February 23, 2017
Supreme Court Condemns the Use of Race-Based Testimony in Sentencing
Yesterday, the Supreme Court issued an important opinion in Buck v. Davis
(No. 15-8049). The case involved a Texas jury deciding whether to sentence the Petitioner to death, with a key question being whether he was likely to be violent in the future. The Petitioner's attorney presented the testimony of a psychologist, who stated that Petitioner's race - he is black - made him statistically more likely to commit violent acts. The jury concluded that Petitioner should be executed for his crimes. Six justices of the Court, with the Chief Justice writing for the Court, described the prospect that Petitioner "may have been sentenced to death in part because of his race" as a "disturbing departure from a basic premise of our criminal justice system."
The factual and procedural history are developed in the opinion. The three main issues the Court addressed were whether the Fifth Circuit properly denied a COA, whether the Petitioner demonstrated ineffective assistance of counsel, and whether the district court's denial of a Rule 60(b) motion was an abuse of discretion.
As to the COA, the Fifth Circuit reached the conclusion whether jurists of reason could disagree with the district court's resolution of the constitutional claim by essentially deciding the case on its merits. Specifically, the Fifth Circuit stated that because Petitioner "has not shown extraordinary circumstances that would permit relief under Federal Rule of Civil Procedure 60(b), we deny the application for a COA." The Supreme Court disagreed with the Fifth Circuit's analysis, holding that the question for the Fifth Circuit was not whether the Petitioner had shown extraordinary circumstances - which was a determination the panel should not have reached; rather, the Fifth Circuit should have limited its examination at the COA stage to only an inquiry whether the district court's decision was debatable.
As to the question of whether Petitioner's counsel was ineffective for presenting the testimony of the psychologist who stated that Petitioner's race made him statistically more likely to commit violent acts, the Supreme Court agreed with the district court's determination that counsel's performance fell outside the bounds of competent representation. The Supreme Court, however, disagreed with the district court's conclusion that the introduction of any mention of race during the penalty phase was de minimis. Although there were only two references of race during the psychologist's testimony, the Supreme Court recognized that some "toxins can be deadly in small doses." As such, the Court held that the psychologist's testimony on Petitioner's sentence could not be dismissed as de minimis - thus, Petitioner demonstrated that his counsel was ineffective under Strickland
Finally, as to the district court's denial of the Rule 60(b) motion, the Supreme Court held that because Petitioner may have been sentenced to death in part because of his race and due to his own counsel injecting the issue at sentencing, this is the type of extraordinary circumstance that would permit relief under Rule 60(b).
For an analysis of the opinion, see this SCOTUSblog post
Christina Swarns, Director of Litigation, NAACP Legal Defense Fund, argued this case in the Supreme Court. Ms. Swarns is scheduled to be the keynote speaker at three upcoming conference/seminars sponsored by the Defender Service's Office Training Division: (1) Race in the Federal Criminal Court
in Baltimore, April 6-8, 2017; and (2) Winning Strategies Seminar
and (3) Fundamentals Seminar
, both in Houston, June 8-10, 2017. Please register for these conferences/seminars to hear Ms. Swarns discuss the background of this case and the importance of effective advocacy and the tools necessary to effectively and strategically represent clients such as the Petitioner in Buck v. Davis
February 21, 2017
Cert Granted in One Case of Interest to Criminal Defense Practitioners and Cert Denied in Another Case of Interest Over Dissent
On Tuesday, February 21, 2017, the Supreme Court granted cert in one case relevant to criminal defense practitioners. The Court also denied cert in lethal-injection cases from Alabama and Arkansas, over a dissent by Justice Sotomayor, joined by Justice Breyer.
(1) Cert grant: Class v. United States
Issue: Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.
(2) Cert denial, over dissent: Arthur v. Dunn, Commissioner, Alabama Department of Corrections, et al.
In Glossip v. Gross, 576 U.S. ___ (2015), the Court held that in order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Justice Sotomayor characterized Glossip as a “macabre challenge.”
