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January 13, 2017

Supreme Court grants cert on four new criminal cases and a dozen others

After a seemingly long quiet period of avoiding taking on too many new cases, the Supreme Court this afternoon issued this order list which grants cert on 16(!) new cases.  I believe these four cases from the list are the only criminal ones, with links to case pages and descriptions via SCOTUSblog:

WEAVER, KENTEL M. V. MASSACHUSETTS: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

MASLENJAK, DIVNA V. UNITED STATES: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

McWILLIAMS, JAMES E. V. DUNN, COMM'R, AL DOC, ET AL.:  Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Most of these cases look intricate, and maybe Maslenjak could even be viewed as a kind of sentencing case. But, on first look, I see no brewing blockbusters.

UPDATE: Over at Crime & Consequences here, Kent Scheidegger shares some initial reactions to this quartet of new SCOTUS criminal cases.

January 13, 2017 at 03:46 PM | Permalink


WEAVER is an easy case for me, prejudiced is assumed.
MASLENJAK is an easy case for me, immaterial statements are immaterial.
DAVILA hurts my head and I have no opinion on it.

McWILLIAMS is the funky case. What I don't understand...and maybe some legal eagle can help me...is that the question the court asks has already been answered in the affirmative. In other words, McWILLIAMS did in fact have a mental health expert independent of the prosecution so why is that question even relevant? I don't get it.

Posted by: Daniel | Jan 13, 2017 5:37:30 PM

The tricky bit in MASLENJAK is that her statements were in fact material, the immateriality issue arose from the jury instructions rather than what she said to INS. Given that I could well see harmless error analysis not saving her.

Posted by: Soronel Haetir | Jan 13, 2017 6:36:33 PM

Whether an error is structural, the result is a damage to the defendant, state punishment. In the case of a harmless error, there is no proximate causation of damage by lawyer misconduct. In the case of a harmful error, there is proximate causation of damage to the defendant. Are those three assertions true?

Is inadequacy of counsel a synonym for lawyer malpractice? Is it below professional standards of due care to provide an inadequate defense in a criminal trial? I would like defense lawyers to address that question. If they answer, not necessarily, I would like to hear how to differentiate these two failures.

If inadequacy of counsel is a synonym for lawyer malpractice, is the declaration of inadequate representation by an appellate court, a per se tort?

If harmful error or structural error are found, and an appellate court declares inadequacy of counsel, can there be any unforeseen intervening cause, that can interrupt the chain of causation of the damage to the defendant?

If inadequacy of counsel can be shown to have caused damage to the constitutional rights of a criminal defendant, is there any other defense to compensation of the defendant for the carelessness of defense counsel? Should the original judge be held accountable for allowing inadequacy of representation? Should, at least, disciplinary measures be taken against that original judge?

Posted by: David Behar | Jan 13, 2017 6:53:56 PM

Doug, I have only skimmed the summary of the argument in the Weaver case and I am puzzled. Why is the Petitioner even talking about Strickland v Washington in his petition? I agree with Daniel, if the defendant shows structural error, prejudice is presumed.

I would be arguing U.S. v Cronic, not Strickland. Cronic was decided on the same day as Strickland to deal with situations in which the ineffectiveness of counsel constituted a "breakdown of the adversary system." I.E. is structural error. There is even a sentence in Cronic that seems to me to answer the question in Weaver. "There are some circumstances, however, where the cost of litigating the issue (of prejudice) is not justified." (or something close to that.)

I cite Cronic frequently, for example, when a lawyer does absolutely nothing on behalf of the def at sentencing. I just argued this issue to a judge in a post-conviction settling two weeks ago. The two examples I always give when talking about a defendant automatically winning in the context of structural error are U.S. v Geders and Brooks v Tennessee. Those are the cases where the judge ordered the defense attorney not to speak to his client during the overnight recess and a state statute required the def to testify first, if he chooses to testify. The bottom line is we just don't do stuff like that , so the def gets a new trial.

I will be most interested in following these cases, because quite often judges rule that I haven't proven prejudice when my post conviction motion is grounded in a Cronic claim.


Posted by: bruce cunningham | Jan 15, 2017 1:00:57 AM

There are two other cases I am working on that may be affected by Weaver.

The first is a sex offense wit a child trial. The state made a motion for the child to be allowed to testify out of the presence of the def. the statute provides for the child to be in another room and do video testimony. In my case the judge ordered the defendant to leave the courtroom !! Who knows what the jury thought was the reason the def was no longer there I am arguing structural error and IAC of counsel for not objecting.

The second is a murder case and attorney X was appointed. Def moves pro we to remove attorney because he had represented the person who murdered the defendant's

father. Motion denied!

