February 24, 2010
Yesterday's Miranda Opinion in Florida v. Powell
is here. The syllabus:
In a pathmarking decision, Miranda v. Arizona, 384 U. S. 436, 471, this Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.” After arresting respondent Powell, but before questioning him,Tampa Police read him their standard Miranda form, stating, inter alia: “You have the right to talk to a lawyer before answering any of our questions” and “[y]ou have the right to use any of these rights at any time you want during this interview.” Powell then admitted he owned a handgun found in a police search. He was charged with possession of a weapon by a convicted felon in violation of Florida law. The trial court denied Powell’s motion to suppress his inculpatory statements, which was based on the contention that the Miranda warnings he received did not adequately convey his right to the presence of an attorney during questioning. Powell was convicted of the gun-possession charge, but the intermediate appellate court held that the trial court should have suppressed the statements. The Florida Supreme Court agreed. It noted that both Miranda and the State Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning. The advice Powell received was misleading, the court believed, because it suggested that he could consult with an attorney only before the police started to question him and did not convey his entitlement to counsel’s presence throughout the interrogation.
1. This Court has jurisdiction to hear this case. Powell contends that jurisdiction is lacking because the Florida Supreme Court relied on the State’s Constitution as well as Miranda, hence the decision
rested on an adequate and independent state ground. See Coleman v. Thompson, 501 U. S. 722, 729. Under Michigan v. Long, 463 U. S. 1032, 1040–1041, however, when a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law,and the adequacy and independence of any possible state-law ground is not clear from the face of its opinion, this Court presumes that federal law controlled the state court’s decision. Although invoking Florida’s Constitution and precedent in addition to this Court’s decisions,the Florida court did not expressly assert that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda. See Long, 463 U. S., at 1044. The state-court opinion consistently trained on what Miranda demands, rather than on what Florida law independently requires. This Court therefore cannot identify, “from the face of the opinion,” a clear statement that the de-cision rested on a state ground separate from Miranda. See Long, 463 U. S., at 1041. Because the opinion does not “indicat[e] clearly and expressly that it is alternatively based on bona fide separate,adequate, and independent [state] grounds,” Long, 463 U. S., at 1041, this Court has jurisdiction. Pp. 4–7.
2. Advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time . . . during th[e] interview,” satisfies Miranda. Pp. 7–13.
(a) Miranda requires that a suspect “be warned prior to any questioning . . . that he has the right to the presence of an attorney.” 384 U. S., at 479. This Miranda warning addresses the Court’s particular concern that “[t]he circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege [to remain silent] by his interrogators.” Id., at 469. Responsive to that concern, the Court stated, as“an absolute prerequisite to interrogation,” that an individual held for questioning “must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” Id., at 471. While the warnings prescribed by Miranda are invariable, this Court has not dictated the words in which the essential information must be conveyed. See, e.g., California v. Prysock, 453 U. S. 355, 359. In determining whether police warnings were satisfactory, reviewing courts are not required to “examine [them] as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’ ” Duckworth v. Eagan, 492 U. S. 195, 203. Pp. 7–9.
(b) The warnings Powell received satisfy this standard. By informing Powell that he had “the right to talk to a lawyer before answering any of [their] questions,” the Tampa officers communicated that he could consult with a lawyer before answering any particular question. And the statement that Powell had “the right to use any of [his] rights at any time [he] want[ed] during th[e] interview” confirmed that he could exercise his right to an attorney while the interrogation was underway. In combination, the two warnings reasonably conveyed the right to have an attorney present, not only at the outset of interrogation, but at all times. To reach the opposite conclusion, i.e., that the attorney would not be present throughout the interrogation, the suspect would have to imagine the counterintuitive and unlikely scenario that, in order to consult counsel, he would be obliged to exit and reenter the interrogation room between each query. Likewise unavailing is the Florida Supreme Court’s conclusion that the warning was misleading because the temporal language that Powell could “talk to a lawyer before answering any of [the officers’] questions” suggested he could consult with an attorney only before the interrogation started. In context, the term “before” merely conveyed that Powell’s right to an attorney became effective before he answered any questions at all. Nothing in the words used indicated that counsel’s presence would be restricted after the questioning commenced. Powell suggests that today’s holding will tempt law en-orcement agencies to end-run Miranda by amending their warnings to introduce ambiguity. But, as the Federal Government explains, it is in law enforcement’s own interest to state warnings with maximum clarity in order to reduce the risk that a court will later find the advice inadequate and therefore suppress a suspect’s statement. The standard warnings used by the Federal Bureau of Investigation are admirably informative, but the Court declines to declare their precise formulation necessary to meet Miranda’s requirements. Different words were used in the advice Powell received, but they communicated the same message. Pp. 9–13.
998 So. 2d 531, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,C. J., and SCALIA, KENNEDY, THOMAS, ALITO, and SOTOMAYOR, JJ., joined, and in which BREYER, J., joined as to Part II. STEVENS, J., filed a dissenting opinion, in which BREYER, J., joined as to Part II.
January 11, 2010
Transcript from Today's Argument in Briscoe v. Virginiais here.
