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June 18, 2018

SCOTUS finally grants cert on new cases, including two criminal justice cases

Last Monday, because the Supreme Court issued an order list and opinions with little of interest for criminal justice fans, I sought to keep up my end-of-Term excitement by blogging here about the five remaining SCOTUS criminal cases to be decided in this coming weeks.  Some of those cases are likely to be decided today or later list week, but we already have something exciting from the Justices via this new order list granting cert on five new cases, including two criminal cases (links and descriptions via SCOTUSblog):

Garza v. Idaho: "Whether the 'presumption of prejudice' recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver."

Timbs v. Indiana: "Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment."

The order list also includes a short dissent from the denial of cert in a Florida capital cases in which Justice Sotomayor laments yet again the Court's failure to take up a claim that Florida's jury instructions "impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death, in violation of Caldwell v. Mississippi, 472 U. S. 320 (1985)."

Especially during a time in which financial sanctions are (finally) getting a lot more attention and there is a ever-growing libertarian/conservative concern about fines and forfeitures, the Timbs case if very interesting and is now my favorite "what to watch" case going into the next Term.

UPDATE: Over at Crime & Consequences here, Kent Scheidegger has a bit of an early preview of Garza in a post titled "Clients, Lawyers, and Appeals."  And this second C&C post, titled "Excessive Fines and Incorporation," takes a quick look at Timbs.

MORE:  SCOTUSblog has more on Timbs and Garza (and the other grants) in this post by Amy Howe.

June 18, 2018 at 09:50 AM | Permalink


Doug, do you think there's much chance of a broad incorporation ruling in Timbs that might affect the other two main non-incorporated criminal procedure rights: the right to unanimous criminal jury verdicts in noncapital cases, and to a grand jury indictment?

Posted by: Anon public defender | Jun 18, 2018 10:41:26 AM

I read McDonald as a pretty broad incorporation ruling, and I am inclined to expect same from Timbs that might take down the jury verdict distinction. But I think they grand jury issue will always be a carve out, although this is not an area I have thought too hard about for some time....

Posted by: Doug B | Jun 18, 2018 10:52:37 AM

As a liberal I resent the implication that liberals are not concerned about fines/forfeiture. Of course we are. This is especially so--and seen--in bail reform.

The major concern some liberals have with the fine issue is that some liberals are concerned about the impact reform will have on corporate malfeasance. This is also why they drag their feet on mens rea reform. While I share concerns about excess corporate power I also see it as a false linkage.

The concern about excessive fine and forfeiture is a concern across the political spectrum and not limited to conservatives and libertarians.

Posted by: Daniel | Jun 18, 2018 11:09:18 AM

Daniel: I did not mean to imply liberal dis-concern with financial sanctions, and I agree that these issues matter to folks across the political spectrum. All the more reason Timbs will be an interesting case to watch.

Posted by: Doug B | Jun 18, 2018 11:46:57 AM

Thanks for sharing your thoughts Doug. I'm a California practitioner (a state in which criminal grand jury indictments are rarely used), and I've always wondered if there were any chance the SCOTUS would reconsider Hurtado v. California, as it looks like it may continue to incorporate nearly all other criminal procedure rights. Specifically, I've wondered if in a capital case, for example, it might be wise for trial lawyers to move to dismiss the charges for lack of a grand jury indictment, to preserve the issue should the Court ever change its mind.

Posted by: Anon public defender | Jun 18, 2018 1:37:18 PM

It will be interesting to see how the Supreme Court rules in Garza. My state does not allow conditional pleas, and most plea hearings include the advice that a defendant is giving up his right to appeal by pleading guilty. (There are some narrow issues that can be raised on appeal, but -- in 99.99% of the cases -- those issues would be frivolous.) A ruling for the defendant in Garza could result in a significant number of appeals from guilty pleas with increased work for all parts of the criminal justice system at a time of tight state budgets. (As to what counts as significant, in the last fiscal year for which we have statistic, there were over 36,000 felonies resolved by guilty plea compared to 600 trials. If even 1% of pleas were appealed, that would increase the total number of criminal cases appealed by about 50%.)

Posted by: tmm | Jun 18, 2018 3:32:26 PM

Re Garza, I'm surprised that his trial counsel didn't just file the notice of appeal. I might advise my client that I don't recommend appealing, and that his plea agreement contains an appeal waiver, but I've always understood the filing of an appeal to be a client's decision alone (like whether to testify, how to plead, etc.). Appellate counsel can always file an Anders brief, and every circuit I know of will refuse to enforce appeal waivers in at least some limited scenarios, such as when the sentence is illegal or unconstitutional, the trial court failed to properly advise the defendant about the appeal waiver at the plea hearing, etc. So the mere fact that the plea agreement contains an appeal waiver doesn't always mean that there is no possibility of a meritorious appeal (especially as to sentencing issues).

At least in the Ninth Circuit, post-Johnson (2015), a number petitioners sentenced under the ACCA residual clause relied on the "illegal sentence" exception to the enforcement of appeal waivers to get habeas relief, despite having pleaded guilty under plea agreements that included waivers of the right to file a section 2255 motion.

Posted by: Anon AFPD | Jun 18, 2018 5:02:26 PM

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