Supreme Court: The Term in Review (2009-2010) Part 1 of 2
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Supreme Court: The Term in Review (2009-2010) Part 1 of 2


Supreme Court: The Term in Review, an FJTN program for judges, staff
attorneys, and law clerks. Now from the television studios of the Federal
Judicial Center in Washington, D.C., your host, John Cooke. Hello, I’m John Cooke, Deputy Director of the Federal Judicial Center. Welcome to this year’s Supreme Court: The Term in Review, our annual look at the Court’s decisions most
likely to affect the day-to-day work of federal judges. This year the Court decided high-profile cases
dealing with campaign contributions, gun ownership rights, and white collar crime. But it also decided less publicized cases
dealing with Miranda, habeas corpus, and civil procedure. The term will also be remembered as the first
for Justice Sonia Sotomayor, who joined the Court last summer after 18 years as
a district and circuit judge, and as the last term for Justice John Paul
Stevens, who retired at the end of the term after more
than 34 years of service on the Court. In all, the Court decided 86 cases
on the merits this term. In 36 of these 86 cases, or
42 percent of the time, all nine justices agreed on the result. In 15 cases, or 17 percent of the
time, the vote was 5 to 4. Today we’ll examine 43 of the decisions
with our faculty of scholars. We are fortunate again this year to be joined
by Erwin Chemerinsky, Dean of the University of California Irvine School of Law; Evan Lee of the Hastings College of Law; Laurie Levenson of Loyola Law School in Los
Angeles; and Suzanna Sherry of the Vanderbilt University
School of Law. Other faculty will also join us to discuss
the Court’s opinions in patent law and ERISA. The Center’s Stephanie Briscoe and Beth Wiggins
will moderate our panels. In the first half of our program we’ll consider
decisions involving criminal law, the Fifth and Sixth Amendments, criminal procedure, sentencing, and habeas corpus. Then after a short break we’ll discuss opinions
dealing with the First Amendment, federalism, federal courts and their jurisdiction, and finally business law. The written materials that accompany this
program at our Internet website include an outline with a summary of each of
the decisions that we will discuss, along with an appendix with summaries of the
remaining cases decided by the Court this term. The online outline contains links to the
full opinions. Stephanie Briscoe will be here in a moment,
along with Laurie Levenson and Suzanna Sherry to discuss some criminal law decisions. Hello. I’m Stephanie Briscoe from the Federal Judicial
Center, and with me to talk about some of this term’s important criminal law decisions are
Laurie Levenson and Suzanna Sherry. Thank you both for joining us. Few news stories of the last decade were bigger
than the collapse of the Houston-based energy giant Enron in 2001. Investors lost millions, and many employees
were left without any retirement funds. Several Enron executives were charged with
myriad crimes in the aftermath, including former Enron CEO Jeffrey Skilling. Skilling was acquitted of 9 insider trading counts
and convicted of 19 other counts, including 18 U.S.C. section 1346, conspiracy to commit “honest services” wire
fraud. Skilling appealed his convictions, and this term the Supreme Court agreed to
answer two questions. First, did pretrial publicity and community
prejudice prevent Skilling from obtaining a fair trial? And second, did the jury improperly convict Skilling of
honest services wire fraud? This was a complicated opinion, wasn’t it, Suzanna?
It was. It was actually 4 opinions totaling more than 100 pages, but in the end there
was quite a bit of agreement. So let’s start with the question of whether the district
court erred in refusing to change the venue of the
trial because of pretrial publicity. There was a 5 justice majority on this
question as well as a 3 justice concurrence, and they both concluded that the change in venue was not required. They distinguished Skilling’s case from other
cases in which the Court had found that the presumption of pretrial bias was
so strong that no voir dire could ever overcome it. There was a lot of publicity in this
case, but as Justice Ginsburg wrote for the majority, “prominence does not necessarily produce prejudice.” And the ninth justice, Justice Alito, also agreed, but for a different reason. He said there is no right to a change
of venue; there’s only a right to be tried by an impartial jury, so there’s no right to move it beforehand. I don’t think this part of the case is
likely to have very many consequences or repercussions because it’s very fact specific. Although
the Court did tell us that the change of venue is called for because
of pretrial publicity only under extraordinary circumstances that
rule out even the possibility of being able to find an unbiased
jury. And the Court gave a couple of examples
of those extraordinary circumstances from its prior cases. One from Rideau v. Louisiana, but that
was a quite different case. You had a small town that was flooded by pretrial
publicity. You had a confession that was given without
a lawyer, and because of so much publicity the
Court said it violated due process. Another example the Court gave was the Shepard
case, where they said it was a circus-like atmosphere. But then the Court addressed whether the jury
had been unbiased, didn’t it, Laurie? Right, and the Court said that there was no actual prejudice for this jury, that, in fact, questionnaires had been sent
out to the prospective jurors, there had been extensive voir dire, both sides had been given an opportunity to question
the jurors, and, in fact, Skilling was acquitted of some counts. So the Court concluded–at least 5 justices–
that even though the community may have had some bias, this jury did not. Thank you. The second question before the Court was also
a constitutional one. Skilling argued that the honest services fraud
statute was unconstitutionally vague. Let’s take a look at that statute’s language
before we discuss its opinion in this case. The original statute, amended in 1909, prohibits “any scheme or artifice to defraud, or to obtain
money or property by means of false or fraudulent pretenses, representations or promises.” In 1987, the Supreme Court
struck down the application of the statute to honest services cases in McNally v.
