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April 29, 2013

A notable DIG (with lots of explanation) from SCOTUS concerning indigent defense

The Supreme Court has a significant non-decision this morning in Boyer v. Louisiana. Here is the entire per curiam decision for the Court: "The writ of certiorari is dismissed as improvidently granted." But this mini-non-ruling also came with a concurring opinion authored by Justice Alito, joined by Justices Scalia and Thomas, and a a dissenting opinion authored by Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan. This surely suggests that the Chief Justice and/or Justice Kennedy wanted this case to go away rather than have to pick sides on the merits.

Here is a key starting paragraph from Justice Alito's four-page concurrence:

We granted certiorari in this case to decide “[w]hether a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes.”  Pet. for Cert. i.  The premise of that question is that a breakdown in Louisiana’s system for paying the attorneys representing petitioner, an indigent defendant who was charged with a capital offense, caused most of the lengthy delay between his arrest and trial.  Because the record shows otherwise, I agree that the writ of certiorari was improvidently granted.

Here is a key starting paragraph from Justice Sotomayor's 10-page dissent:

We granted certiorari to decide whether a delay caused by a State’s failure to fund counsel for an indigent’s de fense should be weighed against the State in determining whether there was a deprivation of a defendant’s Sixth Amendment right to a speedy trial.  568 U.S. ___ (2012).  Rather than dismiss the writ as improvidently granted, I would simply address this question.  Our precedents provide a clear answer: Such a delay should weigh against the State.  It is important for States to understand that they have an obligation to protect a defendant’s constitutional right to a speedy trial. I respectfully dissent.

April 29, 2013 at 10:29 AM | Permalink


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Maybe Sotomayor has a good idea.

The trial court's continuances in this case do appear suspect; either ensure funding or deny continuances, right?

[I have only seen her side, though].

Posted by: Adamakis | Apr 29, 2013 11:08:11 AM

Don't think for one second that there wasn't a 5th vote to hold that delay due to lack of funding in a capital case is counted against the state. Put another way, I almost gaurantee that there were at least 5 (maybe 6) votes to reverse the state court on that ground. But Kennedy and/or Roberts were able to be persuaded that DIG was the better way to go.

Were it otherwise, Alito (and the 2 who joined him) would have NEVER settled on a mere DIG. They would have affirmed.

Posted by: anon | Apr 29, 2013 1:02:17 PM

how does this reflect on the Rule of Four? can anyone name another case DIG'ed over the dissents of four Justices? (Not saying it hasn't happened, just curious)

Posted by: anon2 | Apr 29, 2013 2:53:38 PM

I would be curious, too, to know whether another case has ever been DIG'ed with 4 disents.

This is from Adam Liptak in a NYT article:

"According to 'Supreme Court Practice,' the leading manual on Supreme Court procedure, it is bad form for a justice who voted to deny a petition to thwart a decision on the merits.

"'The reason strikes deep,' Justice William O. Douglas explained in 1952. 'If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits.'"


Posted by: anon | Apr 29, 2013 3:29:37 PM

As to the 'rule of four,' will this be cited "if" Prop 8 is digged?

As to a precedent, New York v. Uplinger was digged on a 5-4 vote.

Posted by: Joe | Apr 29, 2013 3:58:33 PM

Not sure if you can count tea leaves on this vote. At least some of the Justices in the majority decided that, since Boyer's counsel requested the continuances of the funding hearings, this was not a case in which the State delayed in making funding available. Given that unique wrinkle, at least one of the Justices in the majority decided to wait for another day before making a final decision on when state action can cause the defense to need a continuance such that the delay should be charged to the state.

Because the ambiguity in the record was apparently not clear at the time of the grant, this case would be a classic DIG (i.e. the cert pool screwed up on this case). Perry would present a very different type of DIG -- merely the inability to reach a majority opinion, but that happens often enough in cases that do not end in a DIG.

Posted by: tmm | Apr 29, 2013 4:14:47 PM

Justice Kennedy: "wonder if -- if the case was properly granted" ... "ambiguity in the record," including just what the 9CA decided, has been cited. Anyway, DIGs are known to be pragmatic.

Posted by: Joe | Apr 29, 2013 7:03:56 PM

Sotomayor's dissent is remarkable. Apparently, the "wise Latina" missed the day in law school when they discussed the difference between "but for" causation and fault. Clearly, none of this delay would have happened if the funding issue had not arisen, but it does not follow, indeed cannot follow, that once the state failed to timely fund, all delay would be counted against the state. Sotomayor simply ignores this obvious proposition. The delays tied to the defense continuances, whether or not the delays were ultimately caused by the state, have to be charged against the defense. That knocks out a lot of time, as does Hurricane Rita etc.

