by Kent Scheidegger · Apr 18, 2022 12:09 pm
Mark Twain once referred to a jury as “twelve men … who don’t know anything and can’t read.” He was exaggerating. Yet, this morning three Justices of the United States Supreme Court dissented from the Court’s refusal to take up a case of alleged juror bias for review, when the claim of bias was the juror’s statement of a demographic fact that is undeniably true. Continue reading . . .
by Kent Scheidegger · Mar 28, 2022 8:05 am
This morning, the U.S. Supreme Court released this orders list from last Friday’s conference. The Court took up the case of Cruz v. Arizona, No. 21-846. The case involves the familiar scenario of a murderer who could have made a particular objection at trial or on direct appeal but did not. When he tries to raise the objection in a collateral attack on the judgment, the state court tells him it is too late. As usual, the issue in this case has nothing whatever to do with whether the defendant committed the crime. It only relates to whether he should receive the punishment his crime deserves or whether justice should be tempered with mercy to let him off with less than he deserves.
From the state’s brief in opposition:
On the day he was killed, Officer Patrick Hardesty was questioning [John] Cruz as part of a hit-and-run investigation. App. 2a. During the questioning, Cruz ran from Officer Hardesty and Officer Hardesty gave chase on foot. Id. at 202–03, ¶¶ 2–4. At some point during the chase, Cruz shot the officer five times, emptying the five-shot revolver he was carrying. Two shots struck Officer Hardesty’s protective vest, two others struck him in the abdomen below the vest, and one entered his left eye, killing him almost instantly. Id. at 203, ¶¶ 5–7. Four of the shots were fired from no more than a foot away. Id. at 203, ¶ 6.
Cruz claims that the jury should have been told he would not be eligible for parole if they gave him life in prison. The Supreme Court precedent on that point was decided nine years before the crime. Cruz’s trial attorney did not request such an instruction, even though the trial judge offered one while denying a related motion, and his appellate attorney did not make that objection on direct appeal.
This is familiar turf for CJLF. We played a role in developing the rules that generally prohibit this kind of “heads I win, tails we take it over” gamesmanship. Continue reading . . .
by Bill Otis · Mar 25, 2022 12:13 am
As has been widely reported, Supreme Court nominee Judge Ketanji Brown Jackson was asked at her confirmation hearing if she “could provide a definition for the word ’woman.’”
“No, I can’t,” she eventually said. “Not in this context. I’m not a biologist.”
What to make of this?
by Kent Scheidegger · Mar 24, 2022 8:11 am
In 2004, Pablo Castro, working the night shift at a convenience store in Corpus Christi, was brutally stabbed to death by a robber seeking drug money. John Ramirez stabbed Mr. Castro 29 times. He and his cohorts netted $1.25 from Mr. Castro’s pockets as he lay bleeding to death in the store parking lot.
The U.S. Supreme Court today decided that the murderer can further delay his well deserved and long overdue execution by litigating a dubious claim regarding the state’s refusal to allow his pastor to touch him and audibly pray over his while he is being executed.
There is a sign of hope in that the decision depends a lot on the specifics of the procedure in this case. States may have the capacity to avoid stays of execution in the future. Continue reading . . .
by Kent Scheidegger · Mar 7, 2022 8:05 am
Over a year ago, I noted in this post that the U.S. Supreme Court had taken up the case of Wooden v. United States to resolve what amounts to separate “occasions” in the Armed Career Criminal Act. There is widespread agreement that repeat offenders should be dealt with more severely than one-timers, but the distinction between repeating and committing multiple crimes in one incident sometimes makes for difficult line-drawing. I noted in the previous post:
Breaking into 10 different units at a self-storage place is 10 counts of burglary under Georgia law. That seems reasonable, given 10 separate breakings and 10 separate entries to steal the possessions of 10 separate victims. But if they are done one after another is that 10 different occasions for the purpose of the recidivist statute? That seems like a stretch.
