Monday, June 07, 2010

U.S. Supreme Court :

Jefferson v. Upton, 2010 WL 2025209 (5/24/10) (per curiam) - Another example of the S.Ct. reaching out to correct an error, this time for a good reason. The Court remanded a death penalty habeas denial by the 11th Circuit. Under pre-AEDPA law, the S. Ct. held the 11th erred by only considering the question whether the state court's factual finding was supported by the evidence, rather than also whether the state afforded the petitioner a full and fair hearing, in deciding whether the factual finding must be presumed correct. The petitioner claimed his counsel acted unreasonably when they failed to investigate the mental health damage caused by a car running over the petitioner's head when he was 2 years old. At the Georgia state court hearing, although an expert's written report said counsel should look into the head injury, counsel testified the expert had said orally that it may be a waste of time to do that. The petitioner filed an affidavit by the expert denying that conversation ever happened. The state d. ct. ex parte asked the D A to write an opinion, the d. ct. signed the opinion without notifying the defense or changing the opinion and the opinion noted testimony of a witness who never testified, calling into question whether the d. ct. even read what it signed. The S. Ct. noted that the state court finding that defense counsel was credible would not be presumptively correct if the hearing was not full and fair. The Court remanded the case to the 11th to decide whether the hearing was full and fair and suggested there might be a need for an evidentiary hearing to find out the particulars of the issuing of the state d.ct. decision. The S. Ct. insisted the petitioner had pursued the issue of the dubiousness of the factual finding in the lower courts. In dissent Justice Scalia, joined by Justice Thomas, contended the petitioner really just contended below and in his cert petition that he was not entitled to relief even if counsel's testimony was true. The majority was unfairly dissing the 11th. It's hard to say how much application this decision has with respect to interpreting current AEDPA law. But it's definitely good news.

U.S. v. Marcus, 2010 WL 2025203 (5/24/10) - Another S. Ct. decision, [here 7-1 (Justice Sotomayor recusing herself)] upholding the strength of the plain error barrier to relief, [reinforcing the importance of objecting at trial!!!]. The S. Ct. overturns the 2d Circuit's reversal of a conviction based on the notion that a retrial is necessary "whenever there is any possibility, no matter how unlikely, that the jury verdict" could have been based on an unconstitutional theory. Except when an error is "structural," which is rare, (e.g. when the defendant has no counsel or the tribunal is biased) the defendant must show a reasonable probability the outcome would have been different, under the 3rd prong, and it would be hard to establish the 4th prong ["seriously affecting the fairness, integrity or public reputation of judicial proceedings"] unless the error affected the verdict. In this case, the evidence concerned events that occurred both before and after the enactment of the statute the defendant was convicted of violating. There was no jury instruction requiring conviction only for post-enactment conduct. So there was a danger the jury convicted the defendant solely of pre-enactment conduct. But, even though the Court acknowledged this implicates a very important due process right, no reversal was warranted unless the error affected the verdict. The Court remanded for the 2d Circuit to address the matter under the correct standard. Justice Stevens dissented. Although he acknowledged the 2d Circuit applied the wrong standard, the conviction should be reversed under the correct standard, he concluded. He also opined that the Court's plain error doctrine "has trapped the appellate courts in an analytic maze that is more liable to frustrate than to facilitate decision-making."

Robertson v. U.S. ex rel. Watson, 2010 WL 2025205 (5/24/10) - By a 5-4 decision the Court dismissed the writ of certiorari as improvidently granted without explanation. An odd assortment of justices: C.J. Roberts, J. Scalia, Kennedy and Sotomayor, dissent. C.J. Roberts opines that a private person could not constitutionally initiate a criminal contempt proceeding in a Congressionally-created court in her own name, rather than in the name of the government. In this case occurring in D. C., the government entered a plea agreement with the defendant for assaults on the plaintiff. In the agreement, the government agreed not to prosecute the defendant for his assault on the plaintiff on June 26, 1999. The plaintiff initiated a criminal contempt action against the defendant for his June 26 assault because it violated a protective order. The court ended up sentencing the defendant to more time in jail. The dissenters felt, among other problems, that a private party pursuing a criminal contempt action might not have the constitutional duties, such as providing Brady material, that the government has. Justice Sotomayor stressed in a separate dissenting opinion that the dissenters were not commenting on the propriety of a private person pursuing civil contempt proceedings. The dissenters don't hint as to why the majority dismissed the writ. There might have been a problem with preserving the error below.

Cert grant:

Skinner v. Switzer, 2010 WL 545500 (5/24/10) - Whether a state prisoner seeking access to evidence for DNA testing may pursue his claim in a federal civil rights action or may only go through federal habeas corpus.

The 10th Circuit:

U.S. v. Quaintance, 2010 WL 1981028 (5/19/10) (unpub'd) - The 10th upholds Judge Herrera's determination that the defendants were not sincere about their religious beliefs with respect to marijuana, The 10th applies a clearly erroneous standard, despite the defendants' argument that the constitutional-fact doctrine required de novo review. The 10th reasoned that, even when that doctrine applies, credibility determinations are subject to clear error review. Under the clearly erroneous standard, there was sufficient support for the conclusion that the defendants just used religion as a cover. The 10th strongly suggests in a footnote that factual questions underlying Religous Freedom Restoration Act issues should not be decided by the trial court pre-trial.

U.S. v. Allums, 2010 WL 1983676 (5/19/10) (unpub'd) - The 10th discusses at some length the law regarding under what circumstances it's okay to call a probation or parole officer to identify the defendant. Here, the probation officer identified the bank robbery defendant's voice, after stating his profession and that he met the defendant regularly. The 10th thought it was a close question whether this was okay, but held any error harmless. Nevertheless, the case is a good place to start research if a similar question arises.

U.S. v. Waite, 2010 WL 1971917 (5/18/10) (unpub'd) -The government did not violate its plea agreement stipulation that no more than 5 kgs. of meth should be attributed to the defendant, when it wrote that the PSR's ascribing of 20 pounds of meth to the defendant was not unreasonable. The government also made note of its stipulation. The government didn't have to argue against the PSR's conclusion.

U.S. v. Toledo, 2010 WL 1971909 (5/18/10) (unpub'd) - Another troubling 4th Amendment decision. The 10th upholds a d. ct. ruling that the mother's consent to search her home was voluntary and attenuated any taint from her witnessing the illegal entry into her home to apprehend her son. District Judge Pollack from Eastern Pennsylvania dissented, stating he did not think the mother would feel free to refuse consent in those circumstances.

U.S. v. Stewart, 2010 WL 1948682 (5/17/10) (unpub'd) - The trial judge was not obliged to recuse himself, even though the judge noted he had seen the defendant on TV and because of that he didn't think the defendant could represent himself. The judge conducted the proceedings fairly and eventually actually granted the defendant's motion to represent himself.

Richard v. Bokor, 2010 WL 1983681 (5/19/10) (unpub'd) - The d. ct. did not abuse its discretion to grant an extension of time to file an appeal where the plaintiff timely filed the notice of appeal in state court.