Nevertheless, Justice Sotomayor concluded that the Petitioner, a prisoner on Alabama’s death row, met the challenge. Specifically, Petitioner amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he proposed an alternative – death by firing squad. The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Petitioner’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip. Because Glossip permits states to immunize their methods of execution – no matter how cruel or how unusual – from judicial review and thus permits state law to subvert the Federal Constitution, Justice Sotomayor would grant cert and reverse.
February 10, 2017
Trump Issues Executive Orders Regarding Crime
On February 9, 2017, the White House issued three executive orders targeting crime, following the swearing in of Jeff Sessions as the new Attorney General. Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking
This order calls on the administration to strengthen federal law to reduce transnational criminal organizations, including those that smuggle drugs, people, and weapons and engage in financial and cyber crime. It directs that federal law enforcement “give high priority and devote sufficient resources” to going after such organizations, including extraditing members to face prosecution in the United States, where possible, and deporting foreign nationals who are members of such groups. The order calls on the heads of several agencies to review existing federal laws that could be used to further combat international crime groups. It additionally directs federal agencies to maximize information sharing among themselves and with foreign governments. Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers
: This order focuses on preventing crime against law enforcement, including a push to define new federal crimes and potentially establish new mandatory minimum sentences. The order directs the attorney general to review existing federal laws “to determine whether those laws are adequate to address the protection and safety” of law enforcement officers at all levels. Following that review, the Attorney General will make recommendations to the President for potential new legislation, which would include “defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence against” officers. The Attorney General is also directed to evaluate all Justice Department grant funding programs “to determine the extent to which its grant funding supports and protects” officers and recommend any changes. A Task Force on Crime Reduction and Public Safety
The third order directs the Attorney General to establish a task force aimed at developing strategies “to reduce crime, including, in particular, illegal immigration, drug trafficking, and violent crime.” The Task Force on Crime Reduction and Public Safety — whose members will be chosen by the Attorney General — will propose new legislation and evaluate existing laws and data collection on crime.
January 17, 2017
Cert Granted in Four Cases of Interest to Criminal Defense Practitioners
On Friday, January 13, 2017, the Supreme Court granted cert in four cases relevant to criminal defense practitioners.
(1) Maslenjak v. United States
Issue: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding under 18 U.S.C. § 1425(a) based on an immaterial false statement.
(2) Weaver v. Massachusetts
Issue: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.
(3) Davila v. Davis
Issue: Whether the rule established in Martinez v. Ryan
and Trevino v. Thaler
, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.
(4) McWilliams v. Dunn
Issue: Whether, when the Court held in Ake v. Oklahoma
that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.
December 16, 2016
Supreme Court to Review Cases Raising Brady Violations, and IAC Claim Stemming from Plea to a Deportable Offense
Yesterday, the Supreme Court granted cert in three cases of interest to criminal defense practitioners.
Two of the cases, Turner v. United States
(No. 15-1503) and Overton v. United States
(No. 15-1504) are consolidated cases raising whether the petitioners' D.C. convictions should be set aside under Brady v. Maryland
, 373 U.S. 83 (1963).
In the third, Lee v. United States
(No. 16-327), the Court will decide the following issue:
To establish prejudice under Strickland v. Washington
, 466 U.S. 668 (1984), a defendant
who has pleaded guilty based on deficient advice from his attorney must show "a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill v. Lockhart
, 474 U.S. 52, 59 (1985). In the context of a noncitizen
defendant with longtime legal resident status and extended familial and business ties to the
United States, the question that has deeply divided the circuits is whether it is always irrational
for a defendant to reject a plea offer notwithstanding strong evidence of guilt when the plea
would result in mandatory and permanent deportation.
For more on these cases see this SCOTUSblog post
December 13, 2016
Sentencing Commission Proposes 2017 Amendments to the Guidelines
On December 9 the Sentencing Commission voted to publish proposed amendments
to the sentencing guidelines. A summary of the amendments is available in this Sentencing Commission press release.
