- Professor Erwin Chemerinsky is the Dean of the University of California Irvine’s School of La and is an exceptionally well published author on the U.S. Constitution. He has published roughly ten articles on decisions from this year’s Court. His general summary is entitled “What we learned about SCOTUS this term” and does a nice job about discussing the political divides of the Court and the current ideological divide on the Court. This summary covers the University of Texas affirmative action case (Fisher v University of Texas), the dog sniff on the porch case (Florida v Jardines), the DNA collection case (Maryland v King), the marriage equality case (United States v Windsor and Hollingsworth v Perry), and the Voting Rights Case (Shelby County v Holder);
- Supreme Court Review is my find of the week. It is a website which tracks decisions of the US Supreme Court and which I will use as frequently as I use SCOTUS Blog. The site has a great media collection site, a nice section on court statistics, a great docket summary for the week, and more.
- Slate has a summary designed more for ordinary folks (and not lawyers) written by Emily Bazelon, a popular news writer and fellow at Yale Law School. Her summary “Supreme Court 2013: the Year in Review” covers the general ground covered by others. She makes several interesting points, however, including fight between Justices Roberts and Scalia in City of Arlington v FCC -- an obscure case dealing with the authority of the FCC to regulate the placement of cell towers. Justice Roberts used the ruling to challenge the expanding power of the FCC which is coming with our increased methods of communication. She also made an interesting point on the gene patenting decision fro the court. Justice Thomas (writing for the majority) drew a distinction between naturally occurring DNA and synthetic DNA. The problem is that the people in the biotech industry say that the distinction is “meaningless and anachronistic.”
More analysis will be coming out very shortly and I’m still sifting through all the stuff. I will update this post as I find more good reviews.
SCOTUS Reverses Favorable Michigan Supreme Court Ruling in Bryant: Victim's Crime Scene ID of the Defendant is Not Testimonial Under Crawford (Updated)
This case should have been an easy win for the defense, but shockingly the State won. Reversing the Michigan Supreme Court, the US Supreme Court found that the statement was non-testimonial because the victim’s primary motivation was to help the police, rather than give an official statement. The Court seems to be stretching its prior ruling in Davis v Washington prior ruling to the breaking point.
Justices Scalia and Ginsburg dissented. Justice Scalia called the majority’s account of the facts of the case “so transparently false that professing to believe it demeans this institution.” “In its vain attempt to make the incredible plausible,” he went on, “today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shamble. (Justice Ginsburg’s dissent was short and less important. Because Justice Scalia is the captain (or at least the discovering archeologist of the modern confrontation clause, his scathing (and I mean scathing) dissent is particularly important.
As Justice Scalia suggested, this ruling appears to be a retrenchment from Crawford. What seems particularly disconcerting is that the Court found that given the nature of the event, there was little motive for fabrication. The Court looked by analogy to the Rules of Evidence to draw this conclusion and stated that the Rules were a good guidepost. This seems like a move in the direction of Ohio v Roberts. Roberts was directly overruled by Crawford v Washington.
As Justice Scalia pointed out: “Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.” This death by a thousand cuts prediction is very troubling.
Very little is out about by the ruling so far. Hear is a link to an excellent transcript of the oral argument of the Bryant case by Attorneys Peter VanHoek of the State Appellate Defender’s Office for Richard Perry Bryant, Attorney Lori Baughman Palmer of the Wayne County Prosecutor’s Office for the State of Michigan, and Deputy Solicitor General Leondra R. Kruger for the U.S. Department of Justice. Here is a link to the briefs of the case (middle of the page).
The New York Times has a nice analysis. Professor Collin Miller at the John Marshall Law School in Chicago has been blogging in busts about the ruling. Professor Richard Friedman the leading authority on this issue has noted the decision, but has not released his in depth analysis. His preliminary comments indicate concerns similar to Justice Scalia’s. As Orin Kerr noted over at the Volokh Conspiracy, Justice Scalia’s solo dissent (Justice Ginsburg wrote a small separate dissent) is ominous. Professor Friedman filed his own pro se amicus brief in Bryant supporting the Michigan Supreme Court. In that brief, Professor Friedman argued that the Court should look at the statement from the vantage point of the speaker, should not focus on the formality of the statement, and argued that the only theory possibly justifying admission of the statement was forfeiture. His viewpoint did not carry the day.
