Recently in U.S. Supreme Court Category

Breaking News: Dog Doesn't Bite Man

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As the old journalism saying (or perhaps cliche) goes, if a dog bites a man, that's not news, but if a man bites a dog, that's news.  So how much less newsworthy is it if a dog does not bite a man?

An anti-death-penalty organization breathlessly announced in an email today the "BREAKING" news that (gasp! horrors!) the United States Supreme Court has denied review in a case where the defendant sought to raise, for the umpteenth time, the question the high court settled definitively forty years ago this coming July -- no, the Constitution does not forbid capital punishment.

The case is Walter v. Pennsylvania, No. 15-650.  SCOTUSblog has a case page on it, though I don't know why.

Would it be news if SCOTUS turned down a petition asking it to decide if federal courts had authority to decide whether a statute is constitutional, a question it decided in 1803?  How about one asking for a decision on whether racial segregation of public schools is constitutional, a question it decided in 1954?  Gregg v. Georgia is no less solid than those precedents.

What is the point of the email?  This "really bad news" is an occasion to send the organization money.
Yesterday's big criminal law news was the U.S. Supreme Court's decision in Montgomery v. Louisiana.  See my prior post and today's News Scan.  However, the decision in Musacchio v. United States, No. 14-1095, is also worth noting.

A conviction can be reversed on appeal if the evidence at trial is clearly not sufficient to establish the elements of the crime.  In Jackson v. Virginia (1979), the Supreme Court made this a federal constitutional rule.  Suppose (1) the elements of a crime are A, B, and C; (2) the judge erroneously instructs the jury they must find A, B, C, and D; (3) on appeal the appellate court finds plenty of evidence to support elements A, B, and C but none on D.  Is that reversible Jackson error?  No.  Jackson concerns only what the elements the jury should have been instructed on, not what they were instructed on.

If the defendant didn't raise a statute of limitations defense at trial, can he raise it on appeal?  Not unless Congress has made the time limit jurisdictional, which it rarely does and did not do for the crime involved in this case.  How about the plain error rule?  No.  If the defendant does not bring it up, the failure of the trial court judge to do so sua sponte is not error, plain or otherwise.

That's the short version.  For a longer version, see Rory Little's post at SCOTUSblog.
Following up on my earlier post, here is a second draft of amendments to Florida Statutes.  I have rearranged and expanded some of the provisions and also added comments explaining some of the language.

Another issue is what to do about the existing judgments.  I have some thoughts on that, also, but I don't want to delay the publication of this proposal.
The U.S. Supreme Court today made Miller v. Alabama fully retroactive to all cases, no matter how old.  States that had mandatory life-without-parole for 17-year-old murderers must now either hold new sentencing hearings or make them eligible for parole, the Court said in Montgomery v. Louisiana.  It characterized the Miller rule as a "substantive" rule for retroactivity purposes.  Families of victims of juvenile murderers who adamantly oppose release therefore receive life sentences of appearing at parole hearings and reliving their tragedies. That result is disappointing but not unexpected.  CJLF's brief is here.

Also, the Court said that it had jurisdiction to review a state collateral review decision for retroactivity.  In essence, the federal rule of Teague v. Lane provides a floor (Montgomery) but not a ceiling (Danforth v. Minnesota) on retroactivity in state collateral review proceedings.  I don't have a problem with that part and didn't brief the point.  This is one more reason for states to adopt Teague for their own systems.  No point giving convicts the "head I win, tails we take it over" that results from dual standards.

Alabama and Hurst

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Jo Deann Campbell was raped and murdered 23 years ago.  She was 23 years old.  It took as long as her entire too-short life to carry out justice in this case.  See today's News Scan and this article by Kent Faulk at

The perpetrator argued against Alabama's execution protocol, similar to the one upheld by the Supreme Court last year in Glossip v. Gross.  He did not appear to get any traction with that, and the execution "went exactly as planned," according to the Prison Commissioner.

He also argued that last week's decision in Hurst v. Florida, discussed here, applies to Alabama's system.  The Court did not buy it and denied relief, although Justice Breyer did buy it.  Justices Sotomayor and Ginsburg seemed inclined to it on the merits but said that procedural obstacles would preclude relief.  They could be referring to the procedural default rule, the anti-retroactivity rule of Teague v. Lane, the deference rule of 28 U.S.C. §2254(d), or all three.

What do the other six Justices think?  They may well agree with the Alabama AG's argument, which is substantially the same as the one in my post earlier today:

"Second, and more importantly, unlike in Florida, the jury in Brooks's case specifically found the aggravating circumstances necessary to impose the death penalty. Specifically, the jury's unanimous guilty verdicts of capital murder during the course of a robbery, burglary, and rape, proved the existence of an aggravating circumstance under Alabama law," according to the AG's brief.
The Supreme Court needs to clear this up immediately.  This is much too important to leave hanging.
Update:  See the follow-up post, regarding an execution in Alabama which the Supreme Court allowed to go forward even though the murderer was making a Hurst claim.

