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January 10, 2012

Lots of not-quite-sentencing criminal justice stuff from SCOTUS

The Supreme Court today issued four opinions in cases argued this past Fall, and three of the group involve criminal justice issues.  This SCOTUSblog post provides a great run down of the basics, along with links to the opinions:

Justice Sotomayor announced the first opinion of the morning, in Gonzalez v. Thaler.  By a vote of eight to one, the Court affirmed the decision of the Fifth Circuit, holding that Section 2253(c)(3) is a mandatory but nonjurisdictional rule. The failure of a  certificate of appealability to “indicate” a constitutional issue does not deprive a court of appeals of jurisdiction to adjudicate the appeal. Moreover, the Court held, for a state prisoner who does not seek review in a state’s high­est court, the judgment becomes “final” for purposes of Section 2244(d)(1)(A) upon “expiration of the time for seeking such review.” The petitioner’s appeal in this case was therefore untimely.   Justice Scalia filed a dissenting opinion.

Justice Breyer announced the second opinion, Minneci v. Pollard. Also by a vote of eight to one, the Court reversed the Ninth Circuit’s decision, holding because in this case, state tort law authorizes adequate alternative damages actions no Bivens remedy can be implied. Justice Scalia wrote a separate concurring opinion, which was joined by Justice Thomas, but also joined the Court’s opinion. Justice Ginsburg filed a dissenting opinion....

The final opinion issued today was in Smith v. Cain, announced for the Court by Chief Justice Roberts.  Once again by a vote of eight to one, the Court reversed the decision of the Louisiana state court and remanded the case for further consideration. The Court held that the substantial Brady claims in the case require a reversal of the petitioner’s conviction.  Justice Thomas filed a dissenting opinion.

Bivens, Brady and habeas issues are not of direct concern for sentencing law and policy, but there are still plenty of reasons I hope to soon find time to give all these opinions a close read.  In the meantime, perhaps readers can and will use the comments to highlight if there are any must-see parts of these rulings.

January 10, 2012 at 03:43 PM | Permalink


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Alito, in a divided opinion, votes for the defendant. Amazing.

Posted by: reader | Jan 10, 2012 5:59:33 PM

8-1 is barely divided. I wouldn't start questioning Alito's almost-blind adherence to the government in criminal cases. In almost any case that isn't unanimous or virtually unanimous, he'll be on the prosecutor's side.

Posted by: anon | Jan 10, 2012 6:08:15 PM

Agreed, anon, but that's what is so astonishing about him joining the majority in Smith. With Thomas in dissent as cover, it's astonishing he still voted with the majority.

Posted by: reader | Jan 10, 2012 6:15:45 PM

I'm not astonished by Alito's vote. He's a former prosecutor and although he will give them the benefit of the doubt often, what has gone on with the New Orleans DA's office is an off-the-charts disgrace and I'd say that *especially* a former prosecutor would know that.

Also, the Roberts consensus opinion was so toothless, that made it easier to sign on. It's like 3 pages, just restates the Brady rule and announces a result. In so doing, it ignored a major lurking issue in the case, i.e., the New Orleans DA's insistence that it did not have a responsibility to turn over all exculpatory evidence, but only evidence that was also "material." Of course, in theory materiality vel non can only be determined after trial, once all the evidence is in. But that apparently doesn't stop the New Orleans DA from suppressing/declining to turn over items that are clearly exculpatory but which, in the ADA's pretrial opinion, will not "undermine confidence" in a later guilty verdict. Arguing counsel was super-clear on this at oral argument, and I think some folks were hoping the Court would take the opportunity to repudiate that illogical, self-serving practice and make clear that there is no "materiality" prong *pretrial*, but rather that prosecutors have an obligation to turn over anything that is exculpatory. But alas, no. Maybe next time...

Posted by: Anon2 | Jan 11, 2012 11:05:49 AM

Thomas's dissent in Smith is a must read. The gymnastics he is willing to perform in order to preserve this conviction are really impressive, as is his knowledge of the Hip Hoptionary.

Posted by: Ala JD | Jan 11, 2012 2:23:39 PM

Thomas needs to read Picking Cotton on bad ID.

The victim not only misidentified the innocent defendant, she denied that the actual predator was her assailant!

Both men were in court for the re-trial.

I had the luxury of being able to meet Ronald Cotton and the victim, 09/17/09, at a CLE in Cincinnati, hosted by the Ohio Innocence Project.

Posted by: Docile Jim Brady | Jan 12, 2012 3:50:16 AM

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