June 18, 2012
Supreme Court Rejects Confrontation Clause Challenge to Admission of Expert Testimony; Grants Cert on Conspiracy Issue
Today, the Supreme Court issued a pluarality opinion in Williams v. Illinois
(No. 10-8505), affirming the decision of the Supreme Court of Illinois that the admission of expert testimony about the results of DNA testing performed by non-testifying analysts did not violate the Confrontation Clause. The Court also granted certiorari in Smith v. United States
(No. 11-8976) to decide whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split.
Below are detailed summaries of Williams
, from Paul Rashkind's Supreme Court Review/Preview/Overview
, Justice Alito announced the judgment of the Court and delivered an opinion, in which the Chief Justice, Justice Kennedy, and Justice Breyer joined. Justice Breyer filed his own concurring opinion, while Justice Thomas filed an opinion in which he concurred in the judgment only. Justice Kagan filed a dissenting opinion, in which Justices Scalia, Ginsburg, and Sotomayor joined.
At Williams’ bench trial for rape, a forensic specialist at the Illinois State Police lab testified that she matched a DNA profile produced by an outside laboratory, Cellmark, to a profile the state lab produced using a sample of Williams’ blood. She testified that Cellmark was an accredited laboratory and that business records showed that vaginal swabs taken from the victim were sent to Cellmark and returned. She offered no other statement for the purpose of identifying the sample used for Cellmark’s profile or establishing how Cellmark handled or tested the sample. Nor did she vouch for the accuracy of Cellmark’s profile. The defense moved to exclude the testimony on Confrontation Clause grounds, insofar as it implicated events at Cellmark, but the prosecution said that Williams’ confrontation rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the match. The prosecutor argued that Illinois Rule of Evidence 703 permitted an expert to disclose facts on which the expert’s opinion is based even if the expert is not competent to testify to those underlying facts, and that any deficiency went to the weight of the evidence, not its admissibility. The trial court admitted the evidence and found petitioner guilty. Both the Illinois Court of Appeals and the State Supreme Court affirmed.
, six defendants were charged, tried and convicted on multiple charges, including a federal drug conspiracy, RICO conspiracy, continuing criminal enterprise, murder and related crimes. The crimes were alleged to have been committed during the 1980’s and 1990’s. Two defendants, Calvin Smith and John Raynor, defended, in part, on the dual grounds that (1) the crimes occurred outside the statute of limitations, and (2) they had withdrawn from the drug conspiracy before any time within the statute of limitations. After deliberating for 12 days, jurors asked: “If we find that the narcotics or RICO conspiracies continued after the relevant date under the statute of limitations, but that a particular defendant left the conspiracy before the relevant date under the statute of limitations, must we find the defendant not guilty?” Over the defendants’ objections, the district court instructed the jury that “[o]nce the government has proven that a defendant was a member of the conspiracy, the burden is on the defendant to prove withdrawal from a conspiracy by a preponderance of evidence.” The defendants claimed on appeal that the district court instruction was erroneous because it placed the burden of persuasion with them, instead of with the government. The court of appeals affirmed, although noting a split in the circuits.
June 12, 2012
Supreme Court Takes Up Another Double Jeopardy Case
Several weeks after rejecting a Double Jeopardy challenge to a retrial, the Court will once again take up the issue in Evans v. Michigan
(No. 11-1327). In Evans
the Court will decide whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact.
In addition to granting certiorari in Evans,
the Court also issued a summary opinion
in Parker v. Matthews
(No. 11-845), the Court held that the decision of Sixth Circuit, which set aside two twenty-nine-year-old murder convictions, is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”
June 04, 2012
Supreme Court to Rule on Detention Incident to Arrest Exception to Fourth Amendment
The Supreme Court today granted certiorari in Bailey v. United States
(No. 11-770) to determine whether, pursuant to Michigan v. Summers
, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
On July 28, 2005, the Suffolk County police obtained a search warrant for the "basement apartment of 103 Lake Drive" in Wyandanch, New York, on the basis of information from a confidential informant. The search warrant indicated that the apartment was "believed to be occupied by an individual known as 'Polo', a heavy set black male with short hair," and identified a "chrome .380 handgun" as the principal target of the search.
Before they entered the apartment, the police saw two men, later identified as Chunon Bailey and Bryant Middleton, exiting the gate at the top of the stairs that led down to the basement of 103 Lake Drive. Both Bailey and Middleton matched the CI's description of "Polo." The police watched as Bailey and Middleton got into a car in the driveway and drove down the block. They pulled the car over after it had driven about a mile away. Meanwhile, another team of police officers began the search of the apartment.
