AP:

A Texas man convicted of killing a 38-year-old woman nearly two decades ago while he was on parole for a triple slaying years earlier was executed Thursday evening.

Robert Ladd, 57, received a lethal injection after the U.S. Supreme Court rejected arguments he was mentally impaired and ineligible for the death penalty. The court also rejected an appeal in which Ladd's attorney challenged whether the pentobarbital Texas uses in executions is potent enough to not cause unconstitutional pain and suffering.

There are no dissents noted in the two Supreme Court orders.  Pentobarbital is the way to go.

Miller Retroactivity Case Is Moot

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The U.S. Supreme Court took up Toca v. Louisiana to decide the question of whether Miller v. Alabama -- which said a juvenile cannot be sentenced to life-without-parole unless the sentencer had discretion to select a lesser sentence -- applies retroactively to overturn judgments already final on the day it was decided.

Now the case will be dismissed as moot.  John Simerman reports for the New Orleans Advocate:

A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison.

Orleans Parish District Attorney Leon Cannizzaro's office agreed to vacate his murder conviction.
I think that is a proper disposition.  Toca's sentence would have been unduly harsh even if he were an adult at the time of the crime.  The deceased was his accomplice in the robbery.  In my view, the felony-murder rule should at least be reserved for the deaths of innocent people, and this death should not have been considered murder at all.
And now, for something completely different.

The U.S. Supreme Court gets stay-of-execution requests from death row inmates all the time.  Typically they have been denied without dissent or comment, since the obstinate Justices Brennan and Marshall retired.  Denials with a dissent noted happen occasionally, and every once in a while one is granted.  What I have never seen before, though, is a stay requested by the state.

January 14, Oklahoma executed Charles Warner, even though four Justices voted for a stay of execution, as noted in this post.  January 23, the Supreme Court took up for full briefing and argument the case of the remaining three inmates on that petition, challenging the state's use of midazolam as the first drug of the three-drug protocol, as noted in this post.

Rather than wait for a stay to be granted for the remaining inmates, Oklahoma Attorney General Scott Pruitt took the unusual step of asking for a stay himself, asking for it to be tailored to stay only executions with the controversial midazolam, not the conventional pentobarbital or thiopental, if the state can get any.  Today the Court issued that order.
As noted here and here last week, the U.S. Supreme Court declined, 5-4, to issue a stay of execution for Oklahoma murderer Charles Warner, who raped and murdered a baby. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Charles Warner is to be executed tonight. He and three other Oklahoma death row inmates filed a petition for certiorari and an application for stays of their executions, contending that Oklahoma's lethal injection protocol violates the Eighth Amendment. I believe that petitioners have made the showing necessary to obtain a stay, and dissent from the Court's refusal to grant one.
Although it takes five votes to grant a stay, it only takes four to take up a case for full briefing and argument, and the Supreme Court today granted certiorari in the underlying case.  The case is No. 14-7955.  It is now titled Glossip, et al. v. Gross, et al., because Warner's case has reached the point of ultimate mootness.

Mark Sherman has this story for AP; Adam Liptak and Erik Eckholm cover it for the NYT.

Update:  Robert Barnes and Mark Berman have this story in the WaPo.

Last week's execution of Warner, who was put to death for raping and killing an 11-month-old girl, was carried out without much incident, witnesses said, although as the process began, Warner said, "My body is on fire."
"As the process began" is significantly misleading.  As I noted previously, the actual observation by the television reporter was:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."
Big difference.  Warner's statement is not evidence that the drugs being used are painful and cruel.  It is evidence that inmates facing execution are being coached to fake it, and some of them are going along with it.
I noted in my last post that President Obama erred in suggesting that crime and incarceration had both decreased for the first time in forty years.  The statistics are not yet in for 2014, and if the President was meaning to refer to 2013 (or any other year of his Presidency, for that matter), he was mistaken.

Six Supreme Court Justices attended the SOTU, including Justice Ruth Bader Ginsburg.  The tradition is that Justices do not react during the speech, lest they be thought to be expressing either approval or dissent from what the head of the Executive Branch is saying. (Although sometimes the temptation is too much for a truth-insistent Justice to resist).

Justice Ginsburg did a first-rate job of keeping faith with that tradition.

Arguing One's Own Screw-Ups

One of the problems with allowing convicts to argue that their lawyers were ineffective, not just at trial but at every step of the review process, is that every time such a claim is raised we will hear an argument that a new lawyer must be appointed.  After all, we can't expect a lawyer to argue his own incompetence or dereliction of duty, can we?  But where does this end, if cases can be reopened without limit based on a claim the prior lawyer screwed it up?

Today in Christeson v. Roper, No. 14-6873, the Supreme Court holds summarily that the Federal District Court in Missouri should have appointed new lawyers to argue for relief after the first set blew the deadline.  The Court does not hold that relief should actually be granted.  Justices Alito and Thomas dissent from the Court's summary treatment, believing "plenary review would have been more appropriate in this case."