December 13, 2016
Unanimous Supreme Court Holds That Defrauding a Bank Depositor Can Constitute Bank Fraud
Yesterday, the Supreme Court issued its opinion in Shaw v. United States
, (No. 15-5991), holding that Mr. Shaw could properly be convicted of knowingly executing a scheme to defraud a financial institution under 18 U.S. C. §1344(1) even if he intended to defraud only a bank depositor, not the bank.
The Court also addressed a jury instruction claim - whether the district court improperly instructed the jury that a scheme to defraud a bank must be one to deceive the bank or
deprive it of something of value, instead of one to deceive and
deprive. The case was remanded to the 9th Circuit Court of Appeals to determine whether that question was properly presented and if so, whether the instruction given was lawful, and, if not, whether any error was harmless.
For an analysis of the opinion see this SCOTUSblog post
December 09, 2016
Supreme Court Grants Cert in Drug Forfeiture Case
In Honeycutt v. United States
(No. 16-142), granted earlier today, the Court will address whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. For more on the case see this SCOTUSblog post
December 06, 2016
Supreme Court Rules on Personal Benefit Test in Insider Trading Case
Today, the Supreme Court unanimously held in Salman v. United States
(No. 15-628) that the 9th Circuit properly applied the court's decision in Dirks v. Securities and Exchange Commission
to affirm Salman's conviction because, under Dirks
, the jury could infer that Salman's tipper personally benefited from making a gift of confidential information to a trading relative. For an analysis of the opinion see this SCOTUSblog post
December 01, 2016
Changes to Rule 41 Take Effect, Expanding Government Hacking Authority
Amended Rule 41 of the Federal Rules of Criminal Procedure
took effect today. The changes authorize magistrate judges to issue warrants to remotely access and search "electronic storage media" outside of their judicial districts, where "technological means" are obscuring the location of the media. For more on the impacts of the new rule, see this Electronic Frontier Foundation Press Release
November 30, 2016
Unanimous Supreme Court Rejects Double Jeopardy Claim
Yesterday, the Supreme Court unanimously decided Bravo-Fernandez v. United States
(No. 15-537) (J. Thomas, concurring), holding that the Double Jeopardy Clause does not bar the government from retrying defendants after a "jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency." For more on the opinion see this SCOTUSblog post
November 03, 2016
New Amendments to the Sentencing Guidelines Are in Effect
The new amendments to the sentencing guidelines took effect on November 1, 2016. Among the most significant amendments are major changes to the illegal reentry guideline, as well as changes to the distribution enhancements in child pornography cases. For more on all of the amendments see the National Sentencing Resource Counsel Project's Summary of 2016 Amendments to the Sentencing Guidelines
. Review the actual text in the Reader-Friendly Version of the Amendments
November 02, 2016
Supreme Court Grants Cert to Address Sentencing Variances in Counts Accompanying 924(c) Convictions; What Constitutes an "Aggravated Felony" of "Sexual Abuse of a Minor" in INA Removal Cases
On Friday, October 28, 2016 the Supreme Court granted cert in two case of interest to federal criminal defense practitioners: Dean v. United States
Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction. Esquivel-Quintana v. Lynch
Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.
For more on these cases and all criminal cases granted review and decided during the October 2015-16 Terms see Paul M. Rashkind's United States Supreme Court Review-Preview-Overview
September 29, 2016
Supreme Court to Determine Whether the Residual Clause in 18 U.S.C. § Is Void for Vagueness
Today, the Supreme Court granted cert in Lynch v. Dimaya
(No. 15-1498), to decide whether the residual clause of 18 U.S.C. § 16 (b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague. Subsection (b) defines “crime of violence” to include “any . . . offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The Sixth, Seventh, Ninth and Tenth Circuits have held that 16(b) is unconstitutional under Johnson
. The Fifth has held otherwise.
The Court also granted cert in Nelson v. Colorado
(No. 15-1256) on the following issue: Whether Colorado’s requirement that defendants must prove their innocence by clear and convincing evidence to get their money back, after reversal of conviction of a crime entailing various monetary penalties, is consistent with due process.
