Winter 2003

Supreme Court Update:
High Court Considers Important Individual Rights Issues

The U. S. Supreme Court opened its 2002-03 term on Monday, Oct. 7, with a docket that includes cases concerning cross burning, California's "three strikes" law, capital punishment, and legal representation in capital cases, among numerous issues of importance to the Section.

The Court also will decide important issues involving affirmative action and gay rights. Grutter v. Bollinger concerns the University of Michigan Law School's admissions process, and Lawrence and Garner v. Texas challenges the constitutionality of Texas' sodomy law (see related story, p. 1).

On Dec. 11, the Court heard oral arguments in Virginia v. Black (01-1107), in which the issue is whether a Virginia statute that bans "cross burning with intent to intimidate" violates the First Amendment, even if the statute is not limited to any racial, religious or other content-based category of message. During the presentations, Justice Clarence Thomas, who usually remains quiet during oral argument, spoke passionately of the effects of acts of cross burning, stating that the Ku Klux Klan and nearly 100 years of lynchings in the South constituted "a reign of terror, and the cross was a symbol of that reign of terror [that contained] no communication, no particular message. It was intended to cause fear and to terrorize a population."

On Nov. 5, the Court heard arguments in Ewing v. California (01-6978) and Lockyer v. Andrade (01-1127), both of which concern whether California's "three-strikes" law mandating a 25-years-to-life prison term for a third criminal conviction, regardless of the severity of the crime, violates the Eighth Amendment's prohibition against cruel and unusual punishment when applied to an offender whose "third strike" conviction is for petty theft, with a prior theft-related conviction.

After holding in Atkins v. Virginia last term that the execution of mentally retarded individuals is unconstitutional, the Court will decide several more important capital punishment issues this term. On Nov. 19, the Court granted certiorari in Wiggins v. Corcoran (02-311) to determine whether a defense attorney's failure to investigate available mitigation evidence constitutes ineffective assistance of counsel. The case could help clarify standards for legal representation in capital cases. The ABA has filed an amicus curiae brief in the case. The court declined to hear Wiggins' appeal of his conviction.

On Oct. 16, the Court heard arguments in Miller-El v. Cockrell (01-7662), in which it will decide whether the U. S. Court of Appeals for the Fifth Circuit erred in denying a certificate of appealability and in evaluating petitioner's claim of racial bias under Batson v. Kentucky, 476 U. S. 9 (1986), in which the Court held that removal of potential jurors must be race-neutral. In Miller-El, the Court is expected to clarify the analysis required for resolving such a claim. Ten of 11 black potential jurors were rejected by prosecutors during jury selection for Miller-El's trial.

On Dec. 10, in a one-sentence per curiam opinion, the Court dismissed Abdur'Rahman v. Bell (01-9094) as "improvidently granted." Abdur'Rahman, who has been on Tennessee's death row since 1987, claimed that the prosecutor in his case had hidden exculpatory evidence, but no court has ever ruled on the merits of his claim. Had his filing in federal court been considered a "Rule 60(b)" motion to challenge the district court's final order rejecting this claim, he might have been entitled to a hearing under Rule 39 of the Rules of the Supreme Court of Tennessee regarding "Exhaustion of Remedies." But the U. S. Court of Appeals for the Sixth Circuit ruled that the filing was a second or successive petition for habeas corpus, banned by the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) and therefore foreclosing a hearing on the prosecutorial misconduct claim. Justice Stevens dissented.

On Nov. 4, 2002, the Court voted unanimously, without having heard oral argument, to reverse the U. S. Court of Appeals for the Ninth Circuit's decisions in Woodford v. Visciotti (02-137) and Early v. Packer (01-1765), holding in separate per curiam opinions that the Ninth Circuit had exceeded its authority under the AEDPA, which forbids the federal courts from hearing the appeal of a state death row inmate unless the state court's ruling is "contrary to . . . clearly established federal law as determined by the Supreme Court of the United States." In Woodford, the Ninth Circuit had granted habeas relief on the basis of ineffective assistance of counsel; in Early, on the basis of coercion of the jury verdict by the state trial judge. The Court's reversals restore the death sentences in each case.

Also on Nov. 4, the Court heard arguments in Sattazahn v. Pennsylvania (01-7574), in which it will decide whether the Fifth Amendment's due process clause prohibits imposing a death sentence upon an individual who, after having been sentenced to life imprisonment as a matter of law following the sentencing jury's inability to decide upon a sentence, obtained reversal of his conviction on appeal and, following re-trial, was convicted again of capital murder.

On Oct. 21, the Court denied certiorari in Stanford v. Parker (01-10009). Sentenced to death for a murder he committed as a juvenile, Stanford had asked the Court to reconsider the constitutionality of executing people who were under the age of 18 at the time they committed capital offenses. Justice Stevens dissented, asserting that "[t]he practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society" and therefore the Court "should put an end to this shameful practice."

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