COVER ARTICLE


Framed By The Times:
2003-04 U.S. Supreme Court Decisions Reflect Current Events
(Part 1 of 2 parts)

By Perry A. Craft and Michael G. Sheppard

The Supreme Court begins a new term the first Monday in October and before its summer recess issues about 80 formal opinions.(1) Although the court prizes its role as the Constitution’s “final arbiter,” most opinions resolve recurring statutory and procedural issues that lower federal courts routinely hear.

A handful avoid controversial issues, e.g., “under God” in the pledge. Last term,(2) the court decided an extraordinary range of questions, often reflecting current events and globalization’s impact. The court directed the executive to give detainees apprehended in the War on Terror access to courts and lawyers, gave the government near unchecked search and seizure authority at the borders, and broadened airline liability on international flights.

While ruling that NAFTA required granting Mexican trucks access to the nation’s interior, trumping environmental law, the court radically altered Sixth Amendment Confrontation Clause analysis, signaled the Federal Sentencing Guidelines’ likely demise, and gave police more discretion to search suspects and stop cars at roadblocks, expanded the definition of a security, and limited state immunity in bankruptcy. The still business friendly court narrowly read Truth-in-Lending, antitrust, ERISA, discrimination, and environmental claims, and usually deferred to agencies, institutions, and the executive.

This two-part article summarizes the cases’ main holdings,(3) notes trends, and offers perspective. The first part focuses on the court and mostly constitutional, criminal, and quasi-criminal cases; the second part, which will be published in the October issue, on civil cases.

The justices and the upcoming election
Not infrequently, the court decides cases by a 5-4 vote. A one-vote swing could shift the balance on several issues. The justices’ average age is 70, and two are in their 80s. Some suffer from serious or chronic health problems. Though they have lifetime tenure, court watchers predict that the winner of the 2004 presidential election will likely name two or more justices and leave his mark on the court for a generation. The court and appointments will surface as campaign issues.

The war on terror, enemy combatants, kidnapping foreign nationals
After “9/11,” Congress passed a resolution, the Authorization for Use of Military Force (AUMF), empowering the president to “use all necessary and appropriate force” against “nations” or “persons” carrying out or aiding terrorist attacks. The writ of habeas corpus, which Congress may, but did not, suspend, is available to all persons detained in the U.S. Const., Art. I, §9, cl. 2. Under the AUMF, the military deemed certain U.S. citizens and foreign nationals “enemy combatants,” a not fully defined term, and indefinitely detained them in the U.S. or at Guantanamo Naval Base, Cuba. They filed Fifth and Fourteenth Amendment due process challenges, asserting they were not combatants or terrorists and had not been charged or given access to courts or lawyers.

In Hamdi v. Rumsfeld,(4) an ally, the Northern Alliance, captured Hamdi, a U.S. citizen, on an Afghanistan battlefield. The military moved him to a brig in the U.S. In a habeas filing, 28 U.S.C. §2241, he alleged that he was a relief worker in Afghanistan, arrived shortly before 9/11 and was trapped there after hostilities erupted. An official’s declaration recounted his capture and asserted his status justified holding him indefinitely in the U.S. without formal charges, unless and if the military determined further process was warranted. Though Congress may authorize detaining combatants, due process demands that a citizen held in the U.S. have a meaningful opportunity to contest the factual basis before a neutral decision-maker. 28 U.S.C. §2241. The court rejected a separation of powers argument. Hamdi was entitled to procedural due process. In Rasul v. Bush,(5) the court held that federal district courts have jurisdiction to consider the legality of detentions of foreign nationals captured abroad in battle and jailed at Guantanamo Bay, Cuba, over which the U.S. has complete control and jurisdiction due to a 1903 treaty. Foreign nationals captured abroad after 9/11 but detained there denied that they fought against the U.S. or were terrorists. The habeas statute, 28 U.S.C. §2241(a), (c)(3), gave aliens detained in Cuba, a territory over which the U.S. exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty,” a right to judicial review of the legality of executive detention. The Alien Tort Statute (ATS), 28 U.S.C. §1350, also permitted them to sue for a “tort” committed for a “law of nations” violation. In Rumsfeld v. Padilla,(6) the court held that a citizen deemed an enemy combatant must file his habeas petition in the judicial district where he is being held or detained.

In Sosa v. Alvarez-Machain,(7) a DEA agent was captured and murdered in Mexico. Alvarez, a doctor, prolonged the agent’s life so his captors could torture him. Mexico refused to extradite him. From its U.S offices, DEA hired Mexican nationals to abduct and bring Alvarez to the U.S., where he was arrested and tried. Before trial, the court held Alvarez’s seizure did not affect federal jurisdiction. U.S. v. Alvarez- Machain, 504 U.S. 655 (1992). Acquitted, he sued for false arrest under the Federal Tort Claims Act, 28 U.S.C. §1346(b) (1) and for violating the law of nations under the ATS, 28 U.S.C. §1350. The court held that neither statute provided a remedy.

Fourth Amendment: searches and seizures
The Fourth Amendment secures against “unreasonable searches and seizures” and requires that “… no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Last term, the court narrowed recent Fourth Amendment cases, upholding searches in U.S. v. Banks,(8) Ill. v. Lidster,(9) Md. v. Pringle,(10) and Thornton v. U.S.,(11) ruled that the police may require a suspect subject to a Terry stop to identify himself, Hiibel v. Sixth Judic. Dist. Ct. of Nev.,(12) and affirmed the U.S.’s broad search and seizure powers at the borders in U.S. v. Flores-Montano.(13) The court has placed limits on domestic searches and determined that civil liability may attach to an officer’s preparing and serving a facially defective search warrant, Groh v. Ramirez.(14)

In Banks, the court held that armed with a valid warrant and after knocking for 15-20 seconds, police could break down a door and enter an apartment. Otherwise, a dealer could easily flush the drugs. In Pringle, a car with three occupants was stopped for speeding. The driver consented to a search, and an officer found cash and drugs. No one took responsibility, and all were arrested. Pringle later confessed. Examining the facts known to the officer on the scene and the “totality of the circumstances,” the officer acted reasonably and had probable cause to identify defendant as a culprit: he was one of three men who committed a crime — drug possession.

In Lidster, one week after a hit-and-run driver killed a bicyclist at midnight, police set up a checkpoint at the same time near the crash scene, stopped cars, handed out flyers, and asked drivers to help solve the crime. Smelling alcohol, police charged one driver with DUI. The court held that police may briefly stop cars at a checkpoint, ask for citizens’ help to solve a crime, and limited Indianapolis v. Edmonds, 531 U.S. 32 (2000) (roadblocks not allowed for general “crime control” purposes).

