Recently in U.S. Supreme Court Category

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 ยง3E1.1 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

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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

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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.

A Civil Day at SCOTUS

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Today is all civil cases at the U.S. Supreme Court.  The oral argument calendar is three consolidated EPA cases.  The two decisions announced today were in civil cases.  Still waiting on Elonis.

The most controversial case, by far, will be the racial gerrymandering case, Alabama Black Legislative Caucus v. Alabama.   Part IV of the opinion deals with when race is the "predominant motivating factor," an issue that comes up in Batson cases.  Not sure if there will be any spillover.

In dissent, the ever-entertaining Justice Scalia takes aim at the way the majority bends over backwards to allow the plaintiffs to change their theory of the case after they were losing.

However, rather than holding appellants to the misguided legal theory they presented to the District Court, it allows them to take a mulligan, remanding the case with orders that the District Court consider whether some (all?) of Alabama's 35 majority-minority districts result from impermissible racial gerrymandering....  It does this on the basis of a few stray comments, cherry-picked from district-court filings that are more Rorschach brief than Brandeis brief, in which the vague outline of what could be district-specific racial-gerrymandering claims begins to take shape only with the careful, post-hoc nudging of appellate counsel.
Well, I know how I'm going to title my next pleading:  "Rorschach Brief in Support of Motion for Leave to Take a Mulligan."
The Attorney Discipline section of the U.S. Supreme Court's regular Monday orders list is not often interesting.  Mostly it's lawyers who have been disbarred by their home state courts getting routinely booted by SCOTUS as well, and that is rarely newsworthy.  But see In re Clinton, 534 U.S. 1016 (2001).

Today's list has an interesting item, though.  The Court ordered a lawyer who had submitted an unintelligible petition to show cause why he should not be disciplined.  Today they let him off with a finger wag.

A response having been filed, the Order to Show Cause, dated December 8, 2014, is discharged. All Members of the Bar are reminded, however, that they are responsible--as Officers of the Court--for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated "in plain terms," and may not delegate that responsibility to the client.
Lyle Denniston has more on SCOTUSblog.
Yesterday the U.S. Supreme Court took up once again the question of whether its decision in Miller v. Alabama, that LWOP sentences for under-18 murderers must be discretionary and not mandatory, applies retroactively to overturn sentences that were correctly decided on appeal under the law existing at the time.  The previous case on this question, Toca v. Louisiana, became moot when Toca's sentence was commuted. 

The new case is Montgomery v. Louisiana, No. 14-280.  This case is a better vehicle than Toca, as the facts are more typical of an LWOP case.  Montgomery murdered Deputy Sheriff Charles H. Hurt in 1963, when Montgomery was 17.  He could have been executed in the electric chair at the time, but the jury granted him leniency.

The question presented as phrased by the petitioner/defendant is, "whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?"  The Court added its own question, "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ____ (2012)?"

Note the "die in prison" phrasing.  Apparently death is no longer different.

My initial impression is that the answers are "no" and "yes."  Since the parties are agreed on the jurisdictional point, the Court may appoint an amicus to argue the "no."

In other action, Court decided two civil cases today.  Still waiting on the Facebook threats case, Elonis v. United States.  Possibly tomorrow.

Yesterday the Court turned down the Wisconsin voter ID case, Frank v. Walker, No. 14-803.

On February 5, the U.S. Supreme Court stayed the execution of Texas quadruple murderer Lester Leroy Bower while it considered his petition to take up his case for full briefing and argument.  Today the high court denied the petition, and the stay automatically terminates, giving Texas the green light to proceed (if they can find some pentobarbital).

In order to accept Bower's claim, the Court would need to further extend what is possibly the worst of all the errors in its capital sentencing jurisprudence, the Lockett/Penry rule that the defendant must be allowed to introduce "mitigating" evidence that has nothing to do with the crime and that the jury must be instructed to consider it.  The rule is wrong for the reasons explained by Justice White in Lockett v. Ohio, Justice Scalia in Penry v. Lynaugh and Walton v. Arizona, and Justice Thomas in Graham v. Collins.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissents from today's order.  Interestingly, Justice Kagan does not join this opinion.

The Theocracy Brief

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I've written a lot of amicus briefs in the U.S. Supreme Court.  Indeed, at this point I suspect there are few, if any, people who have written more.  My arguments have shown up in the opinions on a good many occasions, sometimes attributed but generally not.

The number of amicus briefs has risen in recent years, and their usefulness to the Court, on average, has declined.  Many are submitted just so the submitters can say they were in the case.  CJLF never does that.  If we have nothing of value to add, we don't file.  That rarely happens, but it has happened.

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus brief purporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.

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