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SCOTUS Opinions

The U.S. Supreme Court issued six opinions this morning.  No Elonis yet, unfortunately.  Here are the criminal and related ones:

Henderson v. United States, No. 13-1487:  When the defendant has been convicted of a felony and can no longer legally possess firearms, and his guns have been seized by the government, "a court may approve the transfer of a felon's guns consistently with §922(g) if, but only if, the recipient will not grant the felon control over those weapons." Unanimous opinion by Justice Kagan, reversing USCA11.

San Francisco v. Sheehan, No. 13-1412:  The case involves police use of force against a mentally ill person who "began acting erratically and threatened to kill her social worker."  A question about the applicability of the Americans with Disabilities Act was dismissed as improvidently granted when the City shifted its position between the certiorari petition (request to take up the case) and the briefing on the merits.  On the Fourth Amendment question, the individual police officers were granted qualified immunity. 

Justice Alito wrote the opinion for six Justices, reversing the Ninth Circuit (and reinstating the decision of District Judge Charles Breyer) in part.  Justices Scalia and Kagan would dump the whole case because they are seriously ticked off at San Francisco for its bait-and-switch on the question presented.  Justice Breyer recused himself.

Coleman v. Tollefson, No. 13-1333:  Indigent plaintiffs can generally file civil suits without paying the filing fee (in forma pauperis), but this privilege is so commonly abused by prisoners that Congress created a "three strikes" rule against IFP status for prisoners who have had three suits dismissed as frivolous.  Is a suit that has been dismissed but has an appeal pending a strike?  Yes.  Justice Breyer wrote the unanimous opinion affirming USCA6.  "The vast majority of the other Courts of Appeals" are wrong.  So much for the "majority view."

Likely next opinion day is the day after Memorial Day.

Diversity(?) on the Supreme Court

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Prof. David Upham of the University of Dallas notes that there would seem to be a lack of geographic diversity in the background of the members of the Supreme Court:

All studied at Harvard or Yale Law School; almost all spent their pre-Court careers in the Boston-Washington axis of power, working for either the federal government or very prestigious law schools. Four Justices were raised in NYC (Ginsburg, Scalia, Kagan, Sotomayor), one in New Jersey (Alito), two in the Sacrament-San Francisco area (Breyer and Kennedy) . Only one grew up anywhere in the middle (Roberts--Indiana), and only one grew up in the South (Thomas--rural Georgia). Six of the nine (67%) justices, then, come from areas that today have combined, about 3% of the nation's population.  

I should note that Justices Rehnquist and O'Connor went to Stanford Law School (where they finished first and third, respectively, in the Class of 1952).  But, having gone there, I can tell you that Stanford is no more ideologically diverse than either of the others.

A Waste of Time and Money on a Killer

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Roughly four weeks ago, the New York Times had this gushing article about the then-upcoming re-sentencing for Adolfo Davis.  In 1990, at age 14, Davis, a Chicago native, was knee-deep in a double murder.  He was tried as an adult and sentenced to the then-mandatory LWOP. Then the Supreme Court came along in Miller v. Alabama to hold, 5-4, that mandatory LWOP for a juvenile violates the Eighth Amendment. 

The defense bar was all aflutter.  Miller was to be the beginning of the end for finality in sentencing, and would open the door to vastly expanded proportionality review, not to mention full throttle for the "his-brain-wasn't-developed" arguments in behalf of all manner of violent criminals in their fifties forties thirties whatever. 

All that might yet happen.  But, I noticed in the Chicago Tribune yesterday on my way back from the Seventh Circuit Judicial Conference in Milwaukee, it didn't work out too well for Mr. Davis.
I am remiss in not having posted earlier about the SCOTUS argument concerning Oklahoma's lethal injection procedures in Glossip v. Gross.  Kent did a podcast on it here, and CJLF filed an amicus brief available through this link.

The media reports on it were no more illuminating than usual, except for one facet: They gave good coverage to Justices Alito and Scalia unmasking the shell game abolitionists have played with lethal injection drugs.

In short, the game is this:  Abolitionists demanded for years that, if we must have the death penalty, we move away from "grisly" methods and toward lethal injection. Largely, the country accommodated their demand.  Its reward was that the abolitionist lobby then started leaning on drug makers, many of them in Europe, to cut off sedation supplies.  When they did, jurisdictions with the death penalty moved to different drugs that are claimed to be less reliable.