United States. So in 1988 Congress enacted
a new statute that added this clarification: “the term scheme or artifice to defraud includes
a scheme or artifice to deprive another of the intangible right of honest services.” Where did the Court come down in this question, Laurie?
Well, the Court did go back to the original mail fraud statute–the language of the statute
as well as the 1988 amendment– and said that the only way that they could
keep the statute from being unconstitutionally vague would be to limit it to bribery and kickback cases. The problem was that Skilling wasn’t convicted
of bribery and kickback. In fact, his crime was undisclosed private
dealings depriving his employer of honest services. So they had to remand this case to see
if the verdict infected the conspiracy charge in the count. Suzanna, what do you think the major impact of
this decision will be? I think its biggest effect is going to be on cases involving conflict
of interest or backdating. In our next decision, Carachuri-Rosendo v. Holder, the Court had to delve into the statutory
maze that is federal immigration law. Carachuri-Rosendo was a lawful
permanent resident of the United States who had lived here since he was 5 years
old. In 2004, he pled guilty to misdemeanor possession of less than 2 ounces of
marijuana. A year later he pleaded nolo contendere to misdemeanor possession of a tablet
of Xanax without a prescription. Although Texas law allows prosecutors to charge
a sentencing enhancement if they prove that the defendant had previously been convicted of
an offense of a similar class, the state did not elect to seek an enhancement
based on Carachuri-Rosendo’s criminal history. The next year federal authorities initiated
removal proceedings against him based on his second conviction. Carachuri-Rosendo agreed that his second conviction made him
eligible for removal, but applied for discretionary cancellation
of the removal under 8 U.S.C. section 1229b(a)(3). Under that statute the Attorney General may
cancel removal so long as the non-citizen has not been convicted of an aggravated felony. In its 2005 opinion in Lopez v. Gonzalez the Court interpreted that law to mean that conviction of a state felony doesn’t count as
a felony for immigration purposes unless it would be a felony under federal
law as well. But the federal appellate court that affirmed
Carachuri-Rosendo’s ineligibility read the Lopez decision
to also mean that if conduct would be a felony under federal law, then it counts as a felony even if the state
only charged the defendant with a misdemeanor. Laurie, did the Supreme Court uphold the appellate court judgment here? No, it
reversed the appellate court. Aggravated felonies for deportation purposes
under 1229b(a)(3) do not include recidivist simple possession
drug offenses unless the prosecution actually charges and
convicts them as recidivist crimes. It’s not enough that they could have, they have to do it. And the Court distinguished the Lopez case because Carachuri-Rosendo wasn’t convicted
of anything that would have counted as a felony under federal law because the prosecutor didn’t charge him as a
recidivist, and that, the Court said, made the government’s theory much too hypothetical. And to reach that decision, the Court did look
closely again at the language of the statute and the common understanding of some of the
phrases. The Court said there’s no real trafficking
going on here–it was just possession– and the defendant received a 10-day sentence
on the second offense. It doesn’t seem like an aggravated felony. Even if this were brought in federal court, it probably would only get 6 months, and in federal court we define felonies as more
than 1 year. I do think, though, that this is not the last
we’ve seen of Lopez. I think there are still some open questions, and Lopez will need
further refining. For example, what happens if someone is charged as a recidivist, but then is given less than a 1 year sentence? Questions like that are still
open. Our final decision in this segment, Carr v. United States, deals with the Sex Offender Registration
and Notification Act, or SORNA. The law, which went into effect in 2006, requires convicted sex offenders to register
with the state they live in and imposes penalties if they move to another
state and fail to register. The questions before the Court in Carr were whether those penalties could be imposed
on offenders whose interstate travel occurred before SORNA’s effective date, and if so, whether the statute violated the Constitution’s
Ex Post Facto Clause. How did the Court answer those questions, Laurie? Well, the Court did not answer the Ex Post
Facto question because it came back and said that liability under the Act could only be predicated on after SORNA’s passage
if there was travel. They looked at the language of the statute,
and it says “travels” not “traveled,” which means that Congress meant for the law
to apply only to people who traveled after the enactment of
the law. And again, the language of the statute–it
says that the offender has to register after SORNA. How can you do that unless the crime takes
place at that point? So, the bottom line is SORNA does not apply
to offenders who traveled before SORNA but continue not to register. And again, here there are still some open questions.
There are two circuit splits that the Court didn’t resolve in this case, both of them involve the question of when SORNA becomes effective against offenders who were convicted
before it went into effect. The law became effective in July 2006, and then in February 2007 the
Attorney General issued interim regulations making SORNA effective–applying SORNA
to those who were convicted of offenses before it was enacted. The circuits are split on whether those interim
regulations are valid, and even for those circuits that find them valid, there’s a question about what to do with
people who traveled between the 2006 effective date of
the Act and the 2007 Attorney General regulations. Thank you, Laurie, and thank you, Suzanna.
Beth Wiggins is next with Erwin Chemerinsky and Evan Lee
to talk about some Fifth and Sixth Amendment opinions. Hello. I’m Beth Wiggins, and with me to talk about some of the Court’s
Fifth and Sixth Amendment decisions this term are Erwin Chemerinsky and Evan Lee. The justices dealt with a number of issues
in these opinions, including the right to remain silent, effective assistance of counsel, and the right to a public trial. But one decision that generated a lot of discussion, and a strong dissent by Justice Sotomayor and 3 other justices, came late in the term in the case of Berghuis v.
