CrimProf Blog

Yesterday's Miranda Opinion in Florida v. Powell

is here. The syllabus:

In a pathmarking decision, Miranda v. Arizona, 384 U. S. 436, 471, this Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.” After arresting respondent Powell, but before questioning him,Tampa Police read him their standard Miranda form, stating, inter alia: “You have the right to talk to a lawyer before answering any of our questions” and “[y]ou have the right to use any of these rights at any time you want during this interview.” Powell then admitted he owned a handgun found in a police search. He was charged with possession of a weapon by a convicted felon in violation of Florida law. The trial court denied Powell’s motion to suppress his inculpatory statements, which was based on the contention that the Miranda warnings he received did not adequately convey his right to the presence of an attorney during questioning. Powell was convicted of the gun-possession charge, but the intermediate appellate court held that the trial court should have suppressed the statements. The Florida Supreme Court agreed. It noted that both Miranda and the State Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning. The advice Powell received was misleading, the court believed, because it suggested that he could consult with an attorney only before the police started to question him and did not convey his entitlement to counsel’s presence throughout the interrogation.

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Transcript from Today's Argument in Briscoe v. Virginia

is here.

Next Week's Oral Arguments

Brief description of the case is from ScotusWiki:

Tuesday, Oct. 13

Padilla v. Commonwealth of Kentucky (08-651) — effect of defense lawyer’s wrong advice on consequences of a guilty plea

• CrimProf summary
• ScotusWiki summary

Smith v. Spisak (08-724) — unanimity of jury as an issue in finding mitigating evidence in a capital case

• CrimProf summary
• ScotusWiki summary

Wednesday, Oct. 14

Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime

• ScotusWiki summary

Procedural Default Through Fleeing the Jurisdiction

Kent Scheidegger at Crime and Consequences comments on Beard v. Kindler, scheduled for argument before the Court on November 2. His view of the case:

 It is common in that the federal court cavalierly brushed aside the state default rule as "inadequate" with its own inadequate analysis of that issue. The case is unusual, though, in that the default is not some omission by defendant's lawyer in arguing his case but rather defendant's own action in escaping from custody and fleeing to Canada.

ScotusWiki has briefs and the opinion below here.

Oral Argument in Maryland v. Shatzer

ScotusBlog points to the Court's website, which has the transcript from yesterday's oral argument here. Susan Bandes (Depaul) blogs about the argument at ACSBlog in a post entitled Bright Line Fever: The Argument in Maryland v. Shatzer.

Next Week's USSC Criminal Law/Procedure Arguments

The summary of the issue comes from ScotusWiki, where you can also find briefs, opinions below, and the like.

Monday, Oct. 5

Maryland v. Shatzer: limits on police questioning after a suspect asks for a lawyer

• ScotusWiki summary
• Testing the Outer Limits of the Edwards Rule: Maryland v. Shatzer (Dripps & Kamisar)
• Previewing the Coming Term (Part 1): Maryland v. Shatzer

Tuesday, Oct. 6

Johnson v. United States: battery as a “violent felony” for sentence enhancement

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

Bloate v. United States: calculation of time of pre-trial stages under federal Speedy Trial Act

• ScotusWiki summary

 

Today's Criminal Law and Procedure Cert Grants

SCOTUSblog has summaries, including links to cert petitions, opinions below, and the like, for all ten cases on which the Court granted review here. Here are the excerpts that relate to criminal law and procedure:

Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Title: Berghuis, Warden v. Smith
Issue: Whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply “clearly established Federal law” under 28 U.S.C. § 2254 when it rejected a state prisoner’s Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).

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McDaniel v. Brown Taken off Court's Argument Calendar

The Court's unusual action in this regard is noted at Crime and Consequences. The case involves a sufficiency of the evidence claim in a habeas case involving an underlying sexual assault conviction. CrimProf summarized the issues and arguments of the parties here.