October 09, 2009
Next Week's Oral Arguments
Brief description of the case is from ScotusWiki:
Tuesday, Oct. 13
Padilla v. Commonwealth of Kentucky (08-651) — effect of defense lawyer’s wrong advice on consequences of a guilty plea
Smith v. Spisak (08-724) — unanimity of jury as an issue in finding mitigating evidence in a capital case
Wednesday, Oct. 14
Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime
October 07, 2009
Procedural Default Through Fleeing the Jurisdiction
Kent Scheidegger at Crime and Consequences comments on Beard v. Kindler, scheduled for argument before the Court on November 2. His view of the case:
It is common in that the federal court cavalierly brushed aside the state default rule as "inadequate" with its own inadequate analysis of that issue. The case is unusual, though, in that the default is not some omission by defendant's lawyer in arguing his case but rather defendant's own action in escaping from custody and fleeing to Canada.
ScotusWiki has briefs and the opinion below here.
October 06, 2009
Oral Argument in Maryland v. ShatzerScotusBlog points to the Court's website, which has the transcript from yesterday's oral argument here. Susan Bandes (Depaul) blogs about the argument at ACSBlog in a post entitled Bright Line Fever: The Argument in Maryland v. Shatzer.
October 02, 2009
Next Week's USSC Criminal Law/Procedure Arguments
The summary of the issue comes from ScotusWiki, where you can also find briefs, opinions below, and the like.
Monday, Oct. 5
Maryland v. Shatzer: limits on police questioning after a suspect asks for a lawyer
- ScotusWiki summary
- Testing the Outer Limits of the Edwards Rule: Maryland v. Shatzer (Dripps & Kamisar)
- Previewing the Coming Term (Part 1): Maryland v. Shatzer
Tuesday, Oct. 6
Johnson v. United States: battery as a “violent felony” for sentence enhancement
Bloate v. United States: calculation of time of pre-trial stages under federal Speedy Trial Act
September 30, 2009
Today's Criminal Law and Procedure Cert Grants
SCOTUSblog has summaries, including links to cert petitions, opinions below, and the like, for all ten cases on which the Court granted review here. Here are the excerpts that relate to criminal law and procedure:
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.
Title: Berghuis, Warden v. Smith
Issue: Whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply “clearly established Federal law” under 28 U.S.C. § 2254 when it rejected a state prisoner’s Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).
Title: Berghuis, Warden v. Thompkins
Issue: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.
Title: Holder, Attorney General v. Humanitarian Law Project ; Humanitarian Law Project v. Holder
Issue: Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of “expert advice or assistance” “derived from scientific [or] technical … knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
Title: United States v. O’Brien and Burgess
Issue: Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.
September 08, 2009
McDaniel v. Brown Taken off Court's Argument CalendarThe Court's unusual action in this regard is noted at Crime and Consequences. The case involves a sufficiency of the evidence claim in a habeas case involving an underlying sexual assault conviction. CrimProf summarized the issues and arguments of the parties here.
September 04, 2009
Previewing the Coming Term (Part 14): Briscoe v. Virginia
[This is the fourteenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.This case was previously the subject of a guest post on CrimProf by Professor James J. Duane.]
Case: Briscoe v. Virginia
Docket No.: 07-11191
Oral Argument Date: not yet assigned
Issue: Whether, if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, the state avoids violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?
Factual and Procedural History: Petitioners, Mark A. Briscoe and Sheldon A. Cypress, were charged and convicted on charges relating to the distribution of cocaine. At trial, the key issue was whether the substances seized and introduced by the police and prosecution did actually contain cocaine. The principal evidence introduced to establish this fact was a certificate of analysis prepared by a forensic analyst of the department of Criminal Justice Services. The certificate had test results purporting to show that the seized substances contained large quantities of cocaine.
Petitioners objected to the introduction of the certificate, arguing it was a violation of the Confrontation Clause. The trial court overruled the objection and admitted the certificate. Consequently, petitioners were convicted and sentenced in state prison.
Petitioners appealed to the Supreme Court of Virginia, which affirmed their convictions. The majority opinion found that the certificates were testimonial in nature, but held that Virginia’s statutory scheme that permits them does not violate the Confrontation Clause. Petitioners filed a petition for writ of certiorari with the U.S. Supreme Court, which was granted. Oral argument has not yet been scheduled.
Summary of Petitioner’s Argument: No merit brief filed yet.
Summary of Respondent’s Argument: No merit brief filed yet.
September 03, 2009
Previewing the Coming Term (Part 13): Weyhrauch v. United States
[This is the thirteenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.]
Case: Weyhrauch v. United States
Docket No.: 08-1196
Oral Argument Date: not yet assigned
Issue: Whether 18 U.S.C. § 1346, by criminalizing denials of "the intangible right of honest services," mandates the creation by the federal courts of a federal common law defining the disclosure obligations of state government officials.
Factual and Procedural History: Petitioner, Bruce Weyhrauch, is a licensed attorney who represented Juneau in the Alaska House of Representatives in 2006 while the House was considering legislation that would alter how the state taxed oil production. Five days before the legislature’s scheduled adjournment, petitioner authored a letter to Bill Allen, the CEO of an oil fields services company, requesting further conversations about petitioner’s law office representing his oil company. The letter included a heading that stated “Advertising Material.”
