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The United States Law Week

Bridgegate, D.C. Sniper Feature in Packed SCOTUS Criminal Term

Oct. 3, 2019, 8:56 AM

An action-packed U.S. Supreme Court term kicks off Oct. 7, and the criminal docket has a little something for everyone—the insanity defense, the D.C. sniper, the death penalty, the Fourth Amendment, and the New Jersey corruption saga known as “Bridgegate.”

These disputes and others mark the latest crime and punishment tests for the Roberts Court, which, after Justice Brett Kavanaugh replaced Justice Anthony Kennedy, is on more solid conservative footing.

But criminal cases can scramble the usual 5-4 line-ups, and in Kavanaugh’s first full term—Justice Neil Gorsuch’s third—court watchers are eager to see how the justices tackle these weighty questions.

“By the end of the term, we’ll have some interesting stories to tell,” said Ohio State law professor Douglas Berman.

Insanity Defense, Juries

The first day features states’ idiosyncratic approaches to criminal justice.

To start, Kansas death row prisoner James Kahler argues that the state can’t abolish the insanity defense.

It’s an “intriguing” case whose outcome is “hard to determine,” said death penalty expert and University of Akron emeritus law professor Margery Koosed.

The case “is so interesting because there’s really no defining precedents, or even a clear way to figure out, ‘Oh, this is the liberal view versus this is the conservative view,’” Berman said. It’s one where the justices are “writing on first principles,” so “we’ll get to see who cares about what.”

The other criminal appeal on Day One asks if the U.S. Constitution requires unanimous jury verdicts in courtrooms across the country. Louisiana and Oregon are the only states that don’t require unanimity.

The New Orleans murder case of Evangelisto Ramos follows last term’s decision applying the Eighth Amendment’s excessive fines ban to state proceedings, through a process called incorporation. Louisiana and Oregon defendants hope the Sixth Amendment’s unanimous jury right gets the same treatment, while state officials worry about upending scores of non-unanimous convictions.

Eyes on Gorsuch, Kavanaugh

Another thing to watch this term is how the two Donald Trump-appointees continue to blaze their own trails on certain issues.

Gorsuch has cast tie-breaking votes joining his Democratic-appointed colleagues in ruling against the government, including when he thinks a law is too vague. One such ruling came at the end of last term, where he wrote the 5-4 opinion striking down a law that targeted violent crime. Kavanaugh wrote the law-and-order-style dissent for the four remaining Republican-appointees.

The former prep-schoolmates also split in a closely-watched dispute in June: Flowers v. Mississippi, the case of the black man tried six times for the same crime by the same white prosecutor. This time, Kavanaugh wrote the opinion championing Curtis Flowers’ jury discrimination claim. Gorsuch dissented.

A case this term that might also resonate with Washington-area native Kavanaugh brings back frightening memories in the region. Arguments over the fate of Lee Boyd Malvo, half of the infamous D.C.-sniper pair, will test the Roberts Court on juvenile sentencing.

Malvo, who was a minor during the 2002 rampage, is serving life without parole. He wants a new sentencing hearing, in light of Supreme Court precedents that have been more lenient toward those who committed crimes while their brains were still developing. Kennedy’s vote was key in these cases, siding with defendants.

“The question now is whether the Court minus Kennedy plus Kavanaugh will give an expansive interpretation to” its most recent juvenile sentencing precedent, said Kent Scheidegger of the Criminal Justice Legal Foundation, which advocates for victims.

Malvo’s case is “really a marker for me of whether this current court will be inclined at all to expand the developing jurisprudence, or if they’re eager to cut it off at the pass,” said Berman. “A lot of people who are advocates of more lenient sentencing fear that the court is going to say, ‘No, there’s no need to do resentencing here.’” That one is set for argument Oct. 16.

Search and seizure is also back at the court, with a November argument about how much information police need to pull drivers over.

Death Docket

The justices will also continue to “tinker with the machinery of death,” as a former justice put it.

They’re coming off a particularly heated death penalty term, perhaps best encapsulated in a hardline opinion from April.

Gorsuch wrote the 5-4 opinion for the Republican-appointees tossing aside Missouri death row prisoner Russell Bucklew’s claim that his rare health condition would lead to a cruel and unusual execution, filled with bursting and bloody tumors. It’s one of a number of capital cases sharply dividing the court lately.

Bucklew was executed Oct. 1. It doesn’t seem to have been the gruesome affair he said it would be.

This term, the justices will hear an Arizona appeal in December that could affect 20 capital cases in that state alone.

They’ll also face the usual smattering of requests for execution stays from state death row prisoners across the country. And with the Trump administration’s move to ramp up federal executions, challenges from federal death row are brewing, too.

Corruption, Crimmigration

Among the hodgepodge of upcoming arguments is the Bridgegate case—the latest test of the limits of public corruption prosecutions.

Bridget Anne Kelly worked for then-New Jersey Gov. Chris Christie. She was prosecuted for her role in the scheme to halt traffic at the George Washington Bridge—the world’s busiest—as payback to a local mayor who snubbed her boss.

But Kelly claims the government overreached. Given the court’s recent penchant for smacking down corruption prosecutions, there’s a decent chance the justices will agree.

The court will also keep hearing disputes at the intersection of criminal law and immigration, as well as on the scope of theArmed Career Criminal Act, the law that imposes strict sentences on gun offenders with prior convictions. It’s known for giving headaches to judges—and justices—who try to sort out which prior convictions trigger the act’s stiff penalties.

The ACCA “might be better known as the ‘Appellate Court Consternation Act,’” quipped Jeffrey T. Green, a partner at Sidley Austin LLP and co-director of the Northwestern Supreme Court Clinic.

Indian Land Repeat

On top of grappling with familiar issues, the court will hear the same case again—one from last term about an Oklahoma murder and American Indian land.

The question is whether the 19th-century boundaries of the Muscogee (Creek) Nation reservation are still intact today.

The answer has great implications for Patrick Dwayne Murphy—who says his crime took place on Indian land and therefore the state didn’t have jurisdiction to prosecute him—but also for the legal system as a whole in large swaths of Eastern Oklahoma, which state officials worry could slip from their grasp if the court deems the area reservation land.

Gorsuch, who has sided with American Indian rights claims, is recused from the case. He previously sat on the western appeals court from which it came.

Apparently unable to break a 4-4 deadlock, Roberts announced in June that they’ll try again this term.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com