October 18, 2005
Further reflections on Schriro v. Smith
The enduring story from Monday's SCOTUS action is the Court's fascinating and important decision to grant cert in Recuenco to consider whether Blakely error can be harmless (basics here, commentary here). But, before I continue my obsession with that case, I must give a little more attention to the Court's little opinion in Schriro v. Smith (discussed here) concerning the procedures for adjudicating Atkins claims by capital defendants.
First, I think it is critical to understand Schriro v. Smith as a decision about habeas authority and not as a direct or even implied ruling about the required procedures for adjudicating a capital defendant's claim of mental retardation. The leads in this Washington Post story and this AP story on Schriro v. Smith could be mis-read to suggest it includes some sort of ruling on the merits. But exactly what are required Atkins procedures remains unresolved until SCOTUS formally takes up the issue (which, to venture a prediction, will probably not happen until OT 2006).
Second, whenever SCOTUS takes up this issue on the merits, the case will serve as an interesting test of the Court's commitment to jury trial rights. Sean Sirrine in this post reads Ring and Apprendi to require a jury trial on the issue of mental retardation. But I think the Court could (and should?) rely on a distinction raise by Justice Stevens in Apprendi to call mental retardation a mitigating fact that can be left to judges. A distinct but related matter concerns the allocation and burden of proof concerning mental retardation; I can envision a number of opinions on this consequential issue.
Third, the fact the first two opinions of the Roberts Court have involved intricate criminal matters emboldens me to continue kvetching about the lack of attention being given to criminal justice issues in the hearings and media buzz around new Justices.
October 17, 2005
O Recuenco, Recuenco, wherefore art thou granted Recuenco?
The Supreme Court's cert. grant in Washington v. Recuenco has me in a Shakespearian mood as I try to figure out exactly why the Court decided its next foray into Apprendi-land should involve the intricate issue of whether Blakely errors can be subject to harmless-error analysis under Neder v. US, 527 U.S. 1 (1999) (available here) or instead qualify as structural errors under Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here). The easy answer to why Recuenco, I suppose, is that the lower courts have split on this question, with most courts applying harmless-error analysis, but a few state supreme courts concluding that Blakely errors are structural. And, since Washington has taken the structural error approach (along with North Carolina and maybe New Jersey), one might also speculate that at least four Justices think the Washington Supreme Court is wrong on the merits and this issue needs to be cleaned up.
But the decision to grant cert in Recuenco is not that simple and the case has intricacies that may entail another complicated and opaque chapter in the Apprendi-Blakely saga. First, as commentor DEJ notes here, this Blakely harmless/structural error issue could have a profound impact on the Booker plain error story (and some may even claim that Booker itself indirectly resolved this issue). Second, Washington's statutory law and the exact posture of this case on appeal suggests that Recuenco is not the ideal vehicle for sorting through these harmless/structural error issues. Third, given the current SCOTUS sentencing head-count on Apprendi-Blakely issues, as well as Justice Scalia's vocal advocacy against Sixth Amendment harmless-error analysis and the presence of new Justices, all bets are off concerning the ultimate outcome in Recuenco.
To close with more of the Bard, I am now worried that the disposition of Recuenco might come to resemble a SCOTUS tale along the lines of A Midsummer Night's Dream or Twelfth Night.
Notable 2d Circuit ruling on harmless error
While still trying to wrap my mind around the Supreme Court's cert. grant today on Blakely harmless error in Washington v. Recuenco, I noticed that the Second Circuit in US v. Fuller, No. 04-4595 (2d Cir. Oct. 17, 2005) (available here) issued an interesting opinion on Booker harmless error. Marking out a path that distinguishes the Second Circuit from, I believe, every other circuit, the Second Circuit in Fuller concluded that the announcement of an identical alternative sentence during the Blakely-Booker interregnum does not render Booker error harmless. Here the Fuller opinion's introductory summary:
We consider here whether a sentence imposed by the United States District Court for the Southern District of New York (Colleen McMahon, Judge) that was styled "in the alternative" — i.e., as the sentence of the Court regardless of whether or not the U.S. Sentencing Guidelines were binding — during the period after the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), but before its decision in United States v. Booker, 125 S. Ct. 738 (2005), was error in light of the subsequent teachings of the Supreme Court and our related jurisprudence, and if so whether such error is harmless. Because, with the benefit of hindsight, we conclude that the sentence amounted to error that we cannot deem harmless, we remand the cause to the District Court with instructions to vacate defendant's sentence and resentence him in conformity with our opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).
