Supreme Court: The Term in Review (2009-2010) Part 1 of 2


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Transcript:
Supreme Court:
The Term in Review,
an FJTN program for judges, staff attorneys, and law clerks.
Now from the television studios of the Federal Judicial Center in Washington, D.C.,
your host, John Cooke.
Hello, I'm John Cooke,
Deputy Director of the Federal Judicial Center.
Welcome to this year's Supreme Court:
The Term in Review,
our annual look at the Court's decisions most likely to affect the day-to-day work of federal
judges.
This year the Court decided high-profile cases dealing with campaign contributions,
gun ownership rights, and white collar crime.
But it also decided less publicized cases dealing with Miranda,
habeas corpus,
and civil procedure.
The term will also be remembered as the first for Justice Sonia Sotomayor, who joined the
Court last summer after 18 years as a district and circuit judge,
and as the last term for Justice John Paul Stevens,
who retired at the end of the term after more than 34 years of service on the Court.
In all, the Court decided 86 cases on the merits this term.
In 36 of these 86 cases, or 42 percent of the time,
all nine justices agreed on the result.
In 15 cases, or 17 percent of the time,
the vote was 5 to 4.
Today we'll examine 43 of the decisions with our faculty of scholars.
We are fortunate again this year to be joined by Erwin Chemerinsky, Dean of the University
of California Irvine School of Law;
Evan Lee of the Hastings College of Law;
Laurie Levenson of Loyola Law School in Los Angeles;
and Suzanna Sherry of the Vanderbilt University School of Law.
Other faculty will also join us to discuss the Court's opinions in patent law
and ERISA.
The Center's Stephanie Briscoe and Beth Wiggins will moderate our panels.
In the first half of our program we'll consider decisions involving criminal law,
the Fifth and Sixth Amendments,
criminal procedure,
sentencing, and habeas corpus.
Then after a short break we'll discuss opinions dealing with the First Amendment,
federalism, federal courts and their jurisdiction,
and finally business law.
The written materials that accompany this program at our Internet website
include an outline with a summary of each of the decisions that we will discuss,
along with an appendix with summaries of the remaining cases decided by the Court
this term.
The online outline contains links to the full opinions.
Stephanie Briscoe will be here in a moment, along with Laurie Levenson and Suzanna Sherry
to discuss some criminal law decisions.
Hello.
I'm Stephanie Briscoe from the Federal Judicial Center, and with me to talk about some of this
term's important criminal law decisions are Laurie Levenson
and Suzanna Sherry.
Thank you both for joining us.
Few news stories of the last decade were bigger than the collapse of the Houston-based energy
giant Enron in 2001.
Investors lost millions, and many employees were left without any retirement funds.
Several Enron executives were charged with myriad crimes in the aftermath,
including former Enron CEO Jeffrey Skilling.
Skilling was acquitted of 9 insider trading counts and convicted of 19 other counts,
including 18 U.S.C. section 1346,
conspiracy to commit "honest services" wire fraud.
Skilling appealed his convictions,
and this term the Supreme Court agreed to answer two questions.
First, did pretrial publicity and community prejudice prevent Skilling from obtaining a
fair trial?
And second,
did the jury improperly convict Skilling of honest services wire fraud?
This was a complicated opinion, wasn't it, Suzanna? It was. It was actually 4 opinions totaling
more than 100 pages, but in the end there was quite a bit of agreement. So let's start
with the question of whether the district court erred
in refusing to change the venue of the trial because of pretrial publicity.
There was a 5 justice majority on this question as well as a 3 justice concurrence,
and they both concluded
that the change in venue was not required.
They distinguished Skilling's case from other cases in which the Court had found
that the presumption of pretrial bias was so strong that no voir dire could ever
overcome it.
There was a lot of publicity in this case,
but as Justice Ginsburg wrote for the majority,
"prominence does not necessarily produce
prejudice."
And the ninth justice, Justice Alito, also agreed,
but for a different reason.
He said there is no right to a change of venue; there's only a right to be tried
by an impartial jury,
so there's no right to move it beforehand.
I don't think this part of the case is likely to have very many consequences
or repercussions
because it's very fact specific. Although the Court did tell us that
the change of venue is called for because of pretrial publicity
only under extraordinary circumstances that rule out even the
possibility of being able to find an unbiased jury.
And the Court gave a couple of examples of those extraordinary circumstances from
its prior cases.
One from Rideau v. Louisiana, but that was a quite different case.
You had a small town that was flooded by pretrial publicity.
You had a confession that was given without a lawyer,
and because of so much publicity the Court said it violated due process.
Another example the Court gave was the Shepard case,
where they said it was a circus-like atmosphere.
But then the Court addressed whether the jury had been unbiased, didn't it, Laurie? Right, and the Court
said that
there was no actual prejudice for this jury,
that, in fact, questionnaires had been sent out to the prospective jurors,
there had been extensive voir dire,
both sides had been given an opportunity to question the jurors, and,
in fact, Skilling was acquitted of some counts.
So the Court concluded--at least 5 justices-- that even though the community may have had
some bias, this jury did not. Thank you.
The second question before the Court was also a constitutional one.
Skilling argued that the honest services fraud statute was unconstitutionally vague.
Let's take a look at that statute's language before we discuss its opinion in this case.
The original statute, amended in 1909, prohibits
"any scheme or artifice to defraud, or to obtain money or property by means of false or fraudulent
pretenses,
representations or promises."
In 1987, the Supreme Court struck down the application of the statute
to honest services cases in McNally v. United States.
