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Five New Decisions:
The Supreme Court handed down five decisions this morning; the opinions haven't been posted yet, but SCOTUSblog should have them up shortly (and already has short summaries posted).

  UPDATE: The opinions have been posted. As a commenter accurately points out, these are really pretty technical and dry cases on the whole.
Zathras (mail):
Move along, nothing to see here.

The 5 cases all seem to be on very dry, technical, uninteresting issues.
6.11.2007 12:00pm
Dave N (mail):
And they are now all posted on the Supreme Court's website now.
6.11.2007 12:08pm
Dave N (mail):
My bad. The links are there but the cases aren't. However, by the time you read this, they probably will be.
6.11.2007 12:10pm
PatHMV (mail) (www):
Only 4 of the cases were unanimous. The last, a habeas case, was split, although the dissenting justices concurred in several parts of the majority opinion.
6.11.2007 12:17pm
Jason Wojciechowski (mail) (www):
I didn't find the CERCLA case to be dry and technical at all.
6.11.2007 12:34pm
Erasmus (mail):
The habeas case, which is quite short, is interesting for a couple of reasons.

It's a rare opinion where the Ninth Circuit is victorious in a habeas case. (That certainly hasn't happened for a while.)

I also thought it was interesting because habeas seems to be one of the few areas of law that the Court essentially admits that its making policy judgments. Surely there is no other area of law where the alleged issue is statutory interpretation, but no legislative history is discussed and in fact the actual language of the statute isn't cited. I suspect it might have been shorter if Scalia just would have written, "I really really don't like habeas review so I don't think the petitioner should ever get the Chapman standard." Kind of a shame that the "liberals" on the panel couldn't get it together on this one. A petitioner already has to jump through enough hurdles just to get to the harmless error review. If we are at that point, the state court has really messed up.
6.11.2007 1:05pm
Erasmus (mail):
Whoops. I just realized that Steven's quasi-dissent was not solo -- Ginsburg, Breyer, and Souter joined. I take back my comment that the "liberals" on the Court couldn't get it together for this one.
6.11.2007 2:01pm
Kent Scheidegger (mail) (www):
You can put your comment forward again, Erasmus. Justice Breyer did not join Justice Stevens's dissent on the disposition of the case.

The habeas statute does not address harmless error review.
6.11.2007 2:41pm
Erasmus (mail):
Kent, I stand correct.

And regarding your second point, that's kind of my point.
6.11.2007 3:23pm
Erasmus (mail):
Corrected. I stand corrected. Okay, I give up posting today. I think each of my posts in this thread have been full of errors. (My favorite is using "its" instead of "it's" in my first post. In a close second is a lack of a pargraph break in my first post that makes it look like two unrelated points are related.)
6.11.2007 3:24pm
PatHMV (mail) (www):
Here's the deal with Fry. The dissent and the majority both agreed on the substantive rule which should apply in the situation at issue. In doing so, they thus unanimously agreed with the court of appeal, which in fact applied the rule which the Court adopted. BUT... the defendant also argued, sort of, that the court of appeal had erred not just in its choice of rule but in its application of that rule to the facts of his case. The majority felt that they had not granted cert. on that issue. The dissent felt that the grant of cert. was broad enough to address the issue, and anyway everybody briefed on it, so they wanted to reverse the court of appeal, not on the standard it chose but on its application of that standard to the facts of the particular case.
6.11.2007 3:54pm
MJG:
Fry, on its face, basically resolved a very minor circuit split where only the Eighth Circuit would apply Chapman contingent on what the state court did.

However, see this language from Scalia's opinion:


Given our frequent recognition that AEDPA limited rather than expanded the availability of habeas relief . . . it is implausible that, without saying so, AEDPA replaced the Brecht standard of actual prejudice, 507 U. S., at 637 (quoting United States v. Lane, 474 U. S. 438, 449 (1986)), with the more liberal AEDPA/Chapman standard which requires only that the state court's harmless-beyond-a-reasonabledoubt determination be unreasonable. That said, it certainly makes no sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former. Accordingly, the Ninth Circuit was correct to apply the Brecht standard of review in assessing the prejudicial impact of federal constitutional error in a state-court criminal trial.


