Several notable Texas related developments are noted this edition in what appears to be a continuation of the Court's review of Texas's death penalty in light of that state's outlier status. Troy Kunkle received a stay earlier this week from the SCOTUS apparently on a claim arising out of Tennard v. Dretke about whether jurors who deliberated his death sentence weren't allowed to properly consider his drug and alcohol abuse history. On June 28th a second grant of certiorari in Miller-El v. Dretke (see focus) & summarily vacated Billy Ray Nelson in light of Tennard v. Dretke. Mauro Barraza, also in Texas, received a stay by the SCOTUS pending a decision on the constitutionality of the juvenile death penalty in Roper.

Turning attention to the SCOTUS's non-capital opinions, the Court since the last edition handed down numerous cases of interest. Most notable are the three war powers / habeas cases,Hamdi v. Rumsfeld(due process requires that citizen enemy combatants be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker),Rasul v. Bush(habeas review may be had for those at Gitmo) &Rumsfeld v. Padilla(proper venue for a habeas petition is the district where Respondent is located), that have been rehashed ad nauseum elsewhere. Two plurality opinions concerning Miranda are also noted:United States v. Patane(fruits of an unlawful interrogation may be admitted under certain circumstances) &Missouri v. Seibert (two-stage interrogations, one portion pre-Miranda & one post-Miranda, will normally produce tainted statements for purposes of Miranda).

In the lower courts, the Sixth Circuit, inThompson v. Bell,in a somewhat complicated Rule 60(b) decision, permitted the record to be expanded on appeal, issued a stay in order to permit the district court to address issues raised by a new affidavit in that matter. In Georgia the state supreme court granted relief on the denial of the accused's right to self-representation inLamar v. Georgia. In Ward v. Indiana the state supreme court remanded for a new trial as "the trial court abused its discretion in failing to grant Ward's motion for change of venue from the county, or in the alternative to draw the jury from another county."

Elsewhere, Darnell Williams, who was scheduled to be executed in Indiana on July 9, was granted a commutation of his death sentence to life without parole by Governor Joe Kernan -- it was the first commutation in a death penalty case in that state in 48 years. Roberto Miranda, a Cuban native who spent 14 years on Nevada's death row before being cleared of all charges and freed, has settled a lawsuit against Clark County, the public defender's office, and two former Las Vegas police detectives for $5 million.

Note that in addition to Tennard, noted above, the ripples of several other Supreme Court decisions are already being felt. The fall out from Blakely v. Washington, arguably the most important criminal law case of the Term, is being covered at theSentencing Law & Policyblog,Blakely Blawg&NACDL's Blakely resource page. Following the decision in Beard v. Banks the Third Circuit has begun moving cases that appear to have been held pending the outcome in that case, including Mumia Abu-Jamal's case. Further impacts from the term can be found by watchingstreaming videoor reading thetranscriptof the American Constitution Society's "Supreme Court Roundup" at the National Press Club.

Please note that due to time limitations several opinions, Deardorff v. Alabama,Berry v. Mississippi,Pennsylvania v. Edmiston,Pennsylvania v. Harris,Cantu v. Texas, &Escamilla v. Texas, will have to be covered next week. Please note, the Weekly regularly misses cases, if there is something that is missed or wrong please contact me off-list. As always thanks for reading. - k

This edition archived athttp://capitaldefenseweekly.com/archives/040705.htm

EXECUTION INFORMATION

Since the last edition the following people were executed in the United States:

June

30 David Harris Texas

July

1 Robert Hicks Georgia

Pending execution dates believed to be serious include

July

14 Stephen Vrabel Ohio----volunteer

19-25 Terry Dennis Nevada----volunteer

20 Scott Mink Ohio----volunteer

22 Mark Bailey Virginia

August

5 James Hubbard Alabama

18 James Hudson Virginia

25 Jasen Busby Texas

26 James Allridge III Texas

26 Windel Workman Oklahoma

SUPREME COURT

United States v. Patane, --- U.S. --- (6/28/2004) (plurality) Fruits of an unlawful interrogation may be admitted under certain circumstances.

After Officer Fox began to investigate respondent's apparent violation of a temporary restraining order, a federal agent told Fox's colleague, Detective Benner, that respondent, a convicted felon, illegally possessed a pistol. Officer Fox and Detective Benner proceeded to respondent's home, where Fox arrested him for violating the restraining order. Benner attempted to advise respondent of his rights under Miranda v. Arizona, 384 U.S. 436, but respondent interrupted, asserting that he knew his rights. Benner then asked about the pistol and retrieved and seized it. Respondent was indicted for possession of a firearm by a convicted felon, 18 U.S.C. sect. 922(g)(1). The District Court granted his motion to suppress the pistol, reasoning that the officers lacked probable cause to arrest him, and declining to rule on his alternative argument that the gun should be suppressed as the fruit of an unwarned statement. The Tenth Circuit reversed the probable-cause ruling, but affirmed the suppression order on respondent's alternative theory. Rejecting the Government's argument that Oregon v. Elstad, 470 U.S. 298, and Michigan v. Tucker, 417 U.S. 433, foreclosed application of the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 488, to the present context, the appeals court reasoned that Oregon and Tucker, which were based on the view that Miranda announced a prophylactic rule, were incompatible with Dickerson v. United States, 530 U.S. 428, 444, in which this Court held that Miranda announced a constitutional rule. The appeals court thus equated Dickerson's ruling with the proposition that a failure to warn pursuant to Miranda is itself a violation of the suspect's Fifth Amendment rights.

Held: The judgment is reversed, and the case is remanded. 304 F.3d 1013, reversed and remanded.

Justice Thomas, joined by The Chief Justice and Justice Scalia, concluded that a failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements. Pp. 4-12.

(a) The Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause, U. S Const., Amdt. 5. That Clause's core protection is a prohibition on compelling a criminal defendant to testify against himself at trial. See, e.g., Chavez v. Martinez, 538 U.S. 760, 764-768. It cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements. See, e.g., United States v. Hubbell, 530 U.S. 27, 34. The Court has recognized and applied several prophylactic rules designed to protect the core privilege against self-incrimination. For example, the Miranda rule creates a presumption of coercion in custodial interrogations, in the absence of specific warnings, that is generally irrebuttable for purposes of the prosecution's case in chief. E.g., 384 U.S., at 467. But because such prophylactic rules necessarily sweep beyond the Self-Incrimination Clause's actual protections, see, e.g., Withrow v. Williams, 507 U.S. 680, 690-691, any further extension of one of them must be justified by its necessity for the protection of the actual right against compelled self-incrimination, e.g., Chavez, supra, at 778. Thus, uncompelled statements taken without Miranda warnings can be used to impeach a defendant's testimony at trial, see Elstad, supra, at 307-308, though the fruits of actually compelled testimony cannot, see New Jersey v. Portash, 440 U.S. 450, 458-459. A blanket rule requiring suppression of statements noncompliant with the Miranda rule could not be justified by reference to the "Fifth Amendment goal of assuring trustworthy evidence" or by any deterrence rationale, e.g., Elstad, 470 U.S., at 308, and would therefore fail the Court's requirement that the closest possible fit be maintained between the Self-Incrimination Clause and any rule designed to protect it. Furthermore, the Clause contains its own exclusionary rule that automatically protects those subjected to coercive police interrogations from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial. E.g., id., at 307-308. This explicit textual protection supports a strong presumption against expanding the Miranda rule any further. Cf. Graham v. Connor, 490 U.S. 386. Finally, nothing in Dickerson calls into question the Court's continued insistence on its close-fit requirement. Pp. 5-8.

(b) That a mere failure to give Miranda warnings does not, by itself, violate a suspect's constitutional rights or even the Miranda rule was evident in many of the Court's pre-Dickerson cases, see, e.g., Elstad, supra, at 308, and the Court has adhered to that view since Dickerson, see Chavez, supra, at 772-773. This follows from the nature of the "fundamental trial right" protected by the Self-Incrimination Clause, e.g., Withrow, supra, at 691, which the Miranda rule, in turn, protects. Thus, the police do not violate a suspect's constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide full Miranda warnings. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence. And, at that point, the exclusion of such statements is a complete and sufficient remedy for any perceived Miranda violation. Chavez, supra, at 790. Unlike actual violations of the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter and therefore no reason to apply Wong Sun's "fruit of the poisonous tree" doctrine. It is not for this Court to impose its preferred police practices on either federal or state officials. Pp. 8-10.

