Criminal Justice Section  


Criminal Justice Magazine
Winter 2004
Volume 18 Number 4

Cert Alert

Power and Secrecy of Courts Highlight New Term

Paul M. Rashkind

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 the Section’s vice-chair for publications, chair of the Book Committee, and a contributing editor to Criminal Justice magazine.

The Supreme Court began its 2003 Term by grant-ing certiorari in 15 criminal cases, deciding two with summary opinions, and addressing three cases arising out of the war on terrorism. The Court agreed to determine if federal courts have habeas corpus jurisdiction over foreign nationals captured in post-9/11 hostilities and now held at Guantanamo Bay Naval Station in Cuba (Rasul). It also ordered the government to respond to claims that a federal district court and court of appeals violated the First Amendment and the common-law right of public access to court proceedings by holding entirely secret court proceedings, with no public docket or other public record that the proceedings ever existed (M.K.B.). 

Two other cases addressing First Amendment concerns were granted certiorari review, one directed at the constitutionality of the Child Online Protection Act (Ashcroft), and the other analyzing the requisite prompt review of license denials for sexually explicit businesses (Z.J. Gifts). The federal nexus requirement of another federal law, outlawing bribery of state and local officials, will be examined, and, depending upon the answer to that question, the Court may decide if the law’s application to state and local public officials is an unconstitutional exercise of congressional powers (Sabri). The nature of congressional powers will also be explored in the context of tribal sovereignty and double jeopardy (Lara).

The Court continues to add Fourth Amendment exclusionary rule cases to its docket (Flores-Montano, Thornton); the war on terrorism meets Terry stops (Hiibel); and applying Fifth Amendment protections to juveniles will be addressed in the context of a habeas corpus case (Alvarado). The Court also agreed to review how detailed of an admonishment must be given to a defendant who chooses self-representation (Tovar).

In addition to Guantanamo detainees and juveniles, the Court will decide other habeas corpus questions: the retroactivity of its 1988 rule barring jury instructions limiting the use of mitigating evidence in a death penalty case (Beard); whether the actual innocence exception applies in noncapital cases (Haley); and whether the statutory deference owed state court proceedings may be overcome where the state fails to extend a rule of Supreme Court precedent to a new area (Alvarado). A Texas court’s limiting death penalty jury instruction relating to the impact of a uniquely severe handicap will be reviewed as a possible misapplication of Supreme Court precedent (Smith).

The rule of Apprendi returns to the Court’s docket, ostensibly addressing only its application to a state sentencing scheme, but with potentially broad implications under the federal Sentencing Guidelines (Blakely).

In its initial decision of the Term—a per curiam summary opinion entered without full briefing or oral argument—the Court deferred to a state court determination that a lawyer was not ineffective, even though he stressed in jury argument that his client was a “bad person,” “lousy drug addict,” “stinking thief,” and “jail bird” (Gentry).  Its second decision, also a per curiam opinion, deferred to the harmless error analysis of a state court, permitting a conviction to stand even though the indictment was defective (Esparza).

This interesting blend of new cases concludes with the practical question of attorneys’ fees under the Equal Access Under Justice Act. The Court will decide the proper interpretation of the Act’s 30-day limitations period in cases for which fees are authorized (Scarborough).

War on Terrorism Litigation

Federal habeas jurisdiction. Rasul v. Bush & Al Odah v. United States, 124 S. Ct. ___, cert. granted, Nov. 10, 2003; (consolidated); decision below at 321 F.3d 1134 (D.C. Cir. 2003). Do the United States courts lack jurisdiction to consider challenges to the legality of detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba?

Secret civil proceedings. M.K.B. v. Warden, 124 S. Ct. 386, motion to file redacted petition granted, Oct. 6, 2003. (Court request for government response, Nov. 3, 2003; pending conference.) Do federal courts fail to comply with common-law and First Amendment jurisprudence governing public access to court filings and proceedings, where the lower courts seal all court filings in a federal habeas corpus case, as well as the entire docket of proceedings in the district court and the court of appeals, without articulating any findings to support sealing, and without considering the possibility of merely redacting those portions of the filings for which sealing might be legally justified?

