Recently in U.S. Supreme Court Category

The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

How to Confirm Justice Kethledge

Or Justice Sykes or Justice Pryor or Justice Gorsuch, etc.

It has become reasonably clear that the Democrats will filibuster anyone Mr. Trump nominates.  They will do this by declaring such a person "outside the mainstream," which means simply outside the sort of "mainstream" that embraces a Constitution that meanders with the fashion of the day.  And we all know the fashion of the day gets dictated by the same groups that now support [Ed. note:  I first said "bring us"] Black Lives Matter, expansive drug legalization, and the narrative of America as a callous and racist cauldron.

In other words, there will be a filibuster against anyone Trump will, or should, nominate.

Is there an effective strategy, short of the nuclear option (i.e., eliminating the filibuster) to get a sensible, mainstream conservative confirmed?

Yes, there is.  I'll call it the Middle Way.
Veteran Supreme Court reporter Tony Mauro reports for NLJ that the Court's bar is warming up to the possibility that George Conway of  Wachtell, Lipton, Rosen & Katz may be the next Solicitor General.  His abilities are being praised by many, and the fact that he has only argued one case in the high court is virtually irrelevant.

The fact that Conway has only argued once at the Supreme Court is not rare or disqualifying, according to Yale Law School scholar Lincoln Caplan, author of "The Tenth Justice," a 1997 book about the solicitor general's office. The newest justice, Elena Kagan, had never appeared in an appellate court before, and other 20th century SGs, including Robert Bork and Archibald Cox, had limited prior Supreme Court litigation experience.

The expectation that a new SG should be a veteran at the Supreme Court lectern, Caplan said, is the result of the "reconstitution" of the specialized Supreme Court bar. Decades ago, academics were often selected for the job, and "there was an expectation of intellectual capacity," not that they be able to argue a case on Day One. "You could be a great solicitor general and not argue a single case," leaving that chore to deputies in the office, Caplan said.
As I have noted before, oral argument is vastly overrated.  Justice Breyer says it is 2% of the Court's work, which sounds about right.

I had the pleasure of working with George on an amicus brief in the Second Circuit almost twelve years ago.  The question was whether the Voting Rights Act of 1965 prohibits felon disenfranchisement laws so that even a convicted murderer in prison for life can vote from the slammer.  We prevailed (see Hayden v. Pataki, 449 F.3d 305), but the pro-murderer-voting crowd surprisingly got 5 votes on the 13-judge en banc court.

Blocking Supreme Court Nominees

"Where you stand depends on where you sit."  That is an old and very true adage in government, equally applicable to both parties.

Is it outrageous to block consideration of a Supreme Court nominee indefinitely and leave the ninth chair empty?  For nearly 10 months now we have heard that from our friends on the left side of the aisle.  Now we have a new statement from Senate Minority Leader Charles Schumer, as Kristina Peterson reports in the WSJ.

Mr. Schumer told reporters Wednesday that if Mr. Trump were to send up a mainstream nominee, Democrats would "give them a very careful look." But if "they're out of the mainstream, we will fight them tooth and nail," he said.
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When asked if Democrats would be comfortable leaving the ninth seat open on the Supreme Court, Mr. Schumer said "absolutely."

So, it's only outrageous if the other side does it.  And how is "mainstream" defined?

Mr. Schumer declined to comment on the merits of the list of possible high-court justices that Mr. Trump released during his campaign. But the Democratic leader said on MSNBC Tuesday night that it was unlikely Democrats would embrace any Supreme Court nominee from Mr. Trump that Republicans could support.
How did we come to a situation where nominees unacceptable to one party include all of those acceptable to the other?

SCOTUS Takes 2 Brady Cases. Fact-Bound?

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The U.S. Supreme Court has taken up two cases from the District of Columbia's local court system (not to be confused with USCA-DC).  The cases involve the rule of Brady v. Maryland (1963) that the prosecution must disclose to the defense material exculpatory evidence in its possession.  "Material," in this context, means evidence that might have made a difference in the result.

