Supreme Court Review-Preview-Overview

An up-to-date outline of Supreme Court criminal cases
is available here. It covers pending cert grants and decisions from the past and current Terms. Other "cites" of interest are available here.

Tuesday, June 24, 2008

Greenlaw v. United States - Appellate Court Can't Increase Sentence Sua Sponte

Greenlaw filed a direct appeal of his sentence; the government did not appeal the district court’s failure to make two sentences under 18 U.S.C. § 924(c) – a 5-year sentence and a 25-year sentence – consecutive to each other and to other counts. The appellate court nevertheless remanded for imposition of the enhanced sentence, finding that the effect of the error was not "speculative." The Supreme Court reversed, in a 7-2 (actually, 6¾ - 2¼) decision written by Justice Ginsburg. The Court held that, absent a government appeal or cross-appeal, a court of appeals does not have the power to sua sponte raise a defendant’s sentence, even if it is to correct a plain error. Writing for the majority, Justice Ginsburg relied on "that unwritten but long-standing rule" that "an appellate court may not alter a judgment to benefit a nonappealing party," as well as the express limitations on government appeals in 18 U.S.C. § 3742(b). The majority opinion also rejected the arguments that either Fed. R. Crim. P. 52(b)’s plain error rule, 28 U.S.C. § 2806, or 18 U.S.C. § 3742 confer authority to correct a legal error absent a cross-appeal, particularly for "sentencing errors that the Government refrained from pursuing," and noted that the strict time limits on notices of appeal and cross-appeal would be undermined if an appeals court could modify the judgment in favor of a party who had filed no notice of appeal. The majority opinion recognizes two important protections for defendants who seek to appeal their sentences. First, it makes clear that its holding does not modify standard practice in "sentencing package cases," meaning cases involving multiple counts and a successful appeal of some but not all of the convictions. According to the Court, an appellate court remains free to vacate the entire sentence, and a district court remains free to impose the same or a higher sentence on the remaining counts on remand so long as the new sentence is not longer than the original sentence taken in the aggregate. This provides a crucial protection because, as the Court notes, although such a defendant "ultimately may gain nothing from his limited success on appeal, . . . he will also lose nothing, as he will serve no more time than the trial court originally ordered." Second, the majority rejects the argument that its holding will produce anomalous results by permitting the district court on remand to correct the same legal error that the court of appeals was powerless to correct: "The cross-appeal rule, we of course agree, does not confine the trial court. But default and forfeiture doctrines do. It would therefore be hard to imagine a case in which a district court, after a court of appeals vacated a criminal sentence, could properly increase the sentence based on an error the appeals court left uncorrected because of the cross-appeal rule." Justice Alito dissented, joined by Justice Stevens, while Justice Breyer concurred only in part IV of the majority opinion (and the result), but joined Justice Alito’s dissent to the remainder of the decision.

Monday, June 23, 2008

Rothgery v. Gillespie County, TX - Right to Counsel at First Appearance

Rothgery was arrested without a warrant and booked into jail on suspicion he was a felon in possession of a gun. Apparently unknown to the arresting officer, there was no underlying felony because that earlier charge had been dismissed after the defendant completed a diversionary program. The arresting officer filed with the magistrate an affidavit supporting probable cause (based on his misinformation about the prior felony). Rothgery inquired of the magistrate about appointed counsel, and he was told that if he wanted counsel his bail and probable cause hearings would be delayed until counsel could be appointed; or, in the alternative, he could waive counsel for these hearings and the hearings would go forward. Given those options, Rothgery waived counsel temporarily. The magistrate found probable cause and held Rothgery. Later, he was released on bond. A grand jury indicted him for the felon-in-possession charge. Post-indictment, a lawyer was appointed, investigated the nonexistent prior conviction, and was able to have the erroneous charges dismissed. Rothgery filed a § 1983 action, alleging he was denied appointed counsel pre-indictment, but the Fifth Circuit held that he was not entitled to counsel at that stage because adversary criminal proceedings were not commenced by the officer’s filing of an affidavit of probable cause, especially in a proceeding at which no prosecutor was present. Earlier Supreme Court decisions held that the Sixth Amendment right to counsel attaches when "adversary judicial proceedings have been initiated." Kirby v. Illinois, 406 U.S. 682, 688 (1972) and when a defendant is arrested, "arraigned on [an arrest] warrant before a judge," and "committed by the court to confinement," "[t]here can be no doubt … that judicial proceedings ha[ve] been initiated." Brewer v. Williams, 430 U.S. 387, 399 (1977). Here, the Supreme court reversed, holding that the Sixth Amendment right to counsel attaches at the initial appearance before the magistrate judge where a subject learns the charges against him and is subject to a potential loss of liberty, even if the proceeding is so preliminary that the prosecutor is unaware of it and uninvolved in it. Writing for the majority, Justice Souter reasoned: "[U]nder the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused’s liberty to facilitate the prosecution. From that point on, the defendant is ‘faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law’ that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal. By that point, it is too late to wonder whether he is ‘accused’ within the meaning of the Sixth Amendment, and it makes no practical sense to deny it." Chief Justice Roberts, and Justices Alito and Scalia concurred; Justice Thomas dissented.