So in 1988 Congress enacted a new statute that added this clarification:
"the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the
intangible right of honest services."
Where did the Court come down in this question, Laurie? Well, the Court did go back to the original
mail fraud statute--the language of the statute as well as the 1988 amendment--
and said that the only way that they could keep the statute from being unconstitutionally
vague would be to limit it
to bribery and kickback cases.
The problem was that Skilling wasn't convicted of bribery and kickback.
In fact, his crime was undisclosed private dealings
depriving his employer of honest services.
So they had to remand this case to see if the verdict infected
the conspiracy charge in the count.
Suzanna, what do you think the major impact of this decision will be? I think its biggest effect
is going to be on cases involving conflict of interest or backdating.
In our next decision, Carachuri-Rosendo v. Holder,
the Court had to
delve into the statutory maze that is federal immigration law.
Carachuri-Rosendo was a lawful permanent resident of the United States
who had lived here since he was 5 years old.
In 2004, he pled
guilty to misdemeanor
possession of less than 2 ounces of marijuana.
A year later he pleaded nolo contendere to
misdemeanor possession of a tablet of Xanax without a prescription.
Although Texas law allows prosecutors to charge a sentencing enhancement if they prove that the
defendant had previously been convicted of an offense of a similar class,
the state did not elect to seek an enhancement based on Carachuri-Rosendo's
criminal history.
The next year federal authorities initiated removal proceedings against him based on his
second conviction.
Carachuri-Rosendo agreed
that his second conviction made him eligible for removal,
but applied for discretionary cancellation of the removal
under 8 U.S.C. section
1229b(a)(3).
Under that statute the Attorney General may cancel removal so long as the non-citizen
has not been convicted of an aggravated felony.
In its 2005 opinion in Lopez v. Gonzalez
the Court interpreted that law
to mean that
conviction of a state felony doesn't count as a felony for immigration purposes
unless it would be a felony under federal law as well.
But the federal appellate court that affirmed Carachuri-Rosendo's
ineligibility read the Lopez decision to also mean that if conduct would be
a felony under federal law,
then it counts as a felony even if the state only charged the defendant with a misdemeanor.
Laurie, did the Supreme Court uphold
the appellate court judgment here? No, it reversed the appellate court.
Aggravated felonies for deportation purposes under 1229b(a)(3)
do not include recidivist simple possession drug offenses
unless the prosecution actually charges and convicts them as recidivist crimes.
It's not enough that they
could have,
they have to do it.
And the Court distinguished the Lopez case
because Carachuri-Rosendo wasn't convicted of anything that would have counted as a felony
under federal law
because the prosecutor didn't charge him as a recidivist, and that, the Court said, made the
government's theory much too hypothetical.
And to reach that decision, the Court did look closely again at the language of the statute
and the common understanding of some of the phrases.
The Court said there's no real trafficking going on here--it was just possession--
and the defendant received a 10-day sentence on the second offense.
It doesn't seem like an aggravated felony.
Even if this were brought in federal court,
it probably would only get 6 months, and
in federal court we define felonies as more than 1 year.
I do think, though, that this is not the last we've seen of Lopez. I think there are still some
open questions, and Lopez will need further refining. For example, what happens if someone
is charged as a recidivist,
but then is given less than a 1 year
sentence? Questions like that are still open.
Our final decision in this segment,
Carr v. United States,
deals with the Sex Offender Registration and Notification Act, or SORNA.
The law, which went into effect in 2006,
requires convicted sex offenders to register with the state they live in
and imposes penalties if they move to another state and fail to register.
The questions before the Court in Carr
were whether those penalties could be imposed on offenders
whose interstate travel
occurred before
SORNA's effective date,
and if so,
whether the statute violated the Constitution's Ex Post Facto Clause.
How did the Court answer those questions, Laurie?
Well, the Court did not answer the Ex Post Facto question because it came back and
said that liability under the Act
could only be predicated on after SORNA's passage if there was travel.
They looked at the language of the statute, and it says "travels" not "traveled,"
which means that Congress meant for the law to apply only
to people who traveled after the enactment of the law.
And again, the language of the statute--it says that the offender has to register
after SORNA.
How can you do that unless the crime takes place at that point?
So, the bottom line is SORNA does not apply to offenders
who traveled before SORNA but
continue not to register.
And again, here there are still some open questions. There are two circuit splits that the Court
didn't resolve in this case, both of them involve
the question of when SORNA becomes effective
against offenders who were convicted before it went into effect.
The law became effective in July 2006,
and then in February 2007 the Attorney General issued interim regulations
making
SORNA effective--applying SORNA to those who were convicted of offenses
before it was enacted.
The circuits are split on whether those interim regulations are valid, and even for those
circuits that find them valid,
there's a question about what to do with people who traveled between
the 2006 effective date of the Act and the 2007 Attorney
General regulations.
Thank you, Laurie, and thank you, Suzanna. Beth Wiggins is next
with Erwin Chemerinsky and Evan Lee to talk about some Fifth and Sixth
Amendment opinions.
Hello. I'm Beth Wiggins,
and with me to talk about some of the Court's Fifth and Sixth Amendment decisions this term
are Erwin Chemerinsky
and Evan Lee.
The justices dealt with a number of issues in these opinions,
including the right to remain silent,
effective assistance of counsel,
and the right to a public trial.
But one decision that generated a lot of discussion,
and a strong dissent by Justice Sotomayor
and 3 other justices,
came late in the term in the case of Berghuis v. Thompkins.
