Post-Baze mopping-up operations are reported in this AP article by Larry O'Dell and Randall Chase. The Fourth Circuit held oral argument today in the Emmett case.

In Richmond, attorneys for Emmett and the state told a three-judge panel of the 4th U.S. Circuit Court of Appeals that they would consider settling the case if they can agree on changes to the state's execution protocol to satisfy Emmett's concerns -- in his case only.

I do not think the Virginia AG should go for that. Having a Fourth Circuit precedent on the validity of their protocol will go far toward expediting future executions, even if it means a little extra delay on this one.

In Delaware, U.S. District Judge Sue Robinson said she must decide whether the state's procedure is significantly different from Kentucky's, as claimed by an attorney representing ax murderer Robert Jackson III and other death row inmates.

Deputy Attorney General Elizabeth McFarland said Delaware's protocol is even more detailed than Kentucky's, leaving even less to chance. "The protocol is very clear as written," she said.

The judge set a June 23 hearing to consider which specific issues and expert witnesses will be heard in deciding whether Delaware's protocol presents a substantial risk of unnecessary pain to the condemned inmate.

Posted by Kent Scheidegger at 03:51 PM | Permalink | Comments (0)

Solicitor General Paul Clement is resigning June 2. WSJ Law Blog has this post. SCOTUSblog has the text of the press release, not yet on the DoJ site.

Posted by Kent Scheidegger at 02:02 PM | Permalink | Comments (0)

No decision yet in the Guantanamo detainee case, Boumediene v. Bush. Be sure to tune in next week, same time, same channel.

The Court decided Gonzalez v. United States on the (yawn) question of whether consent to having the jury voir dire in a federal criminal trial be done by a magistrate judge instead of a full-fledged district judge requires the personal waiver of the defendant as opposed to simple consent by counsel. No, 7-1-1.

The lone new cert. grant is Bell v. Kelly, No. 07-1223, a capital habeas case on the extent of deference to state court decisions under 28 U.S.C. § 2254.

Continue reading "SCOTUS Monday" »

Posted by Kent Scheidegger at 07:53 AM | Permalink | Comments (1)

Tomorrow evening (Wednesday), the Gold Coast Chapter of the Federalist Society (Ventura County, CA) will have a program on "Murderers, Terrorists & Treaties: Current Supreme Court Cases on the Treatment of Aliens," discussing the Guantanamo cases and Medellin. The speaker is CJLF Legal Director Kent Scheidegger. Details here.

Posted by CJLF Staff at 02:20 PM | Permalink | Comments (0)

The Supreme Court reminded us in Crawford of the importance of cross-examination as an engine for the discovery of the truth. No, I'm not referring to Crawford v. Washington, 541 U.S. 36 (2004) but to today's decision in the voter ID case, Crawford v. Marion County Election Bd., No 07-21. Footnote 20 on page 19 of the lead opinion says, "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication." So take that, all you Google-infatuated clerks.

In a fractured opinion, by the way, the Court rejected a facial attack on Indiana's voter ID law. Such laws have a disparate impact on persons of decomposition and are vehemently opposed by the Democratic Party, which apparently believes this demographic will skew their way. I guess they would know.

Other than that, it's pretty quiet at 1 First Street, NE. No Boumediene. No new cert. grants. Bell v. Kelly, No. 07-1223, the only criminal case on SCOTUSblog's petition to watch list for Friday's conference, has apparently been relisted.

Update: Rick Hasen, who doesn't like the Crawford decision at all, has this guest post at SCOTUSblog. "In a nutshell ... a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong." Sounds like Batson.

Posted by Kent Scheidegger at 09:37 AM | Permalink | Comments (0)

Yesterday, the U.S. Supreme Court adopted amendments to the Federal Rules of Criminal Procedure. The amendments implemented the Crime Victims' Rights Act (18 U.S.C. §3771). Yesterday's order amended Criminal Rules 1 (Scope; Definitions), 12.1 (Notice of an Alibi Defense), 17 (Subpoena), 18 (Place of Prosecution and Trial), 32 (Sentencing and Judgment), 41 (Search and Seizure), 45 (Computing and Extending Time), 60 (Victims’ Rights), and added Criminal Rule 61 (Title). The Court's order adopting the amendments can be found here.

For the most part, the Court's order rubber-stamped the September 2007 recommendation of the Federal Judicial Conference, which had adopted the May 2007 proposals of the Federal Advisory Committee on Federal Rules of Criminal Procedure. One interesting deviation from the recommendation was the U.S. Supreme Court's decision not to adopt the Advisory Committee's amendments to Rule 45(a) for "Computing and Extending Time." The Court did amend Rule 45(c) slightly to conform to last year's revision of Civil Rule 5.

The amendments take effect December 1 unless Congress acts to the contrary.

Posted by Lauren Altdoerffer at 12:47 PM | Permalink | Comments (0)

Today is the last day of oral arguments for the U.S. Supreme Court's current term. The term calendar shows "non-argument sessions" (in blue) on Monday of each week from now to June, except Memorial Day. The session is Tuesday that week. Conference days are Thursdays. Looking at the opinion dates for last term, we see that 40 opinions were issued after the conclusion of oral arguments. Of these, 31 were issued on the scheduled non-argument session days, and 9 were issued on Thursdays: June 14, 21, and 28. There are 36 argued cases remaining undecided in the current term.

Posted by Kent Scheidegger at 09:59 AM | Permalink | Comments (0)

The Supreme Court today decided Virginia v. Moore, holding 8-1-0 that an arrest based on probable cause is not a violation of the Fourth Amendment even though the officer was not authorized by state law to arrest for that offense. David Moore was properly stopped for driving with a suspended license. The officers arrested him instead of citing him, as they were supposed to do, and the search incident to arrest revealed 16g of crack.

The actual question in the case is the admissibility of the crack in evidence. The drastic, disproportionate, ill-advised remedy of exclusion of valid evidence once again spills over into the substantive law of the Fourth Amendment.

