SCOTUS Recap & Predictions

supreme-court-building-120628The Supreme Court kicked off its 2016 Term by hearing arguments in five criminal cases. Read on for recaps, predictions, and even a few practice tips…

Bravo-Fernandez v. U.S. is a double-jeopardy case, where defendants were convicted on one count and acquitted on two other related counts—then the conviction was overturned on appeal, based on a faulty jury instruction. The question is whether defendants can be retried on the charge they were convicted on, after the conviction was vacated. The Court seemed somewhat sympathetic to the government’s position during oral argument (in favor of allowing retrial). Also, the case involves political corruption (bribery of an elected official)—and Kagan, Sotomayor, and Breyer can all be pro-prosecution when they want to be. So, although petitioners make very good arguments against retrial, I predict the Court will rule for the government.

Shaw v. U.S. is a bank fraud case, where defendant stole $300K from an individual’s bank account. The question is whether defendant can be convicted of defrauding the bank, when the bank wasn’t actually harmed (because the bank didn’t lose any of its own money). Incidentally, this is the case where, at oral argument, Breyer posited a hypothetical involving Kim Kardashian. During argument there was some attention given to the propriety of the jury instructions—and generally the justices seemed sympathetic to the notion that the instructions were erroneous, suggesting an opening for vacating the conviction. But Sotomayor pointed out—correctly—that that question isn’t properly before the Court (it wasn’t raised in the petition or argued in petitioner’s brief on the merits). So, unless the Court goes out of its way to reach the charge error, I predict the Court will rule for the government and uphold the conviction. [Practice Tip: Be sure you raise and argue issues necessary to winning your case!]

Salman v. U.S. is an insider-trading case—the first insider-trading case the Court has considered in decades. The question is whether the insider received the kind of “personal benefit” from sharing inside information that is required to create liability for insider trading, and how far downstream that liability flows to those who receive the inside information. At oral argument, the government was represented by Michael Dreeben—the SG’s top attorney in criminal cases—and eventually the justices started asking Dreeben how exactly they should write their opinion in the government’s favor. So, yet again, I predict the Court will rule for the government.

Manuel v. City of Joliet is not exactly a criminal case, but it involves issues related to criminal law. Manuel brought constitutional claims against the city under § 1983, claiming police officers wrongfully arrested him and kept him locked up for 48 days until charges were dismissed. The question is whether Manuel’s claims were properly brought under the Fourth Amendment, for unreasonable seizure, or under the Fifth Amendment, for violation of due process. But the case also involves some other complicated procedural issues, including whether Manuel’s claim can be characterized as “malicious prosecution” and whether his action is barred by the statute of limitations. Given these complications, and after oral argument, I essentially agree with Rory Little’s analysis and join him in predicting the Court will narrowly hold that the Fourth Amendment applies, before sending everything else back to the Seventh Circuit for reconsideration. [Practice Tip: Clients, be sure you have experienced appellate counsel handling oral argument; Counsel, be sure you’re well prepared for argument. At times the justices seemed frustrated that petitioner’s counsel was not better able to assist them in considering the case’s complications.]

Finally, Buck v. Davis is a death-penalty case wrapped in a civil-procedure case. Buck was sentenced to death after his own attorney put on an expert witness who said Buck was “dangerous” (a requirement for a death sentence in Texas) because he is black. Buck’s initial habeas petition was denied. Then, years later, after Texas acknowledged that such “race-as-dangerousness” testimony is unconstitutional, Buck filed a postjudgment Rule-60 motion claiming “extraordinary circumstances” and seeking to challenge his sentence based on ineffective assistance of counsel. But the Fifth Circuit rejected Buck’s postjudgment challenge, holding it did not satisfy Rule 60’s requirement for “extraordinary circumstances” and did not qualify for a certificate of appealability. The question presented is, therefore, essentially procedural: i.e., whether the Fifth Circuit erred in denying a certificate of appealability. At oral argument, the Supreme Court seemed sympathetic to Buck’s arguments, both on procedure and on the merits of his death-sentence challenge. So I predict (along with everyone else) that the Court will rule in Buck’s favor. [Practice Tip: Don’t put on expert witnesses who will say your client is “dangerous” because of his race.]

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