Because of this letter, petitioner was charged with allegations that he improperly requested employment during his representation of the city, and sought early adjournment of the special session of the legislature in favor of the oil company. In the end, the government officially charged him with, among other things, devising “a scheme and artifice to defraud and deprive the State of Alaska of its intangible right to honest services...performed free from deceit, self-dealing, bias, and concealment,” in violation of 18 U.S.C. §§ 1341 and 1346.
Prior to trial, the government proposed to introduce several pieces of evidence to establish that petitioner violated § 1346 by knowingly concealing a conflict of interest. Petitioner moved to exclude the government’s evidence for lack of relevance on the ground that Alaska law does not require that state legislators disclose ongoing negotiations for employment. The district court granted petitioner’s motion to exclude, finding that federal common law does not provide the requisite duty to disclose.
The court of appeals reversed and remanded, noting that while Congress had created some confusion over the reach of the mail fraud statute, and that the circuits have been split on the proper meaning of “honest services” for public officials, the Ninth Circuit has held that § 1346 creates a uniform standard for “honest services” that governs every public official, and the government need not prove an independent violation of state law to sustain an honest services fraud conviction. Petitioner’s timely petition for rehearing en banc was denied, and a writ of certiorari was granted by the U.S. Supreme Court. Oral argument has not yet been scheduled.
Summary of Petitioner’s Argument: No merit brief has been filed yet.
Summary of Respondent’s Argument: No merit brief has been filed yet.
September 02, 2009
Previewing the Coming Term (Part 12): United States v. Comstock
[This is the twelfth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.]
Case: United States v. Comstock
Docket No.: 08-1224
Oral Argument Date: not yet assigned
Issue: Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.
Factual and Procedural History: This case consists of five civil-commitment proceedings that were initiated by the United States in the District Court for the Eastern District of North Carolina. The United States instituted proceedings against each of the five respondents (Comstock, Revland, Matherly, and Vigil) pursuant to § 4248 in November and December 2006. At that time, each respondent was scheduled to complete a prison term. The fifth respondent, Catron, was indicted in 2004 on four counts of aggravated sexual abuse of a minor under the age of 12, and one count of abusive sexual conduct. He was found incompetent to stand trial, and was committed for evaluation. The government subsequently initiated civil-commitment proceedings against him under 18 U.S.C. § 4246, which were then transferred via a proceeding under § 4248.
Each of the five respondents moved to dismiss their respective civil-commitment proceedings on various constitutional grounds. On September 7, 2007, the district court granted their motions to dismiss in a single opinion, rejecting the government’s arguments that § 4248 commitment proceedings are civil rather than criminal. The district court held § 4248 to be unconstitutional on two grounds: (1) it is beyond Congress’s powers under the Commerce Clause and the Necessary and Proper clause; and (2) it violates the requirements of procedural due process because it requires the government to prove the commission of prior acts or attempts to engage in sexually violent conduct of child molestation by clear and convincing evidence rather than beyond a reasonable doubt.
The court of appeals affirmed, holding that § 4248 is unconstitutional on its face because it exceeds Congress’s enumerated powers “to confine a person solely because of asserted ‘sexual dangerousness’ when the Government need not allege (let alone prove) that this ‘dangerousness’ violates any federal law.”
Summary of Petitioner’s Argument: No merit brief filed yet.
Summary of Respondent’s Argument: No merit brief filed yet.
September 01, 2009
Previewing the Coming Term (Part 11): Black v. United States
[This is the eleventh in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.}
Case: Black v. United .States
Docket No.: 08-876
Oral Argument Date: not yet assigned
Issues: (1) Whether 18 U.S.C. § 1346 applies to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to the private party to whom honest services were owed; (2) Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.
Factual and Procedural History: The U.S. Supreme Court held, in McNally v. United States, 483 U.S. 350 (1987), a public corruption case, that the mail fraud statute could not be used to prosecute schemes to deprive the citizenry of the intangible right to good government. Congress responded in 1988 by enacting 18 U.S.C. § 1346, which expands the definition of a "scheme or artifice to defraud" under the mail and wire fraud statutes to encompass schemes that "deprive another of the intangible right of honest services." Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant's conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government's bid to have the jury return a "special verdict," a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights.
Summary of Petitioners’ Argument: Petitioners argue the Supreme Court’s holding in McNally is dispositive in this case. Moreover, according to petitioners, § 1346, as drafted and adopted by Congress, failed to clearly address the concerns of the Court by enjoining the deprivation of the “intangible right of honest services.” Petitioners argue the lower courts have construed this language as a “direction to revive the body of case law that antedated McNally.” Ultimately, according to petitioners, interpreting § 1346 based on pre-McNally case law would be in error because it would involve, as applied in this case, purely private conduct.
In the alternative, “[w]hatever the precise scope of Section 1346,” petitioners argue it is “clear” their convictions “must be reversed because the district court refused to instruct the jury on the one requirement that is apparent from the text and history of the statute.” According to petitioners, the language of § 1346 precludes prosecutors from prosecuting dishonest conduct outside the common understanding of fraud. Petitioners argue the Seventh Circuit was incorrect when it found that the jury might have convicted petitioners anyway if properly instructed. Accordingly, petitioners request the Court to reverse the obstruction of justice and fraud convictions.
