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December 1, 2014
Justices issue cert statements expressing concerns about procedural issues in criminal appeals
Today's order list from the Supreme Court, in addition to including a few notable denials of cert in criminal cases as noted by Lyle Denniston in this new SCOTUSblog post, concluded with two notable statements by a few Justices explaining why they voted to deny certiorari review in a couple of criminal cases even though they were troubled by procedural issues arising in efforts by defendants to raise various appellate issues.
This statement in Joseph v. United States should be of special interest to federal practitioners. In it, Justices Kennedy and Sotomayor indicated they voted to grant certiorari, while Justice Kagan (joined by Justices Ginsburg and Breyer) explained how the Eleventh Circuit's application of rules about raising new claims in reply brief suggested that "criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between the Eleventh Circuit and every other court of appeals." Justice Kagan then, not too subtly, suggested that she was holding on granting cert in order to give the Eleventh Circuit a chance in the first instance to " clean up intra-circuit divisions" before SCOTUS took up the matter.
This statement in Redd v. Chappell should be of special interest to capital punishment followers, especially in California. In it, Justice Sotomayor (joined by Justice Breyer) laments that nearly two decades "after petitioner was first sentenced to death, and more than four years after his conviction and sentence were affirmed on direct appeal, petitioner has not received counsel to represent him in his state habeas corpus proceedings — counsel to which he is entitled as a matter of state law." Justice Sotomayor explains she is did not vote to grant cert in part because "the State represents that state habeas counsel will be appointed for petitioner in due course.” When counsel is appointed is obviously real important to this petitioner; even more important to lots of others is whether this statement is something of a signal concerning the on-going federal court litigation in Jones v. Chappell over the constitutional problems posed by seemingly arbitrary delays in appellate review for condemned California killer.
December 1, 2014 at 11:18 AM | Permalink
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Comments
I appreciate the statements -- I have been keeping track of orders for a few years now via their website & the last couple months seem to have been a tad atypically busy -- but would wish one justice at least would write a statement regarding lethal injection drugs or the like since repeatedly multiple justices have shown by votes concern about the matter.
Posted by: Joe | Dec 1, 2014 11:46:35 AM
I would thimk that this!
"This statement in Redd v. Chappell should be of special interest to capital punishment followers, especially in California. In it, Justice Sotomayor (joined by Justice Breyer) laments that nearly two decades "after petitioner was first sentenced to death, and more than four years after his conviction and sentence were affirmed on direct appeal, petitioner has not received counsel to represent him in his state habeas corpus proceedings — counsel to which he is entitled as a matter of state law.""
Would mean that legally the defendant has won the issue based on the state's failure to act. Just how long to they think they get to just apppont a fucking lawyer? Sorry FOUR YEARS is just wrong. Absent a showing the failure in on the defendant refusing to work with a lawyer appointed. Sorry the state just lost. AUTOMATICALLY
Posted by: rodsmith | Dec 1, 2014 2:26:39 PM
Rod, why should the State lose because state court judges do not want to let death penalty cases go forward? You seem to be confusing the executive branch with the judicial branch. Additionally, this right is not a constitutional right (see Martinez v. Ryan) but rather something that California grants inmates ex gratia.
In most states, this appointment happens pretty much automatically. The inmate files a pro se petition and counsel is appointed as soon as the court clerk processes the filing or shows the filing to the judge.
Apparently, California does things differently. The simple solution to this problem is for the State Supreme Court to use its oversight authority to remedy the failure of the local courts to do what they should do. If not, the federal courts can find, as suggested in the statement, that this failure to act permits the inmates to bypass the state courts (not necessarily the preferred result for the local prosecutors and State Attorney General, but it at least allows the cases to move forward if the state courts have gone AWOL as it seems that they have).
Posted by: tmm | Dec 2, 2014 10:07:16 AM
tmn
"Rod, why should the State lose because state court judges do not want to let death penalty cases go forward?"
Kind of hard to move forward if one side does not have legal representation. If this is the state's rule that an appeal happens guess what. It's their rule and they have to live with it. Even with a punishment for ignorning it.
in this type of case the easiest punishment for failure to act would seem to be Automatic life without parole for the defendant automatically after 1 year without a lawyer unless it can be shown the failure is with the defendant refusing multiple lawyers.
that way the state now has an automatic punishment for failure to follow their own law.
Posted by: rodsmith | Dec 2, 2014 11:37:22 PM
Of course I also think it should go the other way as well. If you refuse two lawyers. You have to take the next one offered. If you refuse a third time your appeal is dismissed and you move immediately to execution list.
Posted by: rodsmith | Dec 2, 2014 11:39:10 PM
Rod, that is why there is that language in the federal habeas statute about state remedies being unavailable. If the state court judges will not do their job by appointing counsel, file in the federal court where you will get counsel appointed. A judge who can't lawfully find in favor of the defendant should not be able to give a defendant a back-door win by refusing to take any action.
On your alternative, a defendant has no constitutional right to refuse the first appointed counsel, and he should not have a statutory right. His option should be to accept the first appointed counsel or represent himself (absent very unusual situations where there is a real conflict and not just a desire by the inmate for a second opinion). I regularly deal with pro se briefs on appeal and courts in my state do not have a particular problem with an inmate choosing to represent himself on appeal (of course, there are cases when the pro se inmate completely screws up in complying with the rules and his case is dismissed on procedural grounds, but that is the risk that the inmate takes in rejecting appointed counsel).
Posted by: tmm | Dec 3, 2014 9:58:22 AM
right meanwhile FOUR years has went by. sorry that's a non-starter. Better to put a hard timeline in place. Yes I know all our courts and statehouses are too stupid or lazy to do this. But it does work.
as for this!
"I regularly deal with pro se briefs on appeal and courts in my state do not have a particular problem with an inmate choosing to represent himself on appeal (of course, there are cases when the pro se inmate completely screws up in complying with the rules and his case is dismissed on procedural grounds,"
yes i'm sure the state loves it when a defendant defends himself. Knowing they can now fuck him but good using a set of fuckup asinine rules nbobody but them know or understand.
sorry but that's a non'starter as well. As far as i'm concerned if they can't hand the rules to an average citizen that can read and understand them. rules are DONE.
same should apply to any law as well.
sorry but they are OUR rules and laws. If we can't understand and use them. Why should we be bound to 0bey them?
Posted by: rodsmith | Dec 3, 2014 8:00:12 PM
