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February 23, 2009

What's up with all the SCOTUS capital case cert grants from the Sixth Circuit?

There are lots of interesting issues to be mined from the group of criminal cases that the Supreme Court accepted for review today (basic details here).  But among the stories lurking therein is the Justices' continuing interest in capital cases from the Sixth Circuit.

Notably (and largely to my delight in light of my recent scholarly kvetching about the Supreme Court taking too many capital cases), the Justices have not taken up very many death penalty cases recently.  Of course, last Term brought a capital case cornucopia, with the blockbuster Baze and Kennedy and Medellinrulings.  But, since then, the Justices have decided to consider only a precious few capital cases (despite a slowly growing docket).  And, intriguingly (and coincidentally?), all of the capital cases before the Court this Term arise via habeas rulings coming from the Sixth Circuit: Cone v. Bell, Bobby v. Bies, and now Smith v. Spisak.

There are many notable case-specific aspects to each of these cases and the Sixth Circuit rulings that are now under review by the Supreme Court.  But, especially in light of my broader interest in how the Supreme Court sets its criminal docket, this pattern of cert grants seems noteworthy.

February 23, 2009 at 06:08 PM | Permalink


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Doug, Smith v. Spisak seems a deadbang loser for the murderer because it looks like AEDPA was completely blown off, as was a specific Supreme Court holding in a per curiam case a few years back.

Bobby v. Ries seems more of a federalism case than a DP case, i.e., the DP is just a vehicle.

Bell v. Cone has some bad facts (for the prosecution) and is a bit of a knotty problem, so I think the Court wanted to take a look at it.

Posted by: federalist | Feb 23, 2009 6:32:22 PM

Much can be attributed to the fact that Ohio has an SG with recent Supreme Court clerkship experience - Ben Mizer is highly aware of what will get the Court's attention.

Posted by: LH | Feb 23, 2009 6:46:46 PM

The criminal cases on the docket are from all over, and I wouldn't read much into the fact that these three capital ones are from the Sixth. With a small sample size, this kind of clump happening at random is not too unlikely.

Posted by: Kent Scheidegger | Feb 23, 2009 8:07:22 PM

Montejo is a capital case; not from Ohio or the Sixth Circuit; not in habeas.

Louisiana apparently has a clerk in their AG's office who knows how to get cert granted as well.

Posted by: anon | Feb 23, 2009 8:17:30 PM

It may also be worth a look at the cases as they come out of the Sixth Circuit. Cone is from an en banc decision in which Judge Merritt wrote a scathing dissent and 6 other judges joined him. Bies' panel was Clay, Daughtrey, and Moore, and the Supreme Court granted the state's petition for cert. Spisak's panel was Martin, Moore, and Clay, and, again, the Supreme Court granted the state's petition for cert. In recent years, the resolution of Sixth Circuit capital cases has almost uniformly split down lines of appointment, with Republican-appointed judges voting to affirm death sentences and Democratic-appointed judges voting to reverse. The grants of cert here would seem to bode no good for Bies and Spisak.

Posted by: Sumter L. Camp | Feb 24, 2009 12:48:05 PM

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