Continue reading "Rights, Remedies, and Arrests: Virginia v. Moore" »

Posted by Kent Scheidegger at 08:36 AM | Permalink | Comments (0)

Last Friday, this post at Capital Defense Weekly said, "Monday’s order list will give a better understanding of which challenges may or may not meet the plurality’s standard." Yes, I think so. Over at SCOTUSblog, Lyle Denniston writes, "The Supreme Court, without a specific explanation of why it was doing so, chose a single path on Monday in dealing with" a slew of capital cases. The number of capital cases the Court turned down is reported as 11 by Lyle and by an AP story. However, I count 14, including a rehearing denial. The cases are listed at the end of this post.

Lyle seems surprised that the Court gave no explanation for its actions. I do not find this remarkable. The Court usually does not give a reason for denial of certiorari. Moreover, looking at the lower court opinions, none are obviously "certworthy" in light of the Baze opinion's rejection of most of the defense arguments.

Continue reading "Reading tea leaves in the Baze sequels" »

Posted by Kent Scheidegger at 03:49 PM | Permalink | Comments (0)

Today's Supreme Court oral arguments in Giles v. California started and ended well for the Petitioner, Giles, a man who was convicted for the first degree murder of his former girlfriend Brenda Avie. In today's arguments, Petitioner contested the admissibility of a testimonial statement Avie had made to police officers following a domestic dispute between the Petitioner and Avie. The domestic dispute occurred sometime before Giles shot Avie in what he claimed was self-defense. At Giles' murder trial, the California court allowed the officer to testify about Avie's statements. The statements were admitted under California's rules of evidence as evidence of Giles' propensity to commit acts of domestic violence.

Continue reading "Giles Not the Case To Expand Forfeiture By Wrongdoing" »

Posted by Lauren Altdoerffer at 03:40 PM | Permalink | Comments (0)

The Supreme Court denied certiorari this morning in several capital cases it had been sitting on since the fall, when it took up the lethal injection case of Baze v. Rees. The cases include Taylor v. Crawford (Missouri), No. 07-303, Biros v. Strickland, No. 07-6243, and Cooey v. Strickland, No. 07-6234, both from Ohio, Berry v. Epps (Mississippi), No. 07-7348, and Arthur v. Allen (Alabama), No. 07-395. As previously noted here, the stay of execution previously granted in Berry terminates automatically upon the denial of certiorari. Ditto in Arthur.

The Court also denied certiorari in other capital cases that had not been held up, but were briefed and decided on a normal schedule, e.g., Bower v. Quarterman (Texas), No. 07-8315 and Nicklasson v. Roper (Missouri), No. 07-8434.

In two of today's denials, Justice Stevens chimes in with a reminder that denial of certiorari does not imply an opinion on the merits. See Velasquez v. Arizona, No. 07-8946 and Frasier v. Ohio, No. 07-9052. Curious that he chooses two direct appeals from state courts to make these statements, not any of the federal actions. I'm not sure what, if anything, is implied by that.

The Supreme Court-imposed moratorium is over. Now we will see how quickly justice can be resumed in the several states and whether Supreme Court intervention is necessary in certain circuits.

Mark Sherman reports here for AP.

Posted by Kent Scheidegger at 07:55 AM | Permalink | Comments (1)

Nearly lost in the hubbub over Baze v. Rees were two federal sentencing decisions handed down by the high court this week. For those who practice mainly in the state courts, the results are less important than the statutory interpretation principles applied. These are likely to have persuasive value in state cases.

Continue reading "Statutory Interpretation" »

Posted by Kent Scheidegger at 03:33 PM | Permalink | Comments (1)

Last October, the Supreme Court denied certiorari and a stay in Earl Berry's case from the Mississippi Supreme Court but then granted a stay in his federal § 1983 case from the Fifth Circuit. Previous posts are here and here. By its terms, that stay terminates automatically if the certiorari petition is denied.

Berry's certiorari petition, No. 07-7348, is now on conference for tomorrow. A decision on it will probably be announced Monday. Lyle Denniston at SCOTUSblog has this post and Berry's supplemental brief, noting differences between Mississippi's protocol and Kentucky's.

But the judgment Berry wants reviewed wasn't decided on the merits.

Continue reading "Berry on Deck?" »

Posted by Kent Scheidegger at 03:12 PM | Permalink | Comments (2)

The Baze decision has extensive coverage in the news today. Here is a sampling:

Adam Liptak in the New York Times.
Jennifer McMenamin in the Baltimore Sun.
Debra Saunders in the San Francisco Chronicle.
David Savage in the Los Angeles Times.
A Florida-enhanced version of the LAT story in the Tampa Tribune with contribution by Valerie Kalfrin.
Kelley Shannon for AP in Austin.
Sean O'Sullivan in the Wilmington News Journal.
Heather Ratcliffe in the St. Louis Post-Dispatch.

Posted by CJLF Staff at 09:15 AM | Permalink | Comments (0)

Baze is one of those dreaded splintered opinions where we will have to pick our way through to figure out what the law is for some time to come. Even so, there are a number of important points on which the Court not only has a coherent majority but actually is unanimous. These are worth noting.

The plaintiffs got no support for a standard of "unnecessary risk" in the sense that any method of execution could be challenged indefinitely into the future merely by showing that some other method had less risk of pain. Justice Ginsburg writes at page 4, "Proof of 'a slightly or marginally safer alternative' is, as the plurality notes, insufficient."

No one endorses the argument that monitoring by a person qualified to assess "anesthetic depth" is required. See petitioner's brief 57-59. The plurality recognizes the Catch-22 strategy of requiring the participation of people who are forbidden to participate and rejects it. No one on the Court disagrees.

No justice buys the argument that a single-drug protocol is constitutionally required. The contrary standard for human euthanasia in the Netherlands pretty well neutralized the veterinary standard argument. A comment in the Stevens opinion was the only positive mention of that argument, and both the plurality and Justice Breyer dismiss it.