Therefore  --  guess what  --  we can't have capital punishment anymore!

This was the game plan from the beginning.  Finally, at oral argument in Glossip, the abolitionists got called out on it.

Glossip v. Gross Podcast

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My Federalist Society teleforum on the Glossip v. Gross argument, noted here, is now available as a podcast.

Teleforum on Glossip v. Gross

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I will be doing a teleforum for the Federalist Society at 2:00 p.m. Eastern Time (20 minutes from now) at 888-752-3232.  If you don't catch it live, it will be available as a podcast later.

The Supreme Court This Week

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Criminal law is on the back burner at the U.S. Supreme Court today, as no decisions were announced and oral argument is a hot-button civil case.  Yesterday the Court issued its orders list from the previous week's conference but took up no new criminal cases.

This afternoon Texas intends to execute repeat murderer Robert Lynn Pruett for the murder of Correctional Officer Daniel Nagle.  As Pruett was already in prison for 99 years for another murder at the time, the sentence choices are death or no punishment at all (i.e., a life sentence which is necessarily concurrent).  The online dockets for the usual last-minute applications are here and here.

Tomorrow the Court hears oral argument in the midazolam lethal injection case, Glossip v. Gross.  CJLF's brief is here.

Tsarnaev, Silence, and Remorse

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The prosecution has rested in the penalty phase of the trial of Boston Marathon bomber Dzhokhar Tsarnaev.  If he does not testify in the penalty phase, as I expect he will not, can that silence be used against him as indicating a lack of remorse?  I don't know.

In White v. Woodall, decided one year ago today, the Supreme Court reviewed its precedent in Mitchell v. United States, 526 U.S. 314, 328 (1999):

"The Government retains," we said, "the burden of proving facts relevant to the crime . . . and cannot enlist the defendant in this process at the expense of the self-incrimination privilege." Id., at 330 (emphasis added). And Mitchell included an express reservation of direct relevance here: "Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in §3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it." Ibid.
A footnote at that point notes a division in the Courts of Appeals.  No First Circuit cases are noted there or in the certiorari petition.

Woodall did not resolve the question.  It was a state case being reviewed on federal habeas corpus, and the unsettledness of the underlying question was enough to require the federal court to respect the state court's decision under the controlling act of Congress.  CJLF's brief in that case is here.  My post on the case is here.

Prosecutors would be well advised to avoid mentioning the defendant's silence until the issue is resolved.  It isn't worth risking a reversal.  Long-term, though, I think the Griffin no-comment rule should be limited to the extent expressly held in Supreme Court precedent and not extended by a fraction of an inch.  I wouldn't mind seeing it overruled, but I don't think that is a realistic possibility.

Waiting for Elonis

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The U.S. Supreme Court decided two civil cases today.  United States v. Kwai Fun Wong, No. 13-1074 deals with equitable tolling, an issue that comes up regularly in habeas corpus cases.

Still no decision on the Facebook threats case, Elonis v. United States.  That case was argued in December, and it is the only case from that session not yet decided.  Playing the SCOTUS Sudoku game, we see from the SCOTUSblog statistics page that Chief Justice Roberts is the only one not to write a majority opinion yet from that session.  (The June case was decided together with Wong today, written by Justice Kagan.)  So it's a good bet that the Chief is writing Elonis.

Does that give us a clue how the case will be decided?  Not really.  He was probing both sides at oral argument.  In First Amendment cases generally he has been pretty much down the middle.  He has written opinions in favor of First Amendment claims in cases on funeral protests and crush videos, but he has also written opinions against such claims in cases on school speech and terrorism support.  That last one gives me some hope here.  We are dealing with speech that involves genuine danger of grave physical harm to a person.  That makes Holder v. Humanitarian Law Project and Elonis different from all the other cases.

Still, we will have to wait and see.  Maybe next week.

Traffic Stops and Dog Sniffs

The U.S. Supreme Court today decided Rodriguez v. United States, No. 13-9972:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment's proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket for the violation. Id., at 407.
Justice Ginsburg wrote the opinion.  Justice Thomas dissented, joined by Justices Kennedy and Alito.

The "only" in the last sentence is disputed in this case and remains open.  The government contends that the officer did have an individualized basis for suspicion that the car contained drugs.  Justices Thomas and Alito would affirm on that basis.  Justice Kennedy agrees with the majority that the point is not properly before the Supreme Court because the Court of Appeals did not decide it.

