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January 13, 2021 Appellate Issues | Winter 2021

A Supreme Court Update by Dean Erwin Chemerinsky: October Term 2019 Criminal Cases

By Nancy M. Olson

On November 12, 2020, as part of AJEI’s Virtual Summit 2020, Chief Judge James E. Lockemy of the South Carolina Court of Appeals, Chair of AJEI’s Virtual Summit, welcomed almost 2,000 attendees from five of seven continents who had joined via WebEx to attend this program. Judge Lockemy gave a special welcome to military attorneys who joined the Virtual Summit from posts far and wide. AJEI presented this program at no charge as a way to thank past Summit attendees as well as welcome new attendees who may attend future Summits. 

Ever a popular AJEI Summit program, once again, Dean Chemerinsky provided valuable insight concerning Supreme Court cases and developments during the last term. After presenting a summary of notable civil cases from last term, Dean Chemerinsky turned to the term’s criminal cases. Dean Chemerinsky began by noting that, although 30-40% of the Court’s docket is typically criminal, last term there were far fewer criminal cases than usual, and they were less significant than usual. He believes this will continue through October Term 2020. 

Capital Punishment

Dean Chemerinsky flagged the first case, McKinney v. Arizona, 140 S. Ct. 702 (2020), as relevant to state court appellate judges. In, McKinney, a jury convicted the defendant of murder and the state court sentenced him to death. After he exhausted state proceedings, McKinney filed a habeas petition in federal district court, arguing that the state court conducted insufficient weighing of mitigating circumstances. The federal district court denied relief. But the Ninth Circuit, agreeing with McKinney, reversed. The Ninth Circuit sent the case back to the Arizona Supreme Court, which, after reweighing the aggravating and mitigating circumstances, concluded that the death sentence was appropriate. McKinney appealed to the Supreme Court, presenting a question of whether a state appellate court on its own could weigh those circumstances rather than sending the case back to the state trial court and a jury.

In a 5-4 decision, the Court ruled that a court of appeals (in this case, the Arizona Supreme Court) can conduct the reweighing, it does not have to be done by a jury. Justice Kavanaugh wrote for the Court, relying heavily on prior decision saying that state courts can conduct weighing. In between Eddings v. Oklahoma, 455 U.S. 104 (1982), and McKinney, the Supreme Court had decided Ring v. Arizona, 536 U.S. 584 (2002), in which the Court said it question for jury, but the Court clarified that ruling here. 

Before moving to the next criminal topic, Dean Chemerinsky noted Jones v. Mississippi, No. 18-1259 (argued Nov. 3, 2020), a case that will likely be decided this term. The Supreme Court has ruled that it is cruel and unusual punishment to impose capital punishment and life without the possibility of parole in non-homicide cases with a juvenile defendant. This case considers whether mandatory life without the possibility of parole for juveniles in non-homicide cases is likewise cruel and unusual punishment.

Fourth Amendment

In Kansas v. Glover, 140 S. Ct. 1183 (2020), the Court considered whether an officer had reasonable suspicion to conduct a car stop. In Glover, an officer ran the license plates of a driver and the plates came back as being registered to someone whose license has been suspended. Based on this information, the officer stopped the car. The Kansas Supreme Court ruled that this stop violated the Fourth Amendment because the registration information was not enough to create reasonable suspicion as to the driver. The state high court concluded the officer should have verified whether similarities existed between the driver and the person who came up on the registration as having a suspended license.

In an 8-1 decision, the Supreme Court reversed. Writing for the Court, Justice Thomas explained, there is no hard and fast rule for measuring reasonable suspicion: it has to be more than a hunch, but need not rise to the level of probable cause. At the oral argument, there was a lot of discussion about defining reasonable suspicion. The Court considered whether to look at probability, but declined to do so because reasonable suspicion is not something that is quantifiable. If an officer knows the car is registered to a suspended driver, this is enough to conclude the driver of that car is the one with suspended license. Even though others might drive a given car, the bar for reasonable suspicion is low, and the presumed link between a driver and a car satisfies it.

Justice Sotomayor dissented. She explained this decision makes it too easy for police to conduct a car stop. She finds this concerning given the fact that drivers are so often stopped based on race.

