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February 25, 2013

Big SCOTUS Monday for fans of intricate federal criminal procedure issues

It is always a bit of a challenge to get the legal blood flowing on a mid-winter Monday (especially if you are, like me, groggy from a late-Sunday-night family Oscar gathering in which you came in last in your pick pool).   But anyone for whom complex issues of federal criminal procedure get you excited, the Supreme Court made Monday a day of near non-stop excitement.  Specifically, in addition to oral arguments in two complicated habeas cases, the Justices also granted cert on two new complicated criminal procedure issues. 

SCOTUSblog, of course, has all the highlights, including links in this post to the transcripts from today's oral argument in McQuiggin v. Perkins and Trevino v. Thaler.  In addition, this lengthy post by Lyle Denniston provides a detailed account of the two new criminal cases on the SCOTUS docket and some other notable morning action.  Here are highlights from that post:

The Supreme Court agreed on Monday to try to clarify further when the rights of an accused are violated because of faulty advice from a defense lawyer about a plea bargain, and separately took on a case testing the tactics prosecutors may use to counter a claim that the accused lacks the mental capacity to commit a crime.  Both cases will be heard and decided at the Court’s next Term, starting in October....

The two newly granted cases are Burt v. Titlow (12-414) and Kansas v. Cheever (12-609).  In both cases, the issues are raised by state officials, protesting lower court rulings that favored the rights of the defendants.

The Burt case involves a Troy, Michigan, woman, Vonlee Nicole Titlow, who was convicted of second-degree murder for the suffocation of her uncle, Donald Rogers, in August 2000.  While she was being held in jail after she had pleaded guilty under a plea bargain, but before she was sentenced, a sheriff’s deputy told her she should not have pleaded guilty if she believed she was innocent.

Titlow got a new attorney and claimed innocence, and the lawyer told her to withdraw her guilty plea, thus nullifying the plea bargain.  She was facing a sentence of seven to fifteen years on a manslaughter charge, and the attorney said that was too long.  Titlow was then tried on the more serious charge of murder, and was convicted of second-degree murder.  She was then sentenced to twenty to forty years in prison.

The Sixth Circuit Court ruled that her Sixth Amendment right had been violated by the attorney’s advice to withdraw the guilty plea, an action which led to her receiving the longer prison sentence for murder.   That is the issue that state officials challenged in their petition to the Supreme Court.  The key issue is the proof that must be offered to show that the accused would have accepted the offer if the advice from the defense lawyer had not been faulty.  The case basically turns on the scope of two Supreme Court rulings last year enhancing the rights of the accused in the plea-bargaining context — Lafler v. Cooper and Missouri v. Frye.

In the Cheever case, Kansas officials raised the issue of what prosecutors may do when an accused individual puts before a jury a defense of mental incapacity to commit a crime.  The state contended that prosecutors should be allowed to counter that claim by presenting the testimony of a psychiatrist who had examined the individual’s mental health, under court order....

[Some] comments by Justices Sotomayor and Breyer on a Texas prosecutor’s racial remarks in a drug conspiracy trial came as the Court denied review in Calhoun v. United States (docket 12-6142).   The two Justices did not dissent from that denial, but said they were commenting “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutors’ racially charged remark.  It should not.”

February 25, 2013 at 06:01 PM | Permalink


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I think it's interesting to compare Sotomayor's reaction to Buck v. Thaler and this case. In Buck, a far less egregious case (and one where the constitutional rights of the defendant were not violate), Sotomayor wanted the federal courts to intervene in a state court case--but when a federal case comes along with a far more egregious violation, Sotomayor is willing to squawk, but do nothing about the case.

Posted by: federalist | Feb 26, 2013 7:28:00 AM


While you are right that the prosecutorial comments in Buck v. Thaler were less openly racially tinged than those in this case, I don't think it's any particular fealty to the federal prosecutors motivating Sotomayor's different votes. In Buck, the case was in the federal habeas review phase; that case involved the death penalty. Calhoun's case, on the other hand, was on petition for writ in the direct appeal phase; while the 15-year sentence Calhoun now faces is very serious, it is not comparable practically (or in some ways, legally) to a death sentence.

My gut theory is that Sotomayor wrote the statement in Calhoun, in part, as an aid to the defendant in securing a new trial on 2255--not only did she call out the prosecutor for his awful question, but she called out the defense attorney for failing to object at trial and for, apparently, failing to properly frame the issue on appeal to the 5th Circuit and in the petition for cert. Perhaps his new attorney (assuming he hires one or the court sees fit to appoint him one) will be able to frame the Strickland issue more effectively.

Posted by: AFPD | Feb 26, 2013 10:03:20 AM

Perhaps so, AFPD, but the "death is different" rationale really doesn't fly here, as Buck's rights were not violated at all--the State merely elicited testimony that the defendant had already introduced. Moreover, Sotomayor was willing to rip open a settled habeas judgment on the theory that the State of Texas was somehow obligated to waive procedural protections available to it in the Buck case because it had done so in other cases with superficial similarity. To call this novel is to do injustice to it.

Additionally, Buck doesn't appear to have objected to the testimony, nor does he appear to have pushed the issue in his initial state appeal or initial post-conviction relief.

So the essence of the cases really aren't all that different.

Of course, this is the sort of nonsense we should all come to expect from Justice Sotomayor. One would think that a decent amount of modesty would induce her to keep her yap shut about racial comments. After all, she was the one who said that a wise Latina should do a better job judging than a white male. (Of course, none of the news reports will point out the hypocrisy of Justice Sotomayor.)

Posted by: federalist | Feb 26, 2013 10:38:31 PM

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