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October 3, 2011

SCOTUS back to work, with lots of crime (but not much punishment) on the docket

The buzz about the Supreme Court's new Term, which officially kicks off this morning, is that it could be one of the most consequential in recent memory.  For example, this commentary via the National Review by Jonathan Adler is headlined "Supremely Consequential: The High Court begins a term that could be its most significant in decades," and How Appealing has lots and lots links to SCOTUS preview articles with the same theme.

This preview piece from Adam Liptak at the New York Times carries the headlined "In New Term, Supreme Court Shifts Focus to Crime and First Amendment," and here are passages explaining the crime part of the focus:

The Supreme Court, which has been focused in recent terms on the rights of corporations and on curbing big lawsuits, returns to the bench on Monday with a different agenda.  Now, criminal justice is at the heart of the court’s docket, along with major cases on free speech and religious freedom....

[T]he justices will hear an extraordinary set of cases that together amount to a project that could overhaul almost every part of the criminal justice system.  The court will decide whether the police need a warrant to use advanced technology to track suspects, whether jails may strip-search people arrested for even the most minor offenses, whether defendants have a right to competent lawyers to help them decide whether to plead guilty, when eyewitness evidence may be used at trial, and what should happen when prosecutors withhold evidence.

“The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end,” said Eric M. Freedman, a law professor at Hofstra University....

[T]he justices are focused on criminal cases, especially ones concerning the Fourth Amendment’s protections against unreasonable searches and the Sixth Amendment’s guarantee of a fair trial.

In United States v. Jones, No. 10-1259, the justices will consider whether the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time.  Some appeals court judges have said that such surveillance put them in mind of George Orwell’s novel “1984.”  Prosecutors say that electronic enhancement of the ability of the police to stake out and track suspects raises no constitutional concerns.  A second Fourth Amendment case, Florence v. Board of Freeholders, No. 10-945, asks whether people arrested and held for minor offenses may be routinely strip-searched.

The court will also consider, in Maples v. Thomas, No. 10-63, whether a mix-up in the mailroom of a big New York law firm should mean that a death row inmate in Alabama must lose an opportunity to appeal a decision against him.

In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel.  A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.

The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974.   Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions.  The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.

And the justices will return to a subject that sharply divided them in last term’s Connick v. Thompson case, which threw out a $14 million jury award to a former death row inmate who was cleared after prosecutorial withholding of evidence in New Orleans came to light. The new case, Smith v. Cain, No. 10-8145, also comes from New Orleans and concerns similar claims of prosecutorial misconduct.

For sentencing fans — who already know well that any new rulings about counsel and plea processes are far more important and consequential than any criminal trial doctrines — the Lafler and Frye cases are the big ones to watch going into this new Term.  

That said, compared to some other recent Terms which started with obvious blockbusters (e.g., Graham in OT 2009, Plata in OT 2010), I am yet to see too much on the docket for sentencing fans to get worked up about.  That could change, of course, with grants through the Term.  And, as is often the case, there may be some sentencing sleepers lurking.

October 3, 2011 at 09:16 AM | Permalink


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We'll see what happens with Lafler and Frye. Those should be a slam dunk for the state.

Posted by: federalist | Oct 3, 2011 12:52:10 PM

The cases that interest me most are Maples v. Thomas, Lafler v. Cooper, and Missouri v. Frye, all of which address the extent to which serious criminal consequences should flow from defense counsel errors that arguably amount to per se ineffective assistance of counsel. Counsel have clear legal duties not to blow material deadlines and to pass along offers of settlement to clients, but sometimes this doesn't happen. These cases test how far a basicaly adversary system that also paradoxically guarantees a right to EFFECTIVE assistance of counsel, not just to have counsel, can go in punishing a client for a non-strategic mistaken by a lawyer in violation of the lawyer's ethical duties.

Advising a client to reject a plea is one thing; this is very unlikely to be unconstitutional if ever because it is a judgment call that goes to trial strategy. But, not informing a client of a favorable plea deal is a per se violation of professional ethics that is solely the fault of the criminal defense lawyer, as it the error made in Maples v. Thomas, even though that was more squarely a case of negligence.

The better rule in both of those cases (and they are surely cases of habeas corpus review because defense attoney conduct can be challenged only on collateral attack, not on direct review, imposing a penalty on clients for not trying to get their lawyers to behave), is that the proper court system sanction is to punish the lawyer, rather than to punish the client and that it is improper to do otherwise in a system where there is a constitutional right to effective assistance of counsel.

Posted by: ohwilleke | Oct 3, 2011 7:13:12 PM

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