After pulling the car over, the police patted down Bailey and Middleton and asked for identification. Bailey identified himself and showed a driver's licenses bearing a Bay Shore, New York address, but also said that he was coming from his house at "103 Lake Drive" in Wyandanch, New York. Middleton also told the police that Bailey lived at 103 Lake Drive. At that point, the officers placed Bailey and Middleton in handcuffs and — in response to Bailey's inquiry as to why they were being "arrested" — informed both men that they were being detained, but not arrested, incident to the execution of a search warrant in the basement apartment of 103 Lake Drive. To that, Bailey responded, "I don't live there. Anything you find there ain't mine, and I'm not cooperating with your investigation."
After driving Bailey and Middleton back to 103 Lake Drive, the police told them that the search team had found a gun and drugs in plain view in the apartment. The police arrested Bailey and Middleton and seized Bailey's house and car keys. Later that evening, the police discovered that one of the keys on Bailey's key ring opened the door of the basement apartment. In total, about ten minutes elapsed between Bailey's stop and his formal arrest.
The evidence obtained during the search of Bailey's home and his statements to the police provided the basis for the government's indictment. Bailey moved to suppress the physical evidence and his statements, on the theory that he was unlawfully detained and searched in violation of the Fourth Amendment.
May 31, 2012
Supreme Court Rejects Double Jeopardy Challenge and Rejects Sufficiency of Evidence Claim
On May 29 the Supreme Court issued a per curiam opinion in Coleman v. Johnson
(No. 11-1053), and on May 24 the Court handed down a decision rejecting a Double Jeoparday claim after retrial in Blueford v. Arkansas
(No. 10-1320). In Johnson,
the Court held that, taking into account the deference due to the state court's decision under AEDPA, the evidence at Johnson's trial was sufficient to convict him as an accomplice and co-conspirator to murder. In Blueford
, the Court held that the Double Jeopardy Clause does not bar retrial when the jury did not formally acquit the defendant and the trial court simply adhered to state law in declining to accept a partial verdict of acquittal and declaring a mistrial. For an analysis of Blueford
see this SCOTUSblog post
May 09, 2012
Further Analysis of TRAC Report Underscores its Flawed Assumptions
On March 5, 2012, the Transactional Records Access Clearinghouse (TRAC) announced “Wide Variations Seen in Federal Sentencing,” and stated in a press release that it had discovered “extensive and hard-to-explain variations in the sentencing practices of district court judges.” This updated report by Sentencing Resource Counsel
reveals that TRAC’s assumptions regarding cases and caseloads among judges in the same district are flawed. Further, the report discusses how TRAC uses poor quality data on sentences imposed, an unreliable method of identifying case type, and incorrect methods of reporting sentence lengths. A spot check comparing TRAC data against actual cases reveals serious errors, inconsistencies, and impossibilities in TRAC’s reported data.
April 30, 2012
Supreme Court to Rule on Retroactivity of Padilla v. Kentucky
Earlier today the Supreme Court granted certiorari in Chaidez v. United States
(11-820). In Chaidez
, the issue presented is whether the Court’s decision in Padilla v. Kentucky,
holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement. For further details on the case, see this SCOTUSblog post
April 25, 2012
Supreme Court Holds That Appellate Court Cannot Undo State's Waiver of Its AEDPA Time Limitation Defense
Yesterday, the Supreme Court issued an opinion in Wood v. Milyard
(10-9995), holding that where the state had deliberately waived its claim that Wood's habeas petition was untimely under AEDPA, the Court of Appeals erred in raising and deciding the timeliness bar sua sponte
. For an analysis of the case, see this SCOTUSblog post
April 18, 2012
Sentencing Commission Promulgates 2012 Amendments Guidelines
On Friday, April 13th, the Sentencing Commission voted to promulgate amendments to the sentencing guidelines on a wide array of subjects. These amendments will be submitted to Congress by May 1, 2012. Barring congressional action, they will take effect November 1, 2012. View this summary of the amendments for more information. On the Commission's website you can also view the text of the proposed amendments.
April 03, 2012
Supreme Court Holds Routine Jail Strip Searches Are Constitutional; Grants Cert to Decide Aggravated Felony Issue in Immigration Case
Yesterday, the Court acted on two cases of interest to criminal defense practitioners.
Dividing 5-4, the Court held in Florence v. Board of Chosen Freeholders of the County of Burlington (No. 10-945) that any person arrested who is being admitted to the general jail population may be subjected to a strip search involving only visual inspection, even absent reasonable suspicion that the prisoner is dangerous or likely to be carrying a concealed weapon or drugs. For an analysis of the opinion see this SCOTUSblog post.
In Moncrieffe v. Holder (No. 11-702) the question presented is whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony.
