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Modifying Opinions

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Nobody is perfect, and even the nation's highest courts sometimes make mistakes in their opinions.  When the California Supreme Court makes a mistake and needs to modify an opinion, it issues a modification order like this.

Not so at the U.S. Supreme Court.  Opinions come out in four forms.  There is the bench opinion used to announce the decision live in court.  That one has a shorter life span than a fruit fly.  Almost immediately we get the slip opinion.  That one is posted on the Court's website, and it is the one we link to on this blog for same-day commentary. 

After the slip opinion, unofficial versions are printed by the West Publishing Company (S.Ct.) and Lexis Law Publishing (L.Ed.2d), but the Court is not involved in these.

The slip opinion remains the official opinion until publication of the preliminary print, currently running about four years after the opinion date.  Why so long?  Beats me.  After another year or so we get the bound volume, which will be the final, official word on the shelf of the law library forevermore.  The BVs are also available in PDF form on Court's website, with the caveat that the dead-tree version and not the digital one is official, if there is any difference.

Sometimes there are changes between these versions, but there is generally not a public announcement.  Adam Liptak reports at the NYT:
Looks like criminal law and law enforcement are going to be a bigger part of this Term of the U.S. Supreme Court.  The Court's Monday orders list took up for full briefing and argument three criminal and related cases:

Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala.   The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus.  If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.

Los Angeles v. Patel, No. 13-1175:  Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can?  There are a lot of heavily regulated industries that have such requirements.  The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example.  No warrant or particularized basis of suspicion required.  How about hotels?

Henderson v. United States, No. 13-1487:  What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?

SCOTUS Denies Stay of Texas Voter ID

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Consistently with its recent pattern of not making major election changes close to the election, noted here, the U.S. Supreme Court has denied the application to lift the Fifth Circuit's stay of an injunction against that state's voter ID law.  In other words, the ID law will be in effect for the coming election.

The vote was apparently 6-3, with Justices Ginsburg, Sotomayor, and Kagan dissenting.

Jennings v. Stephens Argument, Continued

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The argument transcript in Jennings v. Stephens is now available.

On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on.  If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one.  See pages 9 and 14 of CJLF's brief.  He seeks to assure the Supreme Court this scenario would be rare.  I don't know about Texas, but it is certainly not rare in capital cases in California.  Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno.  It's all part of the strategy to throw as much sand in the gears as possible.

Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court.  The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial.  The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.

The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal.  This is called issue preclusion or collateral estoppel.  A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus.  In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others.  The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period.  Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them.  Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.

Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel.  I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case.  That would simplify things considerably, and Justice Breyer notes our brief  to that effect at pages 48-49.

Update, 10/17:  Rory Little has this analysis of the argument at SCOTUSblog.

Jennings v. Stephens Argument

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The U.S. Supreme Court is hearing argument today in Jennings v. Stephens. We noted this case in the week preview last Friday.  Rory Little has a preview at SCOTUSblog, with some complimentary things to say about CJLF's brief.

The transcript should be available this afternoon.

Chemerinsky and the Supreme Court

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UC Irvine Law Dean Erwin Chemerinsky's new book attacking the Supreme Court has caused Volokh Conspirator Orin Kerr to "wonder[] if he was just criticizing the Supreme Court for not agreeing with his policy preferences."

Orin has this Q-and-A with Dean Chemerinsky in which Chemerinsky attempts to answer that question "no," but even the left-leaning commenters on the post mostly agree that he ends up demonstrating that the answer is "yes."
If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026.  Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.

Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime."  Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt.  What is "substantively unreasonable" you might well ask?  Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case.  "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.

I think that is stretching "elements" way too far.  The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.

Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.

P.S.: Looks like Bill and I were writing on this at the same time.  I'll leave them both up, so readers get two perspectives on the case.

No New SCOTUS Cases, Part II

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Among the cases to which cert was denied today was a very big sentencing case, Jones v. US, No. 13-10026.  The basic issue was whether a sentencing judge could take account of "acquitted conduct."  The DC Circuit, in conformity with others, said yes, and the Supremes allowed its judgment to stand.

There were three votes for cert  --  Scalia, Thomas and Ginsburg.  Doug Berman, one of the leading voices pushing for SCOTUS review, has this post on it at SL&P.  

I cannot go into detail about this right now  --  other duties call  --  but I agree with the denial of cert.  The issue is all but governed by the Court's decision in Watts, decided 17 years ago. Despite Apprendi, a convicted criminal has no right to a determination beyond a reasonable doubt of facts used to fashion a sentence that is within the statutory range.  Jones's sentence was within the range.

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker.  Two remedies were on the table in that case:  Requiring a jury's judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can't have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

Second, contrary to the wide misconception among laymen, an acquittal does not mean the defendant didn't do it.  It means only that the jury was not convinced beyond a reasonable doubt that the government proved every element of the offense.  If defendants should be sentenced on the whole of who they are and what they do  --  as the defense bar routinely insists in every other context  --  then there is no injustice in sentencing them based in part on conduct they actually undertook, whether or not they got convicted for it. 

No New SCOTUS Cases

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The U.S. Supreme Court, back from its Columbus Day holiday, issued its virtual-Monday orders list today. No new cases were taken up.