Thursday, June 19, 2008

Indiana v. Edwards - Right to Self-Represent Limited

Ahmad Edwards was tried for attempted murder, battery with a deadly weapon, criminal recklessness and theft following a shooting incident outside a store where he had shop-lifted a pair of shoes. He sought to represent himself but the trial judge found him not competent to do so. Evidence showed he suffered from schizophrenia. He had earlier been declared incompetent, but was later found to have his competency restored following a stay at a state mental hospital. Although it appeared he was competent to stand trial, the trial judge did not believe he was competent to defend himself at trial. Appointed counsel was forced upon Edwards. The Indiana Supreme Court ruled he had a right to act as his own defense counsel, ordering a new trial under Faretta v. California (recognizing right of self-representation). Indiana argued that the states should be allowed to impose a higher standard for measuring competency to represent oneself at trial than the Supreme Court has specified for measuring competency to stand trial. Under U.S. Supreme Court precedent, in Dusky v. United States, the Court has held that the standard for competency to stand trial is whether the accused "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him." The question presented was whether states must apply the Dusky standard in evaluating competency to represent oneself, or could a state adopt a higher standard. In a 7-2 decision, the U.S. Supreme Court reversed, although it "declined" to overrule Faretta, and rejected a more specific standard that would "deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury." The majority decision, written by Justice Breyer, held that "the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Justices Scalia and Thomas dissented, arguing that "the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury—a specific right long understood as essential to a fair trial."

Friday, June 13, 2008

Irizarry v. United States: Rule 32(h) does not require notice of contemplated variance

The Supreme Court held that Fed. R.Crim. P. 32(h), which requires a sentencing court to give the parties advance notice that it is contemplating a departure from the Guidelines, does not require the court to give notice of a contemplated variance from a recommended Guideline range.
The Court explained that Rule 32(h) was premised on protecting a defendant’s expectation that his sentence would be within the applicable Guideline range. This expectation did not survive Booker, and the parties therefore did not have the kind of "expectancy" that required notice. Further, the Rule itself referred to "departures" not "variances."
The Court added that district judges should consider granting a continuance of the sentencing when a party has a legitimate basis for claiming that it was illegitimately surprised by a contemplated variance.

Monday, June 02, 2008

Cueller v. United States: Insufficency of Money Laundering Evidence

Cuellar was driving a Volkswagen Beetle south on State Highway 77 in Texas, approximately 100 miles from the Mexican border. A police officer stopped him due to his erratic driving. Upon confronting him, police observed odd and inconsistent behavior, including that Cueller crossed himself as police conducted their investigation. Searching the vehicle, police found a hidden compartment underneath the floorboard containing $81,000 wrapped in duct tape bundles inside plastic bags, and animal hair was spread in the rear of the vehicle to possibly cover the smell of marijuana. Cuellar was convicted at trial of international money laundering under § 1956(a)(2)(B)(i), which prohibits transportation of illicit funds. He was not charged with bulk cash smuggling. He was sentenced to 78 months imprisonment and three years supervised release, eighteen months more prison time than the maximum punishment available under the bulk cash smuggling statute. The Supreme Court reversed the money laundering conviction in a unanimous decision written by Justice Thomas, holding that the statute under which petitioner was convicted requires proof that the transportation was "designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control" of the funds. § 1956(a)(2)(B)(i). Although this element does not require proof that the defendant attempted to create the appearance of legitimate wealth, neither can it be satisfied solely by evidence that a defendant concealed the funds during their transport. In this case, the only evidence introduced to prove this element showed that petitioner engaged in extensive efforts to conceal the funds en route to Mexico, and thus his conviction cannot stand." Justice Alito, joined by the Chief Justice and Justice Kennedy, concurred, clarifying that the government could have proved that once the cash got to Mexico that had the effect of being concealed, but in this case the government failed to produce such evidence beyond a reasonable doubt.