All appear to be agreed that the three-drug protocol is clearly constitutional in those states that add a consciousness check after the pentothal injection. The main point of the dissent is to emphasize that such a check sharply reduces the chances of a "botched" execution. Kentucky and other states that do not yet have such a check would be well advised to add one.

Posted by Kent Scheidegger at 04:38 PM | Permalink | Comments (0)

U.S. Supreme Court Opinions: SCOTUSblog has posts on the U.S. Supreme Court decisions released today. Today the Court announced rulings in Begay v. United States, Baze v. Rees, and Burgess v. United States. Lyle Denniston's in-depth post on the opinion in Baze can be found here, and a quick summary of Breyer's majority opinion in Begay can be found here.

Kennedy v. Louisiana: Today the U.S. Supreme Court heard oral arguments in Kennedy, a case addressing Louisiana's implementation of the death penalty for child rape. Corey Rayburn Yung's summary of the arguments can be found at Sex Crimes Blog.

Concurring Opinions: Dave Hoffman at Concurring Opinions has an interesting post comparing Stevens' and Scalia's concurring opinions in Baze. Both Scalia and Stevens address whether empirical studies support the deterrence theory of capital punishment. Stevens notes recent scholarship supporting the deterrent effect but then claims, without explanation, that the criticisms of those studies constitute "an equal, if not greater, amount of scholarship." Scalia asserts the Court cannot rely on empirical studies when making this judgment - at least not yet. Hoffman says, "Justice Scalia has the better of the argument here."

Giles Preview: Richard Friedman at The Confrontation Blog has this post on an article he wrote for the ABA's Preview of United States Supreme Court Cases. Giles will be argued on April 22 and addresses whether an accused forfeits his right to confront a witness who would have testified against him if he murders the witness. Friedman is an amicus in Giles, taking the unusual posture of supporting the petition for certiorari at the petition stage but supporting the respondent on the merits. His article can be found here.

Posted by Lauren Altdoerffer at 11:39 AM | Permalink | Comments (0)

The Supreme Court decided the lethal injection case, Baze v. Rees today. The opinion is here. There is no majority, but I expect the plurality opinion by Chief Justice Roberts will be treated as the authoritative word. A couple of key passages:

Accordingly, we reject petitioners’ proposed “unnecessary risk” standard, as well as the dissent’s “untoward” risk variation. See post, at 2, 11 (opinion of Ginsburg, J.) [footnote omitted]

Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment. [footnote omitted]

Slip op. at 11-12.

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

Slip op. at 22 (emphasis added)

Posted by Kent Scheidegger at 07:42 AM | Permalink | Comments (1)

The U.S. Supreme Court celebrated Tax Filing Day by filing two tax opinions. Lyle Denniston discusses them at SCOTUSblog.

This is also National Crime Victims' Rights Week. Perhaps the Court could celebrate that by deciding Baze v. Rees and bringing to an end the de facto moratorium on justice in the worst murder cases that the Court has imposed since last fall. Among the rights of victims of crime and their families is the right to proceedings free from unreasonable delay, and that includes federal habeas corpus. See 18 U.S.C. § 3771 (a)(7) & (b)(2)(A).

Speaking of delay, the high court yesterday denied certiorari in the case of Fields v. Ayers, No. 07-8724. Stevie Fields is on California's death row for a "one man crime wave" in 1978. His conviction and sentence were affirmed on direct appeal in 1983. Since then, there has been a quarter century of collateral review of a case with no question of guilt. A previous post on this exemplar of overdue process is here.

"The Supreme Court said Monday it would take up a Los Angeles case to decide whether a chief prosecutor can be held liable for a man's wrongful conviction of murder." David Savage has this story in the LA Times on Van de Kamp v. Goldstein, No. 07-854.

Tony Mauro has this post at BLT on the unusual circumstance of the Court hearing two cases on the same day where the United States had declined to defend a judgment in its favor and the Court appointed an amicus to argue in support of the decision below. Defending a position the SG has abandoned is usually a lost cause, but Mauro thinks these two have a shot.

Posted by Kent Scheidegger at 09:16 AM | Permalink | Comments (1)

Continue reading "New Study on Supreme Court Justices" »

Posted by Lauren Altdoerffer at 12:12 PM | Permalink

The "redacted" version of Volume 4 of the Joint Appendix has now been filed with the Court, and it has been added to our Baze v. Rees document collection.

Posted by Kent Scheidegger at 05:25 PM | Permalink | Comments (0)

Charles Lane, who formerly covered the Supreme Court for the Washington Post, has a book titled The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction. The subject is the 1873 murder of scores of black men in Colfax, Louisiana, the prosecution of that case by the U.S. Attorney, and the Supreme Court's reversal in United States v. Cruikshank, 92 U.S. 542 (1875). Cruikshank is one of the cases near the end of Reconstruction that effectively gutted the Fourteenth Amendment for a time. Guest-blogging at the Volokh Conspiracy, Chuck has posts on the book and the case here, here, here, here, and here.

The case is a reminder that the worst violations of equal protection of the laws have come not in prosecutions but in failures to prosecute.

Posted by Kent Scheidegger at 11:26 AM | Permalink | Comments (0)

The NY Times' new Supreme Court reporter will be Adam Liptak, reports Lyle Denniston at SCOTUSblog. Congrats to Adam. We have worked with him on other legal issues in the last couple of years and look forward to discussing the Supreme Court cases with him.

Posted by Kent Scheidegger at 03:57 PM | Permalink | Comments (1)

Not much of interest in criminal law in the Supreme Court today. The Court decided an original jurisdiction case, New Jersey v. Delaware, involving a long-running dispute between those states regarding jurisdiction over the Delaware River. The only point of interest for us is that Justice Ginsburg wrote the opinion. See sudoku update, below.