The high court rewrote the question presented as simply, "Whether petitioners' convictions must be set aside under Brady v. Maryland, 373 U.S. 83 (1983)."  This is highly unusual.  Application of settled rules of law to particular fact patterns is something the high court generally leaves to lower courts.  Characterizing a case as "fact-bound" is what you do when you won in the lower court and don't want SCOTUS to get involved.  If you can get the Supreme Court to accept that characterization, it's usually the kiss of death for the other side's request to take the case up.

What is different about this case?  Is the court worried that this is a case of actual innocence injustice so compelling that it must break its usual pattern to intervene?  The justices usually defer to trial court judge's judgments on such matters, and that is certainly not how the district court judge saw this case.

Client Control and Conceding Guilt

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Today the U.S. Supreme Court declined to take up the case of Tyler v. Louisiana, No. 15-8814.  Tyler's complaint is that his lawyers ignored his direction to focus on the guilt aspect of the case and instead focused solely on penalty, effectively conceding his guilt. 

I have more sympathy with Tyler's claim than I do with most ineffective assistance claims.  There is a fundamental principle in the attorney-client relationship that the client chooses the goals and the attorney uses his professional judgment regarding the best way to achieve the client-chosen goals.  I have letters from death row complaining that, on appeal, the client has chosen a "give me liberty or give me death" goal, directing the lawyer to focus solely on the guilt verdict, and the lawyer has ignored the direction.

In the Tyler case, though, some of the reporting is leading people to believe that the guilt case against Tyler was thin and his lawyers effectively conceded the guilt of a person who might well be innocent.  After the break, I will quote a portion of the state's brief in opposition on the actual state of the evidence.

Cheaters Never Win

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Actually, cheaters do win from time to time, but not in today's Supreme Court decision in Shaw.  The Heritage Foundation summarizes the Court's unanimous opinion, per Justice Breyer, as follows:

Federal law makes it a crime to defraud a bank. Shaw obtained a customer's bank account numbers and used them to transfer funds from the customer's account to his. Convicted of bank fraud, Shaw argued that the statute makes it a crime only to "defraud a financial institution," not one of its customers. In a unanimous opinion by Breyer, the Supreme Court upheld Shaw's conviction. The Court stated that either the bank deposits are the property of the bank as well as the customer (which is why the bank can earn interest on the funds) or the bank is the custodian of the funds for the customer (which gives the bank a possessory interest in them against everyone except the customer). That neither the customer nor the bank suffered any financial loss is immaterial, because the statute does not require any such proof. Cheating a person or a bank out of insured funds is still fraud. Nor does it matter that Shaw had no purpose to defraud the bank, since the statute requires only that he had knowledge of the fraudulent scheme, which he clearly had. Finally, the statutory text is clear so the Rule of Lenity does not apply.
As noted in today's News Scan, last night Alabama executed murderer Ronald Smith.  The execution involved last-minute petitions to the U.S. Supreme Court, which is routine, but there was an unusual four-four split on the presently eight-justice court.

At the root of the case is the decision last term in Hurst v. Florida.  Under the post-1976 capital sentencing system mandated by Supreme Court precedents, courts must find the defendant guilty of murder plus at least one factor from a list of aggravating factors defined by state law before the death penalty can be considered.  In Ring v. Arizona (2002), the Supreme Court overruled its own precedent and said the jury, not the judge, must make that latter finding.  In Hurst v. Florida (2016), the court applied Ring to strike down the Florida sentencing system that it had repeatedly approved multiple times against the very same attack.

Does Hurst extend further, to require the jury and not the judge to make the additional findings that state law requires before a "death-eligible" defendant is actually sentenced to death?  In my opinion (and that of the Alabama courts), the answer is clearly no.  However, the Delaware and Florida Supreme Court think it does.

The U.S. Supreme Court needs to take this issue up and resolve the split, and an Alabama case would be the cleanest vehicle to do so.  The high court has sent several Alabama cases back to the state courts, and it presently has several on its docket pending decision on whether to take them up.  The Smith case last night, however, was not a clean case.
The direction of the Supreme Court was one of the most important issues in the election, and rightly so.  Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.

Ascendant Republicans and President-elect Trump want a Justice in the Scalia mold  --  an originalist and a textualist, a jurist who believes the Constitution says what it says and doesn't say what it doesn't say.  It's less clear to me what the Democrats want.  Some seem to want a liberal leader in the mold of Justice Ginsburg who will move constitutional doctrine to the left.  Others seem to prefer an "identity candidate"  --  a woman, gay, transgender, black or Hispanic  --  largely for symbolic and/or political value.