July 28, 2016
Sentencing Commission Issues Report to Congress on Career Offender Enhancements
Today the Sentencing Commission issued its Report to the Congress: Career Offender Sentencing Enhancements
, recommending that the career offender provisions focus on violent offenders, as opposed to drug trafficking only offenders. The report also recommended that Congress enact a uniform definition of "crime of violence" for all federal statutes consistent with the new sentencing guidelines definitions. For more on the report see the Commission's press release
June 28, 2016
Supreme Court Grants Cert in Johnson Guidelines Case; Issues Opinion Holding Reckless Use of Force Constitutes a Misdemeanor Crime of Domestic Violence Under 18 U.S.C. § 922(g)(9); Vacates McDonnell Public Corruption Convictions
Yesterday, the Supreme Court Granted Cert in Beckles v. United States
(No. 15-8544), to decide the following issues:
(1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”);
(2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and
(3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.
CJA panel attorneys are advised to reach out to the federal defender in their district or National Sentencing Resource Counsel if in doubt on how to proceed in a pending case in light of the cert grant.
The Court also issued a decision in Voisine v. United States
(No. 14-10154), holding in a 6-2 opinion that misdemeanor assault convictions for reckless conduct are misdemeanor crimes of domestic violence that trigger the ban on possession of firearms under 18 U.S.C. § 922(g)(9). For more on the opinion see these posts on the Sentencing Law and Policy Blog
Additionally, the Court scaled back what is considered an "official act" for the purposes of a federal bribery conviction in the unanimously decided McDonnell v. United States
(No. 15-474). For more on the opinion see this SCOTUSblog post
June 24, 2016
Implications of Yesterday's Immigration Ruling by Supreme Court
In addition to the decisions in Mathis
(discussed in the post below), the Supreme Court's action in United States v. Texas
also has implications for criminal defense practitioners. The Court issued a one-sentence, evenly split (4-4) ruling that essentially leaves intact a nationwide injunction on the Deferred Action for Parents of Americans (DAPA) and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA+) programs, which promised temporary relief from the fear of deportation for four million immigrants and families. As a result of the Supreme Court's decision, DAPA and DACA+ will continue to be stalled. Nonetheless, DACA I, the original administrative relief program for certain individuals who arrived in the United States as minors, continues to exist. The National Immigration Justice Center (NIJC) encourages defense attorneys representing noncitizens who may qualify for DACA I to continue to assess for potential relief in those cases, as well as other forms of immigration relief for which individuals may qualify. Criminal Defense attorneys should contact the NIJC's Defenders Initiative
via email at firstname.lastname@example.org
or via phone at (312) 660-1610 for any questions relating to the Supreme Court's decision or other questions on the immigration consequences for noncitizen defendants facing criminal charges.
June 23, 2016
Defense Win in Supreme Court ACCA Case; Court Also Rules on Fourth Amendment Challenge to DUI Implied Consent Laws
In Mathis v. United States
(No. 15-6092), decided today, the Supreme Court rejected the use of the modified categorical approach to determine whether a past conviction triggers ACCA's 15-year mandatory minimum sentence when the defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. Instead, the categorical approach must be used if it is clear under authoritative state law that the statute lists alternative means, and not alternative elements.
The Court also issued an opinion in Birchfield v. North Dakota
(No. 14-1468), holding that the Fourth Amendment permits the government to require breath alcohol tests in DUI arrests, but it does not permit warrantless blood tests.
At issue in Mathis
was an Iowa conviction for burglary, which covers more conduct than generic burglary by permitting a conviction for unlawful entry into a variety of places: "any building, structure, [or] land, water, or air vehicle." In the majority opinion (written by Justice Kagan and in which Chief Justice Roberts and Justices Kennedy, Thomas and Sotomayor joined), the Court strongly reaffirmed the use of the categorical approach:
"Our precedents make this a straightforward case. For more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements. Courts must ask whether the crime of conviction is the same as, or narrower than, the relevant generic offense. They may not ask whether the defendant's conduct - his particular means of committing the crime - falls within the generic definition. And that rule does not change when a statute happens to list possible alternative means of commission: Whether or not made explicit, they remain what they ever were - just the facts, which ACCA (so we have held, over and over) does not care about."
