Relist Watch

By John Elwood
on May 25, 2018 at 9:41 am

Wide-shot of courtroom during travel ban argument, Solicitor General Noel Francisco at lectern.

John Elwood (finally) reviews Monday’s relists.

Monday’s order list was a striking illustration of how nice it is to have Washington on your side: Of the four relisted cases the Supreme Court agreed to review, the government (either as amicus or respondent) had told the court that review was warranted in three of them.

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States. So long Allen v. United States, 17-5684; farewell Gates v. United States, 17-6262; auf Wiedersehen, James v. United States, 17-6769; adieu, Robinson v. United States, 17-6877; smell ya later Lester v. United States, 17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence. If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released.

That brings us to the real stars, this week’s new relists. There are six, so I’m going to be a bit summary in discussing them to avoid droning on forever. For sheer law–nerd love, it will be hard to top Vitol S.A. v. Autoridad de Energia Electrica de Puerto Rico, 17-951. In Steel Company v. Citizens for a Better Environment, the Supreme Court held that federal courts generally may not rule on the merits of a dispute without first determining that it has subject-matter jurisdiction. According to Vitol S.A., a commodities-trading company that specializes in fuel, the circuits are divided about whether the rule applies to questions of statutory jurisdiction (as well as the Article III jurisdiction at issue in Steel Company). Vitol S.A. pleaded guilty to grand larceny in New York state court in connection with the Iraq oil-for-food program. The respondent (the Puerto Rico electric power authority) claimed that Vitol S.A.’s conviction voided its contract with corporate affiliate Vitol Inc. The power authority filed suit in Puerto Rico commonwealth court, Vitol removed the suit to federal court, and the power authority won a remand to commonwealth court based on a forum-selection clause. The Vitol companies appealed. In the U.S. Court of Appeals for the 1st Circuit, there was a major kerfuffle about whether the court had jurisdiction. Although the court thought jurisdiction “dubitable” – surprisingly, the opinion was not written by Judge Bruce Selya– it avoided resolving jurisdiction by invoking the “hypothetical jurisdiction” doctrine, which allows a court to proceed to the merits “when the merits can easily be resolved in favor of the party challenging jurisdiction.” The Vitol companies argue the 1st Circuit needed to address jurisdiction first before proceeding to the merits. The power authority argues that Vitol will lose either way, either on the merits (as the 1st Circuit already held after assuming jurisdiction was proper), or because the 1st Circuit holds that it lacks jurisdiction to entertain the Vitol companies’ challenge to the remand order. They may have a point. But given the complexity of the case, it may also be that the Supremes just want another week to figure out what is going on.

Every other new relist this week involves a homicide. What a cheery way to begin a holiday weekend.

Clark v. Louisiana, 16-9541, is a capital case involving a prisoner convicted of murder in connection with the death of a correctional officer during an attempt to escape from the Louisiana State Penitentiary at Angola. The case raises four issues, but it’s safe to assume one is the particular focus of the Supreme Court. Issue number one turns on the fact that Louisiana law requires jurors to “find beyond a reasonable doubt that at least one statutory aggravating circumstance exists,” but does not require the jury to employ that same beyond-a-reasonable-doubt standard applies to making a second determination, whether “the sentence of death should be imposed.” The second issue is whether the “evolving standards of decency” standard forbids using the death penalty when jurors could not be sure which of several defendants inflicted the blows that caused the victim’s death. The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going. The fourth issue may explain why the case has been hanging around the docket since last October, and only recently was released and relisted: Clark alleges that his lawyer conceded his guilt in the aggravated escape during his first trial and only contested whether the death penalty should be imposed. Clark says he represented himself at his second trial, where he was convicted, solely to prevent his counsel from conceding his guilt against his wishes. Because the court held on May 14 that the Sixth Amendment guarantees a defendant the right to insist that his counsel refrain from admitting guilt, even when counsel’s view is that confessing guilt offers the best chance to avoid the death penalty, I expect they’ll be taking a very close look at this case.

The last four new relists consist of two sets of related criminal cases arising out of states whose names begin with the letter O. And all four involve the court’s repeated use of the murky procedure of “rescheduling” cases – ordinarily meaning the court moved them from one conference to another before considering them at conference. Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, have been rescheduled nine times each – and both have been rescheduled even since they were relisted. Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, have both been rescheduled four times. So perhaps these cases will at last shed some light on the rescheduling procedure.

The first two cases are from a place where, if my sources are to be believed, the wind comes sweepin’ down the plain, where there is plenty of air and plenty of room. In the years around Y2K, Tremane Wood and Julius Jones, two African-Americans, were convicted in central Oklahoma of unrelated murders of white men and sentenced to death. In 2017, after Jones had finished state and federal collateral proceedings, and as Moore would soon complete them, a statistical study on capital-sentencing patterns in Oklahoma was published, concluding that nonwhites accused of killing white males are statistically more likely to receive a death sentence, even controlling for aggravating circumstances. Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just 60 days to file a second or successive post-conviction application based on newly available evidence. Both filed post-conviction applications arguing that the study constituted newly discovered evidence that they were convicted and sentenced in violation of the Sixth Amendment right to a fair trial, the Eighth Amendment bar on cruel and unusual punishment, and the 14th Amendment right to due process of law. But the court denied their applications on the basis of a state procedural bar, saying that neither had shown that “the identified patterns of race and gender disparity were not ascertainable through the exercise of reasonable diligence” at the time of their original post-conviction proceedings. The petitions in Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, present two main questions: First, whether the study indicating a risk that racial considerations entered into Oklahoma’s capital sentencing determinations proves that their death sentences are unconstitutional under the Sixth, Eighth, and 14th amendments; and second, whether Oklahoma’s post-conviction statute, as applied by the Oklahoma courts, denied Wood and Jones an adequate corrective process for the hearing and determination of their federal constitutional claims in violation of their rights under the 14th Amendment’s due process and equal protection clauses.

To avoid further depressing our reader, we will refrain from quoting songs about our second O-state – at least beyond the upbeat kind that just spell its name. Ohio’s legislature has enacted a statute that requires that minors be tried as adults when the defendant is a 16-year-old (or a 14- or 15-year-old recidivist) who is charged with homicide or a handful of other serious offenses (kidnapping, rape, and the aggravated forms of arson, robbery and burglary), generally either while using a firearm or as a recidivist. In 2016, the Supreme Court of Ohio invalidated the statute as unconstitutional. After two justices retired, Ohio successfully sought rehearing, and less than a year later issued a decision upholding the mandatory transfer law as constitutional. To make things more confusing, Justice Kennedy wrote the majority opinion reversing course, while Justice O’Connor (actually, Chief Justice O’Connor) wrote the dissent – just not the ones you think. The petitioners in Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, both were convicted of killing people in botched robberies. Both argue that mandatory trial as an adult violates the Constitution, relying on recent Supreme Court decisions emphasizing the lesser culpability of juvenile offenders and their greater potential for rehabilitation.

In closing, this was another interesting week for relists. Looks like we’ll have about five more of these columns before the court decamps for the summer. We’ll be back next week with more as October Term 2017 draws to a close. Thanks once again to Kent Piacenti for compiling these cases.

New Relists

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.