(c) The Tenth Circuit erred in ruling that the taking of unwarned statements violates a suspect's constitutional rights. Dickerson's characterization of Miranda as a constitutional rule does not lessen the need to maintain the close-fit requirement. There is no such fit here. Introduction of the nontestimonial fruit of a voluntary statement, such as respondent's pistol, does not implicate the Clause. It presents no risk that a defendant's coerced statements (however defined) will be used against him at a criminal trial. In any case, the exclusion of unwarned statements is a complete and sufficient remedy for any perceived Miranda violation. E.g., Chavez, supra, at 790. Similarly, because police cannot violate the Clause by taking unwarned though voluntary statements, an exclusionary rule cannot be justified by reference to a deterrence effect on law enforcement, as the court below believed. The word "witness" in the constitutional text limits the Self-Incrimination Clause's scope to testimonial evidence. Hubbell, supra, at 34-35. And although the Court requires the exclusion of the physical fruit of actually coerced statements, statements taken without sufficient Miranda warnings are presumed to have been coerced only for certain purposes and then only when necessary to protect the privilege against self-incrimination. This Court declines to extend that presumption further. Pp. 10-12.

Justice Kennedy, joined by Justice O'Connor, concluded that it is unnecessary to decide whether the detective's failure to give Patane full Miranda warnings should be characterized as a violation of the Miranda rule itself, or whether there is anything to deter so long as the unwarned statements are not later introduced at trial. In Oregon v. Elstad, 470 U.S. 298, New York v. Quarles, 467 U.S. 649, and Harris v. New York, 401 U.S. 222, evidence obtained following unwarned interrogations was held admissible based in large part on the Court's recognition that the concerns underlying the Miranda v. Arizona, 384 U.S. 436, rule must be accommodated to other objectives of the criminal justice system. Here, it is sufficient to note that the Government presents an even stronger case for admitting the evidence obtained as the result of Patane's unwarned statement than was presented in Elstad and Michigan v. Tucker, 417 U.S. 433. Admission of nontestimonial physical fruits (the pistol here) does not run the risk of admitting into trial an accused's coerced incriminating statements against himself. In light of reliable physical evidence's important probative value, it is doubtful that exclusion can be justified by a deterrence rationale sensitive to both law enforcement interests and a suspect's rights during an in-custody interrogation. Pp. 1-2.

Thomas, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Scalia, J., joined. Kennedy, J., filed an opinion concurring in the judgment, in which O'Connor, J., joined. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. Breyer, J., filed a dissenting opinion.

Missouri v. Seibert, --- U.S. ---- (6/28/2004) (purality) When a two-step interrogation technique is used, postwarning statements related to prewarning statements must be excluded save exceptional circumstances not present here.unless curative measures are taken before the postwarning statement is made.

Respondent Seibert feared charges of neglect when her son, afflicted with cerebral palsy, died in his sleep. She was present when two of her sons and their friends discussed burning her family's mobile home to conceal the circumstances of her son's death. Donald, an unrelated mentally ill 18-year-old living with the family, was left to die in the fire, in order to avoid the appearance that Seibert's son had been unattended. Five days later, the police arrested Seibert, but did not read her her rights under Miranda v. Arizona, 384 U.S. 436. At the police station, Officer Hanrahan questioned her for 30 to 40 minutes, obtaining a confession that the plan was for Donald to die in the fire. He then gave her a 20-minute break, returned to give her Miranda warnings, and obtained a signed waiver. He resumed questioning, confronting Seibert with her prewarning statements and getting her to repeat the information. Seibert moved to suppress both her prewarning and postwarning statements. Hanrahan testified that he made a conscious decision to withhold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given. The District Court suppressed the prewarning statement but admitted the postwarning one, and Seibert was convicted of second-degree murder. The Missouri Court of Appeals affirmed, finding the case indistinguishable from Oregon v Elstad, 470 U.S. 298, in which this Court held that a suspect's unwarned inculpatory statement made during a brief exchange at his house did not make a later, fully warned inculpatory statement inadmissible. In reversing, the State Supreme Court held that, because the interrogation was nearly continuous, the second statement, which was clearly the product of the invalid first statement, should be suppressed; and distinguished Elstad on the ground that the warnings had not intentionally been withheld there.

Held: The judgment is affirmed. 93 S. W. 3d 700, affirmed.Justice Souter, joined by Justice Stevens, Justice Ginsburg, and Justice Breyer, concluded that, because the midstream recitation of warnings after interrogation and unwarned confession in this case could not comply with Miranda's constitutional warning requirement, Seibert's postwarning statements areinadmissible. Pp. 4-15.

(a) Failure to give Miranda warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver generally produces a virtual ticket of admissibility, with most litigation over voluntariness ending with valid waiver finding. This common consequence would not be at all common unless Miranda warnings were customarily given under circumstances that reasonably suggest a real choice between talking and not talking. Pp. 4-6.

(b) Dickerson v. United States, 530 U.S. 428, reaffirmed Miranda, holding that Miranda's constitutional character prevailed against a federal statute that sought to restore the old regime of giving no warnings and litigating most statements' voluntariness. The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Pp. 6-9.

(c) When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and the question-first strategy. Miranda addressed "interrogation practices ... likely ... to disable [an individual] from making a free and rational choice" about speaking, 384 U.S., at 464-465, and held that a suspect must be "adequately and effectively" advised of the choice the Constitution guarantees, id., at 467. Question-first's object, however, is to render Miranda warnings ineffective by waiting to give them until after the suspect has already confessed. The threshold question in this situation is whether it would be reasonable to find that the warnings could function "effectively" as Miranda requires. There is no doubt about the answer. By any objective measure, it is likely that warnings withheld until after interrogation and confession will be ineffective in preparing a suspect for successive interrogation, close in time and similar in content. The manifest purpose of question-first is to get a confession the suspect would not make if he understood his rights at the outset. When the warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and "deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Moran v. Burbine, 475 U.S. 412, 424. And it would be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle. Pp. 9-12.

(d) Elstad does not authorize admission of a confession repeated under the question-first strategy. The contrast between Elstad andthis case reveals relevant facts bearing on whether midstream Miranda warnings could be effective to accomplish their object: the completeness and detail of the questions and answers to the first round of questioning, the two statements' overlapping content, the timing and setting of the first and second rounds, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first. In Elstad, the station house questioning could sensibly be seen as a distinct experience from a short conversation at home, and thus the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. Here, however, the unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. The warned phase proceeded after only a 15-to-20 minute pause, in the same place and with the same officer, who did not advise Seibert that her prior statement could not be used against her. These circumstances challenge the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes could not have understood them to convey a message that she retained a choice about continuing to talk. Pp. 12-15.

Justice Kennedy concluded that when a two-step interrogation technique is used, postwarning statements related to prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Not every violation of Miranda v. Arizona, 384 U.S. 436, requires suppression of the evidence obtained. Admission may be proper when it would further important objectives without compromising Miranda's central concerns. See, e.g., Harris v. New York, 401 U.S. 222. Oregon v. Elstad, 470 U.S. 298, reflects a balanced and pragmatic approach to enforcing the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required, and may not plan to question the suspect or may be waiting for a more appropriate time. Suppressing postwarning statements under such circumstances would serve "neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence." Elstad, supra, at 308. In contrast, the technique used in this case distorts Miranda's meaning and furthers no legitimate countervailing interest. The warning was withheld to obscure both the practical and legal significance of the admonition when finally given. That the interrogating officer relied on respondent's prewarning statement to obtain the postwarning one used at trial shows the temptations for abuse inherent in the two-step technique. Reference to the prewarning statement was an implicit, and false, suggestion that the mere repetition of the earlier statement was not independently incriminating. The Miranda rule would be frustrated were the police permitted to undermine its meaning and effect. However, the plurality's test--that whenever a two-stage interview occurs, the postwarning statement's admissibility depends on whether the midstream warnings could have been effective enough to accomplish their object given the case's specific facts--cuts too broadly. The admissibility of postwarning statements should continue to be governed by Elstad's principles unless the deliberate two-step strategy is employed. Then, the postwarning statements must be excluded unless curative measure are taken before they were made. Such measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and waiver. For example, a substantial break in time and circumstances between the prewarning statement and the warning may suffice in most instances, as may an additional warning explaining the likely inadmissibility of the prewarning statement. Because no curative steps were taken in this case, the postwarning statements are inadmissible and the conviction cannot stand. Pp. 1-5.

Souter, J., announced the judgment of Court and delivered an opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in the judgment. O'Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined.

Hamdi v. Rumsfeld, --- U.S.--- (6/28/2004) (plurality) Congress's delegation of power to use military force following 9/11, while permitting the temporary detention of citizens row the circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

After Congress passed a resolution--the Authorization for Use of Military Force (AUMF)--empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi's father filed this habeas petition on his behalf under 28 U.S.C. sect. 2241 alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi's capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do "relief work" less than two months before September 11 and could not have received military training. The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi's trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi's detention and ordered the Government to turn over numerous materials for in camera review. The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U.S.C. sect. 4001(a)--which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress"-- the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

Held: The judgment is vacated, and the case is remanded.

Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14-15.

Justice Souter, joined by Justice Ginsburg, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Pp. 2-3, 15.

O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion, in which Stevens, J., joined. Thomas, J., filed a dissenting opinion.

Rasul v. Bush, --- U.S. --- (6/28/2004) United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, arebeing held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of jurisdiction, holding that, under Johnson v. Eisentrager, 339 U.S. 763, aliens detained outside United States sovereign territory may not invoke habeas relief. The Court of Appeals affirmed.

Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. Pp. 4-17.

(a) The District Court has jurisdiction to hear petitioners' habeas challenges under 28 U.S. C. sect. 2241, which authorizes district courts, "within their respective jurisdictions," to entertain habeas applications by persons claiming to be held "in custody in violation of the ... laws ... of the United States," sects.2241(a), (c)(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty." Pp. 4-16.(1) The Court rejects respondents' primary submission that these cases are controlled by Eisentrager's holding that a District Court lacked authority to grant habeas relief to German citizens captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in occupied Germany. Reversing a Court of Appeals judgment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, (c) were captured outside U.S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U.S., at 777. Petitioners here differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted critical facts were relevant only to the question of the prisoners' constitutional entitlement to habeas review. Ibid. The Court's only statement on their statutory entitlement was a passing reference to its absence. Id., at 768. This cursory treatment is explained by the Court's then-recent decision in Ahrens v. Clark, 335 U.S. 188, in which it held that the District Court for the District of Columbia lacked jurisdiction to entertain the habeas claims of aliens detained at Ellis Island because the habeas statute's phrase "within their respective jurisdictions" required the petitioners' presence within the court's territorial jurisdiction, id., at 192. However, the Court later held, in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-495, that such presence is not "an invariable prerequisite" to the exercise of sect. 2241 jurisdiction because habeas acts upon the person holding the prisoner, not the prisoner himself, so that the court acts "within [its] respective jurisdiction" if the custodian can be reached by service of process. Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager does not preclude the exercise of sect. 2241 jurisdiction over petitioners' claims. Pp. 6-11. (2) Also rejected is respondents' contention that sect. 2241 is limited by the principle that legislation is presumed not to have extraterritorial application unless Congress clearly manifests such an intent, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248. That presumption has no application to the operation of the habeas statute with respect to persons detained within "the [United States'] territorial jurisdiction." Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285. By the express terms of its agreements with Cuba, the United States exercises complete jurisdiction and control over the Guantanamo Base, and may continue to do so permanently if it chooses. Respondents concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Considering that sect. 2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute's geographical coverage to vary depending on the detainee's citizenship. Aliens held at the base, like American citizens, are entitled to invoke the federal courts' sect. 2241 authority. Pp. 12-15. (3) Petitioners contend that they are being held in federal custody in violation of United States laws, and the District Court's jurisdiction over petitioners' custodians is unquestioned, cf. Braden, 410 U.S., at 495. Section 2241 requires nothing more and therefore confers jurisdiction on the District Court. Pp. 15-16.

(b) The District Court also has jurisdiction to hear the Al Odah petitioners' complaint invoking 28 U.S. C. sect. 1331, the federal question statute, and sect. 1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed these claims for want of jurisdiction because the petitioners lacked the privilege of litigation in U.S. courts. Nothing in Eisentrager or any other of the Court's cases categorically excludes aliens detained in military custody outside the United States from that privilege. United States courts have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578. And indeed, sect. 1350 explicitly confers the privilege of suing for an actionable "tort ... committed in violation of the law of nations or a treaty of the United States" on aliens alone. The fact that petitioners are being held in military custody is immaterial. Pp. 16-17.

(c) Whether and what further proceedings may become necessary after respondents respond to the merits of petitioners' claims are not here addressed. P. 17. 321 F.3d 1134, reversed and remanded.

Stevens, J.,delivered the opinion of the Court, in which O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Notes

Together with No. 03-343, Al Odah et al. v. United States et al., also on certiorari to the same court.

Rumsfeld v. Padilla, --- U.S. ---- (6/28/2004) Habeas petition should normally be filed in district where Respondent is located.

Respondent Padilla, a United States citizen, was brought to New York for detention in federal criminal custody after federal agents apprehended him while executing a material witness warrant issued by the District Court for the Southern District of New York (Southern District) in connection with its grand jury investigation into the September 11, 2001, al Qaeda terrorist attacks. While his motion to vacate the warrant was pending, the President issued an order to Secretary of Defense Rumsfeld designating Padilla an "enemy combatant" and directing that he be detained in military custody. Padilla was later moved to a Navy brig in Charleston, S. C., where he has been held ever since. His counsel then filed in the Southern District a habeas petition under 28 U.S.C. sect. 2241 which, as amended, alleged that Padilla's military detention violates the Constitution, and named as respondents the President, the Secretary, and Melanie Marr, the brig's commander. The Government moved to dismiss, arguing, inter alia, that Commander Marr, as Padilla's immediate custodian, was the only proper respondent, and that the District Court lacked jurisdiction over her because she is located outside the Southern District. That court held that the Secretary's personal involvement in Padilla's military custody rendered him a proper respondent, and that it could assert jurisdiction over the Secretary under New York's long-arm statute, notwithstanding his absence from the District. On the merits, the court accepted the Government's contention that the President has authority asCommander in Chief to detain as enemy combatants citizens captured on American soil during a time of war. The Second Circuit agreed that the Secretary was a proper respondent and that the Southern District had jurisdiction over the Secretary under New York's long-arm statute. The appeals court reversed on the merits, however, holding that the President lacks authority to detain Padilla militarily.

Held:

1. Because this Court answers the jurisdictional question in the negative, it does not reach the question whether the President has authority to detain Padilla militarily. P. 1. 2. The Southern District lacks jurisdiction over Padilla's habeas petition. Pp. 5-23. (a) Commander Marr is the only proper respondent to Padilla's petition because she, not Secretary Rumsfeld, is Padilla's custodian. The federal habeas statute straightforwardly provides that the proper respondent is "the person" having custody over the petitioner. sects.2242, sect. 2243. Its consistent use of the definite article indicates that there is generally only one proper respondent, and the custodian is "the person" with the ability to produce the prisoner's body before the habeas court, see Wales v. Whitney, 114 U.S. 564, 574. In accord with the statutory language and Wales' immediate custodian rule, longstanding federal-court practice confirms that, in "core" habeas challenges to present physical confinement, the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official. No exceptions to this rule, either recognized or proposed, apply here. Padilla does not deny the immediate custodian rule's general applicability, but argues that the rule is flexible and should not apply on the unique facts of this case. The Court disagrees. That the Court's understanding of custody has broadened over the years to include restraints short of physical confinement does nothing to undermine the rationale or statutory foundation of the Wales rule where, in core proceedings such as the present, physical custody is at issue. Indeed, that rule has consistently been applied in this core context. The Second Circuit erred in taking the view that this Court has relaxed the immediate custodian rule with respect to prisoners detained for other than federal criminal violations, and in holding that the proper respondent is the person exercising the "legal reality of control" over the petitioner. The statute itself makes no such distinction, nor does the Court's case law support a deviation from the immediate custodian rule here. Rather, the cases Padilla cites stand for the simple proposition that the immediate physical custodian rule, by its terms, does not apply when a habeas petitioner challenges something other than his present physical confinement. See, e.g., Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484; Strait v. Laird, 406 U.S. 341. That is not the case here: Marr exercises day-to-day control over Padilla's physical custody. The petitioner cannot name someone else just because Padilla's physical confinement stems from a military order by the President. Identification of the party exercising legal control over the detainee only comes into play when there is no immediate physical custodian. Ex parte Endo, 323 U.S. 283, 304-305, distinguished. Although Padilla's detention is unique in many respects, it is at bottom a simple challenge to physical custody imposed by the Executive. His detention is thus not unique in any way that would provide arguable basis for a departure from the immediate custodian rule. Pp. 5-13.

