CrimProf Blog

Previewing the Coming Term (Part 2): Johnson v. United States

[This is the second 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: 08-6925
Case:  Johnson v. United States
Oral Argument Date:  October 6, 2009

Issue:  Whether a prior state conviction for battery is, in all cases, a “violent felony” under the federal Armed Career Criminal Act (“ACCA”) even when that offense does not have as an element the use or threatened use of physical force.

Factual and Procedural History:  Petitioner, Curtis Darnell Johnson, was convicted of possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g).  He was subsequently sentenced under the ACCA (18 U.S.C. § 924(e)) because he had three prior convictions for violent felonies.  One of his prior violent felony convictions was for a battery in Florida, which would have been a misdemeanor if not for a state law enhancing it to a felony because of a prior battery conviction.

Petitioner appealed, contending the felony battery under Florida law was not a “violent felony” for the purposes of the ACCA.  The 11th Circuit rejected his argument, affirming his conviction and ruling that the elements of the crime of battery satisfied the definition of “violent” under the ACCA.  Petitioner filed a petition for certiorari, which was granted on February 23, 2009.  Oral argument has been scheduled for October 6, 2009.

Summary of Petitioner Argument:  According to Petitioner, a battery committed by the slightest non-consensual touching does not constitute a “violent felony” for the purposes of the ACCA.  A violent felony under the ACCA must be one that has as an element the use, attempted use, or threatened use of physical force against the person of another.  In this case, Petitioner argues the battery of which he was previously convicted does not fit within this definition, that the 11th Circuit’s ruling should therefore be reversed and remanded for re-sentencing.

In the end, petitioner argues that because the Florida Supreme Court has held that simple battery does not contain “the use or threat of physical force” as an element of the crime, the Supreme Court should hold that the ACCA was improperly applied to his federal sentencing, and remand the case.

Summary of Respondent Argument:  According to Respondent, the 11th Circuit correctly concluded that Petitioner’s conviction for felony battery in violation of Florida law qualifies as a “violent felony” under the ACCA because battery has as an element the use of physical force against the person of another.

Respondent argues that Petitioner’s statutory interpretation of the ACCA’s definition of “violent felony” limits the meaning of “physical force” to violent and aggressive force, which is contrary to the intention of Congress.  In the end, according to Respondent, Petitioner’s assertions rest on an erroneous assumption – a “violent” crime must necessarily involve the use of “violent,” and potentially injurious, force.  

Additionally, Respondent argues that even if the Court were to accept Petitioner’s restrictive reading of the applicable statutes, the proper course would not be to reverse the judgment of the court of appeals, but rather to vacate the judgment and allow the court of appeals to consider whether, as the district court held, felony battery qualifies as a “violent felony” under the applicable statutory provisions.

Brief for Petitioner Curtis Darnell Johnson

Brief for Respondent United States of America

Previewing the Coming Term (Part 1): Maryland v. Shatzer

[This is the first 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: 08-680
Case:  Maryland v. Shatzer
Oral Argument Date:  October 5, 2009

Issue:  Whether Edwards v. Arizona (1981), which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to interrogation that takes place nearly three years after the initial interrogation and invocation of right to counsel.

Factual and Procedural History:  In August 2003, acting on information that respondent, Michael Shatzer, Sr., had sexually abused his three-year-old son, Maryland police interviewed respondent in prison where he was serving a sentence on unrelated charges.  Shatzer invoked his right to counsel and ended the interrogation.  Subsequently, the investigation was closed. 

In March 2006, nearly three years later, Shatzer’s son provided Maryland police with additional information about the alleged sexual abuse.  Shortly thereafter, a different police officer informed Shatzer, who was still incarcerated, that a new investigation had been initiated.  Shatzer waived his Miranda rights and denied the new allegations that he forced his son to perform oral sex on him, but admitted to masturbating in front of his son.  Several days later, Shatzer was again given his Miranda rights, but then failed a polygraph test.  Maryland police immediately questioned Shatzer thereafter, at which time he began to cry and say, “I didn’t force him. I didn’t force him.” Shatzer then requested an attorney, the interview ended, and he was subsequently charged with sexually abusing his son.

At trial, Shatzer filed a motion to suppress his March 2006 statements on the ground that, under Edwards, his 2003 invocation of his right to counsel barred police from interrogating him in 2006 without an attorney present.  The trial court denied the motion, holding that his continuous incarceration on an unrelated offense for nearly three years constituted a break in custody for Miranda purposes, thereby terminating Edwards’s prohibition on re-interrogation.  The court subsequently found Shatzer guilty of sexual abuse.

The Maryland Court of Appeals reversed, holding that under Edwards, once the right to counsel is asserted, the suspect may not be re-interrogated until he is provided with counsel or he voluntarily initiates communication.  The Court stated that “the passage of time alone” will not end Edwards protections.  Any “break in custody” exception to Edwards must mean something different than “custody” for Miranda purposes and, regardless, is inapplicable to an inmate who has been continuously incarcerated between interrogations.

Maryland filed a petition for certiorari in which it asked the Supreme Court to grant review to resolve disagreement in the lower courts on whether the Edwards prohibition on re-interrogation may terminate as a result of either a break in custody or a substantial lapse in time. The petition was granted on January 26, 2009.

Summary of Petitioner Argument:  According to Petitioner (Maryland), the Maryland Court of Appeals ruling was an “unwarranted extension” of the Edwards rule.  Petitioner argues Edwards and its progeny only applied to similarly-situated suspects; where each person was held for questioning and subjected to a second interrogation within three days of the request for counsel.  Petitioner argues this case is distinguishable as there was a break in custody and a substantial passage of time.  Therefore, Edwards should not apply. 

Petitioner argues, from a policy perspective, that Miranda and its progeny “make[] clear” that a per se ban on voluntary confessions is unwarranted when the purposes behind Miranda and Edwards would not be served.  Consequently, construing Edwards to encompass cases “involving a long break in custody or a substantial lapse of time does not protect against coerced confessions and needlessly impairs police investigations.”  Therefore, the Maryland Court of Appeals ruling that found a presumption of coercion cannot be justified, and should be reversed.

Summary of Respondent Argument:  According to Respondent (Shatzer), the Maryland Court of Appeals properly applied Edwards, and thus the judgment should be affirmed.  Respondent argues he remained in “continuous government custody for a period of two years and seven months and was re-interrogated about the same criminal allegations without counsel present.”  Consequently, Respondent argues Edwards should bar any use of subsequently acquired statements made by him while in custody, even if they were produced nearly three years after the initial interrogation.

According to Respondent, Edwards “represents a bright-line rule.”  Therefore, restricting its application to only periods of temporary investigative custody would defeat the four main pillars that support the ruling’s purpose:  (1) ensuring confessions are the product of free choice and not coercion; (2) providing clear and unequivocal guidance to law enforcement and the courts; (3) preventing police officers from badgering suspects, and (4) maintaining confidence in the administration of the criminal justice system.

According to Respondent, even if the Court does recognize an exception to Edwards for breaks in custody, such an exception would not apply here because Respondent invoked his right to have counsel present during custodial interrogation, was continually incarcerated without access to counsel, and did not initiate contact with the police before a detective returned to question him two years later.

Brief for Petitioner State of Maryland

Brief for Respondent Michael Blaine Shatzer

Reply Brief for Petitioner State of Maryland

Last Term's Opinions

In a vital service to those of us who cannot remember what we had for lunch yesterday, and a useful service to many others, CrimProf's graduate fellow, Peter Stockburger (University of San Diego Class of 2009), pulls together the reporter's syllabi from last term's U.S. Supreme Court criminal law and procedure opinions. His future posts will preview cases scheduled for argument and decision next term.

OA:  10.7.08
DC:  1.14.09

Herring v. United States (07-513) – 4th Amendment, police error

No. 07–513. Argued October 7, 2008—Decided January 14, 2009

Facts and Procedural History:  Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897.

SCOTUS HOLDING: When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. Pp. 4–13.

(a) The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223. The rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. Leon, 468 U. S., at 908–909. For example, it does not apply if police acted “in objectively reasonable reliance” on an invalid warrant. Id., at 922. In applying Leon’s good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding, Arizona v. Evans, 514 U. S. 1, 14–15, the Court left unresolved the issue confronted here: whether evidence should be suppressed if the police committed the error, id., at 16, n. 5. Pp. 4–7.

(b) The extent to which the exclusionary rule is justified by its deterrent effect varies with the degree of law enforcement culpability. See, e.g., Leon, supra, at 911. Indeed, the abuses that gave rise to the rule featured intentional conduct that was patently unconstitutional. See, e.g., Weeks v. United States, 232 U. S 383. An error arising from nonrecurring and attenuated negligence is far removed from the core concerns that led to the rule’s adoption. Pp. 7–9.

(c) To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The pertinent analysis is objective, not an inquiry into the arresting officers’ subjective awareness. See, e.g., Leon, supra, at 922, n. 23. Pp. 9–11.

(d) The conduct here was not so objectively culpable as to require exclusion. The marginal benefits that might follow from suppressing evidence obtained in these circumstances cannot justify the substantial costs of exclusion. Leon, supra, at 922. Pp. 11–13.  492 F. 3d 1212, affirmed.

Disposition:  ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER, J., joined.

OA:  10.7.08
DC:  4.21.09

Arizona v. Gant (07-542) – 4th Amendment, car searches

No. 07–542. Argued October 7, 2008—Decided April 21, 2009

Factual and Procedural History:  Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454—which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752, requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant’s arrest implicated neither of those interests, the State Supreme Court found the search unreasonable.

SCOTUS HOLDING: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18.

(a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle’s passenger compartment are “generally . . . within ‘the area into which an
2 ARIZONA v. GANT Syllabus arrestee might reach.’ ” 453 U. S., at 460. Pp. 5–8.

(b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton v. United States, 541 U. S. 615, 632 (SCALIA, J., concurring in judgment). Neither Chimel’s reaching-distance rule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license—an offense for which police could not reasonably expect to find evidence in Gant’s car. Cf. Knowles v. Iowa, 525 U. S. 113, 118. The search in this case was therefore unreasonable. Pp. 8–11.

(c) This Court is unpersuaded by the State’s argument that its expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The State seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton, together with this Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103, and United States v. Ross, 456 U. S. 798, permit an officer to search a vehicle when safety or evidentiary concerns demand. Pp. 11–14.

(d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. Pp. 15–18.  216 Ariz. 1, 162 P. 3d 640, affirmed.

Disposition:  STEVENS, J., delivered the opinion of the Court, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. SCALIA, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY, J., joined, and in which BREYER, J., joined except as to Part II–E.

OA: 10.14.08
DC: 1.21.09

Pearson v. Callahan (07-751) – 4th, qualified immunity

No. 07–751. Argued October 14, 2008—Decided January 21, 2009

Factual and Procedural History:  After the Utah Court of Appeals vacated respondent’s conviction for possession and distribution of drugs, which he sold to an undercover informant he had voluntarily admitted into his house, he brought this 42 U. S. C. §1983 damages action in federal court, alleging that petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale, had violated the Fourth Amendment. The District Court granted summary judgment in favor of the officers. Noting that other courts had adopted the “consent-once-removed” doctrine—which permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view—the court concluded that the officers were entitled to qualified immunity because they could reasonably have believed that the doctrine authorized their conduct. Following the procedure mandated in Saucier v. Katz, 533 U. S. 194, the Tenth Circuit held that petitioners were not entitled to qualified immunity. The court disapproved broadening the consent-once-removed doctrine to situations in which the person granted initial consent was not an undercover officer, but merely an informant. It further held that the Fourth Amendment right to be free in one’s home from unreasonable searches and arrests was clearly established at the time of respondent’s arrest, and determined that, under this Court’s clearly established precedents, warrantless entries into a home are per se unreasonable unless they satisfy one of the two established exceptions for consent and exigent circumstances. The court concluded that petitioners could not reasonably have believed that their conduct was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them. In granting certiorari, this Court directed the parties to address whether Saucier should be overruled in light of widespread criticism directed at it.

SCOTUS HOLDING:
 
1. The Saucier procedure should not be regarded as an inflexible requirement. Pp. 5–19.

(a) Saucier mandated, see 533 U. S., at 194, a two-step sequence for resolving government officials’ qualified immunity claims: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was “clearly established” at the time of the defendant’s alleged misconduct, id., at 201. Qualified immunity applies unless the official's conduct violated such a right. Anderson v. Creighton, 483 U. S. 635, 640. Pp. 5–7.

(b) Stare decisis does not prevent this Court from determining whether the Saucier procedure should be modified or abandoned. Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States v. Gaudin, 515 U. S. 506, 521; the precedent consists of a rule that is judge-made and adopted to improve court operations, not a statute promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U. S. 3, 20; and the precedent has “been questioned by Members of th[is] Court in later decisions, and [has] defied consistent application by the lower courts,” Payne v. Tennessee, 501 U. S. 808, 829–830. Respondent’s argument that Saucier should not be reconsidered unless the Court concludes that it was “badly reasoned” or that its rule has proved “unworkable,” see Payne, supra, at 827, is rejected. Those standards are out of place in the present context, where a considerable body of new experience supports a determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. Pp. 7–10.

(c) Reconsideration of the Saucier procedure demonstrates that, while the sequence set forth therein is often appropriate, it should no longer be regarded as mandatory in all cases. Pp. 10–19.

(i) The Court continues to recognize that the Saucier protocol is often beneficial. In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. And Saucier was correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. See 533 U. S., at 194. Pp. 10–11. 

(ii) Nevertheless, experience in this Court and the lower federal courts has pointed out the rigid Saucier procedure’s shortcomings. For example, it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case’s outcome, and waste the parties’ resources by forcing them to assume the costs of litigating constitutional questions and endure delays attributable to resolving those questions when the suit otherwise could be disposed of more readily. Moreover, although the procedure’s first prong is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development. Further, when qualified immunity is asserted at the pleading stage, the answer to whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. And the first step may create a risk of bad decision making, as where the briefing of constitutional questions is woefully inadequate. Application of the Saucier rule also may make it hard for affected parties to obtain appellate review of constitutional decisions having a serious prospective effect on their operations. For example, where a court holds that a defendant has committed a constitutional violation, but then holds that the violation was not clearly established, the defendant, as the winning party, may have his right to appeal the adverse constitutional holding challenged. Because rigid adherence to Saucier departs from the general rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U. S. 372, 388, the Court may appropriately decline to mandate the order of decision that the lower courts must follow, see, e.g., Strickland v. Washington, 466 U. S. 668, 697. This flexibility properly reflects the Court’s respect for the lower federal courts. Because the two-step Saucier procedure is often, but not always, advantageous, those judges are in the best position to determine the order of decision making that will best facilitate the fair and efficient disposition of each case. Pp. 11–17.

(iii) Misgivings concerning today’s decision are unwarranted. It does not prevent the lower courts from following Saucier; it simply recognizes that they should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, it will not retard the development of constitutional law, result in a proliferation of damages claims against local governments, or spawn new litigation over the standards for deciding whether to reach the particular case’s merits. Pp. 17–19.

2. Petitioners are entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional. When the entry occurred, the consent-once removed doctrine had been accepted by two State Supreme Courts and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on consent-once-removed entries. See Wilson v. Layne, 526 U. S. 603,
618. Pp. 19–20. 494 F. 3d 891, reversed.

Disposition:  ALITO, J., delivered the opinion for a unanimous Court

OA:  10.14.08
DC:  1.14.09

Oregon v. Ice (07-901) – 6th, consecutive sentences

No. 07–901. Argued October 14, 2008—Decided January 14, 2009

Factual and Procedural History:  Respondent Ice twice entered an 11-year-old girl’s residence and sexually assaulted her. For each of the incidents, an Oregon jury found Ice guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim’s vagina; and first-degree sexual assault for touching her breasts. Ice was sentenced under a state statute providing, generally, for concurrent sentences, Ore. Rev. Stat. §137.123(1), but allowing the judge to impose consecutive sentences in these circumstances: (1) when “a defendant is simultaneously sentenced for . . . offenses that do not arise from the same . . . course of conduct,” §137.123(2), and (2) when offenses arise from the same course of conduct, if the judge finds either “(a) [t]hat the . . . offense . . . was an indication of defendant’s willingness to commit more than one criminal offense; or . . . “(b) [t]he. . . offense . . . caused or created a risk of causing greater or qualitatively different . . . harm to the victim,” §137.123(5).

