Recently in U.S. Supreme Court Category

Tony Mauro has a two-part interview, here and here, with Frank Wagner, who is retiring as the U.S. Supreme Court's Reporter of Decisions.  Among the esoteric topics discussed are whether there should be space between and word and a long dash.

Bill Rankin reports in the Atlanta Journal-Constitution:

A federal judge on Tuesday emphatically rejected condemned inmate Troy Anthony Davis' claims that he was wrongly convicted of killing a Savannah Police officer in 1989.

In a 174-page order, U.S. District Judge William T. Moore Jr. said Davis had failed to prove his innocence during an extraordinary hearing this summer ordered by the U.S. Supreme Court.

"Ultimately, while Mr. Davis' new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors," Moore wrote. "The vast majority of the evidence at trial remains largely intact, and the new evidence is largely not credible or lacking in probative value."

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Moore did answer one question posed by the U.S. Supreme Court. He found that executing an innocent person would violate the Eighth Amendment's ban against cruel and unusual punishment.

"However, Mr. Davis is not innocent," Moore wrote.

For those who have been around the death penalty debate for a while, there is a sense of deja vu about all this. Eighteen years ago, the Supreme Court took up the case of Herrera v. Collins, 506 U.S. 390 to address the monumental question of whether a strong case of actual innocence was sufficient to block an execution, even though there was no claim that any violation of federal law or the Constitution occurred in the the trial. Once they got their hands on the case, though, the Supreme Court discovered an inconvenient truth: Herrera was guilty as sin. "Oh, never mind."

Tonight, Texas is scheduled to finally carry out justice in the case of the ringleader of one of the state's most notorious crimes. In 1993, two teenage girls, Jennifer Ertman and Elizabeth Pena, took a shortcut home and ran in to a violent street gang led by Peter Cantu. The facts are described in CJLF's brief in the first Medellin case in the Supreme Court here.  The victims' memorial web page is here.  CJLF filed two more briefs in Medellin's case: this one in the Texas Court of Criminal Appeals and this one in the U.S. Supreme Court in its second review of the case. In the last brief, we were pleased to represent Randy and Sandra Ertman as well.

Michael Graczyk of AP has this story on the case and Mr. Ertman.  He has previously attended the executions of Medellin and Derrick O'Brien, and he will be there tonight for Cantu's. Two other perpetrators escaped execution because they were 17 at the time of the crime. Some of Cantu's supporters claim it is unfair that he is executed while they were spared due to a small difference in age. That is an argument that Roper v. Simmons was wrongly decided and that it was unfair to let the others off from the punishment they so richly deserved; it is not a good argument we should let Cantu off as well. In any event, Cantu is distinguished by his leadership role in the crime as well as his age.

Update: Mission accomplished.

The U.S. Supreme Court issued this orders list yesterday. Nothing of substantive interest. This order in Michigan v. Bryant, No. 09-150, a confrontation case, has some mild interest for Court-watchers:

The motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of Richard D. Friedman for leave to participate in oral argument as amicus curiae and for divided argument is denied. Justice Kagan took no part in the consideration or decision of these motions.

I believe that is the first time the words "Justice Kagan" have appeared in a Supreme Court order. The recusal is no surprise. The US amicus brief was filed May 6, while Ms. Kagan was still SG. So the Bryant case will be decided by an 8-Justice court. A 4-4 division would mean that the Michigan Supreme Court decision in favor of the defendant is affirmed, but no Supreme Court precedent is set.

Scott Greenfield at Simple Justice has this reaction to my earlier post on Justice Kagan.  Greenfield is so over the top it is rather amusing.  I will point out a couple of inaccurate implications, though.

Greenfield characterizes my post as "castigating Elena Kagan," but I did no such thing. I expressed a concern and a hope that the concern will prove unfounded. That is a long way from castigating.

Regarding my comparison of Justice Sotomayor's background, Greenfield says, "Suddenly, Justice Sotomayor is looking pretty good compared to the pointy-headed Kagan?  Who knew that she was going from zero to hero in the eyes of those who look for 'a positive force'."

Suddenly? "Hero" is hyperbole, of course, but the implication that I have recently and suddenly changed my view on Justice Sotomayor (i.e., better than I expected from this administration) is just wrong.  The fact (easily discovered if one bothers to check) is that I wrote a positive review of Sotomayor's habeas opinions while her nomination was pending. (I didn't do the same for Kagan for the simple and obvious reason that there aren't any to review. That is part of my concern.)

I apparently touched a nerve by using the word "evil." Good. I'll try to use it more often.

I won't respond to everything in the post, but there is one more line worth mentioning. Greenfield refers to the defense side as "those of us disinclined to believe that every defendant deserves the death penalty . . . ." Um, that description would also include me.  It would also include every prosecutor and every victims' advocate I know.

Over two decades after it was rendered, the Supreme Court's ill-advised decision in Penry v. Lynaugh, 492 U.S. 302 (1989) continues to plague Texas. In the Rivers case noted in today's News Scan, the "inadequate" jury instructions in a 1988 trial tracked the statute that the Supreme Court had reviewed and upheld 12 years earlier in Jurek v. Texas.  The problem here is not trial court error, but the Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.

The Fifth Circuit also maintains that Penry error is not subject to harmless error analysis. I will have to look at that issue more closely.