On Monday , the justices said they will hear the Michigan Attorney General’s challenge to a federal court of appeals in favor of Randall Fields. Mr. Fields acknowledged to sheriff’s deputies that he had sexual contact with a minor. The admission took place during an interview in the same building where Fields was jailed on unrelated charges. The deputies never advised Fields he could be silent or have a lawyer, hallmarks of the Miranda warning for criminal suspects. They did tell him he could leave the interrogation room when he wanted.
The Ninth Circuit found that California’s statute created a liberty interest in a parole. The Court found that this liberty interest conveyed only very basic protections: (a) the ability of the prisoner to appear and present arguments for a parole; (b) to have notice of the evidence against him/her; (c) the right to inspect this evidence (subject to limitations), and (c) the right to a statement of reasons against him/her.
The Court dropped a hint that it might be willing to reconsider the federal law on the subject about whether state law can even create a liberty interest in favor of parole. The Court said: “the Ninth Circuit held that California law creates a liberty interest in parole, see 606 F. 3d, at 1213. While we have no need to review that holding here, it is a reasonable application of our cases.” The Court, then, however noted that the four pieces of the due process outlined above “should have been the beginning and the end of the federal habeas courts’ inquiry into whether Cooke and Clay received due process.”
Most ominously, the Court declared: “The short of the matter is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts,and is no part of the Ninth Circuit’s business.”
As a result of this, Michigan is taking a serious look at changing the way we select judges. This move has broad cross-party support. Democratic Justice Marilyn Kelly and Republican Sixth Circuit (and former Michigan Supreme Court Justice James P. Ryan) are chairing a task force on this reform. The reform movement is supported by the conservative Grand Rapids Press, the Muskegon Chroncile, and other Michigan papers have supported this change. This is particularly timely, in lieu of the charges that in the last election, corporations with a financial stake in future rulings invested heavily in the judicial races.
According to the Michigan Law Blog, former Justice Elizabeth Weaver came forward with a multi-faceted plan to depoliticize Michigan’s Supreme Court. Her suggestions are interesting, but one has to question whether Justice Weaver’s name has become so tarnished that she cannot be the message bearer for these proposals.
An elected judiciary (particularly after the Citizens United ruling) is particularly troubling. In Citizens United v Federal Election Commission, 103 SCt 876 (2010),the United States Supreme Court struck down limits on campaign spending by outside organizations. People want a neutral judiciary and most jurists want to provide this service to the public, but as justices need to raise money, fend off attack adds, etc., it makes it very difficult for a judge or justice not to consider his/her own political career when ruling on a case.
Even under Wood’s reading of §2254(d)(2), the state court’s conclusion that his counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. This Court need not reach the question whether §2254(e)(1) applies in every case presenting a challenge under §2254(d)(2), see Rice v. Collins, 546 U. S. 333, 339, because its view of the state court’s factual determination here does not depend on an interpretative difference regarding the relationship between those provisions. While “[t]he term ‘unreasonable’ is . . . difficult to define,” Williams v. Taylor, 529 U. S. 362, 410, it suffices to say that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance. See Rice, supra, at 341–342. Here, the state-court record shows that all of Wood’s counsel read the Kirkland report. Trotter testified that Dozier told him that nothing in the report merited further investigation, a recollection supported by the attorneys’ contemporaneous letters; and Trotter told the sentencing judge that counsel did not intend to introduce the report to the jury. This evidence can fairly be read to support the Rule 32 court’s factual determination that counsel’s failure to pursue or present evidence of Wood’s mental deficiencies was not mere oversight or neglect but the result of a deliberate decision to focus on other defenses. Most of the contrary evidence Wood highlights—e.g., that Dozier and Ralph put the inexperienced Trotter in charge of the penalty phase proceedings—speaks not to whether counsel made a strategic decision, but to whether counsel’s judgment was reasonable, a question not before this Court. Any evidence plausibly inconsistent with the strategic decision finding does not suffice to show that the finding was unreasonable. Pp. 8–12. Because Wood’s argument that the state court unreasonably applied Strickland in rejecting his ineffective-assistance claim on the merits is not “fairly included” in the questions presented under this Court’s Rule 14.1(a), it will not be addressed here. Pp. 12–13.
The opinion was authored by Justice Sotomayer. Justice Stevens and Kennedy dissented. Read More...