The trial judge first found that the two burglaries constituted separate incidents and exercised his discretion to impose consecutive sentences for those crimes under §137.123(2). The court then found that each offense of touching the victim’s vagina met §137.123(5)’s two criteria, giving the judge discretion to impose the sentences for those offenses consecutive to the two associated burglary sentences. The court elected to do so, but ordered that the sentences for touching the victim’s breasts run concurrently with the other sentences. On appeal, Ice argued, inter alia, that the sentencing statute was unconstitutional under Apprendi v. New Jersey, 530 U. S. 466, 490, and Blakely v. Washington, 542 U. S. 296, holding that the Sixth Amendment’s jury-trial guarantee requires that the jury, rather than the judge, determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular crime. The appellate court affirmed, but the Oregon Supreme Court reversed, holding that the Apprendi rule applied because the imposition of consecutive sentences increased Ice’s quantum of punishment.
 
SCOTUS HOLDING: In light of historical practice and the States’ authority over administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. Pp. 5–11.

(a) The Court declines to extend the Apprendi and Blakely line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions. The Court’s application of Apprendi’s rule must honor the “longstanding common-law practice” in which the rule is rooted. Cunningham v. California, 549 U. S. 270, 281. The rule’s animating principle is the preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense. See Apprendi, 530 U.S., at 477. Because the Sixth Amendment does not countenance legislative encroachment on the jury’s traditional domain, see id., at 497, the Court considers whether the finding of a particular fact was understood as within the jury’s domain by the Bill of Rights’ framers, Harris v. United States, 536 U.S. 545, 557.  In so doing, the Court is also cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g. Patterson v. New York, 432 U.S. 197, 201. These twin considerations—historical practice and respect for state sovereignty—counsel against extending Apprendi to the imposition of sentences for discrete crimes.  P. 6.

(b) The historical record demonstrates that both in England before this Nation’s founding and in the early American States, the common law generally entrusted the decision whether sentences for discrete offenses should be served consecutively or concurrently to judges’ unfettered discretion, assigning no role in the determination to the jury. Thus, legislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted the Court’s decision in Apprendi. There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused. Instead, the defendant—who historically may have faced consecutive sentences by default—has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice.  Ice’s argument that he is “entitled” to concurrent sentences absent the fact findings Oregon law requires is rejected. Because the scope of the federal constitutional jury right must be informed by the jury’s historical common-law role, that right does not attach to every contemporary state-law “entitlement” to predicate findings. For similar reasons, Cunningham, upon which Ice heavily relies, does not control here. In holding that the facts permitting imposition of an elevated “upper term” sentence for a particular crime fell within the jury’s province rather than the sentencing judge’s, 549 U. S., at 274, Cunningham had no occasion to consider the appropriate inquiry when no erosion of the jury’s traditional role was at stake. Pp. 7–8.

(c) States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests. This Court should not diminish the States’ sovereign authority over the administration of their criminal justice systems absent impelling reason to do so. Limiting judicial discretion to impose consecutive sentences serves the “salutary objectives” of promoting sentences proportionate to “the gravity of the offense,” Blakely, 542 U. S., at 308, and of reducing disparities in sentence length. All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal. To hem in States by holding that they may not choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither Apprendi nor the Court’s Sixth Amendment traditions compel straitjacketing the States in that manner. Further, the potential intrusion of Apprendi’s rule into other state initiatives on sentencing choices or accoutrements—for example, permitting trial judges to find facts about the offense’s nature or the defendant’s character in determining the length of supervised release, required attendance at drug rehabilitation programs or terms of community service, and the imposition of fines and restitution—would cut the rule loose from its moorings. Moreover, the expansion Ice seeks would be difficult for States to administer, as the predicate facts for consecutive sentences could substantially prejudice the defense at the trial’s guilt phase, potentially necessitating bifurcated or trifurcated trials. Pp. 9–10.
343 Ore. 248, 170 P. 3d 1049, reversed and remanded.

Disposition:  GINSBURG, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, BREYER, and ALITO, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and SOUTER and THOMAS, JJ., joined.

OA:  10.15.08
DC:  1.21.09

Waddington v. Sarausad (07-772) – Habeas, jury instructions

No. 07–772. Argued October 15, 2008—Decided January 21, 2009

Factual and Procedural History:  Respondent Sarausad drove the car in a drive by shooting at a high school, which was the culmination of a gang dispute. En route to school, Ronquillo, the front seat passenger, covered his lower face and readied a handgun. Sarausad abruptly slowed down upon reaching the school, Ronquillo fired at a group of students, killing one and wounding another, and Sarausad then sped away. He, Ronquillo, and Reyes, another passenger, were tried on murder and related charges. Sarausad and Reyes, who were tried as accomplices, argued that they were not accomplices to murder because they had not known Ronquillo’s plan and had expected at most another fistfight. In her closing argument, the prosecutor stressed Sarausad’s knowledge of a shooting, noting how he drove at the scene, that he knew that fighting alone would not regain respect for his gang, and that he was “in for a dime, in for a dollar.”

The jury received two instructions that directly quoted Washington’s accomplice-liability law. When it failed to reach a verdict as to Reyes, the judge declared a mistrial as to him. The jury then convicted Ronquillo on all counts and convicted Sarausad of second-degree murder and related crimes. In affirming Sarausad’s conviction, the State Court of Appeals, among other things, referred to an “in for a dime, in for a dollar” accomplice liability theory. The State Supreme Court denied review, but in its subsequent Roberts case, it clarified that “in for a dime, in for a dollar” was not the best descriptor of accomplice liability because an accomplice must have knowledge of the crime that occurred. The court also explicitly reaffirmed its precedent that the type of jury instructions used at Sarausad’s trial comport with Washington law. Sarausad sought state post conviction relief, arguing that the prosecutor’s improper “in for a dime, in for a dollar” argument may have led the jury to convict him as an accomplice to murder based solely on a finding that he had anticipated that an assault would occur.

The state appeals court reexamined the trial record in light of Roberts, but found no error requiring correction. The State Supreme Court denied Sarausad’s petition, holding that the trial court correctly instructed the jury and that no prejudicial error resulted from the prosecutor’s potentially improper hypothetical. Sarausad then sought review under 28 U. S. C. §2254, which, inter alia, permits a federal court to grant habeas relief on a claim “adjudicated on the merits” in state court only if the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court, §2254(d)(1). The District Court granted the petition, and the Ninth Circuit affirmed, finding it unreasonable for the state court to affirm Sarausad’s conviction because the jury instruction on accomplice liability was ambiguous and there was a reasonable likelihood that the jury misinterpreted the instruction in a way that relieved the State of its burden of proving Sarausad’s knowledge of a shooting beyond a reasonable doubt.
 
SCOTUS HOLDING:  Because the state-court decision did not result in an “unreasonable application of . . . clearly established Federal law,” §2254(d)(1),the Ninth Circuit erred in granting habeas relief to Sarausad. Pp. 10–17.

(a) When a state court’s application of governing federal law is challenged, the decision “ ‘must be shown to be not only erroneous, but objectively unreasonable.’ ” Middleton v. McNeil, 541 U. S. 433, 436 (per curiam). A defendant challenging the constitutionality of a jury instruction that quotes a state statute must show both that the instruction was ambiguous and that there was “ ‘a reasonable likelihood’ ” that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt. Estelle v. McGuire, 502 U. S. 62, 72. The instruction “must be considered in the context of the instructions as a whole and the trial record,” ibid., and the pertinent question is whether the “instruction by itself so infected the entire trial that the resulting conviction violates due process,’ ” ibid. Pp. 10–11.

(b) Because the Washington courts’ conclusion that the jury instruction was unambiguous was not objectively unreasonable, the Ninth Circuit should have ended its §2254(d)(1) inquiry there. The instruction parroted the state statute’s language, requiring the jury to find Sarausad guilty as an accomplice “in the commission of the [murder]” if he acted “with knowledge that [his conduct would] promote or facilitate the commission of the [murder],” Wash. Rev. Code§§9A.08.020(2)(c), (3)(a). The instruction cannot be assigned any meaning different from the one given to it by the Washington courts. Pp. 11–12.

(c) Even if the instruction were ambiguous, the Ninth Circuit still erred in finding it so ambiguous as to cause a federal constitutional violation requiring reversal under AEDPA. The Washington courts reasonably applied this Court’s precedent when they found no “reasonable likelihood” that the prosecutor’s closing argument caused the jury to apply the instruction in a way that relieved the State of its burden to prove every element of the crime beyond a reasonable doubt. The prosecutor consistently argued that Sarausad was guilty as an accomplice because he acted with knowledge that he was facilitating a drive by shooting. She never argued that the admission by Sarausad and Reyes that they anticipated a fight was a concession of accomplice liability for murder. Sarausad’s attorney also honed in on the key question, stressing a lack of evidence showing that Sarausad knew that his assistance would promote or facilitate a premeditated murder. Every state and federal appellate court that reviewed the verdict found the evidence supporting Sarausad’s knowledge of a shooting legally sufficient to convict him under Washington law. Given the strength of that evidence, and the jury’s failure to convict Reyes—who had also been charged as an accomplice to murder and admitted knowledge of a possible fight—it was not objectively unreasonable for the Washington courts to conclude that the jury convicted Sarausad because it believed that he, unlike Reyes, had knowledge of more than just a fistfight. The Ninth Circuit’s contrary reasoning is unconvincing. Pp. 13–17.  479 F. 3d 671, reversed and remanded.

Disposition:  THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, BREYER, and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined.

OA: 
DC: 
Hedgpeth v. Pulido (07-544) – Habeas, jury instructions

Per curiam
______________________________________________________________

OA:  11.4.08
DC:  1.13.09

Jimenez v. Quarterman (07-6984) – Habeas, statute of limitations, right to appeal

No. 07–6984. Argued November 4, 2008—Decided January 13, 2009

Factual and Procedural History:  After petitioner’s state conviction for burglary became final on October11, 1996, the state appellate court held in state habeas proceedings that petitioner had been denied his right to appeal and granted him the right to file an out-of-time appeal. He filed the appeal, his conviction was affirmed, and his time for seeking certiorari in this Court expired on January 6, 2004.

Petitioner filed a second state habeas application on December 6, 2004, which was denied on June 29, 2005. He then filed a federal habeas petition on July 19, 2005, relying on 28 U. S. C. §2244(d)(1)(A) to establish its timeliness. Section 2244(d)(1)(A) provides that the one-year limitations period for seeking review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) begins on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Petitioner argued that his judgment became final on January 6, 2004, when time expired for seeking certiorari review of the decision in his out-of-time appeal, and that his July19, 2005, petition was timely because the calculation of AEDPA’s1-year limitation period excludes the time “during which [his] properly filed application for State post-conviction . . . review . . . [was] pending,” §2244(d)(2). The District Court disagreed, ruling that the proper start date for calculating AEDPA’s 1-year limitations period under §2244(d)(1)(A) was October 11, 1996, when petitioner’s conviction first became final. The District Court dismissed the federal habeas petition as time barred. The Fifth Circuit denied petitioner’s request for a certificate of appealability. 
 
SCOTUS HOLDING:  Where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not “final” for purposes of §2244(d)(1)(A) until the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking certiorari review of that appeal. This Court must enforce plain statutory language according to its terms. See, e.g., Lamie v. United States Trustee, 540 U. S. 526, 534. Under §2244(d)(1)(A)’s plain language, once the Texas Court of Criminal Appeals reopened direct review of petitioner’s conviction on September 25, 2002, the conviction was no longer final for §2244(d)(1)(A) purposes. Rather, the order granting an out-of-time appeal restored the pendency of the direct appeal, and petitioner’s conviction was again capable of modification through direct appeal to the state courts and to this Court on certiorari review. Therefore, it was not until January 6, 2004, when time for seeking certiorari review of the decision in the out-of-time appeal expired, that petitioner’s conviction became “final” through “the conclusion of direct review or the expiration of the time for seeking such review” under §2244(d)(1)(A). The Court rejects respondent’s argument that using the later date created by the state court’s decision to reopen direct review, thus resetting AEDPA’s 1-year limitations period, undermines the policy of finality that Congress established in§2244(d)(1). See Carey v. Saffold, 536 U. S. 214, 220. Pp. 5–8.  Reversed and remanded.

Disposition:  THOMAS, J., delivered the opinion for a unanimous Court.

OA:  11.5.08
DC:  1.26.09

Van de Kamp v. Goldstein (07-854) – Prosecutorial immunity, wrongful convictions

No. 07–854. Argued November 5, 2008—Decided January 26, 2009

Factual and Procedural History:  Respondent Goldstein was released from a California prison after he filed a successful federal habeas petition alleging that his murder conviction depended, in critical part, on the false testimony of a jailhouse informant (Fink), who had received reduced sentences for providing prosecutors with favorable testimony in other cases; that prosecutors knew, but failed to give his attorney, this potential impeachment information; and that, among other things, that failure had led to his erroneous conviction.

Once released, Goldstein filed this suit under 42 U. S. C. §1983, asserting the prosecution violated its constitutional duty to communicate impeachment information, see Giglio v. United States, 405 U. S. 150, 154, due to the failure of petitioners, supervisory prosecutors, to properly train or supervise prosecutors or to establish an information system containing potential impeachment material about informants. Claiming absolute immunity, petitioners asked the District Court to dismiss the complaint, but the court declined, finding that the conduct was “administrative,” not “prosecutorial,” and hence fell outside the scope of an absolute immunity claim. The Ninth Circuit, on interlocutory appeal, affirmed.

SCOTUS HOLDING: Petitioners are entitled to absolute immunity in respect to Goldstein’s supervision, training, and information-system management claims. Pp. 3–12.

(a) Prosecutors are absolutely immune from liability in §1983 suits brought against prosecutorial actions that are “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U. S. 409, 428, 430, because of “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and lead him to “shade his decisions instead of exercising the independence of judgment required by his public trust,” id., at 423. However, absolute immunity may not apply when a prosecutor is not acting as “an officer of the court,” but is instead engaged in, say, investigative or administrative tasks. Id., at 431, n. 33. To decide whether absolute immunity attaches to a particular prosecutorial activity, one must take account of Imbler’s “functional” considerations. The fact that one constitutional duty in Imbler was positive (the duty to supply “information relevant to the defense”) rather than negative (the duty not to “use . . . perjured testimony”) was not critical to the finding of absolute immunity. Pp. 3– 6.

(b) Although Goldstein challenges administrative procedures, they are procedures that are directly connected with a trial’s conduct. A prosecutor’s error in a specific criminal trial constitutes an essential element of the plaintiff’s claim. The obligations here are thus unlike administrative duties concerning, e.g., workplace hiring. Moreover, they necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in training, supervision, or information-system management. Given these features, absolute immunity must follow. Pp. 6–12.

(1) Had Goldstein brought a suit directly attacking supervisory prosecutors’ actions related to an individual trial, instead of one involving administration, all the prosecutors would have enjoyed absolute immunity under Imbler. Their behavior, individually or separately, would have involved “[p]reparation . . . for . . . trial,” 424 U. S., at 431, n. 33, and would have been “intimately associated with the judicial phase of the criminal process,” id., at 430. The only difference between Imbler and the hypothetical, i.e., that a supervisor or colleague might be liable instead of the trial prosecutor, is not critical. Pp. 7–8.

(2) Just as supervisory prosecutors are immune in a suit directly attacking their actions in an individual trial, they are immune here. The fact that the office’s general supervision and training methods are at issue is not a critical difference for present purposes. The relevant management tasks concern how and when to make impeachment information available at trial, and, thus, are directly connected with a prosecutor’s basic trial advocacy duties. In terms of Imbler’s functional concerns, a suit claiming that a supervisor made a mistake directly related to a particular trial and one claiming that a supervisor trained and supervised inadequately seem very much alike. The type of “faulty training” claim here rests in part on a consequent error by an individual prosecutor in the midst of trial. If, as Imbler says, the threat of damages liability for such an error could lead a trial prosecutor to take account of that risk when making trial related decisions, so, too, could the threat of more widespread liability throughout the office lead both that prosecutor and other office prosecutors to take account of such a risk. Because better training or supervision might prevent most prosecutorial errors at trial, permission to bring suit here would grant criminal defendants permission to bring claims for other trial-related training or supervisory failings. Further, such suits could “pose substantial danger of liability even to the honest prosecutor.” Imbler, 425 U. S., at 425. And defending prosecutorial decisions, often years later, could impose “unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425–426. Permitting this suit to go forward would also create practical anomalies. A trial prosecutor would remain immune for intentional misconduct, while her supervisor might be liable for negligent training or supervision. And the ease with which a plaintiff could restyle a complaint charging trial failure to one charging a training or supervision failure would eviscerate Imbler. Pp. 8–11.