March 29, 2012
Supreme Court Addresses Standard for Substitution of Counsel in Capital Cases
On Monday, the Supreme Court announced its decision in Martel v. Clair (No. 10-1265), in which it addressed the standard for replacement of appointed counsel under §3599 of Title 18. That statute entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings. While the statute provides that appointed counsel may be replaced upon motion of the defendant, it does not specify the standard that district courts should use in evaluating those motions. In an unanimous opinion delivered by Justice Kagan, the Court held "that courts should employ the same 'interests of justice' standard that they apply in non-capital cases under a related statute, §3006A of Title 18 . . . [and] that the District Court here did not abuse its discretion in denying respondent Kenneth Clair’s motion to change counsel."
March 28, 2012
Supreme Court Upholds District Court’s Discretion to Determine Whether a Federal Sentence Should Run Consecutively to an Anticipated State Sentence
Today, the Supreme Court issued its opinion in Setser v. United States (No. 10-7387), holding that the District Court has discretion to order that a defendant’s sentence run consecutively to his anticipated, but not yet imposed, state sentence. For more on the opinion, see this SCOTUSblog post and this Sentencing Law and Policy post.
March 27, 2012
Supreme Court to Address Use of Narcotics Dogs to Establish Probable Cause
Yesterday, the Supreme Court granted certiorari in Florida v. Harris
(No. 11-817). The Court has been asked to determine whether the Florida Supreme Court has decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of the U.S. Supreme Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.
March 21, 2012
Supreme Court Issues Opinions on Ineffective Assistance of Counsel at Plea Bargain Stage
This week, the Supreme Court has issued three opinions and two grants of certiorari in cases of interest to criminal defense practitioners.
On Monday, the Court granted certiorari in two capital cases to address competency in federal habeas proceedings: Ryan v. Gonzales (No. 10-930) and Tibbals v. Carter (No. 11-218). In Ryan v. Gonzales the question presented is whether 18 U.S.C. § 3599(a)(2), which provides that an indigent capital state inmate pursuing federal habeas relief “shall be entitled to the appointment of one or more attorneys,” entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel. In Tibbals v. Carter, the Court will decide whether capital prisoners possess a “right to competence” in federal habeas proceedings under Rees v. Peyton; and 2) whether a federal district court can order an indefinite stay of a federal habeas proceeding under Rees. For more on these cases, see this SCOTUSblog post.
Later in the week, the Court issued a series of opinions on the right to effective assistance of counsel. On Tuesday, the Court ruled in Martinez v. Ryan (No. 10-1001) that where, under state law, ineffective assistance of trial counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. For more on Martinez v. Ryan see this SCOTUSblog post.
In Missouri v. Frye (No. 10-444), issued on Wednesday, the Court held that the right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. More specifically, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. . . .When defense counsel [here] allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.” In its opinion in Lafler v. Cooper (No. 10-209), also issued on Wednesday, the Court again addressed the right to effective assistance at the plea bargaining stage. The Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.
March 09, 2012
TRAC Analysis of Variations in Sentencing Misses the Mark
On March 5, 2012, the Transactional Records Access Clearinghouse (TRAC) announced “Wide Variations Seen in Federal Sentencing,” and stated in a press release that it had discovered “extensive and hard-to-explain variations in the sentencing practices of district court judges.” Sentencing Resource Counsel reviewed TRAC’s report, and concluded that its analyses, and accompanying media coverage, demonstrate the danger of a little knowledge about a complex subject. For example, TRAC treats all drug cases as “similar,” regardless of the type or quantity of drug, and regardless of whether defendants were first offenders or career offenders. Read this Sentencing Resource Counsel Fact Sheet
February 22, 2012
Supreme Court Issues Opinions on Miranda, Brady and INA
On Monday, the Supreme Court issued several opinions of interest to criminal defense practitioners. In Howes v. Fields (No. 10-680), the Court addressed what constitutes "custodial interrogation" under Miranda when a prisoner is questioned about a crime that occurred outside the prison walls. The Court reversed the decision of the Sixth Circuit affirming the district court's grant of habeas relief. In an opinion by Justice Alito, the Court stated, "In this case, it is abundantly clear that our precedents do not clearly establish the categorical rule on which the Court of Appeals relied, i.e., that the questioning of a prisoner is always custodial when the prisoner is removed from the general prison population and questioned about events that occurred outside the prison. On the contrary, we have repeatedly declined to adopt any categorical rule with respect to whether the questioning of a prison inmate is custodial."
In Kawashima v. Holder (No. 10-577) the Court affirmed the decision of the Ninth Circuit. It held that violations of 26 U.S.C. §§ 7206(1) and (2), which preclude making (or assisting in the making of) a false tax return, are crimes "involv[ing] fraud or deceit" under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies for purposes of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., when the loss to the government exceeds $10,000.
