As the Supreme Court gets closer to the end of its term, opinions should be coming fast and furious. This past week the Court released six more. Four of them deal with important issues of criminal law.
First, however, I should note that, in addition to its opinions, the Court rejected to take on a couple of notable cases. The first was an appeal from the 3rd Circuit, which had reversed the FCC's 2003 decision to ease media ownership rules. The second was a rejection of terror suspect Jose Padilla's appeal from the 4th Circuit. The Court rejected the appeal, unsurprisingly so since the 4th Circuit hasn't rules on the case yet. Don't worry, though - this case will eventually get to the Court. Oh, and don't forget about the Beastie Boys -- the Court refused to hear a case brought against them for sampling a six-second segment from one of jazz flutist James Newton's songs.
And now on to the Court's actual decisions.
Miller-El v. Dretke
(6-3; Breyer concurring, Thomas dissenting) [Topic: Peremptory Challenges/Race]
Background and Opinion:
Lawyers for each side are allowed to use a certain number of "peremptory challenges" to remove potential jurors from a jury pool even without cause. They are prohibited under the Equal Protection Clause of the 14th Amendment, however, from using race as a criterion for excluding a person from a jury. Unfortunately (and, sadly, unsurprisingly), race often comes into play one way or another.
Thomas Miller-El, whose case had already made it to the Supreme Court earlier, is a black man accused of the murder of two hotel employees in Texas. During jury selection, prosecutors used their peremptory challenges to strike 10 qualified blacks from the jury pool. Miller-El then argued that this was a discriminatory jury selection method based upon race. The prosecutors disagreed, arguing that they struck the black members from the jury pool based solely upon their answers to certain death penalty questions the prosecutors asked of them. The Fifth Circuit eventually denied Miller-El's claim, but the Supreme Court reversed.
Under an older 1965 standard established in Swain v. Alabama, proving jury selection discrimination required a defendant to prove "systemic discrimination" against blacks in the particular area, not just that the accused in question faced discrimination. This standard made it next to impossible to prove discrimination. Along came Batson v. Kentucky in 1986, which eliminated this standard and allowed defendants to make out a discrimination case based upon "the totality of the relevant facts" during the accused own trial. This would require the prosecutor to give clear (and legitimate) reasons for why he struck the jurors. This still made it difficult for defendants to win, however, because prosecutors could simply give a race-neutral reason, whether it was plausible or not.
The Court's decision in Miller-El changes this. The Court went through an extended analysis of the prosecutor's conduct, noting that blacks who expressed some discomfort with the death penalty (and even some who did not) were struck, but whites displaying similar discomfort still made it on the jury. Further, the particular jurisdiction in which Miller-El was being tried had a policy of placing emphasis on race in jury selection (via a "manual on tips on jury selection" handed out to prosecutors). In sum, the Court found the prosecutor's supposed race-neutral explanations "unlikely" and mere "pretext", and held that Miller-El was entitled to prevail on his jury selection discrimination claim.
Other Opinions:
Justice Breyer submitted a lengthy concurrence in which he criticized the complexity of the current law of peremptory challenges, stating that even the Court's more liberal reading of Batson will not come close to eliminating race-based jury challenges. Ultimately agreeing with former Justice Thurgood Marshall's determination, Breyer argued that ending the use of race considerations in jury selection requires nothing short of eliminating peremptory challenges altogether.
Thomas, joined by Rehnquist and Scalia, dissented. Thomas stressed that for the past 20 years, Miller-El has been pressing the discrimination claim but to no avail in many different courts. Thomas chided the majority for "ignoring" the Court's responsibility to look only to "the evidence presented in the State proceeding" when determining whether Miller-El should prevail. Much of what the majority examined (juror questionnaires) was not presented as part of the original proceeding. The dissent also pointedly disagreed with the majority's analysis of the "pretextual" nature of the prosecution's alleged race-neutral reasons for striking the black jurors, accusing them of mere "speculation".
Impact:
Miller-El demonstrates that though the Court is hardly the liberal bastion many right-wingers claim it is, it still is willing to provide greater protections for the accused, particular of those on death row. The Court has been quite willing in recent years to intervene in death penalty cases, and though this is a jury selection, not death penalty, case, I have little doubt that the fact that Miller-El was sentenced to death played some role in the Justices' decision. Clearly this case is a civil liberties victory and will close off some of the racial discrimination still pervading the jury selection process. Nevertheless, I would stand with Justice Breyer in questioning the wisdom of the peremptory challenge system in general, and agree that racial discrimination will continue as long as strikes without cause are allowed.