Summary of Respondent's Argument: Merits brief not yet filed.
August 31, 2009
Previewing the Coming Term (Part 10): Florida v. Powell
[This is the tenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. This case has not yet been assigned an argument date, and the parties' merits briefs have not yet been filed. Peter excerpts and paraphrases the briefs of the parties regarding the cert petition to provide an overview of the cases and the advocates’ arguments. Links to the opinion below appears at the end of the summary.]
Docket No.: 08-1175
Case: Florida v. Powell
Oral Argument Date: not yet assigned
Issue: Must a statement be suppressed if the suspect was not expressly advised of his right to have counsel present during interrogation, even if the suspect was advised of the right to talk with an attorney "before questioning" and the "right to use" any of his rights "at any time" during interrogation.
Factual & Procedural History: In 2004, Florida police arrested respondent, Kevin Dwayne Powell, and transported him to police headquarters where he was questioned after being advised of his Miranda rights.
At trial, during the direct examination of the investigating detective, respondent’s trial counsel objected to testimony concerning respondent’s statements to police on the ground that the Miranda warning given was invalid. Subsequent testimony revealed that the standard police form used during the interrogation of respondent did not explicitly indicate he had the right to have an attorney present during questioning. The warning read as follows:
" You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."
The trial court ruled that the warning was adequate.
On appeal, the Second District reversed respondent’s conviction, holding that the Miranda warnings were deficient under the Fifth Amendment because respondent was not “clearly informed” of his right to have a lawyer with him during questioning.
The Florida Supreme Court affirmed, holding that respondent was not clearly informed of his right to have counsel present during questioning. According to the Florida Supreme Court, the standard police form used during the interrogation of respondent failed Miranda because it did not expressly state that respondent had the right to have counsel present during the interrogation, which is “indispensable to the protection of the Fifth Amendment privilege.” Consequently, according to the Florida Court, because both Miranda and the Florida Constitution require that a “suspect be clearly informed of the right to have a lawyer present during questioning,” the Second District’s decision was affirmed.
Petitioner's Argument: Merits brief not yet filed.
Respondent's Argument: Merits brief not yet filed.
August 29, 2009
Previewing the Coming Term (Part Nine): Graham v. Florida
[This is the ninth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-7412
Case: Graham v. Florida
Oral Argument: November 9, 2009
Issue: Whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide crime.
[Another case raising similar issues and to be argued on the same day, Sullivan v. Florida, was previewed yesterday.]
Factual and Procedural History: At age sixteen, petitioner was charged with (1) armed burglary with assault or battery, and (2) attempted armed robbery. Petitioner pled guilty to the offenses in return for three years' probation and a twelve-month sentence in a pre-trial detention facility.
In 2004, after petitioner was released from jail, an affidavit of violation of probation was filed alleging petitioner committed an armed home invasion robbery. At his probation revocation hearing, the State presented evidence establishing that petitioner committed the armed home invasion robbery, as well as similar robberies in an adjacent neighborhood. Following this hearing, the trial court found petitioner guilty of the alleged violations and sentenced him to life imprisonment without the possibility of parole. Petitioner was nineteen years old at the time of his sentencing.
Petitioner appealed in the Florida District Court of Appeal, asserting both facial and as applied constitutional violations arising from his sentence. The District Court of Appeal rejected both claims, affirming the lower court, finding there is no “per se ban on the sentencing of juveniles to life imprisonment,” and that petitioner’s sentence was not grossly disproportionate to his crime. The Supreme Court of Florida denied discretionary review. The U.S. Supreme Court granted a writ of certiorari on May 4, 2009. Oral argument is scheduled for November 9, 2009.
Summary of Petitioner’s Argument: Petitioner argues that, pursuant to Roper v. Simmons (2005), petitioner’s sentence is “grossly disproportionate when viewed through the prism of his status as a juvenile offender.” According to petitioner, juveniles possess less maturity and an underdeveloped sense of responsibility. Thus, they are more vulnerable and susceptible to negative and outside influences. Consequently, according to petitioner, imprisoning juvenile offenders for life without parole for non-homicide offenses is unjustifiable.
According to petitioner, Roper supports his claim. The rationales of rehabilitation and deterrence are not applicable to juveniles, and petitioner’s sentence is significantly greater than the average sentences for all offenders convicted in Florida of violent crimes or armed burglaries. Consequently, petitioner requests the lower court’s decision be reversed and remanded.
Summary of Respondent’s Argument: Respondent has not yet filed a merits brief.
August 28, 2009
Previewing the Coming Term (Part Eight): Sullivan v. Florida
[This is the eighth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-7621
Case: Sullivan v. Florida
Oral Argument Date: November 9, 2009
Issue: Whether the imposition of a life without parole sentence on a thirteen-year-old for a non-homicide violates the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments.
Factual and Procedural History: Petitioner, Joe Sullivan, was arrested in 1989 at the age of thirteen and was indicted as an adult for sexual battery in violation of Florida law. After a one-day trial, petitioner was convicted and sentenced to life imprisonment with no possibility for parole.