(b) The Southern District does not have jurisdiction over Commander Marr. Section sect. 2241(a)'s language limiting district courts to granting habeas relief "within their respective jurisdictions" requires "that the court issuing the writ have jurisdiction over the custodian," Braden, supra, at 495. Because Congress added the "respective jurisdictions" clause to prevent judges anywhere from issuing the Great Writ on behalf of applicants far distantly removed, Carbo v. United States, 364 U.S. 611, 617, the traditional rule has always been that habeas relief is issuable only in the district of confinement, id., at 618. This commonsense reading is supported by other portions of the habeas statute, e.g., sect. 2242, and by Federal Rule of Appellate Procedure 22(a). Congress has also legislated against the background of the "district of confinement" rule by fashioning explicit exceptions: E.g., when a petitioner is serving a state criminal sentence in a State containing more than one federal district, "the district . . . wherein [he] is in custody" and "the district . . . within which the State court was held which convicted and sentenced him" have "concurrent jurisdiction," sect. 2241(d). Such exceptions would have been unnecessary if, as the Second Circuit believed, sect. 2241 permits a prisoner to file outside the district of confinement. Despite this ample statutory and historical pedigree, Padilla urges that, under Braden and Strait, jurisdiction lies in any district in which the respondent is amenable to service of process. The Court disagrees, distinguishing those two cases. Padilla seeks to challenge his present physical custody in South Carolina. Because the immediate-custodian rule applies, the proper respondent is Commander Marr, who is present in South Carolina. There is thus no occasion to designate a "nominal" custodian and determine whether he or she is "present" in the same district as petitioner. The habeas statute's "respective jurisdictions" proviso forms an important corollary to the immediate custodian rule in challenges to present physical custody under sect. 2241. Together they compose a simple rule that has been consistently applied in the lower courts, including in the context of military detentions: Whenever a sect. 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement. This rule serves the important purpose of preventing forum shopping by habeas petitioners. The District of South Carolina, not the Southern District of New York, was where Padilla should have brought his habeas petition. Pp. 13-19.

(c) The Court rejects additional arguments made by the dissent in support of the mistaken view that exceptions exist to the immediate custodian and district of confinement rules whenever exceptional, special, or unusual cases arise. Pp. 19-23.352 F.3d 695, reversed and remanded.

Rehnquist,C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined.

CAPITAL CASES (Favorable Disposition)

Thompson v. Bell,2004 U.S. App. LEXIS 12431(6th Cir 6/23/2004) (dissent) Following expansion of the record on appeal, remand ordered to address issues raised in an affidavit posited into the record during a Rule 60(b) application; stay issued.

Dierking v. Alabama, 2004 Ala. Crim. App. LEXIS 121 (Ala. Crim. App. 6/25/2004) Post-conviction trial court erred in denying Rule 32 petition as untimely.

Arizona v. Hampton, 2004 Ariz. LEXIS 75 (Az 7/2/2004) Threats by the Defendant against counsel require counsel to be relieved. Strong cautionary language in the opinion highlights that further outbursts will result, potentially, in waiver of state round of appeals.

Sweet v. Florida, 2004 Fla. LEXIS 978 (FL 7/1/2004) Remand ordered for appointment of counsel.

Ferrell v. Florida, 2004 Fla. LEXIS 976 (FL 7/1/2004) Remand ordered for appointment of counsel.

Lamar v. Georgia, 2004 Ga. LEXIS 536 (Ga 6/28/2004) "[W]e find that Lamar was denied his constitutional right to self-representation, we reverse Lamar’s convictions and sentences.”

Ward v. Indiana, 2004 Ind. LEXIS 610 (Ind 6/30/2004) "[T]he trial court abused its discretion in failing to grant Ward's motion for change of venue from the county, or in the alternative to draw the jury from another county."

Pennsylvania v. Cruz, 2004 Pa. LEXIS 1342 (PA 6/22/2004) Remand ordered to the post-conviction tiral "court for a limited hearing where appellant will be afforded the opportunity to prove: (1) that he was and remained incompetent throughout the period during which his right to file a PCRA petition lapsed; and (2) that his current petition was timely filed within 60 days of his becoming sufficiently competent to ascertain the facts upon which his underlying claims are predicated."

CAPITAL CASES (Unfavorable Disposition)

Jones v. Dretke, 2004 U.S. App. LEXIS 12711 (5th Cir 6/24/2004) Relief denied on claims relating to: "1) whether the trial court's removal of a venire member for cause violated Jones's rights under the Sixth or Fourteenth Amendments; and 2) whether the trial court's refusal to instruct or voir dire the jury about parole eligibility impinged upon Jones's Eighth or Fourteenth Amendment rights."

Harris v. Johnson, 2004 U.S. App. LEXIS 13624 (5th Cir 6/30/2004) TRO that had been issued on lethal injection vacated as the Harris "delayed unnecessarily in bringing the claim."

Sowell v. Bradshaw,2004 U.S. App. LEXIS 12429 (6th Cir 6/23/2004) (dissent) Panel reverse the district court's grant of the writ as Sowell failed to demonstrate that his jury waiver & opting for sentencing by a three judge panel was not knowing and intelligent or that his counsel was ineffective.

Barbour v. Alabama, 2004 Ala. Crim. App. LEXIS 117 (Ala. Crim. App. 6/25/2004) (dissent) Relief denied holding motion to reopen a prior state post-conviction Rule 32 petition properly treated as successive, request for DNA testing properly denied, as well as claims relating to Brady, a coerced confession, Ring & method of execution.

Phillips v. Judge Araneta, 2004 Ariz. LEXIS 70 (Az 6/29/2004) In this interlocutory appeal, "trial judge did not abuse his discretion by ordering Phillips to submit to a mental health evaluation by the State's expert. We also hold that the trial judge can preclude Phillips from presenting mental health-related mitigation evidence if he refuses to comply with an order directing him to cooperate with the State's mental health evaluation."

California v. Lewis, 2004 Cal. LEXIS 5660 (CA 6/24/2004) Relief denied. Original death sentence was vacated because the trial court erroneously considered a probation report in ruling on defendant's automatic application to modify the penalty, on remand the trial court denied the application for modification based on the prior reliance and reinstated the death sentence.

Kimbrough v. Florida, 2004 Fla. LEXIS 958 (FL 6/24/2004) Relief denied on claims including: (1) requiring that the motion be filed before the results of DNA testing were concluded; (2) counsel was ineffective for [a] failing to adequately challenge the credentials of state expert witness; [b] failing to request an inquiry as to the general scientific acceptance of the DNA technique employed at trial; [c] failing to rehabilitate a venireperson; [d] for failing to voir dire a juror regarding her connection to the crime scene; [e] failing to discover during voir dire a juror's connection with the Florida Department of Law Enforcement; (f) failing to move for a mistrial after the State's improper closing argument; [g] for allowing excessive security measures or shackling at trial; [h] failing to object when the State overbroadly and vaguely argued aggravating circumstances; [i] failing to move for a mistrial after the State disclosed that one of the jurors had a connection with a Florida Department of Law Enforcement employee; as well as, (20) failing to adequately present available alibi witnesses. [*6] (3) Florida's capital sentencing statute is unconstitutional on its face and as applied; (4) prejudicial pretrial publicity, by the lack of a change of venue, by a failure to sequester the jury, and by events in the courtroom during trial; (5) lethal injection; (6) electrocution; (7) other procedural and substantive errors; (8) the jury received inadequate guidance concerning the aggravating circumstances to be considered; (9) the penalty phase jury instructions were incorrect under Florida law, the sentence of death is unconstitutional, and counsel was ineffective for failing to object; (10) sentence rests upon an unconstitutionally automatic aggravating circumstance; and (11) Kimbrough was denied his right to adequate mental health assistance under Ake v. Oklahoma.

