« Intriguing controversy over victim involvement in Whitey Bulger sentencing | Main | "Three myths about conservatives and criminal justice" ... which are really stories about (slowly) changing modern realities »

October 16, 2013

Two notable SCOTUS criminal procedure cases up for argument today

The government shutdown is not preventing the Supreme Court from doing its usual work, and today that work includes hearing oral argument in two criminal cases: Kansas v. Cheever, a state death penalty case concerning Fifth Amendment issues and Kaley v. United States, a federal case concerning whether and when an indicted defendant's assets can be frozen.  As usual, SCOTUSblog has terrific argument previews, and here are links and excerpts:

"Court to consider Fifth Amendment and expert testimony in capital case":

The Fifth Amendment to the Constitution provides that no one in a criminal case can “be compelled… to be a witness against himself.”   In the case of death penalty defendant Scott Cheever, that means that the state obviously cannot require him to testify in his capital murder trial. But what if Cheever’s defense includes the argument that the murder could not have been premeditated because he was intoxicated at the time of the murder? Can the state rebut that defense by introducing testimony from the psychiatrist who conducted a court-ordered examination of Cheever?  That is the question before the Court in Kansas v. Cheever.

"Court to consider scope of challenges to asset freezes":

Kaley v. United States... before the Court arises from the (seemingly increasingly) common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer.  The question is whether the defendant can challenge the grand jury’s determination that there is probable cause to indict him, when the indictment is the basis for the freeze.  At first blush, that question sounds fairly dry.  But criminal forfeitures are a key part of the federal government’s efforts to prosecute crime -- including because, by limiting a defendant’s ability to fight the charges against him, the pretrial restraining orders enhance the government’s ability to get either a guilty plea or a guilty verdict.   As such, a pro-defendant ruling in the case could shift the balance of power in many criminal proceedings back away from the federal government.  Underscoring the significance of the case is the fact that Michael Dreeben, the Deputy Solicitor General with primary responsibility for criminal cases at the Court, will argue on behalf of the United States.

For reasons suggested in these previews, I suspect the Cheever case will generally get more public attention even though the Kaley case is plainly far more consequential and important for the modern administration of criminal justice systems.

UPDATE:  thanks to SCOTUSblog, I see now that the transcript from oral argument in Kaley v. United States is now here at this link and the oral argument transcript in Kansas v. Cheever is now here at this link.

October 16, 2013 at 09:40 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Two notable SCOTUS criminal procedure cases up for argument today:


I haven't read the transcript for Kaley yet. With Cheever, it's a bizarre example of oral arguments sounding really bad compared to the brief. Granted, it's likely that a Court granting to take this case is going to reverse (Justice Sotomayor suggested as much during argument) and it seems their best argument is something best addressed on remand, but I felt nowhere near as persuaded as I was during the briefs.

Their distinction of affirmative defenses vs. substantive evidence has the luxury of being a fairly workable rule and can help cabin the scope of the government's theory, but isn't really supported by anything on this subject. Really, what the case comes down to (as Justice Alito seemed to point out) is the potentially lawfully obtained psychiatric report for federal purposes that would have been valid in a federal case.

Posted by: Erik M | Oct 16, 2013 7:46:19 PM

LOL they sure said a mouthfull here!

"At first blush, that question sounds fairly dry. But criminal forfeitures are a key part of the federal government’s efforts to prosecute crime -- including because, by limiting a defendant’s ability to fight the charges against him, the pretrial restraining orders enhance the government’s ability to get either a guilty plea or a guilty verdict."

Can we all say it together. "BLACKMAIL IS A WONDERFUL THING!"

Sorry in my book a blackmailer is a criminal and liable for extreme punishment when caught in the act. You know a BULLET to the head! no matter who the fuck is doing it. Including our govt fucktards!

Posted by: rodsmith | Oct 16, 2013 11:17:58 PM

rodsmith: Yeah, I can see the argument that enhancing the government's ability to get a guilty plea or verdict being an acceptable cost for some other valid purpose, but I can't believe its wise to argue that it's a feature not a bug.

Posted by: Erik M | Oct 17, 2013 8:00:00 AM

sorry Erika but when 95% of all criminal convictions happen via plea bargain and then you had them this hammer. Yes it IS a feature!

It's how they got to that 95% point in the first place using something the USSC only barely allowed becasue it was to be used in a limited and extremely specific situations.

Posted by: rodsmith | Oct 17, 2013 12:42:50 PM

Well, I wasn't saying that it wasn't a feature, just that it isn't wise to argue it's a feature. In fact, it's usually denied that anyone wants the system like this. Otherwise, it would undermine the notion that pleas are entered into knowingly, intelligently, and voluntarily. I'm assuming you had a typo when referring to my name?

Anyway, I read the transcript for Kaley. I think they got bogged down in what is essentially a red herring about overruling a Grand Jury. More importantly, the case seems to be extremely narrow. They agree on the broader point that funds not traceable to the crime can't be impounded (and there's a right to challenge any seizure of those funds), so this is about showing that, although the funds are traceable to specific actions, those actions are not criminal. Since there's only probable cause, that's a hard standard even if done adversarily. More important, it looks like, if the petitioner prevails, they will prevail under the federal statute under the principle of constitutional avoidance. Because of this, it won't even affect state court proceedings.

Posted by: Erik M | Oct 18, 2013 7:23:44 PM

Ouch sorry Erik! Usually here i'm arguing with a hate filled women named Erika! Didn't mean to confuse you with her.

Personally i think the ideal that items suddenly can become criminals is right up there with the criminal stupidity "no expost laws" is now no expost except in civil law and sex crimes!

Posted by: rodsmith | Oct 19, 2013 10:58:11 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB