October’s arguments in Plain English

By Lisa Tucker
on Oct 21, 2010 at 8:00 pm

Just a few weeks into the Term, it already feels like the long summer never happened.  That might be, in part, because the Term has started off with a bang, with the Court hearing arguments in several important and interesting cases.  Although last week the Court was not in session because of Columbus Day, it heard oral arguments last Tuesday and Wednesday in cases to which many ordinary Americans could relate.  In this post, I will explain last Tuesday’s arguments in Plain English; in a few days, I will turn to the arguments from Wednesday.

Let’s start with Bruesewitz v. Wyeth, a case about whether vaccine manufacturers can be held liable for design defects in their vaccines.  In 1986, Congress passed the National Childhood Vaccine Injury Act (NCVIA), providing that vaccine manufacturers cannot be sued for injuries from vaccines if the injuries resulted from side effects that were “unavoidable.”  Elsewhere in the Act, Congress created an administrative process  – the so-called “Vaccine Court” – to provide money to children who are injured by vaccines.  The law was intended to “preempt” – or trump – any claims in state court.  Why?  Because otherwise, the vaccine manufacturers might have gone bankrupt due to judgments against them, and Congress recognized that vaccines were critical to the public health.

The petitioners in this case are the parents of Hannah Bruesewitz, who when she was six months old suffered severe seizures after receiving one of her childhood vaccines.  The Bruesewitz family first went to the Vaccine Court, which decided not to provide compensation because the family had not proven that the vaccines caused Hannah’s seizures.  The family then sued in state court, but two federal courts held that her suit was improper because the federal law preempted any state claims.  The family then took the case to the Supreme Court, arguing that her claim did not fall under the Act.

This case is a great example of one major class of Supreme Court cases – cases involving statutory interpretation.  Here, the parties disagree about what the statutory language of the Act means.  The Bruesewitzes argue that, if the vaccine could have been manufactured in a safer way, her injury was not “unavoidable.”  Wyeth argues that the only kinds of claims that are not preempted are those alleging manufacturing defects or a failure to warn.  How will the Court decide what the term means?  Well, it will look to the plain meaning of the word, the legislative history (or the record of Congress’s debates before passing the law), and the policy implications of each alternative reading.

In another interesting and relevant case, the Court looked at the issue of coerced confessions.  In Premo v. Moore, the police coerced a confession from Randy Moore.  Indeed, virtually everyone involved in this case now seems to agree that the confession was coerced and therefore should have been inadmissible.  However, because Moore’s trial lawyer had thought that the confession was legal, he did not move to suppress it.  He also believed that suppressing the confession would not really matter, because Moore had also voluntarily confessed to two other people. Moore pled no contest to felony murder.  Moore now claims that his lawyer was constitutionally ineffective such that his Sixth Amendment right to counsel was violated.  In other words, his lawyer’s error in failing to object to evidence of the confession was so fundamental that Moore was essentially unrepresented.

The lower courts found for the state, holding that although the confession was coerced, Moore’s lawyer may have acted reasonably. But Moore argued to the Supreme Court that, under its precedent, admission of an additional confession (even where others exist) is prejudicial because it adds to the evidence against him.  The state disagreed, arguing that, because no trial took place (thanks to Moore’s plea), the confession did not have that cumulative effect.  Moreover, it argued, Moore was not entitled to post-conviction relief – or “habeas corpus” – because the state courts had not violated “clearly established federal law.”  In other words, under the very stringent habeas standards, Moore should lose because the state court did not ignore or apply improperly federal law directly relevant to the issue.

In Harrington v. Richter, another case out of the Ninth Circuit (more on that in a minute), the Court heard another ineffective assistance of counsel claim – specifically, whether a defense attorney should have called an expert witness (remember Marisa Tomei testifying about the skid marks in My Cousin Vinny? That’s an expert witness.) to testify about blood stains found at a crime scene, or whether he should have investigated the blood evidence himself rather than relying on the state’s investigation.  When Mr. Richter challenged his conviction in state court, arguing that his counsel did not properly and effectively advocate on his behalf, the state court denied his claim without comment or explanation.  After Richter appealed his case up through the federal courts, the Ninth Circuit held that counsel’s failure to call an expert or investigate, relying merely on cross-examination, so prejudiced defendant Richter that his conviction was improper.  In other words, it granted habeas relief.

The question before the Supreme Court? Well, actually, there were two.  First was the substantive constitutional question:  was the failure by Richter’s defense counsel to call an expert ineffective assistance of counsel under the Sixth Amendment?  And, second, should a federal court defer to a state court’s decision about post-conviction relief when the state court gave no explanation for its decision?

Now, remember when I said I would get back to discussing the Ninth Circuit? Supreme Court followers know that the Court quite often reverses the Ninth Circuit; in fact, the Ninth is the second most-often reversed federal appeals court in the country (after the Federal Circuit, which hears patent cases).  Based on that statistic, the tenor of the oral arguments on Tuesday, and the Court’s usual distaste for habeas petitions, we might guess that the Supreme Court will disagree with the Ninth Circuit and deny habeas relief.  We will see . . . sometime over the next eight months.