In N.Y. v. Belton, 453 U. S. 454 (1981), the court ruled when an officer makes a lawful custodial arrest of a vehicle’s occupant, contemporaneously he may search the passenger compartment as incident to the arrest. In Thornton, the court extended Belton and applied it when an officer does not make contact with the person arrested until after he has left the car. Once an officer has probable cause to make an arrest, he may search the passenger compartment when the arrestee was a recent occupant. Practicality and ease of application influenced the result, which ensures police officers’ safety and permits them to preserve evidence.

Under Terry v. Ohio, 392 U.S. 1 (1968), police officers may “stop” an individual who engages in suspicious activity. In Hiibel, a deputy saw two people near a parked truck by the roadside and approached Hiibel, who seemed drunk. The deputy explained he was investigating a domestic assault and made a lawful Terry stop. The deputy asked for identification. Hiibel refused, claiming he had done “nothing wrong.” He was arrested and convicted. The court rejected Fourth and Fifth Amendment challenges to the state stop and identify law. The law was not unreasonable and did not require Hiibel to incriminate himself.

At the border, the court has given the U.S. broad authority to control entry of persons and things. In Flores-Montano, customs agents removed and disassembled a car’s fuel tank. They found and seized marijuana, and reassembled it. The U.S. disavowed “reasonable suspicion” to justify the search. The court ruled that at the border, (1) defendant had no privacy interest in the fuel tank, (2) the U.S. may “conduct suspicionless inspections,” and (3) agents may remove, disassemble, and reassemble fuel tanks. Routine border searches of persons or things do not require reasonable suspicion, probable cause, or warrant. Stops at the border are reasonable because they happen there.

In Groh, a federal agent prepared a facially defective warrant. His affidavit specified the things to be seized and the place to be searched, but not the warrant, which though signed by a magistrate, was unreasonable on its face. The search yielded nothing. The owner sued the agent under Bivens v. Six Unknown Fed. Agents, 408 U.S. 388 (1971). Suit could proceed; the agent could not claim qualified immunity. The defective warrant failed to specify the place and things to be searched or seized. The search did not meet clear rules justifying warrantless searches: absent consent or exigency, a warrantless search of a home is presumptively unconstitutional.

Fifth Amendment, Miranda, double jeopardy
The Fifth Amendment Self-Incrimination Clause reads: “No person ... shall be compelled in any criminal case to be a witness against himself.” Const., Amdt. 5. At its core, it prohibits compelling a defendant to testify against himself at trial. In U.S. v. Patane,(15) after arresting a suspect, but without fully advising him about Miranda rights, police asked where he kept his Glock (pistol). He answered, and they seized it. Failing to give Miranda warnings did not require suppressing the pistol as evidence. Unlike the Fourth Amendment’s bar on unreasonable searches, the Fifth Amendment focuses on self-incriminating trial testimony, has its own exclusionary rule, is self executing, and does not require suppressing evidence stemming from voluntary, unwarned statements.

In Mo. v. Seibert,(16) the court analyzed an interrogation technique designed to avoid Miranda. Without giving Miranda warnings, police begin a custodial interrogation. Shortly after the suspect confesses — which violates Miranda — police then give the warnings, use the information from the first unwarned round to cover the ground a second time, and obtain a confession. The court ruled that the second confession was inadmissible and violated Miranda’s constitutional requirements. In Yarborough v. Alvarado,(17) a habeas case, an officer telephoned a 17-year-old boy’s parents and asked them to bring him to the police station. There, without giving Miranda warnings, police questioned the minor alone for two hours, and he left. Since there was no “custodial interrogation,” Miranda warnings were not required.

The Fifth Amendment’s Double Jeopardy Clause reads: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The court has long held that prosecutions by separate sovereigns do not violate double jeopardy guarantees. In U.S. v. Lara,(18) an Indian tribe prosecuted a non-tribe member for assaulting a federal officer. The U.S. then prosecuted him. For purposes of the Clause, the tribe was a separate sovereign.

Sixth Amendment right to counsel, confrontation clauses, and apprendi
Last term, the court construed criminal defendants’ Sixth Amendment right to a “jury,” right to counsel, and right to confront trial witnesses. Fellers v. U.S.,(19) Iowa v. Tovar,(20) Crawford v. Wash.,(21) Blakely v. Wash.(22) When the state initiates “judicial proceedings” against an accused, the right to counsel attaches. Once indicted, unless waived, police cannot “deliberately elicit” inculpatory statements from an accused without his lawyer present. In Fellers, the court affirmed the “deliberate-elicitation” standard set out in Massiah v. U.S., 377 U.S. 201 (1964). By questioning Fellers at home after indictment and obtaining inculpatory statements without his lawyer present, police violated his Sixth Amendment right. An accused however may waive the Sixth Amendment right to counsel. Iowa v. Tovar.
The Confrontation Clause provides that in “criminal” suits, an “accused shall enjoy the right” to “confront witnesses.” In Crawford, charged with assault, defendant asserted marital privilege at trial. His wife did not testify, but had given police a taped statement. The state played the tape, admitted as a statement against penal interest. Defendant never had an opportunity to cross-examine her. Delving into common law and the Framers’ intent, the court ruled that playing the tape violated defendant’s Sixth Amendment confrontation right and reversed Ohio v. Roberts, 448 U.S. 56 (1980) (statement admitted if it fits a “firmly rooted hearsay exception” or is particularly reliable). Sixth Amendment reliability demands confrontation, not the “vagaries” of evidentiary rules or “amorphous notions of reliability.” Admissibility of an “absent witness examination” is conditioned on “unavailability and a prior opportunity to cross-examine.” Crawford significantly changed criminal practice.

In Apprendi v. N.J., 530 U.S. 466 (2000), the court announced a new rule: Except for a prior conviction, any fact that increases the penalty for a crime above the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In Blakely, the court refused to water down Apprendi. The facts admitted in Blakely’s plea to kidnapping justified a maximum sentence of 53 months. Under state law, the judge found a sentencing enhancer, “deliberate cruelty,” and imposed an additional 90 months sentence. The judge, not a jury, determined the fact increasing his sentence and violated his Sixth Amendment right to trial by jury announced by Apprendi. Blakely raised doubts about the Federal Sentencing Guidelines’ constitutionality, which are similar in design to the state law struck here.

