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May 7, 2008

Speculating about SCOTUS sleeper cases

After this sleepy SCOTUS week, the Justices will be back in action with new opinions likely to be issued each and every week until the end of the Term next month.  Constitutional law fans are focused, of course, on what the Justices will do with the Second Amendment in the Heller DC gun case and with the long-pending detainee cases.  Death penalty followers, meanwhile, are focused of what the Justices will do with the Eighth Amendment in the Kennedy child rape case.

But there are a number of other cases still stewing at One First Street that could end up being very consequential: there is the porn case Williams, which could cover some notable First Amendment ground; I am thinking the ACCA case Rodriquez might include a little Sixth Amendment talk about criminal history; and the Irizarry case might say something very consequential about the departure/variance story after Booker.

What SCOTUS rulings are you eagerly awaiting, dear readers?  Does anyone predict that some sleeper case will end up being a bigger story than some of the more anticipated cases?

May 7, 2008 at 08:29 AM | Permalink


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» US v. Williams as a Sleeper Case from Sex Crimes
US v. Williams concerns the constitutionality of the PROTECT Act, yet another child pornography law which potentially runs afoul of the First Amendment. The Court granted cert to hear the case in March 2007 and heard arguments in the case. [Read More]

Tracked on May 8, 2008 9:37:25 PM


All interesting cases, but how about a post on this case/article out of CA?


A death sentence voided
The Adam Miranda case shows that the California death penalty costs too much in time, money and justice.
May 7, 2008

If a respected entertainment lawyer had not decided 20 years ago to devote a substantial chunk of his life and work to helping a California death row inmate -- for free -- Adam Miranda would be dead by now. A document that could well have reduced Miranda's sentence had it not purposely or accidentally been kept from defense lawyers never would have come to light.

A nice counterpoint to the endless expressions of bloodlust and frustrations at "delay" voiced by our medieval friends Kent & "federalist"

Posted by: Reader | May 7, 2008 10:19:50 AM

Waiting for Court to once and for all decide that it is an INDIVIDUAL right to bear arms. Really hoping that Heller wins the case!!

Posted by: Disenfranchised | May 7, 2008 10:31:32 AM

Our ironically named commenter should read the rest of the article. (1) Adam Miranda's getting a new penalty trial, not a new innocence/guilt trial, as far as I can tell, because it's possible that he killed only one person and not two, and the death sentence was based on two. and (2) there is videotape evidence that he killed a convenience store clerk.

Adam Miranda deserves to die, and the fact that 20 years of pro bono work has turned up evidence that Miranda may have only killed one person and not two isn't a "nice counterpoint" to anything.

Posted by: | May 7, 2008 10:32:34 AM

To " " --- yes, in fact, I did read the whole article. If you think it's appropriate for the jury that sentenced a man to death to have done so based on inaccurate information about the extent of his criminal history, you are seriously psychotic & deranged by your bloodlust.

Yes, that guy is definitely guilty of *a* murder. But it is absolutely critical that the jury charged with selecting his sentence receive accurate information. Whether a man committed a single murder or has repeatedly killed is a huge consideration. You think it would be perfectly acceptable to kill a fellow citizen based on inaccurate information?

The case shows that the process for handling death penalty cases *repeatedly* uncovers significant flaws in how these cases were handled. Nonetheless, our bloodlusting DP advocates & their thirst for blood -- er, vengeance -- frequently decry the delay involved in the process of killing their fellow citizens. This article shows that these delays not infrequently uncover a big flaw in the process, which ought to temper their bloodlust (tho I have no doubt that they will simply dismiss this case as an outlier, a "bad apple," if you will).

Posted by: Reader | May 7, 2008 11:14:37 AM

Reader, perhaps you have not considered the difference between the opinion that someone deserves to die for his crime and whether, under the law, the process was adequate in arriving at his punishment. I don't think that the unnamed poster was vouching for keeping the info from the jury.

Posted by: federalist | May 7, 2008 11:31:19 AM

I understand that distinction, federalist, but the only party charged here with determining whether a person "deserves to die" is the sentencing jury. And in this case, that body made its decision based on inaccurate evidence.

Complaints about the delays involved in death penalty cases therefore equate to accepting that a case like Miranda's may conclude with a killing, before a discovery about flaws in the process comes to light.

Posted by: Reader | May 7, 2008 11:43:02 AM

"I understand that distinction, federalist, but the only party charged here with determining whether a person "deserves to die" is the sentencing jury. And in this case, that body made its decision based on inaccurate evidence."

So let me understand your "logic": because the unnamed commenter was, in your view, not competent to have an opinion as to whether Miranda deserved death, he was therefore advocating the killing of a murderer, notwithstanding the flawed process by which the death sentence was imposed.

"Complaints about the delays involved in death penalty cases therefore equate to accepting that a case like Miranda's may conclude with a killing, before a discovery about flaws in the process comes to light."

I don't think that anyone suggests that cases should not be reviewed, just that they should be reviewed quicker.

You're a real bright one, aren't you?

Posted by: federalist | May 7, 2008 12:20:53 PM

Always classy, federalist. But lets just say cases were reviewed quicker, bright one. What would that accomplish, in this and every case? Deterrence? Death by prosecutorial misconduct- or negligence- or mistake? More innocence on death row? Lower taxes? Gas tax holdidays? Nothing?

Tell us how bright you are... but pull your pant up first.

Posted by: Matt | May 7, 2008 1:02:39 PM

Please someone talk about the 2nd amendment case. The Heller gun case. Whats going to happen?