The facts in this case were very important to the majority's decision, weren't they, Erwin?
They were. Thompkins was arrested for murder.
He was given his Miranda warnings.
He was asked to sign a statement that he understood
them. He refused to do so.
He was then questioned by officers for 2 hours and 45 minutes.
During this time he remained almost entirely silent.
Then an officer asked him whether he believed in God.
He said yes.
The officer asked him
did he pray to God.
Thompkins said yes.
Then the officer said, will you pray to God
for forgiveness
for the shooting and killing?
He said yes.
Those answers were admitted against him at trial.
It was key incriminating evidence that led to his conviction.
There were two issues before the Supreme Court.
First, was his silence sufficient
to invoke the right to remain silent,
and second, were these three one-word answers
a sufficient waiver
of his right to remain silent?
So, Evan, how did the Court come down on these two issues?
Well, the Court held that
a defendant who has
received
and understood his Miranda rights
and has not explicitly
invoked his right to remain silent
effectively waives that right
by making an uncoerced statement to the police.
The majority conceded that
the Miranda decision itself, back in 1966,
required an explicit waiver
of the right to
remain silent.
But the Court's
actual experience over the years convinced it that
that kind of a formal requirement was impractical.
So, Thompkins's silence was not enough to invoke his right to remain silent,
yet his brief answers to the officer's questions were enough
to waive his right to remain silent.
Well, this is the first time the Court has said that a defendant has to explicitly
invoke his right to remain silent, but it's not really the first time they've
held that the suspect has to invoke one of their Miranda rights, is it?
That's true. The Court analogized
the right to remain silent
to the right to counsel under Miranda
and to its 1994 decision in Davis v. United States,
where it said that the right to counsel had to be "unambiguously invoked."
But the Court said it saw no reason to distinguish between those two rights.
Well, Erwin,
this opinion also evoked probably the strongest dissent that Justice Sotomayor
has filed yet, didn't it?
Yes, she wrote a vehement dissent, which was joined by Justices Stevens, Ginsburg, and Breyer.
She accused the majority of "turning Miranda on its head."
In part, she pointed to the irony that being silent wasn't sufficient to invoke the right
to remain silent.
But she also said Miranda
expressly said there to be a knowing
and intelligent waiver.
That wasn't present here.
In fact, here, unlike Miranda,
the Court was creating a presumption
in favor of finding a waiver.
But, you know, I think the issue still remains here
how long police can persist in questioning a silent suspect.
In this case it was nearly 3 hours.
You know, what about
5 hours, 10 hours? I think
they're going to have to answer that in the future.
Okay. Thank you. In our second decision, Florida v. Powell,
the suspect did talk to the police,
but there was a question of what he understood his rights to be under Miranda.
The Tampa police read Powell his rights from a card they used
that said, in part,
"You have the right to talk to a lawyer before answering any of our questions (and)
you have a right to use any of these rights at any time you want during this interview."
The question the Supreme Court faced
was whether that warning violates the requirements of Miranda v. Arizona
by telling a suspect that he had a right to talk to a lawyer,
but not to tell him specifically that he had the right to have the lawyer present throughout
the questioning.
So, Evan, did
the Court think
the police gave Powell sufficient warnings? Yes, the Court
said that Miranda has
4 warnings that are truly required.
There's a right to remain silent,
anything a suspect says can be used against him in court,
right to an attorney,
right to have an attorney appointed prior to questioning
if the suspect cannot
afford an attorney.
The substance of those 4 warnings are invariable,
but the Court said that it was not going to dictate the exact words that have to be used,
you know, every time the warnings are given.
Then the Court found that the warnings given by the Tampa
police here were sufficient to meet the Fifth Amendment's requirements.
This wasn't surprising in the sense that the Supreme Court
previously had said
that Miranda had not prescribed
rigid words or a
specific framework that had to be used.
On the other hand, this is the
first time the Supreme Court has ever said that
a confession would be admissible
without somebody being advised
of the right to have an attorney present throughout.
I think the issue that remains open is
what other deviations from the phrasing of Miranda
might be accepted.
The right to counsel is guaranteed both under the Fifth Amendment,
which is the basis for the Miranda warnings,
and also under the Sixth Amendment.
Edwards v. Arizona established that when a suspect has invoked his right to counsel
under Miranda,
any waiver of that right in response to a subsequent police attempt at custodial interrogation
is presumed to be involuntary.
But now, in Maryland v. Shatzer,
the Court holds there's a limit to that presumption.
Erwin, what was it about this case that led the majority to that conclusion?
Shatzer was imprisoned for another offense.
He was suspected of child molestation.
He was brought by the police for questioning,
he was given his Miranda warnings,
and he invoked his right to counsel.
Three years later,
while he was still in prison on the other offense,
police went to question him again about the child molestation.
He was given his Miranda warnings.
He signed a waiver.
And the question was,
was his invocation of counsel 3 years earlier
a bar to the subsequent questioning?
Lower federal courts had held that
any break in custody
made Edwards inapplicable, but the Supreme Court had never ruled on the question.
Here
the Court held that
2 weeks out of custody is sufficient to, as the Court put it,
"shake off"
the coercive atmosphere of interrogation. So if a person decides to talk
without a lawyer
after that, then it can be seen, the Court says, as a voluntary decision.
Now, Shatzer was in prison
during
all of this time, but the Court felt that being returned to the general prison population
was the same--effectively the same thing as being returned to the general population.
I guess my question is why 14 days?