SCOTUS Next Week

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Monday is Columbus Day, a government holiday, so the orders list from today's conference will be issued Tuesday.  Today the Court issued a single order lifting a stay in one of the same-sex marriage cases, presumably from the conference though not on the list.  Cert Pool has the list.  SCOTUSblog has its list of Petitions to Watch.  More on that after the break.

Tuesday's arguments feature an "original jurisdiction" case, one of the few that the Constitution allows to be filed directly in SCOTUS, not appealed from a lower court.  Yep, states suing each other over rivers again.  Also a case about state regulators and antitrust.

Wednesday's calendar has a civil case about appellate courts reviewing district court factual findings.  That might have something of interest for those who do federal habeas cases, which are technically civil.

The case most relevant to this blog, also Wednesday, is Jennings v. Stephens.  It has to do with the procedural requirements for a habeas petitioner who prevails on one issue but loses on the others, and who wants the court of appeals to review the others when the state appeals on the one it lost.  Does he need to cross-appeal?  Does he need a certificate of appealability? 

If he needs a COA for rejected claims, how finely do we parse the claims?  If the petitioner says his lawyer was ineffective for reasons A, B, and C, and the district court says A and B were fine but C was ineffective, does he need a COA for A and B?

CJLF has filed one of its very few briefs disagreeing, in part, with the prosecution.  We take the position (disagreeing with the petitioner) that he does indeed need a COA for rejected claims, but we also believe (disagreeing with the state) that ineffective assistance is one claim for each phase of the trial.

More Voter ID Developments

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Brent Kendall reports in the WSJ on developments in voter ID cases.

Voter identification laws suffered setbacks in two states on Thursday, with the U.S. Supreme Court blocking Wisconsin from imposing its voter-identification measure during the midterm elections and a federal judge in Texas striking down that state's ID law.

The Supreme Court's action in Wisconsin marked its third recent intervention in a high-profile election case, and the first before the high court in which advocates for minority voters prevailed.

The justices in the two other cases allowed Ohio to cut back on early voting and cleared North Carolina to impose new, tighter voting rules.

The high court in each case effectively put the brakes on lower court rulings that would have prompted late changes in election procedures in the run-up to the Nov. 4 day.

Meanwhile, a U.S. District Judge in Texas said that state's voter ID law amounted to an "unconstitutional poll tax," an outcome the state said it would immediately appeal.

The unfortunate thing about this "avoid late changes" approach is that the timing of an order rather than its merit may determine whether it is in effect for the election.  If the Fifth Circuit follows the same pattern, it will stay the District Court's order.  It won't matter that much in Texas, where the most important races aren't close.  But the Wisconsin governor's race is a tossup, and if the final tally is close enough, the deceased vote could tip the balance.

Update:  Text of the order and dissent follows the break.

More on Heien v. North Carolina

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On Monday, I wrote this post on the oral argument in Heien v. North Carolina, a case where the defendant wants evidence resulting from a traffic stop suppressed.  A police officer stopped the car for having only one of two brake lights working, and the state court of appeals, to the surprise of just about everyone, decided that was not a violation in North Carolina.

If the U.S. Supreme Court agrees with the North Carolina Supreme Court that the officer's good faith belief about the law makes this a reasonable seizure, then the case is simple.  If not, it gets complicated.  Rory Little has this analysis at SCOTUSblog predicting that the Court will indeed take the simple route and affirm the state court on the substantive Fourth Amendment question, leaving the complicated issues to another day.

Jury Deliberations

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Today the U.S. Supreme Court heard oral argument in a civil case that criminal law practitioners should be aware of.  The Question Presented in Warger v. Shauers, No. 13-517 is:

Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.
This rule applies to civil and criminal cases alike.  Although a U.S. Supreme Court opinion on the Federal Rules of Evidence is binding precedent only in federal courts, we can expect it to be strongly persuasive in state courts as well, especially in states that have copied the federal rules.

Update:  Adam Liptak covers the argument for the NYT:

After a truncated and unusually one-sided argument, the Supreme Court on Wednesday appeared unlikely to allow jurors to testify about their deliberations, even to expose dishonesty during jury selection.
It's not a good sign when most of your argument before the U.S. Supreme Court is taken up with being grilled by the Justices on whether you have asked the right question, without all that much discussion of whether you have the right answer.  That happened today in the argument of Jeff Fisher for the petitioner in Heien v. North Carolina, No. 13-604.  The transcript is here.

Questions and potential questions in this case include:

1.  Is it legal to drive in North Carolina with only one of the two originally installed brake lights working?

2.  If so, does a police officer's stop of a vehicle in the reasonable belief it is not (there being no published decision to the contrary and the statute being ambiguous at most) violate the Fourth Amendment and the parallel provision of the North Carolina Constitution?

3.  If so, is suppression of the resulting evidence (drugs in the car) required?
Suppose someone who is angry at you says he is going to hunt you down and kill you.  Suppose further that all of the circumstances of the statement are consistent with him really meaning it.  If the police go and arrest him for making criminal threats, and he says "oh, I was just kidding," is that a defense?  If the jury believes him, or if the prosecution is unable to disprove the claim beyond a reasonable doubt, does he walk?  Does the First Amendment require this result?  That is the issue before the United States Supreme Court in Elonis v. United States, No. 13-983.

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