Posted by: Really | May 7, 2008 1:06:51 PM

For one, Matt, I think that the intense scrutiny given to penalty phase issues is completely ridiculous. If we simply focused on guilt/innocence and egregious problems on the penalty phase (granting that the jury knowing whether someone killed one guy or two is egregious) and were not required to parade every bit of so-called mitigation evidence in front of a jury, it's likely that true miscarriages of justice would come to the fore more quickly than they do today.

In addition, victims' families, whether they agree with the death penalty or not, wouldn't have this stuff hanging over their heads for years and years.

As for the "always classy" remark, I'm sure you'll note that I was called "medieval" in the original post. I am entitled to respond in kind, n'est-ce pas?

Posted by: federalist | May 7, 2008 1:22:45 PM

I listened to the oral arguments in the Heller case. It is always dangerous to predict a final decision based upon the oral arguments, but sometimes are some cases are clearer than others. I think all commentators have agreed that based upon the oral arguments, the Supreme Court will probably recognize an individual right to keep and bear arms. It also seems likely that the court will recognize that the right is subject to some sort of reasonable regulation.

It is not clear what level of scrutiny will be applied in cases that review regulations to determine whether they are reasonable. It seems likely to me that the court will find that an absolute prohibition on functional firearms, as in the case of the District of Columbia, to be an unreasonable regulation. That is just my personal opinion and prediction based upon what I heard.

There you have it, I have gone out on that limb.

I understand, by the way, that Justice Scalia has taken his friend Justice Ginsberg to the firing range couple of times. (Maybe that is just a rumor.) There is nothing like hands on experience with guns at a firing range to help make firearms less scary and to develop a better understanding of the true nature and benefits of responsible firearms ownership.

Posted by: Conservatarian | May 7, 2008 1:37:30 PM

I hope you are right Conservatarian. I am really looking forward to see who voted which way. I happen to agree that it should be an individual right.

Posted by: Heels | May 7, 2008 2:12:06 PM

I'm looking forward to Indiana v. Edwards - while a relatively rare situation, the case could be much bigger than expected in the intersection of mental health and criminal law.

Posted by: Zack | May 7, 2008 4:36:34 PM

To Reader and Matt (and federalist if interested):

1. According to the most recent Gallup poll on the issue, 69% of the public approves the death penalty for murder. Are all those people "bloodlusters" too?

2. The percentage approving the death penalty in particular cases (for example, the Jessica Lunsford rape and murder) is often higher than when the question is asked generally. In the McVeigh case, a USA Today poll found that slightly over 80% favored the death penalty. It also found that a majority of those generally opposed to the death penalty favored it for McVeigh. Are those people also "bloodlusters?"

3. Out of 112 Supreme Court justices, all but four (Brennan, Marshall, Blackmun and now Stevens) have never found the death penalty to be cruel and unusual punishment in violation of the Eighth Amendment. Well respected moderate Justices Lewis F. Powell and Sandra Day O'Connor favored it. Are they also "bloodlusters?"

4. More generally, is it possible to disagree with pro-death penalty persons without hurling epithets like "bloodluster"? Even if not in a substantial majority in this country (which they are), pro-death penalty advocates might believe that that punishment saves innocent lives by deterrence and incapacitation, or that whether it does or not, there are some cases in which it is the only just sentence. Do those thundering "bloodluster" at their opponents see any irony in claiming the moral high ground while conducting the argument in terms that would make Joe McCarthy blush?

Posted by: Bill Otis | May 8, 2008 1:11:22 PM

"How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with? Do you think this has happened in the past five years, or not?"

..................... Has
................Happened .... Has Not......... Unsure
5/8-11/06 .......63........... 27.....................10

If 63% believe an innocent person has been executed in the last 5 years, and if we add up every 5 year increment, and the same majority still loves executions, an argument could be made for blood lust as opposed to justice.

Posted by: George | May 8, 2008 2:44:28 PM


You say, "If 63% believe an innocent person has been executed in the last 5 years, and if we add up every 5 year increment, and the same majority still loves executions, an argument could be made for blood lust as opposed to justice."

1. Short answer: a better argument could be made that such a majority believes in the widely (and correctly) accepted notion of trade-offs. Whether the state legitimately may kill an innocent person, or anyone, depends on what the stakes are. In WWII, our government killed thousands of innocent Germans, including children. Yet no sensible person argues that we ought not to have fought the war, with its necessary incidence of civilian casualties, because the alternative (not fighting and allowing the Nazi Dark Ages to descend over Europe) was worse.

A person supporting the death penalty could credibly believe, as numerous recent deterrence studies have shown, that the death penalty saves far more innocent lives than it takes (assuming that it takes any, see Point 2 below) in which case the trade-off argues in favor of retention.

2. Apart from what is "believed" about the execution of innocent persons, there is the more important question whether, in fact, any such person has been executed in anything like recent times. Can you name a single executed person in the past 40 years who has been found by any neutral and authoritative source to have been factually innocent?

3. You gild the lily (and largely assume your conclusion) by talking about the majority that still "loves" executions. Where is your evidence that the majority "loves" executions, as opposed to believing that capital punishment is in some instances acceptable?

4. Are of you of the view that Justices Lewis Powell and Sandra Day O'Connor are bloodlusters? Both approved of the death penatly; O'Connor went so far as to write the dissent in the case that outlawed capital punishment for 16 and 17 year-old's. Was that bloodlust?

5. Abraham Lincoln, Franklin Roosevelt, Dwight Eisenhower and Bill Clinton all not merely approved of the death penalty but used it. Were they bloodlusters? Do you and other death penalty opponents have greater moral insight than Lincoln?

Posted by: Bill Otis | May 8, 2008 9:40:36 PM

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