Criminal Justice Section  


Criminal Justice Magazine
Summer 2002
Volume 17 Issue 2

Cert Alert

Paul M. Rashkind

Leveling the Docket

The Supreme Court decided six criminal cases in the past three months, but kept its docket level by granting certiorari review in six new cases. So far, the Court has decided only 13 criminal cases on this Term’s docket, leaving another 17 to be decided. Members of the Court did, however, take time to write about its refusal to adopt a rule change, recommended by the Judicial Conference, which would have authorized long-distance testimony in criminal trials.

During the past three months, the Court decided three First Amendment cases involving laws to protect minors and the community from pornography and crime ( ACLU, Free Speech Coalition, and Alameda). It also decided the appellate standard of review for omissions during a guilty plea colloquy ( Vonn), the standard for overturning convictions resulting from conflict-ridden trial counsel ( Mickens), and the requisite administrative exhaustion under the Prison Litigation Reform Act ( Nussle).

New grants of certiorari include two California three-strikes decisions challenging the law as cruel and unusual punishment ( Lockyer and Ewing); application of the Double Jeopardy Clause to resentencing from life to a death sentence following a successful appeal ( Sattazahn); whether the Hobbs Act covers political protesters conducting sit-in demonstrations ( Operation Rescue); determining habeas exhaustion under AEDPA ( Abdur’Rahman); using habeas for a Batson challenge ( Miller-El); and the constitutionality of Alaska’s Sex Offender Registration Act ( Otte).

As of mid-May, the Court’s docket of undecided cases also includes many cases reviewed in the Fall 2001 and Spring 2002 issues of Criminal Justice: the trio of Apprendi-related questions ( Harris, Cotton, and Ring); the constitutionality of executing mentally retarded persons ( Atkins); review of the Eleventh Circuit’s strict limitation on the right of police to search bus passengers ( Drayton); the permissibility of imprisoning a person for a violation of probation originating from a proceeding without counsel ( Shelton); and the validity of a waiver of Brady disclosures contained in a written plea agreement ( Ruiz). Also remaining undecided is the computation of habeas time limitations under AEDPA ( Newland); the authority of a district judge to restore gun rights to a felon ( Bean); and the extent of Fifth Amendment privilege against self-incrimination retained by a prisoner in a sex abuse treatment program ( McKune).

Virtual confrontation

The Supreme Court considered and forwarded to Congress a number of noncontroversial changes to the Federal Rules of Criminal Procedure. One proposal was rejected, though, sparking fireworks in April.

As part of its package of criminal rules changes, the Judicial Conference recommended the adoption of a new Rule 26(b). The proposed rule authorized the use of two-way video transmissions in criminal cases, in the interest of justice, (1) in exceptional circumstances; with (2) appropriate safeguards; and (3) where the witness is unavailable, as that term is defined in Federal Rule of Evidence 804(a)(4)–(5). The rule change permitted a witness to testify, through technology, from a completely different location than the trial courtroom. The Supreme Court refused to forward the proposed rule to Congress, igniting a debate between Justices Scalia and Breyer about the proper role of the Court in transmitting rules changes to Congress. ( Amendments to Rule 26(b) of the Federal Rules of Criminal Procedure, 122 S. Ct. ___ (Apr. 29, 2002) (Statement of Scalia, J; Dissenting Statement of Breyer, J.).)

Justice Scalia, apparently writing for the majority of seven justices, explained that the Rule 26(b) proposal "is of dubious validity under the Confrontation Clause of the Sixth Amendment to the United States Constitution, and that serious constitutional doubt is an appropriate reason for this Court to exercise its statutory power and responsibility to decline to transmit a Conference recommendation." Justice Scalia found that the proposal did not meet the "case-specific finding" requirements of the Court’s decision in Maryland v. Craig, 497 U.S. 836 (1990), thereby allowing video transmission more often and on a lesser showing than is constitutionally acceptable. Justice Scalia described his Confrontation Clause issue quite simply: "Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones."

Justice Breyer’s dissent, joined by Justice O’Connor, disagreed about the possible unconstitutionality of the proposed rule change and the majority’s inability to fit the rule within the holding of Maryland v. Craig. Rather, he said, the proposal should have been transmitted to Congress, without being prejudged by the Court, subject to later review by the courts.

