Relist Watch

Two Sixth Amendment claims and an ERISA lawsuit

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court didn’t have a conference last week, so it has more on its plate for this Friday’s conference than usual: 278 cases are scheduled for review. The court will likely be paying special attention to three of them, which are this week’s new relists. The court will be considering each of them for a second time. Two of the cases involve criminal law, and one is a capital case. The third case involves a fairly arcane issue of pleading claims under federal pension law.

First up: Hemphill v. New York, 20-637. Rules of evidence protect criminal defendants from the introduction of certain prejudicial types of evidence in the prosecution’s case-in-chief, such as evidence of a defendant’s violent character. However, a defendant who takes the stand and gives testimony regarding such a subject (for example, by testifying to having a peaceful character), puts the subject at issue and thereby “opens the door” to the government introducing rebuttal evidence. Hemphill asks the court to decide whether a defendant can similarly “open the door” to rebuttal evidence that was hearsay, and thus was previously inadmissible under the Sixth Amendment, which guarantees a criminal defendant’s right “to be confronted with the witnesses against him.”

During Darrell Hemphill’s trial for killing a two-year-old boy with a stray bullet during a fight on Easter Sunday 2006, his attorney elicited testimony that police had found a 9-millimeter handgun, the kind of gun used in the crime, on an alternative suspect’s nightstand hours after the shooting. In response, the prosecution introduced that other suspect’s hearsay statement from a guilty plea allocution that he had a .357 revolver with him at the fight, not a 9-millimeter. The Sixth Amendment would normally require the prosecution to introduce such evidence through the live testimony of the other suspect so that defense counsel could cross-examine him. However, the trial judge let in the statement because the judge found that Hemphill had “opened the door” to this hearsay evidence by creating the impression that the other suspect had the 9-millimeter. New York’s highest court affirmed. Hemphill argues that lower courts are divided on whether defendants can forfeit their constitutional confrontation rights in this way, and he asks the justices to take the case to make clear that the introduction of the hearsay statement violated the Sixth Amendment.

Whatley v. Warden, 20-363, will bring a sense of déjà vu all over again to regular readers of this feature. Our last installment discussed Brown v. Davenport, 20-826, which involved the test for determining whether the constitutional error of shackling a murder defendant in court was harmless. The Supreme Court wound up granting review in Brown to clarify the interaction of harmless error standards with the rules for collateral review, under which “a federal court may not award habeas relief” unless the state court’s determination that the error was harmless involved an “unreasonable” application of federal law. Fast forward to this week. Death row prisoner Frederick Whatley argues that he was denied effective assistance of counsel when his lawyer allowed him to be tried for murder and sentenced to death while wearing shackles — indeed, reenacting the crime with a toy gun while in shackles, with the prosecutor playing the role of the victim. The Georgia Supreme Court concluded that the shackles had little effect on the jury in light of the evidence of Whatley’s dangerousness, and the U.S. Court of Appeals for the 11th Circuit, by a 2-1 vote, held that conclusion was not unreasonable. Whatley argues that the Georgia Supreme Court unreasonably applied federal law when, in considering whether he was prejudiced, it failed to give weight to Supreme Court decisions holding that shackling is inherently prejudicial. The court rescheduled this case 10 times before finally relisting it after the April 1 conference, so at least one of the justices has been paying very close attention to the matter.

Last up is Allen v. Wells Fargo & Co., 20-866. The case involves standards for pleading a claim that fiduciaries of an employee stock ownership plan have breached their duty of prudence under the Employee Retirement Income Security Act of 1974. In Fifth Third Bancorp. v. Dudenhoeffer, the Supreme Court held that plan fiduciaries (typically company insiders) are not entitled to any special presumption of prudence when they invest in the company’s own stock, but rather are held to the same standards as ERISA fiduciaries in general. The court held that “[t]o state a claim for breach of the duty of prudence on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.” The court granted review last term in Retirement Plans Committee of IBM v. Jander to further clarify the issue, but the court sent the case back to the court of appeals without resolving it on the merits, so that the court of appeals could address in the first instance additional arguments the parties had raised. 

Petitioner Francesca Allen, a Wells Fargo employee, argues that lower courts have interpreted Fifth Third in a flawed manner that gives employees an inferior brand of justice compared to ordinary investors who assert fraud allegations against corporate leadership. I won’t comment further on this case, but I am legally obligated to end each discussion of Fifth Third by noting Justice Stephen Breyer’s excellent way of explaining the goal of the federal pleading standards: to “readily divide the plausible sheep from the meritless goats.”

That’s all for this week. Stay safe!

New Relists

Whatley v. Warden, 20-363
Issue: Whether a state court unreasonably applies federal law when, in determining whether a person suffered prejudice as a result of ineffective assistance of counsel, it disregards the Supreme Court’s case law recognizing that shackling is inherently prejudicial.
(rescheduled before the Dec. 4, Dec. 11, Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 3, March 19, and March 26 conferences; relisted after the April 1 conference)

Hemphill v. New York, 20-637
Issue: Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.
(relisted after the April 1 conference)

Allen v. Wells Fargo & Co., 20-866
Issues: (1) Whether, under Fifth Third Bancorp v Dudenhoeffer, fiduciaries of an employee stock ownership fund are effectively immune from duty-of-prudence liability for the failure to publicly disclose inside information; and (2) whether Dudenhoeffer’s framework extends beyond prudence-based claims and applies to duty-of-loyalty claims against ESOP fiduciaries.
(relisted after the April 1 conference)

Returning Relists

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Texas v. California, 220153
Issue: Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26 and April 1 conferences)

Dobbs v. Jackson Women’s Health Organization, 19-1392
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
(rescheduled before the Oct. 9, Oct. 16, Oct. 30, Nov. 6, Nov. 13, Nov. 20, Dec. 4 and Dec. 11 conferences; relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26 and April 1 conferences)

Harris v. Maryland, 20-101
Issue: Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26 and April 1 conferences)

Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5 and March 19 conferences; now awaiting supplemental briefing)

United States v. Abu Zubaydah, 20-827
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
(relisted after the March 19, March 26 and April 1 conferences)

Woodard v. United States, 20-6387
Issue: Whether, as many courts have held, allowing a prosecution to continue after lengthy and demonstrably prejudicial delay in filing criminal charges offends due process, even absent prosecutorial intent to gain a tactical advantage or harass, when the prosecution cannot provide an explanation for the delay sufficient to justify the extent of the prejudice suffered by the defendant.
(relisted after the March 19, March 26 and April 1 conferences)

New York State Rifle & Pistol Association, Inc. v. Corlett, 20-843
Issue: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
(relisted after the March 26 and April 1 conferences)