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A Stay for Virginia Ex-Governor

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Jess Bravin reports for the WSJ:

WASHINGTON--The Supreme Court Monday granted former Virginia Gov. Bob McDonnell's plea to avoid prison while he pursues a last-ditch appeal of his convictions on federal corruption charges.

Mr. McDonnell was sentenced to two years' imprisonment following his January conviction on what federal prosecutors characterized as a "quid pro quo bribery scheme" with a Virginia businessman seeking to promote a dietary supplement product.

In an unsigned order, the justices said Mr. McDonnell need not report to prison while he prepares his Supreme Court appeal, which the justices will then consider whether to hear.
Chief Justice Roberts issued a stay pending consideration of the government's response last Monday.  He then referred the stay application to the full court, which granted it today.

This post back in 2012 discusses the quirks of the jurisdiction of individual Justices and the full Court to issue stays.
Adam Liptak has this article in the NYT.  The first two paragraphs read:

Justice Clarence Thomas has not asked a question from the Supreme Court bench since 2006. His majority opinions tend to be brisk, efficient and dutiful.

Now, studies using linguistic software have discovered another Thomas trait: Those opinions contain language from briefs submitted to the court at unusually high rates.
From that opening, the headline of the article, and the prominent picture of Justice Thomas, readers would likely get the impression he is very different from any of his colleagues on this measure.  Here are the actual numbers from further down the article:

Over the years, the average rate of nearly identical language between a party's brief and the majority opinion was 9.6 percent. Justice Thomas's rate was 11.3 percent. Justice Sonia Sotomayor's was 11 percent, and Justice Ruth Bader Ginsburg's 10.5 percent.
In other words, Justice Thomas is barely different at all from Justice Sotomayor and not much different from Justice Ginsburg, a result very different from the initial impression formed by the top of the article.  Liptak's characterization of Justice Thomas's rate as "unusually high" is particularly questionable.  On any measure, one of the nine has to be highest, and the fact that Justice Thomas's number happens to be a smidge higher than the next highest does not come close to justifying that characterization.
The U.S. Supreme Court has released the last of its scheduled summer orders lists.  The orders in these lists are generally routine, and this one is no exception.

Among the most routine of orders are the denials of rehearing petitions.  There have been some cases where "rehearing" was granted to a case that was never literally heard in the first place.  That is, some cases turned away at the threshold (certiorari denied) have been taken back up after another case changed the relevant law.

But when was the last time the U.S. Supreme Court decided a case after full briefing and argument and then granted rehearing to reconsider its decision?  I can't remember a single case, and I've been doing this a long time. Yet lawyers keep filing the petitions.

Today's list denied rehearing in Glossip v. Gross.  The August 10 list denied rehearing in Davis v. Ayala.

When the Defense Is Correct

This last July saw a "Blue Moon," i.e., two full moons in a month.

This happens as often as my agreement with the defense in a criminal case.  So I guess it's fitting that I agree with it in this one, as reported by the NYT.

It's a Brady case.  An amicus brief taking the view that the Supreme Court should grant cert was signed by, among others, former Attorney General Michael Mukasey and Peter Keisler.  Mr. Mukasey was my debate partner last year on sentencing reform, and Peter is a friend of mine of many years, having been both Acting Attorney General in the Bush Administration and, along with my wife, a co-founder of the Federalist Society. 

And I have a confession.  I have not read either the petition or the Third Circuit's opinion, which sided with the government (as have other circuits on the question presented).  If Mr. Mukasey and Peter Keisler say so, that's good enough for me. The amicus brief was also signed by Seth Waxman, the Solicitor General toward the end of Blll Clinton's term, and a learned man of many bad ideas but widely and correctly respected integrity.
Rory Little has this summary at SCOTUSblog of the criminal and related cases for the coming Supreme Court term.  What I found most interesting, though, is what is not there.  Not a single case of a state prisoner challenging his conviction or sentence in federal court has been scheduled for oral argument next term.

The full list of cases taken up for the next term so far is here.  Not a single "CFH" on the list.  There are two "CSH" cases, where the Supreme Court has taken a habeas corpus (or equivalent) case directly from the state courts.  There are four "CSY" cases, straight criminal appeals from state courts.  (Two of these arise from the same case, and a third presents a common question with the two.  CJLF has filed a single brief in all three.)  There are three "CFY" cases, federal criminal appeals.

Federal habeas for state prisoners lies at the crossroads of federalism, criminal law, and protection of individual rights, and that intersection has been the site of many collisions.  It has occupied a disproportionate amount of the Supreme Court's docket for many years.  Maybe not this year.

There are, of course, many more cases to be added.  Daniels v. Webster, discussed in this post by Ian Sonego, is a federal-prisoner habeas case that is highly likely to be added to the docket.

