Recently in U.S. Supreme Court Category

Ryan v. Wood, 14A82 (today):

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted. The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction. The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.
No dissent is noted.  That does not necessarily mean the decision is unanimous, but any Justice voting against the order, if any, did not feel strongly enough about it to have it noted.

The Court denied Wood's motion for stay and petition for certiorari in the parallel case seeking review of the Arizona Supreme Court's decision.

Wood's execution is set for 10:00 a.m. Mountain Standard Time tomorrow.  Arizona doesn't go in for that biannual clock-fiddling nonsense.  That's 10:00 a.m. PDT and 1:00 p.m. EDT.

Update (Wednesday, 7/23):  Yesterday the Ninth Circuit rejected an attempt by Wood to reopen his case via Federal Rule of Civil Procedure 60(b).  This morning the U.S. Supreme Court denied a stay of execution and writ of certiorari in that case.  No dissent is noted.

Update 2:  Now the Arizona Supreme Court has issued a stay, according to this AP story 1:41 p.m. EDT 7/23.

Update 3:  The 2:48 EDT update of the AP story (same link) says Arizona Supreme lifted the stay an hour later.  "The appeal focused on arguments that Wood received inadequate legal representation at his sentencing, along with a challenge about the secrecy of the lethal injection drugs."

Arizona Moves to Vacate Wood Stay

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The State of Arizona has filed in the U.S. Supreme Court an application to vacate the stay of execution of murderer Joseph Wood, noted yesterday.  The case is Ryan v. Wood, 14A82.

The Ninth Circuit has a very helpful collection of the pleadings in this case.  The Supreme Court papers are in green.  The administrative folks at the Ninth really do an excellent job.  Now if we could only do something about the substance of the opinions . . .

Lest we forget what this case is about:
From the Federalist Society:

The Supreme Court issued a number of notable opinions in the area of criminal law during the recently concluded term. Members of the Federalist Society's Criminal Law & Procedure Practice Group Executive Committee offered their analysis on recent developments in the Supreme Court's criminal law jurisprudence and fielded questions from a call-in audience.

    • Dean Mazzone, Chief of the Enterprise and Major Crimes Division, Massachusetts Attorney General's Office

    • Kent S. Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation
Today's News Scan notes the stay of execution granted by a divided panel of the Ninth Circuit to Arizona murderer Joseph Wood so he can litigate his supposed First Amendment right to information about the source of Arizona's execution drugs.  The Ninth swiftly denied rehearing en banc with a dissent joined by 11 of the courts active judges.  The split was largely but not entirely on party-of-appointment lines, with Clinton appointee Richard Tallman and Obama appointee John Owens joining the dissent and Bush appointee Richard Clifton not joining it.

I have no doubt this case is headed for the Supreme Court.  It might be there already.

Podcast on Hall v. Florida

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The Federalist Society has a podcast on the U.S. Supreme Court's decision in Hall v. Florida, regarding definition of intellectual disability for the purpose of exemption from capital punishment, by CJLF's Legal Director Kent Scheidegger.

Oh, Never Mind

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I spoke a bit too soon yesterday in saying the U.S. Supreme Court had wrapped up its term.  Today we have an odd little one-paragraph per curiam disposition in Willams v. Johnson, 13-9085, a sequel to last year's Johnson v. Williams, 11-465.

The underlying issue has to do with a trial judge's dismissal of a juror.  As with a great many issues in criminal procedure, there are state law requirements overlaid with federal constitutional case law.  The state appellate court, in its decision rejecting the claim, did not separately discuss the federal question.  In the Ninth Circuit, the notorious Judge Stephen Reinhardt engaged in his favorite pastime of evading the habeas corpus reforms enacted by Congress in the Antiterrorism and Effective Death Penalty Act of 1996.  Declaring that the state court had ignored the federal claim and therefore not ruled on the merits, he found himself freed from the deference shackles imposed by Congress and proceeded to decide the claim de novo, a bit of legal Latin which, in this context, means "we don't give a damn what the state court decided."  The mercurial Chief Judge Alex Kozinski went along with this, as did a district judge sitting by designation.

SCOTUS was not amused and slapped down the Ninth in yet another unanimous AEDPA reversal last year.  However, the Supreme Court committed its own error in the process.  Along with saying that the Ninth should have applied the deference standard, for reasons well explained and quite correct, the opinion contains an otherwise unexplained line that "under that standard respondent is not entitled to habeas relief."  The Court also denied a petition for rehearing.

