Recently in U.S. Supreme Court Category

The Supreme Judicial Court of Massachusetts upheld the state's gun locking requirement today in Commonwealth v. Runyan, SJC-10480, distinguishing D.C. v. Heller on two grounds.

First, the Massachusetts court holds that the Second Amendment does not apply to the states. That issue is presently before the Supreme Court in McDonald v. Chicago.

Second, the court distinguishes the Massachusetts law from the more restrictive D.C. law.

The latter holding would make a simple "vacate and remand" inappropriate in the event the Supreme Court decides in favor of incorporation in McDonald.

Denise LaVoie has this story for AP.

Jay Reeves reports for AP:

U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama's State of the Union address was "very troubling" and the annual speech has "degenerated to a political pep rally."

An editorial in today's Los Angeles Times comments, "[w]e'd prefer a longer break" than the 14-day "break in custody" rule established by last week's Supreme Court decision in Maryland v. Shatzer.  While the editorial commends the Court for drawing a bright line rule that police may reinterrogate a suspect 14 days after the suspect's first interrogation, it also finds it disturbing that between Shatzer's first interrogation in 2003, and his second in 2006, Shatzer remained in prison.  The editorial comments that "[i]mprisonment is not 'normal life,'" and takes issue with the Court's conclusion that Shatzer, who had remained in prison, had returned to "normal life" for some time before the second interrogation.  The editorial writes, "[t]he court would have been truer to Miranda if it had recognized that, in this case, there was no gap in custody."

The problem with this argument is that Shatzer didn't really address Miranda, it addressed Edwards v. Arizona, and whether there could be an exception to Edwards' rule that once a suspect invokes his right to counsel police cannot reinterrogate the suspect unless he initiates further communication.  Edwards was intended to prevent police from holding suspects in jail and using coercive measures to badger them into giving confessions. 

Last week's decision in Shatzer acknowledged that badgering and police coercion are far less likely when a suspect has been released from the interrogation room "and returned to his normal life for some time before the later reinterrogation."  The decision acknowledged that when a suspect has been released and returns to his daily routines "there is little reason to think that [a suspect's] change of heart regarding interrogation without counsel has been coerced."  The suspect in Edwards had not been released, and had been held overnight and questioned until he confessed.  Edwards sought to reinforce Miranda by ending this type of practice, and the exception to Edwards recognized in Shatzer does not undermine the Fifth Amendment's protection from compelled self-incrimination.  Miranda warnings must be read to suspects and interrogation cannot continue until a suspect waives his rights.  Shatzer simply recognized that a suspect could have a "change of heart" and might voluntarily answer police questions 14 days after his first interrogation.  

Today, the U.S. Supreme Court announced three opinions for cases argued this term: Johnson v. United States (08-6925); Reed Elsevier v. Muchnick (08-103); and Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service (08-240; 08-372).  At SCOTUSblog, Erin Miller posts brief descriptions of each of the opinions. 

Reed Elsevier and Mac's Shell address areas copyright and franchise law, but today's decision in Johnson held that in the context of  the Armed Career Criminal Act's definition of "violent felony," the phrase "physical force" means violent force.  This means that in order to qualify for enhanced sentencing under "violent felony" section of the Armed Career Criminal Act, a person must have engaged in "force capable of causing physical pain or injury to another person."  The individual could not be sentenced for a violent felony if the person had been convicted for "unwanted touching." 

In 2007, Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony.  This violated 18 U.S.C. §922(g)(1).  Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2003 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.

In today's 7-2 decision, Justice Scalia wrote that Johnson's 2003 "conviction was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes 'physical force' within the meaning of §924(e)(2)(B)(i)."  When the Court ruled that it was not, it reversed the judgment of the Eleventh Circuit, set aside Johnson's sentence, and remanded the case for further proceedings.  Justice Alito wrote a dissent, which Justice Thomas joined. 

Can conduct suggest a waiver?  That is what the Supreme Court struggled to decide in today's oral arguments in Berghuis v. Thompkins.  In Thompkins, the Court is asked to address whether a suspect has impliedly waived his right to counsel when he engages in a very limited conversation with officers and "[does] not invoke [his Miranda rights] but [does] not waive them," but confesses to the crime.  Jesse J. Holland writes for the Associated Press that during today's arguments several "Justices indicated they would let [Thompkins'] confession stand, saying suspects should tell police that they want to be silent to take advantage of that Miranda right." 

The decision may come down to how the Court addresses the question of whether officers must imply waiver from a suspect's silence, or whether a suspect must affirmatively invoke his right to remain silent during a two hour and fifteen minute interrogation.  The Court's precedents have left the answer unclear.  As Chief Justice Roberts points out early during the state's oral arguments, "The question of course is not whether we think 2 and a quarter hours under all the circumstances is -- is too long under our precedent. The question is instead whether it would be unreasonable for the State court to determine otherwise." 

CJLF's brief in Thompkins is available here.