Justice Scalia replied: "We do not live under a system in which the motto for legislation is ‘anything goes, and litigation will correct our constitutional mistakes.’"

Congress has the final word. It may adopt the proposed rule regardless of the Supreme Court’s recommendation. But the issue likely gave us some of the best and most quotable lines of the Term.


Cruel and unusual punishment—Three Strikes. Lockyer v. Andrade, 122 S. Ct. 1434, Ewing v. California, 122 S. Ct. 1435, cert. granted in tandem (Apr. 1, 2002); reported below at 270 F.3d 743 (9th Cir. 2001) and 2002 WL 377041 (Cal. 1st Dist. Mar. 11, 2002) (unpublished). California’s Three Strikes Law, adopted in 1994, requires imprisonment for 25 years to life after conviction of a felony that follows two other convictions for serious or violent felonies. The third felony conviction need not be for a violent crime and can include convictions for crimes that could have been prosecuted as misdemeanors. The Ninth Circuit held that the law was cruel and unusual, as applied to Lockyer, since his third qualifying conviction was for petty theft—shoplifting nine videotapes worth $153. In Ewing, a California court of appeals upheld a three strikes sentence despite the fact that the third predicate crime was for shoplifting $399 worth of golf clubs, a felony, which could have been prosecuted as a misdemeanor (the value of stolen goods was only marginally higher than the misdemeanor amount). The Supreme Court granted certiorari in both cases to decide whether the California Three Strikes Law is cruel and unusual punishment. These cert grants follow Justices Souter’s and Breyer’s dissent to a denial of cert in a similar case, Durden v. California, 121 S. Ct. 1183 (2001) (dissent contending that issue was ripe for decision last Term).

Resentencing after reversal of life term. Sattazahn v. Pennsylvania, 122 S. Ct. 1294, cert. granted (Mar. 18, 2002); reported below at 763 A.3d 359 (2000). Defendant was convicted of a capital crime, but the jury deadlocked on the penalty phase, so he was sentenced to life imprisonment, as required by statute. He appealed his conviction and it was overturned. Upon retrial, he was again convicted and this time sentenced to death. The Pennsylvania Supreme Court upheld the death sentence, ruling that the Double Jeopardy Clause does not prevent it. The U.S. Supreme Court granted certiorari to decide whether the Double Jeopardy Clause does prevent imposition of the death penalty under the procedural posture of this case.

Appellate Review

Review of adequacy of guilty plea colloquy. United States v. Vonn, 122 S. Ct. 1043 (2002). During the taking of a guilty plea, the district court failed to advise the defendant of his right to counsel, as required by Federal Rule of Criminal Procedure 11(c)(3). Before sentencing, months later, the defendant changed his mind and sought to withdraw his guilty plea, raising as a basis the erroneous plea colloquy. His motion to withdraw was denied. The Supreme Court held that the omission during the guilty plea proceeding is subject to plain error appellate review, since the defendant failed to posit a timely objection to the oversight. This holding rejects the defendant’s contention that Fed. R. Crim. P. 11(h) has a special harmless error rule, which does not incorporate Fed. R. Crim. P. 52(b)’s plain error rule. The Court also held that, in determining if a defendant’s substantial rights have been violated by the error, the court of appeals is not limited to only the transcript of the guilty plea colloquy; it may consider other parts of the whole record, which occurred outside the plea colloquy, such as transcripts of the arraignment or first appearance hearing.

Habeas Corpus

Ineffective assistance of counsel—conflict of interest. Mickens v. Taylor, 122 S. Ct. 1237 (2002). Murder defendant was represented by the same lawyer who days earlier was representing the murder victim in a separate criminal case. The same judge who appointed the lawyer for the defendant entered an order dismissing the case against the victim, upon his death. Under such circumstances, must the defendant demonstrate actual conflict and adverse effect to prevail on a claim of ineffective assistance of counsel? Supreme Court held that a defendant must show an actual conflict of interest and an adverse effect in his counsel’s performance in order to establish a Sixth Amendment ineffectiveness violation, even where the lawyer is under an apparent conflict of interest and the trial court reasonably should have known of the conflict, yet failed to inquire into the potential conflict of interest.