Mark Sherman of AP has this article on his interview with Justice Ruth Bader Ginsburg, now the oldest Justice on the high court. "Although some have speculated she might step down next year, the 77-year-old Ginsburg told The Associated Press on Tuesday she has no plans to retire anytime soon and still wants to match Justice Louis Brandeis, who stepped down at age 82."

Justice Scalia, 74, appears to be in good health and spirits. In addition, I believe he cares too much about the real Constitution to risk a third chance that President Obama might name someone of the "Constitution requires what I think is good policy" school.

So, the Court we have as of Saturday is probably the Court we will have for the remainder of this presidential term.

Tony Mauro has this post at BLT.

As expected, the Senate today confirmed Elena Kagan as the 112th Justice of the U.S. Supreme Court. The vote was 63-37.  Paul Kane has this story in the WaPo.

I do not expect anyone nominated by the present administration to be a positive force in criminal law, but I am more concerned about Justice Kagan than Justice Sotomayor. The latter's experience as a deputy district attorney and trial judge assured us that she had looked evil in the face and knew how bad violent criminals really are. A career spent in the ivory tower provides no such assurance. It is too easy to be blase about crime and wring your hands over the poor, unfortunate torturer-rapist-murderer when you only read the facts in a transcript or opinion and then go home to your safe, leafy neighborhood.

I hope these apprehensions prove unfounded. We will see.

The U.S. Supreme Court issued this orders list yesterday, mostly routine matters. Rehearing was denied in several cases, including Berghuis v. Thompkins, No. 08-1470, the 5-4 decision that trimmed back the Miranda rule, noted here.

No surprise. Elena Kagan's nomination to the Supreme Court was voted out of committee on a nearly party-line vote, with Lindsey Graham casting the lone Republican vote in favor. Julie Hirschfield Davis has this story for AP.

SCOTUSblog has the U.S. Supreme Court calendar for the October session, although it is not on the Court's own site as of this writing. The criminal and related cases are as follows:

Monday, October 4: Abbott v. US & Gould v. US -- federal gun enhancements.

Tuesday, October 5: Michigan v. Bryant -- Confrontation Clause, Crawford, and questioning of wounded victim at the scene.

Los Angeles Co. v. Humphries -- civil liability of county for erroneous placement on child abuser list

Tuesday, October 12 (the big day for CJLF):

Harrington v. Richter:  This is a noncapital habeas murder case involving an ineffective assistance of counsel claim. The Court added the question of whether the "deference" standard of AEDPA, 28 USC §2554(d), applies when the state court decision is a summary disposition. CJLF's brief is here.

Premo v. Moore:  This is also a noncapital habeas murder case involving an ineffective assistance claim. The claim is that the attorney advised the defendant to take a plea rather than move to suppress his confession. The motion was of dubious merit, the prosecution had sufficient other evidence to convict Moore without it, and rejection of the deal would have exposed Moore to a possible conviction of a higher degree of murder and a more severe sentence.  The questions presented involve the standards for judging ineffective assistance claims in the guilty-plea context. CJLF's brief is here.

Connick v. Thompson: No singing; it's Harry, Sr. The case involves civil liability of DA offices for Brady nondisclosure violations.

Wednesday, October 13: Skinner v. Switzer: Postconviction DNA testing.

Privacy cases are also worth keeping an eye on, as the precedents set may work their way into suppression motions in criminal cases.  On Tuesday, October 5, the Court will hear NASA v. Nelson. The case involves property rights in the contents of Aladdin's lamps found during space missions privacy rights of government contractor employees during background investigations. Eugene Volokh has this post on the case and its implications.

Marcia Coyle has this article in the NLJ regarding the number of Supreme Court cases this term that dealt with "lawyering."  Broadly defining that term, she counts 16. However, it is hard to see a trend other than the greater number of cases.  The ineffective assistance cases are "a mixed bag."

We finally have a transcript of Day 2 of the Kagan confirmation hearings. Here is her exchange with Senator Durbin on the death penalty:

"I shot that bitch in the head, and blowed her brains out and all she did was wiggle," Holly Wood gloated to his cousin / getaway driver in September 1993. After an unsuccessful attempt to kill former girlfriend Ruby Gosha while she was awake and able to take defensive action, the brave Mr. Wood sneaked into her house and shot her in the head with a shotgun as she slept.

Wood is not retarded, no matter how many times you may read his defenders' propaganda reported without fact-checking. He is classified as borderline intellectual functioning, which is not "retarded" as defined in the DSM. On January 20, the Supreme Court rejected, 7-2, his claim that his trial counsel should have further pursued mental evidence. See day-of-decision post here.

The Alabama Supreme Court has set an execution date of September 2, Holli Keaton reports for the Troy Messenger. That is 17 years and 1 day from the crime.

Shayndi Raice has this short post on the WSJ Washington Wire blog on the military recruiter testimony.

"I find her actions unbecoming and certainly unbefitting a nominee to the Supreme Court," said Army National Guard Capt. Pete Hegseth, executive director of Vets for Freedom and a student at Harvard's Kennedy School of Government. The testimony came on the final day of Kagan's confirmation hearings.

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A former student of Kagan's came to her defense. Army National Guard Captain Kurt White said the accusations against the nominee are "Unfair and untrue. "She went to such great lengths to show her respect and appreciation of the military and military veterans," said White, who is also the president of the Harvard Law Armed Forces Association.

In contrast to prior nominations, there still appear to be no freely available transcripts of the most of the hearings. The WaPo site has Day 1, FWIW.