Court rules in plain-error forfeiture case

March 25, 2009

usscpoolToday the U.S. Supreme Court ruled in Puckett v. U.S. that the plain-error test must be used to determine whether a defendant’s claim that the government breached a plea agreement is forfeited. The case involved a defendant who agreed to plead guilty in exchange for a reduced sentence, but committed another crime before sentencing, causing the prosecutors to seek – and the judge to impose – a harsher sentence. On appeal, the defendant raised for the first time the claim that the government breached the plea agreement. The appellate court applying the plain-error standard, found that the defendant did not show we was prejudiced by the error.

Writing for the 7-2 majority affirming the decision, Justice Antonin Scalia said requiring defendants to raise such an issue at the trial level is important to prevent defendants from “gaming” the system by waiting to see what sentence he gets and “then seeking a second bite at the apple by raising the claim” on appeal. Justices David Souter and John Paul Stevens dissented.

The opinion is available here.


Ginsburg hints at soon-to-come Supreme Court vacancy

March 13, 2009

rbginsburgJustice Ruth Bader Ginsburg hinted today that a vacancy could soon come up on the U.S. Supreme Court. But she didn’t say just who might be leaving.

In recent months, speculation has swirled over the possibility of Supreme Court retirements, fueled by the election of President Barack Obama and issues with several liberal-leaning Justices (Justice John Paul Stevens is 89, Ginsburg herself is a two-time cancer survivor, and Justice David Souter is said to be totally over the whole Washington thing).

Today Ginsburg threw more fuel on the rumor fire during an event at New England Law in Boston, according to the AP. Noting that the justices only take official pictures together when a new member is added, Ginsburg said: “We haven’t had any of those for some time, but surely we will soon.”

The 76-year-old justice didn’t elaborate, nor did she take questions from reporters at the event. But she did speak to students about a host of things, from words of wisdom that retired Justice Sandra Day O’Connor, a fellow cancer survivor, gave her, to the fact that Souter took her to the opera when her husband was ailing. “He never goes out, so people were amazed to see him,” Ginsberg said, according to The Boston Globe.

And she used the opportunity to show she is indeed a funny justice. “If I could have asked God to give me any talent in the world, I would never have been a lawyer, I’d be a great diva,” she said.

Justice debate death penalty in cert denial

March 10, 2009

The denial of a certiorari petition gave several justice of the Supreme Court an opportunity to argue about the death penalty.

The disagreement – carried out through a statement by Justice John Paul Stevens, a dissent by Justice Stephen Breyer and a concurrence by Justice Clarence Thomas – came after the Court declined to take up the case of Thompson v. McNeil, which presented the issue of whether being on death row for 32 years constitutes unconstitutionally cruel and unusual punishment.

jpstevensStevens, who has recently been vocal in his opposition to the death penalty, stopped short of dissenting in the cert denial. But in his accompanying opinion, he pointed out that the case – like many others – evidences the need for reconsideration of the way capital punishment is administered.

“As he awaits execution, petitioner has endured especially severe conditions of confinement, spending up to 23 hours per day in isolation in a 6- by 9-foot cell,” Stevens wrote of the defendant, William Lee Thompson. “Two death warrants have been signed against him and stayed only shortly before he was scheduled to be put to death. The dehumanizing effects of such treatment are undeniable.”

Stevens pointed out that such a case is not rare. “Today, condemned inmates await execution for an average of nearly 13 years,” Stevens wrote. “To my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

Stevens went on the say that the existence of such “inescapable” delays “reinforces my opinion that contemporary decisions to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process.”

thomas2But Thomas took issue with that characterization.

“[B]ecause petitioner chose to challenge his death sentence, [Stevens and Breyer] suggest that the subsequent delay caused by petitioner’s 32 years of litigation creates an Eighth Amendment problem,” Thomas wrote.

Thomas added: “Justice Stevens criticizes the ‘dehumanizing effects’ of the manner in which petitioner has been confined, but he never pauses to consider whether there is a legitimate penological reason for keeping certain inmates in restrictive confinement.”

Finally, Thomas notes that Stevens “refuses to take into consideration the gruesome nature of the crimes” for which Thompson was convicted, and Thomas then recounts the grizzly facts in his opinion.

breyer1Breyer addresses Thomas’ point by noting “it is the punishment, not the gruesome nature of the crime, which is at issue.”

As for Thomas’ point that the defendant is partially to blame for the delay in his time on death row, Breyer writes: “I do not believe that petitioner’s decision to exercise his right to seek appellate review of his death sentence automatically waives a claim that the Eighth Amendment proscribes a delay of more than 30 years.”

Breyer went on to write that “the delay here resulted in significant part from constitutionally defective death penalty procedures for which petitioner was not responsible. In particular, the delay was partly caused by the sentencing judge’s failure to allow the presentation and jury consideration of non statutory mitigating circumstances, an approach which we have unanimously held constitutionally forbidden.”

