On Point

US Supreme Court decision

Habeas – Discovery
Hall entitled to discovery and evidentiary hearing as to what prompted jury members to give “the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.”

From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner’s constitutional claims. We know that the Court of Appeals committed the same procedural error that we corrected in Cone v. Bell , 556 U. S. ___, ___ (2009) (slip op., at 17–18). We do not know how the court would have ruled if it had the benefit of our decision in that case.

7th Circuit decision, denying relief in: Wis COA No. 2003AP1885

Habeas – Effective Assistance of Counsel – Lesser Included Instruction
Given state court conclusion that Lopez was not entitled to lesser offense instruction on felony-murder, counsel could not have been ineffective for failing to request the instruction. Nor was the absence of the instruction “a fundamental miscarriage of justice,” because there is no showing “that Lopez probably would have been acquitted of first-degree intentional murder.”

7th Circuit decision; granting habeas relief in: Wis App Nos. 2002AP791 and 2006AP2708 (earlier decision, 1/21/10, now amended); appeal following remand, 11-3228

Habeas – Confrontation
“Because it was error for the state court to admit the co-actors’ statements through the police detective’s testimony at trial, violating Ray’s right of confrontation, we reverse and remand.”

A somewhat recurrent problem. The jury heard that, during Ray’s interrogation, the detective “confronted” him (detective’s choice of rhetoric) with the co-actors’ statements incriminating Ray. Although their statements were read to the jury under the guise of explaining what occurred during the interrogation, the co-actors didn’t themselves testify: did this little gambit violate confrontation? The state court said the statements weren’t offered to prove the truth of the matter asserted, merely to show Ray’s reaction to the accusation he was the killer. Statements admitted for “non-substantive” effect do not implicate confrontation rights, so the state court was clearly right to that extent; but not in its application of that principle:

We disagree. The confrontation clause has been invoked to prevent, even in a joint trial, the admission of a confession by a co-defendant that implicates the other accused, even if the trial judge provides a limiting instruction. See Bruton v. United States, 391 U.S. 123, 127-28 (1968). While the method of presentation of the accusations in this case shows lively imagination on the part of the prosecution, it nevertheless runs afoul of the United States Constitution. Here, the evidence presented by the prosecution delivered to the jury statements by named coactors, not available for cross-examination, accusing Ray of the very crimes with which he stood charged. However cleverly presented, the evidence was a clear violation of Ray’s constitutional right of confrontation. While the government asserts that “a number of witnesses placed Ray among the group of people involved in the shooting” (Appellee’s Brief at 5-6), none of these witnesses could place Ray at the scene of the shootings, with a weapon in his hand. To accept the government’s position that the statements were offered only to create the setting for Ray’s response, and therefore admissible, would set the stage to eliminate, in most cases, the confrontation right “enjoyed by the accused.”

The court goes on to note that no limiting instruction was given, but given that this is a Bruton case, whose essence is that a co-actor’s statement cannot as a matter of law be blunted by a limiting instruction, then perhaps the court’s observation is nothing more than an aside. The fact that Ray did not “change[] his version of events after hearing the accusations of the co-actors” does, on the other hand, have obvious significance: had he changed his version, then it would be important to know why, namely in the face of accusations. Moreover, although the court initially granted relief under auspices of plain error review, the amended opinion notes that the state never argued procedural default and that, therefore, such arguments “are waived,” citing Lilly v. Gilmore, 988 F.2d 783, 784-85 (7th Cir 1993).

US Supreme Court decision

Habeas – Effective Assistance of Counsel
The state court finding that counsel made a strategic decision not to pursue mitigation of sentence on a theory of mental limitations was “not unreasonable,” and thus not subject to reversal.

The Antiterrorism and Effective Death Penalty Act of 1996 contains two provisions governing federal-court review of state-court factual findings. Under 28 U. S. C. §2254(d)(2), a federal court may not grant a state prisoner’s application for a writ of habeas corpus based on a claim already adjudicated on the merits in state court unless that adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Under §2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” In this case, petitioner, a capital defendant, challenges the key factual finding made by the Alabama state court that denied his application for postconviction relief: that his attorneys’ failure to pursue and present mitigating evidence of his borderline mental retardation was a strategic decision rather than a negligent omission. Petitioner argues that the state court’s finding was unreasonable under §2254(d)(2) and that, in denying his federal habeas petition, the Court of Appeals for the Eleventh Circuit erroneously conflated this standard with that of §2254(e)(1), which petitioner contends is not applicable in cases, such as this one, not involving a separate federal habeas evidentiary hearing.

We granted certiorari to address the relationship between §§2254(d)(2) and (e)(1). We conclude, however, that the state court’s factual determination was reasonable even under petitioner’s reading of §2254(d)(2), and therefore we need not address that provision’s relationship to §2254(e)(1). Accordingly, we affirm the judgment of the Court of Appeals on that basis.

Factual issues resolved by the state court are presumptively correct on habeas review. The decision, while narrowly upholding the challenged fact on the particular record, holds open the broader “questions of how and when §2254(e)(1) applies in challenges to a state court’s factual determinations under §2254(d)(2).”

State v. Christopher J. Lesik, 2010 WI App 12, PFR filed
For Lesik: Anthony Cotton

Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical, health care, and hygiene procedures,’” ¶13.

The court all but says that the issue is controlled by its prior decision under an identically worded statute in State v. Neumann, 179 Wis. 2d 687, 712 n. 14, 508 N.W.2d 54 (Ct. App. 1993), ¶13.

US Supreme  Court decision

Public Trial – Closing Courtroom for Voir Dire
Sixth Amendment right to a public trial in criminal cases extends to jury selection phase. Failure to consider alternatives to closure violated this right (“trial courts are required to consider alternatives to closure even when they are not offered by the parties”). Nor did the lower court identify any “overriding” interest in favor of closure:

There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must “be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, supra, at 510; see also Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U. S. 1, 15 (1986) (“The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [the right to a fair trial]”).

Confrontation – Lab Report
USSC decision. An order, really, not an opinion, tantamount to a “GVR” (Grant, Vacate, Remand):

PER CURIAM. We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

Significance, as explained by Briscoe’s attorney and leading Confrontation Clause expert Richard Friedman: “the critical point confirmed by Melendez-Diaz remains the law: A prosecution witness must testify live, face to face with the accused, and not in writing.” It nonetheless remains the case that, as Friedman further notes,

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, withBriscoe now safely off the Supreme Court’s docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.