Thompkins. The facts in this case were very important
to the majority’s decision, weren’t they, Erwin? They were. Thompkins was arrested for murder. He was given his Miranda warnings. He was asked to sign a statement that he
understood them. He refused to do so. He was then questioned by officers for 2 hours
and 45 minutes. During this time he remained almost entirely
silent. Then an officer asked him whether he believed in
God. He said yes. The officer asked him did he pray to God. Thompkins said yes. Then the officer said, will you pray to God for forgiveness for the shooting and killing? He said yes. Those answers were admitted against him at
trial. It was key incriminating evidence that led
to his conviction. There were two issues before the Supreme Court. First, was his silence sufficient to invoke the right to remain silent, and second, were these three one-word answers a sufficient waiver of his right to remain silent? So, Evan, how did the Court come down
on these two issues? Well, the Court held that a defendant who has received and understood his Miranda rights and has not explicitly invoked his right to remain silent effectively waives that right by making an uncoerced statement to the police. The majority conceded that the Miranda decision itself, back in 1966, required an explicit waiver of the right to remain silent. But the Court’s actual experience over the years convinced
it that that kind of a formal requirement was impractical. So, Thompkins’s silence was not enough to
invoke his right to remain silent, yet his brief answers to the officer’s
questions were enough to waive his right to remain silent. Well, this is the first time the Court has
said that a defendant has to explicitly invoke his right to remain silent, but it’s
not really the first time they’ve held that the suspect has to invoke one of
their Miranda rights, is it? That’s true. The Court analogized the right to remain silent to the right to counsel under Miranda and to its 1994 decision in
Davis v. United States, where it said that the right to counsel
had to be “unambiguously invoked.” But the Court said it saw no reason to distinguish
between those two rights. Well, Erwin, this opinion also evoked probably the strongest
dissent that Justice Sotomayor has filed yet, didn’t it? Yes, she wrote a vehement dissent, which was joined
by Justices Stevens, Ginsburg, and Breyer. She accused the majority of “turning Miranda on its
head.” In part, she pointed to the irony that being
silent wasn’t sufficient to invoke the right to remain silent. But she also said Miranda expressly said there to be
a knowing and intelligent waiver. That wasn’t present here. In fact, here, unlike Miranda, the Court was creating a presumption in favor of finding a waiver. But, you know, I think the issue still
remains here how long police can persist in questioning a
silent suspect. In this case it was nearly 3 hours. You know, what about 5 hours, 10 hours? I think they’re going to have to answer that
in the future. Okay. Thank you. In our second decision,
Florida v. Powell, the suspect did talk to the police, but there was a question of what he understood
his rights to be under Miranda. The Tampa police read Powell his rights from
a card they used that said, in part, “You have the right to talk to a lawyer before
answering any of our questions (and) you have a right to use any of these rights
at any time you want during this interview.” The question the Supreme Court faced was whether that warning violates the requirements
of Miranda v. Arizona by telling a suspect that he had a right
to talk to a lawyer, but not to tell him specifically that he had
the right to have the lawyer present throughout the questioning. So, Evan, did the Court think the police gave Powell sufficient warnings?
Yes, the Court said that Miranda has 4 warnings that are truly required. There’s a right to remain silent, anything a suspect says can be used against
him in court, right to an attorney, right to have an attorney appointed prior
to questioning if the suspect cannot afford an attorney. The substance of those 4 warnings are
invariable, but the Court said that it was not going to
dictate the exact words that have to be used, you know, every time the warnings are given. Then the Court found that the warnings given by
the Tampa police here were sufficient to meet the Fifth
Amendment’s requirements. This wasn’t surprising in the sense that the
Supreme Court previously had said that Miranda had not prescribed rigid words or a specific framework that had to be used. On the other hand, this is the first time the Supreme Court has ever
said that a confession would be admissible without somebody being advised of the right to have an attorney
present throughout. I think the issue that remains open is what other deviations from the phrasing of Miranda might be accepted. The right to counsel is guaranteed both under
the Fifth Amendment, which is the basis for the Miranda warnings, and also under the Sixth Amendment. Edwards v. Arizona established that when a
suspect has invoked his right to counsel under Miranda, any waiver of that right in response to a subsequent
police attempt at custodial interrogation is presumed to be involuntary. But now, in Maryland v. Shatzer, the Court holds there’s a limit to that presumption. Erwin, what was it about this case that led
the majority to that conclusion? Shatzer was imprisoned for another offense. He was suspected of child molestation. He was brought by the police for questioning, he was given his Miranda warnings, and he invoked his right to counsel. Three years later, while he was still in prison on the other offense, police went to question him again about the child
molestation. He was given his Miranda warnings. He signed a waiver. And the question was, was his invocation of counsel 3 years
earlier a bar to the subsequent questioning? Lower federal courts had held that any break in custody made Edwards inapplicable, but the Supreme
Court had never ruled on the question. Here the Court held that 2 weeks out of custody is sufficient to,
as the Court put it, “shake off” the coercive atmosphere of interrogation.
