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February 21, 2012

Lots of little(?) criminal justice action from the Supreme Court

After their extended mid-winter break, the Supreme Court is back in action today and it got the day started by releasing two opinions in argued cases and one per curiam opinion dealing with criminal justice issues.  Here is the quick-and-dirty summary of the action via posting from SCOTUSblog:

First opinion is Howes v. Fields. The decision of the Sixth Circuit is reversed. Justice Alito writes; there is a separate opinion by Ginsburg and Sotomayor concurring in part and dissenting in part [opinion here].  The Sixth Circuit's categorical rule that when an inmate is questioned in prison about events in the outside world there is custody for Miranda purposes is wrong.

Next opinion is Kawashima v. Holder. The decision of the Ninth Circuit is affirmed. The vote is 6-3. Ginsburg dissents, joined by Breyer and Kagan [opinion here].  The Court holds that convictions under the statute for aiding and assisting in the preparation of a false tax return is an aggravated felony if the government's revenue loss is greater than 10K dollars.

Per curiam opinions today. Wetzel v. Lambert [opinion here]: The Court vacates the Third Circuit's opinion and remands for proceedings consistent with the per curiam opinion.

Without having to to read the opinions yet, I surmise that none of these rulings are blockbusters.  But perhaps I will find (or readers can opine on) reasons why these cases are more consequential then they might first appear to be.

UPDATE:  A quick scan of all these opinions confirms my initial instinct that, at least for hard-core sentencing fans, there is not all that much "there" there in these new opinions.  That said, I must spotlight some telling lines from the majority per curiam opinion and the dissent by Justice Breyer (joined by Justices Ginsburg and Kagan) in the Wetzel v. Lambert case.  The case involves a grant of habeas relief to a defendant on death row in Pennsylvania, and the opinions express two quite distinct views of what is of greatest concern to the various Justices. 

First, consider a closing sentiment from the majority opinion (which sends the case back to the Third Circuit for further review):  "Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prosecution. That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA."

Now comes the dissenting three, who stress these points toward the close of their opinion: "Finally, the Circuit questioned the strength of the case against Lambert.... [and its] statements suggest that the Commonwealth’s case against Lambert was unusually weak. If the Commonwealth was wrong, an innocent man has spent almost 30 years in prison under sentence of death for a crime he did not commit."

February 21, 2012 at 10:27 AM | Permalink


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Another day, another unanimous rejection of the Sixth Circuit on an AEDPA case. Why can't these judges get this stuff right?

Good to see Wetzel v. Lambert finally get sent back to the Third Circuit. How pathetic is the reasoning in the dissent? Oh, we don't handle fact-bound cases on AEDPA. Yeah, guys, but if the appeals courts are blowing off AEDPA, then the Court has to do something about it. So that argument really doesn't wash. Also, that the three dissenters chose to swallow the Third Circuit's "we're surprised that this guy was even tried" silliness tells you all you need to know. Even Sotomayor, a former prosecutor, is smart enough to know a lousy innocence case when she sees it.

Posted by: federalist | Feb 21, 2012 10:33:19 AM

And, wouldn't you know it, a Bush appointee on the Sixth Circuit got it right, and a Clinton appointee got it wrong. We sure see that a lot.

Posted by: federalist | Feb 21, 2012 10:43:53 AM


Howe v. Fields is based on Simpson v. Jackson, which was joined by a George H.W. Bush appointee.

Posted by: Robert Barnhart | Feb 21, 2012 10:52:04 AM

Understood, but the main opinion clearly agreed with the result. It's difficult to argue that Clay and the District Judge were simply following precedent. Their reasoning was wrong--and SCOTUS was unanimous on that.

McKeague was right; Clay was wrong. Ha. Ha.

Posted by: federalist | Feb 21, 2012 10:59:00 AM

The second part of Howes v. Fields strikes me as an advisory opinion. Why not just "no clearly established law, AEDPA applies, see you later?" The dissent sort of addresses this with "If this case were before us on direct review . . ." Shouldn't the point be that it is not? Seems like the Supreme Court makes a point to enforce AEDPA with the lower courts but feels free to range outside of its bounds when it sees fit.

Posted by: Robert Barnhart | Feb 21, 2012 11:37:54 AM

Additionally, if we are counting appointments, then the Third Circuit's opinion was from a Clinton, Reagan, and George W. Bush appointees.

If anything, Wetzel demonstrates the value of robust open discovery rules for both sides. This isn't a fox hunt.

Posted by: Robert Barnhart | Feb 21, 2012 11:46:10 AM

yes, Mr. Barnhart, but the decision in wetzel was 6-3. I usually don't harshly criticize judges when their point of view gets some support at SCOTUS.