In today's orders list, the U.S. Supreme Court declined to grant certiorari to Edward Jerome Harbison, a Tennessee inmate challenging state implementation of its lethal injection protocol.  In his petition in Harbison v. Little (09-7777), Harbison asked the Court to rule that lower courts should not uphold the state's lethal injection procedures by declaring that the state's lethal injection protocol was "substantially similar" to the protocol approved by the Supreme Court in Baze v. Rees.  If the Court had granted certiorari and ruled for Harbison, lower courts would be forced to conduct detailed examination of a state's injection protocol in order to determine whether the procedure causes unnecessary pain before death occurs.

In 1983, Harbison broke into the home of Edith Russell, and when she came home unexpectedly he beat her to death with a heavy, marble vase.  He stole various items of value belonging to her. A jury convicted him of first-degree murder, second-degree burglary, and grand larceny, and sentenced him to death for the murder.  Last April, the Supreme Court ruled on his claim for appointment of federal counsel during clemency proceedings, and last July, the Sixth Circuit ruled on Harbison's lethal injection claims. 

The three-judge panel for the Sixth Circuit vacated the district court's judgment that Tennessee's lethal injection protocol violated the Eighth Amendment.  The district court had found Tennessee's lethal injection protocol inadequate for four reasons.  First, it found the protocol deficient because it did not provide a proper procedure for ensuring that the inmate was unconscious before administering the second drug.  Second, it believed the protocol did not provide for the adequate training of officer.  Third, it did not believe the protocol adequately monitored the administration of drugs.  The district court also faulted Tennessee for failing to adopt a "one-drug" protocol or alternative procedures. 

The Sixth Circuit relied on Baze -- which upheld Kentucky's protocol and held that a substantially similar protocol would not violate the Eighth Amendment -- and concluded that Tennessee's "substantially similar" three-drug protocol also did not violate the Eighth Amendment.  The same four complaints raised by the district court had been addressed by the Supreme Court in Baze, and each time, the Court concluded that the alleged risks rise to the level of a constitutional violation.  Baze's discussion and ultimate rejection of these concerns allowed the Sixth Circuit to uphold Tennessee's protocol. 

A dissent, written by Judge Clay, would have remanded the case for an evidentiary hearing to allow the district court to rule on whether Harbison can meet the Baze standard, but the majority declined to fashion such a remedy when neither party had requested it at oral argument. 

Lyle Denniston also has a post on SCOTUSblog discussing the Supreme Court's denial.

    However partisan the atmosphere in Washington may be, there is one thing I thought there should be a consensus on -- the U.S. Court of Appeals for the Ninth Circuit is badly out of the mainstream on criminal cases generally and capital cases in particular. Therefore, any appointments to that court should be made with the purpose of correcting toward the middle.

    Astonishingly, the Administration has done just the opposite. It has nominated Berkeley Professor Goodwin Liu. When Justice Alito was nominated, Professor Liu wrote a paper titled "Judge Alito and the Death Penalty." I wrote a rebuttal.

    To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case. Adding him to the Ninth would take a court that is already far out of the judicial mainstream and push it even further in that direction.

    This calls for pull-out-the-stops opposition. The West suffers to this day from appointments made by Jimmy Carter on the advice of Alan Cranston three decades ago. We don't need more bad appointments to plague us for another generation.

The U.S. Supreme Court announced its decision in Maryland v. Shatzer (08-680) today.  The opinion is available here.  Our brief in the case is available here. 

The decision recognizes an exception to the requirement in Edwards v. Arizona that an officer must cease interrogation once a suspect invoked his right to counsel, and established that a "break in custody" permits the police to resume questioning a suspect who had previously asked for a lawyer.  Seven members of the Court agreed that if the "break in custody" lasts more than 14 days between interrogations, Edwards did not require suppression of the confession.  Justices Thomas and Stevens did not join the 14-day rule.

Update: Tony Mauro has this story for the NLJ: "'Miranda' dealt one-two punch by high court"

Lauren notes the NYT article on the Charles Dean Hood case. The first sentence of the article is:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case.

Only those readers who make it halfway down the article find out that the affair ended three years before the trial. Readers never do find out that the jury, not the judge, is the primary decision-maker on capital-case sentencing in Texas. Simply saying that Hood was sentenced to death by the judge leaves a reader with the impression that she made the discretionary sentencing judgment call in the case, which is not true.

That is not to defend what happened in this case, but there is no reason to make it sound worse than it really was.

Over at SCOTUSblog, Tom Goldstein has this long post on Supreme Court nomination prospects. "John Paul Stevens very likely will retire.  Ruth Bader Ginsburg definitely will not."

So who gets the Stevens seat? Tom emphasizes the political calculations, which I believe is correct for the Obama/Emanuel White House. Appointing a judicial activist is not as high on this President's agenda as boosting his political capital at a time when the yellow gas tank light is on. As Tom puts it,

Unfortunately for progressives who want the Administration to invest its political capital in a nomination, this summer is likely to be a profoundly difficult time in political terms.  It is hard to overstate the Administration's view of the significance of the loss of the sixtieth Democratic Senate seat.  The point isn't actually that there is a realistic chance that a Supreme Court nominee would be filibustered....

Instead, the effect of the vote is to reduce the Administration's political capital and maneuvering room at a time when both are in short supply.