More on a big SCOTUS sentencing day
I will have a lot more to say in subsequent posts about the Supreme Court's fascinating and important decision to grant cert today in Washington v. Recuenco, No. 05-83, to consider whether Blakely error can be harmless. But first I wanted to wrap up the news from a big SCOTUS sentencing day.
As first reported in this post, today we received the second opinion from the Roberts Court. Schriro v. Smith involved, like the first opinion from the Roberts' court, a habeas case with the High Court stepping in to remedy what it considered to be over-reaching by a circuit court. At issue in Smith is the process for adjudicating claims by a capital defendant that he is mentally retarded and thus exempt from execution after Atkins. This issue has significantly divided lower courts (see, e.g., posts here and here and here on this topic), and the brief unsigned ruling in Smith will not resolve any of these divisions. This issue will surely return to the High Court for an adjudication on the merits eventually.
In addition, today's order list is the first major set of orders without any Booker GVR's. This notable reality suggests that, a full nine months after the Booker ruling, the pre-Booker appellate pipeline has significantly (though probably not entirely) been cleared out. This order list also has more than 100 cert. denieds, some of which I would guess involve Booker claims.
Finally, though not technically a sentencing case, it is telling and interesting that, as reported here by Lyle Denniston, the first abortion case addressed by the Roberts Court resulted from a Missouri inmate's efforts to obtain an abortion over the objection of state officials. This news certainly reinforces my observations here earlier this year about the frequent intersection at SCOTUS of criminal justice, constitutional law, federalism and hot-button issues.
More on Miers from her Texas Bar days
As noted in this post, the new White House strategy for pitching Miers is to focus on her qualifications. Thanks to a helpful reader, I see that the State Bar of Texas aids this cause by making available, at this website, materials from Miers' tenure as President of that Bar. The materials now available there include a Q&A with Miers from the June 1992 Texas Bar Journal, and on this page the "President's Opinions" that Miers wrote for the Texas Bar Journal during her 1992-1993 term as president.
A very quick scan of these 11 brief "Opinions" do not greatly enhance what we already know about Harriet Miers, nor do they provide many clues as to how she might reach and write other opinions in the future. Most of these columns discuss the importance of lawyers acting ethically and committing time to pro bono work, although the themes of ensuring legal representation for the poor and diversifying the legal profession come through in many of these TBJ columns.
Especially given all the talk about where Miers went to law school and the intensity of the blogosphere buzz about her nomination, I found Miers' March 1993 TBJ column the most interesting of the bunch. This column starts by commenting upon an article discussing a controversy then raging at Harvard Law School, which Miers calls "shocking ... for two principal reasons:"
It describes some of the best and brightest among our nation's people as deeply divided along political and philosophical lines with an inability to engage in civil dialogue. Secondly, the story depicts the conduct of some of these best and brightest in our legal community as suggestive of a disturbing lack of respect for anyone with a different view. The article particularly spotlights divisions based on race and gender issues.
Later in the column, Miers has this to say about the role and responsibilities of lawyers:
Lawyers are about seeking the truth, preserving a system to achieve fairness and justice, and protecting the freedom of individuals against the tyranny of the majority view. Lawyers have superior education, training, and communication skills. We should be role models for our nation and its people and we should be leaders. If lawyers fail to achieve respect for one another and cultivate civility among members of the profession, then it is predictable that society as a whole will fail.
SCOTUS speaks to Atkins capital procedures
My SCOTUS sentencing cup runneth over. In addition to the big news that the Supreme Court has granted cert. on Blakely harmless error, SCOTUSblog also notes that the Court today, in a two-page unsigned opinion, has spoken to the procedures to be used to consider claims by capital defendants that they are mentally retarded and thus exempt from execution after Atkins. Here is Lyle Denniston's report on the decision:
In a two-page, unsigned opinion, the Court ruled that states must be given a chance to develop their own ways of deciding whether a convicted murderer is mentally retarded, and thus cannot be executed. It overturned a Ninth Circuit decision that ordered the state of Arizona to let a jury decide the retardation issue. "Arizona had not even had a chanced to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition," the Court said. There were no recorded dissents in Schriro v. Smith (04-1475).
UPDATE: The Supreme Court's opinion in Schriro v. Smith, No. 04-1475 (S. Ct. Oct. 17, 2005) is available at this link. Here is the heart of the Court's holding and analysis:
The Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith's mental retardation claim. Atkins stated in clear terms that "we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." 536 U. S., at 317 (quoting Ford v. Wainwright, 477 U. S. 399, 416-17 (1986); modifications in original). States, including Arizona, have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation. While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition.