SCOTUS Finds that Pennsylvania’s Fugitive Disentitlement Rule is a Valid State Procedural Default Rule
Relying on its prior ruling in Brigham City v. Stuart, 547 U. S. 398 (2006), the Court peremptorily reversed. Even though the State Court essentially found that the police officer’s excuse for entering the home (to provide medical assistance) was pretextual, the United States Supreme Court stated that the officer’s motives are irrelevant and that the a Court should not judge the officer’s decision with a hindsight determination. Justices Stevens and Sotomayor dissented.
SCOTUS Hears Arguments on Whether Miranda Requires a Suspect to be Told that Counsel Will be Appointed for Him During Questioning
“Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.” Read More...
SCOTUS Finds Death Penalty Counsel Ineffective for Failing to Put on Post Traumatic Stress Evidence in Mitigation Hearing
The U.S. Supreme Court granted certiorari today to hear Magwood v. Culliver, Supreme Court No. 09-158. The Court limited the cert granted to one question: "When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?" A review of the Eleventh Circuit's ruling below shows that the issue may be a little more nuanced than the Statement of Questions presented. The Eleventh Circuit ruled that issues which arose at a resentencing could be challenged on a new habeas corpus without it being deemed sucessive, but that legal errors which could have been litigated in the first habeas corpus cannot be challenged even though the error was repeated at the second sentencing. The Eleventh Circuit overturned a grant of habeas corpus to the prisoner. The cert was granted to the prisoner. Here are links to the cert petition, the State's answer, and the Petitioner's reply.
Yesterday, the United States Supreme Court heard oral arguments in Graham v. Florida, No. 08-7412 and Sullivan v. Florida, 08-7621. In both cases, the Court juvenile offenders were given non-parolable life sentences. Several years ago, the high court struck down the death penalty for juvenile offenders taking notice of cognitive development and the fact that juveniles brains are not fully developed at the time. They neither fully appreciate the consequences of their actions or are as set in their ways as their adult counterparts.According to SCOTUS blog, the oral arguments look promising. Chief Justice Roberts took the lead in arguing that the sanction was too harsh. Stay tuned.
The U.S. Supreme Court made clear in a Nov. 9 per curiam opinion that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases may not be treated as setting the standard of prevailing professional norms when a court is assessing a Sixth Amendment claim of ineffective assistance of counsel. The court reversed a grant of habeas corpus relief to an Ohio death-row inmate that was predicated on the circuit court's determination that counsel for the petitioner at his trial more than two decades ago failed to satisfy the 2003 ABA standards for uncovering and presenting mitigating evidence. Bobby v. Van Hook, U.S., No. 09-144, 11/9/09. The Legal Times Blog has a nice discussion on this ruling.
This past Wednesday, the U.S. Supreme Court heard oral arguments in Wood v. Allen, trying to come up with a working definition of AEDPA deference in habeas corpus cases.Petitioner’s trial teams had three attorneys (one of which had less experience than the others). This lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. It is unclear from the oral arguments what standard the Court will ultimately adopt. It appears that he entire Court was very concerned about articulating a standard that would not further complicate habeas proceedings. What standard they will ultimately choose, however, was in no way clear.Read More...
The United States Supreme Court has granted certiorari to hear two Michigan habeas corpus cases. In Berghuis v. Smith, the Sixth Circuit ruled that the Michigan Supreme Court acted contrary to clearly established United States Supreme Court law when it rejected a Sixth Amendment challenged the racial composition of Mr. Smith’s jury. The Sixth Circuit held that the jury did not reperesente a fair cross-section utilizing the comparative disparity test for evaluating the difference between the number of African-Americans in the community versus in the the jury selection panel. The United States Supreme Court has agreed to hear whether this ruling is erroneous. Berghuis v Smith, Supreme Court No. 08-1402. The case is currently scheduled for oral arguments on January 20, 2010.
In Berghuis v Thompkins, the Court has granted certiorari to determine whether the Sixth Circuit improperly expanded MIranda to prevent an officer from trying to persuade a defendant to cooperate where the officer tried to persuade the defendant to cooperate. The Defendant had been read his MIranda rights and had neither invoked them nor waived them. An ineffective assistance of counsel issue was also presented in the State’s petition for certiorari, but does not appear to be part of the order granting certiorari. An oral argument does not appear to be set in this case. Since cert was granted on the same day as Berghuis v Smith, orals will probably be in late January or early February.
