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January 12, 2007

Another SCOTUS capital case grant that has me wondering

As detailed here at SCOTUSblog, the Supreme Court today added four new cases to its docket in the current Term, "including a test of federal courts' authority to overturn a state trial judge's decision to remove a juror from a capital trial because of that juror's views about capital punishment."  Here's Lyle Denniston's description of new capital case, Uttecht v. Brown (06-413):

During jury selection in this Washington State murder case, the trial judge dismissed a juror because of equivocal statements about the death penalty.  After the Washington Supreme Court upheld that dismissal, the case went to federal habeas court, leading to a Ninth Circuit ruling that barring a juror is allowed only if it is clear that that juror would not follow the law.

Regular readers know that I am aggravated that the Supreme Court spends so much time on death penalty cases (especially now that only a few states in the entire nation have a truly functioning death penalty).  Brown adds to my aggravation, in part because it is not clear what broader jurisprudential issues are at stake to justify its place on the Supreme Court's incredibly shrinking docket.  So, the grant in Brown has me wondering....

1.  Has SCOTUS essentially decided that, in all capital cases, it will be in the business of error correction (at least when a federal court appears to have wrongfully overturned a state death sentence)?

2.  Especially if SCOTUS plans to be in the business of capital error correction, what's happened to the device of summary reversal?  In Brown, notably, the petition requests a summary reversal.  Though I've not checked the data, I think we've seen fewer summary reversals this Term along with fewer cert grants.

3.  Even if the Court cannot resist the lure of capital cases, why not tackle cases with broad impact like the standards for lethal injection or the procedures for implementing Atkins?

4.  Does the Court realize that, because only a few states in the entire nation have a truly functioning death penalty, its ultimate decision in Brown, whatever it is, likely won't impact more than a handful of cases in a handful of states?

5.  Is the cert grant in Brown yet more evidence, along with all the other recent docket struggles, that it is time for Chief Justice Roberts to drain the cert pool and start seriously exploring other case selection protocols?

January 12, 2007 at 04:16 PM | Permalink

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» Round-Up from SCOTUSblog
At ACSBlog, Martin Magnusson has an entry about the recently granted Supreme Court case Panetti v. Quarterman here. The ACSBlog also briefly discusses the grant in BCI Coca-Cola v. EEOC here. At Sentencing Law and Policy, Doug Berman wonders about... [Read More]

Tracked on Jan 12, 2007 5:23:41 PM

» Round-Up from SCOTUS Blog
At ACSBlog, Martin Magnusson has an entry about the recently granted Supreme Court case Panetti v. Quarterman [Read More]

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» Supreme Court Adds Washington State Death Penalty Case - UPDATED from StandDown Texas Project
From Lyle Denniston's post at SCOTUS Blog:Court to hear four more cases Posted by Lyle Denniston at 01:34 PM The Supreme Court on Friday added four new cases for its decision docket in the current Term, including a test of [Read More]

Tracked on Jan 12, 2007 8:04:48 PM

» Round-Up from FindLaw
At ACSBlog, Martin Magnusson has an entry about the recently granted Supreme Court case Panetti v. Quarterman [Read More]

Tracked on Jan 12, 2007 8:07:19 PM

» Round-Up from SCOTUS blog
At ACSBlog, Martin Magnusson has an entry about the recently granted Supreme Court case Panetti v. Quarterman [Read More]

Tracked on Jan 12, 2007 10:47:47 PM

» SCOTUS and Error Correction from Criminal Appeal
Among the reasons Prof. Doug Berman is frustrated by yesterday's cert. grant in Uttrecht v. Brown (see previous post) is that the Court appears to be getting into the business of error correction, rather than resolving broad jurisprudential questions. ... [Read More]

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» The Dominance of the Death Penalty on the Decreasing Supreme Court Docket from ACSBlog: The Blog of the American Constitution Society
by Martin Magnusson, Editor-at-LargeThe Supreme Court's docket has dramatically decreased in the past twenty years. When Chief Justice Rehnquist assumed leadership of the Court in 1986, it disposed of 175 cases. That number has steadily fallen. Last ye... [Read More]