(3) The differences between an information management system and training or supervision do not require a different outcome, for the critical element of any information system is the information it contains. Deciding what to include and what not to include is little different from making similar decisions regarding training, for it requires knowledge of the law. Moreover, were this claim allowed, a court would have to review the office’s legal judgments, not simply about whether to have an information system but also about what kind of system is appropriate, and whether an appropriate system would have included Giglio-related information about one particular kind of informant. Such decisions—whether made before or during trial—are “intimately associated with the judicial phase of the criminal process,” Imbler, supra, at 430, and all Imbler’s functional considerations apply. Pp. 11–12. 481 F. 3d 1170, reversed and remanded.

Disposition:  BREYER, J., delivered the opinion for a unanimous Court.

OA:  11.10.08
DC:  1.13.09

Chambers v. United States (06-11206) – Armed Career Criminal Act, enhanced sentencing

No. 06–11206. Argued November 10, 2008—Decided January 13, 2009

Factual and Procedural History:  The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory prison term on a felon unlawfully in possession of a firearm who has three prior convictions for committing certain drug crimes or “a violent felony,” 18 U. S. C. §924(e)(1), defined as a crime punishable by more than one year’s imprisonment that, inter alia, “involves conduct that presents a serious potential risk of physical injury to another,”§924(e)(2)(B)(ii). At petitioner Chambers’ sentencing for being a felon in possession of a firearm, the Government sought ACCA’s 15-yearmandatory prison term. Chambers disputed one of his prior convictions—failing to report for weekend confinement—as falling outside the ACCA definition of “violent felony.” The District Court treated the failure to report as a form of what the relevant state statute calls “escape from [a] penal institution,” and held that it qualified as a “violent felony” under ACCA. The Seventh Circuit agreed.

SCOTUS HOLDING:  Illinois’ crime of failure to report for penal confinement falls outside the scope of ACCA’s “violent felony” definition. Pp. 3–8.

(a) For purposes of ACCA’s definitions, it is the generic crime that counts, not how the crime was committed on a particular occasion. Taylor v. United States, 495 U. S. 575, 602. This categorical approach requires courts to choose the right category, and sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect. The state statute at issue places together in a single section several different kinds of behavior, which, as relevant here, may be categorized either as failure to report for detention or as escape from custody. Failure to report is a separate crime from escape. Its underlying behavior differs from the more aggressive behavior underlying escape, and it is listed separately in the statute’s title and body and is of a different felony class than escape. At the same time, the statutory phrases setting forth the various kinds of failure to report describe roughly similar forms of behavior, thus constituting a single category. Consequently, for ACCA purposes, the statute contains at least two separate crimes, escape and failure to report. Pp. 3–5.

(b) The “failure to report” crime does not satisfy ACCA’s “violent felony” definition. Although it is punishable by imprisonment exceeding one year, it satisfies none of the other parts of the definition. Most critically, it does not “involv[e] conduct that presents a serious potential risk of physical injury to another.” Conceptually speaking, the crime amounts to a form of inaction, and there is no reason to believe that an offender who fails to report is otherwise doing something that poses a serious potential risk of physical injury. The Government’s argument that a failure to report reveals the offender’s special, strong aversion to penal custody—pointing to 3 state and federal cases over 30 years in which individuals shot at officers attempting to recapture them—is unconvincing. Even assuming the relevance of violence that may occur long after an offender fails to report, the offender’s aversion to penal custody is beside the point. The question is whether such an offender is significantly more likely than others to attack or resist an apprehender, thereby producing a serious risk of physical injury. Here a United States Sentencing Commission report, showing no violence in 160 federal failure-to-report cases over 2 recent years, helps provide a negative answer. The three reported cases to which the Government points do not show the contrary. Simple multiplication (2 years versus 30 years; federal alone versus federal-plus-state) suggests that they show only a statistically insignificant risk of physical violence. And the Government provides no other empirical information. Pp. 5–8.  473 F. 3d 724, reversed and remanded.

Disposition:  BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ., joined. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS, JJ., joined.

OA:  11.10.08
DC:  2.24.09

United States v. Hayes (07-608) – Criminal, “domestic violence”

No. 07–608. Argued November 10, 2008—Decided February 24, 2009

Factual and Procedural History:  In 1996, Congress extended the federal Gun Control Act of 1968’s prohibition on possession of a firearm by convicted felons to include persons convicted of “a misdemeanor crime of domestic violence,” 18 U. S. C. §922(g)(9). Responding to a 911 call reporting domestic violence, police officers discovered a rifle in respondent Hayes’s home. Based on this and other evidence, Hayes was charged under §§922(g)(9) and 924(a)(2) with possessing firearms after having been convicted of a misdemeanor crime of domestic violence. The indictment identified as the predicate misdemeanor offense Hayes’s 1994 conviction for battery against his then-wife, in violation of West Virginia law.

Hayes moved to dismiss the indictment on the ground that his 1994 conviction did not qualify as a predicate offense under §922(g)(9) because West Virginia’s generic battery law did not designate a domestic relationship between aggressor and victim as an element of the offense. When the District Court denied the motion, Hayes entered a conditional guilty plea and appealed. The Fourth Circuit reversed, holding that a §922(g)(9) predicate offense must have as an element a domestic relationship between offender and victim.

SCOTUS HOLDING:  A domestic relationship, although it must be established beyond a reasonable doubt in a §922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense. Pp. 4–13.

(a) The definition of “misdemeanor crime of domestic violence,” contained in §921(a)(33)(A), imposes two requirements. First, the crime must have, “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” §921(a)(33)(A)(ii). Second, it must be “committed by” a person who has a specified domestic relationship with the victim. Ibid. The definition does not, however, require the predicate-offense statute to include, as an element, the existence of that domestic relationship. Instead, it suffices for the Government to charge and prove a prior conviction that was, in fact, for “an offense . . . committed by” the defendant against a spouse or other domestic victim. Pp. 4–9.

(1) As an initial matter, §921(a)(33)(A)’s use of the singular word “element” suggests that Congress intended to describe only one required element, the use of force. Had Congress also meant to make the specified relationship a predicate-offense element, it likely would have used the plural “elements,” as it has done in other offense defining provisions. See, e.g., 18 U. S. C. §3559(c)(2)(A). Treating the specified relationship as a predicate-offense element is also awkward as a matter of syntax. It requires the reader to regard “the use or attempted use of physical force, or the threatened use of a deadly weapon” as an expression modified by the relative clause “committed by.” It is more natural, however, to say a person “commit[s]” an “offense” than to say one “commit[s]” a “use.” Pp. 5–6.

(2) The Fourth Circuit’s textual arguments to the contrary are unpersuasive. First, that court noted, clause (ii) is separated from clause (i)—which defines “misdemeanor”—by a line break and a semicolon, while clause (ii)’s components—force and domestic relationship—are joined in an unbroken word flow. Such less-than meticulous drafting hardly shows that Congress meant to exclude from §922(g)(9)’s prohibition domestic abusers convicted under generic assault or battery laws. As structured, §921(a)(33)(A) defines “misdemeanor crime of domestic violence” by addressing in clause (i) the meaning of “misdemeanor,” and in clause (ii) “crime of domestic violence.” Because a “crime of domestic violence” involves both a use of force and a domestic relationship, joining these features together in clause (ii) would make sense even if Congress had no design to confine laws qualifying under §921(a)(33)(A) to those designating as elements both use of force and domestic relationship. A related statutory provision, 25 U. S. C. §2803(3)(C), indicates that Congress did not ascribe substantive significance to the placement of line breaks and semicolons in 18 U. S. C. §921(a)(33)(A). Second, the Fourth Circuit relied on the “rule of the last antecedent” to read “committed by” as modifying the immediately preceding use-of-force phrase rather than the earlier word “offense.” The last-antecedent rule, however, “is not an absolute and can assuredly be overcome by other indicia of meaning.” Barnhart v. Thomas, 540 U. S. 20, 26. Applying the rule here would require the Court to accept the unlikely premises that Congress employed the singular “element” to encompass two distinct concepts, and that it adopted the awkward construction “commi[t]” a use. The rule, moreover, would render the word “committed” superfluous, for Congress could have conveyed the same meaning by referring simply to “the use . . . of physical force . . . by a current or former spouse . . . .” Pp. 6–9.

(b) Practical considerations strongly support this Court’s reading of §921(a)(33)(A). By extending the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence, §922(g)(9)’s proponents sought to close a loophole: Existing felon-in possession laws often failed to keep firearms out of the hands of domestic abusers, for such offenders generally were not charged with, or convicted of, felonies. Construing §922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute would frustrate Congress’ manifest purpose. The statute would have been a dead letter in some two-thirds of the States because, in 1996, only about one-third of them had criminal statutes specifically proscribing domestic violence. Hayes argues that the measure that became§§922(g)(9) and 921(a)(33)(A), though it initially may have had a broadly remedial purpose, was revised and narrowed during the legislative process, but his argument is not corroborated by the revisions he identifies. Indeed, §922(g)(9)’s Senate sponsor observed that a domestic relationship often would not be a designated element of the predicate offense. Such remarks are “not controlling,” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 118, but the legislative record is otherwise silent. Pp. 10–12.

(c) The rule of lenity, on which Hayes also relies, applies only when a statute is ambiguous. Section 921(a)(33)(A)’s definition, though not a model of the careful drafter’s art, is also not “grievous[ly] ambigu[ous].” Huddleston v. United States, 415 U. S. 814, 831. The text, context, purpose, and what little drafting history there is all point in the same direction: Congress defined “misdemeanor crime of domestic violence” to include an offense “committed by” a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime. Pp. 12–13. 482 F. 3d 749, reversed and remanded.

Disposition:  GINSBURG, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, BREYER, and ALITO, JJ., joined, and in which THO-MAS, J., joined as to all but Part III. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, J., joined

OA:  11.10.08
DC:  6.25.09

Melendez –Diaz v. Massachusetts (07-591) – Confrontation Clause, forensic analysts

No. 07–591. Argued November 10, 2008—Decided June 25, 2009

Factual and Procedural History:  At petitioner’s state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted. Petitioner objected, asserting that Crawford v. Washington, 541 U. S. 36, required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. The Massachusetts Appeals Court affirmed, rejecting petitioner’s claim that the certificates’ admission violated the Sixth Amendment.

SCOTUS HOLDING: The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him. Pp. 3–23.

(a) Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross examination. 541 U. S., at 54. The certificates here are affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause, id., at 51. They asserted that the substance found in petitioner’s possession was, as the prosecution claimed, cocaine of a certain weight—the precise testimony the analysts would be expected to provide if called at trial. Not only were the certificates made, as Crawford required for testimonial statements, “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” id., at 52, but under the relevant Massachusetts law their sole purpose was to provide prima facie evidence of the substance’s composition, quality, and net weight. Petitioner was entitled to “be confronted with” the persons giving this testimony at trial. Id., at 54.  Pp. 3–5.

(b) The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment’s text or in this Court’s case law. The affiants’ testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements’ testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should notbe subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, 448 U. S. 56, 66, which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner’s power to subpoena the analysts is no substitute for the right of confrontation.  Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized. Pp. 5–23.  69 Mass. App. 1114, 870 N. E. 2d 676, reversed and remanded. 

Disposition:  SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed a dissenting opinion, in which ROB-ERTS, C. J., and BREYER and ALITO, JJ., joined.

OA:  11.12.09

Bell v. Kelly (07-1223) – Habeas, ineffective (dismissed as writ of cert. was improperly granted)

OA:  12.9.08
DC:  1.26.09

Arizona v. Johnson (07-1122) – 4th, passenger searches

No. 07–1122. Argued December 9, 2008—Decided January 26, 2009

Factual and Procedural History:  In Terry v. Ohio, 392 U. S. 1, this Court held that a “stop and frisk” may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk (pat down for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249, 255. While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the pat down, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor.

The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous.  Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.

SCOTUS HOLDING:  Officer Trevizo’s pat down of Johnson did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. Pp. 5–9.

(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392 U. S., at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a pat down is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420, 439, n. 29, are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032, 1047, who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408, 414. Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, pat down authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the pat down. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration. See Muehler v. Mena, 544 U. S. 93, 100–101. A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U. S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7–9.  217 Ariz. 58, 170 P. 3d 667, reversed and remanded.

Disposition:  GINSBURG, J., delivered the opinion for a unanimous Court.

OA:  12.9.08
DC:  4.28.09

Cone v. Bell (07-1114) – Habeas, procedural default

No. 07–1114. Argued December 9, 2008—Decided April 28, 2009

Factual and Procedural History:  After the State discredited petitioner Cone’s defense that he killed two people while suffering from acute psychosis caused by drug addiction, he was convicted and sentenced to death. The Tennessee Supreme Court affirmed on direct appeal and the state courts denied post conviction relief. Later, in a second petition for state post conviction relief, Cone raised the claim that the State had violated Brady v. Maryland, 373 U. S. 83, by suppressing witness statements and police reports that would have corroborated his insanity defense and bolstered his case in mitigation of the death penalty. The post conviction court denied him a hearing on the ground that the Brady claim had been previously determined, either on direct appeal or in earlier collateral proceedings. The State Court of Criminal Appeals affirmed. Cone then filed a petition for a writ of habeas corpus in Federal District Court. That Court denied relief, holding the Brady claim procedurally barred because the state courts’ disposition rested on adequate and independent state grounds: Cone had waived it by failing to present his claim in state court. Even if he had not defaulted the claim, ruled the court, it would fail on its merits because none of the withheld evidence would have cast doubt on his guilt. The Sixth Circuit agreed with the latter conclusion, but considered itself barred from reaching the claim’s merits because the state courts had ruled the claim previously determined or waived under state law.

SCOTUS HOLDING:

1. The state courts’ rejection of Cone’s Brady claim does not rest on a ground that bars federal review. Neither of the State’s asserted justifications for such a bar—that the claim was decided by the State Supreme Court on direct review or that Cone had waived it by never properly raising it in state court—provides an independent and adequate state ground for denying review of Cone’s federal claim. The state post conviction court’s denial of the Brady claim on the ground it had been previously determined in state court rested on a false premise: Cone had not presented the claim in earlier proceedings and, consequently, the state courts had not passed on it. The Sixth Circuit’s rejection of the claim as procedurally defaulted because it had been twice presented to the Tennessee courts was thus erroneous. Also unpersuasive is the State’s alternative argument that federal review is barred because the Brady claim was properly dismissed by the state post conviction courts as waived. Those courts held only that the claim had been previously determined, and this Court will not second-guess their judgment. Because the claim was properly preserved and exhausted in state court, it is not defaulted. Pp. 15–19.

2. The lower federal courts failed to adequately consider whether the withheld documents were material to Cone’s sentence. Both the quantity and quality of the suppressed evidence lend support to Cone’s trial position that he habitually used excessive amounts of drugs, that his addiction affected his behavior during the murders, and that the State’s contrary arguments were false and misleading. Nevertheless, even when viewed in the light most favorable to Cone, the evidence does not sustain his insanity defense: His behavior before, during, and after the crimes was inconsistent with the contention that he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform it to the requirements of law. Because the likelihood that the suppressed evidence would have affected the jury’s verdict on the insanity issue is remote, the Sixth Circuit did not err by denying habeas relief on the ground that such evidence was immaterial to the jury’s guilt finding. The same cannot be said of that court’s summary treatment of Cone’s claim that the suppressed evidence would have influenced the jury’s sentencing recommendation. Because the suppressed evidence might have been material to the jury’s assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted. Pp. 20–26.  492 F. 3d 743, vacated and remanded.

Disposition:  STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., filed an opinion concurring in the judgment. ALITO, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.

