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November 8, 2011

Lots of notable new SCOTUS criminal justice action

A busy teaching day has prevented me from blogging about today's busy criminal justice day at the Supreme Court.  Fortunately, I can crib highlights from reporting by SCOTUSblog on three events of note:

1.  A unanimous AEDPA ruling for the state: "The first opinion of the Term is in Greene v. Fisher.  Justice Scalia wrote the opinion for a unanimous Court, which held that for purposes of the Antiterrorism and Effective Death Penalty Act, 'clearly established federal law' is limited to the Supreme Court’s decisions 'as of the time of the relevant state-court adjudication on the merits.'” 

2.  A hint during oral argument in US v. Jones (transcript here) that GPS tracking might require a warrant: "Midway through a federal government lawyer’s plea Tuesday for unrestricted power for police to use new GPS technology to track cars and trucks on public roads, Chief Justice John G. Roberts, Jr., sketched out just how the Court may well restrict the practice. Despite an unqualified prior statement by the Court that one moving about in public has absolutely no right to expect privacy, the Chief Justice said that such a right might exist, after all, and it could trump the fact that the movement was in public. If the Court can find a way to say just that, police almost certainly would have to get a warrant before using GPS to monitor where suspects go."

3. A suggestion during oral argument in Smith v. Cain (transcript here) that SCOTUS that sometimes prosecutors should stop defending hinky convictions: "There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles."

I am not sure if any today's SCOTUS criminal justice action has huge bite for sentencing fans, although I am going to read the Jones transcript to see if any of the Fourth Amendment GPS debate could have implications for the use of GPS to keep track of persons under criminal justice supervision following a conviction.

November 8, 2011 at 05:39 PM | Permalink


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Criminal justice supervision--probably not an issue. They can come into a parolee's house under a relatively recent SCOTUS case originating out of the Ninth authored by Rehnquist, I believe.

Smith v. Cain seems like a walk in the park for the defendant.

The Supreme Court seemed to be leaning towards subjecting the GPS monitoring to the warrant requirement. I don't know how doctrinally sound that would be, but the idea that the cops can track you like that seems problematic.

Posted by: federalist | Nov 8, 2011 6:59:43 PM

As it relates to SCOTUS and sentencing issues, I would point out that Hill v. US (11-5721) was distributed for last week's conference, but no action was taken on it. And today, it was relisted for the Conference of November 22, 2011.

As this blog has posted before, Hill presents the issue of whether the FSA's mandatory minimums should be applied to not-yet-sentenced crack defendants, even if their crime was committed before FSA's enactment. In response to the Defendant's cert petition, the government agreed that cert should be granted.

Also note that at least 5 other cases have now been listed for the conference of November 22, all presenting the same issue as Hill: Hernandez (11-6602), Lewis (11-6464), Hyde (11-6364), Robinson (11-5842), and Dorsey (11-5683).

Posted by: DEJ | Nov 8, 2011 7:17:57 PM

"I am going to read the Jones transcript to see if any of the Fourth Amendment GPS debate could have implications for the use of GPS to keep track of persons under criminal justice supervision following a conviction."

See United States v. Knights, 534 U.S. 112 (2001).

Posted by: Kent Scheidegger | Nov 8, 2011 7:18:12 PM

The argument in Smith was so unusual I had to check the briefs and the lower court opinions to see how a case with such an obvious Brady violation made it to the Supreme Court. The trial court gave only an order from the bench, stating it its entirety:

I am ready to rule in the case. I don’t have to take any time for this.
I have been listening to this for quite a while. I am denying postconviction relief.

Then the Louisiana intermediate appellate court and Louisiana Supreme Court deny Smith's claim without any comment. Something is deeply broken in the Louisiana court system if a Brady violation this strong gets successive summary affirms. And if Smith's case came from anywhere in Louisiana except New Orleans the Supreme Court would never have granted cert. Smith would have to pray his federal habe overcomes the AEDPA deference to the state court proceedings. Sometimes the AEDPA requires deference to some horribly wrong state court proceedings.

Posted by: Paul | Nov 9, 2011 5:16:49 PM

Paul, this really just scratches the surface of the Louisiana state courts' indifference to constitutional claims, especially in postconviction. For one thing, if you lose in the trial court (almost always), your review is generally restricted to taking supervisory "writs" to both the intermediate appellate and the Supreme courts. This procedure is basically like taking cert. to both levels of appellate court, and when they deny, you get no explanation.

This is how so many cases go through the full state system with no real merits analysis (or at least none that produces a reviewable record -- one would like to think the judges at the appellate court consider the merits in chambers before denying cert., although who knows?). This is obviously unlike most other systems where you have a right to at least one real "appeal," with briefing, etc., and thus an expectation of at least a minimally reasoned opinion (even if it's just a paragraph with a cite to an earlier precedent).

In my opinion, deference to the state criminal process in Louisiana is one of the least defensible consequences of AEDPA.

Posted by: Anon | Nov 10, 2011 11:47:18 AM

That AEDPA ruling is brutal. 9-0, and they gratuitously blame the petitioner for his own "predicament." (For failing to seek cert from the USSC on direct review, or to raise an issue in state postconviction review that he had already raised in state direct review -- both decisions that he made pro se, as his right to counsel had expired.)

Message to future criminal defendants: between your arrest and the last state merits decision on a given claim, you had better become a skilled practitioner of constitutional law. Otherwise, even if a new, dispositive decision comes out while your direct review is pending, your unconstitutional conviction will stand, and it will be your own fault. (NB: This applies even if your appointed counsel specifically asked the state courts to apply the new decision. If the State court inexplicably ignores the new decision and doesn't issue a new "merits" decision, you are stuck.)

If the law required this bizarre result, I might have some sympathy. But it didn't. The statutory language and history were subject to multiple interpretations, and I am disheartened that not one Justice seemingly had a problem with choosing this one. I am especially disheartened that not even one Justice would have carved out an exception for when you actually present the new decision to the state courts and they inexplicably ignore it. The supposed GVR solution for that is unnecessary and, more importantly, illusory on several levels: no right to counsel, no guarantee the Court accurately sifts all meritorious claims from its teeming ifp criminal docket, etc.

What a mess.

Posted by: Anon | Nov 10, 2011 12:42:38 PM


I think the AEDPA case could have substantial impact on future sentencing cases, or perhaps even pending/in the pipeline cases. For example, take Blakely. It's not retroactive, so no one gets relief if Blakely comes after finality (even if they raised the issue in the original proceeding as an Apprendi claim). But before this week, I would have assumed that anyone whose conviction became final *after* Blakely should be entitled to federal habeas relief (assuming their sentence actually violated Blakely, and assuming they couldn't get relief in the state courts). But now that does not apply to folks whose last merits ruling in the state courts was based on Apprendi and preceded Blakely, if the state court refuses to issue a new merits ruling specifically with regard to Blakely. And since the last merits decision is often an intermediate state court opinion, and it can take 1-2 years between that and finality, that is a pretty big window of claims that could be in the pipeline (or, more accurately now, circling the drain).

This same dynamic will apply to every new constitutional sentencing decision (that applies to the States).

Just my two cents.

Posted by: Anon2 | Nov 10, 2011 1:15:24 PM

The Smith v. Cain transcript is stunning. The state's case there is so stunningly weak that I too have to really wonder what the hell a prosecutor is doing trying to fight it. This is the kind of case that makes you wonder if Congress needs to reinstate the Reconstruction Era regime because the Louisiana criminal justice system is simply a full on civil rights violation in every single one of its cases and can't be trusted to do the right thing anymore.

Posted by: ohwilleke | Nov 12, 2011 12:23:19 AM

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