I think Scalia there just resolved an entirely distinct circuit split. See Eddleman v. McKee, 471 F.3d 576 (6th Cir. 2006), Zappulla v. New York, 391 F.3d 462 (2d Cir. 2004), Aleman v. Sternes, 320 F.3d 687 (7th Cir. 2003) (Easterbrook).

The issue there is what do you do in federal habeas cases when the state court has found a constitutional violation, but then went on to find it harmless under Chapman. The courts are all over the map - apply the AEDPA/Williams test and then Chapman; apply AEDPA/Williams and then Brecht; apply only Chapman; apply on Brecht.

The reason the Ninth Circuit only applied Brecht is because in a previous case, cited by the 9th Circuit Fry majority (Inthavong v. LaMarque, 420 F.3d 1055 (9th Cir. 2005)), the Ninth Circuit decided that only Brecht should apply.

I really think, to use one of Scalia's most famous images, this wolf came as a sheep. If I read him right, I think Scalia just decided the issue: if a state court finds a constitutional error but then finds it harmless, then habeas courts only apply Brecht, and ignore the AEDPA.

This may be a simpler rule but I find it hard to mesh with the AEDPA's statutory language. All Scalia says is it "obviously encompasses" the other language. To me, this is a better result than the two-step approach (AEDPA + Brecht) which would be largely insurmountable for most habeas petitioners, but I don't think it is the most sensible rule.

The issue deserves exploring, however. Expect this one to come up at least slightly more than you think.
6.11.2007 4:21pm
Peter Young:
the defendant also argued, sort of, that the court of appeal had erred not just in its choice of rule but in its application of that rule to the facts of his case. The majority felt that they had not granted cert. on that issue. The dissent felt that the grant of cert. was broad enough to address the issue, and anyway everybody briefed on it, so they wanted to reverse the court of appeal, not on the standard it chose but on its application of that standard to the facts of the particular case.

The majority's discretionary refusal to read the scope of the certiorari grant as embracing the question of whether the exclusion of the exculpatory evidence was in fact prejudicial demonstrates how very little weight considerations of justice, of fairness, in arriving at a determination of guilt carry in federal court habeas review of state court convictions today.

If ever there was a case calling for a finding of actual prejudice, this was it.

First, there were two prior mistrials because of fairly equally divided hung juries (6-6 and 7-5 for conviction), and the third jury deliberated for 11 days before it indicated it was hopelessly split, 7-5, and another 23 days before returning the verdict of guilt.

Second, the only eyewitness was a disinterested truckdriver whose description of the killer (5'7" to 5'8" tall, weight about 140 pounds, and a full head of hair) was grossly at odds with the description of the defendant (6'2" tall, weight 300 pounds, bald).

Third, seven other witnesses linked the killings to a third party, some testifying that he had admitted to them that he was in fact the killer, although these witnesses were shown to have a bias, either in favor of the defendant or against the third party.

Fourth, the excluded evidence, not offered at the earlier trials, came from a cousin of the same third party, who testified outside the jury's presence that this third party bragged about doing killings which resembled in detail the killings that were charged. As the federal magistrate declared, "[j]ust how many double execution style homicides involving a female driver shot in the head and a male passenger also shot in a parked car could there be in a community proximate to the victims' murder herein?"

Given the above, and regardless of what the evidence of guilt was, I don't see how anyone could reasonably feel comfortable with this result. So off this fellow goes to prison for a very long time, apparently with no further legal recourse open to him.
6.11.2007 9:52pm
Dave N (mail):
MJG--you make a very good point. I am not sure Fry is the final word though since that statement in Justice Scalia's opinion is obviously dicta--in that it was completely unnecessary to resolution of the issue before the Court.
6.11.2007 10:09pm
ReaderY:
It's interesting to note that a series of unanimous opinions were saved up until late in the term. In the past, the unanimous decisions were done early, the cliff-hanger 5-4s reserved until the end. One wonders if Roberts intentionally tried to intersperse controversial and unanimous decisions more evenly throughout the term.
6.11.2007 10:53pm