Tracked on Jan 31, 2007 5:51:44 PM

» The Dominance of the Death Penalty on the Decreasing Supreme Court Docket from ACSBlog: The Blog of the American Constitution Society
by Martin Magnusson, Editor-at-LargeThe Supreme Court's docket has dramatically decreased in the past twenty years. When Chief Justice Rehnquist assumed leadership of the Court in 1986, it disposed of 175 cases. That number has steadily fallen. Last y... [Read More]

Tracked on Feb 1, 2007 10:14:26 AM

» Oral Argument in Uttecht v. Brown from SCOTUSblog
The Supreme Court will hear oral argument tomorrow in No. 06-413, Uttecht v. Brown. Lyle Denniston's preview of the case can be found here. Other commentary on the case from around the blogosphere is collected here: In Cornell Law School's... [Read More]

Tracked on Apr 16, 2007 11:13:39 PM

Comments

9th Circuit, AEDPA, cert petition by the government ... I looked up the opinion on WL, expecting the author to be Reinhardt. (the case was Brown v. Lambert at the CA9)

Turns out it's Kozinski, though his co-panelists were Reinhardt and Berzon. The case was not reheard en banc, though the opinion was amended and there were several dissenters.

On the cert pool, I wonder if it has anything to do with the possibility that some of the current Supreme Court clerks remember the case.
http://bamber.blogspot.com/2006/04/whos-who-iii.html

Posted by: | Jan 12, 2007 4:42:32 PM

Why do so few states have a truly functioning death penalty? Failure of many federal courts, especially the Ninth Circuit, to obey AEPDA is big part of it. Surely you've noticed how much of this error correction is correction of the Ninth. The solution is not for the Supreme Court to tolerate the Ninth's defiance of the law, but for the Ninth to obey the law.

Posted by: Kent Scheidegger | Jan 12, 2007 4:44:44 PM

If they want to fix all the Ninth's procedural (rarely substantive) mistakes, fine. But don't do so at the expense of taking other cases with better and more important issues.

Posted by: Anon | Jan 12, 2007 4:47:49 PM

Well, remember that some of these decisions can have broader application. Alot will turn upon the creativity of counsel to "bend" or interpret these decisions, and not let judges/prosecutors try to make them atypical with a "death is different" argument. I was successful in one case to utilize the Court's opinions in Payne, Booth and Gathers in a non-death penalty case regarding victim impact statements. So, it can be done; it just ain't easy!

Posted by: Bernie Kleinman | Jan 12, 2007 5:18:06 PM

I was floored when this Case was granted Cert as it fell well within the "four corners" of the opinions from around the country on life / death qualification under Witherspoon & Morgan I read every week for the last ten years putting together CDW. This area of the law is well settled & this opinion fell well within that settled ground. The Court was asked to GVR this case, that is to Grant, Vacate & Remand (aka, summarily reverse), but refused to.

One well known commentator noted at the time of Judge Kozinski's opinion that: "What a great opinion. Really, really impressive. The kind of opinion that I wish I could write, but totally can't. Short, persuasive, concise, to the point, and complete. And even a tiny bit funny. Wow." Another commentator noted that "There was no indication that his willingness to follow the law in imposing the death penalty would be "substantially impaired;" indeed, his views mirrored the state’s death penalty statute."

There are only two possible conclusions. The first is offered by Doug, that the current cert pool system is broken & " the cert grant in Brown yet more evidence, along with all the other recent docket struggles, that it is time for Chief Justice Roberts to drain the cert pool and start seriously exploring other case selection protocols." The other is that the Court is considering modifications to one of the few areas of the its capital jurisprudence that is settled, Witherspoon & Morgan analysis. Following the Court's flub-up in Burton, my bet is on the first one.

Posted by: karl | Jan 12, 2007 7:25:56 PM

Kent:

You claim the "failure of many federal courts" is the problem for the dysfunctionality in the death penalty & single out the Ninth Circuit. You can say the same thing for the Fourth, Fifth & Eleventh & their open defiance of precedent, esp. penalty phase IAC in permitting states to openly & flagrantly flout SCOTUS precedent. Oddly you never criticize those courts, why - hypocrisy or you don't want to piss off your funders?