With respect to AEDPA, the problem is clearly with the Dem judges.

Over at C & C, Kent Scheidegger addresses the dictum vs. alternative holding issue.

Posted by: federalist | Feb 21, 2012 11:58:50 AM

Robert Barnhart --

"If anything, Wetzel demonstrates the value of robust open discovery rules for both sides. This isn't a fox hunt."

I couldn't agree with you more, but it will never happen because the defense bar will never go along. The fact of the matter, which the great majority of defense lawyers will acknowldege in moments of candor, is that the client is quilty. Thus the defense bar's best bet is not in "robust open discovery rules for both sides," but in (1) clamming up, and (2) suppressing as much of the government's evidence as possible.

When the client is guilty, the LAST thing defense counsel wants is for the beans to get spilled. The more beans get spilled, the more likely a conviction becomes. Thus the idea is not to permit discovery of the beans, but to hide them somewhere no one will see them.

Posted by: Bill Otis | Feb 21, 2012 12:36:42 PM

As a prosecutor I provided open discovery before Ohio changed Criminal Rule 16. The truth is that the majority of cases were properly resolved through plea agreements. Defense counsel that was informed of the strength of the case against their client in detail were able to present themselves as competent and knowledgeable and we could get a case worked out. If we didn't, it was easy to go to trial as quickly as possible because all the cards were on the table.

When I became a defense attorney, I luckily found that my former co-workers shared me the same courtesy. Perhaps we are just lucky locally, but the relationship between the State and the defense bar here has always been cordial. Trials were generally well conducted when they needed to be conducted. I have had good luck outside my local area as my work has gone statewide. I've been invited to share full discovery and meet with investigators to review their file before trial.

Posted by: Robert Barnhart | Feb 21, 2012 12:54:37 PM

Robert Barnhart --

I commend you on your having had open file discovery when you were a prosecutor; we had (and I believe still have) that same policy in the EDVA.

I also commend you on having cordial relations with the prosecution now that you have switched sides.

But for all that, I would not amend anything I said in my earlier post. The defense bar will never go along with a rule requiring it to give "robust open discovery." Do you disagree?

Posted by: Bill Otis | Feb 21, 2012 1:05:45 PM

I suppose it depends on what "robust open discovery" would mean to the defense bar? In my run-of-the-mill cases I can't think what discovery I would really generate. Ohio's Rule requires the defense to disclose the following . . .

(1) All laboratory or hospital reports, books, papers, documents, photographs,
tangible objects, buildings or places;
(2) Results of physical or mental examinations, experiments or scientific tests;
(3) Any evidence that tends to negate the guilt of the defendant, or is material to
punishment, or tends to support an alibi. However, nothing in this rule shall be construed to
require the defendant to disclose information that would tend to incriminate that defendant;
(4) All investigative reports, except as provided in division (J) of this rule;
(5) Any written or recorded statement by a witness in the defendant’s case-in- chief,
or any witness that it reasonably anticipates calling as a witness in surrebuttal

Would you think of something like that without the "tend to incriminate" qualifier?

Posted by: Robert Barnhart | Feb 21, 2012 1:18:37 PM

Though, if you are asking me descriptively as opposed to normatively, then the answer is "no" because it cannot be strategically justified. As an academic question of how to set up a good system, that's a different question.

Posted by: Robert Barnhart | Feb 21, 2012 1:20:09 PM

"I suppose it depends on what 'robust open discovery' would mean to the defense bar?"

What it means is the same thing "open discovery" means to the prosecutor, to wit, walk in, sit down and take your time to look through the whole file.

You may have a different practice from the one I saw when I was in the USAO. There, it was major felony stuff -- drugs, guns, big money fraud, immigrant smuggling.

You do not gainsay that almost all defendants are factually guilty when they walk in the door. It is that fact that makes it impossible for the defense to go along with full discovery. Obviously, the most important parts of discovery are precisely those that "tend to incriminate." The whole raison d'etre of the defense bar is to get the client off DESPITE HIS GUILT. That being the case, defense counsel isn't about to go along with anything approaching "full discovery."

Posted by: Bill Otis | Feb 21, 2012 1:39:27 PM

I was involved in state felony practice so a bit different, yes. However, 99% of the time my file as defense counsel would contain letters I sent my client, a cover sheet for keeping track of court dates and a copy of the discovery I received from the prosecutor and that's it. What I'm saying is that most of the time I don't know what you would look at.

However, let's say we need to get experts involved. I think in that case the defense should be required to divulge any experts hired, consulted and the contents of those results regardless of whether it is incriminating.