Well, Justice Scalia said that Edwards is a Court-created
prophylaxis, so the Court can create limits to it, and the Court felt there needed to be one
and said 14 days.
But there are critics who'll say
that 14 days is an arbitrary rule.
There is no 14-day clause in the Constitution.
And also, there's the concern
that this might lead to police circumvention--
that the police will question someone, they invoke their right to counsel,
police will stop, and
then just wait 2 weeks and start all over again.
Right. Justice Stevens
only concurred in the judgment.
He said the suspect did not receive counsel after
previously requesting counsel.
And so, his question was how do you know that this guy just didn't think it was futile
to request counsel,
and therefore, you know, is the assumption valid?
Let's move on to the next case.
When a suspect is represented by an attorney, the Supreme Court has set a high
bar in
proving that the lawyer provided ineffective assistance of counsel
in violation of the defendant's Sixth Amendment rights.
In its 1984 decision
Strickland v. Washington,
the Court established a 2-step analysis:
first, whether counsel's performance was deficient,
and second,
whether the defendant was prejudiced as a result.
Historically, very few petitioners have successfully argued ineffective assistance of counsel before
the Supreme Court
under the Strickland analysis.
But this term
was an exception, with the Court finding for 3 petitioners on those grounds.
Jose Padilla--
not, we should note,
the terrorism suspect of a few years ago--
was the first to get the high Court to find ineffective assistance of counsel.
Evan, what were the facts that
led the Court to
this decision--this unusual decision? Well, Padilla was a lawful permanent resident
of the United States for
over 40 years
when he was arrested and charged with a drug distribution case in
Kentucky.
And he pled guilty to those charges
after his attorney told him "you don't have to worry about being deported because
you've been in the United States for so long."
Now, that legally turned out to be incorrect advice, and Padilla
alleged that he
would have gone to trial if he had known that deportation was almost certainly going to
be a consequence
of pleading guilty.
The Kentucky Supreme Court
held that this
incorrect advice did not constitute ineffective assistance of counsel because deportation
is a
collateral consequence outside the scope
of representation under the Sixth Amendment.
What did the Supreme Court think about this?
Justice Stevens wrote for the majority and said that deportation is almost always the
consequence of state court criminal convictions,
so deportation is regarded as a
penalty that comes with a state court conviction.
Therefore, it's the obligation of the attorney
to advise the defendant
that that would be the consequence of pleading guilty.
Here Padilla's lawyer failed to do that,
so it is ineffective assistance of counsel.
It is worth noting that the Court focused
just on the first prong of the Strickland
test, that this was deficient performance by
counsel. The court didn't address the second part,
whether there was prejudice.
The case was remanded on that basis.
Yeah, I think the issue going forward is going to be
what does counsel have to tell--what other things does counsel have to tell
defendants,
you know, with regard to the consequences of their convictions.
Porter v. McCollum was the second case this term
where the justices found for the petitioner, and this time they were unanimous.
Erwin, what was it about the facts of this case
that led to the unanimous decision?
The argument for ineffective assistance of counsel here was
that the defense counsel
didn't present key evidence in mitigation at sentencing,
never presenting evidence with regard to mental
impairment,
childhood abuse, or especially about the petitioner's distinguished history of military service.
Nonetheless, the United States Courts of Appeals for the Eleventh Circuit found
that it was not ineffective assistance of counsel.
Well, obviously none of the Supreme Court justices agreed with this? No, they didn't. The Court
focused particularly on Porter's military record,
the two horrendous battles that he fought in the Korean War,
his difficulty reintegrating into society upon his return to the United States.
And the Court said that this was not only relevant
to, you know, honoring veterans,
but it was also relevant to possible mitigation because of its effect on Porter's mental state.
And if this and other information had been presented during the penalty phase of the trial,
the Court said
it was "reasonably probable" that it would have led to a different result.
So the Court found that
the Florida Supreme Court's
decision that Porter did not suffer prejudice within the meaning
of Strickland
was "objectively unreasonable,"
thus satisfying the standard set forth in the Anti-Terrorism and Effective Death Penalty Act.
I think this is so important because there are very few Supreme Court cases that
have ever found
ineffective assistance of counsel
under the Strickland v. Washington
test. And there are especially few cases
where the Supreme Court has found
prejudice under that test.
So I think that what lower courts can expect to see is
many defense lawyers using Porter v. McCollum
to argue that there was ineffective assistance of counsel.
Finally, we have Sears v. Upton,
our third ineffective assistance of counsel decision in this group.
Unlike Porter's attorney,
the lawyer assigned to represent Sears did present some mitigating evidence,
but not enough according to the Court.
Evan, how much did he do?
Well, not a lot. He spent less than
one full day investigating possible mitigating evidence.
He didn't present any evidence about significant frontal lobe brain damage
or childhood
abuse that he had suffered.
And apparently his trial counsel's sole strategy in the penalty phase
was to highlight
the--you know--the likely impact that execution would have on Sears' family.
Well, the state post-conviction trial court did
find that the counsel's
representation was inadequate under Strickland,
but they also said
that it was
impossible to tell if there was prejudice because the attorney did present some mitigating
evidence.
That's true,
but the Supreme Court majority found that the state court had
erroneously applied Strickland
when it assumed that the prejudice prong of that test only applies in cases where
there's little or no mitigating evidence,
you know, offered in the penalty phase.
The Court said that the proper prejudice test
was to, and I quote, "consider the totality of the proper mitigation evidence,
both that adduced at trial
and the evidence adduced in the habeas proceeding,
and reweigh it against the evidence in aggravation."