Not surprisingly, the Court’s decision today was unanimous in the judgment that counting 10 occasions for the purpose of the ACCA was an overreach. Continue reading . . .
by Kent Scheidegger · Mar 4, 2022 7:29 am
Opinion here. CJLF brief here. Prior post here. The prior post is an extended discussion of the evidence point in this case, while the brief is addressed primarily to the jury question. The issues are described in the prior post, so I will copy some of that material here.
In July of 2020, the U.S. Court of Appeals for the First Circuit in Boston reversed the death sentence and some of the convictions (though not on the capital offenses) of Dzhokhar Tsarnaev, the survivor of the pair of brothers who committed the horrible bombing of the Boston Marathon in 2013.
The Court of Appeals’ primary reason for reversal was its finding that during jury selection the trial court violated its half-century old rule in Patriarca v. United States, a precedent never mentioned by either party in the trial court or in the Court of Appeals’ pre-trial reviews of jury selection.
The court also said it would “address other issues (even if just briefly) because we know they are likely to resurface on remand.” One of those was a claim that the judge erred in not allowing hearsay evidence of an earlier, unrelated murder that the older brother was alleged to have been involved in. The six-Justice majority today disposed of both holdings without much difficulty. Continue reading . . .
by Kent Scheidegger · Mar 3, 2022 4:26 pm
For some time now, I have been concerned about a threat to the separation of powers in state governments. A governor or other executive officer cannot, of course, repeal a statute. But executive officers can sometimes decline to appeal a court decision holding a statute unconstitutional, which in practice has the same effect. In that way, the executive branch could override the decision of the legislature or, in states with the initiative, the people themselves.
The U.S. Supreme Court made this subterfuge more difficult today in Cameron v. EMW Women’s Surgical Center, No. 20-601. The statute at issue relates to abortion, a matter that CJLF takes no position on. What is important for our work is that Supreme Court allowed the Attorney General of the state to intervene to defend a statute after the state department head—no doubt on orders from the Governor—declined to seek further review of a decision holding a statute unconstitutional. Continue reading . . .
by Kent Scheidegger · Feb 28, 2022 10:42 am
Ruth Marcus has this column in the WaPo (behind a paywall) on the impact of Judge Ketanji Brown Jackson on the Supreme Court. Ms. Marcus has covered the high court for many years.
In addition, justices, male or female, aren’t fungible. Even if they can be placed into broad categories of liberal or conservative, they bring different passions and different life experiences to the bench. Jackson’s experience as a criminal defense lawyer, member of the U.S. Sentencing Commission and trial court judge gives her a perspective different from that of her colleagues. It’s reasonable to imagine Jackson emerging as an ally of Justice Sonia Sotomayor, especially on criminal law issues, where Breyer and Justice Elena Kagan have been slightly more moderate. And, as I wrote the other day, she also could emerge as another powerful voice in dissent, joining Sotomayor and Kagan in a forcefulness and passion that Breyer didn’t always display. Continue reading . . .
by Bill Otis · Feb 15, 2022 1:31 pm
It’s not news at this point that President Biden preemptively determined that he would exclude close to 95% of the population in looking for his first Supreme Court nominee, and restrict the search solely to black women. Excluding almost everyone in advance is a remarkably stupid way to go about making critical SCOTUS appointments, as three quarters of the electorate took little to time figure out. The excuse being given for the blanket exclusion of black men, white men, white women, Hispanics, Asian-Americans and anyone else you can think of is — ready now? — diversity.
That this is preposterous on its face is not the point I want to make, since that’s too obvious to be posting about. Instead, the point worth noting is that, according to one quite prominent leader in Washington, DC, it’s not really about diversity at all.
by Bill Otis · Jan 30, 2022 9:21 pm
President Biden has made it clear that he will restrict his pool of Supreme Court candidates to black women only, thus excluding almost 95% of the population from the get-go. How this yields the most qualified possible nominee has yet to be explained; perhaps commenters can give me a clue. I’m assuming here, of course, that Supreme Court qualifications are things like fidelity to the Constitution, legal scholarship, broad experience, fair mindedness and self discipline. What a candidate looks like is decidedly not a qualification for the Court, or probably much of anything beyond making your way in Hollywood.
But enough of what I think. What do the American people think? ABC News polled the question.
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