On appeal, the First District Court of Appeal affirmed the conviction without opinion. The Florida Supreme Court dismissed review without opinion. After the U.S. Supreme Court decided Roper v. Simmons (2005), petitioner filed a motion for post-conviction relief, contending Roper rendered his life-without-parole sentence unconstitutional. In 2007, the trial court dismissed the motion with prejudice, concluding petitioner’s invocation of Roper is “meritless,” citing Florida jurisprudence declining to extend Roper.
The Florida First District Court of Appeal summarily affirmed without opinion, denying rehearing and certification to the Florida Supreme Court. On May 4, 2009, a petition for certiorari was granted by the U.S. Supreme Court. Oral argument is scheduled for November 9, 2009.
Summary of Petitioner’s Argument: According to petitioner, the constitutional logic of Roper controls this case and “requires the invalidation of a sentence of life imprisonment without parole imposed on a 13-year-old child.” According to petitioner, only nine individuals in the entire country are serving life-without-parole sentences for crimes committed at age thirteen. Consequently, these sentences are not the result of “legislative decisions that life in prison without parole is appropriate for children in this age range but rather results from the adventitious overlay of two legislative developments – legislation changing the boundaries of exclusive juvenile-court jurisdiction so as to make more children subject to adult-court prosecution; and legislation increasing the number of adult crimes punishable by life imprisonment without parole.”
According to petitioner, because the total national accumulation of life-without-parole sentences for 13-year-olds has been only nine, and in light of Roper, there has been a “radical repudiation of life without parole for children of this age .” Consequently, petitioner requests the lower courts sentencing be reversed and remanded.
Summary of Respondent’s Argument: No merits brief has yet been filed.
August 27, 2009
Previewing the Coming Term (Part Seven): Wood v. Allen
[This is the seventh in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-9156
Case: Wood v. Allen
Oral Argument Date: November 4, 2009
Issue: (1) Whether the state court erred in concluding that, during the sentencing phase of a capital case, the defense attorney’s failure to present the defendant’s impaired mental functions constituted ineffective counsel; and (2) whether the 11th Circuit erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) in reviewing the state court decision.
Factual and Procedural History: In 1994, petitioner, Holly Wood, was convicted of capital murder during a first-degree burglary. The jury recommended a death sentence, and after a pre-sentencing report and a separate sentencing hearing, the trial judge sentenced petitioner to death. On direct appeal, the Alabama Court of Appeals rejected petitioner’s appeal, and the Alabama Supreme Court affirmed.
After the U.S. Supreme Court denied petitioner’s original writ of certiorari, petitioner filed an Alabama Rule of Criminal Procedure Rule 32 petition for post-conviction relief, claiming (1) he is mentally retarded and not eligible for a death sentence, and (2) his trial counsel were ineffective by failing to investigate and present evidence of his mental deficiencies during the penalty phase. After two evidentiary hearings, the Rule 32 court denied both of petitioner’s requests in two separate orders.
Following the issuance of these orders, and following subsequent U.S. Supreme Court jurisprudence, the Alabama Appeals Court remanded petitioner’s Rule 32 case. On remand, the Rule 32 court denied petitioner’s claims, finding petitioner was not mentally retarded and his counsel were not ineffective. The Alabama Appeals Court adopted and affirmed the Rule 32 court finding. Subsequently, the Alabama Supreme Court denied certiorari.
Petitioner then filed a 28 U.S.C. § 2254 petition for relief. The district court denied some claims, but granted relief on petitioner’s claim that his counsel were ineffective in the penalty phase by failing to investigate and present evidence of his deficient “intellectual functioning.” On appeal, a divided panel of the Eleventh Circuit reversed, holding that petitioner had “failed to show the state courts made an unreasonable determination of the facts” because at a minimum, petitioner has not presented evidence, “much less clear and convincing evidence, that counsel” acted ineffectively. The majority also held that petitioner had failed to establish prejudice.
The U.S. Supreme Court granted petitioner’s petition for a writ of certiorari on May 18, 2009. Oral argument is scheduled for November 4, 2009.
Summary of Petitioner’s Arguments: Petitioner argues that the Eleventh Circuit’s judgment, reversing the district court’s grant of habeas relief on petitioner’s ineffective assistance claim, should be reversed for three reasons.
First, petitioner argues that trial counsel were ineffective because they terminated their investigation into petitioner’s mental deficiencies in the face of facts that any reasonable defense lawyer would have understood required follow-up, not abandonment. Second, according to petitioners, the state court decision was based on an unreasonable determination of the facts in light of the totality of the evidence presented in the state court proceeding. And third, petitioner contends the individual findings of fact in the state court record are rebutted by clear and convincing evidence, entitling petitioner to relief.
According to petitioner, the deficient performance of his counsel prejudiced his case as the jury was deprived of the opportunity to give “full consideration of evidence that [would] mitigate against the death penalty.” Petitioner argues that if this evidence was presented, it is very likely that his conviction would have “resulted in at least one more vote for a sentence of life without parole.”
