Recently in U.S. Supreme Court Category

As predicted here and here, Hedgpeth v. Pulido was decided quickly and per curiam by the U. S. Supreme Court. The Court was unanimous that the Ninth Circuit's determination that the jury instruction in this case was "structural error" was erroneous. The majority decided that the case needed to go back to the Ninth for application of the correct harmless-error standard of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The dissent (Stevens, Souter, Ginsburg) would affirm on the ground that the lower courts had effectively determined that Pulido should get habeas relief under the Brecht standard, and there is no need to drag this particular case out for one more round of review.

The AP story on the case is here: "The Supreme Court took aim at one of its favorite targets Tuesday, criticizing a California-based federal appeals court for its ruling in favor of a criminal defendant."

Lauren's Blog Scan today notes the discussion over victim impact videos and all the whining on the defense side that these are somehow "unfair." The rejoinder in the WaPo story is:

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.

*                           *                        *

"I can see why these videos drive defense lawyers crazy because they actually balance things out," [Orange Co. DDA Matt] Murphy said.

That balance is the key point.

With the party committed to identity politics headed back the White House, there is naturally much discussion of the ethnicity of the next Supreme Court nominee. Tony Mauro has this article in the Legal Times on the pressure on the President-Elect to name a Hispanic Justice. Among the possibilities listed is California Supreme Court Justice Carlos Moreno. I'll hoist a cerveza to that.

Monday: Very little of interest to criminal law practitioners is happening today. The orders list contained no new grants of certiorari. That is normal when the grants are announced on conference day, as they were last week. Several crim. pro. cases involving cars were denied, as described by Lyle Denniston at SCOTUSblog. Oral arguments are a couple of real snoozers. Kansas and Colorado sally forth into the second century of their battle over the Arkansas River. Shades of Bleak House. The other case involves arbitration and labor contracts.

Tuesday: Opinions are possible. I'm expecting Hedgpeth v. Pulido to be among the early opinions this term. Arguments are two civil cases of no particular interest.

Wednesday: The arguments are two civil cases. However, they involve federalism issues that touch on criminal law.

Philip Morris USA v. Williams involves the question of when an independent state procedural ground of decision is "adequate" to block consideration of a federal question. This issue comes up very often in habeas cases. The Supreme Court's jurisprudence on this topic is a mess. The unwritten rule in the Ninth Circuit is that all California grounds are per se inadequate. CJLF filed this brief supporting neither party, asking the Court to clean up this "untidy area of our law."

Haywood v. Drown is a prison litigation case asking whether the state legislature can kick 42 USC § 1983 actions out of state courts.

Pennsylvania has filed its certiorari petition seeking Supreme Court review of the Third Circuit decision overturning the death sentence of the notorious Mumia Abu-Jamal. The case is Beard v. Abu-Jamal, No. 08-652. Abu-Jamal's petition seeking review of the Third's decision to uphold his conviction is due next month.

The U. S. Supreme Court this morning dumped the capital habeas case of Bell v. Kelly with a one-line order: "The writ of certiorari is dismissed as improvidently granted." Sometimes "improvidently granted" is a term of art, but this time it is literally true. They took a case that does not present the issue the petitioner claimed it presents. As noted here, the premise of the question presented -- that the state court refused to consider evidence -- is false, and counsel for petitioner admitted as much in oral argument. As discussed here, the case could have been used to resolve some important issues nonetheless, but the Court decided to simply dump it.

Update: Doug Berman at SL&P has this post invoking the late Gilda Radner: "Oh, never mind."

The U.S. Supreme Court granted review in five cases. The orders list can be found here. The Court granted certiorari in four cases, and agreed to hear an appeal from Citizens United in Citizens United v. Federal Election Commission (08-205). Filings in each of the cases can be found at SCOTUSblog. One of the more interesting grants, Yeager v. United States, raises the issue of "Whether, under the Double Jeopardy Clause, the government may retry defendants acquitted of some charges on factually related counts on which the jury failed to reach a verdict." A gut reaction to this question is "Yes." But in this case, Yeager is claiming that collateral estoppel precludes relitigation of the facts common to his acquitted counts (conspiracy, securities fraud, and wire fraud charges) and the counts to which the jury could not decide (insider trading and companion money laundering charges). The decision could address the applicability of Ashe v. Swenson, 397 U.S. 436 (1970), and whether the preclusive effects of collateral estoppel have any bearing in cases where it is unclear that the jury acquitted because of facts that would bar a retrial.

Two other federal criminal cases were granted on defendant's petitions: (1) Abuelhawa v. U.S. on using a cell phone to buy drugs, oddly punished much more severely than just buying drugs, and (2) Dean v. U.S. on the continuing theme of what it means to use a gun in committing a crime, in this case whether an accidental discharge constitutes firing the gun.

In the question presented in the petition for writ of certiorari in Bell v. Kelly, argued today in the U.S. Supreme Court, Richard Bress of Latham and Watkins referred to the claim in federal court as being "predicated on evidence of prejudice the state court refused to consider...." Right out of the gate in today's argument, Justice Alito wanted to know exactly what evidence the state court refused to consider. "No, Your Honor. The State court did not refuse to consider evidence proffered to it.... The State court refused to permit the evidence to be fully developed, Your Honor. They didn't refuse to consider evidence." That is a completely different thing. Bress misrepresented the case to the Supreme Court and blew his credibility.

That isn't just bad advocacy, it is abysmal. And no, death is not different. Big name firms that want to do these capital cases should take care that they do not stain their own reputations in the process.

The U.S. Supreme Court issued its first opinion of the term in an argued case, Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the "boink the whales" case. SCOTUSblog has a report here.

On the argument calendar for today is Bell v. Kelly, which could be the "sleeper" case of the term. Both sides are "all-in" on the question of the interaction between new evidence in federal habeas hearings and the deference standard of 28 U.S.C. § 2254(d). Petitioner claims that (1) the question of whether the state court decision was "reasonable" for the purpose of 2254(d) must be determined solely on the state court record, and (2) if petitioner presents substantial new evidence in federal court in support of his claim, that makes it a new claim not subject to the deference standard.

Our side responds that he is right on (1) but wrong on (2). A "claim" is one legal ground for overturning the judgment. Ineffective assistance is one claim, no matter how many failings of the trial attorney are alleged. If the state court's rejection of that claim on the basis of the evidence state habeas counsel put before it was reasonable, the claim should be denied under 2254(d), and therefore there is no need for a hearing or discovery in federal court. CJLF's brief is here, and our press release is here.

Update: A post-argument note is here.