OA:  12.10.08
DC:  5.18.09

Ashcroft, Former ATT’Y Gen. v. Iqbal (07-1015) – Prisoner abuse, liability of high-ranking officials

No. 07–1015. Argued December 10, 2008—Decided May 18, 2009

Factual and Procedural History: Following the September 11, 2001, terrorist attacks, respondent Iqbal, a Pakistani Muslim, was arrested on criminal charges and detained by federal officials under restrictive conditions. Iqbal filed a Bivens action against numerous federal officials, including petitioner Ashcroft, the former Attorney General, and petitioner Mueller, the Director of the Federal Bureau of Investigation (FBI). See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388. The complaint alleged, inter alia, that petitioners designated Iqbal a person “of high interest” on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments; that the FBI, under Mueller’s direction, arrested and detained thousands of Arab Muslim men as part of its September-11th investigation; that petitioners knew of, condoned, and willfully and maliciously agreed to subject Iqbal to harsh conditions of confinement as a matter of policy, solely on account of the prohibited factors and for no legitimate penological interest; and that Ashcroft was the policy’s “principal architect” and Mueller was “instrumental” in its adoption and execution. After the District Court denied petitioners’ motion to dismiss on qualified immunity grounds, they invoked the collateral order doctrine to file an interlocutory appeal in the Second Circuit.

Affirming, that court assumed without discussion that it had jurisdiction and focused on the standard set forth in Bell Atlantic Corp. v. Twombly, 550 U. S. 544, for evaluating whether a complaint is sufficient to survive a motion to dismiss. Concluding that Twombly’s “flexible plausibility standard” obliging a pleader to amplify a claim with factual allegations where necessary to render it plausible was inapplicable in the context of petitioners’ appeal, the court held that Iqbal’s complaint was adequate to allege petitioners’ personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law.

SCOTUS HOLDING:

1. The Second Circuit had subject-matter jurisdiction to affirm the District Court’s order denying petitioners’ motion to dismiss. Pp. 6–10.

(a) Denial of a qualified-immunity claim can fall within the narrow class of prejudgment orders reviewable under the collateral-order doctrine so long as the order “turns on an issue of law.” Mitchell v. Forsyth, 472 U. S. 511, 530. The doctrine’s applicability in this context is well established; an order rejecting qualified immunity at the motion-to-dismiss stage is a “final decision” under 28 U. S. C. §1291, which vests courts of appeals with “jurisdiction of appeals from all final decisions of the district courts.” Behrens v. Pelletier, 516 U. S. 299, 307. Pp. 7–8.

(b) Under these principles, the Court of Appeals had, and this Court has, jurisdiction over the District Court’s order. Because the order turned on an issue of law and rejected the qualified-immunity defense, it was a final decision “subject to immediate appeal.” Behrens, supra, at 307. Pp. 8–10.

2. Iqbal’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination. Pp. 11–23.

(a) This Court assumes, without deciding, that Iqbal’s First Amendment claim is actionable in a Bivens action, see Hartman v. Moore, 547 U. S. 250, 254, n. 2. Because vicarious liability is inapplicable to Bivens and §1983 suits, see, e.g., Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691, the plaintiff in a suit such as the present one must plead that each Government-official defendant, through his own individual actions, has violated the Constitution. Purposeful discrimination requires more than “intent as volition or intent as awareness of consequences”; it involves a decision maker’s undertaking a course of action “ ‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279. Iqbal must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason, but for the purpose of discriminating on account of race, religion, or national origin. Pp. 11–13.

(b) Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed factual allegations” are not required, Twombly, 550 U. S., at 555, but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly. First, the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements. Id., at 555. Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Pp. 13–16.

(c) Iqbal’s pleadings do not comply with Rule 8 under Twombly. Several of his allegations—that petitioners agreed to subject him to harsh conditions as a matter of policy, solely on account of discriminatory factors and for no legitimate penological interest; that Ashcroft was that policy’s “principal architect”; and that Mueller was “instrumental” in its adoption and execution—are conclusory and not entitled to be assumed true. Moreover, the factual allegations that the FBI, under Mueller, arrested and detained thousands of Arab Muslim men, and that he and Ashcroft approved the detention policy, do not plausibly suggest that petitioners purposefully discriminated on prohibited grounds. Given that the September 11 attacks were perpetrated by Arab Muslims, it is not surprising that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy’s purpose was to target neither Arabs nor Muslims. Even if the complaint’s well-pleaded facts gave rise to a plausible inference that Iqbal’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle him to relief: His claims against petitioners rest solely on their ostensible policy of holding detainees categorized as “of high interest,” but the complaint does not contain facts plausibly showing that their policy was based on discriminatory factors. Pp. 16–20.

(d) Three of Iqbal’s arguments are rejected. Pp. 20–23.

(i) His claim that Twombly should be limited to its antitrust context is not supported by that case or the Federal Rules. Because Twombly interpreted and applied Rule 8, which in turn governs the pleading standard “in all civil actions,” Rule 1, the case applies to antitrust and discrimination suits alike, see 550 U. S., at 555–556, and n. 14. P. 20.

(ii) Rule 8’s pleading requirements need not be relaxed based on the Second Circuit’s instruction that the District Court cabin discovery to preserve petitioners’ qualified-immunity defense in anticipation of a summary judgment motion. The question presented by a motion to dismiss for insufficient pleadings does not turn on the controls placed on the discovery process. Twombly, supra, at 559. And because Iqbal’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise. Pp. 20–22.
(iii) Rule 9(b)—which requires particularity when pleading “fraud or mistake” but allows “other conditions of a person’s mind [to] be alleged generally”—does not require courts to credit a complaint’s conclusory statements without reference to its factual context. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade Rule 8’s less rigid, though still operative, strictures. Pp. 22–23.

(e) The Second Circuit should decide in the first instance whether to remand to the District Court to allow Iqbal to seek leave to amend his deficient complaint. P. 23.
490 F. 3d 143, reversed and remanded.

Disposition:  KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion.

OA:  1.12.09
DC:  4.1.09

Harbison v. Bell (07-8521) – Clemency proceedings, appointed counsel

No. 07–8521. Argued January 12, 2009—Decided April 1, 2009

Factual and Procedural History:  After the Tennessee state courts rejected petitioner Harbison’s conviction and death sentence challenges, the Federal District Court appointed a federal public defender to represent him in filing a habeas petition under 28 U. S. C. §2254. That petition was denied. Harbison then sought appointment of counsel for state clemency proceedings. Because Tennessee law no longer authorizes the appointment of state public defenders as clemency counsel, his federal counsel moved to expand the scope of her representation to include the state proceedings. In denying the motion, the District Court relied on Circuit precedent construing 18 U. S. C. §3599, which provides for the appointment of federal counsel. The Sixth Circuit affirmed.

SCOTUS HOLDING:

1. A certificate of appealability pursuant to 28 U. S. C. §2253(c)(1)(A) is not required to appeal an order denying a request for federally appointed counsel under §3599 because §2253(c)(1)(A)governs only final orders that dispose of a habeas corpus proceeding’s merits. Pp. 2–3.

2. Section 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation. Pp. 3–14.

(a) Section 3599(a)(2), which refers to both §2254 and §2255 proceedings, triggers the appointment of counsel for both state and federal post conviction litigants, and §3599(e) governs the scope of appointed counsel’s duties. Thus, federally funded counsel appointed to represent a state prisoner in §2254 proceedings “shall also represent the defendant in such . . . proceedings for executive or other clemency as may be available to the defendant.” §3599(e). Because state clemency proceedings are “available” to state petitioners who obtain subsection (a)(2) representation, the statute’s plain language indicates that appointed counsel’s authorized representation includes such proceedings. Moreover, subsection (e)’s reference to “proceedings for . . . other clemency” refers to state proceedings, as federal clemency is exclusively executive, while States administer clemency in various ways. The Government is correct that appointed counsel is not expected to provide each service enumerated in subsection (e) for every client. Rather, counsel’s representation includes only those judicial proceedings transpiring “subsequent” to her appointment, which under subsection (a)(2) begins with the §2254 or §2255 “post-conviction process.” Pp. 3–8.

(b) The Government’s attempts to overcome §3599’s plain language are not persuasive. First, our reading of the statute does not produce absurd results. Contrary to the Government’s contention, a lawyer is not required to represent her client during a state retrial following post conviction relief because the retrial marks the commencement of new judicial proceedings, not a subsequent stage of existing proceedings; state post conviction proceedings are also not “subsequent” to federal habeas proceedings. Second, the legislative history does not support the Government's argument that Congress intended §3599 to apply only to federal defendants. Congress’ decision to furnish counsel for state clemency proceedings reflects both clemency’s role as the “ ‘fail safe’ of our criminal justice system,” Herrera v. Collins, 506 U. S. 390, 415, and the fact that federal habeas counsel are well positioned to represent their clients in clemency proceedings. Pp. 8–14. 503 F. 3d 566, reversed.

Disposition:  STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., and THO-MAS, J., filed opinions concurring in the judgment. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which ALITO, J., joined.

OA:  1.13.09
DC:  5.26.09

Montejo v. Louisiana (07-1529) – Interrogation of indigent defendant in absence of attorney

No. 07–1529. Argued January 13, 2009—Decided May 26, 2009

Factual and Procedural History:  At a preliminary hearing required by Louisiana law, petitioner Montejo was charged with first-degree murder, and the court ordered the appointment of counsel. Later that day, the police read Montejo his rights under Miranda v. Arizona, 384 U. S. 436, and he agreed to go along on a trip to locate the murder weapon. During the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Upon returning, he finally met his court-appointed attorney. At trial, his letter was admitted over defense objection, and he was convicted and sentenced to death. Affirming, the State Supreme Court rejected his claim that the letter should have been suppressed under the rule of Michigan v. Jackson, 475 U. S. 625, which forbids police to initiate interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment or similar proceeding. The court reasoned that Jackson’s prophylactic protection is not triggered unless the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel; and that, since Montejo stood mute at his hearing while the judge ordered the appointment of counsel, he had made no such request or assertion.
 
SCOTUS HOLDING: 
 
1. Michigan v. Jackson should be and now is overruled. Pp. 3–18.

(a) The State Supreme Court’s interpretation of Jackson would lead to practical problems. Requiring an initial “invocation” of the right to counsel in order to trigger the Jackson presumption, as the court below did, might work in States that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the States, which appoint counsel without request from the defendant. Pp. 3–6.

(b) On the other hand, Montejo’s solution is untenable as a theoretical and doctrinal matter. Eliminating the invocation requirement entirely would depart fundamentally from the rationale of Jackson, whose presumption was created by analogy to a similar prophylactic rule established in Edwards v. Arizona, 451 U. S. 477, to protect the Fifth Amendment-based Miranda right. Both Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about the right to counsel once they have invoked it, but a defendant who never asked for counsel has not yet made up his mind in the first instance. Pp. 6–13.

(c) Stare decisis does not require the Court to expand significantly the holding of a prior decision in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it. Payne v. Tennessee, 501 U. S. 808, 827. Beyond workability, the relevant factors include the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned. Pearson v. Callahan, 555 U. S. ___, ___. The first two cut in favor of jettisoning Jackson: the opinion is only two decades old, and eliminating it would not upset expectations, since any criminal defendant learned enough to order his affairs based on Jackson’s rule would also be perfectly capable of interacting with the police on his own. As for the strength of Jackson’s reasoning, when this Court creates a prophylactic rule to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. Jackson’s marginal benefits are dwarfed by its substantial costs. Even without Jackson, few badgering-induced waivers, if any, would be admitted at trial because theCourt has taken substantial other, overlapping measures to exclude them. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present. 384 U. S., at  474. Under Edwards, once such a defendant “has invoked his [Miranda] right,” interrogation must stop. 451 U. S., at 484. And under Minnick v. Mississippi, 498 U. S. 146, no subsequent interrogation may take place until counsel is present. Id., at 153. These three layers of prophylaxis are sufficient. On the other side of the equation, the principal cost of applying Jackson’s rule is that crimes can go unsolved and criminals unpunished when uncoerced confessions are excluded and when officers are deterred from even trying to obtain confessions. The Court concludes that the Jackson rule does not “pay its way,” United States v. Leon, 468 U. S. 897, 907–908, n. 6, and thus the case should be overruled. Pp. 13–18.

2. Montejo should nonetheless be given an opportunity to contend that his letter of apology should have been suppressed under the Edwards rule. He understandably did not pursue an Edwards objection, because Jackson offered broader protections, but the decision here changes the legal landscape. Pp. 18–19.  (La.), 974 So. 2d 1238, vacated and remanded.

Disposition:  SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY, J., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined, and in which BREYER, J., joined, except for n. 5. BREYER, J., filed a dissenting opinion.

OA:  1.13.09
DC:  3.9.09

Vermont v. Brillon (08-88) – Speedy Trial

No. 08–88. Argued January 13, 2009—Decided March 9, 2009

Factual and Procedural History:  In July 2001, respondent Brillon was arrested on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. During the time between his arrest and his trial, at least six different attorneys were appointed to represent him. Brillon “fired” his first attorney, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. His fourth lawyer served from June 2002 until November 2002, then the trial court released him from the case. His fifth lawyer, assigned two months later, withdrew in April 2003. Four months thereafter, his sixth lawyer was assigned, and she took the case to trial in June 2004. The trial court denied Brillon’s motion to dismiss for want of a speedy trial.

The Vermont Supreme Court, however, reversed, holding that Brillon’s conviction must be vacated, and the charges against him dismissed, because the State did not accord him the speedy trial required by the Sixth Amendment. Citing the balancing test this Court stated in Barker v. Wingo, 407 U. S. 514, the Vermont Supreme Court concluded that all four factors described in Barker— “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant,” id., at 530—weighed against the State. Weighing heavily in Brillon’s favor, the Vermont court said, the three-year delay in bringing him to trial was “extreme.” In assessing the reasons for that delay, the court separately considered the period of each counsel’s representation. It acknowledged that the first year, when Brillon was represented by his first and third lawyers, should not count against the State. But the court counted much of the remaining two years against the State. Delays in that period, the court determined, were caused, for the most part, by the failure or unwillingness of several of the assigned counsel, over an inordinate period of time, to move the case forward. As for the third and fourth Barker v. Wingo factors, the court found that Brillon repeatedly and adamantly demanded a trial and that his lengthy pretrial incarceration was prejudicial.

SCOTUS HOLDING:  The Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. Pp. 6–11.

(a) Primarily at issue here is the reason for the delay in Brillon’s trial. In applying Barker, the Court has asked “whether the government or the criminal defendant is more to blame for th[e] delay.” Doggett v. United States, 505 U. S. 647, 651. Delay “to hamper the defense” weighs heavily against the prosecution, Barker, 407 U. S., at 531, while delay caused by the defense weighs against the defendant, id., at 529. Because “the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,” delay caused by the defendant’s counsel is charged against the defendant. Coleman v. Thompson, 501 U. S. 722, 753. The same principle applies whether counsel is privately retained or publicly assigned, for“ ‘[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.’ ” Polk County v. Dodson, 454 U. S. 312, 318. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor. Pp. 6–8.

(b) Although the balance arrived at in close cases ordinarily would not prompt this Court’s review, the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court’s correction. The court erred in attributing to the State delays caused by the failure of several assigned counsel to move Brillon’s case forward and in failing adequately to take into account the role of Brillon’s disruptive behavior in the overall balance. Pp. 8–11.

(1) An assigned counsel’s failure to move the case forward does not warrant attribution of delay to the State. Most of the delay the Vermont court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel, each of whom requested time extensions. Their inability or unwillingness to move the case forward may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Yet the same considerations would not attend a privately retained counsel’s requests for time extensions. There is no justification for treating defendants’ speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned. Pp. 9–10.

(2) The Vermont Supreme Court further erred by treating the period of each counsel’s representation discretely. The court failed appropriately to take into account Brillon’s role during the first year of delay. Brillon sought to dismiss his first attorney on the eve of trial. His strident, aggressive behavior with regard to his third attorney further impeded prompt trial and likely made it more difficult for the Defender General’s office to find replacement counsel. Absent Brillon’s efforts to force the withdrawal of his first and third attorneys, no speedy-trial issue would have arisen. Pp. 10–11.

(c) The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic breakdown in the public defender system could be charged to the State. Cf. Polk County, 454 U. S., at 324–325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon’s case. P. 11. 955 A. 2d 1108, reversed and remanded.