Summary of Respondent’s Argument: Respondent has not yet filed a merit brief.
Previewing the Coming Term (Part 6): Pottawattamie County v. McGhee
[This is the sixth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-1065
Case: Pottawattamie County et al. v. McGhee et al.
Oral Argument Date: November 4, 2009
Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation and introducing that same testimony against the criminal defendant at trial.
Factual and Procedural History: In 1978, Curtis W. McGhee, Jr., and Terry Harrington, respondents, were convicted of murdering a retired police officer. McGhee and Harrington were each sentenced to life in prison. In 2002, the Iowa Supreme Court reversed Harrington’s conviction and remanded for a new trial, finding the prosecutor failed to disclose evidence of an alternative suspect. The prosecutor concluded it would be impossible to retry Harrington and also agreed to move to vacate McGhee’s conviction. McGhee agreed to enter a plea to second degree murder in exchange for a sentence of time served. With these agreements, McGhee was released.
Both McGhee and Harrington brought civil rights actions against Pottawattamie County, Iowa, and the former prosecutors and officers involved in the initial investigation and prosecution. They argued that these individuals used perjured and fabricated testimony and withheld evidence in violation of the Constitution. The district court found the defendants were entitled to qualified immunity on certain claims, and denied qualified immunity and absolute immunity on the remaining claims.
Two of the original defendants filed a consolidated interlocutory appeal from the denial of qualified, absolute and sovereign immunity, arguing the district court (1) used an improper standard for determining probable cause in the absolute immunity analysis; (2) erred in waiving sovereign immunity for the prosecutors, and (3) erred in concluding McGhee and Harrington alleged a constitutional violation when the district court denied qualified immunity to the two defendant petitioners.
The Eighth Circuit held the prosecutors’ procurement of false testimony violated respondents’ right to substantive due process; moreover, prosecutors were not entitled to immunity for that violation “where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial.” The prosecutors filed a writ of certiorari, which was granted. Oral argument is scheduled for November 4, 2009.
Summary of Petitioner’s Argument: Petitioners argue they are absolutely immune from claims that they introduced perjured testimony at respondent’s trials. According to petitioners, the courts below should not have “abrogated petitioners’ absolute immunity where the alleged constitutional injury was a conviction in violation of due process.”
Petitioners argue that instead of analyzing the relevant fair trial claims, the courts below erroneously focused on pre-trial conduct. According to petitioners, liability against a prosecutor for the outcome of a trial, in this case a conviction in violation of due process, may not be predicated on conduct before trial.
Summary of Respondent’s Argument: No brief on the merits has yet been filed.
August 26, 2009
Previewing the Coming Term (Part 5): Smith v. Spisak
[This is the fifth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-724
Case: Smith v. Spisak
Oral Argument Date: October 13, 2009
Issue: Whether the Sixth Circuit contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) by improperly extending Mills v. Maryland.
Facts and Procedural History: In March 1983, Frank G. Spisak, Jr., respondent, was indicted by an Ohio grand jury on four counts of aggravated murder, three counts of aggravated robbery, one count of attempted murder, and one count of receiving stolen property. Respondent pled not guilty by reason of insanity, and was subsequently determined to be competent to stand trial.
In July 1983, respondent was convicted on all counts and specifications, minus one of the aggravated robbery counts. Following the mitigation phase of the trial, the jury recommended a sentence of death, which was accepted by the trial court. Respondent was sentenced to death in August, 1983, as well as terms of seven to twenty-five years in prison for each attempted murder and aggravated robbery conviction.
Respondent timely appealed to the Ohio Court of Appeals, which found respondent was improperly convicted of two counts of aggravated murder, and vacated one of the two convictions. The court affirmed the conviction and death sentence on the other aggravated murder charges.
Respondent subsequently filed several unsuccessful intervening appeals requesting remand to the Ohio Supreme Court. In November 1986, respondent filed a merits brief with the Ohio Supreme Court, raising sixty-four proposed errors of law. The Ohio Supreme Court affirmed respondent’s convictions and sentence.
Respondent then petitioned the U.S. Supreme Court for a writ of certiorari, which was denied. (Spisak v. Ohio, 489 U.S. 1071 (1989)). In December 1995, respondent filed a Petition for Writ of Habeas Corpus with the Sixth Circuit. Subsequent to that filing, respondent filed a motion with the Sixth Circuit in June 1997 to stay his execution, which was granted. On appeal, the Sixth Circuit reversed and vacated respondent’s death sentence on the grounds that (1) respondent’s trial counsel rendered ineffective assistance, and (2) the jury instructions violated Mills v. Maryland by requiring unanimity in the finding that the aggravating circumstances outweighed the mitigating factors present in respondent’s case.
The state filed a petition for certiorari, arguing the Sixth Circuit’s decision contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The U.S. Supreme Court granted cert., vacated the decision below, and remanded the case to the Sixth Circuit for reconsideration in light of two recent Supreme Court cases interpreting the scope of AEDPA, Carey v. Musladin and Schriro v. Landrigan. On remand, the Sixth Circuit held that neither case required reversal and reinstated its original opinion. The state filed a second petition for certiorari, which the Supreme Court granted on February 23, 2009. Oral argument is scheduled for October 13, 2009.
