February 18, 2020 Appellate Issues | Winter 2020

Supreme Court Review: Criminal

By Robert Smith

During the second hour of his talk on the recent Supreme Court term, Dean Erwin Chemerinsky used the time to highlight several criminal cases of interest. In his prefatory remarks, Dean Chemerinsky noted the recent history of the court and how Justice Scalia had not always provided the fifth vote in cases with the other conservative justices. Based on his votes, Justice Gorsuch appears to be following in the same path and joining with the liberal justices to create 5-4 decisions.

Fourth Amendment

Last term there was only one case. In the previous term, there were four, including some that were the most notable of the term. To understand Mitchell v. Wisconsin, 139 S. Ct. ___ (2019), you must be familiar with Missouri v. McNeely, 569 U.S. 141 (2013), and Birchfield v. North Dakota, 579 U.S. _ (2016). McNeely considered circumstances that justified taking blood without a warrant. Missouri argued to both the Missouri Supreme Court and the U.S. Supreme Court that the body metabolizes alcohol so rapidly that exigent circumstances exist allowing blood draws in certain circumstances. McNeely had refused to consent to a breath test after being stopped for moving violations. The officer noted several indications of intoxication and, after McNeely refused the breathalyzer test, the officer took McNeely to a medical center for a warrantless blood test. The test results indicated that McNeely was well above the legal limit.

Rejecting Missouri’s argument, in an 8-1 decision, Justice Sotomayor wrote that it is generally easy to obtain a blood test warrant. Piercing the skin is a significant intrusion. Applying a totality of the circumstances test, the court should determine if it was possible for police to get a warrant. If it is, the court should require one. Chief Justice Roberts concurred, but wanted a bright line rule. Justice Thomas dissented, finding that there are always exigent circumstances in a DUI case.

Three years later, the Court decided Birchfield. North Dakota criminalized refusing to take a test if the motorist was suspected of DUI. Justice Alito and the majority found that it could be a crime to refuse to submit to a breath test but a State could not criminalize refusing a blood test.  Balancing law enforcement interests and the privacy interest of motorists, the minimal invasion of a breath test was reasonable and not enough to impact the protected privacy interest. Justice Thomas dissented, reiterating that McNeely was wrongly decided. Justice Sotomayor dissented as well, finding no exigent circumstances. 

Returing to this term, police found Mitchell on a beach, wet, shirtless, covered in sand, and slurring his words. He was obviously intoxicated. When police took Mitchell for more testing, he passed out. Though he could not give his consent, police took his blood anyway and his blood alcohol was three times the legal limit.

In a 5-4 decision without a majority decision, the U.S. Supreme Court found that the blood draw and testing did not violate the Constitution. Justice Alito, writing for the plurality, found that when police encounter an unconscious motorist, there is a need to draw blood without a warrant. “There are almost always exigent circumstances that justify the police taking blood from an unconscious motorist without a warrant.” Justice Thomas concurred in the result, reaffirming his belief that warrantless blood draws should be allowed in all DUI cases, as there are always exigent circumstances. Justice Sotomayor dissented based on McNeely, finding that the police could have gotten a warrant, and noting the Court had already rejected the view that quickly metabolized alcohol was an exigent circumstance.

Mitchell v. Wisconsin serves as a limit on McNeely and Birchfield. When law enforcement officers encounter an unconscious motorist, exigent circumstances will always exist, allowing the warrantless taking of a blood sample.

Double Jeopardy

Next, Dean Chemerinsky discussed Gamble v. United States, 139 S. Ct. ___ (2019), first noting that, like so many other cases, the Defendant had a burnt-out head light on his car. Police stopped him for this violation and discovered that Gamble was a convicted felon illegally in possession of a firearm. He was prosecuted in an Alabama state court and sentenced to one year. The U.S. Attorney also prosecuted him under federal laws. Since he had been prosecuted at the state level for possessing the same gun at the same time, he sought to dismiss the charges. The District Court denied the motion citing the “separate sovereigns” exception to the double jeopardy clause. That exception holds that prosecution or acquittal in either state or federal court does not preclude prosecution in the other court. Gamble entered a conditional guilty plea and received a 4-year prison sentence. The Eleventh Circuit affirmed the conviction. The Supreme Court granted certiorari on only one issue – whether the separate sovereigns doctrine should be overruled.

In a 7-2 decision written by Justice Alito, the Supreme Court reaffirmed the “separate sovereigns” exception to the double jeopardy clause continues to exist. Justice Alito traced the separate sovereigns doctrine back to early American history. The doctrine is based on principles of federalism due to the independent and sovereign interest of the states and the federal government.

Dean Chemerinsky noted that Gamble is the case of the Dog that Didn’t Bark. Had the Court ruled the opposite way, the decision would have had major impacts on courts across the country.