Under Coleman v. Thompson (1991), the tailspin of each lawyer asking for a new review by accusing the one before was dealt with by cutting off the right to effective assistance after the first appeal.  That protective mechanism is now going down the tubes, and we need a new one.

The 45-year-old proposal of Judge Henry Friendly is looking better and better.  Every defendant, no matter how clearly guilty, is entitled to a trial and an appeal, with a right of effective counsel for both.  After that, no more reviews unless he has a colorable claim of actual innocence.  I suppose at this point we would have to add ineligibility for the penalty.  In capital cases, one could also argue that the defendant is a minor, intellectually disabled, or a minor accomplice swept up in the felony murder rule, or that none of the circumstances that legally make a case capital are true.  That would be all.  In all other cases, i.e. most cases, we just wouldn't hear the claim.

If Judge Friendly's proposal is not politically palatable for the first habeas review, as he proposed it, surely we could at least apply it to all reviews after the first.  That would include an initial federal review following a state collateral proceeding.  In this case, the deadline missed was for federal review.  Christeson already had a full review of his claims in state court.

I've copied the facts of the case from that state supreme court opinion on direct appeal after the break.
Today the U.S. Supreme Court decided Holt v. Hobbs, No. 13-6827, regarding a prisoner's right to have a religiously mandated beard under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).  The Court decided unanimously that a 1/2 inch beard posed no threat to an institutional need that outweighed the prisoner's right to free exercise of religion.  The state had not articulated a good reason for not allowing it.

The result in this case doesn't bother me too much.  I am more concerned about the more extravagant applications of RLUIPA, such as the worshippers of Odin and their Annual Pork Feast.  No, I'm not making this up.

Sarcasm at SCOTUS

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Adam Liptak has this article at the NYT.  He reports on research on sarcasm in Supreme Court opinions by Professor Richard Hasen at UC Irvine, who concludes that Justice Scalia is the most frequently sarcastic of the justices.

When I first read the blurb on this story in my NYT alert email, my first thought was that the research would qualify for the Well, Duh Award for Research Confirming the Obvious.  After reading the article and the description of Prof. Hasen's methodology, though, I conclude that the more appropriate citation is the Even A Stopped Clock Is Right Twice A Day Award for research with incredibly bad methodology that happens to hit the correct answer.

New SCOTUS Cases

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The U.S. Supreme Court has taken up a number of new cases for full briefing and argument.  All the buzz is about the same-sex marriage cases, off-topic for this blog.  There is one actual criminal case, McFadden v. United States, No. 14-378.  The question presented is:

Whether, to convict a defendant of distribution of a controlled substance analogue - a substance with a chemical structure that is "substantially similar" to a schedule I or II drug and has a "substantially similar" effect on the user (or is believed or represented by the defendant to have such a similar effect) - the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.
Kind of an interesting "mental state" question, but not a big case.

Execution Follow-Up

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Yesterday, Justice Sotomayor's dissent in the Oklahoma case credited the murderer's experts that the procedure risked extreme pain if the midazolam did not sufficiently anesthetize the inmate before the second and third drugs were administered.  Do the statements of baby-rapist-murderer Charles Warner -- "It feels like acid" and "My body is on fire" -- confirm her fears?

Nope.  One of the witnesses was Abby Broyles of Oklahoma City television station KFOR:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."
Before?  What's up with that? 

A year ago, an inmate about to be executed told guards that his lawyer urged him "to fake symptoms of suffocation" during his execution.  See this post. He reportedly told the lawyer no way.  Did Warner receive similar urging and go along with it, but get the timing wrong?  We will never know, but that seems to be the most likely explanation.

Broyles said it did not appear Warner was in pain. He never raised his head off the gurney and did not convulse the way Lockett did last April.

Sean Murphy with the Associated Press said afterwards, "It appeared the sedative worked."
The two executions noted in today's News Scan have been carried out.  In the Oklahoma case, the Supreme Court voted 5-4 to deny a stay on the murderer's claim regarding the use of midazolam as the first drug of the three-drug protocol.  Justice Sotomayor wrote a dissent.

The only reason any state uses midazolam is that pentobarbital, the drug veterinarians use every day for euthanasia, is unavailable.   It is made in the United States but its manufacturer, Akorn, places resale restrictions on its distributors.  Akorn does that because the agreement by which it acquired the rights to the drug from Lundbeck, a European company, requires it to.  Lundbeck was pressured into restricting sale by anti-death-penalty forces in Europe.

So here we are with a domestic policy choice that is ours to make and none of Europe's damn business being impacted by Europe, with the perverse result that there is some possibility that murderers may suffer more pain in execution as a result, if the concerns noted in Justice Sotomayor's opinion have any validity.