This week the Court will hear oral arguments in Beard v. Kindler, Supreme Court No. 08-992. The issue is whether a partially enforced fugitive absconder rule constitutes adequate and independent grounds to justify Pennsylvania’s upholding of Joseph Kindler conviction. Mr. Kindler escaped twice from prison. A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled. But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims. In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary
This week, the Court will hear oral arguments in Wood v. Allen, Supreme Court No. 08-9156. At issue in Wood is whether counsel was ineffective by failing to investigate evidence of the Defendant’s mental impairments. The district court granted relief, concluding that a “finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record.” The court found that Wood’s less experienced lawyer was left unsupervised to investigate mitigating evidence; moreover, the failure to introduce evidence of Wood’s mental impairments stemmed from his counsel’s inexperience rather than a strategic decision. The major issue in Wood is whether, the AEDPA (the law governing modern federal habeas corpuses) required the federal court to provide greater deference to the Alabama state court.
The Court, over the protests of two Justices, refused to answer a question sent to it by a federal appeals court, seeking clarification on when the federal government may prosecute a series of old civil rights crimes in the South, dating from the 1960s, even though four decades have now passed. The case is a notorious one, involving the kidnapping and drowning murder of three young black youths in Meadville, Miss., in the spring of 1964. Justice John Paul Stevens, joined by Justice Antonin Scalia, said the Court should have taken on the issue, noting that it is rare for a lower court even to ask for such clarification and suggesting that this was an appropriate case for the Justices to make use of that unusual procedure. The case was U.S. v. Seale (certified question, docket 09-166).New York Criminal Attorney Neil Burney, California Attorney Zadek Shapiro and OSU Law Professor Douglas Berman have a nice discussion of this case on their respective blogs. (Updated November 4, 2009).
Yesterday’s Washington Post reported that an Iowa Prosecutor filed a brief in the United States Supreme Court arguing that the constitution does not prohibit framing an innocent man and that prosecutors should be immune from suits by the victim of such framing. Pottawatamie County v. McGhee, Supreme Court No. 08-1065.
United States v. O’Brien and Burgess, Supreme Court No. 08-1569 presents the question of whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond under Apprendi. Professor Kevin Reitz has argued that this case may signify the end of the Harris rule in the Supreme Court. He wrote:
U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty. It would certainly be big news if the Court were to overrule Harris. The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert). Counting votes, however, it’s hard to call.
The Blakely issue may not be dead in Michigan. This may have a particular impact on Michigan’s version of Jessica’s Law. Stay tuned!
Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg. Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule. If “yet” has now arrived, we may have four votes to overrule Harris. Roberts, Alito, and Sotomayor are not clearly on record. Sotomayor might well be a 5th vote? Stare decisis counts for something here. Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic. Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.
The Supreme Court has agreed to consider whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client.Mr. Holland, a prisoner on Florida's death row, filed a petition for a writ of habeas corpus in a Florida Federal District Court. The district court dismissed the petition as untimely because it was filed beyond the one-year statute of limitations period. On appeal, Holland argued that he was entitled to equitable tolling of the limitations period for filing his federal habeas petition because of egregious conduct by his counsel during his post-conviction proceedings.Last August, a three-judge panel on the 11th U.S. Circuit Court of Appeals released a per curiam opinion affirming the district court's rejection of an extension to file the challenge. Noting: "Petitioner has offered no reason to believe an evidentiary hearing would help him demonstrate the required extraordinary circumstances to warrant equitable tolling," the appeals court held that: “"no allegation of lawyer negligence or of failure to meet a lawyer's standard of care -- in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment, or so forth on the lawyer's part -- can rise to egregious attorney misconduct that would entitle the Petitioner to equitable tolling" under the AEDPA.”On Oct. 13, the Supreme Court agreed to review the case. Oral arguments are expected to be scheduled for some time early next year . The questions presented include: Whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client. Holland v Florida, Supreme Court No. 09-5327. To read the cert petition, click here. (Updated November 4th).