Fourteenth Amendment: due process and equal protection
At times, a state may lose or suppress evidence affecting an accused. Last term, two cases explained the controlling principles. In Ill. v. Fisher,(23) police testing showed that powder in a bag was cocaine. The accused fled but was captured years later. Meanwhile, in good faith and following normal procedures, police destroyed the bag. No due process violation occurred: When police destroy “potentially useful” evidence, an accused must prove “bad faith” by police in not preserving it. Ariz. v. Youngblood, 488 U.S. 51 (1988). When a state suppresses “material exculpatory” evidence, due process is violated; good or bad faith is irrelevant. Brady v. Md., 373 U.S. 83 (1976). In a habeas case, Banks v. Dretke,(24) the court upheld a Brady claim. The state withheld material facts in discovery that discredited key witnesses. When they later lied on the stand, the state stood silent. At a federal habeas evidentiary hearing, the facts surfaced. Stickler v. Greene, 527 U.S. 263 (1999), controls Brady prosecutorial misconduct claims: a state inadvertently or willfully suppressed exculpatory or impeaching evidence favorable to an accused, thereby prejudicing him.

First Amendment: free speech, establishment and free exercise clauses
The court’s most recent First Amendment cases broke no new ground, and ducked deciding the constitutionality of “under God” in the pledge of allegiance: the non-custodial father had no standing, Elk Grove Unified School Dist. v. Newdow.(25)

In Buckley v. Valeo, 424 U.S. 1 (1976), the court distinguished political contributions from campaign expenditures, restricting the former, not the latter. To avoid Buckley, parties devised “soft money” and “issue ads” loopholes, gutting prior law limitations. To fight corruption and limit corporate money in campaigns, Congress passed the 2002 Bipartisan Campaign Finance Reform Act (BCRA), amending the 1971 Federal Election Campaign Act, 2 U.S.C. §431. In McConnell v. Fed. Elec. Comm.,(26) the court described post-Buckley parties’ and candidates’ fundraising tactics and how large donors hid their affiliations and contributions from the public, thereby securing favors cheaply. The court applied a “closely drawn” — not “strict scrutiny” — standard to its First Amendment review, upheld most BCRA limits on “soft money” and “issue ads,” ruled Congress may force TV stations and media to charge campaigns their lowest rates before elections, and rejected a Tenth Amendment challenge.

Congress passed the “Child Online Protection Act” (COPA), 47 U.S.C. §231, to protect children from online pornography. Criminal penalties may be imposed for knowingly posting obscene content harmful to minors on the Web. To achieve its goals under COPA, Congress could have used less restrictive [and more effective] alternatives — filtering and blocking software — and not affected a large swath of speech that adults may send or receive. The First Amendment prohibits the government from imposing content-based restrictions on speech: they repress thought. While COPA gives a defense to Internet providers who require users to sign digital certificates verifying age and the like, and while courts may regulate some speech, neither law nor courts may chill legitimate speech. Thus, in Ashcroft v. Amer. Civil Liberties Union,(27) the court affirmed a trial court’s preliminarily enjoining COPA’s enforcement and likely struck a fatal blow to a second congressional attempt to combat online pornography.

The court has wrestled with accommodating adult businesses regulation with free speech. However, by zoning regulations, cities may restrict “adult” stores’ locations. In City of Littleton v. Z.J. Gifts D-4, L.L.C.,(28) an adult store, located out of zone, facially challenged an ordinance providing for adult businesses’ licensing and requiring their compliance with zoning rules. The business claimed the ordinance was unconstitutional because it did not provide for prompt judicial review for city administrative decisions. The court disagreed and upheld the ordinance: procedural safeguards — time limits for speedy administrative decisions, burden of proof rules favoring speech, and in particular prompt “ordinary” state law judicial review — were in place.

The First Amendment’s Establishment and Free Exercises Clauses read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and applies to states by the Fourteenth Amendment. In Locke v. Davey,(29) a state constitutional provision barred state funding of education furthering religious faith. The state gave gifted students scholarships not pursuing theology degrees. A theology student sued. The religious clauses are in tension, but there is the “play in the joints.” The Establishment Clause did not bar the scholarship limitation: Independent, private choices broke the link between state funds and religious study. While states may fund theology studies, state law forbade that choice here, but did not interfere with a student’s Free Exercise rights. The state prevailed.

Separation of powers and executive privilege
In Cheney v. U.S. Dist. Ct.,(30) private litigants sought to learn if private lobbyists had served on a Task Force to advise the president on national energy policy. They sued under the federal open meetings act and served discovery requests on the vice president, the disbanded Task Forces’ chair. The court framed the question: When may appellate courts issue a writ of mandamus to modify or dissolve discovery orders, when, by virtue of their overbreadth, enforcement may interfere with the officials in the discharge of their duties and impinge upon the president’s constitutional prerogatives? Since litigants may use discovery to interfere with executive branch policy and discretion, the court ruled that executive privilege and separation of powers required lower courts to carefully screen discovery demands placed on the VP and minimally burden him in resisting them. The court showed deference to the executive, directing lower courts to tread softly.

Bribery
In Sabri v. U.S.,(31) the court upheld the constitutionality of 18 U.S.C. §666, a bribery statute that penalizes offering a $5,000 or more bribe to a business or state or local government receiving $10,000 in federal money. Finding congress acted under the Constitution’s “Spending” or “Necessary and Proper” Clauses, the court rejected a facial challenge and refused to strike the law because it lacked an explicit “jurisdictional hook.”

Criminal procedure
Rule 11 of the Federal Rules of Criminal Procedure requires judges to give specific warnings to criminal defendants before they enter pleas. In U.S. v. Benitez,(32) the court ruled that a variance with Rule 11 requirements was generally subject to a harmless error analysis. Defendant had a non-binding agreement with the U.S.: he agreed to a plea making him eligible for a safety valve reduction in his sentence. Unknown to the prosecutor and defense counsel during plea negotiations, defendant had three prior convictions and was ineligible for a reduced sentence, a fact learned after he pleaded guilty. Defendant failed to show that but for the error he would not have entered the plea.