Disposition:  GINSBURG, J,. delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

OA:  1.13.09
DC:  3.24.09

Knowles v. Mirzayance (07-1315) – Habeas, IAC

No. 07–1315. Argued January 13, 2009—Decided March 24, 2009

Factual and Procedural History:  Respondent Mirzayance entered pleas of not guilty and not guilty by reason of insanity (NGI) at his state-court murder trial. During the guilt phase, he sought to avoid a conviction for first-degree murder and instead obtain a second-degree murder verdict by presenting medical testimony that he was insane at the time of the crime and was, therefore, incapable of the necessary premeditation or deliberation. The jury nevertheless convicted him of first-degree murder. After the trial’s NGI phase was scheduled, Mirzayance accepted his counsel’s recommendation to abandon the insanity plea. Counsel believed that a defense verdict was unlikely because the jury had just rejected medical testimony similar to that which would be presented to establish the NGI defense. Moreover, although counsel had planned to supplement the medical evidence with testimony by Mirzayance’s parents as to their son’s mental illness, the parents refused to testify at the last moment. Following his conviction, Mirzayance alleged in state post conviction proceedings that his attorney’s recommendation to withdraw the NGI plea constituted ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668.

The trial court denied relief, and the California Court of Appeal affirmed. Mirzayance then applied for federal habeas relief, which the District Court denied. The Ninth Circuit reversed, ordering an evidentiary hearing on counsel’s recommendation to withdraw the NGI plea. During the hearing, the Magistrate Judge made extensive fact findings, including, inter alia, that the NGI phase medical evidence essentially would have duplicated the evidence the jury rejected in the guilt phase; that counsel doubted the likelihood of prevailing on the NGI claim because the jury’s finding of first-degree murder as a practical matter would cripple Mirzayance’s chances of convincing the jury that he nevertheless was incapable of understanding the nature and quality of his act and of distinguishing right from wrong; that Mirzayance’s parents were not simply reluctant, but had effectively refused, to testify; that counsel had made a carefully reasoned decision not to proceed with the NGI plea after weighing his options and discussing the matter with experienced co-counsel; but that counsel’s performance was nevertheless deficient because Mirzayance had “nothing to lose” by going forward with the NGI phase of the trial. The Magistrate Judge also found prejudice and recommended habeas relief. The District Court accepted the recommendation and granted the writ. The Court of Appeals affirmed, ruling, among other things, that counsel’s performance had been deficient because Mirzayance’s parents had not refused, but had merely expressed reluctance to testify, and because competent counsel would have attempted to persuade them to testify, which Mirzayance’s counsel admittedly did not. The court essentially concluded that competent counsel would have pursued the insanity defense because counsel had nothing to lose by putting on the only defense available. In addition, the court found prejudice because, in the court’s view, there was a reasonable probability the jury would have found Mirzayance insane had counsel pursued the NGI phase. The Ninth Circuit concluded that federal habeas relief was authorized under 28 U. S. C. §2254(d)(1) because the California Court of Appeal had “unreasonabl[y] appli[ed] clearly established Federal law.”
 
SCOTUS HOLDING:   Whether the state-court decision is reviewed under §2254(d)(1)’s standard or de novo, Mirzayance has failed to establish that his counsel’s performance was ineffective. Pp. 8–16.
 
(a) The State Court of Appeal’s denial of Mirzayance’s ineffective assistance claim did not violate clearly established federal law. The Ninth Circuit reached a contrary result based largely on its application of an improper review standard—it blamed counsel for abandoning the NGI claim because there was “nothing to lose” by pursuing it. But it is not “an unreasonable application of clearly established Federal law” for a state court to decline to apply a specific legal rule that has not been squarely established by this Court. See, e.g., Wright v. Van Patten, 552 U. S. ___, ___. Absent anything akin to the “nothing to lose” standard in this Court’s precedent, habeas relief could have been granted under §2254(d)(1) only if the state-court decision in thiscase had unreasonably applied Strickland’s more general standard for ineffective-assistance claims, whereby a defendant must show both deficient performance by counsel and prejudice, 466 U. S., at 687. The question “is not whether a federal court believes the state court’s determination” under Strickland “was incorrect but whether [it] was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U. S. 465, 473. And, because Strickland’s is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the §2254(d)(1) standard, Mirzayance’s ineffective assistance claim fails. It was not unreasonable for the state court to conclude that counsel’s performance was not deficient when he counseled Mirzayance to abandon a claim that stood almost no chance of success. Pp. 8–11.

(b) Even if Mirzayance’s ineffective-assistance claim were eligible for de novo review, it would still fail because he has not shown ineffective assistance at all. Mirzayance can establish neither the deficient performance nor the prejudice required by Strickland. As to performance, he has not shown “that counsel’s representation fell below an objective standard of reasonableness.” 466 U. S., at 687–688. Rather, counsel merely recommended the withdrawal of what he reasonably believed was a claim doomed because similar medical testimony had already been rejected and the parents’ testimony, which he believed to be his strongest evidence, would not be available. The Ninth Circuit’s position that competent counsel might have persuaded the reluctant parents to testify is in tension with the Magistrate Judge’s contrary findings and applies a more demanding standard than Strickland prescribes. The failure to show ineffective assistance is also confirmed by the Magistrate Judge’s finding that counsel’s decision was essentially an informed one “made after thorough investigation of law and facts relevant to plausible options,” and was therefore “virtually unchallengeable.” Id., at 690. The Ninth Circuit’s insistence that counsel was required to assert the only defense available, even one almost certain to lose, is not supported by any “prevailing professional norms” of which the Court is aware. See id., at 688. Nor has Mirzayance demonstrated that he suffered prejudice, which requires a showing of “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See id., at 694. In fact, it was highly improbable that the jury, having just rejected testimony about Mirzayance’s mental condition in the guilt phase, would have reached a different result based on similar evidence at the NGI phase. Pp. 11–
16. Reversed and remanded.

Disposition:  THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, BREYER, and ALITO, JJ., joined, and in which SCALIA, SOUTER, and GINSBURG, JJ., joined as to all but Part II

OA:  1.14.09
DC:  3.25.09

Puckett v. United States (07-9712) – Breach of plea agreement claims

No. 07–9712. Argued January 14, 2009—Decided March 25, 2009

Factual and Procedural History:  In exchange for petitioner Puckett’s guilty plea, the Government agreed to request (1) a three-level reduction in his offense level under the Federal Sentencing Guidelines on the ground that he had accepted responsibility for his crimes; and (2) a sentence at the low end of the applicable Guidelines range. The District Court accepted the plea, but before Puckett was sentenced he assisted in another crime. As a result, the Government opposed any reduction in Puckett’s offense level, and the District Court denied the three-level reduction. On appeal, Puckett raised for the first time the argument that by backing away from its reduction request, the Government had broken the plea agreement. The Fifth Circuit found that Puckett had forfeited that claim by failing to raise it below; applied Federal Rule of Criminal Procedure Rule 52(b)’s plain-error standard for unpreserved claims of error; and held that, although the error had occurred and was obvious, Puckett had not satisfied the third prong of plain-error analysis in that he failed to demonstrate that his ultimate sentence was affected, especially since the District Judge had found that acceptance-of-responsibility reductions for defendants who continued to engage in criminal activity were so rare as “to be unknown.”

SCOTUS HOLDING:  Rule 52(b)’s plain-error test applies to a forfeited claim, like Puckett’s, that the Government failed to meet its obligations under a plea agreement, and applies in the usual fashion. Pp. 4–14.

(a) In federal criminal cases, Rule 51(b) instructs parties how to preserve claims of error: “by informing the court—when [a] ruling . . . is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” A party’s failure to preserve a claim ordinarily prevents him from raising it on appeal, but Rule 52(b) recognizes a limited exception for plain errors. “Plain-error review” involves four prongs: (1) there must be an error or defect that the appellant has not affirmatively waived, United States v. Olano, 507 U. S. 725, 732–733; (2) it must be clear or obvious, see id., at 734; (3) it must have affected the appellant’s substantial rights, i.e., “affected the outcome of the district court proceedings,” ibid.; and (4) if the three other prongs are satisfied, the court of appeals has the discretion to remedy the error ifit “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,’ ” id., at 736. The question here is not whether plain-error review applies when a defendant fails to preserve a claim that the Government defaulted on its plea-agreement obligations, but what conceivable reason exists for disregarding its evident application. The breach undoubtedly violates the defendant’s rights, but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others. Pp. 4–6.

(b) Neither Puckett’s doctrinal arguments nor the practical considerations that he raises counsel against applying plain-error review in the present context. The Government’s breach of the plea agreement does not retroactively cause the defendant’s guilty plea to have been unknowing or involuntary. This Court’s decision in Santobello v. New York, 404 U. S. 257, does not govern, since the question whether an error can be found harmless is different from the question whether it can be subjected to plain-error review. Puckett is wrong in contending that no purpose is served by applying plain-error review: There is much to be gained by inducing the objection to be made at the trial court level, where (among other things) the error can often be remedied. And not all plea breaches will satisfy the doctrine’s four prongs. Pp. 7–14.  505 F. 3d 377, affirmed.

Disposition:  SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, J., joined.

OA:  1.14.09
DC:  6.8.09

Boyle v. United States (07-1309) – RICO, association-in-fact

No. 07–1309. Argued January 14, 2009—Decided June 8, 2009
 
Factual and Procedural History:  The evidence at petitioner Boyle’s trial for violating the Racketeer Influenced and Corrupt Organizations Act (RICO) provision forbidding “any person . . . associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” 18 U. S. C. §1962(c), was sufficient to prove, among other things, that Boyle and others committed a series of bank thefts in several States; that the participants included a core group, along with others recruited from time to time; and that the core group was loosely and informally organized, lacking a leader, hierarchy, or any long-term master plan. Relying largely on United States v. Turkette, 452 U. S. 576, 583, the District Court instructed the jury that to establish a RICO association-in-fact “enterprise,” the Government must prove (1) an ongoing organization with a framework, formal or informal, for carrying out its objectives, and (2) that association members functioned as a continuing unit to achieve a common purpose. The court also told the jury that an association-in-fact’s existence is often more readily proved by what it does than by abstract analysis of its structure, and denied Boyle’s request for an instruction requiring the Government to prove that the enterprise had “an ascertainable structural hierarchy distinct from the charged predicate acts.” Boyle was convicted, and the Second Circuit affirmed.
 
SCOTUS HOLDING:
 
1. An association-in-fact enterprise under RICO must have a “structure,” but the pertinent jury instruction need not be framed in the precise language Boyle proposes, i.e., as having “an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.” Pp. 4–12.

(a) In light of RICO’s broad statement that an enterprise “includes any . . . group of individuals associated in fact although not a legal entity,” §1961(4), and the requirement that RICO be “liberally construed to effectuate its remedial purposes,” note following §1961, Turkette explained that “enterprise” reaches “a group of persons associated together for a common purpose of engaging in a course of conduct,” 452 U. S., at 583, and “is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Ibid. Pp. 4–5.

(b) The question presented by this case is whether an association-in-fact enterprise must have “an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.” Pet. for Cert. i. This question can be broken into three parts. First, the enterprise must have a “structure” that, under RICO’s terms, has at least three features: a purpose, relationships among the associates, and longevity sufficient to permit the associates to pursue the enterprise’s purpose. See Turkette, 452 U. S., at 583. The instructions need not actually use the term “structure,” however, so long as the relevant point’s substance is adequately expressed. Second, because a jury must find the existence of elements of a crime beyond a reasonable doubt, requiring a jury to find the existence of a structure that is ascertainable would be redundant and potentially misleading. Third, the phrase “beyond that inherent in the pattern of racketeering activity” is correctly interpreted to mean that the enterprise’s existence is a separate element that must be proved, not that such existence may never be inferred from the evidence showing that the associates engaged in a pattern of racketeering activity. See ibid. Pp. 6–8.

(c) Boyle’s argument that an enterprise must have structural features additional to those that can be fairly inferred from RICO’s language—e.g., a hierarchical structure or chain of command; fixed roles for associates; and an enterprise name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies—has no basis in the statute’s text. As Turkette said, an association-in-fact enterprise is simply a continuing unit that functions with a common purpose. The breadth of RICO’s “enterprise” concept is highlighted by comparing the statute with other federal laws having much more stringent requirements for targeting organized criminal groups: E.g., §1955(b) defines an “illegal gambling business” as one that “involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business.” Pp. 8–10.

(d) Rejection of Boyle’s argument does not lead to a merger of the §1962(c) crime and other federal offenses. For example, proof that a defendant violated §1955 does not necessarily establish that he conspired to participate in a gambling enterprise’s affairs through a pattern of racketeering activity. Rather, that would require the prosecution to prove either that the defendant committed a pattern of §1955violations or a pattern of state-law gambling crimes. See §1961(1). Pp. 10–11.

(e) Because RICO’s language is clear, the Court need not reach Boyle’s statutory purpose, legislative history, or rule-of-lenity arguments. Pp. 11–12.

2. The instructions below were correct and adequate. By explicitly telling jurors they could not convict on the RICO charges unless they found that the Government had proved the existence of an enterprise, the instructions made clear that this was a separate element from the pattern of racketeering activity. The jurors also were adequately told that the enterprise needed the structural attributes that may be inferred from the statutory language. Finally, the instruction that an enterprise’s existence “is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure” properly conveyed Turkette’s point that proof of a pattern of racketeering activity may be sufficient in a particular case to permit an inference of the enterprise’s existence. P. 12.
283 Fed. Appx. 825, affirmed.

Disposition:  ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which BREYER, J., joined

OA:  1.21.09
DC:  4.6.09

Corley v. United States (07-10441) – Suppression of a voluntary confession

No. 07–10441. Argued January 21, 2009—Decided April 6, 2009

Factual and Procedural History:  McNabb v. United States, 318 U. S. 332, and Mallory v. United States, 354 U. S. 449, “generally rende[r] inadmissible confessions made during periods of detention that violat[e] the prompt presentment requirement of [Federal Rule of Criminal Procedure] 5(a).” United States v. Alvarez-Sanchez, 511 U. S. 350, 354. Rule 5(a), in turn, provides that a “person making an arrest . . . must take the defendant without unnecessary delay before a magistrate judge . . . .” Congress enacted 18 U. S. C. §3501 in response to Miranda v. Arizona, 384 U. S. 436, and some applications of the McNabb-Mallory rule. In an attempt to eliminate Miranda, §3501(a) provides that “a confession. . . shall be admissible in evidence if it is voluntarily given,” and §3501(b) lists several considerations for courts to address in assessing voluntariness. Subsection (c), which focuses on McNabb-Mallory, provides that “a confession made . . . by . . . a defendant . . . , while . . . under arrest . . . , shall not be inadmissible solely because of delay in bringing such person before a magistrate judge . . . if such confession is found by the trial judge to have been made voluntarily and . . .within six hours [of arrest]”; it extends that time limit when further delay is “reasonable considering the means of transportation and the distance to . . . the nearest available [magistrate].”

Petitioner Corley was arrested for assaulting a federal officer at about 8 a.m. Around 11:45 FBI agents took him to a Philadelphia hospital to treat a minor injury. At 3:30 p.m. he was taken from the hospital to the local FBI office and told that he was a suspect in a bank robbery. Though the office was in the same building as the nearest magistrate judges, the agents did not bring him before a magistrate judge, but questioned him, hoping for a confession. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank. He asked for a break at 6:30 and was held overnight. The interrogation resumed the next morning, ending with his signed written confession. He was finally presented to a Magistrate Judge at 1:30 p.m., 29.5 hours after his arrest, and charged with armed bank robbery and related charges. The District Court denied his motion to suppress his confessions under Rule 5(a) and McNabb-Mallory. It reasoned that the oral confession occurred within §3501(c)’s six-hour window because the time of Corley’s medical treatment should be excluded from the delay. It also found the written confession admissible, explaining there was no unreasonable delay under Rule 5(a) because Corley had requested the break. He was convicted of conspiracy and bank robbery.

The Third Circuit affirmed. Relying on Circuit precedent to the effect that §3501 abrogated McNabb-Mallory and replaced it with a pure voluntariness test, it concluded that if a district court found a confession voluntary after considering the points listed in §3501(b), it would be admissible, even if the presentment delay was unreasonable.

SCOTUS HOLDING:  Section 3501 modified McNabb-Mallory but did not supplant it. Pp. 8–18.

(a) The Government claims that because §3501(a) makes a confession “admissible” “if it is voluntarily given,” it entirely eliminates McNabb-Mallory with its bar to admitting even a voluntary confession if given during an unreasonable presentment delay. Corley argues that §3501(a) was only meant to overrule Miranda, and notes that only §3501(c) touches on McNabb-Mallory, making the rule inapplicable to confessions given within six hours of an arrest. He has the better argument. Pp. 8–16.