Batson challenges. Miller-El v. Cockrell, 122 S. Ct. 981, 1202, cert. granted (Feb. 15, 2002, amended Mar. 4, 2002); decision below at 261 F.3d 445 (5th Cir. 2001). Question presented: "Did the Court of Appeals err in denying a certificate of appealability and in evaluating petitioner’s claim under Batson v. Kentucky?"

Exhaustion needed to avoid procedural default. Abdur’Rahman v. Bell, 122 S. Ct. 1463, cert. granted (Apr. 22, 2002); decision below at 226 F.3d 696 (6th Cir. 2000), reh’g and sugg. for reh’g en banc denied (Dec. 22, 2000). District court held that it was powerless to consider many of petitioner’s federal habeas claims because they had not been sufficiently presented in a petition for discretionary review to the Tennessee Supreme Court. The failure to exhaust to the state supreme court was a procedural default. The district court granted petitioner relief as to other claims in a ruling that was later reversed on appeal. While the appeal was pending, however, the Tennessee Supreme Court issued Rule 39 that, on its face, applies to petitioner’s case and that expressly "clarif[ies]" that such a discretionary application is not required for "exhaustion of state remedies for federal habeas corpus purposes." Thus, petitioner’s claims had been properly exhausted and there was no procedural default. ( See Randolph v. Kemna, 276 F.3d 401 (8th Cir. 2002) (applying similar Missouri rule); Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999) (Arizona), cert. denied, 529 U.S. 1124 (2000).) The Sixth Circuit, nonetheless, categorically refused to permit the district court to consider TN Rule 39 and, thus, to consider the merits of the claims that the district court had erroneously held to be defaulted. The petitioner moved in the district court for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), but the court of appeals held that every such motion is prohibited as a matter of law as a "second or successive" habeas application. In addition, before the mandate issued in the prior appeal, the petitioner separately moved in the court of appeals for a remand so the district court could apply TN Rule 39. But the court of appeals refused, notwithstanding that the petitioner would otherwise be prohibited from receiving any adjudication of his constitutional claims on the merits and would be executed as a result. U.S. Supreme Court granted certiorari review on two questions: (1) Whether the Sixth Circuit erred in holding, in square conflict with decisions of [the Supreme Court] and of other circuits, that every Rule 60(b) motion constitutes a prohibited "second or successive" habeas petition as a matter of law; and (2) whether a court of appeals abuses its discretion in refusing to permit consideration of a vital intervening legal development when the failure to do so precludes a habeas petitioner from ever receiving any adjudication of his or her claims on the merits.

Offenders’ Rights

Prisoner litigation. Porter v. Nussle, 122 S. Ct. 983 (Feb. 26, 2002). Nussle filed a federal civil rights action, complaining of harassment and intimidation by prison guards, without first filing a grievance under Connecticut’s Department of Corrections regulations. The federal Prison Litigation Reform Act includes a requirement that prisoners must exhaust their administrative remedies before filing a federal section 1983 action. The U.S. Supreme Court held that PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.

Sex offenders lists. Otte v. Doe, 122 S. Ct. 1062, cert. granted (Feb. 19, 2002); decision below at 259 F.3d 979 (9th Cir. 2001). Alaska’s version of Megan’s Law, the Alaska Sex Offender Registration Act, includes the Internet publication of a list of previously convicted sex offenders who have completed their punishment. The Ninth Circuit ruled the Act unconstitutional, holding that the Act had to be classified as punitive for purposes of the Ex Post Facto Clause, notwithstanding the state legislature’s nonpunitive intent, and, thus, could only be applied to sex offenders whose crimes were committed after its enactment. The Supreme Court has granted certiorari to review that determination.