In addition to argued cases, there are summary dispositions, and chastising federal courts that just can't stand the fact that Congress took them down a peg in 1996 will doubtless be among those.  Even so, this could be the lightest term for state-prisoner federal habeas in some time.

As Rory notes, the reason for the Supreme Court to take criminal and habeas cases directly from the state courts is to get straight to the underlying issue without dealing with the limitations placed on the federal habeas remedy by Congress or the Supreme Court itself.  Perhaps the Court believes that the major questions of habeas procedure and limitations have largely been addressed and wishes to devote more attention to the underlying criminal law and procedure questions.
Adam Liptak covers the U.S. Supreme Court for the New York Times.  Naturally, he leans the opposite way from my point of view.  That seems to be pretty much a job requirement to work at the NYT.  Even so, his coverage is generally perceptive and shows some balance, unlike the NYT's coverage prior to his tenure.

That is why I was surprised to see him go completely off the rails in this article, published today, on the Supreme Court's summary disposition cases.  The headline reads "Supreme Court's Unsigned Rulings Show a Narrow View of Rights." Liptak may not have written the headline, but in this case the headline writer did capture the misguided spirit of the article.

WASHINGTON -- The Supreme Court decided 66 cases in the usual way this last term, after full briefing and oral arguments. It also quietly issued eight other decisions.

Those rulings, more than 10 percent of the court's docket, were brief and unsigned. Presumably meant to correct errors so glaring that they did not warrant extended consideration, they nonetheless illuminated a trend in the court's work.

In most of them, one of two things happened. Prisoners challenging their convictions lost. Or law enforcement officials accused of wrongdoing won.
For criminal cases, there is a very good reason why most summary SCOTUS decisions go against the prisoners challenging their convictions.  Think you might find out what that reason is by reading the article?  Alas, no.
Continuing with the term summary (part 1 was yesterday), here are the federal criminal law cases, the prisoner rights cases, and a trio of summary error corrections.

Federal Criminal Law

Yates v. United States, February 25, 2015, 5-4 on the judgment, 4-1-4 on reasoning.  The Sarbanes-Oxley law, enacted to address financial fraud, prohibits among other things destroying a "tangible object" to obstruct an investigation.  Does that cover throwing fish overboard to obstruct a charge of a size limit violation?  No.  Justice Ginsburg wrote the plurality opinion, joined by Chief Justice Roberts, Justice Breyer, and Justice Sotomayor.  Justice Alito wrote a concurrence, and cast the deciding vote on the judgment, with a different path to the same result.  Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas dissented from the Court's departure from what she sees as the plain language of the statute.

Henderson v. United States, May 18, 2015, 9-0.  If, in the course of a criminal case, the government gains control of the defendant's guns and upon conviction he can no longer possess them, can he direct their transfer to someone else?  Yes, so long as steps are taken to insure the transferee is not a straw man.  Justice Kagan wrote the opinion for a unanimous Court.
Here is the first part of my two-part wrapup of the criminal cases in the Supreme Court term from October 2014 to July 2015.

The Big Cases

Ohio v. Clark, June 18, 2015, 9-0 on the judgment, two dissenting votes on the main issue and one hard to classify vote.

The question is whether a statement of a very young child to a teacher regarding who abused him is "testimonial" and therefore subject to exclusion under the Confrontation Clause, and whether it makes a different that the teacher is a mandatory reporter under the state's child abuse reporting statute.  This opinion goes a very long way toward cutting back the expansive definition of "testimonial" statements - and therefore the range of evidence excluded by the Confrontation Clause - that had been stated in Davis v. Washington (2006).  Although the Court does not categorically shield all statements to anyone other than law enforcement officers from exclusion under Crawford, we can see that such exclusion is going to be very much the exception and not the rule.  State-law hearsay rules will now be the primary authority for whether such statements are admitted. 

Justice Alito wrote the opinion.  Justice Scalia, joined by Justice Ginsburg, would preserve Davis in its original breadth, though they agree that it is not so broad as to cover this child's statements.  Justice Thomas continues to go his own way, focusing on the formality of the statements, a criterion obviously lacking here.

This case will likely have the largest impact of any of the term.  It is a huge win for prosecuting violent crime generally and domestic violence in particular.  The fact that only two Justices voted for a broad definition of "testimonial" statements is particularly striking.  CJLF's brief is here.

Justice Breyer's Dubious Authorities

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The following is a guest post by Connecticut Senior Assistant State's Attorney Harry Weller, commenting on Justice Breyer's dissenting opinion in Glossip v. Gross on Monday. The Connecticut Superior Court decision referred to is In re Death Penalty Disparity Claims (Oct. 11, 2013), previously noted in this post.   As always, opinions expressed by guest bloggers are their own.