June 21, 2016
Supreme Court Further Limits Exclusionary Rule, Permits Hobbs Act Prosecution for Robbery of Drug Dealer without Proof of Interstate Effects; Grants Cert on Foreign Nationals' Right to Bond Hearings in Immigration Detention
Yesterday, the Supreme Court issued opinions in Utah v. Strieff
(No. 14-1373) and Taylor v. United States
The Court dealt another blow to the exclusionary rule in Strieff
, holding in a 5-3 opinion delivered by Justice Thomas that the prosecution could use evidence seized incident to a lawful arrest on an outstanding warrant even though the warrant was discovered during an investigatory stop later found unlawful. According to the majority opinion (joined by Chief Justice Roberts and Justices Kennedy, Breyer and Alito), "the evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest." For an opinion analysis see this SCOTUSblog post
, the Court held in a 7-1 opinion (Justice Thomas dissenting) that the Government need not separately prove the "affects commerce element" in a Hobbs Act prosecution for robbery or attempted robbery of a drug dealer's stash. The Court reasoned that "a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction." For more on the opinion see this SCOTUSblog
The Court also granted cert in Jennings v. Rodriguez
(No. 15-1204), an immigration case raising the following questions:
1) Whether aliens seeking admission to the United States who are subject to mandatory
detention under 8 U.S.C. Section 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; 2) Whether criminal or terrorist aliens who are subject to mandatory detention under 8 U.S.C. Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; (3) Whether, in bond hearings for aliens detained for six months under 8 U.S.C. Sections 1225(b), 1226 (c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community; whether the length of the alien's detention must be weighed in favor of release; and whether new bond hearings must be afforded automatically every six months.
June 13, 2016
Recent Supreme Court Opinions and Cert Grants
The Supreme Court has recently decided three cases and granted cert in two cases of interest to criminal defense practitioners:
Today, the Court issued a unanimous opinion in United States v. Bryant
(No. 15-420), holding that uncounseled tribal court convictions that are valid under the Indian Civil Rights Act can be used as predicate convictions in a prosecution for domestic violence in Indian country under 18 U. S. C. §117(a). For more on the opinion see this SCOTUSblog post
On June 9, the Court decided Puerto Rico v. Sanchez Valle
(No. 15-108) holding, in a six-to-two ruling, that the Double Jeopardy Clause prohibits Puerto Rico and the United States from successively prosecuting a single defendant for the same criminal conduct. According to the majority opinion, authored by Justice Kagan, because Puerto Rico is not a separate sovereign, it cannot rely on the dual sovereignty doctrine exception to the Double Jeopardy Clause, under which a single act can give rise to two distinct offenses. Justice Ginsburg wrote a concurring opinion, in which Justice Thomas joined, to "flag a larger question that bears fresh examination in an appropriate case" in which the defendant faces successive prosecutions by "parts of the whole USA." For more on the opinion see this SCOTUSblog post
In Williams v. Pennsylvania
(No. 15-5040), also decided on June 9, a divided Court held that it was a violation of Due Process when a Pennsylvania Supreme Court judge refused to recuse himself in the review of William's post-conviction claim, even though he had served as the district attorney who officially approved seeking the death penalty against Williams. For more on the opinion see this SCOTUSblog post
On June 6 the Court granted cert in Buck v. Stephens
(No. 15-8049) to decide the following:
"[D]id the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an 'expert' who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?"
Also on June 6 the Court granted cert in Moore v. Texas
(No. 15-797) to decide whether it violates the Eighth Amendment and Hall v. Florida
and Atkins v. Virginia "
to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed."
For more on the June 6 grants see this SCOTUSblog