Posted by: Bruce Cunningham | Jan 15, 2017 9:54:08 AM

Bruce. In either of your cases, do you believe these errors resulted in a mistaken verdict? Were your clients falsely accused and falsely convicted?

Because the number of rules approaches infinity, the number of violations and procedural errors approaches infinity in every trial.

If the verdicts were not mistaken, I consider your objections to be an attempt to commit fraud against the court. The fraud is to make a false accusation that the verdict is wrong, and to make the profit of your salary.

Every word of the trial has procedural and substantive problems. The trial itself is a massive violation of the Establishment Clause. It was conducted using the false methods of a church, inside a location that looks like a church, in front of a judge that dresses and speaks like a priest. It followed the quackery disputation method to arrive at a conclusion, a method derived from the church.

All the lawyer parties in the trial, the judge and the two legal teams are all outlaws and disqualified to conduct a trial. Can massive career criminals conduct a trial? If you give me an hour with the open files of your laptop, I can find enough to charge you with hundreds of crimes, and send you to prison for 1000 years. How do I know? It is guaranteed you will have unwittingly downloaded copyrighted material without written permission or payment of royalties. Each strict liability item carries a criminal penalty of 5 years and $250,000 fine, plus costs, plus civil damages up to $30,000. If you sent such material to another, we add distribution. If you allow me a half hour with your tax return, access to the event data recorder box in your car made in the past 5 years, a half an hour talking to your spouse, forget it. Has defense appellate lawyer ever done that?

If you are granted a second trial for your client, it will contain as many errors as the first.

Off and then on the subject, did you ever read my story in the Comments of my Facebook friend, the defense appellate lawyer from Egypt? If you are on Facebook, message me in two weeks, and I can connect you two.

I cannot take messages for another two weeks. I have been banned from Facebook yet again. One may not criticize legal bullying by homosexuals on Facebook. Did any defense appellate lawyer haul in the Facebook and internet utterances of any party, lawyer or otherwise into an appellate brief? That is another source of massive rule breaking, and prejudicial utterance.

Posted by: David Behar | Jan 15, 2017 2:24:09 PM

What will be interesting is the fact is one of two things:

1. Donald Trump will nominate a non-Scalia type originalist (conservative), whom will get nominated with bi-partisan support, whom will then side with the creativist (liberal) wing of the issues >90% of the time, effectively transforming the court to a progressive position. In this case all cases will result in a 5-4 progressive direction.

2. Donald Trump will nominate a Scalia-type originalist, whom will not be confirmed by a current 60-vote threshhold, and the court will rule 4-4 at least 75% of the time, including the four cases presented by Prof. Berman here, which will kick back the decisions to their respective jurisdictions, and potentially remaining split in different areas of the country.

3. Donald Trump will nominate a Scalia-type originalist, and Mitch McConnell and the GOP reduces the threshold from 60 to 50 + Vice Presidential tiebreaker, effectively maintaining the court as it was prior to Scalia's suspicious death, and the court will remain (mostly) an originalist court, with occasional defection of Kennedy or Roberts, and the originalist (conservative) position will prevail about 75% of the time.


Posted by: Eric Knight | Jan 15, 2017 2:53:11 PM

Sorry, previous post I meant one of THREE possibilities.

Posted by: Eric Knight | Jan 15, 2017 2:53:49 PM

To rule in favor of Davilla would be a significant expansion of Martinez. At least as expressed in Martinez, if a state postpones ineffective assistance of trial counsel claims to some form of post-appeal review, that post-appeal review is functionally the equivalent of direct appeal. Under prior Supreme Court decisions, if a state allows inmates an opportunity to complain about "appellate" counsel in a state forum, the inmate must use that forum. If ineffective assistance in reviewing complaints about first-level appellate counsel is also cause (because it is the first opportunity to complain about first-level appellate counsel), then there is no logical stopping point (a third level of review looking at ineffective assistance of these forms of collateral review counsel would also be the first opportunity to raise those claims, etc.).

Weaver is a difficult situation. I don't think Chronic applies because there is not a complete breakdown of the defense function. Counsel is still cross-examining witnesses, making objections, and making arguments. They are just missing some types of arguments (e.g. a Batson objection). If overlooking one objection is more of a Strickland situation -- something less than a complete breakdown of the adversarial system -- the question becomes whether structural error presumes a reasonable probability a different result or whether structural error is merely a direct appeal concept that does not apply to ineffective assistance of counsel claims. Some forms of structural error are structural error not because of the impact on outcomes but to protect other values (e.g. invalid waiver of jury trial). Because IAC is designed to protect a different constitutional value -- the right to counsel -- something that might be entitled to relief on direct appeal may not merit relief on collateral review.