It's worth noting that this case, like Porter v. McCollum,
was a per curiam opinion,
decided without briefing or oral argument,
just on the basis of the cert
petition.
There were actually 14 decisions this term that were per curiams without briefing and argument
just based on the cert petition and the cert opposition.
And I think that is significant,
and maybe it's a trend.
Okay. Thanks, Erwin, and
thanks, Evan.
We want to tell you about one more decision in this group,
Presley v. Georgia.
Here the defendant was tried for cocaine trafficking in Georgia,
and the judge barred the public, including the defendant's uncle,
from the courtroom during jury selection.
Seven to two
the Supreme Court found that,
unless it has considered reasonable alternatives to closure,
a court may not exclude the public from voir dire without violating a defendant's Sixth
Amendment right to a public trial.
But the majority recognized that this was not an absolute right
and there were situations,
such as improper communication with jurors
or safety considerations,
where, on balance, closure is desirable and constitutional.
Stephanie will be back in a moment with Evan and Laurie Levenson to look at some criminal
law and procedure decisions.
Matters of criminal procedure and sentencing are the meat and potatoes of most
district court dockets.
This term the Supreme Court decided 6 cases in these areas that will affect the work of
federal courts on a daily basis one way or another.
Laurie Levenson and Evan Lee
are here to help analyze these decisions.
The first of these was a much watched constitutional case asking if sentencing juveniles convicted
of non-homicide crimes to life in prison without parole
violated the Eighth Amendment's Cruel and Unusual Punishment Clause.
This was Graham v. Florida.
A companion case, Sullivan v. Florida, addressed
the same question in regards to juveniles convicted of homicide,
but that case was dismissed as improvidently granted.
Laurie,
this opinion was written for the Court by Justice Kennedy, who also wrote the decision
in Roper v. Simmons,
where the majority found it was a violation of the Cruel and Unusual
Punishment Clause to execute minors under the age of 18.
What did the Court hold this time?
The Court held that life without the possibility of parole, or LWOP,
for non-homicide crimes involving juveniles violated the Cruel and Unusual Punishment
Clause of the Constitution.
And your point about Roper is a good one,
because Justice Kennedy said,
again, that juveniles have moral--
diminished moral culpability, that the national consensus was against LWOP for these crimes,
that only 12 states actually allowed it,
and most of the juveniles convicted were actually convicted in Florida,
where Graham was from.
And the decision cited other reasons along the lines that Laurie mentioned.
It mentioned that juveniles are less likely to be deterred by harsh sentences
because of their lack of maturity,
their underdeveloped sense of responsibility,
that incapacitating juveniles permanently
isn't justifiable
because it's difficult to
ferret out
incorrigibility in juveniles,
and similarly that life without parole is
fundamentally inconsistent with the goal
of rehabilitation.
Also, Justice Kennedy again notes, as he did in Roper,
that international opinion
is against giving juveniles
that type of punishment.
And I think it's important to note that the majority felt it necessary to have a bright
line rule and not to leave this to the courts to do on a case-by-case basis.
Now, they didn't say that the states had to release all these juveniles.
They're either going to have to put in parole boards or enact statutes that have very long sentences.
Now, this case generated some concurrences and dissents too, didn't it? Yes, Justice Stevens
concurred.
Chief Justice Roberts agreed that life without parole was
unconstitutional as it was applied to this particular case, but he would not have adopted
the categorical rule that the majority did because he said that
some acts by juveniles are going to be sufficiently depraved to merit that punishment.
And in fact, Justice Thomas, in his dissent that was joined by Justices Scalia and Alito,
thought that Graham's sentence was justified
and thought the legislature, not the court, should be making these moral judgments.
Thank you.
Most sentencing issues are not constitutional in nature.
More often they have to do with statutory interpretation,
judicial discretion,
and the federal Sentencing Guidelines.
In Dillon v. United States, all 3 of these elements were present.
Percy Dillon was convicted in 1993 of possessing with intent
to distribute
more than 500 grams of crack and powder cocaine,
as well as using a gun in the commission of a drug trafficking offense.
The combined guideline range for these crimes,
plus his criminal history,
was 262 to 327 months.
The judge sentenced him to
322 months.
When the Sentencing Commission later reduced the crack cocaine guidelines, Dillon moved
to have his sentence reduced under 18
U.S.C. section 3582(c)(2),
which allows a district court to reduce an otherwise final sentence,
pursuant to a guidelines amendment,
if a reduction is consistent with the Commission's policy statements.
In this case the Commission's relevant policy statement
was section 1B1.10,
which precludes a court from reducing a sentence
to a term that is less than the minimum of the amended guideline range.
But Dillon wanted a
further reduction
based on his post-conviction behavior and argued that the Supreme Court's 2005
decision
in United States v. Booker
allowed judges to exercise such discretion.
So, Evan,
how did the Court
find the statute, the guidelines,
and their own precedent interacted to resolve this case?
The Court said that
Booker does not apply to sentence
modifications
under 3582(c)(2),
and therefore the Commission's policy statement, 1B1.10,
couldn't be ignored.
Now, if on the other hand, the Court had
found that this was a resentencing
instead of a sentence modification, then Booker might have applied and
1B1.10
would only have been advisory.
And the Court came out with a 2-step process for the district courts to use.
One, the district court determines whether the guideline amendment
is retroactive and the defendant is eligible for reduction
and then the court,
if they answer that yes,
looks to the 3553(a) factors
and then decides whether it applies.
