« "From Warfare to Welfare: Reconceptualizing Drug Sentencing During the Opioid Crisis" | Main | Third Circuit panel finds error where district court "improperly relied on [defendant's] bare arrest record in determining his sentence" »

December 9, 2019

Justice Sotomayor continues her practice of issuing statements on denials of certiorari in criminal cases

The Supreme Court this morning issued this order list this morning. The Court denied certiorari in a long list of cases, but two of those denials prompted short statements respecting the denial of certiorari. Here are the cases with the concluding paragraphs from these short statements:

Concerning the denial of cert in Schexnayder v. Vannoy, No. 18-8341, Justice Sotomayor stated, inter alia:

Petitioner, who was pro se during various stages of the lower court proceedings, did not clearly set forth his claim that he was entitled to habeas review without AEDPA deference when he sought a certificate of appealability from the District Court and, later, the United States Court of Appeals for the Fifth Circuit. Accordingly, the Court of Appeals was not fairly presented with the opportunity to resolve the issue that petitioner now presents to this Court. For this reason, I do not dissent from this Court’s denial of certiorari. The re-review procedure adopted by the Louisiana courts, however, raises serious due process concerns.  I expect that lower federal courts will examine the issue of what deference is due to these decisions when it is properly raised.

Concerning the denial of cert in Cottier v. United States, No. 18-9261, Justice Sotomayor stated, inter alia:

On appeal, the Court of Appeals for the Eighth Circuit observed that the court in which Cottier was prosecuted “routinely” sends unredacted factual-basis statements into the jury room.  908 F.3d 1141, 1149 (2018).  I agree with the Eighth Circuit that this practice is “troubling.” Ibid.  By presenting the jury with a factual-basis statement signed by the Government, the prosecution improperly expresses its “‘personal belief ’” in the truth of the witness’ statements — a stamp of approval, an assurance from the Government itself, that the witness is to be believed.  United States v. Young, 470 U.S. 1, 7–8 (1985).  In this case, however, Cottier’s attorney did not object to the statements’ admission and used them as part of Cottier’s defense.  For that reason and others expressed by the Eighth Circuit in affirming Cottier’s convictions, I do not dissent from the denial of certiorari but instead echo its admonition that the admission of such statements “is not a favored practice.” 908 F.3d, at 1149.

December 9, 2019 at 11:04 AM | Permalink

Comments

If you look at the full opinion from the Eighth Circuit (in which the part related to plea statements is buried in the middle), it is unclear if the plea statements went to the jury room in Collier's case. Instead, that looks to be something that came up in oral argument related to general practices in the District for South Dakota. In any case, given that the claim was being presented as plain error (and defense counsel arguably made a strategic decision not to object because he felt that the statements benefited the defense), Collier was not a good case to address the issue. I wonder how common the practice of using these written "factual basis statements" from the plea is in federal court. I know, at least in state courts in my state, evidence of a witness's plea admissions would only come in as a prior inconsistent statement and probably (at most) via the transcript of the plea hearing or cross-examination about the witness's statements.

Posted by: tmm | Dec 9, 2019 5:48:46 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