SCOTUS Blog notes that Chief Justice John G. Roberts, Jr., on Friday cleared the way for the filing in November of a new Guantanamo Bay detainee case, further testing the power of federal judges to weigh or limit transfers of prisoners from that U.S. military prison. The new case is now due to be filed by Nov. 10 in the case of Kiyemba v. Obama — the same title, though with somewhat different issues, as the case the Court on Oct. 20 agreed to hear in docket 08-1234.These cases will explore the limits of last year’s ruling in Boumediene v. Bush, which confirmed a constitutional right for Guantanamo prisoners to challenge their continued detention.
There is compelling evidence that death row inmate Troy Davis may be innocent, but federal and state courts have consistently refused to hear the evidence. Mr. Davis has exhausted all conventionlal challenges to his conviction, Mr. Davis has resorted to an original writ of habeas corpus in the United States Supreme Court. If that petition fails, Mr. Davis will be executed. In refusing to hear Mr. Davis’s appeals, courts have relied on provisions contained in the 1996 Anti-Terrorism Act (“AEDPA”) and held that they are barred from hearing the petition. Mr. Barr argues that the courts have misread the law. For more information on Mr. Davis’s case, please see his website which contains many of the opinions and a nice time line of the case.
In 1972, the United States Supreme Court stated that twelve person juries in state criminal trials could reach a non-unanimous vote, (e.g. 10-2 for conviction or acquittal). In Bowen v Oregon, the Petitioner is asking the U.S. Supreme Court to reconsider its prior ruling based on later court decisions holding the Sixth Amendment in line with the original purpose. Mr. Bowen has enlisted some powerful allies and the New York Times thinks Mr. Bowen has a chance. Stay tuned!
The State of Michigan has sought certiorari from the Michigan Supreme Court’s recent 4-3 favorable Crawford in People v Bryant, 483 Mich 132; 768 NW2d 65 (2009). Michigan v Bryant, 8 USLW 3082 (Jul 28, 2009). The key question is whether the victim’s statement was testimonial under Crawford.The majority stated that the key question is whether the declarant intended the statement to be testimonial; the dissent stated that the focus should be on the officer’s intent. The majoirty also stated that the emergency exception must be narrowly construed lest "statements reporting criminal activity or accusing others of crimes . . . always be testimonial until a suspect was in custody and unable to cause further harm."And the court refused to treat the fact of the victim's condition as creating an emergency for Confrontation Clause purposes; that, it said, would confuse "a medical emergency with the emergency circumstances of an ongoing criminal episode."Read More...
In the last of three plenary cases decided yesterday, the Court ruled that it is unconstitutional for a state to bar all damage lawsuits brought under federal civil rights law against prison officers or guards, allowing instead only a claim against the state itself in a special claims court. Justice Stevens wrote for a 5-4 majority striking down a New York law as a violation of the Constitution’s Supremacy Clause. Haywood v. Drown, SCOTUS No. 07-10374.
This morning, President Obama nominated Sonia Sotomayor, a federal appeals court judge in New York, as his nominee for the Supreme Court. Click here to read the New York Times story. It is unclear whether the Republicans will fight this nomination or not. Many fear that that fighting the nomination of the first Hispanic to the United States Supreme Court will harm the G.O.P. with the Hispanic community. To read President Obama’s remarks, click here
Today in Montejo v. Louisiana, SCOTUS No. 07-1529, the Court overruled the Court’s prior ruling in Michigan v. Jackson, 475 U.S. 625 (1986). Jackson held that a request for counsel made in the courtroom extended to the police. Montejo seems to reject this notion and say that the police are free to try and interrogate a represented defendant and that a Miranda warning should be sufficient. Counsel are well advised to create a new form that they serve on all police department (signed by the defendant as well) notifying them that the defendant is represented, is invoking his Sixth and Fifth Amendment rights to counsel, and that any requests to communicate to the defendant whatsoever should be directed Click here to read the Associated Press discussion of this case.