In the orders list, the Court granted two civil First Amendment cases. No hot button criminal cases are in the denied list. Update: There is a criminal-related case that probably qualifies as "hot button." The Court turned down the Justice Department's certiorari petition regarding return of the materials seized in a search of Congressman William Jefferson's office. Robert Barnes reports here for the WaPo. DC Circuit opinion here. Cert. petition here. Curiously, the named party is not Congressman Jefferson but his office, Room 2113 in the Rayburn Building. I've heard of an office with prestige, but an office with standing is a new one to me.

Sudoku Update: The premise of SCOTUS sudoku is explained here. Since that previous post, we have had Medellin from the October sitting, written by Chief Justice Roberts, Hall Street from the November sitting, written by Justice Souter, and today's NJ v. Del from the December sitting, written by Justice Ginsburg. If the premise is correct, then United States v. Santos, the money laundering case, is being written by Justice Breyer or Justice Alito. Given the slowness of this opinion's emergence, I would bet on Breyer, who obviously spent a lot of time on his treatise dissent in Medellin. From November, United States v. Williams, the kiddie porn vagueness case, is being written by Justice Scalia or Justice Alito, probably not a good sign for the defendant. The biggie, Boumediene v. Bush, the Gitmo detainee case, is now down to Justice Kennedy or Justice Souter. Stay tuned.

Posted by Kent Scheidegger at 08:15 AM | Permalink | Comments (0)

Despite all the wailing and gnashing of teeth over the Supreme Court's decision in Medellin v. Texas, the holding is not all that remarkable. It has long been established that not all treaties are self-executing, and the Court held that the ones at issue here are not, based on their own language. Where adherence to a treaty is contrary to a statute, the President cannot override the statute unilaterally, but legislation is required. Far from making America a rogue nation, placement of the responsibility for treaty compliance in the political branches and not the judiciary is quite common in the world.

So the ball is squarely in Congress's court. The United States, of course, should live up to its treaty commitments. What would a congressional implementation of International Court of Justice's decision in Avena look like? It should go as far as our treaty obligations require and not a nanometer further.

Continue reading "Medellin: What Would Congressional Implementation of Avena Look Like?" »

Posted by Kent Scheidegger at 08:57 AM | Permalink | Comments (1)

On remand after the U.S. Supreme Court decision last June in Panetti v. Quarterman, No. 06-6407, the U.S. District Court for the Western District of Texas has found Scott Panetti to be competent to be executed. The decision, in two parts, is here and here. The bottom line:

Panetti was mentally ill when he committed his crime and continues to be mentally ill today. However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two. Therefore, if any mentally ill person is competent to be executed for his crimes, this record establishes it is Scott Panetti.

Coincidentally, this order comes on the same day the Supreme Court heard oral argument in Indiana v. Edwards on whether the Faretta rule really does require states to allow marginally competent defendants to represent themselves, the source of much controversy in Panetti's case, although not the issue before the Supreme Court in that case.

Posted by Kent Scheidegger at 02:24 PM | Permalink | Comments (2)

The Supreme Court decided the case of Medellin v. Texas, 5-1-3. The case involves a decision of the International Court of Justice that the United States must reconsider the claims of about 50 Mexican nationals that their rights under the Vienna Convention were violated by the failure of police to inform them upon arrest that they could have the Mexican Consulate notified. In many of the cases, including Medellin, state courts had held that the claim was defaulted by failure to raise it in time. The ICJ held, in essence, that the default rule could not be applied at least to defaults occurring before the consulate had notice of the case. Two years ago, in Sanchez-Llamas v. Oregon, the U.S. Supreme Court disagreed and held that the treaty does not trump state procedural default rules. However, that case did not involve any of the persons whose cases were actually before the ICJ.

Two arguments were made to distinguish the Medellin case from the earlier case. The first one was that the treaty obligations of the United States to submit Vienna Convention disputes to the ICJ and to comply with the ICJ decisions have direct legal force in domestic courts. The second was that a memorandum issued by the President to the effect that state courts would implement the ICJ decision was a proper exercise of the President's authority in foreign affairs.

Today's decision by Chief Justice Roberts rejected both arguments. The treaties are not self-executing, based on an analysis of their language. Although the United States has an obligation under international law, that obligation only becomes a domestic law binding on domestic courts if Congress enacts legislation to implement it. Second, although the President has broad powers in foreign affairs, he cannot transform a non-self-executing treaty into a self-executing one.

On page 25 of the slip opinion, the Court notes, "Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes." We can expect the next stage of this drama to be the introduction of bills to implement the ICJ decision.

Posted by Kent Scheidegger at 09:34 AM | Permalink | Comments (5)

Today the U.S. Supreme Court decided the case of Snyder v. Louisiana, No. 06-10119. There were 5 black veniremembers in the 36 who survived the for-cause stage of jury selection, and the prosecution peremptorily challenged all 5. That looks bad, even when it's justified, and the prosecutor needs to have good reasons ready. In this case, the prosecutor's reasons for challenging one venireman were that he looked nervous and that he was concerned about missing class. The Supreme Court held, 7-2, that was not sufficient, despite the trial judge's acceptance of the explanation.

Note that this case arose on direct review, so the habeas deference standard of 28 U.S.C. § 2254(d) is not involved. However, this case is now "clearly established" Supreme Court precedent, and it will surely be cited in most Batson cases from this point onward. Note at page 6 of the slip opinion that the Court is unwilling to presume that the trial judge relied on his own observation of the venireman's demeanor without any statement from the judge to that effect. Once again, we see the importance of making the record.

Posted by Kent Scheidegger at 07:47 AM | Permalink | Comments (0)

The big news today in the press and the blogs is the argument in the D.C. gun case, District of Columbia v. Heller. The transcript is available on the Supreme Court website, and there is audio at CSPAN.

CJLF did not file a brief in Heller. We apply our limited resources where they are most needed. Everybody and his dog filed in Heller, and one more brief on the massive heap would be unlikely to make any difference. We have occasionally filed briefs despite a large number of amici where we had some special expertise to add, such as a historical perspective on habeas corpus in the Guantanamo detainee cases, but that wasn't the case in Heller.