(1) The Government’s reading renders §3501(c) nonsensical and superfluous. If subsection (a) really meant that any voluntary confession was admissible, then subsection (c) would add nothing; if a confession was “made voluntarily” it would be admissible, period, and never “inadmissible solely because of delay,” even a delay beyond six hours. The Government’s reading is thus at odds with the basic interpretive canon that “ ‘[a] statute should be construed [to give effect] to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’ ” Hibbs v. Winn, 542 U. S. 88, 101. The Government claims that in providing that a confession “shall not be admissible,” Congress meant that a confession “shall not be [involuntary].” Thus read, (c) would specify a bright-line rule applying (a) to cases of delay: it would tell courts that delay alone does not make a confession involuntary unless the delay exceeds six hours. But “ ‘Congress did not write the statute that way.’ ” Russello v. United States, 464 U. S. 16, 23. The terms “inadmissible” and “involuntary” are not synonymous. Congress used both in (c), and this Court “would not presume to ascribe this difference to a simple mistake in draftsmanship.” Ibid. There is also every reason to believe that Congress used the distinct terms deliberately, specifying two criteria that must be satisfied to prevent a confession from being “inadmissible solely because of delay”: the confession must be “[1] made voluntarily and . . . [2] within six hours [of arrest].” Moreover, under the McNabb-Mallory rule, “inadmissible” and “involuntary” mean different things. Corley’s position, in contrast, gives effect to both (c) and(a), by reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory. The Government’s counterargument—that Corley’s reading would also create a conflict, since (a) makes all voluntary confessions admissible while (c) would leave some voluntary confessions inadmissible—falls short. First, (a) is a broad directive while (c) aims only at McNabb-Mallory, and “a more specific statute[is] given precedence over a more general one.” Busic v. United States, 446 U. S. 398, 406. Second, reading (a) to create a conflict with (c) not only would make (c) superfluous, but would also create conflicts with so many other Rules of Evidence that the subsection cannot possibly be given its literal scope. Pp. 8–12.

(2) The legislative history strongly favors Corley’s reading. The Government points to nothing in this history supporting its contrary view. Pp. 13–15.

(3) The Government’s position would leave the Rule 5 presentment requirement without teeth, for if there is no McNabb-Mallory there is no apparent remedy for a presentment delay. The prompt presentment requirement is not just an administrative nicety. It dates back to the common law. Under Rule 5, presentment is the point at which the judge must take several key steps to foreclose Government overreaching: e.g., informing the defendant of the charges against him and giving the defendant a chance to consult with counsel. Without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, even though “custodial police interrogation, by its very nature, isolates and pressures the individual,” Dickerson v. United States, 530 U. S. 428, 435, inducing people to confess to crimes they never committed. Pp. 15–16.

(b) There is no merit to the Government’s fallback claim that even if §3501 preserved a limited version of McNabb-Mallory, Congress cut it out by enacting Federal Rule of Evidence 402, which provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court . . . .” The Advisory Committee’s Notes expressly identified McNabb-Mallory as a statutorily authorized rule that would survive Rule 402, and the Government has previously conceded before this Court that Rule 402preserved McNabb-Mallory. Pp. 16–18. 500 F. 3d 210, vacated and remanded.

Disposition:  SOUTER, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and THOMAS, JJ., joined.

OA:  1.21.09
DC:  4.29.09
Kansas v. Ventris (07-1356) – Voluntary statements, absence a knowing waiver

No. 07–1356. Argued January 21, 2009—Decided April 29, 2009

Factual and Procedural History:  Respondent Donnie Ray Ventris and Rhonda Theel were charged with murder and other crimes. Prior to trial, an informant planted in Ventris’s cell heard him admit to shooting and robbing the victim, but Ventris testified at trial that Theel committed the crimes. When the State sought to call the informant to testify to his contradictory statement, Ventris objected. The State conceded that Ventris’s Sixth Amendment right to counsel had likely been violated, but argued that the statement was admissible for impeachment purposes. The trial court allowed the testimony. The jury convicted Ventris of aggravated burglary and aggravated robbery. Reversing, the Kansas Supreme Court held that the informant’s statements were not admissible for any reason, including impeachment.

SCOTUS HOLDING:  Ventris’s statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial. Pp. 3–7.

(a) Whether a confession that was not admissible in the prosecution’s case in chief nonetheless can be admitted for impeachment purposes depends on the nature of the constitutional guarantee violated. The Fifth Amendment guarantee against compelled self incrimination is violated by introducing a coerced confession at trial, whether by way of impeachment or otherwise. New Jersey v. Portash, 440 U. S. 450, 458–459. But for the Fourth Amendment guarantee against unreasonable searches or seizures, where exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee, admissibility is determined by an exclusionary-rule balancing test. See Walder v. United States, 347 U. S. 62, 65. The same is true for violations of the Fifth and Sixth Amendment prophylactic rules forbidding certain pretrial police conduct. See, e.g., Harris v. New York, 401 U. S. 222, 225–226. The core of the Sixth Amendment right to counsel is a trial right, but the right covers pretrial interrogations to ensure that police manipulation does not deprive the defendant of “ ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah v. United States, 377 U. S. 201, 204. This right to be free of uncounseled interrogation is infringed at the time of the interrogation, not when it is admitted into evidence. It is that deprivation that demands the remedy of exclusion from the prosecution’s case in chief. Pp. 3–6.

(b) The interests safeguarded by excluding tainted evidence for impeachment purposes are “outweighed by the need to prevent perjury and to assure the integrity of the trial process.” Stone v. Powell, 428

U. S. 465, 488. Once the defendant testifies inconsistently, denying the prosecution “the traditional truth-testing devices of the adversary process,” Harris, supra, at 225, is a high price to pay for vindicating the right to counsel at the prior stage. On the other hand, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence for officers, who have an incentive to comply with the Constitution, since statements lawfully obtained can be used for all purposes, not simply impeachment. In every other context, this Court has held that tainted evidence is admissible for impeachment. See, e.g., Oregon v. Hass, 420 U. S. 714, 723. No distinction here alters that balance. Pp. 6–7.  285 Kan. 595, 176 P. 3d 920, reversed and remanded.

Disposition:  SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, SOUTER, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined.

OA:  2.23.09
DC:  3.31.09

Rivera v. Illinois (07-9995) – Preemptory challenges

No. 07–9995. Argued February 23, 2009—Decided March 31, 2009

Factual and Procedural History:  During jury selection in petitioner Rivera’s state-court first-degree murder trial, his counsel sought to use a peremptory challenge to excuse venire member Deloris Gomez. Rivera had already exercised two peremptory challenges against women, one of whom was African-American. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was biased against him. The trial court rejected the peremptory challenge out of concern that it was discriminatory. Under Batson v. Kentucky, 476 U. S. 79, and later decisions applying Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors based on race, ethnicity, or sex. At trial, the jury, with Gomez as its foreperson, found Rivera guilty of first-degree murder.

The Illinois Supreme Court subsequently affirmed the conviction, holding that the peremptory challenge should have been allowed, but rejecting Rivera’s argument that the improper seating of Gomez was a reversible error. Observing that the Constitution does not mandate peremptory challenges and that they are not necessary for a fair trial, the court held that the denial of Rivera’s peremptory challenge was not a structural error requiring automatic reversal. Nor, the court found, was the error harmless beyond a reasonable doubt. The court added that it did not need to decide whether the trial court’s denial was “an error of constitutional dimension” in the circumstances of Rivera’s case, a comment that appears to be related to Rivera’s arguments that, even absent a freestanding constitutional entitlement to peremptory challenges, the inclusion of Gomez on his jury violated the Fourteenth Amendment’s Due Process Clause.
 
SCOTUS HOLDING:  Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court’s good-faith error in denying the defendant’s peremptory challenge to a juror. Pp. 6–12.
 
(a) Rivera maintains that due process requires reversal whenever a criminal defendant’s peremptory challenge is erroneously denied. He asserts that a trial court that fails to dismiss a lawfully challenged juror commits structural error because the jury becomes an illegally constituted tribunal, whose verdict is per se invalid; that this is true even if the Constitution does not mandate peremptory challenges, since criminal defendants have a constitutionally protected liberty interest in their state-provided peremptory challenge rights; that the issue is not amenable to harmless-error analysis, as it is impossible to ascertain how a properly constituted jury would have decided his case; and that automatic reversal therefore must be the rule as a matter of federal law. Rivera’s arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. There is no freestanding constitutional right to peremptory challenges. See, e.g., United States v. Martinez-Salazar, 528 U.S. 304, 311. They are “a creature of statute,” Ross v. Oklahoma, 487 U. S. 81, 89, which a State may decline to offer at all, Georgia v. McCollum, 505 U. S. 42, 57. Thus, the mistaken denial of a state provided peremptory challenge does not, without more, violate the Federal Constitution. See, e.g., Engle v. Isaac, 456 U. S. 107, 121, n. 21. The Due Process Clause safeguards not the meticulous observance of state procedural prescriptions, but “the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385 U. S. 554, 563–564. Pp. 6–8.

(b) The trial judge’s refusal to excuse Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Ross is instructive. There, a criminal defendant used a peremptory challenge to rectify an Oklahoma trial court’s erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. Even though the trial court’s error might “have resulted in a jury panel different from that which would otherwise have decided [Ross’s] case,” 487 U. S., at 87, because no member of the jury as finally composed was removable for cause, there was no violation of his Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process, id., at 86–91. This Court reached the same conclusion with regard to a federal-court trial in Martinez-Salazar, 528 U. S., at 316. Rivera’s efforts to distinguish Ross and Martinez-Salazar are unavailing. First, although in contrast to Rivera, the Ross and Martinez-Salazar defendants did not challenge any of the jurors who were in fact seated, neither Gomez nor any other member of Rivera’s jury was removable for cause. Thus, like the Ross and Martinez-Salazar juries, Rivera’s jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel, but this Court rejects the notion that a juror is constitutionally disqualified whenever she is aware of a challenge. Second, it is not constitutionally significant that, in contrast to Ross and Martinez-Salazar, the seating of Gomez over Rivera’s peremptory challenge was at odds with state law. Errors of state law do not automatically become violations of due process. As in Ross and Martinez-Salazar, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Rather, his conduct reflected a good-faith effort to enforce Batson’s antidiscrimination requirements. To hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a defendant’s discriminatory use of peremptory challenges. The Fourteenth Amendment does not compel such a tradeoff. Pp. 8–10.

(c) Rivera errs in insisting that, even without a constitutional violation, the deprivation of a state-provided peremptory challenge requires reversal as a matter of federal law. He relies on a suggestion in Swain v. Alabama, 380 U. S. 202, 219, that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” This statement was disavowed in Martinez-Salazar, see 528 U. S., at 317, n. 4. Typically, an error is designated as “structural,” therefore “requir[ing] automatic reversal,” only when “the error ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” Washington v. Recuenco, 548 U. S. 212, 218–219. The mistaken denial of a state-provided peremptory challenge does not, in the circumstances here, constitute such an error. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. See, e.g., Batson, 476 U. S., at 86, 87. A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy, resulting in a judgment invalid as a matter of federal law. See, e.g., Nguyen v. United States, 539 U. S. 69. Nothing in those decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal’s composition. Absent a federal constitutional violation, States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se or, as the Illinois Supreme Court implicitly held here, that the improper seating of a competent and unbiased juror could rank as a harmless error under state law. Pp. 10–12. 227 Ill. 2d 1, 879 N. E. 2d 876, affirmed.

Disposition:  GINSBURG, J., delivered the opinion for a unanimous Court.

OA:  2.25.09
DC:  5.4.09

Flores-Figueroa v. United States (08-108) – Identity Theft

No. 08–108. Argued February 25, 2009—Decided May 4, 2009

Factual and Procedural History:  A federal statute forbidding “[a]ggravated identity theft” imposes a mandatory consecutive 2-year prison term on an individual convicted of certain predicate crimes if, during (or in relation to) the commission of those other crimes, the offender “knowingly . . . uses, without lawful authority, a means of identification of another person.” 18 U. S. C. §1028A(a)(1) (emphasis added). After petitioner Flores-Figueroa, a Mexican citizen, gave his employer counterfeit Social Security and alien registration cards containing his name but other people’s identification numbers, he was arrested and charged with two immigration offenses and aggravated identity theft. Flores moved for acquittal on the latter charge, claiming that the Government could not prove that he knew that the documents’ numbers were assigned to other people. The District Court agreed with the Government that the word “knowingly” in §1028A(a)(1) does not modify the statute’s last three words, “of another person,” and, after trial, found Flores guilty on all counts. The Eighth Circuit affirmed.

SCOTUS HOLDING:  Section §1028(a)(1) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person. As a matter of ordinary English grammar, “knowingly” is naturally read as applying to all the subsequently listed elements of the crime. Where a transitive verb has an object, listeners in most contexts assume that an adverb (such as “knowingly”)that modifies the verb tells the listener how the subject performed the entire action, including the object. The Government does not provide a single example of a sentence that, when used in typical fashion, would lead the hearer to a contrary understanding. And courts ordinarily interpret criminal statutes consistently with the ordinary English usage. See, e.g., Liparota v. United States, 471 U. S. 419. The Government argues that this position is incorrect because it would either require the same language to be interpreted differently in a neighboring provision or would render the language in that provision superfluous. This argument fails for two reasons. Finally, the Government’s arguments based on the statute’s purpose and on the practical problems of enforcing it are not sufficient to overcome the ordinary meaning, in English or through ordinary interpretive practice, of Congress’ words. Pp. 4–11.  274 Fed. Appx. 501, reversed and remanded.

Disposition:  BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in thejudgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in part and concurring in the judgment.

OA:  3.2.09
DC:  6.18.09

District Attorney’s Office for the Third Judicial District, et al. v. Osborne (08-6) – Defendant’s access to biological evidence

No. 08–6. Argued March 2, 2009—Decided June 18, 2009

Factual and Procedural History:  Respondent Osborne was convicted of sexual assault and other crimes in state court. Years later, he filed this suit under 42 U. S. C. §1983, claiming he had a due process right to access the evidence used against him in order to subject it to DNA testing at his own expense. The Federal District Court first dismissed his claim under Heck v. Humphrey, 512 U. S. 477, holding that Osborne must proceed in habeas because he sought to set the stage for an attack on his conviction. The Ninth Circuit reversed, concluding that §1983 was the proper vehicle for Osborne’s claims. On remand, the District Court granted Osborne summary judgment, concluding that he had a limited constitutional right to the new testing under the unique and specific facts presented, i.e., that such testing had been unavailable at trial, that it could be accomplished at almost no cost to the State, and that the results were likely to be material. The Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under, e.g., Brady v. Maryland, 373 U. S. 83.
 
SCOTUS HOLDING:  Assuming Osborne’s claims can be pursued using §1983, he has no constitutional right to obtain post conviction access to the State’s evidence for DNA testing. Pp. 8–21.

(a) DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. The availability of new DNA testing technologies, however, cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The task of establishing rules to harness DNA’s power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature. See Washington v. Glucksberg, 521 U. S. 702, 719. Forty-six States and the Federal Government have already enacted statutes dealing specifically with access to evidence for DNA testing. These laws recognize the value of DNA testing but also the need for conditions on accessing the State’s evidence. Alaska is one of a handful of States yet to enact specific DNA testing legislation, but Alaska courts are addressing how to apply existing discovery and post conviction relief laws to this novel technology. Pp. 8–11.

(b) The Court assumes without deciding that the Ninth Circuit was correct that Heck does not bar Osborne’s §1983 claim. That claim can be rejected without resolving the proper application of Heck. Pp. 12–
13.

(c) The Ninth Circuit erred in finding a due process violation. Pp. 13–21.

(i) While Osborne does have a liberty interest in pursuing the post conviction relief granted by the State, the Ninth Circuit erred in extending the Brady right of pretrial disclosure to the post conviction context. Osborne has already been found guilty and therefore has only a limited liberty interest in post conviction relief. See, e.g., Herrera v. Collins, 506 U. S. 390, 399. Instead of the Brady inquiry, the question is whether consideration of Osborne’s claim within the framework of the State’s post conviction relief procedures “offends some [fundamental] principle of justice” or “transgresses any recognized principle of fundamental fairness in operation.” Medina v. California, 505 U. S. 437, 446, 448. Federal courts may upset a State’s post conviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.