Posted by: anon | Jan 12, 2007 7:47:28 PM

No, anon, actually I haven't seen Fourth, Fifth, or Eleventh Circuit precedent that flouts Supreme Court precedent in anywhere near the flagrancy that the Ninth disobeys AEDPA. They may or may not exist, but I haven't come across them. The problems with the Texas special issues in recent years, for example, come not from the lower courts flouting Supreme Court precedent but rather from the high court's hopelessly confused and contradictory precedents.

And no, I'm not afraid to criticize courts or legislatures when I think they've gone over the top in the other direction. I've publicly criticized excessive residency restrictions for sex offenders and the death penalty for nonfatal crimes, among other bad ideas.

Posted by: Kent Scheidegger | Jan 12, 2007 8:25:12 PM

Not sure what part of Lockett, Penry I or Penry II that the Fifth Circuit before Nelson v Quarterman it didn't get. Blackletter law is blackletter law no matter what the sentencing scheme. With that said, the SCOTUS should strike down the Texas scheme in its entirety as an outlier that has overproduced death & underproduced the ability of juries to give effect to mitigating evidence.

Posted by: karl | Jan 12, 2007 10:07:10 PM

Sure Karl, if you just look at Penry I and Penry II the answers are straightforward. If you just look at Jurek, Franklin, Graham, and Johnson the answers are also straightforward -- and quite different. If you look at the whole line, it's a mess.

To strike down the entire pre-1991 Texas system would be to overrule Jurek. If the Court is going to consider overruling its major precedents in this area, Lockett should be reconsidered. The Court just made up a restriction out of blue sky and imposed it on the states without a shred of a legitimate basis for it.

Posted by: Kent Scheidegger | Jan 12, 2007 11:32:20 PM

I may be totally missing the boat, but Uttecht v. Brown could have some more general application as one of the big complaints was the lack of a contemporaneous objection by the prisoner's counsel. In addition, it could give some color to the "double deference" that Batson issues seem to have under AEDPA.

Do people here think the case is a bit analagous to Rice v. Collins?

Doug, as to your point about death cases and the amount of time they take--I think one of the issues that deserves some mention is that in passing AEDPA Congress was concerned with the delays and bad rulings tossing death cases--thus, the Court may feel that it has some obligation to deal with what any fair observer can see as the flouting of the law by federal courts. Relatedly, Americans support capital punishment, and the Court may be conscious of federal courts thwarting the people's will.

Posted by: federalist | Jan 12, 2007 11:42:14 PM

The Corut clearly stated in Franklin, Graham & Johnson that those cases were exceptions to the rule. To say Jurek is the end all & be all is to say that Gregg or Furman are the end all & be all. Jurek merely said the general scheme was permissible.

The real problem is that the Fifth Circuit and the CCA have always thought Texas was a special exception to general Eighth Amendment law such as Lockett. It isn't but as a result those Courts have permitted an overproduction of death sentences and executions.

As an aside, I would note that Texas is an outlier in its procedural system. No other state has adopted it. Its procedural oddities overproduces death. We know that 30 years after Jurek the special question scheme has failed. 38 jurisdictions that have adopted death have explicitly reputed it. You would think after Simmons & Atkins & their general rule of "evolving standards of decency" that an outlier like Texas whose system overproduces death verdicts and executions, as well as whose capital procedure have been explicitly shunted by the rest of the states in their adoption of a capital sentencing scheme, would have been struck down a long time ago.

- karl

ps Yes Ore. has a strange hybrid that borrows elements of the Texas system, however, its hybrid does not even come close to adopting Texas' strange system in toto.

Posted by: karl | Jan 13, 2007 9:00:02 AM

Anon, with respect to AEDPA cases, when those circuits are reversed, their positions typically get votes. The Ninth, on the other hand, has a bunch of AEDPA cases where its position fails to attract a single vote. Additionally, the Ninth has often been reversed summarily by per curiam opinions in AEDPA cases. No other circuit seems to have that problem.

Posted by: federalist | Jan 13, 2007 10:35:34 AM

Although Texas is an "outlier," I don't see any evidence that their system is unconstitutional. One could easily think of thousands of little ways that the states differ from one another. The people of Texas chose a system that results in more death verdicts, which they are entitled to do. That doesn't mean per se that Texas is violating the Constitution.

People who oppose the Texas system should try to persuade the Texas legislature to revise its laws, instead of asking the Supreme Court to do so.

Posted by: Marc Shepherd | Jan 14, 2007 1:45:02 PM

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