So if a person decides to talk without a lawyer after that, then it can be seen, the Court says,
as a voluntary decision. Now, Shatzer was in prison during all of this time, but the Court felt that being
returned to the general prison population was the same–effectively the same thing as being
returned to the general population. I guess my question is why 14 days? Well, Justice Scalia said that Edwards
is a Court-created prophylaxis, so the Court can create limits
to it, and the Court felt there needed to be one and said 14 days. But there are critics who’ll say that 14 days is an arbitrary rule. There is no 14-day clause in the Constitution. And also, there’s the concern that this might lead to police circumvention– that the police will question someone, they
invoke their right to counsel, police will stop, and then just wait 2 weeks and start all over again. Right. Justice Stevens only concurred in the judgment. He said the suspect did not receive counsel
after previously requesting counsel. And so, his question was how do you know
that this guy just didn’t think it was futile to request counsel, and therefore, you know, is the assumption
valid? Let’s move on to the next case. When a suspect is represented by an
attorney, the Supreme Court has set a high bar in proving that the lawyer provided ineffective
assistance of counsel in violation of the defendant’s Sixth Amendment
rights. In its 1984 decision Strickland v. Washington, the Court established a 2-step analysis: first, whether counsel’s performance was deficient, and second, whether the defendant was prejudiced as
a result. Historically, very few petitioners have successfully
argued ineffective assistance of counsel before the Supreme Court under the Strickland analysis. But this term was an exception, with the Court finding for
3 petitioners on those grounds. Jose Padilla– not, we should note, the terrorism suspect of a few years ago– was the first to get the high Court to find
ineffective assistance of counsel. Evan, what were the facts that led the Court to this decision–this unusual decision? Well,
Padilla was a lawful permanent resident of the United States for over 40 years when he was arrested and charged with a
drug distribution case in Kentucky. And he pled guilty to those charges after his attorney told him “you don’t
have to worry about being deported because you’ve been in the United States for so long.” Now, that legally turned out to be incorrect
advice, and Padilla alleged that he would have gone to trial if he had known that
deportation was almost certainly going to be a consequence of pleading guilty. The Kentucky Supreme Court held that this incorrect advice did not constitute ineffective
assistance of counsel because deportation is a collateral consequence outside the scope of representation under the Sixth Amendment. What did the Supreme Court think about this? Justice Stevens wrote for the majority and
said that deportation is almost always the consequence of state court criminal convictions, so deportation is regarded as a penalty that comes with a state court
conviction. Therefore, it’s the obligation of the attorney to advise the defendant that that would be the consequence of pleading
guilty. Here Padilla’s lawyer failed to do that, so it is ineffective assistance of counsel. It is worth noting that the Court focused just on the first prong of the Strickland test, that this was deficient performance by counsel. The court didn’t address the second part, whether there was prejudice. The case was remanded on that basis. Yeah, I think the issue going forward is going
to be what does counsel have to tell–what other things
does counsel have to tell defendants, you know, with regard to the consequences
of their convictions. Porter v. McCollum was the second case
this term where the justices found for the petitioner,
and this time they were unanimous. Erwin, what was it about the facts of this case that led to the unanimous decision? The argument for ineffective assistance of
counsel here was that the defense counsel didn’t present key evidence in mitigation at
sentencing, never presenting evidence with regard to mental impairment, childhood abuse, or especially about the petitioner’s
distinguished history of military service. Nonetheless, the United States Courts of Appeals
for the Eleventh Circuit found that it was not ineffective assistance of counsel. Well, obviously none of the Supreme Court justices
agreed with this? No, they didn’t. The Court focused particularly on Porter’s military
record, the two horrendous battles that he fought
in the Korean War, his difficulty reintegrating into society
upon his return to the United States. And the Court said that this was not only
relevant to, you know, honoring veterans, but it was also relevant to possible mitigation
because of its effect on Porter’s mental state. And if this and other information had been presented
during the penalty phase of the trial, the Court said it was “reasonably probable” that it would have
led to a different result. So the Court found that the Florida Supreme Court’s decision that Porter did not suffer prejudice
within the meaning of Strickland was “objectively unreasonable,” thus satisfying the standard set forth in the
Anti-Terrorism and Effective Death Penalty Act. I think this is so important because there
are very few Supreme Court cases that have ever found ineffective assistance of counsel under the Strickland v. Washington test. And there are especially few cases where the Supreme Court has found prejudice under that test. So I think that what lower courts
can expect to see is many defense lawyers using Porter v. McCollum to argue that there was ineffective assistance of
counsel. Finally, we have Sears v. Upton, our third ineffective assistance of counsel
decision in this group. Unlike Porter’s attorney, the lawyer assigned to represent Sears
did present some mitigating evidence, but not enough according to the Court. Evan, how much did he do? Well, not a lot. He spent less than one full day investigating possible mitigating
evidence. He didn’t present any evidence about significant
frontal lobe brain damage or childhood abuse that he had suffered. And apparently his trial counsel’s sole strategy
in the penalty phase was to highlight the–you know–the likely impact that
execution would have on Sears’ family. Well, the state post-conviction trial court
did find that the counsel’s representation was inadequate under Strickland, but they also said that it was impossible to tell if there was prejudice because
the attorney did present some mitigating evidence. That’s true, but the Supreme Court majority found that
the state court had erroneously applied Strickland when it assumed that the prejudice prong
of that test only applies in cases where there’s little or no mitigating evidence, you know, offered in the penalty phase. The Court said that the proper prejudice
test was to, and I quote, “consider the totality of
the proper mitigation evidence, both that adduced at trial and the evidence adduced in the habeas
proceeding, and reweigh it against the evidence in aggravation.” It’s worth noting that this case, like Porter v.