Until very recently, the United States Supreme Court had been engaged in a pattern of reducing the amount of privacy that an individual had in a motor vehicle to practically nil. Because of the inherent mobility in most vehicles, the Court declared that the warrant requirement did not apply to a motor vehicle. The Court extended this rationale to discrete items in a motor vehicle such as purses in brief cases. In New York v Belton, the high court extended the protective sweep rationale of its earlier ruling in Terry v Ohio to the motor vehicle. Any place a motorist or passenger could theoretically lunge for a weapon could be searched with this protective sweep, even if the motorist or passenger had been separated from the vehicle.. In Arizona v Gant, the Court overturned Belton in a 4-1-4 decision with Justice Scalia offering a critical view of the entire “officer safety rationale” used to justify these warrantless searches. Arizona v. Gant, 07-542.Dividing 5-4, the Supreme Court ruled on Tuesday that police may conduct a warrantless vehicle search incident to an arrest only if the arrestee is within reaching distance of the vehicle or the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”The ruling directly limits New York v. Belton,. In Belton, the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.” The Court affirmed the Arizona Supreme Court ruling for the defendant, Rodney Gant, on whom police found cocaine during an arrest for driving with a suspended license. The state court held that Gant could not have reached his car during the search and posed no safety threat to the officers, making a vehicle search unreasonable under the “reaching-distance rule.” applied in Belton.Justice Stevens’s opinion for the majority, which was joined by an uncommon coalition of Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Antonin Scalia, held that stare decisis cannot justify unconstitutional police practice, especially in a case — such as this one — that can clearly be distinguished on its facts from Belton and its progeny.In a concurring opinion, Justice Scalia disparaged that line of cases as “badly reasoned” with a “fanciful reliance” upon the officer safety rule. Justice Scalia was clearly the swing vote in the case, explaining that a “4-to-1-to-4 opinion that leaves the governing rule uncertain” would be “unacceptable.” In his view, the “charade of officer safety” in Belton, Chimel, and Thornton v. United States (extending Belton to all “recent occupants” of a vehicle) should be abandoned in favor of the rule that the majority ultimately adopts in its opinion.By contrast, the dissenting justices — Justice Breyer, who wrote his own dissenting opinion, and Justice Alito, whose dissent was joined by the Chief Justice and Justice Anthony M. Kennedy and was joined in part by Justice Breyer — would have adhered rigorously to stare decisis principles to maintain Belton’s “bright-line rule.” The dissenters predicted that the Court’s decision will lead to the unnecessary suppression of evidence and confusion by law enforcement officers.
Statements taken in violation of the Sixth Amendment right to counsel are inadmissible as part of the state’s substantive case against an accused, but should they be admissibile for impeachment purposes. The Court had previously ruled that statements taken in violation of the Fifth Amendment right to remain silent could be admitted at trial. Unfortunately, the Court recently extended this to include statements taken in violation of the Sixth Amendment. Kansas v Vetris, SCOTUS No. 07-1356 For a detailed criticism of the court’s ruling, check out Professor Mark Godsey’s blog here and here.
The federal statute, 28 USC 2253, that requires state prisoners to obtain a certificate of appealability before challenging a district court ruling in habeas corpus proceedings does not apply to appeals of orders denying requests for federally appointed counsel. The statute governs only final orders that dispose of a habeas corpus proceeding's merits. Federally appointed counsel are authorized to represent clients in state clemency proceedings and are entitled to compensation for that representation. Harbison v Bell, SCOTUS No 07-8521.
On the heels of MIranda v Arizona, 384 US 436 (1966), Congress passed 18 USC 350. This law states that the voluntariness of a suspect's statements is the sole determinant of their admissibility in federal court. The purpose of the rule was to overrule Miranda v Arizona, 384 US 436 (1966). The question presented in COrley was whether the law modified the McNabb-Mallory (McNabb v United States, 318 US 332 (1943) and Mallory v United States, 354 US 449 (1957)) which barred the admission of an arrestee's confession given after an unreasonable delay in bringing him before a judge. The high Court ruled that the statute merely guarantees the admission of voluntary statements made within six hours of a suspects' arrest. Without the McNabb-Mallory rule, federal agents would be free to question suspects for extended periods before bringing them out in the open, “and we have always known what custodial secrecy leads to.” Corley v United States, SCOTUS No. 07-10441.
Linda Greenhouse from the New York Times summarized the doctrine as follows:
Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.
To read Linda Greenhouse’s complete analysis of the issue, click here. For the SCOTUS blog summary of the case and complete access to the briefs, click here. This case is a civil case and there is also a qualified immunity issue.
SCOTUS Hears Oral Arguments on Herring v United States: Is There a Good Faith Exception for Reliance on Information from Another Police Department
President Bush signed the federal Adam Walsh Act in 2006 to expand the National Sex Offender Registry and to create national standards for ranking sex offenders. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006). The law established three tiers, rankings based on the crime the offender committed.
