Recently in U.S. Supreme Court Category

Infected Prosecutions Get Tanked

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I live near Washington, DC.  The big criminal law news here today consists of two cases. One is the SCOTUS reversal of the conviction of a black Georgia murderer on grounds that the government engaged in racially biased jury strikes.  Kent has his typically thoughtful and analytic description here.  While, as Kent notes, there are grounds to question the procedural setting of the case, the Chief Justice's opinion documents disturbing reasons to think the defendant's claims of racial bias were true.

The other news item is the acquittal on all counts of a white Baltimore policeman in the Freddie Gray case.  He had been charged, along with five other officers (two other whites and three blacks) with helping cause Gray's death in police custody. The case was brought by a radical black prosecutor who, after announcing the filing of charges, held an outdoor, campaign-style news conference to congratulate herself, then attended a rock concert (not a typo) ostensibly to laud some sort of "why-can't-we-all-get-along" theme, but actually designed, so it certainly seemed, to further inflame racial passions against the accused.  I discussed the prosecutor, Marilyn Mosby, and her antics several times, e.g., here.

A number of thoughts come to mind from today's stories.

Reversal in an Ugly Batson Case

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When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.
A perennial problem in criminal law, and the closely related area of deportation for crime, is the fact that the laws of one jurisdiction must take into account crimes prosecuted under the law of another jurisdiction.  What do we do when the elements of the crimes don't match up completely?

Federal immigration law provides for deportation, with no exceptions and expedited process, for aliens who commit an "aggravated felony."  The principle is sound, but the definition of "aggravated felony" needs a lot of work.  Congress really needs to pay some attention to this.

The definition refers to a list of federal offenses, many of which have elements of effects on interstate commerce because in many cases the federal government does not have the authority to make an act criminal without such a connection.  If a person is convicted in state court of an offense which is the same except for the interstate commerce element, is that an "aggravated felony" for deportation purposes?  Yes, that's one of the easier questions in this area.

Justice Kagan wrote the opinion of the court in Luna-Torres v. Lynch, No. 14-1096 (5-3).  Justice Sotomayor, joined by Justices Thomas and Breyer, dissented.  They would apply the words of the statute literally. 

There is something to be said for the view that if Congress screwed up the wording, and it did, it's up to Congress to fix it.  Even so, this is a good result in the case and for the law generally.  Luna is an arsonist, and we don't need him in this country.

Speedy Trial Rights Post-Trial?

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The expression "Well, Duh!" has been out of vogue for many years, but every once in a while I wonder if we should bring it back.

The Sixth Amendment guarantees a right to a speedy trial.  Does that guarantee apply after trial, or after a person has waived trial by pleading guilty?  Of course not.  "We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges," Justice Ginsburg wrote for a unanimous court in Betterman v. Montana, No. 14-1457, announced this morning.

The opinion notes that other provisions of the Constitution may provide protection from inordinate delay between conviction and sentence.  It certainly is unjust to hold a person longer pending sentencing than his sentence is likely to be.  But Betterman's lawyer did not bring the claim under the Due Process Clause or anything other than the Speedy Trial Clause, so that issue is not in the case.

Donald Trump's Pretty-Short List

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For many of us who were less than enthused to see Donald Trump win the Republican nomination, the general election choice nonetheless seemed to be a clear one based on the kinds of judges the respective nominees would appoint, especially to the Supreme Court.  The Trump campaign apparently wants to reinforce that point by releasing a list of possible Supreme Court appointments.  Bill noted the release a few minutes ago, and Jill Colvin and Mark Sherman have this report for AP.  The list is:

Steven Colloton of the Eighth Circuit (Iowa)
Allison Eid of the Colorado Supreme Court
Raymond Gruender of the Eighth Circuit (Mo.)
Thomas Hardiman of the Third Circuit (Penn.)
Raymond Kethledge of the Sixth Circuit (Mich.)
Thomas Lee of the Utah Supreme Court
Joan Larsen of the Michigan Supreme Court
William Pryor of the Eleventh Circuit (Ala.)
David Stras of the Minnesota Supreme Court
Diane Sykes of the Seventh Circuit (Wis.)
Don Willett of the Texas Supreme Court

I am not familiar with the jurisprudence of all 11, but I do think that William Pryor would make a very fitting successor to Justice Scalia.  Confirmation would be a bloody fight, but if we hold the Senate it is a fight we would win.

The larger question is whether Mr. Trump can and will pivot from the crass bluster that got him this far into a man of serious policy, capable of winning the general election and then being an effective President.  Many have serious doubts, but this looks like a good start.

Trump's Supreme Court Candidates

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ABC News has a story out today listing eleven candidates Donald Trump says he would consider for the Supreme Court.

I know three of them slightly, none of whom I am going to name.  They would be excellent. My one big regret about this list is that it does not include former Solicitor General Paul Clement.

The difference in probable Supreme Court picks between Sec. Clinton and Donald Trump remains, in my view, the most important reason to be, if not enthusiastic about Trump, at least not in hellish despair.

What to Expect from a Hillary SCOTUS

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Many conservatives find the upcoming election choices less than uplifting.  But either Hillary or The Donald is going to be the next President; it would take a miracle for anything else to happen.

So the country will have to choose.  In considering what to do, one of the most important factors is what kind of Supreme Court the next President will appoint.

With Trump, it's hard to know.  Two possibilities he has named, Judge Bill Pryor and Judge Diane Sykes, are excellent in my opinion.  But one never knows for sure what's going to happen with The Donald.