McCollum, was a per curiam opinion, decided without briefing or oral argument, just on the basis of the cert petition. There were actually 14 decisions this term
that were per curiams without briefing and argument just based on the cert petition and the
cert opposition. And I think that is significant, and maybe it’s a trend. Okay. Thanks, Erwin, and thanks, Evan. We want to tell you about one more decision
in this group, Presley v. Georgia. Here the defendant was tried for cocaine
trafficking in Georgia, and the judge barred the public, including
the defendant’s uncle, from the courtroom during jury selection. Seven to two the Supreme Court found that, unless it has considered reasonable alternatives
to closure, a court may not exclude the public from voir dire
without violating a defendant’s Sixth Amendment right to a public trial. But the majority recognized that this was not
an absolute right and there were situations, such as improper communication with jurors or safety considerations, where, on balance, closure is desirable and
constitutional. Stephanie will be back in a moment with Evan
and Laurie Levenson to look at some criminal law and procedure decisions. Matters of criminal procedure and sentencing
are the meat and potatoes of most district court dockets. This term the Supreme Court decided 6 cases
in these areas that will affect the work of federal courts on a daily basis one way or
another. Laurie Levenson and Evan Lee are here to help analyze these decisions. The first of these was a much watched constitutional
case asking if sentencing juveniles convicted of non-homicide crimes to life in prison
without parole violated the Eighth Amendment’s Cruel and Unusual
Punishment Clause. This was Graham v. Florida. A companion case, Sullivan v. Florida, addressed the same question in regards to juveniles
convicted of homicide, but that case was dismissed as improvidently
granted. Laurie, this opinion was written for the Court by
Justice Kennedy, who also wrote the decision in Roper v. Simmons, where the majority found it was
a violation of the Cruel and Unusual Punishment Clause to execute minors under
the age of 18. What did the Court hold this time? The Court held that life without the possibility
of parole, or LWOP, for non-homicide crimes involving juveniles
violated the Cruel and Unusual Punishment Clause of the Constitution. And your point about Roper is a good one, because Justice Kennedy said, again, that juveniles have moral– diminished moral culpability, that the national
consensus was against LWOP for these crimes, that only 12 states actually allowed it, and most of the juveniles convicted were actually
convicted in Florida, where Graham was from. And the decision cited other reasons along
the lines that Laurie mentioned. It mentioned that juveniles are less
likely to be deterred by harsh sentences because of their lack of maturity, their underdeveloped sense of responsibility, that incapacitating juveniles permanently isn’t justifiable because it’s difficult to ferret out incorrigibility in juveniles, and similarly that life without parole
is fundamentally inconsistent with the goal of rehabilitation. Also, Justice Kennedy again notes, as he did
in Roper, that international opinion is against giving juveniles that type of punishment. And I think it’s important to note that the
majority felt it necessary to have a bright line rule and not to leave this to the courts
to do on a case-by-case basis. Now, they didn’t say that the states had to
release all these juveniles. They’re either going to have to put in parole
boards or enact statutes that have very
long sentences. Now, this case generated some concurrences and
dissents too, didn’t it? Yes, Justice Stevens concurred. Chief Justice Roberts agreed that life without
parole was unconstitutional as it was applied to this
particular case, but he would not have adopted the categorical rule that the majority
did because he said that some acts by juveniles are going to be sufficiently
depraved to merit that punishment. And in fact, Justice Thomas, in his dissent
that was joined by Justices Scalia and Alito, thought that Graham’s sentence was justified and thought the legislature, not the court,
should be making these moral judgments. Thank you. Most sentencing issues are not constitutional
in nature. More often they have to do with statutory
interpretation, judicial discretion, and the federal Sentencing Guidelines. In Dillon v. United States, all 3 of
these elements were present. Percy Dillon was convicted in 1993
of possessing with intent to distribute more than 500 grams of crack and
powder cocaine, as well as using a gun in the commission
of a drug trafficking offense. The combined guideline range for these crimes, plus his criminal history, was 262 to 327 months. The judge sentenced him to 322 months. When the Sentencing Commission later reduced
the crack cocaine guidelines, Dillon moved to have his sentence reduced under 18 U.S.C. section 3582(c)(2), which allows a district court to reduce an
otherwise final sentence, pursuant to a guidelines amendment, if a reduction is consistent with the Commission’s
policy statements. In this case the Commission’s relevant policy
statement was section 1B1.10, which precludes a court from reducing a
sentence to a term that is less than the minimum of the
amended guideline range. But Dillon wanted a further reduction based on his post-conviction behavior and
argued that the Supreme Court’s 2005 decision in United States v. Booker allowed judges to exercise such discretion. So, Evan, how did the Court find the statute, the guidelines, and their own precedent interacted to resolve
this case? The Court said that Booker does not apply to sentence modifications under 3582(c)(2), and therefore the Commission’s policy statement,
1B1.10, couldn’t be ignored. Now, if on the other hand, the Court had found that this was a resentencing instead of a sentence modification, then Booker
might have applied and 1B1.10 would only have been advisory. And the Court came out with a 2-step process
for the district courts to use. One, the district court determines whether
the guideline amendment is retroactive and the defendant is eligible
for reduction and then the court, if they answer that yes, looks to the 3553(a) factors and then decides whether it applies. So, modification is an act of lenity and
therefore Booker does not apply. Even without changes to the Sentencing Guidelines
