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April 17, 2009

Some notable cert petitions to watch

After another mid-season break, the Supreme Court start the always exciting final stretch of the Term with a cert conference today.  Though we may not hear the results until Monday, the folks at SCOTUSblog in this post spotlight these two notable cases for criminal justice fans that have a good chance of becoming merits cases in the fall:

Docket: 08-769
Title: United States v. Stevens
Issue: Is 18 U.S.C. 48, on depictions of  animal cruelty, facially invalid under the Free Speech Clause of the First Amendment?

Docket: 08-833
Title:  Oliver v. Quarterman
Issue:  Does juror consultation of the Bible during sentencing deliberations  deprive a defendant of Sixth Amendment rights and what standard of proof should apply in evaluating the possible prejudice to the defendant?

In addition, I believe this cert conference also has at least one crack retroactivity petition and a few other federal sentencing cases that could possibly get the Justices' attention.

April 17, 2009 at 10:16 AM | Permalink


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Oliver v. Quarterman

I have a feeling that the reaction from the right would be a little different if it were a Quaran instead of a Bible. Just a feeling ...

Posted by: . | Apr 17, 2009 10:46:53 AM

I don't see either of these being granted. Perhaps Stevens because of the court's current antipathy towards facial challenge, but even here I would think they would wait for a split.

The sentencing case as has been discussed before here I don't see as having any merit whatsoever. By the time jurors reach the ultimate question of whether the aggrevators outweight mitigators they are no longer dealing with law.

Posted by: Soronel Haetir | Apr 17, 2009 10:56:00 AM

Plus, isn't the Bible case on habeas? AEDPA would seem to foreclose relief.

Posted by: federalist | Apr 17, 2009 10:58:12 AM

Soronel Haetir wrote: "By the time jurors reach the ultimate question of whether the aggrevators outweight mitigators they are no longer dealing with law."

This is incorrect. Law and evidence control punishment, which is why the State is allowed to disqualify the nearly half the population who state that their moral principles would not allow them to kill for the state. And not all states ask whether aggravators outweigh mitigators.

But, most importantly, your statement is incoherent. If a law requires a jury to weigh aggravators and mitigators, then they are dealing with the law. The Bible has nothing to say about that. Resorting to what the Bible states should be done with a person found guilty of murder rather than the law is ... lawless.

(The irony in all this is that you just know the jury was composed probably entirely of Christians resorting entirely to the Old Testament. Nevermind the man in the New Testament executed by the Roman State!)

Posted by: DK | Apr 18, 2009 12:40:16 AM


As far as I am aware the typical process is that once the aggrevators and mitigators have been determined, a process governed by law it is up to each juror to determine what, if any weight to give those factors. Unless my understanding on that process is entirely incorrect it seems like the quintessential problem that law is not equipped to deal with.

But we've also had that particular discussion at least once so re-openning it is unlikely to change any minds.

Posted by: Soronel Haetir | Apr 18, 2009 1:09:42 AM


Your understanding of the process is correct only in some states. Some states--importantly, including Texas--are not "weighing" states at all. But, most importantly, your position allows the State to exclude from hearing the case and sitting in judgment all Christians who believe the Bible prohibits them from sentencing a man to death while allowing on to the jury all Christians who believe it compels them to sentence a man to death. In other words, by the time the Bible enters the deliberations, everybody with a merciful religious interpretation of that book has already been excluded. The remaining jurors--those who make it on the jury and deliberate--will necessarily believe it supports a death sentence. This is grossly unfair and there is no way to defend it.

Posted by: DK | Apr 18, 2009 12:31:35 PM


I have serious problems with the death qualified jury. I just see that as a different issue that's not particularly on point.

Posted by: Soronel Haetir | Apr 18, 2009 12:42:26 PM

DK-- Your hyberbole undercuts your point. No one who said they believed the death penalty was compelled for any murder would make it on a jury, either.

Posted by: Jay | Apr 18, 2009 7:03:45 PM


The hyperbole is slight. First, the jurors in this case did view it as compelling the result, as do most, if you give it any thought. When one consults one's Holy Book in attempting to find an answer to a particular question (e.g., what shall be done with a murderer?) and discovers in it an answer to the question (e.g., he shall be put to death), one usually does view an answer from such an authoritative source (God) as "compelled." Second, even disregarding that, the point remains that jurors who interpret their Holy Book as issuing an injunction against killing other people are systematically excluded from being on the jury. Thus, whether or not the remainder feel "compelled" by their Holy Book, they at least believe it permitted. The result--gross unfairness and injustice--is the same.

Posted by: DK | Apr 19, 2009 1:23:15 PM

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