Hutchinson v. Florida, 2004 Fla. LEXIS 977 (FL 7/1/2004) Relief denied on: " (1) whether the trial court improperly instructed the jury; (2) whether the trial court erred in admitting certain testimony as an excited utterance; (3) whether the trial court erred in repeatedly overruling objections to the State's closing argument; (4) whether the trial court erred in denying Hutchinson's motion for mistrial; (5) whether the trial court erred in denying Hutchinson's motion for judgment of acquittal; (6) whether the trial court erred in denying Hutchinson's motion for a new trial; (7) whether the trial court erred in considering section 921.141(5)(l), Florida Statutes (2000), as an aggravating circumstance; (8) whether the trial court erred in finding that Hutchinson committed the murder of the children during the course of an act of aggravated child abuse; (9) whether the trial court erred in finding heinous, atrocious, or cruel (HAC) as an aggravating circumstance in the murder of Geoffrey Flaherty; and (10) whether death is a proportional sentence.

Robinson v. Georgia, 2004 Ga. LEXIS 524 (GA 6/28/2004) On interlocutory motion, the court holds “[i]f either party in this case exercises any of its peremptory challenges with alleged discriminatory intent, a remedy already exists in the form of aBatson/J.E.B.motion.” As a result, the Court ruled that “because the law currently provides a remedy for jurors who are struck for illegal reasons by the defense, the order of the trial court finding OCGA § 15-12-165 unconstitutional is reversed.”

Hicks v. Schofield, 2004 Ga. LEXIS 540 (Ga 7/1/2004) (dissent) Probable cause to appeal denied on claims relating to prosecutorial misconduct in the closing argument - stay dissolved.

Franks v. Georgia, 2004 Ga. LEXIS 539 (Ga 6/28/2004) Relief denied holding evidence was sufficient to support verdict, counsel's preparation and performance were within the permissible range of conduct, suppressed materials were in fact turned over during the course of proceedings below, erroneous charge on intent to kill was harmless, and counsel waived any claim relating to change of venue/nonrandom nature of the venire panel.

Burns v. Mississippi, 2004 Miss. LEXIS 722 (Miss 6/24/2004) Relief denied on claims relating to failing to provide funds for post-conviction & failure to grant relief as to claims relating to ineffective assistance of counsel for failing to adequately investigate & present mitigation evidence.

Grayson v. Mississippi, 2004 Miss. LEXIS 721 (Miss 6/24/2004) Relief denied on claims including: "(1) purposeful unlawful delay in filing formal charges to obtain uncounseled confession; (2) unconstitutionally defective jury instructions; (3) sentence of death is constitutionally defective; (4) denial of right to effective counsel; (5) disproportionate sentence; and (6) cumulative error. In Grayson’s supplemental amendment, he asserts six additional grounds for relief, some of which are duplicative: (7) ineffective assistance of counsel; (8) sentencing verdict fails to reflect aggravating factors beyond a reasonable doubt; (9) death sentence cannot be meted out until time has been served for other offenses committed prior to the capital murder; (10) aggravating factors not included in the indictment; (11) the “avoiding lawful arrest” aggravator was inappropriate in this case and it was fundamental error to present to the sentencing jury; and (12) jury’s consideration of pecuniary gain and burglary as aggravators is error."

Bishop v. Mississippi, 2004 Miss. LEXIS 773 (Miss 7/1/2004) Relief denied on (1) ineffective assistance of counsel; (2) violation Tison v. Arizona; (3) other errors and omissions in sentencing; (4) error in charging the trial jury with State requested instruction 10; (5) mental retardation; (6) introduction of the 911 audio tape; and (7) disproportionate nature of sentence.

Davis v. Mississippi, 2004 Miss. LEXIS 803 (Miss 7/1/2004) Relief denied, most notably, on claims that trial counsel did not adequately exploit FBI lab reports suggesting someone else committed the crime, failure to adequately challenge aggravator, and trial counsel's putative conflict of interest.

New Jersey v. Toliver, et al,2004 N.J. LEXIS 687 (NJ 6/2/2004) Grand juries need not be death qualified, rather a "prosecutor must [merely] present the aggravating factors he or she intends to rely on in seeking the death penalty." Other procedures suggested by Attorney General in presenting potential capital cases to grand juries referred to "the Trial Judges Committee on Capital Causes for its consideration whether rulemaking is warranted in this regard."

Codefendants contend that the assignment judge and both parties' counsel should voir dire grand jurors individually to determine whether they have views on capital punishment that would prevent or impair substantially their ability to be impartial. We disagree. Prosecutors are not obligated [*8] even to inform grand jurors that they are sitting on a capital case. The purposes of the grand jury are to "determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." State v. Hogan, 144 N.J. 216, 227, 676 A.2d 533 (1996) (internal citations omitted). It is an "accusatory and not an adjudicatory body." Id. at 235. Unlike capital sentencing-phase jurors, grand jurors do not assess the moral culpability of a defendant by weighing aggravating and mitigating factors. They do not even evaluate the relative strengths and weaknesses of the State's and the defendant's evidence, as guilt-phase jurors do. Id. at 235-36. Most important, they are not concerned with the sentencing consequences of their determination, but only with whether there is probable cause to indict the defendant charged by the prosecutor. Id. at 237. Given that limited role of the grand jury, death qualification is unwarranted.

North Carolina v. Garcia, 2004 N.C. LEXIS 669 (NC 6/25/2004) (dissent) Relief denied most notably on issues that the court erred in denying defendant's motion to quash the indictment for failure to allege the particular felony upon which the charge of felony murder was based and [ ] that defendant's request for a bill of particulars should have been allowed.

Ohio v. Myers, 2004 Ohio LEXIS 1545;102 Ohio St. 3d 318 (Ohio 6/30/2004) Motion to reopen appeal & claims of ineffective assistance of appellate counsel denied.

Tennessee v. Davis, 2004 Tenn. Crim. App. LEXIS 554 (TennCrim App. 6/25/2004) Petition for a writ of error coram nobis filed outside the statute of limitations & claims do not constitute newly discovered evidence.

Tennessee v. Rogers, 2004 Tenn. Crim. App. LEXIS 574 (Tenn. Crim. App. 6/30/2004) Relief denied on claims including: "(1) whether the evidence is sufficient to convict and to support a sentence of death; (2) whether the trial court erred in failing to grant the defendant's motion for a change of venue; (3) whether the trial court erred by not suppressing the defendant's statements to the police; (4) whether the trial court erred by not suppressing the defendant's statements to third parties; (5) whether the trial court erred by excluding two jurors for cause; (6) whether the trial court erred by limiting the cross-examination [ ]; (7) whether the trial court erred in admitting a photograph of the victim's skull and a photograph of the victim taken during her life; (8) whether the trial court erroneously instructed the jury on the definition of "intentional" in the first degree murder charge; (9) whether the trial court erred by failing to instruct vehicular homicide as a lesser included offense of first degree murder; (10) whether T.C.A. §§ 39-13-204(f) and 39-13-204(h) are unconstitutional; (11) whether the proportionality review mandated by T.C.A. § 39-13-206 is inadequate because it fails to apply meaningful standards for determining whether a death sentence is disproportionate; and (12) whether the death penalty is unconstitutional because it is imposed in a discriminatory manner."

Ex parte Simpson, 2004 Tex. Crim. App. LEXIS 1033 (Tex. Crim. App. 6/30/2004) Relief denied, most notably, on claim relating to "mild" mental retardation.

HOT LIST

See Supreme Court cases above.