Johnson v. California
(8-1; Breyer concurring, Thomas dissenting)
[Topic: Peremptory Challenges/Race]
Background and Opinion:
This case is a companion case to the Miller-El case just described. Johnson arose out of a California criminal case in which a black man sat accused of the murder of a white child. The prosecutor used his peremptory challenges to remove all three black prospective jurors from the jury pool, leading to defense counsel's protestation that these challenges were impermissibly based on race. The trial judge, even without requiring the prosecutor to explain his strikes, found that the defense counsel has failed to prove, as required under California law, that it was "more likely than not" that the strikes were based on race. The defendant appealed, eventually getting to the unsympathetic California Supreme Court, which ruled for the prosecution.
The US Supreme Court reversed, holding for the defendant. The Court applied the Batson v. Kentucky mentioned above (requiring defendants, when challenging peremptory strikes, to show that "the totality of the relevant facts give rise to an inference of discriminatory purpose"). Batson gives states some leeway when devising procedures to apply this requirement. Nevertheless, the Court held, California's "more likely than not" standard is in violation of the Equal Protection Clause of the 14th Amendment. This requirement, the Court held, makes it nearly impossible for a defendant to prove racial motivation, especially where the prosecutor gave no explanation for the strikes. Batson , by contrast, requires only that a challenge "give rise to an inference" of racial motivation, not that the defendant definitively prove that it was "more likely than not" that such motivation existed.
Other Opinions:
Breyer joined the majority opinion, but added a one-line concurrence maintaining the views on peremptory challenges he set forth in the Miller-El decision. Thomas was the lone dissenter, arguing that California's requirement was within the "wide discretion" states have to craft their own criminal procedure.
Impact:
Similar to Miller-El, Johnson is a victory for civil liberties. Batson continues to get shaper teeth as time goes on (we shall see how Bush's future appointees change this, however).
Bradshaw v. Stumpf
(9-0, Souter, Thomas concurring)
[Topic: Due Process/Rights of the Accused]
Background and Opinion:
The defendant, John David Stumpf, sat on death row for the murder of an Ohio woman. He allegedly killed her as part of a robbery with a second person, Clyde Wesley. Stumpf eventually was sentenced to death, but during Wesley's subsequent trial the prosecutors introduced new evidence tending to show that Wesley, not Stumpf, was the killer. After Wesley received life imprisonment, Stumpf moved to have his death sentence vacated - and the prosecution offered still another story, different than that presented in the Wesley case. After finding no success in a number of courts, Stumpf finally succeeded in the Sixth Circuit. The Circuit Court overturned his death sentence, holding that the guilty plea Stumpf offered in the original trial was not entered "knowingly and intelligently", and that the state's shifting theories in his and Wesley's cases violated Stumpf's due process rights.
The Court unanimously disagreed on both counts. While conceding that Stumpf's plea would be invalid if he didn't understand the nature of the charges against him (which is what the Sixth Circuit concluded), they held that it wasn't the case here, since Stumpf's attorneys had represented that they had adequately informed their client about the charges. As for the second argument about the state's shifting theories, the Court simply stated that it would be "premature" to address the due process argument since they did not have enough evidence to determine whether it was the prosecutor's actions that led to the death sentence. Thus, Stumpf's case was sent back down to the lower courts for further proceedings.
Other Opinions:
There were two concurring opinions in this case. The first, by Justice Souter and joined by Justice Ginsberg, makes it clear that though the two Justices agree with the remand, they have serious misgivings about allowing the state to maintain the death penalty against a convicted individual while they continuously change the story used to convict someone else (Wesley) involved in the crime.
Justices Thomas and Scalia also concurred for basically opposite reasons. They argued that the "inconsistent theory" defense in no way violated Stumpf's due process rights. The adversarial system, they claim, gives accused individuals ample opportunity to attack the prosecution's theory if indeed it is inconsistent.
Impact:
It wasn't completely certain that the voluntariness of a guilty plea could be shown by the defense lawyers' representation that they had explained the charges to the defendant, so now that's clear. Also of interest is the (not surprising) split on the court between the Justices who would grant greater due process rights to the accused (Souter, Ginsburg) and those who would contract it (Thomas, Scalia). The next two or three Supreme Court nominations will certainly tip the balance to one or the other of these viewpoints.
Wilkinson v. Austin
(9-0)
[Topic: Procedural Due Process/Prisoner's Rights]
Background and Opinion:
The most dangerous people in our prisons are placed in so-called "Supermax" prisons that place many heavy restrictions on prisoners' activity. After a riot in one of Ohio's prisons, the state opened its first Supermax. There were a lot of prisoner assignment problems when the facility first opened, however, so Ohio created a policy that aimed to give inmates more procedural protection against erroneous placement in the Supermax. Under the policy, the inmate must receive notice of the reasons why the state wants to transfer him (or, probably in theory, her) to the Supermax, and give ample opportunity for rebuttal at a hearing.
