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May 25, 2018

A few juicy SCOTUS relists (to temper the guideline-vagueness denials) for sentencing fans

Over at SCOTUSblog, John Elwood continues his yeoman's work via his "Relist Watch" postings which highlight cases that the Supreme Court considered but did not resolve during  recent certiorari review conferences.  In this week's installment of "Relist Watch," we get started with a review of the news, blogged here, that cert was (somewhat surprisingly) denied on oft-relisted vagueness challenges to pre-Booker mandatory application of career-offender guideline.  But thereafter we get the details on some interesting new additions to the relist watch that should intrigue criminal justice fans (with links from the original):

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States.  So long Allen v. United States17-5684; farewell Gates v. United States17-6262; auf Wiedersehen, James v. United States17-6769; adieu, Robinson v. United States17-6877; smell ya later Lester v. United States17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence.  If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released....

Clark v. Louisiana16-9541, is a capital case involving a prisoner convicted of murder in connection with the death of a correctional officer during an attempt to escape from the Louisiana State Penitentiary at Angola.  The case raises four issues, but it’s safe to assume one is the particular focus of the Supreme Court.  Issue number one turns on the fact that Louisiana law requires jurors to “find beyond a reasonable doubt that at least one statutory aggravating circumstance exists,” but does not require the jury to employ that same beyond-a-reasonable-doubt standard applies to making a second determination, whether “the sentence of death should be imposed.”  The second issue is whether the “evolving standards of decency” standard forbids using the death penalty when jurors could not be sure which of several defendants inflicted the blows that caused the victim’s death.  The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going.  The fourth issue may explain why the case has been hanging around the docket since last October, and only recently was released and relisted: Clark alleges that his lawyer conceded his guilt in the aggravated escape during his first trial and only contested whether the death penalty should be imposed.  Clark says he represented himself at his second trial, where he was convicted, solely to prevent his counsel from conceding his guilt against his wishes. Because the court held on May 14 that the Sixth Amendment guarantees a defendant the right to insist that his counsel refrain from admitting guilt, even when counsel’s view is that confessing guilt offers the best chance to avoid the death penalty, I expect they’ll be taking a very close look at this case.

The last four new relists consist of two sets of related criminal cases arising out of states whose names begin with the letter O. And all four involve the court’s repeated use of the murky procedure of “rescheduling” cases — ordinarily meaning the court moved them from one conference to another before considering them at conference.  Wood v. Oklahoma17-6891, and Jones v. Oklahoma17-6943, have been rescheduled nine times each — and both have been rescheduled even since they were relisted.  Lee v. Ohio17-7213, and Belton v. Ohio17-7233, have both been rescheduled four times.  So perhaps these cases will at last shed some light on the rescheduling procedure.

The first two cases are from a place where, if my sources are to be believed, the wind comes sweepin’ down the plain, where there is plenty of air and plenty of room. In the years around Y2K, Tremane Wood and Julius Jones, two African-Americans, were convicted in central Oklahoma of unrelated murders of white men and sentenced to death. In 2017, after Jones had finished state and federal collateral proceedings, and as Moore would soon complete them, a statistical study on capital-sentencing patterns in Oklahoma was published, concluding that nonwhites accused of killing white males are statistically more likely to receive a death sentence, even controlling for aggravating circumstances. Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just 60 days to file a second or successive post-conviction application based on newly available evidence.  Both filed post-conviction applications arguing that the study constituted newly discovered evidence that they were convicted and sentenced in violation of the Sixth Amendment right to a fair trial, the Eighth Amendment bar on cruel and unusual punishment, and the 14th Amendment right to due process of law. But the court denied their applications on the basis of a state procedural bar, saying that neither had shown that “the identified patterns of race and gender disparity were not ascertainable through the exercise of reasonable diligence” at the time of their original post-conviction proceedings. The petitions in Wood v. Oklahoma17-6891, and Jones v. Oklahoma17-6943, present two main questions: First, whether the study indicating a risk that racial considerations entered into Oklahoma’s capital sentencing determinations proves that their death sentences are unconstitutional under the Sixth, Eighth, and 14th amendments; and second, whether Oklahoma’s post-conviction statute, as applied by the Oklahoma courts, denied Wood and Jones an adequate corrective process for the hearing and determination of their federal constitutional claims in violation of their rights under the 14th Amendment’s due process and equal protection clauses.

To avoid further depressing our reader, we will refrain from quoting songs about our second O-state– at least beyond the upbeat kind that just spell its name.  Ohio’s legislature has enacted a statute that requires that minors be tried as adults when the defendant is a 16-year-old (or a 14- or 15-year-old recidivist) who is charged with homicide or a handful of other serious offenses (kidnapping, rape, and the aggravated forms of arson, robbery and burglary), generally either while using a firearm or as a recidivist.  In 2016, the Supreme Court of Ohio invalidated the statute as unconstitutional. After two justices retired, Ohio successfully sought rehearing, and less than a year later issued a decision upholding the mandatory transfer law as constitutional. To make things more confusing, Justice Kennedy wrote the majority opinion reversing course, while Justice O’Connor (actually, Chief Justice O’Connor) wrote the dissent — just not the ones you think.  The petitioners in Lee v. Ohio17-7213, and Belton v. Ohio17-7233, both were convicted of killing people in botched robberies.  Both argue that mandatory trial as an adult violates the Constitution, relying on recent Supreme Court decisions emphasizing the lesser culpability of juvenile offenders and their greater potential for rehabilitation.

