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July 2, 2024
Reviewing cert denial statements in criminal justice cases from the latest SCOTUS order list
As noted in a prior post, the Supreme Court this morning via this order list had a lot of GVRs, a few vert grants, and finally a bunch of comments on cert denials. Four of the six cases with those comments involved criminal justice issues, which I will quickly recap:
Denial of cert in Price v. Montgomery County prompts Justice Sotomayor to issue a statement questioning whether "absolute immunity [should be] available under §1983 when, as here, a prosecutor knowingly destroys exculpatory evidence and defies a court order." She explains ways to address prosecutorial misconduct and suggests that if "this is what absolute prosecutorial immunity protects, the Court may need to step in to ensure that the doctrine does not exceed its 'quite sparing; bounds."
Denial of cert in McCrory v. Alabama prompts Justice Sotomayor to issue a statement questioning remedies for when there are "convictions resting on forensic evidence later repudiated by the scientific community." She does so in a case in which "Charles M. McCrory was convicted of murder in 1985 based on forensic bitemark testimony that has now been roundly condemned by the scientific community and retracted by the expert who introduced it at his trial." She concludes her 13-page statement this way:
I vote to deny this petition because the constitutional question McCrory raises has not yet percolated sufficiently in the lower courts to merit this Court’s review. There is no reason, however, for state legislatures or Congress to wait for this Court before addressing wrongful convictions that rest on repudiated forensic testimony.
Denial of cert in King v. Emmons prompts Justice Jackson to dissent, joined by Justice Sotomayor, in a capital case in which "a Georgia prosecutor struck every Black woman and all but two Black men from a jury pool." The end of the 10-page dissent concludes with Justice Jackson stating she "would summarily reverse the Court of Appeals’ erroneous application of deference in upholding the state court’s decision and remand for reconsideration of King’s Batson claim without the deference AEDPA otherwise requires."
Denial of cert in Bassett v. Arizona prompts Justice Sotomayor to dissent, joined by Justices Kagan and Jackson, in a case involving sentencing of a juvenile to a mandatory LWOP term. The dissent contends that "Arizona advances three arguments for why Bassett did, in fact, receive all the discretionary process required by Miller.... Each runs contrary to Miller’s clear command." Consequently, after running through the Arizona argument, this dissent concludes by stating that "[b]ecause the Arizona Supreme Court’s decision departed from this Court’s established precedents, [she] would grant the petition for certiorari and summarily reverse the judgment below."
July 2, 2024 at 11:05 PM | Permalink
Comments
Basssett was a fascinating case, because Arizona relied on a quirk of state court precedent at the time -- that everyone mistakenly believed parole was available even though it technically wasn't -- to argue that the juvenile there got a windfall: the benefit of a Miller/Montgomery-type sentencing proceeding.
Had SCOTUS granted cert, its opinion could have spoken to the question whether a life sentence imposed on a juvenile while the federal Sentencing Guidelines were mandatorily applied, but while there was some theoretical possibility of a downward departure due to the offender's youth, would have passed muster under Miller. I doubt it would have.
Posted by: Da Man | Jul 3, 2024 10:55:20 AM
Here's why the "living Constitution" cannot be completely dismissed. Envelopes tend to get pushed and shields become swords. Obviously, prosecutorial immunity is not really a constitutional question, the immunity's mischief is growing because prosecutors know they can get away with things. When the immunity was established, a balance was struck. Well, that balance, over time, has gotten out of whack. I think you see the same phenomenon with Chevron deference.
A prosecutor counseling a witness to destroy evidence shouldn't have to worry about civil liability--he should be put behind bars for a very long time.
Posted by: federalist | Jul 3, 2024 1:31:56 PM
Interestingly, in criminal cases it's not just prosecutors and judges who are immune from being sued under section 1983 when they violate civil rights under color of law. A friend, Elizabeth Elaine Royse, was a nurse working day shift in a Frankfort, Kentucky nursing home more than 10 years ago now. For one patient in her 80s, Lainie wrote orders in the patient's file that blood should be drawn and certain tests conducted on it. Ultimately, the blood was not drawn. A week later the patient became dehydrated and was taken to a hospital for 2-3 days, and then brought back to the nursing home. A few months later the patient died of natural causes unrelated to having been dehydrated. Four years later, long after Lainie had left the nursing home [because they didn't take good care of their patients and wouldn't make the changes she suggested] and moved to Florida, Lainie was indicted for the felony charge of "neglect of an adult under your care". Lainie was arrested in Florida and would have been extradited back to Kentucky, if her parents had not posted $20,000 of cash bond for her. The Judge and the Ky. Court of appeals would alter chastise the Commonwealth for seeking an arrest warrant instead of a Summons. Fortunately for Lainie, her mother was a retired Circuit Court Clerk, who knew some of the best criminal defense lawyers. Lainie's parents hired an attorney to represent her who filed a Motion to Dismiss the Indictment based upon false testimony before the Grand Jury by the sole witness, a retired police officer working as a special investigator in the Ky. Attorney General's Office. After conducting an evidentiary hearing where the Investigator's Grand Jury testimony was shown to have been false compared to the nursing notes in the patient's file, a Circuit Judge dismissed the indictment, and the Court of Appeals affirmed in an 8-page unpublished opinion. The whole thing cost Lainie's parents $80,000. Subsequently, a third indictment based upon the same investigator's Grand Jury testimony was dismissed. The first case of dismissal had occurred prior to Lainie's case, but the prosecution never disclosed it in discovery. Lainie hired an attorney to sue the investigator under section 1983 in the E.D. Ky., based upon his false testimony before the Grand Jury. Her case was dismissed because the Supreme Court has held that Grand Jury witnesses are immune from lawsuits, even if they perjure themselves! See, Rehberg v. Paulk, 566 U.S. 356 (2012). So, Lainie and her parents got nothing back. The investigator was fired by the Attorney General's Office, however, after the third indictment was dismissed. But it doesn't seem right. Lainie is just fortunate that her patents had the resources to help her out.
