Recently in U.S. Supreme Court Category

Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.


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Justice Antonin Scalia died a year ago today.

There has been much discussion about his replacement.  In the sense I have in mind today, the talk is pointless. Scalia was a once-in-a-lifetime intellect and a larger than life character.  Someone will eventually sit in his seat, but he will never be replaced.

I will repeat two tributes to him C&C published last year, here and here.
Yesterday I said the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court.  That was based on a legal assessment that the Ninth Circuit decision is wrong.  (See also Rivkin & Casey in today's WSJ.)

In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd.  Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population.  If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.

However, sometimes there are strategic reasons for not taking a position.  Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it.  Affirmance by an equally divided court is a nothingburger, and that would be a real possibility.

Finally, and perhaps most importantly, the presence of this very hot-button case in the Supreme Court would give the Democrats and the left-leaning media ammunition in the critically important confirmation battle for Judge Gorsuch.  The Democrats will ask him about the case or questions closely related to the case, he will decline to answer, and even though that declination is quite proper it will look evasive on camera.  The Dems will still try to use it, of course, but their efforts will be less effective if it is behind us.

Sometimes you have to cut your losses and move on.  While the Administration's legal position is correct, taking the case up to SCOTUS may not be strategically wise.

Update:  The Ninth Circuit this afternoon ordered briefing on whether to hear the case en banc.

Felons, Weapons, and Knowledge

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When a convicted felon is not allowed to possess a firearm, what knowledge must be established to prove a violation?  The California Supreme Court addressed that issue today in the context of probation violations in People v. Hall, S227193.  U.S. Supreme Court nominee Neil Gorsuch has dissented in favor of the defendant on a related issue.

In the California case, drug dealer LaQuincy Hall was given probation upon the condition, among others, that he "may not own, possess or have in [his] custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on [his] person."

Although he made no objection in the trial court, Hall claimed on appeal that the condition needed to be modified to prohibit only "knowing" possession.

Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person....  Because no change to the substance of either condition would be wrought by adding the word "knowingly," we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit.  A trial court, however, remains free to specify the requisite mens rea explicitly when imposing a condition of probation.
An op-ed in the WSJ makes this case convincingly, here.   It gets to the point quickly:

Moderates could do a lot worse than Judge Neil Gorsuch--and we probably will if he isn't confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans.

Republicans control both the White House and the Senate, and the idea that they will allow Democrats to, in effect, designate the next Justice to accord with their own policy preferences is a fantasy.  If left-wing petulance forces Sen. McConnell to change the rules to "go nuclear," what, exactly, does the Left think is going to happen next?  

Here's a clue:  Needing only 50 votes next time (with Vice President Pence as the tie-breaker), Trump may feel free to name a more doctrinaire nominee than he has now.  Justice Breyer is 78; Justice Kennedy is 80; and Justice Ginsburg is 83.  The likelihood of at least one additional vacancy for Trump to fill, and possibly three, is anything but remote.

Still, if the Left wants to dig in its heels, it's fine with me.  Three more Clarance Thomases will warm the cockles of my cold, textualist heart.
A year ago, the U.S. Supreme Court reversed decisions of the Kansas Supreme Court overturning death sentences in two cases, the infamous Carr brother and Sidney Gleason.  The decision is here.  CJLF's press release is here.  CJLF's brief is here.

Today, Amy Renee Leiker reports for the Wichita Eagle:

A divided Kansas Supreme Court said Friday that it will uphold the death sentence of a man it previously overturned, according to a news release.

The U.S. Supreme Court ordered the Kansas Supreme Court to take a second look at Sidney Gleason's case early last year after hearing oral arguments in it and the cases of killers Jonathan and Reginald Carr in October 2015. A Barton County jury gave Gleason a death sentence for killing Mikiala "Miki" Martinez and her boyfriend, Darren Wornkey, in 2004 to keep her from telling authorities about an armed robbery.

"The decision today affirms the conviction and death sentence based on a Barton County jury's findings and moves this case along one step further. The wheels of justice are turning," Kansas Attorney General Derek Schmidt said in an e-mailed statement after the ruling was announced.
The decision is here.

The WSJ has this editorial with the above title:

The "theft" is supposedly the GOP Senate's refusal last year to vote on President Obama's nomination of Merrick Garland to fill Antonin Scalia's seat. But the standard of not confirming a Supreme Court nominee in the final year of a Presidency was set by . . . Democrats. And by no less a Beltway monument than the current Senate Minority Leader, Chuck Schumer.

Justice Gorsuch

Neil Gorsuch is an outstanding choice for the Supreme Court.  As President Trump said in making the announcement, this was indeed the most important criterion for many of us who voted for him.  We look forward to many years of excellent jurisprudence from Justice Gorsuch.

The most important federalism issue for our work is the interference of the lower federal courts with criminal cases from the state courts.  From 1953 to 1996, the general rule was that the federal courts on habeas corpus would reconsider de novo (from scratch) questions of federal law already decided by the state supreme court, as if they were a higher court with appellate jurisdiction.  They are not, and such second-guessing on close questions is not the proper purpose of habeas corpus.  Congress passed the key habeas reform of the Antiterrorism and Effective Death Penalty Act of 1996 to put the brakes on that, reserving relitigation on habeas corpus for correction of clearly wrong state court decisions only -- with "wrong" defined by Supreme Court precedent, not the lower federal courts' precedents.

As the short list got shorter, I did a few Lexis searches to see whether the nominees respected and applied the AEDPA reform as intended or whether they were among the judges who evaded it and had to be reversed by the Supreme Court.  Judge Gorsuch, from the cases I was able to find, appears to be solidly in the former camp.  That is not true of all of the candidates.

