With the 2016 presidential election now effectively decided, and as President-elect Trump moves to make Cabinet and White House staff choices, a question looms large for lawyers: what will happen to the U.S. Supreme Court vacancy following the death of Justice Antonin Scalia? While this article does not endeavor to predict Trump’s Supreme Court pick, it’s worth noting some major criminal cases that could be decided this term. Whether the Senate decides to confirm Obama nominee Judge Merrick Garland – and chances seem remote – or President Tr ump makes his own nomination in 2017, it is doubtful that the new justice will have much of a role in the upcoming term. Even if President Trump nominates his own choice for justice on Inauguration Day, it is unlikely that they would be confirmed before late March or early April, and it’s reasonable to think that the justices may have rendered a fair number of opinions by then. Traditionally, a newly seated justice does not participate on cases for which he or she has not participated in oral argument and briefing. As most lawyers know, if the Supreme Court deadlocks at 4-4, then the lower court ruling stands. How the internal politics of the court in this term – and whether justices attempt to delay a ruling to influence a particular outcome, based on how a new (and presumably conservative) justice may vote – remains to be seen.
Against this backdrop, there are several cases of note set to be heard, of interest to the criminal practitioner. Unsurprisingly, several involve capital punishment and the state of Texas.
Buck v. Davis
Buck v. Davis, Case No. 15-8049. is a Texas case, where attorneys for Duane Buck inexplicably called an expert witness who testified that Buck was more likely to commit future crimes because he was black. As “future dangerousness” is something a Texas jury must consider in deciding whether to sentence a defendant to death, the action was dramatically detrimental to Buck’s hopes to avoid the death penalty. Texas initially stated, that since the “race as future dangerousness” proof was constitutionally impermissible, they would not oppose a new sentencing hearing for Buck, as well as six other similarly situated defendants. Texas eventually backtracked on that position, stating that Buck’s petition was not timely (despite bearing some responsibility for the delay). The Supreme Court must decide if the constitutional perniciousness of the race-based evidence, can be reviewed by higher courts.
Moore v. Texas
In Moore v. Texas, Case No. 15-797, Bobby James Moore was sentenced to die, for the 1980 botched robbery of a Houston market where a clerk was killed. Moore was granted a new sentencing hearing, but was sentenced to die a second time (in 2001). In early 2014, a state habeas petition hearing was held, where the Texas trial court ruled that Moore was mentally retarded, and, therefore, could not be put to death under the Eighth Amendment. In the ruling, the court cited modern medical understandings of brain function, cognition and mental ability. The Texas Court of Criminal Appeals reversed, holding that the Texas trial court had to apply a medical standard formed in 1992 as described in Texas state precedent. Moore’s attorneys now ask the Supreme Court to overrule the Texas appellate court and find that the most recent medically accepted information regarding mental health issues be applied determining whether an inmate is mentally sound.
Nelson and Madden v. Colorado
Out of Colorado comes a very interesting due process case, Nelson and Madden v. Colorado. Shannon Nelson and Louis Alonzo Madden were convicted in unrelated cases of felony sexual offenses. They were assessed court costs, fines, supervision fees and other monetary obligations. In both cases, the defendants’ convictions were reversed on appeal, and in both cases, they were acquitted aft er a retrial. However, Colorado refused to refund the money they paid. Colorado takes the position that the only way defendants may receive a refund is through the Colorado Exoneration Act of 2013, which provides compensation to those wrongfully convicted. Part of that act however, requires the individual receiving compensation (including refunds of costs, fines and fees) to show that they are innocent by a “clear and convincing” evidence standard. It is very difficult to prove a negative or that something did not happen. In both cases, juries considered the State’s proof and acquitted the defendants. The defendants now claim that Colorado’s position constitutes a due process violation and turn to the Supreme Court.
How these cases will ultimately be decided remains to be seen. Yet, each case involves a ruling adverse to the defendant, that the defendant seeks to change. As noted, if the Court deadlocks at 4-4, none of these defendants will receive the relief they seek. Whether that happens – or whether a newly appointed justice swings the balance one way or the other – is something all criminal practitioners will be following in the months to come. Rob McGuire