Continue reading "The Gun Case" »

Posted by Kent Scheidegger at 02:23 PM | Permalink | Comments (0)

The Supreme Court issued one opinion today in the political case of Washington State Grange v. Washington State Republican Party, No. 06-713. For criminal law practitioners, the case is primarily of interest for the Court's continuing hostility to "facial" challenges to statutes. In United States v. Salerno, 481 U.S. 739, 745 (1987), the Court set the hurdle for such a challenge almost impossibly high: "that no set of circumstances exists under which the Act would be valid.” The Court has waffled since, but facial challenges remain much more difficult than they were in earlier times, and today the Court rejected a facial challenge to Washington's "blanket" primary, telling the plaintiffs to wait until the law is actually applied and then challenge it as applied.

For Court-watchers, the lineup is interesting. Justice Scalia, the author of Salerno, dissents, claiming that the case meets that standard. Justice Thomas wrote the opinion from which Justice Scalia dissents, further refuting the nonsense that he just follows Scalia. Justice Kennedy, the "swing vote" who was always in the majority last term, is in the dissent again.

Still waiting on Medellin and Boumediene. Maybe tomorrow.

Posted by Kent Scheidegger at 07:56 AM | Permalink | Comments (1)

The Monday orders list is here. Among the cases listed in Friday's conference post, the Court granted certiorari in Melendez-Diaz, the lab report confrontation case, Sarausad on state-law issues and habeas, and Ice on Apprendi and consecutive sentencing. The Court denied certiorari in Bentley on confrontation and a child's abuse report. Also granted is a pro se petition in a Texas habeas case, Jimenez v. Quarterman, No. 07-6984.

Posted by Kent Scheidegger at 08:38 AM | Permalink | Comments (0)

The U.S. Supreme Court held a private conference today. The same-day orders list has only routine orders. The SG gets into oral argument in Indiana v. Edwards, as always. The full orders list with grants and denials of certiorari will be released Monday. Criminal cases on SCOTUSblog's petition to watch list include

Melendez-Diaz v. Massachusetts, No. 07-591, on lab reports as "testimonial" under Crawford.

Iowa v. Bentley, No. 07-886, on a child's report of abuse to a hospital counselor as "testimonial" under Crawford.

Waddington v. Sarausad, No. 07-772, on relitigating questions of state law in federal habeas.

Oregon v. Ice, No. 07-901, on Apprendi/Blakely and consecutive sentencing.

Posted by Kent Scheidegger at 11:27 AM | Permalink | Comments (0)

Today, the Ninth Circuit designated for publication its order of February 14 on remand from the United States Supreme Court in Arave v. Hoffman.

Accordingly the U.S. Supreme Court vacated this court's judgment to the extent that it addressed the claim of ineffective assistance of counsel during plea bargaining, and remanded for future proceedings. We now instruct the district court to dismiss with prejudice Hoffman's claim of ineffective assistance of counsel during plea bargaining. The district court's grant of Hoffman's habeas petition on his claims of ineffective assistance of counsel with respect to sentencing still stands. The State of Idaho should proceed with the resentencing of Hoffman as ordered by the district court.

How nice. They "instruct" the district court to do substantially what it did correctly the first time before they mucked it up.

Posted by Kent Scheidegger at 10:11 AM | Permalink | Comments (0)

The Supreme Court issued one opinion in a criminal case today, Boulware v. United States, No. 06-1509, but it's really more of a tax case.

In the orders list, the Court asked for the views of the Solicitor General in a state-prisoner capital habeas case, Harbison v. Bell, No. 07-8521. That is an unusual order for this type of case. The Sixth Circuit opinion in the case is here. The case involves the use of Rule 60(b) of the Federal Rules of Civil Procedure to reopen a habeas case. Before 1996, the usual method was to file a successive habeas petition, but Congress cracked down hard on that practice in the Antiterrorism and Effective Death Penalty Act of 1996. The Court addressed Rule 60(b) in this context in Gonzalez v. Crosby in 2005.
Update: Three of Harbison's petitions are on the orders list today. Two of them, 07-8519 and 07-8520, were denied. We are informed that the third, on which the Court requested the views of the SG, deals with appointment of federal habeas counsel for state clemency proceedings. See 18 U.S.C. § 3599(e), added by P.L. 109-177 § 222(a). As this involves federal taxpayer dollars for a purely state proceeding, the involvement of the federal government makes more sense. It's an odd provision of the code, but nowhere in the Constitution does it say, "Congress shall make no odd laws."

Also from the Sixth, the Court denied certiorari in the Getsy case, previously noted several times in this blog, including here and here.

The Court also denied certiorari in the case of Alfaro v. California, No. 07-8483. Alfaro is one of the few women on California's death row. In 1990, she murdered 9-year-old Autumn Wallace in the course of committing a burglary and robbery. The Cal. Supreme opinion is here.

Posted by Kent Scheidegger at 07:39 AM | Permalink | Comments (1)

Another Supreme Court decision day and another lone civil case, with no decision in Medellin v. Texas. There remain three undecided cases from the October calendar: Medellin, the Washington political primary case, and the Santos money laundering case. Four Justices have not yet written an opinion from that session, and it is likely that three of them are authors of the three undecided cases: Chief Justice Roberts, Justice Thomas, Justice Breyer, and Justice Alito. I expect that Medellin is a win if any but Justice Breyer is writing it, but why is it taking so long? It could be that there is a fracture on how to get to the result, and the Court is trying to put together a coherent majority opinion.

Posted by Kent Scheidegger at 08:10 AM | Permalink | Comments (0)

With its grant of certiorari in the case of Chrones v. Pulido, No. 07-544, the U.S. Supreme Court ventures once more into the questions of habeas corpus, harmless error, and deference to the state court's decision on direct appeal. The Court addressed related issues last June in Fry v. Pliler, No. 06-5247. The new case deals with the situation where a jury is given more than one path to a conviction, of which one is right and the other wrong. The Supreme Court addressed that situation in Stromberg v. California, 283 U.S. 359 (1931).