The majority of Defendant are, in fact, guilty. If they were not, the system would be a terrible mess because we would be regularly incarcerating innocent individuals. Sometimes we are, most of the time, we are not.

Again, I suppose there is a normative and descriptive distinction problem here. Normatively, the rules should be different. Descriptively, it is clear why they are not.

Posted by: Robert Barnhart | Feb 21, 2012 1:45:53 PM

To my original point, however, the State could have saved itself a lot of time in Wetzel by just turning everything over. Also, I'm not necessarily blaming the district attorney here. Coordination of documentation b/w local agencies is no picnic.

Posted by: Robert Barnhart | Feb 21, 2012 1:47:41 PM

It is perhaps a bit synchronicity that Wetzel v. Lambert follows the wrongful convictions post.

Someone in the Wetzel opinion is lying unless the majority and minority read two different case files.

But more important is the probablility that Jackson would lie if it would save himself even if it meant the death of Lambert at the hands of the state. If that is what the police wanted to hear, that is what he would say.

We know this because even the innocent will confess.

See Police Interrogation and American Justice


True Stories of False Confessions

Coupled with the withheld evidence, that multiplies the possiblity that an innocent man could be executed. If the law requires the higher courts to ignore all of this, then the law is an ass.

Posted by: George | Feb 21, 2012 2:01:05 PM

It appears that Mr. Bill is trying to get Mr. Barnhart to abandon the presumption of innocence and support the presumption of guilt as if a court room is the same as the media.

Such is the times we live in.

Posted by: George | Feb 21, 2012 2:12:09 PM


There is a big difference between the legally binding and surely morally appropriate presumption of innocence in a courtroom and reality. The reality is that a majority of Defendants can and should abandon that presumption strategically and perhaps morally to seek mercy from the Court and society.

The question I am discussing with Mr. Otis is whether it is appropriate to modify discovery rules to produce a more fair system. The Defendant does not and should not have to prove that he or she is innocent. I assume under any system any one would propose the Defendant is free to sit back and force the government to prove its case. The debate is whether the Defendant, upon choosing to undertake an investigation designed to demonstrate his or her, in fact, innocence, has to live with what that investigation turns up or should be free to only show his or her good cards.

Posted by: Robert Barnhart | Feb 21, 2012 2:20:33 PM

Robert Barnhart --

I largely agree with your note to George.

My view of it was largely encapsulated by your noting, "This isn't a fox hunt." Indeed, I never viewed it as any sort of a game or contest.

People should be forthcoming and tell the truth. This seems to be a controversial proposition in criminal law, but it isn't controversial with me. It's one thing that makes it easy and morally uncomplicated to be a prosecutor: Just be forthcoming and tell the truth. If that puts the defendant in the slammer, fine; he can clean up his act and act like a normal person or face the consequences. If it blows up your prosecution, too bad. When you make a mistake, admit it and learn from it.

This stuff seems so elementary to me that I'm always puzzled by people like George get so huffy about it.

Posted by: Bill Otis | Feb 21, 2012 2:39:04 PM

Mr. Barnhart, that is a fair and on point response. For the sake of clarification, do you think the prosecution always brings charges to the plea bargain table that it can prove beyond a resaonalbe doubt? Do you think the government ever stacks charges to influence a plea bargain? Does this ever coerce a plea? Does open discovery eliminate these potential problems?

Mr. Bill, I think more people should get more huffy about a system that manufactures false confessions and wrongful convictions. The problem is sometimes defense attorneys have the same faith in the police investigations that you do or think the risk of trial is too great and so encourages a wrongful plea. Almost everyone does take responsibilty and plead guilty but that does not make pleas perfect. Indeed, it could be a symptom of a fallible system.

Posted by: George | Feb 21, 2012 3:29:32 PM

The "beauty" of AEDPA: Confronted with the claim of a man on death row who may be innocent, and who may have been convicted due to a State's suppression of evidence three Supreme Court Justices deem unequivocally exculpatory, the question for the Third Circuit on remand will not be whether the state courts erred in denying the condemned's Brady claim, but rather, the question will be whether the state courts erred unreasonably. If they erred reasonably, whatever that means, AEDPA will constrain the Third Circuit to give the State of Pennsylvania license to execute a man who may be innocent.

Posted by: Calif. Capital Defense Counsel | Feb 22, 2012 6:22:26 PM


You have some unfinished business. Your prior refusal to answer the question below implies a great deal, but I would prefer to have you speak for yourself rather than merely to infer.

Within the last few days, you have said that DP supporters should flush themselves down the toilet. You have said that Bush and Obama are guilty of murder and numerous other felonies. Six days ago, you made a joke of the shooting death of an ICE agent, snickeringly asking if I was "dressed up" as the shooter. Now you say that a Supreme Court majority, including Justice Sotomayor and Justice Kennedy, are ready to see a man who "may be" innocent executed -- and thus, impliedly, that they are at best amoral.