Although the issue discussed in that Part [of Justice Thomas's dissent] was argued here, the Court of Appeals has not addressed that aspect of the case in any detail. In my view the better course would be to allow that court to do so in the first instance.
Violent, repeat criminals should be put away for a long time, Congress quite reasonably decided in 1984.  But the devil is in the details, and the Armed Career Criminal Act has been an interpretive problem for a long time.  What exactly is a "violent felony or serious drug offense"?  Jess Bravin has this article in the WSJ on today's argument in Johnson v. United States, No. 13-7120.  The transcript is here.
There is a regular pattern in constitutional law.  The U.S. Supreme Court announces that the Constitution has magically sprouted a new rule, trumping the power of the people to enact laws through the democratic process in a way that it never did before.  Many people, perhaps most, agree with the rule in its simple form.  Ah, but life is not simple.  With every rule comes pesky little details about its boundaries in the gray zone and the means by which disputes on its application are resolved.  Since no one but the U.S. Supreme Court can authoritatively decide for the whole country what a federal constitution rule actually means, the high court is stuck with the details.

Should people with intellectual disability, formerly called mental retardation, be categorically exempt from capital punishment, regardless of how many or horrible their crimes?  I will assume for the sake of argument that the consensus of the American people would be "yes" for the moderately retarded and below.  I very much doubt that such a consensus would exist for the mildly retarded if people knew what that meant.  If fully informed, I think most people would agree with the 1989 rule of Penry v. Lynaugh that intellectual disability in that range should be considered as a mitigating factor to be weighed in the balance, not a trump card.

Even so, in Atkins v. Virginia in 2002, the Supreme Court extended the blanket prohibition to everyone diagnosable as retarded, but not to "borderline intellectual functioning," the next step up.  The fuzzy distinction between mildly retarded and borderline had been of little consequence while both were mitigating and neither was a trump card, but suddenly the distinction made a great difference.  A wave of death row inmates claiming to be retarded, a few of whom actually were, made Atkins claims.  How do we go about deciding them?  Does every one who makes the claim get a full-blown hearing?

Should a judge who receives an Atkins claim look to the record of a pre-Atkins sentencing and decide on the basis of that record alone, without giving the inmate an opportunity to submit any additional evidence, that he has no claim?  Of course not.  If you read only the question presented as phrased by lawyers for the inmate in Brumfield v. Cain, No. 13-1433, you might think that is what happened in that case.  Not really.
Some people may be surprised to learn that the State of Kansas has a state supreme court that tilts very heavily in favor of criminals, especially murderers in capital cases.  This is a result of the state's judicial selection process, which unwisely gave the state bar the keys to the initial entry gate to the bench, naively believing that this would result in selection of judges according to merit.  In reality, so-called "merit selection" only substitutes bar politics for general politics, a big step down.

Today the U.S. Supreme Court took up the highly controversial cases of the Carr brothers, both titled Kansas v. Carr, Nos. 14-449 (Jonathan) and 14-450 (Reginald), along with Kansas v. Gleason, No. 14-452.

Update:  Questions presented follow the break.

Yet Another Summary AEDPA Reversal

The U.S. Supreme Court has yet again summarily and unanimously reversed a decision of a federal court of appeals for failure to observe the limitation that Congress placed on its authority to second-guess decisions of state courts.

If two courts disagree on a question of law, which court's opinion should prevail?  Within the hierarchy of appellate review, the "higher" court's opinion prevails.  That is what we mean when say that questions of law are reviewed "de novo."  (For questions of fact, the judge or jury at trial gets broad deference.)

When a federal court considers the decision of a state court on habeas corpus, though, the situation is different.  A federal district court or court of appeals is not "higher" than the state supreme court in this sense.  Congress has never placed any federal court but the Supreme Court above the state courts in the sense of appellate jurisdiction.

So what do we do when a habeas petitioner claims in federal court that he is in jail illegally, but his legal argument has already been considered and rejected by the state court on appeal or state collateral review, and the U.S. Supreme Court has either refused or not been asked to review the state court's decision directly?  It's complicated.

GPS, Searches, and Civil v. Criminal

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The U.S. Supreme Court summarily reversed a decision of a North Carolina court regarding GPS monitoring of sex offenders and the Fourth Amendment.  The North Carolina court's error illustrates once again how far too many lawyers in the post-Mapp world have come to view the Fourth Amendment and the exclusionary rule as the same thing.  They are not.  Not even close.

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