United States v. Santos - Only Profits are Proceeds Under Money Laundering Statute

Santos ran an illegal lottery, from which he paid runners a commission, salary to collectors, and winnings to bettors. He was convicted under the principal federal money laundering statute, 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h), which makes it a crime to engage in a financial transaction using the "proceeds" of certain specified unlawful activities with the intent to promote those activities or to conceal the proceeds. The Seventh Circuit affirmed the conviction in 2000, but the defendant later filed a 2255 petition, relying on an intervening Seventh Circuit decision that held the money laundering statute applies only to criminal profits, not criminal receipts. Applying the intervening decision here, the district court granted 2255 relief. The Seventh Circuit affirmed the 2255 order. In a fragmented 5-4 decision, the Supreme Court held that "proceeds" under the statute means the net receipts, not gross receipts, from the unlawful activities – only the profits, i.e., gross receipts less expenses. Otherwise, every criminal venture that has overhead would necessarily be subject to the heavier sentences allowed by convictions for money laundering. The principal author, Justice Scalia, held that the word "proceeds" lacks a clear definition, especially in light of the lack of legislative history here, so the rule of lenity requires it be interpreted in favor of the defendant: proceeds=profits, not gross receipts. This view garnered only plurality support, getting a majority only with Justice Stevens’ concurrence, which offered a different view on the rule of lenity: Under this statute the rule of lenity means proceeds=profits, but that is not true for all statutes. He would find differently if legislative history supports a different view for another federal law. Justice Scalia concludes that the narrow holding of the case is, therefore, "that ‘proceeds’ means ‘profits’ when there is no legislative history to the contrary. That is all that our judgment holds." He also pointed out that a majority does not join Justice Stevens’ piecemeal view of lenity, so the decision "does not hold that the outcome is different when contrary legislative history does exist." Chief Justice Roberts and Justices Breyer, Kennedy, and Alito dissented, with Justices Alito and Breyer writing dissents: Justice Alito rests on a "fair[] read[ing]" of the money laundering law and Justice Breyer adds that the Sentencing Commission can solve any unfairness arising from the ambiguity under its authority to avoid sentencing disparity.

Monday, May 19, 2008

United States v. Williams - Pandering and Solicitation of Child Pornography Law Constitutional

Congress passed the 2003 "PROTECT Act" to try to shore up federal controls on child pornography after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The new law, 18 U.S.C. § 2252A(a)(3)(B) criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. The Eleventh Circuit held that the new pandering provision is overbroad and vague. The Supreme Court reversed, holding that the provision does not violate the overbreadth proscription of the First Amendment, nor is it vague in violation of the Due Process Clause of the Fifth Amendment. Justice Scalia’s majority opinion rejected both facial unconstitutionality claims on broad grounds, permitting only "as applied" challenges if, and when, the proffered hypothetical constitutional difficulties arise. Justices Stevens and Breyer concurred, but would have rested the Court’s holding on two more traditional (and less broad grounds) grounds: (1) resort should be made to every reasonable construction of a statute to save it from unconstitutionality, and (2) to the extent the text of the statute is unclear, the duty to avoid an interpretation resulting in unconstitutionality requires the court to consider legislative history and the drafters’ intent. This approach, they conclude, also leads to upholding of this statute. Justices Souter and Ginsburg dissented, insisting that the statute is unconstitutional under the Court’s precedents, New York v. Ferber, 458 U.S. 747 (1982) and Free Speech Coalition.