I was taken aback when I read Justice Breyer's reference to Prof. John Donohue's law review article about racial bias in Connecticut's administration of its capital sentencing scheme. That a United States Supreme Court Justice would quote an article about a study that was thoroughly rejected in litigation is astonishing. This is especially so in this instance, when the proponents of Donohue's study kept his written report from the habeas court to also block admission, on hearsay grounds, of the devastating and unqualified evisceration of his study by the state's expert.

I'm equally concerned that Justice Breyer cited the report without questioning the validity of Donohue's "egregiousness" scale. After all, Donohue just made up the scale and never tested it objectively to determine whether it indicated anything meaningful or relevant about  Connecticut's capital sentencing scheme. Thereafter, when his egregiousness results--compiled by law students from scrubbed summaries--disagreed with the results dictated by the statutory criteria for imposing a death sentence--as evaluated by experienced prosecutors, judges, and juries based on all the evidence--Donohue determined that the latter were arbitrary.

Glossip v. Gross Podcast

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For those of you who can't get enough of my commentary on Glossip v. Gross (and I know you're out there), yesterday's FedSoc teleforum is now available as a podcast.

Seriously, I'm told that the number of downloads of the podcast versions of the teleforums greatly exceeds the live participation on the calls, and I thank the Federalist Society both for hosting the teleforum and making the podcast available so promptly.

Glossip Symposium at SCOTUSblog

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It's been a busy day in the wake of Glossip.  The case has drawn a lot of media attention.  We will have some links to coverage tomorrow.

Tomorrow I will be on a teleforum with the Federalist Society at 2:00 p.m. ET.

SCOTUSblog is having a symposium on the case.  The first post to be published is by Alabama SG Andrew Brasher, a co-amicus on our side of the case.

I have sent in my entry.  I will post the last section after the break.  I'll have a link to the The full post when it is available on SCOTUSblog.

Update:  The posts by Deborah Denno and Stephen Schwinn are available now.  They are not happy campers.
The title of this post is taken in part from Ed Whelan's column in NRO's Bench Memos. His observations are especially pertinent to the claim, repeated ad nauseum, that the death penalty is headed for extinction.

There was a time when this was true.  As Ed reminds us, however, it was 43 years ago.  On this very day in 1972, in Furman v. Georgia: 

...five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can't agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. 

This morning, about two generations and 1411 executions later, the Court issued its opinion in Glossip, saying, among many other things (emphasis added):

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, "[i]t necessarily follows that there must be a [constitutional] means of carrying it out." 

So much for our abolitionist friends (or anyone) claiming to have a crystal ball.


1.  Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence.  For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.

2.  If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg).  Neither did.  It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.

3.  The abolitionist shake-and-jive of trying to dry up lethal injection drugs as a means to end the death penalty not only failed; it backfired.  The Court has caught on, and caught on explicitly.

In my view, today's decision was the most significant Supreme Court victory for the death penalty since Gregg was decided in 1976.

P.S.  Last week, conservatives were doing a good deal of grousing about Burwell and Obergefell, and generally about Republican Supreme Court appointments. CJLF takes no position on those two cases.  I personally, however, would like to thank President Reagan for Antonin Scalia and President George H. W. Bush for Clarence Thomas, both of whom shredded the Breyer dissent.  And a special thanks to President George W. Bush for Sam Alito, whose precision, perceptiveness and analytical rigor were on bold display this morning.

UPDATE:  The CBS Radio News at 1 pm EDT led off with the Glossip case, and within 15 seconds was playing a comment by Kent.

Victory in Glossip

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The opinion is here, 5-4, by Justice Alito.  I will have more later.

Update:  At the end, the opinion of the Court says,

Finally, we find it appropriate to respond to the principal dissent's groundless suggestion that our decision is tantamount to allowing prisoners to be "drawn and quartered, slowly tortured to death, or actually burned at the stake." Post, at 28. That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments.
There is a side debate between Justices Scalia and Thomas and Justice Breyer regarding the constitutionality of capital punishment itself.  At first glance, Justice Breyer's argument appears to be all the usual stuff we have refuted time and again.

Update 2:  CJLF has this press release.

And Then There Were Three

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The WSJ's Washington Wire blog has this post on the remaining three cases of the current US Supreme Court term.  Word is they will all be decided tomorrow (Monday).

Something for everyone.  Here at C&C, we will be focused on Glossip v. Gross, the lethal injection with midazolam case.  Those who eat, sleep, and breathe politics will care most about the Arizona redistricting case.  Those who focus on issues of the environment and government regulatory overreach will be most interested in the power plant case.

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