OTHER NOTABLE CASES

Hamilton v. Newland, 2004 U.S. App. LEXIS 13614 (9th Cir 7/1/2004) Evidence that Hamilton wished to present in his Rule 60(b) motion was previously available during his habeas proceedings and hence "extraordinary circumstances" are not present.

Howard v. United States, 2004 U.S. App. LEXIS 12865 (11th Cir 6/25/2004) The Supreme Court's ruling in Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002) recognized a "new" right and therefore did not restart the running of the one-year period of limitation under § 2255. The Supreme Court held in Shelton that "a suspended sentence that may 'end up in the actual deprivation of a person's liberty' may not be imposed unless the defendant was accorded 'the guiding hand of counsel' in the prosecution for the crime charged."

FOCUS

From the recent cert. petition in Miller-El v. Dretke:

The court of appeals was directed by this Court to determine whether petitioner was entitled to relief under 28 U.S.C. 2254(d)(2) and (e)(1) based on his claim that the prosecution purposefully discriminated against African- Americans during his jury selection in violation of Batson. This Court provided specific guidance for how that analysis was to be conducted. The court of appeals paid lip service to that guidance but disregarded it in substance. As a result, it grievously misapplied the relevant standard and set a dangerous precedent.

The issue on remand focused exclusively on step three of the Batson inquiry. Although the state trial court had previously ruled that petitioner never established a prima facie case of discrimination, the State conceded before this Court that that ruling was clear error, and ìthere is no disputeî that petitioner has satisfied Batson step one. App. 35a. Because petitioner acknowledged that the State had proffered facially neutral reasons for its strikes, step two is satisfied as well. Id.

The remaining question, as this Court explained, is ìn "step three: whether Miller-El ëhas carried his burden of proving purposeful discrimination." Id. (quoting Hernandez v. New York, 500 U.S. 352, 359 (1991)). Because the trial courtís decision on the ultimate question of purposeful discrimination is a finding of fact, it will not be overturned on direct review unless it is clearly erroneous. App. 36a-37a.

Under 28 U.S.C. ß 2254, state-court fact findings are given the same deference; where ß 2254 applies, this Court's "habeas jurisprudence embodies" the deference accorded to adetermination under Batson step three on direct review. App. 37a (under ß 2254(e)(1), factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, and under ß 2254(d)(2), a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding).

The proper evaluation of the evidence under Batson step threeóas explicated by this Court in Miller-El "therefore mirrors the proper application of the factevaluation standards under ß 2254. This Court emphasized that the deference due such findings of fact, whether on direct review or on federal habeas, does not ìimply abandonment or abdication of judicial review." App. 37a. Indeed, if the standards under ßß 2254(d)(2) and (e)(1) have any meaning, they will by definition require relief in some cases. Id. This is such a case.

Accordingly, in laying out the analytical framework for the Fifth Circuit to apply on remand, this Court identified two categories of evidence that the Fifth Circuit was required to consider "and to consider in its totality" in evaluating petitioner's claim: the evidence of a pattern and practice of racial discrimination in jury selection in Dallas County, and the evidence that directly related to the conduct of the prosecutors in this case. App. 28a. The Court emphasized that "[i]t goes without sayingî that a proper evaluation of a claim under Batson step three requires an evaluation and weighing of all of this relevant evidence, including ìthe facts and circumstances adduced in support of the prima facie case." Id. at 37a (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)).

Purportedly applying this standard on remand, the Fifth Circuit concluded that none of petitioner's evidence, "either collectively or separately," indicated by clear and convincing evidence that the state trial court erred. App. 22a. The court of appeals failed, however, to do in substance what it professed to do in form. By refusing to give full consideration to the evidence adduced by petitioner in support of his prima facie case and by accepting without question the state courtís credibility determinations, the court of appeals not only undermined this Courtís authority but deprived Batson and ß 2254 of meaning.

A. The Court of Appeals Failed To Follow This Court's Direction To Consider Fully Evidence of a Pattern and Practice of Discrimination

This Court held evidence of racial discrimination by the District Attorneyís office was clearly relevant to the ultimate question of purposeful discrimination in petitionerís jury selection, and it faulted the state courts for making ìno mention . . . of the historical record of purposeful discriminationî in evaluating petitionerís claim. App. 44a (emphasis added). This failure heightened the concern that the state courts had erred because, even when presented with this evidence of a pattern and practice of discrimination, the trial court ìsomehow reasoned that there was not even the inference of discrimination to support a prima facie caseîóa clear error that the State subsequently declined to defend. Id.

The Fifth Circuit on remand, however, never addressed or even acknowledged this failure by the state court. Nordid it weigh the impact of that failure on the reasonableness of the state courtís ultimate determination of a lack of purposeful discrimination. That failure directly contravenes this Courtís guidance: This Court explicitly identified the state courtís failure in this regard and the state court's conceded commission of clear error on step one as raising concern over the reasonableness of the state courtís determination on step three.

In addition, notwithstanding this Courtís admonition that "[i]t goes without sayingî that evidence adduced to support petitioner's prima facie case should be weighed in making the ultimate determination under Batson step three, the Fifth Circuit discounted the relevance of the historical evidence ìbecause Miller-El has already met the burden under the first step of Batson and now must prove actual pretext in his case." App. 9a-10a. The notion that the stronger a Batson claimantís prima facie case at step one, the more cogent is the reason for ignoring that evidence at step three is completely unsound "as this Court, which took careful note of the fact that petitioner had 'already met' step one, manifestly recognized in insisting nonetheless that the powerful historical evidence had to be considered in step three. What is more, although in words the court of appeals seemingly acknowledged that historical evidence might undermine a prosecutorís race-neutral reasons, in practice it declined even to consider that evidence in this case because the state court, which was ìin the best position to make a factual credibility determination, heard the historical evidence and determined that the prosecutorsí race-neutral reasons for the peremptory strikes to be genuine." Id. The Fifth Circuit failed even to acknowledge what this Court took pains to point out: that the trial court conducted the Batson hearing more than two years after jury selection, significantly reducing any advantage in making credibility determinations, id. at 26a, and that these determinations were made by a trial judge who, even after a remand in which the Texas Court of Criminal Appeals had found that petitioner had met his step-one burden, ìsomehowî explicitly concluded that he had not done so, (id. at 37a).

The court of appeals also ignored other evidence of the historical discrimination that this Court specifically directed it to weigh. First, this Court noted that petitionerís evidence indicated that African-Americans ìalmost categorically were excluded from jury service.î App. 43a. This evidence, according to this Court, "reveals that the culture of the District Attorneyís Office in the past was suffused with bias against African-Americans in jury selection," and such bias is ìof course relevant to the extent it casts doubt on the legitimacy of the Stateís motives in petitionerís case." Id. But the Fifth Circuit again refused to give this evidence any weight, because the court viewed it as relevant only to step one, and in any event had already concluded that the trial court's credibility determinations should be accepted. Id. at 9a-10a.

Finally, the Fifth Circuit failed altogether to mention petitionerís remaining historical evidence. Both prosecutors involved in petitionerís jury selection joined the District Attorney's Office when that office formally trained its prosecutors to exclude minorities from juries. App. 43a. As this Court indicated, that evidence leads to the ìsupposition that race was a factorî in petitionerís jury selection, and this supposition ìcould be reinforced by the fact that the prosecutors marked the race of each prospective juror on their juror cards.î Id. This supposition is further reinforced, this Court held, by evidence that one of the prosecutors in this case had been found to have discriminated on the basis of race in another capital murder trial conducted while petitioner's state-court appeal was pending. Id. at 42a (citing Chambers v. State, 784 S.W.2d 29, 31 (Tex. Crim. App. 1989)).

Yet the Fifth Circuit made no mention of any of this evidence. Rather than weighing the credibility of the proffered race-neutral reasons against this backdrop of historical discrimination, as this Court directed, the Fifth Circuit did just the opposite: it accepted without question the state courtís credibility determinations and then having done so, rejected any relevance of the historical evidence because it had already concluded that the prosecutors had legitimate motives to strike the jurors in question. This reasoning is flatly inconsistent with this Courtís guidance, and it results in the improper application of Batson step three as well as of ßß 2254(d)(2) and (e)(1).

For the remainder of the petitioner please click here.