Continue reading "Harmlessness and Habeas" »

Posted by Kent Scheidegger at 02:36 PM | Permalink | Comments (2)

Update, Monday morning: SCOTUSblog reports that the Court granted certiorari in Gant and in a habeas case from California, Chrones v. Pulido, No. 07-544. More later.
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The U.S. Supreme Court held a conference today. The only order announced was for briefing in a Gitmo detainee case, which Lyle Denniston discusses at SCOTUSblog. For regular cases, the grants and denials will be announced Monday. Among the criminal cases considered today was Arizona v. Gant, No. 07-542, regarding the New York v. Belton rule of searches of vehicles incident to arrest.

Posted by Kent Scheidegger at 11:46 AM | Permalink | Comments (0)

Nineteen years ago this Friday, the U.S. Supreme Court virtually eliminated the retroactive application of newly created rules of criminal procedure on federal habeas corpus in its landmark decision in Teague v. Lane, 489 U.S. 288 (1989). Today, in Danforth v. Minnesota, No. 06-8273, the Court confirmed that Teague is a limitation on the remedy of federal habeas corpus, not a definition of the substantive scope of federal constitutional rights. Defendant Danforth has won a round in this case; he can now go back and argue to the Supreme Court of Minnesota that they should adopt a broader retroactivity rule. On the much larger battle, though, this is a win for the prosecution nationwide. The rationale of the decision pounds several more nails into the coffin of the argument that the "deference" standard of the Antiterrorism and Effective Death Penalty Act of 1996 is unconstitutional.

Continue reading "Retroactivity, Remedies, and AEDPA" »

Posted by Kent Scheidegger at 09:13 AM | Permalink | Comments (3)

The U.S. Supreme Court has issued its order list from last Friday's conference. The one criminal case granted is Herring v. United States, No. 07-513. The Question Presented is:

Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.

Cert.-stage pleadings and the Eleventh Circuit opinion are available on SCOTUSblog.

Among the cases denied certiorari were:

Norris v. Simpson, No. 07-653, noted here Friday, on whether a murderer who never claimed to be retarded before, despite a state-law exclusion from capital punishment, can suddenly claim to be retarded after the Atkins decision.

ACLU v. NSA, No. 07-468, on standing to litigate the government's terrorist surveillance program.

Antoinette Frank v. Louisiana, No. 07-6923, a petition by one of the few women on death row, a former New Orleans police officer who murdered three people, including her partner.

Schriro v. Lopez, No. 07-683, on exhaustion of ineffective assistance claims.

Posted by Kent Scheidegger at 08:06 AM | Permalink | Comments (0)

The U.S. Supreme Court held a conference today. As expected, no grants or denials of certiorari were announced. The Court did issue an orders list of routine orders regarding briefing and argument. Announcement of the cases granted and denied today will be made in Tuesday's orders list. The Court is closed Monday for Washington's Birthday (no, not "Presidents' Day," see 5 U.S.C. § 6103).

Among the petitions considered at today's conference was Norris v. Simpson, No. 07-653, in which the Eighth Circuit held that a condemned murderer could raise his claim that he is retarded for the first time in a post-Atkins habeas petition, despite the facts that (1) the state had precluded execution of retarded murderers the whole time, and (2) he never claimed to be retarded during any of the state proceedings.

Wednesday is a likely day for decision announcements. Medellin v. Texas, discussed here, was argued October 10 and is ripe for decision.

Posted by Kent Scheidegger at 04:24 PM | Permalink | Comments (1)

The "top side" amicus briefs have been filed in Indiana v. Edwards, No. 07-208. The briefs to date and other pertinent documents are available here. Along with the expected amici of CJLF, other states, and the federal government, we have some unusual players.

The case involves a defendant of marginal mental competence who moved under Faretta v. California, 422 U.S. 806 (1975), to reject counsel and represent himself. When the Court first granted certiorari, it occurred to me that this was one of those unusual cases where many defense lawyers might disagree with the position of the defendant in this case.

Continue reading "Strange Bedfellows Call for Limiting Faretta" »

Posted by Kent Scheidegger at 12:14 PM | Permalink | Comments (0)

With John McCain's emergence as the front-runner for the Republican nomination, there has been much discussion about the kind of judicial appointments he would make. For issues related to crime, judicial appointments are the single most important aspect of presidential authority. The federal government has relatively little to do with protection from and prosecution for crimes against individuals. Federal prosecution is more appropriately directed to terrorism, drug smuggling, and other specifically federal areas. However, the federal courts have a great deal to do with how prosecutions are conducted in state courts. Judge Henry Friendly warned us over four decades ago that the Bill of Rights was being transformed into a detailed code of criminal procedure. Judicially created rules that are not really in the Constitution and often have nothing to do with the reliability of the verdict -- and in some cases actually obstruct the search for truth -- operate to defeat the cause of justice every day in American courtrooms. Will the next President appoint judges who will take us further down that path or judges who will realize we have already gone too far?

Continue reading "McCain, Judges, and the Great Question" »

Posted by Kent Scheidegger at 02:12 PM | Permalink | Comments (1)

Joel Jacobsen at Judging Crimes has a series of long posts, 3 so far, titled "Intellectual dishonesty epic." The series provides some interesting historical background regarding one of the most dishonest decisions in the history of the Supreme Court, Fay v. Noia, 372 U.S. 391 (1963), overruled in Coleman v. Thompson, 501 U.S. 722 (1991). In that decision, Justice Brennan rewrote the history of habeas corpus in such a brazen manner that the only apt comparison is to the Ministry of Truth in George Orwell's 1984.