Summary of Petitioner’s Argument: Petitioner argues that respondent, Spisak, is not entitled to habeas relief because (1) the penalty-phase jury instructions did not violate Mills v. Maryland, and (2) trial counsel’s closing argument was not constitutionally ineffective.
First, according to petitioner, the jury instructions in this case were “fully consistent with the Eighth Amendment.” Petitioner contends that the jury was not directed to enter any findings as to particular mitigating factors. Consequently, according to petitioner, the Sixth Circuit “identified no sound basis for invalidating the instructions under Mills.”
Second, petitioner argues that trial counsel’s penalty-phase closing argument was neither deficient nor prejudicial under the two-pronged analysis of Strickland v. Washington. According to petitioner, it was not deficient because counsel reasonably emphasized respondent’s mental defects as a mitigating factor and bolstered his own credibility with the jurors by acknowledging his client’s offensive views. Further, it was not prejudicial because nothing defense counsel said could have affected the minds of jurors who had sat through a lengthy trial and heard respondent’s own “chilling, hate-filled testimony.” Consequently, petitioner requests the Court to reverse the Sixth Circuit’s grant of respondent’s writ.
Summary of Respondent’s Argument: Respondent argues that the Sixth Circuit properly reviewed the merits and underlying state court decision in determining that respondent was entitled to habeas relief on two independent grounds.
First, respondent argues the Sixth Court properly determined that Ohio’s mitigation phase jury instructions violated the Supreme Court’s directives in Mills v. Maryland. The Sixth Circuit properly reviewed the totality of the instructions and verdict forms and concluded there was a reasonable probability that a juror would have been foreclosed from considering and giving effect to the mitigation evidence presented. Consequently, it was proper for the Sixth Circuit to find that permitting one juror to force a death sentence on the remaining jurors is the essence of a Mills error.
Second, respondent argues the Sixth Circuit also properly determined that respondent’s trial counsel was constitutionally ineffective in the closing argument he delivered during the mitigation phase of the case. According to respondent, the Sixth Circuit properly determined that counsel’s improper emphasis of non-statutory aggravating circumstances, his overt attacks on respondent, “his incoherent ramblings on the justice system,” and his failure to argue the mitigating factors present in the case amounted to ineffective assistance of counsel. Consequently, respondent argues the Court should affirm the Sixth Circuit’s granting of the writ.
Previewing the Coming Term (Part 4): Padilla v. Kentucky
[This is the fourth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-651
Case: Padilla v. Commonwealth of Kentucky
Oral Argument Date: October 13, 2009
Issue: Whether the Sixth Amendment’s guarantee of effective assistance of counsel (1) requires a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and (2) if there is no such advice, and that misadvice about deportation induces a guilty plea, whether the misadvice amounts to ineffective assistance of counsel and warrants setting aside the guilty plea.
Factual and Procedural History: Petitioner, Jose Padilla, who is a native of Honduras, was indicted by a state grand jury for trafficking more than five pounds of marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer without a weight and distance tax number. Represented by counsel, petitioner entered a guilty plea to the three drug-related charges in exchange for a dismissal of the remaining charge and a total sentence of ten years.
Two years later, petitioner filed a motion for post-conviction relief, alleging his attorney was ineffective by misadvising him about the potential for deportation as a consequence of his guilty plea. The state circuit court denied the motion on the basis that a valid guilty plea does not require the defendant be informed of every possible consequence of a guilty plea.
On appeal, the state Court of Appeals reversed, remanding the case for an evidentiary hearing. The Court of Appeals concluded that counsel’s wrong advice in the trial court regarding deportation could constitute ineffective assistance of counsel.
The Kentucky Supreme Court rejected petitioner’s request for relief and held that, even when mandatory, deportation is only a “collateral consequence” of a conviction “outside the scope of the guarantee of the Sixth Amendment right to counsel.” The Kentucky Supreme Court reasoned that a situation of “gross misadvice,” rather than mere silence or an omission, similarly failed to trigger Strickland and the Sixth Amendment.
Petitioner filed a writ of certiorari, which was granted. Oral argument is scheduled for October 13, 2009.
Summary of Petitioner’s Argument: Petitioner argues that the Kentucky Supreme Court’s collateral consequences rule has no foundation in the Sixth Amendment and contradicts Supreme Court precedent. According to petitioner, the collateral consequences doctrine arose and was created to define the duties of a court with regard to accepting guilty pleas under Federal Rule of Criminal Procedure 11, not with regard to the much broader issue of defense counsel’s effectiveness. Thus, the Kentucky Supreme Court’s use of the collateral consequences doctrine was in error.
Moreover, according to petitioner, the collateral consequences doctrine is contrary to Strickland, the “most basic ethical rules of the profession,” and specific professional standards of the American Bar Association and public defenders’ organizations requiring criminal defense counsel to investigate and advise clients about the collateral consequences of conviction (especially deportation). According to petitioner, on any of these grounds, “Kentucky’s aberrant collateral-consequences rules should fall, and this case should be remanded for a determination of Padilla’s entitlement to an evidentiary hearing under state law.”
