U.S. Supreme Court – Page 48 – Marquette University Law School Faculty Blog

“I Don’t Have to Take Any Time for This”

Post author:Michael M. O'Hear
Post published:June 16, 2011
Post category:Criminal Law & Process Judges & Judicial Process U.S. Supreme Court

The Supreme Court will once again address alleged Brady violations by the New Orleans District Attorney’s Office. Earlier this week, the Court granted certiorari in Smith v. Cain (No. 10-8145), in which Smith alleges that the prosecutor suppressed a veritable boatload of exculpatory evidence in his murder trial. I’ve only read the cert. petition, which obviously has a partisan slant, but on the face of things it appears there was some pretty egregious police and prosecutor misconduct. And, of course, there is a well-documented history of Brady violations in the DA’s office in New Orleans, including in the Supreme Court’s earlier case of Kyles v. Whitley, 514 U.S. 419 (1995). Earlier this very term, the Court again dealt with discovery issues in the Big Easy in Connick v. Thompson, declining to find civil liability for what even the state conceded were violations of Brady. Indeed, according to the cert. petition, the very assistant district attorney who prosecuted Smith later had his law license suspended for a Brady violation in another case.

I’m a little surprised the Court took Smith, both because it has not been through federal habeas (it’s coming directly up from the state court system) and because it’s basically an “error-correction” case — at least as framed by the cert. petition, the case does not really present any questions of law, but will instead require the justices to roll up their sleeves and sort through a rather complex evidentiary record to produce a case-specific, fact-intensive ruling. On the other hand, for reasons that are not clear to me, this seems to be precisely the way that the Court has engaged with Brady ever since United States v. Bagley in 1985. See, e.g., Kyles; Cone v. Bell, 129 S. Ct. 1769 (2009).

In some ways, I’m more interested to hear what the Court has to say about a collateral procedural issue in Smith that received relatively brief treatment in the petition, but that is also expressly encompassed by the cert. grant. Smith claims that the Louisiana courts violated his due process rights by rejecting all of his Brady-type claims without finding any facts or providing any explanation.

Marquette Law Review Article Sparks Debate on Use of Dictionaries to Decide Legal Cases

Post author:Michael M. O'Hear
Post published:June 14, 2011
Post category:Judges & Judicial Process Legal Scholarship Marquette Law School U.S. Supreme Court

A recent article in the Marquette Law Review was featured in Adam Liptak’s “Sidebar” column for the New York Times earlier this week. Liptak wrote about the increasingly common citation of dictionaries in Supreme Court opinions:

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

Liptak notes various objections to the practice. For instance, dictionaries were not written for the purpose of supplying precise legal definitions, and the variety of different meanings suggested by the many available dictionaries creates opportunities for “cherry picking.” He adds,

The authors of the Marquette study, Jeffrey L. Kirchmeier and Samuel A. Thumma, said the justices had never really said precisely what dictionary definitions were doing in legal opinions. They urged the justices to explain “when and how dictionaries should be used, how a specific dictionary should be chosen and how to use a dictionary for interpretation.”

Court Backs Away From Begay

Post author:Michael M. O'Hear
Post published:June 9, 2011
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing U.S. Supreme Court

Is the Begay revolution over? In its 2008 decision in Begay v. United States, the Supreme Court adopted a narrow construction of the Armed Career Criminal Act’s “residual clause,” limiting the ACCA’s reach to convictions for “purposeful, violent, and aggressive” crimes. (For background, see this post.) The following year, in Chambers v. United States, the Court again pared back the residual clause, emphasizing the need to demonstrate the objective dangerousness of an offense for it to count as a trigger for the ACCA’s fifteen-year mandatory minimum sentence.

What many observers took from Begay and Chambers is that a prior conviction does not count under the ACCA unless it satisfies both a subjective test (purposeful, violent, and aggressive) and an objective test (statistically demonstrated likelihood of injury).

But, today, in Sykes v. United States (No. 09-11311), the Court threw this understanding into doubt, suggesting a considerably more expansive interpretation of the residual clause.