So, modification is an act of lenity and therefore Booker does not apply.
Even without changes to the Sentencing Guidelines prisoners sentenced for a term of years
can still get their time in prison reduced for good behavior.
The formula the Federal Bureau of Prisons uses to calculate how much time is taken
off a prisoner's sentence was the subject of our next decision,
Barber v. Thomas.
The federal sentencing statute that creates the power to grant so-called "good time credit"
says in part
"[A] prisoner who is serving a term of imprisonment
of more than one year ...
may receive credit toward the service of the prisoner's sentence,
beyond the time served, of up to
54 days
at the end of each year of the prisoner's term of imprisonment,
beginning at the end of the
first year of the term ....
[C]redit for the last year or portion of a year of the term of imprisonment shall be
prorated and credited within the last six weeks of the sentence."
What was the dispute over, Laurie?
Well, the dispute was over the fact that under this method
the prisoner gets 54 days of credit at the end of each year served,
but for the final year
the credit is based on a proration derived from the awards in previous years.
That sounds like the description in the statute.
Who was questioning it?
There was a group of prisoners that filed the original suit arguing that the BOP
method
violated the statute which they claimed required
a calculation to be based on the sentence imposed,
and not on actual time served.
Their method would have meant
several months less prison time for prisoners
who had lengthy sentences and also good behavior records.
Which method did the Court think was best?
The Court concluded that the BOP's method tracked the language of the statute more closely,
and therefore
that was the right one to use.
Our next opinion, United States v.
O'Brien, also revolved around a formula of sorts.
This time the question was whether using a machine gun in commission of a drug trafficking
crime
or crime of violence was an element of that crime
or a sentencing factor
when applying the mandatory minimum provisions of the controlling federal statute.
If it is an element of a crime, it must be proved to a jury beyond a reasonable doubt. If it is a
sentencing factor, it need only be proven to the judge by a preponderance of
the evidence.
Which one did the Court say it was, Laurie? Well, the Court, 9 to 0--9 to zero, said it
was an element of the crime,
that it must be proved to the jury beyond a reasonable doubt.
The Court relied on its 2000 decision in Castillo,
and it had reached the same conclusion regarding the statute before it was amended.
The Court said that you should look to 5 factors for distinguishing between an element
and a sentencing factor.
And those 5 factors are
(1) the language
and structure of the statute,
(2) tradition,
(3) risk of unfairness,
(4) severity of the sentence, and (5) legislative history.
So the Court said that the amendment here did not change the element into a sentencing
factor,
even though the machine gun language was with the sentencing portion of the statute.
Yeah, Justices Stevens and Thomas both concurred with the holding,
but they wrote separately.
They argued that Congress shouldn't have the discretion to treat mandatory minimums
as sentencing factors because in their view
any sentencing fact that limits the discretion of the sentencing judge
should have to be proven beyond a reasonable doubt to a jury.
And I think something interesting about this case is if you take the majority and concurrences
together,
it may look like the Court is ready to overturn MacMillan v. Pennsylvania
and Harris v. United States,
which would find that mandatory minimums would then be subject to the Sixth Amendment concerns
under Apprendi.
And, in fact, Thomas writes about this in his concurrence.
Thank you. Sometimes the errors trial courts make are subtle, and sometimes they are obvious,
or as Federal Rule of Civil Procedure 52(b) puts it,
plain. 52(b) permits an appellate court to recognize "a plain error that affects substantial
rights"
even if the claim of error was "not brought" to the district court's attention.
In United States v. Marcus, the respondent, Glen Marcus, brought
a claim of plain error arguing that some of the sex trafficking
activities he was convicted of
occurred before
the passage of the statute under which he was indicted and tried.
He argued that this was a violation of the Ex Post Facto Clause of the Constitution.
The Second Circuit Court of Appeals found for Marcus, holding
that the district court's
failure to issue a limiting instruction was plain error affecting substantial rights
so long as there was "any possibility, no matter how unlikely,
that the jury could have convicted based exclusively on pre-enactment conduct."
What was the Court's view of plain error here, Evan?
Well, the Supreme Court and the Second Circuit both did agree on the elements of
plain error. It wasn't what you just read, but instead
they said that in order to find plain error
an appellate court needs to find that (1) there is an error,
(2) it has
to be clear and obvious, (3)
the error has to have affected "substantial rights," meaning
that it was prejudicial, and
finally, the error had to have seriously affected the integrity
or public reputation
of judicial proceedings.
But the Supreme Court held here that the failure to issue a limiting instruction would only have
constituted plain error
affecting substantial rights if it was
reasonably probable
that the jury convicted exclusively on evidence of pre-enactment behavior.
I think that's key. Plain error requires a showing of probability of prejudice unless it's a structural
error.
But then the Court kept
the categories of structural error very narrow
to include these examples:
complete denial of counsel,
denial of the right to an impartial judge, denial of the right to self-representation,
erroneous reasonable doubt instruction, or denial of the right to a public trial.
Otherwise, it's not enough to show the possibility of prejudice;
you have to show a reasonable probability
of prejudice.
Laurie, our last opinion, Bloate v. United States, deals with the Speedy Trial Act.
How did that decision affect the law?
Well, under the Speedy Trial Act
a defendant has to be brought to trial within 70 days of an indictment or initial
appearance.
But a judge can find excludable delay.
In some circumstances the excludable delay is automatic. In other situations the judge
must make findings.
In this case what happened is the defendant had moved for extra time
to file some pretrial motions.
