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March 1, 2009

Big interesting SCOTUS argument week ahead

Though few of the cases to be argued this week before the Supreme Court are certain criminal justice blockbusters, the entire week is filled with interesting and challenging cases that defy easy answers (and thus do not obviously turn on one particular swing Justice).  Here, in the order they are to be argued and with text/links from SCOTUSwiki, are the cases I will be watching closely:

March 2

  1. District Attorney's Office for the Third Judicial District, et al. v. Osborne (08-6) - Defendant's access to biological evidence

March 3

  1. Caperton v. A.T. Massey Coal Company, Inc., et al. (08-22) - Judge's campaign donations

March 4

  1. Abuelhawa v. United States (08-192) - [reach of federal felony drug crime offense]
  2. Dean v. United States (08-5274) - Accidental firearm discharge; sentencing enhancement

I could develop various arguments for why a broad opinion in any of these cases could end up having a big impact on the operation of criminal justice systems.  But I also expect that there will be narrow rulings from the Court in all of these cases.  So, sentencing fans, I would be grateful for comments about which of these cases seem most likely to be most consequential in a Term that has been pretty sleepy to date.

March 1, 2009 at 11:37 AM | Permalink


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I would think Caperton has the most potential, seeing how this appears to be a recurring issue on Overlawyered. However I'm also not going to be surprised if they come out with a ruling leaving it to the concious of each judge. Any rule that makes recusal decisions (More?) reviewable would bring a nightmare load onto the federal docket, as well as calling their own recusal decisions into question.

Posted by: Soronel Haetir | Mar 1, 2009 12:47:51 PM

Of the four, my vote is on Caperton, which has potentially enormous significance if the Court addresses on the merits what the test is for recusal by a judge. Is it actual bias? or perceived, appearance, probability or whatever of bias? I am currently litigating six cases, one of them capital , in which this question is critical. If they do address it, I believe they will stick with the oldest chestnut, Tumey v Ohio, which I have been citing constantly as support for the proposition that appearance of bias is good enough to do the job.

The second thorny issue is what is the role of money and where are we headed with respect to the election of judges. I've also been litigating that one in a number of cases. As Justice Scalia acknowledged in White, this is a tough one. They certainly won't declare the election of judges is a per se due process violation, but the aggressive nature of current political campaigns, and Minnesota v White, aims us in that direction. Which I think is a good thing. On a day to day basis, the popular election of judges is the elephant in the living room no one wants to talk about in the context of fair trials for criminal defendants.

bruce cunningham

Posted by: bruce cunningham | Mar 1, 2009 7:21:29 PM

From a policy point of view I think the Caperton is key. All judges have bias, that's human nature. But there is "in your face" bias which is Caperton. Put another way, judges are bought. But are they going to be bought openingly or through more subtle means of corruption. The real advantage of keeping as much money out of the political process for judges is that there is at least an opportunity for more honest judges to slip in. But if you require actual bias and then allow a free flow of money, that really rips the veil off any notion of "neutral" justice. I think the veil is thin at it is. We'll see if the SC wants to get rid of it entirely.

Posted by: Daniel | Mar 2, 2009 12:16:10 AM

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