Constitutional questions relating to gerrymandering and elections
In Vieth v. Jubelirer,(33) the court held that political gerrymandering was not a justiciable question and separately summarily affirmed a three-judge panel striking a redistricting plan with House districts with populations deviating by 10 percent, which before was considered the safe harbor.(34)

Habeas review, prisoner civil rights claims
After state courts affirm their convictions on direct and collateral review, state inmates file federal habeas petitions. The court hears them routinely, given force to a 1996 federal law curtailing federal habeas review of their convictions, e.g. Williams v. Taylor, 529 U.S. 362 (2000), and scolded lower courts for improperly reversing state law convictions. Yarborough v. Gentry(35); Mitchell v. Esparza(36); Holland v. Jackson.(37) At times, the court announces “new” constitutional rights for those charged with crimes. Defendants convicted before the “new” rule seek to apply it retroactively and invalidate their convictions. A “new rule” applies to all criminal cases pending on direct review, but Teague v. Lane, 489 U.S. 288 (1989), controls retroactivity to convictions that are final: a federal habeas petitioner may not take advantage of “new” rules unless they forbid punishment of certain primary conduct or a certain category of punishment for a class of defendants because of their status or offense or pronounce “watershed” rules of criminal procedure going to “fundamental fairness and accuracy” of proceedings. In Mills v. Md, 486 U.S. 367 (1988), the court ruled that capital sentence schemes requiring juries to disregard mitigating factors not unanimously found were unconstitutional. In Beard v. Banks,(38) the court ruled that the Mills rules did not apply retroactively. Similarly, in Schriro v. Summerlin,(39) while a capital defendant was pursuing federal habeas review, the court issued Apprendi v. N.J., 530 U.S. 466 (2000), and Ring v. Ariz., 536 U.S. 584 (2002) (Jury must find fact that increases sentence above statutory maximum, here the death penalty, and since judge found the fact, the scheme was unconstitutional). Apprendi and Ring announced procedural rules allocating authority between judge and jury. Ring does not apply retroactively: the rules do not change the conduct punishable by death or were not “watershed procedural rules.”

The term’s other habeas cases are noted: Castro v. U.S.(40) (Lower courts may recharacterize federal prisoners’ pro se filings as federal habeas motions, but must inform and warn them about adverse effects); Pliler v. Ford,(41) (Lower federal court not required to warn pro se prisoner about consequences prior to dismissal of “mixed” habeas petition containing both exhausted and unexhausted claims); Middleton v. McNeil(42) (Not every error in jury instructions requires reversal); Baldwin v. Reese(43) (State inmates must “fairly present” their claims of federal violations in state court and exhaust state remedies before seeking federal habeas relief. 28 U.S.C. §2254(b)(1). “Fair presentation” requires inmates to specify federal claims in state appellate briefs; appellate judges are not required to unearth them in lower court opinions); Dretke v. Haley(44) (Habeas petitioner had valid ineffective assistance claim, and court avoided deciding whether the procedural default, cause and prejudice standard applied to “actual innocence” in a non-capital sentence); Muhammad v. Close(45) (Relation between federal habeas law and the 1871 Civil Rights Act for prisoner suits); Nelson v. Campbell(46) (Prisoner facing execution could file a 42 U.S.C. §1983 civil rights suit to challenge as cruel and inhuman medically inappropriate procedure, “cut-down,” to aid state in performing lethal injection); Tennard v. Dretke(47) (Capital defendant may argue wide range of constitutionally relevant factors, including low IQ, in mitigation to oppose death penalty).

Notes
1. In the 2002-03 term, the last term for which it has released official statistics, the court issued 79 signed opinions. Rehnquist, 2003 Year-End Rep. on the Fed. Judic., www.supremecourtus.gov (Jan. 1, 2004).

2. For ease and clarity, this article uses the phrase “last term” to refer to the court’s most recent decisions, those issued since Oct., 2003. The term began Oct. 6, 2003 and ends Oct. 3, 2004, but the court issues all “signed” formal opinions from the current term by June 30, 2004.

3. Last term’s cases are italicized and emboldened.

4. Hamdi v. Rumsfeld, 2004 WL 1431951 (June 28, 2004) (O’Connor, J.).

5. Rasul v. Bush, 2004 WL 1432134 (June 28, 2004) (Stevens, J.).

6. Rumsfeld v. Padilla, 2004 WL 1432135 (June 28, 2004) (Rehnquist, C.J.) — Agents brought Padilla, a citizen, to New York for detention in federal criminal custody after the court in the Southern District of New York agents executed a material witness warrant for a grand jury investigation into 9/11. While a motion to vacate the warrant was pending, the president ordered Secretary Rumsfeld to designate Padilla an “enemy combatant” and directed the military to detain him. He was moved to a Navy brig in South Carolina. A habeas petition was filed in New York. The brig commander (who had custody over him resided in S.C.) was the proper defendant, and S.C.’s federal courts, not N.Y.’s, had jurisdiction.

7. Sosa v. Alvarez-Machain, 2004 WL 1439873 (June 28, 2004) (Souter, J.) – The FTCA makes the U.S. liable for torts. Alvarez’s FTCA claim failed because federal law, 21 U.S.C. §878, gave DEA arrest authority, and thus, it was not tortious. An FTCA exception, “claims arising in a foreign country,” 28 U.S.C. §2680(k), also applied and barred applying the headquarters doctrine: negligent guidance from a U.S. based office of acts occurring in another nation. Proximate cause was lacking as well. Moreover, when the FTCA was passed, the rule was that a claim arising in another nation, but barred by its laws, was also barred in domestic courts, a result of the then-dominant choice of law principle, lex loci delicti: law of the place of injury controls. Alvarez’s ATS claim also failed. The ATS gave federal courts jurisdiction to hear law of nations violations, a limited doctrine applied mostly to narrow questions affecting foreign officials such as ambassadors. Under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), there is no “general” federal common law. Since congress had not created a cause of action, the court refused to imply one.

8. U.S. v. Banks, 124 S.Ct. 521 (Dec. 2, 2003) (Souter, J.) — Armed with a valid warrant to search an apartment for cocaine, officers knocked and yelled, “Police search warrant!” After waiting 20 seconds, they broke open the door and entered. Banks was showering and heard nothing. Police found weapons and drugs. Specific facts or the “totality of the circumstances” determine “reasonableness,” judged from the officer on the scene perspective. Exigent circumstances — the risk of losing evidence — arose shortly after knocking and announcing. Before arriving, police lacked reasonable suspicion to justify a no-knock entry, but by announcing their presence, the clock started running. When they heard no response, police feared Banks might flush the drugs if they waited longer. Once an exigency arose, police could damage the door, enter the dwelling, and not violate the Constitution or 18 U.S.C. §3109 (if after “notice,” entry is refused, “officer” may “break open” a “door” to “execute a search warrant”).