Posted by: Jim Gormley | Jul 3, 2024 10:45:35 PM
An important fact that I left out above was that the Investigator had believed that Lainie was the person who had failed to draw the blood from the patient. What he was unaware of was that in that nursing home, blood was drawn only by second shift nurses, not by first shift nurses like Lainie. So, Lainie had written the Order in the patient's file, but it was not her job to draw the blood. The investigator had told the Grand Jury that although Lainie had written the order to draw blood in the patient's file she had failed to do it. But that was really the job for a second shift nurse, not for Lainie. This retired police officer new almost nothing about how to read nursing notes or the practice of nursing or medicine. He was unqualified ot be working on (potentially) criminal nursing cases.
Posted by: Jim Gormley | Jul 3, 2024 10:52:48 PM
The McCrory v. Alabama [bite mark evidence] Petition reminds me of a notorious case from here in Lexington, Kentucky. A Univ. of Ky. college student had sniped and shot to death a 21-year old college student sitting on the front porch of his student home near campus on his birthday. The case went unsolved for more than 2 years, until a woman came forward to the police and told her that her drunken boyfriend had confessed to the crime during pillow talk. The defendant, Shane Ragland, comes from a wealthy Frankfort, Kentucky family. He killed the other student [shot him in the forehead, between the eyes, with a .243 Weatherby rifle in hiding from across the street] because the victim had blackballed him from a fraternity. The police found what they believed to be the murder weapon, a .243 Weatherby rifle under the defendant's bed, along with a partially used box of ammunition. The prosecution could not conduct ballistics tests between the bullet and the rifle because the bullet had shattered into many pieces upon striking the victim's skull. So, the prosecution got an F.B.I. crime lab scientist to testify at trial that the lead in the partial box of unused bullets matched the lead from the shattered murder bullet -- they came from the same batch of lead! But this was junk science, for which there was no scientific [metallurgical] support. Even the F.B.I. crime lab stopped doing "Comparative Bullet Lead Analysis" in September of 2004. Ragland had been convicted and sentenced to serve 30 years in prison based on that bogus junk science. See, Ragland v. Commonwealth of Kentucky, 191 S.W.3d 569 (Ky. 2006). Ragland's convictions were reversed by a 5 to 2 vote. The Commonwealth's Attorney couldn't really retry the case because he had promised the defendant's girlfriend that she would only ever have to testify once [she was terrified of Ragland's wealthy family] and she had been placed in a witness protection program in another state. Eventually, Ragland pleaded to second degree manslaughter and was sentenced to "time served" (in total about 4 years). Since then, Ragland has had many problems. He became a paraplegic when he was involved in a car wreck while driving drunk, and now gets around in an electric wheelchair. A live-in girlfriend obtained a Domestic Violence Retraining Order (a "DVO") against him a few years ago. Ragland is presently under criminal charges in Frankfort, Kentucky for assaulting his Mother (with minor injury) and violating a DVO. And the shooting victim's family obtained a $33 million civil judgment against Ragland. Ragland's attorneys only identified and figured out the F.B.I. crime lab junk science testimony about "Comparative Bullet Lead Analysis" because hs father is wealthy and poured money into defending his son's criminal case.
Posted by: Jim Gormley | Jul 3, 2024 11:14:28 PM
federalist --
"A prosecutor counseling a witness to destroy evidence shouldn't have to worry about civil liability--he should be put behind bars for a very long time."
ANYONE counseling a witness to destroy evidence shouldn't have to worry about civil liability. He should be behind bars for a very long time -- but especially a prosecutor.
Posted by: Bill Otis | Jul 4, 2024 2:29:34 PM