United States v. Ressam - Explosives "in relation to " Any Crime OK

Ressam was arrested in 1997 as part of the alleged Millennium bombing planned for Los Angeles International airport. He attempted to enter the United States by car ferry at Port Angeles, Washington. Hidden in the trunk of his rental car were explosives that he intended to detonate at the Los Angeles International Airport. After the ferry docked, he was questioned by a customs official, who instructed him to complete a customs declaration form, which he did, identifying himself as a Canadian citizen (he is Algerian) named Benni Noris (his name is Ahmed Ressam). He was then directed to a secondary inspection station, where another official performed a search of his car, finding explosives and related items in the car’s spare tire well. Ressam was subsequently convicted of a number of crimes, including the felony of making a false statement to a United States customs official in violation of 18 U. S. C. §1001 and carrying an explosive "during the commission of" that felony in violation of §844(h)(2)(imposing a 10-year sentencing enhancement). The Ninth Circuit reversed his conviction on the latter count because it read the word "during," as used in §844(h)(2), to include a requirement that the explosive be carried "in relation to" the underlying felony. The Supreme Court reversed, holding that Ressam was "carrying" those explosives "during" the commission of the false statement, finding that Congress "did not intend to require the Government to establish a relationship between the explosive carried and the underlying felony." Justice Stevens wrote for the majority, rejecting a dictionary definition of "during," using instead the "most natural reading" of the statute. He bolstered the holding with statutory analysis and legislative history. Justice Thomas concurred in part and concurred in the judgment, joined by Justice Scalia, agreeing with only the first part of Justice Stevens’ 3-part decision; their concurrence concludes, simply, that the plain language of the statute answers the question, without the need for any further statutory or historical analysis. Justice Breyer dissented, disagreeing with both the majority decision and the Ninth Circuit holding; his concern stems from the fact that under both approaches a person who legally possesses explosives can be convicted of 844(j) if he does so at the time of a wholly unrelated felony. To avoid this anomaly, he would require a "relevant relation[ship]" between the explosives possession and underlying felony.

United States v. Rodriguez - ACCA Predicates Computed on Enhanced Maximum Sentence

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(2)(A)(ii), imposes a mandatory minimum 15-year sentence for felons-in-possession with three qualifying prior offenses. Under ACCA, a state drug-trafficking conviction qualifies as "a serious drug offense" if "a maximum term of imprisonment of ten years or more is prescribed by law" for the "offense." The Ninth Circuit held that "the maximum term of imprisonment . . . prescribed by law" must be determined without taking recidivist enhancements into account. The Supreme Court reversed, holding that the "maximum term of imprisonment . . . prescribed by law" for the state drug convictions at issue includes state recidivist enhancements, which in this case was a ten-year maximum. Justice Alito wrote for the majority, concluding that its interpretation was consistent with how the "maximum" concept was customarily understood by participants in the criminal justice process. The Court rejected the argument that a prior record of convictions has no bearing on the seriousness of an offense, and that the "maximum" punishment for a prior conviction should be the punishment unenhanced to account for prior convictions. "When a defendant is given a higher sentence under a recidivism statute – or for that matter, when a sentencing judge, under a guidelines regime or a discretionary sentencing system, increases a sentence based on the defendant’s criminal history – 100% of the punishment is for the offense of conviction." Justice Souter dissented, joined by Justices Stevens and Ginsburg, concluding that the statute’s undisputed ambiguity should have been resolved under the rule of lenity, in the defendant’s favor.

Monday, May 12, 2008

Gonzalez v. United States - Jury Selection by Magistrate OK if Counsel Alone Waives Art. III Judge