Dean Chemerinsky also noted the upcoming case of Torres v. Madrid, No. 19-292 (argued Oct. 4, 2020), in which a woman sitting in a parking lot saw some police officers and decided to drive away. Although the officers did not suspect her of anything, they followed her and ordered her to stop. After she refused, the officers shot and wounded her. After being wounded, the woman stopped, got into another car, and drove to the hospital to get treatment. This case asks the question of whether the woman was seized. In prior chase cases, the Court has ruled that a seizure does not occur until a suspect is tackled, but this case presents unique facts.

In another upcoming case, Lange v. California, No. 20-18 (set for argument Feb. 24, 2021), the Court will decide whether a warrant is required to enter a residence when officers are in hot pursuit of a suspect believed to have committed a misdemeanor. Although hot pursuit provides an exception to the warrant requirement for suspected felonies, it is an open question regarding misdemeanors.


Next, Dean Chemerinsky discussed Kelly v. United States, 140 S. Ct. 1565 (2020), commonly referred to as the “bridgegate” case. Here, officials in New Jersey state government became angry at the mayor of Fort Lee, New Jersey for not supporting Governor Chris Christie’s reelection bid. To get back at the mayor, the officials closed lanes and changed traffic patterns on the George Washington Bridge, thereby obstructing traffic and harming the residents of Fort Lee.

Federal fraud statutes cover conduct comprising fraud against the federal government or federal programs, as well as things like mail and wire fraud. The defendants challenged their convictions as not meeting these statutory requirements. After the Third Circuit affirmed the convictions, the Supreme Court reversed unanimously. Writing for the Court, Justice Kagan said the federal wire fraud statute requires a deceptive scheme to take money or property, which must be the objective of the conduct. Here, Justice Kagan explained the standard was not met because the defendants had no intent to obtain money or property. Rather, they wanted to obtain political gain and impose revenge, but lacking the objective of financial enrichment, the convictions failed. 

Considering this case alongside with McDonnell v. United States, 136 S. Ct. 2355 (2016), and Skilling v. United States, 561 U.S. 358 (2010), Dean Chemerinsky observed that the Supreme Court regards the federal fraud statutes as troublesome because they are written broadly. Through its interpretations, the Court is limiting them. Doing so requires a balancing between the rule of lenity, which requires narrow interpretation of criminal statutes, and a prosecutor’s ability to have the necessary tools to fight corruption. 

Indian Law

In McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the defendant was convicted in state court of sexual assault. He argued he could not be prosecuted in state court based on the terms of treaty with the Creek Nation, which said tribal members who are on tribal land cannot be prosecuted in state court, only in tribal or federal court. Oklahoma observed that a huge part of eastern Oklahoma is traditional tribal land, but argued the state should be able to police state-law violations in this part of the state.

In a 5-4 decision, the Court ruled for McGirt. Writing for the Court, Justice Gorsuch said statutes need to be enforced and treaties that make promises must also be enforced. The relevant treaty says tribal members cannot be prosecuted in state court, and the federal Major Crime Act says this jurisdictional division should be enforced. Justice Gorsuch cautioned that Congress would need to change the Major Crimes Act to change this result; courts cannot rewrite the law.

Chief Justice Roberts dissented, joined by Justices Alito and Kavanaugh, and joined in part by Justice Thomas, raising a number of practical considerations. Justice Roberts asked, what does this mean for all tribal members previously convicted of crimes in state court? But the majority held that concern for expediency should not change the result, which is based on treaty and statute enforcement. Dean Chemerinsky observed that the takeaway from this decision is, a promise is a promise. The decision continues to demonstrate that Justice Gorsuch will defend Native American rights. 

As to upending prior state court convictions, Dean Chemerinsky explained that the impact of this case will likely depend on whether the convicted person properly raised the same jurisdiction-based argument previously. If a defendant preserved the argument, there is a strong argument that McGirt would apply retroactively. If the defendant failed to preserve the argument, it would now be procedurally defaulted. A lot of litigation has arisen from this decision already, both in Oklahoma and in other states impacted by similar treaties, both in the criminal context as well as in other areas such as land-use and family law disputes.