Requesting ID. Hiibel v. Sixth Judicial District Court of Nevada, 124 S. Ct. 430, cert. granted, Oct. 20, 2003; decision below at 59 P.3d 1201 (Nev. 2002). Does the war on terrorism permit a police officer to demand that a suspect produce identification, or face criminal conviction for obstructing a police officer? Nevada Supreme Court upheld the practice and conviction 4–3, over a strong dissent that the decision “has allowed the first layer of our civil liberties to be whittled away.” The dissent contends that “the right to wander freely and anonymously, if we so choose, is a fundamental right of privacy in a democratic society,” but the majority echoed the president’s call that the war on terrorism “is a different kind of war that requires a different type of approach and a different mentality.” The case arose when a deputy was dispatched in response to a complaint that a man struck a girl in a truck. When the deputy arrived at the site, the deputy saw Hiibel by a truck and a young girl inside the truck. Believing he was intoxicated, the deputy sought Hiibel’s ID and with Hiibel’s refusal, arrested him.

First Amendment

Child Online Protection Act. Ashcroft v. American Civil Liberties Union, 124 S. Ct. 399, cert. granted, Oct. 14, 2003; decision below at 322 F.3d 240 (3d Cir. 2003). Is the Child Online Protection Act, which criminalizes knowing communication for commercial purposes on the Internet of any material that is harmful to minors, unconstitutionally broad and in violation of the First Amendment?

Denial of business licensing. Littleton, Colo. v. Z.J. Gifts D-4, 124 S. Ct. 383, cert. granted, Oct. 14, 2003; decision below at 311 F.3d 1220 (10th Cir. 2003). Does the requirement of prompt judicial review of license denials for sexually related businesses entail a prompt judicial determination, or merely a prompt commencement of judicial proceedings?

Exclusionary Rule

Border searches. United States v. Flores-Montano, 124 S. Ct. 385, cert. granted, Oct. 14, 2003. The district court suppressed pot found in a vehicle fuel tank during a routine border search. The court of appeals summarily affirmed, holding that the search of a fuel tank does not fit within “routine” border search exception to the Fourth Amendment. Question: Are Customs Service officers at the international border required by the Fourth Amendment to have reasonable suspicion before removing, disassembling, and searching a vehicle’s fuel tank for contraband?

Vehicle search incident to arrest. Thornton v. United States, 124 S. Ct. 463, cert. granted, Nov. 3, 2003; decision below at 325 F.3d 189 (4th Cir. 2003). The Supreme Court will address the application of the search incident to arrest doctrine to the search of a vehicle in conjunction with the arrest of a driver after the driver has exited the vehicle. In Gant v. Arizona, the Arizona court suppressed evidence, holding that officers may not search the entire passenger compartment of a vehicle and all containers in it as a contemporaneous incident of a lawful arrest, unless the officer initiates contact with the defendant while the defendant is still in the automobile, and the officer subsequently arrests the defendant. Cert was originally granted in Gant last Term, but the decision was vacated this Term and remanded for reconsideration by Arizona courts, 123 S. Ct. 461 (Oct. 20, 2003) (summarily reversing and remanding for reconsideration by state court). Thornton raises the same question and by granting certiorari, the Court has kept this issue on the docket. In Thornton, the Fourth Circuit upheld the vehicle search, even though the suspect had already parked his car and exited the vehicle before police initiated contact with him.

Interpretation and Constitutionality of Federal Legislation

Tribal sovereign immunity and double jeopardy. United States v. Lara, 124 S. Ct. 46, cert. granted, Sept. 30, 2003; decision below at 324 F.3d 635 (8th Cir. 2003) (en banc). In a 1990 decision of the U.S. Supreme Court, Duro v. Reina, 495 U.S. 676 (1990), it determined that the retained or inherent authority of an Indian tribe does not include authority to criminally prosecute nontribal members. Congress then passed remedial legislation permitting such prosecutions. The defendant was first prosecuted by a tribe, and then sought double jeopardy protection against a prosecution by the federal government. Court of appeals held that the legislation, 25 U.S.C. § 1301, cannot overrule a Supreme Court decision, so its grant of powers is ineffective. The court of appeals noted the distinction between the two sources of tribal powers—retained sovereignty and congressional delegation—and concluded that the Supreme Court’s decision limiting retained sovereignty could not be overruled by congressional delegation. Question: Does the Act validly restore the tribes’ sovereign power to prosecute members of other tribes so that a successive federal prosecution is barred by double jeopardy?