Things are easier to predict with Hillary.  She's a child of the Sixties, has moved even further to the left to hold off Bernie Sanders, and has embraced the toxic Black Lives Matter movement.

Lest there be any doubt about what to expect from a Hillary-appointed Court, Mark Tushnet, a liberal Harvard Law professor, pulls back the curtain in this revealing piece. Suffice it to say that we'll be longing for the good ole days when Justice Ginsburg felt like Felix Frankfurter.  
The U.S. Supreme Court decided six cases today.  Only one summary disposition involves criminal law.

Kernan v. Hinojas, No. 15-833, is a Ninth Circuit habeas corpus case involving that court's failure to give deference to the California Supreme Court's summary denial of an original petition in that court.  This is an area the high court has gotten into several times, and to some extent it is specific to California's odd system of original habeas petitions in reviewing courts, so I won't go into detail here.

In the "curious incident of non-barking dogs" department, the certiorari petition in Johnson v. Lee, No. 15-789 was on the conference list Thursday but was absent from today's orders list.  The online docket now shows it to be on the list for this coming Thursday, the fourth conference for this case.

The case involves the Ninth Circuit's brushing aside of California's rule (similar to those nearly all states and the federal courts) that a claim that could have been made on appeal and wasn't is forfeited.  This number of "relists" is a possible indication that the Supreme Court is going to reverse summarily, and it is trying to agree on an opinion.  A certain notorious wascally wabbit suggested that course of action would be appropriate in this case.
In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000).  Yesterday the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida.  "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.   For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure.

The Scalia Legacy

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The Constitution Center in Philadelphia yesterday hosted a discussion of the legacy of Justice Antonin Scalia, by anyone's reckoning a genius, a spectacular writer, and one of the most influential Justices of my lifetime.

My wife, Hon. Lee Liberman Otis, was one of the participants, all of whom, I thought, did a first-rate job.

The tape, a little more than an hour, is here.

Kickbacks and Conspiracies

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The U.S. Supreme Court, 5-3, upheld a conviction for conspiracy to violate the Hobbs Act, the federal extortion law, in a case involving a kickback scheme in which crooked police officers referred damaged cars to a particular body shop in return for payments.  The case is Ocasio v. United States.

Justice Alito wrote the opinion of the Court, joined by Justices Kennedy, Ginsbury, Breyer, and Kagan.  Justice Breyer wrote a separate concurrence saying that a key precedent, Evans v. United States, may well have been wrongly decided, but since the defendant did not ask the Court to overrule it, he loses.  Justice Thomas would go ahead and overrule Evans.  Justice Sotomayor, joined by Chief Justice Roberts, would rule for the defendant without overruling Evans.

The next scheduled public session, and therefore the next likely day for release of opinions, is two weeks from today, Monday, May 16.
The U.S. Supreme Court took up once again the issue of the mental element of crime, known in legal Latin as mens reaShaw v. United States, No. 15-5991, is a case from the Ninth Circuit.  The summary of the Ninth's opinion is:

The panel affirmed a conviction for a scheme to defraud a financial institution, in violation of 18 U.S.C. § 1344(1), in a case in which the defendant used PayPal to convince banks that he was a particular bank customer and thus had authority to transfer money out of that customer's bank accounts and into a PayPal account in the defendant's control.

The panel held that for a violation of § 1344(1), the government need not prove that the defendant intended the bank to be the principal financial victim of the fraud, and that the district court therefore correctly refused jury instructions that included such a requirement.
The Question Presented, as phrased by counsel for Shaw, is:

Whether subsection (1)'s "scheme to defraud a financial institution" requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner Lawrence Shaw argued here.
The sentencing appeal case is Manrique v. United States, No. 15-7250.  The unpublished opinion of the Eleventh Circuit begins:

Kansas v. Carr Podcast

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Justice Antonin Scalia's last opinion for the U. S. Supreme Court was Kansas v. Carr, decided 8-1 on January 20.  The Federalist Society has this podcast on the decision, by yours truly.
The U.S. Supreme Court issued two criminal law decisions this week, neither of which is surprising or particularly controversial.

Monday, the Court decided Welch v. United States, No. 15-6418:

Last Term, this Court decided Johnson v. United States, 576 U. S. ___ (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.
Answer: Yes.

Today, the Court decided Molina-Martinez v. United States, No. 14-8913, regarding what to do on appeal when the trial court messes up on the often complex Federal Sentencing Guidelines and nobody notices until the appeal.  The Court disapproved the Fifth Circuit's requirement that the defendant "must identify 'additional evidence' to show that the use of the incorrect Guidelines range did in fact affect his sentence."
The Georgia Supreme Court summarized the crimes of Kenneth Fults as follows:

The evidence adduced at Fults' sentencing trial showed that he carried out a week-long crime spree which was centered, at least in part, upon his desire to murder a man who was engaged in a relationship with his former girlfriend. Fults first committed two burglaries, obtaining several handguns. After a failed attempt at murdering his former girlfriend's new boyfriend with one of the stolen handguns, Fults then burglarized the home of his next-door neighbors. After the male neighbor left for work, Fults forced his way through the front door wearing gloves and a hat pulled down over his face. Fults confronted the female occupant of the home, Cathy Bounds, brandishing a .22 caliber handgun he had stolen during one of the burglaries. Ms. Bounds begged for her life and offered Fults the rings on her fingers.  Fults turned Ms. Bounds around toward the bedroom, either taped or forced her to tape her eyes closed by wrapping over six feet of electrical tape around her head, forced her into the bedroom, placed her face-down on her bed, placed a pillow over her head, and shot her five times in the back of the head.

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