Gonzalez, a Mexican citizen who does not speak English, was represented by counsel at his federal drug-trafficking trial. After appearing before a United States district judge at several pretrial conferences, he was brought before a United States magistrate judge for jury selection. At a bench conference outside of his presence and before he had the assistance of an interpreter, defense counsel orally consented to the magistrate judge’s presiding over the jury selection process. Thereafter, the magistrate judge did not obtain the defendant's personal consent or even mention that his attorney had consented outside of his presence. No objection to this process was ever posited in the trial court. Must a federal criminal defendant explicitly and personally waive his right to have an Article III judge preside over voir dire? The Supreme Court held that such a personal and explicit waiver by the defendant is neither required by the Federal Magistrates Act, nor is it required by the Constitution. Justice Kennedy, writing for the 8-1 majority, held that express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the Federal Magistrates Act, 28 U. S. C. §636(b)(3)( "A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."). Under Gomez v. United States, 490 U.S. 858, 870, 875–876 (1989) and Peretz v. United States, 501 U.S. 923, 933, 935–936 (1991), such "additional duties" include presiding at voir dire if the parties consent, but not if there is an objection. Although, the Court has indicated in prior cases that the waiver of certain trial rights requires the defendant’s own consent, see, e.g., New York v. Hill, 528 U. S. 110, 114–115 (2000), even in Hill, the Court held that an attorney, acting without indication of particular consent from his client, could waive his client’s statutory right to a speedy trial because "[s]cheduling matters are plainly among those for which agreement by counsel generally controls." Similar to the scheduling matter in Hill, acceptance of a magistrate judge at the jury selection phase is a tactical decision well suited for the attorney’s own decision. To the extent that judges have formal and informal approaches to jury selection, these influencing factors are best known by and sorted through by counsel, who may tactically select a magistrate over the district judge. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation that the client might not understand and that might distract from more pressing matters as the attorney seeks to prepare the best defense. The Court rejected Gonzalez’s contention that the decision to have a magistrate judge for voir dire is a fundamental choice, or, at least, raises a question of constitutional significance so that the Act should be interpreted to require explicit consent. The majority noted that in this case there were not serious concerns about the Act’s constitutionality and the defendant conceded that magistrate judges are capable of competent and impartial performance when presiding over jury selection. Caveat–The Court notes that its decision does not address two similar but different cases: (1) Whether waiver occurs if counsel consents, but the client makes a timely objection to override counsel’s waiver; (2) Whether waiver may be inferred by failure of a defendant or counsel to object. Justice Scalia concurred, but rejected Justice Kennedy’s tactical-decision vs. fundamental-right test. Instead, he would hold that all constitutional rights are waivable by counsel, except the right to counsel itself. Justice Thomas dissented; he would overrule Peretz and hold that delegation of voir dire violates the Federal Magistrates Act. He would also have held that the unpreserved issue here is cognizable despite lack of a timely objection, in much the same way it was in Nguyen v. United States, 539 U.S. 69, 78 (2003) (reversing federal appellate decision, despite lack of objection to appellate panel consisting of a non-Article III judge). The ruling in Gonzalez overrules contrary Eleventh Circuit precedent, United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir. 2007), which held that the defendant’s personal and explicit consent was required.

Wednesday, April 23, 2008

Virginia v. Moore - Search OK Following Arrest Violating State Law

Rather than issuing the summons required by Virginia law, police arrested Moore for the misdemeanor of driving on a suspended license. A search incident to the arrest yielded crack cocaine, for which Moore was charged and tried. The trial court declined to suppress the evidence on Fourth Amendment grounds. The Virginia Supreme Court reversed, reasoning that the search violated the Fourth Amendment because the arresting officers should have issued a citation under state law, and the Fourth Amendment does not permit search incident to citation. In a unanimous decision written by Justice Scalia, the U.S. Supreme Court reversed, holding that police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when they performed a search incident to the arrest. A unanimous Supreme Court found no historical support for the notion that the Founders intended to incorporate statutes into the Fourth Amendment; neither the common law nor statutes of the Founding era support the defendant’s contention. Where history does not provide a conclusive answer, the Court analyzes a search or seizure in light of traditional reasonableness standards "by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U. S. 295, 300 (1999); see Wilson v. Arkansas, 514 U. S. 927, 931 (1995). Applying that methodology, the Court has previously held that when an officer has probable cause to believe a person committed even a minor crime, the arrest is constitutionally reasonable. Atwater v. Lago Vista, 532 U. S. 318 (2001). A State’s choice of a more restrictive search-and-seizure policy does not render less restrictive ones unreasonable, and hence unconstitutional. While States are free to require their officers to engage in nuanced determinations of the need for arrest as a matter of their own law, the Fourth Amendment should reflect administrable bright-line rules. Incorporating state arrest rules into the Constitution would make Fourth Amendment protections as complex as the underlying state law, and variable from place to place and time to time. The Court sustained the search, as well as the arrest. Having arrested Moore, the officers were also entitled to search him, as in any other search incident to arrest, to ensure their safety and to safeguard evidence. Only Justice Ginsburg, who filed a separate concurrence, saw historical support for the defendant’s view, but even she was persuaded that Atwater governs the outcome here.

Wednesday, April 16, 2008

Begay v. United States: DUI not a Violent Felony under ACCA

ACCA imposes a special mandatory 15-year prison term upon felons who unlawfully possess a firearm and who have three or more prior convictions for certain drug crimes or "violent felonies." Begay had 12 prior convictions for driving while intoxicated in violation of New Mexico law. The district court applied three of these convictions as a predicate for an enhanced ACCA sentence. The Supreme Court reversed, holding that felony DUI under New Mexico law is not a "violent felony" for purposes of the Armed Career Criminal Act. The Court held that the determinative question is not how the defendant may have committed the prior crimes, but rather how the statute defines it. Even if DUI involves conduct that presents serious risk of physical injury to another, it is too unlike the example crimes enumerated in ACCA – burglary, arson, extortion, and crimes involving explosives– to be included under the residual clause of ACCA. Moreover, DUI differs in an important respect from the example crimes, in that it does not involve purposeful, violent, and aggressive conduct that is the centerpiece of the example crimes. Justice Scalia’s concurrence highlights that the analytical framework of this decision differs from the Court’s expansively inclusive residual clause analysis last term in James v. United States, 550 U.S. ___ (2007) (holding attempted burglary a violent felony under ACCA’s residual clause), from which he had dissented.