FROM AROUND THE WEB

Goldstein & Howe's Supreme Court blognotes the following on the Supreme Court's recent decisions:

Professor Berman has linkedto copies of several more DOJ documents revealing the Department's strategy for dealing with Blakely in the lower courts. Most important is the draft brief that the Criminal Division has circulated.

As we mentioned yesterday, the Government's lead argument appears to be that until the Supreme Court holds otherwise, lower courts are obliged to uphold the Sentencing Guidelines against Sixth Amendment challenges, notwithstanding Blakely. We wondered yesterday what DOJ would cite in support of the notion that there is governing Supreme Court precedent on point. Now we know: Edwards, Witte and Watts. According to the draft brief, "the Court has found that so long as a sentence does not exceed the statutory maximums established by Congress for the offense of conviction, a Guidelines sentence can (in fact, sometimes must) be based on judge-found conduct not proved to a jury, see Edwards v. United States, 523 U.S. 511, 514-15 (1998); conduct not charged in the indictment, see Witte v. United States, 515 U.S. 389, 399-401 (1995); and conduct of which a defendant is acquitted but is established by a preponderance of the evidence. See United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)."

But do Edwards, Witte and Watts truly provide binding precedent on the Sixth Amendment question? The Sixth Amendment is not so much as mentioned in any of the Court's opinions in those cases (although it does appear in a parenthetical quotation in a "cf." citation in Justice Stevens's dissent in Watts). The Petitioners in Edwards did argue that the Court should construe the Guidelines to avoid a serious Sixth Amendment problem. The Court in Edwards averted to this argument, 523 U.S. at 514-15, but it's something of a stretch to read that passage as having addressed and resolved the constitutional question that now confronts the lower courts in the wake of Blakely. It will be interesting to see whether any court of appeals concludes that it is bound by Edwards.

DOJ's Blakely Policies and Legal Positions

On Friday, the Deputy Attorney General issued this five-page memorandum to all federal prosecutors setting out the Department of Justice's legal positions and policies respecting the federal sentencing guidelines in the wake of Blakely v. Washington.

The memo states that "[t]he position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing." The memo then goes on to make the more surprising argument "that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality." It appears that this sentence is referring to the Court's oft-stated view that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

It will be interesting to learn the Department's view as to which SCOTUS case "directly controls" the question whether the Sentencing Guidelines violate the Sixth Amendment per Apprendi and Blakely. Friday's memo promises that this legal argument "will be developed more fully in a model brief that the Criminal Division will distribute." The memo also notes that the Criminal Division will in addition be providing further detailed guidance on the effect of Blakely on indictments, guilty pleas, jury trials, appeals, and collateral challenges under 28 U.S.C. § 2255, and sample materials for prosecutors' use in court.

Thanks to Professor Douglas Berman's Sentencing Law and Policy Blog for the link. All things Blakely-related can be found on that blog, on this page published by the National Association of Criminal Defense Lawyers, and on the aptly-named Blakely Blawg, which is on hiatus until July 12th.

The Death Penalty Information Center(Deathpenaltyinfo.org) notes:

NEW VOICES: Murder Victims' Family Members Join Call for North Carolina Death Penalty Moratorium

In a letter to the North Carolina House of Representatives, 21 family members of murder victims voiced their concerns about the state's error-ridden death penalty system and urged members to pass legislation that would impose a two-year moratorium on executions while a study is conducted. "We are troubled by cases in which inadequate representation or prosecutorial misconduct led to innocent people being sent to our North Carolina Death Row. We are troubled by the ongoing evidence that our death penalty system is plagued by class and racial bias," the family members wrote. "The criminal justice system cannot assuage the sorrow of a murder victim's family, but the system should demonstrate to us that it is just and fair." The 21 victims' family members join a lengthy list of moratorium proponents, including 8 former North Carolina Supreme Court justices, religious leaders, and other community leaders. Last Spring, the North Carolina Senate passed companion legislation to the House bill. A statewide poll showed that North Carolinians support the moratorium by more than two-to-one. (North Carolina Moratorium Now Press Release, July 7, 2004, with letter from family members). See Victims.

Freed Death Row Inmate Awarded Large Settlement Based on Poor Representation

Roberto Miranda, a Cuban native who spent 14 years on Nevada's death row before being cleared of all charges and freed, has settled a lawsuit against Clark County, the public defender's office, and two former Las Vegas police detectives for $5 million. Miranda's conviction and death sentence were thrown out in 1996 when a federal judge ruled that the defense attorney who represented him during his 1982 trial had committed glaring errors. The judge ordered a new trial, but prosecutors declined to proceed with the case and Miranda was then freed from prison. He filed a civil complaint two years later in 1998, arguing that his civil rights were violated when public defenders did virtually nothing to defend their Spanish-speaking client after he performed poorly on a polygraph examination by an English speaking examiner. He also claimed that police withheld exculpatory evidence during his trial. At first, a federal judge threw out the suit, finding that Miranda could not sue the county or the public defenders office regarding his representation. The Court of Appeals for the Ninth Circuit later reinstated the case, and the U.S. Supreme Court declined to review the Ninth Circuit's ruling, thereby opening the door for similar suits around the country. Miranda's attorney, JoNell Thomas, stated, "There's no amount of money that will give him back those 14 years." (Associated Press, June 29, 2004; see also Spence, Maoriarity & Shockey Press Release, June 29, 2004). See Innocence.

NEW RESOURCES: American Prospect Features Special Report on Capital Punishment

The July 2004 edition of The American Prospect features a special section on capital punishment with articles by some of the nation's most respected experts on the topic. "Reasonable Doubts: A Special Report on the Death Penalty" examines the growing movement to reform or abolish capital punishment in America. Among the topics examined are public opinion, innocence, race, and the death penalty for juveniles. The series also provides a closer look at the death penalty in states such as Illinois and Texas, and offers an overview of the Supreme Court's recent decisions on the death penalty. The authors included are: Anthony Amsterdam, Hugo Bedau, Christina Swarns, Tom Lowenstein, Sasha Abramsky, Jean Templeton, Joseph Rosenbloom, and Connie de la Vega. See Resources.

POSSIBLE INNOCENCE: DNA Evidence Leads to Juvenile Offender's Release

Following a fifth round of DNA tests, a Louisiana death row inmate has been released on bond while awaiting a new trial. Earlier this year, Ryan Matthews' conviction and death sentence were overturned. The recent round of DNA tests on a ski mask, which prosecutors claimed was worn by Matthews during the crime, excluded Matthews but matched the genetic markers of another inmate. To date, no physical evidence linking Matthews to the crime has been found. Following the latest round of DNA testing, the Jefferson Parish District Attorney's office did not oppose Matthews' request for bond. Matthews was a juvenile at the time the crime was committed. His attorneys indicated that he suffers from mental retardation and a seizure disorder. (Times-Picayune, June 23, 2004)

See Innocence. See also, Juvenile Death Penalty.

Commutation Granted in Indiana

Darnell Williams, who was scheduled to be exectued in Indiana on July 9, was granted a commutation of his death sentence to life without parole by Governor Joe Kernan. It was the first commutation in a death penalty case in that state in 48 years. The governor cited the fact that a co-defendant in the case, Gregory Rouster, had received a life sentence, and hence it would be unfair to execute Williams. (CNN.com (AP story), July 2, 2004). See Clemency.

U.S. May Be Wavering on Respecting Extradition Conditions from Other Countries

The U.S. Justice Department indicated that it may no longer feel bound by extradition orders from other countries against the seeking of the death penalty in the U.S., a significant policy shift that experts feel could hinder international relations. In a preliminary case memo by federal District Court Judge Jack Weinstein, it was noted that a federal prosecutor had stated that officials in Washington believe a Dominican judge's order to not seek the death penalty for an extradited man is "not binding." Weinstein's memo stated that he believes the U.S. should honor the extradition order to not seek a capital conviction, as it has in all previous orders issued by extraditing nations. Although the Justice Department later announced that it would not seek the death penalty against the defendant, Weinstein has insisted that federal prosecutors provide further explanation of their assertion. A Justice Department spokeswoman said that "as a matter of procedure" all federal death penalty decisions are reviewed by department officials in Washington and that "in this specific case" officials decided not to seek the death penalty. Hofstra University law professor Eric Freedman noted: "If the countries of the world are to be left in doubt on this point, I would expect you are not going to see extraditions until that doubt is removed." (New York Times, June 19, 2004) See International Death Penalty.