Now, there may have been some gamesmanship,
because there was a plea deal that fell out
and then there was this question of whether the time
for the 28 days to file these motions should be excludable.
The court found it to be excludable, but did not make specific findings.
The defendant was convicted,
and he appealed. He had moved to dismiss.
And the issue before the Court was
were those 28 eight days for
pretrial motions going to be automatically excludable, or
did there need to be specific findings?
And what did the Court hold, Evan?
That a continuance to allow a defendant to prepare a pretrial motion is not
automatically excluded
under the Speedy Trial Act. The court has to make specific findings
that the ends of justice served by granting additional time
outweigh ...
you know ... the interests served
... the best interests of the public
and the defendant's interest in a speedy trial.
So the majority did say that once the pretrial motion is filed,
the time until its disposition--
that is automatically excluded.
And the Court did again a strict
construction of the language of the statute.
Its decision was consistent with its 2006 Zedner opinion.
Defendants can't opt out of the Speedy Trial Act.
This Act serves the purpose of the public's interest in a swift trial.
So, in the end, though, it may be no harm, no foul because
the remedy for Speedy Trial
Act violations can be just dismissal without prejudice.
Thank you, Laurie, and thank you, Evan.
The habeas corpus decisions we're going to discuss next raise 4 issues that frequently
arise in court.
First, does equitable tolling apply to the statute of limitations under the Anti-Terrorism and
Effective Death Penalty Act, or AEDPA?
Second,
can a discretionary state rule
serve as an adequate ground to preclude federal habeas review?
Third, what is
"contrary to or an unreasonable application of clearly established federal law"
to permit habeas corpus review? And
finally,
when is a habeas petition barred under AEDPA
as a "second or successive" claim?
We begin with the equitable tolling issue
and the most important case in this group,
Holland v. Florida.
AEDPA requires that habeas corpus petitions from state court convictions
be filed within one year of the completion of state proceedings.
There may never have been a prisoner filing a habeas petition
who was more diligent in trying to meet that deadline
than was Albert Holland.
Unfortunately for him
his state appointed counsel, Bradley Collins,
did not share his client's persistence.
In fact, in some ways
Collins seemed to know less about AEDPA than did Holland.
Regardless of repeated letters from his client
and admonitions to file his habeas petition,
as well as repeated attempts by Holland to fire Collins
which were rebuffed by the state courts,
Collins failed to file the petition
until after the one-year statute of limitations had expired.
The federal district court deemed the petition time barred under AEDPA,
and the Eleventh Circuit Court of Appeals affirmed,
finding there were no extraordinary circumstances in Holland's cases.
So, Erwin,
how did the Court come down on this issue?
The Supreme Court found that equitable tolling
is permissible
under the Anti-Terrorism and Effective Death Penalty Act.
The Court explained that
the time bars are not jurisdictional
and that therefore there should be a presumption in favor of equitable tolling.
The Court also said allowing equitable tolling would not interfere with the underlying goals of
AEDPA,
of expediting the processing of habeas cases.
And the Court pointed out
that habeas corpus,
the Great Writ, is found in the Constitution,
and allowing equitable tolling
would fulfill that constitutional goal.
Well, Laurie, did the Court set forth any standard for what equitable tolling would be allowed?
Yes and no. I mean
certainly a petitioner must show, like Holland did,
that he was extremely diligent in pursuing his rights but extraordinary circumstances
got in the way from a timely filing.
On the other hand, the Court says it's going to be a case-by-case flexible standard.
So we know that garden-variety attorney negligence won't be enough,
but the Court says to the lower courts, look at your own precedent and decide what meets
the standard.
And I think it's very
important that the Supreme Court rejected a very narrow definition of equitable tolling
that the Eleventh Circuit adopted.
The Eleventh Circuit said
equitable tolling is allowed
only if there's
"bad faith,
dishonesty,
divided loyalty,
mental impairment."
And the Supreme Court was clear
that equitable tolling is allowed in many more circumstances than just them.
And I think this is a very important decision. Truly the Great Writ is still the Great Writ,
but it won't be easy because there are going to be very few petitioners who are as diligent
as Holland was,
and they're going to have to show real diligence to meet the standard here.
I agree. And I also agree in terms of its
importance.
The time periods with regard to AEDPA
are very rigid,
and it's often individuals filing habeas petitions pro se on their own. There are
complicated rules in terms of tolling, and
there are many situations besides the
inadequate counsel
that might trigger the need to use
equitable tolling.
The statute of limitations under AEDPA is not the only constraint on federal courts
hearing habeas petitions from state prisoners.
They also may not hear the petition
if there's an independent and adequate state ground
that supports a state court decision.
The question in Beard v. Kindler
was whether a state procedural rule was automatically inadequate to serve as such a bar
if it is discretionary rather than mandatory.
Laurie, what were the facts behind this decision?
Well, Kindler was convicted of murder in the state court in Pennsylvania,
and the jury actually recommended the death sentence.
He filed motions to challenge his conviction,
but then he fled to Canada
before the court could rule on those motions.
The state dismissed the motions.
They recaptured him. He fled again,
and he sought to
revive his post-trial motions. A trial court again denied relief and the state supreme
court upheld it.
But on federal review,
the district court and the Third Circuit said that there was no bar to federal
habeas petition
because under the fugitive forfeiture rule in state court,
the state court had discretion
to review the motions.
What did the Supreme Court think about this? The Supreme Court held that there was an independent
adequate state law ground
that barred habeas corpus review.