It will come as no surprise to readers that I prefer the originalist/textualist choice. Strict fidelity to the text and original meaning of the Constitution seems to me to be the best way to curb judicial license and keep the most fundamental decisions about the rules we must live under where, overwhelmingly, they belong  --  in democratic self-government.

With the filibuster for Supreme Court candidates still among the Senate's rules, however, and the Republicans having only 51 (probably to be 52) of the required 60 votes, the question is how to get a Scalia-style nominee confirmed.

Criminal Insider Trading

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The U.S. Supreme Court today decided Salman v. United States, No. 15-628, yet another case in the continuing saga of when trading securities based on an insider tip is against the law.

What always struck me as very odd about insider trading is that we have this enormous body of law with both criminal and civil liabilities, and at the root of it all is a very broadly worded regulation, SEC Rule 10b-5, not a statute.  The statute in question, 15 U.S.C. ยง 78j(b), makes it a crime to trade securities using "any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe ...."

Should insider trading be a crime?  Yes, under some circumstances.  But Congress should make it a crime, not the SEC.  Administrative agencies have a place in modern civil law, filling in gaps that the legislature will not get around to, but defining crimes should be a non-delegable legislative power.

Moore v. Texas Podcast

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The Federalist Society has this Courthouse Steps podcast on the Nov. 29 Supreme Court oral argument in Moore v. Texas.  The podcast is a recording of a December 2 teleforum with CJLF Legal Director Kent Scheidegger.
Two weeks ago, the U.S. Supreme Court summarily dumped a case brought by Visa, Inc. et al. because the petitioners got the court to take the case up saying it was about one issue and then relied on a different argument once they reached the merits stage.

It's not nice to bait-and-switch the nation's highest court.  Yet lawyers for a habitual criminal who blew the head off a store clerk during a robbery may get away with doing exactly that.  Capital defense lawyers are special, you see.  Rules don't apply to them.

Here is the Question Presented as drafted by lawyers for Texas murderer Bobby James Moore:

Whether it violates the Eighth Amendment and this Court's decisions in Hall v. Florida, 134 S.Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
See any issue there about whether the Texas standard of Ex parte Briseno ever conformed to the subsequently "outdated" standards in the first place?  Nope.  It's not there.  But today's oral argument was nearly all about that.  The Chief Justice was not pleased, but he may not have a majority.
Newspaper editorials contain both opinions and factual assertions supporting those opinions.  Editorial writers, like everyone else, are entitled to their own opinions but not their own facts, as the saying goes.  Professionalism requires that the facts in an editorial be checked as carefully as those in a news story.

Last week the Los Angeles Times failed this standard and published an editorial that blatantly misrepresented the opinion of the U.S. Supreme Court in Calderon v. Thompson, 523 U.S. 538 (1998).  In so doing, the Times defamed the Court and, even worse, misled its readers on a vitally important public issue they will be voting on shortly.

Did anyone at the Times actually read the opinion before publishing this editorial, or did they just regurgitate the propaganda fed to them by the anti-death-penalty lobby?  It is difficult to believe they read it.

A Conversation With Justice Thomas

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Video of an hour-long conversation with Justice Clarence Thomas is available here.   The event is the annual Joseph Story lecture, presented in an unusual conversational form.  Former Attorney General Edwin Meese gives the introduction, and John Malcolm of Heritage conducts the interview.

Georgia Executes Cop Killer

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The State of Georgia executed Gregory Lawler last night for the murder of Atlanta police officer John Sowa in 1997.  Lawler wounded Officer Pat Cocciolone in the same incident.  Rhonda Cook has this story in the Atlanta Journal-Constitution on the execution and this earlier one on the denial of executive clemency.  The U.S. Supreme Court's "green light for the green mile" order is here.

Cook notes that the basis of the clemency petition was "Lawler's recently diagnosed autism."  Seriously, now.  The man was 63.  If he had autism in the severity that would justify clemency, everyone who knew him in his entire life would have known it.  It would not be a recent discovery.

Georgia evidently still has pentobarbital.

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