Burgess v. United States: Misdemenaor=Felony

The federal Controlled Substances Act, 21 U.S.C. § 841(b)(1)(A), doubles the mandatory minimum sentence for certain federal drug crimes if the defendant was previously convicted of a "felony drug offense." Burgess pled guilty to a federal crack charge carrying 10-year mandatory minimum sentence, but that mandatory minimum sentence was doubled to 20 years based on a prior South Carolina misdemeanor drug conviction that carried a maximum sentence of two years. Burgess argued that "felony drug offense" has two components: it must be a felony and it must carry a sentence of in excess of one year; since South Carolina classified his prior offense as a misdemeanor, it could not qualify despite the maximum potential punishment of two years. The Supreme Court rejected this contention, holding instead that the federal statutory definition controls, and that 21 U.S.C. § 802(44) is the exclusive definition of the term "felony drug offense" in § 841(b)(1)(A); under that definition, a state drug offense punishable by more than one year qualifies as a felony drug offense, even if the state law classifies the offense as a misdemeanor.

Baze v. Rees: Lethal Injection Cocktail Constitutional

In a fractured opinion, a plurality of the Court held that the Eighth Amendment to the United States Constitution does not prohibit the most common method of lethal injection, involving a three-drug cocktail, sodium thiopental, pancuronium bromide, and potassium chloride. Although the final tally of concurrences provided a 7-2 vote, there was no opinion that spoke for five or more justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a "substantial risk of serious harm." It rejected the death row inmate’s proposal that the standard be "unnecessary risk of pain and suffering."

Tuesday, March 25, 2008

Medellin v. Texas: States' Rights Trump International Law

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), I.C.J. No. 128 Judgment of Mar. 31, 2004), the International Court of Justice determined that 51 named Mexican nationals, including petitioner, were entitled to receive review and reconsideration of their convictions and sentences through the judicial process in the United States without regard for procedural defaults. Petitioner filed a state habeas case challenging his capital conviction, claiming he was not informed of his Vienna Convention right to notify the Mexican consulate. Medellin had not timely raised and preserved the claim in state court so it was procedurally defaulted. While the applicability of Avena to Texas courts was pending in the U.S. Supreme Court, President George W. Bush determined that the United States would comply with its international obligation to give effect to the judgment by giving those 51 individuals review and reconsideration in the state courts. As a result, the Supreme Court case was deemed moot. Medellin filed another habeas petition in state court, relying on both Avena and the President’s decree. In response, the Texas Court of Criminal Appeals held that the President’s determination exceeded his powers, and it refused to give effect to the Avena judgment or the President’s determination. The U.S. Supreme Court affirmed dismissal of the habeas petition, holding that neither an International Court of Justice case, nor a memorandum issued by the President of the United States constitutes directly enforceable federal law that preempts state limitations on the filing of successive habeas petitions.

