Recently in U.S. Supreme Court Category

The calendar for April arguments in the US Supreme Court is available here.  There are no state criminal cases or state-prisoner habeas cases on the docket.  Should we be grateful for "salutary neglect"?

On Tuesday, April 17, the Court hears argument on the retroactivity of the rollback of the crack v. powder cocaine sentencing ratio.  There are a number of prior posts on this blog on the subject, including

Obama Signs Reagan Version of Crack Sentencing

The Crack Ratio

Crack Retroactivity and Plata

Crack Sentencing

The big case in terms of press coverage will be the Arizona immigration case on Wednesday, April 25.

The US Supreme Court has denied a stay of execution to Rodrigo Hernandez, convicted of the murder of Susan Verstegen of San Antonio, Texas.  Eva Ruth Moravec has this story for the San Antonio Express-News.

The case had gone cold until Hernandez was DNA-tested after another assault.  His DNA also matched a sample from the 1991 murder of Muriel Stoepker, 77, in Grand Rapids, Michigan.

Update:  Last words -- "This stuff stings, man almighty."  (We now pause to break out the violins.)  The AP reports it as "This stuff stinks, man."

On this video, Walter Mossberg of the WSJ reviews a Skype-based device called telyHD.  With one of these and a big-screen TV on each end, people can have video chats in high definition with a full-room view, rather than the small, low-res, tightly focused video chats that have been typical.  Mossberg's written review is here, but it may be limited to WSJ subscribers.

Mossberg emphasizes home use, but it seems to me this device would be useful for televised testimony in cases where such testimony is permissible.  A witness could testify from another country or a hospital bed in a more realistic way at less cost than with earlier technology.  The device costs $250, and the calls cost nothing.

Personally, I think minor witnesses, at least, should be allowed to testify this way simply to save money and reduce inconvenience to the witness.  If the defendant demands personal testimony by the lab tech under Melendez-Diaz just to gum up the works, there could be a telyHD in the lab building.  Instead of wasting all day at the courthouse, the tech could work until it was time to testify, do his 15 minutes testifying about the lab test that actually involves no real controversy, and then get back to work.  Whether two-way television satisfies the Confrontation Clause remains controversial, of course, but I think the Supreme Court will eventually come around to the conclusion it does (over Justice Scalia's vigorous dissent, if he's still there).  See 535 U.S. 1159-1169.

Adam Liptak has this story in the NYT on Supreme Court Justices' attendance at the State of the Union address.  He includes a research nugget.  It's always interesting when a researcher is surprised by his results.

The Notorious Ninth gets another unanimous summary reversal today in Ryburn v. Huff.  The case involves police entry into a home under circumstances they believed to be exigent and qualified immunity in a subsequent civil suit.

(My summaries of this morning's cases are necessarily brief.  I may expand on them later today.  Further discussion in the comments is welcome, as always.)

The Sex Offender Registration and Notification Act (SORNA) expressly gives the Attorney General authority to specify its applicability to offenders convicted before enactment.  So does the act apply to pre-enactment offenders by its own force, without AG action?  Not surprisingly, the US Supreme Court answered that question no in Reynolds v. United States.  It sent the case back to the Third Circuit to decide if the AG had validly specified such application.

If police attach a GPS tracking device to someone's car and use it to track his movements over a substantial period of time, it that a "search" within the meaning of the Fourth Amendment?  Yes, said all 9 Justices of the Supreme Court today in United States v. Jones.  The Court split 5-4 on the rationale, though.  Justice Scalia for the majority (with Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor) looked to the word "effects" in the Fourth Amendment and the trespass-based approach used before Katz v. United States in 1967.  Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, reaches the same result with the "reasonable expectation of privacy" rationale that the Court has used, for the most part, since Katz.

No criminal law action from the US Supreme Court today.  The Court issued one per curiam opinion and one stay order, both in redistricting cases.  Lyle Denniston covers them at SCOTUSblog here and here.

The US Supreme Court decided the decidedly odd procedural default case of Maples v. Thomas this morning.  "The sole question this Court has taken up is whether, on the extraordinary facts of Maples' case, there is 'cause' to excuse his procedural default."  As noted in my post of July 13, the essential facts are:

Maples is a double murderer who was represented by the big-name New York law firm of Sullivan & Cromwell for his state collateral review petition.  However, the big shots blew the deadline to appeal because (1) they didn't bother to inform the state court of a change in the attorneys handling the case; (2) the firm had a strange policy of not letting the attorneys use the firm name in their appearance -- even though the firm touts the work on its web site; and (3) when notices of decision addressed to the individual, departed attorneys arrived at the firm's mail room, the mail room sent them back to the court.

On "the extraordinary facts," it is not too surprising that the Court answered the question "yes."  See my post after the oral argument.  As predicted, the resulting precedent is narrow, at least for the time being.  One aspect of the opinion that I find particularly disappointing is what it does and does not say regarding who is to blame for the mess.