Previewing the Coming Term (Part 14): Briscoe v. Virginia

[This is the fourteenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.This case was previously the subject of a guest post on CrimProf by Professor James J. Duane.]

Case: Briscoe v. Virginia
Docket No.: 07-11191
Oral Argument Date: not yet assigned

Issue:  Whether, if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, the state avoids violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

Factual and Procedural History:  Petitioners, Mark A. Briscoe and Sheldon A. Cypress, were charged and convicted on charges relating to the distribution of cocaine.  At trial, the key issue was whether the substances seized and introduced by the police and prosecution did actually contain cocaine.  The principal evidence introduced to establish this fact was a certificate of analysis prepared by a forensic analyst of the department of Criminal Justice Services.  The certificate had test results purporting to show that the seized substances contained large quantities of cocaine. 

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Previewing the Coming Term (Part 13): Weyhrauch v. United States

[This is the thirteenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.]

Case: Weyhrauch v. United States 
Docket No.: 08-1196
Oral Argument Date: not yet assigned

Issue:  Whether 18 U.S.C. § 1346, by criminalizing denials of "the intangible right of honest services," mandates the creation by the federal courts of a federal common law defining the disclosure obligations of state government officials.

Factual and Procedural History:  Petitioner, Bruce Weyhrauch, is a licensed attorney who represented Juneau in the Alaska House of Representatives in 2006 while the House was considering legislation that would alter how the state taxed oil production.  Five days before the legislature’s scheduled adjournment, petitioner authored a letter to Bill Allen, the CEO of an oil fields services company, requesting further conversations about petitioner’s law office representing his oil company.  The letter included a heading that stated “Advertising Material.” 

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Previewing the Coming Term (Part 12): United States v. Comstock

[This is the twelfth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.]

Case: United States v. Comstock
Docket No.: 08-1224
Oral Argument Date: not yet assigned

Issue:  Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

Factual and Procedural History:  This case consists of five civil-commitment proceedings that were initiated by the United States in the District Court for the Eastern District of North Carolina.  The United States instituted proceedings against each of the five respondents (Comstock, Revland, Matherly, and Vigil) pursuant to § 4248 in November and December 2006.  At that time, each respondent was scheduled to complete a prison term.  The fifth respondent, Catron, was indicted in 2004 on four counts of aggravated sexual abuse of a minor under the age of 12, and one count of abusive sexual conduct.  He was found incompetent to stand trial, and was committed for evaluation.  The government subsequently initiated civil-commitment proceedings against him under 18 U.S.C. § 4246, which were then transferred via a proceeding under § 4248.

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Previewing the Coming Term (Part 11): Black v. United States

[This is the eleventh in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.}

Case: Black v. United .States
Docket No.: 08-876
Oral Argument Date: not yet assigned

Issues:  (1) Whether 18 U.S.C. § 1346 applies to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to the private party to whom honest services were owed; (2) Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.

Factual and Procedural History:  The U.S. Supreme Court held, in McNally v. United States, 483 U.S. 350 (1987), a public corruption case, that the mail fraud statute could not be used to prosecute schemes to deprive the citizenry of the intangible right to good government. Congress responded in 1988 by enacting 18 U.S.C. § 1346, which expands the definition of a "scheme or artifice to defraud" under the mail and wire fraud statutes to encompass schemes that "deprive another of the intangible right of honest services." Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant's conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government's bid to have the jury return a "special verdict," a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights.

Summary of Petitioners’ Argument:  Petitioners argue the Supreme Court’s holding in McNally is dispositive in this case.  Moreover, according to petitioners, § 1346, as drafted and adopted by Congress, failed to clearly address the concerns of the Court by enjoining the deprivation of the “intangible right of honest services.”  Petitioners argue the lower courts have construed this language as a “direction to revive the body of case law that antedated McNally.”  Ultimately, according to petitioners, interpreting § 1346 based on pre-McNally case law would be in error because it would involve, as applied in this case, purely private conduct. 

In the alternative, “[w]hatever the precise scope of Section 1346,” petitioners argue it is “clear” their convictions “must be reversed because the district court refused to instruct the jury on the one requirement that is apparent from the text and history of the statute.”  According to petitioners, the language of § 1346 precludes prosecutors from prosecuting dishonest conduct outside the common understanding of fraud.  Petitioners argue the Seventh Circuit was incorrect when it found that the jury might have convicted petitioners anyway if properly instructed.  Accordingly, petitioners request the Court to reverse the obstruction of justice and fraud convictions.

Summary of Respondent's Argument: Merits brief not yet filed.

Brief for Petitioner Conrad M. Black, John A. Boultbee, and Mark S. Kipnis

Previewing the Coming Term (Part 10): Florida v. Powell

[This is the tenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. This case has not yet been assigned an argument date, and the parties' merits briefs have not yet been filed. Peter excerpts and paraphrases the briefs of the parties regarding the cert petition to provide an overview of the cases and the advocates’ arguments. Links to the opinion below appears at the end of the summary.]

Docket No.: 08-1175
Case: Florida v. Powell
Oral Argument Date: not yet assigned

Issue: Must a statement be suppressed if the suspect was not expressly advised of his right to have counsel present during interrogation, even if the suspect was advised of the right to talk with an attorney "before questioning" and the "right to use" any of his rights "at any time" during interrogation.

Factual & Procedural History: In 2004, Florida police arrested respondent, Kevin Dwayne Powell, and transported him to police headquarters where he was questioned after being advised of his Miranda rights. 

At trial, during the direct examination of the investigating detective, respondent’s trial counsel objected to testimony concerning respondent’s statements to police on the ground that the Miranda warning given was invalid.  Subsequent testimony revealed that the standard police form used during the interrogation of respondent did not explicitly indicate he had the right to have an attorney present during questioning.  The warning read as follows:

" You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

The trial court ruled that the warning was adequate.

On appeal, the Second District reversed respondent’s conviction, holding that the Miranda warnings were deficient under the Fifth Amendment because respondent was not “clearly informed” of his right to have a lawyer with him during questioning.  

The Florida Supreme Court affirmed, holding that respondent was not clearly informed of his right to have counsel present during questioning.  According to the Florida Supreme Court, the standard police form used during the interrogation of respondent failed Miranda because it did not expressly state that respondent had the right to have counsel present during the interrogation, which is “indispensable to the protection of the Fifth Amendment privilege.”  Consequently, according to the Florida Court, because both Miranda and the Florida Constitution require that a “suspect be clearly informed of the right to have a lawyer present during questioning,” the Second District’s decision was affirmed.

Petitioner's Argument: Merits brief not yet filed.

Respondent's Argument: Merits brief not yet filed.

Opinion below

Previewing the Coming Term (Part Nine): Graham v. Florida

[This is the ninth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-7412
Case: Graham v. Florida
Oral Argument: November 9, 2009

Issue:  Whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide crime.
[Another case raising similar issues and to be argued on the same day, Sullivan v. Florida, was previewed yesterday.]

Factual and Procedural History:  At age sixteen, petitioner was charged with (1) armed burglary with assault or battery, and (2) attempted armed robbery.  Petitioner pled guilty to the offenses in return for three years' probation and a twelve-month sentence in a pre-trial detention facility.

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Previewing the Coming Term (Part Eight): Sullivan v. Florida

[This is the eighth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-7621
Case: Sullivan v. Florida
Oral Argument Date: November 9, 2009

Issue:  Whether the imposition of a life without parole sentence on a thirteen-year-old for a non-homicide violates the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments. 

Factual and Procedural History:  Petitioner, Joe Sullivan, was arrested in 1989 at the age of thirteen and was indicted as an adult for sexual battery in violation of Florida law.  After a one-day trial, petitioner was convicted and sentenced to life imprisonment with no possibility for parole. 