Bribery of state and local government agents, 18 U.S.C. § 666(a)(2). Sabri v. United States, 124 S. Ct. 387, cert. granted, Oct. 14, 2003; decision below at 326 F.3d 937 (8th Cir. 2003).  Title 18 U.S.C. § 666(a)(2) allows a federal prosecution of those who bribe state or local government officials of entities that receive federal funding. The court of appeals held that the prosecution did not need to prove a nexus between the offense conduct and federal funding. Question: Does 18 U.S.C. § 666(a)(2) criminalize acts of bribery lacking a federal nexus and, if so, is the statute an unconstitutional exercise of congressional powers?


Apprendi again. Blakely v. Washington, 124 S. Ct. 429, cert. granted, Oct. 20, 2003; decision below at 47 P.3d 149 (Wash. App. 2003). The defendant kidnapped his wife and child. At sentencing, he received an “exceptional sentence” based on aggravating facts of deliberate cruelty and commission of a domestic violence offense before a child. Those facts had not been found by a jury (nor, apparently, had they been charged in a charging document). Question: Must a fact (other than a prior conviction) necessary for an upward departure from a statutory standard sentencing range be proved according to the procedures mandated by Apprendi v. New Jersey, 530 U.S. 466 (2000)?

Cruel and unusual punishment. Smith v. Dretke, 123 S. Ct. 399, cert. granted, Sept. 30, 2003, consolidated with Tennard v. Dretke, 124 S. Ct. 383, cert. granted, Oct. 14, 2003; decisions below at 311 F.3d 661 (5th Cir. 2003), 317 F.3d 476 (5th Cir. 2003). The trial court refused to give mitigation instruction on the evidence that the defendant was disadvantaged or has emotional or mental problems. The Fifth Circuit held that failure to give special instruction on such mitigating circumstances did not constitute constitutional error in death phase sentencing. Question: Did the Fifth Circuit misapply Penry v. Johnson, 532 U.S. 782 (2001), by imposing a requirement that evidence demonstrate “uniquely severe handicap” in order for a Texas capital murder defendant to claim that the “nullification” instruction was improper?

Habeas Corpus

Actual innocence exception. Dretke v. Haley, 124 S. Ct. 385, cert. granted, Oct. 14, 2003; decision below at 306 F.3d 257 (5th Cir. 2003). The court of appeals held that the actual innocence exception to the habeas corpus procedural default rule does not apply to noncapital cases, unless the claim relates to the application of the habitual offender sentencing scheme. Question: Does the actual innocence exception to the procedural default rule apply to a noncapital sentencing error?

Retroactivity of Mills v. Maryland. Beard v. Banks, 124 S. Ct. 45, cert. granted, Sept. 30, 2003; decision below at  316 F.3d 228 (3d Cir. 2003). The court of appeals held that Mills v. Maryland, 486 U.S. 367 (1988) (barring use of jury instruction prohibiting jurors in capital cases from considering mitigating circumstance absent unanimous agreement that such factor exists), was not a new rule of constitutional law and the instruction and verdict form here violated Mills by allowing the jury to mistakenly infer that the unanimity requirement applied to both aggravating and mitigating factors. Questions: (1) Is Mills a new Teague-barred rule and, thus, not retroactively applicable to a defendant seeking collateral relief? (2) Where the state supreme court has rejected a Mills challenge on the basis that neither the jury instructions nor the verdict form required such unanimity, is that decision a reasonable application of Supreme Court precedent?