There is nothing inadequate about Alaska’s post conviction relief procedures in general or its methods for applying those procedures to persons seeking access to evidence for DNA testing. The State provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It also provides for discovery in post conviction proceedings, and has—through judicial decision—specified that such discovery is available to those seeking access to evidence for DNA testing. These procedures are similar to those provided by federal law and the laws of other States, and they satisfy due process. The same is true for Osborne’s reliance on a claimed federal right to be released upon proof of “actual innocence.” Even assuming such a right exists, which the Court has not decided and does not decide, there is no due process problem, given the procedures available to access evidence for DNA testing. Pp. 13–18.

(ii) The Court rejects Osborne’s invitation to recognize a freestanding, substantive due process right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. In the circumstances of this case, there is no such right. Generally, the Court
3 Cite as: 557 U. S. ____ (2009) Syllabus
is “reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended.” Collins v. Harker Heights, 503 U. S. 115, 125. There is no long history of a right of access to state evidence for DNA testing that might prove innocence. “The mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303. Moreover, to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by Congress and the States. It would shift to the Federal Judiciary responsibility for devising rules governing DNA access and creating a new constitutional code of procedures to answer the myriad questions that would arise. There is no reason to suppose that federal courts’ answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite. See, e.g., Collins, supra, at 125. Pp. 19–21.
521 F. 3d 1118, reversed and remanded.

Disposition:  ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY, J., joined, and in which THOMAS, J., joined as to Part II. STEVENS, J., filed a dissenting opinion, in which GINS-BURG and BREYER, JJ., joined, and in which SOUTER, J., joined as to Part
I. SOUTER, J., filed a dissenting opinion.

OA:  3.4.09
DC:  5.26.09

Abuelhawa v. United States (08-192) – Cell phone use during misdemeanor drug buy

No. 08–192. Argued March 4, 2009—Decided May 26, 2009

Factual and Procedural History:  A wiretap of Mohammed Said’s telephone recorded six calls in which petitioner Abuelhawa arranged to buy cocaine from Said in two separate 1-gram transactions. Those two purchases were misdemeanors under the Controlled Substances Act (CSA), 21 U. S. C. §844, while Said’s two sales were felonies, §841(a)(1) and (b). The Government charged Abuelhawa with six felonies on the theory that each of the phone calls, some placed by him, some by Said, violated §843(b),which makes it a felony “to use any communication facility in . . . facilitating” felony distribution and other drug crimes. The District Court denied Abuelhawa’s acquittal motion, in which he argued that his efforts to make misdemeanor purchases could not be treated as facilitating Said’s felonies. The jury convicted Abuelhawa on all six felony counts. The Fourth Circuit affirmed, reasoning that “facilitat[e]” should be given its ordinary meaning in §843(b) and that Abuelhawa’s use of a phone to buy cocaine counted as ordinary facilitation because it made Said’s distribution of the drug easier.

SCOTUS HOLDING:  Using a telephone to make a misdemeanor drug purchase does not “facilitat[e]” felony drug distribution in violation of §843(b). Stopping with the plain meaning of “facilitate” here would ignore the rule that because statutes are not read as a collection of isolated phrases, “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.” Dolan v. Postal Service, 546 U. S. 481, 486. Here it does not. The literal sweep of “facilitat[e]”sits uncomfortably with common usage: Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the other’s conduct. The common usage has its parallel in cases holding that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the legislature’s punishment calibration.

In Gebardi v. United States, 287 U. S. 112, 119, for example, the Court held that a woman who voluntarily crossed a state line with a man to have sex could not be tagged with the Mann Act violation for “aid[ing] or assist[ing]” interstate transportation for immoral purposes because the statutory penalties were “clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation.” Such cases have a bearing here in two ways. First, given the presumption, see, e.g., Williams v. Taylor, 529 U. S. 362, 380–381, and n. 12, that the Congress that enacted §843(b) was familiar with the traditional judicial limitation on applying terms like “aid,” “abet,” and “assist,” it is likely the Legislature had a comparable scope in mind when it used “facilitate,” a word with equivalent meaning. Second, any broader reading would for practical purposes substantially skew the congressional calibration of respective buyer-seller penalties.

Moreover, the statute’s history—which shows that in 1970 the CSA downgraded simple possession from a felony to a misdemeanor, §844(a), and simultaneously limited the communications provision’s prohibition of facilitating a drug “offense”to facilitating a “felony,” §843(b)—drives home what is clear from the statutory text: Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony. Yet, under the Government’s reading of §843(b), in a substantial number of cases Congress would for all practical purposes simultaneously have graded back up to felony status with the left hand the same offense, simple drug possession, it had dropped to a misdemeanor with the right. Given that Congress used no language spelling out a purpose so improbable, but legislated against a background usage of terms such as “aid,” “abet,” and “assist” that points in the opposite direction and accords with the CSA’s choice to classify small purchases as misdemeanors, the Government’s position is just too unlikely. Pp. 3–8.  523 F. 3d 415, reversed and remanded.

Disposition:  SOUTER, J., delivered the opinion for a unanimous Court.

OA:  3.4.09
DC:  4.29.09

Dean v. United States (08-5274) – Accidental firearm discharge; sentencing enhancement

No. 08–5274. Argued March 4, 2009—Decided April 29, 2009

Factual and Procedural History:  An individual convicted for using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime, receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. 18 U. S. C. §924(c)(1)(A)(i). The mandatory minimum increases to 7 years “if the firearm is brandished” and to 10 years “if the firearm is discharged.” §§924(c)(1)(A)(ii), (iii). Petitioner Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because the firearm was “discharged” during the robbery, Dean was sentenced to a 10-year mandatory minimum prison term on the firearm count. §924(c)(1)(A)(iii). On appeal, he contended that the discharge was accidental, and that §924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required.

SCOTUS HOLDING:   Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident. Pp. 2–9.

(a) Subsection (iii) provides a minimum 10-year sentence “if the firearm is discharged.” It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation. This Court “ordinarily resist[s] reading words or elements into a statute that do not appear on its face.” Bates v. United States, 522 U. S. 23, 29. Congress’s use of the passive voice further indicates that subsection (iii) does not require proof of intent. Cf. Watson v. United States, 552 U. S. ___, ___. The statute’s structure also suggests no such limitation. Congress expressly included an intent requirement for the 7-year mandatory minimum for brandishing a firearm by separately defining “brandish” to require that the firearm be displayed “in order to intimidate” another person. §924(c)(4). Congress did not, however, separately define “discharge” to include an intent requirement. It is generally presumed that Congress acts intentionally when including particular language in one section of a statute but not in another. Russello v. United States, 464 U. S. 16, 23. Contrary to Dean’s contention, the phrase “during and in relation to” in the opening paragraph of §924(c)(1)(A) does not modify “is discharged,” which appears in a separate subsection and in a different voice than the principal paragraph. “[I]n relation to” is most naturally read to modify only the nearby verbs “uses” and “carries.” This reading will not lead to the absurd results posited by Dean. Pp. 3–6.

(b) Dean argues that subsection (iii) must be limited to intentional discharges in order to give effect to the statute’s progression of harsher penalties for increasingly culpable conduct. While it is unusual to impose criminal punishment for the consequences of purely accidental conduct, it is not unusual to punish individuals for the unintended consequences of their unlawful acts. The fact that the discharge may be accidental does not mean that the defendant is blameless. The sentencing enhancement accounts for the risk of harm resulting from the manner in which the crime is carried out, for which the defendant is responsible. See Harris v. United States, 536 U. S. 545, 553. An individual bringing a loaded weapon to commit a crime runs the risk that the gun will discharge accidentally. A gunshot—whether accidental or intended—increases the risk that others will be injured, that people will panic, or that violence will be used in response. It also traumatizes bystanders, as it did here. Pp. 6–9.

(c) Because the statutory text and structure demonstrate that the discharge provision does not contain an intent requirement, the rule of lenity is not implicated in this case.   517 F. 3d 1224, affirmed.

Disposition:  ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. STEVENS,
J., and BREYER, J., filed dissenting opinions.

OA:  3.23.09
DC:  6.18.09

Yeager v. United States (08-67) – Bar to re-trial after partial acquittal

No. 08–67. Argued March 23, 2009—Decided June 18, 2009

Factual and Procedural History:  A federal indictment charged petitioner Yeager with securities and wire fraud for allegedly misleading the public about the virtues of a fiberoptic telecommunications system offered by his employer, a subsidiary of Enron Corp., and with insider trading for selling his Enron stock while in possession of material, nonpublic information about the new system’s performance and value to Enron. The indictment also charged petitioner with money laundering for conducting various transactions with the proceeds of his stock sales. The jury acquitted Yeager on the fraud counts but failed to reach a verdict on the insider-trading and money-laundering counts. After the Government recharged him with some of the insider-trading and money laundering counts, Yeager moved to dismiss the charges on the ground that the jury, by acquitting him on the fraud counts, had necessarily decided that he did not possess material, nonpublic information about the project’s performance and value, and that the issue preclusion component of the Double Jeopardy Clause therefore barred a second trial for insider trading and money laundering. The District Court denied the motion, and the Fifth Circuit affirmed, reasoning that the fact that the jury hung on the insider-trading and money-laundering counts—as opposed to acquitting petitioner—cast doubt on whether it had necessarily decided that petitioner did not possess material, nonpublic information. This inconsistency between the acquittals and the hung counts, the Fifth Circuit concluded, meant that the Government could prosecute petitioner anew for insider trading and money laundering.

SCOTUS HOLDING:  An apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive force under the Double Jeopardy Clause. Pp. 6–15.

(a) This case is controlled by the reasoning in Ashe v. Swenson, 397 U. S. 436, where the Court squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. For double jeopardy purposes, the jury’s inability to reach a verdict on Yeager’s insider-trading and money-laundering counts was a nonevent that should be given no weight in the issue-preclusion analysis. To identify what a jury necessarily determined at trial, courts should scrutinize the jury’s decisions, not its failures to decide. A jury’s verdict of acquittal represents the community’s collective judgment regarding all the evidence and arguments presented to it. Even if the verdict is “based upon an egregiously erroneous foundation,” Fong Foo v. United States, 369 U. S. 141, 143, its finality is unassailable, see, e.g., Arizona v. Washington, 434 U. S. 497, 503. Thus, if the possession of insider information was a critical issue of ultimate fact in all of the charges against Yeager, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element. Pp. 6–12.

(b) Neither Richardson v. United States, 468 U. S. 317, nor United States v. Powell, 469 U. S. 57, supports the Government’s argument that it can retry Yeager for insider trading or money laundering. Richardson’s conclusion that a jury’s “failure . . . to reach a verdict isnot an event which terminates jeopardy,” 468 U. S., at 325, did not open the door to using a hung count to ignore the preclusive effect of a jury’s acquittal, but was simply a rejection of the argument—similar to the Government’s today—that a mistrial is an event of significance. Also rejected is the contention that an acquittal can never preclude retrial on a hung count because it would impute irrationality to the jury in violation of Powell’s rule that issue preclusion is “predicated on the assumption that the jury acted rationally,” 469 U. S., at 68. The Court’s refusal in Powell and in Dunn v. United States, 284 U. S. 390, to impugn the legitimacy of jury verdicts that, on their face, were logically inconsistent shows, a fortiori, that a potentially inconsistent hung count could not command a different result. Pp. 12–14.

(c) The Government has argued that, even if hung counts cannot enter the issue-preclusion analysis, Yeager has failed to show that the jury’s acquittals necessarily resolved in his favor an issue of ultimate fact that must be proved to convict him of insider trading and money laundering. Having granted certiorari on the assumption that the Fifth Circuit ruled correctly that the acquittals meant the jury found that Yeager did not have insider information that contradicted what was presented to the public, this Court declines to engage in a fact-intensive analysis of the voluminous record that is unnecessary to resolve the narrow legal question at issue. If the Court of Appeals chooses, it may revisit its factual analysis in light of the Government’s arguments before this Court. Pp. 14–15.  521 F. 3d 367, reversed and remanded.

Disposition:  STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SOUTER, GINSBURG, and BREYER, JJ., joined, and in which KENNEDY, J., joined as to Parts I–III and V. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.

OA:  4.21.09
DC:  6.25.09

Safford United School District #1 v. Redding (08-479) – Constitutionality of strip-searching a student at a public school

No. 08–479. Argued April 21, 2009—Decided June 25, 2009

Factual and Procedural History:  After escorting 13-year-old Savana Redding from her middle school classroom to his office, Assistant Principal Wilson showed her a day planner containing knives and other contraband. She admitted owning the planner, but said that she had lent it to her friend Marissa and that the contraband was not hers. He then produced four prescription-strength, and one over-the-counter, pain relief pills, all of which are banned under school rules without advance permission. She denied knowledge of them, but Wilson said that he had a report that she was giving pills to fellow students. She denied it and agreed to let him search her belongings. He and Helen Romero, an administrative assistant, searched Savana’s backpack, finding nothing. Wilson then had Romero take Savana to the school nurse’s office to search her clothes for pills. After Romero and the nurse, Peggy Schwallier, had Savana remove her outer clothing, they told her to pull her bra out and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found. Savana’s mother filed suit against petitioner school district (Safford), Wilson, Romero, and Schwallier, alleging that the strip search violated Savana’s Fourth Amendment rights. Claiming qualified immunity, the individuals (hereinafter petitioners) moved for summary judgment. The District Court granted the motion, finding that there was no Fourth Amendment violation, and the en banc Ninth Circuit reversed. Following the protocol for evaluating qualified immunity claims, see Saucier v. Katz, 533 U. S. 194, 200, the court held that the strip search was unjustified under the Fourth Amendment test for searches of children by school officials set out in New Jersey v. T. L. O., 469 U. S. 325. It then applied the test for qualified immunity. Finding that Savana’s right was clearly established at the time of the search, it reversed the summary judgment as to Wilson, but affirmed as to Schwallier and Romero because they were not independent decision makers.

SCOTUS HOLDING:
 
1. The search of Savana’s underwear violated the Fourth Amendment. Pp. 3–11.

(a) For school searches, “the public interest is best served by aFourth Amendment standard of reasonableness that stops short of probable cause.” T. L. O., 469 U. S., at 341. Under the resulting reasonable suspicion standard, a school search “will be permissible . . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342. The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing. Pp. 3–5.

(b) Wilson had sufficient suspicion to justify searching Savana’s backpack and outer clothing. A week earlier, a student, Jordan, had told the principal and Wilson that students were bringing drugs and weapons to school and that he had gotten sick from some pills. On the day of the search, Jordan gave Wilson a pill that he said came from Marissa. Learning that the pill was prescription strength, Wilson called Marissa out of class and was handed the day planner. Once in his office, Wilson, with Romero present, had Marissa turn out her pockets and open her wallet, producing, inter alia, an over the-counter pill that Marissa claimed was Savana’s. She also denied knowing about the day planner’s contents. Wilson did not ask her when she received the pills from Savana or where Savana might be hiding them. After a search of Marissa’s underwear by Romero and Schwallier revealed no additional pills, Wilson called Savana into his office. He showed her the day planner and confirmed her relationship with Marissa. He knew that the girls had been identified as part of an unusually rowdy group at a school dance, during which alcohol and cigarettes were found in the girls’ bathroom. He had other reasons to connect them with this contraband, for Jordan had told the principal that before the dance, he had attended a party at Savana’s house where alcohol was served. Thus, Marissa’s statement that the pills came from Savana was sufficiently plausible to warrant suspicion that Savana was involved in pill distribution. A student who is reasonably suspected of giving out contraband pills is reasonably suspected of carrying them on her person and in her backpack. Looking into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing. Pp. 5–8.

(c) Because the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear, Wilson did not have sufficient suspicion to warrant extending the search to the point of making Savana pull out her underwear. Romero and Schwallier said that they did not see anything when Savana pulled out her underwear, but a strip search and its Fourth Amendment consequences are not defined by who was looking and how much was seen. Savana’s actions in their presence necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that “the search [be]‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” T. L. O., supra, at 341. Here, the content of the suspicion failed to match the degree of intrusion. Because Wilson knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear. When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed. Non dangerous school contraband does not conjure up the specter of stashes in intimate places, and there is no evidence of such behavior at the school; neither Jordan nor Marissa suggested that Savana was doing that, and the search of Marissa yielded nothing. Wilson also never determined when Marissa had received the pills from Savana; had it been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear. Pp. 8–11.