9. Ill. v. Lidster, 2004 WL 51006 (Jan. 13, 2004) (Breyer, J.).

10. Md. v. Pringle, 124 S.Ct. 795 (Dec. 15, 2003) (Rehnquist, C.J.) — A car with three occupants was stopped for speeding. The driver opened the glove box to get his registration, and an officer saw a wad of cash. A search yielded $763 and five bags of cocaine. All 3 proclaimed innocence and were arrested. Later, Pringle confessed. Warrantless arrests are lawful if supported by probable cause. Upon finding drugs, probable cause existed to believe a felony was committed. The court asked: Did the officer have probable cause to believe that a particular person, Pringle, committed a crime? Probable cause is a “practical, nontechnical” concept dealing with “‘factual and practical considerations of everyday life on which reasonable men” act, “particularized for the person searched or seized.” Preponderance of the evidence is not required. Reviewing courts examine the totality of the circumstances. The officer reasonably inferred that one or all, singly or jointly, committed the crime of possession of drugs. The court found probable cause, rejecting guilt-by-association or “singling out” defenses.

11. Thornton v. U.S., 2004 WL 1144370 (May 24, 2004) (Rehnquist, C.J.) — An officer became suspicious by Thornton’s driving. He checked the license plate and found his vehicle was improperly registered. Thornton turned down a side street, pulled in a parking lot, and left his car. The officer asked for his license. Denying he had drugs, Thornton consented to a pat down search. The officer found crack, and handcuffed, arrested, and placed him in the police car before searching the car and finding a pistol. The court upheld the vehicle search and extended Belton — an officer may search a car after he has lawfully arrested the suspect who recently left it.

12. Hiibel v. Sixth Judic. Dist. Ct. of Nev., 2004 WL 1373207 (June 21, 2004) (Kennedy, J.) — During a Terry (Terry v. Ohio, 392 U.S. 1 (1968)) stop, a suspect refused to identify himself as required by Nevada’s stop and identify law. Hiibel was arrested and convicted. The law was not vague, and “fair warning” was not required. Papachristou v. Jacksonville, 405 U. S. 156 (1972) (vagrancy statute struck). Kolender v. Lawson, 461 U. S. 352 (1983), was not controlling: state law was limited only to identification. To be privileged under the Fifth Amendment, a communication must be testimonial, incriminating, and compelled. U.S. v. Hubbell, 530 U. S. 27 (2000). Disclosing identity is generally insignificant and incriminates rarely. The court upheld the narrow state law disclosure.

13. U.S. v. Flores-Montano, 2004 WL 609791 (Mar. 30, 2004) (Rehnquist, C.J.) — At the border, the U.S. may detain persons or vehicles and prevent them from entering the country. U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985). Congress has long authorized such searches. 19 U.S.C. §1581(a). Here, removing and reassembling a fuel tank took one hour and did not damage a car’s operation or safety. At the border, the government may conduct searches without suspicion. The court reserved one issue: Is a border search unreasonable because of the particularly offensive manner in which it is carried out, and if so, when?

14. Groh v. Ramirez, 2004 WL 330057 (Feb. 24, 2004) (Stevens, J.) — A federal agent prepared an affidavit specifying explosives, guns, and records to be seized at a ranch, but the warrant did not specify the “particular” things to be seized or incorporate the affidavit. Though signed by a magistrate, the facially invalid warrant violated express Fourth Amendment requirements. A search yielded nothing. The warrant, not the application, was left at the ranch. The owner sued under Bivens v. Six Unknown Fed. Narc. Agents, 408 U.S. 388 (1971). The court rejected the agent’s qualified immunity defense: The rule is that absent consent or exigency, a warrantless search of a home is unconstitutional, and a warrant must specify the place to be searched and things to be seized. A magistrate’s approval of a warrant did not cure its defects.

15. U.S. v. Patane, 2004 WL 1431768 (June 28, 2004) (Thomas, J.) — While on bond and under a restraining order barring him from harassing a girlfriend, Patane contacted her. Learning he was on probation and had a pistol, officers arrested him. While an officer was giving Miranda warnings, he interrupted, stating he knew them. When asked, he admitted he had a pistol. Police seized it. The court refused to suppress the pistol under the fruit of the poisonous tree doctrine, Wong Sun v. U.S., 371 U.S. 471 (1963). The clause gives a self-incrimination privilege at trial. Admitting fruit of an unwarned, voluntary statement does not violate it. Miranda announced a prophylactic rule, but introducing non-testimonial evidence obtained by voluntary statements does not implicate the clause’s core concern: an inability to protect the right at one stage of a proceeding may make invoking it useless later. Absent specific warnings, Miranda created a near irrebuttable presumption of coercion for purposes of the prosecution case in chief. Unlike the Fourth Amendment bar on unreasonable searches, the clause has its own exclusionary rule. Police do not violate a suspect’s rights by negligent or deliberate failures to give Miranda warnings. Potential violations occur only upon admitting unwarned statements into evidence at trial.

16. Mo. v. Seibert, 2004 WL 1431864 (June 28, 2004) (Souter, J.) — After a parent set her house on fire to hide evidence of crimes against her child, police used a special interrogation technique. They arrested her at 3 a.m. and did not give Miranda warnings. She confessed. The officer left her alone for 15 minutes, returned, gave the warnings, and confronted her with the unwarned statement. She confessed again. The court suppressed the statement: A contrary result would undermine Miranda, recently affirmed in Dickerson v. U.S., 530 U.S. 428 (2000). The coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, risking a disregard of the privilege. Miranda conditioned admissibility of custodial confession at trial on warnings. The court distinguished Ore. v. Elstad, 470 U.S. 298 (1985) (innocent failure to give warnings not coercive when reasonably cured by voluntary waiver).

17. Yarborough v. Alvarado, 124 S.Ct. 2140 (June 1, 2004) (Kennedy, J.) — State courts ruled that a minor brought to a police station at police request by his parents was not in custody when he talked to the police alone for two hours. His statement was used against him, and state courts affirmed his conviction. State courts’ application of clearly established law was not necessarily unreasonable and incorrect: Miranda requires warnings only for “custodial interrogations”: questioning by officers after a person is in custody or significantly deprived of freedom of action. “Custody” is determined objectively based on a reasonable person’s perception under the circumstances. Under 28 U.S.C. §2254(d), a federal court may grant the writ to a state inmate only if a state court ruling “resulted in a decision that was contrary to” or unreasonably applied “clearly established” Supreme Court precedent. Federal law required federal courts to respect the state court conviction.