Summary of Respondent’s Argument: Respondent argues that neither the Supreme Court nor the federal circuits have ever held that the “trial court or defense counsel must inform defendants of all possible consequences flowing from a guilty plea.” Consequently, a defendant’s misunderstanding of a collateral matter “does not affect that defendant’s understanding of the right to trial by jury, right of confrontation, the protection against self-incrimination, or any other right waived when pleading guilty.”
According to respondent, the near impossibility of cataloguing all potential collateral consequences of a criminal conviction illustrates that an ineffective assistance of counsel inquiry should be limited to whether the defendant voluntarily entered a guilty plea. Advice about potential consequences collateral to a criminal prosecution, according to respondent, “is not a cognizable basis for claiming counsel ineffectiveness.”
Even if the Court decides to expand the protections of the Sixth Amendment to petitioner, according to respondent, the claim still fails as petitioner has “not demonstrated and cannot demonstrate how the criminal proceeding was fundamentally unfair or that he suffered prejudice necessitating reversal under the second prong” of Strickland.
August 25, 2009
Previewing the Coming Term (Part 3): McDaniel v. Brown
[This is the third in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-559
Case: E.K. McDaniel, Warden, et al., v. Troy Brown
Oral Argument Date: originally scheduled for October 13, 2009, but subsequently removed from argument calendar
Issue: Whether, on federal habeas review, the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under Jackson v. Virginia (1979).
Factual and Procedural History: In 1994, Troy Brown, respondent, was arrested for the sexual assault of a nine-year-old girl in Carlin, Nevada. At trial, the prosecution presented testimonial evidence from a DNA expert, Renee Romero, who testified that, among other things, there was a 99% chance that Brown was the assailant. Brown was subsequently convicted on several counts of sexual assault and one count of child neglect.
Brown appealed to the Nevada Supreme Court, arguing, among other things, that the evidence was insufficient to sustain his conviction. The Nevada Supreme Court vacated the child neglect charge and remanded the case for resentencing on the second sexual assault count. The trial court re-sentenced Brown to life with the possibility of parole on both counts, to run consecutively. Brown again appealed to the Nevada Supreme Court, which rejected his appeal. Brown filed a state petition for post-conviction relief, which was denied by the state court.
In 2004, Brown filed a federal petition for writ of habeas corpus, arguing violations of due process and ineffective assistance of counsel. The district court granted Brown’s petition, permitting Brown to expand the record by providing testimony of a professor who directly discredited Romero’s initial DNA testimony. The district court concluded that, in light of this new evidence, Romero’s testimony was unreliable, and absent it no rational trier of fact could conclude beyond a reasonable doubt that Brown was guilty of each and every element of the offenses with which he was charged.
The Ninth Circuit affirmed, finding the conflicts in the evidence “simply too stark for any rational trier of fact to believe that [Brown] was the assailant beyond a reasonable doubt, an essential element of any sexual assault charge.” Therefore, according to the Ninth Circuit, the Nevada Supreme Court’s decision was an “unreasonable application” of the Jackson v. Virginia (1979) standard, which stands for the proposition that a conviction must be upheld if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Summary of Petitioner’s Argument: Petitioner argues the Nevada Supreme Court’s examination of Brown’s sufficiency-of-the-evidence claim under the Jackson standard was neither contrary to clearly established federal law nor an objectively unreasonable application of Jackson.
According to petitioner, the Ninth Circuit erroneously determined that the Nevada Supreme Court did not apply the Jackson standard and that, therefore, its adjudication of Brown’s claim was “contrary to” clearly established federal law. Petitioner argues that evidence not presented to the jury may not be considered in any application of the Jackson standard and that, accordingly, the Ninth Circuit erred.
Moreover, petitioner argues that resolving the case in favor of Brown would “have the effect of making a state court trial a mere formality, a warm-up for proceedings in federal court, and would permit federal courts to usurp the province of the jury to resolve conflicts, determine the credibility of the evidence, the reliability of the evidence and the weight to give evidence.” Consequently, according to petitioner, federal habeas courts are required to determine whether the State court’s adjudication of a sufficiency-of-the-evidence claim was an objectively unreasonable application of clearly established federal law, not merely erroneous. Here, the Ninth Circuit and the federal district court failed to abide by such a standard.
Summary of Respondent’s Argument: In respondent’s view, the constitutional error in this case is “clear and fundamental.” According to respondent, the prosecutor in this case obtained a guilty verdict “despite demonstrable evidentiary shortcomings in the case against [him].” Consequently, respondent argues these errors rendered the trial fundamentally unfair and were in violation of his right to due process. According to respondent, habeas relief was plainly justified in light of the erroneous use of unreliable DNA testimony to achieve a guilty verdict.
Interestingly, respondent claims the Ninth Circuit incorrectly addressed this issue under the Jackson standard rather than a harmless error analysis. Respondent concedes this case cannot be decided pursuant to Jackson. However, respondent argues that under either the standard applied by the Ninth Circuit or the harmless standard, respondent’s petition for a writ of habeas corpus was properly granted. In the alternative, respondent asks for the case to be remanded to the Ninth Circuit for analysis under the harmless error standard.