Continue reading "Intellectual Dishonesty Epic" »

Posted by Kent Scheidegger at 01:58 PM | Permalink | Comments (0)

Jose Padilla was sentenced to 17 years, 4 months for conspiracy to commit terrorism, Curt Anderson reports for AP. He is a U.S. citizen who was detained on charges of a "dirty bomb" plot, leading to this Supreme Court decision on jurisdiction in habeas corpus cases.

The sentence today does not reflect the most serious charges against Padilla. The information gained from him during interrogation is inadmissible in a regular criminal trial under the Miranda rule.

The AP story says, "Padilla's lawyers argued for a lenient sentence," meaning no more than 10 years. But he has gotten off leniently. If even a portion of the plots alleged are true, he is guilty of "levying war against [the United States], or ... adhering to their Enemies, giving them Aid and Comfort," U.S. Const. Art. III § 3, i.e., treason. The appropriate punishment for that crime is death.

Posted by Kent Scheidegger at 09:43 AM | Permalink | Comments (0)

The Supreme Court today issued an orders list and one opinion. The opinion in Ali v. Federal Bureau of Prisons is an exercise in statutory interpretation on the federal government's waiver of sovereign immunity in 28 U.S.C. § 1346(b)(1) and an exception to that waiver in 28 U.S.C. § 2680(c). The interpretation question had split the Courts of Appeals 6-5, and today it split the Supreme Court 5-4. The lineup was a little unusual, with Justice Kennedy in the dissent and Justice Ginsburg joining Justice Thomas's majority opinion. The bottom line is that the government does not waive sovereign immunity for a claim arising out of detention of property by any federal law enforcement officer, not just those enforcing customs and excise laws. There is an administrative remedy for prisoner Ali's claim, but it was decided against him.

The orders list, as expected, consists of "vacate and remand in light of..." orders and denials of certiorari. The grants for full briefing and argument were announced Friday. Among the denials are Jones v. Jennings, No. 07-654, on excessive force on a resisting arrestee and Gilmer v. Mississippi, No. 07-183, on that state's "video voyeurism" statute.

On the March argument calendar, the most important case for general criminal law practice is Indiana v. Edwards, No. 07-208, scheduled for Wednesday, March 26. In this case, the Supreme Court will finally answer the question raised 33 years ago when it constitutionalized the right of the defendant to represent himself in Faretta v. California, 422 U.S. 806 (1975). Many states have interpreted this case to extend that right to anyone mentally capable of making an intelligent waiver of counsel, even if he is not capable of making a coherent defense. This view of Faretta produced the circus in Panetti v. Quarterman, decided last June. See CJLF Panetti brief here. CJLF will file a brief in Edwards asking the Court to clean up this mess of its own making.

Also on the calendar are the D.C. gun case March 18, Rothgery v. Gillespie County on when the Sixth Amendment right to counsel attaches on March 17, two federal sentencing cases on March 24 and 25, and a pair of citizen detainee cases on March 25.

Continue reading "SCOTUS Today" »

Posted by Kent Scheidegger at 07:57 AM | Permalink | Comments (2)

The U.S. Supreme Court granted certiorari in six cases today, all civil. SCOTUSblog has the details. Criminal cases that were on the conference list for today are likely either denied (to be announced Tuesday) or "relisted" to be considered again at a later conference.

Absent extraordinary circumstances, the docket for this term is set. The next scheduled conference is February 15, and cases taken then will be argued next fall.

Update: The official orders list is now available here. Jason Harrow notes at SCOTUSblog that the Ninth Circuit's share of the Supreme Court docket is down a little this term, 17% of the docket instead of 20%. Possibly that court's increased willingness to correct rogue panel decisions by taking them en banc, noted previously here, has something to do with that.

Posted by Kent Scheidegger at 10:53 AM | Permalink | Comments (0)

We are still waiting for a decision in Medellin v. Texas, argued October 10. (Briefs are here; argument transcript here.) This is the case on the Vienna Convention on Consular Relations and the International Court of Justice decision on the cases of 50+ Mexican nationals on death row in the United States.

The Court picked some low-hanging fruit today. In New York State Bd. of Elections v. Lopez Torres, the Court answered the question of whether the federal constitution requires primaries in state judicial elections. (Answer, without dissent: of course not.) The opinion is by Justice Scalia, and the case was argued October 3. There is also an eyes-glaze-over tax case, Knight v. Commissioner. This is a unanimous opinion by Chief Justice Roberts in a case argued a mere 7 weeks ago.

At this point, we can start playing the SCOTUS-watchers' favorite parlor game, guessing the outcome of the remaining October cases by guessing which justice they are assigned to. There were nine cases on the initial calendar, but one of them was one-lined per curiam when Justice Kennedy was recused and the others split 4-4. Opinions from that session have been written by Stevens (Gall), Souter (Watson), Ginsburg (Kimbrough), Kennedy (Stoneridge), and Scalia (today's New York case). Assuming the opinions are spread among the justices, as they generally are, this leaves four justices (Roberts, Thomas, Breyer, and Alito) and three cases. In addition to Medellin, there is Washington State Grange, on that state's primary election law, and United States v. Santos, on money laundering.

I expect that Roberts, Thomas, and Alito will all vote for the State in this case. If so, Medellin would win only if Breyer is writing the opinion, and he would be doing that only if Stevens assigned it to him. I'm inclined to think that Stevens would have kept a blockbuster case on presidential power and international court relations for himself if he were making the assignment, but that is admittedly just speculation at this point. Stayed tuned.

Posted by Kent Scheidegger at 03:00 PM | Permalink | Comments (0)

The U.S. Supreme Court's Monday orders list is here. No surprises. The cases granted for briefing and argument this term were announced after the conference on Friday, including the Giles case discussed here.

Among the cases turned down today is Black v. California, the California Supreme Court's decision on remand after Cunningham. See People v. Black, 41 Cal. 4th 799, 161 P.3d 1130 (2007).

Orin Kerr has this post at VC on the oral argument in Virginia v. Moore this morning. "On the whole, the argument went extremely well for Virginia. In the first half hour, the Justices seemed to think Virginia's position was so obviously correct that they appeared rather bored." Look for a frothing denunciation of the opinion in the 2009 pocket part of LaFave's Search and Seizure.