The solution is simple.  Congress can and should declare resale restrictions on pentobarbital void as restraints on trade and against public policy.
Ed Lee at iSCOTUSnow has been predicting the outcome of U.S. Supreme Court cases based on the number of questions asked each side during oral argument.  "Studies have shown that the advocate who receives more questions during oral argument is more likely to lose."  It's a strong correlation as these things go, but correlation is not certainty.  Here is the October 15 prediction in Jennings v. Stephens:

My prediction is that the Court will side with the Respondent Stephens' position (i.e., that the Fifth Circuit correctly decided the case). This case is easier to predict [than a civil case argued the same day]. The Petitioner Jennings received 14 more questions than the Respondent Stephens, which is a fairly large differential in questioning that suggests a win for Stephens (the Director of the Texas Department of Criminal Justice, Correctional Institutions Division).

Even so, the predictions are well worth watching, and the record is quite strong overall this term.

Habeas Appeals and Alternate Grounds

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Today the U.S. Supreme Court decided Jennings v. Stephens, No. 13-7211, regarding the issues a habeas petitioner can raise on appeal when the district court accepts some of his claims but rejects others and the state appeals.

Congress long ago placed a limitation on appeals by habeas petitioners, recognizing that the vast majority of petitions are meritless.  In 1996, Congress bolstered the filter for appeals by adding a requirement that a certificate of appealability specify the issues will potential merit and limiting the appellate court's jurisdiction to the identified issues.

How does this requirement apply to a case where the petitioner actually wins on one of his issues, and the state is the party appealing the decision?  For the most part, it doesn't, the Court held 6-3.  The court applied the standard rule for appeals in other kinds of cases, that the party prevailing in the trial court can raise the issues rejected by that court as long as he does not seek different or greater relief than he obtained in that court.

I do not think this result is consistent with the purpose of the issue-specification requirement, although it is not contrary to any language in the statute.  I very much doubt that anyone in Congress even thought about this particular wrinkle as the legislation was moving through.  It will present a practical problem for the courts of appeals in cases where petitioners file hundreds of claims, most of them frivolous, as is increasingly common in capital cases.

This is a loss, but not a big one in overall scheme of things.

The real goal of CJLF's brief in this case was to get the Supreme Court to finally define what is a "claim" for the purpose of habeas corpus.  That question was squarely presented six terms ago in Bell v. Kelly (CJLF brief here), but the Court dumped the case.  The manner in which the Court resolved the appeal issue in Jennings made it unnecessary to decide that question today.  We will keep on keeping on.
Today the U.S. Supreme Court decided Whitfield v. United States, No. 13-9026.  The question presented is how far a bank robber must move an unconsenting victim to qualify for an enhanced sentence.  The statute does not use the term kidnapping a hostage, but that's the idea.  The unanimous answer is not far at all.  The syllabus follows the break.

Lying beneath the case is the federalism question of whether bank robbery really needs to be a federal offense rather than a state offense.  A decent case could be made during the Great Depression that John Dillinger, Bonnie & Clyde, et al. were a threat to interstate commerce, but that case is hard to make today.  Those issues were not before the Court, though, and the case seems straightforward on the question actually presented.

The statute speaks of forcing a person to "accompany" the robber.  To support the proposition that "accompany" can mean a short distance, and could in the 30s when the statute was written, Justice Scalia cites a 1930 wedding announcement in the New York Times saying "accompany to the altar."  Nice touch.  Oh, and throw in Charles Dickens and Jane Austen for good measure.

This case only directly affects federal bank robbery prosecutions, but it may be useful for a "cf." cite in state kidnapping cases where the defense complains that the victim was not moved very far.

On its facts, if this case had been a state prosecution, it would make a good example of a valid application of the much-maligned felony-murder rule.  There are cases where a murder conviction for a felon without intent to kill is excessively harsh, but this would not be one of them.

SCOTUS As A Late Adopter

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"Be the first kid on your block ... "  Long ago that sales pitch was used to sell things to children.  Today, there are still lots of people who take enormous pleasure in being among the first to have the hottest new thing.  They are called early adopters in the tech business, and those of us who aren't early adopters benefit from their willingness to pay high prices for still buggy software and for gadgets that may or may not endure.  Remember the Betamax?  Personally, I am content to let others be the lab rats research participants and wait for version X.1.

The federal courts are not early adopters, Chief Justice Roberts explains in his 2014 Year-End Report on the Judiciary, and the U.S. Supreme Court particularly is not.  Filing documents over the internet is an important advance, but development of the system has been slow in the federal district courts and courts of appeals, and the Supreme Court still doesn't have it.  Today we email PDFs of briefs on the due date, but the printed brief must still be in the mail on that day, and that is the official filing.

SCOTUS will finally come around in 2016, but the Chief wants to make sure the system is equally available to all.  Unlike the CM/ECF system for the lower federal courts, access will be free to the public.

The report begins with an amusing bit of infotech history -- pneumatic tubes carrying documents around the building.  The report is well done, not long, and worth reading.

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