Because the Court of Appeals exceeded its limited authority on habeas review, the judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion.
ANOTHER UPDATE: Here is the AP story on Schriro v. Smith.
SCOTUS taking up Blakely harmless error issue!
Though I won't credit all my whining about the need for the Supreme Court to start addressing all the important issues left unresolved by Blakely and Booker (see, e.g., here and here), I will celebrate the big news coming from Lyle Denniston at SCOTUSblog that the Court today granted cert in "a significant sequel to its series of rulings on the roles of judges and juries in criminal sentencing" by accepting for review "the issue of whether a violation of the jury's role in sentencing can ever be excused as 'harmless error.'"
The case taken up by SCOTUS is Washington v. Recuenco (docket 05-83). The decision by the Washington Supreme Court was rendered in April and is available here. I reported on the decision in this post.
October 16, 2005
Will the MSM ever look at Miers and criminal justice issues?
I am pleased to see that some folks over at The Volokh Conspiracy are exploring the Miers' nomination through the lens of criminal justice issues: Orin Kerr speculates here on how Miers might handle death penalty cases, and Juan Non-Volokh notes here how much of the High Court's constitutional work is in the arena of criminal procedure. Now I am wondering when the mainstream media will get with the program.
Notably, in two weeks since Miers' nomination, we have seen articles about her 1968 law review note and about her girls' nights out, and now we know from this NY Times article that she is a "very good bowler" who "gets a lot of action out of the pins." But, to my chagrin, we still have not seen a single article exploring Miers' notable work with the prisoner re-entry group Exodus Ministries, and there has been precious little coverage of her vocal advocacy for adequate funding of indigent defense.
Especially since nearly half of the Supreme Court's docket involves criminal cases or related issues, I have been hopeful we could see a robust public exploration of Miers' work in the criminal justice arena. Moreover, because of all the buzz about Miers' religion and how this background might bespeak a new right on sentencing issues, broader public examination of the criminal justice system in the context of the Miers' nomination holds some hope of avoiding the usual knee-jerk right/left discussion of being tough or soft on crime.
Perhaps criminal justice issues will become grist for the MSM mill now that there is a new White House strategy to focus on Miers' qualifications. I hope so, though I am not expecting too much.
Mark your Booker calenders
In addition to lots of exciting football, this fall brings a number of exciting Booker events to campuses. In the coming weeks, I have the honor of participating in Booker programs at Arizona State College of Law and the at the University of Houston Law Center. As detailed at this link, the ASU event is entitled "Blakely and Booker: End or New Beginning of Sentencing Guidelines? " and takes place on November 4. The Houston event, which has a brochure available here, is entitled "The Booker Project : The Future of Federal Sentencing" and takes place on November 18.
In addition, I see from this link that the Cornell Journal of Law and Public Policy has a Booker panel as part of its November 5 symposium entitled "The Latest Developments in the War on Drugs." (This document details that panel's top-flight participants.) Anyone who cannot wait until November for Booker gatherings should recall that, as detailed in this post, the Roger Williams University Law School has a great looking event later this month entitled "Symposium on Sentencing Rhetoric: Competing Narratives in the Post-Booker Era."
Virginia governor campaign spotlights death penalty and religion
As discussed in some prior posts linked below, there has long been a fascinating set of connections between the death penalty and religion. As detailed in this article, these connections are becoming headline news in Virginia's race for governor:
When explosive television ads called new attention to Democrat Tim Kaine's position on the death penalty last week, Kaine's response once again brought religion to the doorstep of the heated Virginia governor's race.
Republican nominee Jerry Kilgore sparked a firestorm with television ads that feature relatives of murder victims criticizing Kaine for representing a death row inmate and for once supporting a moratorium on executions in the state. Kaine responded by insisting he would carry out executions as governor, despite his moral objection to the death penalty....
Kaine, a Roman Catholic, said he has a faith-based objection to the death penalty but would carry out executions unless an inmate can demonstrate his innocence. Kaine has sometimes responded to Kilgore's attacks by accusing the Republican of criticizing his religious beliefs.
And, as if the combination of politics, religion, and the death penalty wasn't exciting enough, this article spotlights that one of Kilgore's attacks on Kaine's death penalty record even invoked Adolph Hitler.
Related posts on religion and the death penalty: