Judgment Day

On May 12, 2007, the Supreme Court decided Gonzalez v. United States (06-11612). The issue in Gonzalez was whether counsel alone could consent to the magistrate judge’s role in presiding over voir dire and jury selection or whether the defendant must give his or her own consent.

While this case isn’t one of the big ones many are waiting for the Court to decide this term, I think it may be of interest to criminal defense attorneys, especially those that do assigned counsel work. When I’m first assigned a case, I write a letter to my client asking what exactly he or she is appealing. More often than not, I receive a laundry list of issues I cannot argue on appeal. Either the issues were not preserved at the trial level, or they’re not legal arguments. Explaining to my client what issues should be argued on appeal—based on what can actually be argued on appeal—is often quite the task.

Some clients want to see a copy of their brief before it’s submitted. After sending the brief, I usually receive a letter asking why the brief doesn’t include all the issues the defendant wants to argue on appeal. I try to explain I cannot argue frivolous issues and, in cases where the defendant is particularly adamant, I have him or her file a pro se brief. All of this goes to the basic issue involved in Gonzalez. At the end of the day, there are some decisions that we, as attorneys, must make whether our client agrees with us or not.

Highlights from Gonzalez:

Before petitioner's federal trial on felony drug charges, his counsel consented to the Magistrate Judge's presiding over jury selection. Petitioner was not asked for his own consent. After the Magistrate Judge supervised voir dire without objection, a District Judge presided at trial, and the jury returned a guilty verdict on all counts. Petitioner contended for the first time on appeal that it was error not to obtain his own consent to the Magistrate Judge's voir dire role. The Fifth Circuit affirmed the convictions, concluding that the right to have a district judge preside over voir dire could be waived by counsel.

Express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the Federal Magistrates Act, which states: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” Such “additional duties” include presiding at voir dire if the parties consent, but not if there is an objection. Generally, where there is a full trial, there are various points at which rights either can be asserted or waived. This Court has held that an attorney, acting without indication of particular consent from his client, could waive his client's statutory right to a speedy trial because “[s]cheduling matters are plainly among those for which agreement by counsel generally controls.” Acceptance of a magistrate judge at the jury selection phase is a tactical decision well suited for the attorney's own decision. The presiding judge has significant discretion over jury selection both as to substance-the questions asked-and tone-formal or informal-and the judge's approach may be relevant in light of the approach of the attorney, who may decide whether to accept a magistrate judge based in part on these factors. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation that the client might not understand and that might distract from more pressing matters as the attorney seeks to prepare the best defense.

SCOTUSblog reports that one of the petitions to watch at today’s private conference is Bell v. Kelly, a criminal case where the issue is “whether 28 U.S.C 2254, the federal habeas provision governing claims adjudicated on the merits in state court, should be applied to claims based on evidence of ineffective assistance of counsel the state court refused to consider.”

In Bell, a Virginia jury convicted Edward N. Bell of murdering Winchester police sergeant Ricky L. Timbrook, and he was sentenced to death. After unsuccessfully appealing his conviction and sentence in state court on direct review and in state habeas proceedings, Bell filed a petition in federal district court for a writ of habeas corpus. The district court dismissed Bell's petition and he appealed to the Fourth Circuit, arguing that the district court erred in concluding that the dismissal by the state court of his ineffective assistance of counsel claim was reasonable.

The Fourth Circuit opinion first addressed the ineffective assistance of counsel claim:

To prevail on a claim of ineffective assistance of counsel, Bell must demonstrate (1) deficient performance, meaning that “counsel's representation fell below an objective standard of reasonableness” in light of “prevailing professional norms;” and (2) prejudice, meaning that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”

Bell argued 1) his counsel was deficient for failing to investigate and present available mitigating evidence from his ex-girlfriend, ex-wife, ex-wife's sister, ex-girlfriend's mother, and a co-worker; 2) if counsel had presented such evidence, there is a reasonable probability that he would have received a life sentence, and; 3) the findings of the Supreme Court of Virginia to the contrary were unreasonable.

The Fourth Circuit disagreed with Bell, holding the district court correctly concluded that the finding of the Supreme Court of Virginia was reasonable.

Evidence from each of these witnesses was cross-purpose because it would have allowed the prosecution to emphasize multiple instances of Bell's infidelity; abandonment of his children, wife and girlfriend; domestic abuse; and failure to provide child support. Furthermore, focusing on Bell's domestic relationships likely would have caused the jury to compare Bell unfavorably to Officer Timbrook, whose death left behind a pregnant wife. When weighed against the aggravating factors of Bell's criminal record and propensity for violence, we find it reasonable for the Supreme Court of Virginia to conclude that the factors in aggravation outweighed the mitigation evidence.

SCOTUSblog has the case documents here.

SCOTUSblog has two Baze updates: "First post-Baze maneuvers" and "Baze Commentary: Justice Stevens’ Concurrence”. Highlights for the first update, second is provided in full:

"First post-Baze maneuvers":

The state of Florida moved quickly on Thursday to get Supreme Court permission to carry out the execution of a death-row inmate, and a prisoner in Mississippi asked the Court to rule itself or tell a lower court to rule on his challenge to that state’s execution procedure. These were the first filings in the Court in the wake of Wednesday’s ruling upholding the basic elements of execution by use of lethal drug injections.

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The Fifth Circuit Blog has a post today titled, “Begin the Begay (-Based Arguments, That Is): SCOTUS Holds Felony DUI Not an ACCA "Violent Felony." Here’s the intro:

Today's Supreme Court news will likely be dominated by coverage of Baze v. Rees, the lethal-injection case, but today's decision in Begay will likely have a far bigger impact in terms of the number of cases affected.

At issue in Begay was whether felony DUI is a "violent felony" for purposes of the Armed Career Criminal Act's 15-year mandatory minimum sentence. More specifically, does felony DUI qualify under 18 U.S.C. § 924(e)(2)(B)(ii), which includes an offense that "is burglary, arson, or extortion, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (emphasis added).

The answer: No. The Court concluded that, in order to give effect to every word in the definition, the "otherwise clause" must be interpreted to include only offenses that "are roughly similar, in kind as well as in degree of risk posed, to the" listed offenses. And how do we know if that rough similarity exists?

The rest of the article is here.

The Supreme Court has posted the oral argument transcript from the Kennedy case on its website. You can access the 73-page document here.

The Dallas Morning News has this article discussing this morning’s arguments; “U.S. Supreme Court hears Texas argue death penalty for child rapists.”

 

Straight from SCOTUSblog:

Today’s opinion by Justice Breyer in Begay v. United States (06-11543) is now available here. Justice Scalia filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Justices Souter and Thomas joined.

[In Begay,] the court found that drunk driving is not a “violent felony,” at least for purposes of an enhanced prison sentence under the Armed Career Criminal Act. The ruling, written by Justice Stephen G. Breyer, came on a 6-3 vote in Begay v. U.S. (06-11543).

Today’s unanimous opinion by Justice Ginsburg in Burgess v. United States (06-11429) is now available here.

In a second decision on an enhanced sentencing law, the Court ruled that a drug crime that is punishable by more than one year in prison is a “felony drug offense” even if state law classifies it as a misdemeanor. The unanimous ruling came in the case of Burgess v. U.S. (06-11429).

Today’s opinion in Baze v. Rees (07-5439) is now available here. The Chief Justice announced the judgment of the Court and delivered an opinion in which Justices Kennedy and Alito joined. Justice Alito also filed a concurring opinion. Justice Stevens and Breyer each filed an opinion concurring in the judgment. Justice Scalia and Thomas each filed an opinion concurring in the judgment, in which the other joined. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

Baze is the superstar here, but I'm interested in the other two as well. I’ll need some time to review, but here's the SCOTUSblog recap (in its entirety) on Baze:

Lethal injection allowed

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The U.S. Supreme Court will hear arguments this morning in Kennedy v. Louisiana, a case involving the constitutionality of imposing the death penalty for child rape. In 1976 the Supreme Court banned capital punishment for the crime of rape, but Louisiana has since passed a law allowing execution for rape of a child under age 12, reasoning the Court’s holding only applied to rape of an adult woman. And even though, theoretically, there are other crimes a person could be convicted of and sentenced to death (i.e., treason, espionage), capital punishment has been used exclusively for murder convictions for decades.

The outcome of the case is expected to have a significant impact around the country, with Georgia, Montana, Oklahoma, South Carolina and Texas all have laws authorizing capital punishment for the rape of a child, and Missouri indicating it may follow suit. Any state wishing to enact such legislation, however, must outline the circumstances in which the death penalty is warranted.

Simply sentencing child rapists to death, without aggravating circumstances, may be viewed by the Supreme Court as an arbitrary imposition of the death penalty. Under Louisiana law, a defendant convicted of aggravated rape of a child under the age of 12 qualifies for a death sentence. One of Kennedy’s arguments is that the Louisiana statute simply states the crime (aggravated rape) and restates the elements (child under 12).

Kennedy argues no aggravating factors are present, and most of the other states mentioned above with similar statutes require the defendant have a previous conviction of sexual assault. Louisiana maintains its statute should be narrowly construed because it only applies to defendants that seek out children under 12. The Court may find this is not narrow enough, because neither the judge nor the jury has an basis to differentiate between individual child rapists.

Additional coverage:

• SCOTUSblog Argument Preview
• Texas to argue for right to execute child rapists at Supreme Court
• Court meeting to weigh death penalty for child rapists
• Should child rapists face death penalty?

The New York Times has this article about the U.S. Supreme Court declining, without comment, to hear the case of Christopher Pittman who received a 30-year prison sentence for killing his grandparents and setting their house on fire when he was only 12 years old. The case raised several issues: whether the state properly used its discretion to try Pittman as an adult; whether the sentence was excessive; and, whether mitigating factors, such as taking the antidepressant Zoloft, should apply. I was hoping the Court would hear this case, because outside a death penalty context, it has provided little guidance on how to treat underage defendants. Here’s more from the article:

Defense lawyers asked the Supreme Court to consider whether the 30-year term violated the constitutional ban on cruel and unusual punishment in light of the defendant’s age at the time of the crime. The South Carolina Supreme Court ruled last June that the boy’s trial had been fair and the punishment was just.

The “Zoloft defense” was hotly debated at the time of the trial in February 2005. Shortly before the killings of Nov. 28, 2001, the 12-year-old Christopher had begun taking Zoloft that was prescribed. His parents had taken him to Chester County, S.C., to live with his grandparents, Joe and Joy Pittman, because he was having trouble at home in Florida.

[After the trial] a juror said the jury had agreed that Zoloft might have affected Christopher’s behavior, but not enough to impel him to kill. Pfizer Inc., the maker of Zoloft, called the case “tragic” but said, “Zoloft didn’t cause his problems, nor did the medication drive him to commit murder.”

SCOTUSblog provides “The Week Ahead” here. The Court will hear oral arguments in two high profile criminal cases this week.

On Tuesday, the Court will hear Irizarry v. United States, a case involving judges’ duty to notify parties before departing from the sentencing guidelines. Professor Berman, author of Sentencing Law and Policy, had this commentary on the case:

I have mentioned before that I think the sleeper SCOTUS sentencing case this term in Irizarry, which technically addresses a seemingly little issue concerning notice for imposing sentences outside the guidelines. However, as revealed in the amicus brief supporting the Eleventh Circuit's ruling below (to which I contributed), the case presents an opportunity for the Justices to address more broadly the nature and status of departures and variances in the post- Booker world.

On Wednesday, the Court will hear Kennedy v. Louisiana, involving the constitutionality of imposing the death penalty for child rape. Many state officials and defendants’ rights groups are following this case, which is the first since 1977 to consider execution as a form of punishment for rape. Missouri has indicated that it may enact legislation if the Court permits the death penalty for child rape, and the New York Times reported here in January that in addition to Louisiana, Georgia, Montana, Oklahoma, South Carolina and Texas all have laws authorizing capital punishment for the rape of a child under the age of 12, although most require a previous conviction of sexual assault.

The Denver Post recently reported that state lawmakers rejected a bill allowing the execution of people who sexually assault children under the age of 13.

In advance of the arguments, the Court is expected to release orders from the Justices’ private conference last Friday. One to watch for is Wallace v. United States, a Due Process Clause case questioning whether a defendant who pleads guilty retains the right to appeal a pre-trial competency determination.

Update, April 14, 2008:  Orders are posted on SCOTUSblog and the Court will not hear Wallace v. United States.

The USA Today has this article:

The Supreme Court will weigh the constitutionality of the death penalty for child rape next week, in the case of a Louisiana man convicted of raping his 8-year-old stepdaughter.

The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death. The justices said no in the case three decades ago, involving a 16-year-old married woman whom the court referred to as an adult.

Several states, including Missouri, have signaled that if the court permits the death penalty for child rape in Louisiana, they may try to enact such laws. Five states already plainly allow capital punishment for raping young children. Social workers warn that if the court sanctions the penalty for child rape, it could further discourage reporting of the crime because in the majority of child sexual assaults, the attacker is a relative or friend of the victim.

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The Providence Journal has an interesting piece today on Justice Scalia's judicial philosophy.  The article is here, and, as expected, strict construction is the theme.  A few highlights:

Scalia, a core member of the court’s conservative wing, made that point to illustrate how much the confirmation process has changed and to bolster his argument for originalism — the theory that the U.S. Constitution should be interpreted according to the intent of those who drafted and adopted it.

“Once upon a time,” Scalia said, justices were chosen on the basis of whether the nominees had the required legal skills, honesty and judicial temperament.

Those are still considered good qualities, but now that originalism is being elbowed aside by the idea of a “living constitution,” Scalia said, “The most important thing is whether this person will write the new Constitution that you like.”

SCOTUS blog provides this:

Supreme Court Justice Anthony M. Kennedy on Thursday turned aside a plea by California officials, and cleared the way for the release of a state prison inmate who was convicted of a 1982 murder in Los Angeles. Kennedy had blocked a federal judge’s release order in the case of inmate Fred McCullough last Sunday, but on Thursday nullified his stay order and denied the state’s application “in all respects.”

McCullough has twice won rulings by the state parole board that he was suitable for release after becoming rehabilitated in prison.  Both times, however, Gov. Arnold Schwarzenegger overruled the board, and found that the nature of the original crime justified McCullough’s continued imprisonment.

Kennedy’s order on Thursday can be found here.  The Justice gave no indication of his reasoning.

McCullough is thus eligible for release while the state appeals to the Ninth Circuit Court a federal judge’s release decision.

That's the headline from SCOTUSblog, which provides this intro:

The Justice Department, in a new brief in the pending Supreme Court cases on detainees’ legal rights, argued that any reopening of the prisoners’ right to habeas would not be swift, but would face a variety of “fundamental and unprecedented issues” complicating that process. The brief, filed on Monday, was a response to added written arguments that the Court on March 17 had allowed detainees’ lawyers to make in Boumediene v. Bush (06-1195) and Al Odah v. U.,S. (06-1196).  Those cases were argued Dec. 5, and are awaiting a decision.

The rest of the article is here and SCOTUSblog provides the brief here.

The Times-Dispatch of Richmond, Virginia has this article today: "Governor Kaine postpones Bell execution; Executions will be stayed till U.S. high court rules in lethal-injection case." Here are the highlights:

Gov. Timothy M. Kaine granted a temporary reprieve to condemned killer Edward Nathaniel Bell yesterday, pending a challenge before the U.S. Supreme Court to the way lethal injections are conducted.

Bell, 42, murdered Sgt. Ricky Lee Timbrook, a Winchester police officer in 1999. Timbrook was shot in the head while pursuing Bell on foot. Bell's new execution date will be July 24.

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From today's LA Times, this article reports the U.S. Supreme Court declined Monday to hear a case asking whether judges may take into account "acquitted conduct" when they determine the length of a prison sentence.  Here are the key points:

[Mark Hurn's] case began in 2005 when police in Madison searched Hurn's home and found drugs. They seized 450 grams of crack cocaine, about 50 grams of powder cocaine and $38,000 in cash. Hurn admitted to being a drug dealer, but at his trial he testified the crack belonged to other people who lived in the house.

A jury convicted him of possessing powder cocaine but acquitted him of the crack cocaine charges. Nonetheless, prosecutors said he should be punished for both the crack and powder cocaine offenses, and recommended a sentence of about 20 years in prison.

U.S. District Judge John Shabazz agreed with the prosecutors and said there was good reason to think Hurn was guilty of the crack cocaine charges. He imposed a sentence of nearly 18 years.

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Capital Defense Weekly has this interesting piece about a host of cert denials from Texas in the aftermath of Medellin.

7 Mexican-born inmates on Texas’ death row lost their bids for appeal Monday before the U.S. Supreme Court, following the court’s ruling last week that another Mexican-born inmate’s case couldn’t be reopened despite an order from President Bush.

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This term, the nation's high Court will consider the constitutionality of lethal injection, the means of execution currently used by most states and whether capital punishment is an appropriate sentence for rape of a child. Erin Sheley provides a good overview of the cases in The Weekly Standard.

This Supreme Court term marks a crossroads for death penalty jurisprudence. For the first time since 1890, the Court is considering the constitutionality of a particular means of execution--the lethal injection cocktail currently used by most states. And it is expected to rule, in a second case, on the constitutionality of capital punishment for a crime other than murder--the rape of a child. Both cases require the Court to construe one of the most nebulous clauses of the Constitution, the Eighth Amendment's ban on "cruel and unusual punishments," as well as the controversial 2005 precedent, Roper v. Simmons.

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SCOTUSblog released today its latest installment of "Petitions to Watch", a list of cases the SCOTUS insiders believe have a reasonable chance of going to the main stage when the Justices meet on April 11, 2008. The only criminal case on the table is Wallace v. United States. The issue in Wallace is whether, under the Due Process Clause, a defendant who pleads guilty retains the right to appeal a pre-trial competency determination.

The lower court decision is availabe here.  The petition for certiorari is here, brief in opposition is here, and petitioner’s reply is here, all courtesy of SCOTUSblog.

Here's a recap provided by SCOTUSblog on Indiana v. Edwards , a case in which the U.S. Supreme Court is being asked to decide whether states can require a defendant to have a higher mental capacity when he or she chooses to proceed pro se, versus the mental capacity required to stand trial with an attorney by his or her side.

With Justice Antonin Scalia energetically and repeatedly making the case for a simple rule, the Supreme Court on Wednesday showed a reluctance to add a new layer of complexity to criminal trials when a person with a significant mental defect wants to act as his own defense lawyer. The core issue in Indiana v. Edwards (07-208) is whether states are constitutionally free to require that accused individuals have a higher level of mental capacity to represent themselves than is required for them simply to be put on trial with a lawyer at their side. As the lawyer for the state pressed for a two-level standard, most of the Court reacted with skepticism, first, about how to define a workable two-level test, and, second, about how that would complicate actual trials. Underlying much of the oral argument was a deep perplexity over how to conduct fair trials for persons with sub-standard mental capacity.

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The U.S. Supreme Court has ended any hope Texas murderer Jose Ernesto Medellin had of further extending his delay of execution. This press release below by the Criminal Justice Legal Foundation provides the history (and more) of Medellin v. Texas:

Texas murderer Jose Ernesto Medellin, who has benefited from a legal drama over the rights of foreign nationals sentenced to death for murder in the United States, has lost his bid for additional delay of his execution. A United States Supreme Court decision announced today in Medellin v. Texas ends a legal dispute involving the World Court, Supreme Court, the state of Texas, and the President. This dispute has extended the litigation over Medellin’s sentence for several years after it normally would have ended.
The Criminal Justice Legal Foundation, a California-based group which filed a “friend of the court” brief on behalf of the family of one of the two teenaged girls raped and murdered by Medellin, had argued in support of today’s decision.

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