The Court also issued a per curiam opinion in an unargued case, Wetzel v. Lambert (No. 11-38). James Lambert was convicted and sentenced to death in 1984 for murders committed in the course of a robbery. In a habeas petition in the Eastern District of Pennsylvania, Lambert asserted that the Commonwealth had failed to disclose a police activity sheet in violation of Brady v. Maryland. Lambert argued that the activity sheet was exculpatory because it suggested that one of his accomplices had identified a third person as a "co-defendant." The district court denied the petition, but the Third Circuit reversed, holding that the faiure to disclose the activity sheet was a Brady violation. The Supreme Court vacated the Third Circuit's decision and remanded the case for further proceedings, ruling that the Third Circuit had failed to address the state court's determination that the notations on the activity sheet were entirely ambiguous.
February 07, 2012
New Department of Justice Policy Extends Fast-Track for Illegal Re-Entry to All Districts
In a memorandum dated January 31, 2012, Deputy Attorney General James M. Cole advised all U.S. Attorneys of a new DOJ policy on fast-track/early disposition programs in illegal re-entry cases. Recognizing that the existence of these programs in some, but not all districts, leads to sentencing disparity, the memo states that "the Department is revising its fast-track policy and establishing uniform, baseline eligibility requirements for any defendant who qualifies for fast-track treatment, regardless of where that defendant is prosecuted." The memo mandates that districts implement this new policy "no later than by March 1, 2012." This new policy apparently does not extend to offenses other than illegal re-entry.
For more on the impact of this new policy see this 1/31/12 Sentencing Law and Policy Blog post and this 2/1/12 Sentencing Law and Policy Blog post, as well as this Life Sentence Blog post.
January 23, 2012
Supreme Court Limits Warrantless Use of GPS. Also Addresses Applicability of SORNA to Pre-Act Offenders
The Supreme Court today issued a groundbreaking opinion in United States v. Jones (No. 10-1259), holding that attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor joined. Justice Sotomayor also filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Justices Ginsburg, Breyer, and Kagan joined. As a result of the various concurrences, the Court’s ruling is likely to leave open many questions regarding the expectation of privacy one may reasonably have in future cases involving the use of similar technology. For an analysis of the opinion, see this SCOTUSblog post.
In another opinion issued today, Reynolds v. United States (No.10-6549), the Court held that the Sex Offender Registration and Notification Act (SORNA) does not require pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions apply to them. Because the Third Circuit below did not address the validity of the Attorney General’s Interim Rule of February 28, 2007, in which the Attorney General specified that SORNA’s registration requirements apply to pre-Act offenders, the Court remanded the case for further proceedings.
January 19, 2012
Supreme Court Holds Habeas Petitioner Showed Cause to Excuse Procedural Default
Yesterday, the Supreme Court issued an opinion in Maples v. Thomas (No. 10-63), reversing the decision of the Eleventh Circuit and holding that death row inmate Cory Maples had shown the requisite “cause” to excuse his procedural default, which occurred when his lawyer missed a filing deadline in state court. As set forth by Justice Ginsburg, “The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case, there is 'cause' to excuse the default. Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state post conviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples’ death-cell door. Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.”
Earlier this week the Court granted certiorari in another habeas case, Cavazos v. Williams (No. 11-465), in which it will decide whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.
January 11, 2012
Supreme Court Issues Opinion Addressing Brady Claim, Eyewitness Identification, and AEDPA Certificate of Appealability; Also Grants Cert on Fourth Amendment Challenge to Use of Drug Sniffing Dogs at Front Door of House
Today, the Supreme Court issued an opinion in Perry v. New Hampshire (No. 8974) affirming the decision of the New Hampshire Supreme Court and holding that the Due Process Clause does not require an inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement.
In Smith v. Cain (No. 10-8145), issued yesterday, the Court held that the substantial Brady claims in the case required a reversal of the petitioner’s Louisiana state court conviction. For analysis of the opinion see this SCOTUSblog post.
Yesterday, the Court also issued an opinion in Gonzalez v. Thaler (No. 10-895), holding that under AEDPA, 28 U.S.C. Section 2253(c)(3) is a mandatory but nonjurisdictional rule. The failure of a certificate of appealability to "indicate" a constitutional issue does not deprive a court of appeals of jurisdiction to adjudicate the appeal. The Court further held, however, that where a state prisoner does not seek review in a state's highest court, the judgment becomes "final" for purposes of Section 2244(d)(1)(A) upon "expiration of the time for seeking such review." The petitioner's appeal in this case was therefore untimely.
On January 6, the Court granted certiorari in Florida v. Jardines (No. 11-564) to address the following issues: (1) Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause; and (2) whether the officers’ conduct during the investigation of the grow house, including remaining outside the house awaiting a search warrant is, itself, a Fourth Amendment search. For more details on the case see this SCOTUSblog post.