This "New Policy", however, was not promulgated until several inmates brought a due process challenge against the original "Old Policy", which did not contain the same level of procedural protection (no notice and hearing, in other words). The case eventually got up to the Sixth Circuit, which considered the constitutionality of both the New and Old policy and found that both policies unconstitutionally deprived inmates of their due process rights. To meet due process, Ohio would have to give the prisoners an exhaustive list of all the evidence the state planned to use in its assignment determination and allow inmates to present witnesses and other evidence.
A unanimous Supreme Court agreed that the Old Policy was unconstitutional, but held that the New Policy was adequate to meet the inmates' due process rights. The Court made clear that the prisoners had due process rights in the first place. This is because inmates have a "liberty interest" in avoiding assignment to the Supermax since such an assignment "imposes an atypical and significant hardship" on the inmate. Still, the Court reasoned that the additional due process protections mandated by the Sixth Circuit were not required under the Constitution. The Court found that the state's interest in not giving inmates these additional rights outweighed the inmates' private liberty interest. For example, giving inmates the right to call witnesses could make it more difficult for Ohio to control its prisoners, given the violence that could be aroused when one prisoner testifies against another (the problem of scarce state resources also played a big role in the Court's analysis here).
Impact:
Wilkinson is a significant, though not total, victory for prisoner's rights. The Court recognized that inmates have a liberty interest in whether they are sent to a Supermax, which is important in itself. Nevertheless, the Court, while requiring notice and a hearing, could have gone further and required additional due process protections as stated by the Sixth Circuit.
Not surprisingly, the Bush Administration argued that not only was Ohio's due process procedures constitutionally adequate as they stood, but also argued that inmates have no liberty interest at all in whether they are moved to a Supermax (and thus no due process rights). Even with the Court rejecting a requirement that Ohio adopt further procedural protections, the case should be considered a modest defeat for the Administration.
Grable & Sons Metal Products v. Darue Engineering & Manufacturing
(9-0, Thomas concurring)
[Topic: Civil Procedure/Jurisdiction]
Background and Opinion::
Back in the mid-`90s, Grable, Inc. owed a bit of money to the IRS. The IRS, not amused, seized land owned by the company to satisfy this debt, in turn selling it (at auction) to Darue Engineering. Nothing happened for five years, when Grable suddenly brought suit against Darue, claiming that the land never transferred hands because the IRS did not give proper notice to Grable that its land had been seized (a bit odd to say this 5 years after the fact, but OK). The case, first filed in state court (because it was a "quiet title" action, which is a state law claim), ended up in federal court despite Grable's protests.
The entire matter about which court should hear what case and under what law gave me plenty of headaches when I was in law school, so I'll spare you too much detail. To get to the (overly simplified) underlying doctrine in this case, federal courts have jurisdiction over federal questions. The Grable Court decided that determining the adequacy of IRS notice was a "substantial federal question" because it implicated federal tax law, and thus the case could be heard in federal court.
Other Opinions:
Justice Thomas wrote a quick concurrence stating that he would, with "better evidence" of the original meaning of "federal question", consider a requirement that would limit federal court jurisdiction to only those cases in which a party brought a federal cause of action (as opposed to bringing a state cause of action "implicating" federal law.
Impact:
As Justice Souter states himself, this case will not have a broad impact. There aren't many cases in which a "quiet title" action involves issues of federal law, so it won't cause big changes in how litigation is currently conducted. The Court's longstanding determination that "federal questions" can still arise even in state law actions goes unchanged.
Merck KGAA v. Integra Lifesciences
(9-0)
[Topic:Intellectual Property Protection]
Background and Opinion: The two companies involved in this case are pharmaceutical companies (not exactly my favorite bunch, but I'll continue). They became involved in a fight about patent infringement after Merck, as part of its preclinical research, used a biological molecule patented by Integra. It is generally a patent violation to use a patented invention without authorization. However, Merck claimed that it did not infringe the patent because of a federal "safe harbor" law allowing the use of a patented invention if such use is related to the development and submission of information required by (among others) the FDA. The problem was that the results of the particular preclinical research that Merck was doing was not ultimately submitted to the FDA. So was Merck's "use" of the patent covered by the safe harbor?
The Court, disagreeing with a lower court, said it was. The Court held that the "safe harbor" provision provides a "wide berth for the use of patented drugs in activities related to the federal regulatory process." Just because the research results were not actually included in its report to the FDA, they were "reasonably related" to the development of FDA-required information in general. Thus, Merck's use of Integra's patented molecule was not a patent violation.
Impact:
Chalk up another win for Big Pharma. The probable loser, on the other hand, is Small Pharma. When a smaller innovative company invents a molecule sequence (or related scientific invention), it now has less claim to the exclusive use of it - particularly so since Big Pharma has the will and the resources to experiment with the patented invention. Now, whether Big Pharma's victory ultimately helps patients by stimulating further research...we'll just have to see.
There you have it. Next week should be a busy week at the Court, so I'll be back...