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February 17, 2023

Supreme Court Review: Criminal Cases

By: Sarah Medlin

Erwin Chemerinsky – Jesse H. Choper Distinguished Professor of Law and the Dean of University of California Berkely School of Law – holds a distinctive place in the minds of many former law school students. His Criminal Procedure: investigation textbook provided the foundation of my understanding of the protections that the federal Constitution provides to criminal defendants, and I still occasionally reference the book as I draft appeals for criminal defendants.

I had heard of his brilliance as a presenter, but I couldn’t fully understand his mystique until I saw his presentations on the October 2021 term of the United States Supreme Court. After speaking for an hour and a half about the Court’s civil cases without a single reference to a note, Dean Chemerinsky discussed the high court’s criminal cases, again without reference to any notes.

At the beginning of the Criminal Supreme Court Review, Dean Chemerinsky noted the overall reduction in size of the Supreme Court’s docket. But, he emphasized, there has been a disproportionate reduction in criminal cases. He provided three primary reasons for the decreasing criminal docket.

First, Congress has not passed many new criminal statutes that the Supreme Court has needed to interpret. Second, the Supreme Court has decreased its review of state supreme court cases. In fact, only three of the 54 cases during the 2021-2022 term reviewed decisions of state high courts. Finally, Chemerinsky noted that the Supreme Court’s agenda appears to have changed. The Court has demonstrated less interest in developing criminal law compared to the Burger Court. For example, since 1986, the Supreme Court has only taken one case dealing with an eyewitness identification.

As Chemerinsky shifted to addressing specific cases from the past term, he divided the cases into four categories: the Sixth Amendment, Indian law, habeas, and federal criminal statutes.

I. Sixth Amendment

United States v. Tsarnaev, 142 S. Ct. 1024 (2022)

Justice Thomas wrote for the majority. Justice Barret wrote a concurrence in which Justice Gorsuch joined, and Justice Breyer wrote a dissent in which Justice Sotomayor and Justice Kagan joined in part.

After the district court denied a change of venue for Tsarnaev, one of the alleged Boston Marathon bombers, Tsarneav requested that the court include specific media-content questions in the juror questionnaire. The district court declined to include those questions and only inquired whether the jurors had come to any conclusions about who was responsible for the bombing. The Court held that the district court has broad discretion to manage voir dire, so it did not abuse its discretion by prescribing a specific line of questioning.

The district court was also within its discretion when it excluded alleged mitigating evidence at the capital sentencing stage. Under the Federal Death Penalty Act, a district court may exclude mitigating evidence if its probative value was outweighed by risk of unfair prejudice, confusing the issues, or misleading the jury. This statute does not violate the Eighth Amendment.

Hemphill v. New York, 142 S. Ct. 681 (2022). 

Justice Sotomayor wrote for the Court. Justice Alito wrote a concurring opinion in which Justice Kavanaugh joined. Justice Thomas filed a dissent.

During trial, Hemphill informed the jury that police had found ammunition for a 9-millimeter gun in the nightstand of another person who had been present at the scene of a murder. In response, the State sought to admit the other person’s plea allocution, which admitted only that the person owned a .357 revolver. The trial court’s admission—over Hemphill’s objection—of the plea allocution transcript of an unavailable witness violated Hemphill’s Sixth Amendment right to confront the witnesses against him.

This case shows that the Court is unlikely to change its confrontation analysis from that provided by Crawford v. Washington, 541 U.S. 36 (2004).

II. Indian Law

Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022). 

Justice Kavanaugh wrote for the Court. Justice Gorsuch wrote a dissent in which Justices Breyer, Sotomayor, and Kagan joined.

In this case, a non-tribal member was prosecuted in state court for injuries to a Native American on tribal land. The defendant argued that, under McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020), the case should have gone to federal court. The Supreme Court held that federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.

This case could be read as a step to overruling McGirt or it could just be limiting the reach of McGirt so there is less of a push to overrule the case.

III. Habeas Corpus

Brown v. Davenport, 142 S. Ct. 1510 (2022).

Justice Gorsuch wrote for the Court. Justice Kagan filed a dissenting opinion in which Justices Breyer and Sotomayor joined.

When a state court has ruled on the merits of a state prisoner’s claim, a federal court cannot grant habeas relief without applying both the test the Supreme Court outlined in Brecht v. Abrahamson and the one Congress prescribed in the Antiterrorism and Effective Death Penalty Act of 1996; the U.S. Court of Appeals for the Sixth Circuit erred in granting habeas relief to Ervine Davenport based solely on its assessment that he could satisfy the Brecht standard.

Shinn v. Ramirez, 142 S. Ct. 1718 (2022).

Justice Thomas wrote for the Court. Justice Sotomayor wrote a dissenting opinion in which Justices Breyer and Kagan joined.

Shinn raised ineffective assistance of counsel for the first time in his habeas petition. The Court had previously held that a petitioner may raise ineffective assistance for the first time in a habeas petition if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Martinez v. Ryan, 566 U.S. 1 (2012). But in this case, the Court held that a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state court record based on the ineffective assistance of state postconviction counsel.

IV. Federal Criminal Laws

Wooden v. United States, 142 S. Ct. 1063 (2022). 

Justice Kagan wrote for the Court. Five of the other justices (Justices Sotomayor, Kavanaugh, Barrett, Thomas, and Gorsuch) either penned concurring opinions or joined concurring opinions.

The Court held that ten burglary offenses arising from a single criminal episode did not occur on different “occasions” and thus count as only one prior conviction under the Armed Career Criminal Act.

Concepcion v. U.S., 142 S. Ct. 2389 (2022).

Justice Sotomayor wrote for the Court. Justice Kavanaugh wrote a dissenting opinion in which Chief Justice Roberts, Justice Alito, and Justice Barrett joined.

Concepcion argued that he should be resentence because under the Fair Sentencing Act, passed one year after his conviction, he would not be considered a recidivist. The Court held that Section 404(b) of the First Step Act of 2018 requires district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence.

Ruan v. U.S., 142 S. Ct. 2370 (2022). 

Justice Breyer wrote for the Court. Justice Alito concurred in the judgement with an opinion in which just Justice Thomas joined and Justice Barrett joined in part.

In this case, the Court rejected the government’s argument that the “knowingly or intentionally” mens rea does not apply to the “except as authorized” clause of 21 U.S.C. § 841. Instead, the Court held that the word “knowingly” modifies the terms that distinguish innocent and wrongful acts. Therefore, for the crime of prescribing controlled substances outside the usual course of professional practice in violation of, the mens rea “knowingly or intentionally” applies to the statute’s “except as authorized” clause.

In closing, Chemerinsky remarked that the retirement of Justice Breyer and replacement with Justice Ketanji Brown Jackson will have both long-term and short-term consequences. In the criminal context, we might expect the Court to be a bit more defendant friendly because Justice Breyer often voted with the conservatives in criminal cases.

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Sarah Medlin

Marion County Public Defender Agency

Sarah Medlin is an appellate attorney for the Marion County Public Defender Agency in Indianapolis, Indiana. Sarah previously served as a law clerk to Indiana Supreme Court Justice Christopher Goff and Northern District of Indiana Senior Judge Robert L. Miller.