Tuesday, August 30, 2016

          A Criminal Law Focus to Begin the U.S. Supreme Court’s New Term, by Prof. Rory Little

          Almost all of the Court’s October arguments will be in criminal cases.
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          Stay tuned for an almost “all criminal, all the time” month of arguments at the nation’s Highest Court!

          In a somewhat unprecedented calendaring wrinkle, the entire first week of oral arguments at the Supreme Court this coming Term, and 7 of the 8 cases to be argued in all of October, are criminal-law-based cases.  This is probably not intentional, but rather reflects hesitancy in certiorari consideration last Spring by an evenly-divided eight-Justice Court.

                      Although the Court normally opens with oral arguments on “the first Monday in October,” this Term, due to Rosh Hashanah, the Court will only issue Orders on that day.  Then on Tuesday, October 4 the Court will open its argument Term by hearing two cases; and on Wednesday, three.  Three of these five arguments are pure criminal cases; the other two are “civil” but arise directly from criminal prosecutions. 

                      The next Monday, October 10, is the Columbus Day holiday, and Wednesday is Yom Kippur.  So the only argument day that week will be Tuesday October 11, when the Court will hear three cases.  Two of those are criminal (discussed below), and the third is Samsung v. Apple, October’s only completely non-criminal case (described briefly in the next paragraph).

                      That’s it for October -- eight cases which, given the Court’s slow pace in granting certiorari until late June, were all that could be fully briefed and ready for argument that “speedily.”

                      The lone civil case set for argument in October, Samsung Electronics v. Apple, is a “big” IP case, presenting an important question about the extent of damages available for patent infringement when the infringed patented design applies only to a “component” of a product.  Oral arguments will be presented by two well-known Supreme Court “heavy-hitters” -- Kathleen Sullivan for Samsung, and William Lee for Apple.

                      Otherwise, the Court’s entire argument focus in October will be on criminal matters.  Below are short (and undoubtedly simplified) summaries of the seven criminal cases set for argument in October, presented in the order they will be heard.

                      1.  Bravo-Fernandez v. United States (argument on Oct. 4):  A somewhat complicated Double Jeopardy question, which invokes a favorite old chestnut of law professors, Ashe v. Swenson, and the “collateral estoppel” effects of related prosecutions.  When jury convictions have been vacated on appeal, is retrial on those counts barred by (perhaps inconsistent) acquittals that were returned on other counts?  Arguing: former Assistant to the U.S. Solicitor General Lisa Blatt (for Bravo) and Elizabeth Prelogar from the current U.S. Solicitor General’s office.  (Specific arguing counsel have not yet been officially identified by the Court; these summaries present my best guesses as to arguing counsel.)

                      2.  Shaw v. United States (argument on Oct. 4): Does subsection (1) of the federal bank fraud statute require the government to prove that the defendant intended to obtain “bank-owned” property, as opposed to fraudulently obtaining assets of a customer that are held by the bank?  The case is a follow-on from the Court’s 2014 decision in Loughrin v. United StatesArguing: Deputy Federal public Defender Koren Bell of Los Angeles (for Shaw); and Anthony Yang from the current U.S. Solicitor General’s office.

                      3.  Salman v. United States (argument on Oct. 5):  An important insider trading case.  Is the Second Circuit’s groundbreaking 2014 decision in United States v. Newman correct in holding that the government must prove “at least a potential gain [to the tipper] of a pecuniary or similarly valuable nature;” and if so, does the gift of a “tip” to a close friend or relative satisfy this “personal benefit” requirement (derived from Dirks v. SEC, 1983)?  Arguing: Alexandra Shapiro of New York (for Salman), and Deputy U.S. Solicitor General Michael Dreeben.

                      4.  Buck v. Davis (argument on Oct. 5):  The case presents a technical procedural question arising from a decidedly un-technical incident of racial bias in a death penalty case.  Buck’s defense counsel actually elicited “expert” testimony at sentencing that Buck was more likely to be dangerous in the future because he is black – Texas now concedes that such generic race-based testimony is “always inappropriate.”  So, did the Fifth Circuit erroneously deny a Certificate of Appealability from the district court’s denial of federal habeas corpus?  Such a Certificate is a statutory prerequisite to allow review of Buck’s habeas corpus claim on the merits.  This same case previously attracted the Court’s attention in 2011, when the Court denied certiorari at an earlier stage and five Justices joined two opinions: three Justices concurring in, and two dissenting from, the denial of certiorari.  Arguing: Christina Swarns of the NAACP Legal Defense & Education Fund (for Buck); and Frederika Sargent from the Texas Attorney General’s office.

                      5.  Manuel v. City of Joliet (argument on Oct. 5):  It is complicated to even briefly describe what question this case presents.  In a §1983 civil rights complaint, filed after criminal charges against him were dropped, Manuel alleged that he was held in jail for 47 days based on false reports made by the police. Among other things he claimed damages for “malicious prosecution” after the institution of “legal process” -- and to avoid dismissal under a statute of limitations, Manuel argued that he could not legally file that claim until the prosecution against him had terminated in his favor.  The central question presented is whether the Fourth Amendment, or the Due Process Clause, governs such a claim.  Many federal Circuits have said Fourth Amendment, while the Seventh Circuit here said Due Process.  This same question was debated, but not resolved by a majority, in Albright v. Oliver (1994) (a plurality said Fourth Amendment; Justice Kennedy joined by Thomas said Due Process), and oral argument will likely focus on the intricacies and subsequents Court statements about Albright.  However, the briefs filed so far also suggest that the parties disagree about a number of preliminary wrinkles, which could sidetrack the Court at argument.  Arguing:  Stanley Eisenhammer of Arlington Heights, Illinois (or possibly Professor Jeff Fisher of Stanford, see the next case) for Manuel; Michael Scodro of Chicago’s Jenner & Block (and former Illinois Solicitor General and Justice O’Connor clerk) for the City of Joliet; and Assistant to the U.S. Solicitor General Ilana Eisenstein for the United States as Amicus.

                      6.  Pena-Rodriguez v. Colorado (argument on Oct. 11):  After Pena-Rodriguez was convicted of three sexual assault misdemeanors, two jurors reported that during deliberations, another juror had made a number of racist statements against “Mexicans.”  The question is whether the Sixth Amendment right to an “impartial jury” requires that such reports of “racial bias” during criminal jury deliberations be considered, despite Colorado’s (and many other jurisdictions’) “no impeachment” rule that generally bars use of evidence about things said or done inside the jury room to impeach a verdict.  Something like this question was left open by the 2014 decision in Warger v. ShauersArguing: Jeff Fisher of Stanford Law School, for Pena-Rodriquez; Frederick Yarger, Solicitor General of Colorado; and Assistant to the U.S. Solicitor General Rachel Kovner afor the United States as Amicus.

                      7.  Manrique v. United States (argument Oct. 11):  Is a notice of appeal -- filed after sentence and judgment (including a general restitution obligation) is imposed, but before restitution is precisely determined -- sufficient to challenge the details of the restitution award?   Arguing: Paul Rashkind, Assistant Federal Public Defender in Miami (for Manrique); and Allon Kedem from the U.S. Solicitor General’s office.

          *   *   *   *   *

                      So stay tuned for an almost “all criminal, all the time” month of arguments at the nation’s Highest Court!  (And if you really want an earful, attend the “UC Hastings Annual Supreme Court Review & Preview” panel discussion, in San Francisco at UC Hastings on September 26, 2016.)

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