Insanity Defense

Dean Chemerinsky noted that Kansas has eliminated the insanity defense. In Kahler v. Kansas, 140 S. Ct. 1021 (2020), the Court considered whether doing away with this defense violates due process. Here, the defendant killed four family members, but the defense had strong evidence of mental illness. The defense argued that disallowing the insanity defense violated the defendant’s right to due process.

In a 6-3 decision, the Court rejected this argument. Writing for the Court, Justice Kagan said there is nothing in the Due Process Clause that requires an insanity defense. Finding a due process violation equates with a finding that you cannot have justice without the claimed missing right. But that is not the case here. Justice Kagan explained that Kansas allows defendants to raise mental illness as a means to negate the required mens rea, and this is sufficient to meet due process because it provides some way for the defendant to present the same information. Justice Kagan observed that this case does not concern a situation where a state disallows the insanity defense and mental health evidence as it relates to mens rea. Rather, no violation occurred where the defendant could raise all of the same evidence as a means to try to negate mens rea, which would be enough to have it considered by the jury. 

Jury Trials

In Ramos v. Louisiana, 140 S. Ct.  1390 (2020), the Court considered the right to a unanimous jury verdict in criminal cases. By way of background, Dean Chemerinsky summarized how nearly all of the Bill of Rights has been incorporated against the states. When the Bill of Rights was adopted, the general consensus was that these rights could be asserted against the federal government. But the Supreme Court later ruled that, under the Due Process Clause of the Fourteenth Amendment, these rights can be applied against state and local governments if they are fundamental rights.

Under this paradigm, one by one, the Supreme Court began incorporating the Bill of Rights provisions against the states. This area of law continues to be subject to debate. On one side, some argue that all of the rights guaranteed by the Bill of Rights are fundamental and should apply to the states. On the other side, some seek selective incorporation, arguing that only limited rights should qualify as fundamental. To date, the Supreme Court has incorporated all of the protections in the Bill of Rights against the states except for the Third Amendment prohibition against quartering soldiers in the home, the Fifth Amendment guarantee to indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil cases. 

Dean Chemerinsky explained that under the Court’s incorporation jurisprudence, the Court has never drawn a distinction between what a give amendment says and what right is therefore granted by that amendment via the Due Process Clause (i.e., it applies in the same manner as to federal, state, and local governments). Dean Chemerinsky observed one exception, however, which is the right to a unanimous jury verdict in criminal cases. In Apodaca v. Oregon, 406 U.S. 404 (1972), the Court ruled that states may convict a defendant of a felony through a less-than-unanimous jury verdict.

Before Ramos, Oregon and Louisiana were the only states that allowed convictions on less-than-unanimous jury verdicts. Ramos asked whether the Sixth Amendment right to a unanimous jury verdict applies against the states. In a 6-3 decision written by Justice Gorsuch, the Court overruled its earlier decision in Apodaca. In Ramos, the Court held that states must have unanimous jury verdicts to obtain criminal convictions. Interestingly, both of the state laws allowing for non-unanimous criminal jury verdicts had racially motivated backgrounds (e.g., if a single black juror was unwilling to convict, the laws allowed for a conviction anyway). Dean Chemerinsky observed that this legislative history probably made a difference to some of the justices. 

Dean Chemerinsky concluded his criminal case review by noting that, in Edwards v. Vannoy, No. 19-5807 (argued Dec. 2, 2020), the Court is considering whether Ramos applies retroactively. To make this determination, he explained the Court will apply the test from Teague v. Lane, 489 U.S. 288 (1989), which asks whether the rule in question (1) puts a matter beyond the reach of criminal law, or (2) is a watershed rule of criminal procedure (i.e., a defendant could not have liberty or justice without it).

Although presented virtually for the first time, Dean Chemerinsky’s Supreme Court summary at the AJEI Summit continued to prove invaluable, this time to a much larger audience.

Nancy M. Olson


Nancy M. Olson is an attorney to the Patent Pilot Program in the U.S. District Court for the Central District of California. Before returning to the court, Nancy served as an Assistant United States Attorney for six years, where she argued over twenty cases before the Ninth Circuit Court of Appeals. Before serving as an AUSA, Nancy worked in private practice and served as a law clerk to a federal district court judge and a Ninth Circuit judge. Nancy has been a member of the Council of Appellate Lawyers since 2011, and has served as Editor of Appellate Issues since 2018.