Thursday, March 13, 2008

Snyder v. Louisiana - Successful Batson Challenge

Allen Snyder, a black man, was convicted and sentenced to death by an all-white jury in Jefferson Parish, Louisiana, for the fatal stabbing of his wife’s male companion. Prior to trial, the prosecutor reported to the media that this was his “O.J. Simpson case.” At trial, the prosecutor peremptorily struck all five African-Americans who had survived cause challenges and then, over objection, urged the resulting all-white jury to impose death because this case was like the O.J. Simpson case, where the defendant “got away with it.” On initial review, a majority of the Louisiana Supreme Court ignored probative evidence of discriminatory intent, including the prosecutor’s O.J. Simpson remarks and argument, and denied Mr. Snyder’s Batson claims by a 5-2 vote. The U.S. Supreme Court then directed the Louisiana court to reconsider Mr. Snyder’s Batson claims in light of Miller-El v. Dretke, 545 U.S. 231 (2005). See Snyder v. Louisiana, 545 U.S. 1137 (2005). On remand, a bare majority adhered to its prior holding, once again disregarding substantial evidence establishing discriminatory intent, including the prosecutor’s references to the O.J. Simpson case, the totality of strikes against African-American jurors, and evidence showing a pattern of practice of race-based peremptory challenges by the prosecutor’s office. In addition, the majority imposed a new and higher burden on Mr. Snyder, asserting that Rice v. Collins, 546 U.S. 333 (2006), permitted reversal only if “a reasonable factfinder [would] necessarily conclude the prosecutor lied” about the reasons for his strikes. The U.S. Supreme Court reversed, relying entirely on one Batson violation, never mentioning the O.J. Simpson race card played by the prosecutor. Writing for a 7-2 majority, Justice Alito reiterated the three-part process for ruling on a Batson objection, then refined the test by adding a clear-error standard of appellate review, and then explained how that review applies in this case. Important principles result from this decision. The three-part test remains: (1) defendant must make a prima facie owing that a peremptory strike was race-based; (2) if so, the prosecutor must a offer race-neutral reason for the challenge; (3) and, in light of these submissions, the trial court must determine if there was purposeful discrimination. The Court clarified that the standard of appellate review of the trial court’s ruling is “clearly erroneous,” but the Court also made clear that an appealing defendant wins if he can show just one race-based challenge that should have been upheld under Batson. In determining if the challenge should be sustained, a trial judge considers the demeanor and credibility of the prosecutor, and an appellate court looks to the record to determine if the prosecutor’s excuse is supported. Here, the reasons given–the juror
was a student teacher who could not miss class for the week of trial, and he acted nervous during questioning–were not supported by the record. The judge’s law clerk had called the prospective juror’s college dean, who said the student teaching could be satisfied even if he missed one week while serving on the jury. The record revealed that the judge made no finding on the nervousness concern. And the record revealed that the prosecutor did not strike other prospective jurors who are white, even though they expressed similar concerns about missing work due to jury service. Having found the prosecutor’s proffered excuses to be implausible, in light of the record, the Court held that equates to purposeful discrimination under Batson. Finally, the Court noted that it does not apply to Batson appeals the causation rule applicable in many other instances that once discriminatory intent is shown, the burden shifts to the defending party to show that the factor was not determinative. In this case, in particular, remand for examination of causation could not be “profitably” explored more than a decade later. As a result, the Court reversed the judgment with no opportunity for further appellate review by the state court.

Monday, March 03, 2008

Boulware v. United States - Return of Capital Defense to Tax Evasion

Boulware was charged with criminal tax evasion and filing a false income tax return for diverting funds from a closely held corporation, of which he was the president, founder, and controlling shareholder. One element of tax evasion under 26 U. S. C. §7201 is “the existence of a tax deficiency.” Sansone v. United States, 380 U. S. 343. To support his argument that the government could not establish the tax deficiency required to convict him, Boulware sought to introduce evidence that the corporation had no earnings and profits in the relevant taxable years, so he in effect received distributions of property that were returns of capital, up to his basis in his stock, which are not taxable. See 26 U. S. C. §§ 301 and 316(a). Under §301(a), unless the Internal Revenue Code requires otherwise, a “distribution of property” “made by a corporation to a shareholder with respect to its stock shall be treated in the manner provided in [§301(c)].” Section 301(c) provides that the portion of the distribution that is a “dividend,” as defined by §316(a), must be included in the recipient’s gross income; and the portion that is not a dividend is, depending on the shareholder’s basis for his stock, either a nontaxable return of capital or a taxable capital gain. Section 316(a) defines “dividend” as a “distribution” out of “earnings and profits.” The District Court granted the government’s in limine motion to bar evidence supporting Boulware’s return-of-capital theory, relying on Ninth Circuit’s precedent holding that a diversion of funds in a criminal tax evasion case may be deemed a return of capital only if the taxpayer or corporation demonstrates that the distributions were intended to be such a return. The court later found Boulware’s proffer of evidence insufficient and declined to instruct the jury on his theory. Affirming his conviction, the Ninth Circuit held that Boulware’s proffer was properly rejected because he offered no proof that the amounts diverted were intended as a return of capital when they were made. The Supreme Court reversed, holding that a distributee accused of criminal tax evasion may claim return-of-capital treatment without producing evidence that, when the distribution occurred, either he or the corporation intended a return of capital.