Is this the way you would behave if you were posting under your real name?

Posted by: Bill Otis | Feb 22, 2012 9:29:17 PM

Bill Otis --

You voted twice for George W. Bush. You worked for him. You advocate executing 16-year-olds. You put people in cages for using naturally growing herbs.

You don't declare who has finished or unfinished business.

You're a tool and a government stooge. You probably support AEDPA.

You believe in good vs. evil. You're a typical Republican.

Posted by: Calif. Capital Defense Counsel | Feb 23, 2012 12:27:48 AM


Since you didn't answer, I'll ask again:

Within the last few days, you have said that DP supporters should flush themselves down the toilet. You have said that Bush and Obama are guilty of murder and numerous other felonies. Six days ago, you made a joke of the shooting death of an ICE agent, snickeringly asking if I was "dressed up" as the shooter. Now you say that a Supreme Court majority, including Justice Sotomayor and Justice Kennedy, are ready to see a man who "may be" innocent executed -- and thus, impliedly, that they are at best amoral.

Is this the way you would behave if you were posting under your real name?

Posted by: Bill Otis | Feb 23, 2012 1:16:09 AM

I argued Kawashima for a law school class last semester. The opinion does result in some curious punishment consequences, as Justice Ginsburg points out in her dissent, because it allows tax misdemeanors to qualify as aggravated felonies and therefore merit deportation. I suspect that if the Majority were forced to defend this oddity, Thomas and others would say that Congress did not place any restrictions in the statute to prevent misdemeanors from becoming aggravated felonies and therefore they wouldn't see it as an absurd result.

Posted by: JT | Feb 23, 2012 7:58:04 AM


I am not that familiar with the federal system so I can't comment. As a prosecutor I spent some time doing felony indictment and grand jury presentations and I can't say that "stacking" charges was that common. At least in Ohio, what people perceive as stacked charges are not really stacked. For example, if you break into a home you would be charged with three counts of Burglary under three alternate theories (someone was home or likely to be home, residence but no one was home and no one was likely to be home, and/or you broke in but didn't intend to commit a crime (drunk and broke into a house to sleep)). Those would be different degree of felony but you could only get sentenced for the most serious even if you got convicted of all three.

Something more akin to stacking charges would be you wrote 12 bad checks so I charge you with 12 counts of Forgery so you can do a year on each for 12 years whereas if I combined the value of the checks you would be only subject to a max of 5 years. Ohio law allowed you to charge either way. I won't say it currently does because there have been some changes I haven't needed to follow. That's sort of stacking, but we generally charged with combined value.

Perhaps there are some draconian punishments for certain offenses and plea bargaining is "coerced" by that. But, I don't think the system is set up with insane penalties that demand pleas. At least on the state level. I'm just not familiar enough with federal sentencing to comment. It was my experience that the feds here only took the real bad guy cases, so my sympathy might be somewhat limited about the sentences handed out.

Bill, it's tough to imagine a system that allowed compulsory self-incrimination that wouldn't turn into a witch hunt. I don't know enough history to know why the founders developed that system. Given declining crime rates and relatively low mistaken conviction rates, I'm inclined to say we have a great system that we as lawyers and citizens should continue to try and improve.

Posted by: Robert Barnhart | Feb 23, 2012 11:15:16 AM

Robert Barnhart --

The truth-and-no-games system of discovery I'm talking about would not involve compulsory self-incrimination, because it would not require the DEFENDANT to do anything. He could lie through his teeth to his lawyer or the prosecutor, or he could say nothing.

The system I'm proposing would control only the behavior of the lawyers.

I agree wholeheartedly that we should strive to improve the system, but think that one such improvement would be to require more forthcomingness from counsel.

Posted by: Bill Otis | Feb 23, 2012 3:04:23 PM

well bill i like the ideal! I've said it before our court sytem is suposed to be about getting to the truth!

Outside of limits on involuntary evidence by the defendant. The rest is open. Most especialy reports and tests! Just like the DA is SUPPOSED to be turning over reports that prove the defendant DIDN'T do it. The defense should do the same if someway they manage to do a test the state didn't and it proves the defendant DID do it! That is a level playing field!

Same with witness testimony. State is SUPPOSED to be turning over anything they find that would prove the defendant innocent. So there should be automatic recrypical if the defence falls over a witness that proves the opposite.. The only exception to that i could see is a witness provided by the defendant personally! But any found by research or investicators would be fair game!

Posted by: rodsmith | Feb 24, 2012 1:57:56 AM

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