Eighth Amendment / Death Penalty

Before addressing these cases, Dean Chemerinsky noted that most of the cases in this area were resolved with orders rather than opinions.

In early February, the Court considered a case from Alabama, Dunn v. Ray, 586 U. S. ____ (2019). Dominic Ray was a Muslim convicted of murder and sentenced to death. Five days before his execution, he obtained a stay of execution from the Eleventh Circuit because Alabama would not allow a Muslim clergy member to be present during the execution, but a Christian clergy member could. The Supreme Court lifted the stay allowing the execution to go forward. In its 5-4 ruling, without an opinion of the court, the Supreme Court cited a 1993 case holding that last minute requests for stays are disfavored. Justice Kagan dissented based on the government’s religious discrimination. Although the petition was filed late, it could not have been filed until Ray learned about the prohibition.

About six weeks later, the Court considered a case from Texas, Murphy v. Collier, 587 U. S. ____ (2019). Murphy, a convicted murderer facing execution, was Buddhist and sought to have a spiritual advisor present in the execution room. Texas policy only allowed Christian or Muslim religious leaders to be present The Court approved the stay by a 7-2 votewith Justices Thomas and Gorsuch dissenting.  

Next, Bucklew v. Precythe, 139 S. Ct. 1112 (2019), examined the method of execution in Missouri. The dissenting justices provided notable commentary.  Justice Breyer’s dissent turned back to Dunn v. Ray, 586 U.S. ___ (2019), and discussed that requiring stay requests to be filed earlier will only increase the chances that an innocent person will be executed. He wondered if it was possible to have a death penalty consistent with the Eighth Amendment. Justice Sotomayor’s dissent noted there is no court rule at the state or federal level that places time limits of death penalty stay requests. Courts should not be creating such rules on their own. Justice Gorsuch responded to both in a footnote, explaining that Murphy made his request 30 days prior to his execution while Ray filed his on the eve of execution, which explained the different results.

Though the Court had approved the stay in Murphy, six weeks later it issued further orders with Justice Alito now dissenting. He repeated his belief that last-minute stay requests in executions should be disfavored. Initially, Justice Alito’s belief aligned with the majority. Justice Cavanaugh agreed with the majority, but wrote separately to note that Texas changed its rules to allow a Buddhist to have a clergy member present.

With these developments, Dean Chemerinsky believes there are now five justices who disfavor last minute stay requests in death penalty cases, and four justices who believe the death penalty is cruel and unusual punishment.

Due Process

In Flowers v. Mississippi, 139 S. Ct. ___ (2019), Curtis Flowers had been tried six times for the same offenses. The same District Attorney prosecuted each of the cases. Previously, in Batson v. Kentucky, 476 U.S. 79 (1986), the Court held that a prosecutor cannot use race in making its preemptory strikes. Since Batson was decided, the holding has been expanded to criminal defendants, civil litigants, and gender. In a 7-2 decision authored by Justice Kavanaugh, the Court found Batson was violated when the same prosecutor struck 41 of 42 African-American jurors over six trials involving the same defendant. Although the decision did not break any new ground, the Court found it appropriate to look at the prosecutor’s strikes across all of the trials, not just the most recent one. The Court also examined the questions asked in voir dire, as the questions were different based on the race of the juror. Dean Chemerinsky added that California state law makes the issue of disparate questions irrelevant, but based on Flowers, in the context of federal constitutional law, the questions are relevant. Justice Thomas dissented, arguing that Batson was wrongly decided because race is relevant as it is important to how we look at the world and prosecutors should be able to use it when making jury decisions.

This was one of the rare cases where Justice Thomas asked a question in oral argument. Though the attorney for Flowers, Sheri Lynn Johnson, had not used all of her time and was waiving, Justice Thomas called her back to the lectern and inquired how many black jurors the defense had struck. Justice Sotomayor pointed out that the trial attorneys for Flowers only had one opportunity to strike a black juror because the State had already struck the others.

Dean Chemerinsky noted that he considers this case part of the Court’s “outrage docket.” It doesn’t create new law but exists to correct errors. The prosecutor’s actions in this case went too far.

Next, Dean Chemerinsky discussed United States v. Davis, 139 S. Ct. ___ (2019), which he believes could have broad implications for both federal and state courts.

The Armed Career Criminal Act imposes a 15 year sentence for a criminal defendant who has three of more prior convictions for crimes of violence and commits another crime of violence. Arson and Burglary are crimes in this category as well as an act that "otherwise involves conduct that presents a serious potential risk of physical injury to another." The last part of this definition became known as the "residual clause." In Johnson v. United States, 576 U.S. ___ (2015), the Supreme Court in an 8-1 decision struck down the ACCA’s residual clause – the expansive language which swept in other crimes of violence – as being unconstitutionally vague. The Court held that the residual clause failed to give sufficient notice or guidance to a reasonable person to know what is and is not included. The Court applied Johnson retroactively in Welch v. United States, 578 U.S. __ (2016).