prisoners sentenced for a term of years can still get their time in prison reduced
for good behavior. The formula the Federal Bureau of Prisons
uses to calculate how much time is taken off a prisoner’s sentence was the subject
of our next decision, Barber v. Thomas. The federal sentencing statute that creates
the power to grant so-called “good time credit” says in part “[A] prisoner who is serving a term of imprisonment of more than one year … may receive credit toward the service of the
prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term
of imprisonment, beginning at the end of the first year of the term …. [C]redit for the last year or portion of a
year of the term of imprisonment shall be prorated and credited within the last
six weeks of the sentence.” What was the dispute over, Laurie? Well, the dispute was over the fact that under this
method the prisoner gets 54 days of credit
at the end of each year served, but for the final year the credit is based on a proration derived
from the awards in previous years. That sounds like the description in the statute. Who was questioning it? There was a group of prisoners that filed
the original suit arguing that the BOP method violated the statute which they claimed
required a calculation to be based on the sentence
imposed, and not on actual time served. Their method would have meant several months less prison time for prisoners who had lengthy sentences and also good behavior
records. Which method did the Court think was best? The Court concluded that the BOP’s method
tracked the language of the statute more closely, and therefore that was the right one to use. Our next opinion, United States v. O’Brien, also revolved around a
formula of sorts. This time the question was whether using a
machine gun in commission of a drug trafficking crime or crime of violence was an element of
that crime or a sentencing factor when applying the mandatory minimum provisions
of the controlling federal statute. If it is an element of a crime, it must be proved
to a jury beyond a reasonable doubt. If it is a sentencing factor, it need only be proven
to the judge by a preponderance of the evidence. Which one did the Court say it was, Laurie?
Well, the Court, 9 to 0–9 to zero, said it was an element of the crime, that it must be proved to the jury
beyond a reasonable doubt. The Court relied on its 2000 decision
in Castillo, and it had reached the same conclusion regarding
the statute before it was amended. The Court said that you should look to 5
factors for distinguishing between an element and a sentencing factor. And those 5 factors are (1) the language and structure of the statute, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative
history. So the Court said that the amendment here
did not change the element into a sentencing factor, even though the machine gun language was with
the sentencing portion of the statute. Yeah, Justices Stevens and Thomas both concurred
with the holding, but they wrote separately. They argued that Congress shouldn’t have the
discretion to treat mandatory minimums as sentencing factors because in their view any sentencing fact that limits the discretion
of the sentencing judge should have to be proven beyond a reasonable
doubt to a jury. And I think something interesting about this case
is if you take the majority and concurrences together, it may look like the Court is ready to overturn
MacMillan v. Pennsylvania and Harris v. United States, which would find that mandatory minimums would
then be subject to the Sixth Amendment concerns under Apprendi. And, in fact, Thomas writes about this in his
concurrence. Thank you. Sometimes the errors trial courts
make are subtle, and sometimes they are obvious, or as Federal Rule of Civil Procedure 52(b) puts it, plain. 52(b) permits an appellate court to
recognize “a plain error that affects substantial rights” even if the claim of error was “not brought” to
the district court’s attention. In United States v. Marcus, the respondent,
Glen Marcus, brought a claim of plain error arguing that some
of the sex trafficking activities he was convicted
of occurred before the passage of the statute under which
he was indicted and tried. He argued that this was a violation of the
Ex Post Facto Clause of the Constitution. The Second Circuit Court of Appeals found
for Marcus, holding that the district court’s failure to issue a limiting instruction
was plain error affecting substantial rights so long as there was “any possibility, no matter
how unlikely, that the jury could have convicted based exclusively
on pre-enactment conduct.” What was the Court’s view of plain error here, Evan? Well, the Supreme Court and the Second
Circuit both did agree on the elements of plain error. It wasn’t what you just read, but
instead they said that in order to find plain error an appellate court needs to find that (1) there
is an error, (2) it has to be clear and obvious, (3) the error has to have affected “substantial rights,”
meaning that it was prejudicial, and finally, the error had to have seriously affected
the integrity or public reputation of judicial proceedings. But the Supreme Court held here that the failure
to issue a limiting instruction would only have constituted plain error affecting substantial rights if it was reasonably probable that the jury convicted exclusively on
evidence of pre-enactment behavior. I think that’s key. Plain error requires a showing
of probability of prejudice unless it’s a structural error. But then the Court kept the categories of structural error very narrow to include these examples: complete denial of counsel, denial of the right to an impartial judge, denial
of the right to self-representation, erroneous reasonable doubt instruction,
or denial of the right to a public trial. Otherwise, it’s not enough to show the possibility
of prejudice; you have to show a reasonable probability of prejudice. Laurie, our last opinion, Bloate
v. United States, deals with the Speedy Trial Act. How did that decision affect the law? Well, under the Speedy Trial Act a defendant has to be brought to trial within
70 days of an indictment or initial appearance. But a judge can find excludable delay. In some circumstances the excludable delay
is automatic. In other situations the judge must make findings. In this case what happened is the defendant