The Supreme Court said that a discretionary
rule can be
an independent, adequate state ground.
The Supreme Court said the test for
when state law is an independent, adequate state ground
is whether it's "firmly established
and regularly followed."
And the Court explained the reason it was doing this, because otherwise the state courts would
have a dilemma--
they could either have flexible rules that would not bar
the habeas
or rigid rules which limit the discretion of the judges, and they didn't want
to do that,
especially since there are federal laws that operate the same way.
There is an issue--a tension--to be resolved.
On the one hand, the Supreme Court says it has to be "firmly established and regularly
followed" to be an independent, adequate state ground;
on the other hand, the Court says it can be a discretionary rule.
Well, how often must that discretionary rule be followed
in order to be able to say
it's firmly established and regularly followed?
Well, let's move on to our next habeas case.
The issue in Berghuis v.
Smith involved jury selection.
Smith, the African-American defendant,
was convicted of a second degree murder by an all white jury
and sentenced to life in prison with the possibility of parole.
Smith claimed that blacks were systematically excluded from Michigan juries
and pointed out that while they represented 6 percent of the available jury pool,
only 3 of the 60 to 100 potential jurors called for his trial were black.
The trial court conducted an evidentiary hearing as to whether Smith was denied a fair cross section
of the community on his jury
and concluded that there was insufficient evidence that the jury selection process
had systematically excluded African-Americans
Erwin, what happened next?
The United States Court of Appeals for the Sixth Circuit said that the habeas petition
should have been granted.
But the United States Supreme Court reversed.
The Supreme Court said that under 2254(d)
this wasn't contrary to
or an unreasonable application of clearly established law as articulated by the
Supreme Court.
The Supreme Court focused on an
earlier decision,
Duren v. Missouri,
which articulated a 3-part test when it comes to whether there's
adequate representation of a minority
in the jury pool.
First,
you have to point to a distinctive group,
second,
it has to be shown that the distinctive group
is underrepresented,
and third you have to be able to point to some systemic policy
that led to the underrepresentation of that group.
And the Court held that there was no one acceptable statistical method to do this.
The states can use a variety--what works for them.
Section 2254(d)
of the Anti-Terrorism and Effective Death Penalty Act, AEDPA,
allows a federal habeas court to grant relief
only if a state court decision is "contrary to or
an unreasonable application of clearly established federal law."
In Renico v. Lett,
the issue was whether a state court
declaring a mistrial and then ordering a new trial
was a violation of double jeopardy,
and therefore contrary to or an unreasonable application of federal law.
Laurie, can you fill us in on the facts here?
Sure, Beth.
This was a
fairly straightforward criminal case, and the jury
deliberated over the course of 2 days for about 4 hours before they came back with
a question for the judge:
what if they couldn't reach a verdict?
The judge called them into the courtroom, asked the foreperson--it looked like they couldn't
reach a verdict, so the judge declared a mistrial.
Neither lawyer objected at the time.
Then they had a retrial, and in fact the defendant was convicted.
He said that that was a double jeopardy violation because there should have never been a mistrial--
there was no showing of
a manifest necessity.
What did the Supreme Court say?
The Supreme Court said
trial courts have
broad discretion deciding whether to declare a mistrial.
Also, the Court emphasized
that under 2254(d),
there has to be a great deal
of deference given to the decisions of the state courts.
So did the Court give any guidance on what that broad discretion might be?
Well, it said that there certainly was no minimum time period that a jury had to deliberate.
There was no requirement to question the jurors individually. There was no requirement to get
consent from defense counsel.
There was no requirement for the judge to make explicit findings regarding manifest necessity.
Finally, in Magwood v. Patterson,
we address the issue of second or successive petitions.
Under 2244(b) of AEDPA, a
petitioner must obtain leave from the federal court of appeals to file a second
or successive petition
for habeas relief from a state court judgment.
If the petitioner does not obtain permission
from the appeals court,
the district court must reject the petition,
except under certain statutory requirements.
Billy Joe Magwood was convicted of killing a sheriff in Alabama and sentenced to death.
The federal district court on habeas upheld Magwood's conviction,
but vacated his sentence
and conditionally granted the writ.
The state trial court held a new sentencing procedure,
and again imposed a penalty of death,
saying on the record that the new judgment was the result "of a
complete
and new assessment
of all the evidence,
arguments of counsel, and law."
Magwood appealed in the state courts,
but the sentence was upheld.
He filed another petition
for federal habeas relief, challenging his new death sentence on the grounds that he
was not given notice that he was death eligible
and that his appointed attorney in the second sentencing hearing
had provided ineffective assistance of counsel.
Before addressing the merits of his petition,
the district court sua sponte considered whether the application was barred
as a successive petition
and held that it was not.
Laurie, where did the Supreme Court come down on this? Well, the 5 justices in the majority
held that this petition was not a second or successive one
because, in fact, Magwood was challenging a new judgment.
And just because he could have raised the same objection to his first case,
he didn't, and therefore this was a new review, a new habeas.
The Supreme Court focused on the language of the habeas statute and said that a
new petition
is not necessarily a second or successive petition within the meaning of the statute.
I think what makes this significant
is the Supreme
Court has been so strict in
interpreting the requirements of the Anti-Terrorism and Effective Death Penalty Act,
and here the Court is saying
that it is not going to impose
the strict procedural and substantive requirements
for a second or successive petition
when there has been a
new proceeding in the state courts.
Thank you both.
We're going to take a short break
and then be back with the decisions involving the First Amendment,
federalism, and a number of business issues.