Section 111 of the Adam Walsh Act specifically sets out expanded definitions that include registration and notification which were considerably broader than the versions previously used in Nevada. Under this section, a sex offender is “an individual who was convicted of a sex offense.” A sex offense is a criminal offense that has an “element involving a sexual act or sexual contact with another.”
The new provisions physically resemble the three tier system previously used in Nevada, but the federal law is considerably more exapnsive. A tier three sex offender is punishable by more than one year in prison. The individual must have attempted, conspired, or actually committed a sexual abuse or aggravated sexual abuse, an abusive sexual contact against a minor who has not attained the age of thirteen years, or a more severe offense. A tier three offense may also be committed if the offense involves kidnapping of a minor that is not one's own child or if the offense occurs after the offender is a tier two sex offender.
Second tier sex offenders are those who do not fit into tier three, but may still be punishable by more than one year in prison. Tier two includes offenses against a minor, or conspiracy to commit such offenses against a minor, such as: (1) sex trafficking; (2) coercion and enticement; (3) transportation with the intent to engage in criminal sexual activity; and (4) abusive sexual conduct. A tier two offense may also involve: (1) use of a minor in a sexual performance; (2) solicitation of a minor to practice prostitution; or (3) production or distribution of child pornography. [FN72] An offense can also qualify as a tier two if any of these offenses occur after the offender is already a tier one offender. The first tier includes any sex offender who does not squarely fit into categories two or three. Tier one offenders are considered at low risk to reoffend and are not seen as dangerous.
The expansion of the sex offense definition includes any “ criminal offense that has an element involving a sexual act or sexual contact with another; [and 2] a criminal offense that is a specified offense against a minor ....” An offense that is consensual is not a sex offense unless the adult victim is under the custodial care of the offender, the victim is not an adult and the offender is more than four years older than the victim, or the victim is under the age of thirteen.
A juvenile is considered to be “convicted” of a sex offense when the juvenile “is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse ... or was an attempt or conspiracy to commit such an offense.”
Nevada used a scheme that required only the most dangerous offenders to appear on the public registry. Under the old law, you could only see offenders ranked two or three. After Adam Walsh, virtually all offenders were on the public registry. The Court found that this retrospective change in the law violated due process.
The writ of habeas is the main vehicle which state prisoners use to challenge their convictions in federal court when there is a good argument that the conviction was obtained in violation of the federal laws or the constitution. The writ has been used to challenge such unjust convictions as that of former boxer and current international civil rights activist “Hurricane Rubin Carter.”
In 1996, in the wake of the Oklahoma Federal Courthouse bombing, Congress passed the Anti-Terrorism and Effective Death Penalty Act. For the first time in the history of the writ of habeas corpus. Congress in its infinite wisdom believed that weakening the power of federal courts to hear such actions would deter the likes of individuals such as Timothy McVeigh.
One of the key provisions of the act was to provide that a federal court must defer to the ruling of a state court unless is to contrary to clear United States Supreme Court holding or is objectively unreasonable. This provision has been interpreted by federal courts to hold that state court rulings which are only contrary to decisions of lower federal courts or which are contrary to the reasonable import (but not clear US Supreme Court holding) must be upheld unless the state court’s interpretation of the law is clearly unreasonable. A good example of this principle is shown in the Court’s 2006 decision in Carey v Musladin. In that case, the victim’s family wore buttons to court with a message calling for justice in memory of the victim. The defendant in the state case had successfully convinced the lower federal appellate court that this conduct violated his constitutional right to a fair trial. The United States Supreme Court reversed. Justice Thomas, writing for a six justice majority , found that the conduct of this group of non-parties might have violated the defendant’s constitutional rights, but no clear U.S. Supreme Court decision had held this. They therefore reinstated the conviction. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that arguably might impair trial fairness.
A question which has remained unanswered is what federal courts are required to do with state court rulings which are either completely unresponsive to the federal question or where the ruling is so summary that it is impossible to discern the mental process of the state judge(s) who decided the case. Are federal courts required to create a hypothetical state court ruling and defer to it? Or are federal courts permitted to decide the issue for the first time? In Bell v Kelly, the Court has agreed to examine some part of this quandary. The Court has granted certiorari to consider:
“1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas”
Oral arguments are scheduled for November 12th. Mr. Bell’s brief on the merits is available here. The Government’s brief has not been filed yet. The SCOTUS Wiki description of the case and other key documents in the case is available here.