What is "unfortunate[] for progressives" might be very fortunate for the people's right to govern themselves through the democratic process and not be ruled by philosopher kings with the power to propose and ratify their own constitutional amendments. Or it might not.

Today, the U.S. Supreme Court announced its decision in Florida v. Powell, and held that Miranda does not require that a suspect be told that he has a right to an attorney during questioning.  In an opinion authored by Justice Ginsburg, the Court held that police warnings satisfy requirements outlined in Miranda v. Arizona if they advise that a suspect has the right to talk to a lawyer before answering any questions, and inform the suspect that he may invoke his right to an attorney at any time during questioning. 

In 2008, the Florida Supreme Court held that Florida law, and Miranda v. Arizona, required that a suspect be clearly informed of his right to have an attorney present during questioning.  It found that Florida's warnings were inadequate and misleading, because Florida's warnings only informed of "the right to talk to a lawyer before answering any of our questions[,]" and of "the right to use any of these rights at any time you want during this interview."  The Supreme Court overturned the lower court's holding.  It reasoned that because Miranda had not dictated the words by which essential information must be conveyed, police warnings could be satisfactory if they "reasonably convey to a suspect his rights as required by Miranda."

Justice Stevens authored a dissenting opinion, which Justice Breyer joined in part.

The Supreme Court today summarily reversed yet another federal court of appeals decision overturning a state court based on the federal court's own dubious extrapolation from Supreme Court precedent, rather than because anything in the state court decision is actually contrary to Supreme Court precedent. That misuse of habeas for pushing the envelope has been error under case law since the 1989 decision of Teague v. Lane, and it has been forbidden by an Act of Congress since 1996. Yet some federal judges still don't get it.

The only thing unusual in today's summary reversal is that it was the Fifth Circuit that crossed the line. Usually it is the Ninth or the Sixth.

In Thaler v. Haynes, the prosecutor said he challenged a juror because she was not taking this capital case seriously enough. The judge believed him, but the judge who decided the motion was not the same judge who conducted the voir dire.  While it helps if the same judge also observed the voir dire, it takes a very strained reading of Batson v. Kentucky to find a requirement to that effect. What if the judge who conducted voir dire died suddenly between voir dire and the Batson motion. Would the defendant have an automatic entitlement to have his motion granted? The Texas Court of Criminal Appeals didn't buy it. Neither did the federal district judge.

The Fifth Circuit granted habeas relief.  For the "clearly established" requirement that a challenge based on juror demeanor must be judged by the judge who presided at voir dire, the Fifth Circuit cited Snyder v. Louisiana, 552 U.S. 472 (2008).  The Supreme Court today noted that even if Snyder had held that (it didn't), Snyder was decided six years after the relevant state court opinion. Stare decisis requires obedience, not clairvoyance.

Today, the U.S. Supreme Court granted certiorari in Harrington v. Richter (09-587), and asked parties to address whether AEDPA deference applies to a state court's summary disposition of a claim, including a claim under Strickland v. Washington.  Richter raises a question of whether a defense lawyer violates the Sixth Amendment right to the effective assistance of counsel when he does not investigate or present available forensic evidence supporting the theory of defense he uses during trial, and instead relies on cross-examination and other methods designed to create reasonable doubt about the defendant's guilt.

In Richter, the Ninth Circuit granted habeas corpus relief to convicted murderer Joshua Richter because it believed that Richter's trial counsel had acted incompetently in declining to investigate and present helpful expert testimony on the source of a pool of blood found at the murder scene.  The blood had been photographed, but never tested, and on habeas, Richter argued that if the blood had been tested it would have corroborated his claim that the victim had been caught in gun crossfire, and had not been shot in cold blood. 

SCOTUSblog's Erin Miller posts a list of today's orders, and links to parties' briefs. The state's Petition for Certiorari is available here.  Richter's Brief in Opposition is available here, and the state's Reply brief is available here.

With at least one vacancy on the high court quite possible this summer, "Democrats ... are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition," reports Jess Bravin in the WSJ.

Needless to say, nominating someone with a history of bending over backwards to let violent criminals off with less than they deserve, or off altogether, would be a substantial political liability in a year where control change in Congress is a possibility. On the latter point, John Fund had this article in Friday's WSJ.

On Thursday, the New York Historical Society is hosting a reenactment of Ex parte Milligan, 71 U.S. 2 (1866). Justice Antonin Scalia is presiding. Apparently he is presiding alone, so it's not clear if he is reenacting Chief Justice Chase, opinion author Justice Davis, or a composite of the whole bench.

Lambdin Milligan was an American citizen and a civilian, yet he was convicted of treason by a military tribunal in the waning days of the Civil War. The Supreme Court granted a writ of habeas corpus on the only ground that habeas could be issued postconviction in those days -- that the committing court had no jurisdiction. There is a curious, if morbid, mootness discussion on page 118, involving an assertion that Milligan had already been hanged. In fact, according to the Wikipedia entry, President Johnson had commuted the sentence two days before the execution date.

Sounds like a fun evening for those of you in New York.