2. Although the strip search violated Savana’s Fourth Amendment rights, petitioners Wilson, Romero, and Schwallier are protected from liability by qualified immunity because “clearly established law [did]not show that the search violated the Fourth Amendment,” Pearson v. Callahan, 555 U. S. ___, ___. The intrusiveness of the strip search here cannot, under T. L. O., be seen as justifiably related to the circumstances, but lower court cases viewing school strip searches differently are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt about the clarity with which the right was previously stated. Pp. 11–13.

3. The issue of petitioner Safford’s liability under Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694, should be addressed on remand. P. 13.  531 F. 3d 1071, affirmed in part, reversed in part, and remanded.

Disposition:  SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Parts I–III. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part.

 

Supreme Court Rejects Peremptory Challenge Claim

The U.S. Supreme Court today decided Rivera v. Illinois, No. 07-9995, unanimously rejecting the defendant's claim that the state trial court's erroneous denial of his peremptory challenge required a new trial. Justice Ginsburg delivered the opinion of the Court, and the introduction to her opinion summarizes the Court's holding:

This case concerns the consequences of a state trial court's erroneous denial of a defendant's peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant's conviction?

Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court's rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera's jury and indeed served as the jury's foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera's conviction. We affirm the judgment of the Illinois Supreme Court.

The right to exercise peremptory challenges in state court is determined by state law. This Court has "long recognized" that "peremptory challenges are not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court's determination that, in the circumstances Rivera's case presents, the trial court's error did not warrant reversal of his conviction.

[Brooks Holland]

Liptak Previews Strip Search Case

Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

The case will require the justices to consider the thorny question of just how much leeway school officials should have in policing zero-tolerance policies for drugs and violence, and the court is likely to provide important guidance to schools around the nation.

In Ms. Redding’s case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that school officials had violated the Fourth Amendment’s ban on unreasonable searches. Writing for the majority, Judge Kim McLane Wardlaw said, “It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights.”

“More than that,” Judge Wardlaw added, “it is a violation of any known principle of human dignity.”

Judge Michael Daly Hawkins, dissenting, said the case was in some ways “a close call,” given the “humiliation and degradation” involved. But, Judge Hawkins concluded, “I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students.”

Richard Arum, who teaches sociology and education at New York University, said he would have handled the incident differently. But Professor Arum said the Supreme Court should proceed cautiously.

“Do we really want to encourage cases,” Professor Arum asked, “where students and parents are seeking monetary damages against educators in such school-specific matters where reasonable people can disagree about what is appropriate under the circumstances?”

The Supreme Court’s last major decision on school searches based on individual suspicion — as opposed to systematic drug testing programs — was in 1985, when it allowed school officials to search a student’s purse without a warrant or probable cause as long their suspicions were reasonable. It did not address intimate searches.

In a friend-of-the-court brief in Ms. Redding’s case, the federal government said the search of her was unreasonable because officials had no reason to believe she was “carrying the pills inside her undergarments, attached to her nude body, or anywhere else that a strip search would reveal.”

Read full article here. [Brooks Holland]

Heller "Firing Blanks?"

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”

Heller itself struck down parts of the District of Columbia’s gun control law, the strictest in the nation. The case was brought by law-abiding people who wanted to keep guns in their homes for self-defense. The cases that have followed it tend to concern more focused laws and less attractive gun owners.

Harvey C. Jackson IV, for instance, argued that he had a constitutional right to carry a gun while selling drugs in a dangerous neighborhood in East St. Louis, Ill. The federal appeals court in Chicago was unimpressed.

REad full article here. [Brooks Holland]

SCOTUS Decides Speedy Trial Clause Case

On Monday, the U.S. Supreme Court decided Vermont v. Brillon.  At issue was whether delays in bringing a defendant to trial that are attributable to his court-appointed lawyers should be counted against the prosecution for purposes of the Speedy Trial Clause of the Sixth Amendment, as incorporated against the States by the Fourteenth Amendment.  By a vote of 7-2, the Court held that such delays generally cannot be charged to the prosecution. [Mike Mannheimer]

Liptak Considers the Future of the Exclusionary Rule

In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

Read full article here. [Brooks Holland]

Supreme Court Narrows Exclusionary Rule

The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court’s majority came to a conclusion that will most likely please those who complain about criminals going free on “technicalities.”

Mr. Herring had gone to the Coffee County, Ala., sheriff’s department on July 7, 2004, to retrieve something from his truck, which had been impounded. “Herring was no stranger to law enforcement,” as Chief Justice John G. Roberts Jr. observed dryly in his opinion for the court.

And he was no stranger to Mark Anderson, an investigator for the sheriff’s department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional? No, the Supreme Court ruled.

Read full article here. [Brooks Holland]

Speedy Trial Case Before Supreme Court This Week

After he was charged with hitting his girlfriend in the face, career criminal Michael Brillon sat in jail without bail for nearly three years, going through six public defenders before being tried for assault.

The delays paid off -- for Brillon, anyway: A Vermont court threw out his conviction and freed him from prison last spring, saying his Sixth Amendment right to a speedy trial had been violated.

Now, the U.S. Supreme Court is taking up the case, trying to decide whether delays caused by public defenders can deprive a criminal defendant of that right. In particular: Whether governments can be blamed for such delays because they're the ones who assign and pay the lawyers for indigent defendants.

Forty states and 15 organizations -- state governments, county governments, the U.S. Conference of Mayors, a victim's rights' group -- are backing the Vermont prosecutor's appeal of the ruling, worried that if it stands, criminal suspects will try to game the system and get the result Brillon did.

"You're greasing that slippery slope," said David Parkhurst, an attorney with the National Governors Association, which filed a friend-of-the-court brief in support of the prosecutor's appeal. "That's the big concern here."

Brillon, a 46-year-old construction worker whose criminal past includes convictions for sexual assault on a minor, felony obstruction of justice and cocaine possession, was charged with aggravated domestic assault over the 2001 incident with his girlfriend, who is the mother of his child.

Held without bail, his case inched along as lawyer after lawyer asked for postponements and eventually withdrew or were replaced at Brillon's request.

Read full article here. [Brooks Holland]

SCOTUS Grants Cert. in DNA Testing Case

In a case of obvious importance to the innocence movement, the U.S. Supreme Court today granted review in a case that raises the question whether 42 U.S.C. s. 1983 provides a cause of action to have DNA testing performed in order to prove actual innocence.  In District Attorney's Office v. Osborne, the respondent was convicted of rape, kidnapping, and related crimes.  He later attempted to have DNA testing performed on genetic materials found near the scene of the attack in order to prove his innocence but he was thwarted in his efforts in state court.  The question raised is whether section 1983 can be used essentially as a discovery device in order to support further litigation once the conviction has become final.  A subsidiary issue is the thorny question, likely to be dodged by the high Court once again, whether a freestanding innocence claim is cognizable under the Due Pocess Clause of the Fourteenth Amendment.  Courtesy of Scotus Blog, you can read the petition for certiorari here, the brief in opposition here, the reply brief here, and the Ninth Circuit decision here. [Mike Mannheimer]

Supreme Court's Second Amendment Decision in D.C. v. Heller May Help Fight Against Gun Violence, Brady Center Report Finds

The U.S. Supreme Court's Second Amendment decision in D.C. v. Heller may have the "unintended consequence" of helping to enact stronger gun laws, according to a report issued today by the Legal Action Project of the Brady Center to Prevent Gun Violence.

While the decision gives criminal defendants a legal tool to use to potentially avoid criminal convictions or mitigate their punishments and will inspire gun lobby challenges of gun laws, it may also clear some of the wedge politics that have blocked the nation from passing sensible gun laws in the future, the report says.

The report, titled "Unintended Consequences: What The Supreme Court's Second Amendment Decision In D.C. V. Heller Means For The Future Of Gun Laws," comes four months after the Supreme Court's ruling and just a few weeks before the Court is scheduled to argue another case involving guns: specifically, the scope of the current federal law prohibiting spousal abusers from possessing firearms. It is available at http://www.bradycenter.org/xshare/pdf/heller/post-heller-white-paper.pdf.

"As the report explains, the Supreme Court has taken away the extremes of the gun debate, and left us in the reasonable middle ground of common sense proposals to reduce gun violence supported by most Americans," said Paul Helmke, President of the Brady Center. "By making it clear that law-abiding citizens have an individual right to possess guns for self-defense, the Supreme Court may have paved the way for the strong gun laws that Americans want and need to protect our communities from violent crime."

The report argues that the decision may have a positive impact on American gun policy. "The Court went out of its way to make clear that most gun laws are 'presumptively' constitutional while also putting to rest gun owners' fears of a total ban or ultimate confiscation of all firearms," its authors wrote. "By taking the extremes of the gun policy debate off the table, Heller has the potential to allow genuine progress in implementing reasonable gun restrictions, while protecting basic rights to possess firearms. The unintended consequence of Heller is that it may end up 'de-wedgeifying' one of the more divisive 'wedge' issues on the political landscape: guns. The net result of Heller would then be positive by leading to the enactment of the strong gun laws that we need -- and the vast majority of Americans want -- to protect our communities from gun violence." [Mark Godsey]

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Supreme Court Rejects Obesity Appeal

The U.S. Supreme Court has rejected an appeal from an Ohio prisoner who argued he is too obese to be executed. Richard Cooey is scheduled to be put to death Tuesday.

The court denied his request for a stay without comment Monday. Cooey is 5-foot-7 and weighs 267 pounds.

State officials said prison staff examined Cooey's veins and found no problems that would interfere with the execution.

Read full article here. [Brooks Holland]

SCOTUS Saves Death Row Inmates' Appeal for Another Day

From Examiner.com:  The United States Supreme Court says it needs more time to look at an appeal from Georgia  death row inmate Troy Anthony Davis. Davis, 39, was convicted of the 1989 shooting death of off-duty officer Mark Allen McPhail, 27, in Savannah, Georgia.

In September, just 2 hours before his scheduled execution by way of lethal injection the U.S. Supreme Court issued a stay of execution.

Mr. Davis received thousands of calls and letters on his behalf including Pope Benedict XVI (wrote a letter to Georgia Governor Sonny Purdue), Nobel Peace Prize recipients Desmond Tutu and former U.S. President Jimmy Carter; actor Mike Farrell, recording artists the Indigo Girls, the Hip Hop Summit Action Network (HHSAN) and Broadway star Don Quixote.

Davis wants the high court to order a judge to hear from the witnesses who recanted their testimony and others who say another man confessed to the crime.

In past appeal attempts, prosecutors have styled the statements of recanting witnesses as suspect. The courts--including the Georgia State Supreme Court--as well as the Georgia State Pardons and Parole Board refused requests for a new trial or clemency.

Pres. Carter at the very least sought a commuted sentence and life in prison.

According to published reports, the high court issued orders Monday addressing the appeals of numerous cases, but none as to whether it will accept or reject Davis’ appeal. Instead, the court, in a listing on its docket, said it will meet in a private conference on Friday to consider Davis’ appeal.

According to analysts it is not out of character for a case such as Davis' to be heard several weeks from now. Rest of Article. . . [Bobbi Madonna]

High court rebuffs Louisiana in child rape case

WASHINGTON -- The Supreme Court declined Wednesday to revisit its recent decision outlawing executions for people convicted of raping children.

The unusual request, from Louisiana and the Bush administration, was based on the failure of anyone involved in the case to take into account a federal law from 2006 that authorizes the death penalty for members of the military who are convicted of child rape.

The state argued that the case should be reopened because Justice Anthony Kennedy relied in part on what he called a "national consensus" against executing convicted rapists. The court split 5-4 in the June 25 ruling.

The justices, by a 7-2 vote, issued an amended opinion Wednesday that adds a footnote concerning military law, but otherwise leaves the essence of the decision untouched.

The provision of military law setting out punishments for rapists "does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional," Kennedy wrote, joined by the four liberal justices who formed the majority in June.

Reopening the case would have taken five votes, including that of at least one justice who voted to ban the death penalty for rapists.

Justices Samuel Alito and Clarence Thomas voted to hear the case again.

Chief Justice John Roberts and Justice Antonin Scalia dissented from the original opinion, but voted against reopening the case.

The number of jurisdictions that allowed for capital punishment for rapists was irrelevant to the court's decision, Scalia said. Instead, the justices in the majority employed their independent judgment to say the Constitution forbids executions when the defendant does not kill the victim, he said. [Mark Godsey]

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SCOTUS Grants Cert. in Seven Criminal Cases

The U.S. Supreme Court today granted review in seven criminal cases.  Among the issues the Court will address are two Sixth Amendment issues:  whether a defendant whose Sixth Amendment right to counsel has attached and who has been appointed counsel must "accept" the appointment before he becomes unapproachable by the police; and whether the prosecution can use the fruit of a Massiah violation for impeachment purposes.

You can see the full list of cases, with links to related documents, here. [Mike Mannheimer].

In the New Term, High Stakes for the High Court

Following a blockbuster term involving guns, Guantanamo Bay and the death penalty, the U.S. Supreme Court opens its doors to a new term with less drama, more cases initially and many challenges having potentially major implications for business, the environment, injured consumers, job bias victims and law enforcement.

If the docket thus far appears to lack possible landmark cases, the term's drama level could change quickly after the justices hold their summer conference meeting on Sept. 29 in which they generally add cases from more than a thousand filed during the summer months. They also continue to add cases to the term's argument docket until about mid-January.

One case likely to raise the stakes considerably, if granted review, is perhaps the most significant voting rights case in decades -- Northwest Austin Municipal District Number One v. Mukasey, No. 08-322. The case challenges Congress' recent reauthorization of Section 5 of the federal Voting Rights Act of 1965, the heart of the landmark law that changed the voting landscape in America.

The justices will return in the new term to several areas of apparent strong, ongoing interest:

• Business is seeking federal pre-emption of state personal injury suits in the pharmaceutical drug and tobacco arenas.

• Employees and employers square off in two job bias cases, one involving retaliation and the other pregnancy leave and retirement credit.

• Sexual harassment in schools draws the justices into the interplay of two major discrimination statutes.

• And an unusually large number of environmental cases -- four -- will be argued, ranging from Navy sonar and its effect on marine mammals to the use of cost-benefit analysis in setting environmental standards. [Mark Godsey]

Continue Reading "In the New Term, High Stakes for the High Court "

U.S. Supreme Court delays execution of Ga.

ATLANTA (AP) — The U.S. Supreme Court gave a reprieve to a Georgia inmate less than two hours before his scheduled execution Tuesday for the 1989 slaying of an off-duty police officer.

Family and advocates of 39-year-old Troy Davis have long urged he deserves a new trial as seven of the nine witnesses who helped put him on death row have recanted their testimony. His supporters erupted into cheers and tears when the stay was announced at about 5:20 p.m. ET.

"This is not over yet," said Davis, who sounded upbeat and optimistic speaking to the crowd by phone. "This is the beginning of my blessing."

Also on Tuesday, Florida executed a man convicted of shooting and killing two young sisters after he raped and shot their mother.

In Georgia, protesters had arrived by the busload to protest the execution, waving signs and wearing blue shirts that proclaimed "I am Troy Davis." The Rev. Al Sharpton, who accompanied the Davis family to the protest, led the crowd in a Gospel hymn after the news was announced. [Mark Godsey]

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U.S. Court Is Now Guiding Fewer Nations

WASHINGTON — Judges around the world have long looked to the decisions of the United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War.

But now American legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.

“One of our great exports used to be constitutional law,” said Anne-Marie Slaughter, the dean of the Woodrow Wilson School of Public and International Affairs at Princeton. “We are losing one of the greatest bully pulpits we have ever had.”

From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an analysis by The New York Times found. In the six years since, the annual citation rate has fallen by half, to about six.

Australian state supreme courts cited American decisions 208 times in 1995, according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen to 72.

The story is similar around the globe, legal experts say, particularly in cases involving human rights. These days, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, “they tend not to look to the rulings of the U.S. Supreme Court.”

The rise of new and sophisticated constitutional courts elsewhere is one reason for the Supreme Court’s fading influence, legal experts said. The new courts are, moreover, generally more liberal than the Rehnquist and Roberts courts and for that reason more inclined to cite one another. [Mark Godsey]

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Supreme Court Requests Briefing on Motion for Rehearing in Kennedy v. Louisiana

You can view the order here. [Mike Mannheimer]