18. U.S. v. Lara, 124 S.Ct. 1628 (April 20, 2004) (Breyer, J.) — After a tribe prosecuted a member of another tribe for a crime on its reservation, the U.S. prosecuted him. A double jeopardy claim was rejected. The Constitution does not forbid separate sovereigns from prosecuting the same person for the same offense. Previously, the court had ruled that tribes may no longer enforce their criminal laws against members of other tribes. In 1990, Congress returned that power to tribes, relaxing “restrictions on the bounds of inherent tribal authority.” The tribe acted as sovereign under a power that Congress could restore.

19. Fellers v. U.S., 2004 WL 111410 (Jan. 26, 2004) (Ginsburg, J.) — When the government initiates “judicial proceedings,” i.e., indictment, against an accused, it triggers the Sixth Amendment right to counsel. Without counsel present and after indictment, officers violate an accused’s right to counsel when they “deliberately elicit” incriminating words and use them against him. Massiah v. U.S., 377 U.S. 201 (1964). The Sixth Amendment “deliberate-elicitation” standard differs from the Fifth Amendment custodial- interrogation standard, e.g., Mich. v. Jackson, 475 U.S. 625 (1986) (Sixth Amendment gives right to counsel when there is no interrogation and no Fifth Amendment applicability). A grand jury indicted Fellers; police went to his home and talked to him about his drug dealing. Fellers made inculpatory statements, was arrested, taken to jail where officers gave him Miranda v. Ariz., 384 U.S. 436 (1966) warnings, and he repeated his prior statements. Lower courts suppressed the “unwarned” statements made at home. Fellers had been indicted, discussions with police took place outside counsel’s presence, and he did not waive right to counsel. Accordingly, Fellers’ Sixth Amendment right was violated.

20. Iowa v. Tovar, 2004 WL 413286 (Mar. 8, 2004) (Ginsburg, J.) — Tovar pleaded guilty to his first OUI (operating under the influence) charge after stating in court that he would represent himself. In the plea colloquy, the judge explained his rights and the law, and before accepting the plea, told him he must know that Tovar was guilty. Years later, Tovar faced a third OUI offense and challenged enhancing the sentence by the first conviction. The court rejected his claim. The judge informed him of charges, his right to counsel, and penalties. A defendant may knowingly waive right to counsel. A waiver requires no special formulation and suffices if an accused understands the nature of the right and its general application. U.S. v. Ruiz, 536 U.S. 622 (2002).

21. Crawford v. Wash., 2004 WL 413301 (Mar. 8, 2004) (Scalia, J.) — At trial, the state may attempt to introduce an unavailable witness’s statement or testimony. The Confrontation clause gives defendants the right to confront witnesses at trial. The court reversed Ohio v. Roberts, 448 U.S. 56 (1980), rejecting that the Clause applied only to in-court testimony and its application to out-of-court statements at trial depended on rules of evidence then in effect. Crawford however does not bar dying declarations, business or official records, or prohibit appellate courts from applying harmless error. Crawford is must-read for criminal defense lawyers and prosecutors. Messrs. Cohen and Paine explained its implications in an excellent article in the May 2004 Tennessee Bar Journal, available online, Crawford v. Wash., Confrontation Revolution, www.tba.org/Journal_Tbarchives/tbj-200405.html.

22. Blakely v. Wash., 2004 WL 1402697 (June 24, 2004) (Scalia, J.).

23. Ill. v. Fisher, 2004 WL 323031 (Feb. 24, 2004) (Per Curiam) — Defendant was found with a bag of a powder and charged with drug possession. Police testing showed the powder was an illegal drug. Defendant made a discovery demand for it and then jumped bail. Acting in good faith under normal practice, the police destroyed the evidence. Years later, he was captured and convicted. Fisher claimed that the Fourteenth Amendment Due Process Clause required dismissal — police destroyed the evidence. Citing Ariz. v. Youngblood, 488 U.S. 51 (1988), the court rejected his claim: a due process claim for destroying “potentially useful” evidence results only if a defendant shows “bad faith” by police in failing to preserve it. If a state suppresses “material exculpatory” evidence, due process is violated, and good or bad faith is irrelevant. Brady v. Md., 373 U.S. 83 (1976). In Youngblood, the state failed to preserve evidentiary material that could have been tested again. A pending discovery request for potentially useful evidence did not eliminate a defendant’s showing bad faith by police. Since the substance destroyed was only “potentially useful” evidence, defendant had no due process claim.

24. Banks v. Dretke, 2004 WL 330040 (Feb. 24, 2004) (Ginsburg, J.) — Banks was sentenced to death for murder. Before trial, the state stated that it had provided all discovery, but withheld facts discrediting two witnesses: the state paid one informant and coached another. When they lied at trial, the State stood silent. In a habeas evidentiary hearing, the facts emerged. Under Brady v. Md., a state must disclose significant exculpatory evidence. The defendant established a Brady prosecutorial misconduct claim: willfully or inadvertently, a state suppressed favorable exculpatory or impeaching evidence, thereby prejudicing him.

25. Elk Grove Unified School Dist. v. Newdow 2004 WL 1300159 (June 28, 2004) (Stevens, J.) — The pledge of allegiance has evolved as a common understanding of the flag’s ideals. State law required teachers to lead students in reciting the pledge and its phrase, “under God,” added in 1954. An atheist, the non-custodial parent, argued that requiring his child to recite the phrase was religious indoctrination. The court ducked: as a non-custodial parent, he lacked standing. Warth v. Seldin, 422 U.S. 490 (1975). Standing has two strands: Article III standing, the “case or controversy” requirement, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); and prudential standing, “judicially self-imposed limits on the exercise of federal jurisdiction.” The court usually avoids state law domestic relations issues. Since the mother was the custodial parent and did not object to reciting the phrase, a decision would affect her rights, family relations, and keep the child in a public controversy. The father had no right to litigate as her next friend.

26. McConnell v. Fed. Elec. Comm., 124 S.Ct. 619 (Dec. 10, 2003) (Stevens, J.).

27. Ashcroft v. Amer. Civil Liberties Union, 2004 WL 1439998 (June 29, 2004) (Kennedy, J.).

28. City of Littleton v. Z.J. Gifts D-4, LLC, 2004 WL 1237360 (June 7, 2004) (Breyer, J.) — A city ordinance required “adult businesses” to meet content neutral criteria and comply with zoning rules to obtain a license. City officials must act on applications within 40 days, and judicial review was available. An adult business did not comply with zoning codes and sued, claiming the ordinance on its face violated the First Amendment. In Freedman v. Md., 380 U.S. 51 (1965), the court struck a state law requiring a state board of censers — using subjective standards — to approve a movie before it could be shown in theaters. There, the law lacked procedural safeguards: strict time limits for speedy city decisions to minimize prior restraints, burden of proof rules favoring speech, and procedures for prompt judicial decision. In FW/PBS Inc. v. Dallas, 493 U.S. 215 (1990), the court struck an ordinance regulating adult businesses by zoning, licensing, and inspections because it failed to impose strict administrative time limits for decision. Freedman’s judicial review safeguards preventing administrative and judicial delays, but state law “ordinary” judicial review rules assure access to the courts and prompt judicial decision.