Throughout the United States Supreme Court's modern capital punishment jurisprudence, it has clearly distinguished two separate determinations to be made in capital sentencing.  The difference is explained in, among many other cases Tuilaepa v. California, 512 U.S. 967, 970-971 (1994):

Our capital punishment cases under the Eighth Amendment address two different aspects of the capital decision-making process: the eligibility decision and the selection decision. To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. Coker v. Georgia, 433 U. S. 584 (1977). To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one "aggravating circumstance" (or its equivalent) at either the guilt or penalty phase.
*            *            *
We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."

Different requirements apply to these two decisions.  Most pertinently here, Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002) very explicitly confines its jury trial holding to the eligibility decision, i.e., the finding of at least one aggravating circumstance, and not to the weighing or the ultimate penalty decision.

Did the Supreme Court in Hurst v. Florida throw away the distinction between these two decisions that it has so carefully constructed and explained over so many years?  Some people are claiming it did.  I find that inconceivable, particularly since just a week later the Court reasserted the distinction in Kansas v. Carr, an opinion joined by eight Justices, including six who joined the Hurst opinion.

Yet the people making that claim have some sloppy language in the Hurst opinion to back them up.
The United States Supreme Court today decided the case of Kansas v. Carr, along with the companion case of Kansas v. Gleason.  The Carr brothers are Kansas's exemplar of why the death penalty is necessary.  Their crime spree of robbery, murder, home invasion, and rape is truly a case where any lesser penalty would be a mockery of justice.

Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice.  It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature.  Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.

And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, "review by this Court, far from undermining state autonomy, is the only possible way to vindicate it." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people." Ibid.
Justice Scalia wrote the opinion from the Court, and he quoted his own powerful concurring opinion in Kansas v. Marsh (2006), elevating that language from concurrence to controlling precedent.  Bravo.

In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection.  Blurring that distinction is an error, because the two decisions are quite different.  The jury instruction issue in this case illustrates the importance of keeping that distinction clear.

Prior Convictions, Once Again

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A chronic headache in writing and applying laws dealing with prior convictions is that the prior may have come from a different jurisdiction, and many crimes are defined differently across jurisdictions.  The U.S. Supreme Court has struggled for years with the Armed Career Criminal Act to determine what convictions count as priors.

Today the Supreme Court took up Mathis v. United States, No. 15-6092.  The Question Presented is:

Whether a predicate prior conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense?
Paragraph (e)(1) is the "three strikes" provision:

I should have listened to Yogi Berra and not made predictions, especially about the future.  The U.S. Supreme Court's orders list this morning does include certiorari grants as well as denials, and the Court did take up United States v. Texas, No. 15-674, even while turning down Arpaio v. Obama, No-15-643.

Questions Presented follow the break.

New U.S. Supreme Court Cases

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The U.S. Supreme Court has issued a short orders list out of its Friday conference today.

The one criminal case taken up is the corruption conviction of former Virginia Governor Robert McDonnell.  The question presented is:

Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take "official action" in exchange for money, campaign contributions, or any other thing of value. The question presented is whether "official action" is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.
The Court declined a second question on jury voir dire and pretrial publicity.

Also taken up was law-enforcement-related civil case, Manuel v. City of Joliet, No. 14-9496.  "The question presented is whether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment."

A long orders list will likely be issued Tuesday.  (Monday is a government holiday.)  If the usual pattern holds, all the grants are on today's list, and Tuesday's list will be all denials.

An NYT Hatchet Job on Ted Cruz

David Brooks has this column in the NYT on Ted Cruz, and it can only be described as a hatchet job.  CJLF does not endorse candidates and takes no position on the Republican primary.*  However, I do think we should correct misrepresentations about the candidates when they fall within our area of expertise.
In 1976, the U.S. Supreme Court reviewed and approved the Florida system of capital punishment in Proffitt v. Florida.  In that system, the jury enters the verdict of guilt of first-degree murder and makes a recommendation on sentence, but the trial judge makes the final decision on sentence and makes the essential finding that at least one "aggravating circumstance" exists.

The Florida Supreme Court added a gloss that the judge's "override" would, in practice, only work in one direction.  A jury recommendation of life in prison was essentially final, while a jury's recommendation of death could be overridden.  The Florida system is thus more favorable to the defendant than leaving the decision to the jury alone.

Over the years, the Supreme Court more than once rejected claims that this system or the similar systems of other states violated anything in the Constitution.  Then in the 2002 case of Ring v. Arizona, the Supreme Court stabbed the states and the people in the back and simply changed its collective mind, accepting the argument it had previously, unequivocally rejected.  Stare decisis, the principle of observing precedent, was thrown overboard, and the decision did not even mention the massive reliance of the states on the earlier decisions.

Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.

The Florida Legislature stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring, a foolish and unnecessary risk.  In most capital cases the existence of at least one aggravating circumstances is perfectly obvious, and there is virtually no cost in having the jury go ahead and make the finding.  Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.

How many of the existing judgments can be salvaged?  The Supreme Court said it left harmless error analysis to the state courts.  In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance.  Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.

The first thing the Florida Legislature needs to do is fix its system.  And do it right this time.
The U.S. Supreme Court today took up for full briefing and argument the case of Welch v. United States, No. 15-6418

This case began in the Southern District of Florida, where the defendant filed a motion to vacate (28 U.S.C. §2255) his conviction and his sentence under the Armed Career Criminal Act.  The District Court denied the motion and denied a certificate of appealability (COA).  Welch sought a COA from the Court of Appeals, arguing that his plea was involuntary because the government "reneged" on his 10-year deal, and he got 15 to life instead.  He also claimed his Florida priors were invalid.

In a supplemental application, he asked for the case to be held for the Supreme Court's decision in Johnson v. United States, No. 13-7120.  The Eleventh Circuit did not hold it and denied Welch's application June 9, 2015.  The Supreme Court decided Johnson on June 26 and struck down the "residual clause" of the ACCA as unconstitutionally vague.

Curious that this is a grant for full briefing and argument and not a "vacate and remand for reconsideration in light of" Johnson.  The certiorari papers are not available online yet.

Does Johnson qualify for the "first Teague exception," making it retroactive on collateral review?  Yes, I think so.  The substantive statute was declared unconstitutional.  It is not a rule of procedure.

Update:  Lyle Denniston had this post yesterday at SCOTUSblog on another case presenting an issue of Johnson retroactivity, where the Solicitor General agreed that the Court should take the issue up.  If that is why the Court has taken Welch, then I can predict what will happen.  The Court will appoint an amicus to argue against retroactivity.  The amicus will get a footnote in the opinion praising his her efforts and a unanimous ruling against him her.

Update 2 (1/15):  Helgi C. Walker of Gibson Dunn has been "invited to brief and argue this case, as amicus curiae, in support of the judgment below."

Summary Reversal on Excusing Jurors

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The U.S. Supreme Court has once again summarily reversed a federal court of appeals for failure to obey Congress's landmark reform of habeas corpus law in 1996.  Once again, it is a capital case in a circuit divisible by 3.

Because juries in the penalty phase of capital cases must be unanimous, it is particularly important to remove from the jury those members of the venire who will not actually weigh the aggravating and mitigating circumstance but instead will automatically vote against the death penalty no matter what.  This is particularly important in states which stupidly do not require the jury to deliberate to unanimity one way or the other but instead allow a single holdout juror to veto the decision of the other eleven.

People often do not state their views straightforwardly.  Sometimes they are dishonest, but more often they just haven't thought them all the way through themselves.  Determining which jurors are "Witherspoon/Witt" excludable therefore involves some judgment.  The trial judge, who sees the venire members live and in full context, is entitled to considerable deference in making this judgment.  However, anti-death-penalty judges who are just itching to overturn a death sentence regardless of how richly deserved it may be find jury selection to be a fertile source of excuses to nullify a law they disagree with.  To forbid such misuse of the law and limit the lower federal courts' power to overturn state decisions to cases of clear error, Congress enacted the "deference" provision of the Antiterrorism and Effective Death Penalty Act of 1996.  Federal district and circuit judges who regard themselves as infinitely superior to state supreme court justices hate this law and regularly ignore its mandate.  This is particularly common in the Third, Sixth, and Ninth Circuits.  Reversing them has become a significant part of the Supreme Court's workload.

In today's decision in White v. Wheeler, the Court includes the following admonition without dissent:

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty.
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary.  Judges who cannot or will not decide capital cases fairly should not sit on them.  They should be excludable just like the jurors.  If they will not recuse themselves, perhaps it is time to establish a challenge for cause.  How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

Jonathan Adler has this post at the Volokh Conspiracy.

Equitable Tolling

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The current argument session of the U.S. Supreme Court is pretty thin on criminal law.  There is one federal case involving some narrow issues, Musacchio v. United States, No. 14-1095, argued Monday.

Supreme Court decisions in civil cases may affect criminal and habeas cases, though.  That is particularly true of habeas, which is technically a civil case.  Yesterday the high court heard argument in a case involving equitable tolling of statutes of limitation, and the main precedent being discussed was Holland v. Florida, 560 U.S. 631 (2010), a capital habeas case (and one of my losses).

Habeas practitioners may want to keep an eye out for the decision in Menominee Tribe of Wis. v. United States, No. 14-510.  Perhaps it will shed some light on "extraordinary circumstances."  SCOTUSblog's case page is here. Ronald Mann has this report on the oral argument and thinks it looks grim for the tribe (and, therefore, good for the government).

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