Petitions of the week

Two petitions probe permissible evidence in convictions and sentencing

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In criminal trials, the Constitution places various limits on what information judges and juries may consider. This week, we highlight cert petitions that ask the court to decide, among other things, whether a jury may take into account a defendant’s courtroom demeanor and whether a judge may partially base a defendant’s sentence on alleged conduct for which the defendant was acquitted.

Marquis Shaw, a resident of Los Angeles, stood trial in 2018 with six others as part of a major prosecution intended to crack down on one of the city’s gangs. The jury convicted him of three counts of selling crack cocaine. Skeptical of the government’s claim that Shaw was more than an independent drug dealer, the jury acquitted Shaw on four additional counts charging him as a leader of the gang involved in murder, criminal racketeering, and large-scale drug distribution.

The judge sentenced Shaw to 35 years in prison, the enhanced mandatory minimum for a crack-cocaine conviction for career offenders. The judge disapproved of the jury’s acquittal on the more serious charges and viewed them, in conjunction with a 1994 marijuana conviction and a 2003 murder charge, as evidence of Shaw’s continued criminal history. “The sentence imposed,” the judge wrote, “takes into consideration the relevant conduct that the Court believes the defendant should be held responsible for.”

In Shaw v. United States, Shaw asks the justices to decide whether the higher sentence based on acquitted conduct violated his constitutional rights to due process and an impartial jury.

Police in Worcester, Massachusetts, found two small bags and one larger bag of heroin in the apartment of Carlos Ruiz and his former girlfriend, and charged both with trafficking drugs. Neither defendant testified at trial. During deliberations, the jury asked the judge whether they may take courtroom demeanor into account. Over the objection of Ruiz’s lawyer, the judge responded that, “[w]hile not evidence, the jury is entitled to consider any observations you made of the defendants’ demeanor during the trial.”

The jury convicted Ruiz and acquitted his girlfriend. Believing that the jury’s question resulted in the difference in outcome, Ruiz challenged the consideration of his courtroom demeanor on appeal. The state appeals court affirmed, in reliance on a Massachusetts Supreme Court decision that held a jury may observe a defendant’s conduct during trial.

In Ruiz v. Massachusetts, Ruiz asks the justices to decide whether allowing the jury to consider courtroom demeanor, even if not explicitly as evidence, violated his constitutional rights to remain silent and to a trial by the evidence presented in court under due process.

A list of this week’s featured petitions is below:

Shaw v. United States
22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court‘s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.

Ruiz v. Massachusetts
22-132
Issue: Whether the Fifth and 14th Amendments forbid judges (or prosecutors) from instructing (or inviting) the jury to take into account a non-testifying criminal defendant’s courtroom demeanor as a basis for finding guilt.

Counterman v. Colorado
22-138
Issue: Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

Jack Daniel’s Properties, Inc. v. VIP Products LLC
22-148
Issues: (1) Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, 15 U.S.C. § 1125(a)(1), or instead receives heightened First Amendment protection from trademark-infringement claims; and (2) whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act, 15 U.S.C. § 1125(c)(3)(C).