First Admendment

Child Pornography Prevention Act. Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (Apr. 16, 2002). The Child Pornography Prevention Act of 1996, which proscribes as child pornography images that do not involve the use of real children, is unconstitutional, in violation of the First Amendment. The Act expanded the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U.S.C. § 2256(8)(A), but also "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," section 2256(8)(B), and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct," section 2256(8)(D). Relying principally on its obscenity decision in Miller v. California, 413 U.S. 15 (1973), and its child pornography decision in New York v. Ferber, 458 U.S. 747 (1982), the Court found that section 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and that the reasons the government offered to limit freedom of speech had no justification in First Amendment law. The Court also found section 2256(8)(D) to be substantially overbroad. Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that such scenes will be found in the movie. The determination turns on how the speech is presented, not on what is depicted. Proscribed material is tainted and unlawful in the hands of all who receive it, though they bear no responsibility for how it was marketed, sold, or described. Thus, the Act does more than prohibit pandering. It bans possession of material pandered as child pornography by someone earlier in the distribution chain, as well as a sexually explicit film that contains no youthful actors but has been packaged to suggest a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled. The First Amendment requires a more precise restriction.

Child Online Protection Act. Ashcroft v. American Civil Liberties Union, 122 S. Ct. ___ (May 13, 2002). The Child Online Protection Act, 47 U.S.C. § 231, bans knowingly making communication on the Internet, in interstate or foreign commerce, "that is available to any minor and that includes any material that is harmful to minors." Content is determined by applying "contemporary community standards" to ascertain if the material was designed to pander to minors’ prurient interest. The Third Circuit barred enforcement of the law, holding that it likely violates the First Amendment. In a somewhat fragmented 8-1 decision, the U.S. Supreme Court reversed, holding that the law’s reliance on community standards does not, by itself, render the statute overbroad. This answer, though, is not dispositive of other First Amendment claims of overbreadth, such as whether the law is unconstitutionally vague or whether it passes strict scrutiny. The case was remanded back to the lower courts to address these issues. The government remains enjoined from enforcing the law absent further action by the lower courts.

Application of Hobbs Act to protesters. Operation Rescue v. National Organization for Women, 122 S. Ct. ___, cert. granted (Apr. 22, 2002); reported below at 267 F.3d 687 (7th Cir. 2001). In a civil case involving injunctive relief and private civil actions, the following question has been raised for Supreme Court review: Does the Hobbs Act, which makes it a crime to obstruct, delay, or affect interstate commerce "by robbery or extortion," and which defines "extortion" as obtaining property of another with the owner’s consent when such consent is induced by the wrongful use of violence or fear, criminalize activities of political protesters who engage in sit-in demonstrations that obstruct public access to business premises and interfere with customer’s access to the business’s services?

Crime zoning. Los Angeles v. Alameda Books, Inc., 122 S. Ct. ___ (May 13, 2002). Los Angeles Municipal Code § 12.70(C) (1983), as amended, prohibits the establishment or maintenance of more than one adult entertainment business in the same building, structure, or portion thereof. The ordinance was based on a 1977 study concluding that concentrations of adult entertainment are associated with high crime in the surrounding neighborhood. Two adult establishments that each operated an adult bookstore and an adult video arcade in the same building filed a section 1983 suit seeking declaratory and injunctive relief, alleging that section 12.70(C) violates the First Amendment. The district court granted summary judgment, finding that the prohibition was a content-based regulation of speech that failed strict scrutiny. The Ninth Circuit affirmed, but on different grounds, holding that, even if section 12.70(C) were a content-neutral regulation, the city failed to demonstrate that the prohibition was designed to serve a substantial government interest. The court of appeals found that the city failed to present evidence upon which it could reasonably rely to demonstrate a link between multiple-use adult establishments and negative secondary effects. Therefore, the court of appeals held the city’s prohibition on such establishments invalid under Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and precedents interpreting that case. The Supreme Court reversed and remanded, holding that the city may reasonably rely on a study it conducted some years before enacting the present version of section 12.70(C) to demonstrate that its ban on multiple-use adult establishments serves its interest in reducing crime.


Paul M. Rashkind is a supervisory assistant federal public defender and chief of appeals for the Office of the Federal Public Defender, Southern District of Florida, in Miami. He also serves on the adjunct faculty of the University of Miami School of Law. He is current Section vice-chair for publications, chair of the Book Publishing Committee, and a contributing editor to Criminal Justice magazine.

Return to Table of Contents - Summer 2002

Return to Criminal Justice magazine home page