Extension of clearly established precedent as basis for establishing violation of clearly established precedent. Yarborough v. Alvarado, 124 S. Ct. 45, cert. granted, Sept. 30, 2003; decision below at  316 F.3d 841 (9th Cir. 2003). The court of appeals held that Miranda’s custody determination for a juvenile, like the determination of voluntariness and waiver, required consideration of the juvenile’s age; and that failure to apply related Supreme Court authority to the custody question was objectively unreasonable, warranting habeas relief. Questions: Does the Miranda “in custody” determination require consideration of the age and experience of the person interrogated if such person is a juvenile? (2) Can a state court adjudication be “objectively unreasonable” under the AEDPA because it failed to “extend” a rule of Supreme Court precedent to a new context?

Deference to state court determination of harmless error. Mitchell v. Esparza, 124 S. Ct. 7 (Nov. 3, 2003) (per curiam). Habeas corpus relief to a death row inmate was reversed on the ground that the state decision affirming the death sentence was not “contrary to” or an “unreasonable application of” clearly established federal law. Esparza claimed that the failure of the indictment to charge him expressly as the “principal offender” constituted an Eighth Amendment violation. Applying harmless-error analysis, the Ohio courts rejected this argument, pointing out that because Esparza was the sole defendant, he had to be the “principal” offender, and any defect in the indictment was harmless. The Sixth Circuit affirmed a grant of federal habeas relief, holding that harmless error review did not apply in Eighth Amendment capital cases. Reversing, and citing Neder v. United States, 527 U.S. 1 (1999), the Supreme Court pointed out that the harmless error standard applied in noncapital cases involving the same type of error. The Court found only “ambiguous” precedent regarding whether the harmless-error standard was inapplicable to this type of error in capital cases. Consequently, the Ohio state courts’ decisions were not “contrary to” or “an unreasonable application of” federal law. The Court added that the application of the harmless-error standard was not objectively unreasonable.  There was no evidence or suggestion that anyone other than the defendant was involved in the robbery and murder, so it was not unreasonable to find harmless the omission of a reference to the “principal” offender.

Right to Competent Counsel, Waiver, Fees

Ineffective assistance of counsel. Yarborough v. Gentry, 124 S. Ct. 1 (Oct. 20, 2003) (per curiam). The defense counsel in a case involving an assault with a deadly weapon gave a remarkably ineffective closing argument that stressed many of his client’s worst attributes: he was a “bad person, lousy drug addict, stinking thief, jail bird.” The California Supreme Court found the representation to be effective, however. The Ninth Circuit granted a writ of habeas corpus, finding the representation to be ineffective. The U.S. Supreme Court reversed, in a summary decision, parsing each of the allegedly ineffective portions of the argument, then citing to treatises and memoirs to demonstrate the argument was strategically acceptable. “Gentry’s lawyer was no Aristotle or even Clarence Darrow,” but the Ninth Circuit’s conclusion that counsel’s performance was deficient and objectively unreasonable gives too little deference to the state court’s determination.

Right to self-representation.  Iowa v. Tovar, 123 S. Ct. 44, cert. granted, Sept 30, 2003; decision below at 656 N.W.2d 112 (Iowa 2003). During the pro se defendant’s guilty plea, the state trial judge did not advise him of the usefulness of an attorney, the dangers of proceeding without one, especially the independent opinion of a lawyer on the propriety of a guilty plea, and the possibility of legal defenses that might not be recognized by a layperson. The Iowa Supreme Court reversed, holding that the trial court failed in its duty to admonish the defendant on these matters. The U.S. Supreme Court granted certiorari to decide if the Sixth Amendment requires such a rigid and detailed admonishment.

 Equal Access Under Justice Act attorneys’ fees. Scarborough v. Principi, 123 S. Ct. 45, cert. granted, Sept. 30, 2003; decision below at 319 F.3d 1346 (Fed. Cir. 2003). The Equal Access Under Justice Act contains a 30-day limitations period after final judgment, by which time an application for fees is due. The applicant filed a timely application, but it failed to include an allegation that the government’s position in the underlying litigation lacked substantial justification. The Federal Circuit held that the allegation is a jurisdictional prerequisite that must be met within the 30-day period. The Supreme Court will decide if a timely filed application may be amended to include the allegation after the 30-day period expires.

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