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Previewing the Coming Term (Part Seven): Wood v. Allen

[This is the seventh in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-9156
Case: Wood v. Allen
Oral Argument Date: November 4, 2009

Issue:  (1) Whether the state court erred in concluding that, during the sentencing phase of a capital case, the defense attorney’s failure to present the defendant’s impaired mental functions constituted ineffective counsel; and (2) whether the 11th Circuit erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) in reviewing the state court decision.

Factual and Procedural History:  In 1994, petitioner, Holly Wood, was convicted of capital murder during a first-degree burglary.  The jury recommended a death sentence, and after a pre-sentencing report and a separate sentencing hearing, the trial judge sentenced petitioner to death.  On direct appeal, the Alabama Court of Appeals rejected petitioner’s appeal, and the Alabama Supreme Court affirmed.

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Previewing the Coming Term (Part 6): Pottawattamie County v. McGhee

[This is the sixth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-1065
Case: Pottawattamie County et al. v. McGhee et al.
Oral Argument Date: November 4, 2009

Issue:  Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation and introducing that same testimony against the criminal defendant at trial.

Factual and Procedural History:  In 1978, Curtis W. McGhee, Jr., and Terry Harrington, respondents, were convicted of murdering a retired police officer.  McGhee and Harrington were each sentenced to life in prison.  In 2002, the Iowa Supreme Court reversed Harrington’s conviction and remanded for a new trial, finding the prosecutor failed to disclose evidence of an alternative suspect.  The prosecutor concluded it would be impossible to retry Harrington and also agreed to move to vacate McGhee’s conviction.  McGhee agreed to enter a plea to second degree murder in exchange for a sentence of time served.  With these agreements, McGhee was released.

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Previewing the Coming Term (Part 5): Smith v. Spisak

[This is the fifth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-724
Case: Smith v. Spisak
Oral Argument Date: October 13, 2009

Issue:  Whether the Sixth Circuit contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) by improperly extending Mills v. Maryland.

Facts and Procedural History:  In March 1983, Frank G. Spisak, Jr., respondent, was indicted by an Ohio grand jury on four counts of aggravated murder, three counts of aggravated robbery, one count of attempted murder, and one count of receiving stolen property.  Respondent pled not guilty by reason of insanity, and was subsequently determined to be competent to stand trial.

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Previewing the Coming Term (Part 4): Padilla v. Kentucky

[This is the fourth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-651
Case: Padilla v. Commonwealth of Kentucky
Oral Argument Date: October 13, 2009

Issue:  Whether the Sixth Amendment’s guarantee of effective assistance of counsel (1) requires a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and (2) if there is no such advice, and that misadvice about deportation induces a guilty plea, whether the misadvice amounts to ineffective assistance of counsel and warrants setting aside the guilty plea.

Factual and Procedural History:  Petitioner, Jose Padilla, who is a native of Honduras, was indicted by a state grand jury for trafficking more than five pounds of marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer without a weight and distance tax number.  Represented by counsel, petitioner entered a guilty plea to the three drug-related charges in exchange for a dismissal of the remaining charge and a total sentence of ten years.

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Previewing the Coming Term (Part 3): McDaniel v. Brown

[This is the third in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-559
Case: E.K. McDaniel, Warden, et al., v. Troy Brown
Oral Argument Date: originally scheduled for October 13, 2009, but subsequently removed from argument calendar

Issue:  Whether, on federal habeas review, the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under Jackson v. Virginia (1979).

Factual and Procedural History:  In 1994, Troy Brown, respondent, was arrested for the sexual assault of a nine-year-old girl in Carlin, Nevada.  At trial, the prosecution presented testimonial evidence from a DNA expert, Renee Romero, who testified that, among other things, there was a 99% chance that Brown was the assailant.  Brown was subsequently convicted on several counts of sexual assault and one count of child neglect.

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