Court declines to bar state tort actions over FDA-approved drugs

March 4, 2009

supremeleftIn one of the most significant cases for the trial bar this term, the U.S. Supreme Court has ruled that FDA approval of a drug does not automatically bar state law tort suits against the drugmaker.

The decision in Wyeth v. Levine was announced this morning by the Court, which by a 6-3 vote affirmed a Vermont state ruling upholding a jury verdict for a Vermont woman who lost an arm after being intravenously administered an anti-nausea medication.

The court held that, contrary to drugmaker Wyeth’s argument, it is possible to adhere to standards imposed by the Food and Drug Administration as well as those established by state law.

stevenssmile“Wyeth could have added a warning [that certain intravenous uses for the drug posed hazards] and this would have complied with both the state law and federal law duties,” Justice John Paul Stevens, who authored the opinion, said from the bench this morning.

Chief Justice John G. Roberts, Jr. and Justices Antonin Scalia and Samuel Alito, Jr. dissented.

More on the case, including reaction from the parties and from members of the trial bar, to come soon on DC Dicta and on

Stevens mum on retirement plans

November 18, 2008

stevens3The presidential election put a spotlight on the seat held by the Supreme Court’s oldest justice, 88-year-old John Paul Stevens, as a potential vacancy for President-elect Barack Obama to fill. But Stevens ignored the scuttlebutt about possible retirement plans when he addressed a group of Florida law students yesterday.

Stevens, speaking with close friend and U.S. District Court Judge Jose A. Gonzalez Jr. at University of Florida Fredric G. Levin College of Law, ignored the election completely as a topic of discussion – a feat that was made possible by not taking questions from reporters. Instead, he let law professors and a law student do the asking, AP reported.

He did say that his work load is not too much for him, and that he still writes his own opinions – though his law clerks do have input. It helps that the Court hands down about half as many rulings per year as it did when he was appointed 33 years ago.

“From my own personal point of view, it’s definitely a positive,” Stevens said, drawing laughter according to a report by The Washington Post. “And I have to say I think we were taking too many cases when I joined the court.”

“It’s still a full-time job,” Stevens added. “I wouldn’t want to say otherwise, but if we had the same kind of workload today that we had then, I would have resigned 10 years ago.”

The Funniest Justice: Profanity is funny

November 13, 2008

stevens31“Maybe I shouldn’t ask this,” Justice John Paul Stevens said to Solicitor General Gregory Garre during oral arguments last week in the TV profanity case FCC v. Fox Television Stations, “but is [it] ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny?”

The crowd in the Supreme Court building laughed, and Stevens continued. “Some of these things you can’t help but laugh at,” Stevens said. “Is that a proper consideration, do you think?”

“Yes, insofar as the Commission takes into account whether it’s shocking, titillating, pandering,” Garre said.

“Oh, it’s funny,” Justice Scalia said. “I mean, bawdy jokes are okay if they are really good.” More laughs.

Which brings us to the latest tally of the Funniest Justice so far this term. Scalia has broken it open, drawing laughs 10 times this month — four times during the Fox case alone — and giving himself an eight-chuckle lead over Chief Justice John G. Roberts, Jr. Roberts had his funny bone in motion as well, though, drawing six laughs this month. Here are the full standings:

Justice Antonin Scalia: 23

Chief Justice John Roberts: 15

Justice Stephen Breyer: 9

Justice David Souter: 7

Justice Anthony Kennedy: 6

Justice John Paul Stevens: 4

Justice Samuel Alito: 2

Justice Ruth Bader Ginsburg: 0

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).

Cert denied, but Stevens and Breyer still speak out on capital victim videos

November 11, 2008

Yesterday the U.S. Supreme Court declined to take up cases considering the admissibility of video victim impact statements during the penalty stage of capital murder trials — and three justices were not happy about it.

The videos – which can be seen here on the Court’s website – featured images of the murder victims, voiceovers from loved ones, music and other images (like galloping horses in the case of a victim who was an avid horseback rider). The defendants challenged the admission of the videos, and ultimately petitioned the Court to decide whether they were unduly prejudicial.

It takes four justices to grant certiorari in a case, and the Court apparently fell one justice short.  Justices David Souter, John Paul Stevens and Stephen Breyer wanted to take up the case.

stevens3Stevens, as he has several times this term, issued a statement on the cert denial, expressing in no uncertain terms his concerns about such statements.

“Victim impact evidence is powerful in any form,” Stevens wrote. “But in each of these cases the evidence was especially prejudicial. Although the video shown to each jury was emotionally evocative, it was not probative of the culpability or character of the offender or the circumstances of the offense. Nor what the evidence particularly probative of the impact of the crimes on the victims’ family members.”

Stevens found the form of the statements particularly troubling. “As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming.”


Breyer, in a separate statement, echoed Stevens’ concerns. “[T]he film’s emotional and artistic attributes themselves create the legal problem,” Breyer wrote. “They render the film’s purely emotional impact strong, perhaps unusually so.”

Breyer added: “The due process problem of disproportionately powerful emotion is a serious one” in the videos.