This is a very good day for federalism, for the Constitution, for the rule of law, and for the law-abiding people of the country.  If the Democrats filibuster, go nuclear.  It's worth it.
This Politico article pretty much lays it on the line:  

Senate Democrats are going to try to bring down President Donald Trump's Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump's nomination. That means Trump's nominee will need 60 votes to be confirmed by the Senate.

I have only a question and a comment.  The question is what happened to the urgent cry, heard only very recently, that, "We have to end the partisan gridlock in Washington and learn to compromise!"  The comment is that, under the current Democratic stance, Antonin Scalia, one of the greatest legal minds in American history, would not be considered, much less confirmed, for his own seat.  

President Trump tweeted this morning, "I have made my decision on who I will nominate for The United States Supreme Court. It will be announced live on Tuesday at 8:00 P.M. (W.H.)"

Over the weekend, the WSJ had an editorial titled Trump's Supreme Choices, noting, correctly, that attacks on Judge William Pryor from the right flank are unwarranted.  Judge Pryor properly followed binding Supreme Court precedent in a transgender case.  Earlier, as Attorney General, he properly enforced the law against Alabama Chief Justice Roy Moore's Ten Commandments shenanigans.   "Since when do conservatives want AGs and judges who disdain the law in order to get the policy result they like?"  A few do, unfortunately, but far fewer than on the other side of the aisle.  The WSJ also notes that Judge Neil Gorsuch would also be a solid pick.

Adam Liptak has an article in the NYT titled "How a Trump Supreme Court Pick Could (or Could Not) Sway Cases."

To Nuke or Not to Nuke?

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Democratic Leader Sen. Chuck Schumer has signaled intransigence on confirming a Supreme Court nominee. He has said that Democrats would refrain from using the filibuster against a "mainstream" candidate, but made it clear that what he means by "mainstream" is a jurist who buys the legal and "living Constitution" agenda of the last Administration.  It is, to say the least, improbable that President Trump will put forward such a nominee. Accordingly, a filibuster seems likely at this point.

According to this article from the Hill, Majority Leader Mitch McConnell is reluctant to part with Senate tradition by ending the filibuster for Supreme Court nominees (i.e., by "going nuclear").

Earlier, I made one suggestion about how this might be handled.  A person well-acquainted with Senate procedures now makes another. 

Green Light for the Habeas Fast Track

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When the Antiterrorism and Effective Death Penalty Act of 1996 was enacted, the "fast track" under Chapter 154 was thought to be among the primary reforms.  In essence, states which provided qualified and adequately funded counsel for their state collateral reviews in capital cases (which is not constitutionally required) were promised an expedited trip through federal habeas corpus.

Many obstacles have prevented the implementation of this chapter as originally conceived.  First, the original chapter had a hostile reception in the courts, as the courts which would be subject to its deadlines misconstrued it to avoid applying it.  In 2006, Congress amended the law to abrogate some specific misinterpretations and to take the decision of whether a state qualified away from the conflicted habeas courts and give it to the U.S. Attorney General with review by the D.C. Circuit.  The AG was further charged with adopting regulations to implement the statute.
The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

How to Confirm Justice Kethledge

Or Justice Sykes or Justice Pryor or Justice Gorsuch, etc.

It has become reasonably clear that the Democrats will filibuster anyone Mr. Trump nominates.  They will do this by declaring such a person "outside the mainstream," which means simply outside the sort of "mainstream" that embraces a Constitution that meanders with the fashion of the day.  And we all know the fashion of the day gets dictated by the same groups that now support [Ed. note:  I first said "bring us"] Black Lives Matter, expansive drug legalization, and the narrative of America as a callous and racist cauldron.

In other words, there will be a filibuster against anyone Trump will, or should, nominate.

Is there an effective strategy, short of the nuclear option (i.e., eliminating the filibuster) to get a sensible, mainstream conservative confirmed?

Yes, there is.  I'll call it the Middle Way.
Veteran Supreme Court reporter Tony Mauro reports for NLJ that the Court's bar is warming up to the possibility that George Conway of  Wachtell, Lipton, Rosen & Katz may be the next Solicitor General.  His abilities are being praised by many, and the fact that he has only argued one case in the high court is virtually irrelevant.

The fact that Conway has only argued once at the Supreme Court is not rare or disqualifying, according to Yale Law School scholar Lincoln Caplan, author of "The Tenth Justice," a 1997 book about the solicitor general's office. The newest justice, Elena Kagan, had never appeared in an appellate court before, and other 20th century SGs, including Robert Bork and Archibald Cox, had limited prior Supreme Court litigation experience.

The expectation that a new SG should be a veteran at the Supreme Court lectern, Caplan said, is the result of the "reconstitution" of the specialized Supreme Court bar. Decades ago, academics were often selected for the job, and "there was an expectation of intellectual capacity," not that they be able to argue a case on Day One. "You could be a great solicitor general and not argue a single case," leaving that chore to deputies in the office, Caplan said.
As I have noted before, oral argument is vastly overrated.  Justice Breyer says it is 2% of the Court's work, which sounds about right.

I had the pleasure of working with George on an amicus brief in the Second Circuit almost twelve years ago.  The question was whether the Voting Rights Act of 1965 prohibits felon disenfranchisement laws so that even a convicted murderer in prison for life can vote from the slammer.  We prevailed (see Hayden v. Pataki, 449 F.3d 305), but the pro-murderer-voting crowd surprisingly got 5 votes on the 13-judge en banc court.

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