RELIST WATCH

Limiting a defendant’s ability to confer with counsel during a murder trial

 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.

Over the past couple of conferences, the Supreme Court has continued to clear out the rolls of relisted cases. Remarkably, the Supreme Court denied review without comment in the most recent newly relisted case, Escobar v. Texas, in which Texas conceded that erroneous DNA evidence had contributed to the defendant’s conviction for capital murder.

The court denied review on March 24 in Franklin v. New York, involving the right, guaranteed by the Sixth Amendment, of criminal defendants to confront witnesses against them. But Justices Samuel Alito and Neil Gorsuch, in separate opinions respecting the denial of certiorari, suggested that the court would need to revisit the landmark 2004 decision in Crawford v.Washington that narrowed the use of hearsay testimony in criminal trials.

The court also denied review this week in Shockley v. Vandergriff, which asked the justices to decide whether the fact that an actual judge considered a prisoner’s claim to be meritorious was enough to demonstrate that “reasonable jurists could debate” the claim — the showing necessary for a prisoner to obtain the “certificate of appealability” necessary under federal law to appeal the denial of the prisoner’s habeas corpus petition. Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, dissented from the denial of certiorari.

That brings us to the upcoming conference. There are 96 petitions and motions on the docket for this Friday’s conference. Only one of them is on its first relist: Villarreal v. Texas.

David Asa Villarreal was the only defense witness at his trial in Texas state court for murdering his boyfriend and methamphetamine supplier Aaron Estrada. His direct examination was interrupted at noon by a lengthy overnight recess. The trial judge, in an instruction whose limits could charitably be described as “not a model of clarity,” told defense counsel to act as though Villarreal were still “on the stand,” and thus not to confer with him about his testimony overnight. In a series of offhand comments, the judge suggested counsel might still confer about sentencing and trial logistics, just not about Villarreal’s testimony. Villareal’s attorney objected that such an instruction interfered with his client’s right to confer with his counsel. The next day, Villarreal finished testifying, was convicted, and drew a 60-year sentence.

Villarreal’s case implicates two aging Supreme Court criminal procedure precedents. Geders v. United States, held that a trial court violates the Sixth Amendment by prohibiting the defendant from speaking with his counsel during an overnight recess between the defendant’s direct and cross-examination. But Perry v. Leeke, 13 years later, held that a trial court does not violate the Sixth Amendment by prohibiting the defendant from consulting his counsel during a fifteen-minute recess between his direct testimony and cross-examination.

By a 2-1 vote, the court of appeals affirmed Villarreal’s conviction, though noting confusion among the lower courts on the subject. And Texas’s highest court for criminal appeals, the aptly named Texas Court of Criminal Appeals, likewise affirmed by a divided vote. It concluded that by placing off limits only discussion of the defendant’s ongoing testimony, the trial court had complied with the Sixth Amendment.

Villarreal now seeks review, asking the court for further guidance about the universe of circumstances not covered by Geders and Perry. Texas opposes review on the ground that, “[w]hile there is a split of authority concerning such orders,” orders restricting a defendant’s conferring with counsel during substantial recesses “are rarely issued.” The state argues that the decision in Villarreal’s case comports with the Supreme Court’s Sixth Amendment precedents.

On the one hand, it has been a long, long time since the Supreme Court last weighed in on this issue: Most readers would consider me an old man, I have been practicing for over 30 years, and I didn’t even begin law school until the year after Perry was decided. But the current courts shows little appetite for weighing in on constitutional issues of trial practice. This case seems unlikely to result in more than an opinion dissenting from denial of review. I would be happy to eat crow on this.

New Relists

Villarreal v. Texas, 24-557
Issue: Whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.

Returning Relists

Apache Stronghold v. United States, 24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)

Ocean State Tactical, LLC v. Rhode Island, 24-131
Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)

Snope v. Brown, 24-203
Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)

L.M. v. Town of Middleborough, Massachusetts, 24-410
Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)

Neilly v. Michigan, 24-395
Issue: Whether restitution ordered as part of a criminal sentence is punishment for purposes of the Constitution’s ex post facto clause.
(Relisted after the Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)

Ellingburg v. United States, 24-482
Issue: Whether criminal restitution under the Mandatory Victim Restitution Act is penal for purposes of the Constitution’s ex post facto clause.
(Relisted after the Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)