May 25, 2018 at 11:42 AM | Permalink


It would be helpful to see a grant on the first issue of Clark merely to clarify some contradictory dicta in earlier cases. There is a lot of debate at state supreme courts and in capital habeas cases about the eligibilty vs. selection question as framed by cases like Ring, Hurst, Marsh, and Carr. Some dicta in Ring and Hurst suggests that any determination that a jury must make before reaching the final decision on imposing death has to be made beyond a reasonable doubt. Other dicta in Marsh and Carr suggests that only statutory aggravating circumstances have to be found beyond a reasonable doubt and that the weighing of aggravating and mitigating circumstances do not have to be found beyond a reasonable doubt even if the state law requires the jury to address that issue before imposing death.

The fourth issue is one that sees a lot of variations in a lot of courts -- the claim that the waiver of counsel was involuntary because of the acts of appointed counsel. Again, it would be useful for state courts to get some guidance on how they should handle this issue.

Posted by: tmm | May 25, 2018 12:54:29 PM

Interesting number of cases regarding double jeopardy.

RBG and Thomas in one case suggested they were open to ending the different sovereign rule. Thomas has voiced concern specifically with Native American tribes are involved and due process concerns in certain contexts.

Posted by: Joe | May 25, 2018 2:23:17 PM

"The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going."

This is the Supreme Court defrauding the taxpayer with total lawyer bullshit. All of them need to be impeached. Replace these Justices with students from Life Skills Class, learning to eat food with a spoon.

This profession is ridiculous and pure evil.

Posted by: David Behar | May 25, 2018 10:43:39 PM

As an illustration that you have no clue what you are talking about, the post related to cases which have not been granted review yet. You talk about the Supreme Court defrauding the taxpayer and the court hasn’t done anything.

Do us all a favor and leave


Posted by: Bruce Cunningham | May 26, 2018 1:19:56 PM

Bruce. Calm down. How much time and money was spent on that single sentence?

The Supreme Court has an affirmative duty to punish lawyers making such claims. Such lawyers should pay all legal costs related to the frivolous claim. These are per se violations since they violate a Rule of Conduct, and of Supreme Court procedure. The lawyers should be declared vexatious litigants after the first violation, and be permanently banned from Supreme Court practice.

Beyond this one sentence, all judicial review is prohibited by Article I Section 1. Even if Congress allowed it, the non-delegation doctrine, yes, in a case of judicial review, still prohibits this entire claim.

Bruce, if you want fools making decisions about the policies of the nation, or judicial review, go enact an Amendment to the constitution.

Posted by: Dsvid Behar | May 26, 2018 6:10:45 PM

Bruce. Quick civilian question for you. In your career, in the careers of any of you colleagues in the defense appellate bar, has there ever been a case offered that you deemed as not proper to appeal? Does every criminal conviction contain an error of law?

Posted by: David Behar | May 26, 2018 6:59:36 PM

Yes. That scenario is covered by Anders v California

Posted by: Bruce Cunningham | May 27, 2018 7:42:22 AM

Bruce. Thank you. Any idea as to the fraction that would qualify for an Anders Brief? Sounds easier to just take the case, since the work is quite onerous.

From Wikipedia:

Anders brief[edit]
In order to file an Anders brief (also called a "no-merits brief"), the attorney must do the following:

The attorney must file a motion to withdraw as the defendant's counsel.

The motion to withdraw must "be accompanied by a brief referring to anything in the record that might arguably support the appeal." Any and all grounds, even if counsel considers them frivolous, must be raised in the brief. Those grounds include areas such as whether or not a plea of guilty was made voluntarily and freely, or whether the sentence imposed by the court was within the permissible range.

The defendant should be given a copy of the brief and given time to raise any grounds (either pro se or by other counsel) that the defendant so chooses to raise.
The court must then independently "after a full examination of all the proceedings" decide if the appeal is wholly frivolous. If the court decides it is, then it is to grant counsel's motion to withdraw and then (depending on state law) either dismiss the appeal or rule on its merits, but must still allow the defendant to further appeal if desired. If the court, though, finds that there is at least one non-frivolous ground, it must then allow the defendant the right to make the case and appoint counsel if needed. (As part of an Anders brief, an attorney may request that, if the court finds a non-frivolous ground(s) for appeal, the attorney be allowed to withdraw the brief and remain as counsel, whereupon the attorney would then amend the appeal to argue on the ground(s) that the court has found.)


The Oregon Court of Appeals noted an anomaly with the Anders decision: if counsel raises no grounds for appeal, then the court must review the entire record to determine if a ground for appeal may exist, but if counsel raises any ground (even only one), then the court is required to review only that portion of the record pertaining to the ground raised by counsel and is not required to review any portion related to other grounds not raised.[2]

There is the possibility that an attorney may not see the merit in the error assigned by his or her client, and a client may have viable grounds for the client's claim. In State v. Williams, the Ohio Court of Appeals granted an attorney leave to withdraw, but found a potentially meritorious error and designated a different attorney to present the defendant, noting pointedly that “an Anders brief is not a substitute for an appellate brief argued on the merits.”[3]

Posted by: David Behar | May 27, 2018 1:11:54 PM

Bruce. How many cases have you been offered? How many Anders briefs have you filed? I am interested in an actual fraction.

Posted by: David Behar | May 28, 2018 10:21:58 AM

From brief discussions with attorneys that I know who work for the Public Defender's Appellate Division, it is simpler for them to write a brief that focuses on the one or two issues with marginal merit than to get permission to file an Anders brief. Additionally, filing a "regular" brief preserves claims for federal habeas review. (The desire to preserve cases for habeas review is something of an anachronism from the days when lower federal courts could grant habeas relief based on a mere disagreement with the state courts. Today, if it is meritless in state courts, it will almost certainly be meritless in federal habeas review.)

Posted by: tmm | May 29, 2018 10:14:48 AM

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