On remand, the Ninth thought it was bound by this statement.  Today, the Supreme Court said no, go ahead and decide the case under the deference standard.  No explanation; no apology.

The Court also issued a short orders list vacating and remanding some cases in light of recent decisions and granting certiorari in some civil cases.
Today the U.S. Supreme Court wraps up its October 2013 Term.  Technically, the term continues until the beginning of the next term on the First Monday in October, but today is the last session day, and we can expect little but routine administrative orders and emergency action on stays until just before the next term begins.

Most of the talk will be about religion/contraception/Obamacare case.  Off topic for this blog, so no comment here.  Also chatworthy is the involuntary payments to the government employees' union case.  Again, not here, despite my personal interest in the matter.

The Court took up five cases, all civil.  The one criminal-related matter is Mellouli v. Holder, a deportation for drug-dealing case.  SCOTUSblog's case page has more info.

Th-th-th-th-that's all folks.
As Bill noted Wednesday, the United States Supreme Court in Riley v. California declined to extend to contemporary phones the doctrine that when a person is arrested everything on him can be searched without a warrant.

This case involves applying a two-century-old constitutional provision to technology that was nearly unimaginable even twenty years ago, much less two hundred.  The approach used in Chief Justice Roberts' unanimous opinion for the Court is to assess the degree of intrusion and balance that against government interests.  I think we should also look at the Fourth Amendment itself and see if anything is closely analogous.  The First Congress's handiwork, ratified by the requisite number of states, goes out of its way to protect "papers."  The emails stored on a modern smart phone have the same informational content as the "papers" of 1791.  It is the message, not the medium, that matters here, Marshall McLuhan notwithstanding.

The asserted justifications for searching the phone immediately without a warrant are weak.  The police can seize the phone, remove the battery, and put it in the evidence locker.  It's not going anywhere, and neither is the data, while they explain to a magistrate why they need to search it.  I have no problem with the substantive Fourth Amendment holding in this case.

But the police were not, or should not have been, the ones on trial in the case of the People of the State of California v. David Riley.  The questions to be decided in that case were whether Riley carried concealed and loaded weapons and whether he did so to benefit a criminal street gang.  Should the contents of the phone, surely admissible if the police had gotten a warrant, be excluded from evidence on the gang question simply because they did not know they needed to get one?

The Supreme Court did not say, and it was not asked to say.  But I think the question is important.
Continuing its mediocre record in the Supreme Court, this Administration's SG's Office lost in the Riley and Wurie cases today, failing to get a single vote.

The cases concerned, as I noted before, a complicated and important Fourth Amendment question, and I did not attempt an answer, not least because, unlike the rest of the world, I don't even carry a cell phone.  I did predict that the Court would not simply walk away from the search-incident-to-arrest rule of Robinson, and it didn't.  The Court declined to extend that rule, however, to cell phones.  It's hard to argue with the result, given, as the Chief Justice points out, that cell phones can and often do contain the owner's entire life, and that they do not present the sort of immediate physical danger to officers that the search-incident-to-arrest rule was created to contain.

The Court's opinion in the two cases is here.
The Heritage Foundation summarizes today's unanimous (as to result) victory for the prosecution over a defendant who wanted to cheat his way to a little more dough. This is the gist of Loughrin v. United States:

The federal bank fraud statute, 18 U.S.C. § 1344(2), makes it a crime to knowingly execute a scheme to obtain property owned or possessed by a bank "by means of false or fraudulent pretenses, representations, or promises." Writing for a Court that was unanimous as to the result but disagreed slightly as to the reasoning, Kagan ruled that the statute does not require the Government to prove that a defendant intended to defraud a financial institution, only that the defendant intended to ob­tain bank property "by means of" a false statement. The Court affirmed Loughrin's conviction for submitting forged stolen checks to a retail establishment, rather than directly to a bank. Scalia, joined by Thomas, wrote a separate concurring opinion questioning how the majority's interpretation of the term "by means of" would apply in future cases. Alito wrote a concurring opinion arguing that the statute requires the government to prove only that the defendant knowingly sought to obtain money by means of a falsehood and not for any specific purpose.

As I said in my entry last week on the defendant's loss in United States v. Abramski, offenses like this are really easy to avoid. Don't cheat.  If you want money, work for it like everybody else.

Yes, there are legitimate questions about federal overreach.  Yes, the country should do a good deal of thinking about the seemingly limitless growth of criminal jurisdiction.  Yes, the government should be held to the letter of the law. But in any individual case, there is almost always an easy way to moot these questions: Be honest.