29. Locke v. Davey, 124 S.Ct. 1307 (Feb. 25, 2004) (Rehnquist, C.J.) — A state constitution barred the state from funding educational programs furthering religion. The state gave college scholarships to gifted students not pursuing theology degrees and denied a scholarship to a student majoring in pastoral ministries. A state could choose to fund scholarships for theology studies, but here did not. The court upheld the state’s choice. State disfavor of religion, if any, was mild and did not offend the Free Exercise Clause. Many state constitutions bar using tax dollars to support clergy. Neither the state constitution nor the scholarship program hinted at religious animus.

30. Cheney v. U.S. Dist. Ct., 2004 WL 1403028 (June 24, 2004) (Kennedy, J.) — The president set up an Energy Policy Group, naming the vice president as chair. A final report was issued; the group disbanded. Since group members included “private lobbyists,” a suit alleged that the Federal Advisory Committee Act, 5 U.S.C. §2 (federal open meetings law), required disclosures. The vice president resisted discovery ordering document production. Though appellate courts may issue a mandamus to bar or limit discovery or the vice president’s responses, separation of powers and threatened intrusions on the executive’s decision-making process required lower courts to tread lightly. Forcing the vice president to invoke privilege with specificity and make detailed objections to discovery requests placed a high burden on him. Writing that the vice president faced a non-routine discovery dispute, the court weighed a private party’s need for facts against a discovery order’s burden on him. Special considerations apply when executive branch interests in maintaining its autonomy and communications’ confidentiality are implicated. Lower courts should explore other means to obtain facts short of forcing the executive to invoke executive privilege against overbroad discovery requests.

31. Sabri v. U.S., 124 S.Ct. 1941 (May 17, 2004) (Souter, J.) — A developer tried to bribe a councilman to clear regulatory hurdles for a proposed hotel in Minneapolis. The city had received millions in federal grants. 18 U.S.C. §666(a)(2) penalizes anyone “corruptly” offering “anything of value” [more than $5,000] to “any person, with intent to influence” a government or business about a transaction. Section 666(b) requires that the unit affected by the bribe receive $10,000 in federal money. The court rejected a facial constitutional challenge that §666 failed to require proof of connection between a bribe and federal money or link it as an element of the crime in the indictment. A federal criminal statute lacking an explicit “jurisdictional hook” is not unconstitutional when enforcing it does not go beyond legitimate Article I interests. Under the Spending Clause, Art. I, §8, cl. 1, congress may appropriate money for the general welfare, and under the Necessary and Proper Clause, Art. I, §8, cl. 18, ensure that money is correctly spent, citing McCulloch v. Md., 4 L.Ed. 579 (1819) (means-ends rationality under the Necessary and Proper Clause). Dispensing with a traceability of funds defense, the court reasoned money was fungible and the statute tied the federal interest to a minimum amount. The court rejected (1) a Commerce Clause challenge under U.S. v. Lopez, 514 U.S. 549 (1995) or (2) that congress impermissibly imposed conditions to the grant of federal funds under S.D. v. Dole, 483 U.S. 203 (1987).

32. U.S. v. Benitez, 124 S.Ct. 2333 (June 14, 2004) 13 (Souter, J.) — Defendant plead guilty to one of two counts, conspiracy. Under a negotiated plea, he was to receive a safety-valve reduction and a sentence below the mandatory 10-year minimum. In the plea colloquy, the judge warned Benitez that the plea agreement did not bind the court, but omitted one Fed. R. Crim. Proc. 11’s warning: Because the government agreed to make a nonbinding sentencing recommendation, Rule 11(c) (3) (B) required the court to advise Benitez that he could not withdraw the plea if the court did not follow the recommendation. No objection to the omission was raised. The probation office then found three prior convictions, which neither prosecutor nor counsel knew at the time of plea negotiations. He was ineligible for the safety valve. Rule 52(b)’s plain error standard applied. To obtain relief, defendant must show a reasonable probability that but for the error, he would not have entered the plea. Not all Rule 11 violations allow a defendant to withdraw a plea. A “variance” from Rule 11’s “requirements” is “harmless error” if it does not affect “substantial rights.” Relief is available for error that “affects substantial rights” or prejudices the outcome. Plain error under Rule 11 requires a defendant to prove he would not have entered the plea but for the error.
33. Vieth v. Jubelirer, 124 S.Ct. 1769 (April 28, 2004) (Scalia, J.) — Plurality overruled Davis v.Bandemer, 478 U.S. 109 (1986).

34. Cox v. Larios, 2004 WL1455701 (June 30, 2004) (Summary affirmance).

35. Yarborough v. Gentry, 124 S.Ct. 1 (Oct. 20, 2003) (Per Curiam) — In closing, counsel did not argue all facts helpful to defendant or clearly ask for an acquittal. The court rejected his “ineffective assistance” claim. When a state court rejects a federal constitutional claim, under 28 U.S.C. §2254(d)(1) federal courts may grant habeas relief only if a state court ruling is “contrary to, or involved an unreasonable application of, clearly established” Supreme Court cases; a state court ruling must be erroneous and objectively unreasonable in applying controlling federal law. Lawyers disagree about points to make, sharpen or clarify in closing, and courts defer to their tactical decisions.

36. Mitchell v. Esparza, 124 S.Ct. 7 (Nov. 3, 2003) (Per Curiam) — An indictment charged Esparza with aggravated murder for killing a clerk, but not as “principal offender” as Ohio law required. He was sentenced to death. Ohio appellate courts rejected ineffective assistance, due process, and Eighth Amendment (death eligibility class) claims. Lower federal courts granted habeas relief: Ohio courts wrongly applied harmless error, dispensed with reasonable doubt by not charging him as principal, and did not limit the class of death eligible defendants. The court reversed: §2254(d) limits federal habeas review of state inmate claims. Since the court’s cases were ambiguous, federal courts could not disturb the state court ruling. An unreasonable application of federal law is not necessarily an incorrect one.