Dean Chemerinsky explained there is similar residual clause-type language in dozens of federal laws as well as in California’s state laws, and he expects it is true in many other states as well. Which is why Sessions v. Dimaya, 584 U.S. ___ (2018), a case involving a residual clause at the end of a list of deportable aggravated felonies, was not unexpected. Writing for a 5-4 majority, Justice Kagan found no basis for distinguishing the residual clause in the deportation statute from that in the ACCA. Chief Justice Roberts dissented, pointing out that the ACCA was a criminal statute and the deportation statute was a civil matter. Justice Thomas likewise dissented, arguing that statutes shouldn’t be struck down on vagueness grounds. Justice Gorsuch concurred, but argued in favor of using the vagueness doctrine from an originalist perspective.

Davis involved the residual clause found in Title 18 U.S.C. § 924(c)(3)(B), which provides enhanced penalties for using a firearm during a “crime of violence.” In a 5-4 decision, Justice Gorsuch found the law unconstitutionally vague. Vague laws are void laws. There was no basis for distinguishing the residual clause here from those of Johnson and Dimaya because they all used the same language. Chief Justice Roberts dissented, arguing that the phrase was only an element of the crime, not the punishment for the crime like in the other cases.

Dean Chemerinsky ended his remarks in this section with a caution for anyone relying on a law with similar language at either the federal or state level. In light of these three decisions, a law with such a residual clause is most likely unconstitutional.

Sixth Amendment

To start his final section, Dean Chemerinsky turned to United States v. Haymond, 139 S. Ct. ___ (2019), which he called his sleeper case of the term. Haymond was a child pornography case. While on supervised release, Haymond violated the terms of his release. Based on a preponderance of the evidence, the judge returned him to prison for an additional five-year term. The case examined the appropriate standard to use before imposing a further term of imprisonment – a judicial finding by a preponderance of the evidence or a jury finding beyond a reasonable doubt? Previously, the Court had ruled in Apprendi v. New Jersey, 530 U.S. 466 (2000), that any factor other than a prior conviction that increases a sentence beyond the statutory maximum must be proven beyond a reasonable doubt to a jury. Apprendi’s holding was the basis for United States v. Booker, 543 U.S. 220 (2005), which made the federal sentencing guidelines advisory and not mandatory. In a 5-4 decision with no majority opinion, Justice Gorsuch wrote that Haymond was free and the revocation of supervised release means that he was put pack in custody and deprived of his liberty. Depriving someone of their liberty requires proof beyond a reasonable doubt and possibly a jury determination. Justice Gorsuch limited his opinion to the specific statute at issue, which imposes a five-year mandatory minimum following the commission of certain sex offenses by a federal supervised releasee. Justice Breyer concurred in the judgment and only as to this statute since the actions gave rise to a separate criminal offense. Justice Alito’s dissent argued that he could not distinguished between criminal statutes and thus Justice Gorsuch’s holding would make all supervised release revocation proceedings mandatory jury trials.

Dean Chemerinsky believes that this case has potential to lead to significantly more litigation unless there is clarification that the holding applies only as to this specific statute.

Finally, Dean Chemerinsky discussed Garza v. Idaho, 139 S. Ct. ___ (2019), which considered the effect of a guilty plea agreement containing a waiver of appeal. Garza wanted to file an appeal despite the language in his plea agreement barring him from doing so, but his attorney declined. By a 6-3 vote, Justice Sotomayor found that the failure to file the appeal was ineffective assistance of counsel. Even with an appeal waiver, there is always some possibility of an appeal due to government misconduct, ineffective assistance of counsel, or newly discovered evidence. Even with an appeal waiver in place, it is ineffective assistance of counsel when an attorney fails to file an appeal at the request of a criminal defendant. Under Roe v. Flores-Ortega, 528 U.S. 470 (2000), there is a presumption of prejudice when trial counsel fails to file an appeal as instructed. The Court ruled that Flores-Ortega’s presumption of prejudice applies, regardless of whether a defendant has signed a plea agreement containing an appeal waiver.

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Robert Smith

Robert Smith is General Counsel, Prosecuting Attorneys’ Council of Georgia. He obtained his BA from Wake Forest University and his JD from Mercer University. He has argued successfully before the Eleventh Circuit, Georgia Court of Appeals, and Georgia Supreme Court and is responsible for over 80 reported appellate decisions.

Robert also serves on the faculty at the Emory School of Law.