Posted by Kent Scheidegger at 09:14 AM | Permalink | Comments (0)

Today, the US Supreme Court granted certiorari in Giles v. California (07-6053), a case that will review whether the Confrontation Clause permits the hearsay statement of a witness who is unavailable for trial because the defendant killed her - even though he did not intend to silence her testimony when he killed her. The California Supreme Court ruled in March of last year that the hearsay statement was admissible, but placed some limitations on how and when the statement would be allowed in court.

In Giles, the defendant was charged and convicted with the murder of his former girlfriend Brenda Avie. According to witnesses, Avie had arrived at the defendant's grandmother's house on the night of the murder, and had talked with defendant for about a half hour. Witnesses then heard the victim yell "Granny" several times followed by a series of gunshots. When witnesses arrived on the scene, they saw defendant standing about eleven feet from Avie with gun in his hands. Defendant then fled the scene and was arrested sixteen days later.

Avie had been shot six times in her torso. Two of the wounds were fatal. Avie had not been carrying a weapon when she was shot.

Continue reading "Giles v. California: Defining the Scope of "Forfeiture By Wrongdoing" " »

Posted by Lauren Altdoerffer at 02:36 PM | Permalink | Comments (0)

In New York, James O'Hare wanted to cash the Social Security check of his roommate, Virgilio Cintron. He had a small problem, though, as Mr. Cintron had died sometime within the preceding 24 hours. Undeterred, Mr. O'Hare and his buddy David Dalaia proceeded to the Pay-O-Matic check-cashing joint with Mr. Cintron in tow, seated in an office chair. Off-duty detective Travis Rapp, eating lunch at a nearby restaurant, thought this looked a tad suspicious and called in the uniforms, report Bruce Lambert and Christine Hauser in the NYT.

In related news, the Supreme Court heard oral argument today in the Indiana voter ID cases, Crawford v. Marion County Election Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25, transcript here. These cases concern an Indiana law that voters show a photo ID at the polling place. This requirement has a disparate impact on deceased voters. Unlike Mr. O'Hare, persons voting on behalf of the deceased rarely bring the dear departed to the polls with them. Even if they did, after a week or two persons of decomp. do not look much like the pictures on their IDs. Norman Bates would have had a hard time with his mother and her driver's license.

Continue reading "Deceased Check-Cashing and Voting" »

Posted by Kent Scheidegger at 11:06 AM | Permalink | Comments (0)

Orin Kerr has this long, interesting post at the Volokh Conspiracy on "Why the defendant should win in Virginia v. Moore." My reason why the state should win is much shorter and simpler. Mapp v. Ohio, 367 U.S. 643 (1961), which found an exclusionary rule applicable to the states in the Fourth Amendment, was wrongly decided. It is just barely tolerated as a matter of stare decisis and should not be extended anywhere that the Court's precedents do not absolutely require. Whatever federal interest there may be in protecting people from a search that the state could have authorized but didn't, there is none so strong as to require the drastic remedy of excluding evidence for a reason unrelated to its reliability and contrary to the truth-seeking function of the criminal trial.

Posted by Kent Scheidegger at 02:21 PM | Permalink | Comments (3)

Although the big Supreme Court news today is on the Baze argument, two per curiam decisions today in habeas cases are worth noting. First, there is Arave v. Hoffman, which the Court vacated and remanded, as expected. The Ninth Circuit had held that a defendant can make out a case for habeas relief for ineffective assistance of counsel at plea bargaining, even if the trial that follows is fair. Hoffman has now abandoned the claim for relief he won at the Ninth, so there is no live controversy. The citation to United States v. Munsingwear, 340 U.S. 193, 200-201 (1950) at the very end of the opinion serves the dual functions of (1) reminding everyone that the vacated Ninth Circuit decision is not precedent, and (2) enabling bad jokes about "Munsingwear briefs."

Second, on a somewhat related issue, the case of Wright v. Van Patten makes its second trip to the high court. The Seventh Circuit had held that a lawyer's appearance by speakerphone at a plea hearing was per se grounds for relief. The hearing was simply the formal acceptance of a plea deal previously worked out and thoroughly discussed between attorney and client. The state court rejected Van Patten's claim because there was no indication of any prejudice to him. The Seventh granted relief, saying no such showing was required. After the Supreme Court vacated and remanded to reconsider in light of Carey v. Musladin, 127 S.Ct. 1038 (2006), Judges Evans and Williams said, in essence, there is nothing to reconsider. Judge Coffey dissented. The high court today unanimously reversed. Application of the Strickland prejudice standard in this situation is an open question, and the Wisconsin court was reasonable to decide it the way it did.

How many times will the federal courts of appeals have to be slapped down before they understand the difference between "I disagree with that" and "That is unreasonable"?

Posted by Kent Scheidegger at 02:16 PM | Permalink | Comments (1)

Today, the United States Supreme Court heard oral argument in the case of Baze v. Rees, regarding the constitutionality of Kentucky’s method for executing the death penalty. Kentucky uses a combination of three drugs originally developed in Oklahoma and presently in use in every state that has the death penalty except Nebraska. Audio (with still pictures) is on C-SPAN. Transcript is on the Court's site.

Overall, the argument appeared to go well for the state. Even Justice Stevens said the state had "a very strong case" (p. 41).

Continue reading "Baze Argument" »

Posted by Kent Scheidegger at 01:27 PM | Permalink | Comments (1)

The U.S. Supreme Court issued an orders list following its conference today. As expected, they took the capital child rape case, Kennedy v. Louisiana. They also took two federal sentencing procedure cases, Irizarry v. United States, 06-7517, and Greenlaw v. United States, 07-330.

As we have noted before, we at CJLF consider the death penalty for any nonfatal crime to be a bad idea, even if it is constitutional. There needs to be a meaningful differential i