Sotomayor is clearly right that the Louisiana courts articulation of the constitutional speedy trial rules weren't entirely correct, but the Court reviews judgments, not opinions. Additionally, since Louisiana won below, it is not bound by the opinion below. Sotomayor attempts to get around this problem by talking about concessions below etc. But is SCOTUS really there to police lower court opinions for consonance between what is conceded and how the opinion comes out? What's the point there? At the end of the day, the rule Sotomayor proposes is just silly.

Posted by: federalist | Apr 29, 2013 10:57:30 PM

I don't think it is "silly" for Sotomayor to defer to the state court's resolution of the factual question of whether the majority of the delay was attributable to the State. A respondent can defend the judgment on any *legal* grounds, but I'm not sure why they should get to re-open factual questions that didn't seem to trouble the State court at all (especially when they conceded those questions below).

What's really going on here is that the State sought to muddy the waters on the responsibility for the delays as a last-ditch play when the case was in the USSC on the merits and they were facing the prospect of making bad law on the Speedy Trial test. They had a bad case on the merits so they ginned up vehicle issues as a smoke-screen. Usually this only works at the cert. stage. So, in that sense, impressive job to make it work at this late stage, at least if all you care about is results. But to me the State's conduct here is emblematic of the scorched-earth, concede-nothing, no-issue-is-ever-settled, if-you-say-the-sky-is-blue-I'll-say-it's-purple litigation style that gives us all a bad name. This is a bad decision and will only encourage this kind of sandbagging and ultimately make it harder for the Court to do its job.

On the Rule of Four issue, I guess it depends on how many Justices voted for cert. If it was just the four dissenters, then this was probably bad form on someone's part for the reasons described by Justice Douglas in the quote above. But if Roberts or Kennedy, or both, originally voted for cert., but then was taken in (mistakenly but in good faith) by these "vehicle problems," then it probably wasn't poor form for them to change their vote(s).

Posted by: anon2 | Apr 30, 2013 3:43:37 PM

Not sure whose fault was the record problem. If the record is as Sotomayor described it, then her opinion isn't silly because this involves an unresolved legal issue -- what type of acts by the State equal such a disfunction of the system of providing adequate counsel that the State should be charged with the resulting delays even if requested by the State -- set up in Vermont v. Brillon. While that one part of the balancing test does not necessarily determine the outcome of the case, clarifying the rule for that part of the balancing test is significant enough to warrant a Supreme Court decision and is more than just error correction.

Posted by: tmm | Apr 30, 2013 4:44:32 PM

Anon, tmm, the "wise [sic] Latina" never explains how the water is wet obvious conclusion that the state caused the delay translates into the state being charged with the delays occasioned by the defense motions for continuances. Instead, what she does (and remember, the "wise Latina" doesn't challenge Alito's point that the record is clear as to what continuances were requested by the defense) is play gotcha with "caused by the state." Weak. And of course, since "caused by the state" isn't conclusive at all with respect to the question of chargeable to the state, the State (as litigant) would have no reason to grade the Louisiana court's opinion. Cf. Bobby v. Bies. Once again, as I stated, the "wise Latina" doesn't get the distinction. And your defense of her doesn't come close to dealing with that point.

So what we are left with is a metaphorical foot-stomp over the Louisiana court's reasoning without a good explanation of why its judgment (as opposed to its opinion) is wrong. The "wise Latina" simply decided that "caused" meant "responsible for" and got into high dudgeon. It is funny to compare the "wise Latina's" approach to sticking it a judgment winner with her solicitousness of the judgment loser in Maples v. Thomas. The state in this case, because it "conceded" causation can't point to defense continuances that are unquestionably in the record, whereas Maples could switch arguments in mid-stream. (Sotomayor was part of that majority.)

Posted by: federalist | Apr 30, 2013 10:55:18 PM

"Apparently, the 'wise Latina' missed the day in law school when they discussed the difference between "but for" causation and fault.... [It] cannot follow, that once the state failed to timely fund, all delay would be counted against the state."

Or the day they discussed the difference between arguments and straw men. What Sotomayor says is that State should be faulted for the "majority" of the delay (slip op. at 5, quoting LA Sup. Ct.), not "all" of it. She goes on to observe (emphasis added):

Where a State has failed to provide funding for the defense and that lack of funding causes a delay, the defendant cannot reasonably be faulted. See Barker, 407 U. S., at 531. Placing the consequences of such a delay squarely on the State’s shoulders [i.e., faulting the State] is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation.
So her analysis in fact (1) presupposes a difference between causation and fault, and (2) squarely "explains how the water is wet obvious conclusion that the state caused the delay translates into the state being charged with the delays occasioned by the defense motions for continuances."

Posted by: Michael Drake | May 3, 2013 6:18:40 PM

Sorry Michael, I missed your comment.

The problem with the quoted material is that it simply doesn't deal with the fact that the defense filed for continuances of hearings to determine which state agency was going to pay. That's what Sotomayor ignores throughout her opinion.

Posted by: federalist | May 27, 2013 3:22:21 PM

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