Execution Notes

Earlier today, both Bill and the News Scan noted the executions in Missouri and Georgia.  All of the coverage emphasized these being the first since the "botched" Oklahoma execution, as if that were a major event that somehow changed things.  It was not.  In that case, they failed to insert the needle correctly and failed to check that it was correct.  Those have been known dangers all along.  Nothing was different after that event than it was before.

The Supreme Court orders denying stays in the Georgia case are here, here, and here.  No dissents are noted.

The orders denying stays in the Missouri case are here, here, here, and here.  Of these, only the third has any dissent indicated.  "Justice Sotomayor would grant the application for stay of execution."  The Missouri AG's office has provided the application and opposition for the one with the dissent.  The issues presented are:

1. Must a death row inmate propose a specific, feasible. more humane alternative method of execution in order to plead a viable Eighth Amendment claim?

2. Is the standard for an Eighth Amendment claim literally that the method is "sure or very likely" to cause unnecessary pain? Or does that really only mean the method presents a substantial risk of serious pain, which the plaintiffs allege is a lesser standard?
Given that only one Justice openly dissented on denial of a stay on this application and none did on the other applications, any notion that there are going to be stays granted on broadly applicable questions on method of execution is refuted.

Moments ago, the Supreme Court posted this denial of a stay of the Florida execution of John Henry.

Mr. Retroactivity

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Remember Edward Dorsey?  He was the defendant in Dorsey v. United States, in which the Supreme Court, 5-4, walked past the Savings Statute, 1 USC 109, to find that the Fair Sentencing Act applied retroactively for the benefit of those convicted on or after the day it was signed into law, regardless of its effective date.

That degree of retroactivity, bad as it was, pales by comparison to the essentially time-unlimited retroactivity the Justice Department endorsed today for lighter drug penalties across the board.

What happens when we make lighter drug sentencing retroactive?  Easy  --  the druggie gets out earlier.  And what happens then? Easy again  --  he goes right back in business.  Why would he do anything else when he sees that we've lost our nerve?

Now as I was saying about Mr. Dorsey......
Today's opinion in Bond v. United States quotes Justice Felix Frankfurter's classic article, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947).  I have modified that title a bit for this post.

In Bond, the Court "ducked" the constitutional question of whether Congress had the authority to make a federal case out of an ordinary assault perpetrated by chemical means, which would normally be a purely state case, in order to implement the international Convention on Chemical Weapons.  The Court did so by finding that the statute doesn't actually reach Ms. Bond's conduct at all, in the process plowing some difficult ground in the field of statutory interpretation.

I had previously posted on this case in January 2013, when the Court took the case up, and last October, when the Court heard oral argument.  As previously noted, Carol Bond's "husband and best friend had an affair, resulting in the friend's pregnancy.  Bond was certainly justified in being angry and taking action, but poison was over the top.  That is a crime for which she should have been prosecuted and punished -- by the Commonwealth of Pennsylvania" not the federal government.  Today the Supreme Court agreed unanimously, but disagreements as to why explain why this case took so long.

"Hard cases make bad law," it is often said.  This case exemplifies how bad laws make hard cases.  We begin with treaty negotiators botching the drafting process, with Congress meekly following suit.  The result is a mess. 
Last weekend, Adam Liptak had this article in the NYT:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include "truly substantive changes in factual statements and legal reasoning," said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.
But has the Court, in recent years, actually "alter[ed] the law of the land"?  None of the recent examples Liptak gives us involve revision of the opinion of the Court.  They are all dissents or concurrences.  A concurrence may establish precedent only when there is no majority, and a dissent never does (IMHO).  The opinion of the Court that Liptak notes being revised is Dred Scott v. Sanford (1857), and I'm pretty sure that case is no longer good law anyway.

I skimmed briefly through Lazarus's article and didn't see any opinions of the Court being revised in substantive ways since the 1980s.

Of course, there is no need for revisions of opinions to be quiet in any case.  The right way to do it is to issue an order making the change.  That's how the California Supreme Court does it.
Although Hall v. Florida got most of the attention yesterday, the Supreme Court also decided two cases in favor of the police, both unanimous at least in part.

Plumhoff v. Rickard involves the police's use of deadly force against someone who led them on a high-speed chase over 100 miles an hour and continued trying to escape even after the police had him cornered.  There are several holdings worth noting.

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