First, and most importantly, is the narrowness of the opinion.  The Court does not back off from Coleman v. Thompson.  Attorney error in habeas is not "cause" for default, even something as basic as blowing an appeal deadline.  "We do not disturb that general rule."  Abandonment is distinguished from error.  Look for petitioners' briefs to push an ever-expanding definition of abandonment from this point onward.  Hopefully, the courts won't go for it and not much damage will be caused.

No opinions out of the US Supreme Court this morning, summary or otherwise.  The orders list is here.  Regrettably, the Court declined to correct the Third Circuit a second time in the Kindler case, Justice Kagan recused.

The questions the State of California asked the Supreme Court to review in Cavazos v. Williams were:

1. Whether a habeas petitioner's claim has been "adjudicated on the merits" for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.

2. Whether, under § 2254, a federal habeas court (a) may grant relief on the ground that the petitioner had a Sixth Amendment right to retain a biased juror on the panel and (b) may reject a state court's finding of juror bias because it disagrees with the finding and the reasons stated for it, even where the finding was rationally supported by evidence in the state-court record.

The Court accepted Question 1 and turned down Question 2.

The Ninth Circuit opinion, by our favorite circuit judge, is here.

Today is conference day at the US Supreme Court.  This time last year, the Court decided to grant certiorari in one case.  The announcement was made in the following Tuesday's orders list, and the case was argued at the beginning of this term. The Court normally only announces a grant the day of the conference if it wanted to hurry things up to hear argument this term.  If no list is released today, as is likely, it is a good bet that any cases granted are for next term.  Update:  I should have listened to Yogi Berra and not made predictions, especially about the future.  The Court released an orders list granting certiorari in Cavazos v. Williams, No. 11-465 and two civil cases. [End of update.]

SCOTUSblog's Petitions to Watch list is here.  Pennsylvania has two capital habeas cases on the list, Wetzel v. Lambert and Wetzel v. Kindler.

The Cert Pool has the full conference list here.  Cases where a criminal defendant is the petitioner, and is proceeding in forma pauperis, are not considered for SCOTUSblog's list.  Those where the Court has asked the state to file a brief in opposition bear watching.  Among these is Ramirez v. California, No. 11-7424.  In that case, the California Court of Appeal rejected a claim that a sentence of life with possibility of parole for a 15-year-old involved in a double felony-murder violates the Eighth Amendment.

Other capital cases on the docket include the perennial Nunley and Taylor cases from Missouri.

In 1965, the great Judge Henry Friendly warned against the Warren Court's drive toward The Bill of Rights as a Code of Criminal Procedure in an article with that title, 53 Cal. L. Rev. 929.  "[I]n applying the Bill of Rights to the states, the Supreme Court should not regard these declarations of fundamental principles as if they were a detailed code of criminal procedure, allowing no room whatever for reasonable difference of judgment or play in the joints." 

Friendly's main point was that state legislatures and other rule-making authorities should be allowed to make the judgment calls outside the few, simple rules actually in the Bill of Rights.  The Court did not listen, and today there are few questions of criminal procedure where the defense lawyer cannot "make a federal case out of it."  Indeed, there are seminars telling lawyers to do just that, so that they can get a second bite at the apple in federal habeas if the state court rejects the claim.

How about evidence? Certainly the Bill of Rights does have some evidentiary provisions, including the privilege against self-incrimination, the right to confront adverse witnesses, and compulsory process for defense witnesses.  But how about the bulk of the evidence code, the underlying purpose of which is simply to have trials decided on reliable evidence subject to adversarial testing.  Should the Supreme Court declare a general constitutional right to be tried on only reliable evidence and thereby make itself the overseer of this area of law for the entire nation?

The Court looked at that prospect in Perry v. New Hampshire, and today it beat a hasty retreat.

The US Supreme Court has decided Perry v. New Hampshire, described in prior posts here and here.  The 8-1 opinion by Justice Ginsburg appears from the syllabus to be in accord with CJLF's brief.  Justice Sotomayor dissents alone.  I'll have some more observations shortly.  Follow-up post is here.

In 1971, the Supreme Court created a constitutional tort remedy against federal agents who violate constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389.  Subsequent cases created qualified immunity for actions where the legality of the agent's actions were fairly debatable at the time.

How about federal prisons operated by private contractors?  No need to expand Bivens, the Court said today in Minneci v. Pollard, No. 10-1104.  Just sue the privately employed guards in a state tort action like you would any other employee of a private business who violates your rights. 

For one thing, the potential existence of an adequate "alternative, existing process" differs dramatically in the two sets of cases. Prisoners ordinarily cannot bring state law tort actions against employees of the Federal Government....  But prisoners ordinarily can bring state-law tort actions against employees of a private firm.

The discussion makes clear that the Court is going to be very reluctant to expand Bivens into any new territory.  Bivens won't be expanded if there is another remedy, and maybe not even then.

Justices Scalia and Thomas concur.  They go further and say that "Bivens and its two follow-on cases" should be limited "to the precise circumstances that they involved."  Justice Ginsburg dissents alone.