Spring 2007

Supreme Court Update

On Jan. 22, in Cunningham v. California, No. 05-6551, the Court held by a 5-4 vote (opinion by Ginsburg; dissents by Kennedy and Alito) that California’s determinate sentencing law (DSL) violated a defendant’s right to trial by jury because it placed sentence-elevating factfinding within the judge’s province.

Petitioner Cunningham was tried and convicted of continuous sexual abuse of a child under 14. Based on a post-trial sentencing hearing, the judge found by a preponderance of the evidence six aggravating facts, including the vulnerability of the victim, and one mitigating fact, that Cunningham had no record of prior criminal conduct. Under DSL, Cunningham’s offense was punishable by one of three terms of imprisonment: a lower term sentence of 6 years, a middle term sentence of 12 years, and an upper term sentence of 16 years. Without aggravating evidence, the judge would have been obligated to sentence Cunningham to the middle term of 12 years in prison. However, because he found that there was in fact aggravating evidence in the case, he sentenced Cunningham to the upper term of 16 years. The Court of Appeal of the State of California affirmed. The Supreme Court of California denied review but in an earlier decision held that DSL survived Sixth Amendment inspection.

The U.S. Supreme Court found that California’s DSL was comparable to the sentencing systems the Court had previously invalidated. The court held that factfinding to elevate a sentence is to be accomplished by the jury employing reasonable doubt standard, not by the judge determining where the preponderance of the evidence lies.

The Court also has heard or soon will hear arguments in the following cases:

Panetti v. Quarterman , 06-6407 – Does the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of severe mental illness, has a delusional belief as to why the State is executing him, and thus does not understand that his execution is intended to seek retribution for his capital crime? (The ABA filed a Section-sponsored amicus curiae brief in support of the petitioner in this case.)

Fry v. Pliler , 06-5247 - Under what circumstances should federal courts apply the harmless-error standard enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993), versus the harmless-error standard enunciated in Chapman v. California, 386 U.S. 18 (1967), to habeas corpus petitions filed by state prisoners under 28 U.S.C. §2254. If the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?

Roper v. Weaver , 06-313 - Since the Court has neither held a prosecutor's penalty phase closing argument to violate due process, nor articulated, in response to a penalty phase claim, what the standard of error and prejudice would be, does a court of appeals exceed its authority under 28 U.S.C. §2254(d)(1) by overturning a capital sentence on the ground that the prosecutor's penalty phase closing argument was “unfairly inflammatory?”

Utrecht v. Brown , 06-413 – Did the Ninth Circuit err by not deferring to the trial judge's observations and by not applying the statutory presumption of correctness in ruling that the state court decision to remove a juror was contrary to clearly established federal law when the trial judge determined that the juror's views on the death penalty would substantially impair his or her ability to follow the law and perform the duties of a juror?

TN Secnd’y Sch. Athl. Assn. v. Brentwood Academy , 06-427 – Whether the Sixth Circuit correctly held that TSSAA, a voluntary association composed primarily of public schools which adopts rules governing athletic competition between its members, violated the First Amendment and Due Process rights of Brentwood Academy when it imposed contractual penalties for violations of the recruiting rule against the use of “undue influence” in recruiting students for athletic purposes that Brentwood agreed to follow. ( Brentwood Academy is a private school that voluntarily chose to join TSSAA and agreed to abide by its rules, but now claims a First Amendment right to continue competing while violating TSSAA's rule).

BCI Coca-Cola Bottling Co. v. EEOC, 06-341 – Under what circumstances is an employer liable for racial discrimination in violation of Title VII of the Civil Rights Act of 1964, where the subordinate employee harboring the bias did not take the adverse employment action himself but did influence the decision.

Brendlin v. California , 06-8120 – Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop.

 

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