had moved for extra time to file some pretrial motions. Now, there may have been some gamesmanship, because there was a plea deal that fell out and then there was this question of whether the
time for the 28 days to file these motions
should be excludable. The court found it to be excludable, but did
not make specific findings. The defendant was convicted, and he appealed. He had moved to dismiss. And the issue before the Court was were those 28 eight days for pretrial motions going to be automatically
excludable, or did there need to be specific findings? And what did the Court hold, Evan? That a continuance to allow a defendant
to prepare a pretrial motion is not automatically excluded under the Speedy Trial Act. The court has
to make specific findings that the ends of justice served by granting
additional time outweigh … you know … the interests served … the best interests of the
public and the defendant’s interest in a speedy
trial. So the majority did say that once
the pretrial motion is filed, the time until its disposition– that is automatically excluded. And the Court did again a strict construction of the language of the statute. Its decision was consistent with its 2006
Zedner opinion. Defendants can’t opt out of the Speedy Trial
Act. This Act serves the purpose of the public’s
interest in a swift trial. So, in the end, though, it may be no harm, no foul
because the remedy for Speedy Trial Act violations can be just dismissal
without prejudice. Thank you, Laurie, and thank you, Evan. The habeas corpus decisions we’re going to
discuss next raise 4 issues that frequently arise in court. First, does equitable tolling apply to the statute
of limitations under the Anti-Terrorism and Effective Death Penalty Act, or AEDPA? Second, can a discretionary state rule serve as an adequate ground to preclude federal
habeas review? Third, what is “contrary to or an unreasonable application
of clearly established federal law” to permit habeas corpus review? And finally, when is a habeas petition barred under
AEDPA as a “second or successive” claim? We begin with the equitable tolling issue and the most important case in this group, Holland v. Florida. AEDPA requires that habeas corpus petitions from
state court convictions be filed within one year of the completion
of state proceedings. There may never have been a prisoner filing a habeas
petition who was more diligent in trying to meet that
deadline than was Albert Holland. Unfortunately for him his state appointed counsel, Bradley Collins, did not share his client’s persistence. In fact, in some ways Collins seemed to know less about AEDPA than
did Holland. Regardless of repeated letters from his client and admonitions to file his habeas petition, as well as repeated attempts by Holland to fire
Collins which were rebuffed by the state courts, Collins failed to file the petition until after the one-year statute of limitations
had expired. The federal district court deemed the petition
time barred under AEDPA, and the Eleventh Circuit Court of Appeals
affirmed, finding there were no extraordinary circumstances
in Holland’s cases. So, Erwin, how did the Court come down on this issue? The Supreme Court found that equitable tolling is permissible under the Anti-Terrorism and Effective Death
Penalty Act. The Court explained that the time bars are not jurisdictional and that therefore there should be a presumption
in favor of equitable tolling. The Court also said allowing equitable tolling would
not interfere with the underlying goals of AEDPA, of expediting the processing of habeas
cases. And the Court pointed out that habeas corpus, the Great Writ, is found in the Constitution, and allowing equitable tolling would fulfill that constitutional goal. Well, Laurie, did the Court set forth any standard
for what equitable tolling would be allowed? Yes and no. I mean certainly a petitioner must show, like Holland
did, that he was extremely diligent in pursuing
his rights but extraordinary circumstances got in the way from a timely filing. On the other hand, the Court says it’s going
to be a case-by-case flexible standard. So we know that garden-variety attorney negligence
won’t be enough, but the Court says to the lower courts, look at
your own precedent and decide what meets the standard. And I think it’s very important that the Supreme Court rejected a
very narrow definition of equitable tolling that the Eleventh Circuit adopted. The Eleventh Circuit said equitable tolling is allowed only if there’s “bad faith, dishonesty, divided loyalty, mental impairment.” And the Supreme Court was clear that equitable tolling is allowed in many
more circumstances than just them. And I think this is a very important decision.
Truly the Great Writ is still the Great Writ, but it won’t be easy because there are going
to be very few petitioners who are as diligent as Holland was, and they’re going to have to show real
diligence to meet the standard here. I agree. And I also agree in terms of its importance. The time periods with regard to AEDPA are very rigid, and it’s often individuals filing habeas petitions
pro se on their own. There are complicated rules in terms of tolling, and there are many situations besides the inadequate counsel that might trigger the need to use equitable tolling. The statute of limitations under AEDPA
is not the only constraint on federal courts hearing habeas petitions from state prisoners. They also may not hear the petition if there’s an independent and adequate state
ground that supports a state court decision. The question in Beard v. Kindler was whether a state procedural rule was automatically
inadequate to serve as such a bar if it is discretionary rather than mandatory. Laurie, what were the facts behind this decision? Well, Kindler was convicted of murder in the state
court in Pennsylvania, and the jury actually recommended the death
sentence. He filed motions to challenge his conviction, but then he fled to Canada before the court could rule on those motions. The state dismissed the motions. They recaptured him. He fled again, and he sought to revive his post-trial motions. A trial court
again denied relief and the state supreme court upheld it. But on federal review, the district court and the Third Circuit
said that there was no bar to federal habeas petition because under the fugitive forfeiture rule
in state court, the state court had discretion to review the motions. What did the Supreme Court think about this?