Former North Carolina Supreme Court Justices Urge Vote on Moratorium

Eight former North Carolina Supreme Court justices are urging the leadership of the North Carolina House of Representatives to allow a vote on legislation that would impose a two-year moratorium on executions in the state while capital punishment is studied. Among the 8 former justices are Democrats and Republicans, some who support the death penalty and others who oppose it. "This legislation is about fundamental fairness, an issue that should not be controversial. The recent exonerations of Alan Gell and Darryl Hunt give clear evidence of the need for a study of our death penalty system. We should stop all executions until we can be sure that the death penalty is being used fairly in this state. We cannot risk the execution of an innocent person. We urge House leaders to permit a vote on this issue and allow the Democratic process to work," said the Honorable James G. Exum, Jr., one of the letter's co-signers. The North Carolina Senate passed the bill last spring, but house leaders have said the measure may not come up for a vote before their session ends this year. A statewide poll shows that 63% of North Carolinians support the temporary halt to executions so the system can be studied. (North Carolina Coalition for a Moratorium Press Release, June 29, 2004) Read the press release.

NEW VOICES: Texas Democrats Endorse Moratorium on Executions, End to Juvenile Death Penalty

The Texas Democratic Party has adopted an historic party platform that contains a number of death penalty reform recommendations, including a call for legislators to enact a moratorium on executions, to ban the execution of juvenile offenders and the mentally ill, and to consider adopting a life without paroles sentence in Texas. More than 1,700 attendees at the Democratic Party’s state convention signed a resolution calling for the moratorium, surpassing the 30% signature threshold required to bring a measure before the full voting body. That voting block overwhelmingly supported the recommendations and added the measures to the final party platform. (2004 Texas Democratic Party Playform, June 19, 2004) Read the Texas Democratic Party Platform.

Death Penalty Took Heavy Toll on Malvo Jurors

Although Virginia jurors in the trial of Lee Boyd Malvo maintained their camaraderie during the six weeks of trial and deliberations on whether he was guilty of capital murder in one of a series of sniper shootings, the group became sharply divided when weighing the question of whether to sentence the teen to death. The jury foreman and a second member of the jury revealed that a core group of four jurors did not believe Malvo’s role in the murders warranted the death penalty. They stated that the debate between life and death destroyed the previously cordial atmosphere within the group. Juror Susan Schriever, who supported a death sentence in the case, stated, “I couldn’t understand how people sat in the same trial and didn’t feel the same way.” Juror James Wolfcale, a Virginia Beach pastor who also favored the death penalty for Malvo, said that he was sorry to see the friendships among the jurors quickly break down during the sentencing phase. “I’m not sure I ever want to see them again,” said Wolfcale of the jurors who supported a life sentence. Wolfcale said some of those who supported a life sentence argued that the punishment would be worse than a death sentence for the young defendant. (Washington Post, June 19, 2004) See Juvenile Death Penalty. See also, Life Without Parole.

Court Says New York’s Death Penalty Is Unconstitutional

New York’s highest court has ruled that a provision of the state’s capital punishment statute violates the state constitution, a decision that appears to invalidate the sentences of all four men on New York’s death row. In New York, if a jury deadlocks, the judge imposes a sentence of 20-25 years to life, giving the possibility of parole. In its 4-3 ruling, the Court of Appeals said that these sentencing rules might unconstitutionally coerce jurors into voting for a death sentence rather than risk a deadlock by holding out for life without parole. The Court advised the legislature to correct the sentencing problem if the state is to continue trying defendants on capital charges. (Associated Press, June 24, 2004) Read the DPIC Summary of the case. See Life Without Parole.

EDITORIALS: Washington Post Criticizes Maryland's "Random" Death Penalty

In an editorial written following the execution of Steven Oken in Maryland on June 17th, The Washington Post criticized the state’s flawed death penalty system and questioned what purpose capital punishment serves. The editorial stated:

Steven Howard Oken went to his death this week in Maryland -- the 1st execution in the state in 6 years, the 1st as well since Gov. Robert L. Ehrlich Jr. (R) lifted his processor's moratorium on executions.

Mr. Oken was as good a candidate for capital punishment as the criminal justice system typically coughs up. He was a triple murderer who went on a rampage in 1987. There was no question about his guilt. And the issue he was litigating to stave off his execution -- whether the manner in which Maryland carries out lethal injection is too painful -- seems as morbid as it is unimportant. If the state may lawfully strap someone to a gurney and inject him full of poison, after all, the specific cocktail of chemicals it uses seems rather beside the point. Yet Mr. Oken's death and the state's resumption of executions ought to be the occasion for some reflection: What exactly did Maryland accomplish by killing him?

Unlike Virginia, where capital punishment is a relatively routine event, Maryland doesn't put many people to death. Mr. Oken is only the 4th since the Supreme Court reinstated the death penalty in 1976. Even if one believes that the death penalty serves as a deterrent to crime, it is implausible that one invoked so rarely would do so. Nor can the state truly claim that justice -- in some abstract sense -- is aided by its occasional use of the death penalty. For as a University of Maryland study showed last year, the state's death penalty is so unevenly applied that similar crimes simply do not yield comparable punishments. Specifically, prosecutors in Baltimore County are far more likely than those elsewhere to seek death, and murderers whose victims are white are far more likely to face capital charges than those who kill non-whites. The most powerful message the state's death penalty sends is one of randomness: that certain crimes will arbitrarily be singled out for harsher punishment than others.

About the only good that Maryland's death penalty clearly yields is a sense of justice in the families of victims and, to a less intense degree, in other citizens. That sense was much on display after Mr. Oken's death, and we don't mean in any sense to belittle the satisfaction that an execution may bring to these families. But it seems to us a satisfaction bought at an unacceptably steep price. For the death penalty is not merely an irreversible penalty, unevenly applied and fraught with grave danger of error. It involves the state in the premeditated killing of an individual long since prevented from doing further harm to society. Even when that individual's guilt is clear, that killing is still wrong -- and the power to carry it out is more power than any state should have.

(The Washington Post, June 19, 2004)(emphasis added). See Editorials.

POSSIBLE INNOCENCE: Newspaper Explores Case of Pennsylvania Death Row Inmate

In an exclusive two-part series titled “Snitch Work,” Philadelphia’s City Paper explores the possible innocence of Pennsylvania death row inmate Walter Ogrod. Investigative writer Tom Lowenstein describes Ogrod’s first trial, which resulted in a mistrial when 11 of the 12 jurors voted for acquittal. In Ogrod’s second trial in 1996, the state employed a notorious jailhouse snitch, John Hall, to strengthen their case against Ogrod, who continued to maintain his innocence. Lowenstein’s “Snitch Work” series examines Ogrod’s case, including an alledged coerced confession and police misconduct, the failure to find any physical evidence linking Ogrod to the 1988 murder of 4-year-old Barbara Jean Horn, and the possibility that tests on DNA evidence from another child-murder case could exonerate Ogrod. The articles also provide a closer look into the methods of jailhouse snitches, including comments from John Hall about how he helped to send Ogrod to death row. (Philadelphia City Paper, June 17 & 24, 2004) Read the “Snitch Work” series. See Innocence.

NEW VOICES: U.N. Ambassador Nominee Opposed to the Death Penalty

Former Republican Senator John Danforth of Missouri, President Bush’s nominee to serve as U.S. Ambassador to the United Nations, is a long-time opponent of capital punishment. During his tenure in the Senate, Danforth made his position on the death penalty clear in a 1994 Senate floor statement: “I think we should do away with the death penalty. As a matter of personal conscience, I have always opposed the death penalty.... We have had up or down votes on capital punishment. I always vote against it.” CNN notes that as U.S. Ambassador to the United Nations, Danforth hopes that he can “glue things back together” at the world body, where U.S. relations have been strained since the Iraq war. (103rd Cong. Rec. S5701 (May 12, 1994); CNN.com, June 17, 2004). See New Voices

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