37. Holland v. Jackson, 2004 WL 1432287 (June 28, 2004) (Per Curiam) — Convicted for murder in 1987, the principal evidence was one eyewitness’s testimony. The eyewitness claimed that Gooch was with him when the shooting occurred. Gooch did not testify. Seven years after his conviction, he asked for a new trial alleging newly discovered evidence: Gooch would now testify contrary to the eyewitness. State courts denied the motion. On habeas review, the Sixth Circuit ruled for Jackson, but the court reversed. Although the state court opined that it would deny relief on the merits, its judgment rested on an independent basis: the statement was not properly before it, which the Sixth Circuit disregarded. A state court conviction may only be reversed under federal habeas if it is incorrect and an unreasonable application of controlling federal law based on the record.

38. Beard v. Banks, 2004 WL 1402567 (June 24, 2004) (Thomas, J.).

39. Schriro v. Summerlin, 2004 WL 1402732 (June 24, 2004) (Scalia, J.).

40. Castro v. U.S., 124 S.Ct. 786 (Dec. 15, 2003) (Breyer, J.) — At times, courts re-label a pro se federal prisoner motion as a habeas motion under 28 U.S.C. §2255. The recharacterization may adversely affect the prisoner: §2255’s restrictions apply to a “successive” federal habeas motion. A federal prisoner filed two pro se motions, one in 1994, and one in 1997. He labeled his 1994 filing a Fed. R. Crim. Proc. Rule 33 motion for a new trial. A lower court dismissed it, calling it both a Rule 33 and §2255 motion. His unsuccessful appeal did not raise “recharacterization.” He called his 1997 pro se motion a §2255 motion. A lower court denied the motion; he appealed. On remand, the court dismissed the 1997 motion, ruling it was Castro’s second §2255 motion (it failed to meet §2255’s restrictions), but granted a certificate to appeal the “second” determination. Within limits, federal courts may recharacterize prisoners’ filings for good reason, i.e., avoid unnecessary dismissals. Here, courts must inform and warn pro se litigants about their effects and allow them to withdraw, amend or contest recharacterization. An unwarned recharacterization does not count as a §2255 motion for the “second or successive” habeas provision.

41. Pliler v. Ford, 2004 WL 1373174 (Jun 21, 2004) (Thomas, J.) — Prior to dismissing “mixed” habeas corpus petitions, those with both exhausted and unexhausted claims, federal district courts are not required to warn pro se prisoner about the consequences. In Rose v. Lundy, 455 U.S. 509 (1982), the court ruled that lower federal courts must dismiss “mixed” habeas petitions. The lower court did not commit error by not warning him about adverse consequences that result from the dismissal. Castro is distinguishable: There, the court recharacterized the pro se prisoner’s motion, a court action with real consequences for pro se prisoners trying to navigate complex federal habeas law. The court reserved a related habeas issue: did the inmate’s subsequent untimely petitions relate back to his “improperly dismissed” initial petitions?

42. Middleton v. McNeil, 124 S.Ct. 1830 (May 3, 2004) (Per Curiam) — In a noncapital case, the trial court added four words to a jury instruction relating to self-defense: imminent peril “to a reasonable person.” State courts applied a harmless error standard and affirmed, but a federal court granted habeas relief. The court reversed. Under §2254(d), federal courts may only grant habeas relief to a state prisoner if a state court’s adjudication of her constitutional claim was “contrary to, or involved an unreasonable application of, clearly established … Supreme Court” precedent and is not only “erroneous, but objectively unreasonable.” Though a state must prove each element of the offense and a jury instruction violates due process if it fails to meet that requirement, not every ambiguity or inconsistency in a jury instruction violates due process. The erroneous instruction did not so “infect” the trial such that the conviction violated due process. Instructions are read in context of the overall charge.

43. Baldwin v. Reese, 124 S.Ct. 1347 (Mar. 2, 2004) (Breyer, J.).

44. Dretke v. Haley, 124 S.Ct 1847 (May 3, 2004) (O’Connor, J.) — Federal courts do not hear a procedurally defaulted constitutional claim in a habeas petition without a showing of cause and prejudice to excuse the default. Exceptions to the rule are few and narrow. Since Haley had a valid ineffective assistance claim, the court avoided deciding whether to extend the exceptions to an applicant asserting “actual innocence” regarding a noncapital sentence.

45. Muhammad v. Close, 124 S.Ct. 1303 (Feb. 25, 2004) (Per Curiam).

46. Nelson v. Campbell, 124 S.Ct. 1117 (May 24, 2004) (O’Connor, J.) — An inmate was soon to be executed by lethal injection. Due to drug abuse, he had “severely compromised his peripheral veins”; they were inaccessible for standard intravenous access. To facilitate the injection, one hour before execution using local anesthesia, prison personnel planned to make a 2-inch cut in his arm or leg, a dangerous, painful, risky, and antiquated procedure. Safer methods were available. The inmate filed a 42 U.S.C. §1983 suit to enjoin the use of the cut-down. Though he had already filed one unsuccessful habeas petition, a §1983 suit was proper to hear his Eighth Amendment claim. While the specific habeas statute controls most core prison claims, fact of conviction or duration of sentence, §1983 is a vehicle to challenge constitutional claims for a noncapital inmate’s “deliberate indifference” claim, it was proper here.

47. Tennard v. Dretke, 2004 WL 1402731 (June 24, 2004) (O’Connor, J.) – Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), which found Texas’s capital sentencing scheme constitutionally inadequate for jurors to give effect to mitigating evidence of mental retardation and childhood abuse was also inadequate for jurors to give effect to evidence of low intelligence. A state cannot bar consideration of evidence if the sentencer could reasonably find that it warrants a sentence less than death. Under the Eighth Amendment, this “low threshold for relevance” requires a jury to be able to consider a capital defendant’s mitigating evidence.



Perry A. Craft and Michael G. Sheppard are partners in the law firm, Craft, Sheppard & Sitton. Craft, a 1978 University of Tennessee College of Law graduate, formerly served as deputy state attorney general. He devotes most of his practice to class actions, complex litigation, constitutional, antitrust, and ERISA. For years, he has authored an annual review of the Supreme Court. He welcomes questions, suggestions, and criticisms. His e-mail address is craft@cssjuris.com.

Sheppard, a 1981 Salmon P. Chase Law graduate, is licensed in Tennessee and Ohio. A former insurance executive and general counsel with more than 25 years of litigation and corporate experience, he practices in the areas of healthcare law, workers’ compensation, product liability, insurance law, ERISA, subrogation, asset recovery, and litigation management. His e-mail address is sheppard@cssjuris.com.
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