The Supreme Court held that there was
an independent adequate state law ground that barred habeas corpus review. The Supreme Court said that a discretionary rule can be an independent, adequate state ground. The Supreme Court said the test for when state law is an independent, adequate state ground is whether it’s “firmly established and regularly followed.” And the Court explained the reason it was doing
this, because otherwise the state courts would have a dilemma– they could either have flexible rules that
would not bar the habeas or rigid rules which limit the discretion of
the judges, and they didn’t want to do that, especially since there are federal laws that
operate the same way. There is an issue–a tension–to be resolved. On the one hand, the Supreme Court says it
has to be “firmly established and regularly followed” to be an independent, adequate state ground; on the other hand, the Court says it can be a
discretionary rule. Well, how often must that discretionary rule
be followed in order to be able to say it’s firmly established and regularly followed? Well, let’s move on to our next habeas case. The issue in Berghuis v. Smith involved jury selection. Smith, the African-American defendant, was convicted of a second degree murder by an
all white jury and sentenced to life in prison with the possibility
of parole. Smith claimed that blacks were systematically
excluded from Michigan juries and pointed out that while they represented
6 percent of the available jury pool, only 3 of the 60 to 100 potential
jurors called for his trial were black. The trial court conducted an evidentiary hearing
as to whether Smith was denied a fair cross section of the community on his jury and concluded that there was insufficient evidence
that the jury selection process had systematically excluded African-Americans Erwin, what happened next? The United States Court of Appeals for the
Sixth Circuit said that the habeas petition should have been granted. But the United States Supreme Court reversed. The Supreme Court said that under 2254(d) this wasn’t contrary to or an unreasonable application of clearly
established law as articulated by the Supreme Court. The Supreme Court focused on an earlier decision, Duren v. Missouri, which articulated a 3-part test when it comes
to whether there’s adequate representation of a minority in the jury pool. First, you have to point to a distinctive group, second, it has to be shown that the distinctive group is underrepresented, and third you have to be able to point to
some systemic policy that led to the underrepresentation of
that group. And the Court held that there was no one acceptable
statistical method to do this. The states can use a variety–what works for
them. Section 2254(d) of the Anti-Terrorism and Effective Death
Penalty Act, AEDPA, allows a federal habeas court to grant
relief only if a state court decision is “contrary
to or an unreasonable application of clearly
established federal law.” In Renico v. Lett, the issue was whether a state court declaring a mistrial and then ordering a new
trial was a violation of double jeopardy, and therefore contrary to or an unreasonable
application of federal law. Laurie, can you fill us in on the facts here? Sure, Beth. This was a fairly straightforward criminal case, and
the jury deliberated over the course of 2 days for
about 4 hours before they came back with a question for the judge: what if they couldn’t reach a verdict? The judge called them into the courtroom, asked
the foreperson–it looked like they couldn’t reach a verdict, so the judge declared a mistrial. Neither lawyer objected at the time. Then they had a retrial, and in fact the
defendant was convicted. He said that that was a double jeopardy violation
because there should have never been a mistrial– there was no showing of a manifest necessity. What did the Supreme Court say? The Supreme Court said trial courts have broad discretion deciding whether to declare
a mistrial. Also, the Court emphasized that under 2254(d), there has to be a great deal of deference given to the decisions of the state
courts. So did the Court give any guidance on what that
broad discretion might be? Well, it said that there certainly was no minimum
time period that a jury had to deliberate. There was no requirement to question the jurors
individually. There was no requirement to get consent from defense counsel. There was no requirement for the judge to make
explicit findings regarding manifest necessity. Finally, in Magwood v. Patterson, we address the issue of second
or successive petitions. Under 2244(b) of AEDPA, a petitioner must obtain leave from the
federal court of appeals to file a second or successive petition for habeas relief from a state court judgment. If the petitioner does not obtain permission from the appeals court, the district court must reject the petition, except under certain statutory requirements. Billy Joe Magwood was convicted of killing
a sheriff in Alabama and sentenced to death. The federal district court on habeas upheld
Magwood’s conviction, but vacated his sentence and conditionally granted the writ. The state trial court held a new sentencing procedure, and again imposed a penalty of death, saying on the record that the new judgment
was the result “of a complete and new assessment of all the evidence, arguments of counsel, and law.” Magwood appealed in the state courts, but the sentence was upheld. He filed another petition for federal habeas relief, challenging his
new death sentence on the grounds that he was not given notice that he was death eligible and that his appointed attorney in the second
sentencing hearing had provided ineffective assistance of counsel. Before addressing the merits of his petition, the district court sua sponte considered
whether the application was barred as a successive petition and held that it was not. Laurie, where did the Supreme Court come down
on this? Well, the 5 justices in the majority held that this petition was not a second or
successive one because, in fact, Magwood was challenging
a new judgment. And just because he could have raised the
same objection to his first case, he didn’t, and therefore this was a new review,
a new habeas. The Supreme Court focused on the language
of the habeas statute and said that a new petition is not necessarily a second or successive
petition within the meaning of the statute. I think what makes this significant is the Supreme Court has been so strict in interpreting the requirements of the Anti-Terrorism
and Effective Death Penalty Act, and here the Court is saying that it is not going to impose the strict procedural and substantive requirements for a second or successive petition when there has been a new proceeding in the state courts. Thank you both. We’re going to take a short break and then be back with the decisions involving
the First Amendment, federalism, and a number of business issues.

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