Posted by: tmm | Jan 15, 2017 8:35:40 PM

I understood the whole point of a structural error is that you didn't have to show prejudice. I thought it was completely separate from Strickland. I guess I'll have to click on the link to find out what they're talking about, but I'm confused what kind of structural error they're even talking about.

Posted by: Erik M | Jan 15, 2017 11:50:48 PM

I have suggested that tort liability and other liability deters an entire enterprise, and not just the defendant. I may seek to fund a lawyer malpractice claim against a defense lawyer whose representation has been declared to be inadequate, especially at the Supreme Court level.

Posted by: David Behar | Jan 16, 2017 12:12:08 AM

Regarding Weaver, I too am not sure what the structural error is supposed to be.

However, on a Mass. law specific issue where the law recognizes that pressure from non-police questioners can render a statement by a juvenile involuntary I am amazed that anyone would think the described circumstances (a teen being confronted by a parent) is not enough.

Posted by: Soronel Haetir | Jan 16, 2017 1:42:30 AM

Oh wait, never mind. The structural error is that the court was closed to the public during jury selection. Made more complicated by that claim being procedurally waived, thus transforming it into one of IAC. And that is why Strickland is being used.

I do see this being somewhere between a normal structural error claim (say a preserved Batson claim that the prosecution loses) and the typical IAC claim. I'm really not sure this should result in automatic reversal the way a preserved claim would And like tmm says Weaver is not a case that presents a complete breakdown of the adversarial process.

Posted by: Soronel Haetir | Jan 16, 2017 2:00:54 AM

Given that, to me it's not structural error. It's whether the defense attorney was ineffective in failing to preserve the structural error. That certainly makes it a weird hybrid. Certainly, prejudice is there. If he had preserved it, there would be presumed prejudice and a reversal. On the other hand, it pretty much means the issue can't be forfeited and there's no incentive to preserve it.

Given my cynicism of appellate courts, I think the tendency will be to find a way to forfeit the issue. However, this isn't a case where a contemporaneous objection would do much. At most, it would have saved a little bit of time because they could go for a mistrial right away. There's no real other way to undo the error, though, so the timing of it is less important. I guess you don't want them to get a free play like an offsides in Football (a not guilty is great but a do-over otherwise).

Posted by: Erik M | Jan 16, 2017 11:41:36 AM

"Given that, to me it's not structural error. It's whether the defense attorney was ineffective in failing to preserve the structural error."

This is gobbledegook. Either something is structural error or it is not. If the error is truly structural I don't see how it makes any sense to require anyone to object to it. In other words, what the briefs are really doing is debating whether the right to a public trial is truly a structural error or not under the guise of arguing about IAC.

I take it as a given that there are some errors that are so profound and so obvious that neither party needs to object to them in order to require a new trial. We can argue about which errors are members of that subset of errors but the fact that such a subset of errors exists is to me non-debatable. To debate it is to take the form of error preservation and elevate it over all substance.

Posted by: Daniel | Jan 16, 2017 1:24:27 PM

Generally speaking -- whether reviewed as structural error or not -- appellate courts require objection at trial on the theory that the parties have a responsibility to point out to the trial court that it is about to make a mistake so that the trial court can make the right decision. Parties are not allowed to "sandbag" potential claims of error in the hopes of a favorable jury result. In Weaver, if defense counsel had objected when the trial court proposed to close the courtroom, the trial judge might have reconsidered that proposal and there would have been no issue on appeal (or collateral review).

As noted above, some issues that are considered structural error relate to other values in our legal system -- Batson objections, closing the courtrooms, waiver of jury trial. They do not necessarily impact the correctness of the results. For example, under the Strickland standard, the fact that the case was a bench trial rather than a jury trial would not alter the prejudice analysis on (for example) the failure to present an alibi witness. However, if Weaver were decided in favor of the inmate, the fact that counsel gave bad advice to waive a jury trial might qualify as automatic Strickland prejudice or the failure to raise a meritorious Batson challenge would qualify as automatic Strickland prejudice. (In my state, both the federal courts and the state courts have rejected the theory that failure to make a Batson challenge qualifies as Strickland prejudice on the theory that the "replacement" juror was a qualified juror and -- given that Strickland prejudice requires ignoring the specific idiosyncracies of the juror -- there is no reason to believe that the result of the trial would have been different.)

Posted by: tmm | Jan 17, 2017 10:54:50 AM

I think a Batson challenge would probably be the clearest example. Suppose a clear Batson issue wasn't objected to. If the defense attorney had objected, he would have prevailed. Does he have to show prejudice for failing to object? What would he specifically show - that the outcome of the trial would have been different or something else?

Posted by: Erik M | Jan 17, 2017 4:38:41 PM

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