Supreme Court Cases of Interest

Hemphill is the latest addition to a long string of Confrontation Clause cases the Court has decided since Crawford v. Washington revolutionized the field nearly two decades ago. But while many of those cases have been 5-4 decisions, Hemphill proved less divisive. The defendant in Hemphill was on trial for murder. He claimed that a different person, Nicholas Morris, had committed the crime, and elicited testimony from a police witness that officers had recovered ammunition from Morris’s nightstand of the same type used in the murder. Prosecutors then sought to introduce Morris’s plea allocution transcript to show that Morris admitted only to possessing a different type of weapon. Although Morris was unavailable to testify and thus be cross-examined, the trial court allowed the prosecution to introduce the transcript, reasoning that Hemphill had “open[ed] the door” by suggesting that Morris was the shooter.

In an opinion by Justice Sotomayor and joined by every other justice save Justice Thomas, the Court reversed. The majority rejected New York’s rule under which a defendant effectively forfeits his Confrontation Clause rights by “opening the door” through offering a “misleading impression” that the prosecution would seek to correct with hearsay testimony. Under the Confrontation Clause, the Court explained, “it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading. . . . Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression.”

Justice Alito, joined by Justice Kavanaugh, concurred to suggest that Hemphill did not rule out the possibility that other kinds of conduct by defendants could be treated as a waiver of their Confrontation Clause rights. Justice Thomas was the lone dissenter, and he did not challenge the majority’s Confrontation Clause ruling; his dissent was premised on his view that Hemphill had not properly preserved his constitutional argument.

While Hemphill did not sharply divide the Court, don’t expect every case on the Court’s docket to produce so much consensus. With more than a dozen criminal justice cases yet to be decided, the Court will surely find some of them more fractious. Hemphill could be the calm before the storm.

Pending Supreme Court Criminal Law & Procedure Cases To Date

Crimes and Offenses—Armed Career Criminal Act

Wooden v. United States, No. 20-5279

Argument Date: October 4, 2021

Question Presented:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory definition with regard to the vague term “committed on occasions different from one another”?

Habeas—Standard for Constitutional Error

Brown v. Davenport, No. 20-826

Argument Date: October 5, 2021

Question Presented:

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

Section 1983—Favorable Termination Rule

Thompson v. Clark, No. 20-659

Argument Date: October 12, 2021

Question Presented:

Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” Laskar v. Hurd, 972 F.3d 1278, 1293 (11th Cir. 2020), or that the proceeding “ended in a manner that affirmatively indicates his innocence,” Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018); see also Laskar, 972 F.3d at 1293 (acknowledging 7-1 circuit conflict).

Death Penalty—Sentencing/Pretrial Publicity

United States v. Tsarnaev, No. 20-443

Argument Date: October 13, 2021

Questions Presented:

1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.
2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.

Death Penalty—Execution Conditions

Ramirez v. Collier, No. 21-5592

Argument Date: November 9, 2021

Questions Presented:

Under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc–2000cc-5, and Free Exercise Clause, does the State’s decision to allow petitioner’s pastor to enter the execution chamber, but forbid the pastor from laying his hands on his parishioner as petitioner dies, substantially burden the exercise of petitioner’s religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest?

Under RLUIPA and the Free Exercise Clause, does the State’s decision to allow petitioner’s pastor to enter the execution chamber, but forbid the pastor from singing prayers, saying prayers or scripture, or whispering or otherwise vocalizing prayers or scripture, substantially burden the exercise of petitioner’s religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest?

Crimes and Offenses—The Hobbs Act

United States v. Taylor, No. 20-1459

Argument Date: December 7, 2021

Question Presented:

Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

AEDPA

Shinn v. Ramirez, No. 20-1009

Argument Date: December 8, 2021

Question Presented:

The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(e)(2), precludes a federal court from considering evidence outside the state court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, subject to only two statutory exceptions not applicable here. In the cases below, the Ninth Circuit concluded that AEDPA’s bar on evidentiary development does not apply to a federal court’s merits review of a claim when a court excuses that claim’s procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), because the default was caused by postconviction counsel’s negligence. The question presented, which drew an eight-judge dissent from the denial of en banc rehearing in each case, is: Does application of the equitable rule this Court announced in Martinez v. Ryan render 28 U.S.C. § 2254(e)(2) inapplicable to a federal court’s merits review of a claim for habeas relief?

Federal Sentencing

Concepcion v. United States, No. 20-1650

Argument Date: January 19, 2022

Question Presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

Fifth Amendment—Double Jeopardy

Denezpi v. United States, No. 20-7622

Argument Date: February 22, 2022

Question Presented:

Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.

Crimes and Offenses—Drug Distribution

Ruan v. United States, No. 20-1410

Argument Date: March 1, 2022

Question Presented:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

Not Yet Set For Oral Argument

State Jurisdiction in Indian Country

Oklahoma v. Castro-Huerta, No. 21-429

Question Presented:

Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country.

Capital Punishment—Method-of-Execution Challenges

Nance v. Ward, No. 21-439

Questions Presented:

(1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and

(2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

Section 1983—Miranda Violations

Vega v. Tekoh, No. 21-499

Question Presented:

Whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda v. Arizona.